40888 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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. 

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/incidentaltake-authorizations-military-readinessactivities. 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 (PMSRcontrolled sea space). The PMSRcontrolled 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: 

D 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); 

D Activity limitations in certain areas 

and times that are biologically 

important (e.g., pupping season on San 

Nicolas Island) for marine mammals; 

D Measures to reduce the likelihood 

of ship strikes; 

D Implementation of a Notification 

and Reporting Plan (for dead or live 

stranded marine mammals); and 

D 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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, surfaceto-air), electronic warfare (directed 

energy—lasers and high-powered 

microwave systems), and surface 

warfare (surface-to-surface, air-tosurface, 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 decisionquality 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 


jspears on DSK121TN23PROD with RULES2
40890 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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-militaryreadiness-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-squaremile 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-toair); Electronic warfare (directed 

energy—lasers and high-powered 

microwave systems); and Surface 

warfare (surface-to-surface, air-tosurface, 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 westcentral 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: 

D 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; 

D Improves efficiency of source 

utilization data collection and reporting 

requirements anticipated under the 

MMPA authorizations; 

D 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; 

D Allows analyses to be conducted in 

a more efficient manner, without any 

compromise of analytical results; and 

D 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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 wavefront 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 blowoff 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. 


jspears on DSK121TN23PROD with RULES2
40892 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

TABLE 1—MAXIMUM NUMBER OF ANNUAL PLANNED ACTIVITIES IN THE PMSR STUDY AREA

[Inclusive of SNI launches] 

Activity Activity sub category Planned 

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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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] 

Primary mission area activity scenarios Explosive 

bin 

Munition 

Type 

Maximum 

number of 

high explosive 

munitions 

used annually 

Maximum 

number of 

high explosives 

used over a 

7-year period 

planned 

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, Rockets ....... 58 406 

Surface-Surface; Subsurface-Surface ...................................... E10 Missiles ................................... 13 91 

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 

Time period Number of 

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. 


jspears on DSK121TN23PROD with RULES2
40894 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

TABLE 4—ANNUAL AT-SEA VESSEL STEAMING DAYS FOR TRAINING AND TESTING ACTIVITIES PROJECTED FOR THE PMSR 

STUDY AREA

Vessel Ship type 

Planned activity 

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 nongovernmental 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). 

• 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’’). 

• Abundance(s), percentages of the 

population at sea, and percentages 

within the two depth regimes for 

Guadalupe fur seals. 

• 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 HawaiiSouthern 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’’). 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 inwater 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 Nin ̃ 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/km2 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 Nin ̃ 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 × 0.90)/11,744 

km2 = 0.5573 sea lions/km2 (0 to 40 km 

Stratum) 

Spring Density = (10,249 sea lions × 0.10)/ 

791 km2 = 1.2951 sea lions/km2 (40 to 70 

km Stratum) 

Winter Density = (8,473 sea lions × 1.00)/ 

143,518 km2 = 0.0590 sea lions/km2 (0 to 

450 km Stratum) 

August Density = 3,000 sea lions/93,747 km2

= 0.0288 sea lions/km2 (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 


jspears on DSK121TN23PROD with RULES2
40896 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 km2 (19,259 

nmi2) and the spatial area for the Baja 

stratum is approximately 152,889 km2

(44,575 nmi2). 

SOCAL Offshore (>3,000 m (3,281 yd) 

isobath) 

Winter/Spring: (33,485 × 0.73) × 

0.333/66,058 km2 = 0.1232 fur 

seals/km2

Summer/Fall: (33,485 × 0.33) × 0.333/ 

66,058 km2 = 0.0557 fur seals/km2

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° 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° N along the 

California coastline was used to define the 

spatial area. 

Density = (30,968 × 0.378) × 0.36/15,496 km2

= 0.2719 seals/km2

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 

km2; 92,872 nmi2) to represent fur seal 

distribution and the northern elephant 

seal density calculation used the Navy 

SOCAL modeling area stratum (361,872 

km2) 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 predefined 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 predefined 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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-todate 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 inwater 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 forwardprojected 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 


jspears on DSK121TN23PROD with RULES2
40898 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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. GarciaAguilar 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 HawaiiCalifornia Study Area (HCTT) EIS/OEIS 

project. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 linetransect 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 multiyear 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/km2), or as abundance 


jspears on DSK121TN23PROD with RULES2
40900 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 

(1991–2014 SDMs) 

Abundance 

(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

Year Abundance 

(1991–2014 SDMs) 

Abundance 

(Becker et al. 

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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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

Year Abundance 

(1991–2014 SDMs) 

Abundance 

(Becker et al. 

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 


jspears on DSK121TN23PROD with RULES2
40902 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 HawaiiCalifornia 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, reestimate 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 nonsurveyed 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 


jspears on DSK121TN23PROD with RULES2
40904 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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-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 shortbeaked 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, 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 

mPa2-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 inair 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 inair 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 mPa2-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 inair 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-Trainingand-Testing-Final-EIS-OEIS/2018-FinalEIS-OEIS-Supporting-TechnicalDocuments. 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 inair 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 


jspears on DSK121TN23PROD with RULES2
40906 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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-navytarget-and-missile-launch-activities-sannicolas. 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 hauledout 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 § 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 nonmilitary-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 reevaluate 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 mPa 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 


jspears on DSK121TN23PROD with RULES2
40908 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 overpredict 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 nonauditory 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). 


jspears on DSK121TN23PROD with RULES2
40910 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 SELcumbased 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-toeffect 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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/marinemammal-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 


jspears on DSK121TN23PROD with RULES2
40912 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 timearea 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 


jspears on DSK121TN23PROD with RULES2
40914 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 shipstrike 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 shipstrike 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 manmade 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 


jspears on DSK121TN23PROD with RULES2
40916 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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, 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 lowlight 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 


jspears on DSK121TN23PROD with RULES2
40918 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 deadstranded 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 inwater 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

Species Group size 

Proposed rule 

(annual 

estimated 

take) 

Final rule 

(annual estimated take) 

Long-beaked common dolphins ............................................................................. 255 119 255 (change of + 136). 

Offshore stock of common bottlenose dolphins ..................................................... 16 11 16 (change of +5). 

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 Harassment ....................................................... ........................ ........................ 215. 

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/ 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 40919 

draft-marine-mammal-stockassessment-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 An ̃ 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

Common name Scientific name 1 Stock 

Status Stock abundance 

(CV)/N min; most 

recent abundance 

survey 2

PBR 3

Annual 

mortalities or 

serious 

injuries (M/ 

SI) 4

MMPA 

Endangered 

Species Act 

(ESA) 

Blue whale ..................... Balaenoptera musculus Eastern North Pacific ... Depleted ........... Endangered ...... 1,898 (0.085)/ 

1,767; 2018.

4.1 ≥19.4 

Bryde’s whale ................ Balaenoptera brydei/ 

edeni.

Eastern Tropical Pacific ........................... ........................... unk; na .................. unk unk 

Fin whale ....................... Balaenoptera physalus California, Oregon, and 

Washington.

Depleted ........... Endangered ...... 11,065 (0.405)/ 

7,9700; 2018.

80 ≥43.7 

Gray whale .................... Eschrichtius robustus ... Eastern North Pacific ... ........................... ........................... 26,960 (0.05)/ 

25,849; 2016.

801 139 

Western North Pacific .. Depleted ........... Endangered ...... 290 (na)/271; 2016 0.12 unk 

Humpback whale ........... Megaptera 

novaeangliae.

California, Oregon, 

Washington.

Depleted ........... Threatened/Endangered 1.

4,973 (0.048)/ 

4,776; 2018.

28.7 ≥48.6 

Minke whale .................. Balaenoptera 

acutorostrata.

California, Oregon, and 

Washington.

........................... ........................... 915 (0.792)/509; 

2018.

4.1 ≥0.59 

Sei whale ....................... Balaenoptera borealis .. Eastern North Pacific ... Depleted ........... Endangered ...... 519 (0.4)/374; 

2014.

0.75 ≥0.2 

Baird’s beaked whale .... Berardius bairdii ........... California, Oregon, and 

Washington.

........................... ........................... 1,363 (0.533)/894; 

2018.

8.9 >0.8 

Common Bottlenose dolphin.Tursiops truncatus ........ California Coastal ......... ........................... ........................... 453 (0.06)/346; 

2011.

2.7 ≥2.0 

California, Oregon, and 

Washington Offshore.

........................... ........................... 3,477 (0.696)/ 

2,048; 2018.

19.7 0.82 

Cuvier’s beaked whale .. Ziphius cavirostris ......... California, Oregon, and 

Washington.

........................... ........................... 3,274 (0.67)/2,059; 

2014.

21 <0.1 

Dall’s porpoise ............... Phocoenoides dalli ....... California, Oregon, and 

Washington.

........................... ........................... 16,498 (0.608)/ 

10,286; 2018.

99 0.66 


jspears on DSK121TN23PROD with RULES2
40920 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

TABLE 9—MARINE MAMMAL OCCURRENCE WITHIN THE PMSR STUDY AREA—Continued 

Common name Scientific name 1 Stock 

Status Stock abundance 

(CV)/N min; most 

recent abundance 

survey 2

PBR 3

Annual 

mortalities or 

serious 

injuries (M/ 

SI) 4

MMPA 

Endangered 

Species Act 

(ESA) 

Dwarf sperm whale ....... Kogia sima .................... California, Oregon, and 

Washington.

........................... ........................... unk; 2014 .............. und 0 

Harbor Porpoise ............ Phocoena phocoena .... Morro Bay ..................... ........................... ........................... 4,191 (0.56)/2,698; 

2012.

65 0 

Killer whale .................... Orcinus orca ................. Eastern North Pacific 

Offshore.

........................... ........................... 300 (0.10)/276; 

2012.

2.8 0 

Eastern North Pacific 

Transient/West Coast 

Transient 5.

........................... ........................... 349 na/349; 2018 3.5 0.4 

Long-beaked common 

dolphin.

Delphinus capensis ...... California ...................... ........................... ........................... 83,379 (0.216)/ 

69,636; 2018.

668 ≥29.7 

Mesoplodont beaked 

whales 6.

Mesoplodon spp ........... California, Oregon, and 

Washington.

........................... ........................... 3,044 (0.54)/1,967; 

2014.

20 0.1 

Northern right whale dolphin.Lissodelphis borealis .... California, Oregon, and 

Washington.

........................... ........................... 29,285 (0.717)/ 

17,024; 2018.

163 ≥6.6 

Pacific white-sided dolphin.Lagenorhynchus 

obliquidens.

California, Oregon, and 

Washington.

........................... ........................... 34,999 (0.222)/ 

29,090; 2018.

279 7 

Pygmy sperm whale ...... Kogia breviceps ............ California, Oregon, and 

Washington.

........................... ........................... 4,111 (1.12)/1,924; 

2014.

19 0 

Risso’s dolphins ............ Grampus griseus .......... California, Oregon, and 

Washington.

........................... ........................... 6,336 (0.32)/4,817; 

2014.

46 ≥3.7 

Short-beaked common 

dolphin.

Delphinus delphis ......... California, Oregon, and 

Washington.

........................... ........................... 1,056,308 (0.207)/ 

888,971; 2018.

8,889 ≥30.5 

Short-finned pilot whale Globicephala 

macrorhynchus.

California, Oregon, and 

Washington.

........................... ........................... 836 (0.79)/466; 

2014.

4.5 1.2 

Sperm whale ................. Physeter 

macrocephalus.

California, Oregon, and 

Washington.

Depleted ........... Endangered ...... 1,997 (0.57)/1,270; 

2014.

2.5 0.6 

Striped dolphin .............. Stenella coeruleoalba ... California, Oregon, and 

Washington.

........................... ........................... 29,988 (0.299)/ 

23,448; 2018.

225 ≥4.0 

Harbor seal .................... Phoca vitulina ............... California ...................... ........................... ........................... 30,968 na/27,348; 

2012.

1,641 43 

Northern elephant seal .. Mirounga angustirostris California ...................... ........................... ........................... 187,386 na/85,369; 

2013.

5,122 13.7 

California sea lion ......... Zalophus californianus U.S. Stock .................... ........................... ........................... 257,606 na/ 

233,515; 2014.

14,011 ≥321 

Northern fur seal ........... Callorhinus ursinus ....... California ...................... ........................... ........................... 14,050 na/7,524; 

2013.

451 1.8 

Guadalupe fur seal ........ Arctocephalus 

townsendi.

Mexico to California ...... Depleted ........... Threatened ....... 34,187 unk/31,109; 

2013.

1,602 ≥3.8 

1Taxonomy 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. 3PBR 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). 4These 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. 5This 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). 6The 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. ESAimplementing 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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°00′ N to a southern boundary at 

34°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 nmi2

(22,970 km2) 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 km2 to 2,100 km2 (204 

nmi2 to 612 nmi2), 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°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 nmi2 (33,610 km2) 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 km2 (227 nmi2) 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 


jspears on DSK121TN23PROD with RULES2
40922 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 ecosystembased managed sanctuary consisting of 

an area of 1,109 nmi2 (3,804 km2) 

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: longbeaked 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 nmi2 (3,008 km2) 

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 ecosystembased managed sanctuary consisting of 

an area of 4,601 nmi2 (15,781 km2) 

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 nmi2 (65 km2) 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 Nin ̃ 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-mortalityevent-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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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-northernfur-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-graywhale-unusual-mortality-event-alongwest-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 (BermanKowalewski 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 freeranging 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; Fe ́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: 

• Many military ships have their 

bridges positioned closer to the bow, 

offering better visibility ahead of the 

ship (compared to a commercial 

merchant vessel); 

• There are often aircraft associated 

with the training or testing activity 

(which can serve as Lookouts), which 

can more readily detect cetaceans in the 

vicinity of a vessel or ahead of a vessel’s 

present course before crew on the vessel 

will be able to detect them; 

• Military ships are generally more 

maneuverable than commercial 

merchant vessels, and if cetaceans are 

spotted in the path of the ship, could be 

capable of changing course more 

quickly; 

• The crew size on military vessels is 

generally larger than merchant ships, 

allowing for stationing more trained 

Lookouts on the bridge. At all times 

when Navy vessels are underway, 


jspears on DSK121TN23PROD with RULES2
40924 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 

• 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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. 2Total 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 


jspears on DSK121TN23PROD with RULES2
40926 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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/marinemammal-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

Functional hearing 

group Species Onset TTS Onset PTS Mean onset slight GI tract injury 

Mean onset slight 

lung injury 

Mean onset 

mortality 

Low-frequency 

cetaceans.

All mysticetes ...... 168 dB SEL 

(weighted) or 

213 dB Peak 

SPL.

183 dB SEL 

(weighted) or 

219 dB Peak 

SPL.

237 dB Peak SPL Equation 1 ........... Equation 2. 

Mid-frequency 

cetaceans.

Most delphinids, 

medium and 

large toothed 

whales.

170 dB SEL 

(weighted) or 

224 dB Peak 

SPL.

185 dB SEL 

(weighted) or 

230 dB Peak 

SPL.

237 dB Peak SPL.

High-frequency 

cetaceans.

Porpoises and 

Kogia spp..

140 dB SEL 

(weighted) or 

196 dB Peak 

SPL.

155 dB SEL 

(weighted) or 

202 dB Peak 

SPL.

237 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. Nonauditory 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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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

Medium Functional hearing 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 μPa2s underwater. LF = low-frequency, MF = mid-frequency, HF = high-frequency. 

TABLE 13—TTS/PTS THRESHOLDS FOR PINNIPEDS

[In-air] 

Group 

Non-impulsive Impulsive 

TTS threshold 

SEL a

(weighted) 

PTS threshold 

SEL a

(weighted) 

TTS threshold 

SEL a

(weighted) 

TTS threshold 

peak SPL b

(unweighted) 

PTS threshold 

SEL b

(weighted) 

PTS threshold 

peak SPL b

(unweighted) 

OAc .......................................................... 157 177 146 170 161 176 

PAd .......................................................... 134 154 123 155 138 161 

aSEL thresholds are in dB re(20μPa)2.s. bSPL thresholds in dB 20μPa in air. cOA-Otariid in air (California sea lion). 

dPA-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 


jspears on DSK121TN23PROD with RULES2
40928 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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) 

1Average 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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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) 

1Average 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) 

1Average 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) 

1Average 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) 


jspears on DSK121TN23PROD with RULES2
40930 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

TABLE 18—SEL-BASED RANGES (METERS) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL

DISTURBANCE FOR PHOCIDS—Continued 

Bin Cluster size PTS TTS Behavioral 

E10 ............................................................................... 1 507 (340–675) 1,734 (725–3,525) 2,412 (800–5,025) 

1Average 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 nonauditory 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

Bin Range (m) 

(min-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) 

TABLE 19—RANGES TO 50 PERCENT

NON-AUDITORY INJURY RISK FOR

ALL MARINE MAMMAL HEARING

GROUPS—Continued 

Bin Range (m) 

(min-max) 

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

Bin 

Animal mass intervals (kg) 1

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) 

1Average 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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. 

D Acoustics (weapons firing noise; 

Explosions at or near the water surface 

can introduce loud, impulsive, 

broadband sounds into the marine 

environment); 


jspears on DSK121TN23PROD with RULES2
40932 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

D Explosives (explosive shock wave 

and sound at or near the water surface 

(<10 m)); and 

D 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 NMFSled 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 insitu 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 nonauditory 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) 

Common name Stock/DPS 

Annual take by Level A harassment and 

Level B harassment 

7-Year total take by Level A harassment 

and Level B harassment ** 

Behavioral 

response TTS PTS Behavioral 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 

Washington.

14 7 1 101 46 7 

Gray whale ........................ Eastern North Pacific ....... 9 5 0 65 37 0 

Western North Pacific † .... 0 0 0 0 0 0 

Humpback whale * ............ California, Oregon, and 

Washington/Mexico 

DPS.

7 4 0 52 29 0 

California, Oregon, and 

Washington/Central 

America DPS.

1 0 0 6 0 0 

Minke whale ...................... California, Oregon, and 

Washington.

2 1 0 15 6 0 

Sei whale * ........................ Eastern North Pacific ....... 0 0 0 0 0 0 

Baird’s beaked whale ....... California, Oregon, and 

Washington.

0 0 0 0 0 0 

Bottlenose dolphin ............ California Coastal ............. 0 0 0 0 0 0 

California, Oregon, and 

Washington Offshore.

5 5 1 37 36 4 

Cuvier’s beaked whale ..... California, Oregon, and 

Washington.

0 0 0 0 0 0 

Dall’s porpoise .................. California, Oregon, and 

Washington.

261 406 49 1,824 2,845 341 

Dwarf sperm whale ........... California, Oregon, and 

Washington.

20 31 6 142 217 43 

Harbor Porpoise ................ Morro Bay ......................... 0 0 0 0 0 0 

Killer whale ....................... Eastern North Pacific Offshore.0 0 0 0 0 0 

Eastern North Pacific 

Transient or West Coast 

Transient 6.

0 0 0 0 0 0 

Long-beaked common dolphin.California .......................... 66 44 9 454 310 65 

Mesoplodont spp .............. California, Oregon, and 

Washington.

0 0 0 0 0 0 

Northern right whale dolphin.California, Oregon, and 

Washington.

3 2 1 22 16 4 

Pacific white-sided dolphin California, Oregon, and 

Washington.

11 8 2 76 58 14 

Pygmy killer whale ............ NSD .................................. 0 0 0 0 0 0 

Pygmy sperm whale ......... California, Oregon, and 

Washington.

20 31 6 141 219 44 


jspears on DSK121TN23PROD with RULES2
40934 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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)—Continued 

Common name Stock/DPS 

Annual take by Level A harassment and 

Level B harassment 

7-Year total take by Level A harassment 

and Level B harassment ** 

Behavioral 

response TTS PTS Behavioral response TTS PTS 

Risso’s dolphins ................ California, Oregon, and 

Washington.

6 3 1 39 24 6 

Short-beaked common 

dolphin.

California, Oregon, and 

Washington.

90 65 15 630 456 103 

Short-finned pilot whale .... California, Oregon, and 

Washington.

0 0 0 0 0 0 

Sperm whale * ................... California, Oregon, and 

Washington.

1 1 0 7 8 0 

Striped dolphin .................. California, Oregon, and 

Washington.

1 1 0 5 4 0 

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. 

† 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

Species Stock 

Annual 

take by 

Level B 

harassment 

7-year total 

take by 

Level B 

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 HawaiiSouthern 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 40935 

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

2Separately, 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. 

3Outside 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). 

population growth rates 1 and, therefore 

are considered in evaluating population 

level impacts. 

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

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. 

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, 


jspears on DSK121TN23PROD with RULES2
40936 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 largecaliber projectiles, missiles and rockets, 

bombs), and physical disturbance and 

strike stressors (i.e., vessel movement, 

small-, medium-, and large-caliber nonexplosive practice munitions, nonexplosive 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. 


jspears on DSK121TN23PROD with RULES2
40938 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

TABLE 23—MITIGATION FOR ENVIRONMENTAL AWARENESS AND EDUCATION

Mitigation description 

Stressor or Activity: 

• All testing and training activities, as applicable. 

Mitigation Zone Size and Mitigation Requirements: 

• 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: 

• Weapons firing noise associated with large-caliber gunnery activities. 

Number of Lookouts and Observation Platform: 

• 1 Lookout positioned on the ship conducting the firing. 

—Depending on the activity, the Lookout could be the same as the one described in Table 29 (Mitigation for Small-, Medium-, and

Large-Caliber Non-Explosive Practice Munitions). 

Mitigation Requirements: 

• Mitigation zone: 

—30° on either side of the firing line out to 70 yd. from the muzzle of the weapon being fired. 

• Prior to the initial start of the activity: 

—Observe the mitigation zone for floating vegetation; if observed, relocate or delay the start until the mitigation zone is clear. 

—Observe the mitigation zone for marine mammals if observed, relocate or delay the start of weapons firing. 

• During the activity: 

—Observe the mitigation zone for floating vegetation and marine mammals; if observed, cease weapons firing. 

• 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: 

• Gunnery activities using explosive medium-caliber and large-caliber projectiles. 

• Activities using a maritime surface target. 

Number of Lookouts and Observation Platform: 

• 1 Lookout on the vessel or aircraft conducting the activity. 

—For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described in Table 24 (Mitigation for Weapons Firing Noise). 

• 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: 

• Mitigation zones: 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 40939 

TABLE 25—MITIGATION FOR EXPLOSIVE MEDIUM-CALIBER AND LARGE-CALIBER PROJECTILES—Continued 

Mitigation description 

—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. 

• 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. 

• 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 . 

• 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: 

• Aircraft-deployed explosive missiles and rockets. 

• Activities using a maritime surface target at ranges up to 75 nmi (139 km). 

Number of Lookouts and Observation Platform: 

• 1 Lookout positioned in an aircraft. 

• If additional platforms are participating in the activity, personnel positioned in those assets (e.g., safety observers, evaluators) will support 

observing the mitigation zone for applicable biological resources while performing their regular duties. 

Mitigation Requirements: 

• 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. 

• Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone): 

—Observe the mitigation zone for floating vegetation; if observed, relocate or delay the start until the mitigation zone is clear. 

—Observe the mitigation zone for marine mammals; if observed, relocate or delay the start of firing. 

• During the activity: 

—Observe the mitigation zone for floating vegetation and marine mammals; if observed, cease firing. 

• 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. 

• 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: 

• Explosive bombs. 

• Mitigation applies to activities using a maritime surface target at ranges up to 75 nmi (139 km). 

Number of Lookouts and Observation Platform: 

• 1 Lookout positioned in the aircraft conducting the activity. 

• If additional platforms are participating in the activity, personnel positioned in those assets (e.g., safety observers, evaluators) will support 

observing the mitigation zone for applicable biological resources while performing their regular duties. 

Mitigation Requirements: 

• Mitigation zone: 

—2,500 yd (2,286 m) around the intended target. 

• Prior to the start of the activity (e.g., when arriving on station): 


jspears on DSK121TN23PROD with RULES2
40940 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

TABLE 27—MITIGATION FOR EXPLOSIVE BOMBS—Continued 

Mitigation description 

—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. 

• During the activity (e.g., during target approach): 

—Observe the mitigation zone for floating vegetation and marine mammals; if observed, cease bomb deployment. 

• 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. 

• 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: 

• Vessel movement. 

• 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: 

• 1 Lookout on the vessel that is underway. 

Mitigation Requirements: 

• 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). 

• During the activity: 

—When underway, observe the mitigation zone for marine mammals; if observed, maneuver to maintain distance. 

• 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: 

• Gunnery activities using small-, medium-, and large-caliber non-explosive practice munitions. 

• Activities using a maritime surface target. 

Number of Lookouts and Observation Platform: 

• 1 Lookout positioned on the platform conducting the activity. 

• Depending on the activity, the Lookout could be the same as the one described in Table 24 (Mitigation for Weapons Firing Noise). 

Mitigation Requirements: 

• Mitigation zone: 

—200 yd (182.88 m) around the intended impact location. 

• Prior to the initial start of the activity (e.g., when maneuvering on station): 

—Observe the mitigation zone for floating vegetation; if observed, relocate or delay the start until the mitigation zone is clear. 

—Observe the mitigation zone for marine mammals; if observed, relocate or delay the start of firing. 

• During the activity: 

—Observe the mitigation zone for floating vegetation and marine mammals; if observed, cease firing. 

• Conditions for commencing/recommencing the activity after a marine mammal sighting before or during the activity: 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 40941 

TABLE 29—MITIGATION FOR SMALL-, MEDIUM-, AND LARGE-CALIBER NON-EXPLOSIVE PRACTICE MUNITIONS—Continued 

Mitigation description 

—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: 

• Aircraft-deployed non-explosive missiles and rockets. 

• Activities using a maritime surface target at ranges of up to 75 nmi (139 km). 

Number of Lookouts and Observation Platform: 

• 1 Lookout positioned in an aircraft. 

Mitigation Requirements: 

• Mitigation zone: 

—900 yd (822.96 m) around the intended impact location. 

• Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone): 

—Observe the mitigation zone for floating vegetation; if observed, relocate or delay the start until the mitigation zone is clear. 

—Observe the mitigation zone for marine mammals; if observed, relocate or delay the start of firing. 

• During the activity: 

—Observe the mitigation zone for floating vegetation and marine mammals; if observed, cease firing. 

• 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: 

• Non-explosive bombs. 

• Mitigation applies to activities using a maritime surface target at ranges up to 75 nmi (139 km). 

Number of Lookouts and Observation Platform: 

• 1 Lookout positioned in an aircraft. 

Mitigation Requirements: 

• Mitigation zone: 

—900 yd (822.96 m) around the intended impact location. 

• 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. 

• 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. 

• 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. 


jspears on DSK121TN23PROD with RULES2
40942 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

TABLE 32—MITIGATION FOR TARGET AND MISSILE LAUNCHES FROM SNI 

Mitigation description 

Stressor or Activity: 

• Target and Missile launches from SNI. 

Mitigation Requirements: 

• 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. 

• Missiles shall not cross over pinniped haulouts at elevations less than 305 m (1,000 ft) above the haulout. 

• The Navy will not conduct more than 40 launch events annually. 

• The Navy will not conduct more than 10 launch events at night of the 40 annual launch events. 

• Launches shall be scheduled to avoid peak pinniped pupping periods between January and July, to the maximum extent practicable.

• 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. 

• 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. 

• 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. 

• 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): 

• 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). 

• 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. 

• 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, 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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: 

• 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. 

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: 

D 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); 

D 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 cooccurrence 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 


jspears on DSK121TN23PROD with RULES2
40944 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

species (e.g., age class of exposed 

animals or known pupping, calving or 

feeding areas); 

D 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); 

D 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); 

D An increase in our understanding of 

the effectiveness of mitigation and 

monitoring measures; 

D 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; 

D 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 

D 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.navymarinespecies

monitoring.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/incidentaltake-authorizations-military-readinessactivities 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., populationlevel 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: 

• 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). 

• 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. 

• 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:// 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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-navytesting-and-training-activities-pointmugu-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 


jspears on DSK121TN23PROD with RULES2
40946 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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: 

• 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 

• 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., populationlevel 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., highlevel 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 


jspears on DSK121TN23PROD with RULES2
40948 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

foraging dives for Blainville’s beaked 

whale, while multi-day training events 

may decrease foraging behavior for 

Blainville’s beaked whale (ManzanoRoth 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 midfrequency 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), shortterm (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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 lowfrequency 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 nonauditory 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. 


jspears on DSK121TN23PROD with RULES2
40950 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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

Common name Stock/DPS 

Annual take by Level A harassment and Level B 

harassment 

Total take 

Abundance 

(2021 draft 

SARs or most 

recent SARs) 

Percent taken 

by abundance Behavioral 

response TTS PTS 

Blue whale * .......... Eastern North Pacific.7 4 0 11 1,496 0.74 

Fin whale * ............. California, Oregon, 

and Washington.

14 7 1 22 9,029 0.24 

Gray whale ............ Eastern North Pacific.9 5 0 14 26,960 0.05 

Humpback whale * California, Oregon, 

and Washington/ 

Mexico DPS.

7 4 0 11 2,900 0.38 

California, Oregon, 

and Washington/ 

Central America 

DPS.

1 0 0 1 2,900 0.03 

Minke whale .......... California, Oregon, 

and Washington.

2 1 0 3 636 0.47 

Bottlenose dolphin California, Oregon, 

and Washington 

Offshore.

5 5 1 a 16 1924 0.57 

Dall’s porpoise ...... California, Oregon, 

and Washington.

261 406 49 716 25,750 2.78 

Dwarf sperm whale California, Oregon, 

and Washington.

20 31 6 57 4,111 1.39 

Long-beaked common dolphin.California .............. 66 44 9 255 101,305 0.12 

Northern right 

whale dolphin.

California, Oregon, 

and Washington.

3 2 1 c 14 26,556 0.02 

Pacific white-sided 

dolphin.

California, Oregon, 

and Washington.

11 8 2 d 26 26,814 0.08 

Pygmy sperm 

whale.

California, Oregon, 

and Washington.

20 31 6 57 4,111 1.39 

Risso’s dolphins .... California, Oregon, 

and Washington.

6 3 1 e 19 6,336 0.16 

Short-beaked common dolphin.California, Oregon, 

and Washington.

90 65 15 170 969,861 0.02 

Sperm whale * ....... California, Oregon, 

and Washington.

1 1 0 2 1,997 0.10 

Striped dolphin ...... California, Oregon, 

and Washington.

1 1 0 f 56 29,211 0.01 

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. 

aTotal 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. bTotal 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. cTotal 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. dTotal 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. eTotal 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. fTotal 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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 40951 

TABLE 35—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT FOR PINNIPEDS ON SNI AND INSTANCES OF TAKE AS A

PERCENTAGE OF STOCK ABUNDANCE

Species Stock 

Annual take by 

Level B 

harassment 

Abundance 

(2021 draft 

SARs or most 

recent SARs) 

Percent taken 

by abundance 

7-year total 

take by Level 

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 highfrequency 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 


jspears on DSK121TN23PROD with RULES2
40952 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 speciesspecific 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, 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 shortterm 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 


jspears on DSK121TN23PROD with RULES2
40954 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

gray whale numbers suggests that largescale fluctuations of this nature are not 

rare. The observed declines in 

abundance appear to represent shortterm 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 shortfinned 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 longterm 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 


jspears on DSK121TN23PROD with RULES2
40956 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 longterm consequences for either individual 

animals or populations. 

We note that Dall’s porpoise, as HFsensitive 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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 hullmounted sonar, to within a few 

kilometers, depending on the 

environmental conditions and species. 

Some dolphin species (the more surfacedwelling taxa—typically those with 

‘‘dolphin’’ in the common name, such 

as bottlenose dolphins, spotted 

dolphins, spinner dolphins, roughtoothed 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. 


jspears on DSK121TN23PROD with RULES2
40958 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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. 


jspears on DSK121TN23PROD with RULES2
40960 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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/incidentaltake-authorizations-military-readinessactivities. 

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/incidentaltake-authorizations-military-readinessactivities. 

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 midJuly, 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 noncompliance 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 

■ 1. The authority citation for part 218 

continues to read as follows: 

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

otherwise noted. 

■ 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 

§ 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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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. 

§ 218.11 Effective dates. 

Regulations in this subpart are 

effective from July 7, 2022, through July 

7, 2029. 

§ 218.12 Permissible methods of taking. 

(a) Under an LOA issued pursuant to 

§§ 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 

§ 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 

§ 218.10(c) is limited to the species and 

stocks listed in Table 1 of this section. 

TABLE 1 TO § 218.12(b) 

Common name Scientific name Stock 

Blue whale ......................................................... Balaenoptera musculus .................................... Eastern North Pacific. 

Fin whale ............................................................ Balaenoptera physalus ..................................... California, Oregon, and Washington. 

Gray whale ......................................................... Eschrichtius robustus ....................................... Eastern North Pacific. 

Humpback whale ............................................... Megaptera novaeangliae .................................. California, Oregon, Washington. 

Minke whale ....................................................... Balaenoptera acutorostrata .............................. California, 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 borealis ........................................ California, Oregon, and Washington. 

Pacific white-sided dolphin ................................ Lagenorhynchus obliquidens ........................... California, 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 macrocephalus .................................. California, Oregon, and Washington. 

Striped dolphin ................................................... Stenella coeruleoalba ....................................... California, Oregon, and Washington. 

Harbor seal ........................................................ Phoca vitulina ................................................... California. 

Northern elephant seal ...................................... Mirounga angustirostris .................................... California. 

California sea lion .............................................. Zalophus californianus ..................................... U.S. Stock. 

Guadalupe fur seal ............................................ Arctocephalus townsendi ................................. Mexico to California. 

§ 218.13 Prohibitions. 

Except for incidental takings 

contemplated in § 218.12(a) and 

authorized by an LOA issued under 

§§ 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 § 218.10(c): 

(a) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or an LOA issued under 

§§ 216.106 of this chapter and 218.16; 

(b) Take any marine mammal not 

specified in § 218.12(b); 

(c) Take any marine mammal 

specified in § 218.12(b) in any manner 

other than as specified in the LOA 

issued under §§ 216.106 of this chapter 

and 218.16; or 

(d) Take a marine mammal specified 

in § 218.12(b) if NMFS determines such 

taking is having, or may have, more than 

a negligible impact on the species or 

stock concerned. 

§ 218.14 Mitigation requirements. 

When conducting the activities 

identified in § 218.10(c), the mitigation 

measures contained in any LOA issued 

under §§ 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 nonexplosive practice munitions; nonexplosive missiles and rockets; and nonexplosive 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 


jspears on DSK121TN23PROD with RULES2
40962 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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 mediumcaliber 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-tosurface 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 vesselbased 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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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 bowriding 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 vesselbased 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 nonexplosive 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. 


jspears on DSK121TN23PROD with RULES2
40964 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

(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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 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. 

§ 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 § 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-navytesting-and-training-activities-pointmugu-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., timelapse 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 


jspears on DSK121TN23PROD with RULES2
40966 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations 

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. 

§ 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 

§ 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 § 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 § 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. 

§ 218.17 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under §§ 216.106 

of this chapter and 218.16 for the 

activity identified in § 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 §§ 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 §§ 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. 

§§ 218.18–218.19 [Reserved] 

[FR Doc. 2022–14307 Filed 7–7–22; 8:45 am] 

BILLING CODE 3510–22–P 


jspears on DSK121TN23PROD with RULES2