Proposed Rule2024-31402
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training and Testing Activities in the Hawaii-Southern California Training and Testing Study Area
Primary source
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Published
January 16, 2025
Effective
January 16, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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 Hawaii-Southern California Training and Testing (HSTT) Study Area between 2018 and 2025. In 2021, two separate U.S. Navy vessels struck unidentified large whales on two separate occasions, one whale in June 2021 and one whale in July 2021, in waters off Southern California. The takes by vessel strike of the two whales by the U.S. Navy were covered by the existing regulations and Letters of Authorization (LOAs), which authorize the U.S. Navy to take up to three large whales by serious injury or mortality by vessel strike between 2018 and 2025. The Navy reanalyzed the potential of vessel strike in the HSTT Study Area, including the recent strikes, and as a result, requested two additional takes of large whales by serious injury or mortality by vessel strike for the remainder of the current regulatory period. In May 2023, a U.S. Navy vessel struck a large whale in waters off Southern California. NMFS reanalyzed the potential for vessel strike based on new information, including the three strikes, and authorizes two additional takes of large whales by serious injury or mortality by vessel strike for the remainder of the current regulatory period (two takes in addition to the three takes authorized in the current regulations). 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).
Full Text
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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Proposed Rules]
[Pages 4944-5029]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31402]
[[Page 4943]]
Vol. 90
Thursday,
No. 10
January 16, 2025
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 218
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to the U.S. Navy Training and Testing Activities in the Hawaii-Southern
California Training and Testing Study Area; Proposed Rule
Federal Register / Vol. 90, No. 10 / Thursday, January 16, 2025 /
Proposed Rules
[[Page 4944]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 241220-0334]
RIN 0648-BL72
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training and Testing Activities in the
Hawaii-Southern California Training and Testing Study Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of Letters of
Authorization.
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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these
regulations pursuant to the Marine Mammal Protection Act (MMPA) to
govern the taking of marine mammals incidental to the training and
testing activities conducted in the Hawaii-Southern California Training
and Testing (HSTT) Study Area between 2018 and 2025. In 2021, two
separate U.S. Navy vessels struck unidentified large whales on two
separate occasions, one whale in June 2021 and one whale in July 2021,
in waters off Southern California. The takes by vessel strike of the
two whales by the U.S. Navy were covered by the existing regulations
and Letters of Authorization (LOAs), which authorize the U.S. Navy to
take up to three large whales by serious injury or mortality by vessel
strike between 2018 and 2025. The Navy reanalyzed the potential of
vessel strike in the HSTT Study Area, including the recent strikes, and
as a result, requested two additional takes of large whales by serious
injury or mortality by vessel strike for the remainder of the current
regulatory period. In May 2023, a U.S. Navy vessel struck a large whale
in waters off Southern California. NMFS reanalyzed the potential for
vessel strike based on new information, including the three strikes,
and authorizes two additional takes of large whales by serious injury
or mortality by vessel strike for the remainder of the current
regulatory period (two takes in addition to the three takes authorized
in the current regulations). 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).
DATES: Effective from January 16, 2025 to December 20, 2025.
ADDRESSES: Copies of the Navy's applications, NMFS' proposed and final
rules and subsequent LOAs for these regulations, NMFS' proposed and
final rules and subsequent LOAs for the associated 5-year HSTT Study
Area regulations, other supporting documents cited herein, and a list
of the references cited in this document may be obtained online at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>. 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, promulgated under the authority of the MMPA (16
U.S.C. 1361 et seq.), modify previous regulations which allow for the
authorization of take of marine mammals incidental to the Navy's
training and testing activities (which qualify as military readiness
activities) from the use of sonar and other transducers, in-water
detonations, air guns, impact pile driving/vibratory extraction, and
the movement of vessels throughout the HSTT Study Area (50 CFR part
218, subpart H; hereafter ``2020 HSTT regulations'').
NMFS received a request from the Navy to modify the 2020 HSTT
regulations and LOAs to authorize two additional takes of large whales
by serious injury or mortality by vessel strike over the remainder of
the HSTT regulatory period. The 2020 HSTT regulations and LOAs
authorized the incidental take, by serious injury or mortality, of
three large whales by vessel strike. Here, in consideration of the best
available science, including updated information related to vessel
strikes, NMFS analyzes and authorizes the incidental serious injury or
mortality by vessel strike of five large whales over the effective
period of the regulations (December 2018-December 2025). The effective
period remains unchanged from the existing regulations. Further, the
Navy's planned activities remain unchanged; however, this final rule
includes two additional mitigation measures and revision of two
existing mitigation measures to further reduce the probability of
vessel strike, as well as two additional reporting measures (described
below in the Changes from the Proposed Rule to the Final Rule section)
from that included in the 2020 HSTT regulations. With the exception of
these new mitigation measures and revisions to two existing mitigation
measures, the required mitigation and monitoring measures remain
unchanged from the 2020 HSTT regulations.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional taking of small numbers of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity, as well as monitoring and reporting
requirements. Section 101(a)(5)(A) of the MMPA and the implementing
regulations at 50 CFR part 216, subpart I, provide the legal basis for
issuing this final rule and the subsequent LOAs. As directed by this
legal authority, this final rule contains mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Final Rule
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:
<bullet> The use of defined powerdown and shutdown zones (based on
activity);
<bullet> Measures to reduce or eliminate the likelihood of ship
strikes;
<bullet> Activity limitations in certain areas and times that are
biologically important (i.e., for foraging, migration, reproduction)
for marine mammals;
<bullet> Implementation of a Notification and Reporting Plan (for
dead, live stranded, or marine mammals struck by a vessel); and
<bullet> 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 (16 U.S.C. 1361
et
[[Page 4945]]
seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow,
upon request, the incidental, but not intentional, taking of small
numbers of marine mammals by U.S. citizens who engage in a specified
activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, the public is
provided with notice of the proposed incidental take authorization and
the opportunity to review and submit comments.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) 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 (referred to in this rulemaking as
``mitigation''); and 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 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.
The NDAA for Fiscal Year 2019 (2019 NDAA) (Pub. L. 115-232),
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.
Under the MMPA implementing regulations, incidental take
regulations may be modified, in whole or in part, as new information is
developed and after notice and opportunity for public comment (50 CFR
216.105). An LOA must be withdrawn or suspended if, after notice and
opportunity for public comment, NMFS determines that the regulations
are not being substantially complied with, or the taking is having, or
may have, more than a negligible impact on species or stock. (Id. at
216.106(e)). Note, in its application, Navy relied on Sec. Sec.
218.76, and 218.77. These sections outline the process for modification
of an LOA without modifying the applicable incidental take regulation.
These sections do not apply here because the Navy requested
modification of the 2020 HSTT regulations.
Summary of Request
On December 27, 2018, NMFS issued a 5-year final rule governing the
taking of marine mammals incidental to Navy training and testing
activities conducted in the HSTT Study Area (83 FR 66846; hereafter
``2018 HSTT final rule''). Previously, on August 13, 2018, and towards
the end of the time period in which NMFS was processing the Navy's
request for the 2018 regulations, the 2019 NDAA amended the MMPA for
military readiness activities to allow incidental take regulations to
be issued for up to 7 years instead of the previous 5 years. The Navy's
training and testing activities conducted in the HSTT Study Area
qualify as military readiness activities pursuant to the MMPA, as
amended by the 2004 NDAA. On March 11, 2019, the Navy submitted an
application requesting that NMFS extend the 2018 HSTT final rule (83 FR
66846, December 27, 2018) and associated LOAs such that they would
cover take incidental to 7 years of training and testing activities
instead of 5, extending the expiration date from December 20, 2023 to
December 20, 2025. On July 10, 2020, NOAA Fisheries issued regulations
(85 FR 41780) to govern the taking of marine mammals incidental to the
training and testing activities conducted in the HSTT Study Area over
the course of 7 years, effectively extending the effective period from
December 20, 2023 to December 20, 2025.
On March 31, 2022, NMFS received an adequate and complete
application (2022 Navy application) from the Navy requesting that NMFS
modify the existing regulations and LOAs to authorize two additional
takes of large whales by serious injury or mortality by vessel strike
over the remainder of the HSTT authorization period. The 2020 HSTT
regulations (50 CFR part 218, subpart H) and LOAs authorize the take of
marine mammals from the Navy's training and testing activities in the
HSTT Study Area through December 20, 2025. These regulations and LOAs
authorize the take of three large whales by serious injury or mortality
by vessel strike.
The Navy's 2022 request is based upon new information regarding
U.S. Navy vessel strikes off the coast of Southern California. As
described in the 2022 Navy application, in 2021, two separate U.S. Navy
vessels struck unidentified large whales off the coast of Southern
California on two separate occasions, one whale in June 2021 and one
whale in July 2021. Separately, a foreign naval vessel struck two fin
whales off the coast of Southern California in May 2021.
In the 2022 Navy application, the Navy proposed no changes to the
nature of the specified activities covered by the 2020 HSTT final rule.
The Navy stated that the level of activity within and between years
would be consistent with that previously analyzed in the 2020 HSTT
final rule, and all activities would be conducted within the same
boundaries of the HSTT Study Area identified in the 2020 HSTT final
rule. The training and testing activities (e.g., equipment and sources
used, exercises conducted) are identical to those described and
analyzed in the 2020 HSTT final rule, and the mitigation, monitoring,
and reporting measures are similar to those described and analyzed in
the 2020 HSTT final rule. The only changes included in the Navy's
request are for additional take by serious injury or mortality by
vessel strike.
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 ensures the readiness
of the naval forces of the United States. The Navy executes this
responsibility by establishing and executing training programs,
including at-sea training and exercises, and ensuring naval forces
[[Page 4946]]
have access to the ranges, operating areas (OPAREAs), and airspace
needed to develop and maintain skills for conducting naval activities.
For a summary of the training and testing activities within the
HSTT Study Area, see the Navy's previous rulemaking and LOA
applications submitted for HSTT Phase III activities (October 13, 2017
initial rulemaking and LOA application (hereafter ``2017 Navy
application'') and March 11, 2019 extension rulemaking and LOA
application (hereafter ``2019 Navy application'')) and the 2020 HSTT
regulations that were subsequently promulgated, which can be found at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>. These
activities are deemed by the Navy necessary to accomplish military
readiness requirements and are anticipated to continue into the
reasonably foreseeable future. The 2022 Navy application and this rule
cover training and testing activities that would occur over the
remainder of the effective period of the current regulations, valid
from the publication date of this final rule through December 20, 2025.
Summary of the Regulations
NMFS is modifying the incidental take regulations and associated
LOAs to cover the same Navy activities covered by the 2020 HSTT
regulations but authorize five takes of large whales by serious injury
or mortality by vessel strike (two takes in addition to the three takes
authorized in the 2020 HSTT regulations). In its 2022 application, the
Navy proposed no additional changes and explained that its training and
testing activities, including the level of vessel use, remain
unchanged. Nearly all mitigation, monitoring, and reporting measures
remain unchanged from the 2020 HSTT regulations (85 FR 41780, July 10,
2020) with the exception of two additional mitigation measures (see the
Mitigation Measures section of this final rule), revision of two
existing mitigation measures (see the Mitigation Measures section of
this final rule), and two additional reporting measures resulting from
discussions between the Navy and NMFS (see the Reporting section of
this final rule).
In response to the Navy's request, we focus our analysis on the new
information related to vessel strike. We also review any new
information that may be pertinent to our analysis of the impacts from
all other activities that comprise Navy's specified activity, and our
analysis of mitigation, monitoring, and reporting. Where there is any
new information pertinent to the descriptions, analyses, or findings
required to authorize the incidental take for military readiness
activities under MMPA section 101(a)(5)(A), that information is
provided in the appropriate sections below. Where there is no new
information or any new information does not change our previous
analysis or findings, we indicate as such and refer the reader to the
original analysis in the 2018 HSTT proposed and final rule, 2020 HSTT
final rule or the 2019 HSTT Final Environmental Impact Statement
(FEIS)/Overseas Environmental Impact Statement (OEIS).
After reviewing all new information and as discussed below, we
largely find that our previous analyses and findings remain current and
applicable. For vessel strike, we provide a new analysis and authorize
two additional takes of large whales, for a total of five takes by
serious injury or mortality by vessel strike over the 7-year period. We
authorize these additional takes after analyzing the best available
scientific information and after considering the effects of the entire
specified activity and the total taking as required by MMPA section
101(a)(5)(A). When setting forth the permissible methods of taking
pursuant to the activity and other means of effecting the least
practicable adverse impact on the species or stock, we require new and
modified mitigation and also consider whether to require any new or
modified mitigation for the entire specified activity.
The regulatory language included at the end of this final rule,
which is published at 50 CFR part 218, subpart H, remains largely the
same as that under the HSTT 2020 regulations, except for a small number
of technical changes related to the Navy's 2022 request, new and
revised mitigation measures, and two new reporting measures. Therefore,
in this final rule, we refer the reader to complete analyses described
in the 2018 HSTT final rule or an updated analysis in the 2020 HSTT
final rule, where appropriate.
Below is a list of the regulatory documents referenced in this
final rule. The list indicates the short name by which the document is
referenced in this final rule as well as the full titles of the cited
documents. All of the documents can be found at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a> and <a href="http://www.hstteis.com/">http://www.hstteis.com/</a>.
<bullet> NMFS June 26, 2018, Hawaii-Southern California Training
and Testing (HSTT) proposed rule (83 FR 29872; 2018 HSTT proposed
rule);
<bullet> NMFS December 27, 2018, Hawaii-Southern California
Training and Testing (HSTT) final rule (83 FR 66846; 2018 HSTT final
rule);
<bullet> NMFS September 13, 2019, Hawaii-Southern California
Training and Testing (HSTT) proposed rule (84 FR 48388; 2019 HSTT
proposed rule);
<bullet> NMFS July 10, 2020, Hawaii-Southern California Training
and Testing (HSTT) final rule (85 FR 41780; 2020 HSTT final rule);
<bullet> NMFS October 3, 2023, Hawaii-Southern California Training
and Testing (HSTT) proposed rule (88 FR 68290; 2023 HSTT proposed
rule);
<bullet> Navy October 13, 2017, MMPA rulemaking and LOA application
(2017 Navy application);
<bullet> Navy March 11, 2019, MMPA rulemaking and LOA extension
application (2019 Navy application);
<bullet> Navy March 31, 2022, MMPA rulemaking and LOA revision
application (2022 Navy application); and
<bullet> October 26, 2018, Hawaii-Southern California Training and
Testing (HSTT) Final Environmental Impact Statement/Overseas
Environmental Impact Statement (FEIS/OEIS) (2018 HSTT FEIS/OEIS).
Description of the Specified Activity
The Navy requested authorization to take marine mammals incidental
to conducting training and testing activities. The Navy has determined
that acoustic and explosives stressors are most likely to result in
impacts on marine mammals that could rise to the level of harassment.
In addition to take by harassment, the Navy has determined that vessel
movement may result in serious injury or mortality to marine mammals.
Detailed descriptions of these activities are provided in chapter 2 of
the 2018 HSTT FEIS/OEIS and in the 2017 Navy application.
Overview of Training and Testing Activities
The Navy routinely trains in the HSTT Study Area in preparation for
national defense missions. Training and testing activities and
components covered in the 2022 Navy application are described in detail
in the Overview of Training and Testing Activities sections of the 2018
HSTT proposed rule, the 2018 HSTT final rule, and chapter 2
(Description of Proposed Action and Alternatives) of the 2018 HSTT
FEIS/OEIS (<a href="http://www.hstteis.com/">http://www.hstteis.com/</a>). Each military training and testing
activity described meets mandated Fleet requirements to deploy ready
forces. The Navy proposed no changes to the specified activities
[[Page 4947]]
described and analyzed in the 2018 HSTT final rule and subsequent 2020
HSTT final rule. The boundaries of the HSTT Study Area (see figure 2-1
of the 2019 Navy application); the dates and duration of the
activities; and the training and testing activities (e.g., equipment
and sources used, exercises conducted) analyzed in this final rule are
identical to those described and analyzed in the 2020 HSTT final rule
and therefore, are not repeated herein. Please see the 2020 HSTT final
rule for more information. The manner of vessel movement presented in
this final rule is also identical to that analyzed in the 2020 HSTT
final rule.
Vessel Strike
Vessel strikes are not specific to any particular training or
testing activity but rather, a limited, sporadic, and incidental result
of Navy vessel movement within the HSTT Study Area. Vessel strikes from
commercial, recreational, and military vessels are known to seriously
injure and occasionally kill cetaceans (Abramson et al. 2011; Berman-
Kowalewski et al. 2010; Calambokidis, 2012; Douglas et al. 2008;
Laggner, 2009; Lammers et al. 2003; Van der Hoop et al. 2012; Van der
Hoop et al. 2013; Crum et al. 2019), although reviews of the literature
on vessel strikes mainly involve collisions between commercial vessels
and whales (Jensen and Silber, 2003; Laist et al. 2001). Vessel speed,
size, and mass are all important factors in determining both the
potential likelihood and impacts of a vessel strike to marine mammals
(Conn and Silber, 2013; Gende et al. 2011; Silber et al. 2010;
Vanderlaan and Taggart, 2007; Wiley et al. 2016). For large vessels,
speed and angle of approach can influence the severity of a strike.
Navy vessels transit at speeds that are optimal for fuel
conservation or to meet training and testing requirements. Small craft
(for purposes of this analysis, less than 18 meters (m) in length) have
much more variable speeds (0-50+ knots (kn; 0-92.6 kilometers (km) per
hour), dependent on the activity). Submarines generally operate at
speeds in the range of 8-13 kn (14.8-24.1 km per hour), and the average
speed of large Navy ships range between 10 and 15 kn (18.5 and 27.8 km
per hour). While these speeds are considered averages and
representative of most events, some vessels need to operate outside of
these parameters for certain times or during certain activities. For
example, to produce the required relative wind speed over the flight
deck, an aircraft carrier engaged in flight operations must adjust its
speed through the water accordingly. Also, there are other instances
when vessels would be dead in the water or moving slowly ahead to
maintain steerage, such as launch and recovery of a small rigid hull
inflatable boat; vessel boarding, search, and seizure training events;
or retrieval of a target. There are a few specific events, including
high-speed tests of newly constructed vessels, where vessels would
operate at higher speeds. By comparison, this is slower than most
commercial vessels where full speed for a container ship is typically
24 kn (44.4 km per hour; Bonney and Leach, 2010).
Large Navy vessels (greater than 18 m in length) within the
offshore areas of range complexes and testing ranges operate
differently from commercial vessels in ways that may reduce the
probability of 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). A
primary duty of personnel standing watch on surface ships is to detect
and report all objects and disturbances sighted in the water that may
indicate a threat to the vessel and its crew, such as debris, a
periscope, surfaced submarine, or surface disturbance. Per vessel
safety requirements, personnel standing watch also report any marine
mammals sighted in the path of the vessel as a standard collision
avoidance procedure. All vessels proceed at a safe speed so they can
take proper and effective action to avoid a collision with any sighted
object or disturbance and can be stopped within a distance appropriate
to the prevailing circumstances and conditions. As described in the
Standard Operating Procedures section, the Navy utilizes Lookouts to
avoid collisions, and Lookouts are also trained to spot marine mammals
so that vessels may change course or take other appropriate action to
avoid collisions. Should a vessel strike occur, we consider that it
would likely result in incidental take in the form of serious injury
and/or mortality and, accordingly, for the purposes of the analysis, we
assume that any vessel strike would result in serious injury or
mortality.
The Navy proposed no changes to the nature of the specified
activities, the training and testing activities, the manner of vessel
movement, the speeds at which vessels operate, the number of vessels
that would be used during various activities, or the locations in which
Navy vessel activity would be concentrated within the HSTT Study Area
described in the 2018 HSTT final rule and referenced in the 2020 HSTT
final rule.
Vessel Movement
Vessels used as part of the planned activities include ships,
submarines, unmanned vessels, and boats ranging in size from small, 22
feet (ft; 7 m) rigid hull inflatable boats to aircraft carriers with
lengths up to 1,092 ft (333 m). The average speed of large Navy ships
ranges between 10 and 15 kn (18.5 and 27.8 km per hour) and submarines
generally operate at speeds in the range of 8-13 kn (14.8-24.1 km per
hour) while a few specialized vessels can travel at faster speeds.
Small craft (for purposes of this analysis, less than 18 m in length)
have much more variable speeds (0-50+ kn (0-92.6 km per hour),
dependent on the activity) but generally range from 10 to 14 kn (18.5
to 25.9 km per hour). From unpublished Navy data, average median speed
for large Navy ships in the HSTT Study Area from 2011-2015 varied from
5-10 knots (kn; 9.2-18.5 km per hour) with variations by ship class and
location (i.e., slower speeds close to the coast). While these speeds
for large and small craft are representative of most events, some
vessels need to temporarily operate outside of these parameters.
Typical speed of Navy vessels in HSTT core high use areas from 2014-
2018 were between 10 and 15 kn (18.5 and 27.8 km per hour; Starcovic
and Mintz 2021). This core area is a region including the approaches to
San Diego, and immediate offshore areas west of San Diego, centered
north and south of San Clemente Island. A full description of Navy
vessels that are used during training and testing activities can be
found in the 2017 Navy application and chapter 2 (Description of
Proposed Action and Alternatives) of the 2018 HSTT FEIS/OEIS.
The number of Navy vessels used in the HSTT Study Area varies based
on military training and testing requirements, deployment schedules,
annual budgets, and other dynamic factors. Most training and testing
activities involve the use of vessels. These activities could be widely
dispersed throughout the HSTT Study Area but would typically be
conducted near naval ports, piers, and range areas. Navy vessel traffic
would be especially concentrated near San Diego, California and Pearl
Harbor, Hawaii. Based on historical data, we anticipate the annual
number of at-sea hours by U.S. Navy vessels in the HSTT action area
will be around 26,800 hours per year (Starcovic and Mintz 2021). We
expect that about 25 percent of this vessel activity would occur within
the Hawaii Range Complex
[[Page 4948]]
(HRC) and 75 percent within the Southern California Range Complex
(SOCAL; Mintz 2016). There is no seasonal differentiation in Navy
vessel use because of continual operational requirements from Combatant
Commanders. The majority of large vessel traffic occurs between the
installations and the OPAREAs. The transit corridor, notionally defined
by the great circle route (e.g., shortest distance) from San Diego to
the center of the HRC, as depicted in the 2018 HSTT FEIS/OEIS, is
generally used by ships transiting between SOCAL and HRC. While in
transit, ships and aircraft would, at times, conduct basic and routine
unit-level activities such as gunnery, bombing, and sonar training and
maintenance. Of note, support craft would be more concentrated in the
coastal waters in the areas of naval installations, ports, and ranges.
Activities involving vessel movements occur intermittently and are
variable in duration, ranging from a few hours up to weeks. More
information on Navy and non-Navy vessel traffic patterns in the HSTT
Study Area may be found in several studies prepared by the Navy
(Starcovic and Mintz 2021; Mintz, 2016; Mintz and Filadelfo, 2011;
Mintz, 2012; Mintz and Parker, 2006).
Foreign Navies
In addition, we note that in some cases, foreign militaries may
participate in U.S. Navy training or testing activities in the HSTT
Study Area. The Navy does not consider these foreign military
activities as part of the ``specified activity'' under the MMPA, and
NMFS defers to the applicant to describe the scope of its request for
an authorization.
The participation of foreign navies varies from year to year, but
overall is infrequent compared with Navy's total training and testing
activities. The most significant joint training event is the Rim of the
Pacific (RIMPAC), a multi-national training exercise held every-other-
year primarily in the HRC. The participation level of foreign military
vessels in U.S. Navy-led training or testing events within the HRC and
within SOCAL differs greatly between RIMPAC and non-RIMPAC years. For
example, in 2019 (a non-RIMPAC year), there were 0.1 foreign navy
surface vessel at-sea days (i.e., 1 day = 24 hours) within HRC and 20
foreign navy at-sea days within SOCAL (Navy 2021). Out of 56 U.S.-led
training events in 2019, 4 involved foreign navy vessels, with an
average time per event of 8.7 hours. In 2020, a RIMPAC year, foreign
vessels participating in U.S. Navy-led events accounted for 32 at-sea
days in the HRC from August through September (some of this activity
occurred after the RIMPAC exercise). During RIMPAC 2022, foreign
vessels operated and/or transited through the HRC for 576 hours (24
days). In 2023 (another non-RIMPAC year), there was no foreign vessel
participation within SOCAL. Even in a RIMPAC year, the days at sea for
foreign militaries engaged in a Navy-led training or testing activity
accounts for a small, but variable, percentage compared to the U.S.
Navy activities. For instance, the 2020 foreign military participation
(a RIMPAC-year) was 1.5 percent of the U.S. Navy's average days at sea
(32 days out of an estimated 2,056 days at sea). During RIMPAC 2024,
twenty-five foreign surface vessels participated for a combined 5,000
hours in U.S.-led training events. Therefore, foreign surface vessel
activity is estimated to conservatively account for up to 10 percent of
the U.S. Navy's annual at sea time in HSTT (205 days out of an
estimated 2,056 days at sea).
According to the U.S. Navy, consistent with customary international
law, when a foreign military vessel participates in a U.S. Navy
exercise within the U.S. territorial sea (i.e., 0 to 12 nautical miles
(nmi; 0 to 22.2 km) from shore), the U.S. Navy will request that the
foreign vessel follow the U.S. Navy's mitigation measures for that
particular event. When a foreign military vessel participates in a U.S.
Navy exercise beyond the U.S. territorial sea but within the U.S.
Exclusive Economic Zone, the U.S. Navy will encourage the foreign
vessel to follow the U.S. Navy's mitigation measures for that
particular event (Navy 2022a; Navy 2022b). In either scenario (i.e.,
both within and beyond the territorial sea), U.S. Navy personnel will
provide the foreign vessels participating with a description of the
mitigation measures to follow.
According to the U.S. Navy, the May 2021 vessel strike of two fin
whales by an Australian navy vessel did not occur while that vessel was
participating in a U.S. Navy-led training exercise. The Royal
Australian Navy vessel was adhering to its standard operating
procedures at the time of the strike. The Royal Australian Navy
provided a report of the incident, which is discussed below to inform
our analysis.
NMFS analyzes the effects of these foreign military activities.
First, effects of all past foreign military activities are captured in
the baseline for the analysis, through marine mammal abundance
estimates and population trends found in the Stock Assessment Reports
(SARs). Second, NMFS considers foreign military activities, including
recent strikes, qualitatively in this final rule. For instance, in
preparing this rulemaking, NMFS and the U.S. Navy discussed the nature,
frequency, and control over joint or U.S. Navy-led training and testing
activities with foreign entities to identify opportunities to encourage
foreign militaries to adopt mitigation. NMFS and the U.S. Navy examined
the Royal Australian Navy 2021 strike report for any lessons that could
inform U.S. Navy strike mitigation. NMFS considered the Royal
Australian Navy strikes along with other recent U.S. Navy strikes to
determine whether these strikes indicate an increased risk of strike by
the U.S. Navy in this region during the early summer months. NMFS also
considered the species struck in this incident, fin whales, along with
other literature, when considering the likelihood of certain species to
be struck by the U.S. Navy. NMFS considered the fact that two fin
whales were struck by the Royal Australian Navy qualitatively when
considering other fin whale population and mortality trends, as well as
the authorized take, as part of the negligible impact analysis.
This final rule includes a new reporting measure that requires that
the Navy's annual HSTT reports shall include confirmation that foreign
military use of sonar and explosives, when such militaries are
participating in a U.S. Navy-led exercise or event, combined with the
U.S. Navy's use of sonar and explosives, would not cause exceedance of
the analyzed levels (within each Navy Acoustic Effects Model (NAEMO)
modeled sonar and explosive bin) used for estimating predicted impacts,
which formed the basis of our acoustic impacts effects analysis that
was used to estimate take in this final rule. This new reporting
measure will allow NMFS to ensure that its analysis remains valid.
Standard Operating Procedures
For training and testing to be effective, personnel must be able to
safely use their sensors and weapon systems as they are intended to be
used in a real-world situation and to their optimum capabilities. While
standard operating procedures (SOPs) are designed for the safety of
personnel and equipment and to ensure the success of training and
testing activities, their implementation often yields additional
benefits on environmental, socioeconomic, public health and safety, and
cultural resources. Because SOPs are essential to safety and mission
success, the Navy considers them to be part of the proposed activities
under the National Environmental Policy Act
[[Page 4949]]
(NEPA) and included them in the environmental analysis. We consider
SOPs as part of Navy's specified activity for the purposes of MMPA but
also, where procedures are utilized (even in part) to reduce impacts to
marine mammal species and Navy's commitment to follow the measures are
practicable, certain SOPs may also be required as mitigation. Details
on SOPs were provided in the 2018 HSTT proposed rule; please see the
2018 HSTT proposed rule, the 2017 Navy application, and chapter 2
(Description of Proposed Action and Alternatives) of the 2018 HSTT
FEIS/OEIS for more information.
As stated in its 2022 application, in 2018, the Navy updated its
SOPs related to vessel safety to incorporate revised procedures
regarding Lookouts for certain ship classes as per the 2021 Surface
Ship Navigation Department Organization and Regulations Manual
(NAVDORM). The 2021 NAVDORM requires the use of three Lookouts on Navy
cruisers and destroyers as compared to the previous requirement of one
Lookout when a vessel was underway and not engaged in sonar training or
testing. However, as discussed in the Mitigation Measures section
below, the Navy informed NMFS that requiring the additional Lookouts as
mitigation is not practicable because this SOP may change in response
to manning issues and national security needs. Further, since
submission of its 2022 application, the Navy has updated its Lookout
Training Handbook and implemented other training improvements, as
described in the Mitigation Measures section (September 2022).
Comments and Responses
We published a proposed rule in the Federal Register on October 3,
2023 (88 FR 68290), with a 45-day comment period. That notice
described, in detail, Navy's request for modification of the 2020 HSTT
final rule and LOAs, new information regarding the occurrence of large
whale strikes by naval vessels in the southern California portion of
the HSTT Study Area and NMFS' proposal to authorize two additional
takes of large whales by serious injury or mortality. In that notice,
we requested public input on the proposed promulgation of modified
regulations and associated LOAs for the Navy governing this additional
incidental taking of marine mammals. During the 45-day comment period,
we received 20 comment submissions. Of this total, one submission was
from a non-governmental organization (NGO) and the remainder were from
private citizens. NMFS has reviewed and considered all public comments
received on the proposed rule and issuance of the LOAs. All substantive
comments and our responses are described below. We organize our comment
responses by major categories.
Take Estimates
Comment 1: A commenter recommended ensuring that any modifications
to existing regulations or authorizations are based on recent and
rigorous scientific evaluations. This can be achieved by conducting
regular environmental impact assessments to account for changes in
marine mammal populations and habitat conditions.
Response: NMFS concurs with the commenter that modifications to
existing regulations or authorizations must be based on rigorous
scientific evaluations. NMFS has conducted a rigorous scientific
evaluation in the promulgation of this rulemaking and has used the best
available science to inform its analysis. These final regulations and
LOAs include reporting provisions to ensure compliance and that the
most value is obtained from the required monitoring. Monitoring results
are considered annually through the adaptive management process
described in the Adaptive Management section herein. Further,
incidental take authorizations for military readiness activities can be
effective for no more than 7 years. Therefore, at minimum, NMFS must
reconduct its analysis every 7 years, and in doing so, it considers
changes in marine mammal populations and habitats in its analyses.
However, during the effective period of an LOA(s), if NMFS were to find
that the Navy's activities are having more than a negligible impact on
a species or stock, NMFS is required to withdraw or suspend the LOA(s)
for a certain time (16 U.S.C. 1371(a)(5)(B)).
Comment 2: A commenter stated that the 2022 Navy application is
based on 50 CFR 216.015 [the commenter is likely referring to section
216.105], which allows incidental take regulations to ``be modified, in
whole or in part, as new information is developed.'' The commenter
asserted that the only ``new information'' in the 2022 application is
the information that the Navy has already reached its 7-year take limit
and that failure to meet our own standards does not constitute ``new
information'' in the sense of 50 CFR 216.015. The commenter stated that
``new information'' for this purpose would be either (1) evidence that
allowing two additional takes (and relaxing mitigation procedures as
requested in the application) during this time period will have no
impact on threatened cetacean populations or (2) a dramatic increase in
the level of military activity in HSTT.
Response: The MMPA provides for the authorization of incidental
take caused by specified activities at the request of an applicant,
provided certain findings are made. The law directs NMFS to process
adequate and complete applications for incidental take authorization,
and issue the authorization provided all statutory findings and
requirements, as well as all associated legal requirements, are met.
Under 50 CFR 216.105, as new information is developed, through
monitoring, reporting, or research, the regulations may be modified, in
whole or in part, after notice and opportunity for public review. On
March 31, 2022, NMFS received an adequate and complete application from
the Navy requesting that NMFS modify the existing regulations and LOAs
to authorize two additional takes of large whales by serious injury or
mortality by vessel strike over the remainder of the HSTT regulatory
period based on probabilities derived from a Poisson distribution using
new vessel strike data between 2009-2021 in the HSTT Study Area, as
well as historical at-sea days in the HSTT Study Area from 2009-2015
and estimated at-sea days for the period from 2016 to 2025, informed by
monitoring and reporting. NMFS independently analyzed the request based
on updated vessel strike data and days-at-sea, as well as using updated
probability methodology, and also determined that the strike of up to
two large whales could occur over the remaining duration of the
regulations. NMFS, following its own analysis and proposed rule, has
determined it is appropriate to promulgate a revised final rule and
LOAs pursuant to 16 U.S.C. 1371(a)(5)(A) and 50 CFR 216.105.
Comment 3: A commenter stated that Kuehne et al. (2020), referenced
in the 2023 HSTT proposed rule (88 FR 68290, October 3, 2023),
indicates that noise from Navy aircraft penetrates more deeply into the
water than the Navy or NMFS considered in their analyses. The commenter
stated that the study found that noise from aircraft can permeate the
water to at least 30 m and that the detected noise level (134 <plus-
minus> 3 dB re 1 [mu]Pa rms) exceeds volumes that can cause behavioral
changes in marine mammals (Houser et al. 2013; Kastelein et al. 2012;
Kuehne et al. 2020; Williams et al. 2002). The commenter asserted that,
therefore, the Navy's reliance on this paper to assert that aircrafts
do not impact marine mammals is misplaced, and the proposed rule's
dismissal of the
[[Page 4950]]
study because it ``did not include behavioral observations of wildlife,
and the authors' conclusions about potential impacts to wildlife were
unsupported by data from the study'' ignores the valid bases for these
conclusions.
Response: NMFS disagrees with the commenter that Kuehne et al.
(2020) shows impacts to marine mammals from Navy's HSTT activities that
were not considered by NMFS and the Navy in their respective analyses.
As stated in the comment, the strongest one-second window of underwater
sound measured by Kuehne et al. (2020) was 134 <plus-minus> 3 dB RMS re
1 [mu]Pa rms at 30 m below the sea surface. While sound levels between
the hydrophone and the surface may have been stronger than those
measured at 30 m (Kuehne et al. 2020), for the reasons discussed in the
2023 HSTT proposed rule, there is no new information presented in this
study to indicate that exposures closer to the surface or in air would
have resulted in behavioral responses that would qualify as take by
Level B harassment.
We conclude that the information presented in Kuehne et al. (2020)
does not reveal effects of the action on marine mammals in a manner or
to an extent not already considered. We reiterate that NMFS reviewed
the Navy's analysis and conclusions that aircraft noise will not result
in incidental take of marine mammals and finds the analysis and
conclusions remain complete and supportable, as stated in the 2018 HSTT
final rule and in the 2023 HSTT proposed rule (88 FR 68290, October 3,
2023). Please see section 3.7 (Marine Mammals) of the 2018 HSTT FEIS/
OEIS for additional information. Of note, even if the sound level in
the water were to exceed the Level B harassment threshold, a marine
mammal would need to cross the path of the aircraft while the animal is
relatively close to the surface in order for a take to occur, which is
unlikely.
In addition to Kuehne et al. (2020), the commenter referenced
several other studies that it described as indicating that other Navy
activities in the HSTT Study Area may affect listed species to an
extent not previously considered. These studies include Goldbogen et
al. (2013), Pirotta et al. (2019), Pirotta et al. (2021), Pirotta et al
(2022), Simonis et al. (2020), Southall et al. (2019), Southall et al.
(2021), and Szesciorka et al. (2019). NMFS considered Pirotta et al.
(2021), Pirotta et al. (2022), and Southall et al. (2021) in its 2023
HSTT proposed rule (88 FR 68290, October 3, 2023). NMFS considered
Goldbogen et al. (2013) in the 2018 HSTT proposed rule (83 FR 29872,
June 26, 2018) and 2018 HSTT final rule (83 FR 66846, December 27,
2018), and NMFS considered Southall et al. (2019) in the 2019 HSTT
proposed rule (84 FR 48388, September 13, 2019). Pirotta et al. (2019)
found that environmental changes could severely affect a population's
vital rates, but that, depending on the context of a disturbance,
individuals were tolerant of anthropogenic disturbance. Simonis et al.
(2020) correlated strandings in the Mariana islands with naval
activities. NMFS is aware of this study and has considered it along
with global information related to the correlation of sonar with
strandings in our analysis. In a case study of a close vessel encounter
with a blue whale, Szesciorka et al. (2019) noted that the ship's
reduced speed (i.e., 11.3 kn (20.9 km per hour)) may have played a role
by giving the whale enough time to respond to the nearby vessel and
that higher vessel speeds increase the risk that a whale could have
been struck at the surface or get close enough to the ship's draft that
the propeller suction effect created by the ship's hydrodynamic flow
could pull the whale toward the hull. Additionally, feeding whales may
be distracted and thus be less capable of detecting and avoiding
approaching vessels (Szesciorka et al. 2019). NMFS determined that the
information presented in these studies does not substantively affect
our analysis of impacts on marine mammals and their habitat that
appeared in the 2023 HSTT proposed rule, all of which remains
applicable and valid for our assessment of the effects of the Navy's
activities during the 7-year period of this final rule. Please see
NMFS' response to Comment 14 regarding vessel speed restrictions.
Comment 4: A commenter expressed support for Navy use of marine
mammals for military purposes through its Marine Mammal Program.
However, the commenter stated that to ``take'' mammals simply as a
training opportunity via severe injury or mortality is unethical and to
allow the killing of innocent animals as cross-fire or training
shouldn't be tolerated.
Response: The actions the Navy takes through its Marine Mammal
Program are outside the scope of this action; we note that no animals
are intentionally exposed to serious injury or mortality through that
program. For additional information about the Navy's Marine Mammal
Program, please see the Navy's website at <a href="https://www.niwcpacific.navy.mil/About/Departments/Intelligence-Surveillance-and-Reconnaissance/Marine-Mammal-Program/">https://www.niwcpacific.navy.mil/About/Departments/Intelligence-Surveillance-and-Reconnaissance/Marine-Mammal-Program/</a>.
Comment 5: A commenter stated that the recent whale deaths indicate
that (1) NMFS' earlier assumptions that vessel strikes would be
unlikely and easily detected if they did occur were proven wrong, (2)
vessel strikes are occurring at rates well-above that analyzed in NMFS'
analyses, (3) whales cannot avoid vessel strike at the level NMFS
assumed in issuing the regulations, (4) and that sonar affects blue
whales in ways not adequately considered.
Response: In the 2018 HSTT final rule, 2020 HSTT final rule, and
2023 HSTT proposed rule, NMFS described why a strike by a Navy vessel
is unlikely in comparison to a strike by a non-Navy vessel, and that,
overall, it is unlikely that the Navy would hit a large whale for these
reasons. However, even in consideration of these factors that make
vessel strike unlikely, given the history of vessel strike by the U.S.
Navy in the HSTT Study Area, NMFS, in the 2018 and 2020 HSTT final
rules concluded that vessel strikes could occur and that authorization
of three takes by vessel strike was appropriate. Therefore, NMFS
disagrees that the recent vessel strikes disprove NMFS' assumption that
vessel strikes would be unlikely.
To date, NMFS is aware of three confirmed vessel strikes of large
whales by U.S. Navy vessels during the current regulatory period.
Therefore, the strikes that have occurred to date have been within what
NMFS anticipated could occur, though, NMFS' current analysis suggests
that two additional strikes may occur during the current regulatory
period based on the best available scientific information since
promulgation of the 2020 HSTT final rule.
NMFS further disagrees that the recent vessel strikes disprove
NMFS' assumption that vessel strikes would be detected if they did
occur. As demonstrated by the June 2021, July 2021, and May 2023 U.S.
Navy strikes, NMFS is confident that whales struck by Navy vessels are
detected and reported, and Navy strikes are the numbers used in NMFS'
analysis to support the authorized number of strikes. Navy ships have
multiple Lookouts, including on the forward part of the ship that can
visually detect a hit whale (which has occasionally occurred), in the
unlikely event ship personnel do not feel the strike. The Navy's strict
internal procedures and mitigation requirements include reporting of
any vessel strikes of marine mammals, and the Navy's discipline,
extensive training (not only for detecting marine mammals but for
detecting and reporting any potential navigational obstruction), and
strict
[[Page 4951]]
chain of command give NMFS a high level of confidence that all strikes
are reported. Accordingly, NMFS is confident that the information used
to support the analysis is accurate and complete. Regarding the 2021
Royal Australian Navy vessel strikes, while the U.S. Navy cannot
speculate on the configurations of other ships bows and even sonar dome
specifications (that may be at the bow), the Navy believes it would be
implausible for a marine mammal to become lodged on the sonar dome of a
U.S. Navy ship and remain undetected due to a technological standard
operating procedure.
While the 2018 HSTT final rule, the 2020 HSTT final rule, and this
final rule include mitigation to reduce the potential for vessel
strike, NMFS neither states nor implies vessel strike avoidance of a
particular ``level''. However, it is important that NMFS and the Navy
consider the new information regarding vessel strikes in southern
California consistent with 50 CFR 216.105(c). Consideration of this new
information in an updated analysis allows NMFS to reassess its
negligible impact determination and to determine whether additional
potential mortality would still constitute a negligible impact on the
potentially affected stocks, as it has determined would be the case
here.
The commenter referenced several studies related to blue whales and
sonar. Please see NMFS' response to Comment 3.
Comment 6: A commenter stated that NMFS should deny the Navy's
request for authorization of two additional takes of large whales by
vessel strike because for at least two of the impacted marine mammal
stocks (Eastern North Pacific stock of blue whale and Central America/
Southern Mexico--California/Oregon/Washington stock of humpback whale)
mortality and serious injury already exceeds potential biological
removal (PBR). The commenter stated that NMFS' reasoning for
authorizing the take amounts to ``take by a thousand cuts'' and defies
the stated purpose and objectives of the MMPA.
A commenter stated that NMFS may allow take of marine mammals
incidental to military readiness activities only if the taking will
have a ``negligible impact'' on an affected species or stock. The
commenter further stated that as one court has explained, ``[b]ecause
any mortality level that exceeds PBR will not allow the stock to reach
or maintain its optimum sustainable population (`OSP'), such a
mortality level could not be said to have only a `negligible impact' on
the stock.'' (See Conservation Council for Hawai'i v. Nat'l Marine
Fisheries Serv., 97 F. Supp. 3d 1210, 1225 (D. Haw. 2015); see also 54
FR 40338, 40341, 40342 (Sept. 29, 1989) (``In order to make a
negligible impact finding, the proposed incidental take must not
prevent a depleted population from increasing toward its OSP.'')).
Indeed, NMFS itself has previously recognized that when mortality of a
species is above its PBR, ``a negligible impact finding under section
101(a)(5)(A) cannot be made'' (61 FR 54,157, October 17, 1996).
Response: The commenter is correct that PBR for the Eastern North
Pacific stock of blue whales and the Central America/Southern Mexico--
California/Oregon/Washington stock of humpback whales is currently
exceeded. However, NMFS is not authorizing take by mortality of the
Central America/Southern Mexico--California/Oregon/Washington stock of
humpback whales. In this final rule, NMFS is authorizing take of the
Mainland Mexico-CA/OR/WA stock of humpback whale, and PBR is not
exceeded for this stock. A stock's PBR is part of the best scientific
information available and therefore, is considered in the negligible
impact determination (see Conservation Council for Hawai'i v. Nat'l
Marine Fisheries Serv., 97 F. Supp. 3d 1210, 1228 (D. Haw. 2015)).
However, exceedance of PBR does not inherently imply that a negligible
impact determination cannot be made for an authorization that includes
mortality or serious injury (M/SI) of that stock. As explained in the
Serious Injury or Mortality subsection of the Analysis and Negligible
Impact Determination section of the 2018 HSTT final rule and 2020 HSTT
final rule, and referenced in the same section of this final rule, in
the commercial fisheries setting for Endangered Species Act (ESA)-
listed marine mammals (which is similar to the non-fisheries incidental
take setting, in that a negligible impact determination is required
that is based on the assessment of take caused by the activity being
analyzed), NMFS may find the impact of the authorized take from a
specified activity to be negligible even if total human-caused
mortality exceeds PBR, if the authorized mortality is less than 10
percent of PBR and management measures are being taken to address
serious injuries and mortalities from the other activities causing
mortality (i.e., other than the specified activities covered by the
incidental take authorization in consideration). When those
considerations are applied in the section 101(a)(5)(A) context here,
the authorized lethal take (0.14 annually) of blue whales from the
Eastern North Pacific stock is less than 10 percent of PBR (4.1) and
there are management measures in place to address the mortality and
serious injury from the activities other than those the Navy is
conducting. For the complete discussion of how NMFS carefully
considered potential mortalities from the Navy's activities in light of
PBR levels, including an explanation for why mortality above PBR will
not necessarily induce population-level non-negligible impacts, see the
discussion in the Analysis and Negligible Impact Determination section
of this rule, the 2020 HSTT final rule, and the 2018 HSTT final rule.
The commenter references a 1996 NMFS notice of receipt and request
for comments (61 FR 54,157; October 17, 1996) that stated that a
negligible impact finding under section 101(a)(5)(A) could not be made
where PBR for the North Atlantic right whale stock was 0.4. The method
that NMFS has articulated herein to evaluate negligible impact of
potential mortality was adopted in 1999 to evaluate negligible impact
pursuant to MMPA section 101(a)(5)(E). NMFS uses these same criteria
adopted in 1999 to inform (i.e., it is not the sole factor considered)
our negligible impact analysis of potential mortality under section
101(a)(5)(A).
The 1996 decision that a negligible impact determination could not
be made was regarding a request for take by mortality of North Atlantic
right whale (61 FR 54,157; October 17, 1996)). PBR for North Atlantic
right whale at that time was 0.4. If NMFS were to apply its current
method for evaluating negligible impact of potential mortality to that
request, the results would suggest that take by mortality should not be
authorized (though again, the PBR evaluation is not the sole factor
considered).
Comment 7: A commenter stated that the Navy and NMFS must consider
serious injury and mortality that results from joint training exercises
the Navy engages in with foreign nations as ``take'' under the
regulations and that NMFS must reexamine the impacts of the Navy's full
suite of activities (including joint activities with foreign fleets) on
marine mammals using the best available science. In the proposed rule,
NMFS states that ``[a]ccording to the U.S. Navy, the May 2021 vessel
strike of two fin whales by an Australian navy vessel did not occur
while that vessel was participating in a U.S. Navy-led training
exercise. The Royal Australian Navy vessel was adhering to its standard
operating procedures at the time of the strike.'' The commenter stated
that this contradicts coverage of
[[Page 4952]]
the incident, including by the Navy Times/AP that reported: ``[t]he
Sydney has been holding joint exercises with the U.S. Navy in the area
since early April'' (The Navy Times, 2021).
The commenter stated that elsewhere in the rule, NMFS appears to
say that regardless of whether it considered vessel strikes that
occurred during joint training or not, NMFS lets the Navy decide what
activities it requests authorization for, and there is no reasoned
explanation provided for this position. These joint activities led by
the U.S. Navy pose serious threats to marine mammals, kill whales, and
should be included as specified activities. The commenter recommended
that NMFS not ``defer to the applicant to describe the scope of its
request for an authorization.''
Response: Under the MMPA, only a U.S. Citizen may request NMFS
authorize the incidental take of marine mammals (16 U.S.C.
1371(a)(5)(A)). Further, the MMPA requires NMFS to authorize the
incidental take caused by the applicant's specified activities,
provided certain findings are made (Id.). In some cases, foreign
militaries may participate in U.S. Navy training or testing activities
in the HSTT Study Area. As stated in the proposed rule, the HMAS Sydney
most likely struck the two fin whales around 6:25 a.m. the morning of
May 7, 2021 while the HMAS Sydney was getting into position to
participate in a U.S. Navy-led exercise later that day but was not
actively engaged in an exercise at the presumed time of the strike. The
Navy does not consider the Royal Australian Navy's vessel movements at
the time of strike as part of the `specified activity' under the MMPA,
as the strike did not occur while the HMAS Sydney was actively
participating in a joint training exercise with the U.S. Navy. The MMPA
is necessarily an applicant-driven process (Melone v. Coit, 100 F.4th
21, 32 (1st Cir. 2024)) and NMFS has appropriately deferred to the
Navy's reasoned explanation of why the Royal Australian Navy's
operations were not part of the ``specified activity.''
As explained in the Foreign Navies section of this final rule, in
preparing this rulemaking, NMFS and the U.S. Navy discussed the nature,
frequency, and control over joint or U.S. Navy-led training and testing
activities with foreign entities. Consistent with customary
international law, U.S. Navy requests or encourages participating
foreign entities to follow U.S. Navy's mitigation measures for that
particular event, depending on whether the activity is in the U.S.'s
territorial sea or the EEZ. NMFS and the U.S. Navy also examined the
Royal Australian Navy 2021 strike report, and NMFS concurred with U.S.
Navy's conclusion that the strike most likely occurred before, but not
during, a joint exercise, and the Royal Australian Navy vessel was
adhering to its standard operating procedures at the time of the
strike.
As noted by the commenter in its letter, NMFS assessed the effects
of foreign military activities. First, the impacts of all activities
are captured in the baseline for the analysis, through marine mammal
abundance estimates and population trends found in the SARs. Second,
NMFS considers foreign military activities, including recent strikes,
qualitatively in its analysis, as described in the Foreign Navies
section of this final rule. For instance, NMFS and the U.S. Navy
examined the Royal Australian Navy 2021 strike report for any lessons
that could inform U.S. Navy strike mitigation.
This final rule includes a new reporting measure related to foreign
vessels. The new measure requires that the Navy's annual HSTT reports
shall include confirmation that foreign military use of sonar and
explosives, when such militaries are participating in a U.S. Navy-led
exercise or event, combined with the U.S. Navy's use of sonar and
explosives, did not cause exceedance of the analyzed levels (within
each NAEMO modeled sonar and explosive bin) used for estimating
predicted impacts, which formed the basis of our acoustic impacts
effects analysis that was used to estimate take in this final rule.
This new reporting measure will allow NMFS to ensure that its analysis
remains valid.
Comment 8: A commenter stated that it supports the Navy's request
for two additional incidental takes of large whales by vessel strike.
The commenter discussed a U.S. Supreme Court case, Winter v. NRDC,
Inc., 555 U.S. 7 (2008), in support of its assertion that preparing for
war still plainly outweighs the interests in the safety of marine life.
Considering these interests, the commenter recommended that NMFS
consider granting the Navy's request for two additional incidental
takes.
Response: NMFS has made the required findings on the Navy's request
consistent with the statutory criteria under the MMPA and has
authorized two additional takes of large whales by serious injury or
mortality by vessel strike for the remainder of the current regulatory
period (two takes in addition to the three takes authorized in the
current regulations). NMFS does not weigh the necessity of Navy
training and testing against the risks to marine mammals as part of the
required analysis for issuance of take regulations under the MMPA. The
MMPA requires NMFS to authorize the incidental take of marine mammals
caused by specified activities upon request, provided certain findings
are made (16 U.S.C. 1371(a)(5)(A)). NMFS' least practicable adverse
impact determination for military readiness activities must include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity (16
U.S.C. 1371(a)(5)(a)(iii)).
Comment 9: A commenter noted NMFS' reference to Cure et al. (2021)
and Isojunno et al. (2020) in the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023) discussing sperm whale behavioral responses to
exposure to pulsed active sonar (PAS) and continuous active sonar
(CAS). The commenter stated that physical trauma, sensory impairment
(PTS, TTS, and acoustic masking), physiological responses (particularly
stress responses), and behavioral disturbances are all part of the
harassment of the whales and that these factors have not been included
in the ``take'' of the three whales already, only the mortalities have
been counted. The commenter stated that even brief and transient
exposure to modest levels of mid-frequency military sonar has been
observed to cause whales to strand or perish at sea within hours (Dave,
D.M., & Dave, M., 2023). These studies do not include the permanent
injuries to these marine mammals' hearing and sonar capabilities. The
commenter stated that effects on marine mammal hearing are not
mentioned outside of some studies on stranding and should include more
study and data collection by marine mammal experts when it comes to PTS
and sonar damage to these animals due to the impact of the U.S. Navy's
military ocean noise pollution.
Response: In the 2023 HSTT proposed rule (88 FR 68290, October 3,
2023), NMFS included a discussion of relevant literature that had
published since publication of the 2020 HSTT final rule (85 FR 41780,
July 10, 2020), and in this final rule, NMFS has included a discussion
of relevant literature that has published since publication of the 2023
HSTT proposed rule. Herein, and in the 2023 HSTT proposed rule, NMFS
discussed all relevant literature, not just that related to vessel
strike. (See the New Pertinent Science Since Publication of the 2020
HSTT Final Rule section of the 2023 HSTT proposed rule and the
Potential Effects of Specified Activities on Marine Mammals and their
Habitat section of this final rule.)
[[Page 4953]]
The commenter's statement that ``even brief and transient exposure
to modest levels of mid-frequency military sonar has been observed to
cause whales to strand or perish at sea within hours'' is not
supported. The proposed rule discussed the limited examples of when
tactical active sonar, in certain circumstances, have been found to
have likely contributed to marine mammal stranding events. The
reference that the commenter cites (Dave, D.M. & Dave, M., 2023) states
that ``even a brief and transient exposure to modest levels of mid-
frequency military sonar has been observed to cause whales to strand or
perish at sea within hours,'' citing Fern[aacute]ndez et al. (2005) and
NOAA and U.S. Department of the Navy (2001). These publications discuss
two specific stranding events in the Canary Islands and the Bahamas,
respectively. NMFS is aware of stranding events coincident with
military MFAS use in which exposure to sonar is believed to have been a
contributing factor and discussed these cases in detail in the 2018
HSTT proposed rule. While NMFS did not repeat this information in the
2023 proposed rule as the analyses remain unchanged, NMFS stated in the
rule that we refer the reader to complete analyses described in the
2018 HSTT final rule or an updated analysis in the 2020 HSTT final
rule, where appropriate.
It is unclear what the commenter means by physical trauma, sensory
impairment (PTS, TTS, and acoustic masking), physiological responses
(particularly stress responses), and behavioral disturbances not having
been included in the ``take'' of the three whales already, and that
only the mortalities have been counted. In the 2020 HSTT final rule,
NMFS discussed all of the likely impacts to marine mammals, including
PTS, TTS, masking, and stress, and authorized take of marine mammals by
Level B harassment, Level A harassment, and mortality. The 2023 HSTT
proposed rule and this final rule only discuss changes to NMFS'
analysis regarding mortality of marine mammals in detail, and refer
back to the 2018 HSTT proposed and final rules and the 2020 HSTT final
rule regarding take by Level A harassment and Level B harassment.
However, NMFS' analysis, including its negligible impact determination,
takes into consideration the total authorized take, not just mortality.
Comment 10: A commenter stated that in addition to blue, humpback,
and fin whales, the Navy also identifies other large whales in its
request (Bryde's whales, gray whales, minke whales, sperm whales, and
sei whales) which are also all vulnerable to vessel strikes (Laist et
al. 2001, Glass et al. 2008, and van der Hoop et al. 2015). NMFS' 2023
HSTT proposed rule (88 FR 68290, October 3, 2023) determined that the
likelihood of vessel strikes to those whales is ``discountable'' due to
their relatively low occurrence in the HSTT Study Area and the fact
that they have rarely, if ever, been recorded struck by vessels. Due to
the fact that reported collisions vastly underestimate actual strikes,
the commenter asks NMFS and the Navy to approach vessel strikes and
other harm very conservatively, particularly in light of how some of
these whales are particularly vulnerable to vessel strike and at
already-small population levels, as detailed in the commenter's July 1,
2022 letter.
Response: NMFS concurs with the commenter that all large whales are
vulnerable to vessel strike, and that reported vessel strikes vastly
underestimate actual strikes across many industries generally. However,
NMFS has already conducted a conservative vessel strike analysis. While
all large whales are vulnerable to vessel strike, it would be
inappropriate to assume that all large whales that occur in the HSTT
Study Area are likely to be struck by U.S. Navy vessels.
Of note, the commenter is correct that NMFS does not anticipate
vessel strike of Bryde's whale, minke whale, or sperm whale. However,
NMFS did propose to authorize take by M/SI by vessel strike of sei
whale and Eastern North Pacific gray whale in the 2023 HSTT proposed
rule (88 FR 68290, October 3, 2023) and would authorize such take in
this final rule. NMFS proposed authorizing one take (0.14 takes
annually) of sei whale (Eastern North Pacific stock) and four takes
(0.57 takes annually) of Eastern North Pacific gray whale.
Regarding stocks for which take by M/SI by vessel strike was not
proposed, as stated in the proposed rule, stocks that have no record of
ever having been struck by any vessel are considered to have a zero
percent likelihood of being struck by the Navy in the 7-year period of
the rule. This includes Bryde's whale, minke whale, and the CA/OR/WA
stock of sperm whale raised by the commenter (an individual of the
Hawaii stock of sperm whale was struck in 2007; see table 7 of this
final rule). Stocks that have never been struck by the Navy, have
rarely been struck by other vessels, and have a low percent likelihood
based on the historical vessel strike calculation are also considered
to have a zero percent likelihood to be struck by the Navy during the
7-year rule. We note that while vessel strike records have not
differentiated between Eastern North Pacific and Western North Pacific
gray whales, given their small population size and the comparative
rarity with which individuals from the Western North Pacific stock are
detected off the U.S. West Coast, it is highly unlikely that they would
be encountered, much less struck. Further, it is unlikely that the
Hawaii stock of sperm whale would be struck given the zero percent
likelihood of striking a sperm whale as indicated by the quantitative
analysis in the Estimated Take From Vessel Strikes and Explosives by
Serious Injury or Mortality Vessel Strike section of the proposed rule
and the Authorized Take From Vessel Strikes and Explosives by Serious
Injury or Mortality section in this final rule. Vessel strikes of the
Hawaii stock of sperm whale are also unlikely given the fact that the
last U.S. Navy strike of a Hawaii stock sperm whale was in 2007, before
the mitigation updates discussed above, and that, with the exception of
humpback whales, vessel strikes (both military and non-military) of
other large whale species in the HRC are extremely rare events
(Carretta 2021b; Carretta 2022). Given this analysis, NMFS concludes
that the proposed take by M/SI by vessel strike included in the
proposed rule remains appropriately conservative, and has not included
take by M/SI by vessel strike of Bryde's whale, Western North Pacific
gray whale, minke whale, or sperm whale in this final rule.
Comment 11: A commenter stated that aside from excluding impacts
from foreign vessels, the proposed rule looks at the impacts of vessel
strikes on large whales almost in isolation and does not adequately
assess new science on the combined impacts of the Navy's activities, in
particular on large whales. The commenter asserted that while the Navy
acknowledges that sonar and aircraft may affect whales, it does not
adequately consider the extent of these impacts. Any analysis of the
impacts of the Navy's exercises must include, in addition to vessel
strike impacts, the impacts from sonar activities of domestic vessels
and foreign vessels involved in joint training exercises and any other
stressor caused by the Navy's activities. The commenter also asserted
that the Navy's literature review does not adequately focus on the
large baleen whales that are of concern in this most recent request.
The commenter stated that as it noted in its July 2022 letter, in
its review of sound effects on animals, the Navy focuses heavily on
pinnipeds (seals and sea lions) and odontocetes (dolphins and toothed
whales), while their request for increased take focuses on mysticetes
[[Page 4954]]
(baleen whales). Mysticetes' hearing systems are different from those
of pinnipeds and odontocetes, and so while they are closely related one
cannot infer that each group will experience the same effects from
sound pollution (Southall et al. 2019). Mysticetes' cochlea have their
own unique shape, which in concert with the larger mass of baleen
whales indicates that they are more sensitive to low-frequency sound
(Southall et al. 2019). Though auditory capabilities in baleen whales
are understudied (Southall et al. 2019), absence of literature on
baleen whales does not indicate absence of effect. The commenter stated
that furthermore, the Navy ignored key papers studying the effect of
sonar on baleen whales. It specifically stated that the Navy failed to
consider, and NMFS failed to address in its proposed rule, Goldbogen et
al. (2013), and further references Southall et al. (2019) and Southall
et al. (2021).
Response: NMFS disagrees with the commenter that the proposed rule
looks at the impacts of vessel strikes on large whales almost in
isolation and does not adequately assess new science on the combined
impacts of the Navy's activities, in particular on large whales. While
NMFS did not repeat discussion of a portion of the analysis that did
not change (e.g., takes by harassment), this analysis was incorporated
into the proposed rule and this final rule by reference, and NMFS
considered those impacts in conjunction with the updated M/SI analysis
in making its determinations.
NMFS further disagrees that the literature review should have
focused on large baleen whales. In the proposed rule (88 FR 68290,
October 3, 2023), and in this final rule, NMFS' literature review
discussed recent literature concerning potential impacts from all of
the Navy's activities, not just those related to vessel strike. As the
commenter has noted in its letter, NMFS must consider the full range of
effects of the Navy's activity, not just the potential for vessel
strike of large whales in isolation. NMFS agrees with the commenter
that an absence of literature on baleen whales does not indicate an
absence of effects, nor has NMFS drawn such a conclusion. Rather, NMFS
conducted a thorough analysis on the impacts of the Navy's activities,
including sonar and explosive use, on mysticetes, as well as other
taxa, as described in the proposed rule and this final rule, which in
some cases, reference the 2018 (83 FR 66846, December 27, 2018) and
2020 HSTT final rules (85 FR 41780, July 10, 2020). Regarding the
specific studies that the commenter asserts NMFS failed to consider,
while not directly cited to in the 2023 HSTT proposed rule (88 FR
68290, October 3, 2023), NMFS considered and cited Goldbogen et al.
(2013) in the 2018 (83 FR 66846, December 27, 2018) and 2020 HSTT final
rules (85 FR 41780, July 10, 2020), and the Navy considered and cited
this paper in the 2018 HSTT EIS/OEIS. NMFS considered and cited
Southall et al. (2019) and Southall et al. (2021) in the 2023 HSTT
proposed rule.
Please see NMFS' response to Comment 7 regarding foreign vessels.
Comment 12: A commenter stated that the rule overlooks the
likelihood that the Navy's activities will take humpback whales from
the endangered Central America distinct population segment (DPS). The
commenter stated that its read of the science is that most of the
humpback whale deaths that occur off California could be from the
endangered Central America DPS. The commenter further stated that Wade
et al. (2017) predicted a 67.2 percent movement probability for a whale
in California to move to Central America. In other words, an estimated
7.056 Central America DPS humpback whales could die from vessel strikes
off California annually (10.5 deaths * 0.672). The commenter stated in
its letter that applying the Rockwood et al. (2021) model, 10.5
humpback mortalities occur annually off California from the January to
April and July to November periods combined. The commenter stated that
this does not include potential deaths from other sources or in other
locations yet still represents a significant source of mortality for
this already endangered population.
Response: NMFS carefully considered the potential for each stock of
large whales to be taken by serious injury or mortality by vessel
strike. As stated in the 2023 HSTT proposed rule (88 FR 68290, October
3, 2023), regarding the likelihood of striking a humpback whale from a
particular DPS, NMFS evaluated the relative abundance of each of these
DPS in California waters. Curtis et al. (2022) estimated the abundance
of the Central America DPS to be 1,496 whales. From Wade et al. (2017),
about 93 percent (or 1,391 whales) of these humpbacks that winter in
Central America will move to Oregon/California in the summer months.
While there is currently no abundance estimate for the Mexico DPS, an
estimated 3,477 whales from the Mexico DPS feed off the U.S. West Coast
(Calambokidis and Barlow 2020; Curtis 2022). Based on this information,
we estimate that approximately 30 percent of the humpback whales off
the coast of California may be from the Central America DPS and the
remaining 70 percent are expected to be from the Mexico DPS. Therefore,
we anticipate that if a Navy vessel strike of a humpback whale were to
occur within SOCAL, it would likely be from the Mexico DPS.
The commenter is correct that Wade et al. (2017) predicts that 67.2
percent of whales that summer in Oregon and California will move to
Central America for the winter. However, NMFS disagrees with the
commenter's implication that it is more appropriate for NMFS to assume
that 67.2 percent of humpbacks off of California are of the Central
America DPS, and the commenter has not provided justification for doing
so. (Of note, an updated paper from Wade (2021) shows that 58 percent
of whales that summer in Oregon and California will move to Mexico
(only 42 percent will move to Central America)). Rather, NMFS continues
to find that it is appropriate to use the abundance estimates described
above and the estimate that approximately 93 percent of humpbacks that
winter in Central America will move to Oregon/California in the summer
months to determine the relative abundance of each DPS off the coast of
California. Therefore, NMFS continues to conclude that if a Navy vessel
strike of a humpback whale were to occur within SOCAL, it would likely
be from the Mexico DPS.
Mitigation and Monitoring
Comment 13: A commenter stated that in addition to strengthening
the new and revised mitigation measures that NMFS included in the 2023
HSTT proposed rule, it should also require the following additional
mitigation measures to ensure the least practicable adverse impact to
marine mammals. The commenter noted that it and others have requested
and expounded upon these measures in previous comment letters.
1. Reinstating more protective mitigation areas and restricted
training exercises in key migration corridors, feeding habitat, and
other biologically important areas (BIAs) and creating/expanding
protective mitigation areas to protect newly recognized critical
habitat and other BIAs. In a related comment, a separate commenter
stated that the chances of an incidental take can be dramatically
reduced by adjusting the time and location of exercises (e.g.,
minimizing activity in the vicinity of California's Channel Islands
during July-October) and reducing speed in mitigation areas. The
commenter further asserted that additional BIAs identified by Kratofil
et al. 2023 provide new
[[Page 4955]]
information that necessitates reevaluation of mitigation measures, yet
NMFS rejects adding these new mitigation areas as ``impracticable.'' A
third commenter stated that it is crucial to integrate scientific
research, public awareness, and proactive measures to ensure the
sustained well-being of gray whales and the preservation of their
migratory habitats.
2. Restricting activities when whale detection is particularly
difficult, such as periods of low visibility (Williams et al. 2016).
3. Improving detection of marine mammals by adding alternative
detection methods, including safe/environmentally-sound drone, thermal,
and/or acoustic technologies, to lookouts/observers (Verfuss et al.
2018). In a related comment, a commenter recommended utilizing existing
acoustic detection systems to track marine mammals in near real-time.
4. Capping/reducing the level of naval activities authorized each
year, in particular major exercises. In a related comment, a separate
commenter stated that it is crucial to limit the [Navy]'s takes on
marine mammals.
5. Halting training exercises when whale presence in the area is
``High'' or ``Very High,'' per WhaleSafe (see <a href="https://whalesafe.com">https://whalesafe.com</a>).
Response: Under the MMPA, NMFS' least practicable adverse impact
determination for military readiness activities must include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity (16
U.S.C. 1371(a)(5)(a)(iii)). NMFS has responded to these recommended
measures, by corresponding number.
1. In the 2023 HSTT proposed rule, NMFS discussed that since
publication of the 2020 HSTT final rule, Kratofil et al. (2023)
identified updated BIAs in Hawaii. The HSTT Study Area overlaps the
updated BIAs for small and resident populations of the following
species in Hawaii: spinner dolphin, short-finned pilot whale, rough-
toothed dolphin, pygmy killer whale, pantropical spotted dolphin,
melon-headed whale, false killer whale, dwarf sperm whale, goose-beaked
whale, common bottlenose dolphin, and Blainville's beaked whale.
Further, the HSTT Study Area overlaps updated BIAs for humpback whale
reproduction in Hawaii. The updated BIAs overlap critical Navy training
and testing areas within the HSTT Study Area, including most of the
internal Navy operating areas. Please see Kratofil et al. (2023) for
additional details about the BIAs.
Since publication of the 2023 HSTT proposed rule, Calambokidis et
al. (2024) identified updated BIAs on the West Coast of the U.S. The
HSTT Study Area overlaps feeding BIAs for blue whale and fin whale in
SOCAL. Additionally, it overlaps a reproductive BIA as well as
northbound and southbound migratory BIAs for gray whale. Please see
Calambokidis et al. (2024) for additional details about the BIAs.
NMFS and the Navy considered additional mitigation areas (beyond
those already identified with associated measures to reduce impacts to
marine mammals) to further protect marine mammals, including
odontocetes with small or resident populations in the HSTT Study Area,
and large whales with feeding, reproductive, and migratory BIAs in the
HSTT Study Area. This includes consideration of new mitigation areas
that could be based on newly identified BIAs in Hawaii (Kratofil et al.
2023) and on the West Coast (Calambokidis et al. 2024). The HRC
overlaps BIAs identified in Kratofil et al. (2023) for humpback whale,
spinner dolphin, short-finned pilot whale, rough-toothed dolphin, pygmy
killer whale, pantropical spotted dolphin, melon-headed whale, false
killer whale, dwarf sperm whale, goose-beaked whale, common bottlenose
dolphin, and Blainville's beaked whale. All of the BIAs that overlap
the HRC are small and resident population BIAs, with the exception of
the humpback whale reproductive BIA. SOCAL overlaps BIAs identified in
Calambokidis et al. (2024) for blue whale (feeding area), fin whale
(feeding area), and gray whale (migratory route).
Additional restrictions in mitigation areas beyond those
restrictions and areas included in the 2020 HSTT final rule (including
mitigation to reduce vessel strike risk such as vessel speed
restrictions, and in consideration of the newly identified BIAs
(Kratofil et al. 2023 and Calambokidis et al. 2024)) is impracticable
given overlap with critical Navy training areas in the HRC and SOCAL,
including areas around the Channel Islands in SOCAL. However, many of
the BIAs identified in Kratofil et al. 2023 and Calambokidis et al.
(2024) partially or fully overlap the mitigation areas included in the
2020 HSTT final rule and this final rule and are aimed at reducing
impacts to the same species for which Kratofil et al. 2023 and
Calambokidis et al. (2024) identified BIAs. In the HRC, the existing
mitigation areas are targeted and expected to reduce impacts to
humpback whales, false killer whales, dwarf sperm whales, pygmy killer
whales, short-finned pilot whales, melon-headed whales, bottlenose
dolphins, spotted dolphins, spinner dolphins, rough-toothed dolphins,
goose-beaked whales, and Blainville's beaked whales (i.e., all species
for which Kratofil et al. (2023) identified BIAs). In SOCAL, the
existing mitigation areas are aimed at reducing impacts to blue whales,
fin whales, and gray whales (i.e., all species for which Calambokidis
et al. (2024) identified BIAs). Further, as included in the 2023 HSTT
proposed rule, this final rule requires that Navy personnel must issue
real-time notifications to Navy vessels of large whale aggregations
(four or more whales) within 1 nmi (1.9 km) of a Navy vessel in a
select area of SOCAL, and that Navy personnel must send alerts to Navy
vessels of increased risk of strike following any reported Navy vessel
strike in the HSTT Study Area. Last, this final rule includes
modification of two mitigation measures from the 2020 HSTT final rule
(85 FR 41780; July 10, 2020) to further reduce the potential for vessel
strike.
Beyond the papers described herein, NMFS is not aware of, nor have
commenters provided, additional research that suggests other areas
warrant additional mitigation. While NMFS agrees with the commenter
that public awareness can be an important part of gray whale
conservation, NMFS does not anticipate that additional public awareness
would assist in mitigating effects of Navy's activities on gray whales,
and therefore, has not required the Navy to implement measures related
to public awareness. For a discussion of the mitigation measures
required by this final rule, please see the Mitigation Measures
section.
Please see NMFS' response to Comment 14 regarding vessel speed
restrictions.
2. Anti-submarine warfare training involving the use of mid-
frequency active sonar (MFAS) typically involves the periodic use of
active sonar to develop the ``tactical picture,'' or an understanding
of the battle space (e.g., area searched or unsearched, presence of
false contacts, and an understanding of the water conditions).
Developing the tactical picture can take several hours or days, and
typically occurs over vast waters with varying environmental and
oceanographic conditions. Training during both high visibility (e.g.,
daylight, favorable weather conditions) and low visibility (e.g.,
nighttime, inclement weather conditions) is vital because sonar
operators must be able to understand the environmental differences
between day and night and
[[Page 4956]]
varying weather conditions and how they affect sound propagation and
the detection capabilities of sonar. Temperature layers move up and
down in the water column and ambient noise levels can vary
significantly between night and day, affecting sound propagation and
how sonar systems are operated. Reducing or securing power in low-
visibility conditions as a mitigation would affect a commander's
ability to develop the tactical picture and would prevent sonar
operators from training in realistic conditions. Further, during
integrated training multiple vessels and aircraft may participate in an
exercise using different dimensions of warfare simultaneously (e.g.,
submarine warfare, surface warfare, air warfare, etc.). If one of these
training elements were adversely impacted (e.g., if sonar training
reflecting military operations were not possible), the training value
of other integrated elements would also be degraded. Additionally,
failure to test such systems in realistic military operational
scenarios increases the likelihood these systems could fail during
military operations, thus unacceptably placing sailors' lives and the
Nation's security at risk. Some systems have a nighttime testing
requirement; therefore, these tests cannot occur only in daylight
hours. Reducing or securing power in low visibility conditions would
decrease the Navy's ability to determine whether systems are
operationally effective, suitable, survivable, and safe for their
intended use by the fleet even in reduced visibility or difficult
weather conditions.
3. The Navy has compiled information related to the effectiveness
of certain equipment to detect marine mammals in the context of their
activities, as well as the practicality and effect on mission
effectiveness of using various equipment. NMFS has reviewed this
evaluation and concurs with the characterizations and the conclusions
below.
Thermal detection--Thermal detection systems are more useful for
detecting marine mammals in some marine environments than others.
Current technologies have limitations regarding water temperature and
survey conditions (e.g., rain, fog, sea state, glare, ambient
brightness), for which further effectiveness studies are required.
Thermal detection systems are generally thought to be most effective in
cold environments, which have a large temperature differential between
an animal's temperature and the environment. Current thermal detection
systems have proven more effective at detecting large whale blows than
the bodies of small animals, particularly at a distance. The
effectiveness of current technologies has not been demonstrated for
small marine mammals. Thermal detection systems exhibit varying degrees
of false positive detections (i.e., incorrect notifications) due in
part to their low sensor resolution and reduced performance in certain
environmental conditions. False positive detections may incorrectly
identify other features (e.g., birds, waves, boats) as marine mammals.
In one study, a false positive rate approaching one incorrect
notification per 4 min of observation was noted.
The Navy has been investigating the use of thermal detection
systems with automated marine mammal detection algorithms for future
mitigation during training and testing, including on autonomous
platforms. Thermal detection technology being researched by the Navy,
which is largely based on existing foreign military grade hardware, is
designed to allow observers and eventually automated software to detect
the difference in temperature between a surfaced marine mammal (i.e.,
the body or blow of a whale) and the environment (i.e., the water and
air). Although thermal detection may be reliable in some applications
and environments, the current technologies are limited by their: (1)
Low sensor resolution and a narrow field of view, (2) reduced
performance in certain environmental conditions, (3) inability to
detect certain animal characteristics and behaviors, and (4) high cost
and uncertain long-term reliability.
Thermal detection systems for military applications are deployed on
various Department of Defense (DoD) platforms. These systems were
initially developed for night time targeting and object detection such
as a boat, vehicle, or people. Existing specialized DoD infrared/
thermal capabilities on Navy aircraft and surface ships are designed
for fine-scale targeting. Viewing arcs of these thermal systems are
narrow and focused on a target area. Furthermore, sensors are typically
used only in select training events, not optimized for marine mammal
detection, and have a limited lifespan before requiring expensive
replacement. Some sensor elements can cost upward of $300,000 to
$500,000 per device, so their use is predicated on a distinct military
need. One example of trying to use existing DoD thermal systems is
being proposed by the U.S. Air Force. The Air Force agreed to attempt
to use specialized U.S. Air Force aircraft with military thermal
detection systems for marine mammal detection and mitigation during a
limited at-sea testing event. It should be noted, however, that these
systems are specifically designed for and integrated into a small
number of U.S. Air Force aircraft and cannot be added or effectively
transferred universally to Navy aircraft. The effectiveness remains
unknown in using a standard DoD thermal system for the detection of
marine mammals without the addition of customized system-specific
computer software to provide critical reliability (enhanced detection,
cueing for an operator, reduced false positive, etc.)
Finally, current DoD thermal sensors are not always optimized for
marine mammal detections versus object detection, nor do these systems
have the automated marine mammal detection algorithms the Navy is
testing via its ongoing research program. The combination of thermal
technology and automated algorithms are still undergoing demonstration
and validation under Navy funding.
Thermal detection systems specifically for marine mammal detection
have not been sufficiently studied both in terms of their effectiveness
within the environmental conditions found in the HSTT Study Area and
their compatibility with Navy training and testing (i.e., polar waters
vs. temperate waters). The effectiveness of even the most advanced
thermal detection systems with technological designs specific to marine
mammal surveys is highly dependent on environmental conditions, animal
characteristics, and animal behaviors. At this time, thermal detection
systems have not been proven to be more effective than, or equally
effective as, traditional techniques currently employed by the Navy to
observe for marine mammals (i.e., naked-eye scanning, hand-held
binoculars, high-powered binoculars mounted on a ship deck). Focusing
on thermal detection systems could also provide a distraction from and
compromise to the Navy's ability to implement its established
observation and mitigation requirements. Last, the Navy does not have
available manpower to add Lookouts to use thermal detection systems in
tandem with existing Lookouts who are using traditional observation
techniques.
The Defense Advanced Research Projects Agency funded six initial
studies to test and evaluate infrared-based thermal detection
technologies and algorithms to automatically detect marine mammals on
an unmanned surface vehicle. Based on the outcome of these initial
studies, the Navy is pursuing additional follow-on research efforts.
[[Page 4957]]
The Office of Naval Research Marine Mammals and Biology program
funded a project (2013-2019) to test the thermal limits of infrared-
based automatic whale detection technology. That project focused on
capturing whale spouts at two different locations featuring subtropical
and tropical water temperatures, optimizing detector/classifier
performance on the collected data, and testing system performance by
comparing system detections with concurrent visual observations.
Results indicated that thermal detection systems in subtropical and
tropical waters can be a valuable addition to marine mammal surveys
within a certain distance from the observation platform (e.g., during
seismic surveys, vessel movements), but have challenges associated with
false positive detections of waves and birds (Boebel, 2017). While
Zitterbart et al. (2020) reported on the results of land-based thermal
imaging of passing whales, their conclusion was that thermal technology
under the right conditions and from land can detect a whale within 3 km
although there could also be lots of false positives, especially if
there are birds, boats, and breaking waves at sea.
The Navy's Living Marine Resources program is funding one ongoing
thermal imaging project entitled ``Thermal Imaging for Vessel Strike
Mitigation on Autonomous Vessels Project 68''. The project is focused
on adapting and testing two thermal imaging-based whale detection
systems to reduce the potential for vessel strike during navigation of
unmanned Navy surface vessels. Phase one is planned for 2024 and 2025.
The schedule for subsequent phases will be determined as work
progresses. Project details are available at: <a href="https://exwc.navfac.navy.mil/Portals/88/Documents/EXWC/Environmental_Security/Living%20Marine%20Resources/LMRFactSheet_Project68.pdf">https://exwc.navfac.navy.mil/Portals/88/Documents/EXWC/Environmental_Security/Living%20Marine%20Resources/LMRFactSheet_Project68.pdf</a>.
The Navy plans to continue researching thermal detection systems
for marine mammal detection to determine their effectiveness and
compatibility with Navy applications. If the technology matures to the
state where thermal detection is determined to be an effective
mitigation tool during training and testing, NMFS and the Navy will
assess the practicability of using the technology during training and
testing events and retrofitting the Navy's observation platforms with
thermal detection devices. The assessment will include an evaluation of
the budget and acquisition process (including costs associated with
designing, building, installing, maintaining, and manning the
equipment); logistical and physical considerations for device
installment, repair, and replacement (e.g., conducting engineering
studies to ensure there is no electronic or power interference with
existing shipboard systems); manpower and resource considerations for
training personnel to effectively operate the equipment; and
considerations of potential security and classification issues. New
system integration on Navy assets can entail up to 5 to 10 years of
effort to account for acquisition, engineering studies, and development
and execution of systems training. The Navy will provide information to
NMFS about the status and findings of Navy-funded thermal detection
studies and any associated practicability assessments at the annual
adaptive management meetings.
Passive Acoustic Monitoring--Regarding the recommendation to
utilize existing acoustic detection systems to track marine mammals in
near real-time, the Navy does employ passive acoustic monitoring when
practicable to do so (i.e., when assets that have passive acoustic
monitoring capabilities are already participating in the activity). For
other explosive events, there are no platforms participating that have
passive acoustic monitoring capabilities. Adding a passive acoustic
monitoring capability (either by adding a passive acoustic monitoring
device to a platform already participating in the activity, or by
adding a platform with integrated passive acoustic monitoring
capabilities to the activity, such as a sonobuoy) for mitigation is not
practicable. As discussed in chapter 5 (Mitigation), section 5.5.3
(Active and Passive Acoustic Monitoring Devices) of the 2018 HSTT FEIS/
OEIS, there are significant manpower and logistical constraints that
make constructing and maintaining additional passive acoustic
monitoring systems or platforms for each training and testing activity
impracticable. Additionally, diverting platforms that have passive
acoustic monitoring platforms would impact their ability to meet their
Title 10 requirements for maintaining military readiness and reduce the
service life of those systems.
The use of real-time PAM for mitigation at the Southern California
Anti-submarine Warfare Range (SOAR) exceeds the capability of current
technology. The Navy has a significant research investment in the
Marine Mammal Monitoring on Navy Ranges (M3R) system at three ocean
locations including SOAR. However, this system was designed and
intended to support marine mammal research for select species, and not
as a mitigation tool. Marine mammal PAM using instrumented hydrophones
is still under development and while it has produced meaningful results
for marine species monitoring, abundance estimation, and research, it
was not developed for, nor is it appropriate for, real-time mitigation.
The ability to detect, classify, and develop an estimated position (and
the associated area of uncertainty) differs across species, behavioral
context, animal location vs. receiver geometry, source level, etc.
Based on current capabilities, and given adequate time, vocalizing
animals within an indeterminate radius around a particular hydrophone
are detected, but obtaining an estimated position for all individual
animals passing through a predetermined area is not assured. Detecting
vocalizations on a hydrophone does not determine whether vocalizing
individuals would be within the established mitigation zone in the
timeframes required for mitigation. Since detection ranges are
generally larger than current mitigation zones for many activities,
this would unnecessarily delay events due to uncertainty in the
animal's location and put at risk event realism. If an event were to be
moved based upon low-confidence localizations, it may inadvertently be
moved to an area where non-vocalizing animals of undetermined species
are present.
To develop an estimated position for an individual, it must be
vocalizing and its vocalizations must be detected on at least three
hydrophones. The hydrophones must have the required bandwidth, and
dynamic range to capture the signal. In addition, calls must be
sufficiently loud so as to provide the required signal to noise ratio
on the surrounding hydrophones. Typically, small odontocetes echolocate
with a directed beam that makes detection of the call on multiple
hydrophones difficult. Developing an estimated position of selected
species requires the presence of whistles which may or may not be
produced depending on the behavioral state. Beaked whales at SOAR
vocalize only during deep foraging dives which occur at a rate of
approximately 10 per day. They produce highly directed echolocation
clicks that are difficult to simultaneously detect on multiple
hydrophones. Current real-time systems cannot follow individuals and at
best produce sparse positions with multiple false locations. The
position estimation process must occur in an area with hydrophones
spaced to allow the detection of the same echolocation click on at
least three hydrophones. Typically, a spacing of less than 4 km
[[Page 4958]]
in water depths of approximately 2 km is preferred. In the absence of
detection, the analyst can only determine with confidence if a group of
beaked whales is somewhere within 6 km of a hydrophone. Beaked whales
produce stereotypic click trains during deep (500 m) foraging dives.
The presence of a vocalizing group can be readily detected by an
analyst by examining the click structure and repetition rate. However,
estimating position is possible only if the same train of clicks is
detected on multiple hydrophones which is often precluded by the
animal's narrow beam pattern. Currently, this is not an automated
routine.
In summary, the analytical and technical capabilities required to
use PAM such as M3R at SOAR as a required mitigation tool are not
sufficiently robust to rely upon due to limitations with near real-time
classification and determining estimated positions. The level of
uncertainty as to a species presence or absence and location are too
high to provide the accuracy required for real-time mitigation. As
discussed in chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS,
existing Navy visual mitigation procedures and measures, when performed
by individual units at-sea, still remain the most effective and
practical means of protection for marine species.
NMFS is not requiring drones to be used at this time and the
commenters did not provide information supporting the recommendation
that they be used when considering the extensive monitoring by Lookouts
required.
4. The commenters neither offer a rationale for why a cap on the
level of activities is needed nor do they suggest what an appropriate
cap might be. The Navy is responsible under Title 10 of the U.S. Code
for conducting the needed amount of testing and training to maintain
military readiness, which is what they have proposed and NMFS has
analyzed. Further, the MMPA states that NMFS shall issue MMPA
authorizations if the necessary findings can be made, as they have been
here. Importantly, as described in the Mitigation Measures section, the
Navy has determined that it is practicable to limit activities (active
sonar, explosive use, etc.) to varying degrees in five areas that are
important to sensitive species or for important behaviors in order to
minimize impacts that are more likely to lead to adverse effects on
rates of recruitment or survival and is required by this final rule to
do so.
5. During the promulgation of this rule, NMFS and the Navy fully
explored the potential for the Navy to incorporate WhaleSafe into its
mitigation methods. However, the current WhaleSafe operational areas
(Santa Barbara Channel and off the coast of San Francisco) do not
overlap the HSTT Study Area. As such, while WhaleSafe can inform whale
occurrence in other areas of Southern California, it is not an
appropriate tool for determining mitigation actions in the HSTT Study
Area, and NMFS has not required the Navy to halt training exercises
when WhaleSafe indicates that whale presence in the area is ``high'' or
``very high'' as suggested by the commenter. However, NMFS has
recommended to the Navy, including as a conservation recommendation in
the 2024 reinitiated Biological and Conference Opinion, that it explore
funding options and seek partnership opportunities for the development
of a mapping and analysis tool that integrates acoustic and visual
whale detections with model predictions to display near real-time whale
presence data within the SOCAL and nearby surrounding areas.
Information generated by such a tool could then be used by Navy, and
potentially non-military, vessels to reduce the risk of large whale
vessel strike in Southern California.
Comment 14: A commenter stated that NMFS must substantially
strengthen mitigation measures, including requiring more effective
measures to protect large whales from vessel strikes, before issuing
any additional take authorizations to the Navy. The commenter stated
that NMFS rejected other mitigation measures, such as requiring vessels
used in the Navy's activities to slow to 10 kn (18.5 km per hour) or
less in certain BIAs to reduce the risk of vessel strikes, by
downplaying the risk of vessel strikes to endangered whales and other
species impacted by the Navy's activities. The commenter stated that
NMFS' proposed modifications to the mitigation measures fall short of
meeting the least practicable adverse impact standard. Commenters
provided several specific recommendations for mitigation measures.
1. The 2023 HSTT proposed rule included a revised mitigation
measure that states ``if marine mammals are observed, Navy personnel
must maneuver (which may include reducing speed as the mission or
circumstances allow) to maintain distance.'' The reference to reducing
speed as the mission or circumstances allow is a revision from the
measure in the 2020 HSTT final rule. The commenter stated that this
measure should be mandatory in important whale habitat, where whales
are known to occur, and where vessel strikes have occurred or are
expected to occur, and should be implemented in these areas even when
whales have not been observed by Lookouts. Another commenter
recommended focusing on vessel speeds and their impact on marine mammal
safety to mitigate the risks associated with high-speed vessel travel
and including revised protocols.
2. The 2023 HSTT proposed rule also requires that Navy personnel
must send alerts to Navy vessels of increased risk of strike following
any reported Navy vessel strike in the HSTT Study Area. The commenter
stated that NMFS should attach specific actions required of other
vessels in the area, including a 10 kn (18.5 km per hour) ship speed,
when a Navy vessel strike has been reported, in order to reduce the
risk of further strikes. The commenter stated that these alerts should
also go to non-Navy vessels in the vicinity that pose a risk to whales.
3. The 2023 HSTT proposed rule modified the requirement for
awareness messages disseminated in Southern California. The commenter
stated that it supports the use of more accurate seasonal information
to inform large whale awareness messages, but expects awareness and
alerts to be tied to more robust mitigation action, and recommends that
if a marine mammal is spotted, NMFS should require a mandatory 10 kn
(18.5 km per hour) ship speed limit.
4. The 2023 HSTT proposed rule also contains a new mitigation
measure in which Navy personnel would issue real-time notifications to
Navy vessels of large whale aggregations (four or more whales) within 1
nmi (1.9 km) of a Navy vessel in a select area of SOCAL (Of note, the
four whales do not have to be the same species and do not have to be
part of the same group (e.g., two whales of one species sighted at a
distance off the port side at 500 yards (yd; 457.2 m) and two more
whales of another species sighted off the starboard side at 500 yd
(457.2 m) would be considered an aggregation under this measure)). The
commenter recommended that (a) this should apply any time a whale is
sighted (i.e., Navy should not have to observe at least four whales to
trigger this measure), (b) this should have no geographic limitation,
and (c) this should trigger a mandatory 10 kn (18.5 km per hour) ship
speed limit.
5. A commenter stated that the Navy will evaluate future revisions
to online or DVD Marine Species Awareness Training (MSAT) video
training to emphasize that when a protected species is spotted, this
may be an indicator that additional marine
[[Page 4959]]
mammals are present and nearby, and the vessel should take this into
consideration when transiting. The commenter stated that this purported
mitigation measure should be more forceful; when a protected species is
spotted, protective actions must result.
Response: Under the MMPA, NMFS' least practicable adverse impact
determination for military readiness activities must include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity (16
U.S.C. 1371(a)(5)(a)(iii)). The recommendation for NMFS to require, in
some cases a reduction in speed, and in other cases a 10 kn (18.5 km
per hour) speed limit, generally speaking, is impracticable because
these speed reductions and further reductions to Navy vessel speeds
negatively impact mission effectiveness. The Navy is unable to impose a
10 kn (18.5 km per hour) 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 and testing. The Navy
requires flexibility in the use of variable ship speeds for training,
testing, operational, safety, and engineering qualification
requirements. Navy ships typically use the lowest speed practical 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 with the Navy's assessment that they are
impracticable. That said, NMFS has strengthened its mitigation
requirement requiring Navy personnel to maneuver if marine mammals are
observed to add ``which may include reducing speed as the mission or
circumstances allow'' to emphasize that reduction of speeds should be
considered where appropriate. Of note, current Navy Standard Operating
Procedures and mitigations require a minimum of at least three Lookouts
on duty on Navy cruisers and destroyers while underway and, so long as
safety of navigation is maintained, to keep 500 yards away from large
whales and 200 yards away from other marine mammals (except for bow-
riding dolphins and pinnipeds hauled out on shore or man-made
navigational structures, port structures, and vessels).
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
Study Area is typically already low, with median speeds between 5 and
12 kn (9.2 to 22.2 km per hour). Further, the presence and transits of
commercial and recreational vessels, annually numbering in the
thousands, poses a more significant risk to large whales than the
presence of Navy vessels. The Vessel Strike subsection of the Estimated
Take of Marine Mammals section of the 2020 HSTT final rule and this
rule and the 2018 HSTT FEIS/OEIS chapter 3 (Affected Environment and
Environmental Consequences) section 3.7.3.4.1 (Impacts from Vessels and
In-Water Devices) and Appendix K, section K.4.1.6.2 (San Diego (Arc)
Blue Whale Feeding Area Mitigation Considerations), 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 HSTT Study Area. The Navy
determined that based on how the training and testing activities will
be conducted within the HSTT Study Area, vessel speed restrictions
would be incompatible with practicability criteria for safety,
sustainability, and training and testing missions, as described in
chapter 5 (Mitigation), section 5.3.4.1 (Vessel Movement) of the 2018
HSTT FEIS/OEIS. NMFS fully reviewed this analysis and concurs with the
Navy's conclusions. During the promulgation of this final rule, NMFS
again discussed the potential for vessel speed restrictions, including
during limited times and areas, and Navy continued to assert that such
restrictions are not practicable. After thorough discussion, NMFS again
concurs with the Navy's conclusions.
Regarding the recommendation for Navy to send alerts of increased
risk of strike to non-Navy vessels (such as through the WhaleAlert
app), Navy has informed NMFS that transmitting information between Navy
and civilian vessels poses security risks that make sending alerts to
non-Navy vessels impracticable.
Regarding the recommendations for the measure described in number 4
to be implemented when a single whale is sighted and in all areas, Navy
asserts that doing so is not practicable as it would interfere with its
mission success. Four whales was determined to be the appropriate
trigger for this measure as it represents an increased strike risk
without occurring so often that this measure becomes impracticable for
the Navy to implement. Regarding the geographic limitations, this
measure would apply to the area between 32-33 degrees North and 117.2-
119.5 degrees West, which includes the locations where recent (2009,
2021, 2023) strikes occurred, and historic locations where strikes
occurred when precise latitude and longitude were known. Given that
this area includes the location where all known strikes have occurred,
NMFS anticipates that this measure is of particular importance in this
area, and Navy asserted that implementing this measure more broadly
would be impracticable, as it could divert the attention of bridge
personnel from other critical tasks.
As stated by the commenter, the Navy will evaluate future revisions
to online or DVD MSAT video training to emphasize that when a protected
species is spotted, this may be an indicator that additional marine
mammals are present and nearby, and the vessel should take this into
consideration when transiting. NMFS does not dictate exactly what
measure must be taken, as different situations warrant different
actions and may have different safety and practicability
considerations.
The 2023 HSTT proposed rule and this final rule include two new
mitigation measures beyond that required by the 2020 HSTT final rule
and modification of two existing mitigation measures. Please see NMFS'
response to Comment 15.
With the exception of the recommended mitigation measures discussed
within this Comments and Responses section, the commenter has not
demonstrated why NMFS has not met the least practicable adverse impact
standard. As described in the Mitigation Measures section of this final
rule, NMFS has included the mitigation requirements necessary to
achieve the least practicable adverse impact on the affected species or
stocks and their habitat.
Comment 15: Multiple commenters stated that, rather than
authorizing additional take by serious injury or mortality by vessel
strike, NMFS should require the Navy to implement additional mitigation
measures to avoid harassment and future vessel strikes of large whales.
Commenters specifically referenced the 2021 Royal Australian Navy
vessel strikes of fin whales, with one commenter referencing what it
describes as NMFS' acknowledgement of the susceptibility of fin whales
to vessel strike year-round, and another stating that the Royal
Australian Navy vessel strikes should be factored into the take
calculation for the HSTT Study Area.
In a related comment, a commenter questioned whether the Navy can
[[Page 4960]]
continuously keep asking for more takes if they continue to reach their
authorized number.
Response: Based on the available information at the time that the
2020 HSTT final rule was promulgated, NMFS' analysis suggested that
three takes by serious injury or mortality by vessel strike over the 7-
year duration of the HSTT rule could occur. To date, NMFS is aware of
three confirmed vessel strikes of large whales by U.S. Navy vessels
during the current regulatory period. While those three takes are
within what NMFS anticipated could occur, given that three years
remained of the effective period of the rule when the first two strikes
occurred, the Navy reanalyzed the potential for take by mortality and
serious injury by vessel strike over the duration of the rule, and that
analysis suggested that additional takes could occur. NMFS' subsequent
analysis also suggested that two additional takes could occur over the
remainder of the regulatory period. NMFS requires the Navy to implement
mitigation measures to reduce the potential for vessel strike; however,
this mitigation is not quantitatively incorporated into NMFS' analysis,
and therefore, does not reduce the number of takes that NMFS
authorizes.
Regarding mitigation, the 2023 HSTT proposed rule and this final
rule include two new mitigation measures beyond that required by the
2020 HSTT final rule and modification of two existing mitigation
measures. The new measures include:
<bullet> Navy personnel must issue real-time notifications to Navy
vessels of large whale aggregations (four or more whales) within 1 nmi
(1.9 km) of a Navy vessel in a select area of SOCAL; and
<bullet> Navy personnel must send alerts to Navy vessels of
increased risk of strike following any reported Navy vessel strike in
the HSTT Study Area.
Additionally, the 2020 HSTT final rule (85 FR 41780, July 10, 2020)
requires Navy personnel to issue seasonal awareness notification
messages to alert ships and aircraft to the possible presence of blue
whales, humpback whales, gray whales, and fin whales in the seasons
that they are most likely to occur in the HSTT Study Area. These
messages assist in maintaining safety of navigation and in avoiding
interactions with large whales during transits. This final rule
requires the Navy to re-title the spring blue whale message (released
in June) to a large whale awareness message inclusive of typical
spring-summer large whales in southern California (mainly blue, fin,
and humpback whales), as included in the 2023 HSTT proposed rule.
Furthermore, rather than tying the message release to a specific month,
the message would be for a period based on predicted oceanographic
conditions for a given year.
For vessel movement, the 2020 HSTT final rule (85 FR 41780, July
10, 2020) required that ``when underway, Navy personnel must observe
the mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must maneuver to maintain distance.'' This measure has
been updated to state that reducing speed may be an appropriate way to
maneuver, as included in the 2023 HSTT proposed rule. Please see the
Mitigation Measures section for a full discussion of these new and
revised measures.
NMFS anticipates that additional vessel strike of large whales
could still occur even in consideration of these additional and
modified mitigation measures (noting that the mitigation measures are
not quantitatively included in the vessel strike calculation).
Therefore, NMFS is authorizing two additional takes of large whales by
serious injury or mortality by vessel strike over the 7-year duration
of the HSTT rule (two takes in addition to the three takes authorized
in the current regulations). In the 2023 HSTT proposed rule and this
final rule, NMFS describes factors that make fin whales particularly
susceptible to vessel strike by the Navy in southern California (e.g.,
occurrence, Navy vessel strike history in SOCAL, year-round
occurrence). As such, NMFS analysis suggests that of the five total
takes by serious injury or mortality by vessel strike of large whales,
up to four of those takes could be of the CA/OR/WA stock of fin whale.
Regarding the suggestion that the Royal Australian Navy vessel strike
of two fin whales should be factored into the take calculation for the
HSTT Study Area, as explained in the 2023 HSTT proposed rule and in the
Vessel Strike section of this final rule, according to the U.S. Navy,
the May 2021 vessel strike of two fin whales by a Royal Australian Navy
vessel did not occur while that vessel was participating in a U.S.
Navy-led training exercise, and the strike of those two fin whales is
not included in the estimated take by vessel strike calculation.
Instead, NMFS considered the 2021 vessel strike by the Royal Australian
Navy along with other strike information when determining which species
could be among the estimated large whales struck.
Regarding a commenter's concern about whether the Navy can
continuously keep asking for more takes if they continue to reach their
authorized number, as stated in the Background section of this final
rule, 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) (16 U.S.C. 1371(a)(5)(A)). 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 (referred to in this rule as ``mitigation measures'');
and requirements pertaining to the monitoring and reporting of such
takings (16 U.S.C. 1371(a)(5)(A)). NMFS has made the required findings,
and therefore, it must issue the requested incidental take
authorization to the Navy.
Comment 16: The 2023 HSTT proposed rule (88 FR 68290, October 3,
2023) states: ``The 2021 NAVDORM requires the use of three Lookouts on
Navy cruisers and destroyers as compared to the previous requirement of
one Lookout when a vessel was underway and not engaged in sonar
training or testing. However, as discussed in the Mitigation Measures
section below, the Navy informed NMFS that requiring the additional
Lookouts as mitigation is not practicable because this SOP may change
in response to manning issues and national security needs.'' A
commenter stated that NMFS should reject the Navy's explanation for why
three lookouts on cruisers and destroyers are not practicable. In a
related comment, a commenter stated that the 2023 HSTT proposed rule
seeks to reduce the number of lookouts (the simplest and cheapest
mitigation strategy) from three to one, and recommended increased
numbers of lookouts as a mitigation measure. This commenter also
recommended enhancing bridge resource management. A commenter also
recommended training for Lookouts.
Response: Neither the 2023 HSTT proposed rule nor this final rule
propose a reduction in the number of lookouts required on Navy vessels,
and it is unclear what the commenter means by enhancing bridge resource
management, though it is important to note that all bridge
watchstanders including Lookouts take the Navy's Marine Species
Awareness Training that NMFS has reviewed and approved. The
[[Page 4961]]
commenter did not suggest what additional training Lookouts should
receive. As a general matter, NMFS' evaluation of least practicable
adverse impact appropriately relies heavily on input from the applicant
regarding the practicability of any given measure provided the
explanation is reasonable and clear. Further, 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 and consultation with the Department
of Defense on these considerations (see 16 U.S.C. 1371(a)(5)(A)(iii)).
The Navy has clearly indicated the need for flexibility to effectively
carry out foreseeable military readiness activities, such that
requiring additional Lookouts at all times would be impracticable, and
we concur with that assessment.
Comment 17: A commenter stated that if the Navy is allowed a
greater number of incidental takes on marine life, it must enforce
strategies to avoid such incidents and suggested that the Navy expand
its existing precautions to protect marine life and minimize takes of
marine animals. The commenter encourages the Navy to (1) continue
implementing state-of-the-art technology and best practices to reduce
underwater noise and disturbance during training exercises,
particularly in areas where marine mammals are known to inhabit, (2)
collaborate with marine biologists and conservation experts to
continually monitor the effects of Navy activities on marine life and
suggest corrective actions when necessary, (3) consider adjusting the
timing or location of training exercises to minimize their impact on
critical marine habitats and migration paths, and (4) promote
transparency and cooperation by engaging with environmental
organizations and local communities to develop and assess mitigation
strategies collaboratively. In a related comment, another commenter
stated that advanced technologies should allow the United States
military to maintain readiness standards and protect wildlife.
Response: NMFS worked closely with the Navy to investigate the
recent vessel strikes and to identify ways to improve mitigation
measures. This final rule includes revision to two existing mitigation
measures and two new mitigation measures beyond that included in the
2020 HSTT final rule (85 FR 41780, July 10, 2020; described further in
response to Comment 15). Of note, this final rule authorizes additional
take by serious injury or mortality by vessel strike beyond that
authorized by the 2020 HSTT final rule. This final rule does not
authorize additional take by Level A or Level B harassment. However, as
discussed in the Mitigation Measures section of this final rule,
elsewhere in this section, and in chapter 5 (Mitigation) of the 2018
HSTT FSEIS/OEIS, the Navy will implement extensive mitigation, both
procedural mitigation and mitigation areas, to avoid or reduce
potential impacts from the HSTT activities on marine mammals, including
impacts from sonar and explosives. (Note that additional measures and
revisions to some existing measures have been made since publication of
this FEIS/OEIS). Specifically, the Navy would use a combination of
delayed starts, powerdowns, and shutdowns to minimize the likelihood of
M/SI, minimize the likelihood or severity of PTS or other injury, and
reduce instances of TTS or more severe behavioral disruption caused by
acoustic sources or explosives. The Navy will limit activities (active
sonar, explosive use, major training exercises (MTEs), etc.) to varying
degrees in multiple areas that are important to sensitive species or
for critical behaviors in order to minimize impacts that are more
likely to lead to adverse effects on rates of recruitment or survival.
The mitigation measures would reduce the probability and/or severity of
impacts expected to result from acute exposure to acoustic sources or
explosives, vessel strike, and impacts to marine mammal habitat. Please
see the Mitigation Measures section of this final rule for additional
detail regarding required mitigation measures.
Regarding best practices to reduce underwater noise, most of the
Navy's vessels already have state of the art quieting technologies
employed to reduce their sound profile to assist them in avoiding
detection by enemy forces, therefore, they are much quieter than
commercial/recreational vessels of similar sizes.
Regarding monitoring the effects of Navy activities on marine life
and the commenter's recommendation to take corrective actions when
necessary, as required by this final rule, the Navy implements a robust
monitoring program. Although the Navy has been conducting research and
monitoring in the HSTT Study Area for over 20 years, it developed a
formal marine species monitoring program in support of the MMPA and ESA
authorizations for the Hawaii and Southern California range complexes
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, rules, and
Biological Opinions. The reports are made available to the public on
the Navy's marine species monitoring website
(www.navymarinespeciesmonitoring.us) and the data on the Ocean
Biogeographic Information System Spatial Ecological Analysis of
Megavertebrate Populations (OBIS-SEAMAP) (<a href="http://www.seamap.env.duke.edu">www.seamap.env.duke.edu</a>). For
additional information about the Navy's monitoring program, please see
the Monitoring section herein and the websites listed above.
Further, the regulations governing the take of marine mammals
incidental to Navy training activities in the HSTT Study Area contain
an adaptive management component. Our understanding of the effects of
Navy training and testing activities (e.g., acoustic and explosive
stressors) on marine mammals continues to evolve, which makes the
inclusion of an adaptive management component both valuable and
necessary within the context of 7-year regulations. Please see the
Adaptive Management section of this final rule for additional
information.
Regarding transparency and cooperation, the MMPA does not require
an independent review of mitigation measures. It does require notice
and opportunity for public comment (16 U.S.C. 1371(a)(5)(A)(i)). The
public comment period is a means by which the public (e.g.,
environmental organizations and local communities) are able to provide
NMFS with mitigation measure recommendations supported by scientific
evidence that NMFS takes into consideration when finalizing the
rulemaking.
Comment 18: A commenter stated that measures should be taken to
cease any more actions potentially impacting marine mammals. The 2023
HSTT proposed rule (88 FR 68290, October 3, 2023) states that results
of a study indicated that Navy Lookout Teams, which include lookouts
and other crew members, have approximately an 80 percent chance of
failing to detect a pod of large whales beyond 200 yd (182.9 m),
compared with a 49 percent chance for trained marine mammal observers.
The commenter recommended that the Navy hire trained marine mammal
observers to keep the incidents of whale take to the original take
numbers or less, and not need to have modifications to the LOA for
additional animal take. The
[[Page 4962]]
commenter also recommended having experts that can accurately assess
the physical and mental health of these animals. In a related comment,
a commenter stated that the rule calls into question whether the three
vessel strikes that have occurred were due to the crew not spotting the
whales, not spotting them before the strike, or the Navy not
emphasizing the importance of spotting and avoiding marine wildlife to
its personnel.
Response: As described in the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023), a recent study by Oedekoven and Thomas (2022) was
designed to evaluate the effectiveness of Navy Lookouts at detecting
marine mammals before they entered a defined set of mitigation zones
(i.e., 200, 500, and 1,000 yd (182.9, 457.2, and 914.4 m)) during MFAS
training activities. This study also compared Lookout effectiveness
with that of trained marine mammal observers. Lookout teams were
comprised of varying numbers of Lookouts depending on the type of ship
and the training activity that was occurring (noting that the data was
collected prior to the Navy's change in its SOPs to require the use of
three Lookouts on Navy cruisers and destroyers). Marine mammal observer
teams consisted of two dedicated observers. As noted by the commenter,
results of this study indicate that Navy Lookout Teams, which include
Lookouts and other crew members, have approximately an 80 percent
chance of failing to detect a pod of large baleen whales (rorquals)
before they come closer than a mitigation range of 200 yd (182.9 m),
compared with a 49 percent chance for trained marine mammal observers.
The probability of a pod remaining undetected by Lookouts was greater
for larger mitigation zones (i.e., 85 percent at 500 yd (457.2 m); 91
percent at 1,000 yd (914.4 m)). These values require some level of
interpretation with regard to the numerical results. For instance, the
study's statistical model assumed that Navy ships moved in a straight
line at a set speed for the duration of the field trials, and that
animals could not move in a direction perpendicular to a ship.
Violation of this model assumption would underestimate Lookout
effectiveness for some data points. The values for both Navy Lookouts
and the Marine Mammal Observers include animals under the water that
would not have been available for detection by a Lookout. This study
suggests that detection of marine mammals is less certain than
previously assumed at certain distances. While this study suggests that
trained marine mammal observers are more effective than Navy Lookouts,
the Navy has asserted that it is impracticable to station independent
marine mammal observers on Navy vessels. When making the least
practicable adverse impact determination for military readiness
activities, NMFS must consider personnel safety, practicality of
implementation, and impact on the effectiveness of the military
readiness activities and must consult with the Department of Defense on
these considerations (16 U.S.C. 1371(a)(5)(A)(iii)). As described in
section 5.5.5 (Third-Party Observers) of the 2018 HSTT FEIS/OEIS, use
of third-party observers on Navy vessels or aircraft would result in
safety and security clearance issues, berthing shortages or exceedance
of other space limitations, impacts to Lookouts' abilities to complete
their other mission-essential duties, and unsustainable costs, among
other issues. Please see the 2018 HSTT FEIS/OEIS for additional detail.
Lookouts remain an important component of the Navy's mitigation
strategy, especially as it relates to minimizing exposure to the more
harmful impacts that may occur within closer proximity to the source,
where Lookouts are most effective. Further, NMFS and the Navy are also
considering, through the adaptive management process, whether there are
additional measures that would be practicable to implement that would
improve effectiveness of Lookouts, such as enhanced personnel training.
As described in the 2023 HSTT proposed rule (88 FR 68290, October
3, 2023), the 2021 U.S. Navy vessel strikes were the first known U.S.
Navy vessel strikes in the HSTT Study Area since 2009. Historically,
military vessel strikes of large whales within the HSTT Study Area have
been rare events with only seven such strikes occurring over the past
14 years, five U.S. Navy strikes, and two Royal Australian Navy
strikes. Based on the Navy and NMFS' investigation of these recent
strike incidents, NMFS found that the Navy was substantially following
the required mitigation protocols, consistent with 16 U.S.C.
1371(a)(5)(B). These recent vessel strike reports (2021, 2023) appear
to reflect the sporadic, episodic, or clustered nature of vessel strike
or may reflect a trend of increased large whale presence in this area
in the early summer months. Given the size of Navy vessels and the need
to maintain specific speeds during certain activities, even if a whale
is detected, a U.S. Navy vessel may not be able to avoid a strike.
Therefore, given the potential shift in factors contributing to vessel
strike, and the challenges in avoiding potential strikes, it is
important to ensure that the compliance process addresses the
appropriate number of potential strikes and that they are considered in
the negligible impact determination, which is why it was necessary to
evaluate the authorization of an additional two takes by strike. The
MMPA provides for the authorization of incidental take caused by
specified activities, provided certain findings are made. The law
directs NMFS to process adequate and complete applications for
incidental take authorization, and issue the authorization provided all
statutory findings and requirements, as well as all associated legal
requirements, are met.
It is unclear how having experts that can accurately assess the
physical and mental health of these animals, as suggested by the
commenter, would assist in mitigating the effects of the Navy's
activities, nor has the commenter provided detail explaining how. The
required procedural mitigation measures are implemented within defined
ranges based on established criteria, and implementation does not rely
on a visual assessment of behavioral or physiological effects to
animals. In its analysis, NMFS does consider the potential impacts of
stress on marine mammals from exposure to the Navy's activities. Please
see the Stress Response section of the 2018 HSTT Proposed Rule for a
discussion of stress responses in marine mammals. Further, since that
discussion, additional information about stress responses has become
available (e.g., Houser et al. (2020); Houser et al. (2021)). However,
the additional studies do not change the expected potential impacts of
stress on marine mammals from exposure to the Navy's activities.
NMFS thoroughly discussed each of the strikes with the Navy, and
summarized the circumstances surrounding each strike in the Estimated
Take From Vessel Strikes and Explosives by Serious Injury or Mortality
section of the 2023 HSTT proposed rule ((88 FR 68290, October 3, 2023)
and the Authorized Take From Vessel Strikes and Explosives by Serious
Injury or Mortality section of this final rule. The circumstances
surrounding whale detection ahead of each strike varied. However, of
note, Navy vessels routinely successfully maneuver to avoid large
whales. Between 2009 and 2021 (the most recent year for which data is
available), U.S. Navy vessels in the SOCAL portion of the HSTT Study
Area maneuvered 316 times to avoid large whales during MTEs. The years
[[Page 4963]]
2017 and 2021 had the highest number of maneuvers (n = 64 and n = 82,
respectively). In all years for which data is available (2009 to 2021),
Navy cruisers and destroyers account for 51 to 100 percent of maneuvers
during MTEs to avoid whales.
Comment 19: A commenter, referencing two news articles, stated that
new information indicates that the Navy is increasingly using unmanned
systems, which cannot replace human monitoring, even if useful in
addition to the lookouts and observers NMFS relies on to mitigate and
monitor the impacts of the Navy's activities on marine mammals.
Response: As stated in the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023), the Navy's proposed activities have not changed from
that analyzed in the 2018 final rule (83 FR 66846, December 27, 2018)
or the 2020 final rule (85 FR 41780, July 10, 2020). Impacts from all
unmanned systems that would be used in training and testing activities
under this proposed rule have been accounted for in the analysis.
Neither NMFS nor the Navy have proposed to replace human marine mammal
monitoring with monitoring by unmanned systems.
Determinations
Comment 20: A commenter stated that NMFS has neither adequately
evaluated nor met the negligible impact standard for the following
reasons:
1. The negligible impact determination dismisses the important fact
that vessel strikes already pose a substantial threat to large whales
in the region, and several populations are already exceeding PBR.
Endangered blue whales, threatened and endangered humpback whales, and
endangered fin whales off the coast of Southern California are
particularly vulnerable, with even one additional ship strike
constituting a significant impact.
2. NMFS has failed to consider the impacts of the full scope of
training exercises over 7 years on marine mammals, including joint
training exercises with foreign fleets. The commenter further asserted
that what is not unsaid in the rule, but is critically important, is
that the Navy's activities over 7 years (in contrast to the five
already authorized) has never been evaluated under the MMPA, ESA, or
NEPA. The commenter stated that this underscores that NMFS has not
taken the measures needed to ensure the Navy's activities in the HSTT
Study Area will have no more than a negligible impact on endangered
whales and other marine mammals in the Pacific Ocean over the full 7
years of the proposed authorization. NMFS must reexamine the increased
risk and incidence of vessel strikes in light of the Navy's full suite
of impacts on large whales and other marine mammals (over this extended
period of time) and decline to authorize this additional take.
Response: NMFS disagrees with the commenter's assertion that it has
not adequately evaluated nor met the negligible impact standard. NMFS
assessed all of the best available information about the relative risk
of vessel strikes by commercial, recreational, and military vessels in
the Vessel Strike section of this final rule. As explained in the
Serious Injury or Mortality subsection of the Analysis and Negligible
Impact Determination section of the 2018 HSTT final rule, the 2020 HSTT
final rule, and this final rule, NMFS may find the impact of the
authorized take from a specified activity to be negligible even if
total human-caused mortality exceeds PBR, if the authorized mortality
is less than 10 percent of PBR and management measures are being taken
to address serious injuries and mortalities from the other activities
causing mortality (i.e., other than the specified activities covered by
the incidental take authorization in consideration, including vessel
strike from other actions). When those considerations are applied in
the section 101(a)(5)(A) context here, the authorized lethal take (0.14
annually) of humpback whales from the Mainland Mexico- CA/OR/WA stock,
and blue whales from the Eastern North Pacific stock are less than 10
percent of PBR (less than 1 percent for humpback whales from the
Mainland Mexico- CA/OR/WA stock and 3 percent for blue whales from the
Eastern North Pacific stock). The authorized lethal take (0.57
annually) of fin whales from the CA/OR/WA stock is less than 10 percent
of PBR also (less than 1 percent). There are management measures in
place to address the mortality and serious injury from the activities
other than those the Navy is conducting. For the complete discussion of
how NMFS carefully considered potential mortalities from the Navy's
activities in light of PBR levels, including an explanation for why
mortality above PBR will not necessarily induce population-level non-
negligible impacts, see the discussion in this rule, the 2020 HSTT
final rule, and the 2018 HSTT final rule.
NMFS acknowledges that the removal of a reproductive female (or any
female) could be more impactful to the status of a population than the
removal of a male. However, the PBR framework that supports the
negligible impact finding inherently considers the likelihood that the
human-caused mortalities being considered may consist of a random
distribution of individuals of different sex in different life stages.
Also, beyond the low likelihood of striking a whale at all, the
likelihood of hitting a female is even lower.
It is important to note that the only change to the number of takes
proposed by the 2023 HSTT proposed rule was to the take by vessel
strike to account for new information since publication of the 2020
HSTT final rule. The 2020 HSTT final rule analyzed and authorized take
of marine mammals over a 7-year period, not 5 years as noted by the
commenter, and NMFS conducted the appropriate level of MMPA, ESA, and
NEPA analysis to comply with both statutes during the promulgation of
the 2020 HSTT final rule.
As stated in the Preliminary Analysis and Negligible Impact
Determination section of the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023) and the Analysis and Negligible Impact Determination
section of this final rule, while this rule consists of a modification
of take by M/SI by vessel strike, NMFS considers the impacts of the
entire specified activity and the total taking in the negligible impact
determination. In consideration of the total taking, including take by
mortality, Level A harassment, and Level B harassment, NMFS finds that
the incidental take from the specified activities will have a
negligible impact on all affected marine mammal species and stocks.
Consistent with 40 CFR 1502.9 and the information and analysis
contained in this final rule, the Navy and NMFS as a cooperating agency
made a determination that this final rule and the subsequent LOAs will
not result in significant impacts that were not fully considered in the
2018 HSTT FEIS/OEIS. As indicated in the 2023 HSTT proposed rule, the
Navy has made no substantial changes to the activities nor are there
significant new circumstances or information relevant to environmental
concerns or their impacts.
NMFS and the Navy reinitiated consultation under the ESA. NMFS
issued a reinitiated Biological and Conference Opinion on June 3, 2024
concluding that the issuance of the 2024 HSTT final rule and subsequent
LOAs are not likely to jeopardize the continued existence of the
threatened and endangered species under NMFS' jurisdiction and are not
likely to result in the destruction or adverse modification of critical
habitat in the HSTT Study Area. The opinion is
[[Page 4964]]
available at <a href="https://doi.org/10.25923/7y9x-vw84">https://doi.org/10.25923/7y9x-vw84</a>.
Please also see NMFS' response to Comment 7 regarding foreign
vessels.
Comment 21: Commenters stated that they oppose this proposed
promulgation of modified regulations and associated LOAs for the Navy
because it is not consistent with MMPA mandates that require NMFS to
ensure activities have no more than a negligible impact on marine
mammal species or stocks and that they have the least practicable
adverse impact on marine mammal species, stocks, and habitat. In a
related comment, a commenter stated that this rule would disregard the
previously established boundaries between the Navy and NMFS and would
also disregard the push the United States claims to have for the
protection of marine wildlife. The commenter stated that it perceives
the request to be heavily hypocritical of the same government that
implemented regulations to protect marine wildlife that teeter on the
edge of the endangered species list, to reach for an exception for its
military, and further that the proposed amendment is unethical,
hypocritical, and unnecessary.
Response: The MMPA requires NMFS to authorize the incidental take
of marine mammals by specified activities upon request if certain
findings are made (16 U.S.C. 1371(a)(5)(A)). Here, the Navy submitted
an application requesting two additional takes of large whales by
serious injury or mortality by vessel strike through modification of
the existing regulations and LOAs. As required by the MMPA, NMFS
conducted the analysis described in the 2023 HSTT proposed rule and
this final rule and made all required findings (preliminarily, in the
case of the 2023 HSTT proposed rule), including finding that the Navy's
activities will have a negligible impact on marine mammals and that the
required mitigation measures will effect the least practicable adverse
impact on marine mammals. Therefore, promulgation of this final rule is
appropriate.
Please see the Mitigation Measures section of this final rule for
additional discussion of the required mitigation measures and NMFS'
least practicable adverse impact finding.
Other Regulatory Processes
Comment 22: A commenter stated that the Navy issued an EIS
purporting to analyze the environmental impacts of its training and
testing activities in the HSTT Study Area. NMFS was a cooperating
agency for the 2018 HSTT FEIS/OEIS. The EIS considered only three
alternatives in detail: the No Action Alternative under which the
Navy's training activities would not occur; Alternative 1 that
considered fluctuations in training cycles, testing requirements, and
deployment schedules based on global demand and other factors and
included the Navy's entire suite of mitigation measures; and
Alternative 2 that considered a higher number of training exercises and
sonar hours than in Alternative 1 and included the Navy's entire suite
of mitigation measures. Alternative 1 was the preferred and adopted
alternative. The commenter stated that none of the Navy's alternatives
considered in detail an alternative that would require mandatory speed
limits to avoid collisions with endangered whales.
Response: While none of the Navy's alternatives considered in the
2018 HSTT FEIS/OEIS include mandatory vessel speed limits, the Navy
conducted an operational analysis of potential mitigation throughout
the entire Study Area to consider a wide range of mitigation options,
including but not limited to vessel speed restrictions. As discussed in
chapter 3, section 3.0.3.3.4.1 (Vessels and In-Water Devices) of the
2018 HSTT FEIS/OEIS, Navy ships transit at speeds that are optimal for
fuel conservation or to meet operational requirements. Operational
input indicated that implementing additional vessel speed restrictions
beyond what is identified in chapter 5 (Mitigation), section 5.4
(Mitigation Areas to be Implemented) of the 2018 HSTT FEIS/OEIS would
be impracticable to implement due to implications for safety and
sustainability. In its assessment of potential mitigation, the Navy
considered implementing additional vessel speed restrictions (e.g.,
expanding the 10 kn (18.5 km per hour) restriction to other
activities). The Navy determined that implementing additional vessel
speed restrictions beyond what is described in chapter 5 (Mitigation),
section 5.5.2.2 (Restricting Vessel Speed) of the 2018 HSTT FEIS/OEIS
would be impracticable due to implications for safety (the ability to
avoid potential hazards), sustainability (maintain readiness), and the
Navy's ability to continue meeting its Title 10 requirements to
successfully accomplish military readiness objectives. Additionally, as
described in chapter 5 (Mitigation), section 5.5.2.2 (Restricting
Vessel Speed) of the 2018 HSTT FEIS/OEIS, any additional vessel speed
restrictions would prevent vessel operators from gaining skill
proficiency, would prevent the Navy from properly testing vessel
capabilities, or would increase the time on station during training or
testing activities as required to achieve skill proficiency or properly
test vessel capabilities, which would significantly increase fuel
consumption. As discussed in chapter 5 (Mitigation), section 5.3.4.1
(Vessel Movement) of the 2018 HSTT FEIS/OEIS, the Navy implements
mitigation to avoid vessel strikes throughout the Study Area.
Additionally, this final rule includes two new mitigation measures
beyond that required by the 2020 HSTT final rule and modification of
two existing mitigation measures. These measures are described in
response to Comment 15 and the Mitigation Measures section of this
final rule.
Comment 23: A commenter stated that agencies must prepare
supplemental EISs if: ``(i) The agency makes substantial changes in the
proposed action that are relevant to environmental concerns; or (ii)
There are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts'' (40 CFR 1502.9(d)(1)). The commenter stated that because
these triggers have been met, it urges NMFS to prepare a supplemental
EIS on the basis of the new information that has come to light since
2018, including on the impacts of vessel strikes on large whales and on
alternatives that reduce vessel strike impacts to marine mammals.
Response: NMFS disagrees with the commenter that supplemental NEPA
evaluation is warranted. As described in the National Environmental
Policy Act section herein, consistent with 40 CFR 1502.9(d) and the
information and analysis contained in this rule, the Navy and NMFS as a
cooperating agency have determined that this final rule and any
subsequent LOAs would not result in significant impacts that were not
fully considered in the 2018 HSTT FEIS/OEIS. As indicated in this final
rule and a supplemental information report prepared by NMFS, the Navy
has made no substantial changes to the activities that are relevant to
environmental concerns; nor are there substantial new circumstances or
information about the significance of adverse effects that bear on the
analysis.
Comment 24: A commenter stated that despite the new 2020
authorization--and the additional extensive take and other impacts it
enables--NMFS has not completed new ESA consultation or a supplemental
NEPA evaluation. The Navy is operating under the 2018 BiOp and 2018
EIS. Since NMFS issued the 2018 BiOp and EIS, a slew of new
information--in addition to the expanded scope of the Navy's
[[Page 4965]]
activities--indicates that the Navy's activities in the HSTT Study Area
are likely affecting ESA-listed species to an extent not previously
considered.
In a related comment regarding ESA compliance, a commenter stated
that the proposed rule states, ``NMFS has also reinitiated consultation
internally on the issuance of these proposed, revised regulations and
LOAs under section 101(a)(5)(A) of the MMPA.'' The commenter noted that
when reinitiation is required, ``the original opinion loses its
validity, as does its accompanying incidental take statement, which
then no longer shields the action agency from penalties for takings''
(Ctr. for Biological Diversity v. BLM, 698 F.3d 1101, 1108 (9th Cir.
2012)). A commenter stated that it awaits the conclusion of this
reinitiated consultation and expects a revised biological opinion that
fully complies with the ESA's standards.
Response: NMFS has fully complied with the ESA and NEPA. NMFS
described the ESA section 7 consultation history for this action in the
Endangered Species Act section of the 2023 HSTT proposed rule and this
final rule. As described in that section, NMFS consulted internally on
the issuance of the 2018 HSTT regulations and LOAs under section
101(a)(5)(A) of the MMPA.
NMFS issued a Biological Opinion on December 10, 2018 concluding
that the issuance of the 2018 HSTT final rule and subsequent LOAs are
not likely to jeopardize the continued existence of the threatened and
endangered species under NMFS' jurisdiction and are not likely to
result in the destruction or adverse modification of critical habitat
in the HSTT Study Area. The 2018 Biological Opinion included specified
conditions under which NMFS would be required to reinitiate section 7
consultation. NMFS reviewed these specified conditions for the 2020
HSTT rulemaking and determined that reinitiation of consultation was
not warranted. The incidental take statement that accompanied the 2018
Biological Opinion was amended to cover the 7-year period of the 2020
HSTT rule. The 2018 Biological Opinion for this action is available at
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>.
The 2018 Biological Opinion reinitiation clause (2), states that
formal consultation should be reinitiated if ``new information reveals
effects of the agency action that may affect ESA-listed species or
critical habitat in a manner or to an extent not previously
considered.'' Given the new information regarding the recent occurrence
of large whale strikes by naval vessels in the southern California
portion of the HSTT Study Area, as described herein, the Navy has
reinitiated consultation with NMFS pursuant to section 7 of the ESA for
HSTT Study Area activities, and NMFS has also reinitiated consultation
internally on the issuance of the revised regulations and LOAs under
section 101(a)(5)(A) of the MMPA. On June 3, 2024, NMFS issued a 2024
reinitiated Biological and Conference Opinion concluding that the
issuance of the rule and subsequent LOAs is not likely to jeopardize
the continued existence of the threatened and endangered species under
NMFS' jurisdiction and are not likely to result in the destruction or
adverse modification of critical habitat in the HSTT Study Area. The
2024 reinitiated Biological and Conference Opinion for this action is
available at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>.
NMFS is aware of the statement in Ctr. for Biological Diversity v.
BLM, 698 F.3d 1101, 1108 (9th Cir. 2012) referenced by the commenter.
NMFS' position is that a biological opinion, including its Incidental
Take Statement, for which formal consultation has been re-initiated
remains valid and effective during the consultation and until a new
biological opinion is issued. When the new biological opinion with a
new ITS is issued, it supersedes and replaces the previous opinion and
ITS.
Please see NMFS' response to Comment 23 regarding NEPA compliance.
Changes From the Proposed Rule to the Final Rule
NMFS has added two additional reporting requirements since
publication of the 2023 HSTT proposed rule. First, the Navy's annual
HSTT Training Exercise Report and Testing Activity Report must include
information that tracks the Navy's implementation of the new SOCAL
large whale aggregation real-time reporting mitigation measure. The
report must include the following information for each instance that an
aggregation of large whales is reported: (1) the date, time and general
location (e.g., approximately 10-12 nmi SE of San Clemente Island) of
the whales when the aggregation was first sighted; (2) the total number
of whales observed within 1 nmi of a Navy vessel that make up the
aggregation; and (3) the approximate distance (or distances if more
than one group of whales is sighted) of the vessel from the whales in
the aggregation when the whales were first sighted. To the extent
practicable, this information should be provided in the Navy's
unclassified version of these reports.
Second, the Navy's annual HSTT Training Exercise Report and Testing
Activity Report must include a confirmation that foreign military use
of sonar and explosives, when such militaries are participating in a
U.S. Navy-led exercise or event, combined with the U.S. Navy's use of
sonar and explosives, would not cause exceedance of the analyzed levels
(within each NAEMO modeled sonar and explosive bin) used for estimating
predicted impacts, which formed the basis of the acoustic impacts
effects analysis used to estimate take in this final rule.
NMFS has also made a non-substantive name change in the final rule.
Ziphius cavirostris has multiple common names. In the 2018 HSTT final
rule, 2020 HSTT final rule, and 2023 HSTT proposed rule, NMFS used the
common name Cuvier's beaked whale. In this final rule, NMFS uses the
common name goose-beaked whale instead.
Last, NMFS made several non-substantive changes to the regulations
to add clarity and improve readability.
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 HSTT Study Area are presented in table 1
along with the best/minimum abundance estimate and associated
coefficient of variation value. Consistent with the 2018 HSTT final
rule and 2020 HSTT final rule, the Navy anticipates the take of
individuals from 38 marine mammal species by Level A harassment and
Level B harassment incidental to training and testing activities from
the use of sonar and other transducers, in-water detonations, air guns,
and impact pile driving/vibratory extraction activities. As described
in detail later, serious injury or mortality of six species is also
analyzed and authorized. Two marine mammal species, the Hawaiian monk
seal and the Main Hawaiian Islands Insular DPS of false killer whale,
have critical habitat designated under the ESA (16 U.S.C. 1531 et seq.)
in the HSTT Study Area.
In the 2018 HSTT proposed rule and 2018 HSTT final rule, we
presented a detailed discussion of marine mammals and their occurrence
in the HSTT Study Area, inclusive of important marine mammal habitat
(e.g., ESA-designated critical habitat), BIAs, national marine
sanctuaries (NMSs), and unusual
[[Page 4966]]
mortality events (UMEs). Please see these rules and the 2017 and 2019
Navy applications for additional information beyond what is provided
herein. While there have been some minor changes described here, there
have been no changes to important marine mammal habitat, NMSs, or ESA-
designated critical habitat since the issuance of the 2018 HSTT final
rule that change our determination of which species or stocks have the
potential to be affected by the Navy's activities or the information in
the Description of Marine Mammals and Their Habitat in the Area of the
Specified Activities section in the 2019 HSTT proposed rule and 2020
HSTT final rule. Therefore, the information presented in those sections
of the 2019 HSTT proposed rule and 2020 HSTT final rule remains current
and valid with the exception of the information about UMEs, BIAs, and
revised humpback whale stock structures, discussed below.
On April 21, 2021, NMFS designated critical habitat for the
endangered Western North Pacific DPS, the endangered Central America
DPS, and the threatened Mexico DPS of humpback whales (86 FR 21082).
Areas proposed as critical habitat include specific marine areas
located off the coasts of California, Oregon, Washington, and Alaska.
None of the designated critical habitat overlaps with the HSTT Study
Area. One of the proposed areas, critical habitat Unit 19, would have
overlapped with the SOCAL range in the HSTT Study Area but was excluded
after consideration of potential national security and economic impacts
of designation. NMFS, in the final rule designating critical habitat
for humpback whales, identified 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, as an essential habitat feature. NMFS, through a
critical habitat review team (CHRT), also considered inclusion of
migratory corridors and passage features, as well as sound and the
soundscape, as essential habitat features. NMFS did not include either
in the final critical habitat, however, as the CHRT concluded that the
best available science did not allow for identification of any
consistently used migratory corridors or definition of any physical,
essential migratory or passage conditions for whales transiting between
or within habitats of the three DPSs. The best available science also
currently does not enable NMFS to identify particular sound levels or
to describe a certain soundscape feature that is essential to the
conservation of humpback whales. Regardless of whether critical habitat
is designated for a particular area, NMFS has considered all applicable
information regarding marine mammals and their habitat in the analysis
supporting these final regulations.
NMFS has reviewed the 2023 SARs (Carretta et al. 2024, Young et al.
2024). For all species except humpback whale, NMFS determined that
neither the SARs nor any other new information changes our
determination in the 2020 HSTT final rule of which species or stocks
have the potential to be affected by the Navy's activities. For
humpback whale, the 2023 final SARs include a revision to the humpback
whale stock structure in the Pacific Ocean. In the 2020 HSTT final
rule, NMFS authorized take of the CA/OR/WA stock and Central North
Pacific stock of humpback whale. Given the revised stock structure, in
this final rule, NMFS has reanalyzed the potential for take of each
stock of humpback whale and determined that the Central America/
Southern Mexico-CA/OR/WA, Mainland Mexico--CA/OR/WA stock, and Hawaii
stocks are likely to be taken by the Navy's activities. Please refer to
the 2023 Alaska and Pacific Ocean SARs for additional information about
these new stocks.
The species considered but not carried forward for analysis are two
American Samoa stocks of spinner dolphins--(1) the Kure and Midway
stock and (2) the Pearl and Hermes stock. There is no potential for
overlap with any stressors from Navy activities and therefore there
would be no incidental takes, therefore, these stocks are not
considered further.
Table 1--Marine Mammal Occurrence Within the HSTT Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Status Stock abundance
Common name Scientific name Stock --------------------------------- Occurrence Seasonal (CV)/minimum
MMPA ESA absence population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... Balaenoptera Eastern North Strategic, Endangered Southern - 1,898 (0.085)/
musculus. Pacific. Depleted California. 1,767.
Central North Strategic, Endangered Hawaii.......... Summer 133 (1.09)/63.
Pacific. Depleted
Bryde's whale................. Balaenoptera Eastern Tropical - - Southern - unknown.
brydei/edeni. Pacific. California.
Hawaii.......... - - Hawaii.......... - 791 (0.29)/623.
Fin whale..................... Balaenoptera CA/OR/WA........ Strategic, Endangered Southern - 11,065 (0.405)/
physalus. Depleted California. 7,970.
Hawaii.......... Strategic, Endangered Hawaii.......... Summer 203 (0.99)/101.
Depleted
Humpback whale................ Megaptera Central America/ Strategic Endangered \1\ Southern Winter 1,496 (0.171)/
novaeangliae. Southern California. 1,284.
Mexico--CA/OR/
WA.
Mainland Mexico-- Strategic Threatened \1\ Southern Winter 3,477 (0.101)/
CA/OR/WA. California. 3,185.
Hawai[revaps]i.. - - \1\ Hawaii.......... Summer 11,278 (0.56)/
7,265.
Minke whale................... Balaenoptera CA/OR/WA........ - - Southern - 915 (0.792)/509.
acutorostrata. California.
Hawaii.......... - - Hawaii.......... Summer 438 (1.05)/212.
Sei whale..................... Balaenoptera Eastern North Strategic, Endangered Southern - 864 (0.40)/625.
borealis. Pacific. Depleted California.
Hawaii.......... Strategic, Endangered Hawaii.......... Summer 391 (0.9)/204.
Depleted
Gray whale.................... Eschrichtius Eastern North - - Southern - 26,960 (0.05)/
robustus. Pacific. California. 25,849.
Western North Strategic, Endangered Southern - 290 (NA)/271.
Pacific. Depleted California.
[[Page 4967]]
Sperm whale................... Physeter CA/OR/WA........ Strategic, Endangered Southern - 2,606 (0.135)/
macrocephalus. Depleted California. 2,011.
Hawaii.......... Strategic, Endangered Hawaii.......... - 5,707 (0.23)/
Depleted 4,486.
Pygmy sperm whale............. Kogia breviceps.. CA/OR/WA........ - - Southern Winter and 4,111 (1.12)/
California. Fall 1,924.
Hawaii.......... - - Hawaii.......... - 42,083 (0.64)
25,695.
Dwarf sperm whale............. Kogia sima....... CA/OR/WA........ - - Southern - unknown.
California.
Hawaii.......... - - Hawaii.......... - unknown.
Baird's beaked whale.......... Berardius bairdii CA/OR/WA........ - - Southern - 1,363
California. (0.53)/894.
Blainville's beaked whale..... Mesoplodon Hawaii.......... - - Hawaii.......... - 1,132 (0.99)/
densirostris. 564.
Goose-beaked whale \2\........ Ziphius CA/OR/WA........ - - Southern - 5,454 (0.27)/
cavirostris. California. 4,214.
Hawaii.......... - - Hawaii.......... - 4,431 0.41/
3,180.
Longman's beaked whale........ Indopacetus Hawaii.......... - - Hawaii.......... - 2,550 (0.67)/
pacificus. 1,527.
Mesoplodont beaked whales..... Mesoplodon spp... CA/OR/WA........ - - Southern - 3,044 (0.54)/
California. 1,967.
Common Bottlenose dolphin..... Tursiops California - - Southern - 453 (0.06)/346.
truncatus. Coastal. California.
CA/OR/WA - - Southern - 3,477 (0.696)/
Offshore. California. 2,048.
Hawaii Pelagic.. - - Hawaii.......... - unknown.
Kauai and Niihau - - Hawaii.......... - 112 (0.24)/92.
Oahu............ - - Hawaii.......... - 112 (0.17)/97.
Maui Nui \3\.... - - Hawaii.......... - 64 (0.15)/56.
Hawaii Island... - - Hawaii.......... - 136 (0.43)/96.
False killer whale............ Pseudorca Main Hawaiian Strategic, Endangered Hawaii.......... - 167 (0.14)/149.
crassidens. Islands Insular Depleted
\4\.
Hawaii Pelagic.. - - Hawaii.......... - 5,528 (0.35)/
4,152.
Northwestern - - Hawaii.......... .............. 477 (1.71)/178.
Hawaiian
Islands.
Fraser's dolphin.............. Lagenodelphis Hawaii.......... .............. ............... Hawaii.......... - 40,960 (0.7)/
hosei. 24,068.
Killer whale.................. Orcinus orca..... Eastern North - - Southern - 300 (0.1)/276.
Pacific California.
Offshore.
West Coast - - Southern - 349 (N/A)/349.
Transient. California.
Hawaii.......... - - Hawaii.......... - 161 (1.06)/78.
Long-beaked common dolphin.... Delphinus California...... - - Southern - 83,379 (0.216)/
capensis. California. 69,636.
Melon-headed whale............ Peponocephala Hawaiian Islands - - Hawaii.......... - 40,647 (0.74)/
electra. 23,301.
Kohala Resident. - - Hawaii.......... - unknown.
Northern right whale dolphin.. Lissodelphis CA/OR/WA........ - - Southern - 29,285 (0.72)/
borealis. California. 17,024.
Pacific white-sided dolphin... Lagenorhynchus CA/OR/WA........ - - Southern - 34,999 (0.222)/
obliquidens. California. 29,090.
Pantropical spotted dolphin... Stenella Oahu............ - - Hawaii.......... - unknown.
attenuata.
Maui Nui \3\.... - - Hawaii.......... - unknown.
Hawaii Island... - - Hawaii.......... - unknown.
Hawaii Pelagic.. - - Hawaii.......... - 67,313 (0.27)/
53,839.
Pygmy killer whale............ Feresa attenuata. Tropical........ - - Southern Winter & unknown.
California. Spring
Hawaii.......... - - Hawaii.......... - 10,328 (0.75)/
5,885.
Risso's dolphins.............. Grampus griseus.. CA/OR/WA........ - - Southern - 6,336 (0.32)/
California. 4,817.
Hawaii.......... - - Hawaii.......... - 6,979 (0.29)/
5,283.
Rough-toothed dolphin......... Steno bredanensis NSD \5\......... - - Southern - unknown.
California.
Hawaii.......... - - Hawaii.......... - 83,915 (0.49)/
56,782.
Short-beaked common dolphin... Delphinus delphis CA/OR/WA........ - - Southern - 1,056,308 (0.21)/
California. 888,971.
Short-finned pilot whale...... Globicephala CA/OR/WA........ - - Southern - 836 (0.79)/466.
macrorhynchus. California.
Hawaii.......... - - Hawaii.......... - 19,242 (0.23)/
15,894.
Spinner dolphin............... Stenella Hawaii Pelagic.. - - Hawaii.......... - unknown.
longirostris.
Hawaii Island... - - Hawaii.......... - 665 (0.09)/617.
[[Page 4968]]
Oahu and 4- - - Hawaii.......... - unknown.
Islands.
Kauai and Niihau - - Hawaii.......... - unknown.
Kure and Midway. - - Hawaii.......... - unknown.
Pearl and Hermes - - Hawaii.......... - unknown.
Striped dolphin............... Stenella CA/OR/WA........ - - Southern - 29,988 (0.3)/
coeruleoalba. California. 23,448.
Hawaii.......... - - Hawaii.......... - 64,343 (0.28)/
51,055.
Dall's porpoise............... Phocoenoides CA/OR/WA........ - - Southern - 16,498 (0.61)/
dalli. California. 10,286.
Harbor seal................... Phoca vitulina... California...... - - Southern - 30,968 (NA)/
California. 27,348.
Hawaiian monk seal............ Neomonachus Hawaii.......... Strategic, Endangered Hawaii.......... - 1,564 (0.05)/
schauinslandi. Depleted 1,444.
Northern elephant seal........ Mirounga California...... - - Southern - 187,386 (NA)/
angustirostris. California. 85,369.
California sea lion........... Zalophus U.S. Stock...... - - Southern - 257,606 (NA)/
californianus. California. 233,515.
Guadalupe fur seal............ Arctocephalus Mexico to Strategic, Threatened Southern - 34,187 (NA)/
townsendi. California. Depleted California. 31,019.
Northern fur seal............. Callorhinus California...... Depleted - Southern - 14,050 (NA)/
ursinus. California. 7,524.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: A ``-'' indicates that this column does not apply.
\1\ The Mainland Mexico--CA/OR/WA stock and the Mexico--North Pacific stock (which does not occur in the HSTT Study Area) of humpback whale comprise the
Mexico DPS. The Hawai[revaps]i stock comprises the Hawai[revaps]i DPS. The Central America/Southern Mexico--CA/OR/WA stock comprises the Central
America DPS.
\2\ Ziphius cavirostris has multiple common names. In the 2018 HSTT final rule, 2020 HSTT final rule, and 2023 HSTT proposed rule, NMFS used the common
name Cuvier's beaked whale. In this final rule, NMFS uses the common name goose-beaked whale instead.
\3\ The ``4-Islands'' stocks of common bottlenose dolphin and pantropical spotted dolphin are now the ``Maui Nui'' stocks.
\4\ NMFS relied on the 2022 final SAR for this stock.
\5\ NSD--No stock designation. Rough-toothed dolphin has a range known to include the waters off Southern California, but there is no recognized stock
or data available for the U.S. West Coast.
Unusual Mortality Events
An UME is defined under section 410(6) of the MMPA as a stranding
that is unexpected, involves a significant die-off of any marine mammal
population, and demands immediate response. From 1991 to the present,
there have been 17 formally recognized UMEs affecting marine mammals in
California and Hawaii and involving species under NMFS' jurisdiction.
At the time of publication of the 2023 HSTT proposed rule, there
was an active UME for gray whales which NMFS fully considered in its
analysis (88 FR 68290, October 3, 2023). This UME was closed on
November 9, 2023. The UME involved 690 gray whale strandings, including
347 in the United States, 316 in Mexico, and 27 in Canada. Strandings
occurred from Alaska to Mexico along the west coast of North America,
including in the whale's wintering, migratory, and feeding areas. The
Investigative Team concluded that the preliminary cause of the UME was
localized ecosystem changes in the whale's Subarctic and Arctic feeding
areas that led to changes in food, malnutrition, decreased birth rates,
and increased mortality all documented during the UME. Please see
<a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2023-eastern-north-pacific-gray-whale-ume-closed">https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2023-eastern-north-pacific-gray-whale-ume-closed</a> for additional information
on this UME.
Biologically Important Areas
Kratofil et al. (2023) identified updated BIAs in Hawaii. The HSTT
Study Area overlaps the updated BIAs for small and resident populations
of the following species in Hawaii: spinner dolphin, short-finned pilot
whale, rough-toothed dolphin, pygmy killer whale, pantropical spotted
dolphin, melon-headed whale, false killer whale, dwarf sperm whale,
goose-beaked whale, common bottlenose dolphin, and Blainville's beaked
whale. Further, the HSTT Study Area overlaps updated BIAs for humpback
whale reproduction in Hawaii. The updated BIAs overlap critical Navy
training and testing areas within the HSTT Study Area, including most
of the internal Navy operating areas. Please see Kratofil et al. (2023)
for additional details about the BIAs.
Since publication of the 2023 HSTT proposed rule, Calambokidis et
al. (2024) identified updated BIAs on the West Coast of the U.S. The
HSTT Study Area overlaps feeding BIAs for blue whale and fin whale in
SOCAL. Additionally, it overlaps a reproductive BIA as well as
northbound and southbound migratory BIAs for gray whale. Please see
Calambokidis et al. (2024) for additional details about the BIAs.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Analysis and Negligible Impact
Determination section considers the content of this section, the
Estimated Take section, and the Mitigation Measures section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and whether those
impacts are reasonably expected to, or reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival. In the Potential Effects of Specified
Activities on Marine Mammals and Their Habitat section of the 2018 HSTT
proposed and final rules, and as updated by the 2020 HSTT final rule,
NMFS provided a description of the ways marine mammals may be affected
by the same activities that the Navy will be conducting during the 7-
year period analyzed in this rulemaking in the form of serious injury
or mortality, physical trauma, sensory impairment (permanent and
temporary threshold shifts and acoustic masking),
[[Page 4969]]
physiological responses (particularly stress responses), behavioral
disturbance, or habitat effects. Further, in the 2023 HSTT proposed
rule, we summarized any new relevant information from the scientific
literature since publication of the 2020 HSTT final rule. We do not
repeat the information here, all of which remains current and
applicable, but refer the reader to those rules and the 2018 HSTT FEIS/
OEIS (chapter 3, section 3.7 Marine Mammals), which NMFS participated
in the development of via our cooperating agency status and adopted to
meet our NEPA requirements.
In the Potential Effects of Specified Activities on Marine Mammals
and Their Habitat section of the 2018 HSTT final rule, we stated that
it has been speculated for some time that beaked whales might have
unusual sensitivities to sonar sound due to their likelihood of
stranding in conjunction with MFAS use, although few definitive causal
relationships between MFAS use and strandings have been documented, and
no such findings have been documented with Navy use in Hawaii and
southern California. On March 25, 2022, a beaked whale (species
unknown) stranded
[…truncated; see source link]Indexed from Federal Register on January 16, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.