[Federal Register Volume 87, Number 130 (Friday, July 8, 2022)]
[Rules and Regulations]
[Pages 40888-40966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14307]



[[Page 40887]]

Vol. 87

Friday,

No. 130

July 8, 2022

Part II





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 Point Mugu Sea 
Range Study Area; Final Rule

Federal Register / Vol. 87 , No. 130 / Friday, July 8, 2022 / Rules 
and Regulations

[[Page 40888]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[220629-0147]
RIN 0648-BK07


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Navy Training and Testing Activities in the 
Point Mugu Sea Range Study Area

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

ACTION: Final rule; notification of issuance of Letter of 
Authorization.

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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 Point Mugu Sea Range (PMSR) Study 
Area. The Navy's activities qualify as military readiness activities 
pursuant to the MMPA, as amended by the National Defense Authorization 
Act for Fiscal Year 2004 (2004 NDAA). These regulations, which allow 
for the issuance of a Letter of Authorization (LOA) for the incidental 
take of marine mammals during the described activities and timeframes, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
and their habitat, and establish requirements pertaining to the 
monitoring and reporting of such taking.

DATES: Effective from July 7, 2022, through July 7, 2029.

ADDRESSES: A copy of the Navy's application, NMFS' proposed and final 
rules and subsequent LOA for the existing regulations, and other 
supporting documents and documents cited herein may be obtained online 
at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case 
of problems accessing these documents, please use the contact listed 
here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose of Regulatory Action

    These regulations, issued under the authority of the MMPA (16 
U.S.C. 1361 et seq.), provide the framework for authorizing the take of 
marine mammals incidental to the Navy's training and testing activities 
(which qualify as military readiness activities) from the use of at-
surface and near-surface explosive detonations throughout the PMSR 
Study Area, as well as launch events from San Nicolas Island (SNI). The 
PMSR Study Area includes 36,000 square miles and is located adjacent to 
Los Angeles, Ventura, Santa Barbara, and San Luis Obispo Counties along 
the Pacific Coast of Southern California (see Figure 1.1 of the 
application). The two primary components of the PMSR are the Special 
Use Airspace (SUA) and the ocean Operating Areas (PMSR-controlled sea 
space). The PMSR-controlled sea space parallels the California coast 
for approximately 225 nautical miles (nmi) (417 km) and extends 
approximately 180 nmi seaward (333 km; see Figure 1-1 of the 
application).
    NMFS received an application from the Navy requesting 7-year 
regulations and an authorization to incidentally take individuals of 
multiple species of marine mammals (``Navy's rulemaking/LOA 
application'' or ``Navy's application''). Take is anticipated to occur 
by Level A harassment and Level B harassment incidental to the Navy's 
training and testing activities, with no serious injury or mortality 
anticipated or authorized.
    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 LOA. As directed by this 
legal authority, this final rule contains mitigation, monitoring, and 
reporting requirements.

Summary of Major Provisions Within the Final Rule

    The 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] Measures to reduce the probability and/or severity of 
impacts expected to result from exposure to explosives and launch 
activities (i.e., minimize the likelihood or severity of permanent 
threshold shift or other injury, and reduce instances of temporary 
threshold shift or more severe behavioral disruption caused by 
explosives and launch activities);
    [ssquf] Activity limitations in certain areas and times that are 
biologically important (e.g., pupping season on San Nicolas Island) for 
marine mammals;
    [ssquf] Measures to reduce the likelihood of ship strikes;
    [ssquf] Implementation of a Notification and Reporting Plan (for 
dead or live stranded marine mammals); and
    [ssquf] Implementation of a robust monitoring plan to improve our 
understanding of the environmental effects resulting from the 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

    The MMPA prohibits the take of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA direct the 
Secretary of Commerce (as delegated to NMFS) to allow, upon request, 
the incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of 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 
stocks and will not have an unmitigable adverse impact on the 
availability of the species or stocks for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses

[[Page 40889]]

(referred to in this rule as ``mitigation measures''). NMFS also must 
prescribe the requirements pertaining to the monitoring and reporting 
of such takings. The MMPA defines ``take'' to mean to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal. The Analysis and Negligible Impact Determination section 
below discusses the definition of ``negligible impact.''
    The NDAA for Fiscal Year 2004 (2004 NDAA) (Pub. L. 108-136) amended 
section 101(a)(5) of the MMPA to remove the ``small numbers'' and 
``specified geographical region'' provisions indicated above and 
amended the definition of ``harassment'' as applied to a ``military 
readiness activity.'' The definition of harassment for military 
readiness activities (section 3(18)(B) of the MMPA) is: (i) Any act 
that injures or has the significant potential to injure a marine mammal 
or marine mammal stock in the wild (Level A Harassment); or (ii) Any 
act that disturbs or is likely to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of natural behavioral 
patterns, including, but not limited to, migration, surfacing, nursing, 
breeding, feeding, or sheltering, to a point where such behavioral 
patterns are abandoned or significantly altered (Level B harassment). 
In addition, the 2004 NDAA amended the MMPA as it relates to military 
readiness activities such that the least practicable adverse impact 
analysis shall include consideration of personnel safety, practicality 
of implementation, and impact on the effectiveness of the military 
readiness activity.
    More recently, section 316 of the NDAA for Fiscal Year 2019 (2019 
NDAA) (Pub. L. 115-232), signed on August 13, 2018, amended the MMPA to 
allow incidental take rules for military readiness activities under 
section 101(a)(5)(A) to be issued for up to 7 years. Prior to this 
amendment, all incidental take rules under section 101(a)(5)(A) were 
limited to 5 years.

Summary and Background of Request

    On March 9, 2020, NMFS received an application from the Navy for 
authorization to take marine mammals by Level A harassment and Level B 
harassment incidental to training and testing activities (categorized 
as military readiness activities) from (1) the use of at-surface or 
near-surface explosive detonations in the PMSR Study Area, as well as 
(2) launch events from SNI, over a 7-year period beginning June 2022 
through June 2029. We received a revised application on August 28, 
2020, which provided minor revisions to the mitigation and monitoring 
sections, and upon which the Navy's rulemaking/LOA application was 
found to be adequate and complete. On September 4, 2020, we published a 
notice of receipt (NOR) of application in the Federal Register (85 FR 
55257), requesting comments and information related to the Navy's 
request for 30 days. On July 16, 2021, we published a notice of 
proposed rulemaking (86 FR 37790) and requested comments and 
information related to the Navy's request for 45 days (``PMSR proposed 
rule''). All comments received during the NOR and the proposed 
rulemaking comment periods were considered in this final rule. Comments 
received on the proposed rule are addressed in this final rule in the 
Comments and Responses section.
    The following types of training 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 LOA: air 
warfare (air-to-air, surface-to-air), electronic warfare (directed 
energy--lasers and high-powered microwave systems), and surface warfare 
(surface-to-surface, air-to-surface, and subsurface-to surface). The 
activities will not include any underwater detonations, sonar, pile 
driving/removal, or use of air guns.
    The Navy's mission is to organize, train, equip, and maintain 
combat-ready naval forces capable of winning wars, deterring 
aggression, and maintaining freedom of the seas. This mission is 
mandated by Federal law (10 U.S.C. 8062), which requires the readiness 
of the naval forces of the United States. The Navy executes this 
responsibility by training and testing at sea, often in designated 
operating areas (OPAREA) and testing and training ranges. The Navy must 
be able to access and utilize these areas and associated sea space and 
air space in order to develop and maintain skills for conducting naval 
operations. The Navy's testing activities ensure naval forces are 
equipped with well-maintained systems that take advantage of the latest 
technological advances. The Navy's research and acquisition community 
conducts military readiness activities that involve testing. The Navy 
tests ships, aircraft, weapons, combat systems, sensors, and related 
equipment, and conducts scientific research activities to achieve and 
maintain military readiness.
    The Navy has been conducting testing and training activities in the 
PMSR Study Area since the PMSR was established in 1946. The tempo and 
types of training and testing activities fluctuate because of the 
introduction of new technologies, the evolving nature of international 
events, advances in warfighting doctrine and procedures, and changes in 
force structure (e.g., organization of ships, submarines, aircraft, 
weapons, and personnel). Such developments influence the frequency, 
duration, intensity, and location of required training and testing 
activities. The activities include current activities, previously 
analyzed in the 2002 PMSR Environment Impact Statement/Overseas 
Environmental Impact Statement (EIS/OEIS), and increases in the testing 
and training activities as described in the 2022 PMSR Final EIS/OEIS 
(FEIS/OEIS). NMFS promulgated MMPA incidental take regulations relating 
to missile launches from SNI from June 3, 2014, through June 3, 2019 
(79 FR 32678; June 6, 2014). Since then, the Navy has been operating 
under incidental harassment authorizations (IHAs) (84 FR 28462, June 
19, 2019; 85 FR 38863, June 29, 2020; and 86 FR 32372, June 21, 2021) 
for those similar activities on SNI. For this rulemaking, the Navy is 
requesting authorization for marine mammal take incidental to 
activities on SNI similar to those they have conducted under these and 
previous authorizations, as well as the use of at-surface and near-
surface explosive detonations throughout the PMSR Study Area. The 
testing and training activities are deemed necessary to accomplish 
Naval Air System Command's mission of providing for the safe and secure 
collection of decision-quality data; and developing, operating, 
managing and sustaining the interoperability of the Major Range Test 
Facility Base at the PMSR into the foreseeable future.
    The Navy's rulemaking/LOA application 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 account for fluctuations in training 
and testing in order to meet evolving or emergent military readiness 
requirements. These regulations will cover training and testing 
activities over a 7-year period beginning June 2022.

Description of the Specified Activity

    A detailed description of the specified activity was provided in 
our Federal Register notice of proposed rulemaking (86 FR 37790; July 
16, 2021); please see that notice of proposed rulemaking or the Navy's 
application for more information. The Navy has determined that 
explosive stressors and missile launch activities are most likely to 
result in impacts on marine mammals that could rise to the level of

[[Page 40890]]

harassment, and NMFS concurs with this determination. Descriptions of 
these activities are provided in section 2 of the 2021 PMSR FEIS/OEIS 
(U.S. Department of the Navy, 2021) and in the Navy's rulemaking/LOA 
application (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities), and are summarized here.

Dates and Duration

    The specified activities can occur at any time during the 7-year 
period of validity of the regulations, with the exception of the 
activity types and time periods for which limitations have explicitly 
been identified (to the maximum extent practicable; see Mitigation 
Measures section). The amount of training and testing activities are 
described in the Detailed Description of the Specified Activity section 
(Table 1).

Geographical Region

    The PMSR Study Area is located adjacent to Los Angeles, Ventura, 
Santa Barbara, and San Luis Obispo Counties along the Pacific Coast of 
Southern California and includes a 36,000-square-mile sea range (see 
Figure 1 of the proposed rule). It is a designated Major Range Test 
Facility Base and is considered a national asset that exists primarily 
to provide test and evaluation information for Department of Defense 
(DoD) decision makers and to support the needs of weapon system 
development programs and DoD research needs. The two primary components 
of the PMSR Study Area are Special Use Airspace and the ocean Operating 
Areas. Additional detail can be found in Chapter 2 of the Navy's 
rulemaking/LOA application. The Navy plans to conduct launch activities 
on San Nicolas Island (SNI), California, for testing and training 
activities associated with operations within the PMSR Study Area.

Overview of Training and Testing Within the PMSR Study Area

    The Navy categorizes its at-sea activities into functional warfare 
areas called primary mission areas. Each warfare community may train in 
some or all of these primary mission areas. The Navy also categorizes 
most, but not all, of its testing activities under these primary 
mission areas. Activities addressed for the PMSR Study Area are 
categorized under three primary mission areas: Air warfare (air-to-air, 
surface-to-air); Electronic warfare (directed energy--lasers and high-
powered microwave systems); and Surface warfare (surface-to-surface, 
air-to-surface, and subsurface-to-surface). Within those three primary 
mission areas, there are more specific categories or activity scenarios 
that reflect testing and training activities. A description of the 
munitions, targets, systems, and other material used during training 
and testing activities within these primary mission areas is provided 
in Appendix A (Training and Testing Activities Descriptions) of the 
2022 PMSR FEIS/OEIS.
    The Navy also plans to continue a target and missile launch program 
from two launch sites on SNI for testing and training activities 
associated with operations within the PMSR Study Area. Missiles vary 
from tactical and developmental weapons to target missiles used to test 
defensive strategies and other weapons systems. Some launch events 
involve a single missile or target, while others involve the launch of 
multiple missiles or targets in quick succession. Missiles or targets 
launched from SNI fly generally west, southwest, and northwest through 
the PMSR Study Area. The primary launch locations are the Alpha Launch 
Complex, located 190 meters (m) above sea level on the west-central 
part of SNI and the Building 807 Launch Complex, which accommodates 
several fixed and mobile launchers, at the western end of SNI at 
approximately 11 m (12 yd) above sea level.

Description of Stressors

    The Navy uses a variety of 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 or shock waves from explosives into the 
environment. The following subsections describe explosives detonated at 
or near the surface of the water and launch noise associated with 
missiles launched from SNI for marine mammals and their habitat 
(including prey species) within the PMSR Study Area. Because of the 
complexity of analyzing sound propagation in the ocean environment, the 
Navy relied on acoustic models in its environmental analyses and 
rulemaking/LOA application that considered sound source characteristics 
and varying ocean conditions across the PMSR Study Area. Stressor/
resource interactions that were determined to have de minimis 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 on de minimis sources and 
finds them complete and supportable.
    Acoustic stressors include incidental sources of broadband sound 
produced as a byproduct of vessel movement and use of weapons or other 
deployed objects. Explosives also produce broadband sound but are 
characterized separately from other acoustic sources due to their 
unique hazardous characteristics. There are no sonar activities planned 
in the PMSR Study Area. Characteristics of explosives are described 
below.
    In order to better organize and facilitate the analysis of various 
explosives used for training and testing by the Navy, including sonar 
and other transducers and explosives, a series of source 
classifications, or source bins, was developed by the Navy. The source 
classification bins do not include the broadband sounds produced 
incidental to vessel or aircraft transits, weapons firing, and bow 
shocks.
    The use of source classification bins provides the following 
benefits:
    [ssquf] 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;
    [ssquf] Improves efficiency of source utilization data collection 
and reporting requirements anticipated under the MMPA authorizations;
    [ssquf] Ensures a conservative approach to all impact estimates, as 
all sources within a given class are modeled as the most impactful 
source (having the largest net explosive weight) within that bin;
    [ssquf] Allows analyses to be conducted in a more efficient manner, 
without any compromise of analytical results; and
    [ssquf] Provides a framework to support the reallocation of source 
usage (number of 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.
Explosives
    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 (PMSR Scenario Descriptions) of the 2022 PMSR FEIS/OEIS.
    To more completely analyze the results predicted by the Navy's 
acoustic effects model from detonations occurring in-air above the 
ocean surface, it is necessary to consider the transfer of energy 
across the air-water interface.

[[Page 40891]]

    Detonation of an explosive in air creates a supersonic high 
pressure shock wave that expands outward from the point of detonation 
(Kinney and Graham, 1985; Swisdak, 1975). The near-instantaneous rise 
from ambient pressure to an extremely high peak pressure is what makes 
the explosive shock wave potentially injurious to an animal 
experiencing the rapid pressure change (U.S. Department of the Navy, 
2017e). Farther from an explosive, the peak pressures decay and the 
explosive waves propagate as an impulsive, broadband sound. As the 
shock wave-front travels away from the point of detonation, it slows 
and begins to behave as an acoustic wave-front travelling at the speed 
of sound. Whereas a shock wave from a detonation in-air has an abrupt 
peak pressure, that same pressure disturbance when transmitted through 
the water surface results in an underwater pressure wave that begins 
and ends more gradually compared with the in-air shock wave, and 
diminishes with increasing depth and distance from the source (Bolghasi 
et al. 2017; Chapman and Godin, 2004; Cheng and Edwards, 2003; Moody, 
2006; Richardson et al. 1995; Sawyers, 1968; Sohn et al. 2000; Swisdak, 
1975; Waters and Glass, 1970; Woods et al. 2015). The propagation of 
the shock wave in air and then transitioning underwater, is very 
different from a detonation occurring deep underwater where there is 
little interaction with the surface. In the case of an underwater 
detonation occurring just below the surface, a portion of the energy 
from the detonation would be released into the air (referred to as 
surface blow off), and at greater depths a pulsating, air-filled 
cavitation bubble would form, collapse, and reform around the 
detonation point (Urick, 1983). The Navy's acoustic effects model for 
analyzing underwater impacts on marine species does not account for the 
loss of energy due to surface blow-off or cavitation at depth. Both of 
these phenomena would diminish the magnitude of the acoustic energy 
received by an animal under real-world conditions (U.S. Department of 
the Navy, 2018c).
    Propagation of explosive pressure waves in water is highly 
dependent on environmental characteristics such as bathymetry, bottom 
type, water depth, temperature, and salinity, which affect how the 
pressure waves are reflected, refracted, or scattered; the potential 
for reverberation; and interference due to multi-path propagation. In 
addition, absorption greatly affects the distance over which higher-
frequency components of explosive broadband noise can propagate. 
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 PMSR Study Area (Navy, 2019a).
    Missiles, rockets, bombs, and medium and large-caliber projectiles 
may be explosive or nonexplosive, depending on the objective of the 
testing or training activity in which they are used. The planned 
activities do not include explosive munitions used underwater. 
Missiles, bombs, and projectiles that detonate at or near (within 10 m 
(11 yd) of) the water's surface are considered for the potential impact 
they may have on marine mammals. All explosives used during testing and 
training activities within the PMSR Study Area will detonate at or near 
the surface or in-air. Several parameters influence the acoustic effect 
of an explosive: the weight of the explosive warhead, the type of 
explosive material, the boundaries and characteristics of the 
propagation medium(s); and the detonation depth underwater and the 
depth of the receiver (i.e., marine mammal). The net explosive weight 
(NEW), which is the explosive power of a charge expressed as the 
equivalent weight of trinitrotoluene (TNT), accounts for the first two 
parameters.

Land-Based Launch Noise on San Nicolas Island

    Noise from target and missile launches on SNI can also occur. These 
ongoing activities affecting pinnipeds hauled out in the vicinity of 
launch sites have been analyzed previously (NMFS 2014, 2019, 2020) and 
are summarized below as part of the Navy's rulemaking/LOA application. 
As part of previous authorizations, the Navy could conduct up to 40 
launch events annually from SNI, but the total may be less than 40 
depending on operational requirements. Launch timing will be determined 
by operational, meteorological, and logistical factors. Up to 10 of the 
40 launches may occur at night, but this is also dependent on 
operational requirements, and night-time launches are only conducted 
when required by test objectives.
Vessel Strike
    Vessel strikes have the potential to result in incidental take from 
serious injury and/or mortality. Vessel strikes are not specific to any 
particular training or testing activity, but rather are a limited, 
sporadic, and incidental result of Navy vessel movement within a study 
area.
    The number of Navy vessels in the PMSR Study Area at any given time 
varies and is dependent on scheduled testing and training requirements. 
Navy vessels transit at speeds that are optimal for fuel conservation 
or to meet training and testing requirements. Additional detail on 
vessel strike was provided in our Federal Register notice of proposed 
rulemaking (86 FR 37790; July 16, 2021); please see that notice of 
proposed rulemaking or the Navy's application for more information. 
Information on Navy vessel movement in the PMSR Study Area is provided 
in the Vessel Movement section of this rule.

Detailed Description of the Specified Activities

Planned Training and Testing Activities

    Training and testing activities will be conducted at sea, in 
designated airspace, and on SNI, within the PMSR Study Area.
    The training and testing activities are deemed necessary to 
accomplish Naval Air Systems Command's mission of providing for the 
safe and secure collection of decision-quality data; and developing, 
operating, managing and sustaining the interoperability of the Major 
Range Test Facility Base at the PMSR into the foreseeable future. 
Collectively, the training and testing activities support current and 
projected military readiness requirements into the foreseeable future, 
as shown in Table 1.

[[Page 40892]]



 Table 1--Maximum Number of Annual Planned Activities in the PMSR Study
                                  Area
                       [Inclusive of SNI launches]
------------------------------------------------------------------------
                                                              Planned
            Activity              Activity sub category     activities
------------------------------------------------------------------------
Aerial Targets (# of targets)..  .......................             176
Surface Targets (# of targets).  .......................             522
Ordnance (# of ordnance).......  Bombs..................              30
                                 Gun Ammunition.........         281,230
                                 Missiles...............             584
                                 Rockets................              40
------------------------------------------------------------------------

    Most of the factors influencing frequency and types of activities 
are fluid in nature (i.e., continually evolving and changing), and the 
annual activity level in the PMSR Study Area will continue to 
fluctuate. The number of events may not be the same year to year, but 
the maximum number of events were predicted annually. Total annual 
events will not exceed what is planned in Table 1 above. Training and 
testing duration and frequency varies depending on Fleet requirements, 
and funding and does not occur on a predictable annual cycle.
    Fleet training activities occur over scheduled continuous and 
uninterrupted blocks of time, focusing on the development of core 
capabilities/skills. Training events in the PMSR Study Area are 
conducted to ensure Navy forces can sustain their training cycle 
requirements. Primarily, changes occur with increases or decreases in 
annual operational tempo of activities, in addition to changes in the 
types of aircraft, vessels, targets, ordnance, and tasks that are 
actions or processes performed as part of Navy operations.
    Future testing depends on scientific and technological developments 
that are not easy to predict, and experimental designs may evolve with 
emerging science and technology. Even with these challenges, the Navy 
makes every effort to forecast all future testing requirements. As a 
result, testing requirements are driven by the need to support Fleet 
readiness based on emerging national security interests, and 
alternatives must have sufficient annual capacity to conduct the 
research, development, and testing of new systems and technologies, 
with upgrades, repairs, and maintenance of existing systems.
Fleet Training
    Fleet training within the PMSR Study Area includes the same types 
of warfare of the primary mission areas. Training conducted in 
conjunction with testing activities provide Fleet operators unique 
opportunities to train with ship and aircraft combat weapon systems and 
personnel in scripted warfare environments, including live-fire events. 
For example, Fleet training would occur while testing a weapon system, 
in which Sailors would experience (be trained in) the use of the system 
being tested. Combat ship crews train in conjunction with scheduled 
ship testing and qualification trials, to take advantage of the 
opportunity to provide concurrent training and familiarization for ship 
personnel in maintaining and operating installed equipment, identifying 
design problems, and determining deficiencies in support elements 
(e.g., documentation, logistics, test equipment, or training). Live and 
inert weapons, along with chaff, flares, jammers, and lasers may be 
used.
    Typically concurrent with testing, surface training available 
within the PMSR Study Area includes tracking events, missile-firing 
events, gun-firing events, high-speed anti-radiation missile events, 
and shipboard self-defense system training, (e.g., Phalanx (Close-in 
Weapons System), Rolling Airframe Missile, and Evolved Sea Sparrow 
Missile). These events are limited in scope and generally focus on one 
or two tasks. Missiles may be fired against subsonic, supersonic, and 
hypersonic targets. Certain training events designed for single ships 
are conducted to utilize unique targets only available for training in 
the PMSR Study Area.
    Aviation warfare training conducted in the PMSR Study Area, 
categorized as unit-level training, is designed for a small number of 
aircraft up to a squadron of aircraft. These training events occur 
within the PMSR Study Area, as it is the only West Coast Navy venue to 
provide powered air-to-air targets. They are limited in scope and 
generally focus on one or two tasks. These scenarios require planning 
and coordination to ensure safe and effective training.
Combat Systems Testing
    The System Command Program Executive Offices are tasked with 
conducting extensive combat systems tests and trials on each new 
platform prior to releasing the platform to the Fleet, to include ships 
that have been in an extended upgrade or overhaul status. The PMSR 
Study Area is the preferred site to conduct these tests, as it offers a 
venue for a thorough evaluation of combat and weapons system 
performance through the actual employment of weapon systems. The 
comprehensive tests are conducted by the responsible Test or Program 
Manager, with close cooperation from the Fleet Type Commanders (Surface 
Force, Air Force, or Submarine Force). Frequent tests conducted in the 
PMSR Study Area are Combat Systems Ship Qualification Trials (CSSQTs). 
This is a series of comprehensive tests and trials designed to show 
that the equipment and systems included in the CSSQT program meet 
combat system requirements. Live and inert weapons, along with chaff, 
flares, jammers, and lasers may be used. Naval Sea Systems Command has 
recently developed two new reporting programs to test and evaluate 
combat and weapons system performance on new classes of ships, 
resulting in an increased tempo in the PMSR Study Area.
Explosives At-Surface or Near the Surface
    Missiles, bombs, and projectiles that detonate at or near (within 
10 m (11 yd) of) the water's surface are considered for the potential 
that they could result in an acoustic impact to marine mammals that may 
be underwater and nearby. The maximum number of explosives and the 
appropriate events modeling bin for the planned activities are provided 
in Table 2. Table 2 describes the maximum number of explosives that 
could be used in any year under the planned training and testing 
activities. Under the planned activities, bin use could vary annually 
(but will not exceed the maximum), and the 7-year totals for the 
planned training and testing activities take into account that annual 
variability.

[[Page 40893]]



 Table 2--Explosives Detonating at or Near the Surface by Bins Annually and for a 7-Year Period for Training and
                                  Testing Activities Within the PMSR Study Area
                                           [Inclusive of SNI launches]
----------------------------------------------------------------------------------------------------------------
                                                                                                  Maximum number
                                                                                 Maximum number      of high
   Primary mission area activity                                                    of high      explosives used
             scenarios                 Explosive bin         Munition Type         explosive      over a 7-year
                                                                                 munitions used   period planned
                                                                                    annually         activity
----------------------------------------------------------------------------------------------------------------
Surface-Surface...................  E1                   Gunnery..............           22,110          154,770
                                    E3                   Gunnery..............            4,909           34,363
                                    E5                   Gunnery..............            1,666           11,662
Air-Surface.......................  E5                   Rockets..............               24              168
Air-Surface; Surface-Air..........  E6                   Missiles.............               72              504
Air-Surface.......................  E7                   Missiles, Bombs......               45              315
Air-Surface; Surface-Air..........  E8                   Missiles.............               45              315
Air-Surface; Surface-Surface......  E9                   Missiles, Bombs,                    58              406
                                                          Rockets.
Surface-Surface; Subsurface-        E10                  Missiles.............               13               91
 Surface.
----------------------------------------------------------------------------------------------------------------
Note: Bins E1-E5 are gunnery events that involve guns with high rates of firing ``clusters'' of munitions (e.g.,
  >80-200 rounds per minute for Bin E1, 500-650 rounds per minute for Bin E3, and 16-20 rounds per minutes for
  Bin E5), hence the high number of HE munitions used during these activities. The numbers above do not reflect
  the actual number of events, which can vary and typically last 1-3 hrs. The increase in tempo under the
  planned action is a result of an increase in Combat Systems Ship Qualification Trials as discussed in Section
  2.2.1 (Current and Proposed Activities) of the 2021 PMSR FSEIS/OEIS.

    Explosions that occur during air warfare will typically be at a 
sufficient altitude that a large portion of the sound refracts upward 
due to cooling temperatures with increased altitude. Based on an 
understanding of the explosive energy released by detonations in air, 
detonations occurring in air at altitudes greater than 10 m (11 yd) are 
not likely to result in acoustic impacts to marine mammals and thus are 
not carried forward in the analysis.
Missile Launch Activities on SNI
    A combination of missiles and targets are launched from SNI, 
including aerial targets, surface-to-surface missiles, and surface-to-
air missiles, with aerial targets representing the majority of the 
launches from SNI. For information on the sound levels these missiles 
produce please refer to Section 1.2 of the application. Under this 
rule, missiles launched from SNI will have sound source levels the same 
or lower than missiles described above or previously launched from the 
island.
    Table 3 shows the number of launches that have occurred at SNI 
since 2001 and the number of launch events that have occurred during 
the associated comprehensive reporting timeframes. There have not been 
more than 25 launch events conducted in any given year since 2001. 
However, as part of the planned activities, 40 launch events per year 
from SNI involving various missiles and aerial targets are requested 
for take authorization.

 Table 3--The Total Number of Launches That Have Occurred Since 2001 at
                                   SNI
------------------------------------------------------------------------
                                                               Number of
                         Time period                           launches
------------------------------------------------------------------------
August 2001 to March 2008...................................          77
June 2009 to June 2014......................................          36
June 2014 to June 2019......................................          27
------------------------------------------------------------------------

Vessel Movement

    The number and type of scheduled Navy vessels or Navy support 
vessels operating within the PMSR Study Area depends on the 
requirements for mission-essential activities, such as the test and 
evaluation of new weapon systems or qualification trials for upgraded 
existing ships. The types of Navy vessels or Navy support vessels 
operating within the PMSR are highly variable and range from small work 
boats used for nearshore work to major Navy combatants, up to and 
including aircraft carriers. Navy activities are conducted in large 
subdivisions of the total PMSR Study Area, and blocks of range times 
are allocated based on activity requirements. Most activities include 
either one or two vessels and may last from a few hours to 2 weeks. 
Vessel movement as part of the planned activities will be widely 
dispersed throughout the PMSR Study Area.
    The PMSR Study Area military vessel activity can be divided into 
two categories: project ships and support boats. Project ships are 
larger Navy combatant vessels, such as destroyers, cruisers, or any 
other commissioned Navy or foreign military ship directly involved in 
events. They may operate anywhere within the PMSR Study Area depending 
on activity needs, although most ship operations occur within 60 nmi 
(111 km) of SNI. Most project ships and scheduled training ships 
operating in the PMSR Study Area transit there from off-range (e.g., 
San Diego). Support boats are smaller vessels directly involved in test 
activities and operate from the Port Hueneme Harbor. While they may 
also operate throughout the PMSR Study Area, support boat operations 
occur mainly within the range areas receiving the most use. Smaller 
support boats have limited range and usually operate close to shore 
near Point Mugu and SNI. The activity level of ships or boats is 
characterized by a ship or boat event.
    The Navy tabulated annual at-sea vessel steaming days for training 
and testing activities projected for the PMSR Study Area. Approximately 
333 annual events of Navy at-sea vessel usage will occur over 2,085 
hours (approximately 87 at-sea days) in the PMSR Study Area (Table 4). 
In comparison to the Southern California portion (SOCAL) of the Hawaii-
Southern California Training and Testing (HSTT) Study Area, the 
estimated number of annual at-sea days in the PMSR Study Area is less 
than 3 percent of what occurs in SOCAL annually.

[[Page 40894]]



  Table 4--Annual At-Sea Vessel Steaming Days for Training and Testing Activities Projected for the PMSR Study
                                                      Area
----------------------------------------------------------------------------------------------------------------
                                                                                         Planned activity
                   Vessel                                 Ship type              -------------------------------
                                                                                      Events           Hours
----------------------------------------------------------------------------------------------------------------
CG.........................................  Guided Missile Cruiser.............              41             275
DDG-51.....................................  Guided Missile Destroyer...........              36             132
LHA........................................  Amphibious Assault Ship............              40             200
SDTS.......................................  Self-Defense Test Ship.............              50             190
WMSL-751/OPC...............................  Coast Guard Cutter.................               6              28
LCS Variant (LCS 1)........................  Littoral Combat Ship...............              40             360
LCS Variant (LCS 2)........................                                                   40             360
FF.........................................  Future Frigate.....................              40             360
DDG 1000 Zumwalt Class.....................  Guided Missile Destroyer...........               3              30
LHD........................................  Amphibious Assault Ship............               4              13
LPD........................................  Amphibious Transport Deck..........               4              13
LSD........................................  Dock Landing Ship..................               4              13
CVN........................................  Nuclear-Powered Aircraft Carrier...               6              16
SSBN.......................................  Ballistic Missile Submarine........              19              95
                                                                                 -------------------------------
    Total..................................  ...................................             333           2,085
----------------------------------------------------------------------------------------------------------------

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 military missions and combat operations and to their optimum 
capabilities. Because standard operating procedures are essential to 
safety and mission success, the Navy considers them to be part of the 
planned Specified Activities, and has included them in the 
environmental analysis (see Chapter 3 (Affected Environment and 
Environmental Consequences) of the 2021 PMSR FSEIS/OEIS for further 
details). Additional details on standard operating procedures were 
provided in our Federal Register notice of proposed rulemaking (86 FR 
37790; July 16, 2021); please see that notice of proposed rulemaking or 
the Navy's application for more information.

Comments and Responses

    We published the proposed rule in the Federal Register on June 16, 
2021 (86 FR 37790), with a 45-day comment period. With that proposed 
rule, we requested public input on our analyses, our preliminary 
findings, and the proposed regulations, and requested that interested 
persons submit relevant information and comments. During the 45-day 
comment period, we received four comment submissions: one from the 
Marine Mammal Commission (Commission); one from a non-governmental 
organization, the Natural Resources Defense Council (NRDC); and two 
from private citizens. The private citizens' comments, one of which 
expressed general disapproval of the action, and the other of which was 
unrelated to this action, have been reviewed, but did not include 
information pertinent to NMFS' decision in this final rule, and 
therefore, are not addressed further.
    NMFS has reviewed and considered all public comments received on 
the proposed rule and issuance of the LOA. All substantive comments and 
our responses are described below. We organize our comment responses by 
major categories.

Density Estimates

Pinniped Density Estimates
    Comment 1: The Commission commented that the following pinniped 
information was omitted in Navy documents for the PMSR Study Area, but 
has been previously included in other Navy environmental compliance 
documents as well as versions of the Navy Marine Species Density 
Database (NMSDD).
    <bullet> Abundance(s), percentages of occurrence in the area and 
whether those percentages were dependent on age and sex, and 
percentages within the three stipulated geographic distances from shore 
for California sea lions. Only fall and winter densities were parsed by 
the three geographic distances, spring and summer were parsed by two 
distances (e.g., see Figures 7-40 to 7-43 in Navy 2020 technical 
report, ``Quantifying Acoustic Impacts on Marine Species: Methods and 
Analytical Approach for Activities at the Point Mugu Sea Range'') 
(hereinafter referred as the ``PMSR Density Technical Report'').
    <bullet> Abundance(s), percentages of the population at sea, and 
percentages within the two depth regimes for Guadalupe fur seals.
    <bullet> Abundance and whether haulout correction factors or 
percentages of the population at-sea were incorporated for harbor 
seals, as was done for other locations (e.g., Navy 2019 technical 
report, ``U.S. Navy Marine Species Density Database Phase III for the 
Northwest Training and Testing Study Area'').
    Response: The Navy's application indicated in Section 6.5.2.1.4 
(Marine Mammal Density) that to characterize the marine species density 
for large areas such as the PMSR Study Area, the Navy compiled data 
from several sources and the PMSR densities were in most cases 
consistent with the densities in the Hawaii-Southern California 
Training and Testing (HSTT) or Northwest Training and Testing (NWTT) 
Study Areas. The Navy developed a protocol to select the best available 
data sources for each species, distribution area, and time of year 
(season). The resulting Geographic Information System database, the 
NMSDD, includes seasonal density values for every marine mammal species 
present within the PMSR Study Area (U.S. Department of the Navy, 2017d, 
2019a). The Navy applied these densities to the PMSR Study Area and 
relied on detailed explanations presented previously in the technical 
reports, ``Navy Marine Species Density Database Phase III for the 
Hawaii-Southern California Training and Testing Study Area (2017)'' 
(hereinafter ``HSTT Density Technical Report'') and the ``U.S. Navy 
Marine Species Density Database Phase III for the Northwest Training 
and Testing Study Area'' (hereinafter ``NWTT Density Technical 
Report'').

[[Page 40895]]

    The Navy has provided additional details on the density derivations 
in this final rule in this Comments and Responses section to address 
the Commission's comments. It is important to note that the Navy is 
continuously updating species densities in the NMSDD based on new 
survey data, updated species distribution models, telemetry data, and, 
in the case of pinnipeds, new information on post breeding and molting 
distributions and haulout behavior. The availability of updated density 
estimates for use in the NMSDD may not coincide with the Navy's 
schedule for acoustic impacts modeling, which runs simultaneously for 
numerous projects, and can lead to differences in densities used based 
on timing of different projects.
    California sea lions--The densities used for the PMSR Study Area 
were taken from the latest density derivations presented in the NWTT 
Density Technical Report. The California sea lion densities in the NWTT 
Study Area were based on in-water abundance estimates by Lowry and 
Forney (2005) off the California coast. The Navy only needs in-water 
densities to complete acoustic effects modeling, so these data were of 
particular interest and relevancy. Because the abundance estimates were 
for sea lions occurring in the water (as opposed to at haulouts), the 
Navy did not need to derive an in-water abundance for the density 
calculation, and the other factors, such as age- and sex- specific 
haulout correction factors that are typically applied, were not needed. 
The Navy used the in-water abundance provided by Lowry and Forney 
(2005) to derive an in-water density. Figures 7-40 through 7-43 in the 
Navy 2020 PMSR Density Technical Report depicted densities for 
California sea lions in the PMSR Study Area used three strata defined 
by distance from shore (0 to 40 km (0 to 22 nmi), 40 to 70 km (22 to 38 
nmi), and 0 to 450 km (0 to 243 nmi)). The third stratum was included 
as an attempt to account for a wider distribution of sea lions 
documented during El Ni[ntilde]o conditions. For the two figures 
appearing to have only 2 strata (Figures 7-40 and 7-43), the density 
ranges shown in the legends span two of the three uniform density 
estimates, making it appear as if there are only two strata. In Figure 
7-40 of the Navy's 2020 PMSR Density Technical Report, the two strata, 
40 to 70 km (22 to 38 nmi) and 0 to 450 km (0 to 243 nmi), had 
densities that fall within the range 0.0037-0.0065 sea lions/km\2\ and 
therefore used one color. A similar overlap in densities occurs in 
Figure 7-43, except that in this figure the first two strata (0 to 40 
km (0 to 22 nmi) and 40 to 70 km (22 to 38 nmi)) represent densities in 
the same density range shown in the legend and therefore are the same 
color on the map.
    The following description of the density derivation for California 
sea lions is taken from the NWTT Study Area Technical Report (Navy 
2020).

    Seasonal at-sea abundance is estimated from strip transect 
survey data collected offshore along the California coastline (Lowry 
and Forney, 2005). The survey area was divided into 7 strata, 
labeled A through G. Abundance estimates from the two northernmost 
strata (A and B, note this refers to a different area/set of strata 
than are addressed in the paragraph above) were used to estimate the 
abundance of California sea lions occurring in the [NWTT] Study 
Area. While the northernmost stratum (A) only partially overlaps 
with the [NWTT] Study Area, this approach conservatively assumes 
that all sea lions from the two strata would continue north into the 
Study Area . . . The abundance estimates used in this report, based 
on Lowry and Forney (2005), were: 2,822 sea lions in fall, 3,977 in 
spring, and 3,288 in winter. An estimate of 3,000 male sea lions is 
used for the month of August. Projected 2017 seasonal abundance 
estimates were derived by applying an annual growth rate of 5.4 
percent (Carretta et al. 2017) between 1999 and 2017 to the 
abundance estimates from Lowry and Forney (2005). No correction for 
hauled-out sea lions was needed because counts were of sea lions in 
the water (Lowry and Forney, 2005).
    The strata used to calculate densities were based on 
distribution data from Wright et al. (2010) and Lowry and Forney 
(2005) indicating that approximately 90 percent of California sea 
lions occurred within 40 km (22 nmi) of shore and 100 percent of sea 
lions were within 70 km (38 nmi) of shore. The offshore distribution 
is consistent with survey data reported by Oleson et al. (2009) and 
migration patterns observed by Gearin et al. (2017), which showed 
that males remained within the 1,000 m (1,094 yd) isobath as they 
migrated between Puget Sound and the Channel Islands. Sea lions 
tagged in Puget Sound and tracked as they traveled along the U.S. 
West Coast were within a mean distance of 14 nmi (26 km) from shore 
(DeLong et al. 2017). A third stratum was added that extends from 
shore to 450 km (243 nmi) offshore to account for anomalous 
conditions, such as changes in sea surface temperature and upwelling 
associated with El Ni[ntilde]o, during which California sea lions 
have been encountered farther from shore, presumable seeking prey 
(DeLong and Jeffries, 2017; Weise et al. 2010). Sample density 
calculations are provided below.

Fall Density = (7,273 sea lions x 0.90)/11,744 km\2\ = 0.5573 sea 
lions/km\2\ (0 to 40 km Stratum)
Spring Density = (10,249 sea lions x 0.10)/791 km\2\ = 1.2951 sea 
lions/km\2\ (40 to 70 km Stratum)
Winter Density = (8,473 sea lions x 1.00)/143,518 km\2\ = 0.0590 sea 
lions/km\2\ (0 to 450 km Stratum)
August Density = 3,000 sea lions/93,747 km\2\ = 0.0288 sea lions/
km\2\ (0 to 40 km Stratum)

    Densities in the NWTT Density Technical Report were the most 
recently calculated densities for California sea lion and were used 
instead of densities calculated for the HSTT Density Technical Report 
(U.S. Department of the Navy, 2017).
    Guadalupe fur seals--A more detailed description of the density 
derivation for Guadalupe fur seal was missing from the PMSR Density 
Technical Report, but is provided here. Densities for Guadalupe fur 
seals were derived for both the HSTT Study Area and later for the NWTT 
Study Area. However, following completion of acoustic impact modeling 
for the HSTT EIS/OEIS, new data became available on the abundance and 
distribution of Guadalupe fur seals in southern California. These data 
showed that the fur seals were distributed farther offshore than 
presented in the HSTT Density Technical Report. Densities for Guadalupe 
fur seal off California were revised for use in subsequent projects, 
including the 2022 PMSR EIS/OEIS, as noted in a footnote in the HSTT 
Density Technical Report. A description of the derivation of the 
updated densities for Guadalupe fur seal was prepared but was not 
appended to the HSTT Density Technical Report and was not otherwise 
available to the public. The same data prompting the revised densities 
for the HSTT Study Area were used in deriving densities for Guadalupe 
fur seals in the NWTT Study Area, and a detailed explanation of how the 
data were used in the NWTT Study Area is described in the NWTT Density 
Technical Report. However, it would not be possible to derive the 
revised HSTT densities, later applied to the PMSR Study Area, from 
information in the NWTT Density Technical Report. Therefore, a 
description of the revised HSTT density derivation for Guadalupe fur 
seal is provided below. These densities were used for the PMSR Study 
Area acoustic analysis and are shown in the PMSR Density Technical 
Report.
    To determine the density of Guadalupe fur seals in the Southern 
California area, the entire population (33,485 fur seals) was divided 
by the area of the NMFS Southern California Stratum seaward of the 
3,000 m (3,281 yd) isobath. The Southern California portion of the HSTT 
Study Area extends to just north of Isla Guadalupe, so a majority of 
the range of the Guadalupe fur seal overlaps with the offshore

[[Page 40896]]

portion of the SOCAL Range Complex. Guadalupe fur seals are expected to 
occur year-round in the Southern California portion of the HSTT Study 
Area, with abundance in the region varying seasonally and by life stage 
(Norris, 2017). In summer (June-August), adult males are expected to be 
hauled-out on Guadalupe Island south of the HSTT Study Area. Adult 
females would also be expected to be on or in the vicinity of Guadalupe 
Island in summer and south of the Study Area. Satellite-tagged 
juveniles and weaned pups (<2 years old) have been shown to migrate 
north after the breeding season through the Southern California portion 
of the HSTT Study Area and to areas north of the Study Area and remain 
there from June through November (i.e., summer and fall) (Norris 2017).
    Seasonal densities were calculated by estimating the percentage of 
the population occurring at sea in HSTT the Study Area for each season. 
For all life stages combined, approximately 73 percent of the 
population is expected to be in the HSTT Study Area in winter and 
spring (non-breeding season) and approximately 33 percent of the 
population is expected to be in the HSTT Study Area in summer and fall, 
encompassing the breeding season (Norris 2017). Spatially, two thirds 
of the Guadalupe fur seal population (66.7 percent) would be expected 
in the Baja stratum and one third (33.3 percent) would be expected in 
the SOCAL stratum during the year. Furthermore, while at sea, healthy 
Guadalupe fur seals are not expected to haul out. Sick or stranded fur 
seals may be sighted along the coast or on offshore islands during the 
non-breeding season, however, these cases are not representative of the 
population at sea. Therefore, no adjustment to account for hauled-out 
fur seals is needed.
    Densities are calculated by estimating the number of fur seals in 
the two strata during winter/spring and summer/fall. The spatial area 
for the SOCAL stratum is approximately 66,058 km\2\ (19,259 nmi\2\) and 
the spatial area for the Baja stratum is approximately 152,889 km\2\ 
(44,575 nmi\2\).

SOCAL Offshore (>3,000 m (3,281 yd) isobath)
    Winter/Spring: (33,485 x 0.73) x 0.333/66,058 km\2\ = 0.1232 fur 
seals/km\2\
    Summer/Fall: (33,485 x 0.33) x 0.333/66,058 km\2\ = 0.0557 fur 
seals/km\2\

    Extrapolating these densities into the PMSR likely overestimated 
occurrence in the PMSR Study Area, because Guadalupe fur seals are more 
prevalent farther south off southern California and Baja California, 
Mexico where breeding colonies are located.
    Harbor seals--A density estimate for PMSR Study Area was 
extrapolated from the NWTT Study Area. As described below, an in-water 
abundance was calculated using published haulout correction factors and 
used to estimate an annual density. The following description from the 
NWTT Density Technical Report is provided.

    An estimate of 30,968 harbor seals make up the California stock 
(Carretta et al. 2017). As with the Washington and Oregon Coast 
stock, growth is assumed to be flat (Carretta et al. 2017; DeLong 
and Jeffries, 2017). Based on surveys in 2002 and 2004, Lowry et al. 
(2008) estimated that 37.8 percent of harbor seals in the California 
stock are in northern California, defined as the area from Point 
Reyes to the California/Oregon border (i.e., the coastline from 
38.00 N to 42.000[deg] N). Harbor seals in northern California are 
expected to be in the water 36 percent of the time (Harvey and 
Goley, 2011), and a single stratum extending 30 km (16 nmi) from 
shore between 38.00 N to 42.000[deg] N along the California 
coastline was used to define the spatial area.

Density = (30,968 x 0.378) x 0.36/15,496 km\2\ = 0.2719 seals/km\2\

    As shown in the PMSR Density Technical Report (Navy 2020), the Navy 
used an annual harbor seal density of 0.2719 areas within 50 miles 
around all known haulout sites within the PMSR Study Area. Zero density 
was used beyond 50 miles from shore.
    Comment 2: The Commission also comments that the area metrics 
necessary to derive the density estimates were omitted by the Navy's 
2020 PMSR Density Technical Report. Since the densities were exactly 
the same for elephant seals and northern fur seals in that report as 
had been used previously for the HSTT Study Area in the HSTT Density 
Technical Report (Navy 2017), the same presumed occurrence areas had to 
have been used. For northern fur seals, the area used was based on the 
NMFS SOCAL stratum for its vessel-based surveys (i.e., Barlow 2010); 
while for elephant seals, the area was based on the Navy SOCAL modeling 
area (Department of the Navy 2017c). None of the underlying abundance 
data that were provided in the reports above are related to either of 
those areas. As such, it is unclear why the Navy felt it necessary to 
use two different areas, when neither of them relates to the abundance 
data. Both areas are similar in extent, with the Navy SOCAL modeling 
area being approximately 13 percent larger than the NMFS SOCAL stratum.
    Response: As noted in the comment, the densities for northern fur 
seal and northern elephant seal used for the PMSR acoustic analysis 
were extrapolated from the HSTT Study Area, and the derivations of 
those densities were described in detail in the HSTT Density Technical 
Report. The northern fur seal density calculation used the NMFS SOCAL 
Bight stratum (318,541 km\2\; 92,872 nmi\2\) to represent fur seal 
distribution and the northern elephant seal density calculation used 
the Navy SOCAL modeling area stratum (361,872 km\2\) to represent 
northern elephant seal distribution. While there is not a substantial 
difference between the sizes of the two areas (as pointed out in the 
comment), and both areas were used in the pinniped density estimates 
for these and other species, the smaller NMFS SOCAL Bight Stratum was 
used for the northern fur seal calculation, because most northern fur 
seals were expected to move north of San Miguel Island after the 
breeding season and would not be distributed over as wide an area as 
elephant seals off California. Northern elephant seals in the 
California stock also migrate north of the Channel Islands after 
breeding and molting periods, and elephant seals from the Mexico 
population are known to migrate into SOCAL from the south. Elephant 
seals would be distributed over a larger area off California and 
farther offshore, so the larger of the two strata, the Navy SOCAL 
Modeling Stratum, was used for elephant seals.
    At the time that HSTT Phase III densities were calculated, the Navy 
sought to estimate densities in pre-defined strata to focus where 
densities were needed for modeling acoustic impacts. The practice was 
relevant to creating models of cetacean densities, which were based on 
repeated surveys of the California Current Ecosystem (CCE) and other 
well defined areas; however, published descriptions of pinniped 
abundances and distributions were based mainly on seals and sea lions 
at haulout sites with some complimentary telemetry data, and less often 
on line transect surveys at sea. Beginning with the NWTT EIS/OEIS, the 
Navy moved away from using pre-defined strata for pinnipeds and relied 
more on published data describing distributions based on depth, 
distance from shore, and other habitat preferences as well as telemetry 
data to define pinniped strata.
    Comment 3: The Commission comments that for the other three 
pinniped species (harbor seal, California sea lion, and Guadalupe fur 
seal), some of the densities provided in the Navy 2020 PMSR Density 
Technical Report differ by orders of magnitude from those provided in 
the Navy's technical report, HSTT Density Technical Report (Navy

[[Page 40897]]

2017), even though some of the same data appear to have been used and 
are based on some of the same geographic areas. The Commission said 
that the Navy stated that, although the density estimates may not be 
accurate given interannual variability and fluctuations in population 
size or may not exactly reflect spatial distributions, they represent 
the best available science due to the paucity of other data and are 
considered to be the most conservative in the technical report Navy 
2020 PMSR Density Technical Report. The Commission further claims it is 
unclear how such a statement can be evaluated when the underlying data 
were not provided for public review and comment. As such, the 
Commission recommends that, prior to issuing any final rule, NMFS 
provide information regarding the data and assumptions used to inform 
the pinniped density estimates and allow for additional public review 
and comment on that information.
    Response: NMFS has provided additional detail regarding how the 
densities for PMSR were calculated and the underlying assumptions in 
the response to Comment 1. The Navy maintains the Navy Marine Species 
Density Database (NMSDD), which uses standard protocols to support 
spatially explicit density estimates for all of the Navy training and 
testing rules. The Navy develops NMSDD reports for all major training 
regions (e.g., HSTT and NWTT) and the reports detail the standard 
methods used across all areas and specify the results for the given 
region/Study Area. The HSTT and NWTT NMSDD reports have been provided 
for public review and comment through the National Environmental Policy 
Act (NEPA) (draft EIS) and MMPA (proposed rule) compliance 
documentation associated with the Navy's NWTT and HSTT actions over the 
last few years. The Point Mugu proposed rule included an overview of 
the methods used for estimating density in the PMSR, and referenced the 
more detailed NMSDD report for HSTT, which NMFS considered sufficient 
to support the necessary determinations. As further described below, 
while the proposed rule referenced the HSTT NMSDD report in supporting 
the PMSR density estimates, in some cases the more up-to-date estimates 
from the NWTT NMSDD report were actually used to support the NMSDD 
estimate for PMSR. While this inadvertently omitted reference to the 
NWTT report created some confusion, the density estimates presented in 
the proposed rule were correct, the general methodology was available 
for public review, and our findings remain the same. Below we include 
additional information to address the Commission's comment regarding 
the densities differing by order of magnitude.
    New densities were derived for the NWTT Study Area using an 
improved approach, and those densities were used for PMSR Study Area 
instead of the older HSTT densities that the Commission is making 
comparisons to. As the Commission points out, the new densities were in 
some cases orders of magnitude greater than the older HSTT densities. 
The increases were due to several factors. The main factors were (1) 
the calculation of more refined in-water abundance estimates using 
species-specific and seasonal haulout factors for example, and (2) 
smaller and more representative areas of occurrence over which the in-
water abundance estimates were distributed to calculate the densities. 
Generally, smaller distribution areas translate to higher densities 
when the abundance estimates are about the same.
    For example, for harbor seals, the highest HSTT density was 0.0183. 
The highest density for the NWTT Study Area, which was 0.2719, was the 
density used for the PMSR Study Area. The HSTT density was based on an 
abundance of 6,813 seals in southern California, approximately 22 
percent of the population. The NWTT density assumed 37.8 percent of 
seals occurred in northern California for an abundance of 11,706 seals. 
So, one factor contributing to an increase in density is an increase in 
abundance. For the HSTT Study Area, we used the Southern California 
stratum to be consistent with strata used for cetacean densities, but, 
in retrospect, this was an overestimation (and oversimplification) of 
where harbor seals would most likely occur. For the NWTT Study Area, we 
used a distribution area along the coastline extending from shore to 30 
km (16 nmi) offshore, which is considerably smaller than the Southern 
California stratum and a better representation of the typical 
distribution of harbor seals. Since harbor seals are more common 
farther north, off central and northern CA where approximately 88 
percent of the population occurs, it was more appropriate to use the 
NWTT density instead of the HSTT density for PMSR Study Area.
    For California sea lions, the highest HSTT density was 0.0596 
(excluding San Diego Bay and Silver Strand). The highest density in 
NWTT was 1.49. Similar to the approach used in HSTT for harbor seals, 
the in-water abundance from Lowry and Forney (2005) was distributed 
over the expansive SOCAL Modeling Area to ensure a density was provided 
in all areas where modeling was needed. In contrast, for the NWTT Study 
Area, the distribution area was based more on California sea lion's 
preferred habitat, which was divided into three strata based on 
distance from shore, resulting in a more realistic range that better 
represented where the sea lions predominantly occur. This resulted in a 
smaller distribution area and a larger density. The details of these 
calculations are provided in the NWTT Density Technical Report.
    For Guadalupe fur seal, the source data on abundance and 
distribution changed based on new research available after the HSTT 
densities were finalized, as explained in Comment 1. A comparison with 
the older HSTT densities published in the HSTT Density Technical Report 
is not relevant.
    Comment 4: The Commission commented that it had previously provided 
extensive comments regarding the manner in and the data upon which the 
Navy had derived its pinniped density estimates, including for the 
densities that were used by the Navy for the HSTT Study Area, as 
provided in Navy (2017c; see the Commission's 13 July 2018 letter). The 
Commission comments that both NMFS and the Navy failed to recognize 
that the original abundance estimate that they had used of 18,430 
elephant seals from Lowry (2002) was based on elephant seal counts from 
only Santa Barbara Island (SBI), San Clemente Island (SCI), and SNI 
(Navy 2017c). Navy (2017c) specified that large rookeries also occur on 
San Miguel Island (SMI) and Santa Rosa Island (SRI), but both islands 
are located at least 55 km (30 nmi) north of the HSTT Study Area and 
thus were not included. That may be appropriate for the HSTT Study 
Area, but SMI and SRI are both well within the PMSR Study Area. A total 
of 37,294 elephant seals were sighted at SBI, SNI, SMI, and SRI in 2001 
(Lowry 2002), which is greater than the 36,646 seals that NMFS 
estimated would occur in the PMSR Study Area presently. If the relevant 
abundance estimates had been forward-projected using the applicable 
3.8-percent growth rate into 2021, the California population estimate 
would be 81,618 elephant seals. Added to the Mexico population 
estimate, 112,618 seals would be expected to occur in the PMSR Study 
Area rather than the 36,646 seals used to inform the density estimate 
for the proposed rule. An underestimation by a factor of more than 
three is not considered

[[Page 40898]]

insignificant. Moreover, NMFS cannot deem one growth rate best 
available science for incidental taking purposes and another best 
available science for its Stock Assessment Reports (SARs), particularly 
since NMFS used the same overall stock abundance for both purposes 
(Tables 5, 31, and 32 in the proposed rule). At a minimum and until 
additional data are provided for the other pinniped species and 
additional assumptions are provided for elephant seals, the Commission 
recommends that NMFS (1) re-estimate the density for elephant seals 
based on (a) the 2001 abundance of 37,294 elephant seals from SBI, SNI, 
SMI, and SRI (Lowry 2002) forward-projected to 2021 using the 3.8-
percent growth rate from Lowry et al. (2014) for the California 
population, and (b) at least 31,000 seals from Lowry et al. (2014) as 
representative of the Mexico population; and (2) then re-estimate the 
numbers of takes accordingly in the final rule.
    Response: This Commission is correct that San Miguel Island (SMI) 
and Santa Rosa Island (SRI) are in PMSR Study Area and inhabited by 
elephant seals during molting and breeding periods. However, elephant 
seals travel north and west of the PMSR Study Area (post breeding/
molting) as far as the Gulf of Alaska and the central North Pacific 
(e.g., Robinson et al. 2012), and the density estimated for the PMSR 
Study Area assumed a large percentage of elephant seals remained in the 
PMSR Study Area year round. This conservative assumption overestimates 
the abundance in the PMSR year round and, while not ideal, essentially 
offsets the lack of abundance data from SMI and SRI that were left out 
of the density calculations for the PMSR Study Area. Furthermore, when 
breeding and molting in California, elephant seals are mainly hauled 
out or near haulout sites, with the exception of short foraging bouts 
by lactating females. Therefore, time in the water, particularly from 
shore, while in the PMSR Study Area is less than assumed in the density 
estimate, further reducing the probability of exposures.
    A growth rate of 1.7 percent was applied to the abundance estimate 
for elephant seals in southern California, as described in the HSTT 
Density Technical Report. The growth rate was not used to predict 
future, unpredictable changes in species' abundance (i.e., ``forward 
project''), but rather to estimate changes in abundance from the most 
recent survey date to the present time. That is, the Navy only brought 
the abundance from the date of the latest survey up to the time of the 
analysis by applying a published annual growth rate to some species' 
abundances. If an abundance was based on a 10 year old survey, then the 
Navy used the growth rate to calculate an estimated abundance for ``the 
present time.'' The reasoning for this approach is abundance for some 
species has been impacted by UMEs or El Nino events or higher 
recruitment years since the most recent surveys were conducted, and in 
some cases it may be reasonable to assume a growth rate accounts for 
those factors and can be used to estimate a present day abundance. The 
analysis is not attempting to forecast abundances or predict future 
changes due to UMEs or climate change, etc., rather it is attempting to 
update an older abundance where appropriate, to better represent 
species' density at the time of analysis. The MMC commented that 
different growth rates were used in the calculation of elephant seal 
abundance. The discussion in the HSTT Density Technical Report (Section 
11.1.3) reviews two approaches to estimating the abundance: (1) using 
island-specific abundances from the three islands (SBI, SNI, and SCI) 
from Lowry (2002) and a 1.7 percent growth rate, and (2) using the 2010 
pup count and a multiplier from Lowry et al. (2014) and a 1.1 percent 
growth rate. The 1.1 percent growth rate is the average growth rate of 
populations on the three islands (SBI, SNI, and SCI) (Lowry et al. 
2014). The growth rate of 3.8 percent reported in the 2014 SAR 
(Carretta et al. 2015) is for the entire population. Given their 
migratory behavior, which differs by sex and lifestage, it is not 
realistic to assume that 112,618 elephant seals would be in the PMSR 
Study Area at any time. While not relevant to the PMSR density, the 
Navy notes that in the most recent version of the SAR (Carretta et al. 
2021) NMFS has revised the annual growth rate for the population down 
to 3.1 percent, further illustrating the variability and level of 
imprecision in estimating abundances and densities, particularly when 
attempting to project changes. The MMC recommended estimating the 
Mexico population of elephant seals at 31,000 seals. The Navy also 
considers this to be an overestimation based on studies by Elorriaga-
Verplancken et al. (2015) and Garcia-Aguilar et al. (2018) indicating 
the population is in decline. Garcia-Aguilar et al. (2018) cite a 2009 
abundance of 22,000 seals. Applying the -3.2 percent annual growth rate 
from Elorriaga-Verplancken et al. (2015) to the 2009 population 
estimate reduces that population to approximately 18,000 seals in 2015 
(time of analysis). Most of the seals would only transit through the 
HSTT Study Area, limiting their time in the HSTT Study Area and 
potential for exposure to acoustic stressors, as explained in the HSTT 
Density Technical Report. Based on these factors, an abundance estimate 
of 15,083 seals occurring in the HSTT Study Area is a reasonable and 
conservative estimate.
    NMFS has reviewed the additional information provided by the Navy, 
and agrees that the information has been applied appropriately to 
develop density and population numbers.
    Comment 5: The Commission states that pinniped densities must be 
refined for the Navy's Phase IV compliance documents. The Commission 
recommends that NMFS consult with the Navy and experts in academia and 
at its own Science Centers to develop more refined pinniped density 
estimates that account for pinniped movements, distribution, at-sea 
correction factors, and density gradients associated with proximity to 
haulout sites or rookeries.
    Response: For future Navy Phase IV compliance documents (e.g., 
EISs), the Navy explained that it did and will continue to consult with 
authors of the papers relevant to the analyses as well as other experts 
in academia and at the NMFS Science Centers during the development of 
the Navy's analyses. During the development of the HSTT and NWTT 
Density Technical Reports, which supplied densities for the PMSR 
analysis, the Navy had ongoing communications with various subject 
matter experts and specifically discussed pinniped movements, the 
distribution of populations within the study areas to support the 
analyses, the pinniped haulout or at-sea correction factors, and the 
appropriateness of density gradients associated with proximity to 
haulout sites or rookeries. As shown in the references cited, the 
personal communications with researchers have been made part of the 
public record, although many other informal discussions with colleagues 
have also assisted in the Navy's approach to the analyses presented. 
Moving forward in Phase IV, the Navy has continued to engage with 
pinniped experts to improve the representation of species' occurrence 
and distribution by calculating monthly densities as appropriate for 
each species and basing distribution areas on habitat preferences and 
region specific haul out behavior. Revised and updated densities for 
the California coast will also apply to the PMSR Study Area which is 
being reanalyzed as part of the new Hawaii-California Study Area (HCTT) 
EIS/OEIS project.

[[Page 40899]]

Cetacean Density Estimates
    Comment 6: The Commission comments that similar to the pinniped 
densities, the Navy did not specify the underlying data and assumptions 
used to estimate most of its cetacean density estimates for the PMSR 
NMSDD in the technical report, ``Quantifying Acoustic Impacts on Marine 
Species: Methods and Analytical Approach for Activities at the Point 
Mugu Sea Range'' (Navy 2020). The lack of transparency does not afford 
either the Commission or the public an opportunity to provide informed 
comments. Further, many of the densities in the same geographic areas 
differ by an order of magnitude or more from those provided in the 
technical report, ``U.S. Navy Marine Species Density Database Phase III 
for the Hawaii-Southern California Training and Testing Study Area 
Navy'' (Navy 2017) and/or Becker et al. (2020), which included updated 
models of some of the densities that were provided in ``U.S. Navy 
Marine Species Density Database Phase III for the Hawaii-Southern 
California Training and Testing Study Area Navy'' (Navy 2017). The 
Commission understands that densities provided by Becker et al. (2020) 
are considered best available science, and it is unclear why those were 
not used for the PMSR Study Area. Therefore, the Commission recommends 
that, prior to issuing any final rule, NMFS provide information 
regarding the data and assumptions used to inform the cetacean density 
estimates, allow for additional public review and comment on that 
information, and, if Becker et al. (2020) was not used to inform those 
estimates, explain why.
    Response: At the time that the Navy's acoustic modeling and 
analysis was conducted Becket et al. 2020 was not available. The Navy 
did consult with E. Becker to ensure consistency with the information 
in the paper that was published in 2020.
    For the HSTT Phase III analysis, the HSTT Density Technical Report 
(cited as Navy 2017c in the MMC comment above), density estimates from 
Becker et al. (2016; ``Moving Towards Dynamic Ocean Management: How 
Well Do Modeled Ocean Products Predict Species Distributions?'', Remote 
Sensing, 8, 149) were used; these estimates were based on distribution 
models (SDMs) developed from line-transect survey data collected within 
the Southwest Fisheries Science Center (SWFSC) CCE study area from 
1991-2009. Subsequently, for the NWTT Phase III analysis, the NWTT 
Density Technical Report (Navy 2019), updated density estimates were 
available, and these were based on line-transect survey data collected 
within the CCE study area during summer and fall from 1991-2014. Since 
the updated models included the 2014 anomalously warm year, a greater 
range of habitat conditions was available to parameterize the SDMs, and 
they were developed using improved modeling methods. Multi-year (1991-
2014) average density surfaces from these SDMs were developed for 13 
cetacean species and one small beaked whale guild (the guild includes 
Cuvier's beaked whale and species from the genus Mesoplodon), and were 
provided to the Navy for the NWTT Phase III analysis. A subset of these 
models was subsequently published in 2020 (Becker et al. 2020, 
``Performance evaluation of cetacean species distribution models 
developed using generalized additive models and boosted regression 
trees'', Ecology and Evolution, 10, 5759-5784). Density estimates from 
both these sources were available at the time the Navy was identifying 
data to use for the PMSR analysis.
    The Commission references the most recent SDMs built with 1991-2018 
data, as presented in Becker et al. (2020; ``Habitat-based density 
estimates for cetaceans in the California Current Ecosystem based on 
1991-2018 survey data'', U.S. Department of Commerce, NOAA Technical 
Memorandum NMFS-SWFSC-638), hereafter ``Becker et al. 2020 TM'' to 
differentiate from the 2020 Ecology and Evolution manuscript mentioned 
above. The SDMs presented in the Becker et al. 2020 TM represent an 
improvement over the previous models because they included additional 
sighting data collected over the continental shelf and slope that were 
surveyed more sparsely in previous years, they better accounted for 
population changes in the CCE study area over the 1991-2018 survey 
period, and they more accurately accounted for uncertainty than prior 
iterations owing to methodological improvements. In addition, to ensure 
that the multi-year average density surfaces reflect more recent 
conditions and were based on those survey years that more 
comprehensively covered the study area, predictions for 1991, 1993, and 
2009 were not included in the multi-year average. The multi-year 
average density surfaces derived from these models are thus based on 
predictions for summer/fall 1996-2018. Furthermore, for two species 
with documented population increases in the study area (i.e., fin whale 
and humpback whale), the year covariate was set to 2018 to decrease the 
potential for biased-low density estimates derived from the multi-year 
average surfaces. Density estimates from the Becker et al. 2020 TM SDMs 
were not available at the time the Navy was identifying the best 
estimates to use for the PMSR analysis. As noted above, this manuscript 
was subsequently published in Ecology and Evolution in 2020, and was 
based on SDMs developed with the 1991-2014 SWFSC survey data.
    Regarding the Commission's comment that ``many of the densities in 
the same geographic areas differ by an order of magnitude or more from 
those provided in Department of the Navy (2017c) and/or Becker et al. 
(2020)''--it is difficult to respond to this comment without more 
information on which species estimates the Commission is referring to. 
Also, since the estimates from Becker et al. models are spatially-
explicit, it is unclear if the Commission is comparing specific pixel 
values, or looking at the highest density ranges on the PMSR maps and 
comparing them to the density plots included in the Becker et al. 2020 
TM, in which case the difference in the highest density range can be 
due to just a few high pixel values and/or the density ranges selected 
for presentation purposes. Comparisons are also challenging since the 
Becker et al. TM presents density surfaces for the entire CCE study 
area while the PMSR density plots are specific to that study area, and 
thus appear more pixelated given the finer spatial resolution. To help 
address this comment, the density estimates provided in the PMSR 
Density Technical Report were compared to those presented in the Becker 
et al. 2020 TM. The latter presents density estimates for 14 cetacean 
species and the small beaked whale guild for summer/fall. The 
comparison was thus based on these species and seasons. For their 5-7 
year environmental planning analysis, the Navy incorporates the multi-
year average density plots into the Navy Marine Species Density 
Database (NMSDD) and uses these for their acoustic analyses. Therefore, 
the comparison was based on these density surfaces (vs. yearly plots), 
although the yearly predictions for the three large whale species were 
also compared to see if any substantial differences were apparent.
    Below is a brief summary that compares the density values and 
distribution patterns presented in the PMSR Density Technical Report 
with those presented in the Becker et al. 2020 TM. Note that all 
density values are presented in number of animals per square km (anis/
km\2\), or as abundance

[[Page 40900]]

estimates (number of whales/dolphins occurring in a defined study 
area).
    Blue whale. The data source is cited as ``Becker et al. in prep.'' 
so the density estimates used for the PMSR analysis were the multi-year 
average predictions from the SDMs built with 1991-2014 survey data, 
while the multi-year average density surfaces presented in Becker et 
al. (2020 TM) were based on predictions from 1996-2018. The blue whale 
density plot presented in the PMSR Study Area has the highest density 
value (0.0091) as compared to the density plot included in the Becker 
et al. 2020 TM with the highest value (0.0117), and predicted 
distribution patterns from the two models within the PMSR Study Area 
are similar. Although not presented in the 2020 Ecology and Evolution 
paper, Table 5 compares the yearly CCE study area abundance estimates 
derived from the SDMs built with 1991-2014 data (left) with those 
presented in Becker et al. (2020 TM) built with 1991-2018 data on the 
right, and provides the 95 percent confidence intervals (presented for 
overlapping years). As shown below, all of the abundance estimates 
derived from the model used for the PMSR analysis fall within the 
confidence limits of the SDMs presented in Becker et al. (2020 TM).

                      Table 5--Blue Whale SDM and Becker et al. (2020) Abundance Estimates
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Year                                             Abundance         Abundance
                                          (1991-2014 SDMs)    (Becker et al.
                                                                    2020 TM)       Log-normal 95 percent Cis
                                                                                    (Becker et al. 2020 TM)
----------------------------------------------------------------------------------------------------------------
1996..................................               1,901             1,946               945             4,009
2001..................................               1,720             1,657               868             3,162
2005..................................               1,201             1,042               542             2,004
2008..................................               1,081               919               445             1,899
2014..................................               1,574             1,077               495             2,342
----------------------------------------------------------------------------------------------------------------

    As noted above, the Navy used the multi-year averages in their 
analyses, so the data used in the PMSR analysis reflect the 1991-2014 
average, while the Becker et al. (2020 TM) data reflect the 1996-2018 
average. For blue whale, the CCE study area point estimate for 2018 was 
the lowest yet (670 whales), resulting in a slightly lower point 
estimate for the 1996-2018 multi-year average density surface (1,219 
whales) than the 1991-2014 average density surface (1,572 whales); 
density estimates within the PMSR are similar for both sets of 
predictions. NMFS concurs with this analysis and confirms it does not 
change our analysis or findings for blue whales.
    Fin whale. A source was not provided in the PMSR document for the 
density data used for fin whale but based on the density figure in the 
PMSR Density Technical Report, it was the multi-year average density 
surface from the SDM built with 1991-2014 data (i.e., the model 
presented in the Becker et al. 2020 Ecology and Evolution paper). The 
fin whale density plot for the PMSR Study Area had the highest density 
value (0.0310) as compared to the density plot included in the Becker 
et al. 2020 TM with the highest density value (0.0821). Predicted 
distribution patterns from the two models within the PMSR Study Area 
are similar. Although not presented in the 2020 Ecology and Evolution 
paper, Table 6 compares the CCE study area abundance estimates derived 
from the SDMs built with 1991-2014 data (left), with those presented in 
Becker et al. (2020 TM) on the right. The estimates are so similar that 
the 95 percent confidence intervals are not presented below, but they 
are presented in Becker et al. (2020 TM). Therefore, yearly predictions 
from the two models are similar for those years that overlap.

   Table 6--Fin Whale SDM and Becker et al. (2020) Abundance Estimates
------------------------------------------------------------------------
                                                            Abundance
               Year                  Abundance (1991-    (Becker et al.
                                        2014 SDMs)          2020 TM)
------------------------------------------------------------------------
1996..............................               3,358             3,804
2001..............................               5,753             5,733
2005..............................               7,533             7,319
2008..............................               7,668             7,606
2014..............................              10,504            10,139
------------------------------------------------------------------------

    As noted above, the Navy used the multi-year averages in their 
analysis, so the data used in the PMSR analysis reflect the 1991-2014 
average while the Becker et al. (2020 TM) data reflect the 1996-2018 
average. For fin whale, this created a notable increase in the latter 
since the point estimate for 2018 was the highest yet (11,065 whales), 
and, given documented population increases in the study area, the year 
covariate was set to 2018 to decrease the potential for biased-low 
density estimates derived from the multi-year average surfaces. 
Therefore, the fin whale density surface used in the PMSR analysis is 
likely biased-low to some extent, but as noted above, the updated 
Becker et al. (2020 TM) estimates were not available at the time the 
Navy was identifying density data for the PMSR analysis. NMFS concurs 
with this analysis and confirms it does not change our analysis or 
findings for fin whales.
    Humpback whale. A source was not provided in the PMSR document for 
the density data used for humpback whale, but, based on the density 
figure, it was the multi-year average density surface from the SDM 
built with 1991-2014 data (i.e., the model presented in the Becker et 
al. 2020 Ecology and Evolution paper). The humpback whale density plot 
presented in Hulton et al. (2020) for the PMSR study area had the 
highest density value (0.0479) as compared to the density plot included 
in the Becker et al. 2020 TM with the highest density value (0.194), so 
this is a case where the highest values do differ by an order of 
magnitude, although highest densities mainly occur north of

[[Page 40901]]

Point Conception and outside the PMSR Study Area. Although not 
presented in the 2020 Ecology and Evolution paper, Table 7 compares the 
CCE study area abundance estimates derived from the SDMs built with 
1991-2014 data (left) with those presented in Becker et al. (2020 TM) 
on the right. The estimates are so similar that the 95 percent 
confidence intervals are not presented below, but they are presented in 
Becker et al. (2020 TM).

Table 7--Humpback Whale SDM and Becker et al. (2020) Abundance Estimates
------------------------------------------------------------------------
                                                            Abundance
               Year                  Abundance (1991-    (Becker et al.
                                        2014 SDMs)          2020 TM)
------------------------------------------------------------------------
1996..............................               1,267             1,181
2001..............................               1,361             1,364
2005..............................               1,454             1,575
2008..............................               1,638             1,727
2014..............................               3,162             2,178
------------------------------------------------------------------------

    As noted above for fin whale, exclusion of the early years (1991 
and 1993) and accounting for the documented increase in humpback whale 
abundance in the study area over the survey period when deriving the 
multi-year average density surfaces resulted in higher densities for 
the more recent 1996-2018 multi-year average. Also, the point estimate 
for 2018 was the highest yet (4,784 whales). Therefore, the humpback 
whale density surface used in the PMSR analysis is likely biased-low to 
some extent, but, as noted above, the updated Becker et al. (2020 TM) 
estimates were not available at the time the Navy was identifying 
density data for the PMSR analysis. NMFS concurs with this analysis and 
confirms it does not change our analysis or findings for humpback 
whales.
    Minke whale. Since the new minke whale SDM developed in Becker et 
al. (2020 TM) was not available at the time the Navy was identifying 
density data for the PMSR Study Area, the Navy used a uniform density 
estimate of 0.000737. (The estimate came from Barlow 2016, Table 7, and 
is an average of the Southern and Central CA strata estimates.)
    Baird's beaked whale. The HSTT Density Technical Report (Navy 2017) 
was erroneously cited as the source of the Baird's beaked whale density 
surface in the PMSR Density Technical Report, when in fact, the plot is 
consistent with the multi-year average density plot developed using 
1991-2014 survey data as described in Becker et al. 2020 (the 2020 
Ecology and Evolution paper). Predicted distribution patterns from this 
and the Becker et al. (2020 TM) SDM for Baird's beaked whale are very 
similar, and although the highest density value on the PMSR plot is 
0.0072 and on the Becker et al. (2020 TM) plot it is 0.0932, the top 
density RANGES overlap (i.e., 0.0048-0.0072 vs. 0.0032-0.0932, 
respectively); this is a case where there were a few high pixel values 
in northern waters of the CCE study area and outside the PMSR Study 
Area, thus increasing the highest value of the density range in the 
Becker et al. 2020 TM plot. Density values within the PMSR Study Area 
are similar. NMFS concurs with this analysis and confirms it does not 
change our analysis or findings for Baird's beaked whales.
    Small beaked whale guild (Cuvier's beaked whale and species in the 
genus Mesoplodon). The HSTT Density Technical Report (Navy 2017) was 
erroneously cited as the source of the density surface for the small 
beaked whale guild in the PMSR Density Technical Report, but the plot 
is consistent with the multi-year average density plot developed using 
1991-2014 survey data as described in Becker et al. 2020 (the 2020 
Ecology and Evolution paper). Higher density values are included in the 
1991-2014 average density surface used for the PMSR analysis as 
compared to the Becker et al. (2020 TM) average density surface, and 
the distribution pattern in the former better matches the SWFSC 
sighting data. As noted in Becker et al. (2020 TM), the small beaked 
whale guild SDM had some of the worst model metrics among all species 
and predicted distribution patterns matched poorly to actual sightings 
during the surveys, so the density data used for the PMSR Study Area 
analysis are more appropriate than the more recent model for this group 
of species. NMFS concurs with this analysis and confirms it does not 
change our analysis or findings for the small beaked whale guild.
    Bottlenose dolphin (offshore stock). Becker et al. (2016) was 
erroneously cited as the source of the density surface for the offshore 
stock of common bottlenose dolphin in the PMSR Density Technical 
Report, but the plot is consistent with the multi-year average density 
plot developed using 1991-2014 survey data as described in Becker et 
al. 2020 (the 2020 Ecology and Evolution paper). Predicted distribution 
patterns from this and the Becker et al. (2020 TM) SDM for common 
bottlenose dolphin are very similar, and although the highest density 
value on the PMSR plot is 0.2282 and on the Becker et al. (2020 TM) 
plot it is 1.55, the top density RANGES overlap (i.e., 0.1295-0.2282 
vs. 0.0085-1.55, respectively); similar to Baird's beaked whale, this 
is a case where there were a few high pixel values (in this case in the 
extreme SW corner of the CCE study area and outside the PMSR Study 
Area), which served to increase the highest value of the density range 
presented in the Becker et al. 2020 TM plot. Density values within the 
PMSR Study Area are similar for this species. NMFS concurs with this 
analysis and confirms it does not change our analysis or findings.
    Dall's porpoise. Becker et al. (2016) was erroneously cited as the 
source of the density surface for the Dall's porpoise in the PMSR 
Density Technical Report, but the plot is consistent with the multi-
year average density plot developed using 1991-2014 survey data as 
described in Becker et al. 2020 (the 2020 Ecology and Evolution paper). 
While the legend in the PMSR density plot presents density values up to 
0.4939, the range of the highest value plotted on the map within the 
PMSR Study Area is 0.0911-0.1435. In summer/fall, highest densities of 
Dall's porpoise occur north of the PMSR Study Area. Density values 
within the PMSR Study Area are similar between those presented in the 
PMSR Density Technical Report and Becker et al. (2020 TM), although a 
bit lower in the latter, but of the same order of magnitude. NMFS 
concurs with this analysis and confirms it does not change our analysis 
or findings.
    Long-beaked common dolphin. The data source is cited as ``Becker et 
al. in prep.'', so the density estimates used for the PMSR analysis 
were the multi-year average predictions from the SDMs built

[[Page 40902]]

with 1991-2014 survey data (i.e., the model presented in the Becker et 
al. 2020 (the 2020 Ecology and Evolution paper). Predicted distribution 
patterns from this and the Becker et al. (2020 TM) SDM for long-beaked 
dolphin are very similar, and density values within the PMSR Study Area 
are also very similar for this species, with a few higher pixels in the 
Becker et al. (2020 TM) serving to increase the highest density range, 
but all within the same order of magnitude as the PMSR values. NMFS 
concurs with this analysis and confirms it does not change our analysis 
or findings.
    Northern right whale dolphin. The data source is cited as ``Becker 
et al. in prep.'', so the density estimates used for the PMSR analysis 
were the multi-year average predictions from the SDMs built with 1991-
2014 survey data (i.e., the model presented in the Becker et al. 2020 
(2020 Ecology and Evolution paper). Predicted distribution patterns 
from this and the Becker et al. (2020 TM) SDM for northern right whale 
dolphin are very similar, and although the highest density value on the 
PMSR plot is 0.1430 and on the Becker et al. (2020 TM) plot it is 3.07, 
the top density RANGES overlap (i.e., 0.0989-0.1430 vs. 0.0837-3.07, 
respectively); similar to some of the other species, this is a case 
where there were a few high pixel values (in this case north and 
outside the PMSR Study Area), which served to increase the highest 
value of the density range presented in the Becker et al. 2020 TM plot. 
Density values within the PMSR are similar for this species. NMFS 
concurs with this analysis and confirms it does not change our analysis 
or findings.
    Pacific white-sided dolphin. The data source is cited as ``Becker 
et al. in prep.'', so the density estimates used for the PMSR analysis 
were the multi-year average predictions from the SDMs built with 1991-
2014 survey data. Density values within the PMSR Study Area are similar 
between the two model predictions, although the distribution patterns 
reveal some differences; the multi-year 1991-2014 average plot used for 
the PMSR show higher densities just north of Point Conception as 
compared to the multi-year 1996-2018 average plot presented in Becker 
et al. (2020 TM). NMFS concurs with this analysis and confirms it does 
not change our analysis or findings.
    Risso's dolphin. The data source is cited as ``Becker et al. in 
prep.'', so the density estimates used for the PMSR analysis were the 
multi-year average predictions from the SDMs built with 1991-2014 
survey data (i.e., the model presented in the Becker et al. 2020 (the 
2020 Ecology and Evolution paper). Both the density values and 
distribution patterns within the PMSR Study Area are similar between 
the two model predictions. NMFS concurs with this analysis and confirms 
it does not change our analysis or findings.
    Short-beaked common dolphin. The data source is cited as ``Becker 
et al. in prep.'', so the density estimates used for the PMSR analysis 
were the multi-year average predictions from the SDMs built with 1991-
2014 survey data (i.e., the model presented in the Becker et al. 2020 
(the 202 Ecology and Evolution paper). The highest density value on the 
PMSR plot is 3.82 and on the Becker et al. (2020 TM) plot it is 2.95; 
however, density estimates from the latter are higher throughout much 
of the PMSR Study Area, particularly throughout the Southern California 
Bight and extending to the north/northeast. Similar to both fin and 
humpback whales, the point estimate for 2018 was the highest yet for 
short-beaked common dolphin (1,056,308 dolphins). Therefore, the short-
beaked common dolphin density surface used in the PMSR analysis is 
likely biased-low to some extent, but, as noted above, the Becker et 
al. (2020 TM) estimates were not available at the time the Navy was 
identifying density data for the PMSR analysis. NMFS concurs with this 
analysis and confirms it does not change our analysis or findings.
    Sperm whale. The data source is cited as ``Becker et al. in 
prep.'', so the density estimates used for the PMSR analysis were the 
multi-year average predictions from the SDMs built with 1991-2014 
survey data. As noted in Becker et al. (2020 TM), the sperm whale SDM 
had some of the worst model metrics among all species and predicted 
distribution patterns matched poorly to actual sightings during the 
surveys, so the density data used for the PMSR analysis are more 
appropriate for this species. NMFS concurs with this analysis and 
confirms it does not change our analysis or findings.
    Striped dolphin. The data source is cited as ``Becker et al. in 
prep.'', so the density estimates used for the PMSR analysis were the 
multi-year average predictions from the SDMs built with 1991-2014 
survey data (i.e., the model presented in the Becker et al. 2020 (the 
2020 Ecology and Evolution paper). Although the Becker et al. (2020 TM) 
shows higher densities throughout much of the CCE study area, the 
density values within the PMSR Study Area don't vary by more than an 
order of magnitude between the two model predictions. NMFS concurs with 
this analysis and confirms it does not change our analysis or findings.
    Overall summary and conclusions. The SWFSC habitat modeling team 
has been developing SDMs for the CCE study area for more than 20 years. 
Over this time period, the availability of additional survey data 
(which increases sample sizes and also increases the range of habitat 
covariate values used to parameterize the models), as well as 
methodological advances, have resulted in substantial improvements to 
the SDMs and associated model-derived density estimates. The latest 
models include data collected from the most recent SWFSC survey 
conducted in 2018, and SMDs derived from the full set of 1991-2018 
survey data are presented in Becker et al. (2020 TM). These data were 
not available when the Navy was identifying density data to use for the 
PMSR analysis. Although the source of density data could have been more 
clearly identified in the PMSR Density Technical Report, the Navy 
consistently used density data that were available from the previous 
set of SDMs that were developed using 1991-2014 survey data.
    For most species, the multi-year density surfaces derived from the 
two separate sets of models are similar, revealing generally consistent 
distribution patterns and abundance estimates that are in the same 
order of magnitude within the PMSR Study Area. In some cases, density 
estimates appear to differ by more than an order of magnitude based on 
a comparison of density plots, but this is due to a few high pixel 
estimates located outside the PMSR Study Area that determine the upper 
bound of the highest density range, and does not indicate big 
differences in the density overall or across the area.
    Species for which density estimates differ substantially include 
fin whale and humpback whale, due to the methods used in Becker et al. 
(2020 TM) to ensure that the multi-year average density surfaces better 
accounted for documented increases in the populations of both these 
species between 1991 and 2018. In addition, due to the increase in the 
numbers of short-beaked common dolphins occurring in the PMSR Study 
Area in recent years, the Becker et al. (2020 TM) density estimates for 
this species are also substantially higher than previous estimates. 
While the most recent models were not available at the time the Navy 
was identifying density data to use for the PMSR analysis, we have 
qualitatively considered this information in this final rule, and we 
have found that these differences would not change any of the required 
findings. Also, we note that the Becker et al.

[[Page 40903]]

(2020 TM) SDMs, as well as SDMs developed recently for the Southern 
California Current (Becker et al. In Press, Frontiers in Marine 
Science), will be used in the Navy's upcoming Hawaii-California Testing 
and Training (HCTT) analysis, which includes the PMSR Study Area.
Uncertainty in Density Estimates
    Comment 7: The Commission comments that for Phase III activities in 
the HSTT Study Area, the Navy used more refined density estimation 
methods for cetaceans and accounted for uncertainty in the density and 
group size estimates that seeded its animat modeling (Navy 2018). The 
PMSR Density Technical Report indicated that uncertainty in its density 
and group size estimates for the PMSR Study Area was incorporated but 
did not specify what type of uncertainty or what, if any, distribution 
was used. The PMSR Density Technical Report also did not specify 
whether uncertainty was used for its density estimates for pinnipeds. 
NMFS similarly did not include in the preamble to the proposed rule any 
details regarding whether and how uncertainty was incorporated into 
either the density or group size estimates. The Commission recommends 
that NMFS (1) clarify whether and how uncertainty was incorporated in 
the density and group size estimates, including densities for 
pinnipeds, and specify the distribution(s) used and, (2) if uncertainty 
was not incorporated, re-estimate the numbers of takes based on the 
uncertainty inherent in the density estimates (e.g., Becker et al. 
2020) or the underlying references (e.g., Lowry 2002, Lowry et al. 
2014, NMFS SARs, etc.). If NMFS chooses not to incorporate uncertainty 
in its density estimates, including for pinnipeds, the Commission 
recommends that NMFS specify why it did not do so in the preamble to 
the final rule.
    Response: As noted in the PMSR Density Technical Report the Navy 
did not apply statistical uncertainty outside the survey boundaries 
into non-surveyed areas, since it deemed application of statistical 
uncertainty would not be meaningful or appropriate. We note that there 
are no measures of uncertainty (i.e., no coefficient of variation (CV), 
standard deviation (SD), or standard error (SE)) provided in NMFS 
Pacific Stock Assessment Report (SAR) Appendix 3 (Carretta et al. 2019) 
as well as the 2021 draft Pacific SAR, associated with the abundance 
data for any of the pinniped species present in Southern California. 
Although some measures of uncertainty are presented in some citations 
within the SAR and in other relevant publications for some survey 
findings, it is not appropriate for the Navy to attempt to derive 
summations of total uncertainty for an abundance when the authors of 
the cited studies and the SAR have not. For additional information 
regarding use of pinniped density data, see the HSTT Density Technical 
Report Section 11. As a result of the lack of published applicable 
measures of uncertainty for pinnipeds during this analysis, the Navy 
did not incorporate measures of uncertainty into the pinniped density 
estimates. NMFS independently reviewed the methods and densities used 
by the Navy and concurs that they are appropriate and reflect the best 
available science.

Criteria Thresholds

General Threshold Comments
    Comment 8: The Commission has supported the weighting functions and 
associated thresholds used for Navy Phase III activities (Navy 2017b). 
However, numerous more recent studies provide additional information on 
behavioral audiograms (e.g., Cunningham and Reichmuth 2015, Branstetter 
et al. 2017, Kastelein et al. 2017b and 2019a, Sills et al. 2020a, 
Kastelein 2021a and b, Ruscher et al. 2021, and Sills et al. 2021) and 
temporary threshold shift (TTS) (e.g., Kastelein et al. 2017a and c, 
Popov et al. 2017, Kastelein et al. 2018a and b, 2019b-d, and 2020a-f, 
Sills et al. 2020b, Kastelein et al. 2021a and b). The Navy discussed 
only a few of these references in its Draft Supplemental Environmental 
Impact Statement (DSEIS) and LOA application. It also noted that the 
otariid and phocid composite audiograms are consistent with recently 
published behavioral audiograms of pinnipeds but did not provide any 
references, including those denoted herein, in its LOA application. 
NMFS similarly did not discuss any of the aforementioned references in 
its preamble to the proposed rule, whether the composite audiograms 
were consistent with the recently-reported behavioral audiograms or 
whether the criteria, presumably the TTS (and thus permanent threshold 
shift (PTS)) thresholds, were still considered conservative as compared 
to the recently-reported TTS data for harbor porpoises, harbor seals, 
and California sea lions. As such, the Commission recommends that NMFS 
specify in the preamble to the final rule whether the aforementioned 
references support the continued use of the current weighting functions 
and PTS and TTS thresholds for the various functional hearing groups 
and, if the newer data indicate that either the current weighting 
functions or PTS and TTS thresholds would significantly underestimate 
impacts, specify whether and how it plans to revise them.
    Response: NMFS is aware of these recent papers (Kastelein et al. 
2021a and b) and is currently working with the Navy to update NMFS' 
Technical Guidance for Assessing the Effects of Anthropogenic Sound on 
Marine Mammal Hearing Version 2.0 (Acoustic Technical Guidance) (NMFS 
2018) to reflect relevant papers that have been published since the 
2018 update on our 3-5 year update schedule in the Acoustic Technical 
Guidance. First, we note that the recent peer-reviewed updated marine 
mammal noise exposure criteria by Southall et al. (2019a) provide 
identical PTS and TTS thresholds and weighting functions to those 
provided in NMFS' Acoustic Technical Guidance.
    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. However, any such revisions must undergo peer and public 
review before being adopted, as described in the Acoustic Guidance 
methodology. In the meanwhile, NMFS has also carefully considered the 
other references that the commenter cites, and while some of the 
relevant data may potentially suggest changes to TTS/PTS thresholds for 
some species, any such changes would not be expected to change the 
predicted take estimates in a manner that would change the necessary 
determinations supporting the issuance of these regulations, and the 
data and values used in this rule reflect the best available science.
In-Water Behavior Thresholds for Explosives
    Comment 9: The Commission comments that the Navy routinely requests 
and NMFS routinely authorizes behavior takes of marine mammals 
associated with exposure to single in-air explosive events (e.g., 
missile launch noise and sonic booms), including those that occur in 
the PMSR Study Area (section 6.6 in the Navy's LOA application). The 
Commission states that NMFS has based its take estimates on the numbers 
of animals that have responded behaviorally to single launch events, 
including for the PMSR proposed rule (see section 6.6 in the Navy's LOA 
application and 84 FR 28470 (June 19, 2019), as one example for 
previous authorizations issued for launch activities at SNI). The

[[Page 40904]]

Commission states that ``[c]ontinuing to dismiss the fact that a single 
explosive event, including that of a 500-lb bomb, has the potential to 
cause behavior takes to marine mammals underwater is illogical . . . 
given that an animal exposed to such an event is expected to exhibit 
the factors the Navy differentiated as a behavioral response in 
Department of the Navy (2017b) and NMFS routinely authorizes behavior 
takes for such events when exposed in air, including for the Navy's own 
proposed launch activities under the PMSR proposed rule.'' The 
Commission also states that the Navy, and in turn NMFS, has not 
provided adequate justification for dismissing the possibility that 
single underwater detonations can cause a behavioral response and 
therefore again recommends that NMFS estimate and ultimately authorize 
behavior takes of marine mammals during all in-water explosive 
activities, including those that involve single detonations consistent 
with in-air explosive activities in the final rule. If NMFS does not 
authorize behavior takes of marine mammals for all in-water explosive 
activities, the Commission recommends that NMFS justify in the preamble 
to the final rule why it believes that marine mammals, including 
pinnipeds, would only be taken by single in-air explosive detonations 
and not single in-water explosive detonations. The Commission further 
recommends that NMFS and the Navy revise the behavior thresholds for 
in-water explosive sources for Phase IV activities and ensure that any 
such threshold is based on data that involve impulsive sources, rather 
than the currently-used threshold that was based on non-impulsive 
tones.
    Response: NMFS does not ignore the possibility that single 
underwater detonations can cause a behavioral response. The current 
take estimate framework allows for the consideration of animals 
exhibiting behavioral disturbance during single explosions as they are 
counted as ``taken by Level B harassment'' if they are exposed above 
the TTS threshold, which is 5 decibels (dB) higher than the behavioral 
harassment threshold. We acknowledge in our analysis that individuals 
exposed above the TTS threshold may also be harassed by behavioral 
disruption and those potential impacts are considered in the negligible 
impact determination. Neither NMFS nor the Navy are aware of evidence 
to support the assertion that animals will have significant behavioral 
responses (i.e., those that would rise to the level of a take) to 
temporally and spatially isolated explosions at received levels below 
the TTS threshold. However, if any such responses were to occur, they 
would be expected to be few and to result from exposure to the somewhat 
higher received levels bounded by the TTS thresholds and would thereby 
be accounted for in the take estimates. The derivation of the explosive 
injury criteria is provided in the 2017 technical report titled 
``Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects 
Analysis (Phase III)''.
    Regarding the assertion that the approaches for assessing the 
impacts from a single underwater detonation and a single in-air 
detonation are inconsistent, we disagree. Both approaches/thresholds 
are based on the best available data. As noted above, we are unaware of 
data suggesting that marine mammals will respond to single underwater 
explosive detonations below the TTS threshold in a manner that would 
qualify as a take. Conversely, for single in-air detonations such as 
missile launch noise and sonic booms, there are extensive data 
supporting the application of the lower behavioral thresholds, i.e., 
pinnipeds moving significant distances or flushing in response to these 
in-air levels of sounds.
    Regarding the recommendation that explosive thresholds used for 
assessing impacts in Phase IV be based on impulsive sources, NMFS will 
continue to work with the Navy to ensure that the best available 
science is used in the development and revision of the thresholds to be 
used to assess acoustic impacts in Phase IV of the Navy actions.
In-Water Takes for Explosives
    Comment 10: The Commission comments that the number of takes that 
NMFS proposed to authorize does not accurately reflect the group sizes 
of various species. The Navy's 2017 report, ``Dive Distribution and 
Group Size Parameters for Marine Species Occurring in the U.S. Navy's 
Atlantic and Hawaii[hyphen]Southern California Training and Testing 
areas'', specified that the mean group size of long-beaked common 
dolphins was 255, 16 for the offshore stock of common bottlenose 
dolphins, and 56 for striped dolphins. However, NMFS proposed to 
authorize a total of 119 takes of long-beaked common dolphins, 11 takes 
of offshore bottlenose dolphin, and 2 takes of striped dolphins per 
year (see Table 18 of the proposed rule)--all of which are less than 
the mean group sizes reported by the Navy. The numbers of takes of 
northern right whale dolphins, Pacific white-sided dolphins, Risso's 
dolphins, short-beaked common dolphins, and sperm whales also are less 
than the mean group sizes specified in Table 48 of the above report. 
For other species that routinely occur in the PMSR Study Area but for 
which model-estimated takes were zero (e.g., Cuvier's beaked whales, 
Baird's beaked whales, Kogia spp., etc.), NMFS did not propose to 
authorize any takes (see Table 18 of the proposed rule). The Commission 
recommends that NMFS, at minimum, authorize Level B harassment 
(behavior) takes that are at least the mean group size reported in 
Table 48 of the Navy 2017 report for all species in which model-
estimated takes are either less than mean group size (long- and short-
beaked common dolphins, offshore bottlenose dolphins, striped dolphins, 
northern right whale dolphins, Pacific white-sided dolphins, Risso's 
dolphins, and sperm whales) or zero for those species that routinely 
occur in the PMSR Study Area (e.g., Cuvier's beaked whales, Baird's 
beaked whales, Kogia spp., etc.) in the final rule.
    Response: NMFS indicates in the Description of Marine Mammals and 
Their Habitat in the Area of the Specified Activities section of this 
final rule that the following species/stocks had zero calculated 
estimated takes: Bryde's whale (Eastern Tropical Pacific), Gray whale 
(Western North Pacific), Sei whale (Eastern North Pacific), Baird's 
beaked whale (California, Oregon, and Washington), Bottlenose dolphin 
(California Coastal), Cuvier's beaked whale (California, Oregon, and 
Washington), Harbor Porpoise (Morro Bay), Killer whale (Eastern North 
Pacific Offshore, Eastern North Pacific Transient or West Coast 
Transient), Mesoplodont spp. (California, Oregon, and Washington), 
Short-finned pilot whale (California, Oregon, and Washington), and 
Northern fur seal (California). NMFS continues to agree with the Navy's 
analysis; therefore, no takes were authorized for those species where 
takes were modeled to be zero.
    However, to precautionarily ensure adequate incidental take 
coverage should the Navy encounter and expose a larger group than was 
originally estimated and proposed, the authorized annual take by Level 
B harassment was increased to group size for 7 dolphin species where 
the annual takes proposed were fewer than the species group size, 
specifically for Long- and Short-beaked common dolphins, Offshore 
Bottlenose dolphins, Striped dolphins, Northern right whale dolphins, 
Pacific white-sided dolphins, and Risso's dolphins. These changes are 
reflected in Table 21 and explained in detail in the Changes from the 
Proposed Rule to the Final Rule section of this final rule. For sperm 
whales, however,

[[Page 40905]]

given they prefer deeper waters and Navy activities are at the surface 
or near-surface, their secondary range includes areas of higher 
latitudes in the PMSR Study Area, NMFS concurs with the Navy's initial 
proposed take and does not find that an increase in the take estimates 
is warranted.
In-Air Thresholds for Explosives
    Comment 11: The Commission comments that the in-air PTS, TTS, and 
behavior thresholds were absent from both the Navy's LOA application 
and NMFS' preamble to the proposed rule, and that it is unclear what, 
if any, thresholds were used to inform either the Navy's or NMFS' 
impact analyses. The Commission recommends that NMFS provide any Phase 
IV in-air and in-water PTS and TTS thresholds and associated weighting 
functions to the public for review and comment, consistent with the 
Phase III in-water auditory thresholds. The Commission also stated 
that, in its May 2019 letter regarding a proposed incidental harassment 
authorization for launch activities at SNI, the unweighted behavior 
threshold of 100 dB re 20 [mu]Pa2-sec to be applied to all pinnipeds 
from Department of the Navy (2017b) was inconsistent with other recent 
proposed and final rules for the U.S. Air Force (Air Force; 84 FR 335; 
January 24, 2019 and 84 FR 14321; April 10, 2019) and other recent 
proposed rules or authorizations involving other launch activities (83 
FR 57434; November 15, 2018, 82 FR 49334; October 25, 2017, 82 FR 6463; 
January 19, 2017, 81 FR 18584; March 31, 2016, etc.). Further, the 
Commission reiterates its 2019 recommendation that NMFS compile all in-
air response data and determine whether the in-air behavior thresholds 
can be revised or whether additional paired visual and acoustic 
monitoring data are necessary to refine the in-air thresholds before 
issuing the PMSR final rule. If the thresholds cannot be revised with 
data currently available, the Commission recommends that NMFS (1) 
ensure that the Navy, the Air Force, and any other relevant entities 
collect the necessary data to inform in-air behavior thresholds, and 
(2) revise, allow for public comment on, and finalize those thresholds 
in the next 3 years.
    Response: The Commission is correct that the in-air behavioral 
thresholds were missing, but these have now been added to Table 12 
(Behavioral Thresholds). However, the Navy's testing and training 
activities (outside of target and missile launches) are modeled at or 
near-surface (essentially underwater) and the in-air behavioral 
thresholds would not apply to those other testing and training 
activities, as they were modeled underwater. The in-air thresholds 
would apply to the target and missile launches on SNI.
    Regarding the Commission's comment that the unweighted behavior 
threshold of 100 dB re 20 [mu]Pa2-sec applied to all pinnipeds from 
Department of the Navy (2017b) was inconsistent with other recent 
proposed and final rules for the U.S. Air Force (Air Force; 84 FR 335; 
January 24, 2019 and 84 FR 14321; April 10, 2019), it is true that the 
Navy is using in-air behavior thresholds different from what is used by 
the U.S. Air Force. The Navy's thresholds in the Criteria and 
Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 
III) Technical Report (U.S. Department of the Navy, 2017) for TTS/PTS 
are correct, while for behavior, the Navy uses a value of 100 dB sound 
exposure level (SEL) for all pinnipeds rather than 90 dB sound pressure 
level (SPL) for harbor seals/100 dB SPL for all other pinnipeds. In 
this case, the issues the Commission points out regarding in-air 
behavioral thresholds are not applicable, as the estimated takes are 
based on the last 3 years of pinniped observation from Navy's 
monitoring reports and are not directly based on specific in-air 
thresholds.
    The Navy selects beaches to survey based largely on where sound 
received is expected to reach 100 dB SEL or greater and where animals 
are reacting to launch noises. In the case of harbor seals, the Navy is 
already monitoring beaches where sound levels are less than 100 dB SEL 
and often under 90 dB SPL (site O--Phoca Reef and Pirates Cove). The 
Navy is monitoring at site O because oftentimes the harbor seals are 
not hauled out on the western end of SNI on the typically monitored 
beaches during launch events. The Navy is cognizant of the fact that 
some harbor seals are reacting to sound levels lower than 90 dB SPL. 
Accordingly, the Navy is monitoring those pinnipeds and requesting 
additional take by Level B harassment to account for this potential.
    NMFS indicated in the Acoustic Thresholds sections of both the 
proposed rule and this final rule that 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 directly experience a 
disruption in behavior patterns to a point where they are abandoned or 
significantly altered, to incur TTS (equated to Level B harassment), or 
to incur 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. Refer to the ``Criteria and Thresholds for 
U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)'' report 
(U.S. Department of the Navy, 2017c) for detailed information on how 
the criteria and thresholds were derived. The criteria and thresholds 
in this document have been available for the public at https://www.hstteis.com/Documents/2018-Hawaii-Southern-California-Training-and-Testing-Final-EIS-OEIS/2018-Final-EIS-OEIS-Supporting-Technical-Documents. That said, regarding the recommendation that NMFS compile 
all in-air response data and determine whether the in-air behavior 
thresholds can be revised or whether additional paired visual and 
acoustic monitoring data are necessary to refine the in-air thresholds 
before issuing the PMSR final rule. NMFS will not be refining the in-
air thresholds for this final rule. The Navy's proposed Phase IV 
criteria are still in development and NMFS will work with the Navy and 
others within NOAA on any proposed changes and review the in-air 
thresholds for pinnipeds and, if appropriate, update NMFS' Acoustic 
Technical Guidance, which will include peer review and public comment. 
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. In the meanwhile, the data and values used in this rule 
reflect the best available science.
In-Air Behavior Takes for Launch Activities
    Comment 12: The Commission comments that, similar to the various 
in-air thresholds, the take estimation method for launch activities was 
omitted from the preamble to the proposed rule. NMFS indicated in the 
preamble to the proposed rule that it had reviewed the Navy's data, 
methodology, and analysis and determined that it was complete and 
accurate (86 FR 37822; July 16, 2021). If that was the case, it is 
unclear why the details were omitted from the proposed rule for the 
very activities that were estimated to result in the greatest numbers 
of takes for California sea lions, harbor seals, and elephant seals 
(see Tables 18 and 19 in the proposed rule). The Commission claims that 
the Navy's 2019 proposed authorization

[[Page 40906]]

also indicated that a total of 4,940 Level B harassment takes of 
California sea lions occurred during 18 launches in the 2015-2017 
monitoring seasons (84 FR 18822; May 2, 2019), which equates to an 
average of 275 takes per launch. The Commission claims there were only 
15 launches and the average number of takes per launch in the 2019 IHA 
should have been 329 rather than 275. The Commission comments that NMFS 
must specify the underlying references, assumptions, and methods used 
to estimate the numbers of takes for all activities for which taking 
would be authorized for each Federal Register notice.
    Response: NMFS indicated in the preamble to the proposed rule that 
it had reviewed the Navy's data, methodology, and analysis presented in 
section 5.2 (Incidental Take of Marine Mammals from Launch Activities 
at San Nicolas Island) of the Navy's rulemaking/LOA application, which 
were based on monitoring results from past launches, and determined 
that it was complete and accurate. Specifically, the estimation of the 
amount of take by Level B harassment that would be expected to occur as 
a result of launch events was based on the total take by species 
observed for three previous monitoring seasons divided by the number of 
launch events over that time period. NMFS has added additional details 
in the preamble in the Estimated Take of Marine Mammals section of this 
final rule to clarify how the takes estimated were derived for target 
and missile launches on SNI. This is also described in the paragraphs 
below.
    For California sea lions, take estimates were derived from three 
monitoring seasons where an average of 274.44 instances of take of sea 
lions by Level B harassment occurred per launch event. Therefore, 275 
sea lions was then multiplied by 40 launch events, for a conservative 
take estimate of 11,000 instances of take for California sea lions by 
Level B harassment. This estimate is conservative because the Navy has 
not conducted more than 25 launch events (although authorized for more) 
in a given year since 2001.
    For harbor seals a total of 12 takes were derived from previous 
monitoring seasons and multiplied by 40 launch events for a total of 
480 instances of take by Level B harassment.
    For northern elephant seals, take estimates were derived from 
previous monitoring seasons where an average of 0.61 instances of take 
of northern elephant seals by Level B harassment occurred per launch 
event. Therefore, one northern elephant seal was then multiplied by 40 
launch events for a conservative take estimate of 40 instances of take 
of northern elephant seals by Level B harassment. Generally, northern 
elephant seals do not react to launch events other than by exhibiting 
simple alerting responses, such as raising their heads or temporarily 
going from sleeping to being awake; however, to account for the rare 
instances where they have reacted, the Navy considered that some 
northern elephant seals could be taken during launch events.
    The Commission is incorrect about the number of launches that took 
place during the monitoring periods from 2015-2017; it was, in fact, 18 
launches that took place. The launch activities are described in the 
Navy's 2014-2019 monitoring report, which NMFS provided to the 
Commission. Monitoring reports can also be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-target-and-missile-launch-activities-san-nicolas. The average number of 
takes per launch in the 2019 IHA was correct (275 animals) as is the 
underlying data used to determine the estimated take for the 2019 IHA, 
the 2020 renewal IHA, and this final rule.
    Comment 13: The Commission comments that the method NMFS used to 
determine in-air takes is flawed for several reasons. The Commission 
states the Navy is only able to monitor at most three haulout sites 
during each launch event. However, California sea lions and harbor 
seals are present at several additional haulout sites on the west side 
of SNI. The Navy also estimates the number of pinnipeds hauled out at 
least 2 hours before the launch occurs. For safety reasons, the 
observers are not allowed to be at the haulout sites for at least 2 
hours before and during a launch. The video cameras that document the 
responses of the hauled-out animals are able to view only a portion of 
the animals. Thus, the Commission says it is unclear whether new 
animals haul out or enter the water in the more than 2 hours after the 
animals were last counted. When equipment failures occur or launches 
occur at night, responses are not observed.
    Response: The Navy is committed to several types of monitoring in 
order to document the responses of hauled-out animals. NMFS has 
approved the Navy's monitoring methods in previous authorizations and 
does not believe the methods are flawed. It is correct that the Navy 
monitors at most 3 haulout sites during each launch and the Navy 
attempts to vary the sites they are monitoring during each launch, so 
the Navy is not always monitoring the same 3 sites. This is precisely 
for the reason the Commission pointed out, as there are several haulout 
sites on the west side of SNI. During visual surveys, the Navy also 
estimates the number of pinnipeds hauled out at least 2 hours before 
the launch occurs. For safety reasons, the observers are not allowed to 
be at the haulout sites for at least 2 hours before and during a 
launch. However, the Navy conducts more than just visual surveys in 
order to obtain the most accurate information on the number of hauled 
out animals. Video and acoustic monitoring of up to three pinniped 
haulout areas and rookeries will be conducted during launch events that 
include missiles or targets that have not been previously monitored 
using video and acoustic recorders for at least three launch events. 
Video monitoring cameras would be either high-definition video cameras, 
or Forward-Looking Infrared Radiometer (FLIR) thermal imaging cameras 
for night launch events. The Navy is also experimenting with time-lapse 
photography to fill in any data gaps that may occur from the other 
methods of monitoring. Marine mammal monitoring includes multiple 
surveys during the year that record the species, number of animals, 
general behavior, presence of pups, age class, gender and reactions to 
launch noise or other natural or human caused disturbances, in addition 
to environmental conditions that may include tide, wind speed, air 
temperature, and swell. Between the different methods of monitoring, 
NMFS is confident that the Navy will be able to continue to complete 
their monitoring requirements and record accurate data if equipment 
issues arise or launches occur during the day or night.
    Comment 14: The Commission comments that the criteria that the Navy 
used to enumerate takes under a previous authorization and in previous 
monitoring reports were based on animals moving at least 10 m (11 yd; 
84 FR 37845; August 2, 2019). NMFS' more recent criteria, including 
those that it used for the U.S. Air Force's 2019 final rule (see Table 
9; 84 FR 337; January 24, 2019), are based on animals moving at least 
two body lengths (Level 2 response). The 10-m (11-yd) metric is much 
greater than the estimated 4 or 5 m (4 or 5 yd) that adult female and 
male sea lions move in two body lengths. The Commission is concerned 
that NMFS is allowing Department of Defense agencies to use two 
different sets of criteria for the same activities (i.e., launch 
activities) as related to the same definition of Level B harassment 
under section 3(18)(B)(ii) of the MMPA. The

[[Page 40907]]

Commission recommends that NMFS specify in the PMSR final rule that the 
Level B harassment criteria are based on the definitions of Level 2 and 
3 responses provided in Sec.  217.65(b)(3)(ii) of the Air Force's final 
rule.
    Response: In contrast to the activities considered for this final 
rule, which are considered military readiness activities, the 
activities that were the subject of NMFS' 2019 rule for the Air Force 
were not evaluated as military readiness activities; therefore a 
different definition of Level B harassment applied. For the U.S. Air 
Force rule, the standard non-military-readiness pinniped thresholds 
were used. For military readiness activities, the MMPA defines Level B 
harassment as: ``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.'' The 
Navy proposed a slightly different version of the criteria for 
determining when behavioral response of a hauled pinniped rises to the 
level of harassment, as is appropriate for use with the definition of 
Level B harassment associated with military readiness activities. NMFS 
concurred that this version, which has been used in prior incidental 
take authorizations associated with launch activities on SNI, is 
appropriate for evaluating Level B harassment in association with this 
specified activity. NMFS may re-evaluate these criteria with the Navy 
for any subsequent applications we receive for these activities.
    Comment 15: The Commission comments that NMFS underestimates harbor 
seal takes as well on SNI. NMFS previously had noted, and the Navy's 
monitoring reports have confirmed, that harbor seals were not always 
present when the Navy conducted its monitoring during launch events, 
and there have not been many places to observe harbor seals during the 
launches (84 FR 18821; May 2 2019). NMFS indicated that most of the 
beaches where harbor seals have been hauled out, and which the Navy has 
been able to monitor, occur in area O, which is not in the trajectory 
of most of the launches. That may be the case, but the animals still 
have responded to sound levels that range from 79-99 dB 20 re [mu]Pa at 
those beaches. NMFS also indicated that harbor seal presence at the 
haulout sites is dependent on tides. Since the Navy cannot predict 
whether it will conduct launches during high or low tide, the 
Commission states NMFS must assume that harbor seals have the potential 
to be present during each launch irrespective of the tidal cycle. 
Furthermore, the Navy focuses much of its monitoring on sea lion 
haulout sites, where harbor seals generally do not haul out. NMFS noted 
that harbor seals do not prefer beaches with California sea lions 
present (84 FR 18821; May 2, 2019). Moreover, and as routinely is the 
case for harbor seals, Navy monitoring reports from 2014-2017 indicated 
that for all but one launch 100 percent of the hauled-out harbor seals 
within the view of the camera responded to the launch. Thus, the 
Commission says that 12 harbor seals taken per launch on all of SNI is 
illogical and a vast underestimate.
    Response: NMFS disagrees with the Commission's assertion that 
harbor seal takes are too low. Approximately 42 harbor seals were 
estimated to have been affected during the June 2019 through March 2020 
monitoring period. These figures are approximate and included 
extrapolations for pinnipeds on portions of the beach that were not 
within the field of view of the camera. These estimates correspond to 
an average rate of 4.08 harbor seals affected per launch and are 
certainly within the estimated 12 harbor seals taken per launch. Only 
12 missile launch events occurred during that period, while the Navy 
was authorized for 40 events. It is incorrect to state that the Navy 
only focuses on California sea lion beaches. During the 2019-2020 
monitoring period, the Navy had cameras set up on Phoca Reef, which 
corresponds to site O (referred to by the commenter) where harbor seals 
tend to haul out. The Navy was able to monitor Phoca Reef during 
approximately half of the launches. The Navy is required to monitor 3 
sites during launches, and these sites can consist of any combination 
of Dos Coves South, Vizcaino Point South, Red Eye West, Red Eye East, 
Bachelor Beach, and Phoca Reef. It is not possible to monitor all of 
these sites for every launch, and the Navy makes a decision about where 
to monitor based on several factors, including local weather 
conditions, the type of launch activity planned, the types and location 
of pinnipeds hauled out, as well as tidal factors.
    Comment 16: The Commission commented that Navy's take estimation 
method is not consistent with either the method recently used by the 
U.S. Air Force for its proposed and final rule (84 FR 321; January 24, 
2019 and 84 FR 14314; April 10, 2019, respectively) or the intent of 
the MMPA to estimate the numbers of marine mammals that are likely to 
be disturbed. The U.S. Air Force based its take estimates on abundance 
estimates at the various haulout sites based on Lowry et al. (2017), 
previous response rates of the various pinniped species, and the number 
of launches per year. Specifically for harbor seals, the Commission 
says NMFS should have estimated the number of takes based on a 100-
percent response rate and the number of animals that were documented in 
areas J through N on SNI in 2015 and area O in 2014, as stipulated in 
Lowry et al. (2017) and as was considered best available science for 
the U.S. Air Force's proposed and final rule. Using that approach, 110 
harbor seals could be taken during each of the 40 proposed launch 
events, for a total of 4,400 harbor seal takes. For California sea 
lions, the response rate should be based on the number of sea lions 
that moved a `short distance' according to the 2014-2017 monitoring 
reports multiplied by the number of sea lions in the same areas in 2015 
from Lowry et al. (2017) and the number of launches. The Commission 
states that a similar approach should be taken for elephant seals. 
Accordingly, the Commission recommends that NMFS (1) authorize 4,400 
Level B harassment takes of harbor seals, and (2) estimate Level B 
harassment takes of California sea lions and elephant seals based on 
the numbers of both species in areas J through N in 2015 as stipulated 
in Lowry et al. (2017), response rates based on each species moving a 
short distance according to the 2014-2017 monitoring reports, and 40 
proposed launch events in the final rule.
    Response: The difference in methods of take estimation between the 
Navy and the U.S. Air Force are based on what is appropriate for each 
agency based on the activities that are being conducted. It does not 
mean that one method is not appropriate for estimating take.
    For harbor seals, NMFS believes the amount of Level B harassment 
take suggested as appropriate by the Commission would be an 
overestimate based on previous observations during Navy's launch 
events. Before the launch events, the Navy monitors several sites 
around the western end of SNI to determine where pinnipeds are hauled 
out and what species are on the beaches. During this pre-launch 
monitoring, harbor seals are frequently not present. For harbor seals 
on SNI, the estimated takes are based on pinniped observation from 
Navy's monitoring reports and not directly based on specific in-air 
thresholds. The beaches that the Navy surveys are largely based on 
where sound received is expected to reach 100 dB SEL or greater and 
where animals are reacting to launch noises. In the case of

[[Page 40908]]

harbor seals, the Navy is already monitoring beaches where sound levels 
are less than 100 dB SEL and often under 90 dB SPL (site O--Phoca Reef 
and Pirates Cove). The Navy is monitoring at site O because oftentimes 
the harbor seals are not hauled out on the western end of SNI on the 
typically monitored beaches during launch events. In addition, the Navy 
has previously surveyed other parts of SNI to determine if pinnipeds 
are reacting in response to launch events. The Navy conducted surveys 
of the eastern end of SNI and did not find pinnipeds reacting to launch 
events. The estimated take for harbor seals was based on the total 
number of takes (12) over a 3-yr monitoring period multiplied by 40 
launch events for a total of 480 instances of take by Level B 
harassment. Using the total number of takes (12) was a change from the 
proposed IHA in 2019 (84 FR 18809; May 2, 2019) in which we used an 
average number of takes multiplied by the number of launches. The 
estimated take would be lower (120 harbor seals) if the average was 
used, as was the case for California sea lions and Northern elephant 
seals. The take estimate was revised from 120 to 480 harbor seal 
instances of take by Level B harassment to possibly account for any 
additional harbor seals that hauled out and reacted to launch events.
    NMFS concludes that the number of authorized take is adequate and 
sufficient for California sea lions and Northern Elephant seals. For 
California sea lions, take estimates were derived from Navy monitoring 
reports in which an average of 274.44 instances of take of sea lions by 
Level B harassment occurred per launch event. Therefore, 275 sea lions 
was multiplied by 40 launch events, for a conservative take estimate of 
11,000 instances of take for California sea lions by Level B 
harassment. Generally, northern elephant seals do not react to launch 
events other than by exhibiting simple alerting responses, such as 
raising their heads or temporarily going from sleeping to being awake; 
however, to account for the rare instances where they have reacted, the 
Navy considered that some northern elephant seals could be taken during 
launch events. For Northern elephant seals an average of 0.61 instances 
of take of northern elephant seals by Level B harassment occurred per 
launch event from the Navy's monitoring reports. Therefore, one 
northern elephant seal was then multiplied by 40 launch events for a 
conservative take estimate of 40 instances of take of northern elephant 
seals by Level B harassment.
    As reported in the Navy 2014-2019 comprehensive monitoring report 
from the previous rule, approximately 3,876 California sea lions, 99 
Harbor seals, and 11 Northern elephant seals (average 144 California 
sea lions, 3.5 harbor seals, and 0.4 Northern elephant seals) were 
estimated to have been affected by launches conducted during that 
monitoring period. The estimates also included extrapolations for 
pinnipeds on portions of the beach that were not within the field of 
view of the camera. During the 2014-2019 monitoring period 27 launch 
events occurred at SNI even though 40 launch events annually were 
authorized. If NMFS had used these averages the estimated take would 
have been even lower than what NMFS is authorizing in this final rule.
    In summary, NMFS believe the Level B harassment take estimates for 
pinnipeds on SNI are sufficient based on actual field monitoring 
conducted by the Navy of the pinniped haulout areas that could 
potentially be affected by noise from launch events.

In-Water Mortality and Injury Thresholds for Explosives

    Comment 17: The Commission notes that the constants and exponents 
associated with the impulse metrics for both onset mortality and onset 
slight lung injury have been amended from those used in Tactical 
Training Theater Assessment and Planning (TAP) I and Phase II 
activities, and that the Navy did not explain why the constants and 
exponents have changed when the underlying data have not. The 
modifications yield both smaller and larger zones. The Commission 
states the results are counterintuitive since the Navy presumably 
amended the impulse metrics to account for lung compression with depth, 
thus the zones would be expected to be smaller rather than larger the 
deeper the animal dives. The Commission states that the Navy should 
provide a sufficient explanation regarding the constants and exponents 
or specify the assumptions made. NMFS, however, did provide a response 
in the preamble to the NWTT final rule. It stated that the numerical 
coefficients are slightly larger in Phase III than in Phase II, 
resulting in a slightly greater threshold near the surface. It also 
stated that the rate of increase for the Phase II thresholds with depth 
is greater than the rate of increase for Phase III thresholds with 
depth because the Phase III equations take into account the 
corresponding reduction in lung size with depth (making an animal more 
vulnerable to injury per the Goertner model; 85 FR 72327; November 12, 
2020). The Commission says that NMFS' response in the NWTT final rule 
does not explain why lower absolute thresholds prevail below 8 m (9 yd) 
in depth, and why, if lung compression is accounted for in Phase III, 
the rate of increase of the Phase II thresholds with depth would be 
greater when lung compression was not accounted for. The Commission 
again recommends that NMFS explain in the preamble to the final rule 
why the constants and exponents for onset mortality and onset slight 
lung injury thresholds for Phase III that consider lung compression 
with depth result in lower rather than higher absolute thresholds when 
animals occur at depths greater than 8 m.
    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)''. Specifically, the equations were 
modified for the current rulemaking period (Phase III) to fully 
incorporate the injury model in Goertner (1982), specifically to 
include lung compression with depth. NMFS independently reviewed and 
concurred with this approach.
    The impulse mortality/injury equations are depth dependent, with 
thresholds increasing with depth due to increasing hydrostatic pressure 
in the model for both the previous 2015-2020 phase of rulemaking (Phase 
II) and Phase III. The Commission correctly observes that above 8 m, 
the Phase II threshold is lower than the Phase III threshold, and below 
8 m, the Phase II threshold is greater than the Phase III threshold. 
The differences in injury and mortality thresholds are due to taking 
into account the complete Goertner (1994) model in the Phase III 
criteria, as the Navy has shown in the technical report ``Criteria and 
Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 
III)''. The underlying experimental data used in Phase II and Phase III 
remain the same, and two aspects of the Phase III revisions explain the 
relationships the Commission notes:
    (1) The numeric coefficients in the equations are computed by 
inserting the Richmond et al. (1973) experimental data into the model 
equations. Because the Phase III model equation accounts for lung 
compression, the plugging of experimental exposure values into a 
different model results in different coefficients. The numeric 
coefficients are slightly larger in Phase III versus Phase II, 
resulting in a slightly greater threshold near the surface.
    (2) The rate of increase for the Phase II thresholds with depth is 
greater than the rate of increase for Phase III

[[Page 40909]]

thresholds with depth because the Phase III equations take into account 
the corresponding reduction in lung size with depth (making an animal 
more vulnerable to injury per the Goertner model), as the commenter 
notes.
    Comment 18: The Commission comments that, consistent with other 
Phase III documents, the Navy used the onset mortality and onset slight 
lung injury criteria to determine only the range to effects, while it 
used the 50 percent mortality and 50 percent slight lung injury 
criteria to estimate the numbers of marine mammal takes. That approach 
is inconsistent with the manner in which the Navy estimated the numbers 
of takes for PTS, TTS, and behavior for explosive activities. All of 
those takes have been and continue to be based on onset, not 50-percent 
values. The Commission comments that NMFS' responses in the 
corresponding preambles to the final rules, that over predicting 
impacts by using onset values would not afford extra protection to any 
animal, is irrelevant from an impact analysis standpoint. NMFS' 
additional response in the preamble to the NWTT final rule, that 
estimating takes based on the onset values would over predict effects 
because many of those exposures would not happen because of effective 
mitigation (85 FR 72328; November 12, 2020), is unsubstantiated. The 
Navy has not determined the effectiveness of any of its mitigation 
measures, and explosive activities for which mitigation measures were 
implemented still resulted in the deaths of multiple common dolphins in 
2011. It would be more prudent for the Navy and NMFS to estimate 
injuries and mortalities based on onset rather than a 50-percent 
incidence of occurrence. The Commission recommends that NMFS use onset 
mortality, onset slight lung injury, and onset gastrointestinal (GI) 
tract injury thresholds rather than the 50-percent thresholds to 
estimate both the numbers of marine mammal takes and the respective 
ranges to effect in the final rule. If NMFS does not implement the 
Commission's recommendation, the Commission further recommends that in 
the preamble to the final rule NMFS (1) specify why it is 
inconsistently basing its explosive thresholds for Level A harassment 
on onset PTS and for Level B harassment on onset TTS and onset 
behavioral response, while the explosive thresholds for mortality and 
non-auditory Level A harassment are based on the 50-percent criteria 
for mortality, slight lung injury, and GI tract injury, (2) provide 
scientific justification supporting the assumption that slight lung and 
GI tract injuries are less severe than PTS and thus the 50-percent 
rather than onset criteria are more appropriate for estimating Level A 
harassment for those types of injuries, and (3) justify why the number 
of estimated mortalities should be predicated on at least 50 percent 
rather than 1 percent of the animals dying.
    Response: For explosives, the type of data available are different 
than those available for hearing impairment, and this difference 
supports the use of different prediction methods. Nonetheless, as 
appropriate, and similar to take estimation methods for PTS, NMFS and 
the Navy have used a combination of exposure thresholds and 
consideration of mitigation to inform the take estimates. The Navy used 
the range to 1 percent risk of onset mortality and onset injury (also 
referred to as ``onset'' in the 2022 PSMR FSEIS/OEIS and the Navy's 
2017 technical report titled ``Criteria and Thresholds for U.S. Navy 
Acoustic and Explosive Effects Analysis (Phase III)'') to inform the 
development of mitigation zones for explosives. Ranges to effect based 
on 1 percent risk criteria to onset injury and onset mortality were 
examined to ensure that explosive mitigation zones would encompass the 
range to any potential mortality or non-auditory injury, affording 
actual protection against these effects. In all cases, the mitigation 
zones for explosives extend beyond the range to 1 percent risk of onset 
non-auditory injury, even for a small animal (representative mass = 5 
kg). Given the implementation and expected effectiveness of this 
mitigation (based on the smaller size of the zone and available 
monitoring data), the application of the indicated 50-percent threshold 
is appropriate for the purposes of estimating take. Using the 1 percent 
onset non-auditory injury risk criteria to estimate take would result 
in an over-estimate of take, and would not afford extra protection to 
any animal. Specifically, calculating take based on marine mammal 
density within the area that an animal might be exposed above the 1 
percent risk to onset injury and onset mortality criteria would over-
predict effects because many of those exposures will not happen because 
of the effective mitigation. The Navy and NMFS consider the 50-percent 
incidence of onset injury and onset mortality occurrence a reasonable 
representation of a potential effect, and thereby appropriate for take 
estimation, given the mitigation requirements at the 1-percent onset 
injury and onset mortality threshold, and the area ensonified above 
this threshold would capture the appropriate reduced number of likely 
injuries.
    While the approaches for evaluating non-auditory injury and 
mortality are based on different types of data and analyses than the 
evaluation of PTS and behavioral disturbance, and are not identical, 
NMFS disagrees with the commenter's assertion that the approaches are 
inconsistent, as both approaches consider a combination of thresholds 
and mitigation (where applicable) to inform take estimates. For the 
same reasons, it is not necessary for NMFS to ``provide scientific 
justification supporting the assumption that slight lung and GI tract 
injuries are less severe than PTS,'' as that assumption is not part of 
NMFS' rationale for the methods used. NMFS has explained in detail its 
justification for the number of estimated mortalities, which is based 
on both the 50 percent threshold and the mitigation applied at the one 
percent threshold. Further, we note that many years of Navy monitoring 
following explosive exercises has not detected evidence that any injury 
or mortality has resulted from Navy explosive exercises with the 
exception of one incident with dolphins in California, after which 
mitigation was adjusted to better account for explosives with delayed 
detonations (i.e., zones for events with time-delayed firing were 
enlarged).
    Furthermore, for these reasons, the methods used for estimating 
mortality and non-auditory injury are appropriate for estimating take, 
including determining the ``significant potential'' for non-auditory 
injury consistent with the statutory definition of Level A harassment 
for military readiness activities, within the limits of the best 
available science. Using the one percent threshold would be 
inappropriate and would result in an overestimation of effects, 
whereas, given the mitigation applied within this larger area, the 50 
percent threshold results in an appropriate mechanism for estimating 
the significant potential for non-auditory injury.

Mitigation Measures

Extents of Zones and Passive Acoustic Monitoring
    Comment 19: The Commission commented that the proposed mitigation 
zones would not protect high-frequency (HF) cetaceans from PTS. For 
example, the mitigation zone for a missile is 1,829 m (2,000 yd; Table 
23 in the proposed rule), but the mean PTS zones range from 2,177-3,791 
m (2,381-4,146 yd) for HF Cetaceans (Table 6-8 in the LOA application).

[[Page 40910]]

Similarly, the mitigation zone for an explosive bomb is 2,286 m (2,500 
yd; Table 24 in the proposed rule), but the mean PTS zones similarly 
range from 2,177-3,791 m (2,381-4,146 yd) for HF cetaceans. The 
appropriateness of such zones is further complicated by aircraft 
deploying bombs at surface targets directly beneath the aircraft, 
minimizing the ability to observe the entire extent of the zone(s). In 
addition, missiles and rockets can be fired from vessels at targets 139 
km (75 nmi) away from the firing platform (Table 23 in the proposed 
rule). 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. The mitigation zones extend beyond the respective average 
ranges to PTS for all marine mammal hearing groups except HF cetaceans 
(the mitigation zones extend into a portion of the respective average 
ranges to PTS for this hearing group). The mitigation zones also extend 
into a portion of the average ranges to TTS for marine mammals. 
Therefore, depending on the species, mitigation will help avoid or 
reduce all or a portion of the potential for exposure to mortality, 
non-auditory injury, PTS, and higher levels of TTS for the largest 
explosives in bins E10 and bin E6. Explosives in smaller source bins 
(e.g., missiles in bin E9, rockets in bin E3) have shorter predicted 
impact ranges; therefore, the mitigation zones will cover a greater 
portion of the impact ranges for these explosives.
    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, as discussed in Chapter 5 
(Standard Operating Procedures and Mitigation) of the 2022 PMSR FEIS/
OEIS, for explosive mitigation zones 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 requirements under Title 10 
of the U.S. Code (Title 10 requirements) to successfully accomplish 
military readiness objectives, and the Navy's ability to conduct 
testing and training associated with required acquisition milestones or 
as required to meet operational requirements.
    Increasing the mitigation zone sizes would result in larger areas 
over which firing would need to be ceased in response to a sighting, 
and therefore would likely increase the number of times detonations 
would be ceased, which could extend the length of the activity. These 
impacts could significantly diminish event realism in a way that would 
prevent the activity from meeting its intended objectives. Explosive 
missile and rocket events require focused situational awareness of the 
activity area and continuous coordination between the participating 
platforms as required during military missions and combat operations. 
Additionally, Navy determined that the mitigation detailed in Chapter 5 
(Standard Operating Procedures and Mitigation) of the 2022 PMSR FEIS/
OEIS and mirrored in this final rule, provides the greatest extent of 
protection that is practicable to implement. NMFS has analyzed the fact 
that, despite these mitigation measures, some Level A harassment may 
occur in some circumstances (i.e., for HF cetaceans, as noted by the 
commenter); the Navy is authorized for these takes by Level A 
harassment.
    Comment 20: The Commission notes that NMFS included only the 
SELcum-based ranges to effect in the preamble to the proposed rule 
(Tables 11-15) and specified that sound from multiple successive 
explosions can be expected to increase the range to the onset of an 
impact based on the SELcum thresholds (86 FR 37817; July 16, 2021). 
Although that may be true relative to the SELcum of a single 
detonation, the SPLpeak thresholds result in larger ranges to effect 
for the majority of the explosive bins for HF, low-frequency (LF), and 
mid-frequency (MF) cetaceans and phocids for PTS and LF cetaceans and 
otariids for TTS (see Tables 6-7 to 6-16 in the Navy's LOA 
application). For otariids and phocids, the range to onset PTS is 
larger for the SPLpeak rather than the SELcum threshold for clusters of 
10, 12, and/or 25 munitions. As such, NMFS should have included the 
relevant zones in the preamble to the proposed rule for transparency 
purposes.
    Response: The peak pressure range-to-effect tables are in Navy's 
LOA application submittal, next to the SEL range-to-effect tables and 
the relevant zones as noted by the Commission; thus, there is no issue 
of NMFS not being transparent. NMFS references (and often provides 
links to access) additional documents such as the application or 
previous monitoring reports that are relevant to the incidental take 
authorization process when a proposed authorization is published.
    Comment 21: The Commission commented that the Navy indicated in the 
PMSR DEIS/OEIS that lookouts would not be 100 percent effective at 
detecting all species of marine mammals for every activity because of 
the inherent limitations of observing marine species and because the 
likelihood of sighting individual animals is largely dependent on 
observation conditions (e.g., time of day, sea state, mitigation zone 
size, observation platform) and animal behavior (e.g., the amount of 
time an animal spends at the surface of the water and group size). The 
Commission agrees and has made recommendations regarding the 
effectiveness of the Navy's visual monitoring.
    Since 2010, the Navy has been collaborating with researchers at the 
University of St. Andrews to study Navy lookout effectiveness, but they 
have not been conducted on a scale and in a manner sufficient to 
provide useful results. Accordingly, the Commission asserts that a 
precautionary approach should be taken until such time that sufficient 
data are available, and that the Navy should supplement its visual 
monitoring measures with other monitoring measures rather than simply 
reducing the size of the zones it plans to monitor and instead use 
passive acoustic monitoring. The Navy did not propose to supplement 
visual monitoring with passive acoustic monitoring during any of its 
explosive activities, nor did it mention passive acoustic monitoring in 
relation to mitigation in either its LOA application or its DEIS/OEIS 
for the PMSR Study Area. Further, NMFS did not propose to require the 
Navy to use passive acoustic monitoring and did not mention passive 
acoustic monitoring in regard to mitigation in the preamble to the 
proposed rule.
    The Commission comments that sonobuoys, which are deployed and used 
during many of the Navy's activities, could be deployed and used 
without having to construct or maintain additional systems. For 
example, multiple sonobuoys could be deployed with the target prior to 
an activity to better determine whether the target area is clear and 
remains clear until the munition is launched. The Navy previously 
specified that passive acoustic detections would not provide range or 
bearing to detected animals and therefore cannot be used to determine 
an animal's location or confirm its presence in a mitigation zone. The 
Commission does not agree, as Directional Frequency Analysis and

[[Page 40911]]

Recording (DIFAR) sonobuoys perform both functions and are routinely 
used by the Navy. The Commission contends that, at a minimum for PMSR, 
passive acoustic monitoring should be used to supplement visual 
monitoring, especially since the activities that the Navy proposed to 
conduct could injure or kill marine mammals.
    Contrary to NMFS' assertion in the preamble to the NWTT final rule 
that sonobuoys have a narrow band that does not overlap with the 
vocalizations of all marine mammals (85 FR 72349; November 12, 2020), 
the Navy has highlighted numerous instances of sonobuoys being used to 
detect and locate baleen whales, delphinids, and beaked whales. All 
instances represent detection of a broadband, rather than narrow band, 
repertoire of frequencies. NMFS also indicated that bearing or distance 
of detections cannot be provided based on the number and type of 
devices typically used (85 FR 72349; November 12, 2020), and the 
Commission asserts this is incorrect.
    The Commission further notes that personnel who monitor hydrophones 
and sonobuoys used by the Navy on the operational side also have the 
ability to monitor for marine mammals. The Commission stated that 
ability exists--four independent sightings were made not by the Navy 
lookouts but by the passive acoustic technicians (Department of the 
Navy (2013)), among other examples. The Commission asserts that 
although aircraft may not have passive or active acoustic capabilities, 
aircraft carriers or other vessels from which the aircraft originated 
very likely do have such capabilities. Given that the effectiveness of 
Navy lookouts conducting visual monitoring has yet to be determined, 
the Commission contends that, at a minimum for the PMSR Study Area, 
passive acoustic monitoring should be used to supplement visual 
monitoring. Therefore, the Commission again recommends that NMFS 
require the Navy to use passive acoustic monitoring (i.e., DIFAR and 
other types of sonobuoys), whenever practicable, to supplement visual 
monitoring during implementation of its mitigation measures for all 
explosive activities in the final rule.
    Response: The Lookout effectiveness study referenced by the 
Commission is now complete. Previously, this type of study has never 
been conducted; itis extremely complex to ensure data validity, and 
required a substantial amount of data to conduct meaningful statistical 
analysis. As noted by the Commission, previously there has not been 
enough data collected to conduct a sufficient analysis; therefore, 
drawing conclusions on an incomplete data set is not scientifically 
valid. The draft report was submitted to NMFS in April 2022 and is 
currently being reviewed as of the drafting of this final rule. The 
report provides a statistical assessment of the data available to date 
characterizing the effectiveness of Navy Lookouts relative to trained 
marine mammal observers for the purposes of implementing the mitigation 
measures.
    There are no applicable passive acoustic monitoring arrays within 
the PMSR Study Area that could both detect marine mammals and alert 
vessels in the area to their presence. However, the Navy queries 
``real-time'' whale/dolphin sighting record sources in the days leading 
up to an event. These include Whale Safe (www.whalesafe.com) and Island 
Packers marine mammal sightings updated on their website daily 
(www.islandpackers.com/marine-mammal-sightings), and any recent reports 
of cetacean strandings in the local area. Whale Safe focuses on three 
large cetacean species (blue, humpback, and fin whales) and is a tool 
that displays both visual and acoustic whale detections in the Santa 
Barbara Channel. It also includes a blue whale habitat model that 
predicts the likelihood of blue whale presence, whereas Island Packers 
reports on a broad range of cetacean species they observe in the 
Channel Islands National Park and the Channel Islands National Marine 
Sanctuary.
    As discussed with the Navy for explosive mitigation zones, 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. As discussed in 
the comment, the Navy does employ passive acoustic monitoring when 
practicable to do so in other Study Areas (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) for mitigation is not 
practicable. The Navy does not have sufficient resources to construct 
and maintain additional passive acoustic monitoring systems or 
platforms for each training and testing activity. 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.
    The Navy uses recent marine mammal sighting data to determine 
general presence of marine mammal species in the Southern California 
area and issue alerts to event managers. These data are not used to 
alter schedules or siting of events because of geographic bias in 
marine mammal reporting, lag times in data reporting, and the highly 
dynamic nature of cetacean movements. The Navy instead focuses efforts 
on event participant awareness and marine mammal surveys in a hazard 
area within hours or minutes of an event.
    The time spent surveying for marine mammals varies with the size of 
the area being searched. A typical flight would include approximately 
1-1.5 hours of search time for an area within 5 miles of the target 
location. Smaller search areas would require less time. In all cases, 
multiple passes are made over the target location. Effort does not 
change when there have been recent sightings in the general vicinity. 
In this way, the Navy's survey and notification efforts parallel 
efforts to notify ships to be more vigilant as they traverse designated 
shipping lanes. We note that whales that do not vocalize can never be 
detected using passive acoustic monitoring. We note that sonobuoys have 
a narrow band that does not overlap with the vocalizations of all 
marine mammals, and there is no bearing or distance on detections based 
on the number and type of devices typically used; therefore it is not 
possible to use these to implement mitigation shutdown procedures. 
Although the Navy is continuing to improve its capabilities to use 
range instrumentation to aid in the passive acoustic detection of 
marine mammals, at this time it is not effective or practicable for the 
Navy to monitor instrumented ranges for the purpose of real-time 
mitigation.
Mitigation Areas and Least Practicable Adverse Impact Standard
    Comment 22: The NRDC comments that despite the increase in 
activities, the proposed rule contemplates no additional mitigation 
measures to minimize harm to the environment and ``rejects outright any 
mitigation measures such as time-area restrictions to protect the high 
value habitats for marine mammals that are present in the PMSR [Study 
Area]''. Of particular concern to NRDC is habitat for endangered blue 
whale, fin whale, and

[[Page 40912]]

humpback whale, as well as the gray whale, which is currently 
undergoing an Unusual Mortality Event (UME). The comment asserts that 
NMFS fails to require mitigation that would protect these populations 
and high-value habitats from increased Navy activities that contribute 
to acoustic harm and ship-strike risk.
    Response: NMFS has addressed this comment regarding high-value 
habitats for blue, fin, gray, and humpback whales as it relates to 
biologically important areas in responses to Comments 24 through 26, 
below. NMFS has also addressed any risk from vessel strike in response 
to Comment 27, below. The proposed and final rules do include time/area 
restriction on SNI, where target and missile launches would be 
scheduled to avoid peak pinniped pupping periods between January and 
July, to the maximum extent practicable.
    Comment 23: The NRDC commented that NMFS must conduct its own 
analysis and clearly articulate it, and asserted that NMFS parrots the 
Navy's position on mitigation, accepting, without any meaningful 
evaluation of its own, the Navy's assertions of impracticability. The 
NRDC cites the outcome of Conservation Council v. NMFS, 97 F. Supp. 3d 
1210 (D. Haw. 2015), in which the parties were able to reach a 
settlement agreement establishing time-area management measures on the 
Navy's HSTT Study Area notwithstanding NMFS' finding, following the 
Navy, that all such management measures would substantially affect 
military readiness and were not practicable. NRDC states that NMFS is 
simply accepting what the Navy says without conducting its own 
analysis. NRDC cites Conservation Council in stating that ``if time/
area restrictions are practicable and NMFS chooses not to impose them'' 
then the agency must consider ``measures of equivalent effect'' to 
minimize injury to marine mammals. 97 F.Supp.3d at 1231.
    Response: First, the commenter's reference to mitigation measures 
implemented pursuant to a prior settlement agreement is entirely 
inapplicable to a discussion of NMFS' responsibility to ensure the 
least practicable adverse impact under the MMPA. Specifically, for 
those areas that were previously covered under the 2015 settlement 
agreement for the HSTT Study Area, it is essential to understand that: 
(1) the measures were developed during negotiations with the plaintiffs 
and were not evaluated during those negotiations under NMFS' least 
practicable adverse impact mitigation assessment, and (2) the Navy's 
agreement to restrictions on its activities as part of a relatively 
short-term settlement (which did not extend beyond the expiration of 
the 2013 regulations) did not mean that those restrictions were 
practicable to implement over the longer term.
    Regarding the remainder of the comments, NMFS disagrees with much 
of what the commenter asserts. First, we have carefully explained our 
interpretation of the least practicable adverse impact standard and how 
it applies to both stocks and individuals and habitat, in the proposed 
and final rule where we refer the reader to the NWTT Study Area rule 
(85 FR 72312; November 12, 2020) for further explanation of our 
interpretation of least practicable adverse impact, and what 
distinguishes it from the negligible impact standard.
    Furthermore, we have applied the standard correctly in this rule in 
requiring measures that reduce impacts to individual marine mammals in 
a manner that reduces the probability and/or severity of population-
level impacts.
    NMFS agrees that we must conduct our own analysis, which we have 
done here, and not just accept what is provided by the Navy. That does 
not mean, however, that NMFS should not review the Navy's analysis of 
effectiveness and practicability of its proposed mitigation measures, 
which by regulation the Navy was required to submit with its 
application, and concur with those aspects of the Navy's analysis with 
which NMFS agrees. NMFS has described our process for identifying the 
measures needed to meet the least practicable adverse impact standard 
in the Mitigation Measures section in this final rule, and we have 
followed the approach described there when analyzing potential 
mitigation for the Navy's activities in the PMSR Study Area. Responses 
to specific recommendations for mitigation measures provided by the 
commenters are discussed separately.
    Comment 24: NRDC comments that NMFS has identified seven 
Biologically Important Areas (BIAs) located within the PMSR Study Area 
that provide important habitats for endangered and vulnerable marine 
mammal species. NMFS and its experts identified their BIAs for the west 
coast in areas with consistently high sighting concentrations, using 
data from years of coastal small-boat surveys that were designed to 
maximize encounters with target species, as well as from other sources. 
The nine BIAs for blue whales represent only 2 percent of U.S. waters 
in the West Coast region but encompass 87 percent of documented 
sightings; similarly, the seven BIAs for humpback whales represent 3 
percent of U.S. waters in the West Coast region, but encompass 89 
percent of documented sightings. NRDC asserts that the proposed rule 
concurs with the Navy's assessment that any geographic mitigation 
measures, including within the BIAs that occur in the PMSR Study Area, 
would have ``significant direct negative effects on mission 
effectiveness'' and are thus considered impractical (86 FR 37823; July 
16, 2021). NRDC states that by the Navy's own admission, testing and 
training activities have historically not taken place in five out of 
seven of the BIAs in the PMSR Study Area, and the Navy has no current 
plans to use these areas for activities involving explosives or 
ordnance. NRDC disagrees with NMFS' determination that time-area 
closures in at least the five BIAs where the Navy has no current plans 
for testing and training are impracticable. NRDC states the proposed 
rule fails to discuss why such mitigation is impracticable, beyond a 
simple adoption of the Navy's assessment, or consider measures ``of 
equivalent effect,'' in violation of the least practicable adverse 
impact standard per Conservation Council, 97 F.Supp.3d at 1231.
    Response: NMFS evaluated the potential effectiveness and 
practicability of geographic mitigation. Specifically, we reviewed the 
Navy's analysis in Chapter 5 (Standard Operating Procedures and 
Mitigation) of the 2022 PMSR FEIS/OEIS (including section 5.3.6.2 on 
Geographic Mitigation), which considers and discusses the same factors 
that NMFS considers to satisfy the least practicable adverse impact 
standard (including practicability), and we concur with the analysis 
and conclusions. Chapter 5 (Standard Operating Procedures and 
Mitigation) Section 5.3.6.2 (Geographic Mitigation) of the 2022 PMSR 
FEIS/OEIS includes a detailed discussion of time-area management 
considerations for blue whale, humpback whale, and gray whale. Chapter 
5 of the 2022 PMSR FEIS/OEIS discusses and reflects the integration of 
standard operating procedures and mitigation measures along with 
consideration of 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 
or the public, through scoping or public comment on environmental 
compliance documents. Also described in Chapter 5 (Standing Operating 
Procedures and

[[Page 40913]]

Mitigation) of the 2022 PMSR FEIS/OEIS, it has been recommended that 
the Navy reinclude area restrictions. Some of these mitigation measures 
could potentially reduce the number of marine mammals taken, via direct 
reduction of the activities or amounts. However, as described in 
Chapter 5 of the 2022 PMSR FEIS/OEIS, the Navy needs to train and test 
in the conditions in which it conducts warfare, 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. 
The mitigation required from the Navy as described in this final rule 
and the 2022 PMSR FSEIS/OEIS represents the least practicable adverse 
impact, as described further below. Any further mitigation, including 
entirely prohibiting training or testing activities or time/area 
restriction within the BIAs as discussed above, is impracticable due to 
implications for safety, sustainability, and mission requirements for 
the reasons described in Chapter 5 (Standard Operating Procedures and 
Mitigation) of the 2022 PMSR FSEIS/OEIS.
    In this rule, we have required time-area mitigation on SNI for 
hauled out pinnipeds during the pupping season based on a combination 
of factors that include higher densities and observations of specific 
important behaviors of marine mammals themselves, and in areas that 
clearly reflect preferred habitat. In addition to being delineated 
based on physical features that drive habitat function, the high 
densities and concentration of certain important behaviors (e.g., 
breeding, resting) in these particular areas clearly indicate the 
presence of preferred habitat.
    As described in our description of how we implement the least 
practicable adverse impact standard, we consider the degree to which 
the successful implementation of a potential measure is expected to 
reduce adverse impacts to marine mammal species or stocks and their 
habitat (to include consideration of the nature and scope of the 
anticipated impacts in the absence of the mitigation) and the 
practicability of applicant implementation. To begin, as described in 
the Estimated Take of Marine Mammals section of this final rule, 
predicted impacts to, and total authorized take of, humpback, blue, and 
gray whales is at a minimal level (no more than 11, 11, and 14 takes by 
level B harassment annually, respectively). Given this very limited 
number of instances of take within a year, and the fact that these 
species do not have notable site fidelity in the area beyond 
potentially staying in one area to feed for several days, there is no 
reason to think that any individual whale would be taken on more than a 
couple days within a year. As described in the Negligible Impact 
Analysis section, this low severity and magnitude of impacts is not 
expected to impact the reproduction or survival of any individuals, 
much less the species or stock. We recognize that repeated disturbances 
over longer durations have a greater chance of impacting the 
reproduction or survival of any individual marine mammals, and time/
area restrictions in biologically important areas are one of the best 
means of reducing the severity and magnitude of impacts. However, in 
situations with minimal impacts to begin with, such as one or two 
exposures/year of a handful of individuals, there is a much smaller 
margin of potential added protection/reduction of impacts. Such is the 
case here. Moreover, time-area restrictions would be less effective to 
reduce potential impacts from testing and training activities within 
the PMSR Study Area for the relatively small areas identified as BIAs, 
given the variability in the presence of marine mammals. While blue 
whales and humpback whales generally return annually to the same large-
scale regional foraging grounds that these BIAs are within, satellite 
tagging data shows these foraging grounds are large, with the locus of 
highest use shifting year to year within those regional areas (Mate et 
al. 1999; Mate et al. 2016; Mate et al. 2018a, 2018b). This is 
confirmed by surveys and studies, some of which have occurred since the 
2015 BIAs were identified, comparing inter-annual variability in 
modeled abundance and distribution (Becker et al. 2016; Becker et al. 
2018) and explained by studies documenting both shifts in the 
distribution of prey (Santora et al. 2020; Santora et al. 2017; Santora 
et al. 2011), and shifts in their foraging in response to ecosystem 
changes (Fleming et al. 2016).
    When these factors are considered in combination with the fact that 
the Navy has adequately described why these measures would not be 
practicable, NMFS concurs that the additional geographic mitigations 
are not warranted. In some cases, the Navy has noted that they have no 
current plans to conduct certain activities in certain areas. While 
these statements suggest a lower likelihood that impacts will occur in 
such an area, they do not preclude the potential for activities to 
occur in the area should the need arise in the future, nor do they 
eliminate the impracticability of associated geographic limitations.
    Comment 25: NRDC comments that NMFS should require time-area 
restrictions in at least the Point Conception/Arguello blue whale 
feeding area and the Santa Barbara Channel-San Miguel blue whale 
feeding area during the June to October season when blue whales are 
most likely to occur in concentrations in the PMSR Study Area.
    Response: First, as described in the Estimated Take of Marine 
Mammals section and the response to Comment 24, predicted impacts on 
and total take of blue whales throughout the Study Area and in any 
given year is already at a minimal level (no more than 11 takes by 
Level B harassment). Only a subset of those impacts/takes might 
reasonably be expected to fall within these blue whale BIAs randomly in 
space and in time (only a portion of the training area, and active 5 of 
12 months) and, further, when the fact that these BIAs are in an area 
of low Navy use (because of oil platforms, vessel routes to large 
ports, and other reasons) is considered, it is questionable whether any 
impacts will occur in the areas at all. Given this, and the specific 
nature of blue whale feeding in the region discussed above, time/area 
restrictions in these areas would likely afford little, if any, 
additional reduction of numbers or severity of take. When combined with 
the impracticability of implementation, NMFS concurs that these 
additional measures are not warranted. NMFS has explained that 
geographic mitigation in large whale feeding areas is impracticable due 
to implications for safety, sustainability, and mission requirements 
for the reasons described in Chapter 5 (Standard Operating Procedures 
and Mitigation) of the 2022 PMSR FSEIS/OEIS, for which NMFS is a 
cooperating agency.
    Of additional note, the Santa Barbara to San Miguel Blue Whale 
Feeding Area BIA that is within the PMSR Study Area largely overlaps 
the Channel Islands National Marine Sanctuary (CINMS) and the Channel 
Islands National Park (CINP) boundaries, which are areas where the Navy 
is not planning to conduct training and testing activities involving 
explosives, as stated in Chapter 5 (Standard Operating Procedures and 
Mitigation) of the 2022 PMSR FEIS/OEIS. Furthermore, no missiles, 
munitions, explosives, or other live testing or training would be 
conducted within the CINMS boundaries, as stated in Chapter 6 (Other 
Regulatory Considerations) of the

[[Page 40914]]

2022 PMSR FEIS/OEIS. In addition, the Navy is not proposing the use of 
remotely operated vehicles, unmanned underwater vehicles, or bottom 
crawlers as part of this 2022 PMSR FEIS/OEIS's action. Surface targets 
may be towed or operated under their own power as they transit through 
the CINMS to the PMSR Study Area. The Navy's standard operating 
procedures for vessel transits would minimize impacts to sanctuary 
resources, including large whales. Specifically, the Navy will 
implement Large Whale Awareness Notification Messages through which the 
Navy will issue a seasonal awareness notification message to alert 
ships and aircraft operating in the area to the possible presence of 
concentrations of large whales, including blue whales (June 1 through 
October 31), gray whales (November 1 through March 31) and fin whales 
(November 1 through May 31). Any Navy activity that would occur within 
these boundaries would typically include vessels and targets transiting 
through the area to the PMSR Study Area. No explosives or gunnery 
events would occur within the Santa Barbara to San Miguel BIA or within 
the boundaries of the CINMS or Channel Islands National Park.
    Comment 26: NRDC comments that NMFS should prohibit the use of 
explosives and gunnery activities and require vessel speed restrictions 
in the Morro Bay to Point Sal feeding area and the Santa Barbara 
Channel-San Miguel feeding area in order to protect humpback whales and 
humpback whale critical habitat units of high conservation value.
    Response: First, as described in the Estimated Take of Marine 
Mammals section and the response to Comment 24, predicted impacts to, 
and total authorized take of, humpback whales throughout the Study Area 
and any given year is already at a minimal level (no more than 11 takes 
by Level B harassment). Only a subset of those impacts/takes might 
reasonably be expected to fall within the humpback whale BIAs randomly 
in space and in time (only a portion of the training area, and active a 
subset of 12 months). Given this, time/area restrictions in these areas 
would likely afford little, if any, additional reduction of number or 
severity of take. When combined with the impracticability of limiting 
explosive use in certain geographic areas, as described in sections 
5.3.6.1 and 5.3.6.2 of the point Mugu Sea Range Final EIS, which NMFS 
concurs with, NMFS has determined that these additional measures are 
not warranted.
    Regarding impacts to humpback whale critical habitat, while Navy 
activities in the PMSR could potentially kill or injure a small amount 
of krill, other crustaceans, or forage fish (e.g., sardine, anchovy), 
other prey items would likely be available to humpback whales in the 
immediate area surrounding the activity, or would return to the area 
after the activity is complete, and the impacts would not be at the 
level that it would adversely affect the availability of prey in a 
manner that might impact growth, reproduction, or survival of any 
individual humpback whales. The 2021 biological opinion concluded that 
given the frequency of the events that are part of the proposed action, 
the short duration of these events, the various mitigation measures 
(including halting of activities until marine mammals are out of the 
area and are not observed feeding), the fact that detonations are not 
proposed to occur in the water column but rather at or near (within 10 
m (11 yd) above) the surface, and the relatively large number of prey 
items available throughout the critical habitat, any impacts of 
explosives resulting from PMSR activities on prey availability for the 
humpback whales would be insignificant.
    The Navy has discussed the threat from vessel strikes (``ship 
strikes'') (see the ``General Threats'' Section 3.7.4.1.6.2, Commercial 
Industries/Vessel Strike; and Section 3.7.5.2.3, Vessels as a Strike 
Stressor of the 2022 PMSR FEIS/OEIS), and NMFS continues to concur with 
the Navy that a vessel strike is highly unlikely in the PMSR Study 
Area. There has not been any documented vessel strike in the PMSR Study 
Area. NMFS acknowledges that there have been four naval vessel strikes 
of large whales recently in the SOCAL Range Complex of the HSTT Study 
Area (two by the U.S. Navy and two by the Australian Navy) as discussed 
in the Vessel Strike section of this final rule. Overall, activities 
involving Navy vessel movement in the PMSR Study Area are variable in 
duration (i.e., hours to days), would be widely dispersed throughout 
the action area, and occur intermittently. Average military vessel 
speed for the PMSR Study Area is approximately 10.6 knots (19.6 km/
hour) for the types of vessels typically involved in PMSR activities 
(Mintz, 2016). In comparison to the SOCAL Range Complex, the estimated 
number of annual at-sea days in the PMSR Study Area is less than 3 
percent of what occurs in the SOCAL Range Complex annually. 
Accordingly, given the description of the specified activities, the 
requirements of Navy vessels to travel at safe speeds, and the vessel 
movement mitigation already in place to reduce the likelihood of 
strikes, NMFS has determined vessel speed restrictions would not 
appreciably reduce the likely severity/magnitude of expected impacts; 
and it is not practicable to impose vessel speed restrictions because 
of the Navy's testing and training needs, as described in the Navy's 
Point Mugu Sea Range EIS, which NMFS reviewed and concurs with. Also, 
see the response to Comment 27 below.
    Comment 27: The commenter states that NMFS should require time-area 
and vessel speed restrictions in waters between the 200 m (219 yd) and 
1,000 m (1,093 yd) isobaths to reduce ship-strike risks for fin whales 
during the months of November through February, when the whales 
aggregate in the area. Over the last decade, the Navy has reported two 
ship-strikes of fin whales in waters adjacent to the PMSR Study Area; 
and in May 2021, an Australian destroyer struck and killed two fin 
whales; these strikes were discovered only when the ship berthed in 
Naval Base San Diego. The comment states that this demonstrates that--
just as with large commercial ships and other vessel classes--military 
vessels do pose ship-strike risks to whales beyond what reporting may 
indicate. The comment states that, although Navy reports of ship 
strikes are rare, if the whales weren't stuck to the bow (which seldom 
happens), these latest strikes wouldn't have been detected or reported.
    Response: NMFS does not anticipate and has not authorized vessel 
strikes of any species, based on our analysis of the specified activity 
(volume of vessel use in the area, maneuverability of Navy ships at 
higher speeds), the history of strikes in the from these activities 
(none), and the Navy's standard operational measures (watchstanders), 
as well as those specifically targeted at reducing the likelihood of a 
strike (avoidance zones). Therefore, speed restrictions would afford 
limited additional reduction in risk, if any. In addition, it is 
impracticable.
    The main reason for ship speed reduction is to reduce the 
possibility and severity of ship strikes to large whales. However, even 
given the wide ranges of speeds from slow to fast that Navy ships must 
use to meet training and testing requirements, the Navy has a very low 
strike history worldwide and in Southern California, and no history of 
strikes in the PMSR Study Area. Current Navy Standard Operating 
Procedures and mitigations require a minimum of at least one Lookout on 
duty while underway (in addition to bridge watch personnel) and, so 
long as safety of navigation is maintained, to keep 500

[[Page 40915]]

yards away from large whales and 200 yards away from other marine 
mammals (except for bow-riding dolphins and pinnipeds hauled out on 
shore or man-made navigational structures, port structures, and 
vessels). The most recent model estimate of the potential for civilian 
ship strike risk to blue, humpback, and fin whales off the coast of 
California found the highest risk near San Francisco and Long Beach 
associated with commercial ship routes to and from those ports 
(Rockwood et al. 2017).
    Previously, the Navy commissioned a vessel density and speed report 
based on an analysis of Navy ship traffic in the HSTT Study Area 
between 2011 and 2015. Median speed of all Navy vessels within the HSTT 
and PMSR Study Areas is typically already low, with median speeds 
between 5 and 12 knots. Furthermore, the presence and transits of 
commercial and recreational vessels, annually numbering in the 
thousands, pose a more significant risk to large whales than does the 
presence of Navy vessels. The Vessel Strike subsection of the Potential 
Effects of Specified Activities on Marine Mammals and their Habitat 
section of this final rule and the 2022 PMSR FEIS/OEIS Chapter 3 
(Affected Environment and Environmental Consequences) Section 3.0.5.8.1 
(Vessels), Chapter 5 (Standard Operating Procedures and Mitigation) 
Section 5.1.1.2 (Vessel Safety), and Appendix D (Military Expended 
Material and Direct Strike Impact Analyses) Section D.3 (Direct Vessel 
Strike With Marine Mammals) explain the important differences between 
most Navy vessels and their operation and commercial ships that make 
Navy vessels much less likely to strike a whale.
    When developing Phase III mitigation measures, the Navy analyzed 
the potential for implementing additional types of mitigation, such as 
vessel speed restrictions within the PMSR Study Area. The Navy 
determined that, based on how the training and testing activities will 
be conducted within the PMSR Study Area, vessel speed restrictions 
would be incompatible with practicability criteria for safety, 
sustainability, and training and testing missions, as described in 
Chapter 3 (Affected Environment and Environmental Consequences) Section 
3.0.5.8.1 (Vessels), Chapter 5 (Standard Operating Procedures and 
Mitigation) Section 5.1.1.2 (Vessel Safety) of the 2022 PMSR FEIS/OEIS. 
NMFS fully reviewed this analysis and concurs with the Navy's 
conclusions. The Navy is unable to impose a 10-kn ship speed limit 
because it would not be practical to implement and would impact the 
effectiveness of Navy's activities by putting constraints on training, 
testing, and scheduling. The Navy requires flexibility in use of 
variable ship speeds for training, testing, operational, safety, and 
engineering qualification requirements. Navy ships typically use the 
lowest practical speed given individual mission needs. NMFS has 
reviewed the Navy's analysis of these additional restrictions and the 
impacts they would have on military readiness and concurs they are not 
practicable.
    The Navy has discussed the threat from vessel strikes (``ship 
strikes'') (see the ``General Threats'' Section 3.7.4.1.6.2, Commercial 
Industries/Vessel Strike; and Section 3.7.5.2.3, Vessels as a Strike 
Stressor, and Appendix D (Military Expended Material and Direct Strike 
Impact Analyses) Section D.3 (Direct Vessel Strike With Marine Mammals) 
of the 2022 PMSR FEIS/OEIS), and NMFS continues to concur that there is 
a very low likelihood of vessel strike in the PMSR Study Area. There 
has not been any documented vessel strike in the PMSR Study Area. NMFS 
acknowledges that there have been four vessel strikes of large whales 
recently in the SOCAL Range Complex of the HSTT Study Area, as 
discussed in the Vessel Strike section of this final rule. Overall, 
activities involving Navy vessel movement in the PMSR Study Area are 
variable in duration (i.e., hours to days), would be widely dispersed 
throughout the action area, and occur intermittently and in much lower 
volume than in the HSTT Study Area. Average military vessel speed for 
the PMSR Study Area is approximately 10.6 knots (19.6 km/hour) for the 
types of vessels typically involved in PMSR activities (Mintz, 2016). 
In comparison to the SOCAL Range Complex, the estimated number of 
annual at-sea days in the PMSR Study Area is less than 3 percent of 
what occurs in the SOCAL Range Complex annually.
    Comment 28: NRDC comments that the California gray whale is 
presently experiencing a major UME and as of August 5, 2021, the total 
number of strandings across the whales' range was 487 animals. NRDC 
states that it is well established that animals already exposed to one 
stressor may be less capable of responding successfully to another; 
that stressors can combine to produce adverse synergistic effects; and 
that NMFS should require time-area restrictions within the active 
migration areas that bisect the PMSR Study Area to avoid unnecessary 
harm to this population.
    Response: As of April 1, 2022, the gray whale UME was 531 whales 
total from the United States, Canada, and Mexico. (The UME total for 
California (2019-2021) is 72 whales.) Full or partial necropsy 
examinations were conducted on a subset of the whales. Preliminary 
findings in several of the whales have shown evidence of emaciation. 
While it is true that animals already exposed to one stressor may, in 
some cases, be less capable of responding successfully to another, as 
described in the Estimated Take section, very few gray whales are 
predicted to be exposed to Navy stressors. Take of gray whales is 
already at a minimal number and level (no more than 14 takes by Level B 
harassment annually). In the PMSR Study Area or nearby vicinity, there 
are no known or otherwise identified gray whale feeding areas. The 
nearest gray whale feeding BIA is located well to the north off Point 
St. George in Northern California (Calambokidis et al. 2015). There are 
four gray whale migration BIAs that overlap with the PMSR Study Area. 
The Navy has considered the potential disruption of gray whale 
migration as presented in the Behavioral Reactions to Impulse Noise 
section in the 2022 PMSR FEIS/OEIS; behavioral reactions from 
mysticetes, if they occur at all, are likely to be short term and of 
little to no consequence. Based on the best available science and the 
prior findings from NMFS, Navy activities should have little if any on 
gray whale migration behavior, with no anticipated effect on 
reproduction or survival from Level B harassment (see 85 FR 41780; July 
10, 2020, 83 FR 66846; December 27, 2018, 80 FR 73556; November 24, 
2015, and NMFS (2018b)). In short, the activities in the PMSR Study 
Area are not anticipated to have an effect on the reproduction or 
survival of any gray whales. For these reasons, and in consideration of 
the impracticability of requiring additional time/area restrictions as 
described in Chapter 5 (Standard Operating Procedures and Mitigation) 
of the 2022 PMSR FEIS/OEIS, NMFS has not adopted the commenter's 
recommendation.
    Comment 29: The Commission states that the Navy did not identify 
and NMFS did not propose any geographic mitigation areas where certain 
activities would be restricted during specific timeframes. The Navy and 
NMFS included basic information regarding certain BIAs in the LOA 
application and preamble to the proposed rule, and the Navy mentioned 
the SNI mitigation area that was included in the HSTT final rule (83 FR 
66956; December 27, 2018) in the

[[Page 40916]]

LOA application. The Commission states that the analysis is 
insufficient. The Commission understands that the training and testing 
activities that would occur in the PMSR Study Area involve only 
explosives and at a much-reduced tempo than those in the HSTT Study 
Area.
    The Commission states that NMFS restricted the Navy from using 
explosives (including various types of gunnery rounds, bombs, rockets, 
and missiles) at any time of the year in the Santa Barbara Island 
Mitigation Area to protect blue and gray whales and other species under 
the HSTT final rule (50 CFR 218.74), but that mitigation area was not 
mentioned by NMFS in the preamble to the proposed rule, nor was 
justification for its exclusion provided. For humpback whales, NMFS 
mentioned the Morro Bay to Point Sal and the Santa Barbara Channel-San 
Miguel Feeding Areas in regard to its negligible impact determination 
but not in regard to whether inclusion of the areas as mitigation areas 
was practicable or warranted under the least practicable adverse impact 
requirement of the MMPA (86 FR 37839; July 16, 2021). Instead, NMFS 
indicated that the Navy's explosive training and testing activities 
could occur year round within the PMSR Study Area, although they 
generally would not occur in those relatively nearshore feeding areas, 
because both areas are close to the northern Channel Islands National 
Marine Sanctuary, oil production platforms, and major vessel routes 
leading to and from the ports of Los Angeles and Long Beach (86 FR 
37839; July 16, 2021). NMFS further stated that, even if some small 
number of humpback whale takes occurred in these BIAs and feeding 
behavior was disrupted, the short-term nature of the anticipated takes 
from these activities, combined with the likelihood that they would not 
occur on more than one day for any individual within a year, means that 
they are not expected to impact the reproduction or survival of any 
individuals (86 FR 37839; July 16, 2021). None of that justification is 
related to the practicability of implementing mitigation measures. 
Furthermore, NMFS has no basis for stating that takes to individuals 
would not occur on more than one day, particularly in known feeding 
areas.
    Response: Please see responses to comments 23 through 26 and 30 for 
our responses regarding geographic mitigation areas.
    Comment 30: The Commission also comments that NMFS is co-mingling 
its negligible impact determination and the least practicable adverse 
impact standard required under section 101(a)(5)(A)(i)(II)(aa) of the 
MMPA. Rather than including the necessary information in the preamble 
to the PMSR proposed rule, NMFS referred the reader to the NWTT final 
rule for its explanation of its interpretation of least practicable 
adverse impact and what distinguishes it from the negligible impact 
determination (86 FR 37822-37823; July 16, 2021). The Commission also 
states that NMFS' least practicable adverse impact analysis for the 
PMSR proposed rule is cursory at best and much less detailed than even 
the one previously provided in the preamble to the NWTT proposed rule 
(85 FR 33987-33991; June 2, 2020), on which the Commission had 
extensive comments. As such, the Commission recommends that NMFS 
clearly separate its application of the least practicable adverse 
impact requirement from its negligible impact determination--both 
analyses must be included in all preambles to a proposed and final rule 
for the subject activities, not for previously authorized and unrelated 
activities. The Commission also recommends that NMFS follow an analysis 
framework consisting of three elements to (1) determine whether the 
impacts of the proposed activities are negligible at the species or 
stock level, (2) if so, determine whether some of those impacts 
nevertheless are adverse either to marine mammal species or stocks or 
to key marine mammal habitat, and (3) if so, determine whether it is 
practicable for the applicant to reduce or eliminate those impacts 
through modifying those activities or by other means (e.g., requiring 
additional mitigation measures to be implemented). If NMFS is using 
some other legal standard to implement the least practicable adverse 
impact requirement, then the Commission further recommends that NMFS 
provide a clear and concise description of that standard and explain 
why it believes it to be sufficient to meet the statutory legal 
requirements.
    Response: NMFS is not co-mingling its negligible impact 
determination and the least practicable adverse impact standard 
required under section 101(a)(5)(A)(i)(II)(aa) of the MMPA. The 
relevant standards and analyses are articulated separately in separate 
sections of both the proposed and final rules and in our responses to 
public comments. In the proposed rule, we referred the reader to the 
Navy's Northwest Training and Testing (NWTT) rule (85 FR 72312; 
November 12, 2020) for a more detailed explanation of our 
interpretation of least practicable adverse impact and what 
distinguishes it from the negligible impact standard. We have included 
the full interpretation of the least practicable adverse impact in the 
Mitigation Measures section of this final rule.
    Comment 31: The Commission comments that in regards to mitigation 
areas, NMFS did not justify why the humpback, blue and gray whale BIAs 
were impracticable to implement and that NMFS' discussion of those 
areas leads one to believe that the Navy generally does not conduct its 
activities in those areas, or in the Santa Barbara Island Mitigation 
Area from the HSTT final rule. The Commission states that as such, 
limiting explosive activities to avoid unintentionally injuring or 
killing a large whale and restricting activities in an area where the 
Navy generally does not train would meet both tenets of the least 
practicable adverse impact requirement. That is, implementation of the 
measure would reduce the adverse impact of either killing or injuring 
an animal and implementing such a measure is practicable. The 
Commission recommends that, at a minimum, NMFS restrict the Navy from 
conducting explosive activities in (1) the Morro Bay to Point Sal 
Humpback Whale Feeding Area from April to November and the Santa 
Barbara Channel-San Miguel Humpback Whale Feeding Area from March to 
September, (2) the Point Conception/Arguello to Point Sal Blue Whale 
Feeding Area and the Santa Barbara Channel and San Miguel Feeding Areas 
from June to October, and (3) the SBI Mitigation Area in the PMSR final 
rule. The Commission further recommends that NMFS include in the 
preamble to the final rule justification regarding why the various Gray 
Whale Migration Areas were not included as mitigation areas in the 
final rule.
    Response: Please see our responses to comments 23 through 26 for 
relevant responses regarding geographic mitigation areas related to 
BIAs for large whales, as well as the specific points raised related to 
areas of low use.
    Comment 32: The Commission comments that NMFS' analyses regarding 
the marine mammal habitat component of the least practicable adverse 
impact requirement were incorrect. For the proposed rule for the PMSR 
Study Area, NMFS indicated that the Navy agreed to implement procedural 
mitigation measures that would reduce the probability and/or severity 
of impacts expected to result from acute exposure to explosives and 
launch activities, vessel strike, and impacts on marine mammal habitat 
(86 FR 37823; July 16, 2021). Specifically,

[[Page 40917]]

the Navy would use a combination of delayed starts and cease firing to 
avoid mortality or serious injury, minimize the likelihood or severity 
of PTS or other injury, and reduce instances of TTS or more severe 
behavioral disruption caused by explosives and launch activities (86 FR 
37823; July 16, 2021). The Commission states that all of those 
procedural mitigation measures are intended to protect the animal, not 
its habitat, whereas mitigation areas are intended to protect the 
habitat as well as the animal. Similarly, all the aforementioned 
impacts are related to the species or stock, not the habitat. The 
Commission again recommends that NMFS (1) adopt a clear decision-making 
framework that distinguishes between the species and stock component 
and the marine mammal habitat components of the least practicable 
adverse impact requirement and (2) always consider whether there are 
potentially adverse impacts on marine mammal habitat and whether it is 
practicable to minimize them.
    Response: NMFS' decision-making framework for applying the least 
practicable adverse impact standard clearly recognizes the habitat 
component of the provision (see the Mitigation Measures section of this 
final rule). NMFS does consider whether there are adverse impacts on 
habitat and how they can be mitigated. 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 required time-area mitigation 
measures for pinnipeds (e.g., target and missile launches shall be 
scheduled to avoid peak pinniped pupping periods between January and 
July, to the maximum extent practicable on SNI). These are based on 
protecting specific important behaviors of marine mammal species 
themselves, but also reflect preferred habitat (e.g., pinniped 
rookeries and haulout habitat on SNI). In addition to being delineated 
based on physical features that drive habitat function, important 
behaviors (e.g., reproduction, feeding, resting) in these particular 
areas clearly indicate the presence of preferred habitat. The MMPA does 
not specify that effects to habitat must be mitigated in separate 
measures, and NMFS has clearly included measures that provide reduction 
of impacts to both marine mammal species or stocks and their habitat, 
as required by the statute.
    Comment 33: The Commission comments that NMFS specified that, to 
determine whether a mitigation measure meets the least practicable 
adverse impact standard, the effectiveness of such a measure is 
considered (proposed rule for PMSR Study Area, 86 FR 37790; July 16, 
2021). However, the Commission states, NMFS did not mention mitigation 
effectiveness in the preamble to the proposed rule for the PMSR Study 
Area; rather NMFS repeatedly mentioned mission effectiveness, which 
also is a consideration regarding the practicability of mitigation 
measure implementation. The Commission recommends that NMFS evaluate 
whether in fact the mitigation measures would be effective if 
implemented appropriately and ensure that its evaluation criteria for 
applying the least practicable adverse impact standard separates 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.
    Response: NMFS' application of the least practicable adverse impact 
standard is described in the Mitigation Measures section of this final 
rule (and also in the Proposed Mitigation Measures section of the 
proposed rule). This final rule requires the Navy to implement 
extensive mitigation measures to achieve the least practicable adverse 
impacts on the species and stocks of marine mammals and their habitat, 
including measures that are specific to certain times and areas. 
Mitigation measures include procedural mitigation measures, such as 
required shutdowns and delays of activities if marine mammals are 
sighted within certain distances, and limitations on activities on SNI 
such as avoiding peak pinniped pupping periods between January and 
July, to the maximum extent practicable. These mitigation measures were 
designed to lessen the frequency and severity of impacts from the 
Navy's activities on marine mammals and their habitat, and to ensure 
that the Navy's activities have the least practicable adverse impact on 
species and stocks. See the Mitigation Measures section of this final 
rule for additional detail on specific mitigation measures.
    In the Mitigation Measures section, NMFS has explained in detail 
our interpretation and application of the least practicable adverse 
impact standard, which includes consideration of the degree to which 
the successful implementation of the measure is expected to reduce 
adverse impacts on marine mammal species stock and their habitat, 
consideration of the nature and scale of the impacts in the absence of 
the proposed mitigation, the likely effectiveness of the mitigation 
measures, and the practicability of mitigation. The Commission asserts 
that NMFS erroneously neglected to discuss the effectiveness of the 
mitigation. NMFS includes a discussion of the expected benefits of the 
required mitigation in the Mitigation section. However, if a measure is 
practicable and is expected to reduce impacts to marine mammals, and 
included as a required measure, there is no need in the context of the 
least practicable adverse impact determination to discuss its precise 
anticipated effectiveness. Similarly, in the context of a potential 
additional recommended mitigation, the consideration of the likely 
reduction of impacts that will be accomplished assuming the mitigation 
is 100 percent effective and the practicability of the measures results 
in a determination that the mitigation is not warranted, then there is 
no reason to evaluate the likely effectiveness of the measure, as any 
reduction below 100 percent would make the measure further unwarranted. 
The likely effectiveness of a mitigation measure is considered when it 
is necessary to inform the least practicable adverse impacts analysis.

Monitoring and Reporting Measures (Launch Activities)

    Comment 34: The Commission comments that in previous incidental 
harassment authorizations for launch activities at SNI, the Navy was 
required to use forward-looking infrared (FLIR) video cameras to 
maximize viewing ability in low-light conditions. That information was 
not specified in the preamble to the proposed rule or the proposed rule 
itself. The Commission recommends that, at a minimum, NMFS specify in 
any issued LOA that the Navy must use FLIR video cameras in low-light 
conditions.
    Response: The Navy is using multiple methods to survey pinnipeds 
during target and missile launch events. Multiple surveys will occur 
during the year that record the species, number of animals, general 
behavior, presence of pups, age class, gender and reactions to launch 
noise or other natural or human caused disturbances, in addition to 
environmental conditions that may include tide, wind speed, air 
temperature, and swell. In addition, video and acoustic monitoring (and 
time-lapse photography) of up to three pinniped haulout areas and 
rookeries will be conducted during launch events that include missiles 
or targets that have not been previously monitored using video and 
acoustic recorders for at least three launch events. NMFS added that 
video monitoring cameras would be either high-definition video cameras 
or

[[Page 40918]]

Forward-Looking Infrared Radiometer (FLIR) thermal imaging cameras for 
night launch events to the Required Monitoring on SNI section of the 
preamble and the regulatory text of this final rule and to the LOA, as 
this was accidentally omitted from the proposed rule.
    Comment 35: The Commission comments that the Navy's draft 
notification and reporting plan for injured and stranded marine mammals 
included provisions for reporting dead-stranded and live-stranded 
animals and vessel strikes to NMFS. The plan is nearly identical to 
other plans issued under the Phase III rulemakings, which only included 
taking associated with in-water sources. Thus, the possibility that SNI 
launch activities could cause a stampede, thereby injuring or killing a 
pinniped, was inadvertently omitted. The Commission recommends that 
NMFS ensure that the final notification and reporting plan accounts for 
the possibility of pinnipeds being injured or killed due to launch 
activities at SNI and include specific details regarding those 
activities in section 2 of the plan.
    Response: What the Commission asserts is incorrect. The Navy's 
Notification and Reporting Plan for injured and stranded marine mammals 
takes into account live or dead stranded marine mammals within the 
study areas themselves or on Navy property. San Nicolas Island (SNI) is 
an extremely active breeding and haulout area for California sea lions 
and Northern elephant seals. Thousands of seals and sea lions occur on 
SNI every day. Seeing injured and dead animals on the beaches at SNI is 
not uncommon and comparable to what is observed on San Miguel Island, 
the other significant breeding and haulout island. On any given day 
there could be injured and dead pinnipeds on the beach unrelated to 
Navy activities. First year pup mortality, fishing gear entanglements, 
mating injuries and indications of disease are observed on SNI given 
the large number of animals present. Reporting all pinniped injuries 
and mortalities on SNI would be time consuming out of context with the 
Navy's permitted activities. However, any pinniped injury or mortality 
directly associated with Navy activities (such as from target and 
missile launches) is required to be reported. The Navy conducts visual 
surveys before and after the launches, and the other types of surveying 
(e.g., video) is used to help document what is occurring during the 
launches and to help document if any injuries occurred. Regarding 
stranding and mortalities unrelated to Navy activities, NMFS added to 
the Notification and Reporting Plan that the Navy is exempted from 
reporting stranded pinnipeds on rookeries (i.e., pinnipeds on SNI). 
Pinnipeds found injured or dead in the water or on the mainland would 
be handled through the existing marine mammal stranding network 
procedures. This is consistent with the HSTT Notification and Reporting 
Plan.

Changes From the Proposed Rule to the Final Rule

    Estimated annual take by Level B harassment was modified for 7 
dolphin species where the annual takes proposed were fewer than the 
species group size. In these cases, annual take by Level B harassment 
was increased to account for group size. These changes are also 
reflected in Table 21.

                          Table 8--Annual Take Changes Between Proposed and Final Rule
----------------------------------------------------------------------------------------------------------------
                                                        Proposed rule
                                                           (annual
               Species                   Group size       estimated       Final rule  (annual estimated take)
                                                            take)
----------------------------------------------------------------------------------------------------------------
Long-beaked common dolphins..........             255             119  255 (change of + 136).
Offshore stock of common bottlenose                16              11  16 (change of +5).
 dolphins.
Striped dolphins.....................              56               2  56 (change of +54).
Northern right whale dolphins........      13.41 (14)               6  14 (change of +8).
Pacific white-sided dolphins.........      25.85 (26)              21  26 (change of +5).
Risso's dolphins.....................      18.40 (19)              10  19 (change of +9).
Short-beaked common dolphins.........    161.62 (162)             170  170 (no change).
Total Additional Take by Level B       ..............  ..............  215.
 Harassment.
----------------------------------------------------------------------------------------------------------------

    Additionally, NMFS added that video monitoring cameras would be 
either high-definition video cameras or Forward-Looking Infrared 
Radiometer (FLIR) thermal imaging cameras for night launch events to 
the Required Monitoring on SNI section of the preamble and the 
regulatory text of this final rule and to the LOA. This was 
accidentally omitted from the proposed rule.

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 PMSR Study Area are presented in Table 9 
along with an abundance estimate, an associated coefficient of 
variation value, and best and minimum abundance estimates. The Navy 
anticipates the take of individuals of marine mammal species by Level A 
harassment and Level B harassment incidental to training and testing 
activities from detonations of explosives occurring at or near the 
surface and launch activities on SNI (Table 9).
    The preamble of the PMSR proposed rule included additional 
information about the species in this rule, all of which remains valid 
and applicable and is adopted by reference here and is not reprinted in 
the preamble of this final rule, including a subsection entitled Marine 
Mammal Hearing that described the importance of sound to marine mammals 
and characterized the different groups of marine mammals based on their 
hearing sensitivity. Therefore, we refer the reader to our proposed 
rule (86 FR 37790; July 16, 2021) for more information.
    Information on the status, distribution, abundance, population 
trends, habitat, and ecology of marine mammals in the PSMR Study Area 
also may be found in Section 4 of the Navy's rulemaking/LOA 
application. NMFS reviewed this information and found it to be accurate 
and complete. Additional information on the general biology and ecology 
of marine mammals is included in the 2022 PMSR FEIS/OEIS. Table 9 
incorporates data from the U.S. Pacific and the Alaska Marine Mammal 
Stock Assessment Reports (SARs; Carretta et al. 2020; Muto et al. 2020) 
and the most recent revised data in the draft SARs (see https://
www.fisheries.noaa.gov/national/marine-mammal-protection/

[[Page 40919]]

draft-marine-mammal-stock-assessment-reports). Table 9 also 
incorporates the best available science, including monitoring data from 
the Navy's marine mammal research efforts. NMFS has also reviewed new 
scientific literature since publication of the proposed rule, and 
determined that none of these nor any other new information changes our 
determination of which species have the potential to be affected by the 
Navy's activities or the information pertinent to status, distribution, 
abundance, population trends, habitat, or ecology of the species in 
this final rulemaking.

Species Not Included in the Analysis

    The species carried forward for analysis (and described in Table 9) 
are those likely to be found in the PMSR Study Area based on the most 
recent data available, and do not include species that may have once 
inhabited or transited the area but have not been sighted in recent 
years (e.g., species which were extirpated from factors such as 19th 
and 20th century commercial exploitation). Several species that may be 
present in the northwest Pacific Ocean have a low probability of 
presence in the PMSR Study Area. These species are considered 
extralimital (not anticipated to occur in the PMSR Study Area) or rare 
(occur in the PMSR Study Area sporadically, but sightings are rare). 
Species unlikely to be present in the PMSR Study Area or that are rare 
include the North Pacific right whale (Eubalaena japonica), rough-
toothed dolphin (Steno bredanensis), and Steller sea lion (Eumetopias 
jubatus), and these species have all been excluded from subsequent 
analysis for the reasons described below. There have been only four 
sightings, each of a single Northern Pacific right whale, in Southern 
California waters over approximately the last 30 years (in 1988, 1990, 
1992, and 2017) (Brownell et al. 2001; Carretta et al. 1994; National 
Marine Fisheries Service, 2017b; WorldNow, 2017). Sightings off 
California are rare, and historically, even during the period of U.S. 
West Coast whaling through the 1800s, right whales were considered 
uncommon to rare off California (Reeves and Smith, 2010; Scammon, 
1874). The range of the rough-toothed dolphin is known to occasionally 
include the Southern California coast during periods of warmer ocean 
temperatures, but there is no recognized stock for the U.S. West Coast 
(Carretta et al. 2019c). Several strandings were documented for this 
species in central and Southern California between 1977 and 2002 
(Zagzebski et al. 2006), but this species has not been observed during 
seven systematic ship surveys from 1991 to 2014 off the U.S. West Coast 
(Barlow, 2016). During 16 quarterly ship surveys off Southern 
California from 2004 to 2008, there was one encounter with a group of 
nine rough-toothed dolphins, which was considered an extralimital 
occurrence (Douglas et al. 2014). Steller sea lions range along the 
north Pacific from northern Japan to California (Perrin et al. 2009b), 
with centers of abundance and distribution in the Gulf of Alaska and 
Aleutian Islands (Muto et al. 2019). San Miguel Island and Santa Rosa 
Island were, in the past, the southernmost rookeries and haulouts for 
the Steller sea lions, but their range contracted northward in the 20th 
century, and now A[ntilde]o Nuevo Island off central California is 
currently the southernmost rookery (Muto et al. 2019; NMFS, 2008; 
Pitcher et al. 2007). Steller sea lions pups were known to be born at 
San Miguel Island up until 1981 (NMFS, 2008; Pitcher et al. 2007), and 
so, as the population continues to increase, it is anticipated that the 
Steller sea lions may re-establish a breeding colony on San Miguel 
Island in the future. In the Channel Islands and vicinity, despite the 
species' general absence from the area, a consistent but small number 
of Steller sea lions (one to two individuals at a time) have been 
sighted in recent years. Aerial surveys for pinnipeds in the Channel 
Islands from 2011 to 2015 encountered a single Steller sea lion at SNI 
in 2013 (Lowry et al. 2017). NMFS agrees with the Navy's assessment 
that these species are unlikely to occur in the PMSR Study Area and 
they are not discussed further.
    Southern sea otter (Enhydra lutris neris) occurs nearshore off the 
coast of central California, ranging from Half Moon Bay in the north to 
Point Conception and at SNI (Tinker et al. 2006; Tinker and Hatfield, 
2016; U.S. Geological Survey, 2014). Southern sea otters are managed by 
the U.S. Fish and Wildlife Service and therefore are not discussed 
further.

                                              Table 9--Marine Mammal Occurrence Within the PMSR Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Status                                                 Annual
                                                                       --------------------------------------  Stock abundance            mortalities or
          Common name              Scientific name         Stock                                               (CV)/N min; most  PBR \3\      serious
                                         \1\                                   MMPA            Endangered      recent abundance            injuries (M/
                                                                                           Species Act (ESA)      survey \2\                  SI) \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.....................  Balaenoptera        Eastern North      Depleted.........  Endangered.......  1,898 (0.085)/         4.1          >=19.4
                                  musculus.           Pacific.                                                 1,767; 2018.
Bryde's whale..................  Balaenoptera        Eastern Tropical   .................  .................  unk; na..........      unk             unk
                                  brydei/edeni.       Pacific.
Fin whale......................  Balaenoptera        California,        Depleted.........  Endangered.......  11,065 (0.405)/         80          >=43.7
                                  physalus.           Oregon, and                                              7,9700; 2018.
                                                      Washington.
Gray whale.....................  Eschrichtius        Eastern North      .................  .................  26,960 (0.05)/         801             139
                                  robustus.           Pacific.                                                 25,849; 2016.
                                                     Western North      Depleted.........  Endangered.......  290 (na)/271;         0.12             unk
                                                      Pacific.                                                 2016.
Humpback whale.................  Megaptera           California,        Depleted.........  Threatened/        4,973 (0.048)/        28.7          >=48.6
                                  novaeangliae.       Oregon,                               Endangered \1\.    4,776; 2018.
                                                      Washington.
Minke whale....................  Balaenoptera        California,        .................  .................  915 (0.792)/509;       4.1          >=0.59
                                  acutorostrata.      Oregon, and                                              2018.
                                                      Washington.
Sei whale......................  Balaenoptera        Eastern North      Depleted.........  Endangered.......  519 (0.4)/374;        0.75           >=0.2
                                  borealis.           Pacific.                                                 2014.
Baird's beaked whale...........  Berardius bairdii.  California,        .................  .................  1,363 (0.533)/         8.9            >0.8
                                                      Oregon, and                                              894; 2018.
                                                      Washington.
Common Bottlenose dolphin......  Tursiops truncatus  California         .................  .................  453 (0.06)/346;        2.7           >=2.0
                                                      Coastal.                                                 2011.
                                                     California,        .................  .................  3,477 (0.696)/        19.7            0.82
                                                      Oregon, and                                              2,048; 2018.
                                                      Washington
                                                      Offshore.
Cuvier's beaked whale..........  Ziphius             California,        .................  .................  3,274 (0.67)/           21            <0.1
                                  cavirostris.        Oregon, and                                              2,059; 2014.
                                                      Washington.
Dall's porpoise................  Phocoenoides dalli  California,        .................  .................  16,498 (0.608)/         99            0.66
                                                      Oregon, and                                              10,286; 2018.
                                                      Washington.

[[Page 40920]]

 
Dwarf sperm whale..............  Kogia sima........  California,        .................  .................  unk; 2014........      und               0
                                                      Oregon, and
                                                      Washington.
Harbor Porpoise................  Phocoena phocoena.  Morro Bay........  .................  .................  4,191 (0.56)/           65               0
                                                                                                               2,698; 2012.
Killer whale...................  Orcinus orca......  Eastern North      .................  .................  300 (0.10)/276;        2.8               0
                                                      Pacific Offshore.                                        2012.
                                                     Eastern North      .................  .................  349 na/349; 2018.      3.5             0.4
                                                      Pacific
                                                      Transient/West
                                                      Coast Transient
                                                      \5\.
Long-beaked common dolphin.....  Delphinus capensis  California.......  .................  .................  83,379 (0.216)/        668          >=29.7
                                                                                                               69,636; 2018.
Mesoplodont beaked whales \6\..  Mesoplodon spp....  California,        .................  .................  3,044 (0.54)/           20             0.1
                                                      Oregon, and                                              1,967; 2014.
                                                      Washington.
Northern right whale dolphin...  Lissodelphis        California,        .................  .................  29,285 (0.717)/        163           >=6.6
                                  borealis.           Oregon, and                                              17,024; 2018.
                                                      Washington.
Pacific white-sided dolphin....  Lagenorhynchus      California,        .................  .................  34,999 (0.222)/        279               7
                                  obliquidens.        Oregon, and                                              29,090; 2018.
                                                      Washington.
Pygmy sperm whale..............  Kogia breviceps...  California,        .................  .................  4,111 (1.12)/           19               0
                                                      Oregon, and                                              1,924; 2014.
                                                      Washington.
Risso's dolphins...............  Grampus griseus...  California,        .................  .................  6,336 (0.32)/           46           >=3.7
                                                      Oregon, and                                              4,817; 2014.
                                                      Washington.
Short-beaked common dolphin....  Delphinus delphis.  California,        .................  .................  1,056,308 (0.207)/   8,889          >=30.5
                                                      Oregon, and                                              888,971; 2018.
                                                      Washington.
Short-finned pilot whale.......  Globicephala        California,        .................  .................  836 (0.79)/466;        4.5             1.2
                                  macrorhynchus.      Oregon, and                                              2014.
                                                      Washington.
Sperm whale....................  Physeter            California,        Depleted.........  Endangered.......  1,997 (0.57)/          2.5             0.6
                                  macrocephalus.      Oregon, and                                              1,270; 2014.
                                                      Washington.
Striped dolphin................  Stenella            California,        .................  .................  29,988 (0.299)/        225           >=4.0
                                  coeruleoalba.       Oregon, and                                              23,448; 2018.
                                                      Washington.
Harbor seal....................  Phoca vitulina....  California.......  .................  .................  30,968 na/27,348;    1,641              43
                                                                                                               2012.
Northern elephant seal.........  Mirounga            California.......  .................  .................  187,386 na/          5,122            13.7
                                  angustirostris.                                                              85,369; 2013.
California sea lion............  Zalophus            U.S. Stock.......  .................  .................  257,606 na/         14,011           >=321
                                  californianus.                                                               233,515; 2014.
Northern fur seal..............  Callorhinus         California.......  .................  .................  14,050 na/7,524;       451             1.8
                                  ursinus.                                                                     2013.
Guadalupe fur seal.............  Arctocephalus       Mexico to          Depleted.........  Threatened.......  34,187 unk/          1,602           >=3.8
                                  townsendi.          California.                                              31,109; 2013.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Taxonomy follows Committee on Taxonomy (2018).
\2\ CV is coefficient of variation; N min is the minimum estimate of stock abundance. The most recent abundance survey that is reflected in the
  abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate.
\3\ PBR is the Potential biological removal, defined by 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 optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a range.
\5\ This stock is mentioned briefly in the Pacific SAR and referred to as the ``Eastern North Pacific Transient'' stock, however, the Alaska Stock
  Assessment Report contains assessments of all transient killer whale stocks in the Pacific, and the Alaska Stock Assessment Report refers to this same
  stock as the ``West Coast Transient'' stock (Muto et al. 2019).
\6\ The six Mesoplodont beaked whale species off California are M. densirostris, M. carlhubbsi, M. ginkgodens, M. perrini, M. peruvianus, M. stejnegeri.
Notes: na = not available; unk = unknown; und = undetermined or not provided in the draft 2021 SAR and 2020 SAR for the Pacific (Carretta et al. 2021)
  (Carretta et al. 2020).

    Further, after Navy completed their modeling analysis, the 
following species/stocks had zero calculated estimated takes: Bryde's 
whale (Eastern Tropical Pacific), Gray whale (Western North Pacific), 
Sei whale (Eastern North Pacific), Baird's beaked whale (California, 
Oregon, and Washington), Bottlenose dolphin (California Coastal), 
Cuvier's beaked whale (California, Oregon, and Washington), Harbor 
Porpoise (Morro Bay), Killer whale (Eastern North Pacific Offshore, 
Eastern North Pacific Transient or West Coast Transient), Mesoplodont 
spp. (California, Oregon, and Washington), Short-finned pilot whale 
(California, Oregon, and Washington), and Northern fur seal 
(California). NMFS agrees with the Navy's analysis; therefore, these 
species are excluded from further analysis.
    Below, we include additional information about the marine mammals 
in the area of the specified activities that informs our analysis, such 
as identifying known areas of important habitat or behaviors, or where 
Unusual Mortality Events (UME) have been designated.

Critical Habitat

    The statutory definition of occupied critical habitat refers to 
``physical or biological features essential to the conservation of the 
species,'' but the ESA does not specifically define or further describe 
these features. ESA-implementing regulations at 50 CFR 424.02 (as 
amended, 84 FR 45020; August 27, 2019), however, define such features 
as follows: The features that occur in specific areas and that are 
essential to support the life-history needs of the species, including 
but not limited to, water characteristics, soil type, geological 
features, sites, prey, vegetation, symbiotic species, or other 
features. A feature may be a single habitat characteristic, or a more 
complex combination of habitat characteristics. Features may include 
habitat characteristics that support ephemeral or dynamic habitat 
conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch

[[Page 40921]]

size, distribution distances, and connectivity.
    On April 21, 2021, NMFS issued a final rule to designate critical 
habitat in nearshore waters of the North Pacific Ocean for the 
endangered Central America Distinct Population Segment (DPS) and the 
threatened Mexico DPS of humpback whales (86 FR 21082; April 21, 2021). 
Critical habitat for the Central America DPS and Mexico DPS was 
established within the California Current Ecosystem (CCE) off the 
coasts of California, Oregon, and Washington, representing areas of key 
foraging habitat. Prey of sufficient quality, abundance, and 
accessibility within humpback whale feeding areas to support feeding 
and population growth is identified as an essential feature to the 
conservation of these whales. Because humpback whales only rarely feed 
on breeding grounds and during migrations, humpback whales must have 
access to adequate prey resources within their feeding areas to build 
up their fat stores and meet the nutritional and energy demands 
associated with individual survival, growth, reproduction, lactation, 
seasonal migrations, and other normal life functions. Given that each 
of three humpback whale DPSs very clearly rely on the feeding areas 
while within U.S. waters, prey has been identified as a biological 
feature that is essential to the conservation of the whales. The prey 
essential feature was specifically defined as follows: Prey species, 
primarily euphausiids and small pelagic schooling fishes of sufficient 
quality, abundance, and accessibility within humpback whale feeding 
areas to support feeding and population growth.
    NMFS considered 19 units of habitat as critical habitat for the 
listed humpback whale DPSs. There is overlap between the PMSR Study 
Area and portions of the habitat designated Units 17 and 18 (see Figure 
3.7-5 of the 2022 PMSR FEIS/OEIS) in the final critical habitat rule 
(86 FR 21082; April 21, 2021), which are described below.
    Unit 17, referred to as the ``Central California Coast Area,'' 
extends from 36[deg]00' N to a southern boundary at 34[deg]30' N. The 
nearshore boundary is defined by the 30-m isobath, and the seaward 
boundary is drawn along the 3,700-m isobath. This unit includes waters 
off of southern Monterey County, and San Luis Obispo and Santa Barbara 
Counties. Unit 17 covers 6,697 nmi\2\ (22,970 km\2\) of marine habitat. 
This unit encompasses Morro Bay to Point Sal Biologically Important 
Area (BIA; see next section) and typically supports high density 
feeding aggregations of humpback whales from April to November 
(Calambokidis et al. 2015). Based on acoustic survey data collected 
during 2004-2009, large krill hotspots, ranging from 700 km\2\ to 2,100 
km\2\ (204 nmi\2\ to 612 nmi\2\), occur off Big Sur, San Luis Obispo, 
and Point Sal (Santora et al. 2011). Hotspots with persistent, 
heightened abundance of krill were also reported in this unit in 
association with bathymetric submarine canyons (Santora et al. 2018). 
This is the northernmost portion of humpback whale critical habitat 
that overlaps with the PMSR Study Area.
    Unit 18, referred to as the ``Channel Islands Area,'' extends from 
a northern boundary at 34[deg]30' N to a boundary line that extends 
from Oxnard, CA, seaward to the 3,700-m isobath, along which the 
offshore boundary is drawn. The 50-m isobath forms the shoreward 
boundary. This unit includes waters off of Santa Barbara and Ventura 
counties. This unit covers 9,799 nmi\2\ (33,610 km\2\) of marine 
habitat. This unit encompasses the Santa Barbara Channel-San Miguel 
BIA, which supports high density feeding aggregations of humpback 
whales during March through September (Calambokidis et al. 2015). Based 
on acoustic survey data collected during 2004-2009, a krill hotspot of 
about 780 km\2\ (227 nmi\2\) has been documented off Point Conception 
(Santora et al. 2011). Some additional krill hotspots have also been 
observed in this unit in association with bathymetric submarine canyons 
(Santora et al. 2018). Coastal waters managed by the Navy, as addressed 
within the Point Mugu Integrated Natural Resources Management Plan 
(INRMP) and SNI INRMP, were not included in the designation as these 
areas were determined by NMFS to be ineligible for designation as 
critical habitat under section 4(a)(3)(B)(i) of the ESA (84 FR 54354; 
October 9, 2019).The Navy does not anticipate national security impacts 
resulting from critical habitat designation in the portion of Region/
Unit 18 that overlaps with the PMSR Study Area.

Biologically Important Areas

    Biologically Important Areas (BIAs) include areas of known 
importance for reproduction, feeding, or migration, or areas where 
small and resident populations are known to occur (Van Parijs, 2015). 
Unlike ESA critical habitat, these areas are not formally designated 
pursuant to any statute or law, but are a compilation of the best 
available science intended to inform impact and mitigation analyses. An 
interactive map of the BIAs may be found here: https://cetsound.noaa.gov/biologically-important-area-map.
    BIAs off the West Coast of the continental United States with the 
potential to overlap portions of the PMSR Study Area include the 
following feeding and migration areas for blue whales, gray whales, and 
humpback whales and are described in further detail below (Calambokidis 
et al. 2015).
    Blue Whale Feeding BIAs Three blue whale feeding BIAs overlap with 
the PMSR Study Area (see Figure 3.7-2 of the 2022 PMSR FEIS/OEIS). The 
Point Conception/Arguello to Point Sal Feeding Area and Santa Barbara 
Channel and San Miguel Feeding Area have large portions within the PMSR 
Study Area, 87 and 61 percent respectively. The San Nicolas Island 
Feeding Area is entirely within the PMSR Study Area (Calambokidis et 
al. 2015a). Feeding by blue whales occurs from June through October in 
these BIAs (Calambokidis et al. 2015a).
Gray Whale Migration BIAs
    Four gray whale migration BIAs overlap with the PMSR Study Area 
(see Figure 3.7-3 of the 2022 PMSR FEIS/OEIS). The northward migration 
of the Eastern North Pacific stock of gray whales to the feeding 
grounds in Arctic waters, Alaska, the Pacific Northwest, and Northern 
California occurs in two phases: Northbound Phase A and Northbound 
Phase B (Calambokidis et al. 2015). Northbound Phase A migration BIA 
consists mainly of adults and juveniles that lead the beginning of the 
north-bound migration from late January through July, peaking in April 
through July. Newly pregnant females go first to maximize feeding time, 
followed by adult females and males, and then juveniles (Jones and 
Swartz, 2009). The Northbound Phase B migration BIA consists primarily 
of cow-calf pairs that begin their northward migration later (March 
through July), as they remain on the reproductive grounds longer to 
allow calves to strengthen and rapidly increase in size before the 
northward migration (Jones and Swartz, 2009; Urban-Ramirez et al. 
2003). The Potential presence migration BIA (January through July; 
October through December) and the Southbound--All migration BIA 
(October through March) routes pass through the waters of the PMSR 
Study Area.
Humpback Whale Feeding BIAs
    Two humpback whale feeding areas overlap with the PMSR Study Area 
(Calambokidis et al. 2015) (see Figure 3.7-4 of the 2022 PMSR FEIS/
OEIS). These BIAs include the Morro Bay to Point Sal feeding area 
(April through November) and the Santa Barbara

[[Page 40922]]

Channel-San Miguel feeding area (March through September) (Calambokidis 
et al. 2015). The majority of these BIAs overlap with the PMSR Study 
Area (approximately 75 percent).

National Marine Sanctuaries

    Under the National Marine Sanctuaries Act (NMSA)), NOAA can 
establish as national marine sanctuaries (NMS), areas of the marine 
environment with special conservation, recreational, ecological, 
historical, cultural, archaeological, scientific, educational, or 
aesthetic qualities. Sanctuary regulations prohibit or regulate 
activities that could destroy, cause the loss of, or injure sanctuary 
resources pursuant to the regulations for that sanctuary and other 
applicable law (15 CFR part 922). NMSs are managed on a site-specific 
basis, and each sanctuary has site-specific regulations. Most, but not 
all, sanctuaries have site-specific regulatory exemptions from the 
prohibitions for certain military activities. Separately, section 
304(d) of the NMSA requires Federal agencies to consult with the Office 
of National Marine Sanctuaries whenever their activities are likely to 
destroy, cause the loss of, or injure a sanctuary resource.
    There are two NMSs managed by the Office of National Marine 
Sanctuaries within the PMSR Study Area: the Channel Islands NMS and a 
small portion of the Monterey Bay NMS. The Channel Islands NMS is an 
ecosystem-based managed sanctuary consisting of an area of 1,109 nmi\2\ 
(3,804 km\2\) around Anacapa Island, Santa Cruz Island, Santa Rosa 
Island, San Miguel Island, and Santa Barbara Island to the south. It 
encompasses sensitive habitats (e.g., kelp forest habitat, deep benthic 
habitat) and includes various shipwrecks and maritime heritage 
artifacts. The Channel Islands NMS waters and its remote, isolated 
position at the confluence of two major ocean currents support 
significant biodiversity of marine mammals, fish, and invertebrates. At 
least 33 species of cetaceans have been reported in the Channel Islands 
NMFS region with common species, including: long-beaked common dolphin, 
short-beaked common dolphin, Bottlenose dolphin, Pacific white-sided 
dolphin, Northern right whale dolphin, Risso's dolphin, California gray 
whale, Blue whale, and Humpback whale. The three species of pinnipeds 
that are commonly found throughout or in part of the Channel Islands 
NMS include: California sea lion, Northern elephant seal, and Pacific 
harbor seal. About 877 nmi\2\ (3,008 km\2\) or 79 percent of the 
Channel Island NMS, occurs within the PMSR Study Area (see Chapter 6 of 
the 2022 PMSR FEIS/OEIS and Figure 6.1-1). The Monterey Bay NMS is an 
ecosystem-based managed sanctuary consisting of an area of 4,601 nmi\2\ 
(15,781 km\2\) stretching from Marin to Cambria and extending an 
average of 30 miles from shore. The Monterey Bay NMS contains extensive 
kelp forests and one of North America's largest underwater canyons and 
closest-to-shore deep ocean environments. Its diverse marine ecosystem 
also includes rugged rocky shores, wave-swept sandy beaches and 
tranquil estuaries. These habitats support a variety of marine life, 
including 36 species of marine mammals, more than 180 species of 
seabirds and shorebirds, at least 525 species of fishes, and an 
abundance of invertebrates and algae. Of the 36 species of marine 
mammals, six are pinnipeds with California sea lions being the most 
common, and the remainder are twenty-six species of cetaceans. Only 19 
nmi\2\ (65 km\2\) or less than 1 percent of the Monterey Bay NMS, 
occurs within the PMSR Study Area (see Chapter 6 of the 2022 PMSR FEIS/
OEIS and Figure 6.1-1).

Unusual Mortality Events (UMEs)

    An UME is defined under Section 410(6) of the MMPA as a stranding 
that is unexpected; it involves a significant die-off of any marine 
mammal population, and demands immediate response. From 1991 to the 
present, there have been 14 formally recognized UMEs affecting marine 
mammals in California and involving species under NMFS' jurisdiction. 
Three UMEs with ongoing or recently closed investigations in the PMSR 
Study Area that inform our analysis are discussed below. The California 
sea lion and the Guadalupe fur seal UMEs are now closed. The gray whale 
UME along the west coast of North America are active and involve 
ongoing investigations.
California Sea Lion UME
    From January 2013 through September 2016, a greater than expected 
number of young malnourished California sea lions (Zalophus 
californianus) stranded along the coast of California. Sea lions 
stranding from an early age (6-8 months old) through 2 years of age 
(hereafter referred to as juveniles) were consistently underweight 
without other disease processes detected. Of the 8,122 stranded 
juveniles attributed to the UME, 93 percent stranded alive (n=7,587, 
with 3,418 of these released after rehabilitation) and 7 percent 
(n=531) stranded dead. Several factors are hypothesized to have 
impacted the ability of nursing females and young sea lions to acquire 
adequate nutrition for successful pup rearing and juvenile growth. In 
late 2012, decreased anchovy and sardine recruitment (CalCOFI data, 
July 2013) may have led to nutritionally stressed adult females. 
Biotoxins were present at various times throughout the UME, and while 
they were not detected in the stranded juvenile sea lions (whose 
stomachs were empty at the time of stranding), biotoxins may have 
impacted the adult females' ability to support their dependent pups by 
affecting their cognitive function (e.g., navigation, behavior towards 
their offspring). Therefore, the role of biotoxins in this UME, via its 
possible impact on adult females' ability to support their pups, is 
unclear. The proposed primary cause of the UME was malnutrition of sea 
lion pups and yearlings due to ecological factors. These factors 
included shifts in distribution, abundance and/or quality of sea lion 
prey items around the Channel Island rookeries during critical sea lion 
life history events (nursing by adult females, and transitioning from 
milk to prey by young sea lions). These prey shifts were most likely 
driven by unusual oceanographic conditions at the time due to the event 
known as the ``Warm Water Blob'' and El Ni[ntilde]o. This investigation 
closed on May 6, 2020. Please refer to: https://www.fisheries.noaa.gov/national/marine-life-distress/2013-2016-california-sea-lion-unusual-mortality-event-california for more information on this UME.
Guadalupe Fur Seal UME
    Increased strandings of Guadalupe fur seals began along the entire 
coast of California in January 2015 and were eight times higher than 
the historical average (approximately 10 seals/yr). Strandings have 
continued since 2015 and remained well above average through 2021. 
Numbers by year are as follows: 2015 (98), 2016 (76), 2017 (63), 2018 
(45), 2019 (207), 2020 (139) and 2021 (92). The total number of 
Guadalupe fur seals stranding in California from January 1, 2015, 
through September 2, 2021, in the UME is 721. Strandings of Guadalupe 
fur seals became elevated in the spring of 2019 in Washington and 
Oregon, and strandings for seals in these two states subsequently 
(starting from January 1, 2019) have been added to the UME. The total 
number of strandings in Washington and Oregon is 181 seals, including 
42 in 2020 and 45 in 2021. Strandings are seasonal and generally peak 
in April through June of each year. The Guadalupe fur seal strandings

[[Page 40923]]

involved the stranding of mostly weaned pups and juveniles (1-2 years 
old), with both live and dead strandings occurring. Current studies of 
this UME find that the majority of stranded animals experienced primary 
malnutrition with secondary bacterial and parasitic infections. The 
California portion of this UME was occurring in the same area where the 
2013-2016 California sea lion UME occurred. This investigation is now 
closed. Please refer to: https://www.fisheries.noaa.gov/national/marine-life-distress/2015-2021-guadalupe-fur-seal-and-2015-northern-fur-seal-unusual for more information on this UME.
Gray Whale UME
    Since January 1, 2019, elevated levels of gray whale strandings 
have occurred along the west coast of North America, from Mexico to 
Canada. As of April 1, 2022, there have been a total of 531 strandings 
along the coasts of the United States, Canada, and Mexico, with 259 of 
those strandings occurring along the U.S. coast. Of the strandings on 
the U.S. coast, 116 have occurred in Alaska, 59 in Washington, 12 in 
Oregon, and 72 in California. Partial necropsy examinations conducted 
on a subset of stranded whales have shown evidence of emaciation, 
killer whale predation, and human interactions. As part of the UME 
investigation process, NOAA has assembled an independent team of 
scientists to coordinate with the Working Group on Marine Mammal UMEs 
to review the data collected, sample stranded whales, consider possible 
causal linkages between the mortality event and recent ocean and 
ecosystem perturbations, and determine the next steps for the 
investigation. Please refer to: https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2022-gray-whale-unusual-mortality-event-along-west-coast-and.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    We provided a detailed discussion of the potential effects of the 
specified activities on marine mammals and their habitat in the 
preamble of the PMSR proposed rule. In the Potential Effects of 
Specified Activities on Marine Mammals and Their Habitat section of 
that proposed rule, NMFS provided a description of the ways marine 
mammals may be affected by these activities in the form of, among other 
things, sensory impairment (permanent and temporary threshold shift and 
acoustic masking), physiological responses (particularly stress 
responses), behavioral disturbance, or habitat effects. All of this 
information remains valid and applicable and is adopted here by 
reference. Therefore, we have not reprinted the information in the 
preamble of this final rule, but refer the reader to our proposed rule 
(86 FR 37790; July 16, 2021).

Vessel Strike

    Vessel strikes from commercial, recreational, and military vessels 
are known to affect large whales and have resulted in serious injury 
and occasional fatalities to cetaceans (Berman-Kowalewski et al. 2010; 
Calambokidis, 2012; Douglas et al. 2008; Laggner 2009; Lammers et al. 
2003). Records of collisions date back to the early 17th century, and 
the worldwide number of collisions appears to have increased steadily 
during recent decades (Laist et al. 2001; Ritter 2012).
    Numerous studies of interactions between surface vessels and marine 
mammals have demonstrated that free-ranging marine mammals often, but 
not always (e.g., McKenna et al. 2015), engage in avoidance behavior 
when surface vessels move toward them. It is not clear whether these 
responses are caused by the physical presence of a surface vessel, the 
underwater noise generated by the vessel, or an interaction between the 
two (Amaral and Carlson, 2005; Au and Green, 2000; Bain et al. 2006; 
Bauer 1986; Bejder et al. 1999; Bejder and Lusseau, 2008; Bejder et al. 
2009; Bryant et al. 1984; Corkeron, 1995; Erbe, 2002; F[eacute]lix, 
2001; Goodwin and Cotton, 2004; Lemon et al. 2006; Lusseau, 2003; 
Lusseau, 2006; Magalhaes et al. 2002; Nowacek et al. 2001; Richter et 
al. 2003; Scheidat et al. 2004; Simmonds, 2005; Watkins, 1986; Williams 
et al. 2002; Wursig et al. 1998). Several authors suggest that the 
noise generated during motion is probably an important factor (Blane 
and Jaakson, 1994; Evans et al. 1992; Evans et al. 1994). Water 
disturbance may also be a factor. These studies suggest that the 
behavioral responses of marine mammals to surface vessels are similar 
to their behavioral responses to predators. Avoidance behavior is 
expected to be even stronger in the subset of instances during which 
the Navy is conducting training or testing activities using explosives.
    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., sperm 
whales). In addition, some baleen whales seem generally unresponsive to 
vessel sound, making them more susceptible to vessel collisions 
(Nowacek et al. 2004). These species are primarily large, slow 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 
ability and number of personnel observing, 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 (16 and 28 
km/hour), 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), under certain 
circumstances (vessel speed and location of the whale relative to the 
ship's centerline), 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:
    <bullet> Many military ships have their bridges positioned closer 
to the bow, offering better visibility ahead of the ship (compared to a 
commercial merchant vessel);
    <bullet> 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 will be able to detect them;
    <bullet> 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;
    <bullet> 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 Navy vessels are underway,

[[Page 40924]]

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 testing and 
training events; and
    <bullet> 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.
    While there have been vessel strikes documented with commercial 
vessels, NMFS has no documented vessel strikes of marine mammals by the 
Navy in the PMSR Study Area since the Navy started keeping records of 
ship strike in 1995 and through October 2021. Predominantly aircraft 
are used in the PMSR Study Area rather than vessels. The only large 
Navy vessels homebased in the PMSR local area (Port Hueneme) are the 
Self Defense Test Ship and the Mobile Ship Target, which are both 
greater than 200 ft in length. There are smaller vessels used either as 
targets or for target recovery as well. The majority of Navy vessels 
(e.g., LCS, destroyers) used during testing and training on the PMSR 
Study Area transit from San Diego Navy bases and typically transit 
further offshore and enter/exit the PMSR Study Area from the 
southwestern boundaries to avoid commercial vessel traffic in and out 
of the Ports or Los Angeles/Long Beach via the Santa Barbara Channel.
    However, recently there have been four documented whale strikes in 
southern California, in the Navy's Hawaii-Southern California Testing 
and Training (HSTT) Study Area (outside of the PMSR Study Area) over 
three separate events in 2021. Two fin whales were killed by a foreign 
vessel, a 147.5 m (483.9 ft) Royal Australian Navy destroyer, the HMAS 
Sydney, operating in the HSTT Study Area on or about May 7, 2021. 
Separately, on or about June 29 and July 11, 2021, the Navy reported 
two unknown whale strikes (potential mortalities) in the SOCAL Range 
Complex from 567-ft U.S. Navy cruisers. Vessel speed was unknown at the 
time of the fin whale strikes by the Royal Australian Navy, but the 
other two unknown whale strikes by the Navy occurred at vessel speeds 
of 16 and 25 knots (30 and 46 km/hour).
    While these four whale strikes are concerning, they did not occur 
in the PMSR Study Area and the activities that occur in the PMSR are 
far fewer than what occurs in the HSTT Study Area. Activities involving 
Navy vessel movement are variable in duration (i.e., hours to days), 
will be widely dispersed throughout the action area, and occur 
intermittently. Average military vessel speed for the PMSR Study Area 
is approximately 10.6 knots (19.6 km/hour) for the types of vessels 
typically involved in PMSR activities (Mintz, 2016). In comparison to 
the SOCAL Range Complex, the estimated number of annual at-sea days in 
the PMSR Study Area is less than 3 percent of what occurs in the SOCAL 
Range Complex annually (previously discussed in the Vessel Movement 
section of this rule, Table 4). These factors that make it unlikely 
that vessel strike would occur in the PMSR Study Area are discussed in 
greater detail below.
    Regarding foreign vessels, such as the HSMAS Sydney of the Royal 
Australian Navy, according to Mintz (2016) and Starcovic and Mintz 
(2021), they comprised less than 1 percent of all vessel traffic in 
Southern California. Foreign military sails (FMS) are approximately 5 
percent of the PMSR activities, with the majority of those activities 
having no vessel involvement other than range support vessels (e.g., 
Diane G and SL-120) used to recover air or surface targets and 
parachutes. The PMSR Study Area averages one foreign military activity 
annually that involves vessels. These events can last up to 10 days and 
typically involve only one naval vessel as the firing platform at 
aerial or surface targets. Foreign military activities are required to 
follow the same mitigations, at a minimum, as are all customers on the 
PMSR Study Area. When a customer does not have the capability to 
implement a required protective measure, the Navy will implement the 
required measures (e.g., marine mammal surveys aboard vessels and 
aircraft).
    The Navy transits at safer speeds and has other protective measures 
in place during transits, such as using Lookouts and maintaining safe 
distances from marine mammals (e.g., 500 yd (457.2 m) for whales and 
200 yd (182.88 m) around other marine mammals except bow-riding 
dolphins and pinnipeds hauled out on man-made navigational structures, 
port structures, and vessels). A DoD funded study (Mintz, 2016) on 
commercial and military vessel traffic in Southern California found 
that median vessel speed for Navy vessels in the Santa Barbara Channel 
and nearshore areas of the PMSR Study Area and SOCAL (part of the HSTT 
Study Area) was between 3 to 8 knots (6 to 15 km/hour). Speed increased 
as vessels transited further offshore, between 10-16 knots, with the 
higher value on the furthest offshore areas of the PMSR Study Area.
    Commercial tankers and cargo median vessel speeds were between 8-14 
knots (15 to 26 km/hour) for the same nearshore areas. Mintz (2016) 
indicated that Navy vessels make up only 4 percent of the overall 
vessel traffic off Southern California (PMSR/SOCAL). The data collected 
for Mintz (2016) was collected via AIS for commercial vessel data and 
SeaLink for military vessels (a classified Navy/Coast Guard database 
maintained by the Office of Naval Intelligence). The median surface 
speed of two of the classes of vessels used on the PMSR Study Area from 
2011 through 2015 was below 12 knots (22 km/hour). This median speed 
includes those training and testing operations that require elevated 
speeds, and being slightly above 10 knots (19 km/hour), indicates that 
Naval vessels typically operate at speeds that would be expected to 
reduce the potential of vessel strike of a marine mammal.
    The Navy has several standard operating procedures for vessel 
safety that could result in a secondary benefit to marine mammals 
through a reduction in the potential for vessel strike. For example, 
ships operated by or for the Navy have personnel assigned to stand 
watch at all times, day and night, when moving through the water (i.e., 
when the vessel is underway). Watch personnel undertake extensive 
training in accordance with the U.S. Navy Lookout Training Handbook or 
civilian equivalent. A primary duty of watch personnel is to ensure 
safety of the ship, which includes the requirement to detect and report 
all objects and disturbances sighted in the water that may be 
indicative of a threat to the ship and its crew, such as debris, a 
periscope, surfaced submarine, or surface disturbance. Per safety 
requirements, watch personnel also report any marine mammals sighted 
that have the potential to be in the direct path of the ship, as a 
standard collision avoidance procedure. Navy vessels are required to 
operate in accordance with applicable navigation rules. These rules 
require that vessels proceed at a safer speed so proper and effective 
action can be taken to avoid collision and so vessels can be stopped 
within a distance appropriate to the prevailing circumstances and 
conditions. In addition to complying with navigation requirements, Navy 
ships transit at speeds that are optimal for fuel conservation, to 
maintain ship schedules, and to meet mission requirements. Vessel 
captains use the

[[Page 40925]]

totality of the circumstances to ensure the vessel is traveling at 
appropriate speeds in accordance with navigation. This Navy message is 
also consistent with a message issued by the U.S. Coast Guard for 
vessels operating in the 11th district (covering the waters in and 
around the PMSR) as a Notice to Mariners that also informs operators 
about the presence of populations of blue, humpback, and fin whales in 
the area (see U.S. Coast Guard (2019) for further details).
    For more information, please see section 3.7.1.1.1 (Vessels as a 
Strike Stressor) in the 2022 PMSR FEIS/OEIS. Additionally, the Navy has 
fewer vessel transits than commercial entities in the PMSR Study Area. 
To put the PMSR Navy vessel operations level in perspective, Table 10 
includes an estimate of annual commercial shipping activity compared 
with vessel use in the PMSR Study Area. These annual estimates are 
representative of any given year for this rule. Navy vessels account 
for only about nine percent of the vessel traffic within the PMSR Study 
Area.

   Table 10--Navy and Commercial Vessel Events on the PMSR Study Area
------------------------------------------------------------------------
               Vessel type                      Number of events \1\
------------------------------------------------------------------------
Project Ships............................  300.
Support Boats............................  198.
Small Support Boats......................  Up to 387 \2\.
Total PMSR Navy..........................  836.
Commercial Shipping Estimate.............  >7,000 \3\.
------------------------------------------------------------------------
\1\ ``Event'' is defined as one trip into the Sea Range for an assigned
  mission.
\2\ Total number of High-Speed Maneuvering Surface Targets (HSMSTs) and
  QST35s used as support boats.
\3\ Data collected is for fiscal year (FY) 2015.

    In addition, large Navy vessels (greater than 18 m (20 yd) in 
length) within the offshore areas of range complexes and testing ranges 
operate differently from commercial vessels in ways that may reduce 
potential for whale collisions. Surface ships operated by or for the 
Navy have multiple personnel assigned to stand watch at all times, when 
a ship or surfaced submarine is moving through the water (underway).
    Between 2007 and 2009, the Navy developed and distributed 
additional training, mitigation, and reporting tools to Navy operators 
to improve marine mammal protection and to ensure compliance with LOA 
requirements. In 2009, the Navy implemented Marine Species Awareness 
Training designed to improve effectiveness of visual observation for 
marine resources, including marine mammals. For over a decade, the Navy 
has implemented the Protective Measures Assessment Protocol software 
tool, which provides operators with notification of the required 
mitigation and a visual display of the planned training or testing 
activity location overlaid with relevant environmental data.
    The Navy does not anticipate vessel strikes and has not requested 
authorization to take marine mammals by serious injury or mortality 
within the PMSR Study Area during training and testing activities. NMFS 
agrees with the Navy's conclusions based on this qualitative analysis, 
and further NMFS considered additional information based on the four 
recent whale strikes in the SOCAL Range Complex. Therefore, NMFS has 
determined that the Navy's decision not to request take authorization 
for vessel strike of large whales is supported by multiple factors, 
including no previous instances of strikes by Navy vessels in the PMSR 
Study Area, relatively low at-sea days compared to other Navy training 
and testing study areas, fewer vessels used compared to other Navy 
training and testing study areas, ways in which the larger vessels 
operate in the PMSR Study Area, and the mitigation measures that will 
be in place to further minimize potential vessel strike.
    In addition to the reasons listed above that make it unlikely that 
the Navy would hit a large whale (more maneuverable ships, larger crew, 
etc.), the following are additional reasons that vessel strike of 
dolphins, small whales, and pinnipeds is very unlikely. Dating back 
more than 20 years and for as long as it has kept records, the Navy has 
no records of any small whales or pinnipeds being struck by a vessel as 
a result of Navy activities. Over the same time period, NMFS and the 
Navy have only one record of a dolphin being struck by a vessel as a 
result of Navy activities. The dolphin was accidentally struck by a 
Navy small boat in fall 2021 in Saint Andrew's Pass, Florida. The 
smaller size and maneuverability of dolphins, small whales, and 
pinnipeds generally make such strikes very unlikely. Other than this 
one reported strike of a dolphin in 2021, NMFS has never received any 
reports from other LOA or Incidental Harassment Authorization holders 
indicating that these species have been struck by vessels. In addition, 
worldwide ship strike records show little evidence of strikes of these 
groups from the shipping sector and larger vessels, and the majority of 
the Navy's activities involving faster-moving vessels (that could be 
considered more likely to hit a marine mammal) are located in offshore 
areas where smaller delphinid densities are lower. Based on this 
information, NMFS concurs with the Navy's assessment that vessel strike 
is not likely to occur for either large whales or smaller marine 
mammals.

Estimated Take of Marine Mammals

    This section indicates the number of takes that NMFS is 
authorizing, which is based on the amount of take that NMFS anticipates 
could occur or the maximum amount that is reasonably 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 agrees that 
the methods the Navy has put forth described herein to estimate take 
(including the model, thresholds, and density estimates), and the 
resulting numbers estimated for authorization, are appropriate and 
based on the best available science and appropriate for authorization.
    All takes are by harassment. For a military readiness activity, 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). No serious injury or 
mortality of marine mammals is expected to occur.
    Authorized takes will primarily be in the form of Level B 
harassment. The use of explosive sources and missile launches may 
result, either directly or as result of TTS, 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). There is 
also the potential for Level A harassment, in the form of auditory 
injury, to result from exposure to the sound sources utilized in 
training and testing activities.
    Generally speaking, for acoustic impacts, NMFS estimates 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 or incur some degree of temporary 
or permanent

[[Page 40926]]

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) the 
number of days of activities or events. Below, we describe these 
components in more detail and present the take estimates.

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 
directly experience a disruption in behavior patterns to a point where 
they are abandoned or significantly altered, to incur TTS (equated to 
Level B harassment), or to incur 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. Refer to the 
``Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects 
Analysis (Phase III)'' report (U.S. Department of the Navy, 2017c) for 
detailed information on how the criteria and thresholds were derived.
    Despite the quickly evolving science, there are still challenges in 
quantifying expected behavioral responses that qualify as take by 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 
thresholds that identify Level B harassment by behavioral disturbance 
(referred to as ``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 have some built-in 
conservative factors 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 that 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. We describe the application of this 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. In summary, we believe these behavioral 
harassment thresholds are the most appropriate method for predicting 
Level B harassment by behavioral disturbance given the best available 
science and the associated uncertainty.
Hearing Impairment (TTS/PTS), Tissues Damage, and Mortality
    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 
only includes the use of impulsive (explosives) sources. These 
thresholds (Table 11) 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.
    Based on the best available science, the Navy (in coordination with 
NMFS) used the acoustic and pressure thresholds indicated in Table 11 
to predict the onset of TTS, PTS, tissue damage, and mortality for 
explosives (impulsive) and other impulsive sound sources.

           Table 11--Onset of TTS, PTS, Tissue Damage, and Mortality Thresholds for Marine Mammals for Explosives and Other Impulsive Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Mean onset slight   Mean onset slight      Mean onset
    Functional hearing group            Species            Onset TTS           Onset PTS        GI tract injury       lung injury          mortality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans.........  All mysticetes....  168 dB SEL          183 dB SEL          237 dB Peak SPL...  Equation 1........  Equation 2.
                                                       (weighted) or 213   (weighted) or 219
                                                       dB Peak SPL.        dB Peak SPL.
Mid-frequency cetaceans.........  Most delphinids,    170 dB SEL          185 dB SEL          237 dB Peak SPL...
                                   medium and large    (weighted) or 224   (weighted) or 230
                                   toothed whales.     dB Peak SPL.        dB Peak SPL.
High-frequency cetaceans........  Porpoises and       140 dB SEL          155 dB SEL          237 dB Peak SPL...
                                   Kogia spp..         (weighted) or 196   (weighted) or 202
                                                       dB Peak SPL.        dB Peak SPL.
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.

    Refer to the ``Criteria and Thresholds for U.S. Navy Acoustic and 
Explosive Effects Analysis (Phase III)'' report (U.S. Department of the 
Navy, 2017c) for detailed information on how the criteria and 
thresholds were derived. Non-auditory injury (i.e., other than PTS) and 
mortality are so unlikely as to be discountable under normal conditions 
and are therefore not considered further in this analysis.

[[Page 40927]]

    The mitigation measures associated with explosives are expected to 
be effective in preventing non-auditory tissue damage to any 
potentially affected species, and when considered in combination with 
the modeled exposure results, no species are anticipated to incur non-
auditory tissue damage during the period of this rule. Table 19 
indicates the range of effects for tissue damage for different 
explosive types. The Navy will implement 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 visual methods before the activity 
begins, in order to cover the mitigation zone (e.g., 2,500 yd (2,286 m) 
for explosive bombs).
Behavioral Disturbance
    Though significantly driven by received level, the onset of Level B 
harassment by direct 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, distance), 
the environment (e.g., bathymetry), and the receiving animals (hearing, 
motivation, experience, demography, behavioral context) and can be 
difficult to predict (Ellison et al. 2011; Southall et al. 2007). 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 harassment by behavioral 
disturbance.
    Explosives--Explosive thresholds for Level B harassment by 
behavioral disturbance for marine mammals are the hearing groups' TTS 
thresholds minus 5 dB (see Table 12 below and Table 11 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 and Phase III for explosive analysis in other Navy training 
and testing study areas. See the ``Criteria and Thresholds for U.S. 
Navy Acoustic and Explosive Effects Analysis (Phase III)'' report (U.S. 
Department of the Navy, 2017c) for detailed information on how the 
criteria and thresholds were derived. NMFS continues to concur that 
this approach represents the best available science for determining 
behavioral disturbance of marine mammals from multiple explosives. 
While marine mammals may also respond to single explosive detonations, 
those responses are expected to more typically be in the form of 
startle reaction, rather than a disruption in natural behavioral 
patterns to the point where they are abandoned or significantly 
altered. On the rare occasion that a single detonation might result in 
a more severe behavioral response that qualifies as Level B harassment, 
it would be expected to be in response to a comparatively higher 
received level. Accordingly, NMFS considers the potential for these 
responses to be quantitatively accounted for through the application of 
the TTS threshold, which as noted above is 5dB higher than the 
behavioral harassment threshold for multiple explosives.

  Table 12--Thresholds for Level B Harassment by Behavioral Disturbance
                    for Explosives for Marine Mammals
------------------------------------------------------------------------
                                    Functional hearing
              Medium                      group          SEL  (weighted)
------------------------------------------------------------------------
Underwater.......................  LF.................               163
Underwater.......................  MF.................               165
Underwater.......................  HF.................               135
Underwater.......................  Otariids...........               183
Underwater.......................  Phocids............               165
In-Air...........................  Otariids...........               100
In-Air...........................  Phocids............               100
------------------------------------------------------------------------
Note: Weighted SEL thresholds in dB re 1 [mu]Pa\2\s underwater. LF = low-
  frequency, MF = mid-frequency, HF = high-frequency.


                                                       Table 13--TTS/PTS Thresholds for Pinnipeds
                                                                        [In-air]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Non-impulsive                                     Impulsive
                                                         -----------------------------------------------------------------------------------------------
                          Group                            TTS threshold   PTS threshold   TTS threshold   TTS threshold   PTS threshold   PTS threshold
                                                              SEL \a\         SEL \a\         SEL \a\      peak SPL \b\       SEL \b\      peak SPL \b\
                                                            (weighted)      (weighted)      (weighted)     (unweighted)     (weighted)     (unweighted)
--------------------------------------------------------------------------------------------------------------------------------------------------------
OA \c\..................................................             157             177             146             170             161             176
PA \d\..................................................             134             154             123             155             138             161
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ SEL thresholds are in dB re(20[mu]Pa)\2\.s.
\b\ SPL thresholds in dB 20[mu]Pa in air.
\c\ OA-Otariid in air (California sea lion).
\d\ PA-Phocid in air (harbor seal, northern elephant seal).

Navy's Acoustic Effects Model

    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 PMSR Study Area on the density values in the Navy 
Marine Species Density Database

[[Page 40928]]

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 received by 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 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 Estimation 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, which overestimates the 
amount of explosive and acoustic energy entering the water.
    The model estimates the impacts caused by individual training and 
testing activities. During any individual modeled event, impacts to 
individual animats are considered over 24-hour periods. The animats do 
not represent actual animals, but rather 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 ``Quantifying 
Acoustic Impacts on Marine Species: Methods and Analytical Approach for 
Activities at the Point Mugu Sea Range'' (U.S. Department of the Navy, 
2020).

Range to Effects

    The following section provides range (distance) to effects for 
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.
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 Section 6, Section 6.5.2.1.1 of 
the Navy's rulemaking/LOA application and the ``Criteria and Thresholds 
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)'' 
report (U.S. Department of the Navy, 2017c)) and the explosive 
propagation calculations from the Navy Acoustic Effects Model (see 
Section 6, Section 6.5.2.1.3, Navy Acoustic Effects Model of the Navy's 
rulemaking/LOA application). The range to effects is shown for a range 
of explosive bins, from E1 (up to 0.25 lb net explosive weight) to E10 
(up to 500 lb net explosive weight) (Table 14 through Table 20). 
Explosive bins not shown in these tables include E2, E4, E7, E11, and 
E12, as they are not used in the PMSR Study Area. 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 
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 Table 19 and Table 20, respectively. NMFS has reviewed the 
range distance to effect data provided by the Navy and concurs with the 
analysis. For additional information on how ranges to impacts from 
explosions were estimated, see the technical report ''Quantifying 
Acoustic Impacts on Marine Species: Methods and Analytical Approach for 
Activities at the Point Mugu Sea Range'' (U.S. Department of the Navy, 
2020).
    Table 14 shows the minimum, average, and maximum ranges to onset of 
auditory and behavioral effects that likely rise to the level of Level 
B harassment for high-frequency cetaceans based on the developed 
thresholds.

  Table 14--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Harassment by Behavioral Disturbance
                                          for High-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
              Bin                Cluster size            PTS                   TTS               Behavioral
----------------------------------------------------------------------------------------------------------------
E1............................               1         353 (130-825)     1,234 (290-3,025)     2,141 (340-4,775)
                                            25     1,188 (280-3,025)     3,752 (490-8,525)    5,196 (675-12,275)
E3............................               1       654 (220-1,525)     2,294 (350-4,775)     3,483 (490-7,775)
                                            12     1,581 (300-3,525)    4,573 (650-10,275)    6,188 (725-14,775)
E5............................              25     2,892 (440-6,275)    6,633 (725-16,025)    8,925 (800-22,775)
E6............................               1     1,017 (280-2,525)     3,550 (490-7,775)    4,908 (675-12,275)
E8............................               1     1,646 (775-2,525)   4,322 (1,525-9,775)  5,710 (1,525-14,275)
E9............................               1     2,105 (850-4,025)  4,901 (1,525-12,525)  6,700 (1,525-16,775)
E10...........................               1     2,629 (875-5,275)  5,905 (1,525-13,775)  7,996 (1,525-20,025)
----------------------------------------------------------------------------------------------------------------
\1\ Average distance in meters is depicted above the minimum and maximum distances, which are in parentheses.
Notes: SEL = Sound Exposure Level, PTS = permanent threshold shift, TTS = temporary threshold shift.

    Table 15 shows the minimum, average, and maximum ranges to onset of 
auditory and behavioral effects that likely rise to the level of Level 
B harassment for mid-frequency cetaceans based on the developed 
thresholds.

[[Page 40929]]



  Table 15--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Harassment by Behavioral Disturbance
                                           for Mid-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
              Bin                Cluster size            PTS                   TTS               Behavioral
----------------------------------------------------------------------------------------------------------------
E1............................               1            25 (25-25)          118 (80-210)         178 (100-320)
                                            25          107 (75-170)       476 (150-1,275)       676 (240-1,525)
E3............................               1            50 (45-65)         233 (110-430)         345 (130-600)
                                            12          153 (90-250)       642 (220-1,525)       897 (270-2,025)
E5............................              25         318 (130-625)     1,138 (280-3,025)     1,556 (310-3,775)
E6............................               1           98 (70-170)         428 (150-800)       615 (210-1,525)
E8............................               1         160 (150-170)         676 (500-725)       942 (600-1,025)
E9............................               1         215 (200-220)         861 (575-950)     1,147 (650-1,525)
E10...........................               1         275 (250-480)     1,015 (525-2,275)     1,424 (675-3,275)
----------------------------------------------------------------------------------------------------------------
\1\ Average distance in meters to mortality is depicted above the minimum and maximum distances, which are in
  parentheses.
Notes: SEL = Sound Exposure Level, PTS = permanent threshold shift, TTS = temporary threshold shift.

    Table 16 shows the minimum, average, and maximum ranges to onset of 
auditory and behavioral effects that likely rise to the level of Level 
B harassment for low-frequency cetaceans based on the developed 
thresholds.

  Table 16--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Harassment by Behavioral Disturbance
                                           for Low-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
              Bin                Cluster size            PTS                   TTS               Behavioral
----------------------------------------------------------------------------------------------------------------
E1............................               1            51 (40-70)         227 (100-320)          124 (70-160)
                                            25          205 (95-270)       772 (270-1,275)         476 (190-725)
E3............................               1          109 (65-150)       503 (190-1,000)         284 (120-430)
                                            12         338 (130-525)     1,122 (320-7,775)       761 (240-6,025)
E5............................              25       740 (220-6,025)    2,731 (460-22,275)    1,414 (350-14,275)
E6............................               1         250 (100-420)       963 (260-7,275)       617 (200-1,275)
E8............................               1         460 (170-950)     1,146 (380-7,025)       873 (280-3,025)
E9............................               1       616 (200-1,275)    1,560 (450-12,025)     1,014 (330-5,025)
E10...........................               1       787 (210-2,525)    2,608 (440-18,275)     1,330 (330-9,025)
----------------------------------------------------------------------------------------------------------------
\1\ Average distance in meters to mortality is depicted above the minimum and maximum distances, which are in
  parentheses.
Notes: SEL = Sound Exposure Level, PTS = permanent threshold shift, TTS = temporary threshold shift.


  Table 17--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Harassment by Behavioral Disturbance
                                                  for Otariids
----------------------------------------------------------------------------------------------------------------
              Bin                Cluster size            PTS                   TTS               Behavioral
----------------------------------------------------------------------------------------------------------------
E1............................               1               7 (7-7)            34 (30-40)            56 (45-70)
                                            25            30 (25-35)          136 (80-180)         225 (100-320)
                                            10            25 (25-30)          115 (70-150)          189 (95-250)
E3............................               1            16 (15-19)            70 (50-95)          115 (70-150)
                                            12            45 (35-65)         206 (100-290)         333 (130-450)
                                            12            55 (50-60)         333 (280-750)       544 (440-1,025)
E5............................              25           98 (60-120)         418 (160-575)       626 (240-1,000)
E6............................               1            30 (25-35)          134 (75-180)         220 (100-320)
E8............................               1            50 (50-50)         235 (220-250)         385 (330-450)
E9............................               1            68 (65-70)         316 (280-360)         494 (390-625)
E10...........................               1            86 (80-95)         385 (240-460)         582 (390-800)
----------------------------------------------------------------------------------------------------------------
\1\ Average distance in meters to mortality is depicted above the minimum and maximum distances, which are in
  parentheses.
Notes: SEL = Sound Exposure Level, PTS = permanent threshold shift, TTS = temporary threshold shift.


  Table 18--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Harassment by Behavioral Disturbance
                                                   for Phocids
----------------------------------------------------------------------------------------------------------------
              Bin                Cluster size            PTS                   TTS               Behavioral
----------------------------------------------------------------------------------------------------------------
E1............................               1            45 (40-65)         210 (100-290)         312 (130-430)
                                            25          190 (95-260)       798 (280-1,275)     1,050 (360-2,275)
E2............................               1            58 (45-75)         258 (110-360)         383 (150-550)
                                            10          157 (85-240)       672 (240-1,275)       934 (310-1,525)
E3............................               1           96 (60-120)         419 (160-625)         607 (220-900)
                                            12         277 (120-390)     1,040 (370-2,025)     1,509 (525-6,275)
E5............................              25         569 (200-850)     2,104 (725-9,275)    2,895 (825-11,025)
E6............................               1          182 (90-250)       767 (270-1,275)     1,011 (370-1,775)
E8............................               1         311 (290-330)     1,154 (625-1,275)     1,548 (725-2,275)
E9............................               1         416 (350-470)     1,443 (675-2,025)     1,911 (800-3,525)

[[Page 40930]]

 
E10...........................               1         507 (340-675)     1,734 (725-3,525)     2,412 (800-5,025)
----------------------------------------------------------------------------------------------------------------
\1\ Average distance (in meters) to PTS, TTS, and behavioral thresholds are depicted above the minimum and
  maximum distances, which are in parentheses. Values depict the range produced by SEL hearing threshold
  criteria levels.
Notes: SEL = Sound Exposure Level, PTS = permanent threshold shift, TTS = temporary threshold shift.

    Table 19 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 19--Ranges to 50 Percent Non-Auditory Injury Risk for All Marine
                          Mammal Hearing Groups
------------------------------------------------------------------------
                                                        Range (m) (min-
                         Bin                                  max)
------------------------------------------------------------------------
E1...................................................         12 (11-13)
E3...................................................         25 (25-30)
E5...................................................        40 (35-140)
E6...................................................        52 (40-120)
E8...................................................       117 (75-400)
E9...................................................       120 (90-290)
E10..................................................      174 (100-480)
------------------------------------------------------------------------
Note: All ranges to non-auditory injury within this table are driven by
  the gastrointestinal (GI) tract injury threshold regardless of animal
  mass.

    Ranges to mortality, based on animal mass, are shown in Table 20 
below.

                   Table 20--Ranges \1\ to 50 Percent Mortality Risk for All Marine Mammal Hearing Groups as a Function of Animal Mass
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Animal mass intervals (kg) \1\
                           Bin                           -----------------------------------------------------------------------------------------------
                                                                10              250            1,000           5,000          25,000          72,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1......................................................         3 (2-3)         0 (0-3)         0 (0-0)         0 (0-0)         0 (0-0)         0 (0-0)
E3......................................................        8 (6-10)         4 (2-8)         1 (0-2)        0 (0--0)        0 (0--0)         0 (0-0)
E5......................................................      13 (11-45)        7 (4-35)        3 (3-12)         2 (0-8)         0 (0-2)         0 (0-2)
E6......................................................      18 (14-55)       10 (5-45)        5 (3-15)        3 (2-10)         0 (0-3)         0 (0-2)
E8......................................................     50 (24-110)       27 (9-55)       13 (0-20)        9 (4-13)         4 (0-6)         3 (0-5)
E9......................................................      32 (30-35)      20 (13-30)       10 (8-12)         7 (6-9)         4 (3-4)         3 (2-3)
E10.....................................................     56 (40-190)     25 (16-130)      13 (11-16)        9 (7-11)         5 (4-5)         4 (3-4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Average distance (m) to mortality is depicted above the minimum and maximum distances, which are in parentheses.

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, 2016, 2010; 
Barlow and Forney, 2007; Calambokidis et al. 2008; Calambokidis and 
Barlow, 2020; Cooke, 2019; Forney et al. 2014; Trickey et al. 2020). 
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 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 
surveyed. More recently, spatial habitat modeling developed by NMFS' 
Southwest Fisheries Science Center has been used to estimate cetacean 
densities (Barlow et al. 2009, 2020; Becker et al. 2010, 2012a, b, c, 
2014, 2016; Ferguson et al. 2006a; Forney et al. 2012, 2015; Redfern et 
al. 2006; Rockwood et al. 2020). 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.
    Ideally, density data would be available for all species throughout 
the study area year-round, in order to best estimate the impacts of 
Navy activities on marine species. However, in many places, ship 
availability, lack of funding, inclement weather conditions, and high

[[Page 40931]]

sea states prevent the completion of comprehensive year-round surveys. 
Even with surveys that are completed, poor conditions may result in 
lower sighting rates for species that would typically be sighted with 
greater frequency under favorable conditions. Lower sighting rates 
preclude having an acceptably low uncertainty in the density estimates. 
A high level of uncertainty, indicating a low level of confidence in 
the density estimate, is typical for species that are rare or difficult 
to sight. In areas where survey data are limited or non-existent, known 
or inferred associations between marine habitat features and the likely 
presence of specific species are sometimes used to predict densities in 
the absence of actual animal sightings. Consequently, there is no 
single source of density data for every area, species, and season 
because of the fiscal costs, resources, and effort involved in 
providing enough survey coverage to sufficiently estimate density.
    To characterize marine species density for large oceanic regions, 
the Navy reviews, critically assesses, and prioritizes existing density 
estimates from multiple sources, requiring the development of a 
systematic method for selecting the most appropriate density estimate 
for each combination of species, area, and season. The selection and 
compilation of the best available marine species density data resulted 
in the Navy Marine Species Density Database (NMSDD) (U.S. Department of 
the Navy, 2017). The finest temporal resolution (seasonal) for the 
NMSDD data for the HSTT Study Area was also used for the PMSR Study 
Area. The Navy vetted all cetacean densities with NMFS prior to use in 
the Navy's acoustic analysis for this rulemaking process.
    A variety of density data and density models are needed in order to 
develop a density database that encompasses the entirety of the PMSR 
Study Area. Because these data are collected using different methods 
with varying amounts of accuracy and uncertainty, the Navy has 
developed a hierarchy to ensure the most accurate data is used when 
available. The technical report titled ``Quantifying Acoustic Impacts 
on Marine Species: Methods and Analytical Approach for Activities at 
the Point Mugu Sea Range'' (U.S. Department of the Navy, 2020), 
hereafter referred to as the Density Technical Report, describes these 
models in detail and provides detailed explanations of the models 
applied to each species density estimate. The list below describes 
models in order of preference.
    1. Spatial density models 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 as a function of 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.
    2. Stratified design-based density estimates use line-transect 
survey data with the sampling area divided (stratified) into sub-
regions, and a density is predicted for each sub-region (see Barlow, 
2016; Becker et al. 2016; Bradford et al. 2017; Campbell et al. 2014; 
Jefferson et al. 2014). While geographically stratified density 
estimates provide a better indication of a species' distribution within 
the study area, the uncertainty is typically high because each sub-
region estimate is based on a smaller stratified segment of the overall 
survey effort.
    3. Design-based density estimations use line-transect survey data 
from land and aerial surveys designed to cover a specific geographic 
area (see Carretta et al. 2015). These estimates use the same survey 
data as stratified design-based estimates, but are not segmented into 
sub-regions and instead provide one estimate for a large surveyed area. 
Although relative environmental suitability (RES) models provide 
estimates for areas of the oceans that have not been surveyed using 
information on species occurrence and inferred habitat associations and 
have been used in past density databases, these models were not used in 
the current quantitative analysis.
    Below we describe how densities were determined for the species in 
the PMSR Study Area.
    The Navy developed a protocol and database to select the best 
available data sources based on species, area, and time (season). The 
resulting Geographic Information System database, used in the NMSDD, 
includes seasonal density values for every marine mammal species 
present within the PMSR Study Area. This database is described in the 
``Quantifying Acoustic Impacts on Marine Species: Methods and 
Analytical Approach for Activities at the Point Mugu Sea Range'' (U.S. 
Department of the Navy, 2020) (also referred to as the Density 
Technical Report in this rule).
    The Navy describes some of the challenges of interpreting the 
results of the quantitative analysis summarized above and described in 
the Density Technical Report:

    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 
mammal density, 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 (U.S. Department of the Navy, 2017a).

    There was only one species, the harbor porpoise, where there was no 
density estimate available within the PMSR Study Area so a new density 
layer was developed for harbor porpoise. Forney et al. (2014) provided 
uniform density for harbor porpoise for the species as a whole in 
California (Figure 7-25 in the Density Technical Report). Although 
these density estimates may not fully describe PMSR interannual 
variability, fluctuations in population size, or spatial distributions, 
they represent the best available science due to the paucity of other 
data.
    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 abundance in order to better 
understand the potential number of individuals impacted.

Take Estimation

    The 2022 PMSR FEIS/OEIS considered all training and testing 
activities planned to occur in the PMSR 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 from the Navy's planned activities have 
the potential to result in takes by harassment.
    [ssquf] Acoustics (weapons firing noise; Explosions at or near the 
water surface can introduce loud, impulsive, broadband sounds into the 
marine environment);

[[Page 40932]]

    [ssquf] Explosives (explosive shock wave and sound at or near the 
water surface (<10 m)); and
    [ssquf] Land-based launch noise on SNI from missiles and rocket 
launches.
    To predict marine mammal exposures to explosives, and because there 
is currently no means to model impacts on marine mammals from in-air 
detonations, the Navy's analysis conservatively models all detonations 
occurring within 10 m (11 yd) above the water's surface, as a point 
source located 10 centimeters underwater (U.S. Department of the Navy, 
2019a). The model also assumes that all acoustic energy from the 
detonation remains underwater with no sound transmitted into the air. 
Important considerations must be factored into the analysis of results 
with these modeling assumptions, given that the peak pressure and sound 
from a detonation in air significantly decreases as it is partially 
reflected by the water's surface and partially transmitted underwater, 
as detailed in the following paragraphs. The Navy performed a 
quantitative analysis to estimate the probability that marine mammals 
could be exposed to the sound and energy from explosions during Navy 
testing and training activities and the effects of those exposures. The 
effects of underwater explosions on marine mammals depend on a variety 
of factors including animal size and depth; charge size and depth; 
depth of the water column; and distance between the animal and the 
charge. In general, an animal near the water surface would be less 
susceptible to injury because the pressure wave reflected from the 
water surface would interfere with the direct path pressure wave, 
reducing positive pressure exposure.
    The quantitative analysis process (used for the 2022 PMSR 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 
``Quantifying Acoustic Impacts on Marine Species: Methods and 
Analytical Approach for Activities at the Point Mugu Sea Range'' (U.S. 
Department of the Navy, 2020). The Navy Acoustic Effects Model (NAEMO) 
brings together scenario simulations of the Navy's activities, sound 
propagation modeling, and marine mammal distribution (based on density 
and group size) by species to model and quantify the exposure of marine 
mammals above identified thresholds for behavioral harassment, TTS, 
PTS, non-auditory injury (lung and GI), and serious injury and 
mortality.
    NAEMO estimates acoustic and explosive effects without taking 
mitigation or avoidance into account; therefore, the model 
overestimates predicted impacts on marine mammals within mitigation 
zones. The NAEMO (animal movement) model overestimates the number of 
marine mammals that will be exposed to sound sources that could cause 
PTS because the model does not consider horizontal movement of animats, 
including avoidance of high intensity sound exposures. As a general 
matter, NMFS does not prescribe the methods for estimating take for any 
applicant, but we review and ensure that applicants use the best 
available science, and methodologies that are logical and technically 
sound. Applicants may use different methods of calculating take 
(especially when using models) and still get to a result that is 
representative of the best available science and that allows for a 
rigorous and accurate evaluation of the effects on the affected 
populations. There are multiple aspects of the Navy's take estimation 
methods--propagation models, animat movement models, and behavioral 
thresholds, for example. NMFS evaluates the acceptability of these 
aspects as they evolve and are used in different rules and impact 
analyses. Some of the aspects of the Navy's take estimation process 
have been used in Navy incidental take rules since 2009 and have 
undergone multiple public comment processes; all of them have undergone 
extensive internal Navy review, and all of them have undergone 
comprehensive review by NMFS, which has sometimes resulted in 
modifications to methods or models.
    The Navy uses rigorous review processes (verification, validation, 
and accreditation processes, peer and public review) to ensure the data 
and methodology it uses represent the best available science. For 
instance, the NAEMO model is the result of a NMFS-led Center for 
Independent Experts (CIE) review of the components used in earlier 
models. The acoustic propagation component of the NAEMO model (CASS/
GRAB) is accredited by the Oceanographic and Atmospheric Master Library 
(OAML), and many of the environmental variables used in the NAEMO model 
come from approved OAML databases and are based on in-situ data 
collection. The animal density components of the NAEMO model are base 
products of the NMSDD, which includes animal density components that 
have been validated and reviewed by a variety of scientists from NMFS 
Science Centers and academic institutions. Finally, the NAEMO model 
simulation components underwent quality assurance/quality control (QA/
QC) review and validation for model parts such as the scenario builder, 
acoustic builder, scenario simulator, etc., conducted by qualified 
statisticians and modelers to ensure accuracy. Other models and 
methodologies have gone through similar review processes.
    Based on current and other recent incidental take authorizations 
for target and missile launch activities on SNI (see 84 FR 18809; May 
2, 2019) and in light of the monitoring results from past launches 
(Burke, 2017; Ugoretz, 2016), the estimation of the number of 
harassments that will occur as a result of launch events has been based 
on the total take by species observed for three previous monitoring 
seasons (2015-2017) divided by the number of launch events over that 
time period. The Navy has determined that the numbers presented in 
Table 5-3 of the Navy's rulemaking/LOA application represent the number 
of pinnipeds expected to be hauled out at SNI based on surveys in the 
5-year period between 2011 and 2015 (Lowry et al. 2017) and the average 
number of takes observed per launch event (Burke, 2017; Naval Air 
Warfare Center Weapons Division, 2018; Ugoretz, 2016).
    For California sea lions, take estimates were derived from three 
monitoring seasons (2015 to 2017) where an average of 274.44 instances 
of take of sea lions by Level B harassment occurred per launch event. 
Therefore, 275 sea lions was then multiplied by 40 launch events, for a 
conservative take estimate of 11,000 instances of take by Level B 
harassment of California sea lions (Table 22). This estimate is 
conservative because the Navy has not conducted more than 25 launch 
events (although authorized for more) in a given year since 2001.
    For harbor seals, the take estimate is a change from the proposed 
IHA (84 FR 18809; May 2, 2019). The take estimate was revised from 120 
to 480 instances of take by Level B harassment of harbor seal. A total 
of 12 takes were derived from the 2016 and 2017 monitoring seasons and 
multiplied by 40 launch events for a total of 480 instances of take by 
Level B harassment (Table 22).
    For northern elephant seals, take estimates were derived from three 
monitoring seasons (2015 to 2017) where an average of 0.61 instances of 
take of northern elephant seals by Level B harassment occurred per 
launch event. Therefore, one northern elephant seal was then multiplied 
by 40 launch events for a conservative take estimate of 40 instances of 
take by Level B

[[Page 40933]]

harassment of northern elephant seals (Table 22). Generally, northern 
elephant seals do not react to launch events other than simple alerting 
responses such as raising their heads or temporarily going from 
sleeping to being awake; however, to account for the rare instances 
where they have reacted, the Navy considered that some northern 
elephant seals could be taken during launch events.
    In summary, we believe the Navy's methods, including the underlying 
NAEMO modeling, are the most appropriate methods for predicting non-
auditory injury, PTS, TTS, and behavioral disturbance. We would 
describe the application of these methods as identifying the maximum 
number of instances in which marine mammals would be reasonably 
expected to be taken through PTS, TTS, or behavioral disturbance.

Summary of Estimated Take Request From Training and Testing Activities

    Based on the methods discussed in the previous sections and the 
Navy's model, the Navy provided its take estimate and request for 
authorization of takes incidental to the use of explosive sources and 
target/missile launches for training and testing activities both 
annually (based on the maximum number of activities that could occur 
per year) and over the 7-year period covered by the Navy's rulemaking/
LOA application. NMFS has reviewed the Navy's data, methodology, and 
analysis and determined that it is complete and accurate. NMFS agrees 
that the estimates for incidental takes by harassment from all sources 
requested for authorization are the maximum number of instances in 
which marine mammals are reasonably expected to be taken.
Estimated Harassment Take From Training and Testing Activities
    Table 21 and Table 22 summarize the Navy's take estimate, which 
NMFS concurs with, and includes the maximum amount of Level A 
harassment and Level B harassment reasonably expected to occur by 
species and stock for explosives and missile launch activities on SNI 
expected annually and for the 7-year period.

  Table 21--Annual and 7-Year Total Species-Specific Take Estimates From Explosives for All Training and Testing Activities in the PMSR Study Area (Not
                                                           Inclusive of Launch Events on SNI)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Annual take by Level A harassment and       7-Year total take by Level A
                                                                                      Level B harassment            harassment and Level B harassment **
                Common name                            Stock/DPS           -----------------------------------------------------------------------------
                                                                             Behavioral                             Behavioral
                                                                              response       TTS          PTS        response       TTS          PTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale *...............................  Eastern North Pacific........            7            4            0           52           27            0
Bryde's whale..............................  Eastern Tropical Pacific.....            0            0            0            0            0            0
Fin whale *................................  California, Oregon, and                 14            7            1          101           46            7
                                              Washington.
Gray whale.................................  Eastern North Pacific........            9            5            0           65           37            0
                                             Western North Pacific                    0            0            0            0            0            0
                                              [dagger].
Humpback whale *...........................  California, Oregon, and                  7            4            0           52           29            0
                                              Washington/Mexico DPS.
                                             California, Oregon, and                  1            0            0            6            0            0
                                              Washington/Central America
                                              DPS.
Minke whale................................  California, Oregon, and                  2            1            0           15            6            0
                                              Washington.
Sei whale *................................  Eastern North Pacific........            0            0            0            0            0            0
Baird's beaked whale.......................  California, Oregon, and                  0            0            0            0            0            0
                                              Washington.
Bottlenose dolphin.........................  California Coastal...........            0            0            0            0            0            0
                                             California, Oregon, and                  5            5            1           37           36            4
                                              Washington Offshore.
Cuvier's beaked whale......................  California, Oregon, and                  0            0            0            0            0            0
                                              Washington.
Dall's porpoise............................  California, Oregon, and                261          406           49        1,824        2,845          341
                                              Washington.
Dwarf sperm whale..........................  California, Oregon, and                 20           31            6          142          217           43
                                              Washington.
Harbor Porpoise............................  Morro Bay....................            0            0            0            0            0            0
Killer whale...............................  Eastern North Pacific                    0            0            0            0            0            0
                                              Offshore.
                                             Eastern North Pacific                    0            0            0            0            0            0
                                              Transient or West Coast
                                              Transient \6\.
Long-beaked common dolphin.................  California...................           66           44            9          454          310           65
Mesoplodont spp............................  California, Oregon, and                  0            0            0            0            0            0
                                              Washington.
Northern right whale dolphin...............  California, Oregon, and                  3            2            1           22           16            4
                                              Washington.
Pacific white-sided dolphin................  California, Oregon, and                 11            8            2           76           58           14
                                              Washington.
Pygmy killer whale.........................  NSD..........................            0            0            0            0            0            0
Pygmy sperm whale..........................  California, Oregon, and                 20           31            6          141          219           44
                                              Washington.

[[Page 40934]]

 
Risso's dolphins...........................  California, Oregon, and                  6            3            1           39           24            6
                                              Washington.
Short-beaked common dolphin................  California, Oregon, and                 90           65           15          630          456          103
                                              Washington.
Short-finned pilot whale...................  California, Oregon, and                  0            0            0            0            0            0
                                              Washington.
Sperm whale *..............................  California, Oregon, and                  1            1            0            7            8            0
                                              Washington.
Striped dolphin............................  California, Oregon, and                  1            1            0            5            4            0
                                              Washington.
Harbor seal................................  California...................          202          120           14        1,415          842           99
Northern elephant seal.....................  California...................           37           63           22          258          444          152
California sea lion........................  U.S. Stock...................            8           12            2           58           81           16
Guadalupe fur seal *.......................  Mexico to California.........            1            1            0            5            7            0
Northern fur seal..........................  California...................            0            0            0            0            0            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
* ESA-listed species in PMSR.
** 7-Year total impacts may differ from the annual total times seven as a result of standard rounding.
[dagger] Only the indicated DPS is ESA-listed.
Note: NSD = No stock designation.


 Table 22--Annual and 7-Year Total Species-Specific Take Estimates From Target and Missile Launch Activities on
                                           SNI in the PMSR Study Area
----------------------------------------------------------------------------------------------------------------
                                                                               Annual  take by    7-year total
                   Species                                 Stock                   Level B      take by  Level B
                                                                                 harassment         harassment
----------------------------------------------------------------------------------------------------------------
California sea lion.........................  U.S...........................            11,000            77,000
Harbor seal.................................  California....................               480             3,360
Northern elephant seal......................  California....................                40               280
----------------------------------------------------------------------------------------------------------------

Mitigation Measures

    Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the 
permissible methods of taking pursuant to the activity, and other means 
of effecting the least practicable adverse impact on the species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of the species or stocks for subsistence uses (``least 
practicable adverse impact''). NMFS does not have a regulatory 
definition for least practicable adverse impact. The 2004 NDAA 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.'' Expressing similar concerns in a challenge to a U.S. Navy 
Surveillance Towed Array Sensor System Low Frequency Active Sonar 
(SURTASS LFA) incidental take rule (77 FR 50290; August 20, 2012), 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 previous rules we have issued, such 
as the Navy's Hawaii-Southern California Training and Testing (HSTT) 
rule (85 FR 41780; July 10, 2020), Atlantic Fleet Training and Testing 
(AFTT) rule (84 FR 70712; December 23, 2019), and Mariana Islands 
Training and Testing (MITT) rule (85 FR 46302; July 31, 2020).
    Before NMFS can issue incidental take regulations under section 
101(a)(5)(A) of the MMPA, it must make a finding that the total taking 
will have a ``negligible impact'' on the affected ``species or stocks'' 
of marine mammals. NMFS' and U.S. Fish and Wildlife Service's 
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

[[Page 40935]]

population growth rates \1\ and, therefore are considered in evaluating 
population level impacts.
---------------------------------------------------------------------------

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

    As stated in the preamble to the proposed rule for the MMPA 
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. The key factor is the significance of 
the level of impact on rates of recruitment or survival (54 FR 40338, 
40341; 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 
the species or stocks and their 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\ Separately, NMFS also must prescribe means of effecting the 
least practicable adverse impact on the availability of the species 
or stocks for subsistence uses, when applicable. See the Subsistence 
Harvest of Marine Mammals section for separate discussion of the 
effects of the specified activities on Alaska Native subsistence 
use.
---------------------------------------------------------------------------

    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. 
Section 3(11) of 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. 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 under MMPA 
section 3(11), the term ``stock'' in the MMPA is interchangeable with 
the statutory term ``population stock.'' 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' statutory findings 
for enacting the MMPA, nearly all of which are most applicable at the 
species or stock (i.e., population) level. See MMPA section 2 (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 effect the least practicable amount of adverse 
impact upon the affected species or stocks.
    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, 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\ 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.'' 
Pritzker 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    We have carefully reviewed and considered the Ninth Circuit's 
opinion in NRDC v. Pritzker in its entirety. While the Court's 
reference to ``marine mammals'' rather than ``marine mammal species or 
stocks'' in the italicized language above might be construed as 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,

[[Page 40936]]

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.
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors. (1) The first factor is the 
manner in which, and the degree to which, the successful implementation 
of the measure(s) is expected to reduce adverse impacts to marine 
mammal species or stocks, and their habitat. This analysis considers 
the nature of the potential adverse impact (likelihood, scope, and 
range). It further considers the likelihood that the measure will be 
effective if implemented (probability of accomplishing the mitigating 
result if implemented as planned), and the likelihood of effective 
implementation (probability implemented as planned). (2) The second 
factor is the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations or specific 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 (when evaluating measures to reduce adverse 
impact on the species or stocks).

Assessment of Mitigation Measures for the PMSR Study Area

    Section 216.104(a)(11) of NMFS' implementing regulations requires 
an applicant for incidental take authorization to include in its 
request, among other things, ``the availability and feasibility 
(economic and technological) of equipment, methods, and manner of 
conducting such activity or other means of effecting the least 
practicable adverse impact upon the affected species or stocks, their 
habitat, and [where applicable] on their availability for subsistence 
uses, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.'' Thus NMFS' analysis of the sufficiency 
and appropriateness of an applicant's measures under the least 
practicable adverse impact standard will always begin with evaluation 
of the mitigation measures presented in the application.
    NMFS has fully reviewed the specified activities together and the 
mitigation measures included in the Navy's rulemaking/LOA application 
and the 2022 PMSR FEIS/OEIS to determine if the mitigation measures 
would result in the least practicable adverse impact on marine mammals 
and their habitat. NMFS worked with the Navy in the development of the 
Navy's initially proposed measures, which were informed by years of 
implementation and monitoring. A complete discussion of the Navy's 
evaluation process used to develop, assess, and select mitigation, 
which was informed by input from NMFS, can be found in Chapter 5 
(Standard Operating Procedures and Mitigation) of the 2022 PMSR FEIS/
OEIS. The process described in Chapter 5 (Standard Operating Procedures 
and Mitigation) of the 2022 PMSR FEIS/OEIS robustly supported NMFS' 
independent evaluation of whether the mitigation measures meet the 
least practicable adverse impact standard. The Navy is required to 
implement the mitigation measures identified in this rule for the full 
7 years to avoid or reduce potential impacts from explosives, launch 
activities, and physical disturbance and vessel strike stressors.
    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 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 still necessary for NMFS to consider 
whether there are additional practicable measures that would 
meaningfully reduce the probability or severity of impacts that could 
affect reproductive success or survivorship.
    Overall, 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 explosives and launch activities, vessel 
strike, and impacts to marine mammal habitat. Specifically, the Navy 
will use a combination of delayed starts, and cease firing to avoid 
mortality or serious injury, minimize the likelihood or severity of PTS 
or other injury, and reduce instances of TTS or more severe behavioral 
disruption caused by explosives and launch activities.
    The Navy assessed the practicability of these measures in the 
context of personnel safety, practicality of implementation, and their 
impacts on the Navy's ability to meet their Title 10 requirements and 
found that the measures are supportable. As described in more detail 
below, NMFS has independently evaluated the measures the Navy proposed 
in consideration of their ability to reduce adverse impacts on marine 
mammal species and their habitat and their practicability for 
implementation. We have determined that the measures will significantly 
and adequately reduce impacts on the affected marine mammal species and 
stocks and their habitat and, further, be practicable for Navy 
implementation. Therefore, the mitigation measures assure that the 
Navy's activities will have the least practicable adverse impact on the 
species or stocks and their habitat.
    The Navy also evaluated numerous measures in the 2022 PMSR FEIS/
OEIS that were not included in the Navy's rulemaking/LOA application, 
and NMFS independently reviewed and concurs with the 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 (Standard Operating Procedures and Mitigation) of the 2022 
PMSR 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 
or the public, through scoping or public comment on environmental 
compliance documents. As described in Chapter 5 (Standard Operating 
Procedures and Mitigation) of the 2022 PMSR FEIS/OEIS, commenters 
sometimes recommend that the Navy reduce explosive use, or include area 
restrictions. Many of these mitigation measures could potentially 
reduce the number of marine mammals taken, via

[[Page 40937]]

direct reduction of the activities or amounts. However, as described in 
Chapter 5 (Standard Operating Procedures and Mitigation) of the 2022 
PMSR FEIS/OEIS, the Navy needs to train and test in the conditions in 
which it conducts warfare, and these types of modifications 
fundamentally change the activity in a manner that will 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 Navy's judgment on the 
impacts of potential mitigation measures to personnel safety, 
practicality of implementation, and the effectiveness of training and 
testing within the PMSR Study Area 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 (Standard Operating Procedures and Mitigation) 
of the 2022 PMSR FEIS/OEIS, the Navy evaluated an additional potential 
procedural mitigation measure, the use of thermal detection. The use of 
thermal detection had 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 Standard Operating Procedures and Mitigation of 2022 PMSR 
FEIS/OEIS). NMFS independently reviewed the Navy's evaluation and 
concurs with this assessment, which supports NMFS' findings that the 
impracticability of this additional mitigation measure would greatly 
outweigh any potential minor reduction in marine mammal impacts that 
might result; therefore, this additional mitigation measure is not 
warranted.
    Chapter 5 (Standard Operating Procedures and Mitigation) of the 
2022 PMSR FEIS/OEIS also describes a comprehensive method for analyzing 
potential geographic mitigation that includes consideration of both a 
biological assessment of how the potential time/area limitation would 
benefit the species and its habitat (e.g., is a key area of biological 
importance or would result in avoidance or reduction of impacts) in the 
context of the stressors of concern in the specific area and an 
operational assessment of the practicability of implementation (e.g., 
including an assessment of the specific importance of that area for 
training, considering proximity to training ranges and emergency 
landing fields and other issues). For most of the areas that were 
considered in the 2022 PMSR FEIS/OEIS but not included in this rule, 
the Navy found that geographic mitigation was not warranted because the 
anticipated reduction of adverse impacts on marine mammal species and 
their habitat was not sufficient to offset the impracticability of 
implementation.
    The Navy considered that moving activities farther from SNI and 
outside of the SNI Feeding Area would not be practicable, because the 
added distance would substantially limit the capabilities of ground-
based telemetry systems, antennas, surveillance, and metric radar 
systems, as well as command transmitter systems located at Point Mugu, 
Laguna Peak, Santa Cruz Island, and SNI. These systems are required to 
measure, monitor, and control various test platforms in real time; 
collect transmitted data for post event analysis; and enable 
surveillance of the area to ensure the safety of the public. Optimal 
functional distance for some of the ground-based radar systems is 10-
200 nmi (19-370 km) and may be limited by line-of-sight for some 
systems. Ground-based telemetry systems rely on using in-place fiber 
optic cables directly linked to remote locations or microwave to 
transmit signals. The ground-based command transmitter system provides 
safe, controlled testing of unmanned targets, platforms, and missiles, 
including unmanned aircraft, boat or ship targets, ballistic missiles, 
and other long-range vehicles, all within a 40-mi radius of the 
transmitter. The command transmitter system also provides flight 
termination capability for weapons and targets that are considered too 
hazardous for test flights. Relocating ground-based instrumentation to 
other locations would result in an extensive cost to the Navy, or 
potentially reduce military readiness.
    NMFS has reviewed the Navy's analysis in Chapter 5 (Standard 
Operating Procedures and Mitigation) of the 2022 PMSR FEIS/OEIS, which 
considers the same factors that NMFS considers to satisfy the least 
practicable adverse impact standard, and concurs with the analysis and 
conclusions. Therefore, NMFS is not including any of the measures that 
the Navy ruled out in the 2022 PMSR FEIS/OEIS. Below are the mitigation 
measures that NMFS determined will ensure the least practicable adverse 
impact on all affected species and their habitat, including the 
specific considerations for military readiness activities. The 
following sections describe the mitigation measures that will be 
implemented in association with the training and testing activities 
analyzed in this document. The mitigation measures all consist of 
procedural mitigation.

Procedural Mitigation

    Procedural mitigation is mitigation that the Navy will implement 
whenever and wherever an applicable training or testing activity takes 
place within the PMSR Study Area. 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 23) is designed to aid Lookouts and 
other applicable Navy personnel with their observation, environmental 
compliance, and reporting responsibilities. The remainder of the 
procedural mitigation measures (Table 24 though Table 32) are organized 
by stressor type and activity category and include acoustic stressors 
(i.e., weapons firing noise), explosive stressors (i.e., medium-caliber 
and large-caliber projectiles, missiles and rockets, bombs), and 
physical disturbance and strike stressors (i.e., vessel movement, 
small-, medium-, and large-caliber non-explosive practice munitions, 
non-explosive missiles, and non-explosive bombs). NMFS and the Navy 
took into account public comments received on the 2022 PMSR FEIS/OEIS 
and the 2021 PMSR proposed rule, best available science, and the 
practicability of implementing additional mitigation measures.

[[Page 40938]]



     Table 23--Mitigation for Environmental Awareness and Education
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> All testing and training activities, as applicable.
Mitigation Zone Size and Mitigation Requirements:
    <bullet> Appropriate 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. The introductory module provides information
         on environmental laws (e.g., ESA, MMPA) and the corresponding
         responsibilities relevant to Navy testing and training. The
         material explains why environmental compliance is important in
         supporting the Navy's commitment to environmental stewardship.
        --Marine Species Awareness Training. All bridge watch personnel,
         Commanding Officers, Executive Officers, maritime patrol
         aircraft aircrews, anti-submarine warfare and mine warfare
         rotary-wing aircrews, Lookouts, and equivalent civilian
         personnel will 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.
------------------------------------------------------------------------

    Mitigation measures for weapons firing noise as an acoustic 
stressor is provided below in Table 24.

              Table 24--Mitigation for Weapons Firing Noise
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Weapons firing noise associated with large-caliber gunnery
     activities.
Number of Lookouts and Observation Platform:
    <bullet> 1 Lookout positioned on the ship conducting the firing.
        --Depending on the activity, the Lookout could be the same as
         the one described in Table 29 (Mitigation for Small-, Medium-,
         and Large-Caliber Non-Explosive Practice Munitions).
Mitigation Requirements:
    <bullet> Mitigation zone:
        --30[deg] on either side of the firing line out to 70 yd. from
         the muzzle of the weapon being fired.
    <bullet> 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.
    <bullet> During the activity:
        --Observe the mitigation zone for floating vegetation and marine
         mammals; if observed, cease weapons firing.
    <bullet> Conditions for commencing/recommencing the activity after a
     marine mammal sighting before or during the activity:
        --The Navy will allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         weapons firing) until one of the following conditions has been
         met: (1) the 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 and there have been no new
         sightings.
------------------------------------------------------------------------

    The Navy will implement mitigation measures to avoid or reduce 
potential impacts on marine mammals from the explosive stressors 
occurring at or near the surface resulting in underwater noise and 
energy. Mitigation measures for explosive stressors are provided in 
Table 25 though Table 27.

   Table 25--Mitigation for Explosive Medium-Caliber and Large-Caliber
                               Projectiles
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Gunnery activities using explosive medium-caliber and large-
     caliber projectiles.
    <bullet> Activities using a maritime surface target.
Number of Lookouts and Observation Platform:
    <bullet> 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 in Table 24 (Mitigation for Weapons Firing
         Noise).
<bullet> 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.
Mitigation Requirements:
    <bullet> Mitigation zones:

[[Page 40939]]

 
        --200 yd (182.88 m) around the intended impact location for air-
         to-surface activities using explosive medium-caliber
         projectiles, or
        --600 yd (548.64 m) around the intended impact location for
         surface-to-surface activities using explosive medium-caliber
         projectiles, or
        --1,000 yd (914.4 m) around the intended impact location for
         surface-to-surface activities using explosive large-caliber
         projectiles.
    <bullet> Prior to the start of the activity (e.g., when maneuvering
     on station):
        --Observe for floating vegetation and marine mammals; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --During the activity, observe for floating vegetation and
         marine mammals; if resource is observed, cease firing.
    <bullet> Conditions for commencing/recommencing the activity after a
     marine mammal sighting before or during the activity:
        --The Navy will allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met
         until one of the recommencement 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 and there
         have been no new sightings .
    <bullet> 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 the vicinity of where detonations occurred; if any
         injured or dead marine mammals, follow established incident
         reporting procedures.
If additional platforms are supporting this activity (e.g., providing
 range clearance), these assets will assist in the visual observation of
 the area where detonations occurred.
------------------------------------------------------------------------


         Table 26--Mitigation for Explosive Missiles and Rockets
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Aircraft-deployed explosive missiles and rockets.
    <bullet> Activities using a maritime surface target at ranges up to
     75 nmi (139 km).
Number of Lookouts and Observation Platform:
    <bullet> 1 Lookout positioned in an aircraft.
    <bullet> 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.
Mitigation Requirements:
    <bullet> Mitigation zones:
        --900 yd (822.96 m) around the intended impact location for
         missiles or rockets with 0.6-20 lb net explosive weight.
        --2,000 yd (1,828.8 m) around the intended impact location for
         missiles with 21-500 lb net explosive weight.
    <bullet> 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.
    <bullet> During the activity:
        --Observe the mitigation zone for floating vegetation and marine
         mammals; if observed, cease firing.
    <bullet> Conditions for commencing/recommencing the activity after a
     marine mammal sighting before or during the activity:
        --The Navy will allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met:
            (1) the animal is 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.
    <bullet> 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 the vicinity of where detonations occurred; if any
         injured or dead marine mammals or ESA-listed species are
         observed, follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets will assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------


                Table 27--Mitigation for Explosive Bombs
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Explosive bombs.
    <bullet> Mitigation applies to activities using a maritime surface
     target at ranges up to 75 nmi (139 km).
Number of Lookouts and Observation Platform:
    <bullet> 1 Lookout positioned in the aircraft conducting the
     activity.
    <bullet> 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.
Mitigation Requirements:
    <bullet> Mitigation zone:
        --2,500 yd (2,286 m) around the intended target.
    <bullet> Prior to the start of the activity (e.g., when arriving on
     station):

[[Page 40940]]

 
        --Observe the mitigation zone for floating vegetation and marine
         mammals; if floating vegetation or marine mammals are observed,
         Navy personnel will relocate or delay the start of bomb
         deployment.
    <bullet> During the activity (e.g., during target approach):
        --Observe the mitigation zone for floating vegetation and marine
         mammals; if observed, cease bomb deployment.
    <bullet> Conditions for commencing/recommencing of the activity
     after a marine mammal sighting before or during the activity:
        --The Navy will allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         bomb deployment) until one of the recommencement 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 and there
         have been no new sightings.
    <bullet> 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 the vicinity of where detonations occurred; if any
         injured or dead marine mammals or ESA-listed species are
         observed, follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets will assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

    Mitigation for physical disturbance and strike stressors are 
provided in Table 28 through Table 32.

                Table 28--Mitigation for Vessel Movement
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Vessel movement.
    <bullet> The mitigation will not be required 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.), (3)
     the vessel is operated autonomously, or (4) when impracticable
     based on mission requirements (e.g., There are a few specific
     testing and training events that include requirements for certain
     systems where vessels will operate at higher speeds. As an example,
     some tests involve using the High-Speed Maneuvering Surface Target
     (HSMST). During these events, ships will operate across the full
     spectrum of capable speeds to accomplish the primary testing
     objectives).
Number of Lookouts and Observation Platform:
    <bullet> 1 Lookout on the vessel that is underway.
Mitigation Requirements:
    <bullet> Mitigation zone:
        --500 yd (457.2 m) around whales.
        --200 yd (182.88 m) around all other marine mammals (except bow-
         riding dolphins and pinnipeds hauled out on man-made
         navigational structures, port structures, and vessels).
    <bullet> During the activity:
        --When underway, observe the mitigation zone for marine mammals;
         if observed, maneuver to maintain distance.
    <bullet> Additional requirements:
        --If a marine mammal vessel strike occurs, the Navy will follow
         the established incident reporting procedures.
------------------------------------------------------------------------


    Table 29--Mitigation for Small-, Medium-, and Large-Caliber Non-
                      Explosive Practice Munitions
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Gunnery activities using small-, medium-, and large-caliber
     non-explosive practice munitions.
    <bullet> Activities using a maritime surface target.
Number of Lookouts and Observation Platform:
    <bullet> 1 Lookout positioned on the platform conducting the
     activity.
    <bullet> Depending on the activity, the Lookout could be the same as
     the one described in Table 24 (Mitigation for Weapons Firing
     Noise).
Mitigation Requirements:
    <bullet> Mitigation zone:
        --200 yd (182.88 m) around the intended impact location.
    <bullet> 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.
    <bullet> During the activity:
        --Observe the mitigation zone for floating vegetation and marine
         mammals; if observed, cease firing.
    <bullet> Conditions for commencing/recommencing the activity after a
     marine mammal sighting before or during the activity:

[[Page 40941]]

 
        --The Navy will allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met: (1)
         the animal is 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 and there
         have been no new sightings.
------------------------------------------------------------------------


       Table 30--Mitigation for Non-Explosive Missiles and Rockets
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Aircraft-deployed non-explosive missiles and rockets.
    <bullet> Activities using a maritime surface target at ranges of up
     to 75 nmi (139 km).
Number of Lookouts and Observation Platform:
    <bullet> 1 Lookout positioned in an aircraft.
Mitigation Requirements:
    <bullet> Mitigation zone:
        --900 yd (822.96 m) around the intended impact location.
    <bullet> 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.
    <bullet> During the activity:
        --Observe the mitigation zone for floating vegetation and marine
         mammals; if observed, cease firing.
    <bullet> Conditions for commencing/recommencing the activity after a
     marine mammal sighting prior to or during the activity:
        --The Navy will allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met: (1)
         the animal is 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.
------------------------------------------------------------------------


              Table 31--Mitigation for Non-Explosive Bombs
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Non-explosive bombs.
    <bullet> Mitigation applies to activities using a maritime surface
     target at ranges up to 75 nmi (139 km).
Number of Lookouts and Observation Platform:
    <bullet> 1 Lookout positioned in an aircraft.
Mitigation Requirements:
    <bullet> Mitigation zone:
        --900 yd (822.96 m) around the intended impact location.
    <bullet> 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 of bomb deployment until
         the mitigation zone is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of bomb deployment.
    <bullet> During the activity (e.g., during approach of the target):
        --Observe the mitigation zone for floating vegetation and marine
         mammals; if observed, cease bomb deployment.
    <bullet> Conditions for commencing/recommencing the activity after a
     marine mammal sighting prior to or during the activity:
        The Navy will allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         bomb deployment or mine laying) until one of the following
         conditions has been met: (1) the animal is observed exiting the
         mitigation zone; (2) the animal is thought to have exited the
         mitigation zone based on a determination of its course, speed,
         and movement relative to the intended target or minefield
         location; (3) the mitigation zone has been clear from any
         additional sightings for 10 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 and there have been no new
         sightings.
------------------------------------------------------------------------

Target and Missile Launches From SNI

    Mitigation for target and missile launch activities from SNI are 
provided below in Table 32.

[[Page 40942]]



      Table 32--Mitigation for Target and Missile Launches From SNI
------------------------------------------------------------------------
                         Mitigation description
-------------------------------------------------------------------------
Stressor or Activity:
    <bullet> Target and Missile launches from SNI.
Mitigation Requirements:
    <bullet> Navy personnel shall not enter pinniped haulouts or
     rookeries. Personnel may be adjacent to pinniped haulouts and
     rookeries prior to and following a launch for monitoring purposes.
    <bullet> Missiles shall not cross over pinniped haulouts at
     elevations less than 305 m (1,000 ft) above the haulout.
    <bullet> The Navy will not conduct more than 40 launch events
     annually.
    <bullet> The Navy will not conduct more than 10 launch events at
     night of the 40 annual launch events.
    <bullet> Launches shall be scheduled to avoid peak pinniped pupping
     periods between January and July, to the maximum extent
     practicable.
    <bullet> All manned aircraft and helicopter flight paths will
     maintain a minimum distance of 305 m (1,000 ft) from recognized
     pinniped haulouts and rookeries, except in emergencies or for real-
     time security incidents.
    <bullet> For unmanned aircraft systems (UAS), the following minimum
     altitudes will be maintained over pinniped haulout areas and
     rookeries: Class 0-2 UAS will maintain a minimum altitude of 300
     ft; Class 3 UAS will maintain a minimum altitude of 500 ft; Class 4
     or 5 UAS will not be flown below 1,000 ft.
    <bullet> If a species for which authorization has not been granted
     is taken, or a species for which authorization has been granted but
     the authorized takes are met, the Navy will consult with NMFS to
     determine how to proceed.
    <bullet> The Navy will review the launch procedure and monitoring
     methods, in cooperation with NMFS, if any incidents of injury or
     mortality of a pinniped are discovered during post-launch surveys,
     or if surveys indicate possible effects to the distribution, size,
     or productivity of the affected pinniped populations as a result of
     the specified activities. If necessary, appropriate changes will be
     made through modification to this Authorization prior to conducting
     the next launch of the same vehicle.
------------------------------------------------------------------------

    In addition, the Navy will issue awareness notification messages 
seasonally to alert ships and aircraft to the possible presence of 
concentrations of large whales in the PMSR Study Area. In order to 
maintain safety of navigation and to avoid interactions with large 
whales during transit, vessels will be instructed to remain vigilant to 
the presence of certain large whale species, which, especially when 
concentrated seasonally, may become vulnerable to vessel strikes. 
Lookouts will use the information from the awareness notification 
messages to assist their visual observations of mitigation zones and to 
aid in implementing mitigation. The Navy anticipates that providing 
Lookouts additional information about the possible presence of 
concentrations of large whales in certain locations seasonally will 
likely help the Navy further avoid interactions with these animals 
during vessel transits and when training and testing activities are 
conducted in the PMSR Study Area. The Navy will follow reporting 
requirements should a vessel strike occur. The Navy will issue 
awareness notification messages for the species and seasons indicated 
in Table 33.

          Table 33--Large Whale Awareness Notification Messages
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Blue Whale Awareness Notification Message (June 1-October 31), Gray
 Whale Awareness Notification Message (November 1-March 31), and Fin
 Whale Awareness Notification Message (November 1-May 31):
    <bullet> The Navy will issue a seasonal awareness notification
     message to alert ships and aircraft operating in the area to the
     possible presence of concentrations of large whales, including blue
     whales (June 1 through October 31), gray whales (November 1 through
     March 31) and fin whales (November 1 through May 31).
    <bullet> To maintain safety of navigation and to avoid interactions
     with large whales during transits, the Navy will instruct vessels
     to remain vigilant to the presence of large whale species
     (including blue whales), that when concentrated seasonally, may
     become vulnerable to vessel strikes.
    <bullet> Lookouts will use the information from the awareness
     notification messages to assist their visual observation of
     applicable mitigation zones during testing and training activities
     and to aid in the implementation of mitigation observation of
     applicable mitigation zones during testing and training activities
     and to aid in the implementation of mitigation.
------------------------------------------------------------------------

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 
2022 PMSR 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 or 
stocks and their habitat. Our evaluation of potential 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 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 proposed mitigation measures, 
as well as other measures considered by the Navy and NMFS, NMFS has 
determined that the mitigation measures included in this final rule are 
the appropriate means of effecting the least practicable adverse impact 
on the marine mammal species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and considering specifically personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity. Additionally, an adaptive management 
provision ensures that mitigation is regularly assessed and provides a 
mechanism to improve the mitigation,

[[Page 40943]]

based on the factors above, through modification as appropriate. Thus, 
NMFS concludes that the mitigation measures outlined in this final rule 
satisfy the statutory standard and that any adverse impacts that remain 
cannot be practicably further mitigated.

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.
    In the PMSR, the Navy has been monitoring missile launches at SNI 
in accordance with the MMPA under IHAs or LOAs since 2001 (NMFS, 2014a, 
2019a). Associated with those authorizations, monitoring reports 
submitted to NMFS in various periodic reports have included sound 
levels measurements from the launches and have documented the behavior 
of hauled out pinnipeds before, during, and after those launches by 
direct observation and in video recordings (Burke, 2017; Holst and 
Lawson, 2002; Holst and Greene Jr., 2005, 2006; Holst and Greene Jr., 
2008; Holst and Greene Jr., 2010; Holst et al. 2011; Holst et al. 2003; 
Ugoretz and Greene Jr., 2012; Ugoretz, 2014, 2015, 2016).
    In other locations where Navy testing and training activities 
occur, the Navy has also been conducting marine mammal research and 
monitoring in the Pacific Ocean for decades. A formal coordinated 
marine species monitoring program in support of the MMPA and ESA 
authorizations for the Navy Range Complexes worldwide was first 
implemented in 2009. This robust program has resulted in hundreds of 
technical reports and publications on marine mammals that have informed 
Navy and NMFS analyses in environmental planning documents, MMPA rules, 
and ESA Biological Opinions. The reports are made available to the 
public on the Navy's marine species monitoring website 
(www.navymarinespecies monitoring.us), and the data on the Ocean 
Biogeographic Information System Spatial Ecological Analysis of 
Megavertebrate Populations (OBIS-SEAMAP) (https://seamap.env.duke.edu/
) and the Animal Telemetry Network (https://atn.ioos.us/).
    The Navy will continue collecting monitoring data to inform our 
understanding of the occurrence of, and impacts of the Navy's 
activities on, marine mammals on SNI in the PMSR Study Area. NMFS and 
the Navy will coordinate and discuss how monitoring in the PMSR Study 
Area could contribute to the Navy's Marine Species Monitoring Program. 
Taken together, mitigation and monitoring comprise the Navy's 
integrated approach for reducing environmental impacts from the 
specified activities. The Navy's overall monitoring approach seeks to 
leverage and build on existing research efforts whenever possible.
    As agreed upon between the Navy and NMFS, the monitoring measures 
presented here, as well as the mitigation measures described above, 
focus on the protection and management of potentially affected marine 
mammals. A well-designed monitoring program can provide important 
feedback for validating assumptions made in analyses and allow for 
adaptive management of marine resources. Monitoring is required under 
the MMPA, and details of the monitoring program for the specified 
activities have been developed through coordination between NMFS and 
the Navy through the regulatory process for previous Navy at-sea 
training and testing activities.

Required Monitoring on SNI

    In consultation with NMFS, the Navy shall implement a monitoring 
plan for beaches exposed to target and missile launch noise with the 
goal of assessing baseline pinniped distribution/abundance and 
potential changes in pinniped use of these beaches after launch events. 
Marine mammal monitoring will include:
    <bullet> Multiple surveys (e.g., time-lapse photography) during the 
year that record the species, number of animals, general behavior, 
presence of pups, age class, gender and reactions to launch noise or 
other natural or human caused disturbances, in addition to 
environmental conditions that may include tide, wind speed, air 
temperature, and swell.
    <bullet> In addition, video and acoustic monitoring of up to three 
pinniped haulout areas and rookeries will be conducted during launch 
events that include missiles or targets that have not been previously 
monitored using video and acoustic recorders for at least three launch 
events. Video monitoring cameras would be either high-definition video 
cameras, or Forward-Looking Infrared Radiometer (FLIR) thermal imaging 
cameras for night launch events.

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 for Marine Species Monitoring, detailed and 
specific studies are developed which support the Navy's and NMFS' 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 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

[[Page 40944]]

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 Navy 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 zones (thus allowing for more effective implementation of 
the mitigation), and in general, to better achieve the above goals; and
    [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 
will leverage multiple techniques for data acquisition and analysis 
whenever possible. The Strategic Planning Process for Marine Species 
Monitoring is also available online (https://www.navymarinespeciesmonitoring.us/). NMFS and the Navy will coordinate 
and discuss how monitoring in the PMSR Study Area could contribute to 
the Navy's Marine Species Monitoring Program in addition to the 
monitoring that will be conducted on SNI.

Past and Current Monitoring in the PMSR Study Area

    NMFS has received multiple years' worth of annual monitoring 
reports addressing launch activities on SNI within the PMSR 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 on SNI 
within the PMSR 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 https://www.navymarinespeciesmonitoring.us.
    Numerous publications, dissertations, and conference presentations 
have resulted from research conducted under the Navy's marine species 
monitoring program (https://www.navymarinespeciesmonitoring.us/reading-room/publications/), resulting in a significant contribution to the 
body of marine mammal science. Publications on occurrence, 
distribution, and density have fed the modeling input, and publications 
on exposure and response have informed Navy and NMFS analyses of 
behavioral response and consideration of mitigation measures.
    Furthermore, collaboration between the monitoring program and the 
Navy's research and development (e.g., the Office of Naval Research) 
and demonstration-validation (e.g., Living Marine Resources) programs 
has been strengthened, leading to research tools and products that have 
already transitioned to the monitoring program. These include Marine 
Mammal Monitoring on Ranges (M3R), controlled exposure experiment 
behavioral response studies (CEE BRS), acoustic sea glider surveys, and 
global positioning system-enabled satellite tags. Recent progress has 
been made with better integration of monitoring across all Navy at-sea 
study areas, including study areas in the Pacific and the Atlantic 
Oceans, and various testing ranges. Publications from the Living Marine 
Resources and the Office of Naval Research programs have also resulted 
in significant contributions to information on hearing ranges and 
acoustic criteria used in effects modeling, exposure, and response, as 
well as developing tools to assess biological significance (e.g., 
population-level consequences).
    NMFS and the Navy also consider data collected during mitigations 
as monitoring. Data are collected by shipboard personnel on hours spent 
training, hours of observation, and marine mammals observed within the 
mitigation zones when mitigations are implemented. These data are 
provided to NMFS in both classified and unclassified annual exercise 
reports, which will continue under this rule.
    Research funded by the Navy that has included the PMSR Study Area 
includes, but is not limited to the following efforts:
    <bullet> The Navy has funded a number of passive acoustic 
monitoring efforts in the PMSR Study Area as well as locations farther 
to the south in the SOCAL Range Complex. These studies have helped to 
characterize the soundscape resulting from general anthropogenic sound 
as well as the Navy testing and training sound energy contributions 
(Baumann-Pickering et al. 2013; Baumann-Pickering et al. 2015a; 
Baumann-Pickering et al. 2018; Curtis et al. 2020; Debich et al. 2015a; 
Debich et al. 2015b; Hildebrand et al. 2012; Rice et al. 2018a; Rice et 
al. 2017; Rice et al. 2018b; Sirovic et al. 2016; Sirovic et al. 2017; 
Sirovic et al. 2015b; Wiggins et al. 2018).
    <bullet> Fieldwork involving photo-ID, biopsy, visual survey, and 
satellite tagging of blue, fin, and humpback whales were undertaken by 
Oregon State University. This research provided seasonal movement 
tracks, distribution, and behavior of these species in addition to 
biopsy samples used for sex determination and individual 
identifications (Mate et al. 2016; Mate et al. 2018b, 2018c; Mate et 
al. 2015b). The findings from this work have been instrumental in 
supplementing our understanding of the use of BIAs in the PMSR Study 
Area for these species.
    <bullet> The Navy has been collecting abundance data and behavioral 
reactions of pinnipeds during target and missile launch on SNI since 
2001. The marine mammals monitoring reports for SNI can be found here: 
https://www.navymarinespeciesmonitoring.us/reporting/pacific/.
    Additional details on the scientific objectives for the Navy's 
marine species monitoring program in the Pacific (and elsewhere) can be 
found at https://

[[Page 40945]]

www.navymarinespeciesmonitoring.us/regions/pacific/current-projects/. 
Projects can be either major multi-year efforts, or 1 to 2-year special 
studies.
    The majority of the testing and training activities Navy is 
proposing for the foreseeable future in the PMSR Study Area are similar 
if not nearly identical to activities that have been occurring in the 
same locations for decades. In the PMSR Study Area, there are no Major 
Exercises, testing and training events are, by comparison to other Navy 
areas, less frequent and are in general small in scope, so as a result 
the majority of Navy's research effort has been focused elsewhere. For 
this reason, the vast majority of scientific fieldwork, research, and 
monitoring efforts have been expended in the SOCAL Range Complex and 
Hawaii, where Navy training and testing activities have been more 
concentrated. Since 2006, the Navy has been submitting exercise reports 
and monitoring reports to NMFS for the Navy's range complexes in the 
Pacific and the Atlantic. These publicly available exercise reports, 
monitoring reports, and the associated research findings have been 
integrated into adaptive management decisions regarding the focus for 
subsequent research and monitoring as determined in collaborations 
between Navy, NMFS, Marine Mammal Commission, and other marine resource 
subject matter experts using an adaptive management approach. For 
example, see the 2019 U.S. Navy Annual Marine Species Monitoring Report 
for the Pacific that was made available to the public in September 
2020.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Navy training and testing activities in the PMSR Study Area contain an 
adaptive management component. Our understanding of the effects of Navy 
training and testing activities (e.g., 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 
7-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 requirements 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 or monitoring 
measures could be modified if new data suggests that such modifications 
will have a reasonable likelihood of more effectively accomplishing the 
goals of the mitigation and monitoring and if the measures are 
practicable. If the modifications to the mitigation, monitoring, or 
reporting measures are substantial, NMFS will publish a notice of the 
planned LOA in the Federal Register and solicit public comment.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) results 
from monitoring and activity reports, as required by MMPA 
authorizations; (2) compiled results of Navy funded research and 
development 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: https://www.navymarinespeciesmonitoring.us.

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 at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range.

Annual SNI Monitoring Report

    The Navy will submit an annual report to NMFS of the SNI target and 
missile launch activities. The draft annual monitoring report will be 
submitted to the Director, Office of Protected Resources, NMFS, within 
3 months after the end of the reporting year. NMFS will submit comments 
or questions on the draft monitoring report, if any, within 3 months of 
receipt. The report will be considered final after the Navy has 
addressed NMFS' comments, or 3 months after the submission of the draft 
if NMFS does not provide comments on the draft report. The report will 
summarize the launch events conducted during the year; assess any 
direct impacts to pinnipeds from launch events; assess any cumulative 
impacts on pinnipeds from launch events; and summarize pinniped 
monitoring and research activities conducted on SNI and any findings 
related to effects of launch noise on pinniped populations.

Annual PMSR Training and Testing Activity Report

    Each year the Navy will submit a detailed report (Annual PMSR 
Training and Testing Activity Report) to NMFS within 3 months after the 
one-year anniversary of the date of issuance of the LOA. NMFS will 
submit comments or questions on the report, if any, within 1 month of 
receipt. The report will be considered final after the Navy has 
addressed NMFS' comments, or 1 month after submission of the draft if 
NMFS does not provide comments on the draft report. The annual report 
will contain information on all explosives used, total annual number of 
each type of explosive activities; and total annual expended/detonated 
rounds (missiles, bombs etc.) for each explosive bin. The annual report 
will also specifically include information on sound sources used. The 
annual report will also contain the current year's explosive use data 
as well as the cumulative explosive use quantity from previous years' 
reports. Additionally, if there were any changes to the explosives 
allowance in the reporting year or cumulatively, the report will 
include a discussion of why the change was made and include analysis to 
support how the change did or did not affect the analysis in the 2022 
PMSR FEIS/OEIS and MMPA final rule. See the regulatory text below for 
detail on the content of the annual report.
    The final annual/close-out report at the conclusion of the 
authorization period (year 7) will also serve as the comprehensive 
close-out report, and will include both the final year annual use 
compared to annual authorization and a cumulative 7-year annual use 
compared to 7-year authorization. NMFS will submit comments on the

[[Page 40946]]

draft close-out report, if any, within 3 months of receipt. The report 
will be considered final after the Navy has addressed NMFS' comments, 
or 3 months after the submission of the draft if NMFS does not provide 
comments.
    Information included in the annual reports may be used to inform 
future adaptive management of activities within the PMSR Study Area.

Other Reporting and Coordination

    The Navy will continue to report and coordinate with NMFS for the 
following:
    <bullet> Annual marine species monitoring technical review meetings 
(in-person or remote, as circumstances allow and agreed upon by NMFS 
and the Navy) that also include researchers and the Marine Mammal 
Commission (currently every 2 years a joint Pacific-Atlantic meeting is 
held); and
    <bullet> Annual Adaptive Management meetings (in-person or remote, 
as circumstances allow and agreed upon by NMFS and the Navy) that also 
include the Marine Mammal Commission (recently modified to occur in 
conjunction with the annual monitoring technical review meeting).

Analysis and Negligible Impact Determination

General 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 considering 
how Level A harassment or Level B harassment factor into the negligible 
impact analysis, in addition to considering the number of estimated 
takes, 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 baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known).
    In the Estimated Take of Marine Mammals section, we identified the 
subset of potential effects that are reasonably expected to occur and 
rise to the level of takes both annually and over the 7-year period 
covered by this rule, based on the methods described. The impact that 
any given take will have on an individual, and ultimately the species 
or stock, 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.). For this rule, we 
evaluated the likely impacts of the number of harassment takes 
reasonably expected to occur, and are authorized, in the context of the 
specific circumstances surrounding these predicted takes. Last, we 
collectively evaluated this information, as well as other more taxa-
specific information and mitigation measure effectiveness, in group-
specific assessments that support our negligible impact conclusions for 
each species and stock. Because all of the Navy's specified activities 
will occur within the ranges of the marine mammal stocks identified in 
the rule, all negligible impact analyses and determinations are at the 
stock level (i.e., additional species-level determinations are not 
needed).
    As explained in the Estimated Take of Marine Mammals section, no 
take by serious injury or mortality is authorized or anticipated to 
occur.
    The specified activities reflect maximum levels of training and 
testing activities. The Description of the Specified Activity section 
describes annual activities. There may be some flexibility in the exact 
number of detonations that may vary from year to year, but take totals 
will not exceed the 7-year totals indicated in Table 21 as well as take 
annual and 7-year totals described for missile launch activities on SNI 
in Table 22. We base our analysis and negligible impact determination 
on the maximum number of takes that are reasonably expected to occur 
and are authorized, although, as stated before, the number of takes are 
only a part of the analysis, which includes 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 in this General Negligible Impact Analysis section 
that applies to all the species and stocks listed in Table 21 and Table 
22, 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. Then, in the Group and Species-Specific Analyses 
section, we subdivide into discussions of Mysticetes, Odontocetes, and 
Pinnipeds as there are broad life history traits that support an 
overarching discussion of some factors considered within the analysis 
for those groups (e.g., high-level differences in feeding strategies). 
Last, we break our analysis into species (and/or stocks), or groups of 
species (and their 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 or stocks 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 take request, which, as described above, is for 
harassment only, is based on its acoustic model. The model calculates 
sound energy propagation from 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 
and without any avoidance of the activity by the animal. 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 
Section 6 of the Navy's rulemaking/LOA application, 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

[[Page 40947]]

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, Falcone et al. 2017). The 
estimated number of Level A harassment 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 harassment and Level B harassment 
threshold) that are anticipated to occur annually and over the 7-year 
period. These instances may represent either brief exposures (seconds) 
or, in some cases, several exposures within a day. Most explosives 
detonating at or near the surface, especially those involving the 
larger explosive bins such as a MISSILEX, have brief exposures lasting 
only a few milliseconds to minutes for the entire event. Explosive 
events may be a single event involving one explosion (single exposure) 
or a series of intermittent explosives (multiple explosives) occurring 
over the course of a day. Gunnery events, in some cases, may have 
longer durations of exposure to intermittent sound. In general, gunnery 
events can last intermittently over 1-3 hrs in total; however the 
actual exposure during the event will be of a much shorter duration 
(seconds to minutes).
Behavioral Response
    Behavioral reactions from explosive sounds are likely to be similar 
to reactions studied for other impulsive sounds such as those produced 
by air guns. Impulsive signals, particularly at close range, have a 
rapid rise time and higher instantaneous peak pressure than other 
signal types, making them more likely to cause startle responses or 
avoidance responses. Most data has come from seismic surveys that occur 
over long durations (e.g., on the order of days to weeks), and 
typically utilize large multi-air gun arrays that fire repeatedly. 
While seismic air gun data provides the best available science for 
assessing behavioral responses to impulsive sounds (i.e., sounds from 
explosives) by marine mammals, it is likely that these responses 
represent a worst-case scenario compared to most Navy explosive noise 
sources. There are no explosives planned to detonate underwater, only 
those that detonate at or near the surface of the water. For explosives 
detonating at or near the surface, an animal is considered exposed to a 
sound if the received sound level at the animal's location is above the 
background ambient noise level within a similar frequency band. For 
launches of targets and missiles from SNI, years of monitoring have 
demonstrated that sound levels at the nearest pinniped haulout site 
will produce short-term, localized changes in behavior, including 
temporarily vacating haulouts.
    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 the received sound levels and distances 
from the sources when those responses have occurred to predict how many 
instances of Level B harassment by behavioral disturbance 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. NMFS therefore considers 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.
    In the range of potential behavioral effects that might be expected 
to be part of a response that qualifies as an instance of Level B 
harassment by behavioral disturbance (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 seconds or a 
minute. A less severe exposure of this nature 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, 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.
    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) 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. However, 
depending on the context of an exposure (e.g., depth, distance, if an 
animal is engaged in important behavior such as feeding), a behavioral 
response can vary across species and individuals within a species. 
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 would 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 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). Ellison et al. (2012) 
and Moore and Barlow (2013), among others, emphasize the importance of 
context (e.g., behavioral state of the animals, distance from the sound 
source) in evaluating behavioral responses of marine mammals to 
acoustic sources.
Diel Cycle
    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) due to diel and lunar patterns 
in diving and foraging behaviors observed in many cetaceans, including 
beaked whales (Baird et al. 2008, Barlow et al. 2020, Henderson et al. 
2016, Schorr et al. 2014). Henderson et al. (2016) found that ongoing 
smaller scale events had little to no impact on

[[Page 40948]]

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). There are very few multi-day training 
or testing events for PMSR Study Area.
    Durations of Navy activities utilizing explosives vary and are 
fully described in Appendix A (PMSR Scenarios Descriptions) of the 2022 
PMSR FEIS/OEIS. The PMSR Study Area has activity occurring daily, but 
tests range from just a single missile launch or multiple launches, or 
may only be a captive carry where no munitions are air launched but the 
test is to determine the aircraft's ability to function properly with a 
missile on board, to a single or dual target launch from SNI, or a 
CSSQT where the ship's capability is tested by how it performs with a 
multiple weapons systems against a target. Also, while some tests are 
planned well in advance, some portions of or the entire test may be 
canceled due to weather or atmospheric conditions, sea state, a 
particular system or support infrastructure dysfunction, or many other 
factors. Most explosive detonation events are scheduled to occur over a 
short duration (one to a few hours); however, the explosive detonation 
component of the activity only lasts for seconds. Although explosive 
detonation events 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. All of these 
factors make it unlikely that individuals would be exposed to the event 
for extended periods or on consecutive days.
Assessing the Number of Individuals Taken and the Likelihood of 
Repeated Takes
    As described previously, Navy modeling uses the best available 
science to predict the instances of exposure above certain acoustic 
thresholds, which are quantified as harassment takes. However, these 
numbers from the model do not identify whether and when the enumerated 
instances occur to the same individual marine mammal on different days, 
or how any such repeated takes may impact those individuals. One method 
that NMFS uses to help better understand the overall scope of the 
impacts is to compare the total instances of take against the abundance 
of that species (or stock if applicable). For example, if there are 100 
estimated harassment takes in a population of 100, one can assume 
either that every individual will be exposed above acoustic thresholds 
in no more than one day, or that some smaller number will be exposed in 
one day but a few individuals will be exposed multiple days within a 
year and a few not exposed at all. However, in this rule the percentage 
of takes relative to abundance is under five percent for all species 
and in most cases less than one percent, meaning that it is less likely 
that individuals of most species will be taken multiple times, although 
we note that pinnipeds that haul out regularly in areas where 
activities are regularly conducted are more likely to be taken on 
multiple days.
Temporary Threshold Shift
    NMFS and the Navy have estimated that some species and stocks of 
marine mammals may sustain some level of TTS from explosive 
detonations. 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. Explosives are generally 
referenced as broadband because of the various frequencies. Table 21 
indicates the number of takes by TTS that may be incurred by different 
species and stocks from exposure to explosives. 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). TTS from explosives would be broadband.
    2. Degree of the shift (i.e., by how many dB the sensitivity of the 
hearing is reduced)--Generally, both the degree of TTS and the duration 
of TTS will be greater if the marine mammal is exposed to a higher 
level of energy (which would occur when the peak dB level is higher or 
the duration is longer). The threshold for the onset of TTS was 
discussed previously in this 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. The sound resulting 
from an explosive detonation is considered an impulsive sound and 
shares important qualities (i.e., short duration and fast rise time) 
with other impulsive sounds such as those produced by air guns. 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).
    3. Duration of TTS (recovery time)--In the TTS laboratory studies 
(as discussed in the Potential Effects of Specified Activities on 
Marine Mammals and their Habitat section of the proposed rule), some 
using exposures of almost an hour in duration or up to 217 SEL, almost 
all individuals recovered within 1 day (or less, often in minutes), 
although in one study (Finneran et al. 2007) recovery took 4 days. For 
the same reasons discussed in the Analysis and Negligible Impact 
Determination--Diel Cycle section, and because of the short distance 
animals would need to be from 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.
    The TTS takes would be the result of exposure to explosive 
detonations (broad-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) TTS. This means that for one time a year, for 
several minutes, a taken individual will have slightly diminished 
hearing sensitivity (slightly more than natural variation, but nowhere 
near total deafness). 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 across a time period in which the specific 
TTS overlapped the entirety of a critical signal, it is unlikely that 
TTS of the

[[Page 40949]]

nature expected to result from the Navy activities would result in 
behavioral changes or other impacts that would impact any individual's 
(of any hearing sensitivity) reproduction or survival.
Auditory 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, 
versus TTS, which continues beyond the duration of the signal. 
Fundamentally, masking is referred to as a chronic effect because one 
of the key potential 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 sound sources primarily involved 
in this rule, we do not expect the exposures with the potential for 
masking to be of a long duration. 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 low-frequency calls of mysticetes, 
as well as many non-communication cues, such as sounds from fish and 
invertebrate prey and geologic sounds that inform navigation. Masking 
is also more of a concern from continuous sources (versus intermittent) 
where there is no quiet time between a sound source within which 
auditory signals can be detected and interpreted. Explosions introduce 
low-frequency, broadband sounds into the environment, which could 
momentarily mask hearing thresholds in animals that are nearby, 
although sounds from explosions last for only a few seconds at most. 
Masking due to these short duration detonations would not be 
significant. Activities that have multiple, repeated detonations, such 
as some naval gunfire activities, could result in masking for 
mysticetes near the target impact area over the duration of the event. 
Effects of masking are only present when the sound from the explosion 
is present, and the effect is over the moment the sound is no longer 
detectable. Therefore, short-term exposure to the predominantly 
intermittent explosions are not expected to result in a meaningful 
amount of masking. For the reasons described here, any limited masking 
that could potentially occur from explosives would be minor and short-
term and intermittent. Long-term consequences from physiological stress 
due to the sound of explosives would not be expected. In conclusion, 
masking is more likely to occur in the presence of broadband, 
relatively continuous noise sources such as 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 of individuals.
Auditory Injury (Permanent Threshold Shift)
    Table 21 indicates the number of individuals of each species for 
which Level A harassment in the form of PTS resulting from exposure to 
or explosives is estimated to occur. The number of individuals to 
potentially incur PTS annually (from explosives) for each species 
ranges from 0 to 49 (49 is for Dall's porpoise), but is more typically 
0 or 1. As described previously, no species are expected to incur non-
auditory injury from explosives.
    As discussed previously, the Navy utilizes aerial monitoring in 
addition to Lookouts on vessels to detect marine mammals for mitigation 
implementation. These Level A harassment take numbers represent the 
maximum number of instances in which marine mammals would be reasonably 
expected to incur PTS, and we have analyzed them accordingly. In 
relation to TTS, the likely consequences to the health of an individual 
that incurs PTS can range from mild to more serious depending upon the 
degree of PTS and the frequency band it is in. Any PTS accrued as a 
result of exposure to Navy activities would be expected to be of a 
small amount. 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 (Green et al. 1987; Houser et al. 2008; Ketten 2012; 
Mann et al. 2010; McGowan et al. 2020). 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 of any individuals.
Physiological Stress Response
    Some of the lower level physiological stress responses (e.g., 
orientation or startle response, change in respiration, change in heart 
rate) discussed in the Potential Effects of Specified Activities on 
Marine Mammals and their Habitat 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. However, we would not expect the Navy's 
generally short-term and intermittent 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.

Group and Species-Specific Analyses

    In this section, we build on the general analysis that applies to 
all marine mammals in the PMSR Study Area from the previous section, 
and include first information and analysis that applies to mysticetes 
or, separately, odontocetes, and pinnipeds and then within those three 
sections, more specific information that applies to smaller groups, 
where applicable, and the affected species or stocks. The specific 
authorized take numbers are discussed in Table 34 and Table 35, and 
here we provide some additional context and discussion regarding how we 
consider the authorized take numbers in those analyses. The maximum 
amount and type of incidental take of marine mammals reasonably likely 
to occur from explosive detonations and target and missile launch 
activities and therefore authorized during the 7-year training and 
testing period are shown in Table 34 and Table 35 below. The vast 
majority of predicted exposures are expected to be Level B harassment 
(TTS and behavioral disturbance) from explosive sources during training 
and testing activities and target and missile launch activities on SNI.

[[Page 40950]]



 Table 34--Annual Estimated Takes by Level A Harassment and Level B Harassment for Marine Mammals in the PMSR Study Area (Excluding SNI) and the Number
                                        Indicating the Instances of Total Take as a Percentage of Stock Abundance
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Annual take by Level A harassment and Level B
                                                                            harassment                                       Abundance
            Common name                   Stock/DPS      ------------------------------------------------   Total take      (2021 draft    Percent taken
                                                            Behavioral                                                     SARs or most    by abundance
                                                             response           TTS             PTS                        recent SARs)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale *......................  Eastern North                      7               4               0              11           1,496            0.74
                                     Pacific.
Fin whale *.......................  California, Oregon,               14               7               1              22           9,029            0.24
                                     and Washington.
Gray whale........................  Eastern North                      9               5               0              14          26,960            0.05
                                     Pacific.
Humpback whale *..................  California, Oregon,                7               4               0              11           2,900            0.38
                                     and Washington/
                                     Mexico DPS.
                                    California, Oregon,                1               0               0               1           2,900            0.03
                                     and Washington/
                                     Central America DPS.
Minke whale.......................  California, Oregon,                2               1               0               3             636            0.47
                                     and Washington.
Bottlenose dolphin................  California, Oregon,                5               5               1          \a\ 16            1924            0.57
                                     and Washington
                                     Offshore.
Dall's porpoise...................  California, Oregon,              261             406              49             716          25,750            2.78
                                     and Washington.
Dwarf sperm whale.................  California, Oregon,               20              31               6              57           4,111            1.39
                                     and Washington.
Long-beaked common dolphin........  California..........              66              44               9             255         101,305            0.12
Northern right whale dolphin......  California, Oregon,                3               2               1          \c\ 14          26,556            0.02
                                     and Washington.
Pacific white-sided dolphin.......  California, Oregon,               11               8               2          \d\ 26          26,814            0.08
                                     and Washington.
Pygmy sperm whale.................  California, Oregon,               20              31               6              57           4,111            1.39
                                     and Washington.
Risso's dolphins..................  California, Oregon,                6               3               1          \e\ 19           6,336            0.16
                                     and Washington.
Short-beaked common dolphin.......  California, Oregon,               90              65              15             170         969,861            0.02
                                     and Washington.
Sperm whale *.....................  California, Oregon,                1               1               0               2           1,997            0.10
                                     and Washington.
Striped dolphin...................  California, Oregon,                1               1               0          \f\ 56          29,211            0.01
                                     and Washington.
Harbor seal.......................  California..........             202             120              14             336          30,968            1.08
Northern elephant seal............  California..........              37              63              22             122         179,000            0.07
California sea lion...............  U.S. Stock..........               8              12               2              22         257,606            0.01
Guadalupe fur seal *..............  Mexico to California               1               1               0               2          34,187            0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Percentages taken by abundance may be less for some stocks as the abundance would be less in the PMSR Study Area depending on the range of a
  particular stock.
* ESA-listed species in PMSR Study Area.
\a\ Total Annual Level B harassment takes for the California, Oregon, and Washington Offshore stock of Bottlenose dolphin were increased from 11 annual
  modeled takes to 16 annual takes to account for group size.
\b\ Total Annual Level B harassment takes for the California stock of Long-beaked Common dolphin were increased from 119 annual modeled takes to 255
  annual takes to account for group size.
\c\ Total Annual Level B harassment takes for the California, Oregon, and Washington stock of Northern right whale dolphin were increased from 6 annual
  modeled takes to 14 annual takes to account for group size.
\d\ Total Annual Level B harassment takes for the California, Oregon, and Washington stock of Pacific white-sided dolphin were increased from 21 annual
  modeled takes to 26 annual takes to account for group size.
\e\ Total Annual Level B harassment takes for the California, Oregon, and Washington stock of Risso's dolphin were increased from 10 annual modeled
  takes to 19 annual takes to account for group size.
\f\ Total Annual Level B harassment takes for the California, Oregon, and Washington stock of Striped dolphin were increased from 2 annual modeled takes
  to 56 annual takes to account for group size.


[[Page 40951]]


     Table 35--Annual Estimated Takes by Level B Harassment for Pinnipeds on SNI and Instances of Take as a
                                          Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------
                                                                     Abundance
                                                  Annual take by    (2021 draft    Percent taken   7-year total
            Species                   Stock           Level B      SARs or most    by abundance    take by Level
                                                    harassment     recent SARs)                    B harassment
----------------------------------------------------------------------------------------------------------------
California sea lion...........  U.S.............          11,000         257,606            4.27          77,000
Harbor seal...................  California......             480          30,968            1.55           3,360
Northern elephant seal........  California......              40         179,000            0.02             280
----------------------------------------------------------------------------------------------------------------

    In the discussions below, the estimated takes by Level B harassment 
represent instances of take, not the number of individuals taken (the 
much lower and less frequent takes by Level A harassment are far more 
likely to be associated with separate individuals). The total take 
numbers (by any method of taking) for species are compared to their 
associated abundance estimates to evaluate the magnitude of impacts 
across the species and to individuals. Abundance percentage comparisons 
are less than three percent for all species and stocks and nearly all 
are one percent or less and zero in many cases for explosives and less 
than five percent for all species on SNI from target and missile launch 
activities. This means that: (1) not all of the individuals will be 
taken, and many will not be taken at all; (2) barring specific 
circumstances suggesting repeated takes of individuals (such as in 
circumstances where all activities resulting in take are focused in one 
area and time where the same individual marine mammals are known to 
congregate, such as pinnipeds on SNI), the average or expected number 
of days taken for those individuals taken is one per year; and (3) we 
would not expect any individuals to be taken more than a few times in a 
year, or for those days to be sequential.
    To assist in understanding what this analysis means, we clarify a 
few issues related to estimated takes and the analysis here. An 
individual that incurs PTS or TTS may sometimes, for example, also be 
subject to direct behavioral disturbance at the same time. As described 
above in this section, the degree of PTS, and the degree and duration 
of TTS, expected to be incurred from the Navy's activities are not 
expected to impact marine mammals such that their reproduction or 
survival could be affected. Similarly, data do not suggest that a 
single instance in which an animal incurs PTS or TTS and also has an 
additional direct behavioral response would result in impacts to 
reproduction or survival. Accordingly, in analyzing the numbers of 
takes and the likelihood of repeated and sequential takes, we consider 
all the types of take, so that individuals potentially experiencing 
both threshold shift and direct behavioral responses are appropriately 
considered. The number of Level A harassment takes by PTS are so low 
(and zero in most cases) compared to abundance numbers that it is 
considered highly unlikely that any individual would be taken at those 
levels more than once.
    On the less severe end, exposure to comparatively lower levels of 
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 fed 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 not expected to occur.
    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).
    The analyses below in some cases address species and stocks 
collectively if they occupy the same functional hearing group (i.e., 
low, mid, and high-frequency cetaceans and pinnipeds), share similar 
life history strategies, and/or are known to behaviorally respond 
similarly to stressors. Because some of these groups or species share 
characteristics that inform the impact analysis similarly, it would be 
duplicative to repeat the same analysis for each species. In addition, 
similar species typically have the same hearing capabilities and 
behaviorally respond in the same manner.
    Thus, our analysis below considers the effects of the Navy's 
activities on each affected species or stock even where discussion is 
organized by functional hearing group and/or information is evaluated 
at the group level. Where there are meaningful differences between 
species that would further differentiate the analysis, they are either 
described within the section or the discussion for those species or 
stocks is included as a separate subsection. Specifically, below, we 
first give broad descriptions of the mysticete, odontocete, and 
pinniped groups and then differentiate into further groups as 
appropriate.
Mysticetes
    This section builds on the broader discussion above and brings 
together the discussion of the different types and amounts of take that 
different species and stocks could potentially or will likely to incur, 
the applicable mitigation, and the status of the species and stocks to 
support the negligible impact determinations for each species or stock. 
We have described (above in the General Negligible Impact Analysis 
section) the unlikelihood of any masking having effects that would 
impact the reproduction or survival of any of the individual marine 
mammals affected by the Navy's activities. We also described in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat section of the proposed rule that the specified activities 
would not have adverse or long-term impacts on marine mammal habitat, 
and therefore the unlikelihood of any habitat impacts affecting the 
reproduction or survival of any of the individual marine mammals 
affected by the Navy's activities. No new information has been received 
that

[[Page 40952]]

affects this analysis and conclusion. There is no predicted non-
auditory tissue damage from explosives for any species, and only one 
take by PTS of any mysticete (fin whale) annually. Much of the 
discussion below focuses on the behavioral effects and the mitigation 
measures that reduce the probability or severity of effects. Because 
there are species-specific considerations, at the end of the section we 
break out our findings on a species-specific basis.
    In Table 34 above, we indicate for each species the total annual 
numbers of take by Level A harassment and Level B harassment for 
mysticetes, and a number indicating the instances of total take as a 
percentage of abundance in the PMSR Study Area. Note also that for 
mysticetes, the abundance within the PMSR Study Area represents only a 
portion of the species or stock abundance.
    No Bryde's whales, gray whales (Western North Pacific stock), or 
sei whales would be taken by Level A harassment or Level B harassment 
and therefore are not discussed further. For other mysticetes, exposure 
to explosives will result in small numbers of take: 1-14 takes by Level 
B harassment by behavioral disturbance per species, and 4-7 by TTS per 
species. One take by PTS will result for fin whales and 0 for all other 
mysticetes. Based on this information, the majority of the Level B 
harassment by behavioral disturbance is expected to be of low severity 
and of shorter duration. No non-auditory tissue damage from training 
and testing activities is anticipated to occur or authorized for any 
species.
    Research and observations show that if mysticetes are exposed to 
impulsive sounds such as those from explosives, they may react in a 
number of ways, which may include alerting, startling, breaking off 
feeding dives and surfacing, diving or swimming away, changing 
vocalization, or showing no response at all (DoD, 2017; Nowacek, 2007; 
Richardson, 1995; Southall et al. 2007). Overall and in consideration 
of the context for an exposure, mysticetes have been observed to be 
more reactive to acoustic disturbance when a noise source is located 
directly in their migration path or the source is nearby (somewhat 
independent of the sound level) (Dunlop et al. 2016; Dunlop et al. 
2018; Ellison et al. 2011; Friedlaender et al. 2016; Henderson et al. 
2019; Malme et al. 1985; Richardson et al. 1995; Southall et al. 
2007a). 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, while males en route to breeding 
grounds have been shown to be less responsive to disturbances. Although 
some may pause temporarily, they will resume migration shortly after 
the exposure ends. 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. Because noise from most activities using explosives is short 
term and intermittent, and because detonations usually occur within a 
small area, behavioral reactions from mysticetes, if they occur at all, 
are likely to be short term and of little to no significance.
    Noise from explosions is broadband with most energy below a few 
hundred Hz; therefore, any reduction in hearing sensitivity from 
exposure to explosive sounds is likely to be broadband with effects 
predominantly at lower frequencies. Mysticetes that do experience 
threshold shift (i.e., TTS or the one instance of PTS for fin whale) 
from exposure to explosives may have reduced ability to detect 
biologically important sounds (e.g., social vocalizations). For 
example, during the short period that a mysticete experiences TTS, 
social calls from conspecifics could be more difficult to detect or 
interpret, the ability to detect predators may be reduced, and the 
ability to detect and avoid sounds from approaching vessels or other 
stressors might be reduced. Any TTS that occurs would be of short 
duration.
    While NMFS can make a negligible impact determination on Navy's 
estimated take numbers, the implementation of mitigation and the 
sightability of mysticetes (especially given their large size) reduces 
the potential for, and severity of, any threshold shift for mysticetes. 
When we look in ocean areas where the Navy has been intensively 
training and testing with explosive and other active acoustic sources 
for decades, there are no data suggesting any long-term consequences to 
reproduction or survival rates of mysticetes from explosives and other 
active acoustic sources. All the mysticete species discussed in this 
section will benefit from the mitigation measures described earlier in 
the Mitigation Measures section. Below we compile and summarize the 
information that supports our determination that the Navy's activities 
will not adversely affect any species or stock through effects on 
annual rates of recruitment or survival for any of the affected 
mysticete species.
    Humpback whale--As noted in the Description of Marine Mammals and 
Their Habitat in the Area of the Specified Activities section, humpback 
whales in the PMSR Study Area are part of the ESA-threatened Mexico DPS 
and ESA-endangered Central America DPS of the California/Oregon/
Washington (CA/OR/WA) stock with an increasing population trend. ESA 
Critical Habitat has been designated (86 FR 21082; April 21, 2021) in 
nearshore waters of the North Pacific Ocean for the endangered Central 
America DPS and the threatened Mexico DPS of humpback whales since the 
proposed rule with some overlap in the PMSR Study Area. There are two 
biologically important areas for humpback whale feeding that overlap 
with a portion of the PMSR Study Area--the Morro Bay to Point Sal 
Feeding Area (designated from April to November) and the Santa Barbara 
Channel-San Miguel Feeding Area (designated from March to September) 
(Calambokidis et al. 2015). Navy testing and training activities that 
use explosives could occur year round within the PMSR Study Area, 
although they generally would not occur in these relatively nearshore 
feeding areas, because both areas are close to the northern Channel 
Islands NMS, oil production platforms, and major vessel routes leading 
to and from the ports of Los Angeles and Long Beach. Further, even if 
some small number of humpback whale takes occurred in these BIAs and 
were to disrupt feeding behaviors, the short-term nature of the 
anticipated takes from these activities, combined with the likelihood 
that they would not occur on more than one day for any individual 
within a year, means that they are not expected to impact the 
reproduction or survival of any individuals.
    NMFS has authorized 12 takes by Level B harassment (see Table 34): 
7 takes by behavioral disturbance and 4 takes by TTS for Mexico DPS 
humpback whales and 1 take by behavioral disturbance and 0 takes by TTS 
for Central America DPS humpback whales (Table 34). Regarding the 
magnitude of takes by Level B harassment (TTS and behavioral 
disruption), the number of estimated total instances of take compared 
to the abundance is less than 1 percent (Table 34). Regarding the 
severity of those individual takes by Level B harassment by behavioral 
disruption, we have explained that the duration of any exposure is 
expected to be between seconds and minutes (i.e., short duration) 
(i.e., of a low level and unlikely to evoke a severe response). 
Regarding the severity of takes by TTS,

[[Page 40953]]

they are expected to be low-level, of short duration not at a level 
that will impact reproduction or survival.
    Altogether, the CA/OR/WA stock includes the ESA-listed Mexico DPS 
(threatened) and Central America (endangered) DPS of humpback whales 
and has an increasing population trend. There is critical habitat for 
humpback whales in the PMSR Study Area. Our analysis suggests only a 
very small portion of the stock will be taken and disturbed at a low-
level with those individuals disturbed on likely one day within a year. 
The authorized takes are not expected to result in impacts on the 
reproduction or survival of any individuals, let alone have impacts on 
annual rates of recruitment or survival. No Level A harassment, serious 
injury, or mortality is anticipated to occur or is authorized. This low 
magnitude and severity of harassment effects is not expected to result 
in impacts on the reproduction or survival of any individuals, let 
alone have impacts on annual rates of recruitment or survival. 
Therefore, the total take will not adversely affect this species 
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 humpback whales.
    Blue whale--Blue whales are listed as endangered under the ESA 
throughout their range. The Eastern North Pacific stock occurs in the 
PMSR Study Area with a stable population trend (NMFS 2019; Calambokidis 
and Barlow, 2020). There is no ESA-designated critical habitat, but 
there are three biologically important areas (BIAs) for feeding 
identified for blue whales in the PMSR Study Area. The feeding areas 
overlap (one wholly and two partially) with the PMSR Study Area (June 
through October). Navy testing and training activities that use 
explosives could occur year round within the PMSR Study Area. However, 
activities using explosives generally would not take place in the Point 
Conception/Arguello to Point Sal Feeding Area or the Santa Barbara 
Channel and San Miguel Feeding Area, because both areas are close to 
the northern Channel Islands NMS, oil production platforms, and major 
vessel routes leading to and from the ports of Los Angeles and Long 
Beach. The SNI feeding area overlaps a part of the PMSR Study Area that 
has been in high use for Navy testing and training activities for 
decades. Over the years, there has been very little change in Navy 
testing and training off SNI, and the waters within Warning Area 289, 
which overlap with the SNI Feeding Area, are essential for testing and 
training given their proximity to SNI. The area is used during 
activities requiring an aerial target impact area, missile launches 
from SNI, aerial and ship-based gunnery events, and sea surface missile 
launches. Even if some small number of blue whale takes occurred in 
these BIAs and were to disrupt feeding behaviors, the short-term nature 
of the anticipated takes from these activities, combined with the 
likelihood that they would not occur on more than one day for any 
individual within a year, means that they are not expected to impact 
the reproduction or survival of any individuals.
    NMFS has authorized 11 takes by Level B harassment, 7 takes by 
behavioral disturbance and 4 takes by TTS for blue whales (Table 34). 
Regarding the magnitude of takes by Level B harassment (TTS and 
behavioral disruption), the number of estimated total instances of take 
compared to the abundance is less than 1 percent (Table 34). Regarding 
the severity of those individual takes by Level B harassment by 
behavioral disturbance, we have explained that the duration of any 
exposure is expected to be between seconds and minutes (i.e., short 
duration) (i.e., of a low-level). Regarding the severity of takes by 
TTS, they are expected to be low-level, of short duration not at a 
level that will impact reproduction or survival.
    Altogether, blue whales are listed as endangered, though the 
Eastern North Pacific stock is stable, and has a very large range. Our 
analysis suggests that a very small portion of the stock will be taken 
and disturbed at a low-level, with those individuals disturbed on 
likely one day within a year. No Level A harassment, serious injury, or 
mortality is anticipated to occur or authorized. This low magnitude and 
severity of harassment effects is not expected to result in impacts on 
the reproduction or survival of any individuals, let alone have impacts 
on annual rates of recruitment or survival. Therefore, the total take 
will not adversely affect this species 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 blue whales.
    Fin whale--Fin whales are listed as endangered under the ESA 
throughout their range, with no ESA designated critical habitat or 
known biologically important areas identified for this species in the 
PMSR Study Area. The population trend for the CA/OR/WA stock, found in 
the PMSR Study Area, is increasing (NMFS 2019).
    NMFS has authorized 22 takes by Level B harassment, 14 takes by 
behavioral disturbance, 7 takes by TTS, and 1 take by PTS for fin 
whales (Table 34. Regarding the magnitude of takes by Level B 
harassment (TTS and behavioral disruption), the number of estimated 
total instances of take compared to the abundance is less than 1 
percent (Table 34). Regarding the severity of those individual takes by 
Level B harassment by behavioral disturbance, we have explained that 
the duration of any exposure is expected to be between seconds and 
minutes (i.e., short) (i.e., of a low level). Regarding the severity of 
takes by TTS, they are expected to be low-level, of short duration not 
at a level that will impact reproduction or survival.
    Altogether, fin whales are listed as endangered, with no designated 
critical habitat or biologically important areas in the PMSR Study 
Area, and the CA/OR/WA stock is increasing. Our analysis suggests that 
a very small portion of the stock will be taken and disturbed at a low 
level, with those individuals disturbed on likely one day within a 
year. No serious injury or mortality is anticipated to occur or 
authorized. This low magnitude and severity of harassment effects is 
not expected to result in impacts on the reproduction or survival of 
any individuals, let alone have impacts on annual rates of recruitment 
or survival. Therefore, the total take will not adversely affect this 
species 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 fin whales.
    Gray whale (Eastern North Pacific stock)--The Gray whale (Eastern 
North Pacific stock) is not listed as endangered or threatened under 
the ESA and has an increasing population trend. There is an active UME 
for gray whales off the West Coast. The Eastern North Pacific 
population of gray whales that migrate along the West Coast has 
declined about 24 percent since 2016. It now stands at an estimated 
20,580 whales (Stellar and Weller 2021). That is similar to previous 
fluctuations in the Eastern North Pacific population that has since 
recovered from the days of whaling. The decline coincides with the UME 
declared in 2019 and resembles a similar 23 percent decline documented 
after a UME 20 years earlier, in 1999-2000. The gray whale population 
rebounded following that previous UME to greater numbers than before. 
The continuing change in

[[Page 40954]]

gray whale numbers suggests that large-scale fluctuations of this 
nature are not rare. The observed declines in abundance appear to 
represent short-term events that have not resulted in any detectable 
longer-term impacts on the population. We do not anticipate any 
mortality or impacts on reproduction or survival of any individuals, 
and given the low magnitude and severity of effects from Level B 
harassment only, even with the UME, they will not result in impacts on 
individual reproduction or survival, much less annual rates of 
recruitment or survival. Therefore, population-level effects to gray 
whales from the Navy's activities despite the UME are not anticipated.
    Four designated biologically important areas for migration for gray 
whales (Calambokidis et al. 2015) overlap with the PMSR Study Area and 
are active migration areas from October through July, although each 
individual area has its own specific date range depending on what 
portion of the northbound or southbound migration it is meant to cover. 
Gray whales will cross the PMSR Study Area twice a year during their 
annual southbound and northbound migrations. Navy testing and training 
activities that use explosives could occur year round within the PMSR 
Study Area, but generally they will occur farther offshore than the 
shallow-water, nearshore habitat generally preferred by gray whales 
during their migration. In an early study investigating the behavior of 
migrating gray whales exposed to an impulsive source in their migration 
path, a startle response was observed in 42 percent of the cases, but 
the change in behavior, when it occurred, did not persist (Malme et al. 
1984; Malme et al. 1988; Richardson, 1995). If a gray whale were to 
react to sound from an explosion, it may pause its migration until the 
noise ceases or moves, or it may choose an alternate route around the 
location of the sound source if the source was directly in the whale's 
migratory path. Even if some small number of gray whale takes occurred 
in these BIAs in the form of disrupted feeding behaviors or traveling 
for migration, the short-term nature of the anticipated takes from 
these activities, combined with the likelihood that they would not 
occur on more than one day for any individual within a year, mean that 
they are not expected to impact the reproduction or survival of any 
individuals.
    NMFS has authorized 14 takes by Level B harassment, 9 takes by 
behavioral disturbance and 5 takes by TTS for gray whales (Table 34). 
Regarding the magnitude of takes by Level B harassment (TTS and 
behavioral disruption), the number of estimated total instances of take 
compared to the abundance is less than 1 percent (Table 34). Regarding 
the severity of those individual takes by Level B harassment by 
behavioral disturbance, we have explained that the duration of any 
exposure is expected to be between minutes and hours (i.e., relatively 
short) (i.e., of a moderate or lower level, less likely to evoke a 
severe response). Regarding the severity of takes by TTS, they are 
expected to be low-level, of short duration not at a level that will 
impact reproduction or survival.
    Altogether, gray whales (Eastern North Pacific stock) are not 
listed under the ESA and the population is increasing. Our analysis 
suggests that a very small portion of the stock will be taken and 
disturbed at a low level, with those individuals disturbed on likely 
one day within a year. No Level A harassment, serious injury, or 
mortality is anticipated to occur or authorized. This low magnitude and 
severity of harassment effects is not expected to result in impacts on 
the reproduction or survival of any individuals, either alone or in 
combination with the effects of the UME, let alone have impacts on 
annual rates of recruitment or survival. Therefore, the total take will 
not adversely affect this species 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 gray whales.
    Minke whale--Minke whale is not listed as endangered or threatened 
under the ESA and there are no known biologically important areas 
identified for these species in the PMSR Study Area. The CA/OR/WA stock 
occurs in the PMSR Study Area with no known population trend.
    NMFS has authorized 3 takes by Level B harassment, 2 takes by 
behavioral disturbance and 1 take by TTS for minke whales (Table 34). 
Regarding the magnitude of takes by Level B harassment (TTS and 
behavioral disruption), the number of estimated total instances of take 
compared to the abundance is less than 1 percent (Table 34). Regarding 
the severity of those individual takes by Level B harassment by 
behavioral disturbance, we have explained that the duration of any 
exposure is expected to be between minutes and hours (i.e., relatively 
short) (i.e., of a moderate or lower level, less likely to evoke a 
severe response). Regarding the severity of takes by TTS, they are 
expected to be low-level, of short duration not at a level that will 
impact reproduction or survival.
    Altogether, minke whales are not listed under the ESA and with no 
known population trend. Our analysis suggests that a very small portion 
of the stock will be taken and disturbed at a low level, with those 
individuals disturbed likely one day within a year. No Level A 
harassment, serious injury, or mortality is anticipated to occur or 
authorized. This low magnitude and severity of harassment effects is 
not expected to result in impacts on the reproduction or survival of 
any individuals, let alone have impacts on annual rates of recruitment 
or survival. Therefore, the total take will not adversely affect this 
species 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 minke whales.
Odontocetes
    This section builds on the broader discussion above and brings 
together the discussion of the different types and amounts of take that 
different species and stocks could potentially or will likely to incur, 
the applicable mitigation, and the status of the species and stock to 
support the negligible impact determinations for each species or stock. 
We have described (above in the General Negligible Impact Analysis 
section) the unlikelihood of any masking having effects that would 
impact the reproduction or survival of any of the individual marine 
mammals affected by the Navy's activities. We also described in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat section of this proposed rule that the specified activities 
would not have adverse or long-term impacts on marine mammals habitat, 
and therefore the unlikelihood of any habitat impacts having affecting 
the reproduction or survival of any of the individual marine mammals 
affected by the Navy's activities. No new information has been received 
that affects this analysis and conclusion. There is no predicted PTS 
from explosives for most odontocetes, with the exception of a few 
species, which is discussed below. There is no predicted non-auditory 
tissue damage from explosives for any species. Much of the discussion 
below focuses on the behavioral effects and the mitigation measures 
that reduce the probability or severity of effects. Here, we include 
information that applies to all of the odontocete species, which are 
then

[[Page 40955]]

further divided and discussed in more detail in the following 
subsections: Kogia whales; sperm whales; beaked whales; porpoise, and 
dolphins and small whales. These subsections include more specific 
information about the groups, as well as conclusions for each species 
represented.
    In Table 34 above, we indicate for each species the total annual 
numbers of take by Level A harassment and Level B harassment for 
odontocetes, and a number indicating the instances of total take as a 
percentage of abundance in the PMSR Study Area. Note also that, for all 
odontocetes where estimated take is authorized their abundance within 
the PMSR Study Area represents only a portion of their respective 
species population.
    No Baird's beaked whale, Cuvier's beaked whale, Mesoplodont spp. 
harbor porpoise, bottlenose dolphin (California coastal stock), killer 
whale, or short-finned pilot whale will be taken by Level A harassment 
or Level B harassment and, therefore, these species and stocks are not 
discussed further.
    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 shift that 
might be incurred by individuals exposed to explosives will 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 one day, and therefore they are 
unlikely to result in impacts on reproduction or survival. The number 
of PTS takes from these activities are very low (0 annually for most, 
1-15 for a few species, and 49 for Dall's porpoise), and as discussed 
previously because of the low degree of PTS (i.e., low amount of 
hearing sensitivity loss), it is unlikely to affect reproduction or 
survival of any individuals.
    The range of potential behavioral effects of sound exposure on 
marine mammals generally, and odontocetes specifically, has been 
discussed in detail previously. There are 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, studies demonstrate that odontocetes may cease their 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). 
Second, while 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), 
odontocetes forage more homogeneously on one fish or squid at a time. 
Therefore, if odontocetes are interrupted while feeding, it is often 
possible to find more prey relatively nearby.
    Dwarf Sperm Whales and Pygmy Sperm Whales (Kogia species)--This 
section builds on the broader odontocete discussion above and brings 
together the discussion of the different types and amounts of take that 
these two species could potentially or will likely incur, the 
applicable mitigation, and the status of the species and stocks to 
support the negligible impact determinations for each species or stock. 
Some Level A harassment by PTS is anticipated annually (6 takes each 
for dwarf and pygmy sperm whale, see Table 34).
    In Table 34 above, we indicate for Kogia species the total annual 
numbers of take by Level A harassment and Level B harassment above for 
dwarf sperm whales and pygmy sperm whales, and a number indicating the 
instances of total take as a percentage of the abundance within the 
PMSR Study Area. Note also that, for dwarf and pygmy sperm whales (and 
all odontocetes), the abundance within the PMSR Study Area represents 
only a portion of the species abundance.
    As discussed above, the majority of takes by Level B harassment by 
behavioral disturbance of odontocetes, and thereby dwarf and pygmy 
sperm whales, is expected to be in the form of low severity of a 
shorter duration. As discussed 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 
harassment by behavioral disturbance, as is expected here, is unlikely 
to cause long-term consequences for either individual animals or 
populations.
    We note that dwarf and pygmy sperm whales, as HF-sensitive species, 
have a lower PTS threshold than all other groups and therefore are 
generally likely to experience larger amounts of TTS and PTS. NMFS 
accordingly has evaluated slightly higher numbers of take for these 
species than most odontocetes (some of which have zero takes of TTS/
PTS). Even though the number of TTS and PTS takes are higher than for 
other odontocetes, any TTS and PTS is expected to be at a low to 
moderate level and for all of the reasons described above, TTS and PTS 
takes are not expected to impact reproduction or survival of any 
individual.
    Neither pygmy sperm whales nor dwarf sperm whales are listed under 
the ESA, and there are no known biologically important areas identified 
for these species in the PMSR Study Area. The CA/OR/WA stocks specified 
for pygmy sperm whales and dwarf sperm whales are found in the PMSR 
Study Area. There is no information on trends for these species within 
the PMSR Study Area. Both pygmy and dwarf sperm whales will benefit 
from the mitigation measures described earlier in the Mitigation 
Measures section.
    Regarding the magnitude of Level B harassment takes (TTS and 
behavioral disruption), the number of estimated total instances of take 
compared to the abundance is less than 2 percent for both dwarf and 
pygmy sperm whales in the PMSR Study Area (Table 34). Regarding the 
severity of those individual Level B harassment takes by behavioral 
disruption, we have explained that the duration of any exposure is 
expected to be between seconds and minutes (i.e., short duration). 
Regarding the severity of TTS takes, they are expected to be low to 
moderate level, of short duration, but any associated lost 
opportunities and detection capabilities are not at a level that will 
impact reproduction or survival. Dwarf sperm whales and pygmy sperm 
whales could be taken by a small amount of PTS annually, of

[[Page 40956]]

likely low to moderate severity as described previously. A small 
permanent loss of hearing sensitivity (PTS) may include some degree of 
energetic costs for compensating or may mean some small loss of 
opportunities or detection capabilities, but at the expected degree the 
estimated takes by Level A harassment takes by PTS for dwarf sperm 
whales and pygmy sperm whales are unlikely to impact behaviors, 
opportunities, or detection capabilities to a degree that will 
interfere with reproductive success or survival of any individuals, let 
alone affect annual rates of recruitment or survival for the species or 
stock.
    Altogether, although dwarf and pygmy sperm whales are not listed 
under the ESA and there are no known population trends, our analysis 
suggests that a small portion of the stock in the PMSR Study Area will 
be taken, and disturbed at a low to moderate level, with those 
individuals likely not disturbed on more than one day a year. No 
serious injury or mortality is anticipated to occur or authorized. The 
low magnitude and low to moderate severity of harassment effects is not 
expected to result in impacts on the reproduction or survival of any 
individuals, let alone have impacts on annual rates of recruitment or 
survival. Therefore, the total take will not adversely affect this 
species through impacts on annual rates of recruitment or survival. 
Some individuals are estimated to be taken by PTS of likely low to 
moderate severity. A small permanent loss of hearing sensitivity (PTS) 
may include some degree of energetic costs for compensating or may mean 
some small loss of opportunities or detection capabilities, but at the 
expected scale the estimated takes by Level A harassment by PTS are 
unlikely to impact behaviors, opportunities, or detection capabilities 
to a degree that would interfere with reproductive success or survival 
of any individuals, let alone affect 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 both dwarf and pygmy 
sperm whales.
    Sperm whale--This section brings together the broader discussion 
above with the discussion of the different types and amounts of take 
that sperm whales could potentially incur, the applicable mitigation, 
and the status of the species to support the negligible impact 
determination.
    In Table 34 above, we indicate the total annual numbers of take by 
Level A harassment and Level B harassment for sperm whales, and a 
number indicating the instances of total take as a percentage of the 
abundance within the PMSR Study Area. Note also that, for sperm whales, 
the abundance within the PMSR Study represents only a portion of the 
species abundance.
    As discussed above, the majority of takes by Level B harassment by 
behavioral disturbance of odontocetes, and thereby sperm whales, is 
expected to be in the form of low severity of a generally shorter 
duration and is unlikely to cause long-term consequences for either 
individual animals or populations.
    Sperm whales are listed as endangered under the ESA throughout 
their range, but there is no ESA designated critical habitat or known 
biologically important areas identified for this species within the 
PMSR Study Area. The CA/OR/WA stock occurs in the PMSR Study with a 
stable population trend (NMFS 2019). Sperm whales will benefit from the 
mitigation measures described earlier in the Mitigation Measures 
section.
    Regarding the magnitude of takes by Level B harassment (TTS and 
behavioral disruption), the number of estimated total instances of take 
compared to the abundance is less than 1 percent in the PMSR Study Area 
(Table 34). Regarding the severity of those individual takes by Level B 
harassment by behavioral disturbance, we have explained that the 
duration of any exposure is expected to be between seconds and minutes 
(i.e., short duration) and of a low level. Regarding the severity of 
TTS takes, they are expected to be low-level, of short duration, and 
would not be at a level that will impact reproduction or survival.
    Altogether, although sperm whales are listed as endangered under 
the ESA and have a stable population trend, our analysis suggests that 
very few individuals within the PMSR Study Area will be taken and 
disturbed at a low level, with those individuals disturbed on likely 
one day within a year. No Level A harassment, serious injury, or 
mortality is anticipated to occur or authorized. This low magnitude and 
low severity of harassment effects is not expected to result in impacts 
on the reproduction or survival of any individuals, let alone have 
impacts on annual rates of recruitment or survival. Therefore, the 
total take will not adversely affect this species 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 sperm whales.
    Porpoise (Dall's Porpoise)--This section builds on the broader 
odontocete discussion above and brings together the discussion of the 
different types and amounts of take that Dall's porpoise are likely to 
incur, the applicable mitigation, and the status of the species to 
support the negligible impact determinations for each species. Some 
Level A harassment by PTS is anticipated annually (49 takes, see Table 
34).
    In Table 34 above, we indicate the total annual numbers of take by 
Level A harassment and Level B harassment for Dall's porpoise, and a 
number indicating the instances of total take as a percentage of the 
abundance within the PMSR Study Area. Note also that, for Dall's 
porpoise (and all odontocetes), the abundance within the PMSR Study 
Area represents only a portion of the species abundance.
    As discussed above, the majority of takes by Level B harassment by 
behavioral disturbance of odontocetes, and thereby Dall's porpoise, is 
expected to be in the form of low to moderate severity of a shorter 
duration. As discussed 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 harassment by 
behavioral disturbance, as is expected here, is unlikely to cause long-
term consequences for either individual animals or populations.
    We note that Dall's porpoise, as HF-sensitive species, have a lower 
PTS threshold than all other groups and therefore are generally likely 
to experience larger amounts of TTS and PTS. NMFS accordingly has 
evaluated slightly higher numbers of take for these species than most 
odontocetes (some of which have zero takes of TTS/PTS). Therefore, even 
though the number of TTS and PTS takes are higher than for other 
odontocetes, any TTS or PTS is expected to be at a low to moderate 
level and for all of the reasons described above, TTS and PTS takes are 
not expected to impact reproduction or survival of any individual.
    Dall's porpoise are not listed under the ESA, and there are no 
known biologically important areas identified for these species in the 
PMSR Study Area. The CA/OR/WA stock is found in the PMSR Study Area. 
There is no information on trends for this species within the PMSR 
Study Area. Dall's porpoise will benefit from the mitigation measures 
described earlier in the Mitigation Measures section.

[[Page 40957]]

    Regarding the magnitude of Level B harassment takes (TTS and 
behavioral disruption), the number of estimated total instances of take 
compared to the abundance is less than 3 percent for Dall's porpoise in 
the PMSR Study Area (Table 34). Regarding the severity of those 
individual Level B harassment takes by behavioral disruption, we have 
explained that the duration of any exposure is expected to be between 
seconds and minutes (i.e., relatively short duration). Regarding the 
severity of TTS takes, they are expected to be low to moderate level, 
of short duration, and any associated lost opportunities and detection 
capabilities are not at a level that will impact reproduction or 
survival. Dall's porpoise could be taken by a small amount of PTS 
annually, of likely low to moderate severity as described previously. A 
small permanent loss of hearing sensitivity (PTS) may include some 
degree of energetic costs for compensating or may mean some small loss 
of opportunities or detection capabilities, but at the expected degree 
the estimated takes by Level A harassment takes by PTS for Dall's 
porpoise are unlikely to impact behaviors, opportunities, or detection 
capabilities to a degree that will interfere with reproductive success 
or survival of any individuals, let alone affect annual rates of 
recruitment or survival.
    Altogether, although Dall's porpoise are not listed under the ESA 
and there are no known population trends for the CA/OR/WA stock our 
analysis suggests that a small portion of the stock will be taken, and 
disturbed at a low to moderate level, with those individuals likely not 
disturbed on more than one day or so a year. No serious injury or 
mortality is anticipated to occur or authorized. The low magnitude and 
low to moderate severity of harassment effects is not expected to 
result in impacts on the reproduction or survival of any individuals, 
let alone have impacts on annual rates of recruitment or survival. 
Therefore, the total take will not adversely affect this species 
through impacts on annual rates of recruitment or survival. Some 
individuals are estimated to be taken by PTS of likely low to moderate 
severity. A small permanent loss of hearing sensitivity (PTS) may 
include some degree of energetic costs for compensating or may mean 
some small loss of opportunities or detection capabilities, but at the 
expected scale the estimated takes by Level A harassment by PTS are 
unlikely to impact behaviors, opportunities, or detection capabilities 
to a degree that would interfere with reproductive success or survival 
of any individuals, let alone affect 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 Dall's porpoise.
    Small Whales and Dolphins--This section builds on the broader 
odontocete discussion above and brings together the discussion of the 
different types and amounts of take that different small whale and 
dolphin species are likely to incur, the applicable mitigation, and the 
status of the species and stocks to support the negligible impact 
determinations for each species or stock.
    In Table 34 above, we indicate for each species the total annual 
numbers of take by Level A harassment and Level B harassment for 
dolphins and small whales, and a number indicating the instances of 
total take as a percentage of abundance in the PMSR Study Area. Note 
also that, for dolphins and small whales, the abundance within the PMSR 
Study Area represents only a portion of the respective species' 
abundance.
    The majority of takes by Level B harassment are expected to be in 
the form of low severity of a shorter duration. Occasional milder Level 
B harassment by behavioral disturbance, as is expected here, is 
unlikely to cause long-term consequences for either individual animals 
or populations that have any effect on reproduction or survival. 
Limited Level A harassment (PTS) is anticipated to occur or authorized 
for six species (Long and short-beaked common dolphins, bottlenose 
dolphin, Risso's dolphin, Pacific white-sided dolphin, and Northern 
right whale dolphin).
    Research and observations show that if delphinids are exposed to 
sounds 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, such as with a 
ship with hull-mounted sonar, 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, such as bottlenose dolphins, spotted dolphins, spinner 
dolphins, rough-toothed dolphins, etc., but not Risso's dolphins), 
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. Dolphins 
and small whales 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.
    All the dolphin and small whale species discussed in this section 
will benefit from the mitigation measures described earlier in the 
Mitigation Measures section.
    None of the small whale and dolphin species are listed as 
endangered or threatened species under the ESA. There are CA/OR/WA 
stocks for most of the small whales and dolphins found in the PMSR 
Study Area and most have unknown population trends, with the exception 
of the Short-beaked common dolphin that has a stable population trend 
and the Long-beaked common dolphin (California stock) that has an 
increasing population trend.
    Regarding the magnitude of takes by Level B harassment (TTS and 
behavioral disturbance), the number of estimated total instances of 
take compared to the abundance is less than one percent for the 
dolphins and small whales in the PMSR Study Area (Table 34). Regarding 
the severity of those individual takes by Level B harassment by 
behavioral disturbance, we have explained the duration of any exposure 
is expected to be between seconds and minutes (i.e., short duration). 
Regarding the severity of takes by TTS, they are expected to be low-
level, of short duration and not at a level that will impact 
reproduction or survival. One to two individuals each of four species 
(Bottlenose dolphin, Northern right whale dolphin, Pacific white-
dolphin, Risso's dolphin) are estimated to be taken by one to two PTS 
annually, of likely low severity as described previously. Slightly more 
takes by PTS for short-beaked common dolphin and long-beaked common 
dolphin are authorized, 15 and 9 takes, respectively. 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, but at the expected scale the estimated takes 
by Level A harassment by PTS are unlikely to impact behaviors, 
opportunities, or detection capabilities to a degree that will 
interfere with reproductive success or survival of any individuals, let 
alone affect annual rates of recruitment or survival.

[[Page 40958]]

    Altogether, none of the small whale or dolphin species are listed 
under the ESA and there are no known population trends for most 
species. No serious injury or mortality is anticipated to occur or 
authorized. Our analysis suggests that only a small portion of the 
individuals of any of these species in the PMSR Study Area will be 
taken and disturbed at a low level, with those individuals likely 
disturbed no more than a day a year. Some take by PTS for five dolphin 
species is anticipated to occur and authorized, but at the expected 
scale the estimated take by Level A harassment by PTS is unlikely to 
impact behaviors, opportunities, or detection capabilities to a degree 
that would interfere with reproductive success or survival of any 
individuals, let alone annual rates of recruitment or survival. This 
low magnitude and severity of harassment effects is not expected to 
result in impacts on the reproduction or survival of any individuals, 
let alone have impacts on annual rates of recruitment or survival. 
Therefore, the total take will not adversely affect these species 
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 all of these species of small whales and dolphins.

Pinnipeds

    This section builds on the broader discussion above and brings 
together the discussion of the different types and amounts of take that 
different species and stocks of pinnipeds will likely incur, the 
applicable mitigation, and the status of the species and stocks to 
support the negligible impact determinations for each species or stock. 
We have described (above in the General Negligible Impact Analysis 
section) the unlikelihood of any masking having effects that will 
impact the reproduction or survival of any of the individual marine 
mammals affected by the Navy's activities. We have also described in 
the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section of this proposed rule that the specified 
activities would not have adverse or long-term impacts on marine mammal 
habitat, and therefore the unlikelihood of any habitat impacts 
affecting the reproduction or survival of any individual marine mammals 
affected by the Navy's activities. For pinnipeds, no serious injury or 
mortality is anticipated to occur or is authorized. Here, we include 
information that applies to all of the pinniped species and stocks.
    In Table 34 and Table 35 above, we indicate the total annual 
numbers of take by Level A harassment and Level B harassment for 
pinnipeds, and a number indicating the instances of total take as a 
percentage of the abundance within the PMSR Study Area by explosives 
and also by target and missile launch activities on SNI. Note also 
that, for pinniped species and stocks, the abundance within the PMSR 
Study Area represents only a portion of the species abundance.
    The majority of take by Level B harassment by behavioral 
disturbance of pinnipeds, is expected to be in the form of low severity 
of short duration for explosives and low to moderate severity of short 
duration for target and missile launches on SNI and is unlikely to 
cause long-term consequences for either individual animals or 
populations.
    Pinnipeds in the PMSR Study Area are not listed under the ESA with 
the exception of the threatened Guadalupe fur seal (Mexico stock), but 
there is no ESA designated critical habitat for the Guadalupe fur seal. 
Pupping does occur on SNI beaches, January through July. The Guadalupe 
fur seal has an increasing population trend. Nevertheless, there is an 
active UME for Guadalupe fur seal. Since 2015, there have been 724 
strandings of Guadalupe fur seals (including live and dead seals). 
However, we do not anticipate any mortality or impacts on reproduction 
or survival of any individuals, and, given the low magnitude and 
severity of effects from Level B harassment only (2 Level B harassment 
takes annually), even with the UME they will not result in impacts on 
individual reproduction or survival, much less annual rates of 
recruitment or survival. Therefore, population-level effects to 
Guadalupe fur seal from the Navy's activities despite the UME are not 
anticipated. The California sea lion UME was recently closed, as 
elevated strandings occurred from 2013-2016. The U.S. stock of 
California sea lions has an increasing population trend. The California 
stocks of Northern Elephant seal and Northern fur seals also have an 
increasing population trend. The California stock of harbor seals has a 
stable population trend. Pinnipeds will benefit from the mitigation 
measures described earlier in the Mitigation Measures section.
    Regarding the magnitude of takes by Level B harassment (TTS and 
behavioral disruption) for explosives, the number of estimated total 
instances of take compared to the abundance is approximately 1 percent 
or less in the PMSR Study Area (Table 34). Regarding the magnitude of 
takes by Level B harassment (TTS and behavioral disruption) for target 
and missile launches, the number of estimated total instances of take 
compared to the abundance is less than five percent in the PMSR Study 
Area (Table 35). Given this information and the ranges of these stocks 
(i.e., large ranges, but with individuals often staying in the vicinity 
of haulouts), only a small portion of individuals in these stocks are 
likely impacted and repeated exposures of individuals are not 
anticipated during explosives (i.e., individuals are not expected to be 
taken on more than a few days within a year). Regarding the severity of 
those individual takes by Level B harassment by behavioral disturbance 
for explosives, the duration of any exposure is expected to be between 
seconds and minutes (i.e., short duration). Regarding the severity of 
TTS takes from explosives, they are expected to be of low-level and 
short duration, and any associated lost opportunities and capabilities 
would not be at a level that will impact reproduction or survival.
    Three species of pinnipeds (harbor seals, Northern elephant seal, 
and California sea lions) are estimated to be taken by PTS from 
explosives, 14, 22, and 2 takes, respectively, of likely low severity. 
A small permanent loss of hearing sensitivity (PTS) may include some 
degree of energetic costs for compensating or may mean some small loss 
of opportunities or detection capabilities, but at the expected scale 
the estimated takes by Level A harassment by PTS are unlikely to impact 
behaviors, opportunities, or detection capabilities to a degree that 
will interfere with reproductive success or survival of any 
individuals, let alone affect annual rates of recruitment or survival.
    For missile launch activities on SNI, the planned activities may 
result in take, in the form of Level B harassment only, from airborne 
sounds of target and missile launch activities (Table 35). A portion of 
individuals in these stocks are likely impacted and repeated exposures 
of individuals are anticipated during missile and target launches for 
pinnipeds hauled out on SNI (i.e., individuals are expected to be taken 
on up to several days within a year), however, there is no reason to 
expect that these disturbances would occur on sequential days.
    Regarding the magnitude of takes by Level B harassment, the number 
of estimated total instances of take compared to the abundance is less 
than 5 percent on SNI for all pinniped species (Table 35). Based on the 
best available information, including

[[Page 40959]]

monitoring reports from similar activities that have been authorized by 
NMFS, Level B harassment will likely be limited behavioral reactions 
such as alerting to the noise, with some animals possibly moving toward 
or entering the water (i.e., movements of more than 10 m (11 yd) and 
occasional flushing into the water with return to haulouts), depending 
on the species and the intensity of the launch noise. Regarding the 
severity of those individual takes by Level B harassment, any exposure 
is expected to be low to moderate and of relatively short duration and 
are unlikely to result in hearing impairment or to significantly 
disrupt foraging behavior. Given the launch acceleration and flight 
speed of the missiles, most launch events are of extremely short 
duration. Strong launch sounds are typically detectable near the 
beaches at western SNI for no more than a few seconds per launch (Holst 
et al. 2010; Holst et al. 2005a; Holst et al. 2008; Holst et al. 
2005b). Pinnipeds hauled out on beaches where missiles fly over when 
launched from the Alpha Launch Complex routinely haul out and continue 
to use these beaches in large numbers, but at the Building 807 Launch 
Complex few pinnipeds are known to haul out on the shoreline 
immediately adjacent to this launch site. We do not expect repeated 
exposures to occur on sequential days as it can take up to several 
weeks of planning between launch events. Responses of pinnipeds on 
beaches during launches are highly variable. Harbor seals can be more 
reactive when hauled out compared to other species, such as northern 
elephant seals. Northern elephant seals generally exhibit no reaction 
at all, except perhaps a heads-up response or some stirring. However, 
stronger reactions may occur if California sea lions are in the same 
area mingled with the northern elephant seals and the sea lions react 
strongly. While the reactions are variable, and can involve abrupt 
movements by some individuals, biological impacts of these responses 
appear to be limited. Even some number of repeated instances of Level B 
harassment (with no particular likelihood of sequential days or more 
sustained effect) of some small subset of an overall stock is unlikely 
to result in any decrease in fitness to those individuals, and thus 
would not result in any adverse impact to a stock as a whole. Flushing 
of pinnipeds into the water has the potential to result in mother-pup 
separation, or a stampede, either of which could potentially result in 
serious injury or mortality. For example, in some cases, harbor seals 
at SNI appear to be more responsive during the pupping/breeding season 
(Holst et al. 2005a; Holst et al. 2008), while in others, mothers and 
pups seem to react less to launches than lone individuals (Ugoretz and 
Greene Jr. 2012), and California sea lions seem to be consistently less 
responsive during the pupping season (Holst et al. 2010; Holst et al. 
2005a; Holst et al. 2008; Holst et al. 2011; Holst et al. 2005b; 
Ugoretz and Greene Jr. 2012). Though pup abandonment could 
theoretically result from these reactions, site-specific monitoring 
data indicate that pup abandonment is not likely to occur as a result 
of the target and missile launches, as it has not been previously 
observed. As part of mitigation the Navy will avoid target and missile 
launches during the peak pinniped pupping season to the maximum extent 
practicable, and missiles will not cross over pinniped haulouts at 
elevations less than 305 m (1,000 ft). Based on the best available 
information, including reports from almost 20 years of marine mammal 
monitoring during launch events, no injury, serious injury, or 
mortality of marine mammals has occurred from any flushing events or is 
anticipated to occur or authorized.
    Altogether, pinnipeds are not listed under the ESA (except for 
Guadalupe fur seal that are threatened) and all pinniped stocks have 
increasing, stable, or unknown population trends. Our analysis suggests 
that a small portion of the stocks will be taken and disturbed at a 
low-moderate level, with those individuals disturbed on likely one day 
within a year from explosives and some individuals on SNI likely 
disturbed a few days a year within a year from target and missile 
launches. No serious injury or mortality is anticipated to occur or is 
authorized. No more than 22 individuals from three pinniped stocks are 
estimated to be taken by PTS (resulting from the use of explosives as 
PTS is not likely to occur at SNI from launches), of likely low 
severity, annually. Additionally, no PTS is expected for Guadalupe fur 
seal. This low to moderate magnitude and severity of harassment effects 
is not expected to result in impacts on the reproduction or survival of 
any individuals (either alone or in combination with the effects of the 
UME for Guadulupe fur seal), let alone have impacts on annual rates of 
recruitment or survival, and therefore the total take will not 
adversely affect this species 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 pinnipeds.

Determination

    Based on the analysis contained herein of the likely effects of the 
specified activity 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 or stocks.

Subsistence Harvest of Marine Mammals

    In order to issue an incidental take authorization, NMFS must find 
that the total estimated take will not have an ``unmitigable adverse 
impact'' on the availability of the affected marine mammal species or 
stocks for taking for subsistence uses by Alaskan Natives. NMFS has 
defined ``unmitigable adverse impact'' in 50 CFR 216.103 as an impact 
resulting from the specified activity: (1) That is likely to reduce the 
availability of the species to a level insufficient for a harvest to 
meet subsistence needs by: (i) Causing the marine mammals to abandon or 
avoid hunting areas; (ii) Directly displacing subsistence users; or 
(iii) Placing physical barriers between the marine mammals and the 
subsistence hunters; and (2) That cannot be sufficiently mitigated by 
other measures to increase the availability of marine mammals to allow 
subsistence needs to be met.
    When applicable, NMFS must prescribe means of effecting the least 
practicable adverse impact on the availability of the species or stocks 
for subsistence uses. As discussed in the Mitigation Measures section, 
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 on the availability of species or stocks for 
subsistence uses, and (2) the practicability of the measure(s) for 
applicant implementation.
    To our knowledge there are no relevant subsistence uses of the 
affected marine mammal stocks or species implicated by the specified 
activities. Therefore, NMFS has determined that the total taking of 
affected species or stocks will not have an unmitigable adverse impact 
on the availability of the species or stocks for taking for subsistence 
purposes.

[[Page 40960]]

Classification

Endangered Species Act

    There are seven marine mammal species under NMFS jurisdiction that 
are listed as endangered or threatened under the ESA (16 U.S.C. 1531 et 
seq.) with confirmed or possible occurrence in the PMSR Study Area: 
blue whale, fin whale, gray whale, humpback whale (Central America DPS 
and Mexico DPS,) sei whale, and sperm whale), and Guadalupe fur seal. 
NMFS published a final rule on ESA-designated critical habitat for 
humpback whales (86 FR 21082; April 21, 2021).
    The Navy consulted with NMFS pursuant to section 7 of the ESA for 
PMSR activities, and NMFS also consulted internally on the promulgation 
of this rule and the issuance of an LOA under section 101(a)(5)(A) of 
the MMPA. NMFS issued a biological opinion concluding that the 
promulgation of the rule and issuance of a subsequent LOA are not 
likely to jeopardize the continued existence of threatened and 
endangered species under NMFS' jurisdiction and are not likely to 
result in the destruction or adverse modification of designated or 
proposed critical habitat in the PMSR Study Area. The biological 
opinion is available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.

National Marine Sanctuaries Act

    NMFS consulted with the NOAA's Office of National Marine 
Sanctuaries and if an activity is not likely to destroy, cause the loss 
of, or injure any sanctuary resource an action agency can determine 
that consultation under NMSA section 304(d) is not required. NMFS and 
NOAA's Office of National Marine Sanctuaries agreed that consultation 
on the NMSA is not required because the proposed military activities 
are limited to air and vessel (including surface targets) transits 
through the sanctuary and these activities are not likely to cause the 
destruction of, loss of, or injury to sanctuary resources or qualities.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed actions and alternatives with respect 
to potential impacts on the human environment. NMFS participated as a 
cooperating agency on the 2022 PMSR FEIS/OEIS, which was published 
January 2022, and is available at https://pmsr-eis.com/. In accordance 
with 40 CFR 1506.3, NMFS independently reviewed and evaluated the 2022 
PMSR FEIS/OEIS and determined that it is adequate and sufficient to 
meet our responsibilities under NEPA for the issuance of this rule and 
associated LOA. NOAA therefore, has adopted the 2022 PMSR FEIS/OEIS. 
NMFS has prepared a separate Record of Decision. NMFS' Record of 
Decision for adoption of the 2022 PMSR FEIS/OEIS and issuance of this 
final rule and subsequent LOA can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.

Regulatory Flexibility Act

    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et 
seq.), the Chief Counsel for Regulation of the Department of Commerce 
has certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

Waiver of Delay in Effective Date

    NMFS has determined that there is good cause under the 
Administrative Procedure Act (APA; 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 requested that this final rule take effect by 
mid-July, so as to not cause a disruption in training and testing 
activities. The waiver of the 30-day delay of the effective date of the 
final rule will ensure that the MMPA final rule and LOA are in place by 
the time the previous authorizations expire. Any delay in effectiveness 
of the final 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 LOA), thereby resulting in the potential for 
unauthorized takes of marine mammals. Moreover, the Navy is ready to 
implement the regulations 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, by granting 
an exception to the Navy, the rule relieves restrictions under the 
MMPA, which provides a separate basis for waiving the 30-day effective 
date for the rule under section 553(d)(1) of the APA.

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.

Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out 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. Add subpart B to read as follows:
Subpart B--Taking and Importing Marine Mammals; U.S. Navy's Point Mugu 
Sea Range (PMSR) Training and Testing Study Area (PMSR Study Area)
Sec.
218.10 Specified activity and geographical region.
218.11 Effective dates.
218.12 Permissible methods of taking.
218.13 Prohibitions.
218.14 Mitigation requirements.
218.15 Requirements for monitoring and reporting.
218.16 Letters of Authorization.
218.17 Renewals and modifications of Letters of Authorization.
218.18-218.19 [Reserved]

Subpart B--Taking and Importing Marine Mammals; U.S. Navy's Point 
Mugu Sea Range (PMSR) Training and Testing Study Area


Sec.  218.10  Specified activity and geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy) 
for the taking of marine mammals that occur in the area described in 
paragraph (b) of this section and that occur incidental to

[[Page 40961]]

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 a Letter of Authorization (LOA) only if it occurs 
within the PMSR Training and Testing Study Area. The PMSR Study Area is 
located adjacent to Los Angeles, Ventura, Santa Barbara, and San Luis 
Obispo Counties along the Pacific Coast of Southern California and 
includes a 36,000-square-mile sea range. The two primary components of 
the PMSR Complex are Special Use Airspace and the ocean Operating 
Areas.
    (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) Air warfare;
    (ii) Electronic warfare; and
    (iii) Surface warfare.
    (2) Testing.
    (i) Air warfare;
    (ii) Electronic warfare; and
    (iii) Surface warfare.


Sec.  218.11   Effective dates.

    Regulations in this subpart are effective from July 7, 2022, 
through July 7, 2029.


Sec.  218.12   Permissible methods of taking.

    (a) Under an LOA issued pursuant to Sec. Sec.  216.106 of this 
subchapter and 218.16, the Holder of the LOA (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  218.10(b) by Level A harassment and Level B 
harassment associated with the use of explosives and missile launch 
activities, provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
applicable LOA.
    (b) The incidental take of marine mammals by the activities listed 
in Sec.  218.10(c) is limited to the species and stocks listed in Table 
1 of this section.

                       Table 1 to Sec.   218.12(b)
------------------------------------------------------------------------
           Common name              Scientific name          Stock
------------------------------------------------------------------------
Blue whale......................  Balaenoptera        Eastern North
                                   musculus.           Pacific.
Fin whale.......................  Balaenoptera        California,
                                   physalus.           Oregon, and
                                                       Washington.
Gray whale......................  Eschrichtius        Eastern North
                                   robustus.           Pacific.
Humpback whale..................  Megaptera           California,
                                   novaeangliae.       Oregon,
                                                       Washington.
Minke whale.....................  Balaenoptera        California,
                                   acutorostrata.      Oregon, and
                                                       Washington.
Common Bottlenose dolphin.......  Tursiops truncatus  California,
                                                       Oregon, and
                                                       Washington
                                                       Offshore.
Dall's porpoise.................  Phocoenoides dalli  California,
                                                       Oregon, and
                                                       Washington.
Dwarf sperm whale...............  Kogia sima........  California,
                                                       Oregon, and
                                                       Washington.
Long-beaked common dolphin......  Delphinus capensis  California.
Mesoplodont beaked whales.......  Mesoplodon spp....  California,
                                                       Oregon, and
                                                       Washington.
Northern right whale dolphin....  Lissodelphis        California,
                                   borealis.           Oregon, and
                                                       Washington.
Pacific white-sided dolphin.....  Lagenorhynchus      California,
                                   obliquidens.        Oregon, and
                                                       Washington.
Pygmy killer whale..............  Feresa attenuata..
Pygmy sperm whale...............  Kogia breviceps...  California,
                                                       Oregon, and
                                                       Washington.
Risso's dolphins................  Grampus griseus...  California,
                                                       Oregon, and
                                                       Washington.
Short-beaked common dolphin.....  Delphinus delphis.  California,
                                                       Oregon, and
                                                       Washington.
Sperm whale.....................  Physeter            California,
                                   macrocephalus.      Oregon, and
                                                       Washington.
Striped dolphin.................  Stenella            California,
                                   coeruleoalba.       Oregon, and
                                                       Washington.
Harbor seal.....................  Phoca vitulina....  California.
Northern elephant seal..........  Mirounga            California.
                                   angustirostris.
California sea lion.............  Zalophus            U.S. Stock.
                                   californianus.
Guadalupe fur seal..............  Arctocephalus       Mexico to
                                   townsendi.          California.
------------------------------------------------------------------------

Sec.  218.13   Prohibitions.

    Except for incidental takings contemplated in Sec.  218.12(a) and 
authorized by an LOA issued under Sec. Sec.  216.106 of this chapter 
and 218.16, it shall be unlawful for any person to do any of the 
following in connection with the activities listed in Sec.  218.10(c):
    (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 218.16;
    (b) Take any marine mammal not specified in Sec.  218.12(b);
    (c) Take any marine mammal specified in Sec.  218.12(b) in any 
manner other than as specified in the LOA issued under Sec. Sec.  
216.106 of this chapter and 218.16; or
    (d) Take a marine mammal specified in Sec.  218.12(b) if NMFS 
determines such taking is having, or may have, more than a negligible 
impact on the species or stock concerned.


Sec.  218.14   Mitigation requirements.

    When conducting the activities identified in Sec.  218.10(c), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 218.16 will be implemented. These 
mitigation measures include, but are not limited to:
    (a) Procedural mitigation. Procedural mitigation is mitigation that 
the Navy will implement whenever and wherever an applicable training or 
testing activity takes place within the PMSR Study Area for each 
applicable activity category or stressor category and includes acoustic 
stressors (i.e., weapons firing noise), explosive stressors (i.e., 
medium-caliber and large-caliber projectiles, missiles and rockets, 
bombs), and physical disturbance and strike stressors (i.e., vessel 
movement; towed in-water devices (e.g., surface targets); small-, 
medium-, and large-caliber non-explosive practice munitions; non-
explosive missiles and rockets; and non-explosive bombs).
    (1) Environmental awareness and education. Navy personnel 
(including civilian personnel) involved in mitigation and training or 
testing 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, and U.S. Navy 
Protective Measures Assessment Protocol.
    (2) Weapons firing noise. Weapons firing noise associated with 
large-caliber gunnery activities.
    (i) Number of Lookouts and observation platform. One Lookout will 
be positioned on the ship conducting the firing. Depending on the 
activity, the

[[Page 40962]]

Lookout could be the same as the one provided for under paragraph 
(a)(7)(i) of this section.
    (ii) Mitigation zone and requirements. The mitigation zone will be 
30 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 will 
observe the mitigation zone for floating vegetation and marine mammals; 
if floating vegetation or marine mammals are observed, Navy personnel 
will relocate or delay the start of weapons firing.
    (B) During the activity. Navy personnel will observe the mitigation 
zone for floating vegetation and marine mammals; if floating vegetation 
or marine mammals are observed, Navy personnel will 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:
    (1) Observed exiting. The animal is observed exiting the mitigation 
zone;
    (2) Determined to have exited. The animal is determined to have 
exited the mitigation zone based on its course, speed, and movement 
away from weapons firing noise;
    (3) Clear from additional sightings. The mitigation zone has been 
clear from any additional sightings for 30 minutes (min); or
    (4) Firing ship transit. 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.
    (3) 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 will 
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 paragraph 
(a)(2)(i) of this section. If additional platforms are participating in 
the activity, Navy personnel positioned on those assets (e.g., safety 
observers, evaluators) will support observing the relevant mitigation 
zone for marine mammals and other applicable biological resources while 
performing their regular duties.
    (ii) Mitigation zone and requirements. The relevant mitigation 
zones are as follows: 200 yd (182.88 m) around the intended impact 
location for air-to-surface activities using explosive medium-caliber 
projectiles; 600 yd (548.64 m) around the intended impact location for 
surface-to-surface activities using explosive medium-caliber 
projectiles; and 1,000 yd (914.4 m) around the intended impact location 
for surface-to-surface activities using explosive large-caliber 
projectiles.
    (A) Prior to the initial start of the activity (e.g., when 
maneuvering on station). Navy personnel will observe the mitigation 
zone for floating vegetation and marine mammals; if floating vegetation 
or marine mammals are observed, Navy personnel will relocate or delay 
the start of firing.
    (B) During the activity. Navy personnel will observe the mitigation 
zone for floating vegetation and marine mammals; if floating vegetation 
or marine mammals are observed, Navy personnel will 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:
    (1) Observed exiting. The animal is observed exiting the mitigation 
zone;
    (2) Determined to have exited. The animal is determined to have 
exited the mitigation zone based on a its course, speed, and movement 
away from the intended impact location;
    (3) Clear from additional sightings. 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) Impact location transit. 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.
    (D) After completion of the activity (e.g., prior to maneuvering 
off station). Navy personnel will, 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, Navy personnel will follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), Navy personnel on these assets will assist 
in the visual observation of the area where detonations occurred.
    (4) Explosive missiles and rockets. Aircraft-deployed explosive 
missiles and rockets. Mitigation applies to activities using a maritime 
surface target at ranges up to 75 nmi (139 km).
    (i) Number of Lookouts and observation platform. One Lookout will 
be positioned in an aircraft. If additional platforms are participating 
in the activity, Navy personnel positioned on those assets (e.g., 
safety observers, evaluators) will support observing the relevant 
mitigation zone for marine mammals and other applicable biological 
resources while performing their regular duties.
    (ii) Mitigation zone and requirements. The relevant mitigation 
zones are as follows: 900 yd (822.96 m) around the intended impact 
location for missiles or rockets with 0.6-20 lb net explosive weight; 
and 2,000 yd (1,828.8 m) around the intended impact location for 
missiles with 21-500 lb net explosive weight.
    (A) Prior to the initial start of the activity (e.g., during a fly-
over of the mitigation zone). Navy personnel will observe the 
mitigation zone for floating vegetation and marine mammals; if floating 
vegetation or marine mammals are observed, Navy personnel will relocate 
or delay the start of firing.
    (B) During the activity. Navy personnel will observe the mitigation 
zone for floating vegetation and marine mammals; if floating vegetation 
or marine mammals are observed, Navy personnel will cease firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity. Navy personnel will allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met:
    (1) Observed exiting. The animal is observed exiting the mitigation 
zone;
    (2) Determined to have exited. The animal is determined to have 
exited the mitigation zone based on its course, speed, and movement 
away from the intended impact location; or
    (3) Clear from additional sightings. 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.

[[Page 40963]]

    (D) After completion of the activity (e.g., prior to maneuvering 
off station). Navy personnel will, 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, Navy personnel will follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), Navy personnel on these assets will assist 
in the visual observation of the area where detonations occurred.
    (5) Explosive bombs. Mitigation applies to activities using a 
maritime surface target at ranges up to 75 nmi (139 km).
    (i) Number of Lookouts and observation platform. One Lookout will 
be positioned in an aircraft conducting the activity. If additional 
platforms are participating in the activity, Navy personnel positioned 
on those assets (e.g., safety observers, evaluators) will support 
observing the relevant mitigation zone for marine mammals and other 
applicable biological resources while performing their regular duties.
    (ii) Mitigation zone and requirements. The relevant mitigation 
zones is 2,500 yd (2,286 m) around the intended target.
    (A) Prior to the initial start of the activity (e.g., when arriving 
on station). Navy personnel will observe the mitigation zone for 
floating vegetation and marine mammals; if floating vegetation or 
marine mammals are observed, Navy personnel will relocate or delay the 
start of bomb deployment.
    (B) During the activity (e.g., during target approach). Navy 
personnel will observe the mitigation zone for floating vegetation and 
marine mammals; if floating vegetation or marine mammals are observed, 
Navy personnel will cease bomb deployment.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity. Navy personnel will allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing bomb deployment) until one of the following 
conditions has been met:
    (1) Observed exiting. The animal is observed exiting the mitigation 
zone;
    (2) Determined to have exited. The animal is determined to have 
exited the mitigation zone based on its course, speed, and movement 
away from the intended target;
    (3) Clear from additional sightings. The mitigation zone has been 
clear from any additional sightings for 10 min; or
    (4) Intended target transit. 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). Navy personnel will, 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, Navy personnel will follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), Navy personnel on these assets will assist 
in the visual observation of the area where detonations occurred.
    (6) Vessel movement. The mitigation will not be required 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); the vessel is submerged 
or operated autonomously; or if impracticable based on mission 
requirements (e.g., during Amphibious Assault and Amphibious Raid 
exercises).
    (i) Number of Lookouts and observation platform. One Lookout will 
be on the vessel that is underway.
    (ii) Mitigation zone and requirements. The relevant mitigation 
zones are as follows: 500 yd (457.2 m) around whales; and 200 yd 
(182.88 m) around all other marine mammals (except bow-riding dolphins 
and pinnipeds hauled out on man-made navigational structures, port 
structures, and vessels).
    (A) During the activity. When underway Navy personnel will observe 
the mitigation zone for marine mammals; if marine mammals are observed, 
Navy personnel will maneuver to maintain distance.
    (B) [Reserved]
    (iii) Reporting. If a marine mammal vessel strike occurs, Navy 
personnel will follow the established incident reporting procedures.
    (7) 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 will 
be positioned on the platform conducting the activity. Depending on the 
activity, the Lookout could be the same as the one described in 
paragraph (a)(2)(i) of this section.
    (ii) Mitigation zone and requirements. The relevant mitigation zone 
is 200 yd (182.88 m) around the intended impact location.
    (A) Prior to the initial start of the activity (e.g., when 
maneuvering on station). Navy personnel will observe the mitigation 
zone for floating vegetation and marine mammals; if floating vegetation 
or marine mammals are observed, Navy personnel will relocate or delay 
the start of firing.
    (B) During the activity. Navy personnel will observe the mitigation 
zone for floating vegetation and marine mammals; if floating vegetation 
or marine mammals are observed, Navy personnel will cease firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity. Navy personnel will allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met:
    (1) Observed exiting. The animal is observed exiting the mitigation 
zone;
    (2) Determined to have exited. The animal is determined to have 
exited the mitigation zone based on its course, speed, and movement 
away from the intended impact location;
    (3) Clear of additional sightings. The mitigation zone has been 
clear from any additional sightings for 10 min for aircraft-based 
firing or 30 min for vessel-based firing;
    (4) Impact location transit. 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.
    (8) Non-explosive missiles and rockets. Aircraft-deployed non-
explosive missiles and rockets. Mitigation applies to activities using 
a maritime surface target at ranges of up to 75 nmi (139 km).
    (i) Number of Lookouts and observation platform. One Lookout will 
be positioned in an aircraft.
    (ii) Mitigation zone and requirements. The relevant mitigation zone 
is 900 yd (822.96 m) 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 will observe the 
mitigation zone for floating vegetation and marine mammals; if floating 
vegetation or marine mammals are observed, Navy personnel will relocate 
or delay the start of firing.

[[Page 40964]]

    (B) During the activity. Navy personnel will observe the mitigation 
zone for floating vegetation and marine mammals; if floating vegetation 
or marine mammals are observed, Navy personnel will cease firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting prior to or during the activity. Navy personnel will allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met:
    (1) Observed exiting. The animal is observed exiting the mitigation 
zone;
    (2) Determined to have exited. The animal is determined to have 
exited the mitigation zone based on its course, speed, and movement 
away from the intended impact location; or
    (3) Clear of additional sightings. 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.
    (9) Non-explosive bombs. Mitigation applies to activities using a 
maritime surface target at ranges up to 75 nmi (139 km).
    (i) Number of Lookouts and observation platform. One Lookout will 
be positioned in an aircraft.
    (ii) Mitigation zone and requirements. The relevant mitigation zone 
is 900 yd (822.96 m) around the intended target.
    (A) Prior to the initial start of the activity (e.g., when arriving 
on station). Navy personnel will observe the mitigation zone for 
floating vegetation and marine mammals; if floating vegetation or 
marine mammals are observed, Navy personnel will relocate or delay the 
start of bomb deployment.
    (B) During the activity (e.g., during approach of the target or 
intended minefield location). Navy personnel will observe the 
mitigation zone for floating vegetation and marine mammals and, if 
floating vegetation or marine mammals are observed, Navy personnel will 
cease bomb deployment.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting prior to or during the activity. Navy personnel will allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing bomb deployment) until one of the following 
conditions has been met:
    (1) Observed exiting. The animal is observed exiting the mitigation 
zone;
    (2) Determined to have exited. The animal is determined to have 
exited the mitigation zone based its course, speed, and movement away 
from the intended target or minefield location;
    (3) Clear of additional sightings. The mitigation zone has been 
clear from any additional sightings for 10 min; or
    (4) Intended target transit. 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.
    (10) Target and missile launches from San Nicolas Islands (SNI). 
Target and missile launch activities from SNI.
    (i) Mitigation zone and requirements. 305 m (1,000 ft) over 
pinniped haulouts. Missiles will not cross over pinniped haulouts at 
elevations less than 305 m (1,000 ft) above the haulout. All manned 
aircraft and helicopter flight paths will maintain a minimum distance 
of 305 m (1,000 ft) from recognized seal haulouts and rookeries, except 
in emergencies or for real-time security incidents. For unmanned 
aircraft systems (UAS), the following minimum altitudes will be 
maintained over pinniped haulout areas and rookeries: Class 0-2 UAS 
will maintain a minimum altitude of 300 ft; Class 3 UAS will maintain a 
minimum altitude of 500 ft; Class 4 or 5 UAS will not be flown below 
1,000 ft.
    (A) Pinniped haulouts. Navy personnel will not enter pinniped 
haulouts or rookeries. Personnel may be adjacent to pinniped haulouts 
and rookeries prior to and following a launch for monitoring purposes.
    (B) Number of launch events. Navy will not conduct more than 40 
launch events annually. Up to 10 launch events of the 40 annual launch 
events may occur at night.
    (C) Launches during the peak pinniped pupping season. Launches will 
be scheduled to avoid peak pinniped pupping periods between January and 
July, to the maximum extent practicable.
    (D) Unauthorized species. If a species for which authorization has 
not been granted is taken, or a species for which authorization has 
been granted but the authorized takes are met, the Navy will consult 
with NMFS to determine how to proceed.
    (E) Review of launch procedures. The Navy will review the launch 
procedure and monitoring methods, in cooperation with NMFS, if any 
incidents of injury or mortality of a pinniped are discovered during 
post-launch surveys, or if surveys indicate possible effects to the 
distribution, size, or productivity of the affected pinniped 
populations as a result of the specified activities. If necessary, 
appropriate changes will be made through modification to the LOA prior 
to conducting the next launch of the same vehicle.
    (ii) [Reserved]
    (b) Seasonal awareness messages. In addition to procedural 
mitigation, Navy personnel will implement seasonal awareness 
notification messages throughout the PMSR Study Area to avoid 
interaction with large whales during transit.
    (1) Blue whale awareness notification message. (i) Navy personnel 
will issue a seasonal awareness notification message to alert Navy 
ships and aircraft operating throughout the PMSR Study Area to the 
possible presence of increased concentrations of blue whales June 1 
through October 31.
    (ii) To maintain safety of navigation and to avoid interactions 
with large whales during transits, Navy personnel will instruct vessels 
to remain vigilant to the presence of blue whales that, when 
concentrated seasonally, may become vulnerable to vessel strikes.
    (iii) Navy personnel will use the information from the awareness 
notification message to assist their visual observation of applicable 
mitigation zones during training and testing activities and to aid in 
the implementation of procedural mitigation.
    (2) Gray whale awareness notification message. (i) Navy personnel 
will issue a seasonal awareness notification message to alert Navy 
ships and aircraft operating through the PMSR Study Area to the 
possible presence of increased concentrations of gray whales November 1 
through March 31.
    (ii) To maintain safety of navigation and to avoid interactions 
with large whales during transits, Navy personnel will instruct vessels 
to remain vigilant to the presence of gray whales that, when 
concentrated seasonally, may become vulnerable to vessel strikes.
    (iii) Navy personnel will use the information from the awareness 
notification message to assist their visual observation of applicable 
mitigation zones during training and testing activities and to aid in 
the implementation of procedural mitigation.
    (3) Fin whale awareness notification message. (i) Navy personnel 
will issue a seasonal awareness notification message to alert Navy 
ships and aircraft operating throughout the PMSR Study Area to the 
possible presence of increased concentrations of fin whales November 1 
through May 31.
    (ii) To maintain safety of navigation and to avoid interactions 
with large whales during transits, Navy personnel

[[Page 40965]]

will instruct vessels to remain vigilant to the presence of fin whales 
that, when concentrated seasonally, may become vulnerable to vessel 
strikes.
    (iii) Navy personnel will use the information from the awareness 
notification message to assist their visual observation of applicable 
mitigation zones during training and testing activities and to aid in 
the implementation of procedural mitigation.


Sec.  218.15  Requirements for monitoring and reporting.

    (a) Unauthorized take. Navy personnel will notify NMFS immediately 
(or as soon as operational security considerations allow) if the 
specified activity identified in Sec.  218.10 is thought to have 
resulted in the serious injury or mortality of any marine mammals, or 
in any Level A harassment or Level B harassment of marine mammals not 
identified in this subpart.
    (b) Monitoring and reporting under the LOA. The Navy will conduct 
all monitoring and reporting required under the LOA. The Navy will 
coordinate and discuss with NMFS how monitoring in the PMSR Study Area 
could contribute to the Navy's Marine Species Monitoring Program.
    (c) Notification of injured, live stranded, or dead marine mammals. 
Navy personnel will 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 https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range.
    (d) Pinniped monitoring plan on SNI. In consultation with NMFS, the 
Navy will implement a monitoring plan for beaches exposed to missile 
launch noise with the goal of assessing baseline pinniped distribution/
abundance and potential changes in pinniped use of these beaches after 
launch events. Marine mammal monitoring shall include multiple surveys 
(e.g., time-lapse photography) during the year that record the species, 
number of animals, general behavior, presence of pups, age class, 
gender and reactions to launch noise or other natural or human caused 
disturbances, in addition to environmental conditions that may include 
tide, wind speed, air temperature, and swell. In addition, video and 
acoustic monitoring of up to three pinniped haulout areas and rookeries 
will be conducted during launch events that include missiles or targets 
that have not been previously monitored using video and acoustic 
recorders for at least three launch events. Video monitoring cameras 
would be either high-definition video cameras, or Forward-Looking 
Infrared Radiometer (FLIR) thermal imaging cameras for night launch 
events.
    (e) Annual pinniped monitoring report on SNI. The Navy will submit 
an annual report to NMFS of the SNI rocket and missile launch 
activities. The draft annual monitoring report will be submitted to the 
Director, Office of Protected Resources, NMFS, within 3 months after 
the end of the reporting year. NMFS will submit comments or questions 
on the draft monitoring report, if any, within 3 months of receipt. The 
report will be considered final after the Navy has addressed NMFS' 
comments, or 3 months after the submission of the draft if NMFS does 
not provide comments on the draft report. The report will summarize the 
launch events conducted during the year; assess any direct impacts to 
pinnipeds from launch events; assess any cumulative impacts on 
pinnipeds from launch events; and, summarize pinniped monitoring and 
research activities conducted on SNI and any findings related to 
effects of launch noise on pinniped populations.
    (f) Annual PMSR Study Area Training and Testing Activity Report. 
Each year, the Navy will submit a detailed report PMSR (Annual Training 
and Testing Activity Report) to the Director, Office of Protected 
Resources, NMFS, within 3 months after the one-year anniversary of the 
date of issuance of the LOA. NMFS will submit comments or questions on 
the report, if any, within 1 month of receipt. The report will be 
considered final after the Navy has addressed NMFS' comments, or 1 
month after submission of the draft if NMFS does not provide comments 
on the draft report. The annual report will contain information on all 
sound sources used (total hours or quantity of each bin; total annual 
number of each type of explosive events; and total annual expended/
detonated rounds (missiles, bombs, etc.) for each explosive bin). The 
annual report will also contain both the current year's data as well as 
explosive use quantity from previous years' reports. Additionally, if 
there were any changes to the explosive allowance in a given year, or 
cumulatively, the report will include a discussion of why the change 
was made and include analysis to support how the change did or did not 
affect the analysis in the 2022 PMSR Final Environment Impact 
Statement/Overseas Environmental Impact Statement (``FEIS/OEIS''; 
available at https://pmsr-eis.com/) and the analysis in the Marine 
Mammal Protection Act (MMPA) final rule (87 FR [INSERT FR PAGE NUMBER], 
July 8, 2022). The annual report will also include the details 
regarding specific requirements associated with monitoring on SNI. The 
final annual/close-out report at the conclusion of the authorization 
period (year 7) will serve as the comprehensive close-out report and 
include both the final year annual use compared to annual authorization 
as well as a cumulative 7-year annual use compared to 7-year 
authorization. The detailed reports will contain the information 
identified in paragraphs (f)(1) and (2) of this section.
    (1) Explosives. This section of the report will include the 
following information for explosive activities completed that year.
    (i) Activity information gathered for each explosive event.
    (A) Location by Special Use Airspace (e.g., Warning Area).
    (B) Date and time exercise began and ended.
    (C) Total hours of observation by Lookouts before, during, and 
after exercise.
    (D) Total annual expended/detonated ordnance (i.e., missile, bombs 
etc.) number and types of explosive source bins detonated.
    (E) Wave height in feet (high, low, and average) during exercise.
    (F) 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 for each sighting where mitigation was implemented.
    (A) Date/time/location of sighting.
    (B) Species (if not possible, indicate whale or dolphin).
    (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 (or target 
spot if not yet detonated): Less than 200 yd (183 m), 200 to 500 yd 
(183 m to 457 m), 500 to 1,000 yd (457 m to 914 m), 1,000 to 2,000 yd 
(914 m to 1,829 m), or greater than 2,000 yd (1,829 m).
    (J) Lookouts will report, in plain language and without trying to

[[Page 40966]]

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) The report will 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.
    (2) Summary of sources used. This section of the report will 
include the following information summarized from the authorized sound 
sources used in all training and testing events:
    (i) Total annual quantity (per the LOA) of each explosive bin; and
    (ii) Total annual expended/detonated ordnance (missiles, bombs, 
etc.) for each explosive bin.
    (g) Final close-out report. The final (year 7) draft annual/close-
out report will be submitted within 3 months after the expiration of 
this subpart to the Director, Office of Protected Resources, NMFS. NMFS 
will submit comments on the draft close-out report, if any, within 3 
months of receipt. The report will be considered final after the Navy 
has addressed NMFS' comments, or 3 months after the submittal of the 
draft if NMFS does not provide comments.


Sec.  218.16   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations 
in this subpart, the Navy will apply for and obtain an LOA in 
accordance with Sec.  216.106 of this chapter.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed between October 31, 2021, and October 30, 
2028.
    (c) If an LOA expires prior to October 30, 2028, 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.  218.17(c)(1)) required by 
an LOA issued under this subpart, the Navy will apply for and obtain a 
modification of the LOA as described in Sec.  218.17.
    (e) Each LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) 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 is 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.  218.17   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
218.16 for the activity identified in Sec.  218.10(c) may be renewed or 
modified upon request by the applicant, provided that:
    (1) The 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) 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 in this subpart or result 
in no more than a minor change in the total estimated number of takes 
(or distribution by species or years), NMFS may publish a notice of 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 
218.16 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 mitigation, monitoring, or reporting measures in an LOA 
include:
    (A) Results from the Navy's annual monitoring report and annual 
exercise report from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies;
    (C) Results from specific stranding investigations; or
    (D) 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 a new 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 of marine 
mammals specified in LOAs issued pursuant to Sec. Sec.  216.106 of this 
chapter and 218.16, an LOA may be modified without prior notice or 
opportunity for public comment. Notice will be published in the Federal 
Register within 30 days of the action.


Sec. Sec.  218.18-218.19  [Reserved]

[FR Doc. 2022-14307 Filed 7-7-22; 8:45 am]
BILLING CODE 3510-22-P