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, 41780-41904 [2020-14181]
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national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities. In case of problems
accessing these documents, please use
the contact listed here (see FOR FURTHER
INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT:
Wendy Piniak, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 218
[Docket No. 200625–0169]
RIN 0648–BJ06
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training
and Testing Activities in the HawaiiSouthern California Training and
Testing Study Area
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; notification of
issuance of Letters of Authorization.
AGENCY:
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 HawaiiSouthern California Training and
Testing (HSTT) Study Area over the
course of seven years, effectively
extending the time period from
December 20, 2023, to December 20,
2025. In August 2018, the MMPA was
amended by the John S. McCain
National Defense Authorization Act
(NDAA) for Fiscal Year 2019 to allow
for seven-year authorizations for
military readiness activities, as
compared to the previously allowed five
years. The Navy’s activities qualify as
military readiness activities pursuant to
the MMPA as amended by the NDAA
for Fiscal Year 2004. These regulations,
which allow for the issuance of Letters
of Authorization (LOAs) for the
incidental take of marine mammals
during the described activities and
timeframes, prescribe the permissible
methods of taking and other means of
effecting the least practicable adverse
impact on marine mammal species or
stocks and their habitat, and establish
requirements pertaining to the
monitoring and reporting of such taking.
DATES: Effective from July 10, 2020, to
December 20, 2025.
ADDRESSES: Copies of the Navy’s
applications, NMFS’ proposed rule for
these regulations, NMFS’ proposed and
final rules and subsequent LOAs for the
associated five-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: www.fisheries.noaa.gov/
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SUMMARY:
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Purpose of Regulatory Action
These regulations, issued under the
authority of the MMPA (16 U.S.C. 1361
et seq.), extend the framework for
authorizing the take of marine mammals
incidental to the Navy’s training and
testing activities (which qualify as
military readiness activities) from the
use of sonar and other transducers, inwater detonations, air guns, impact pile
driving/vibratory extraction, and the
movement of vessels throughout the
HSTT Study Area. The HSTT Study
Area is comprised of established
operating and warning areas across the
north-central Pacific Ocean, from the
mean high tide line in Southern
California west to Hawaii and the
International Date Line. The Study Area
includes the at-sea areas of three
existing range complexes (the Hawaii
Range Complex, the Southern California
(SOCAL) Range Complex, and the Silver
Strand Training Complex), and overlaps
a portion of the Point Mugu Sea Range
(PMSR). Also included in the Study
Area are Navy pierside locations in
Hawaii and Southern California, Pearl
Harbor, San Diego Bay, and the transit
corridor 1 on the high seas where sonar
training and testing may occur.
NMFS received an application from
the Navy requesting to extend NMFS’
existing MMPA regulations (50 CFR part
218, subpart H; hereafter ‘‘2018 HSTT
regulations’’) that authorize the take of
marine mammals incidental to Navy
training and testing activities conducted
in the HSTT Study Area to cover seven
years of the Navy’s activities, instead of
five. Take is anticipated to occur by
Level A harassment and Level B
harassment as well as a very small
number of serious injuries or mortalities
incidental to the Navy’s training and
testing activities.
1 Vessel transit corridors are the routes typically
used by Navy assets to traverse from one area to
another. The route depicted in Figure 2–1 of the
Navy’s March 2019 rulemaking/LOA application is
the shortest route between Hawaii and Southern
California, making it the quickest and most fuel
efficient. The depicted vessel transit corridor is
notional and may not represent the actual routes
used by ships and submarines transiting from
Southern California to Hawaii and back. Actual
routes navigated are based on a number of factors
including, but not limited to, weather, training, and
operational requirements.
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Section 101(a)(5)(A) of the MMPA (16
U.S.C. 1371(a)(5)(A)) directs the
Secretary of Commerce (as delegated to
NMFS) to allow, upon request, the
incidental, but not intentional taking of
small numbers of marine mammals by
U.S. citizens who engage in a specified
activity (other than commercial fishing)
within a specified geographical region
if, after notice and public comment, the
agency makes certain findings and
issues regulations that set forth
permissible methods of taking pursuant
to that activity, as well as monitoring
and reporting requirements. Section
101(a)(5)(A) of the MMPA and the
implementing regulations at 50 CFR part
216, subpart I, provide the legal basis for
issuing this final rule and the
subsequent LOAs. As directed by this
legal authority, this final rule contains
mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within
the Final Rule
Following is a summary of the major
provisions of this final rule regarding
the Navy’s activities. Major provisions
include, but are not limited to:
• The use of defined powerdown and
shutdown zones (based on activity);
• Measures to reduce or eliminate the
likelihood of ship strikes;
• Activity limitations in certain areas
and times that are biologically
important (i.e., for foraging, migration,
reproduction) for marine mammals;
• Implementation of a Notification
and Reporting Plan (for dead, live
stranded, or marine mammals struck by
a vessel); and
• Implementation of a robust
monitoring plan to improve our
understanding of the environmental
effects resulting from the Navy training
and testing activities.
Additionally, the rule includes an
adaptive management component that
allows for timely modification of
mitigation or monitoring measures
based on new information, when
appropriate.
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA direct the Secretary of
Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but
not intentional, taking of small numbers
of marine mammals by U.S. citizens
who engage in a specified activity (other
than commercial fishing) within a
specified geographical region if certain
findings are made and either regulations
are issued or, if the taking is limited to
harassment, a notice of a proposed
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authorization is provided to the public
for review and the opportunity to
submit comments.
An authorization for incidental
takings shall be granted if NMFS finds
that the taking will have a negligible
impact on the species or stocks and will
not have an unmitigable adverse impact
on the availability of the species or
stocks for taking for subsistence uses
(where relevant). Further, NMFS must
prescribe the permissible methods of
taking and other means of effecting the
least practicable adverse impact on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stocks for
taking for certain subsistence uses
(referred to in this rule as ‘‘mitigation
measures’’); 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 NDAA for Fiscal Year 2004 (2004
NDAA) (Pub. L. 108–136) amended
section 101(a)(5) of the MMPA to
remove the ‘‘small numbers’’ and
‘‘specified geographical region’’
provisions indicated above and
amended the definition of ‘‘harassment’’
as applied to a ‘‘military readiness
activity.’’ The definition of harassment
for military readiness activities (section
3(18)(B) of the MMPA) is: (i) Any act
that injures or has the significant
potential to injure a marine mammal or
marine mammal stock in the wild (Level
A Harassment); or (ii) Any act that
disturbs or is likely to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of natural
behavioral patterns, including, but not
limited to, migration, surfacing, nursing,
breeding, feeding, or sheltering, to a
point where such behavioral patterns
are abandoned or significantly altered
(Level B Harassment). In addition, the
2004 NDAA amended the MMPA as it
relates to military readiness activities
such that least practicable adverse
impact shall include consideration of
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
More recently, section 316 of the
NDAA for Fiscal Year 2019 (2019
NDAA) (Pub. L. 115–232), signed on
August 13, 2018, amended the MMPA to
allow incidental take rules for military
readiness activities under section
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101(a)(5)(A) to be issued for up to seven
years. Prior to this amendment, all
incidental take rules under section
101(a)(5)(A) were limited to five years.
Summary of Request
On December 27, 2018, NMFS
published a five-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 seven years instead of the
previous five 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 regulations and
associated LOAs such that they would
cover take incidental to seven years of
training and testing activities instead of
five, extending the expiration date from
December 20, 2023 to December 20,
2025.
In its 2019 application, the Navy
proposed no changes to the nature of the
specified activities covered by the 2018
HSTT final rule, the level of activity
within and between years will be
consistent with that previously analyzed
in the 2018 HSTT final rule, and all
activities will be conducted within the
same boundaries of the HSTT Study
Area identified in the 2018 HSTT final
rule. Therefore, the training and testing
activities (e.g., equipment and sources
used, exercises conducted) and the
mitigation, monitoring, and nearly all
reporting measures are identical to those
described and analyzed in the 2018
HSTT final rule. The only changes
included in the Navy’s request were to
conduct those same activities in the
same region for an additional two years.
In its request, the Navy included all
information necessary to identify the
type and amount of incidental take that
may occur in the two additional years
so NMFS could determine whether the
analyses and conclusions regarding the
impacts of the proposed activities on
marine mammal species and stocks
previously reached for five years of
activities remain applicable for seven
years of identical activity.
The purpose of the Navy’s training
and testing activities is to ensure that
the Navy meets its mission mandated by
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federal law (10 U.S.C. 8062), which is to
maintain, train, and equip combat-ready
naval forces capable of winning wars,
deterring aggression, and maintaining
freedom of the seas. The Navy executes
this responsibility by establishing and
executing training programs, including
at-sea training and exercises, and
ensuring naval forces have access to the
ranges, operating areas (OPAREAs), and
airspace needed to develop and
maintain skills for conducting naval
activities. The Navy’s mission is
achieved in part by conducting training
and testing within the HSTT Study
Area.
The Navy’s March 11, 2019,
rulemaking and LOA extension
application (hereafter ‘‘2019 Navy
application’’) reflects the same
compilation of training and testing
activities presented in the Navy’s
October 13, 2017, initial rulemaking and
LOA application (hereafter ‘‘2017 Navy
application’’) and the 2018 HSTT
regulations that were subsequently
promulgated, which can be found at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities. These activities are
deemed by the Navy necessary to
accomplish military readiness
requirements and are anticipated to
continue into the reasonably foreseeable
future. The 2019 Navy application and
this rule cover training and testing
activities that will occur over seven
years, including the five years already
authorized under the 2018 HSTT
regulations, with the regulations valid
from the publication date of this final
rule through December 20, 2025.
Summary of the Regulations
NMFS is extending the incidental take
regulations and associated LOAs
through December 20, 2025, to cover the
same Navy activities covered by the
2018 HSTT regulations. The 2018 HSTT
final rule was recently published and its
analysis remains current and valid. In
its 2019 application, the Navy proposed
no changes to the nature (e.g.,
equipment and sources used, exercises
conducted) or level of the specified
activities within or between years or to
the boundaries of the HSTT Study Area.
The mitigation, monitoring, and nearly
all reporting measures (described below)
will be identical to those described and
analyzed in the 2018 HSTT final rule.
The regulatory language included at the
end of this final rule, which will be
published at 50 CFR part 218, subpart
H, also is the same as the HSTT 2018
regulations, except for a small number
of technical changes. No new
information has been received from the
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Navy, or otherwise become available to
NMFS, since publication of the 2018
HSTT final rule that significantly
changes the analyses supporting the
2018 findings. Where there is any new
information pertinent to the
descriptions, analyses, or findings
required to authorize incidental take for
military readiness activities under
MMPA section 101(a)(5)(A), that
information is provided in the
appropriate sections below.
Because the activities included in the
2019 Navy application have not
changed and the analyses and findings
included in the documents provided
and produced in support of the recently
published 2018 HSTT final rule remain
current and applicable, this final rule
relies heavily on and references to the
applicable information and analyses in
those documents. Below is a list of the
primary 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:
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities and https://www.hstteis.com/.
• NMFS June 26, 2018, HawaiiSouthern California Training and
Testing (HSTT) proposed rule (83 FR
29872; hereafter ‘‘2018 HSTT proposed
rule’’);
• NMFS December 27, 2018, HawaiiSouthern California Training and
Testing (HSTT) final rule (83 FR 66846;
hereafter ‘‘2018 HSTT final rule’’);
• NMFS September 13, 2019, HawaiiSouthern California Training and
Testing (HSTT) proposed rule (84 FR
48388; hereafter ‘‘2019 HSTT proposed
rule’’);
• Navy October 13, 2017, MMPA
rulemaking and LOA application
(hereafter ‘‘2017 Navy application’’);
• Navy March 11, 2019, MMPA
rulemaking and LOA extension
application (hereafter ‘‘2019 Navy
application’’); and
• October 26, 2018, Hawaii-Southern
California Training and Testing (HSTT)
Final Environmental Impact Statement/
Overseas Environmental Impact
Statement (FEIS/OEIS) (hereafter ‘‘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. A small number of
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serious injuries or mortalities are also
possible from vessel strikes or exposure
to explosive detonations. Detailed
descriptions of these activities are
provided in Chapter 2 of the 2018 HSTT
FEIS/OEIS and in the 2017 and 2019
Navy applications.
Overview of Training and Testing
Activities
The Navy routinely trains and tests in
the HSTT Study Area in preparation for
national defense missions. Training and
testing activities and components
covered in the 2019 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. Each military training
and testing activity described meets
mandated Fleet requirements to deploy
combat-ready forces. The Navy
proposed no changes to the specified
activities described and analyzed in the
2018 HSTT final rule. The boundaries of
the HSTT Study Area (see Figure 2–1 of
the 2019 Navy application); the training
and testing activities (e.g., equipment
and sources used, exercises conducted);
manner of or amount of vessel
movement; and standard operating
procedures presented in this final rule
are identical to those described and
analyzed in the 2018 HSTT final rule.
Dates and Duration
The specified activities will occur at
any time during the seven-year period of
validity of the regulations. The number
of training and testing activities are
described in the Detailed Description of
the Specified Activities section (Tables 1
through 5).
Geographical Region
The geographic extent of the HSTT
Study Area is identical to that described
in the 2018 HSTT final rule. The HSTT
Study Area (see Figure 2–1 of the 2019
Navy application) is comprised of
established operating and warning areas
across the north-central Pacific Ocean,
from the mean high tide line in
Southern California west to Hawaii and
the International Date Line. The Study
Area includes the at-sea areas of three
existing range complexes (the Hawaii
Range Complex, the Southern California
(SOCAL) Range Complex, and the Silver
Strand Training Complex), and overlaps
a portion of the Point Mugu Sea Range
(PMSR). Also included in the Study
Area are Navy pierside locations in
Hawaii and Southern California, Pearl
Harbor, San Diego Bay, and the transit
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corridor 2 on the high seas where sonar
training and testing may occur.
A Navy range complex consists of
geographic areas that encompass a water
component (above and below the
surface) and airspace, and may
encompass a land component where
training and testing of military
platforms, tactics, munitions,
explosives, and electronic warfare
systems occur. Range complexes
include established OPAREAs, which
may be further divided to provide better
control of the area for safety reasons.
Additional detail on range complexes
and testing ranges was provided in the
Duration and Location section of the
2018 HSTT proposed rule; please see
the 2018 HSTT proposed rule or the
2017 Navy application for more
information and maps.
Description of Acoustic and Explosive
Stressors
The Navy uses a variety of sensors,
platforms, weapons, and other devices,
including ones used to ensure the safety
of Sailors and Marines, to meet its
statutory mission. Training and testing
with these systems may introduce
acoustic (sound) energy or shock waves
from explosives into the environment.
The specific components that could act
as stressors by having direct or indirect
impacts on the environment are
described in detail in the Description of
Acoustic and Explosive Stressors
section of the 2018 HSTT final rule and
Chapter 2 (Description of Proposed
Action and Alternatives) of the 2018
HSTT FEIS/OEIS. The Navy proposes
no changes to the nature of the specified
activities and, therefore, the acoustic
and explosive stressors are identical to
those described and analyzed in the
2018 HSTT final rule.
Other Stressor—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.
Navy vessels transit at speeds that are
optimal for fuel conservation or to meet
training and testing requirements. The
average speed of large Navy ships ranges
between 10 and 15 knots and
2 Vessel transit corridors are the routes typically
used by Navy assets to traverse from one area to
another. The route depicted in Figure 2–1 of the
2019 Navy application is the shortest route between
Hawaii and Southern California, making it the
quickest and most fuel efficient. The depicted
vessel transit corridor is notional and may not
represent the actual routes used by ships and
submarines transiting from Southern California to
Hawaii and back. Actual routes navigated are based
on a number of factors including, but not limited
to, weather, training, and operational requirements.
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submarines generally operate at speeds
in the range of 8 to 13 knots, while a few
specialized vessels can travel at faster
speeds. By comparison, this is slower
than most commercial vessels where
full speed for a container ship is
typically 24 knots (Bonney and Leach,
2010), with average vessel speeds along
the California coast recently reported to
be between 14 and 18 knots (Moore et
al., 2018).
Should a vessel strike occur, it would
likely result in incidental take from
serious injury and/or mortality and,
accordingly, for the purposes of the
analysis we assume that any ship 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 or amount of
vessel movement, or standard operating
procedures described in the 2018 HSTT
final rule. Therefore, the description of
vessel strikes as a stressor is the same
as that presented in the Other Stressor—
Vessel Strike sections of the 2018 HSTT
proposed rule and 2018 HSTT final rule.
Detailed Description of the Specified
Activities
The Navy’s specified activities are
presented and analyzed as a
representative year of training to
account for the natural fluctuation of
training cycles and deployment
schedules in any seven-year period. In
the 2018 HSTT final rule, NMFS
analyzed the potential impacts of these
activities (i.e., incidental take of marine
mammals) based on the Navy
conducting three years of a
representative level of activity and two
years of a maximum level of activity.
For the purposes of this rulemaking, the
Navy presented and NMFS analyzed
activities based on the additional two
years of training and testing consisting
of an additional one year of a maximum
level of activity and one year of a
representative level of activity
consistent with the pattern set forth in
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the 2018 HSTT final rule, the 2018
HSTT FEIS/OEIS, and the 2017 Navy
application.
Training Activities
The number of planned training
activities that could occur annually and
the duration of those activities remains
identical to those presented in Table 4
of the 2018 HSTT final rule, and are not
repeated here. The number of planned
training activities that could occur over
the seven-year period are presented in
Table 1. The table is organized
according to primary mission areas and
includes the activity name, associated
stressors applicable to these regulations,
sound source bin, number of proposed
activities, and locations of those
activities in the HSTT Study Area. For
further information regarding the
primary platform used (e.g., ship or
aircraft type) see Appendix A (Navy
Activity Descriptions) of the 2018 HSTT
FEIS/OEIS.
TABLE 1—TRAINING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT STUDY AREA
Stressor category
Activity name
Description
Source bin
Location
7-year
number
of events
Major Training Events—Large Integrated Anti-Submarine Warfare
Acoustic ...............
Composite Training Unit
Exercise 1.
Acoustic ...............
Rim of the Pacific Exercise 1.
Aircraft carrier and carrier air wing integrates with
surface and submarine units in a challenging multithreat operational environment that certifies them
ready to deploy.
A biennial multinational training exercise in which navies from Pacific Rim nations and the United Kingdom assemble in Pearl Harbor, Hawaii, to conduct
training throughout the Hawaiian Islands in a number of warfare areas. Marine mammal systems
may be used during a Rim of the Pacific exercise.
Components of a Rim of the Pacific exercise, such
as certain mine warfare and amphibious training,
may be conducted in the Southern California
Range Complex.
ASW1, ASW2, ASW3,
ASW4, ASW5, HF1,
LF6, MF1, MF3, MF4,
MF5, MF11, MF12.
ASW2, ASW3, ASW4,
HF1, HF3, HF4, M3,
MF1, MF3, MF4, MF5,
MF11.
SOCAL ...............
18
HRC ....................
SOCAL ...............
4
4
HRC ....................
SOCAL ...............
7
35
HRC ....................
17
HRC ....................
SOCAL ...............
7
18
HRC ....................
SOCAL ...............
12
12
Major Training Events—Medium Integrated Anti-Submarine Warfare
Acoustic ...............
Fleet Exercise/
Sustainment Exercise 1.
Acoustic ...............
Undersea Warfare Exercise.
Aircraft carrier and carrier air wing integrates with
surface and submarine units in a challenging multithreat operational environment to maintain ability to
deploy.
Elements of the anti-submarine warfare tracking exercise combine in this exercise of multiple air, surface, and subsurface units, over a period of several days. Sonobuoys are released from aircraft.
Active and passive sonar used.
ASW1, ASW2, ASW3,
ASW4, HF1, LF6, MF1,
MF3, MF4, MF5, MF11,
MF12.
ASW3, ASW4, HF1, LF6,
MF1, MF3, MF4, MF5,
MF11, MF12.
Integrated/Coordinated Training—Small Integrated Anti-Submarine Warfare Training
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Acoustic ...............
Navy Undersea Warfare
Training and Assessment Course Surface
Warfare Advanced Tactical Training.
Multiple ships, aircraft, and submarines integrate the
use of their sensors to search for, detect, classify,
localize, and track a threat submarine in order to
launch an exercise torpedo.
ASW3, ASW4, HF1, MF1,
MF3, MF4, MF5.
Integrated/Coordinated Training—Medium Coordinated Anti-Submarine Warfare Training
Acoustic ...............
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Train prospective submarine Commanding Officers to
operate against surface, air, and subsurface
threats.
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ASW3, ASW4, HF1, MF1,
MF3, MF4, MF5,
TORP1, TORP2.
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TABLE 1—TRAINING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT STUDY AREA—Continued
Stressor category
Activity name
Description
Source bin
Location
7-year
number
of events
Integrated/Coordinated Training—Small Coordinated Anti-Submarine Warfare Training
Acoustic ...............
Amphibious Ready Group/
Marine Expeditionary
Unit Exercise Group Sail
Independent Deployer
Certification Exercise/
Tailored Anti-Submarine
Warfare Training.
Small-scale, short duration, coordinated anti-submarine warfare exercises.
Explosive ..............
Naval Surface Fire Support Exercise—at Sea.
Acoustic ...............
Amphibious Marine Expeditionary Unit Exercise.
Acoustic ...............
Amphibious Marine Expeditionary Unit Integration
Exercise.
Marine Expeditionary Unit
Composite Training Unit
Exercise.
Surface ship uses large-caliber gun to support forces
ashore; however, land target simulated at sea.
Rounds impact water and are scored by passive
acoustic hydrophones located at or near target
area.
Navy and Marine Corps forces conduct advanced integration training in preparation for deployment certification.
Navy and Marine Corps forces conduct integration
training at sea in preparation for deployment certification.
Amphibious Ready Group exercises are conducted to
validate the Marine Expeditionary Unit’s readiness
for deployment and includes small boat raids; visit,
board, search, and seizure training; helicopter and
mechanized amphibious raids; and a non-combatant evacuation operation.
ASW2, ASW3, ASW4,
HF1, MF1, MF3, MF4,
MF5, MF11.
HRC ....................
SOCAL ...............
14
86
Large-caliber HE rounds
(E5).
HRC (W188) .......
105
ASW2, ASW3, ASW4,
HF1, MF1, MF3, MF4,
MF5, MF11.
ASW2, ASW3, ASW4,
HF1, MF1, MF3, MF4,
MF5, MF11.
ASW2, ASW3, ASW4,
HF1, MF1, MF3, MF4,
MF5, MF11.
SOCAL ...............
18
SOCAL ...............
18
SOCAL ...............
18
Anti-Submarine Warfare
Helicopter crews search for, track, and detect subTorpedo Exercise—Helimarines. Recoverable air launched torpedoes are
copter.
employed against submarine targets.
Anti-Submarine Warfare
Maritime patrol aircraft crews search for, track, and
Torpedo Exercise—Mardetect submarines. Recoverable air launched toritime Patrol Aircraft.
pedoes are employed against submarine targets.
Anti-Submarine Warfare
Surface ship crews search for, track, and detect subTorpedo Exercise—Ship.
marines. Exercise torpedoes are used during this
event.
Anti-Submarine Warfare
Submarine crews search for, track, and detect subTorpedo Exercise—Submarines. Exercise torpedoes are used during this
marine.
event.
Anti-Submarine Warfare
Helicopter crews search for, track, and detect subTracking Exercise—Helimarines.
copter.
MF4, MF5, TORP1 ...........
HRC ....................
SOCAL ...............
42
728
MF5, TORP1 ....................
HRC ....................
SOCAL ...............
70
175
ASW3, MF1, TORP1 ........
HRC ....................
SOCAL ...............
350
819
ASW4, HF1, MF3, TORP2
HRC ....................
SOCAL ...............
336
91
MF4, MF5 .........................
1,113
3,668
42
Anti-Submarine Warfare
Maritime patrol aircraft aircrews search for, track, and
Tracking Exercise—Mardetect submarines. Recoverable air launched toritime Patrol Aircraft.
pedoes are employed against submarine targets.
Anti-Submarine Warfare
Surface ship crews search for, track, and detect subTracking Exercise—Ship.
marines.
Anti-Submarine Warfare
Submarine crews search for, track, and detect subTracking Exercise—
marines.
Submarine.
MF5 ...................................
HRC ....................
SOCAL, PMSR ...
HSTT Transit
Corridor.
HRC ....................
SOCAL, PMSR ...
1,568
2,961
1,400
350
49
Service Weapons Test .....
HF1, MF3, MF6, TORP2,
Explosive torpedoes
(E11).
HRC ....................
SOCAL, PMSR ...
HRC ....................
SOCAL, PMSR ...
HSTT Transit
Corridor.
HRC ....................
SOCAL ...............
Amphibious Warfare
Acoustic ...............
Anti-Submarine Warfare
Acoustic ...............
Acoustic ...............
Acoustic ...............
Acoustic ...............
Acoustic ...............
Acoustic ...............
Acoustic ...............
Acoustic ...............
Explosive, Acoustic.
Air, surface, or submarine crews employ explosive
torpedoes against virtual targets.
ASW3, MF1, MF11, MF12
ASW4, HF1, HF3, MF3 ....
182
350
14
7
Mine Warfare
Acoustic ...............
Explosive, Acoustic.
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Explosive ..............
Acoustic ...............
Acoustic ...............
VerDate Sep<11>2014
Airborne Mine Countermeasure–Mine Detection.
Civilian Port Defense—
Homeland Security AntiTerrorism/Force Protection Exercises.
Marine Mammal Systems
Mine Countermeasure Exercise—Ship Sonar.
Mine Countermeasure Exercise—Surface.
20:37 Jul 09, 2020
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Helicopter aircrews detect mines using towed or laser
mine detection systems.
HF4 ...................................
SOCAL ...............
70
Maritime security personnel train to protect civilian
ports against enemy efforts to interfere with access
to those ports.
HF4, SAS2 ........................
E2, E4 ...............................
Pearl Harbor, HI
San Diego, CA ...
7
21
The Navy deploys trained bottlenose dolphins
(Tursiops truncatus) and California sea lions
(Zalophus californianus) as part of the marine
mammal mine-hunting and object-recovery system.
Ship crews detect and avoid mines while navigating
restricted areas or channels using active sonar.
Mine countermeasure ship crews detect, locate, identify, and avoid mines while navigating restricted
areas or channels, such as while entering or leaving port.
E7 .....................................
HRC ....................
SOCAL ...............
70
1,225
HF4, HF8, MF1K ..............
HRC ....................
SOCAL ...............
SOCAL ...............
210
664
1,862
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TABLE 1—TRAINING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT STUDY AREA—Continued
Stressor category
Location
Mine Countermeasures
Ship, small boat, and helicopter crews locate and disMine Neutralization Reable mines using remotely operated underwater
motely Operated Vehicle.
vehicles.
Mine Neutralization Explo- Personnel disable threat mines using explosive
sive Ordnance Disposal.
charges.
HF4, E4 ............................
HRC ....................
SOCAL ...............
42
2,604
E4, E5, E6, E7 ..................
140
1,358
Acoustic ...............
Submarine Mine Exercise
HF1 ...................................
Acoustic ...............
Surface Ship Object Detection.
Underwater Demolitions
Multiple Charge—Mat
Weave and Obstacle
Loading.
Underwater Demolition
Qualification and Certification.
HRC (Puuloa) .....
SOCAL (IB, TAR
2, TAR 3, TAR
21, SWAT 3,
SOAR).
HRC ....................
SOCAL ...............
HRC ....................
SOCAL ...............
SOCAL (TAR 2,
TAR 3).
E6, E7 ...............................
HRC (Puuloa) .....
SOCAL (TAR 2)
203
700
HRC ....................
SOCAL ...............
HSTT Transit
Corridor.
HRC ....................
SOCAL ...............
1,309
4,480
35
HRC ....................
SOCAL ...............
HSTT Transit
Corridor.
HRC ....................
SOCAL ...............
HSTT Transit
Corridor.
SOCAL ...............
210
1,302
91
Explosive ..............
Explosive ..............
Explosive ..............
Description
7-year
number
of events
Source bin
Explosive, Acoustic.
Activity name
Submarine crews practice detecting mines in a designated area.
Ship crews detect and avoid mines while navigating
restricted areas or channels using active sonar.
Military personnel use explosive charges to destroy
barriers or obstacles to amphibious vehicle access
to beach areas.
Navy divers conduct various levels of training and
certification in placing underwater demolition
charges.
MF1K, HF8 .......................
E10, E13 ...........................
280
84
287
1,134
126
Surface Warfare
Explosive ..............
Bombing Exercise Air-toSurface.
Fixed-wing aircrews deliver bombs against surface
targets.
E12 2 .................................
Explosive ..............
Gunnery Exercise Surface-to-Surface Boat
Medium-Caliber.
Gunnery Exercise Surface-to-Surface Ship
Large-caliber.
Small boat crews fire medium-caliber guns at surface
targets.
E1, E2 ...............................
Surface ship crews fire large-caliber guns at surface
targets.
E5 .....................................
Explosive ..............
Gunnery Exercise Surface-to-Surface Ship
Medium-Caliber.
Surface ship crews fire medium-caliber guns at surface targets.
E1, E2 ...............................
Explosive, Acoustic.
Independent Deployer
Certification Exercise/
Tailored Surface Warfare Training.
E1, E3, E6, E10 ................
Explosive ..............
Integrated Live Fire Exercise.
Explosive ..............
Missile Exercise Air-toSurface.
Missile Exercise Air-toSurface Rocket.
Missile Exercise Surfaceto-Surface.
Multiple ships, aircraft and submarines conduct integrated multi-warfare training with a surface warfare
emphasis. Serves as a ready-to-deploy certification
for individual surface ships tasked with surface
warfare missions.
Naval Forces defend against a swarm of surface
threats (ships or small boats) with bombs, missiles,
rockets, and small-, medium- and large-caliber
guns.
Fixed-wing and helicopter aircrews fire air-to-surface
missiles at surface targets.
Helicopter aircrews fire both precision-guided and
unguided rockets at surface targets.
Surface ship crews defend against surface threats
(ships or small boats) and engage them with missiles.
Aircraft, ship, and submarine crews deliberately sink
a seaborne target, usually a decommissioned ship
made environmentally safe for sinking according to
U.S. Environmental Protection Agency standards,
with a variety of munitions.
A pier is constructed off of the beach. Piles are driven into the bottom with an impact hammer. Piles
are removed from seabed via vibratory extractor.
Only in-water impacts are analyzed.
Explosive ..............
Explosive ..............
Explosive ..............
Explosive, Acoustic.
Sinking Exercise ...............
Pile driving ...........
Elevated Causeway System.
70
98
350
1,260
280
7
E1, E3, E6, E10 ................
HRC (W188A) ....
SOCAL (SOAR)
7
7
E6, E8, E10 ......................
HRC ....................
SOCAL ...............
HRC ....................
SOCAL ...............
HRC (W188) .......
SOCAL (W291) ..
70
1,498
1,598
1,722
140
70
TORP2, E5, E10, E12 ......
HRC ....................
SOCAL ...............
21
4
Impact hammer or vibratory extractor.
SOCAL ...............
14
MF4 ...................................
HRC ....................
SOCAL ...............
420
16,800
HF1, MF3 ..........................
Pearl Harbor, HI
San Diego Bay,
CA.
HRC ....................
Pearl Harbor, HI
SOCAL ...............
San Diego Bay,
CA.
HSTT Transit
Corridor.
1,540
560
E3 .....................................
E6, E10 .............................
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Other Training Exercises
Acoustic ...............
Kilo Dip .............................
Acoustic ...............
Submarine Navigation Exercise.
Acoustic ...............
Submarine Sonar Maintenance and Systems
Checks.
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Functional check of the dipping sonar prior to conducting a full test or training event on the dipping
sonar.
Submarine crews operate sonar for navigation and
object detection while transiting into and out of port
during reduced visibility.
Maintenance of submarine sonar systems is conducted pierside or at sea.
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1,820
651
644
70
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TABLE 1—TRAINING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT STUDY AREA—Continued
7-year
number
of events
Stressor category
Activity name
Description
Source bin
Location
Acoustic ...............
Submarine Under-Ice Certification.
HF1 ...................................
HRC ....................
SOCAL ...............
84
42
Acoustic ...............
Surface Ship Sonar Maintenance and Systems
Checks.
Submarine crews train to operate under ice. Ice conditions are simulated during training and certification events.
Maintenance of surface ship sonar systems is conducted pierside or at sea.
HF8, MF1 ..........................
HRC ....................
Pearl Harbor, HI
SOCAL ...............
San Diego, CA ...
HSTT Transit
Corridor.
525
560
1,750
1,750
56
Unmanned underwater vehicle certification involves
training with unmanned platforms to ensure submarine crew proficiency. Tactical development involves training with various payloads for multiple
purposes to ensure that the systems can be employed effectively in an operational environment.
FLS2, M3, SAS2 ...............
HRC ....................
SOCAL ...............
175
70
.
Acoustic ...............
Unmanned Underwater
Vehicle Training—Certification and Development.
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex, HSTT = Hawaii-Southern California Training and Testing, PMSR = Point
Mugu Sea Range Overlap, TAR = Training Area and Range, SOAR = Southern California Anti-Submarine Warfare Range, IB = Imperial Beach Minefield.
1. Any non-antisubmarine warfare activity that could occur is captured in the individual activities.
2. For the Bombing Exercise Air-to-Surface, all activities were analyzed using E12 explosive bin, but smaller explosives are frequently used.
Testing Activities
The number of planned testing
activities that could occur annually and
the duration of those activities are
identical to those presented in Tables 5
through 8 of the 2018 HSTT final rule,
and are not repeated here. Similar to the
2017 Navy application, the Navy’s
planned testing activities here are based
on the level of testing activities
anticipated to be conducted into the
reasonably foreseeable future, with
adjustments that account for changes in
the types and tempo (increases or
decreases) of testing activities to meet
current and future military readiness
requirements. The number of planned
testing activities that could occur for the
seven-year period are presented in
Tables 2 through 5.
Naval Air Systems Command
The Naval Air Systems Command
testing activities that could occur over
the seven-year period within the HSTT
Study Area are presented in Table 2.
TABLE 2—NAVAL AIR SYSTEMS COMMAND TESTING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT STUDY
AREA
Stressor category
Activity name
Description
7-year
number
of events
Source bin
Location
MF5, TORP1 ........................
HRC ......
SOCAL ..
134
353
MF4, MF5, E3 ......................
SOCAL ..
414
ASW2, ASW5, MF5, MF6,
E1, E3.
HRC ......
SOCAL ..
399
436
ASW2, ASW5, HF5, HF6,
LF4, MF5, MF6, E1, E3,
E4.
SOCAL ..
1,120
HF4 .......................................
SOCAL ..
24
E4 .........................................
SOCAL ..
117
Anti-Submarine Warfare
Acoustic .............
Anti-Submarine Warfare Torpedo Test.
Explosive,
Acoustic.
Anti-Submarine Warfare
Tracking Test–Helicopter.
Explosive,
Acoustic.
Anti-Submarine Warfare
Tracking Test–Maritime
Patrol Aircraft.
Explosive,
Acoustic.
Sonobuoy Lot Acceptance
Test.
This event is similar to the training event torpedo exercise. Test evaluates anti-submarine warfare systems
onboard rotary-wing and fixed-wing aircraft and the ability to search for, detect, classify, localize, track, and attack a submarine or similar target.
This event is similar to the training event anti-submarine
tracking exercise–helicopter. The test evaluates the
sensors and systems used to detect and track submarines and to ensure that helicopter systems used to
deploy the tracking systems perform to specifications.
The test evaluates the sensors and systems used by maritime patrol aircraft to detect and track submarines and
to ensure that aircraft systems used to deploy the tracking systems perform to specifications and meet operational requirements.
Sonobuoys are deployed from surface vessels and aircraft
to verify the integrity and performance of a lot or group
of sonobuoys in advance of delivery to the fleet for
operational use.
jbell on DSKJLSW7X2PROD with RULES3
Mine Warfare
Acoustic .............
Airborne Dipping Sonar
Minehunting Test.
Explosive ...........
Airborne Mine Neutralization
System Test.
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A mine-hunting dipping sonar system that is deployed
from a helicopter and uses high-frequency sonar for the
detection and classification of bottom and moored
mines.
A test of the airborne mine neutralization system that
evaluates the system’s ability to detect and destroy
mines from an airborne mine countermeasures capable
helicopter (e.g., MH–60). The airborne mine neutralization system uses up to four unmanned underwater vehicles equipped with high-frequency sonar, video cameras, and explosive and non-explosive neutralizers.
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TABLE 2—NAVAL AIR SYSTEMS COMMAND TESTING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT STUDY
AREA—Continued
Stressor category
Activity name
7-year
number
of events
Description
Source bin
Location
HF6 .......................................
SOCAL ..
33
E9 .........................................
HRC ......
SOCAL ..
56
98
E1 .........................................
HRC ......
SOCAL ..
35
330
E6, E9, E10 ..........................
HRC ......
SOCAL ..
126
384
E3 .........................................
HRC ......
SOCAL ..
14
142
MF4 ......................................
SOCAL ..
12
MF9 ......................................
HRC ......
129
Acoustic .............
Airborne Sonobuoy
Minehunting Test.
A mine-hunting system made up of sonobuoys deployed
from a helicopter. A field of sonobuoys, using high-frequency sonar, is used for detection and classification of
bottom and moored mines.
Explosive ...........
Air-to-Surface Bombing Test
Explosive ...........
Air-to-Surface Gunnery Test
Explosive ...........
Air-to-Surface Missile Test ...
Explosive ...........
Rocket Test ..........................
This event is similar to the training event bombing exercise air-to-surface. Fixed-wing aircraft test the delivery
of bombs against surface maritime targets with the goal
of evaluating the bomb, the bomb carry and delivery
system, and any associated systems that may have
been newly developed or enhanced.
This event is similar to the training event gunnery exercise
air-to-surface. Fixed-wing and rotary-wing aircrews
evaluate new or enhanced aircraft guns against surface
maritime targets to test that the gun, gun ammunition,
or associated systems meet required specifications or
to train aircrew in the operation of a new or enhanced
weapons system.
This event is similar to the training event missile exercise
air-to-surface. Test may involve both fixed-wing and rotary-wing aircraft launching missiles at surface maritime
targets to evaluate the weapons system or as part of
another systems integration test.
Rocket tests are conducted to evaluate the integration,
accuracy, performance, and safe separation of guided
and unguided 2.75-inch rockets fired from a hovering or
forward flying helicopter or tilt rotor aircraft.
Surface Warfare
Other Testing Activities
Acoustic .............
Kilo Dip .................................
Acoustic .............
Undersea Range System
Test.
Functional check of a helicopter deployed dipping sonar
system (e.g., AN/AQS–22) prior to conducting a testing
or training event using the dipping sonar system.
Post installation node survey and test and periodic testing
of range node transmit functionality.
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex.
Naval Sea Systems Command
The Naval Sea Systems Command
testing activities that could occur over
the seven-year period within the HSTT
Study Area are presented in Table 3.
TABLE 3—NAVAL SEA SYSTEMS COMMAND TESTING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT
STUDY AREA
Stressor category
Activity name
Description
7-year
number
of events
Source bin
Location
ASW1, ASW2, ASW3,
ASW5, MF1, MF4, MF5,
MF12, TORP1.
ASW3, ASW4, HF1, LF4,
LF5, M3, MF1, MF1K,
MF2, MF3, MF5, MF9,
MF10, MF11.
ASW3, ASW4, HF5,
TORP1, TORP2.
HRC ....................
SOCAL ...............
154
161
HRC ....................
HRC—SOCAL ....
SOCAL ...............
109
7
138
HRC ....................
HRC—SOCAL ....
SOCAL ...............
HSTT Transit
Corridor.
Pearl Harbor, HI
San Diego, CA ...
56
28
77
14
HRC ....................
Pearl Harbor, HI
San Diego, CA ...
HRC ....................
Pearl Harbor, HI
San Diego, CA ...
SOCAL ...............
28
119
168
21
21
21
21
Anti-Submarine Warfare
jbell on DSKJLSW7X2PROD with RULES3
Acoustic ...............
Acoustic ...............
Anti-Submarine Warfare
Mission Package Testing.
At-Sea Sonar Testing .......
Ships and their supporting platforms (e.g., rotarywing aircraft and unmanned aerial systems) detect,
localize, and prosecute submarines.
At-sea testing to ensure systems are fully functional
in an open ocean environment.
Acoustic ...............
Countermeasure Testing ..
Acoustic ...............
Pierside Sonar Testing .....
Acoustic ...............
Submarine Sonar Testing/
Maintenance.
Acoustic ...............
Surface Ship Sonar Testing/Maintenance.
Countermeasure testing involves the testing of systems that will detect, localize, and track incoming
weapons, including marine vessel targets. Testing
includes surface ship torpedo defense systems and
marine vessel stopping payloads.
Pierside testing to ensure systems are fully functional
in a controlled pierside environment prior to at-sea
test activities.
Pierside and at-sea testing of submarine systems occurs periodically following major maintenance periods and for routine maintenance.
Pierside and at-sea testing of ship systems occurs
periodically following major maintenance periods
and for routine maintenance.
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HF1, HF3, HF8, M3, MF1,
MF3, MF9.
HF1, HF3, M3, MF3 .........
ASW3, MF1, MF1K, MF9,
MF10.
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49
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TABLE 3—NAVAL SEA SYSTEMS COMMAND TESTING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT
STUDY AREA—Continued
7-year
number
of events
Stressor category
Activity name
Description
Source bin
Location
Explosive, Acoustic.
Torpedo (Explosive) Testing.
Air, surface, or submarine crews employ explosive
and non-explosive torpedoes against artificial targets.
Torpedo (Non-Explosive)
Testing.
Air, surface, or submarine crews employ non-explosive torpedoes against submarines or surface vessels.
HRC (W188) .......
HRC (W188)
SOCAL.
SOCAL ...............
HRC ....................
HRC SOCAL ......
SOCAL ...............
56
21
Acoustic ...............
ASW3, HF1, HF5, HF6,
MF1, MF3, MF4, MF5,
MF6, TORP1, TORP2,
E8, E11.
ASW3, ASW4, HF1, HF6,
M3, MF1, MF3, MF4,
MF5, MF6, TORP1,
TORP2, TORP3.
Explosive, Acoustic.
Explosive, Acoustic.
Mine Countermeasure and
Neutralization Testing.
Mine Countermeasure
Mission Package Testing.
Mine Detection and Classification Testing.
Air, surface, and subsurface vessels neutralize threat
mines and mine-like objects.
Vessels and associated aircraft conduct mine countermeasure operations.
HF4, E4 ............................
SOCAL ...............
70
HF4, SAS2, E4 .................
HRC ....................
SOCAL ...............
118
406
Air, surface, and subsurface vessels detect and classify mines and mine-like objects. Vessels also assess their potential susceptibility to mines and
mine-like objects.
HF1, HF8, MF1, MF5 .......
HRC ....................
HRC SOCAL ......
SOCAL ...............
14
10
77
HRC ....................
HRC—SOCAL ....
SOCAL ...............
HRC ....................
HRC—SOCAL ....
SOCAL ...............
HRC ....................
HRC—SOCAL ....
SOCAL ...............
49
504
49
28
336
28
91
168
140
HF4, SAS2 ........................
HRC ....................
SOCAL ...............
21
28
HF4, MF9 ..........................
HRC ....................
SOCAL ...............
21
2,037
HF1, M3, MF3, MF9,
MF10, TORP2.
HRC ....................
SOCAL ...............
7
7
E1, E5, E8 ........................
HRC ....................
HRC—SOCAL ....
SOCAL ...............
63
441
102
ASW4, HF4, HF8, MF1,
MF4, MF5, MF6,
TORP1, TORP2.
HRC ....................
HRC SOCAL\ .....
SOCAL ...............
49
60
69
ASW3 ................................
HRC ....................
HRC SOCAL ......
SOCAL ...............
28
252
168
M3, MF9 ...........................
HRC ....................
SOCAL ...............
7
7
HF1, M3, MF9 ..................
HRC ....................
SOCAL ...............
14
7
56
56
63
56
Mine Warfare
Acoustic ...............
Surface Warfare
Explosive ..............
Gun Testing—Large-Caliber.
Surface crews defend against surface targets with
large-caliber guns.
E3 .....................................
Explosive ..............
Gun Testing—MediumCaliber.
Surface crews defend against surface targets with
medium-caliber guns.
E1 .....................................
Explosive ..............
Missile and Rocket Testing.
Missile and rocket testing includes various missiles or
rockets fired from submarines and surface combatants. Testing of the launching system and ship defense is performed.
E6 .....................................
Unmanned Systems
Acoustic ...............
Unmanned Surface Vehicle System Testing.
Acoustic ...............
Unmanned Underwater
Vehicle Testing.
Testing involves the production or upgrade of unmanned surface vehicles. This may include tests of
mine detection capabilities, evaluations of the basic
functions of individual platforms, or complex events
with multiple vehicles.
Testing involves the production or upgrade of unmanned underwater vehicles. This may include
tests of mine detection capabilities, evaluations of
the basic functions of individual platforms, or complex events with multiple vehicles.
Vessel Evaluation
Acoustic ...............
Explosive ..............
Submarine Sea Trials—
Weapons System Testing.
Surface Warfare Testing ..
Acoustic ...............
Undersea Warfare Testing
Acoustic ...............
Vessel Signature Evaluation.
Submarine weapons and sonar systems are tested
at-sea to meet the integrated combat system certification requirements.
Tests the capabilities of shipboard sensors to detect,
track, and engage surface targets. Testing may include ships defending against surface targets using
explosive and non-explosive rounds, gun system
structural test firing, and demonstration of the response to Call for Fire against land-based targets
(simulated by sea-based locations).
Ships demonstrate capability of countermeasure systems and underwater surveillance, weapons engagement, and communications systems. This
tests ships ability to detect, track, and engage undersea targets.
Surface ship, submarine and auxiliary system signature assessments. This may include electronic,
radar, acoustic, infrared and magnetic signatures.
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Other Testing Activities
Acoustic ...............
Insertion/Extraction ...........
Acoustic ...............
Signature Analysis Operations.
Testing of submersibles capable of inserting and extracting personnel and payloads into denied areas
from strategic distances.
Surface ship and submarine testing of electromagnetic, acoustic, optical, and radar signature
measurements.
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex, HSTT = Hawaii-Southern California Training and Testing, CA = California,
HI = Hawaii.
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Office of Naval Research
seven-year period within the HSTT
Study Area are presented in Table 4.
The Office of Naval Research testing
activities that could occur over the
TABLE 4—OFFICE OF NAVAL RESEARCH TESTING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD IN THE HSTT STUDY
AREA
Stressor category
Activity name
Description
Source bin
7-year
number
of events
Location
Acoustic and Oceanographic Science and Technology
Explosive, Acoustic.
Acoustic and Oceanographic Research.
Acoustic ...............
Long Range Acoustic
Communications.
Research using active transmissions from sources
deployed from ships and unmanned underwater
vehicles. Research sources can be used as proxies for current and future Navy systems.
Bottom mounted acoustic source off of the Hawaiian
Island of Kauai will transmit a variety of acoustic
communications sequences.
AG, ASW2, BB4, BB9,
LF3, LF4, LF5, MF8,
MF9, MF9, MF9, E3.
HRC ....................
SOCAL ...............
14
28
LF4 ....................................
HRC ....................
21
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex.
Naval Information Warfare Systems
Command
The Naval Information Warfare
Systems Command testing activities that
could occur over the seven-year period
within the HSTT Study Area are
presented in Table 5.
TABLE 5—NAVAL INFORMATION WARFARE SYSTEMS COMMAND TESTING ACTIVITIES ANALYZED FOR SEVEN-YEAR PERIOD
IN THE HSTT STUDY AREA
7-year
number
of events
Stressor category
Activity name
Description
Source bin
Location
Acoustic ...............
Anti-Terrorism/Force Protection.
Communications ...............
Testing sensor systems that can detect threats to
naval piers, ships, and shore infrastructure.
Testing of underwater communications and networks
to extend the principles of FORCEnet below the
ocean surface.
Develop, integrate, and demonstrate Intelligence,
Surveillance, and Reconnaissance systems and insitu energy systems to support deployed systems.
SD1 ...................................
San Diego, CA ...
SOCAL ...............
HRC ....................
SOCAL ...............
98
112
5
70
87
357
56
Testing of surface and subsurface vehicles and sensor systems that may involve Unmanned Underwater Vehicles, gliders, and Unmanned Surface
Vehicles.
BB4, FLS2, FLS3, HF6,
LF3, M3, MF9, MF13,
SAS1, SAS2, SAS3.
HRC ....................
SOCAL ...............
HSTT Transit
Corridor.
HRC ....................
SOCAL ...............
HSTT Transit
Corridor.
Acoustic ...............
Acoustic ...............
Acoustic ...............
Energy and Intelligence,
Surveillance, and Reconnaissance Sensor
Systems.
Vehicle Testing .................
ASW2, ASW5, HF6, LF4 ..
AG, HF2, HF7, LF4, LF5,
LF6, MF10.
8
1,141
14
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex, HSTT = Hawaii-Southern California Training and Testing, CA = California.
Summary of Acoustic and Explosive
Sources Analyzed for Training and
Testing
Tables 6 through 9 show the acoustic
and explosive source classes, bins, and
numbers used, airgun sources and
numbers used, and numbers of pile
driving and removal activities
associated with the Navy’s planned
training and testing activities over a
seven-year period in the HSTT Study
Area that were analyzed in the 2019
Navy application and for this final rule.
The annual numbers for acoustic source
classes, explosive source bins, and
airgun sources, as well as the annual
pile driving and removal activities
associated with Navy training and
testing activities in the HSTT Study
Area are identical to those presented in
Tables 9 through 12 of the 2018 HSTT
final rule, and are not repeated here.
Consistent with the periodicity in the
2018 HSTT final rule, the Navy
included the addition of two pile
driving/extraction activities for each of
the two additional years.
Table 6 describes the acoustic source
classes (i.e., low-frequency (LF), midfrequency (MF), and high-frequency
(HF)) that could occur over seven years
under the planned training and testing
activities. Acoustic source bin use in the
planned activities would vary annually.
The seven-year totals for the planned
training and testing activities take into
account that annual variability.
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TABLE 6—ACOUSTIC SOURCE CLASSES ANALYZED AND NUMBER USED FOR SEVEN-YEAR PERIOD FOR TRAINING AND
TESTING ACTIVITIES IN THE HSTT STUDY AREA
Source class category
Bin
Low-Frequency (LF): Sources that produce
signals less than 1 kHz.
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Description
LF sources greater than 200 dB ..................
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Training
Testing
7-year total
7-year total
Unit 1
H ....
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0
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TABLE 6—ACOUSTIC SOURCE CLASSES ANALYZED AND NUMBER USED FOR SEVEN-YEAR PERIOD FOR TRAINING AND
TESTING ACTIVITIES IN THE HSTT STUDY AREA—Continued
Source class category
Bin
LF4 .........
LF5 .........
LF6 .........
Mid-Frequency (MF): Tactical and non-tactical sources that produce signals between 1 and 10 kHz.
MF1 ........
MF1K .....
MF2 2 .....
MF3 ........
MF4 ........
MF5 ........
MF6 ........
MF8 ........
MF9 ........
MF10 ......
MF11 ......
MF12 ......
High-Frequency (HF): Tactical and non-tactical sources that produce signals between 10 and 100 kHz.
MF13 ......
HF1 ........
HF2 ........
HF3 ........
HF4 ........
HF5 ........
HF6 ........
HF7 ........
HF8 ........
Anti-Submarine Warfare (ASW): Tactical
sources (e.g., active sonobuoys and
acoustic countermeasures systems) used
during ASW training and testing activities.
ASW1 .....
ASW2 .....
ASW3 .....
ASW4 .....
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Torpedoes (TORP): Source classes associated with the active acoustic signals produced by torpedoes.
Forward Looking Sonar (FLS): Forward or
upward looking object avoidance sonars
used for ship navigation and safety.
ASW5 3 ..
TORP1 ...
TORP2 ...
TORP3 ...
FLS2 ......
FLS3 ......
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Description
LF sources equal to 180 dB and up to 200
dB.
LF sources less than 180 dB .......................
LF sources greater than 200 dB with long
pulse lengths.
Hull-mounted surface ship sonars (e.g., AN/
SQS–53C and AN/SQS–61).
Kingfisher mode associated with MF1 sonars.
Hull-mounted surface ship sonars (e.g., AN/
SQS–56).
Hull-mounted submarine sonars (e.g., AN/
BQQ–10).
Helicopter-deployed dipping sonars (e.g.,
AN/AQS–22 and AN/AQS–13).
Active acoustic sonobuoys (e.g., DICASS)
Active underwater sound signal devices
(e.g., MK 84).
Active sources (greater than 200 dB) not
otherwise binned.
Active sources (equal to 180 dB and up to
200 dB) not otherwise binned.
Active sources (greater than 160 dB, but
less than 180 dB) not otherwise binned.
Hull-mounted surface ship sonars with an
active duty cycle greater than 80%.
Towed array surface ship sonars with an
active duty cycle greater than 80%.
MF sonar source ..........................................
Hull-mounted submarine sonars (e.g., AN/
BQQ–10).
HF Marine Mammal Monitoring System ......
Other hull-mounted submarine sonars
(classified).
Mine detection, classification, and neutralization sonar (e.g., AN/SQS–20).
Active sources (greater than 200 dB) not
otherwise binned.
Active sources (equal to 180 dB and up to
200 dB) not otherwise binned.
Active sources (greater than 160 dB, but
less than 180 dB) not otherwise binned.
Hull-mounted surface ship sonars (e.g., AN/
SQS–61).
MF systems operating above 200 dB ..........
MF Multistatic Active Coherent sonobuoy
(e.g., AN/SSQ–125).
MF towed active acoustic countermeasure
systems (e.g., AN/SLQ–25).
MF expendable active acoustic device
countermeasures (e.g., MK 3).
MF sonobuoys with high duty cycles ...........
Lightweight torpedo (e.g., MK 46, MK 54,
or Anti-Torpedo Torpedo).
Heavyweight torpedo (e.g., MK 48) .............
HF sources with short pulse lengths, narrow beam widths, and focused beam patterns.
VHF sources with short pulse lengths, narrow beam widths, and focused beam patterns.
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Training
Testing
7-year total
7-year total
Unit 1
H
C
H
H
....
....
....
....
0
0
65
956
4,496
140
14,458
360
H ....
38,489
8,692
H ....
700
98
H ....
0
378
H ....
14,700
9,177
H ....
2,719
2,502
C ....
C ....
40,128
63
38,233
8,202
H ....
0
490
H ....
0
36,056
H ....
0
13,104
H ....
5,205
392
H ....
1,260
4,620
H ....
H ....
0
12,550
2,100
5,403
H ....
H ....
0
1,919
840
769
H ....
15,012
114,069
H ....
C ....
H ....
0
0
0
6,720
280
7,015
H ....
0
9,660
H ....
711
5,136
H ....
1,503
3,290
C ....
4,824
32,900
H ....
37,385
19,187
C ....
9,023
15,398
H ....
C ....
1,780
1,605
3,854
6,454
C ....
C ....
H ....
3,515
0
196
2,756
315
3,424
H ....
0
18,480
10JYR3
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TABLE 6—ACOUSTIC SOURCE CLASSES ANALYZED AND NUMBER USED FOR SEVEN-YEAR PERIOD FOR TRAINING AND
TESTING ACTIVITIES IN THE HSTT STUDY AREA—Continued
Source class category
Bin
Training
Testing
7-year total
7-year total
Unit 1
Description
Acoustic Modems (M): Systems used to
transmit data through the water.
Swimmer Detection Sonars (SD): Systems
used to detect divers and submerged
swimmers.
M3 ..........
MF acoustic modems (greater than 190 dB)
H ....
274
3,623
SD1–SD2
H ....
0
70
Synthetic Aperture Sonars (SAS): Sonars in
which active acoustic signals are postprocessed to form high-resolution images
of the seafloor.
SAS1 ......
HF and VHF sources with short pulse
lengths, used for the detection of swimmers and other objects for the purpose of
port security.
MF SAS systems .........................................
H ....
0
13,720
H ....
H ....
H ....
6,297
0
294
60,088
32,200
0
BB4 ........
HF SAS systems ..........................................
VHF SAS systems .......................................
MF to HF broadband mine countermeasure
sonar.
LF to MF oceanographic source ..................
H ....
0
6,414
BB7 ........
BB9 ........
LF oceanographic source ............................
MF optoacoustic source ...............................
C ....
H ....
0
0
196
3,360
SAS2 ......
SAS3 ......
SAS4 ......
Broadband Sound Sources (BB): Sonar
systems with large frequency spectra,
used for various purposes.
1H
= hours; C = count (e.g., number of individual pings or individual sonobuoys).
are sources on frigate class ships, which were decommissioned during Phase II.
ASW2 (H) in Phase II.
Notes: dB = decibel(s), kHz = kilohertz, VHF = very high frequency.
2 MF2/MF2K
3 Formerly
Table 7 describes the number of air
gun shots that could occur over seven
years under the planned training and
testing activities.
TABLE 7—TRAINING AND TESTING AIR GUN SOURCES QUANTITATIVELY ANALYZED IN THE HSTT STUDY AREA
Source class category
Air Guns (AG): Small underwater air guns .....................................................................
1C
Training
Testing
7-year total
7-year total
Unit 1
Bin
AG ..........
C ............
0
5,908
= count. One count (C) of AG is equivalent to 100 air gun firings.
Table 8 summarizes the impact pile
driving and vibratory pile removal
activities that could occur during a 24hour period. Annually, for impact pile
driving, the Navy will drive 119 piles,
two times a year for a total of 238 piles.
Over the seven-year period of the rule,
the Navy will drive a total of 1,666 piles
by impact pile driving. Annually, for
vibratory pile extraction, the Navy will
extract 119 piles, two times a year for
a total of 238 piles. Over the seven-year
period of the rule, the Navy will extract
a total of 1,666 piles by vibratory pile
extraction.
TABLE 8—SUMMARY OF PILE DRIVING AND REMOVAL ACTIVITIES PER 24-HOUR PERIOD IN THE HSTT STUDY AREA
Piles per
24-hour period
Method
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Pile Driving (Impact) ....................................................................................................................
Pile Removal (Vibratory) ..............................................................................................................
Table 9 describes the number of inwater explosives that could be used in
any year under the proposed training
and testing activities. Under the
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proposed activities bin use would vary
annually, and the seven-year totals for
the planned training and testing
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6
12
Time per pile
(minutes)
15
6
Total
estimated
time of noise
per 24-hour
period
(minutes)
90
72
activities take into account that annual
variability.
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TABLE 9—EXPLOSIVE SOURCE BINS ANALYZED AND NUMBER USED FOR SEVEN-YEAR PERIOD FOR TRAINING AND
TESTING ACTIVITIES WITHIN THE HSTT STUDY AREA
Bin
E1
E2
E3
E4
Net
explosive
weight (lb.) 1
Modeled
underwater
detonation
depths
(ft.)
Example explosive source
..........
..........
..........
..........
0.1–0.25
>0.25–0.5
>0.5–2.5
>2.5–5
Medium-caliber projectiles ...........................................................
Medium-caliber projectiles ...........................................................
Large-caliber projectiles ..............................................................
Mine neutralization charge ..........................................................
E5 ..........
E6 ..........
E7 ..........
>5–10
>10–20
>20–60
E8 ..........
E9 ..........
E10 ........
E11 ........
E12 ........
E13 ........
>60–100
>100–250
>250–500
>500–650
>650–1,000
>1,000–1,740
5 in projectiles .............................................................................
Hellfire missile .............................................................................
Demo block/ .................................................................................
shaped charge .............................................................................
Lightweight torpedo .....................................................................
500 lb bomb .................................................................................
Harpoon missile ...........................................................................
650 lb mine ..................................................................................
2,000 lb bomb ..............................................................................
Multiple Mat Weave charges .......................................................
Training
Testing
7-year total
7-year total
0.3, 60
0.3, 50
0.3, 60
10, 16, 33, 50,
61, 65, 650
0.3, 10, 50
0.3, 10, 50, 60
10, 50, 60
20,580
12,222
19,579
266
87,012
0
20,848
4,372
33,310
4,056
91
9,800
230
0
0.3, 150
0.3
0.3
61, 150
0.3
NA 2
241
2,950
1,543
69
114
63
399
28
210
84
0
0
1 Net
Explosive Weight refers to the amount of explosives; the actual weight of a munition may be larger due to other components.
modeled because charge is detonated in surf zone; not a single E13 charge, but multiple smaller charges detonated in quick succession.
Notes: in. = inch(es), lb. = pound(s), ft. = feet.
2 Not
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Vessel Movement
Vessels used as part of the planned
activities include ships, submarines,
unmanned vessels, and boats ranging in
size from small, 22 ft (7 m) rigid hull
inflatable boats to aircraft carriers with
lengths up to 1,092 ft (333 m). The
average speed of large Navy ships ranges
between 10 and 15 knots and
submarines generally operate at speeds
in the range of 8–13 knots (kn), 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, dependent on the activity),
but generally range from 10 to 14 kn.
From unpublished Navy data, average
median speed for large Navy ships in
the HSTT Study Area from 2011–2015
varied from 5–10 kn 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. 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
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dispersed throughout the HSTT Study
Area, but would typically be conducted
near naval ports, piers, and range areas.
Navy vessel traffic will be especially
concentrated near San Diego, California
and Pearl Harbor, Hawaii. 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. Support
craft will 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.
The manner in which Navy vessels
will be used during training and testing
activities, the speeds at which they
operate, the number of vessels that will
be used during various activities, and
the locations in which Navy vessel
movement will be concentrated within
the HSTT Study Area have not changed
from those analyzed in the 2018 HSTT
final rule. The only change related to
the Navy’s request regarding Navy
vessel movement is the vessel use
associated with the additional two years
of Navy activities.
Standard Operating Procedures
For training and testing to be
effective, personnel must be able to
safely use their sensors and weapon
systems as they are intended to be used
in a real-world situation and to their
optimum capabilities. While standard
operating procedures are designed for
PO 00000
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the safety of personnel and equipment
and to ensure the success of training
and testing activities, their
implementation often yields additional
benefits on environmental,
socioeconomic, public health and
safety, and cultural resources. Because
standard operating procedures are
essential to safety and mission success,
the Navy considers them to be part of
the planned activities and included
them in the environmental analysis.
Details on standard operating
procedures 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. The
Standard Operating Procedures for the
seven-year period will be identical to
those in place under the 2018 HSTT
final rule.
Comments and Responses
On May 8, 2019, we published a
notice of receipt (NOR) in the Federal
Register (84 FR 20105) for the Navy’s
application to effectively extend the
five-year 2018 HSTT regulations to
seven years, and requested comments
and information related to the Navy’s
request. The review and comment
period for the NOR ended on June 7,
2019. We reviewed and considered all
comments and information received on
the NOR in development of the
proposed rule. We published the
proposed seven-year rule for the Navy’s
HSTT activities in the Federal Register
on September 13, 2019 (83 FR 48388),
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Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Rules and Regulations
with a 30-day comment period. In that
proposed rule, we requested public
input on the request for authorization
described therein, our analyses, and the
proposed authorizations and requested
that interested persons submit relevant
information, suggestions, and
comments. During the 30-day comment
period, we received 30 comment letters.
Of this total, one submission was from
the Marine Mammal Commission
(hereafter ‘‘Commission’’), two letters
were from organizations or individuals
acting in an official capacity (e.g., nongovernmental organizations (NGOs))
and 27 submissions were from private
citizens. Both the Commission and
NGOs included their comments
submitted on the 2018 HSTT proposed
five-year rule, which the seven-year rule
here is nearly identical to. The
Commission did not reiterate their 2018
HSTT proposed rule recommendations
in their comment letter but maintained
that the recommendations that NMFS
did not incorporate into the 2018 HSTT
final rule are still relevant and pertain
to the extension of the five-year rule and
asked that they be reviewed again in the
course of considering the new sevenyear rule. One letter from NGOs
attached their 2018 HSTT proposed rule
comment letter. They stated that ‘‘most
of the issues raised [in their 2018 HSTT
proposed rule comment letter] were not
adequately addressed in the 2018–2023
Final Rule’’ and asked that NMFS renew
consideration of their prior comments.
To the extent they raised concerns with
how ‘‘most’’ issues were addressed
previously, they did not identify which
issues those were. The second letter
from NGOs also attached their
comments on the 2018 HSTT proposed
rule and the Notice of Receipt of the
2017 Navy application.
NMFS has reviewed and considered
all public comments received on the
2019 HSTT proposed rule and issuance
of the LOAs. In considering the
comments received we realized that our
responses to some of the comments on
the 2018 HSTT proposed rule could
benefit from additional detail and/or
clarification. Accordingly, we are
republishing the responses to comments
received on the 2018 HSTT proposed
rule, some of which have been updated,
along with providing our responses to
new comments on the 2019 proposed
rule. Therefore, all relevant comments
received on both the 2018 and 2019
HSTT proposed rules and our responses
are presented below. We provide no
response to specific comments that
addressed species or statutes not
relevant to our proposed authorization
under section 101(a)(5)(A) of the MMPA
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(e.g., comments related to sea turtles) or
species or stocks that do not occur in
the HSTT Study Area (e.g., Southern
Resident Killer whales).
General Comments
The majority of the 18 comment
letters received on the 2018 HSTT
proposed rule and 27 comment letters
received on the 2019 HSTT proposed
rule from private citizens expressed
general opposition toward the Navy’s
proposed training and testing activities
and requested that NMFS not issue the
LOAs while one comment on the 2019
HSTT proposed rule expressed general
support, with none of these general
commenters providing information
relevant to NMFS’ decisions. Therefore,
these comments were not considered
further. The remaining comments are
addressed below.
Comment 1: Some commenters
expressed concern with issuing LOAs
for seven years.
Response: Under section 101(a)(5)(A)
of the MMPA, applicants may apply for
the incidental take coverage that they
need for their activities and NMFS
‘‘shall issue’’ the requested
authorizations provided certain findings
(see the Background section) can be
made. In August 2018, Congress
amended the MMPA through the NDAA
for Fiscal Year 2019 to allow for sevenyear authorizations for military
readiness activities, as compared to the
previously allowed five years.
Following the statutory amendment, the
Navy applied for longer term coverage
for its testing and training activities in
the HSTT Study Area, and with NMFS
making the required findings through
this rulemaking, issuance of regulations
and LOAs for the longer period is
appropriate.
Comment 2: Several Commenters
expressed concern and the need for
increased reporting and assessment of
impacts due to impacts of climate
change on marine mammal populations.
Response: We note that the Navy is
required to provide annual reports to
NMFS and the Adaptive Management
process allows for timely modification
of mitigation or monitoring measures
based on new information, when
appropriate (see the Mitigation
Measures and Monitoring sections for
additional detail). The reporting
requirements included in this final rule
are consistent with NMFS’ regulations
and the goals of the monitoring and
reporting program, as discussed in the
2018 HSTT final rule.
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Impact Analysis
General
Comment 3: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that the Navy provide
NMFS with an acoustics analysis that
addresses noise impacts on land, from
the air, and underwater. Full
environmental analysis of the noise
would examine a suite of metrics
appropriate to the array of resources
impacted. The impacts should discuss
potential effects on wildlife, visitors,
and other noise-sensitive receivers.
The commenter also recommended
that the Navy consider the following as
it plans to conduct activities in the
HSTT Study Area:
• Use appropriate metrics to assess
potential environmental impacts on
land and water.
• Determine natural ambient acoustic
conditions as a baseline for analysis.
• Assess effects from cumulative
noise output, incorporating noise
generated from other anthropogenic
sources.
• Determine distance at which noise
will attenuate to natural levels.
• Assess effects that these noise levels
would have on terrestrial wildlife,
marine wildlife, and visitors.
• Appropriate and effective
mitigation measures should be
developed and used to reduce vessel
strike (e.g., timing activities to avoid
migration, and searching for marine
mammals before and during activities
and taking avoidance measures).
Response: The analysis conducted by
the Navy and provided to NMFS was
based on the best available science and
provided NMFS with all information
needed to conduct a complete and
thorough analysis of the effects of Navy
activities on affected marine mammals
and their habitat. In addition, NMFS
refers the Commenter to the 2018 HSTT
FEIS/OEIS which conducted an
assessment of all of the activities which
comprised the proposed action and their
impacts (including cumulative impacts)
along with alternatives to the proposed
action and their impacts to relevant
resources. In the context of this MMPA
rule, the Navy was not required to do
ambient noise monitoring or assess
impacts to wildlife other than marine
mammals or to visitors/tourists. The
mitigation measures in this rule include
procedural measures to use trained
Lookouts to observe for marine
mammals within a mitigation zone
before, during, and after applicable
activities to avoid or reduce potential
impacts wherever and whenever
training and testing activities occur.
Additionally, the Navy will implement
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measures within mitigation areas to
avoid potential impacts in key areas of
importance for marine mammal
foraging, reproduction, and migration.
The mitigation measures in this rule
also include procedural measures to
minimize vessel strike (avoiding whales
by 500 yds, etc.), mitigation areas to
minimize strike in biologically
important areas, and Awareness
Notification Message areas wherein all
vessels are alerted to stay vigilant to the
presence of large whales.
Density Estimates
Comment 4: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that 30 iterations or Monte Carlo
simulations is low for general
bootstrapping methods used in those
models but understands that increasing
the number of iterations in turn
increases the computational time
needed to run the models. Accordingly,
the Commenter suggested that the Navy
consider increasing the iterations from
30 to at least 200 for activities that have
yet to be modeled for upcoming MMPA
rulemakings for Navy testing and
training activities.
Response: In areas where there are
four seasons, 30 iterations are used in
NAEMO which results in a total of 120
iterations per year for each event.
However, in areas where there are only
two seasons, warm and cold, the
number of iterations per season is
increased to 60 so that 120 iterations per
year are maintained. The Navy reached
this number of iterations by running two
iterations of a scenario and calculating
the mean of exposures, then running a
third iteration and calculating the
running mean of exposures, then a
fourth iteration and so on. This is done
until the running mean becomes stable.
Through this approach, it was
determined 120 iterations was sufficient
to converge to a statistically valid
answer and provides a reasonable
uniformity of exposure predictions for
most species and areas. There are a few
exceptions for species with sparsely
populated distributions or highly
variable distributions. In these cases, the
running mean may not flatten out (or
become stable); however, there were so
few exposures in these cases that while
the mean may fluctuate, the overall
number of exposures did not result in
significant differences in the totals. In
total, the number of simulations
conducted for HSTT Phase III exceeded
six million simulations and produced
hundreds of terabytes of data. Increasing
the number of iterations, based on the
discussion above, would not result in a
significant change in the results, but
would incur a significant increase in
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resources (e.g., computational and
storage requirements). This would
divert these resources from conducting
other more consequential analysis
without providing for meaningfully
improved data. The Navy has
communicated that it is continually
looking at ways to improve NAEMO and
reduce data and computational
requirements. As technologies and
computational efficiencies improve, the
Navy will evaluate these advances and
incorporate them where appropriate.
NMFS has reviewed the Navy’s
approach and concurs that it is
technically sound and reflects the best
available science.
Comment 5: In a comment on the
2018 HSTT proposed rule, a Commenter
had concerns regarding the Navy’s
pinniped density estimates. Given that a
single density was provided for the
respective areas and pinnipeds were
assumed to occur at sea as individual
animals, uncertainty does not appear to
have been incorporated in the Navy’s
animat modeling for pinnipeds. The
Navy primarily used sightings or
abundance data, assuming certain
correction factors, divided by an area to
estimate pinniped densities. Many, if
not all, of the abundance estimates had
associated measures of uncertainty (i.e.,
coefficients of variation (CV), standard
deviation (SD), or standard error (SE)).
Therefore, the Commenter
recommended that NMFS require the
Navy to specify whether and how it
incorporated uncertainty in the
pinniped density estimates into its
animat modeling and if it did not,
require the Navy to use measures of
uncertainty inherent in the abundance
data (i.e., CV, SD, SE) similar to the
methods used for cetaceans.
Response: As noted in the cited
technical report ‘‘Quantifying Acoustic
Impacts on Marine Mammals and Sea
Turtles: Methods and Analytical
Approach for Phase III Training and
Testing’’ (U.S. Department of the Navy,
2018), the Navy did not apply statistical
uncertainty outside the survey
boundaries into non-surveyed areas,
since it deemed application of statistical
uncertainty would not be meaningful or
appropriate. We note that there are no
measures of uncertainty (i.e., no CV, SD,
or SE) provided in NMFS Pacific Stock
Assessment Report (SAR) Appendix 3
(Carretta et al., 2019) associated with the
abundance data for any of the pinniped
species present in Southern California.
Although some measures of uncertainty
are presented in some citations within
the SAR and in other relevant
publications for some survey findings, it
is not appropriate for the Navy to
attempt to derive summations of total
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uncertainty for an abundance when the
authors of the cited studies and the SAR
have not. For additional information
regarding use of pinniped density data,
see the cited ‘‘U.S. Navy Marine Species
Density Database Phase III for the
Hawaii-Southern California Training
and Testing Study Area’’ Section 11
(U.S. Department of the Navy, 2017b).
As a result of the lack of published
applicable measures of uncertainty for
pinnipeds during this analysis, the Navy
did not incorporate measures of
uncertainty into the pinniped density
estimates. NMFS independently
reviewed the methods and densities
used by the Navy and concur that they
are appropriate and reflect the best
available science.
Comment 6: In a comment on the
2018 HSTT proposed rule, a Commenter
had concerns regarding the various
areas, abundance estimates, and
correction factors that the Navy used for
pinnipeds. The Commenter referenced a
lot of information in the context of both
what the Navy used and what the
Commenter argued they could have
used instead and summarized the
discussion with several
recommendations.
For harbor seals, the area was based
on the NMFS SOCAL stratum
(extending to the extent of the U.S.
exclusive economic zone (EEZ), 370 km
from the coast) for its vessel-based
surveys (i.e., Barlow 2010) and the Navy
applied the density estimates from the
coast to 80 km offshore. The Commenter
believes that this approach is
inappropriate and that the Navy should
use the area of occurrence to estimate
the densities for harbor seals. For harbor
seals, the Navy assumed that 22 percent
of the stock occurred in SOCAL, citing
Department of the Navy (2015). The
Commenter had two concerns with this
approach. First, one has to go to
Department of the Navy (2015) to
determine the original source of the
information (Lowry et al., 2008; see the
commenter’s February 20, 2014, letter
on this matter). Second, Lowry et al.
(2008) indicated that 23.3 percent of the
harbor seal population occurred in
SOCAL, not 22 percent as used by the
Navy. Therefore, the Commenter
recommended that, at the very least,
NMFS require the Navy to revise the
pinniped density estimates using the
extent of the coastal range (e.g., from
shore to 80 km offshore) of harbor seals
as the applicable area, 23.3 percent of
the California abundance estimate based
on Lowry et al. (2008), and an at-sea
correction factor of 65 percent based on
Harvey and Goley (2011) for both
seasons.
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For monk seals the area was based on
the areas within the 200-m isobaths in
both the Main and Northwest Hawaiian
Islands (MHI and NWHI, respectively)
and areas beyond the 200-m isobaths in
the U.S. EEZ. The Commenter asserted
that some of the abundances used were
not based on best available science. The
Navy noted that its monk seal
abundance was less than that reported
by Baker et al. (2016), but that those
more recent data were not available
when the Navy’s modeling process
began. The Baker et al. (2016) data have
been available for almost two years and
should have been incorporated
accordingly, particularly since the data
would yield greater densities and the
species is endangered. For monk seals,
the Commenter recommended using the
2015 monk seal abundance estimate
from Baker et al. (2016) and an at-sea
correction factor of 63 percent for the
MHI based on Baker et al. (2016) and 69
percent for the NWHI based on Harting
et al. (2017).
For the northern fur seals, the area
was based on the NMFS SOCAL stratum
(extending to the extent of the U.S. EEZ,
370 km from the coast) for its vesselbased surveys (i.e., Barlow, 2010). For
elephant seals, California sea lions, and
Guadalupe fur seals, the area was based
on the Navy SOCAL modeling area. The
Commenter had concerns that these
areas are not based on the biology or
ecology of these species. The
Commenter recommended using the
same representative area for elephant
seals, northern fur seals, Guadalupe fur
seals, and California sea lions.
The Commenter recommended using
an increasing trend of 3.8 percent
annually for the last 15 years for
elephant seals as part of the California
population and at least 31,000 as
representative of the Mexico population
based on Lowry et al. (2014).
Additionally, the commenter
recommended using an at-sea correction
factor of 44 percent for the cold season
and 48 percent for the warm season for
California sea lions based on Lowry and
Forney (2005).
Finally, the Commenter
recommended that NMFS require the
Navy to (1) specify the assumptions
made and the underlying data that were
used for the at-sea correction factors for
Guadalupe and northern fur seals and
(2) consult with experts in academia
and at the NMFS Science Centers to
develop more refined pinniped density
estimates that account for pinniped
movements, distribution, at-sea
correction factors, and density gradients
associated with proximity to haul-out
sites or rookeries.
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Response: The Navy provided
additional clarification regarding the
referenced concerns about areas,
abundance estimates, and correction
factors that were used for pinnipeds. We
note that take estimation is not an exact
science. There are many inputs that go
into an estimate of marine mammal
exposure, and the data upon which
those inputs are based come with
varying levels of uncertainty and
precision. Also, differences in life
histories, behaviors, and distributions of
stocks can support different decisions
regarding methods in different
situations. Different methods may be
supportable in different situations, and,
further, there may be more than one
acceptable method to estimate take in a
particular situation. Accordingly, while
NMFS always ensures that the methods
are technically supportable and reflect
the best available science, NMFS does
not prescribe any one method for
estimating take (or calculating some of
the specific take estimate components
that the Commenter is concerned about).
NMFS reviewed the areas, abundances,
and correction factors used by the Navy
to estimate take and concurs that they
are appropriate. We note the following
in further support of the analysis: while
some of the suggestions the Commenter
makes could provide alternate valid
ways to conduct the analyses, these
modifications are not required in order
to have equally valid and supportable
analyses and, further, would not change
NMFS’ determinations for pinnipeds. In
addition, we note that (1) many of the
specific recommendations that the
Commenter makes are largely minor in
nature: ‘‘44 not 47 percent,’’ ‘‘63 not 61
percent,’’ ‘‘23.3 not 22 percent’’ or ‘‘area
being approximately 13 percent larger;’’
and (2) even where the recommendation
is somewhat larger in scale, given the
ranges of these stocks, the size of the
stocks, and the number and nature of
pinniped takes, recalculating the
estimated take for any of these pinniped
stocks using the Commenter’s
recommended changes would not
change NMFS’ assessment of impacts on
the recruitment or survival of any of
these stocks, or the negligible impact
determination. Below, we address the
Commenter’s issues in more detail and,
while we do not explicitly note it in
every section, NMFS has reviewed the
Navy’s analysis and choices in relation
to these comments and concurs that
they are technically sound and reflect
the best available science.
For harbor seals—Based on the results
from satellite tracking of harbor seals at
Monterey, California and the
documented dive depths (Eguchi and
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41795
Harvey, 2005), the extent of the range
for harbor seals in the HSTT Study Area
used by the Navy (a 50 Nmi buffer
around all known haul-out sites;
approximately 93 km) is more
appropriate than the suggested 80 km
offshore suggested by Commenter.
The comment is incorrect in its claim
that the NMFS and Navy did not use the
best available science. Regarding the
appropriate percentage of the California
Current Ecosystem abundance to assign
to the HSTT Study Area, the 22 percent
that the Navy used is based on the most
recent of the two years provided in
Lowry et al. (2008) rather than the mean
of two years, which is one valid
approach. Additionally, since
approximately 74 percent of the harbor
seal population in the Channel Islands
(Lowry et al., 2017) is present outside
and to the north of the HSTT Study
Area, it is a reasonable assumption that
the 22 percent used already provides a
conservative overestimate and that it
would not be appropriate to apply a
higher percentage of the overall
population for distribution into the
Navy’s modeling areas.
Again, the comment is incorrect in its
claim that the correction factors applied
to population estimates were either
unsubstantiated or incorrect. Regarding
the Commenter’s recommended use of
an at-sea correction factor of 65 percent
for both seasons based on Harvey and
Goley (2011), that correction factor was
specifically meant to apply to the single
molting season when harbor seals are
traditionally surveyed (see discussion in
Lowry et al., 2017). Additionally, the
authors of that study provided a
correction factor (CF = 2.86; 35 percent)
for Southern California but left open the
appropriateness of that factor given the
limited data available at the time. For
these reasons, having separate
correction factors for each of the seasons
is more appropriate as detailed in
Section 11.1.5 (Phoca vitulina, Pacific
harbor seal) of the ‘‘U.S. Navy Marine
Species Density Database Phase III for
the Hawaii-Southern California Training
and Testing Study Area’’ (U.S.
Department of the Navy, 2017b).
For monk seals, as detailed in Section
11.1.4 (Neomonachus schauinslandi,
Hawaiian monk seal) of the ‘‘U.S. Navy
Marine Species Density Database Phase
III for the Hawaii-Southern California
Training and Testing Study Area’’ (U.S.
Department of the Navy, 2017b), the
Navy consulted with the researchers
and subject matter experts at the Pacific
Science Center and the Monk Seal
Recovery Team regarding the abundance
estimates, at sea correction factors, and
distribution for monk seals in the
Hawaiian Islands during development
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of the 2018 HSTT FEIS/OEIS throughout
2015 and the Summer of 2016, and as
used subsequently in its MMPA
application. The Navy incorporated the
results of those consultations, including
unpublished data, into the analysis of
monk seals. Additional details in this
regard to monk seal distributions and
population trends as reflected by the
abundance in the Hawaiian Islands are
presented in the 2018 HSTT FEIS/OEIS
in Section 3.7.2.2.9.2 (Habitat and
Geographic Range) and Section
3.7.2.2.9.3 (Population Trends). The
Navy has indicated that it has continued
ongoing communications with
researchers at the Pacific Islands
Science Center and elsewhere, has
accounted for the findings in the
citations noted by the Commenter
(Baker et al., 2016; Harting et al., 2017)
as well as information in forthcoming
publications provided ahead of
publication via those researchers (cited
as in preparation), and specifically
asked for and received concurrence
from subject matter experts regarding
specific findings presented in the 2018
HSTT FEIS/OEIS regarding monk seals.
The Navy also considered (subsequent
to publication of the 2018 HSTT FEIS/
OEIS) the new Main Hawaiian Islands
haul-out correction factor presented in
the publication by Wilson et al. (2017,
which would be inconsistent with the
use of the Baker et al. (2016) correction
factors suggested by the Commenter),
and the Harting et al. (2017) correction
factor, and considered the new
abundance numbers presented in the
2016 Stock Assessment Report, which
first became available in January 2018.
It is the Navy’s assessment that a
revision of the monk seal at-sea density
would only result in small changes to
the predicted effects and certainly
would not change the conclusions
presented in the 2018 HSTT FEIS/OEIS
regarding impact on the population or
the impact on the species. NMFS
concurs with this conclusion. The Navy
has communicated that it assumes that
as part of the ongoing regulatory
discussions with NMFS, changes to
estimates of effects can be best dealt
with in the next rulemaking given
Wilson et al. (2017) has now also
provided a totally new haulout
correction factor for the Main Hawaiian
Islands that was not considered in Baker
et al. (2016), Harting et al. (2017), or the
2016 SAR. NMFS agrees.
For northern fur seals, elephant seals,
California sea lions, and Guadalupe fur
seals, the Navy consulted with various
subject matter experts regarding the
abundances and distributions used in
the 2018 HSTT FEIS/OEIS analyses for
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these species and based on those
consultations and the literature
available, the Navy and NMFS believe
that the findings presented in the 2018
HSTT FEIS/OEIS and supporting
technical reports provide the most
accurate assessments available for these
species. Given the demonstrated
differences in the at-sea distributions of
elephant seals, northern fur seals,
Guadalupe fur seals, and California sea
lions (Gearin et al., 2017; Lowry et al.,
2014; Lowry, et al., 2017; Norris, 2017;
Norris, et al., 2015; Robinson et al.,
2012; University of California Santa
Cruz and National Marine Fisheries
Service, 2016), it would not be
appropriate to use the same
representative area for distributions of
these species’ population abundances.
For example, California sea lions forage
predominantly within 20 nmi from
shore (Lowry and Forney, 2005), while
tag data shows that many elephant seals
(Robinson et al., 2012) and Guadalupe
fur seals (Norris, 2017) seasonally forage
in deep waters of the Pacific well
outside the boundaries of the HSTT
Study Area.
For northern elephant seals
(Mirounga angustirostris, Northern
elephant seal), as detailed in Section
11.1.3 of the technical report titled U.S.
Navy Marine Species Density Database
Phase III for the Hawaii-Southern
California Training and Testing Study
Area (U.S. Department of the Navy,
2017b), the Navy considered a number
of factors in the development of the data
for this species, including the fact that
not all of the elephant seal population
is likely to occur exclusively within the
Southern California portion of the HSTT
Study Area. Given that the three main
rookeries considered in this analysis are
located at the northern boundary of the
HSTT Study Area and that elephant
seals migrate northward after the
breeding season, the Navy, in
consultation with subject matter
experts, believes the current abundance
used in the analysis is based on the best
available science and represents a
conservative overestimate of the number
of elephant seals likely to be affected by
Navy activities in the HSTT Study Area.
NMFS agrees with this assessment, and
it was used in the MMPA analysis.
For California sea lions, the citation
(Lowry and Forney, 2005) used as the
basis for this recommendation
specifically addressed the use of the
Central and Northern California at-sea
correction factor elsewhere, with the
authors stating; ‘‘In particular, [use of
the Central and Northern California atsea correction factor] would not be
appropriate for regions where sea lions
reproduce, such as in the Southern
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California Bight (SCB) and in Mexico,
. . .’’ Given the waters of the Southern
California Bight and off Mexico overlap
the HSTT Study Area and since the
authors of the cited study specifically
recommended not using the correction
factor in the manner the Commenter
suggested, the Navy does not believe use
of that correction factor for the HSTT
Study Area would be appropriate.
NMFS concurs with this approach.
For Guadalupe fur seal—Additional
detail regarding the data used for the
analysis of Guadalupe fur seals was
added to the 2018 HSTT FEIS/OEIS
Section 3.7.2.2.8 (Arctocephalus
townsendi, Guadalupe Fur Seal). The
Navy had integrated the latest
(September 2017) unpublished data for
Guadalupe fur seals from researchers in
the United States and Mexico into the
at-sea correction factor and density
distribution of the species used in the
modeling, but consultations with
experts in academia and at the NMFS
Science Centers and their
recommendations had not been
finalized before release of the Draft EIS/
OEIS. Subsequently, this revision of the
text was not considered critical for the
final NEPA document since the new
data did not provide any significant
change to the conclusions reached
regarding the Guadalupe fur seal
population. In fact, the data indicates an
increase in the population and
expansion of their range concurrent
with decades of ongoing Navy training
and testing in the SOCAL range
complex. The Navy recently supported
new census and at-sea satellite tagging
of Guadalupe fur seals in 2018 and
2019. These data were not available
during the development of the 2018
HSTT FEIS/OEIS, but the results do not
change the overall conclusions. For
instance, Guadalupe fur seals tagged to
date are truly pelagic and mainly transit
the offshore (<2000 m) waters of the
HSTT SOCAL area (Norris et al., 2019a,
2019b; Norris et al., 2020). Therefore,
modeled takes are likely an overprediction of exposure. NMFS agrees
with this assessment, and it was used in
the MMPA analysis.
For Northern Fur Seal—As presented
in Section 11.1.2 (Callorhinus ursinus,
Northern fur seal) of the Navy’s Density
Technical Report (U.S. Department of
the Navy, 2017b), the correction factor
percentages for northern fur seals
potentially at sea were derived from the
published literature as cited (Antonelis
et al., 1990; Ream, et al., 2005; Roppel,
1984).
For future EISs, the Navy explained
that it did and will continue to consult
with authors of the papers relevant to
the analyses as well as other experts in
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academia and at the NMFS Science
Centers during the development of the
Navy’s analyses. During the
development of the 2018 HSTT EIS/
OEIS and as late as September 2017, the
Navy had ongoing communications with
various subject matter experts and
specifically discussed pinniped
movements, the distribution of
populations within the study area to
support the analyses, the pinniped
haulout or at-sea correction factors, and
the appropriateness of density gradients
associated with proximity to haul-out
sites or rookeries. As shown in the
references cited, the personal
communications with researchers have
been made part of the public record,
although many other informal
discussions with colleagues have also
assisted in the Navy’s approach to the
analyses presented.
The Navy acknowledges that there
have been previous comments provided
by this Commenter on other Navy range
complex documents regarding the use of
satellite tag movement and location data
to derive at-sea pinniped density data,
and the Navy asserts that previous
responses to those comments remain
valid. Additionally, the Commenter has
noted that the ‘‘. . . Commenter
continues to believe that data regarding
movements and dispersion of tagged
pinnipeds could yield better
approximations of densities than the
methods the Navy currently uses.’’ The
Navy acknowledges that in comments to
previous HSTT EIS/OEIS analyses, the
Commenter has recommended this
untried approach; responses to those
previous comments have been provided.
The Navy also notes that there have
been papers suggesting the future
application of Bayesian or Markov chain
techniques for use in habitat modeling
(e.g., Redfern et al., 2006) and
overcoming the bias introduced by
interpretation of population habitat use
based on non-randomized tagging
locations (e.g., Whitehead and Jonsen,
2013). However, the use of satellite tag
location data in a Bayesian approach to
derive cetacean or pinniped densities at
sea has yet to be accepted,
implemented, or even introduced in the
scientific literature.
This issue was in fact recently
discussed as part of the Density
Modeling Workshop associated with the
October 2017 Society for Marine
Mammalogy conference. The consensus
of the marine mammal scientists present
was that while pinniped tag data could
provide a good test case, it realistically
was unlikely to be a focus of the nearterm research. The working group
determined that a focused technical
group should be established to
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specifically discuss pinnipeds and data
available for density surface modelling
in the future. It was also discussed at the
Density Modeling Workshop in October
2018. The Navy has convened a
pinniped working group and NMFS
Alaska Fisheries Science Center is
sponsoring a demonstration project to
use haul-out and telemetry data from
seals in Alaska to determine the
viability of such an approach.
Therefore, consistent with previous
assessments and based on recent
discussions with subject matter experts
in academia, the NMFS Science Centers,
and the National Marine Mammal
Laboratory, and given there is no
currently established methodology for
implementing the approach suggested
by the Commenter, the Navy believes
that attempting to create and apply a
new density derivation method at this
point would introduce additional levels
of uncertainty into density estimations.
For these reasons, the Navy and
NMFS did not use density estimates
based on pinniped tracking data.
Publications reporting on satellite tag
location data have been and will
continue to be used to aid in the
understanding of pinniped distributions
and density calculations as referenced
in the 2018 HSTT FEIS/OEIS and the
Navy’s ‘‘U.S. Navy Marine Species
Density Database Phase III for the
Hawaii-Southern California Training
and Testing Study Area’’ report (U.S.
Department of the Navy, 2017b). The
Navy has communicated that it will
continue, as it has in the past, to refine
pinniped density and distributions
using telemetry data and evolving new
techniques (such as passive acoustic
survey data) in development of the
Navy’s analyses. As noted above, NMFS
has reviewed the Navy’s methods and
concurs that they are appropriate and
reflect the best available science.
Comment 7: Commenters noted that
in the 2018 HSTT final rule, NMFS
stated that it would incorporate the best
and most recently available abundance
and haul out data for monk seals into its
next rulemaking, but failed to do so in
the 2019 HSTT proposed rule. They
argued that in light of the critical status
of the monk seals, which number
approximately 1,415 individuals, there
is no justification for NMFS’ failure to
comply with the MMPA’s command to
incorporate the best available science
into the proposed extension rule.
Response: As described in the
response to Comment 6, in developing
the Marine Species Density Database
Phase III for the Hawaii-Southern
California Training and Testing Study
Area, as part of the 2018 HSTT FEIS/
OEIS, the Navy consulted with
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researchers and subject matter experts at
NMFS’ Pacific Islands Fisheries Science
Center and the Monk Seal Recovery
Team regarding the abundance
estimates, at sea correction factors, and
distribution for monk seals in the
Hawaiian Islands. The Navy
incorporated the results of those
consultations, including unpublished
data from Wilson et al., then in review,
into the analysis of monk seals for the
2018 HSTT FEIS/OEIS and the 2017 and
2019 Navy Applications. When
developing the analysis for monk seals,
the Navy, in consultation with
researchers at the NMFS Pacific Islands
Fisheries Science Center, incorporated
an estimated increased monk seal
abundance. The published SAR for
Hawaiian monk seals at the time (2015)
reported a population size of 1,112,
however in consultation with NMFS the
Navy used a population size of 1,300.
This estimate was also in agreement
with the population size estimates
reported by Baker et al. (2016) (2013 =
1,291, 2014 = 1,309, 2015 = 1,324). The
most recent draft 2019 SARs report a
population size of 1,351 and the
abundance estimate used in the Navy’s
analyses is within the 95 percent
confidence interval (1,294–1,442; CV =
0.03). It is the Navy’s assessment that a
revision of the monk seal at-sea density
(given the most recent abundance
estimate of 1,351) would result in only
very small changes to the predicted
effects (particularly given the
distribution of monk seals in the HSTT
Study Area) and would not change the
conclusions presented in the 2018
HSTT FEIS/OEIS and 2017 and 2019
Navy applications regarding impact on
the population or the impact on the
species. NMFS concurs with this
conclusion. NMFS and the Navy will
continue to consider the most recent
and best available data in future EIS and
MMPA rule analyses.
Comment 8: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS require the
Navy to (1) specify what modeling
method and underlying assumptions,
including any relevant source spectra
and assumed animal swim speeds and
turnover rates, were used to estimate the
ranges to PTS and TTS for impact and
vibratory pile-driving activities, (2)
accumulate the energy for the entire day
of proposed activities to determine the
ranges to PTS and TTS for impact and
vibratory pile-driving activities, and (3)
clarify why the PTS and TTS ranges
were estimated to be the same for LF
and HF cetaceans during impact pile
driving.
Response: As explained in Section
3.7.3.1.4.1 of the 2018 HSTT FEIS/OEIS,
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the Navy measured values for source
levels and transmission loss from pile
driving of the Elevated Causeway
System, the only pile driving activity
included in the Specified Activity. The
Navy reviewed the source levels and
how the spectrum was used to calculate
the range to effects; NMFS supports the
use of these measured values for the
MMPA analysis. These recorded source
waveforms were weighted using the
auditory weighting functions. Lowfrequency and high-frequency cetaceans
have similar ranges for impact pile
driving since low-frequency cetaceans
would be relatively more sensitive to
the low-frequency sound which is
below high-frequency cetaceans’ best
range of hearing. Neither the NMFS user
spreadsheet nor NAEMO were required
for calculations. An area density model
was developed in MS Excel which
calculated zones of influence (ZOI) to
thresholds of interest (e.g., behavioral
response) based on durations of pile
driving and the aforementioned
measured and weighted source level
values. The resulting area was then
multiplied by density of each marine
mammal species that could occur
within the vicinity. This produced an
estimated number of animals that could
be impacted per pile, per day, and
overall during the entire activity for
both the impact pile driving and
vibratory removal phases. NMFS
reviewed the manner in which the Navy
applied the frequency weighting and
calculated all values and concurred
with the approach.
Regarding the appropriateness of
accumulating energy for the entire day,
based on the best available science
regarding animal reaction to sound,
selecting a reasonable SEL calculation
period is necessary to more accurately
reflect the time period an animal would
likely be exposed to the sound. The
Navy factored both mitigation
effectiveness and animal avoidance of
higher sound levels into the impact pile
driving analysis. For impact pile
driving, the mitigation zone extends
beyond the average ranges to PTS for all
hearing groups; therefore, mitigation
will help prevent or reduce the potential
for exposure to PTS. The impact pile
driving mitigation zone also extends
beyond or into a portion of the average
ranges to TTS; therefore, mitigation will
help prevent or reduce the potential for
exposure to all TTS or some higher
levels of TTS, depending on the hearing
group. Mitigation effectiveness and
animal avoidance of higher sound levels
were both factored into the impact pile
driving analysis as most marine
mammals should be able to easily move
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away from the expanding ensonified
zone of TTS/PTS within 60 seconds,
especially considering the soft start
procedure, or avoid the zone altogether
if they are outside of the immediate area
upon startup. Marine mammals are
likely to leave the immediate area of
pile driving and extraction activities
and be less likely to return as activities
persist. However, some ‘‘naive’’ animals
may enter the area during the short
period of time when pile driving and
extraction equipment is being repositioned between piles. Therefore, an
animal ‘‘refresh rate’’ of 10 percent was
selected. This means that 10 percent of
the single pile ZOI was added for each
consecutive pile within a given 24-hour
period to generate the daily ZOI per
effect category. These daily ZOIs were
then multiplied by the number of days
of pile driving and pile extraction and
then summed to generate a total ZOI per
effect category (i.e., behavioral response,
TTS, PTS). The small size of the
mitigation zone and its close proximity
to the observation platform will result in
a high likelihood that Lookouts would
be able to detect marine mammals
throughout the mitigation zone. NMFS
concurs with the Navy’s approach, and
it was used in the MMPA analysis.
PTS/TTS Thresholds
Comment 9: In a comment on the
2018 HSTT proposed rule, a Commenter
supported the weighting functions and
associated thresholds as stipulated in
Finneran (2016), which are the same as
those used for Navy Phase III activities,
but points to additional recent studies
that provide additional behavioral
audiograms (e.g., Branstetter et al., 2017;
Kastelein et al., 2017b) and information
on TTS (e.g., Kastelein et al., 2017a,
2017c). However, they commented that
the Navy should provide a discussion of
whether those new data corroborate the
current weighting functions and
associated thresholds.
Response: The NMFS Revised
Technical Guidance for Assessing the
Effects of Anthropogenic Sound on
Marine Mammal Hearing (NMFS 2018)
(Acoustic Technical Guidance), which
was used in the assessment of effects for
this rulemaking, compiled, interpreted,
and synthesized the best available
scientific information for noise-induced
hearing effects for marine mammals to
derive updated thresholds for assessing
the impacts of noise on marine mammal
hearing, including the articles that the
Commenter referenced that were
published subsequent to the publication
of the first version of 2016 Acoustic
Technical Guidance. The new data
included in those articles are consistent
with the thresholds and weighting
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functions included in the current
version of the Acoustic Technical
Guidance (NMFS, 2018).
NMFS will continue to review and
evaluate new relevant data as it becomes
available and consider the impacts of
those studies on the Acoustic Technical
Guidance to determine what revisions/
updates may be appropriate. Thus far,
no new information has been published
or otherwise conveyed that would
fundamentally change the assessment of
impacts or conclusions of this rule.
Furthermore, the recent peer-reviewed
updated marine mammal noise
exposure criteria by Southall et al.
(2019a) provide identical PTS and TTS
thresholds to those provided in NMFS’
Acoustic Technical Guidance.
Comment 10: In a comment on the
2018 HSTT proposed rule, Commenters
stated that the criteria that NMFS has
produced to estimate temporary
threshold shift (TTS) and permanent
threshold shift (PTS) in marine
mammals are erroneous and nonconservative. Commenters cited
multiple purported issues with NMFS’
Acoustic Technical Guidance, such as
pseudoreplication and inconsistent
treatment of data, broad extrapolation
from a small number of individuals, and
disregarding ‘‘non-linear accumulation
of uncertainty.’’ Commenters suggested
that NMFS not rely exclusively on its
auditory guidance for determining Level
A harassment take, but should at a
minimum retain the historical 180-dB
rms Level A harassment threshold as a
‘‘conservative upper bound’’ or conduct
a ‘‘sensitivity analysis’’ to ‘‘understand
the potential magnitude’’ of the
supposed errors.
Response: NMFS disagrees with this
characterization of the Acoustic
Technical Guidance and the associated
recommendation. The Acoustic
Technical Guidance is a compilation,
interpretation, and synthesis of the
scientific literature that provides the
best scientific information regarding the
effects of anthropogenic sound on
marine mammals’ hearing. The
technical guidance was classified as a
Highly Influential Scientific Assessment
and, as such, underwent three
independent peer reviews, at three
different stages in its development,
including a follow-up to one of the peer
reviews, prior to its dissemination by
NMFS. In addition, there were three
separate public comment periods,
during which time we received and
responded to similar comments on the
guidance (81 FR 51694), which we
cross-reference here, and more recent
public and interagency review under
Executive Order 13795. This review
process was scientifically rigorous and
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ensured that the Guidance represents
the best scientific data available.
Furthermore, the recent peer-reviewed
updated marine mammal noise
exposure criteria by Southall et al.
(2019a) provide identical PTS and TTS
thresholds to those provided in NMFS’
Acoustic Technical Guidance.
The Acoustic Technical Guidance
updates the historical 180 dB rms injury
threshold, which was based on
professional judgement (i.e., no data
were available on the effects of noise on
marine mammal hearing at the time this
original threshold was derived). NMFS
disagrees with any suggestion that the
use of the Acoustic Technical Guidance
provides erroneous results. The 180-dB
rms threshold is plainly outdated, as the
best available science indicates that rms
SPL is not even an appropriate metric
by which to gauge potential auditory
injury.
Multiple studies from humans,
terrestrial mammals, and marine
mammals have demonstrated less TTS
from intermittent exposures compared
to continuous exposures with the same
total energy because hearing is known to
experience some recovery in between
noise exposures, which means that the
effects of intermittent noise sources
such as tactical sonars are likely
overestimated. Marine mammal TTS
data have also shown that, for two
exposures with equal energy, the longer
duration exposure tends to produce a
larger amount of TTS. Most marine
mammal TTS data have been obtained
using exposure durations of tens of
seconds up to an hour, much longer
than the durations of many tactical
sources (much less the continuous time
that a marine mammal in the field
would be exposed consecutively to
those levels), further suggesting that the
use of these TTS data are likely to
overestimate the effects of sonars with
shorter duration signals.
Regarding the suggestion of
pseudoreplication and erroneous
models, since marine mammal hearing
and noise-induced hearing loss data are
limited, both in the number of species
and in the number of individuals
available, attempts to minimize
pseudoreplication would further reduce
these already limited data sets.
Specifically, with marine mammal
behavioral temporary threshold shift
studies, behaviorally derived data are
only available for two mid-frequency
cetacean species (bottlenose dolphin,
beluga) and two phocids (in-water)
pinniped species (harbor seal and
northern elephant seal), with otariid (inwater) pinnipeds and high-frequency
cetaceans only having behaviorallyderived data from one species.
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Arguments from Wright (2015)
regarding pseudoreplication within the
TTS data are therefore largely irrelevant
in a practical sense because there are so
few data. Multiple data points were not
included for the same individual at a
single frequency. If multiple data
existed at one frequency, the lowest TTS
onset was always used. There is only a
single frequency where TTS onset data
exist for two individuals of the same
species: 3 kHz for dolphins. Their TTS
(unweighted) onset values were 193 and
194 dB re 1 mPa2s. Thus, NMFS believes
that the current approach makes the best
use of the given data. Appropriate
means of reducing pseudoreplication
may be considered in the future, if more
data become available. Many other
comments from Wright (2015) and the
comments from Racca et al. (2015b)
appear to be erroneously based on the
idea that the shapes of the auditory
weighting functions and TTS/PTS
exposure thresholds are directly related
to the audiograms; i.e., that changes to
the composite audiograms would
directly influence the TTS/PTS
exposure functions (e.g., Wright (2015)
describes weighting functions as
‘‘effectively the mirror image of an
audiogram’’ (p. 2) and states, ‘‘The
underlying goal was to estimate how
much a sound level needs to be above
hearing threshold to induce TTS.’’ (p.
3)). Both statements are incorrect and
suggest a fundamental
misunderstanding of the criteria/
threshold derivation. This would
require a constant (frequencyindependent) relationship between
hearing threshold and TTS onset that is
not reflected in the actual marine
mammal TTS data. Attempts to create a
‘‘cautionary’’ outcome by artificially
lowering the composite audiogram
thresholds would not necessarily result
in lower TTS/PTS exposure levels, since
the exposure functions are to a large
extent based on applying mathematical
functions to fit the existing TTS data.
Behavioral Harassment Thresholds
Comment 11: In a comment on the
2018 HSTT proposed rule, Commenters
commented on what they assert is
NMFS’ failure to set proper thresholds
for behavioral impacts. Referencing the
biphasic function that assumes an
unmediated dose response relationship
at higher received levels and a contextinfluenced response at lower received
levels that NMFS uses to quantify
behavioral harassment from sonar,
Commenters commented that resulting
functions depend on some
inappropriate assumptions that tend to
significantly underestimate effects.
Commenters expressed concern that
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every data point that informs the
agency’s pinniped function, and nearly
two-thirds of the data points informing
the odontocete function (30/49), are
derived from a captive animal study.
Additionally, Commenters asserted that
the risk functions do not incorporate
(nor does NMFS apparently consider) a
number of relevant studies on wild
marine mammals. The Commenters
stated that it is not clear from the
proposed rule, or from the Navy’s recent
technical report on acoustic ‘‘criteria
and thresholds,’’ on which NMFS’
approach in the rule is based, exactly
how each of the studies that NMFS
employed was applied in the analysis,
or how the functions were fitted to the
data, but the available evidence on
behavioral response raises concerns that
the functions are not conservative for
some species. Commenters
recommended NMFS make additional
technical information available,
including from any expert elicitation
and peer review, so that the public can
fully comment.
Response: The ‘‘Criteria and
Thresholds for U.S. Navy Acoustic and
Explosive Impacts to Marine Mammals
and Sea Turtles Technical Report’’ (U.S.
Department of the Navy, 2017a) details
how the Navy’s proposed method,
which was determined appropriate and
adopted by NMFS, accounted for the
differences in captive and wild animals
in the development of the behavioral
response functions. The Navy used the
best available science, which has been
reviewed by external scientists and
approved by NMFS, in the analysis. The
Navy and NMFS have utilized all
available data that relate known or
estimable received levels to
observations of individual or group
behavior as a result of sonar exposure
(which is needed to inform the
behavioral response function) for the
development of updated thresholds.
Limiting the data to the small number
of field studies that include these
necessary data would not provide
enough data with which to develop the
new risk functions. In addition, NMFS
agrees with the assumptions made by
the Navy, including the fact that captive
animals may be less sensitive, in that
the scale at which a moderate to severe
response was considered to have
occurred is different for captive animals
than for wild animals, as the agency
understands those responses will be
different.
The new risk functions were
developed in 2016, before several recent
papers were published or the data were
available. As new science is published,
NMFS and the Navy continue to
evaluate the information. The
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thresholds have been rigorously vetted
among scientists and within the Navy
community and then reviewed by the
public before being applied—all
applicable technical information
considered has been shared with the
public. It is not possible to revise and
update the criteria and risk functions
every time a new paper is published.
These new papers provide additional
information, and the Navy has
considered them for updates to the
thresholds in the future, when the next
round of updated criteria will be
developed. Thus far, no new
information has been published or
otherwise conveyed that would
fundamentally change the assessment of
impacts or conclusions of the HSTT
FEIS/OEIS or this rule. To be included
in the behavioral response function,
data sets need to relate known or
estimable received levels to
observations of individual or group
behavior. Melcon et al. (2012) does not
relate observations of individual/group
behavior to known or estimable received
levels (at that individual/group). In
Melcon et al. (2012), received levels at
the HARP buoy averaged over many
hours are related to probabilities of Dcalls, but the received level at the blue
whale individuals/group are unknown.
As noted, the derivation of the
behavioral response functions is
provided in the 2017 technical report
titled ‘‘Criteria and Thresholds for U.S.
Navy Acoustic and Explosive Effects
Analysis (Phase III)’’. The appendices to
this report detail the specific data points
used to generate the behavioral response
functions. Data points come from
published data that is readily available
and cited within the technical report.
Comment 12: In a comment on the
2018 HSTT proposed rule, Commenters
stated concerns with the use of distance
‘‘cut-offs’’ in the behavioral harassment
thresholds, and one commenter
recommended that NMFS refrain from
using cut-off distances in conjunction
with the Bayesian BRFs and re-estimate
the numbers of marine mammal takes
based solely on the Bayesian BRFs.
Response: The consideration of
proximity (cut-off distances) was part of
the criteria developed in consultation
between the Navy and NMFS, is
appropriate based on the best available
science which shows that marine
mammal responses to sound vary based
on both sound level and distance, and
was applied within the Navy’s acoustic
effects model. The derivation of the
behavioral response functions and
associated cut-off distances is provided
in the 2017 technical report titled
‘‘Criteria and Thresholds for U.S. Navy
Acoustic and Explosive Effects Analysis
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(Phase III)’’. To account for nonapplicable contextual factors, all
available data on marine mammal
reactions to actual Navy activities and
other sound sources (or other large scale
activities such as seismic surveys when
information on proximity to sonar
sources is not available for a given
species group) were reviewed to find the
farthest distance to which significant
behavioral reactions were observed.
These distances were rounded up to the
nearest 5 or 10 km interval, and for
moderate to large scale activities using
multiple or louder sonar sources, these
distances were greatly increased—
doubled in most cases. The Navy’s BRFs
applied within these distances provide
technically sound methods reflective of
the best available science to estimate the
impact and potential take under military
readiness for the actions analyzed
within the 2018 HSTT FEIS/OEIS and
included in these regulations. NMFS
has independently assessed the Navy’s
behavioral harassment thresholds and
believes that they appropriately apply
the best available science and it is not
necessary to recalculate take estimates.
The Commenter also specifically
expressed concern that distance ‘‘cutoffs’’ alleviate some of the exposures
that would otherwise have been counted
if the received level alone were
considered. It is unclear why the
Commenter finds this inherently
inappropriate, as this is what the data
show. As noted previously, there are
multiple studies illustrating that in
situations where one would expect a
behavioral harassment because of the
received levels at which previous
responses were observed, it has not
occurred when the distance from the
source was larger than the distance of
the first observed response.
Comment 13: In a comment on the
2018 HSTT proposed rule regarding cutoff distances, Commenters noted that
dipping sonar appears to be a significant
predictor of deep-dive rates in beaked
whales on Southern California Antisubmarine Warfare Range (SOAR), with
the dive rate falling significantly (e.g., to
35 percent of that individual’s control
rate) during sonar exposure, and
likewise appears associated with habitat
abandonment. Importantly, these effects
were observed at substantially greater
distances (e.g., 30 or more km) from
dipping sonar than would otherwise be
expected given the systems’ source
levels and the beaked whale response
thresholds developed from research on
hull-mounted sonar. Commenters
suggested that the analysis, and
associated cut-off distances, do not
properly consider the impacts of
dipping sonar.
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Response: The Navy relied upon the
best science that was available to
develop the behavioral response
functions in consultation with NMFS.
The Navy’s current beaked whale BRF
acknowledges and incorporates the
increased sensitivity observed in beaked
whales during both behavioral response
studies and during actual Navy training
events, as well as the fact that dipping
sonar can have greater effects than some
other sources with the same source
level. Specifically, the distance cut-off
for beaked whales is 50 km, larger than
any other group. Moreover, although
dipping sonar has a significantly lower
source level than hull-mounted sonar, it
is included in the category of sources
with larger distance cut-offs, specifically
in acknowledgement of its
unpredictability and association with
observed effects. This means that
‘‘takes’’ are reflected at lower received
levels that would have been excluded
because of the distance for other source
types.
The referenced article (Falcone et al.,
2017) was not available at the time the
BRFs were developed. However, NMFS
and the Navy have reviewed the article
and concur that neither this article nor
any other new information that has been
published or otherwise conveyed since
the 2018 HSTT proposed rule was
published would change the assessment
of impacts or conclusions in the 2018
HSTT FEIS/OEIS or in this rulemaking.
Nonetheless, the new information and
data presented in the new article were
thoroughly reviewed by the Navy and
will be quantitatively incorporated into
future behavioral response functions, as
appropriate, when and if other new data
that would meaningfully change the
functions would necessitate their
revision.
Furthermore, ongoing Navy funded
beaked whale monitoring at the same
site where the dipping sonar tests were
conducted has not documented habitat
abandonment by beaked whales. Passive
acoustic detections of beaked whales
have not significantly changed over ten
years of monitoring (DiMarzio et al.,
2018, updated in 2020). From visual
surveys in the area since 2006 there
have been repeated sightings of: The
same individual beaked whales, beaked
whale mother-calf pairs, and beaked
whale mother-calf pairs with mothers
on their second calf (Schorr et al., 2018,
2020). Satellite tracking studies of
beaked whale documented high site
fidelity to this area (Schorr et al., 2018,
updated in 2020).
Comment 14: In a comment on the
2018 HSTT proposed rule regarding the
behavioral thresholds for explosives,
Commenters recommended that NMFS
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estimate and ultimately authorize
behavioral takes of marine mammals
during all explosive activities, including
those that involve single detonations.
Response: The derivation of the
explosive injury criteria is provided in
the 2017 technical report titled ‘‘Criteria
and Thresholds for U.S. Navy Acoustic
and Explosive Effects Analysis (Phase
III),’’ and NMFS has applied the general
rule a commenter referenced to single
explosives for years, i.e., that marine
mammals are unlikely to respond to a
single instantaneous detonation at
received levels below the TTS threshold
in a manner that would rise to the level
of a take. Neither NMFS nor the Navy
are aware of evidence to support the
assertion that animals will have
significant behavioral reactions (i.e.,
those that would rise to the level of a
take) to temporally and spatially
isolated explosions below the TTS
threshold.
Marine mammals may be exposed to
isolated impulses in their natural
environment (e.g., lightning). There is
no evidence to support that animals
have significant behavioral responses to
temporally and spatially isolated
impulses (such as military explosions)
that may rise to the level of
‘‘harassment’’ under the MMPA for
military readiness activities. Still, the
analysis conservatively assumes that
any modeled instance of temporally or
spatially separated detonations
occurring in a single 24-hour period
would result in harassment under the
MMPA for military readiness activities.
The Navy has been monitoring
detonations since the 1990s and has not
observed these types of reactions. To be
clear, this monitoring has occurred
under the monitoring plans developed
specifically for shock trials, the
detonations with the largest net
explosive weight conducted by the
Navy, and no shock trials are proposed
in this Study Area.
Further, to clarify, the current take
estimate framework does not preclude
the consideration of animals being
behaviorally disturbed during single
explosions as they are counted as ‘‘taken
by Level B harassment’’ if they are
exposed above the TTS threshold,
which is only 5 dB higher than the
behavioral harassment threshold. We
acknowledge in our analysis that
individuals exposed above the TTS
threshold may also be behaviorally
harassed and those potential impacts are
considered in the negligible impact
determination.
All of the Navy’s monitoring projects,
reports, and publications are available
on the marine species monitoring web
page (https://
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www.navymarinespeciesmonitoring.
us/). NMFS will continue to review
applicable monitoring and science data
and consider modifying these criteria
when and if new information suggests it
is appropriate.
Mortality and injury thresholds for
explosions
Comment 15: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS require the
Navy to (1) explain why the constants
and exponents for onset mortality and
onset slight lung injury thresholds for
Phase III have been amended, (2) ensure
that the modified equations are correct,
and (3) specify any additional
assumptions that were made.
Response: The derivation of the
explosive injury equations, including
any assumptions, is provided in the
2017 technical report titled ‘‘Criteria
and Thresholds for U.S. Navy Acoustic
and Explosive Effects Analysis (Phase
III)’’. It is our understanding that the
constants and exponents for onset
mortality and onset slight lung injury
were amended by the Navy since Phase
II to better account for the best available
science. Specifically, the equations were
modified in Phase III to fully
incorporate the injury model in
Goertner (1982), specifically to include
lung compression with depth. NMFS
independently reviewed and concurred
with this approach.
Comment 16: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that the Navy only used the onset
mortality and onset slight lung injury
criteria to determine the range to effects,
while it used the 50 percent mortality
and 50 percent slight lung injury criteria
to estimate the numbers of marine
mammal takes. The Commenter believes
that this approach is inconsistent with
the manner in which the Navy
estimated the numbers of takes for PTS,
TTS, and behavioral disruption for
explosive activities. All of those takes
have been and continue to be based on
onset, not 50-percent values. The
Commenter commented on
circumstances of the deaths of multiple
common dolphins during one of the
Navy’s underwater detonation events in
March 2011 (Danil and St. Leger, 2011)
and indicated that the Navy’s mitigation
measures are not fully effective,
especially for explosive activities. The
Commenter believes it would be more
prudent for the Navy to estimate injuries
and mortalities based on onset rather
than a 50-percent incidence of
occurrence. The Navy did indicate that
it is reasonable to assume for its impact
analysis—thus its take estimation
process—that extensive lung
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hemorrhage is a level of injury that
would result in mortality for a wild
animal (Department of the Navy 2017a).
Thus, the Commenter asserted that it is
unclear why the Navy did not follow
through with that premise. The
Commenter recommended that NMFS
use onset mortality, onset slight lung
injury, and onset GI tract injury
thresholds to estimate both the numbers
of marine mammal takes and the
respective ranges to effect.
Response: Based on an extensive
review of the incident referred to by the
Commenter, in coordination with NMFS
the Navy revised and updated the
mitigation for these types of events.
There have been no further incidents
since these mitigation changes were
instituted in 2011. The Navy used the
range to one percent risk of mortality
and injury (referred to as ‘‘onset’’ in the
Draft EIS/OEIS) to inform the
development of mitigation zones for
explosives. In all cases, the mitigation
zones for explosives extend beyond the
range to one percent risk of nonauditory injury, even for a small animal
(representative mass = 5 kg). The 2018
HSTT FEIS/OEIS clarified that the
‘‘onset’’ non-auditory injury and
mortality criteria are actually one
percent risk criteria.
Over-predicting impacts, which
would occur with the use of one percent
non-auditory injury risk criteria in the
quantitative analysis, would not afford
extra protection to any animal. The
Navy, in coordination with NMFS, has
determined that the 50 percent
incidence of occurrence is a reasonable
representation of a potential effect and
appropriate for take estimation.
Although the commenter implies that
the Navy did not use extensive lung
hemorrhage as indicative of mortality,
that statement is incorrect. Extensive
lung hemorrhage is assumed to result in
mortality, and the explosive mortality
criteria are based on extensive lung
injury data. See the 2017 technical
report titled ‘‘Criteria and Thresholds
for U.S. Navy Acoustic and Explosive
Effects Analysis (Phase III).’’
Range to Effects
Comment 17: In a comment on the
2018 HSTT proposed rule, a Commenter
noted that regarding TTS, the ranges to
effect provided in Table 25 of the
Federal Register notice of the 2018
HSTT proposed rule and Table 6–4 of
the 2017 Navy application appear to be
incorrect. The ranges for LF cetaceans
should increase with increasing sonar
emission time. Therefore, the
Commenter recommended that NMFS
determine what the appropriate ranges
to TTS for bin LF5 should be and amend
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the ranges for the various functional
hearing groups in the tables accordingly.
Response: The table regarding the
Range to Temporary Threshold Shift for
sonar bin LF5 over a representative
range of environments within the HSTT
Study Area (Table 25 in the Proposed
and Final Rules) is correct. The reason
the values in the tables in the rules and
the 2018 HSTT FEIS/OEIS do not
change over the indicated interval (1
sec, 30 sec, 60 sec, 120 sec) is that the
LF5 pulse interval is longer than these
values, hence the same range to TTS in
the table. The values are consistent
across the board because the max source
level of LF5 (<180 dB SPL) is so close
to the LF cetacean TTS threshold 179
dB SEL. At such small range to effects,
the resolution of NAEMO comes into
play, and such small changes in range
to effects cannot be discerned between
the example durations.
Mitigation and Avoidance Calculations
Comment 18: In a comment on the
2018 HSTT proposed rule, Commenters
cited concerns that there was not
enough information by which to
evaluate the Navy’s post-modeling
calculations to account for mitigation
and avoidance and imply that Level A
takes and mortality takes may be
underestimated. One Commenter
recommended that NMFS (1) authorize
the total numbers of model-estimated
Level A harassment (PTS) and mortality
takes rather than reduce the estimated
numbers of takes based on the Navy’s
post-model analyses and (2) use those
numbers, in addition to the revised
Level B harassment takes, to inform its
negligible impact determination
analyses.
Response: The consideration of
marine mammal avoidance and
mitigation effectiveness is integral to the
Navy’s overall analysis of impacts from
sonar and explosive sources. NMFS has
independently evaluated the method
and agrees that it is appropriately
applied to augment the model in the
prediction and authorization of injury
and mortality as described in the rule.
Details of this analysis are provided in
the Navy’s 2018 technical report titled
‘‘Quantifying Acoustic Impacts on
Marine Mammals and Sea Turtles:
Methods and Analytical Approach for
Phase III Training and Testing’’;
additional information on the mitigation
analysis also was included in the 2018
HSTT final rule.
Sound levels diminish quickly below
levels that could cause PTS. Studies
have shown that all animals observed
avoid areas well beyond these zones;
therefore, the vast majority of animals
are likely to avoid sound levels that
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could cause injury to their ear. As
discussed in the Navy’s 2018 technical
report titled ‘‘Quantifying Acoustic
Impacts on Marine Mammals and Sea
Turtles: Methods and Analytical
Approach for Phase III Training and
Testing,’’ animats in the Navy’s acoustic
effects model do not move horizontally
or ‘‘react’’ to sound in any way.
However, the current best available
science based on a growing body of
behavioral response research shows that
animals do in fact avoid the immediate
area around sound sources to a distance
of a few hundred meters or more
depending upon the species (see
Appendix B of the ‘‘Criteria and
Thresholds for U.S. Navy Acoustic and
Explosive Impacts to Marine Mammals
and Sea Turtles Technical Report’’ (U.S.
Department of the Navy, 2017a)) and
Southall et al. (2019a). Avoidance to
this distance greatly reduces the
likelihood of impacts to hearing such as
TTS and PTS. Accordingly, NMFS and
the Navy’s analysis appropriately
applies a quantitative adjustment to the
exposure results calculated by the
model (which does not consider
avoidance or mitigation).
Specifically, behavioral response
literature, including the recent 3S and
SOCAL BRS studies, indicate that the
multiple species from different cetacean
suborders do in fact avoid approaching
sound sources by a few hundred meters
or more, which would reduce received
sound levels for individual marine
mammals to levels below those that
could cause PTS. The ranges to PTS for
most marine mammal groups are within
a few tens of meters and the ranges for
the most sensitive group, the HF
cetaceans, average about 200 m, to a
maximum of 270 m in limited cases. For
blue whales and other LF cetaceans, the
range to PTS is 65 m for MF1 30 sec
duration exposure, which is well within
the mitigation zones for hull-mounted
MFAS.
As discussed in the Navy’s 2018
technical report titled ‘‘Quantifying
Acoustic Impacts on Marine Mammals
and Sea Turtles: Methods and
Analytical Approach for Phase III
Training and Testing’’ and the 2018
HSTT final rule, the Navy’s acoustic
effects model does not consider
procedural mitigations (i.e., powerdown or shut-down of sonars, or
pausing explosive activities when
animals are detected in specific zones
adjacent to the source), which
necessitates consideration of these
factors in the Navy’s overall acoustic
analysis. Credit taken for mitigation
effectiveness is extremely conservative.
For example, if Lookouts can see the
whole area, they get credit for it in the
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calculation; if they can see more than
half the area, they get half credit; if they
can see less than half the area, they get
no credit. Not considering animal
avoidance and mitigation effectiveness
would lead to a great overestimate of
injurious impacts. NMFS concurs with
the analytical approach used, i.e., we
believe the estimated Level A take
numbers represent the maximum
number of these takes that are likely to
occur and it would not be appropriate
to authorize a higher number or
consider a higher number in the
negligible impact analysis. Lastly, the
Navy’s 2018 technical report titled
‘‘Quantifying Acoustic Impacts on
Marine Mammals and Sea Turtles:
Methods and Analytical Approach for
Phase III Training and Testing’’ very
clearly explains in detail how species
sightability, the Lookout’s ability to
observe the range to PTS (for sonar and
other transducers) and mortality (for
explosives), the portion of time when
mitigation could potentially be
conducted during periods of reduced
daytime visibility (to include inclement
weather and high sea state) and the
portion of time when mitigation could
potentially be conducted at night, and
the ability for sound sources to be
positively controlled (powered down)
are considered in the post-modeling
calculation to account for mitigation
and avoidance. It is not necessary to
view the many tables of numbers
generated in the assessment to evaluate
the method.
Comment 19: In a comment on the
2019 HSTT proposed rule, Commenters
noted that the Navy and NMFS failed to
consider the maximum amount of take
that is likely to occur because the
Navy’s computer modeled take is
reduced based on unsubstantiated
assumptions concerning the
effectiveness of the Navy’s procedural
mitigation measures (primarily
Lookouts with some passive acoustic
monitoring) and the rates at which
mammals avoid permanent threshold
shift (PTS) exposure levels. Therefore,
they assert that the PTS and injury
(Level A) take estimates are low, and the
negligible impact analysis is invalid
because the numbers considered by
NMFS are arbitrary. They provide the
following example to illustrate their
point: 2013 model-estimated PTS for
blue whales was 116 individual
instances of take (see Navy Marine
Mammal Program, Space and Naval
Warfare Systems Center Pacific, PostModel Quantitative Analysis of Animal
Avoidance Behavior and Mitigation
Effectiveness for Hawaii-Southern
California Training and Testing, 39
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(Table 5–1) (August 27, 2013)). After
implementation of mitigation, the
estimated instances of PTS were
reduced to 9 instances, and after
assumed rates of animal avoidance were
added, the estimated instances of take
were reduced to 0. The Commenters
asserted that in other words, the Navy
assumed that it would be able to reduce
92 percent of modeled PTS for blue
whales based on the effectiveness of its
Lookouts and that PTS take estimates
for other cetaceans are reduced at
similar rates. The Commenters noted
that there is no apparent rational basis
for the extremely high rates of
effectiveness (over 90 percent) the Navy
claims for its procedural mitigation.
They asserted that it is difficult to assess
these claims, as neither the Navy nor
NMFS has disclosed the actual numbers
used to assess mitigation effectiveness
for cetaceans along the four factors
(species sightability, observation area,
visibility, positive control). The
Commenters requested that NMFS
disclose those numbers and justify its
reliance on them. The Commenters also
incorporated the critiques raised by the
Marine Mammal Commission in its
2017 comment letter concerning: (i) The
comparative ineffectiveness of marine
observers compared to line-transect
observers; and (ii) the assumed 95
percent animal avoidance rate for PTS.
In particular, they assert that references
cited by NMFS and the Navy do not
support the conclusion that cetaceans
(other than beaked whales) regularly
avoid sonar sources so as to mitigate
PTS.
Response: As noted in response to a
similar comment on the 2018 HSTT
proposed rule (see Comment 18 above),
the consideration of marine mammal
avoidance and mitigation effectiveness
is integral to the Navy’s overall analysis
of impacts from sonar and explosive
sources. NMFS has independently
evaluated the method and agrees that it
is appropriately applied to augment the
model in the prediction and
authorization of injury and mortality as
described in the rule. The example
presented by the Commenters is based
on the analysis conducted during the
2013–2018 rulemaking (Phase II), rather
than the current Phase III analysis used
for this rule, so it is not applicable to
this final rule. See the response to
Comment 20 below for more
information on how avoidance and
mitigation effectiveness are evaluated.
Comment 20: In a comment on the
2018 HSTT proposed rule, a Commenter
stated in regard to the method in which
the Navy’s post-model calculation
considers avoidance specifically (i.e.,
assuming animals present beyond the
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range of PTS for the first few pings will
be able to avoid it and incur only TTS,
which results in a 95 percent reduction
in the number of estimated PTS takes
predicted by the model), given that
sound sources are moving, it may not be
until later in an exercise that the animal
is close enough to experience PTS, and
it is those few close pings that
contribute to the potential to experience
PTS. An animal being beyond the PTS
zone initially has no bearing on whether
it will come within close range later
during an exercise since both sources
and animals are moving. In addition,
Navy vessels may move faster than the
ability of the animals to evacuate the
area. The Navy should have been able
to query the dosimeters of the animats
to verify whether its 5-percent
assumption was valid. The Commenter
expressed concerned that this method
underestimates the number of PTS
takes.
Response: The consideration of
marine mammals avoiding the area
immediately around the sound source is
provided in the Navy’s 2018 technical
report titled ‘‘Quantitative Analysis for
Estimating Acoustic and Explosive
Impacts to Marine Mammals and Sea
Turtles.’’ As the Commenter correctly
articulates: ‘‘For avoidance, the Navy
assumed that animals present beyond
the range to onset PTS for the first three
to four pings are assumed to avoid any
additional exposures at levels that could
cause PTS. That equated to
approximately 5 percent of the total
pings or 5 percent of the overall time
active; therefore, 95 percent of marine
mammals predicted to experience PTS
due to sonar and other transducers were
instead assumed to experience TTS.’’ In
regard to the comment about vessels
moving faster than animals’ ability to
get out of the way, as discussed in the
Navy’s 2018 technical report titled
‘‘Quantitative Analysis for Estimating
Acoustic and Explosive Impacts to
Marine Mammals and Sea Turtles,’’
animats in the Navy’s acoustic effects
model do not move horizontally or
‘‘react’’ to sound in any way,
necessitating the additional step of
considering animal avoidance of closein PTS zones. NMFS independently
reviewed this approach and concurs
that it is supported by the best available
science. Based on a growing body of
behavioral response research, animals
do in fact avoid the immediate area
around sound sources to a distance of a
few hundred meters or more depending
upon the species. Avoidance to this
distance greatly reduces the likelihood
of impacts to hearing such as TTS and
PTS, respectively. Specifically, the
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ranges to PTS for most marine mammal
groups are within a few tens of meters
and the ranges for the most sensitive
group, the HF cetaceans, average about
200 m, to a maximum of 270 m in
limited cases. Querying the dosimeters
of the animats would not produce useful
information since, as discussed
previously, the animats do not move in
the horizontal and are not programmed
to ‘‘react’’ to sound or any other
stimulus. The Commenter referenced
comments that they have previously
submitted on the Navy’s Gulf of Alaska
incidental take regulations and we refer
the Commenter to NMFS’ responses,
which were included in the Federal
Register document announcing the
issuance of the final regulations (82 FR
19572, April 27, 2017).
Underestimated Beaked Whale Injury
and Mortality
Comment 21: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that the Navy and NMFS both
underestimate take for Cuvier’s beaked
whales because they are extremely
sensitive to sonar. A new study of
Cuvier’s beaked whales in Southern
California exposed to mid and highpower sonar confirmed that they modify
their diving behavior up to 100-km
away (Falcone et al., 2017). The
Commenter asserted that this science
disproves NMFS’ assumption that
beaked whales will find suitable habitat
nearby within their small range. This
modified diving behavior, which was
particularly strong when exposed to
mid-power sonar, indicates disruption
of feeding. Accordingly, impacts on
Cuvier’s beaked whales could include
interference with essential behaviors
that will have more than a negligible
impact on this species. In addition,
Lookouts and shutdowns do not protect
Cuvier’s beaked whales from Navy sonar
because this is a deep-diving species
that is difficult to see from ships.
Response: Takes of Cuvier’s beaked
whales are not underestimated. The
behavioral harassment threshold for
beaked whales has two components,
both of which consider the sensitivity of
beaked whales. First, the biphasic
behavioral harassment function for
beaked whales, which is based on data
on beaked whale responses, has a
significantly lower mid-point than other
groups and also reflects a significantly
higher probability of ‘‘take’’ at lower
levels (e.g., close to 15 percent at 120
dB). Additionally, the distance cut-off
used for beaked whales is farther than
for any other group (50 km, for both the
MF1 and MF4 bins, acknowledging the
fact that the unpredictability of dipping
sonar likely results in takes at greater
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distances than other more predictable
sources of similar levels). Regarding the
referenced article, the Commenter has
cited only part of it. The study, which
compiles information from multiple
studies, found that shallow dives were
predicted to increase in duration as the
distance to both high-and mid-power
MFAS sources decreased, beginning at
approximately 100 km away and,
specifically, the differences only varied
from approximately 20 minutes without
MFAS to about 24 minutes with MFAS
at the closest distance (i.e., the dive time
varied from 20 to 24 minutes over the
distance of 100 km away to the closest
distance measured). Further, the same
article predicted that deep dive duration
(which is more directly associated with
feeding and linked to potential energetic
effects) was predicted to increase with
proximity to mid-power MFAS from
approximately 60 minutes to
approximately 90 minutes beginning at
around 40 km (10 dives). There were
four deep dives exposed to high-power
MFAS within 20 km, the distance at
which deep dive durations increased
with the lower power source types.
Other responses to MFAS included deep
dives that were shorter than typical and
shallower, and instances where there
were no observed responses at closer
distances. The threshold for Level B
harassment is higher than just ‘‘any
measurable response’’ and NMFS and
the Navy worked closely together to
identify behavioral response functions
and distance cut-offs that reflect the best
available science to identify when
marine mammal behavioral patterns
will be disrupted to a point where they
are abandoned or significantly altered.
Further, the take estimate is in no way
based on an assumption that beaked
whales will always be sighted by
Lookouts—and adjustment to account
for Lookout effectiveness considers the
variable detectability of different
species. In this rule, both the take
estimate and the negligible impact
analysis appropriately consider the
sensitivity of, and scale of impacts to
(we address impacts to feeding and
energetics), Cuvier’s (and all) beaked
whales. Finally, new passive acoustic
monitoring in the HSTT Study Area
documents more extensive beaked
whale distribution across the entire
Study Area, wherever sensors are
deployed (Griffiths and Barlow 2016,
Rice et al. 2020).
Comment 22: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that NMFS underestimated
serious injury and mortality for beaked
whales. They noted the statement in the
proposed rule that because a causal
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relationship between Navy MFAS use
and beaked whale strandings has not
been established in all instances, and
that, in some cases, sonar was
considered to be only one of several
factors that, in aggregate, may have
contributed to the stranding event,
NMFS does ‘‘not expect strandings,
serious injury, or mortality of beaked
whales to occur as a result of training
activities.’’ (83 FR 30007). The
Commenter asserted that this opinion is
inconsistent with best available science
and does not take into account the fact
that the leading explanation for the
mechanism of sonar-related injuries—
that whales suffer from bubble growth
in organs that is similar to
decompression sickness, or ‘‘the bends’’
in human divers—has now been
supported by numerous papers. At the
same time, the Commenter argued that
NMFS fails to seriously acknowledge
that sonar can seriously injure or kill
marine mammals at distances well
beyond those established for permanent
hearing loss (83 FR 29916) and
dismisses the risk of stranding and other
mortality events (83 FR 30007) based on
the argument that such effects can
transpire only under the same set of
circumstances that occurred during
known sonar-related events—an
assumption that is arbitrary and
capricious. In conclusion, the
Commenter argued that none of NMFS’
assumptions regarding the expected lack
of serious injury and mortality for
beaked whales are supported by the
record, and all lead to an
underestimation of impacts.
Response: The Commenter’s
characterization of NMFS’ analysis is
incorrect. NMFS does not disregard the
fact that it is possible for naval activities
using hull-mounted tactical sonar to
contribute to the death of marine
mammals in certain circumstances via
strandings resulting from behaviorally
mediated physiological impacts or other
gas-related injuries. NMFS discussed
these potential causes and outlined the
few cases where active naval sonar (in
the United States or, largely, elsewhere)
had either potentially contributed to or
(as with the Bahamas example) been
more definitively causally linked with
marine mammal strandings in the
proposed rule. As noted, there are a
suite of factors that have been associated
with these specific cases of strandings
directly associated with sonar (steep
bathymetry, multiple hull-mounted
platforms using sonar simultaneously,
constricted channels, strong surface
ducts, etc.) that are not present together
in the HSTT Study Area and during the
specified activities (and which the Navy
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takes care across the world not to
operate under without additional
monitoring). There have been no
documented beaked whale mortalities
from Navy activities within the HSTT
Study Area. Further, none of the beaked
whale strandings causally associated
with Navy sonar stranding are in the
Pacific. For these reasons, NMFS does
not anticipate that the Navy’s HSTT
training or testing activities will result
in beaked whale marine mammal
strandings, and none are authorized.
Furthermore, ongoing Navy funded
beaked whale monitoring at a heavily
used training and testing area in SOCAL
has not documented mortality or habitat
abandonment by beaked whales. Passive
acoustic detections of beaked whales
have not significantly changed over ten
years of monitoring (DiMarzio et al.,
2018, 2019, 2020). From visual surveys
in the area since 2006 there have been
repeated sightings of: The same
individual beaked whales, beaked whale
mother-calf pairs, and beaked whale
mother-calf pairs with mothers on their
second calf (Schorr et al., 2018, 2020).
Satellite tracking studies of beaked
whale documented high site fidelity to
this area even though the study area is
located in one of the most used Navy
areas in the Pacific (Schorr et al., 2018,
2020).
Comment 23: In a comment on the
2019 HSTT proposed rule, Commenters
noted that NMFS did not propose to
authorize beaked whale mortalities
subsequent to MFA sonar use for any of
the Navy’s Phase III activities and states
that that approach is inconsistent with
the tack taken for both TAP I and Phase
II activities. The Commenters noted that
for the 2013–2018 final rule for HSTT,
NMFS authorized up to 10 beaked
whale mortality takes during the fiveyear period of the final rule (78 FR
78153; December 24, 2013). They noted
that NMFS justified authorizing those
mortalities by stating that, although
NMFS does not expect injury or
mortality of any beaked whales to occur
as a result of active sonar training
exercises, there remains the potential for
the operation of mid-frequency active
sonar to contribute to the mortality of
beaked whales (78 FR 78149; December
24, 2013). The Commenters stated that
this justification is still applicable. The
Commenters state that previously
unrecognized sensitivities have been
elucidated since the previous final rule
was authorized (December 24, 2013),
noting that Falcone et al., (2017)
indicated that responses of Cuvier’s
beaked whales to mid-frequency active
sonar within and near the Navy’s
Southern California Anti-submarine
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Warfare Range (SOAR) were more
pronounced during mid-power (i.e.,
helicopter-dipping sonar, MF4) than
high-power (i.e., hull-mounted sonar,
MF1) sonar use. The Commenters state
that this indicates lower received levels
from a less predictable source caused
more marked responses than higher
received levels from a predictable
source traveling along a seemingly
consistent course. The Commenters
noted that since multiple species of
beaked whales are regularly observed on
the Navy’s ranges in both Hawaii and
Southern California, including its
instrumented ranges, those species have
been a priority for the Navy’s
monitoring program and that this
indicates that research involving beaked
whales continues to be a priority for the
Navy and some of the whales’
sensitivities to anthropogenic sound are
just being discovered. The Commenters
assert that until such time that NMFS
can better substantiate its conclusion
that the Navy’s activities do not have
the potential to kill beaked whales,
taking by mortality should be included
in all related rulemakings.
The Commenters asserted that NMFS
indicated that steep bathymetry,
multiple hull-mounted platforms using
sonar simultaneously, constricted
channels, and strong surface ducts are
not all present together in the HSTT
Study Area during the specified
activities (83 FR 66882; December 27,
2018), and that NMFS specified that it
did not authorize beaked whale
mortalities in the 2018 HSTT final rule
based on the lack of those factors and
the lack of any strandings associated
with Navy sonar use in the HSTT Study
Area (83 FR 66882; December 27, 2018).
The Commenters stated that this does
not comport with NMFS’
acknowledgement in the 2018 HSTT
proposed rule that all five of those
factors are not necessary for a stranding
to occur (83 FR 29930; June 26, 2018).
They go on to state that ‘‘NMFS cannot
ignore that there remains the potential
for the operation of MFA sonar to
contribute to the mortality of beaked
whales.’’ Given that the potential for
beaked whale mortalities cannot be
obviated, the Commenters recommend
that NMFS authorize at least 10
mortality takes of beaked whales
subsequent to MFA sonar use,
consistent with the HSTT Phase II final
rule.
Response: NMFS does not disregard
the fact that it is possible for naval
activities using hull-mounted tactical
sonar to contribute to the death of
marine mammals in certain
circumstances via strandings resulting
from behaviorally mediated
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physiological impacts or other gasrelated injuries. However, the
Commenters are incorrect that NMFS
must either obviate the potential for
mortality or authorize it. If the best
available science indicates that a take is
reasonably likely to occur, then NMFS
should analyze it, and will authorize it
if the necessary findings can be made.
Sometimes, especially where there is
greater uncertainty, NMFS will analyze
and authorize (where appropriate)
impacts with a smaller likelihood of
occurring to be precautionary and/or
where an applicant specifically requests
the legal coverage. However, the MMPA
does not require NMFS to authorize
impacts that are unlikely to occur. For
example, any marine vessel has the
potential of striking and killing a marine
mammal—however, the probability is so
low for any particular vessel that
authorization for ship strike is neither
requested nor authorized by NMFS
except in cases where the aggregated
impacts of large fleets of vessels are
under consideration and the probability
of a strike is high enough to
meaningfully consider and to expect it
could occur within the period of the
authorization. In this case, the
likelihood of a stranding resulting from
the Navy’s activity is so low as to be
discountable. In an excess of caution,
NMFS included authorization for
beaked whale mortality by stranding in
the 2013–2018 HSTT rule. However,
there is no evidence that any such
strandings subsequently actually
occurred as a result of the Navy’s
activities. Each rulemaking involves
review of the best available science
independent of take that was authorized
during previous periods based on the
science available at that time. Upon
consideration in this rulemaking of the
statutory standards and the best
available science, including full
consideration of Falcone et al., (2017),
we have determined that mortality of
beaked whales is unlikely to occur and
it is therefore not appropriate to
authorize beaked whale mortality.
As described in Comment 22, NMFS
included a full discussion in the 2018
HSTT proposed rule of these potential
causes of mortality and specifically
discussed the few cases where active
naval sonar (in the U.S. or, largely,
elsewhere) has either potentially
contributed to or (as with the Bahamas
example) been more definitively
causally linked with marine mammal
strandings. As noted, there are a suite of
factors that have been associated with
these specific cases of strandings
directly associated with sonar (steep
bathymetry, multiple hull-mounted
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platforms using sonar simultaneously,
constricted channels, and strong surface
ducts). The Commenters are incorrect,
however, in implying that NMFS found
that all these features must be present
together—rather, we have suggested that
all else being equal, the fewer of these
factors that are present, the less likely
they are, in combination, to lead to a
stranding. Further, in addition to the
mitigation and monitoring measures in
place (visual monitoring, passive
acoustic monitoring when practicable,
mitigation areas including the Hawaii
Island Mitigation Area, etc.; see the
2018 HSTT final rule Mitigation
Measures and Monitoring sections for a
full description of these measures) the
Navy minimizes active sonar military
readiness activities when these features
are present to the maximum extent
practicable to meet specific training or
testing requirements. Additionally, as
noted above, there have never been any
strandings associated with Navy sonar
use in the HSTT Study Area, including
in the six years of Navy activities since
the 2013 authorizations referenced by
the Commenters were issued.
The Navy acknowledges that it has
funded research on the impacts of their
activities on beaked whales in the HSTT
Study Area since 2008 and plans to
continue to do so during the seven years
covered by this rule (DiMarzio et al.,
2019, 2020; Falcone et al., 2012, 2017;
Rice et al., 2019, 2020; Schorr et al.,
2014, 2019, 2020). NMFS also
acknowledges the Commenters’
statements that beaked whales have
been documented through Navy-funded
studies responding to active sonar
sources. However, these are behavioral
responses with animals eventually
returning after the sources have
departed (DiMarzio et al. 2019, 2020;
Schorr et al. 2019, 2020). Further,
controlled exposure experiments have
not documented any beaked whale
mortalities (Falcone et al., 2017).
Additionally, while beaked whales have
shown avoidance responses to active
sonar sources, to date, no population
impacts have been detected on two of
the most heavily used anti-submarine
warfare training areas in the HSTT
Study Area. This includes no significant
change in beaked whale foraging
echolocation levels on a monthly or
annual basis as determined from over
ten years of passive acoustic monitoring
(DiMarzio et al., 2019, 2020).
Furthermore, visual, photoidentification, and satellite tagging
studies at a Navy range in Southern
California have documented repeated
sightings of the same beaked whale
individuals, sightings of new beaked
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whale individuals, sightings of beaked
whale mother-calf pairs, and most
importantly, repeated sighting of beaked
whale mothers with their second calf
(Falcone et al., 2012; Schorr et al., 2014,
2019, 2020). New passive acoustic
monitoring in the HSTT Study Area
documents more extensive beaked
whale distribution across the entire
Study Area, wherever sensors are
deployed (Griffiths and Barlow 2016,
Rice et al., 2019, 2020).
For these reasons as well as the other
reasons discussed more fully in the
2018 HSTT final rule (e.g., mitigation
measures, monitoring, etc.), NMFS does
not anticipate that the Navy’s HSTT
training and testing activities will result
in beaked whale strandings and
mortality, and therefore, no takes are
authorized.
Ship Strike
Comment 24: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that the Navy’s current approach
to determine the risk of a direct vessel
collision with marine mammals is
flawed and fails to account for the
likelihood that ship strikes since 2009
were unintentionally underreported.
The Commenter noted that vessel
collisions are generally underreported
in part because they can be difficult to
detect, especially for large vessels and
that the distribution, being based on
reported strikes, does not account for
this problem. Additionally, the
Commenter asserted that the Navy’s
analysis does not address the potential
for increased strike risk of non-Navy
vessels as a consequence of acoustic
disturbance. For example, some types of
anthropogenic noise have been shown
to induce near-surfacing behavior in
right whales, increasing the risk of shipstrike—by not only the source vessel but
potentially by third-party vessels in the
area—at relatively moderate levels of
exposure (Nowacek et al., 2004). An
analysis based on reported strikes by
Navy vessels per se does not account for
this additional risk. In assessing shipstrike risk, the Navy should include
offsets to account for potentially
undetected and unreported collisions.
Response: While NMFS agrees that
broadly speaking the number of total
ship strikes may be underestimated due
to incomplete information from other
sectors (shipping, etc.), NMFS is
confident that whales struck by Navy
vessels are detected and reported, and
Navy strikes are the numbers used in
NMFS’ analysis to support the
authorized number of strikes. Navy
ships have multiple Lookouts, including
on the forward part of the ship that can
visually detect a hit whale (which has
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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
chain of command give NMFS a high
level of confidence that all strikes
actually get reported. Accordingly,
NMFS is confident that the information
used to support the analysis is accurate
and complete.
There is no evidence that Navy
training and testing activities (or other
acoustic activities) increase the risk of
nearby non-Navy vessels (or other
nearby Navy vessels not involved in the
referenced training or testing) striking
marine mammals. More whales are
struck by non-Navy vessels off
California in areas outside of the HSTT
Study Area such as approaches to Los
Angeles and San Francisco.
Comment 25: Commenters noted that
between publication of the 2018 HSTT
proposed rule and the 2018 HSTT final
rule, NMFS removed seven whale stocks
from the list of whales the Navy
determined were likely to be struck and
killed by a vessel in the initial five-year
period, including sei whales from the
Hawaii and Eastern North Pacific stocks,
and sperm whales from the California/
Oregon/Washington (CA/OR/WA) stock.
The Commenters asserted that NMFS
has not sufficiently justified its decision
to remove the Eastern North Pacific
stock of sei whales and the CA/OR/WA
stock of sperm whales from the list of
whale stocks the Navy initially
determined had the potential to be
struck and killed by a vessel. They
noted that while NMFS cited
purportedly new considerations in its
decision (relative likelihood of hitting
one stock versus another and whether
the Navy has ever definitively struck an
individual from a particular stock), the
underlying data doesn’t support its
conclusions as the strike probability for
both stocks is the same as for the
Eastern North Pacific Blue whale which
remains on the list of whales that the
Commenters characterize as those likely
to die from a vessel strike. The
Commenters further noted that unlike
the other five stocks that NMFS
removed from the list, individuals from
both the Eastern North Pacific stock of
sei whales and CA/OR/WA stock of
sperm whales have been hit by a vessel
in the past, and that the CA/OR/WA
stock of sperm whales is as relatively
abundant as other stocks included in the
final strike list. The Commenters
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asserted that the fact that the Navy itself
has not previously hit whales from
either stock does not alone justify
removal, especially when the Navy
admits that it was unable to identify the
species of over one-third (36 percent) of
the whales it struck during the relevant
time period. The Commenters stated
that given the historic strike data and
calculated percent likelihood of being
struck as indicated in Table 43 of the
2018 HSTT final rule, NMFS had no
valid basis to conclude that Navy
vessels are not likely to strike sei whales
from the Eastern North Pacific stock or
sperm whales from the CA/OR/WA
stock.
Response: The Commenters are
correct that the probabilities calculated
for vessel strike for each stock were
considered in combination with the
information indicating the species that
the Navy has definitively hit in the
HSTT Study Area since 1991 (since they
started tracking vessel strikes
consistently), as well as the information
on relative abundance, total recorded
strikes (by any vessel), and the overlay
of all of this information with the
Navy’s area of testing and training
activities. In Navy strikes over the last
11 years in the HSTT Study Area (2009–
2019), the species struck has been
identified. The Eastern North Pacific
stock of sei whales have never been
struck by the Navy, have rarely been
struck by other vessels (only one other
vessel strike is known), have a low
percent likelihood of being struck based
on the SAR calculations (2.3 percent),
and a very low relative abundance
(0.007). The CA/OR/WA stock of sperm
whales have also never been struck by
the Navy, have rarely been struck by
other vessels (only one other vessel
strike is known, even given their higher
relative abundance, as noted by the
Commenter), and have a low percent
likelihood of being struck based on the
SAR calculations (2.3 percent). Because
of these reasons, these stocks are
unlikely to be struck by the Navy during
the seven years covered by this rule.
Comment 26: In a comment on the
2019 HSTT proposed rule, Commenters
stated that the Navy arbitrarily failed to
increase its vessel strike estimate
upwards to account for the greater
number of at-sea days. They stated that
applying the historic strike rate of
0.00006 whales per day by the increased
number of at-sea days over seven years
(assumed by the Commenters to be
31,728) the new base strike estimate
should be 1.9 whales rather than 1.34
whales. They further state that applying
the Poisson distribution to this new base
strike estimate indicates that there is an
8 percent chance that 4 large whales
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will be hit during the extended sevenyear time period. They asserted that
NMFS neither considers nor explains
why the chance of striking 4 whales is
not considered likely during the
extended seven-year period of
authorization, and how this may impact
overall strike probability assessments
for individual whale stocks and that
NMFS’ reliance on a total vessel strike
number derived for only five years of
HSTT activities to authorize those
activities to continue for seven years is
arbitrary and capricious.
Response: Based on the revised sevenyear ship strike analysis that was used
in the 2019 HSTT proposed rule (which
incorporates all ship strike data in the
HSTT Study Area from 2009 through
2018, rather than 2016 as previously
analyzed for the 2017 Navy application),
the strike rate is 0.000047 whales strikes
per day at sea. Over a seven year period
the number of at-sea days is 31,729,
leading to an estimate of 1.5 whales over
seven years. When applying the Poisson
distribution to this strike estimate, as
reported in the Vessel Strike section, the
probability analysis concluded that
there was a 22 percent chance that zero
whales would be struck by Navy vessels
over the seven-year period, and a 33.5,
25.1, 12.5, and 4.7 percent chance that
one, two, three, or four whales,
respectively, would be struck over the
seven-year period. The probability of
the Navy striking up to three large
whales over the seven-year period
(which is a 12.5 percent chance) as
analyzed for this final rule using
updated Navy vessel strike data and atsea days is very close to the probability
of the Navy striking up to three large
whales over five years (which was a 10
percent chance). As the probability of
striking three large whales does not
differ significantly from the 2018 HSTT
final rule, and the probability of striking
four large whales over seven years
remains very low to the point of being
unlikely (less than 5 percent), the Navy
has requested, and we are authorizing,
no change in the number of takes by
serious injury or mortality due to vessel
strikes over the seven-year period of this
rule. Furthermore, these are statistical
calculations of probabilities of strike
that do not factor in Navy operating
procedures and mitigations to avoid
large whales. There has not been an
actual Navy ship strike to a large whale
in the HSTT Study Area since 2010.
This lack of vessel strikes is factored
into the revised seven-year statistical
calculation and is reflected in the
probabilities shown above.
Comment 27: In a comment on the
2019 HSTT proposed rule, Commenters
asserted that it was arbitrary and
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capricious for NMFS to assume that the
annualized strike rate for each of the six
large whales species that NMFS
determined have the potential to be
struck would decrease over the sevenyear extension period as compared to
the initial five-year period. They
asserted that given that the same level
of training and testing activities will
continue under the proposed extension
rule for a longer amount of time, at
minimum, the annual strike rate should
remain constant at the levels authorized
in the 2018 HSTT final rule. They
asserted that NMFS’ arbitrary reduction
of the annual strike rate precludes
reasoned analysis of whether vessel
strikes will inflict non-negligible
impacts on whale stocks. The
Commenters noted of particular concern
were the CA/OR/WA stock of humpback
whales and the Eastern North Pacific
stock of blue whales, both of which
suffer annual human-caused mortality at
levels much higher than the established
PBR (Potential Biological Removal; as
represented by the negative residual
PBR numbers). They asserted that by
definition, any mortality above PBR will
decrease a marine mammal stock below
its optimum sustainable population,
thereby inducing population level, nonnegligible impacts. The Commenters
asserted that NMFS’ analysis does not
sufficiently consider the effects of
further increasing mortality above
established PBR levels, especially in
light of the fact that annual take
estimates have been arbitrarily reduced.
They noted that an additional 0.2
mortalities per year is a potentially
significant stressor for the populations
of both the CA/OR/WA stock of
humpback whales and the Eastern North
Pacific stock of blue whales, and that
NMFS failed to adequately consider this
potential through population viability
analyses or other accepted method for
determining long-term population level
effects. They further asserted that NMFS
does not separately address the
possibility of striking and killing a
reproductive female. They stated that
NMFS’s failure to adequately consider
the effects of these additional
mortalities, including the potential
death of a reproductive female, is
arbitrary and capricious.
Response: In the 2018 HSTT final
rule, potential mortalities of three
whales due to ship strike were spread
over five years and therefore, the annual
average of 0.4 gray whales (Eastern
North Pacific stock), fin whales (CA/OR/
WA stock), and humpback whales
(Central North Pacific stock) and an
annual average of 0.2 blue whales
(Eastern North Pacific stock), humpback
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41807
whales (CA/OR/WA stock, Mexico
DPS), and sperm whales (Hawaii stock)
(i.e., one, or two, take(s) over five years
divided by five to get the annual
number) were expected to potentially
occur and were authorized. NMFS did
not arbitrarily reduce the annualized
strike rate in the seven-year analysis.
Following these same methods, as the
three total potential mortalities are now
spread over seven years rather than five,
an annual average of 0.29 gray whales
(Eastern North Pacific stock), fin whales
(CA/OR/WA stock), and humpback
whales (Central North Pacific stock) and
an annual average of 0.14 blue whales
(Eastern North Pacific stock), humpback
whales (CA/OR/WA stock, Mexico
DPS), and sperm whales (Hawaii stock)
as described in Table 16 (i.e., one, or
two, take(s) over seven years divided by
seven to get the annual number) are
expected to potentially occur and are
authorized.
As explained in the Serious Injury or
Mortality subsection of the Negligible
Impact Analysis and Determination
section of the 2018 HSTT final rule and
this rule, in the commercial fisheries
setting for 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
humpback whales from the CA/OR/WA
stock, and blue whales from the Eastern
North Pacific stock are less than 10
percent of PBR (33.4 for humpback
whales from the CA/OR/WA stock and
2.1 for blue whales from the Eastern
North Pacific stock) 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
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impacts, see the discussion in this 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
reproductive female is even lower.
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Mitigation and Monitoring
Least Practicable Adverse Impact
Determination
Comment 28: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that deaths of, or serious injuries
to marine mammals that occur pursuant
to activities conducted under an
incidental take authorization, while
perhaps negligible to the overall health
and productivity of the species or stock
and of little consequence at that level,
nevertheless are clearly adverse to the
individuals involved and results in
some quantifiable (though negligible)
adverse impact on the population; it
reduces the population to some degree.
Under the least practicable adverse
impact requirement, and more generally
under the purposes and policies of the
MMPA, the Commenter asserted that
Congress embraced a policy to
minimize, whenever practicable, the
risk of killing or seriously injuring a
marine mammal incidental to an
activity subject to section 101(a)(5)(A),
including providing measures in an
authorization to eliminate or reduce the
likelihood of lethal taking. The
Commenter recommended that NMFS
address this point explicitly in its
analysis and clarify whether it agrees
that the incidental serious injury or
death of a marine mammal always
should be considered an adverse impact
for purposes of applying the least
practicable adverse impact standard.
Response: NMFS disagrees that it is
necessary or helpful to explicitly
address the point the Commenter raises
in the discussion on the least
practicable adverse impact standard. It
is always NMFS’ practice to mitigate
mortality to the greatest degree possible,
as death is the impact that is most easily
linked to reducing the probability of
adverse impacts to populations.
However, we cannot agree that one
mortality will always decrease any
population in a quantifiable or
meaningful way. For example, for very
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large populations, one mortality may
fall well within typical known annual
variation and not have any effect on
population rates. Further, we do not
understand the problem that the
Commenter’s recommendation is
attempting to fix. Applicants generally
do not express reluctance to mitigate
mortality, and we believe that
modifications of this nature would
confuse the issue.
Comment 29: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS address the
habitat component of the least
practicable adverse impact provision in
greater detail. It asserted that NMFS’
discussion of critical habitat, marine
sanctuaries, and BIAs in the proposed
rule is not integrated with the
discussion of the least practicable
adverse impact standard. It would seem
that, under the least practicable adverse
impact provision, adverse impacts on
important habitat should be avoided
whenever practicable. Therefore, to the
extent that activities would be allowed
to proceed in these areas, NMFS should
explain why it is not practicable to
constrain them further.
Response: Marine mammal habitat
value is informed by marine mammal
presence and use and, in some cases,
there may be overlap in measures for the
species or stock directly and for use of
habitat. In this rule, we have required
time-area mitigations based on a
combination of factors that include
higher densities and observations of
specific important behaviors of marine
mammals themselves, but also that
clearly reflect preferred habitat (e.g.,
calving areas in Hawaii, feeding areas in
SOCAL). In addition to being delineated
based on physical features that drive
habitat function (e.g., bathymetric
features among others for some BIAs),
the high densities and concentration of
certain important behaviors (e.g.,
feeding) in these particular areas clearly
indicate the presence of preferred
habitat. The Commenter seems to
suggest that NMFS must always
consider separate measures aimed at
marine mammal habitat; however, the
MMPA does not specify that effects to
habitat must be mitigated in separate
measures, and NMFS has clearly
identified measures that provide
significant reduction of impacts to both
‘‘marine mammal species and stocks
and their habitat,’’ as required by the
statute.
Comment 30: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS rework its
evaluation criteria for applying the least
practicable adverse impact standard to
separate the factors used to determine
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whether a potential impact on marine
mammals or their habitat is adverse and
whether possible mitigation measures
would be effective. In this regard, the
Commenter asserted that it seems as
though the proposed ‘‘effectiveness’’
criterion more appropriately fits as an
element of practicability and should be
addressed under that prong of the
analysis. In other words, a measure not
expected to be effective should not be
considered a practicable means of
reducing impacts.
Response: In the Mitigation Measures
section, NMFS has explained in detail
our interpretation of the least
practicable adverse impact standard, the
rationale for our interpretation, and our
approach for implementing our
interpretation. The ability of a measure
to reduce effects on marine mammals is
entirely related to its ‘‘effectiveness’’ as
a measure, whereas the effectiveness of
a measure is not connected to its
practicability. The Commenter provides
no support for its argument, and NMFS
has not implemented the suggestion.
Comment 31: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS recast its
conclusions to provide sufficient detail
as to why additional measures either are
not needed (i.e., there are no remaining
adverse impacts) or would not be
practicable to implement. The
Commenter stated that the most
concerning element of NMFS’
implementation of the least practicable
adverse impact standard is its
suggestion that the mitigation measures
proposed by the Navy will ‘‘sufficiently
reduce impacts on the affected mammal
species and stocks and their habitats’’
(83 FR 11045). That phrase suggests that
NMFS is applying a ‘‘good-enough’’
standard to the Navy’s activities. Under
the statutory criteria, however, those
proposed measures are ‘‘sufficient’’ only
if they have either (1) eliminated all
adverse impacts on marine mammal
species and stocks and their habitat or
(2) if adverse impacts remain, it is not
practicable to reduce them further.
Response: The statement that the
Commenter references does not indicate
that NMFS applies a ‘‘good-enough’’
standard to determining least
practicable adverse impact. Rather, it
indicates that the mitigation measures
are sufficient to meet the statutory legal
standard. In addition, as NMFS has
explained in our description of the least
practicable adverse impact standard,
NMFS does not view the necessary
analysis through the yes/no lens that the
Commenter seeks to prescribe. Rather,
NMFS’ least practicable adverse impact
analysis considers both the reduction of
adverse effects and their practicability.
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Further, since the 2018 HSTT proposed
rule was published, the Navy and NMFS
evaluated additional measures in the
context of both their practicability and
their ability to further reduce impacts to
marine mammals and have determined
that the addition of several measures
(see Mitigation Measures section) is
appropriate. Regardless, beyond these
new additional measures, where the
Navy’s HSTT activities are concerned,
the Navy has indicated that further
procedural or area mitigation of any
kind (beyond that prescribed in this
final rule) would be impracticable.
NMFS has reviewed documentation and
analysis provided by the Navy
explaining how and why specific
procedural and geographic based
mitigation measures impact
practicability, and NMFS concurs with
these assessments and has determined
that the mitigation measures outlined in
the final rule satisfy the statutory
standard and that any adverse impacts
that remain cannot practicably be
further mitigated.
Comment 32: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that any ‘‘formal
interpretation’’ of the least practicable
adverse impact standard by NMFS be
issued in a stand-alone, generally
applicable rulemaking (e.g., in
amendments to 50 CFR 216.103 or
216.105) or in a separate policy
directive, rather than in the preambles
to individual proposed rules.
Response: We appreciate the
Commenter’s recommendation and may
consider the recommended approach in
the future. We note, however, that
providing relevant explanations in a
proposed incidental take rule is an
effective and efficient way to provide
information to the reader and solicit
focused input from the public, and
ultimately affords the same
opportunities for public comment as a
stand-alone rulemaking would. NMFS
has provided similar explanations of the
least practicable adverse impact
standard in other recent section
101(a)(5)(A) rules, including: U.S. Navy
Operations of Surveillance Towed Array
Sensor System Low Frequency Active
(SURTASS LFA) Sonar; Geophysical
Surveys Related to Oil and Gas
Activities in the Gulf of Mexico; and the
final rule for U.S. Navy Training and
Testing Activities in the Atlantic Fleet
Study Area.
Comment 33: In a comment on the
2018 HSTT proposed rule, a Commenter
cited two judicial decisions and
commented that the ‘‘least practicable
adverse impact’’ standard has not been
met. The Commenter stated that
contrary to the Pritzker Court decision,
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NMFS, while clarifying that populationlevel impacts are mitigated ‘‘through the
application of mitigation measures that
limit impacts to individual animals,’’
has again set population-level impact as
the basis for mitigation in the proposed
rule. Because NMFS’ mitigation analysis
is opaque, it is not clear what practical
effect this position may have on its
rulemaking. The Commenter stated that
the proposed rule is also unclear in its
application of the ‘‘habitat’’ emphasis in
the MMPA’s mitigation standard, and
that while NMFS’ analysis is opaque, its
failure to incorporate or even,
apparently, to consider viable time-area
measures suggests that the agency has
not addressed this aspect of the Pritzker
decision. The Commenter argued that
the MMPA sets forth a ‘‘stringent
standard’’ for mitigation that requires
the agency to minimize impacts to the
lowest practicable level, and that the
agency must conduct its own analysis
and clearly articulate it: It ‘‘cannot just
parrot what the Navy says.’’
Response: NMFS disagrees with much
of what the Commenter asserts. First, we
have carefully explained our
interpretation of the least practicable
adverse impact standard and how it
applies to both stocks and individuals,
including in the context of the Pritzker
decision, in the Mitigation Measures
section. Further, we have applied the
standard correctly in this rule in
requiring measures that reduce impacts
to individual marine mammals in a
manner that reduces the probability
and/or severity of population-level
impacts. Regarding the comment about
mitigation of habitat impacts, it has
been addressed above in the response to
Comment 29.
When a suggested or recommended
mitigation measure is not practicable,
NMFS has explored variations of that
mitigation to determine if a practicable
form of related mitigation exists. This is
clearly illustrated in NMFS’
independent mitigation analysis process
explained in the Mitigation Measures
section of the 2018 HSTT final rule.
First, the type of mitigation required
varies by mitigation area, demonstrating
that NMFS has engaged in a site-specific
analysis to ensure mitigation is tailored
when practicability demands, i.e., some
forms of mitigation were practicable in
some areas but not others. Examples of
NMFS’ analysis on this issue appear
throughout the rule. For instance, while
it was not practicable for the Navy to
include a mitigation area for the TannerCortes blue whale BIA, the Navy did
agree to expand mitigation protection to
all of the other blue whale BIAs in the
SOCAL region. Additionally, while the
Navy cannot alleviate all training in the
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mitigation areas that protect small
resident odontocete populations in
Hawaii, it has further expanded the
protections in those areas such that it
does not use explosives or MFAS in the
areas (MF1 bin in both areas, MF4 bin
in the Hawaii Island area).
Nonetheless, NMFS agrees that the
agency must conduct its own analysis,
which it has done here, and not just
accept what is provided by the Navy.
That does not mean, however, that
NMFS cannot review the Navy’s
analysis of effectiveness and
practicability, and concur with those
aspects of the Navy’s analysis with
which NMFS agrees. The Commenter
seems to suggest that NMFS must
describe in the rule in detail the
rationale for not adopting every
conceivable permutation of mitigation,
which is neither reasonable nor required
by the MMPA. NMFS has described our
well-reasoned process for identifying
the measures needed to meet the least
practicable adverse impact standard in
the Mitigation Measures section in this
rule, and we have followed the
approach described there when
analyzing potential mitigation for the
Navy’s activities in the HSTT Study
Area. Discussion regarding specific
recommendations for mitigation
measures provided by the Commenter
on the proposed rule are discussed
separately.
Procedural Mitigation Effectiveness and
Recommendations
Comment 34: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that the Navy’s proposed
mitigation zones are similar to the zones
previously used during Phase II
activities and are intended, based on the
Phase III HSTT DEIS/OEIS, to avoid the
potential for marine mammals to be
exposed to levels of sound that could
result in injury (i.e., PTS). However, the
Commenter believed that Phase III
proposed mitigation zones would not
protect various functional hearing
groups from PTS. For example, the
mitigation zone for an explosive
sonobuoy is 549 m but the mean PTS
zones range from 2,113–3,682 m for HF.
Similarly, the mitigation zone for an
explosive torpedo is 1,920 m but the
mean PTS zones range from 7,635–
10,062 m for HF, 1,969–4,315 m for LF,
and 3,053–3,311 for PW. The
appropriateness of such zones is further
complicated by platforms firing
munitions (e.g., for missiles and rockets)
at targets that are 28 to 139 km away
from the firing platform. An aircraft
would clear the target area well before
it positions itself at the launch location
and launches the missile or rocket.
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Ships, on the other hand, do not clear
the target area before launching the
missile or rocket. In either case, marine
mammals could be present in the target
area unbeknownst to the Navy at the
time of the launch.
Response: NMFS is aware that some
mitigation zones do not fully cover the
area in which an animal from a certain
hearing group may incur PTS. For this
small subset of circumstances, NMFS
discussed potential enlargement of the
mitigation zones with the Navy, but
concurred with the Navy’s assessment
that further enlargement would be
impracticable. Specifically, the Navy
explained that, as discussed in Chapter
5 (Mitigation) of the 2018 HSTT FEIS/
OEIS, for explosive mitigation zones any
additional increases in mitigation zone
size (beyond what is depicted for each
explosive activity), or additional
observation requirements, would be
impracticable to implement due to
implications for safety, sustainability,
the Navy’s ability to meet Title 10
requirements to successfully accomplish
military readiness objectives, and the
Navy’s ability to conduct testing
associated with required acquisition
milestones or as required to meet
operational requirements. Additionally,
Navy Senior Leadership has approved
and determined that the mitigation
detailed in Chapter 5 (Mitigation) of the
2018 HSTT FEIS/OEIS provides the
greatest extent of protection that is
practicable to implement. NMFS has
analyzed the fact that despite these
mitigation measures, some Level A
harassment may occur in some
circumstances; the Navy is authorized
for these takes by Level A harassment.
Comment 35: In a comment on the
2018 HSTT proposed rule, a Commenter
made several comments regarding visual
and acoustic detection as related to
mitigating impacts that can cause injury.
The Commenter noted that the Navy
indicated in the 2018 HSTT DEIS/OEIS
that Lookouts would not be 100 percent
effective at detecting all species of
marine mammals for every activity
because of the inherent limitations of
observing marine species and because
the likelihood of sighting individual
animals is largely dependent on
observation conditions (e.g., time of day,
sea state, mitigation zone size,
observation platform). The Navy has
been collaborating with researchers at
the University of St. Andrews to study
Navy Lookout effectiveness and the
Commenter anticipates that the Lookout
effectiveness study will be very
informative once completed, but notes
that in the interim, the preliminary data
do provide an adequate basis for taking
a precautionary approach. The
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Commenter believed that rather than
simply reducing the size of the
mitigation zones it plans to monitor, the
Navy should supplement its visual
monitoring efforts with other
monitoring measures including passive
acoustic monitoring.
The Commenter suggested that
sonobuoys could be deployed with the
target in the various target areas prior to
the activity. This approach would allow
the Navy to better determine whether
the target area is clear and remains clear
until the munition is launched.
Although the Navy indicated that it
was continuing to improve its
capabilities for using range
instrumentation to aid in the passive
acoustic detection of marine mammals,
it also stated that it didn’t have the
capability or resources to monitor
instrumented ranges in real time for the
purpose of mitigation. That capability
clearly exists. While available resources
could be a limiting factor, the
Commenter notes that personnel who
monitor the hydrophones on the
operational side do have the ability to
monitor for marine mammals as well.
The Commenter has supported the use
of the instrumented ranges to fulfill
mitigation implementation for quite
some time and contends that localizing
certain species (or genera) provides
more effective mitigation than localizing
none at all.
The Commenter recommended that
NMFS require the Navy to use passive
and active acoustic monitoring,
whenever practicable, to supplement
visual monitoring during the
implementation of its mitigation
measures for all activities that have the
potential to cause injury or mortality
beyond those explosive activities for
which passive acoustic monitoring
already was proposed, including those
activities that would occur on the
Southern California Offshore Range
(SCORE) and Pacific Missing Range
Facility (PMRF) ranges.
Response: For explosive mitigation
zones, any additional increases in
mitigation zone size (beyond what is
depicted for each explosive activity) or
observation requirements would be
impracticable to implement due to
implications for safety, sustainability,
and the Navy’s ability to meet Title 10
requirements to successfully accomplish
military readiness objectives. We do
note, however, that since the 2018
HSTT proposed rule, the Navy has
committed to implementing pre-event
observations for all in-water explosives
events (including some that were not
previously monitored) and to using
additional platforms if available in the
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vicinity of the detonation area to help
with this monitoring.
As discussed in the comment
(referencing the use of sonobuoys or
hydrophones), 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
(e.g., hydrophone) to a platform already
participating in the activity, or by
adding a platform with integrated
passive acoustic monitoring capabilities
to the activity, such as a sonobuoy) for
mitigation is not practicable. As
discussed in Section 5.5.3 (Active and
Passive Acoustic Monitoring Devices) of
the 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 and reduce the service life
of those systems.
Regarding the use of instrumented
ranges for real-time mitigation, the
Commenter is correct that the Navy
continues to develop the technology and
capabilities on its Ranges for use in
marine mammal monitoring, which can
be effectively compared to operational
information after the fact to gain
information regarding marine mammal
response. However, the Navy’s
instrumented ranges were not
developed for the purpose of mitigation.
As discussed above, the manpower and
logistical complexity involved in
detecting and localizing marine
mammals in relation to multiple fastmoving sound source platforms in order
to implement real-time mitigation is
significant. A more detailed discussion
of the limitations for on-range passive
acoustic detection as real-time
mitigation is provided in Comment 42
and is not practicable for the Navy. For
example, beaked whales produce highly
directed echolocation clicks that are
difficult to simultaneously detect on
multiple hydrophones within the
instrumented range at PMRF; therefore,
there is a high probability that a
vocalizing animal would be assigned a
false location on the range (i.e., the Navy
would not be able to verify its presence
in a mitigation zone). Although the
Navy is continuing to improve its
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capabilities to use range
instrumentation to aid in the passive
acoustic detection of marine mammals,
at this time it would not be effective or
practicable for the Navy to monitor
instrumented ranges for the purpose of
real-time mitigation for the reasons
discussed in Section 5.5.3 (Active and
Passive Acoustic Monitoring Devices) of
the 2018 HSTT FEIS/OEIS.
Comment 36: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS require the
Navy to conduct additional pre-activity
overflights before conducting any
activities involving detonations barring
any safety issues (e.g., low fuel), as well
as post-activity monitoring for activities
involving medium- and large caliber
projectiles, missiles, rockets, and
bombs.
Response: The Navy has agreed to
implement pre-event observation
mitigation, as well as post-event
observation, for all in-water explosive
event mitigation measures. If there are
other platforms participating in these
events and in the vicinity of the
detonation area, they will also visually
observe this area as part of the
mitigation team.
Comment 37: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that the Navy implement
larger shutdown zones.
Response: The Navy mitigation zones
represent the maximum surface area the
Navy can effectively observe based on
the platform involved, number of
personnel that will be involved, and the
number and type of assets and resources
available. As mitigation zone sizes
increase, the potential for observing
marine mammals and thus reducing
impacts decreases, because the number
of observers cannot increase although
the area to observe increases. For
instance, if a mitigation zone increases
from 1,000 to 2,000 yd, the area that
must be observed increases four-fold.
NMFS has analyzed the Navy’s required
mitigation and found that it will effect
the least practicable adverse impact.
The Navy’s mitigation measures
consider both the need to reduce
potential impacts and the ability to
provide effective observations
throughout a given mitigation zone. To
implement these mitigation zones, Navy
Lookouts are trained to use a
combination of unaided eye and optics
as they search the surface around a
vessel, detonation location, or
applicable sound source. In addition,
there are other Navy personnel on a
given bridge watch (in addition to
designated Lookouts), who are also
constantly watching the water for safety
of navigation and marine mammals.
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Takes that cannot be mitigated are
analyzed and authorized provided the
necessary findings can be made.
Comment 38: In a comment on the
2018 HSTT proposed rule, Commenters
stated that NMFS should cap the
maximum level of activities each year.
Response: The Commenters offer no
rationale for why a cap is needed and
nor do they suggest what an appropriate
cap might be. The Navy is responsible
under Title 10 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 Areas
section, the Navy will limit activities
(active sonar, explosive use, 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.
Comment 39: In a comment on the
2018 HSTT proposed rule, a Commenter
suggested the Navy could improve
observer effectiveness through the use of
NMFS-certified marine mammal
observers.
Response: The Navy currently
requires at least one qualified Lookout
on watch at all times a vessel is
underway. In addition, on surface ships
with hull-mounted sonars during sonar
events, the number increases with two
additional Lookouts on the forward
portion of the vessel (i.e., total of three
Lookouts). Furthermore, unlike civilian
commercial ships, there are additional
bridge watch standers on Navy ships
viewing the water during all activities.
The Navy’s Marine Species Awareness
training that all bridge watchstanders
including Lookouts take has been
reviewed and approved by NMFS. This
training is conducted annually and prior
to MTEs. In addition, unit-based passive
acoustic detection is used when
available and appropriate.
As we understand from the Navy,
mandating NMFS-certified marine
mammal observers on all platforms
would require setting up and
administering a certification program,
providing security clearance for
certified people, ensuring that all
platforms are furnished with these
individuals, and housing these people
on ships for extended times from weeks
to months. This would be an extreme
logistical burden on realistic training.
The requirement for additional nonNavy observers would provide little
additional benefit, especially at the near
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ship mitigation ranges for midfrequency active sonars on surface ships
(<1,000 yds), and would not be
significantly better than the current
system developed by the Navy in
consultation with NMFS.
The purpose of Navy Lookouts is to
provide sighting information for marine
mammals and other protected species,
as well as other boats and vessels in the
area, in-water debris, and other safety of
navigation functions. During active
sonar use, additional personnel are
assigned for the duration of the sonar
event. In addition, the other Navy
personnel on a given bridge watch along
with designated Lookouts are also
constantly watching the water for safety
of navigation and marine mammals.
Navy training and testing activities
often occur simultaneously and in
various regions throughout the HSTT
Study Area, with underway time that
could last for days or multiple weeks at
a time. The pool of certified marine
mammal observers across the U.S. West
Coast is rather limited, with many
already engaged in regional NMFS
survey efforts. Relative to the number of
dedicated MMOs that would be required
to implement this condition, as of July
2018, there are approximately 22 sonarequipped Navy ships (i.e., surface ships
with hull-mounted active sonars)
stationed in San Diego. Six additional
vessels from the Pacific Northwest also
transit to Southern California for
training (28 ships times 2 observers per
watch times 2 watches per day =
minimum of 112 observers). There are
currently not enough certified marine
mammal observers to cover these Navy
activities, even if it were practicable for
the other reasons explained above.
Senior Navy commands in the Pacific
continuously reemphasize the
importance of Lookout responsibilities
to all ships. Further, the Navy has an
ongoing study in which certified Navy
civilian scientist observers embark
periodically on Navy ships in support of
a comparative Lookout effectiveness
study. Results from this study will be
used to make recommendations for
further improvements to Lookout
training.
Additionally, we note that the
necessity to include trained NMFSapproved PSOs on Navy vessels, while
adding little or no additional protective
or data-gathering value, would be very
expensive and those costs would need
to be offset—most likely through
reductions in the budget for Navy
monitoring, through which invaluable
data is gathered.
Comment 40: In a comment on the
2018 HSTT proposed rule, Commenters
stated that NMFS should consider
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increasing the exclusion zone to the 120
dB isopleth because some animals are
sensitive to sonar at low levels of
exposure.
Response: First, it is important to note
that the Commenters are suggesting that
NMFS require mitigation that would
eliminate all take, which is not what the
applicable standard requires. Rather,
NMFS is required to put in place
measures that effect the ‘‘least
practicable adverse impact.’’ Separately,
NMFS acknowledges that some marine
mammals may respond to sound at 120
dB in some circumstances; however,
based on the best available data, only a
subset of those exposed at that low level
respond in a manner that would be
considered harassment under the
MMPA. NMFS and the Navy have
quantified those individuals of certain
stocks where appropriate, analyzed the
impacts, and authorized take where
needed. Further, NMFS and the Navy
have identified exclusion zone sizes that
are best suited to minimize impacts to
marine mammal species and stocks and
their habitat while also being
practicable (see Mitigation Measures
section).
Comment 41: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that NMFS should impose a 10kn ship speed limit in biologically
important areas and critical habitat for
marine mammals to reduce vessel
strikes. The Commenter also specifically
referenced this measure in regard to
humpback whales and blue whales.
Response: This issue also is addressed
elsewhere in the Comments and
Responses section for specific
mitigation areas. However, generally
speaking, it is impracticable (because of
impacts to mission effectiveness) to
further reduce ship speeds for Navy
activities, and, moreover, given the
maneuverability of Navy ships at higher
speeds and the presence of effective
Lookouts, any further reduction in
speed would reduce the already low
probability of ship strike little, if any.
The Navy is unable to impose a 10-kn
ship speed limit because it would not be
practical to implement and would
impact the effectiveness of Navy’s
activities by putting constraints on
training, testing, and scheduling. The
Navy requires flexibility in use of
variable ship speeds for training, testing,
operational, safety, and engineering
qualification requirements. Navy ships
typically use the lowest 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.
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The main driver for ship speed
reduction is reducing the possibility and
severity of ship strikes to large whales.
However, even given the wide ranges of
speeds from slow to fast that Navy ships
must use to meet training and testing
requirements, the Navy has a very low
strike history to large whales in
Southern California and Hawaii, with
no whales struck by the Navy from
2010–2019. There have been no whales
struck in Hawaii since 2008 (4 whales
were struck between 2000 and 2008).
Current Navy Standard Operating
Procedures and mitigations require a
minimum of at least one Lookout on
duty while underway (in addition to
bridge watch personnel) and, so long as
safety of navigation is maintained, to
keep 500 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).
Furthermore, there is no Navy ship
strike of a marine mammal on record in
SOCAL that has occurred in the coastal
area (∼40 nmi from shore), which is
where speed restrictions are most
requested. Finally, the most recent
model estimate of the potential for
civilian ship strike risk to blue,
humpback, and fin whales off the coast
of California found the highest risk near
San Francisco and Long Beach
associated with commercial ship routes
to and from those ports (Rockwood et
al., 2017). There was no indication of a
similar high risk to these species off San
Diego, where the HSTT Study Area
occurs.
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 knots. 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 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
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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.
Comment 42: In a comment on the
2018 HSTT proposed rule, Commenters
stated that NMFS should improve
detection of marine mammals with
restrictions on low-visibility activities
and alternative detection such as
thermal or acoustic methods.
Response: 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.
Low visibility—Anti-submarine
warfare training involving the use of
mid-frequency active sonar 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
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
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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.
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
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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 fields 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 system 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, 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
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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, highpowered binoculars mounted on a ship
deck). The use of thermal detection
systems instead of traditional
techniques would compromise the
Navy’s ability to observe for marine
mammals within its mitigation zones in
the range of environmental conditions
found throughout the Study Area.
Furthermore, thermal detection systems
are designed to detect marine mammals
and do not have the capability to detect
other resources for which the Navy is
required to implement mitigation,
including sea turtles. 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. The
mitigation measures discussed in
Chapter 5 (Mitigation), Section 5.3
(Procedural Mitigation to be
Implemented) of the 2018 HSTT FEIS/
OEIS include the maximum number of
Lookouts the Navy can assign to each
activity based on available manpower
and resources; therefore, it would be
impractical to add personnel to serve as
additional Lookouts. For example, 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 infraredbased 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. Additional studies are currently
being planned for 2020+ but additional
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information on the exact timing and
scope of these studies is not currently
available (still in development stage).
The Office of Naval Research Marine
Mammals and Biology program also
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 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
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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—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 and reduce the service life
of those systems.
The use of real-time passive acoustic
monitoring (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
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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.
Furthermore, PAM at SOAR does not
account for animals not vocalizing. For
instance, there have been many
documented occurrences during PAM
verification testing at SOAR of small
boats on the water coming across marine
mammals such as baleen whales that
were not vocalizing and therefore not
detected by the range hydrophones.
Animals must vocalize to be detected by
PAM; the lack of detections on a
hydrophone may give the false
impression that the area is clear of
marine mammals. The lack of
vocalization detections is not a direct
measure of the absence of marine
mammals. 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
in water depths of approximately 2 km
is preferred. In the absence of detection,
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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.
Comment 43: In a comment on the
2018 HSTT proposed rule, Commenters
stated that NMFS should add mitigation
for other marine mammal stressors such
as dipping sonar, pile driving, and
multiple exposures near homeports.
Response: The Navy implements a
200-yd shutdown for dipping sonar and
a 100-yd exclusion zone for pile-driving.
It is unclear what the Commenter means
by adding mitigation for ‘‘multiple
exposures’’ near homeports, and
therefore no explanation can be
provided.
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Mitigation Areas
Introduction
The Navy included a comprehensive
proposal of mitigation measures in their
2017 application that included
procedural mitigations that reduce the
likelihood of mortality, injury, hearing
impairment, and more severe behavioral
responses for most species. The Navy
also included time/area mitigation that
further protects areas where important
behaviors are conducted and/or
sensitive species congregate, which
reduces the likelihood of takes that are
likely to impact reproduction or
survival (as described in the Mitigation
Measures section of the final rule and
the Navy’s application). As a general
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matter, where an applicant proposes
measures that are likely to reduce
impacts to marine mammals, the fact
that they are included in the application
indicates that the measures are
practicable, and it is not necessary for
NMFS to conduct a detailed analysis of
the measures the applicant proposed
(rather, they are simply included).
However, it is necessary for NMFS to
consider whether there are additional
practicable measures that could also
contribute to effecting the least
practicable adverse impact on the
species or stocks and their habitat. In
the case of the Navy’s HSTT
application, we worked with the Navy
prior to the publication of the 2018
HSTT proposed rule and ultimately the
Navy agreed to increase geographic
mitigation areas adjacent to the island of
Hawaii to more fully encompass specific
biologically important areas and the
Alenuihaha Channel and to limit
additional anti-submarine warfare midfrequency active sonar (ASW) source
bins (MF4) within some geographic
mitigation areas.
During the public comment period on
the 2018 HSTT proposed rule, NMFS
received numerous recommendations
for the Navy to implement additional
mitigation measures, both procedural
and time/area limitations. Extensive
discussion of the recommended
mitigation measures in the context of
the factors considered in the least
practicable adverse impact analysis
(considered in the Mitigation Measures
section of the final rule and described
below), as well as considerations of
alternate iterations or portions of the
recommended measures considered to
better address practicability concerns,
resulted in the addition of several
procedural mitigations and expansion of
multiple time/area mitigations (see the
Mitigation Measures section in the final
rule). These additional areas reflect, for
example, concerns about blue whales in
SOCAL and small resident odontocete
populations in Hawaii (which resulted
in expanded time/area mitigation), focus
on areas where important behaviors and
habitat are found (e.g., in BIAs), and
enhancement of the Navy’s ability to
detect and reduce injury and mortality
(which resulted in expanded monitoring
before and after explosive events).
Through extensive discussion, NMFS
and the Navy worked to identify and
prioritize additional mitigation
measures that are likely to reduce
impacts on marine mammal species or
stocks and their habitat and are also
possible for the Navy to implement.
Following the publication of the 2013
HSTT MMPA incidental take rule, the
Navy and NMFS were sued and the
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41815
resulting settlement agreement
prohibited or restricted Navy activities
within specific areas in the HSTT Study
Area. These provisional prohibitions
and restrictions on activities within the
HSTT Study Area were derived
pursuant to negotiations with the
plaintiffs in that lawsuit and were
specifically not evaluated or selected
based on the type of thorough
examination of best available science
that occurs through the rulemaking
process under the MMPA, or through
related analyses conducted under the
National Environmental Policy Act
(NEPA) or the ESA. The agreement did
not constitute a concession by the Navy
as to the potential impacts of Navy
activities on marine mammals or any
other marine species, or to the
practicability of the measures. The
Navy’s adoption of restrictions on its
HSTT activities as part of a relatively
short-term settlement did not mean that
those restrictions were necessarily
supported by the best available science,
likely to reduce impacts to marine
mammal species or stocks and their
habitat, or practicable to implement
from a military readiness standpoint
over the longer term in the HSTT Study
Area. Accordingly, as required by
statute, NMFS analyzed the Navy’s
activities, impacts, mitigation and
potential mitigation (including the
settlement agreement measures)
pursuant to the least practicable adverse
impact standard to determine the
appropriate mitigation to include in
these regulations. Some of the measures
included in the settlement agreement
are included in the final rule, while
some are not. Other measures that were
not included in the settlement
agreement are included in the final rule.
Ultimately, the Navy adopted all
mitigation measures that are practicable
without jeopardizing its mission and
Title 10 responsibilities. In other words,
a comprehensive assessment by Navy
leadership of the final, entire list of
mitigation measures concluded that the
inclusion of any further mitigation
beyond those measures identified here
in the final rule would be impracticable.
NMFS independently reviewed the
Navy’s practicability determinations for
specific mitigation areas and concurs
with the Navy’s analysis.
As we outlined in the Mitigation
Measures section of the 2018 HSTT final
rule, NMFS reviewed Appendix K
(Geographic Mitigation Assessment) in
the 2018 HSTT FEIS/OEIS and the
information contained there reflects the
best available science as well as a robust
evaluation of the practicability of
different measures. NMFS used
Appendix K to support our independent
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least practicable adverse impact
analysis. Below is additional discussion
regarding specific recommendations for
mitigation measures.
Comment 44: With respect to the
national security exemption related to
mitigation areas, in a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS should
specify that authorization may be given
only by high-level officers, consistent
with the Settlement Agreement or with
previous HSTT rulings.
Response: The Navy provided the
technical analyses contained in
Appendix K (Geographic Mitigation
Assessment) of the 2018 HSTT FEIS/
OEIS that included details regarding
changing the measure to the appropriate
delegated Command designee (see
specifically Appendix K, Section K.2.2.1
(Proposed Mitigation Areas within the
HSTT Study Area), for each of the
proposed areas). The Commenter
proposed ‘‘authorization may be given
only by high-level officers’’ and
therefore appears to have missed the
designations made within the cited
sections since those do constitute
positions that could only be considered
‘‘high level officers.’’ The decision
would be delegated to high-level
officers. This delegation has been
clarified in this rule as ‘‘permission
from the appropriate designated
Command authority.’’
SOCAL Areas
Comment 45: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that the Navy consider
units of the National Park Service (NPS)
system and similar areas that occur near
the Navy’s training and testing locations
in Southern California and which may
be affected by noise, including Channel
Islands National Park and Cabrillo
National Monument, as it plans its
activities in the HSTT Study Area.
Response: Both NMFS and the Navy
did consider the effects of Navy
activities on NPS sites and National
Monuments. National Parks (NP) and
National Monuments are addressed in
Chapter 6 of the 2018 HSTT FEIS/OEIS.
The Channel Islands NP consists of the
five islands and surrounding ocean
environment out to 1 nmi of Anacapa
Island, Santa Cruz Island, Santa Rosa
Island, San Miguel Island, and Santa
Barbara Island. Similarly, the Channel
Islands National Marine Sanctuary
(NMS) consists of the ocean waters
within an area of 1,109 nmi2 that also
surround the same islands of Anacapa
Island, Santa Cruz Island, Santa Rosa
Island, San Miguel Island and Santa
Barbara Island to the south. The
Channel Islands NMS waters extend
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from mean high tide to 6 nmi offshore
around each of these five islands which
would also encompass the surrounding
ocean waters of the Channel Islands NP.
Only 92 nmi2 of Santa Barbara Island, or
about 8 percent of the Channel Islands
NMS, occurs within the SOCAL portion
of the HSTT Study Area, but the entirety
of that piece is included in the Santa
Barbara Mitigation Area. The Navy will
continue to implement a mitigation area
out to 6 nmi of Santa Barbara Island,
which includes a portion of the Channel
Islands NMS (inclusive of the Channels
Island NP portion) where the Navy will
restrict the use of MF1 sonar sources
and some explosives during training.
Therefore, no impacts are expected to
occur within the waters of the Channel
Islands NP. Please refer to Figure 5.4–
4 in the 2018 HSTT FEIS/OEIS, which
shows the spatial extent of the Santa
Barbara Island Mitigation Area. Cabrillo
National Monument in San Diego only
contains some intertidal areas, but no
marine waters. No Navy activities
overlap with the Cabrillo National
Monument; therefore, no impacts are
expected.
Comment 46: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended to extend the seasonality
of the San Diego Arc Mitigation Area to
December 31 for blue whales that are
present off southern California almost
year round, and relatively higher levels
from June 1 through December 31.
Response: Analysis of the San Diego
Arc Mitigation Area and its
consideration for additional geographic
mitigation is provided in the 2018 HSTT
FEIS/OEIS in Appendix K (Geographic
Mitigation Assessment), Section K.4.1.6
(San Diego (Arc) Blue Whale Feeding
Area; Settlement Areas 3–A through 3–
C, California Coastal Commission 3 nmi
Shore Area, and San Diego Arc Area),
Section K.5.5 (Settlement Areas within
the Southern California Portion of the
HSTT Study Area), and Section K.6.2
(San Diego Arc: Area Parallel to the
Coastline from the Gulf of California
Border to just North of Del Mar). This
analysis included consideration of
seasonality and the potential
effectiveness of restrictions to use of
MFAS by the Navy in the area. Based on
further discussion between NMFS and
the Navy in consideration of the
Appendix K (Geographic Mitigation
Assessment) analyses, with the 2018
HSTT final rule the Navy implemented
additional mitigation within the San
Diego Arc Mitigation Area, as detailed
in this 2020 rule and Chapter 5
(Mitigation) Section 5.4.3 (Mitigation
Areas for Marine Mammals in the
Southern California Portion of the Study
Area) of the 2018 HSTT FEIS/OEIS, to
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further avoid or reduce impacts on
marine mammals from acoustic and
explosive stressors and vessel strikes
from Navy training and testing in this
location. The Navy is limiting MF1
surface ship hull-mounted MFAS even
further in the San Diego Arc Mitigation
Area. The Navy will not conduct more
than 200 hrs of MF1 MFAS in the
combined areas of the San Diego Arc
Mitigation Area and newly added San
Nicolas Island and Santa Monica/Long
Beach Mitigation Areas. As described in
the 2018 rule and this rule, the Navy
will not use explosives that could
potentially result in the take of marine
mammals during large-caliber gunnery,
torpedo, bombing, and missile
(including 2.75-in rockets) activities
during training and testing in the San
Diego Mitigation Area. Regarding the
recommended increase in seasonality to
December 31, the San Diego Arc current
seasonality is based on the Biologically
Important Area associated with this
mitigation area (Calambokidis et al.,
2015), which identifies the primary
months for feeding. While blue whale
calls have been detected in Southern
California through December (Rice et
al., 2017, Lewis and Sˇirovic´, 2018),
given a large propagation range (10–50
km or more) for low-frequency blue
whale vocalization, blue whale call
detection from a Navy-funded single
passive acoustic device near the San
Diego Arc may not be a direct
correlation with blue whale presence
within the San Diego Arc from
November through December. In
addition, passive acoustic call detection
data does not currently allow for direct
abundance estimates. Calls may indicate
some level of blue whale presence, but
not abundance or individual residency
time. In the most recent Navy-funded
passive acoustic monitoring report
including the one site in the northern
San Diego Arc from June 2015 to April
2016, blue whale call detection
frequency near the San Diego Arc
started declining in November after an
October peak (Rice et al., 2017, Sˇirovic´,
personal communication). The Navyfunded research on blue whale
movements from 2014 to 2017 along the
U.S. West Coast based on satellite
tagging, has shown that individual blue
whale movement is wide ranging with
large distances covered daily (Mate et
al., 2017). Nineteen (19) blue whales
were tagged in 2016, the most recent
reporting year available (Mate et al.,
2017). Only 5 of the 19 blue whales
spent time in the SOCAL portion of the
HSTT Study Area, and only spent a few
days within the range complex (2–13
days). Average distance from shore for
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blue whales was 113 km. None of the 19
blue whales tagged in 2016 spent time
within the San Diego Arc. From
previous year efforts (2014–2015), only
a few tagged blue whales passed
through the San Diego Arc. In addition,
Navy and non-Navy-funded blue whale
satellite tagging studies started in the
early 1990s and have continued
irregularly through 2017. In general,
most blue whales start a south-bound
migration from the ‘‘summer foraging
areas’’ in the mid- to late-fall time
period, unless food has not been
plentiful, which can lead to a much
earlier migration south. Therefore, while
blue whales have been documented
within the San Diego Arc previously,
individual use of the area is variable,
likely of short duration, and declining
after October. Considering the newest
passive acoustic and satellite tagging
data, there is no scientific justification
for extending the San Diego Arc
Mitigation Area period from October 31
to December 31.
Comment 47: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended limiting all MF1 use
within the San Diego Arc Mitigation
Area. A Commenter also recommended
NMFS should carefully consider
prohibiting use of other LFAS and
MFAS during the time period the San
Diego Arc Mitigation Area is in place,
and for the MTEs to be planned for
other months of the year.
Response: Based on further discussion
between NMFS and the Navy in
consideration of the proposed
mitigation presented in the 2018 HSTT
proposed rule, the Navy is now limiting
MF1 surface ship hull-mounted MFAS
even further in the San Diego Arc
Mitigation Area. The Navy will not
conduct more than 200 hrs of MF1
MFAS in the combined areas of the San
Diego Arc Mitigation Area and newly
added San Nicolas Island and Santa
Monica/Long Beach Mitigation Areas.
The Mitigation Measures section of the
2018 HSTT final rule and Appendix K
(Geographic Mitigation Assessment) of
the 2018 HSTT FEIS/OEIS discuss
MFAS restrictions within the San Diego
Arc Mitigation Area. Other training
MFAS systems are likely to be used less
frequently in the vicinity of the San
Diego Arc area than surface ship MFAS.
Given water depths, the San Diego Arc
area is not conducive for large scale
anti-submarine warfare exercises, nor is
it near areas where other anti-submarine
warfare training and testing occurs. Due
to the presence of existing Navy
subareas in the southern part of the San
Diego Arc, a limited amount of
helicopter dipping MFAS could occur.
These designated range areas are
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required for proximity to airfields in
San Diego such as Naval Air Station
North Island and for airspace
management. However, helicopters only
use these areas in the Arc for a Kilo Dip.
A Kilo Dip is a functional check of
approximately 1–2 pings of active sonar
to confirm the system is operational
before the helicopter heads to more
remote offshore training areas. This
ensures proper system operation and
avoids loss of limited training time,
expenditure of fuel, and cumulative
engine use in the event of equipment
malfunction. The potential effects of
dipping sonar have been accounted for
in the rule’s analysis. Dipping sonar is
further discussed below in Comment 48.
Comment 48: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting the use of airdeployed MFAS in the San Diego Arc
Mitigation Area.
Response: The 2018 HSTT FEIS/OEIS
and specifically Appendix K
(Geographic Mitigation Assessment)
analyze MFAS and LFAS restrictions
within the San Diego Arc. Other sonar
systems are used less frequently in the
vicinity of the San Diego Arc than
surface ship MFAS. In regard to the
recommendation to prohibit ‘‘airdeployed’’ or dipping MFAS, the only
helicopter dipping sonar activity that
would likely be conducted in the San
Diego Arc area is a Kilo Dip, which
occurs relatively infrequently and
involves a functional check of
approximately 1–2 pings of active sonar
before moving offshore beyond the San
Diego Arc to conduct the training
activity. During use of this sonar, the
Navy will implement the procedural
mitigation described in the Mitigation
Measures section of this rule. The Kilo
Dip functional check needs to occur
close to Naval Air Station North Island
in San Diego to ensure all systems are
functioning properly, before moving
offshore. This ensures proper system
operation and avoids loss of limited
training time, expenditure of fuel, and
cumulative engine use in the event of
equipment malfunction. The potential
effects of dipping sonar have been
accounted for in the rule’s analysis.
Further, due to lower power settings for
dipping sonar, potential behavioral
impact ranges of dipping sonar are
significantly lower than surface ship
sonars. For example, the HSTT average
modeled range to temporary threshold
shift of dipping sonar for a 1-second
ping on low-frequency cetacean (i.e.,
blue whale) is 77 m (2018 HSTT FEIS/
OEIS Table 3.7–7). This range is easily
monitored for large whales by a
hovering helicopter and is accounted for
in the mitigation ranges for dipping
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sonars. Limited ping time and lower
power settings therefore would limit the
impact from dipping sonar to any
marine mammal species. It should be
pointed out that the Commenter’s
recommendation is based on new
behavioral response research specific to
beaked whales (Falcone et al., 2017).
The Navy relied upon the best science
that was available to develop behavioral
response functions in consultation with
NMFS for the 2018 HSTT FEIS/OEIS.
The article cited in the comment
(Falcone et al., 2017) was not available
at the time the 2017 HSTT DEIS/OEIS
was published. NMFS and the Navy
have reviewed the article and concur
that neither this article nor any other
new information that has been
published or otherwise conveyed since
the 2018 HSTT proposed rule was
published would fundamentally change
the assessment of impacts or
conclusions in the 2018 HSTT FEIS/
OEIS or in this rulemaking.
Nonetheless, the new information and
data presented in the new article were
thoroughly reviewed by the Navy and
will be quantitatively incorporated into
future behavioral response functions, as
appropriate, when and if other new data
that would meaningfully change the
functions would necessitate their
revision. The new information and data
presented in the article was thoroughly
reviewed when it became available and
further considered in discussions with
some of the paper’s authors. Many of the
variables requiring further analysis for
beaked whales and dipping sonar
impact assessment are still being
researched under continued Navy
funding through 2023. The small
portion of designated Kilo Dip areas that
overlap the southern part of the San
Diego Arc is not of sufficient depth for
preferred habitat of beaked whales (see
Figure 2.1–9 in the 2018 HSTT FEIS/
OEIS). Further, passive acoustic
monitoring for the past several years in
the San Diego Arc confirms a lack of
beaked whale detections (Rice et al.,
2017). Also, behavioral responses of
beaked whales from dipping and other
sonars cannot be universally applied to
other species including blue whales.
Navy-funded behavioral response
studies of blue whales to simulated
surface ship sonar has demonstrated
there are distinct individual variations
as well as strong behavioral state
considerations that influence any
response or lack of response (Goldbogen
et al., 2013).
Comment 49: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended requiring vessel speed
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restrictions within the San Diego Arc
Mitigation Area.
Response: Previously, the Navy
commissioned a vessel density and
speed report for the HSTT Study Area
(CNA, 2016). Based on an analysis of
Navy ship traffic in the HSTT Study
Area between 2011 and 2015, median
speed of all Navy vessels within
Southern California is typically already
low, with median speeds between 5 and
12 kn (CNA, 2016). Slowest speeds
occurred closer to the coast including
the general area of the San Diego Arc
and approaches to San Diego Bay. The
presence and transits of commercial and
recreational vessels, numbering in the
many hundreds, far outweighs the
presence of Navy vessels. Regarding
strikes by vessels other than Navy
vessels, two blue whale ship strike
deaths were observed during the most
recent five-year period of 2013–2017
(Carretta et al. 2019, final 2018 SARs).
There were no reported ship-strike
related serious injuries during this time
period (Carretta et al. 2019).
Observations of blue whale ship strikes
have been highly-variable in previous
five-year periods, with as many as 10
observed (nine deaths and one serious
injury) during 2007–2011 (Carretta et
al., 2013). The highest number of blue
whale ship strikes observed in a single
year (2007) was five whales (Carretta et
al. 2013). Additionally, ship strike
mortality was estimated for blue whales
in the U.S. West Coast EEZ (Rockwood
et al., 2017), using an encounter theory
model (Martin et al., 2016) that
combined species distribution models of
whale density (Becker et al., 2016),
vessel traffic characteristics (size, speed,
and spatial use), along with whale
movement patterns obtained from
satellite-tagged whales in the region to
estimate encounters that would result in
mortality and predicted higher annual
numbers of mortality. But as discussed
in this final rule, the SAR further cites
to Monnahan et al. (2015), which used
a population dynamics model to
estimate that the Eastern North Pacific
blue whale population was at 97 percent
of carrying capacity in 2013 and to
suggest that the observed lack of a
population increase since the early
1990s was explained by density
dependence, not impacts from ship
strike. Ship strike in the West Coast EEZ
continues to be complex with vessel
speeds, types, and routes of travel all
contributing to variability in ship traffic
and animal vulnerability. That said,
there has been no confirmed Navy ship
strike to a blue whale in the entire
Pacific over the 14-year period from
2005 to 2019. To minimize the
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possibility of ship strike in the San
Diego Arc Mitigation Area, the Navy
will implement procedural mitigation
for vessel movements based on guidance
from NMFS for vessel strike avoidance.
The Navy will also issue seasonal
awareness notification messages to all
Navy vessels of blue, fin, and gray
whale occurrence to increase ships
awareness of marine mammal presence
as a means of improving detection and
avoidance of whales in SOCAL. When
developing the mitigation for the 2018
HSTT final rule, NMFS and the Navy
analyzed the potential for implementing
additional types of mitigation, such as
developing 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
under the planned activities, vessel
speed restrictions would be
incompatible with the practicability
assessment criteria for safety,
sustainability, and Title 10
requirements, as described in Section
5.3.4.1 (Vessel Movement) of the 2018
HSTT FEIS/OEIS.
Comment 50: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting the use of airdeployed MFAS in the Santa Barbara
Island Mitigation Area.
Response: The Commenter’s request
to prohibit ‘‘air-deployed’’ MFAS is
based on one paper (Falcone et al.,
2017), which is a Navy-funded project
designed to study behavioral responses
of a single species, Cuvier’s beaked
whales, to MFAS. The Navy in
consultation with NMFS relied upon the
best science that was available to
develop behavioral response functions
for beaked whales and other marine
mammals for the 2018 HSTT FEIS/OEIS.
NMFS and the Navy have reviewed the
article and concur that neither this
article (Falcone et al., 2017) nor any
other new information that has been
published or otherwise conveyed since
the 2018 HSTT proposed rule was
published would fundamentally change
the assessment of impacts or
conclusions in the 2018 HSTT FEIS/
OEIS or in this rulemaking.
Nonetheless, the new information and
data presented in the new article were
thoroughly reviewed by the Navy and
will be quantitatively incorporated into
future behavioral response functions, as
appropriate, when and if other new data
that would meaningfully change the
functions would necessitate their
revision. Many of the variables requiring
further analysis for beaked whales and
dipping sonar impact assessment are
still being researched under continued
Navy funding through 2023.
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Behavioral responses of beaked
whales from dipping and other sonars
cannot be universally applied to other
marine mammal species. For example,
Navy-funded behavioral response
studies of blue whales to simulated
surface ship sonar has demonstrated
there are distinct individual variations
as well as strong behavioral state
considerations that influence any
response or lack of response (Goldbogen
et al., 2013). The same conclusion on
the importance of exposure and
behavioral context was stressed by
Harris et al. (2017). Therefore, it is
expected that other species would also
have highly variable individual
responses ranging from some response
to no response to any anthropogenic
sound. This variability is accounted for
in the current behavioral response
curves described in the 2018 HSTT
FEIS/OEIS and supporting technical
reports, and used by NMFS in the
MMPA rule.
The potential effects of dipping sonar
have been rigorously accounted for in
the analysis. Parameters such as power
level and propagation range for typical
dipping sonar use are factored into
HSTT acoustic impact analysis along
with guild specific criteria and other
modeling variables as detailed in the
2018 HSTT FEIS/OEIS and associated
technical reports for criteria and
acoustic modeling. Due to lower power
settings for dipping sonar, potential
impact ranges of dipping sonar are
significantly lower than surface ship
sonars. For example, the HSTT average
modeled range to temporary threshold
shift of dipping sonar for a 1-second
ping on low-frequency cetacean (i.e.,
blue whale) is 77 m, and for midfrequency cetaceans including beaked
whales is 22 m (2018 HSTT FEIS/OEIS
Table 3.7–7). This range is monitored
for marine mammals by a hovering
helicopter and is accounted for in the
mitigation ranges for dipping sonars
(200 yd or 183 m). Limited ping time
and lower power settings therefore
would limit the impact from dipping
sonar to any marine mammal species.
For other marine mammal species, the
small area around Santa Barbara Island
does not have resident marine
mammals, identified biologically
important areas, nor is it identified as a
breeding or persistent foraging location
for cetaceans. Instead, the same marine
mammals that range throughout the
offshore Southern California area could
pass at some point through the marine
waters of Santa Barbara Island. As
discussed in the mitigation section of
the rule, the Navy will implement (and
is currently implementing) year-round
limitations to MFAS and larger
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explosive use. The Navy will not use
MF1 surface ship hull-mounted MFAS
during training or testing, or explosives
that could potentially result in the take
of marine mammals during mediumcaliber or large-caliber gunnery,
torpedo, bombing, and missile
(including 2.75-in rockets) activities
during training in the Santa Barbara
Island Mitigation Area. Other MFAS
systems within SOCAL are used less
frequently than surface ship sonars, and
more importantly are of much lower
power with correspondingly lower
propagation ranges and reduced
potential behavioral impacts.
Comment 51: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting other sources
of MFAS in the Santa Barbara
Mitigation Area.
Response: Appendix K (Geographic
Mitigation Assessment) of the 2018
HSTT FEIS/OEIS, which NMFS
reviewed, concurred with, and used to
support our MMPA least practicable
adverse impact analysis, discusses the
Navy’s analysis of MFAS restrictions
around Santa Barbara Island. Other
training MFAS systems are likely to be
used less frequently in the vicinity of
Santa Barbara Island than surface ship
MFASs. Although not prohibiting the
use of other sources of MFAS, the Navy
will not use MF1 surface ship hullmounted MFAS during training or
testing, or explosives that could
potentially result in the take of marine
mammals during medium-caliber or
large-caliber gunnery, torpedo, bombing,
and missile (including 2.75-in rockets)
activities during training in the Santa
Barbara Island Mitigation Area.
The relatively small area surrounding
the Santa Barbara Island Mitigation Area
represents less than 0.08 percent of the
entire HSTT SOCAL area. An even
smaller portion of this area meets the
scientifically accepted minimum depth
criteria expected for beaked whale
habitat, in Southern California usually
greater than 800 m. The bathymetric
area greater than 800 m depth and
within the Santa Barbara Island
Mitigation Area is approximately 24
square Nmi (26 percent of the total
Mitigation Area spatial extent or only
0.02 percent of the total HSTT SOCAL
area). Beaked whale monitoring at other
locations within SOCAL have shown
that even in ocean basins thought to
have Cuvier’s beaked whale subpopulation, there is still quite a bit of
variation in occurrence and movement
of beaked whales within a given basin
(Schorr et al., 2017, 2018, 2020). The
small area around Santa Barbara Island
is not known to have resident marine
mammals, formally identified
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biologically important areas, nor is it
identified as a breeding or persistent
foraging location for cetaceans. Instead,
the same marine mammals that range
throughout the offshore Southern
California area could pass at some point
through the marine waters of Santa
Barbara Island. As discussed in this rule
the Navy is implementing year-round
limitations to MFAS and larger
explosive use. Other MFAS systems for
which the Navy sought coverage within
SOCAL are used less frequently than
surface ship sonars, and more
importantly are of much lower power
with correspondingly lower propagation
ranges and reduced potential behavioral
impacts. Therefore, further limitations
of active sonars within this area are not
anticipated to be meaningfully more
protective to marine mammal
populations than existing mitigation
measures within the entire SOCAL
portion of the HSTT Study Area.
Comment 52: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended implementing vessel
speed restrictions in the Santa Barbara
Island Mitigation Area (Channel Islands
Sanctuary Cautionary Area).
Response: The Channel Islands
Sanctuary Cautionary Area was
renamed the Santa Barbara Island
Mitigation Area for the rule. All
locations within the HSTT Study Area
have been used for Navy training and
testing for decades. There has not been
any Navy ship strike to marine
mammals in SOCAL over the 10-year
period from 2010–2019, and there has
never been a Navy strike within the
boundary of the Channel Islands
National Marine Sanctuary over the
course of strike record collection dating
back 20 years. Therefore, ship strike risk
to marine mammals transiting the Santa
Barbara Island Mitigation Area is
minimal. Additionally, as discussed in
this rule, the 2018 HSTT final rule, and
the 2018 HSTT FEIS/OEIS Section
3.7.3.4.1 (Impacts from Vessels and InWater Devices) and Appendix K
(Geographic Mitigation Assessment),
there are important differences between
most Navy vessels and their operation
and commercial ships that individually
make Navy vessels much less likely to
strike a whale. Navy vessels already
operate at lower speeds given a
particular transit or activity need.
Mitigation measures include a provision
to avoid large whales by 500 yd, so long
as safety of navigation and safety of
operations is maintained. Previously,
the Navy commissioned a vessel density
and speed report for HSTT (CNA, 2016).
Based on an analysis of Navy ship traffic
in HSTT between 2011 and 2015, the
average speed of all Navy vessels within
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41819
Southern California is typically already
low, with median speeds between 5 and
12 kn (CNA, 2016). Slowest speeds
occurred closer to the coast and islands.
Given the history of no documented
Navy ship strikes over the last 10 years
(2010–2019) throughout SOCAL during
Navy activities, lack of significant and
repeated use of the small portion of
waters within the Santa Barbara Island
Mitigation Area by marine mammals,
anticipated low individual residency
times within the Santa Barbara Island
Mitigation Area, application of
mitigation and protective measures as
outlined in this rule and the 2018 HSTT
final rule, documented lower speeds
Navy vessels already navigate by,
detailed assessments of realistic training
and testing requirements, and potential
impacts of further restrictions, NMFS
has determined that vessel speed
restrictions in the Santa Barbara Island
Mitigation Area are not warranted.
Comment 53: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended additional mitigation
areas for important beaked whale
habitat in the Southern California Bight.
The Commenter asserted that it is
important to focus substantial
management efforts on beaked whales
within the Navy’s SOCAL Range
Complex, which sees the greatest annual
amount of sonar and explosives activity
of any Navy range in the Pacific.
Response: The basis for this comment
includes incorrect or outdated
information or information that does not
reflect the environment present in the
HSTT Study Area, such as, ‘‘. . . beaked
whale populations in the California
Current have shown significant,
possibly drastic declines in abundance
over the last twenty years.’’ The citation
provided in the footnote to the comment
and postulated ‘‘decline’’ was for
beaked whales up until 2008 (which
does not take into account information
from the last 10 years) and was a
postulated trend for the entire U.S. West
Coast, not data which is specific to the
HSTT Study Area. As noted in Section
3.7.3.1.1.7 (Long-Term Consequences) of
the 2018 HSTT FEIS/OEIS, the
postulated decline was in fact not
present within the SOCAL portion of
the HSTT Study Area, where
abundances of beaked whales have
remained higher than other locations off
the U.S. West Coast. In addition, the
authors of the 2013 citation (Moore and
Barlow, 2013) have published trends
based on survey data gathered since
2008 for beaked whales in the California
Current, which now includes the
highest abundance estimate in the
history of these surveys (Barlow 2016;
Carretta et al., 2017; Moore and Barlow,
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2017). Also, when considering the
portion of the beaked whale population
within the SOCAL portion of the HSTT
Study Area and as presented in the 2018
HSTT FEIS/OEIS, multiple studies have
documented continued high abundance
of beaked whales and the long-term
residency of documented individual
beaked whales, specifically where the
Navy has been training and testing for
decades (see for example Debich et al.,
2015a, 2015b; Dimarzio et al., 2018,
2020; Falcone and Schorr, 2012, 2014,
2018, 2020; Hildebrand et al., 2009;
Moretti, 2016; Sˇirovic´ et al., 2016;
Smultea and Jefferson, 2014). There is
no evidence that there have been any
population-level impacts to beaked
whales resulting from Navy training and
testing in the SOCAL portion of the
HSTT Study Area. NMFS and the Navy
considered additional geographic
mitigation for beaked whales in the
Southern California Bight, as described
in Appendix K (Geographic Mitigation
Assessment), Section K.7.2 (Southern
California Public Comment Mitigation
Area Assessment) and specifically
Section K.7.2.7 (Northern Catalina Basin
and the San Clemente Basin) of the 2018
HSTT FEIS/OEIS, which NMFS used in
support of this rule. See Chapter 5
(Mitigation), Section 5.4.1.2 (Mitigation
Area Assessment) of the 2018 HSTT
FEIS/OEIS for additional details
regarding the assessments of areas
considered for mitigation.
Comment 54: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended additional mitigation
areas in the San Nicolas Basin. The
Commenter noted that the settlement
agreement established a ‘‘refuge’’ from
sonar and explosives activities in a
portion of the whales’ secondary
habitat, outside the Southern California
Anti-submarine Warfare Range (SOAR),
with more management effort being
necessary in the long term. The
Commenter recommended at a
minimum that NMFS should prescribe
the ‘‘refuge’’ during the next five-year
operation period and should consider
all possible habitat-based management
efforts, including but not limited to the
expansion of this area further south
towards SOAR, to address impacts on
the small population of Cuvier’s beaked
whales associated with San Clemente
Island.
Response: NMFS and the Navy
considered additional geographic
mitigation for beaked whales in the San
Nicolas Basin, as described in Appendix
K (Geographic Mitigation Assessment),
Section K.7.2 (Southern California
Public Comment Mitigation Area
Assessment), and specifically Section
K.7.2.1 (San Nicolas Basin) of the 2018
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HSTT FEIS/OEIS, which NMFS
reviewed, concurred with, and used to
support the mitigation analysis in the
rule. See Chapter 5 (Mitigation), Section
5.4.1.2 (Mitigation Area Assessment) of
the 2018 HSTT FEIS/OEIS for additional
details regarding the assessments of
areas considered for mitigation. Further,
the Mitigation Measures, Brief
Comparison of 2015 Settlement
Mitigation and Final HSTT Mitigation in
the Rule section of the 2018 HSTT final
rule explicitly discusses NMFS
consideration of mitigation that was
included in the settlement agreement
versus what was included in the final
rule in the context of the MMPA least
practicable adverse impact standard.
Within the San Nicolas Basin, there is
a documented, recurring number of
Cuvier’s beaked whales strongly
indicating that the Navy’s activities are
not having a population-level impact on
this species. This is supported by
repeated visual re-sighting rates of
individuals, sightings of calves and,
more importantly, reproductive females,
and passive acoustic assessments of
steady vocalization rates and abundance
over at least the most recent seven-year
interval. It is incorrect to conclude that
there is a ‘‘population sink,’’ such as has
been seen on the Navy’s AUTEC range.
In the citation provided (Claridge,
2013), that statement is merely a
hypothesis, yet to be demonstrated.
The Navy has been funding Cuvier’s
beaked whale research specifically in
the San Nicolas Basin since 2006. This
research is planned to continue through
the duration of this MMPA
authorization. Cumulative from 2006 to
2016, over 170 individual Cuvier’s
beaked whales have been catalogued
within the San Nicolas Basin. Schorr et
al. (2018) stated for the field season
from 2016 to 2017 that: Identification
photos of suitable quality were collected
from 69 of the estimated 81 individual
Cuvier’s beaked whales encountered in
2016–2017. These represented 48
unique individuals, with eight of these
whales sighted on two different days,
and another three on three different
days during the study period. Nineteen
(39 percent) of these whales had been
sighted in previous years. Many more
whales identified in 2016 had been
sighted in a previous year (16/28
individuals, 57 percent), compared to
2017 (5/22 individuals, 23 percent),
though both years had sightings of
whales seen as early as 2007. There
were three adult females photographed
in 2016 that had been sighted with
calves in previous years, one of which
was associated with her second calf.
Additionally, a fourth adult female, first
identified in 2015 without a calf, was
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subsequently sighted with a calf. The
latter whale was sighted for a third
consecutive year in 2017, this time
without a calf, along with two other
adult females with calves who had not
been previously sighted. These sightings
of known reproductive females with and
without calves over time (n = 45) are
providing critically needed calving and
weaning rate data for Population
Consequences of Disturbance (PcoD)
models currently being developed for
this species on SOAR.
From August 2010 through October
2019, an estimate of overall abundance
of Cuvier’s beaked whales at the Navy’s
instrumented range in San Nicolas
Basin was obtained using new divecounting acoustic methods and an
archive of passive acoustic M3R data
representing 49,855 hours of data
(DiMarzio et al., 2020). Over the 10-year
interval from 2010–2019, there was no
observed change and perhaps a slight
increase in annual Cuvier’s beaked
whale abundance within San Nicolas
Basin (DiMarzio et al., 2020). There
does appear to be a repeated dip in
population numbers and associated
echolocation clicks during the fall
centered around August and September
(DiMarzio et al., 2020; Moretti, 2017). A
similar August and September dip was
noted by researchers using stand-alone
off-range bottom passive acoustic
devices in Southern California (Rice et
al., 2017, 2019, 2020; Sˇirovic´ et al.,
2016). This dip in abundance
documented over 10 years of monitoring
may be tied to some as of yet unknown
population dynamic or oceanographic
and prey availability dynamic. It is
unknown scientifically if this represents
a movement to different areas by parts
of the population, or a change in
behavioral states without movement
(i.e., breeding versus foraging). Navy
training and testing events are spatially
and temporally spread out across the
SOCAL portion of the HSTT Study
Area. In some years events occur in the
fall, yet in other years events do not.
Yet, the same dip has consistently been
observed lending further evidence this
is likely a population biological
function.
Comment 55: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended additional mitigation
areas in the Santa Catalina Basin. A
Commenter commented that there is
likely a small, resident population of
Cuvier’s beaked whales that resides in
the Santa Catalina Basin and that this
population is subject to regular acoustic
disturbance due to the presence of the
Shore Bombardment Area (SHOBA) and
3803XX. The population may also be
exposed to training activities that
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occupy waters between Santa Catalina
and San Clemente Islands. Similar to
the San Nicolas population, the
settlement agreement established a
‘‘refuge’’ from sonar and explosives
activities in the northern portion of the
Santa Catalina Basin. A Commenter
recommended that, at a minimum, the
Navy should carefully consider
implementing the ‘‘refuge’’ during the
next five-year authorization period and
should continue to consider all possible
habitat-based management efforts to
address impacts on the population.
Response: The water space areas
mentioned in the comment as
‘‘(SHOBA)’’ off the southern end of San
Clemente Island are waters designated
as Federal Danger and Safety Zones via
formal rulemaking (Danger Zone—33
CFR 334.950 and Safety Zone—33 CFR
165.1141) because they are adjacent to
the shore bombardment impact area that
is on land at the southern end of San
Clemente Island. Waters designated as
‘‘3803XX,’’ which are associated with
the Wilson Cove anchorages and
moorings, where ship calibration tests,
sonobuoy lot testing, and special
projects take place, are designated as
Federal Safety and Restricted Zones via
formal rulemaking (Safety Zone—33
CFR 165.1141 and Restricted Zone—33
CFR 334.920).
The comment states a concern that a
population of Cuvier’s beaked whale is,
‘‘subject to regular acoustic disturbance
due to the presence of the Shore
Bombardment Area,’’ is not correct. The
SHOBA is a naval gun impact area
located on land at the southern end of
San Clemente Island. This area is an
instrumented land training range used
for a variety of bombardment training
and testing activities. The in-water
administrative boundary for SHOBA
does not delineate the locations where
a ship firing at land targets must be
located and does not represent where
gunfire rounds are targeted. The water
area in Santa Catalina Basin is a
controlled safety zone in the very
unlikely event a round goes over the
island and lands in the water. With the
modern advent of better precision
munitions, computers, and advanced
fire control, that probability is very
remote. Navy vessels use the waters
south of San Clemente Island (SHOBA
West and SHOBA East) from which to
fire into land targets on southern San
Clemente Island (see the 2018 HSTT
FEIS/OEIS Figure 2.1–7). Therefore,
there would not be any underwater
acoustic disturbance to Cuvier’s beaked
whales located within the Santa
Catalina Basin from in-water explosives
or ship firing. Further, the Mitigation
Measures subsection, Brief Comparison
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of 2015 Settlement Mitigation and Final
HSTT Mitigation in the Rule section, of
the 2018 HSTT final rule explicitly
discusses NMFS’ consideration of
mitigation that was included in the
settlement agreement versus what was
included in the final rule in the context
of the MMPA least practicable adverse
impact standard.
Comment 56: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended additional mitigation
areas for the southernmost edge of the
California Current, west of Tanner and
Cortes Banks. In light of the importance
of the Southernmost edge of the
California Current, west of Tanner and
Cortes banks, Commenters recommend
assessing the designation of the
southern offshore waters of the
Southern California Bight as a seasonal
time-area management area for Cuvier’s
beaked whales between November and
June. The approximate coordinates are
32.75 N., 119.46 W (referenced as Site
E). As part of this assessment, the
Commenter recommended that the
boundaries be refined via expert
consideration of acoustic and other
relevant information pertaining to
beaked whale biology and bathymetric
and oceanographic data.
Response: Baumann-Pickering et al.
(2014a, b, 2015), as the Commenter
referenced, did not specify this area as
biologically important and the author’s
data only indicated there have been
detections of the Cuvier’s beaked whales
within this area. Further, the species is
widely distributed within Southern
California and across the Pacific with
almost all suitable deep water habitat
greater than 800 m in Southern
California conceivably containing
Cuvier’s beaked whales. Only limited
population vital rates exist for beaked
whales, covering numbers of animals,
populations vs. subpopulations
determination, and residency time for
individual animals (Schorr et al., 2017,
2018). The science of passive acoustic
monitoring is positioned to answer
some questions on occurrence and
seasonality of beaked whales, but
cannot as of yet address all fundamental
population parameters including
individual residency time.
Furthermore, while passive acoustic
monitoring within Southern California
has been ongoing for 28 years, with
many sites funded by the Navy, not all
sites have been consecutively monitored
for each year. All of the single bottommounted passive acoustic devices used
for the analysis by Baumann-Pickering
et al. (2014a, b, 2015), and used in the
comment to support its argument, are
not continuous and have various
periodicities from which data have been
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collected. Specifically, devices have
been deployed and removed from
various locations with some sites having
multiple years of data, and others
significantly less, with perhaps just a
few months out of a year. For instance,
Site E, located west of Tanner and
Cortes Banks and used by the
Commenter to justify restrictions in this
area, was only monitored for 322 days
from September 2006 through July 2009
(obtaining slightly less than a full year’s
worth of data).
Site E was also used again for another
63 days from Dec 2010 through
February 2011. During this second
monitoring period at Site E, Gassman et
al. (2015) reported detection of only
three Cuvier’s beaked whales over six
separate encounters with time intervals
of 10–33 minutes. As sources of data
associated with a single monitoring
point, the two monitoring episodes
conducted at Site E may not be
indicative of Cuvier’s beaked whale
presence at other locations within
Southern California, which lack
comparable monitoring devices. Nor
would they be indicative of overall
importance or lack of importance of the
area west of Tanner and Cortes Banks.
Further, more recent acoustic sampling
of bathymetrically featureless areas off
Southern California with drifting
hydrophones conducted by NMFS,
detected many beaked whales over
abyssal plains and not associated with
slope or seamount features. This
counters a common misperception that
beaked whales are primarily found over
slope waters, in deep basins, or over
seamounts (Griffins and Barlow, 2016).
Most importantly, older passive
acoustic data prior to 2009 may not be
indicative of current or future
occurrence of beaked whales, especially
in terms of potential impact of climate
change on species distributions within
Southern California. To summarize,
these limited periods of monitoring (322
days in a three-year period prior to 2010
and 63 days in 2011) may or may not
be reflective of current beaked whale
distributions within Southern California
and into the future. Furthermore,
passive acoustic-only detection of
beaked whales, without additional
population parameters, can only
determine relative occurrence, which
could be highly variable over subregions and through time.
While Cuvier’s beaked whales have
been detected west of Tanner and Cortes
Banks, as noted above this species is
also detected in most all Southern
California locations greater than 800 m
in depth. Furthermore, the Navy has
been training and testing in and around
Tanner and Cortes Banks with the same
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basic systems for over 40 years, with no
evidence of any adverse impacts having
occurred. Further, there are no
indications that Navy training and
testing in the SOCAL portion of the
HSTT Study Area has had any adverse
impacts on populations of beaked
whales in Southern California. In
particular, a reoccurring population of
Cuvier’s beaked whales co-exists within
San Nicolas Basin to the east, an area
with significantly more in-water sonar
use than west of Tanner and Cortes
Banks.
To gain further knowledge on the
presence of beaked whales in Southern
California, the Navy continues to fund
additional passive acoustic field
monitoring, as well as research
advancements for density derivation
from passive acoustic data. For the fiveyear period from 2013 to 2019, U.S.
Pacific Fleet on behalf of the U.S. Navy
funded $18 million in marine species
monitoring within Hawaii and Southern
California. Specifically, in terms of
beaked whales, the Navy has been
funding beaked whale population
dynamics, tagging, and passive acoustic
studies within the HSTT Study Area
since 2007 (DiMarzio et al., 2018, 2019,
2020; Moretti, 2017; Rice et al., 2017,
2018, 2019, 2020; Schorr et al., 2017,
2018, 2019, 2020; Sˇirovic´, et al., 2017).
Variations of these efforts are planned to
continue through the duration of the
seven-year rule using a variety of
passive acoustic, visual, tagging, photo
ID, and genetics research tools. This
Navy effort is in addition and
complementary to any planned NMFS
efforts for beaked whales and other
marine mammals. For instance, the
Navy co-funded with NMFS and the
Bureau of Ocean Energy Management a
summer-fall 2018 visual and passive
acoustic survey along the U.S. West
Coast and off Baja Mexico (Henry et al.
in press). New passive detection
technologies focusing on beaked whales
were deployed during these surveys
(similar to Griffiths and Barlow, 2016).
The Navy continues SOCAL beaked
whale occurrence and impact studies
with additional effort anticipated
through 2020.
Analysis of the southernmost edge of
the California Current, west of TannerCortes Bank and the presence of
Cuvier’s beaked whales was addressed
in Appendix K (Geographic Mitigation
Assessment), Section K.7.2.4
(Southernmost Edge of California
Current, West of Tanner-Cortes Bank),
and Section K.7.2.6 (Cuvier’s Beaked
Whale Habitat Areas Mitigation
Assessment) of the 2018 HSTT FEIS/
OEIS, which NMFS used to support its
mitigation analysis described in this
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final rule. Also see Chapter 3, Section
3.7.2.3.24 (Cuvier’s Beaked Whale
(Ziphius cavirostris)) of the 2018 HSTT
FEIS/OEIS for additional information
regarding this species.
As noted in Appendix K (Geographic
Mitigation Assessment), the waters west
of Tanner and Cortes Banks are also
critical to the Navy’s training and
testing activities; therefore, it is not
practicable to preclude activities within
that water space in the SOCAL portion
of the HSTT Study Area. Reasonable
mitigation measures, as discussed in
Appendix K (Geographic Mitigation
Assessment), would limit the impact of
training and testing on marine
mammals, and especially beaked
whales, in this area. In addition, with
new deployments of HARP buoys from
2019–2021, the Navy has expanded
passive acoustic monitoring for beaked
whales to include new areas west of
Tanner Bank and areas off Baja Mexico.
Given that there is no evidence that
Navy training and testing activities are
having significant impacts to
populations of beaked whales anywhere
in the SOCAL portion of the HSTT
Study Area, the uncertainty of current
use by Cuvier’s beaked whales of the
area west of Tanner and Cortes Banks,
the fact that general occurrence of
beaked whales in Southern California
may not necessarily equate to factors
typically associated with biologically
important areas, and consideration of
the importance of Navy training and
testing activities in the areas around
Tanner and Cortes Banks discussed in
Appendix K (Geographic Mitigation
Assessment) of the 2018 HSTT FEIS/
OEIS, additional geographic mitigation
specifically for the area west of Tanner
and Cortes Banks is not warranted.
As noted in Appendix K (Geographic
Mitigation Assessment) and Chapter 5
(Mitigation), Section 5.3 (Procedural
Mitigation to be Implemented) of the
2018 HSTT FEIS/OEIS, the Navy will
continue to implement procedural
mitigation measures throughout the
HSTT Study Area.
Comment 57: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that the same long-term passive
acoustic study of the Southern
California Bight as discussed for
Cuvier’s beaked whales above in
Comment 56 also suggests that
southern-central waters represent
biologically important habitat for
Perrin’s beaked whale. The Commenter
recommended that the Northern
Catalina Basin and the waters southeast
of Santa Catalina Island (approximate
coordinates of 33.28 N, –118.25 W), and
the San Clemente Basin (approximate
coordinates of 32.52 N, –118.32 W),
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both based on location of HARP
deployments (referenced as sites ‘‘A’’
and ‘‘S’’), be considered as management
areas for Perrin’s beaked whales. The
Commenter recommended that the
boundaries of any restrictions be
established via expert consideration.
Response: All of the single bottommounted passive acoustic devices used
for the analysis by Baumann-Pickering
et al. (2014b) and used by the
Commenter to support their argument
are not continuous and have various
periodicities for which data have been
collected. As single point sources of
data, these passive acoustic devices may
not be indicative of Perrin’s beaked
whale presence at other locations within
Southern California without comparable
devices. Nor would older data prior to
2009 be indicative of current or future
occurrence especially in terms of
potential impact of climate change on
species distributions.
Navy-funded passive acoustic
monitoring within the SOCAL portion
of the HSTT Study Area has been
ongoing for the past 21 years, but not all
areas are monitored continuously, and
devices have been deployed and
removed from various locations. Santa
Catalina Basin was only monitored from
August 2005 to July 2009. Santa
Catalina Basin has not been monitored
under Navy funding since 2009 because
other areas in Southern California were
prioritized for passive acoustic device
placement by the researchers. For San
Clemente Island, the single monitoring
site ‘‘S’’ used in Baumann-Pickering et
al. (2014b) and cited as the source of the
comment’s claim for San Clemente
Basin was only deployed for a limited
time of approximately 1.5 years,
resulting in 409 days of data (September
2009–May 2011). For both sites
combined, only 41 hours of BW43 signal
types were detected over a cumulative
approximately five-and-a-half years of
monitoring. The 41 hours of BW43
detections therefore only represents a
small fraction of overall recording time
(less than 1 percent).
The beaked whale signal type
detected called BW43 has been
suggested as coming from Perrin’s
beaked whales (Baumann-Pickering et
al., 2014b), but not yet conclusively and
scientifically confirmed.
A different Navy-funded single site
south of San Clemente Island within the
San Clemente Basin has had a passive
acoustic device in place from July 2014
through current. Sˇirovic´ et al. (2016)
and Rice et al. (2017) contain the most
current results from San Clemente Basin
site ‘‘N.’’ While Sˇirovic´ et al. (2016) and
Rice et al. (2017) do report periodic
passive acoustic detections of
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Mesoplodon beaked whales thought to
be Perrin’s beaked whale in San
Clemente Basin, the overall detection
rate, periodicity, and occurrence has not
been high. Between May 2015 and June
2016, there were only seven weeks in
which potential Perrin’s beaked whale
echolocation clicks were detected, with
each week having less than 0.14 hours/
week of detections. Acoustic sampling
of bathymetrically featureless areas off
Southern California with drifting
hydrophones by NMFS detected many
beaked whales over abyssal plains and
not always associated with slope or
seamount features, which counters a
common misperception that beaked
whales are primarily found over slope
waters, in deep basins, or over
seamounts (Griffins and Barlow, 2016).
One of these devices was deployed
within the SOCAL portion of the HSTT
Study Area. In addition, analysis of
NMFS visual survey data from 2014, the
most recent year available, showed an
increase in Mesoplodon beaked whales
along the entire U.S. West Coast, which
the authors attributed to an influx of
tropical species of Mesoplodon during
the unusually warm water condition
that year (Barlow, 2016; Moore and
Barlow, 2017). Perrin’s beaked whale,
part of the Mesoplodon guild, could be
part of these sightings. In summary, San
Clemente Basin and Santa Catalina
Basin with similar low passive acoustic
detection rates are likely to be part of
Perrin beaked whale’s general
distribution along the U.S. West Coast
and in particular Southern California
and Baja Mexico. This distribution is
likely to be wide ranging for Perrin’s
beaked whales as a species and highly
correlated to annual oceanographic
conditions. Santa Catalina and San
Clemente basins do have infrequent
suspected Perrin’s beaked whale passive
acoustic detections from a limited
number of devices, but these areas may
not specifically represent unique high
occurrence locations warranting
geographic protection beyond existing
Navy protective measures. Current
funded Navy passive acoustic
monitoring for beaked whales continues
to report limited BW43 detections (Rice
et al. 2017, 2018, 2019, 2020).
The Navy has been training and
testing in and around the Northern
Catalina Basin and waters southeast of
Santa Catalina Island with the same
systems for over 40 years, and there is
no evidence of any adverse impacts
having occurred and no indications that
Navy training and testing has had any
adverse impacts on populations of
beaked whales in Southern California.
The main source of anthropogenic noise
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in the Catalina Basin and waters south
of San Clemente Island are associated
with commercial vessel traffic
concentrated in the northbound and
southbound lanes of the San Pedro
Channel that runs next to Santa Catalina
Island and leads to and from the ports
of Los Angeles/Long Beach and other
commercial traffic from San Diego and
ports to the north and south of Southern
California. These waters in and around
Northern Catalina Basin and waters
southeast of Santa Catalina Island are
critical to the Navy’s training and
testing activities, and so it is not
practicable to limit or reduce access or
preclude activities within that water
space in the SOCAL portion of the
HSTT Study Area.
NMFS and the Navy considered the
Santa Catalina Basin area and Perrin’s
beaked whales, as described in
Appendix K (Geographic Mitigation
Assessment), Section K.7.2.3 (Catalina
Basin) and K.7.2.7 (Northern Catalina
Basin and the San Clemente Basin) of
the 2018 HSTT FEIS/OEIS. Also see
Appendix K (Geographic Mitigation
Assessment), Section K.7.2.7.2
(Northern Catalina Basin and Waters
Southeast of Catalina Island Perrin’s
Beaked Whale Habitat Mitigation
Considerations) of the 2018 HSTT FEIS/
OEIS for additional information
regarding this species. Additional
limitations as discussed in Appendix K
(Geographic Mitigation Assessment)
would limit training and impact
readiness. Given that there is no
evidence of impacts to the population of
beaked whales in the area, and low
potential occurrence of Perrin’s beaked
whales in the Southern California
portion of the HSTT Study Area,
geographic mitigation would not
effectively balance a reduction of
biological impacts with an acceptable
level of impact on military readiness
activities and, 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. As noted in Appendix K
(Geographic Mitigation Assessment) and
Chapter 5, Section 5.3 (Procedural
Mitigation to be Implemented) of the
2018 HSTT FEIS/OEIS, the Navy will
continue to implement procedural
mitigation measures throughout the
HSTT Study Area.
Comment 58: In a comment on the
2018 HSTT proposed rule, Commenters
recommended additional mitigation
areas for important fin whale habitat off
Southern California. The Commenters
recommended that the waters between
the 200 m and 1,000 m isobaths be
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41823
assessed for time-area management so
that, at minimum, ship strike awareness
measures for fin whales can be
implemented during the months of
November through February, when the
whales aggregate in the area.
Response: As described and detailed
in the 2018 HSTT FEIS/OEIS, the Navy
implements a number of ship-strike risk
reduction measures for all vessels, in all
locations and seasons, and for all
marine mammal species. New research
by Sˇirovic´ et al. (2017) supports a
hypothesis that between the Gulf of
California and Southern California,
there could be up to four distinct subpopulations based on fin whale call
types, including a Southern California
resident population. There is also
evidence that there can be both subpopulation shifts and overlap within
Southern California (Sˇirovic´ et al.,
2017). Scales et al. (2017) also
postulated two Southern California subpopulations of fin whales based on
satellite tagging and habitat modeling.
Scales et al. (2017) stated that some fin
whales may not follow the typical
baleen whale migration paradigm, with
some individuals found in both warm,
shallow nearshore waters less than 500
m, and deeper cool waters over complex
seafloor topographies. Collectively, the
author’s spatial habitat models with
highest predicted occurrence for fin
whales cover the entire core training
and testing portion of the SOCAL
portion of the HSTT Study Area, not
just areas between 200 and 1,000 m.
Results from Navy-funded long-term
satellite tagging of fin whales in
Southern and Central California still
shows some individual fin whales
engage in wide-ranging movements
along the U.S. West Coast, as well as
large daily movements well within
subareas (Mate et al., 2017; Schorr et al.,
2020). In support of further refining the
science on Southern California fin
whales, Falcone and Schorr (2014)
examined fin whale movements through
photo ID and short-to-medium term
(days-to-several weeks) satellite tag
tracking under funding from the Navy.
The authors conducted small boat
surveys from June 2010 through January
2014, approximately three-and-a-half
years. Of interest in terms of the
comment and the 200–1,000 m isobaths
occurrence, more fin whale tag locations
were reported off the Palos Verdes
Peninsula and off of the Los Angeles/
Long Beach commercial shipping ports
in fall, both areas north of and outside
of the Navy’s SOCAL Range Complex.
Compared to the above areas, there were
not as many tag locations in the similar
isobaths region off San Diego associated
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with the Navy range area. Falcone and
Schorr (2014) did document an apparent
inshore-offshore distribution between
Winter-Spring and Summer-Fall. Given
the apparent resident nature of some fin
whales in Southern California as
discussed in Falcone and Schorr (2014),
Scales et al. (2017), and Sˇirovic´ et al.
(2017), it remains uncertain if the
inshore-offshore seasonal pattern as
well as sub-population occurrence will
persist into the future, or if fin whales
will change distribution based on
oceanographic impacts on available
prey (e.g. El Nino, climate change, etc.).
The efforts from Falcone and Schorr on
fin whales began in 2010, and Navy
monitoring funding to further refine fin
whale population structure and
occurrence within Southern California
is planned to continue for the duration
of this rule.
The data from the various single
bottom-mounted passive acoustic
devices used in the analysis to support
this comment are not continuous and
have various periodicities for which
data have been collected. Many of these
devices are purposely placed in 200–
1,000 m of water. Given these are point
sources of data, they may or may not be
indicative of fin whale calling or
presence at other locations within
Southern California without devices.
Passive acoustic analysis is only useful
for those individuals that are calling and
may not indicate total population
occurrence. Low-frequency fin whale
calls by their very nature have relatively
long underwater propagation ranges so
detections at a single device could
account for individuals 10–50 miles
away if not further, depending on local
propagation conditions. This would
mean calling whales are not in the 200–
1,000 m area. Sˇirovic´ et al. (2015)
acknowledge in discussing their data
biases, that their use of ‘‘call index’’
may best indicate a period of peak
calling. But fin whales produce multiple
call types depending on behavioral
state. Based on technology limitations,
some fin whale call types were not
included in Sˇirovic´ et al. (2015). The
following are factors supporting NMFS’
determination that ship speed reduction
is specifically not warranted in this
area.
1. The study cited by a Commenter
(Sˇirovic´ et al., 2015) and used as the
basis for ‘‘Figure 3’’ concerns trends
seen within the Southern California
Bight, not exclusively the SOCAL Range
Complex;
2. The research used as the basis for
Figure 3 was funded by the Navy to
develop baseline information for the
areas where Navy trains and tests and
was by no means designed to or
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otherwise intended as a representative
sample of all waters off California or the
entire habitat of the fin whale
population in the area;
3. It is not correct to assume detected
vocalizations (a ‘‘call index’’) reported
in Sˇirovic´ et al. (2015) for fin whales
equates with where fin whales are
aggregated in the Southern California
Bight. For example, the acoustic
monitoring data did not pick up or
otherwise correspond to the observed
seasonal distribution shift of fin whales
indicated by visual survey data covering
the same time periods (Campbell et al.,
2015; Douglas et al., 2014);
4. Sˇirovic´ et al. (2015) make no such
claim of aggregations during the winter
months but instead compare call index
rates and state that the purpose for the
paper was to demonstrate that passive
acoustics can be a powerful tool to
monitor population trends, not relative
abundances;
5. There is no science to support the
contention that fin whales are ‘‘at
particular risk of ship-strike on the
naval range.’’ Two fin whales were
struck by the Navy in 2009 in the
SOCAL portion of the HSTT Study Area
as Navy noted in Appendix K
(Geographic Mitigation Assessment), but
since that time there have been no fin
whales struck or any species of whales
struck despite a documented increase in
the fin whale population inhabiting the
area (Barlow, 2016; Moore and Barlow,
2011; Smultea and Jefferson, 2014).
Furthermore, one of those vessel strikes
occurred at the end of the recommended
mitigation timeframe (February) and the
other well outside the time period
(May), so the proposed mitigation
would only have been marginally
effective, if at all. Neither of these Navy
fin whale strike locations were close to
shore (both >50–60 Nmi from shore), or
associated with coastal shipping lanes.
Based on an analysis of Navy ship traffic
in the HSTT Study Area between 2011
and 2015, median speed of all Navy
vessels within Southern California is
typically already low, with median
speeds between 5 and 12 kn (CNA,
2016). This includes areas within and
outside of 200–1,000 m within Southern
California, with slowest speeds closer to
the coast; and
6. As presented in the 2018 HSTT
FEIS/OEIS, fin whales are present off all
the waters of Southern California yearround (Sˇirovic´ et al., 2015, 2017). Using
available quantitative density and
distribution mapping, the best available
science, and expert elicitation,
definitive areas of importance for fin
whales could not be determined by a
panel of scientists specifically
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attempting to do so (Calambokidis et al.,
2015).
Navy vessels already operate at slower
speeds given a particular transit or
activity need. This also includes a
provision to avoid large whales by 500
yd, so long as safety of navigation and
safety of operations is maintained.
Previously, the Navy commissioned a
vessel density and speed report for
HSTT (CNA, 2016). Based on an
analysis of Navy ship traffic in the
HSTT Study Area between 2011 and
2015, median speed of all Navy vessels
within Southern California is typically
already low, with median speeds
between 5 and 12 kn (CNA, 2016). The
slowest speeds occurred closer to the
coast and islands.
Therefore, NMFS has determined that
vessel speed restrictions within 200–
1,000 m are not warranted given the
wide range of fin whale movements
along the U.S. West Coast including
areas within and outside of 200–1,000 m
contours, sometimes large-scale daily
movements within regional areas as
documented from Navy-funded satellite
tagging, the current lack of ship strike
risk from Navy vessels in Southern
California (as well as throughout the
HSTT Study Area) (2010–2019), the
lower training and testing ship speeds
Navy uses within the HSTT Study Area,
and existing Navy mitigation measures
including provisions to avoid large
whales by 500 yds where safe to do so.
In addition, the Navy agreed to send
out seasonal awareness messages of fin,
blue, and gray whale occurrence to
improve awareness of all vessels
operating to the presence of these
species in SOCAL from November
through May (fin whales), November
through March (gray whales), and June
through October (blue whales). The
Navy will also review WhaleWatch, a
program coordinated by NMFS’ West
Coast Region as an additional
information source to inform the
drafting of the seasonal awareness
message to alert vessels in the area to
the possible presence of concentrations
of large whales, including fin whales in
SOCAL.
Hawaii Areas
Comment 59: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that the Navy consider
the following as it plans to conduct
activities in the HSTT Study Area. The
Commenter notes units of the NPS
system that occur near training and
testing areas around Hawaii and
identifies which may be affected by
noise. The Units are: Kaloko-Honokohau
National Historical Park (NHP),
Pu’uhonua o Honaunau NHP,
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Pu’ukolhola Heiau National Historic
Site, Kalaupapa NHP, Hawaii Volcanoes
NP, Haleakala NP, and the World War
II Valor in the Pacific National
Monument.
Response: National Parks and
National Monuments are addressed in
Chapter 6 of the 2018 HSTT FEIS/OEIS.
Kalaupapa NHP is discussed in
Comment 60 below. No planned
activities overlap with KalokoHonokohau NHP; therefore, no impacts
are expected within the KalokoHonokohau NHP. The Pu’uhonua o
Honaunau NHP, Haleakala NP, and
Pu’ukolhola Heiau National Historic
Site are not specifically addressed in
Chapter 6 of the 2018 HSTT FEIS/OEIS,
but none of these sites appear to contain
any marine waters. The Navy’s planned
activities do not occur on land except in
designated training areas on Navy
properties (i.e., for amphibious assaults,
etc.); therefore, there are no activities
that overlap with these sites and no
impacts are expected. For the Hawaii
Volcanoes NP, the Navy’s planned
activities addressed in the 2018 HSTT
FEIS/OEIS do not include aircraft or
unmanned aerial systems flights over or
near the Hawaii Volcanoes National
Park; therefore, no impacts are expected.
The World War II Valor in the Pacific
Monument is for the USS Arizona,
which is a Navy war memorial. No
activities occur within the boundary of
the site itself, and the monument was
not designated to protect marine
species. There are training and testing
activities that occur within Pearl Harbor
as a whole, and impacts to marine
mammals in the waters of Pearl Harbor
were included in the Navy’s proposed
activities and therefore analyzed by
NMFS in the final rule.
Comment 60: In a comment on the
2018 HSTT proposed rule, a Commenter
noted the presence of marine mammal
species in the Kalaupapa NHP (on the
north shore of Molokai), and is
concerned about potential take of
protected species that inhabit water out
to 1,000 fathoms, and recommended the
Navy consider alternate training areas to
avoid impacts to these species. Species
that occur year-round include the false
killer whale, sperm whale, pygmy
sperm whale, spinner dolphin, and
bottlenose dolphin. Humpback whales
are seasonal visitors from November to
April. The Hawaiian monk seal pups are
within the Kalaupapa NHP during the
spring and summer.
Response: Part of the Kalaupapa NHP
(northern portion) is protected by the
measures employed inside the 4-Islands
Region Mitigation Area such as yearround prohibition on explosives and no
use of MF1 surface ship hull mounted
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mid-frequency active sonar from
November 15 through April 15.
We note, however, that the majority of
the Kalaupapa NHP is not in the 4Islands Region Mitigation Area as it is
mainly land-based, but just outside it.
The Kalaupapa NHP was designated to
protect the two historic leper colonies
on the property and was not designated
with the purpose of protecting marine
species. The boundaries of the
Kalaupapa NHP extend a quarter mile
offshore. The Navy does propose
conducting activities associated with
the planned activities in the boundary
of the Kalaupapa NHP. There would be
no effect to Hawaiian monk seal
pupping on NHP land as the Navy does
not have any planned activities in the
boundary of the Kalaupapa NHP,
especially on land. The Navy’s planned
activities do not include any land-based
activities except for a few activities
which are conducted on designated
Navy property (i.e., amphibious assaults
on Silver Strand, etc.). Further, as the
sea space adjacent to the Kalaupapa
NHP is not an established training or
testing area, it is unlikely naval activity
would occur in this area.
Comment 61: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended expanding the Hawaii
Island Mitigation Area westward to
protect resident Cuvier’s beaked whales
and rough-toothed dolphins. The
boundaries of the Hawaii Island
Mitigation Area should be expanded
westward to remain consistent with the
boundaries of the BIAs defined in Baird
et al. (2015), which informed the
boundaries of Conservation Council
Settlement Areas 1–C and 1–D. This
expansion will cover habitat for Cuvier’s
beaked whales and toothed dolphins
that are resident around the Big Island.
Response: Please see the Mitigation
Measures, Brief Comparison of 2015
Settlement Mitigation and Final HSTT
Mitigation in the Rule section of the
2018 HSTT final rule, which discusses
NMFS analysis and decisions in regard
to required mitigation areas with
explicit consideration of areas that were
previously required by the settlement
agreement. Analyses of the marine
mammal species mentioned in the
comment and considered within the
Hawaii Island Mitigation Area are
discussed in Appendix K (Geographic
Mitigation Assessment), Section K.3
(Biologically Important Areas within the
Hawaii Range Complex Portion of the
HSTT Study Area) and Sections K.5.1
(Settlement Areas Within the Hawaii
Portion of the HSTT Study Area)
through K.5.4 (Proposed Mitigation
Areas that Overlap the Hawaii Portion
of the HSTT Settlement Agreement
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Areas) of the 2018 HSTT FEIS/OEIS.
NMFS concurs with the analysis
included in this document and has used
it to support our findings in this rule.
Additional information on the marine
mammals mentioned in the comment is
also provided in the species-specific
sub-sections in Chapter 3, Section 3.7.2
(Affected Environment) of the 2018
HSTT FEIS/OEIS. Based on these
analyses, the Navy will implement
additional mitigation within the Hawaii
Island Mitigation Area (year-round), as
described in the Mitigation Measures
section in the 2018 HSTT final rule and
this rule, to further avoid or reduce
impacts on marine mammals from
acoustic and explosive stressors from
the planned activities.
The mitigation requirement of
prohibiting the use of explosives yearround during training and testing across
the entire Hawaii Island Mitigation Area
satisfies the previous mitigation
requirement of a prohibition on the use
of in-water explosives for training and
testing activities of the Settlement
Agreement for Areas 1–A, 1–C, and 1–
D, and further extends that requirement
to the Alenuiha¯ha¯ Channel (Area 1–B).
The Hawaii Island Mitigation Area still
includes 100 percent of Settlement
Areas 1–C and 1–D and includes a large
majority of the BIAs for Cuvier’s beaked
whale (Hawaii Island BIA) and roughtoothed Dolphins (Hawaii Island BIA)
(the areas in question by this comment).
Particularly, it covers 93.30 percent of
the Cuvier’s beaked whale BIA
westward of Hawaii Island and 83.58
percent of rough-toothed dolphins
Hawaii Island BIA westward of Hawaii
Island.
Only the northern portion of the
Cuvier’s beaked whale BIA in
Alenuihaha Channel and a smaller
offshore portion of the BIA west of
Hawaii are not covered by mitigations
included in the Hawaii Island
Mitigation Area on the west and east of
Hawaii Island. The BIA is based on the
known range of the island-associated
population, and the authors suggest that
‘‘the range of individuals from this
population is likely to increase as
additional satellite-tag data become
available’’ (Baird et al., 2015). Cuvier’s
beaked whales are not expected to be
displaced from their habitat due to
training and testing activities further
offshore in these small areas of the
biologically important area, given that
the BIA covers 23,583 km2, is unbroken
and continuous surrounding the island,
and the BIA likely underrepresents their
range. The small portion of the BIA that
does not overlap the Hawaii Island
Mitigation Area is offshore, and
according to the most recent stock
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assessment approximately 95 percent of
all sighting locations were within 45 km
of shore. Additionally, consequences to
individuals or populations are not
unknown. No PTS is estimated or
authorized. A small number of TTS and
Level B behavioral harassment takes for
Cuvier’s beaked whales are estimated
across the entire Hawaii portion of the
HSTT Study Area due to acoustic
stressors. Most of the TTS and Level B
behavioral harassment takes for Cuvier’s
beaked whales are associated with
testing in the Hawaii Temporary
Operating Area, impacting the pelagic
population (see Figure 3.7–36 of the
2018 HSTT FEIS/OEIS). It is extremely
unlikely that any modeled takes would
be of individuals in this small portion
of the BIA that extends outside the
Hawaii Island Mitigation Area.
Long-term and relatively
comprehensive research has found no
evidence of any apparent effects while
documenting the continued existence of
multiple small and resident populations
of various species as well as long-term
residency by individual beaked whales
spanning the length of the current
studies that exceed a decade. Further,
the Navy has considered research
showing that in specific contexts (such
as associated with urban noise,
commercial vessel traffic, eco-tourism,
or whale watching, Chapter 3, Section
3.7.2.1.5.2 (Commercial Industries)) of
the 2018 HSTT FEIS/OEIS that chronic
repeated displacement and foraging
disruption of populations with
residency or high site fidelity can result
in population-level effects. As also
detailed in the 2018 HSTT FEIS/OEIS,
however, the Navy training and testing
activities do not equate with the types
of disturbance in this body of research,
nor do they rise to the level of chronic
disturbance where such effects have
been demonstrated because Navy
activities are typically sporadic and
dispersed. There is no evidence to
suggest there have been any populationlevel effects in the waters around Oahu,
Kauai, and Niihau or anywhere in the
HSTT Study Area. In the waters around
Oahu, Kauai, and Niihau, documented
long-term residency by individuals and
the existence of multiple small and
resident populations are precisely
where Navy training and testing have
been occurring for decades, strongly
suggesting a lack of significant impact to
those individuals and populations from
the continuation of Navy training and
testing.
Mark-recapture estimates derived
from photographs of rough-toothed
dolphins taken between 2003 and 2006
resulted in a small and resident
population estimate of 198 around the
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island of Hawaii (Baird et al., 2008), but
those surveys were conducted primarily
with 40 km of shore and may
underestimate the population. Data do
suggest high site fidelity and low
population size for the island-associated
population. There are no tagging data to
provide information about the range of
the island-associated population; the
BIA is based on sighting locations and
encompasses 7,175 km2. Generally, this
species is typically found close to shore
around oceanic islands. Only
approximately half of the BIA offshore
is not covered by the Hawaii Island
Mitigation Area, where the BIA overlaps
with special use airspace. Consequences
to individuals or populations are not
unknown. No PTS is estimated or
authorized. Some TTS and Level B
behavioral harassment takes due to
acoustic stressors are authorized for this
species across the entire HSTT Study
Area (see Figure 3.7–66 of the 2018
HSTT FEIS/OEIS). Significant impacts
on rough-toothed dolphin natural
behaviors or abandonment due to
training with sonar and other
transducers are unlikely to occur within
the small and resident population area.
A few minor to moderate TTS or Level
B behavioral harassment takes to an
individual over the course of a year are
unlikely to have any significant costs or
long-term consequences for that
individual, and nothing in the planned
activities is expected to cause a
‘‘catastrophic event.’’ The Navy
operating areas west of Hawaii Island
are used commonly for larger events for
a variety of reasons described further in
Section K.3 (Appendix K of the 2018
HSTT FEIS/OEIS, Biologically
Important Areas Within the Hawaiian
Range Complex Portion of the HSTT
Study Area) (e.g., the relatively large
group of seamounts in the open ocean
offers challenging bathymetry in the
open ocean far away from civilian vessel
traffic and air lanes where ships,
submarines, and aircraft are completely
free to maneuver) and sonar may be
used by a variety of platforms. Enlarging
the Hawaii Island Mitigation Area is not
anticipated to realistically reduce
adverse impacts. Expanding the Hawaii
Island Mitigation Area has a limited
likelihood of further reducing impacts
on marine mammal species or stocks
and their habitat, while these open
ocean operating areas are important for
training and testing and, in
consideration of these factors (and the
broader least practicable adverse impact
considerations discussed in the
introduction), NMFS has determined
that requiring this additional mitigation
is not appropriate.
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Comment 62: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended limiting MTEs to reduce
cumulative exposure in the Hawaii
Island Mitigation Area.
Response: Prohibiting MTEs outright
or spatially separating them within the
Hawaii Island Mitigation Area was
proposed as additional mitigation to
ensure that ‘‘marine mammal
populations with highly discrete site
fidelity . . . are not exposed to MTEs
within a single year.’’ The goal of
geographic mitigation is not to be an
absolute, outright barrier and stop
exposing animals to exercises per se; it
is to reduce adverse impacts to the
maximum extent practicable. Impacts
associated with MTEs, including
cumulative impacts, are addressed in
the 2018 HSTT proposed and final
rules, as well as in Chapters 3 (Affected
Environment and Environmental
Consequences) and Chapter 4
(Cumulative Impacts) of the 2018 HSTT
FEIS/OEIS. The Navy’s quantitative
analysis using the best available science
has determined that training and testing
activities will not have population-level
impacts on any species, and the
operational and time/area mitigation
measures required by the MMPA rule
further reduce impacts on marine
mammals and their habitat. As
determined in Chapter 3, Section 3.7.4
(Summary of Potential Impacts on
Marine Mammals) of the 2018 HSTT
FEIS/OEIS, it is not anticipated that the
planned activities will result in
significant impacts to marine mammals.
To date, the findings from research and
monitoring and the regulatory
conclusions from previous analyses by
NMFS are that the majority of impacts
from Navy training and testing activities
are not expected to have deleterious
impacts on the fitness of any
individuals or long-term consequences
to populations of marine mammals the
Commenter references.
MTEs cannot be further limited in
space or time within the Hawaii Island
Mitigation Area, given that those
activities are specifically located to
leverage particular features like the
Alenuihaha Channel and the
approaches to Kawaihae Harbor. This
recommendation is not, therefore,
appropriate in consideration of NMFS’
least practicable adverse impact
standard.
To limit impacts, the Navy will not
conduct more than 300 hrs of MF1
surface ship hull-mounted MFAS or 20
hrs of MF4 dipping sonar, or use
explosives that could potentially result
in takes of marine mammals during
training and testing in the Hawaii Island
Mitigation Area.
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Comment 63: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting or restricting
other sources of MFAS in the Hawaii
Island Mitigation Area including
prohibiting the use of helicopterdeployed MFAS in the Hawaii Island
Mitigation Area.
Response: The Navy is already
limiting other sources of MFAS.
Between the application and the
proposed rule, the Navy added new
mitigation that includes a limit to the
annual use of helicopter dipping sonar
in the Hawaii Island Mitigation Area.
Specifically, the Navy will not conduct
more than 20 hrs of MF4 dipping sonar
that could potentially result in takes of
marine mammals during training and
testing. Helicopters deploy MFAS from
a hover position in bouts generally
lasting under 20 minutes, moving
rapidly between sequential deployment
and their duration of use and source
level (217 dB) are generally well below
those of hull-mounted frequency sonar
(235 dB). All locations within the HSTT
Study Area have been used for Navy
training and testing for decades. There
has been no scientific evidence to
indicate the Navy’s activities are having
adverse effects on populations of marine
mammals, many of which continue to
increase in number or are maintaining
populations based on what regional
conditions can support. Navy research
and monitoring funding continues
within the HSTT Study Area under
current NMFS MMPA and ESA permits,
and is planned through the duration of
any future permits. Given the lack of
effects to marine mammal populations
in the HSTT Study Area from larger,
more powerful surface ship sonars, the
effects from intermittent, less frequent
use of lower powered MF dipping sonar
or other MFAS would also not
significantly affect small and resident
populations.
Comment 64: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended extending the 4-Islands
Region Mitigation Area westward to
encompass the Humpback Whale
Special Reporting Area in Kaiwi
Channel. Additionally, they argue that
the 4-Island Region Mitigation Area is
inadequate to protect endangered Main
Hawaiian Island insular false killer
whales as the Main Hawaiian Island
insular false killer whale is highly
range-restricted to certain high-use
areas, one of which includes the ESA
critical habitat and the BIA north of
Maui and Molokai (‘‘False killer whale
Hawaii Island to Niihau’’ BIA).
Response: In regard to extending the
4-Islands Region Mitigation Area
westward to encompass the Humpback
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Whale Special Reporting Area in Kaiwi
Channel, reducing or limiting Navy
training and testing in the Southeast
Oahu area is not likely to be effective in
reducing or avoiding impacts given that
the Navy does not routinely conduct
activities that involve sonar or other
transducers or explosives in this portion
of the Humpback Whale Reproduction
Area (included in the Humpback Whale
Special Reporting Area in Kaiwi
Channel). The portion of the special
reporting area that extends into Kaiwi
Channel over Penguin Bank (equivalent
to settlement area 2A) is generally not
a higher use area for Main Hawaiian
Island insular false killer whales and
does not overlap significantly with the
BIA. As presented in Chapter 3 of the
2018 HSTT FEIS/OEIS (Affected
Environment and Environmental
Consequences), which supports NMFS’
analysis for the rule, the Navy’s
quantitative analysis indicates that
significant impacts on false killer whale
natural behaviors or abandonment due
to training with sonar and other
transducers are unlikely to occur within
the entire small and resident population
area, let alone in the small sub-portion
of the biologically important area that
overlaps the proposed extension.
Additionally, most of the modeled takes
are for the Hawaii pelagic population of
false killer whale (see Figure 3.7–46 and
Table 3.7–31 in the 2018 HSTT FEIS/
OEIS). Also, as described in more detail
in Appendix K of the 2018 HSTT FEIS/
OEIS, due to training and testing needs,
the expansion of this area is considered
impracticable.
Comment 65: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended extending the seasonal
restrictions to year-round restrictions in
the 4-Islands Region Mitigation Area
and proposed extending the Mitigation
Area into the Kaiwi Channel Humpback
Whale Special Reporting Area.
Response: The proposed extension of
the 4-Islands Region Mitigation Area
into Kaiwi Channel was addressed
above in Comment 64. The additional
expansion requested in the comment is
not expected to reduce adverse impacts
to an extent that would outweigh the
negative impacts if unit commanders
were unable to conduct unit-level
training and testing, especially as they
pass over Penguin Bank while transiting
between Pearl Harbor and other parts of
the Study Area. Prohibiting midfrequency active sonar would preclude
the Submarine Command Course from
meeting its objectives and leveraging the
important and unique characteristics of
the 4-Islands Region, as described in
multiple sections of Appendix K of the
2018 HSTT FEIS/OEIS (e.g., Section
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41827
K.3.1.6 (4-Islands Region and Penguin
Bank Humpback Whale Reproduction
Area, and Settlement Area 2–A and 2–
B)), which NMFS concurs with and
used to support the mitigation analysis
for the rule. Penguin Bank is
particularly used for shallow water
submarine testing and anti-submarine
warfare training because of its large
expanse of shallow bathymetry. The
conditions in Penguin Bank offer ideal
bathymetric and oceanographic
conditions allowing for realistic training
and testing and serve as surrogate
environments for active theater
locations.
Additionally, this mitigation would
further increase reporting requirements.
As discussed in Chapter 5 (Mitigation)
Section 5.5.2.6 (Increasing Reporting
Requirements) of the 2018 HSTT FEIS/
OEIS, the Navy developed its reporting
requirements in conjunction with
NMFS, balancing the usefulness of the
information to be collected with the
practicability of collecting it. An
increase in reporting requirements as a
mitigation would draw the event
participants’ attention away from the
complex tactical tasks they are primarily
obligated to perform (such as driving a
warship), which would adversely
impact personnel safety, public health
and safety, and the effectiveness of the
military readiness activity. Expanding
the Mitigation Area and extending the
restrictions is not, therefore, appropriate
in consideration of NMFS’ least
practicable adverse impact standard.
Comment 66: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended implementing vessel
speed restrictions within the 4-Islands
Region Mitigation Area.
Response: This mitigation measure
was proposed to address impacts on
humpback whales due to both ship
noise and ship strikes. As described and
detailed in the Mitigation Measures
section of the 2018 HSTT final rule, this
rule, and the 2018 HSTT FEIS/OEIS, the
Navy already implements a number of
ship-strike risk reduction measures for
all vessels, in all locations and seasons,
and for all marine mammal species. The
Navy cannot implement mitigation that
restricts vessel speed during training or
testing in the HSTT Study Area because
it is not practicable. Vessels must be
able to maneuver freely as required by
their tactics in order for training events
to be effective. Imposition of vessel
speed restrictions would interfere with
the Navy’s ability to complete tests that
must occur in specific bathymetric and
oceanic conditions and at specific
speeds. Navy vessel operators must test
and train with vessels in such a manner
that ensures their ability to operate
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vessels as they would in military
missions and combat operations
(including being able to react to
changing tactical situations and evaluate
system capabilities). Furthermore,
testing of new platforms requires testing
at the full range of propulsion
capabilities and is required to ensure
the delivered platform meets
requirements. Based on an analysis of
Navy ship traffic in the HSTT Study
Area between 2011 and 2015, median
speed of all Navy vessels within Hawaii
is typically already low, with median
speeds between 8–16 kn (CNA, 2016).
Speed restrictions in the Cautionary
Area (renamed the 4-Islands Region
Mitigation Area) are unwarranted given
the movement of all social groups
throughout the islands outside the
Mitigation Area, the current lack of ship
strike risk from Navy vessels in Hawaii
(2010–2017), the already safe training
and testing ship speeds the Navy uses
within the HSTT Study Area, and
existing Navy mitigation measures,
including provisions to avoid large
whales by 500 yards where safe to do so.
Implementing speed restrictions in the
Mitigation Area is not, therefore,
appropriate in consideration of NMFS’
least practicable adverse impact
standard.
Information on the response of baleen
whales to vessel noise is presented in
Section 3.7.3.1.1.5 (Behavioral
Reactions) and Section 3.7.3.1.5
(Impacts from Vessel Noise) of the 2018
HSTT FEIS/OEIS, which supports
NMFS analyses. Impacts, if they did
occur, would most likely be short-term
masking and minor behavioral
responses. Therefore, significant
impacts on humpback whale
reproductive behaviors from vessel
noise associated with training activities
are not expected. Navy vessels are
intentionally designed to be quieter than
civilian vessels, and ship speed
reductions are not expected to reduce
adverse impacts on humpback whales
due to vessel noise.
Comment 67: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting the use of inwater explosives in the 4-Islands Region
Mitigation Area.
Response: The Navy has agreed to
implement a year-round restriction on
the use of in-water explosives that could
potentially result in takes of marine
mammals during training and testing.
Should national security present a
requirement to use explosives that could
potentially result in the take of marine
mammals during training or testing,
naval units will obtain permission from
the appropriate designated Command
authority prior to commencement of the
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activity. The Navy will provide NMFS
with advance notification and include
the information (e.g., sonar hours or
explosives usage) in its annual activity
reports submitted to NMFS.
Comment 68: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting other sources
of MFAS in the 4-Islands Region
Mitigation Area.
Response: NMFS fully assessed the
mitigation for the 4-Islands Region
Mitigation Area (see the Mitigation
Measures section in the 2018 HSTT
final rule). As the Navy has described,
this area provides a unique and
irreplaceable shallow water training
capability for units to practice
operations in littoral areas that are both
shallow and navigationally constrained
(2018 HSTT FEIS/OEIS Appendix K
(Geographic Mitigation Assessment),
Section K.3.3.1.6). The 4-Islands Region
provides an environment for antisubmarine warfare search, tracking and
avoidance of opposing anti-submarine
warfare forces. The bathymetry provides
unique attributes and unmatched
opportunity to train in searching for
submarines in shallow water. Littoral
training allows units to continue to
deploy improved sensors or tactics in
littoral waters. In the Hawaii portion of
the HSTT Study Area specifically, antisubmarine warfare training in shallow
water is vitally important to the Navy
since diesel submarines typically hide
in that extremely noisy and complex
marine environment (Arabian Gulf,
Strait of Malacca, Sea of Japan, and the
Yellow Sea all contain water less than
200 m deep). There is no other area in
this portion of the HSTT Study Area
with the bathymetry and sound
propagation analogous to seas where the
Navy conducts real operations that this
training could relocate to. The Navy
cannot conduct realistic shallow water
training exercises without training in
and around the 4-Islands Region
Mitigation Area. In addition, this area
includes unique shallow water training
opportunities for unit-level training,
including opportunity to practice
operations in littoral areas that are both
shallow, and navigationally constrained,
and in close proximity to deeper open
ocean environments. While MFAS is
used infrequently in this area, a
complete prohibition of all active sonars
would impact Navy training readiness
in an area identified as important for the
Navy based on its unique bathymetry.
However, the Navy recognizes the
biological importance of this area to
humpback whales during the
reproductive season and in the 4-Islands
Region Mitigation Area the Navy will
not use MF1 surface hull-mounted
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MFAS (the source that results in, by far,
the highest numbers of take) from
November 15 through April 15 or use
explosives in this area at any time of the
year. While the Navy has been training
and testing in the area with the same
basic systems for over 40 years, there is
no evidence of any adverse impacts
having occurred, and there are multiple
lines of evidence demonstrating the
small odontocete population high site
fidelity to the area.
Comment 69: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting the use of
helicopter-deployed mid-frequency
active sonar in the 4-Islands Region
Mitigation Area.
Response: The Commenter’s request
to prohibit ‘‘air-deployed’’ MFAS is
based on one paper (Falcone et al.,
2017), which is a Navy-funded project
designed to study the behavioral
responses of a single species, Cuvier’s
beaked whales, to MFAS. The Navy
relied upon the best science that was
available to develop behavioral response
functions for beaked whales and other
marine mammals in consultation with
NMFS for the 2018 HSTT FEIS/OEIS.
NMFS and the Navy have reviewed the
article and concur that neither this
article nor any other new information
that has been published or otherwise
conveyed since the 2018 HSTT
proposed rule was published would
fundamentally change the assessment of
impacts or conclusions in the 2018
HSTT FEIS/OEIS or in this rulemaking.
Nonetheless, the new information and
data presented in the new article were
thoroughly reviewed by the Navy and
will be quantitatively incorporated into
future behavioral response functions, as
appropriate, when and if other new data
that would meaningfully change the
functions would necessitate their
revision. The new information and data
presented in the article was thoroughly
reviewed when it became available and
further considered in discussions with
some of the paper’s authors following its
first presentation in October 2017 at a
recent scientific conference. Many of the
variables requiring further analysis for
beaked whales and dipping sonar
impact assessment are still being
researched under continued Navy
funding through 2023.
There are no beaked whale
biologically important areas in the 4Islands Region Mitigation Area, and the
Mitigation Area is generally shallower
than beaked whales’ preferred habitat.
Behavioral responses of beaked whales
from dipping and other sonars cannot be
universally applied to other marine
mammal species. Research indicates
that there are distinct individual
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variations as well as strong behavioral
state considerations that influence any
response or lack of response (Goldbogen
et al., 2013; Harris et al., 2017).
Therefore, it is expected that other
species would have highly variable
individual responses ranging from some
response to no response to any
anthropogenic sound. This variability is
accounted for in the Navy’s current
behavioral response curves described in
the 2018 HSTT FEIS/OEIS and
supporting technical reports.
Furthermore, the potential effects of
dipping sonar have been rigorously
accounted for in the Navy’s analysis.
Parameters such as power level and
propagation range for typical dipping
sonar use are factored into HSTT
acoustic impact analysis along with
guild specific criteria and other
modeling variables, as detailed in the
2018 HSTT FEIS/OEIS and associated
technical reports for criteria and
acoustic modeling. Further, due to
lower power settings for dipping sonar,
potential impact ranges of dipping sonar
are significantly lower than surface ship
sonars. For example, the HSTT average
modeled range to TTS of dipping sonar
for a 1-second ping on low-frequency
cetacean (i.e., blue whale) is 77 m, and
for mid-frequency cetaceans including
beaked whales is 22 m (2018 HSTT
FEIS/OEIS Table 3.7–7). This range is
easily monitored for marine mammals
by a hovering helicopter and is
accounted for in the Navy’s proposed
mitigation ranges for dipping sonars
(200 yds or 183 m). Limited ping time
(i.e., less dipping sonar use as compared
to typical surface ship sonar use) and
lower power settings therefore would
limit the impact from dipping sonar to
any marine mammal species.
This is an area of extremely low use
for air-deployed MFAS. Prohibiting airdeployed MFAS in the Mitigation Area
would not be any more protective to
marine mammal populations generally,
or the Main Hawaiian Islands insular
false killer whale in particular, than
currently implemented procedural
mitigation measures for air-deployed
MFAS and is not, therefore, appropriate
in consideration of NMFS’ least
practicable adverse impact standard.
Comment 70: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended prohibiting use of LFAS
in the 4-Islands Region Mitigation Area.
Response: The Commenter suggested
that ‘‘Baleen whales are vulnerable to
the impacts of LFAS, particularly in
calving areas where low-amplitude
communication calls between mothers
and calves can be easily masked.’’ As
described in Chapter 3, Section 3.7.2.3.1
(Humpback Whale (Megaptera
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novaeangliae), Hawaii DPS) of the 2018
HSTT FEIS/OEIS, the best available
science has demonstrated humpback
whale population increases and an
estimated abundance greater than some
pre-whaling estimates. This data does
not indicate any population-level
impacts from decades of ongoing Navy
training and testing in the Hawaiian
Islands. The LFAS sources used in the
HSTT Study Area are typically low
powered (less than 200 dB source level).
Restrictions on the use of LFAS would
have a significant impact on the testing
of current systems and the development
of new systems. This would deny
research, testing, and development
program managers the flexibility to
rapidly field or develop necessary
systems requiring testing in the area and
the ability to conduct these activities in
the unique bathymetric environment of
the 4-Islands Region.
Comment 71: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended additional mitigation
areas including critical habitat for the
Main Hawaiian Islands insular false
killer whale. NMFS issued the Final
Rule designating critical habitat under
the ESA on July 24, 2018. The
Commenter stated that in light of the
2018 listing under the ESA, NMFS must
protect this species from the noise and
other disturbance resulting from naval
activities, including by mitigating
impacts within its critical habitat. The
Commenter recommended that, at
minimum, the Navy establish protective
Mitigation Areas in all the BIAs
identified for this species by NOAA and
that NMFS should revisit and revise its
Mitigation Areas and mitigation
requirements based on the final critical
habitat designation.
Response: Critical habitat includes
waters from the 45-m depth contour to
the 3,200-m depth contour around the
main Hawaiian Islands from Niihau east
to Hawaii (82 FR 51186). With regard to
the analysis of the identified
Biologically Important Areas for the
Main Hawaiian Islands insular false
killer whales, see Section K.3.3 in the
2018 HSTT FEIS/OEIS (False Killer
Whale Small and Resident Population
Area: Main Hawaiian Island Insular
stock), which NMFS used to support our
analysis for the MMPA rule. With regard
to the identified threats to the species,
see Section 3.7.2.2.7.5 in the 2018 HSTT
FEIS/OEIS (Species-Specific Threats)
and specifically the documented
incidental take by commercial fisheries
(Bradford and Forney, 2016; Oleson et
al., 2010; Reeves et al., 2009; West,
2016).
The Navy is implementing the Hawaii
Island Mitigation Area which
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encompasses all of the BIA for Main
Hawaiian Islands insular false killer
whales around that island, and the 4Islands Region Mitigation Area (which
captures approximately 40 percent of
the BIAs in the 4-Islands area). As
discussed in the Mitigation Areas in
Hawaii section of the 2018 HSTT final
rule, these mitigation areas are expected
to significantly reduce impacts to this
stock and its habitat. NMFS has
determined that the Navy’s current
training and testing activities are not
expected to have fitness consequences
for individual Main Hawaiian Islands
insular false killer whales and are not
likely to reduce the viability of the
populations those individual whales
represent. Further limitation of
activities in the area identified by the
commenter would not be practicable
and is not included as a measure.
Comment 72: In a comment on the
2018 HSTT proposed rule, Commenters
recommended additional mitigation
areas for important habitat areas off
Oahu, Kauai, and Niihau, providing
mitigation measures for select activities
during even a limited season within
some important habitat areas. The
waters off Oahu, Kauai, and Niihau
include a number of important habitat
areas for a variety of species, including
false killer whale critical habitat (see
above), five NOAA-identified BIAs off
Oahu (false killer whale, humpback
whale, pantropical spotted dolphin,
bottlenose dolphin, and spinner
dolphin) and three BIAs off Kauai and
Niihau (humpback whale, spinner
dolphin, and bottlenose dolphin) (Baird
et al., 2012).
Response: The 2018 HSTT FEIS/OEIS
considered the science, the Navy
requirements, and the mitigation value
of identified habitat areas off Oahu,
Kauai, and Niihau as presented in
Appendix K (Geographic Mitigation
Assessment) Section K.3 (Biologically
Important Areas within the Hawaii
Range Complex Portion of the HSTT
Study Area), which NMFS used to
support our analysis for the MMPA rule.
This includes the five identified BIAs
off Oahu (false killer whale, humpback
whale, pantropical spotted dolphin,
bottlenose dolphin, and spinner
dolphin) and three BIAs off Kauai and
Niihau (humpback whale, spinner
dolphin, and bottlenose dolphin) as
well as a discussion in Appendix K
(Geographic Mitigation Assessment),
Section K.1.1.5 (Mitigation Areas
Currently Implemented) regarding the 4Islands Region Mitigation Area. See aslo
the discussion in Appendix K
(Geographic Mitigation Assessment),
Section K.2.1.2 (Biological Effectiveness
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Assessment) of the 2018 HSTT FEIS/
OEIS.
The Mitigation Areas in Hawaii
section of the 2018 HSTT final rule
describes in detail the significant
reduction of impacts afforded by the
required 4-Islands Region Mitigation
Area and Hawaii Island Mitigation Area
to the species and stocks cited by the
Commenters. Together, these two areas
significantly reduce impacts in this
important calving and breeding area for
Humpback whales—please see the
response to Comment 74 for additional
details regarding why additional
mitigation areas for humpback whales
off Oahu, Niihua, or Kauai are not
included. Further, the Hawaii Island
Mitigation Area overlaps multiple small
resident populations (BIAs) of
odontocetes that span multiple islands,
and this mitigation area overlaps all of
the stock’s range around the island of
Hawaii for false killer whales (Main
Hawaiian Island insular stock) and
spinner dolphins (Hawaiian Islands
stock), and approximately 90 percent of
the range around the island of Hawaii
for pantropical spotted dolphins
(Hawaii stock). Additionally, critical
habitat has been designated, pursuant to
the ESA, for false killer whales (Main
Hawaiian Island insular stock) in waters
between 45 and 3,200 m depth around
all of the Main Hawaiian Islands, and
this mitigation area captures more than
95 percent of this area around the island
of Hawaii. The 4-Islands Region
Mitigation Area also overlaps multiple
small resident populations of marine
mammals (BIAs) that span multiple
islands, including about 80 percent of
the pantropical spotted dolphin (Hawaii
stock) area adjacent to these four islands
(one of three discrete areas of the BIA),
about 40 percent of the portion of the
false killer whale’s (Main Hawaiian
Island insular stock) range that spans an
area north of Molokai and Maui (one of
the two significantly larger areas that
comprise the false killer whale BIA),
and a good portion of the BIA for
spinner dolphins (Hawaiian Islands
stock), which spans the Main Hawaiian
Islands in one large continuous area. As
noted above, the ESA-designated critical
habitat for false killer whales extends
fairly far offshore (to 3,200 m depth)
around all the Main Hawaiian Islands.
As described in the Hawaii Island
Mitigation Area section noted above, by
limiting exposure to the most impactful
sonar source and explosives for these
stocks in this 4-Islands Region
Mitigation Area, in addition to the
Hawaii Island Mitigation Area, both the
magnitude and severity of both
behavioral impacts and potential
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hearing impairment are greatly reduced.
See the responses to comments 71 and
64 for additional discussion of false
killer whale mitigation.
The Commenters cite concerns for
population-level effects. As detailed in
the 2018 HSTT FEIS/OEIS and
indicated in this final rule, the planned
Navy training and testing activities are
not likely to result in impacts on
reproduction or survival. There is no
evidence to suggest there have been any
population-level effects in the waters
around Oahu, Kauai, and Niihau or in
the HSTT Study Area resulting from the
training and testing activities that have
been ongoing for decades, which the
Commenters recommend the need to
stop, or at a minimum, be mitigated. In
the waters around Oahu, Kauai, and
Niihau, documented long-term
residency by individuals and the
existence of multiple small and resident
populations precisely where Navy
training and testing have been occurring
for decades strongly suggests a lack of
significant impact to those individuals
and populations from the continuation
of Navy training and testing. Appendix
K of the 2018 HSTT FEIS/OEIS further
describes the importance of these areas
for Navy training and testing and why
implementation of additional mitigation
areas would be impracticable.
Last, as discussed previously, the
Navy adopted all mitigation measures
that are practicable without jeopardizing
its mission and Title 10 responsibilities.
In other words, a comprehensive
assessment by Navy leadership of the
final, entire list of mitigation measures
concluded that the inclusion of any
further mitigation beyond those
measures identified here in the final
rule would be impracticable. NMFS
independently reviewed the Navy’s
practicability determinations for
specific mitigation areas and concurs
with the Navy’s analysis. Given the
significant protection already afforded
by the required measures, and the
impracticability of further geographic
restrictions, NMFS has determined that
these measures are not warranted.
Comment 73: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended an additional mitigation
area for Cross Seamount, as Cross
Seamount represents important foraging
habitat for a potentially rare or
evolutionary distinct species of beaked
whale. The Commenter strongly
recommended that the 2018 HSTT EIS/
OEIS assess the designation of a yearround management area to protect the
seamount. Such a designation would
have secondary benefits for a variety of
other odontocete species foraging at
Cross Seamount seasonally between
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November and May. NMFS should also
consider habitat-based management
measures for other nearby seamounts.
Response: NMFS and the Navy
considered Cross Seamount and ‘‘other
nearby seamounts’’ for additional
geographic mitigation as described in
Appendix K (Geographic Mitigation
Assessment), Section K.7.1 (Hawaii
Public Comment Mitigation Area
Assessment), including sub-sections
K.7.1.1 (General Biological Assessment
of Seamounts in the Hawaii Portion of
the Study Area) and K.7.1.2 (Cross
Seamount) of the 2018 HSTT FEIS/
OEIS, which was used to support NMFS
mitigation evaluation for this rule.
As discussed in Appendix K
(Geographic Mitigation Assessment),
Section 4.7.1.3 (Mitigation Assessment)
of the 2018 HSTT FEIS/OEIS,
implementing new geographic
mitigation measures in addition to
ongoing procedural mitigation within
the vicinity of Cross Seamount would
not be effective at reducing adverse
impacts on beaked whales or other
marine mammal populations. The Navy
has been training and testing in the
broad ocean area around Cross
Seamount with the same basic systems
for over 40 years, and there is no
evidence of any adverse impacts to
marine species. Additionally, the
suggested mitigation would not be
practicable for the Navy to implement.
The broad ocean area around Cross
Seamount and the seamounts to the
north are unique in that there are no
similar broad ocean areas in the vicinity
of the Hawaiian Islands that are not
otherwise encumbered by commercial
vessel traffic and commercial air traffic
routes. In addition, beaked whales may
be more widely distributed than
currently believed. For example, Martin
et al. (2019) detected Cross Seamount
beaked whale vocalizations at PMRF.
Ongoing passive acoustic efforts from
NMFS and Navy within the Pacific have
documented beaked whale detections at
many locations beyond slopes and
seamounts to include areas over abyssal
plains (Klinck et al. 2015, Griffiths and
Barlow 2016, Rice et al., 2018).
Comment 74: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that NMFS must ensure that the
activities are having the least practicable
adverse impact, so it must do a
comprehensive analysis of whether the
proposed mitigation areas sufficiently
protect marine mammals. They asserted
that NMFS must require the Navy to
implement additional, practicable
measures to mitigate further the adverse
impacts of its activities. To ensure least
practicable adverse impacts, NMFS
must consider additional mitigation
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time/area restrictions, including but not
limited to: (1) Expanded areas in
Southern California to include all of the
biologically important areas for whales;
(2) add a Cuvier’s beaked whale
mitigation area in Southern California to
protect that small, declining population
that has high site fidelity; (3) add
mitigation areas for the biologically
important areas off of Oahu and Kauai;
(4) the entire Humpback National
Marine Sanctuary should be afforded
protections from Navy activities because
it is an important habitat for breeding,
calving and nursing; and (5) limits on
sonar and explosives should be adopted
in the designated critical habitat for the
Hawaiian monk seal and false killer
whale.
Response: In regard to expanded areas
in Southern California to include all of
the biologically important areas for
whales, the Navy has agreed to
expanded areas in SOCAL, a portion of
the San Nicolas Island BIA and the
Santa Monica/Long Beach BIA are now
included as part of the San Diego Arc
Mitigation Area but also named the San
Nicolas Island Mitigation Area and the
Santa Monica/Long Beach Mitigation
Area. The Santa Monica Bay/Long
Beach and San Nicolas Island BIA only
partially overlaps a small portion of the
northern part of the SOCAL portion of
the HSTT Study Area. The Santa
Monica Bay/Long Beach BIA overlap in
SOCAL is 13.9 percent. The San Nicolas
Island BIA overlap in SOCAL is 23.5
percent.
The Navy will limit surface ship sonar
and not exceed 200 hours of MFAS
sensor MF1 June 1 through October 31
during unit-level training and MTEs in
the Santa Monica Bay/Long Beach BIA
and San Nicolas Island Mitigation Areas
(as well as San Diego Arc Mitigation
Area). The Navy has also agreed to limit
explosives. Specifically, within the San
Nicolas Island Mitigation Area, the
Navy will not use explosives that could
potentially result in the take of marine
mammals during mine warfare, largecaliber gunnery, torpedo, bombing, and
missile (including 2.75 in rockets)
activities during training. Within the
Santa Monica/Long Beach Mitigation
Area, the Navy will not use explosives
that could potentially result in the take
of marine mammals during mine
warfare, large-caliber gunnery, torpedo,
bombing, and missile (including 2.75-in
rockets) activities during training and
testing.
For the Tanner–Cortes Bank BIA,
NMFS and the Navy have discussed this
extensively, and the Navy is unable to
incorporate this area into geographic
mitigation because it is impracticable.
Specifically, it would not be practical
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for the Navy to implement and would
prevent the Navy from meeting training
and testing missions. As discussed in
detail in Appendix K (Geographic
Mitigation Assessment) of the 2018
HSTT FEIS/OEIS, during the Navy’s
practicability and biological review of
the Tanner Bank BIA, it was concluded
that implementation of a mitigation area
was not practical for this species. The
area in and around Tanner Banks is a
core high priority training and testing
venue for SOCAL combining unique
bathymetry and existing infrastructure.
This includes an existing bottom
training minefield adjacent to Tanner
Banks, future Shallow Water Training
Range (SWTR West) expansion as well
as proximity to critical tactical
maneuver areas to the south and the
Navy’s underwater instrumented range
to the northeast. Furthermore, the
general area is in or adjacent to critical
Navy training that cannot occur at other
locations due to available, existing
infrastructure, operationally relevant
bathymetry, sea space, proximity to San
Clemente Island and San Diego, etc. Of
all the blue whale BIAs designated, the
Tanner Banks BIA had the fewest blue
whale sighting records supporting its
designation. New science since
designation funded by the Navy further
highlights how infrequently Tanner
Bank is used by blue whales as
compared to the rest of their movements
in SOCAL. Out of 73 blue whales tagged
with satellite transmitters, only a few
transits through Tanner Banks were
documented between 2014 and 2017.
The longest cumulative time any
individual whale stayed within the
boundaries of the Tanner Banks BIA
was less than one-and-a-half days.
Typical average blue whale daily
movement along the U.S. West Coast is
often up to 13–27 nautical miles a day
(Oregon State University, unpublished
data). Most blue whale area restricted
foraging occurred around the northern
Channel Islands, north of and outside of
the HSTT SOCAL Study Area.
The feeding areas as recommended by
the Commenter north of Los Angeles for
humpbacks (Santa Barbara Channel—
San Miguel BIA and Morro Bay to Pt
Sal) and blue whales (Santa Barbara
Channel to San Miguel BIA, Pt
Conception/Arguello to Pt Sal) are
outside of the HSTT Study Area;
therefore, they are not applicable for
inclusion.
In regard to adding a Cuvier’s beaked
whale mitigation area in Southern
California to protect that small,
declining population that has high site
fidelity, NMFS is assuming the
Commenter is referring to the area west
of San Clemente Island as the comment
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letter did not specify an exact location.
The beaked whale species detected most
frequently in Southern California is
Cuvier’s beaked whale. Cuvier’s beaked
whales are widely distributed within
Southern California and across the
Pacific with almost all suitable deep
water habitat >800 m conceivably
containing Cuvier’s beaked whales. In
new unpublished Navy funded data,
beaked whales have even been detected
over deep water, open abyssal plains
(>14,000 ft). The Commenter’s declining
beaked whale statement does not fully
represent the current state of the
science. Moore and Barlow (2013) noted
a decline in the overall beaked whale
population in a broad area of the Pacific
Ocean along the U.S. West Coast. New
data has been published raising
uncertainties over whether a decline in
the beaked whale population occurred
off the U.S. West Coast between 1996
and 2014 (Barlow, 2016). Moore and
Barlow (2017) have since incorporated
information from the entire 1991 to
2014 time series, which suggests an
increasing abundance trend and a
reversal of the declining trend along the
U.S. West Coast that had been noted in
their previous (2013) analysis.
Furthermore, there is no evidence of any
declining beaked whale populations in
Southern California. Schorr et al. (2020)
and DiMarzio et al. (2020) continue to
document repeated sightings of the
same beaked whales and steady if not
increasing population in SOAR. Only
limited population vital rates exist for
beaked whales, covering numbers of
animals, populations vs. subpopulations
determination, and residency time for
individual animals. While Cuvier’s
beaked whales have been detected north
and west of Tanner and Cortes Banks, as
noted above this species is also detected
in most all Southern California locations
800 m in depth. The Navy’s Marine
Mammal Monitoring on Navy Ranges
(M3R) program has documented
continual Cuvier’s beaked whale
presence on SOAR over ten years from
2010–2019 with slight abundance
increases through 2019 (DiMarzio et al.,
2018, 2019, 2020).
Navy-funded research on Cuvier’s
beaked whales within the SOCAL Range
Complex began in 2006. In 2008,
researchers began deploying satellite
tags as a part of this research. To date,
27 Low-Impact Minimally-Percutaneous
External-electronics Transmitting
(LIMPET) tags have been deployed
within the complex. Twenty-five of
those whales were tagged within the
San Nicolas Basin and two were tagged
in the Catalina Basin. Average
transmission duration was 36.6 days (sd
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= 29.8), with the longest transmitting for
121.3 days. Movement data suggest that
Cuvier’s beaked whales have a high
degree of site-fidelity to the Southern
California Range Complex, and the San
Nicolas basin in particular. Overall,
there were 3,207 filtered location
estimates from the 27 tagged whales, 91
percent of which were within the SoCal
Range Complex. 54 percent of all
location estimates were within the San
Nicolas Basin, with twelve tagged
whales spending more than 80 percent
of their transmission duration within
the basin. The two whales tagged in the
Catalina Basin never entered the San
Nicolas Basin. Only three whales tagged
in the San Nicolas Basin crossed into
the Catalina Basin (1.3 percent of all
locations); two of those whales had just
one Catalina Basin location each,
though the remaining whale had 28
percent of its locations there. Five
whales tagged in the San Nicolas Basin
moved into the Santa Cruz Basin for
anywhere from 1–62 percent of their
time (6 percent of all locations). In
contrast, 20 of 25 whales tagged in the
San Nicolas Basin moved south of the
basin at some point. Of these 20 whales,
most remained within either Tanner
Canyon or the San Clemente Basin
immediately to the south, but one
traveled north to near San Miguel Island
and four traveled south towards
Guadalupe Island. Three of these whales
have not been documented in the San
Nicolas basin since, though to date at
least six whales tagged in the San
Nicolas Basin have been re-sighted there
a year or more after the deployment.
Additionally, one of the whales that was
south of San Nicolas when the tag
stopped transmitting has since been
sighted three times since.
Given the uncertainty regarding
residence of Cuvier’s beaked whales in
the areas north and west of SOAR, the
fact that general occurrence of beaked
whales in Southern California may not
necessarily relate to factors typically
associated with biologically important
areas (i.e., one area not being more
important than another), the likely
increasing abundance trend in Cuvier’s
beaked whales in the area, and
consideration of the importance of Navy
training and testing in the areas around
SOAR and Tanner and Cortes Banks
(i.e., the impracticability of additional
area mitigation in this area; see
Appendix K (Geographic Mitigation
Assessment)), additional geographic
mitigation to create a ‘‘refuge’’ in the
recommended area is not scientifically
supported or warranted.
In regard to the comment proposing
that the entire Humpback Whale
National Marine Sanctuary should be
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afforded protections from Navy
activities because it is an important
habitat for breeding, calving and
nursing, the Humpback National Marine
Sanctuary largely overlaps both the
Hawaii Island Mitigation Area as well as
the 4-Islands Region Mitigation Area. In
the Hawaii Island Mitigation Area (yearround), the Navy will not conduct more
than 300 hours of MF1 surface ship
hull-mounted mid-frequency active
sonar or 20 hours of MF4 dipping sonar,
or use explosives that could potentially
result in takes of marine mammals
during training and testing. In the 4Islands Region Mitigation Area
(November 15–April 15 for active sonar;
year-round for explosives), the Navy
will not use MF1 surface ship hullmounted mid-frequency active sonar or
explosives that could potentially result
in takes of marine mammals during
training and testing. This seasonal
limitation is specifically during
important breeding, calving, and
nursing times/habitat for humpback
whales and was expanded for
humpback whales as the previous
season for this mitigation area was
December 15–April 15.
There are areas of the Humpback
Whale National Marine Sanctuary
around the islands of Niihau, Kauai,
Oahu, and west of Molokai (Penguin
Bank) that are outside of the Navy’s
mitigation areas. However, none of the
Navy’s training and testing areas for
explosives around Kauai and Niihau are
within the Hawaiian Islands Humpback
Whale National Marine Sanctuary.
There may be limited sonar use as units
transit to/from PMRF ranges.
Part of the Humpback Whale National
Marine Sanctuary, west of the island of
Molokai, Penguin Bank, is not included
in the 4-Islands Region Mitigation Area.
Penguin Bank particularly is used for
shallow water submarine testing and
anti-submarine warfare training because
of its large expanse of shallow
bathymetry. While submarines do not
typically use mid-frequency active
sonar, relying primarily on passive
sonar (listening mode) to avoid
detection from adversaries, submarines
are required to train in counter
detection tactics, techniques and
procedures against threat surface
vessels, airborne anti-submarine warfare
units and other threat submarines using
mid-frequency active sonar as part of
both their perspective Commanding
Officers qualification course and predeployment certification. The ability for
surface vessels and air assets to simulate
opposing forces, using mid-frequency
active sonar when training with
submarines, is critical to submarine
crew training for deployed and combat
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operations. Surface ships and aircraft
mimicking opposition forces present
submarines with a realistic and
complicated acoustic and tactical
environment. The Navy expects realworld adversaries to target our
submarines with active sonar. Without
active sonar from opposition forces,
submarines do not get a realistic picture
regarding if they successfully evaded
detection. Surface warfare training is
designed to support unit-level training
requirements and group cross-platform
events in 28 mission areas for surface
ship certification prior to deployment.
Additionally, the Navy will
implement the Humpback Whale
Special Reporting Area (December 15
through April 15), comprised of
additional areas of high humpback
whale densities that overlap the
Humpback Whale National Marine
Sanctuary. This reporting is included in
the exercise and monitoring reports that
are an ongoing Navy requirement and
are submitted to NMFS annually.
Special reporting data, along with all
other reporting requirements, are
considered during adaptive
management to determine if additional
mitigation may be required. The Navy
currently reports to NMFS the total
hours (from December 15 through April
15) of all hull-mounted mid-frequency
active sonar usage occurring in the
Humpback Whale Special Reporting
Area, plus a 5 km buffer, but not
including the Pacific Missile Range
Facility. The Navy will continue this
reporting for the Humpback Whale
Special Reporting Area.
In regard to the comment that limits
on sonar and explosives should be
adopted in the ESA-designated critical
habitat for the Hawaiian monk seal and
false killer whale, the Navy will cap
MFAS for the entire false killer whale
BIA adjacent to the island of Hawaii and
a portion of the false killer whale BIA
north of Maui and Molokai as follows.
The Navy already will limit explosive
use in the entire false killer whale BIA
adjacent to the island of Hawaii. Per the
2018 HSTT final rule, the Navy
currently implements year-round
limitation on explosives to the 4-Islands
Region Mitigation Area, which includes
a portion of the false killer whale BIA
north of Maui and Molokai.
For the Hawaii Island Mitigation Area
(year-round): The Navy will not conduct
more than 300 hours of surface ship
hull-mounted MFAS sonar MF1 (MF1)
or 20 hours of MFAS dipping sonar MF4
(MF4), or use explosives during training
and testing year-round.
For the 4-Islands Region Mitigation
Area (November 15–April 15 for active
sonar, year-round for explosives): The
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Navy will not use surface ship hullmounted MFAS sonar MF1 from
November 15–April 15 and explosives
year-round during training or testing
activities. The remaining false killer
whale BIA overlaps with areas (e.g.,
Kaiwi Channel) where additional
mitigations were found to be
impractical.
In regard to limits on sonar and
explosives in ESA-designated critical
habitat for Hawaiian monk seal, the
Navy’s training and testing activities do
occur in a portion of the ESA-designated
critical habitat for Hawaiian monk seals,
which is of specific importance to the
species. However, monk seals in the
main Hawaiian Islands have increased
while the Navy has continued its
activities, even though the Hawaiian
monk seal overall population trend has
been on a decline from 2004 through
2013, with the total number of Hawaiian
monk seals decreasing by 3.4 percent
per year (Carretta et al., 2017). While the
decline has been driven by the
population segment in the northwestern
Hawaiian Islands, the number of
documented sightings and annual births
in the main Hawaiian Islands has
increased since the mid-1990s (Baker,
2004; Baker et al., 2016). In the main
Hawaiian Islands, the estimated
population growth rate is 6.5 percent
per year (Baker et al., 2011; Carretta et
al., 2017). Of note, in the 2013 HRC
Monitoring Report, tagged monk seals
did not show any behavioral changes
during periods of MFAS.
The Hawaii Island Mitigation Area
overlaps all of their critical habitat
around the Island of Hawaii (as well as
the southern end of Maui) and, by not
using explosives or the most impactful
sonar sources in this, thereby reduces
the likelihood that take might impact
reproduction or survival by interfering
with important feeding or resting
behaviors (potentially having adverse
impacts on energy budgets) or
separating mothers and pups in times
when pups are more susceptible to
predation and less able to feed or
otherwise take care of themselves. The
4-Islands Mitigation Area overlaps with
ESA-designated critical habitat around
Maui, Lanai, and Molokai.
Comment 75: In a comment on the
2018 HSTT proposed rule, a Commenter
noted that in the 2018 HSTT proposed
rule, NMFS estimates 588 takes
annually will cause multiple instances
of exposure to insular false killer
whales, taking 400 percent of the
population. As the potential biological
removal (PBR) is 0.18 animals, the loss
of a single individual, or an impairment
to its health and fitness, could place the
species on an extinction trajectory. The
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Commenter asserted NMFS must
consider additional mitigation in the
designated critical habitat, as well as
excluded areas, to ensure a negligible
impact on false killer whales.
Response: The Commenter is
conflating expected numbers of Level B
behavioral harassment take with the
PBR number presented in the SAR.
There are no insular false killer whale
mortality takes modeled, anticipated, or
authorized. Four hundred percent of the
population would mean that all animals
would be behaviorally harassed an
average of four times per year, or once
per season. The short term biological
reaction of an animal for periods of
minutes to hours a few times a year
would not have any fitness impacts to
the individual let alone any population
level impacts. NMFS confirms that these
impacts are negligible. Additionally,
much of the Navy’s mitigations on
Hawaii and the 4 islands region
encompass areas that overlap with high
use insular false killer whale habitat and
thus already mitigate impacts. From the
Navy consultation with NMFS under
the ESA for insular false killer whale
critical habitat, less than 12 percent of
modeled takes would take place in or
near insular false killer whale critical
habitat. These takes as explained
previously would be transitory (shortduration), and spread out in time and
space.
Comment 76: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended establishing stand-off
distances around the Navy’s mitigation
areas to the greatest extent practicable,
allowing for variability in size given the
location of the area, the type of
operation at issue, and the species of
concern.
Response: Mitigation areas are
typically developed in consideration of
both the area that is being protected and
the distance from the stressor in
question that is appropriate to maintain
to ensure the protection. Sometimes this
results in the identification of the area
plus a buffer, and sometimes both the
protected area and the buffer are
considered together in the designation
of the edge of the area. We note that the
edges of a protected area are typically of
less importance to a protected stock or
behavior, since important areas often
have a density gradient that lessens
towards the edge. Also, while a buffer
of a certain size may be ideal to alleviate
all impacts of concern, a lessened buffer
does not mean that the protective value
is significantly reduced, as the core of
the area is still protected. Also, one
should not assume that activities are
constantly occurring in the area
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immediately adjacent to the protected
area.
These issues were considered here,
and the Navy has indicated that the
mitigation included in the final rule
represents the maximum mitigation
within mitigation areas and the
maximum size of mitigation areas that
are practicable to implement under the
specified activities. The Navy has
communicated (and NMFS concurs with
the assessment) that implementing
additional mitigation (e.g., stand-off
distances that would extend the size of
the mitigation areas) beyond what is
described here would be impracticable
due to implications for safety (the
ability to avoid potential hazards),
sustainability (based on the amount and
type of resources available, such as
funding, personnel, and equipment),
and the Navy’s ability to continue
meeting its Title 10 requirements.
Comment 77: In a comment on the
2019 HSTT proposed rule, Commenters
noted that Southall et al. (2019c)
investigated Cuvier’s beaked whale prey
dynamics on SOAR and found that
Cuvier’s beaked whales, as well as their
prey, were concentrated on the western
side of SOAR. They stated that if beaked
whales were to leave their preferred
habitat on SOAR due to disturbance,
Southall et al. (2019c) stipulated that
the animals could encounter both the
energetic costs of moving and
substantially poorer foraging options in
the alternative areas (both offshore of
SOAR and on the eastern side of SOAR).
Given the very large differences in prey
quality measured between those areas,
the researchers asserted that it may
prove challenging for individual beaked
whales to meet basic energetic
requirements in some of those areas,
which could have population-level
consequences (Southall et al. 2019c).
The Commenters note that it is unclear
the timescale over which the prey
surveys were conducted by Southall et
al. (2019) and whether the prey
dynamics were reflective of seasonal or
year-round patterns. However, they
noted that the researchers’ contention
that mitigation measures that would
concentrate MFA sonar operations to
the eastern rather than western side of
SOAR would be beneficial for reducing
the potential consequences of
disturbance, particularly for those
operations that use higher-intensity
sonar. Commenters asserted that the
findings of Southall et al. (2019c)
suggest that the off-range refuge areas
established by consent order in
Conservation Council for Hawaii v.
NMFS, while presenting foraging habitat
that is superior to that on the eastern
side of the range, are markedly inferior
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to the whales’ preferred foraging habitat
on the western side. Commenters
recommended NMFS investigate
whether the findings of Southall et al.
(2019) are applicable to seasonal or
year-round conditions at SOAR and
whether implementation of mitigation
areas on the western side of SOAR
would be a prudent approach for
meeting its negligible impact and least
practicable adverse impact
determinations under the MMPA.
Response: Prey data analyzed by
Southall et al. (2019c) were published in
Benoit-Bird et al. (2016) and collected in
2013. The field effort only encompassed
four days of survey in September 2013
to include five transits in Western
SOAR, five transits in eastern SOAR,
and two transits off-range. Southern,
western, and eastern SOAR, areas also
used by beaked whales as shown by
satellite tracking, were not surveyed.
Furthermore, based on passive acoustic
monitoring from two different sensor
types, there is a repeated dip in
Southern California beaked whale
occurrence in the August and
September timeframes. Therefore, there
appears to be a factor, such as
oceanography, prey availability, or other
biological parameter from August to
September that influences beaked whale
occurrence unrelated to Navy activities.
Given ocean basin level oceanographic
fluctuations since 2013, it is also
unclear if the 2013 prey results from
Benoit-Bird et al. (2016) remain
unchanged as of 2019. Recent research
has also suggested that Cuvier’s beaked
whales tend to be visually sighted and
passively acoustically detected more
frequently in the western portion of
SOAR (DiMarzio et al., 2020, Schorr et
al., 2020). An important fact remains
that cumulatively throughout the entire
year, beaked whale occurrence and
overall population abundance remains
consistently stable in a heavily used
training area as discussed previously
(DiMarzio et al., 2020; Schorr et al.,
2020). Given the parameters of Southall
et al. (2019) and Benoit-Bird et al.
(2016) which include short-term
seasonal sampling and limited sampling
throughout SOAR, as well as potential
variations in oceanographic parameters,
it is premature and speculative to
designate additional mitigation areas
specifically for western SOAR. Also,
current and ongoing beaked whale
research on SOAR appears to
demonstrate a stable beaked whale
population using SOAR (DiMarzio et al.,
2020; Schorr et al., 2020). Further, as
noted in Appendix K (Geographic
Mitigation Assessment) of the 2018
HSTT FEIS/OEIS, the waters in SOAR
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are critical to the Navy’s training and
testing activities and it is not practicable
to preclude activities within that water
space. Given the lack of sufficient
evidence to support the specific
significance of the western side of
SOAR and the stability of beaked whale
populations across SOAR, which
suggests that Navy training and testing
activities are not having significant
impacts to the population of beaked
whales anywhere in SOAR (DiMarzio et
al., 2020, Schorr et al., 2020), and in
consideration of the importance of Navy
training and testing activities in this
area discussed in Appendix K
(Geographic Mitigation Assessment) of
the 2018 HSTT FEIS/OEIS, additional
geographic mitigation specifically for
SOAR is not warranted.
Comment 78: In a comment on the
2019 HSTT proposed rule, Commenters
stated that the California (or Eastern
North Pacific) gray whale is presently
experiencing a major die-off which was
declared an Unusual Mortality Event
(UME). They asserted that it is well
established that animals already
exposed to one stressor may be less
capable of responding successfully to
another, and that stressors can combine
to produce adverse synergistic effects
(Wright et al., 2007). They noted that
disruption in gray whale behavior can
act adversely with the inanition caused
by lack of food, increasing the risk of
stranding and lowering the risk of
survival in compromised animals. The
Commenters further asserted that
starving gray whales may travel into
unexpected areas in search of food—a
likely contributing cause of some of the
ship-strikes observed in recently
stranded animals.
Due to the circumstances for gray
whales, the Commenters recommended
that NMFS strengthen the geographic
protections proposed by the Navy to
reduce activities in habitat used
seasonally by gray whales. They noted
that new scientific information on
spatial and temporal interannual
changes in the eastern North Pacific
gray whale migration across seven
migration seasons (2008–2009 to 2014–
2015) indicates that an increasing
proportion of the population is using
the nearshore migration corridor in the
Southern California Bight, especially
near Los Angeles (Guazzo et al., 2019).
In addition, the time period over which
gray whales are detected visually off Los
Angeles, and acoustically across the
broader region, is extending into April
(for acoustic detections) and May (for
visual observations) (Guazzo et al.,
2019). The Commenters strongly
recommended that a Mitigation Area
excluding sonar and explosives
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activities be established in, at minimum,
the Gray Whale Awareness Notification
Message Area, and that the mitigation
period be extended from November–
March (the current period of operations
for the Message Area) to November–
May.
Response: The Gray Whale Awareness
Notification Message Area includes all
waters in the SOCAL portion of the
HSTT Study Area. As discussed in
Appendix K (Geographic Mitigation
Assessment Section K4.2) of the 2018
HSTT FEIS/OEIS, the gray whale
migration BIA overlaps with a
significant portion of the SOCAL
portion of the HSTT Study Area out to
100 nmi from shore over 10 months of
the year. There is no indication that
infrequent behavioral disruptions from
Navy activities interrupt or significantly
delay transit, and gray whales are not
anticipated to be foraging in this area.
Therefore, creating a new mitigation
area excluding sonar and explosive
activities for the SOCAL portion of the
HSTT Study Area is not warranted. The
Navy’s current awareness notification
message includes information that gray
whales may be present in the SOCAL
portion of the HSTT Study Area from
mid-October through mid-July every
year, which includes the November–
May timeframe suggested by the
Commenters.
Comment 79: In a comment on the
2019 HSTT proposed rule, Commenters
noted that long-term passive acoustic
monitoring conducted in the Navy’s
SOCAL Range Complex from January
2013 to January 2017 detected a peak in
Northeast Pacific blue whale B calls
from summer through late winter with
a peak from September through
December, and a peak in Northeast
Pacific blue whale D calls in May and
June (Baumann-Pickering et al., 2018;
Rice et al., 2017). They further asserted
that the fall peak in blue whale
vocalizations coincides with a peak in
detections of mid-frequency active sonar
in September through November.
Resulting maximum cumulative sound
exposure levels of wave trains during
these times were greater than 170 dB re:
1 mPa2 -s, and the majority of midfrequency active sonar wave trains
occurred in November 2016 during a
major training exercise (Rice et al.,
2017). Explosions (including those
associated with Naval training exercises
and fishing activity) occurred relatively
constantly throughout the monitoring
period at the sites where Northeast
Pacific blue whale vocalizations were
detected most frequently (Rice et al.,
2017). The Commenters asserted that
this new information demonstrates a
peak in Northeast Pacific blue whale
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presence in the late fall, a time that has
historically coincided with heightened
periods of MFA sonar deployment and
explosives use. The Commenters
recommended that the seasonality of the
San Diego Arc Mitigation Area and the
Blue Whale Awareness Notification
Message Area be extended from June–
October to May–December, and again
urge the Navy to strengthen its
restrictions on activities during this
period.
Response: Rice et al. 2020 (the most
recent report referenced by the
Commenters was Rice et al. 2017)
reports on Navy supported monitoring
at various locations within the Southern
California Range Complex portion of the
HSTT Study Area. While the blue whale
switch from D calls to B calls has been
documented by Rice et al. 2018 and
others, call detection may not be
representative of the total blue whale
population or relative proportion in the
SOCAL area. Nor do the call data
collected by offshore passive acoustic
devices necessarily reflect the amount of
time or number of animals that would
be in the San Diego Arc Mitigation Area.
For example, over four years of blue
whale tagging in SOCAL, most whales
with long-term satellite tracking tags
typically have begun their southern
migration by October (Mate et al. 2018).
The amount of time blue whales spent
in the San Diego Arc as a proportion of
the total tag attachment time was very
small. Based on 90 blue whales tagged
from 2014–2017, blue whales spent an
average total of 1.2 days in the San
Diego Mitigation Area (1.5 days 2014,
1.0 days 2015, 0 days 2016, 0.3 days
2017) (Mate et al., 2018). Furthermore,
the Navy reports that MTEs and unit
level training spread throughout the
year. There is no basis for the
Commenters’ statement of heightened
sonar and explosive use in the fall. Rice
et al. (2017) captured a MTE in
November in one year’s data at one of
the recording sites (Site N). Site N is
where trains with cSELs >170 dB were
observed (not the other sites in Rice et
al. 2017), however, Site N is not near the
San Diego Arc Mitigation Area—it is
south of San Clemente Island.
Therefore, extending the timeframe of
these mitigation areas is not warranted.
Comment 80: In a comment on the
2019 HSTT proposed rule, Commenters
stated that the least practicable adverse
impact requirement imposes a
‘‘stringent standard’’ on NMFS to ensure
that marine mammals are protected to
the greatest extent practical without
interfering with military readiness. The
Commenters noted that the Navy’s
agreement to restrict the use of sonar
and explosives in specified habitat areas
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around the Hawaiian Islands and off
Southern California demonstrates the
practicability of implementing those
specific time/area restrictions. The Navy
implemented these measures for over
three years during which time it never
invoked its right under the settlement
agreement to train in these areas if
necessary for national security. The
Commenters asserted that the Navy has
a heavy burden to show these areas are
now required for training and testing
activities when it successfully
maintained military readiness subject to
the settlement agreement restrictions for
over three years and that NMFS has not
held the Navy to its burden.
The Commenters note that of
particular concern are areas to the
northeast and southeast of Moloka‘i
leading into the Ka‘iwi Channel as this
area includes biologically important
areas (BIAs) for the humpback whale,
the Main Hawaiian Island Insular (MHI)
stock of false killer whales, and spinner
dolphins. This area was partially
protected as part of settlement areas 2A,
2C, and 2D, all of which included a
year-round ban on the use of explosives,
as well as a prohibition on use of midfrequency active sonar during multi-unit
training exercises (areas 2A and 2C).
They asserted that the 2018 HSTT final
rule and the proposed extension rule
provide no protections for the BIAs
located to the northeast and southeast of
Moloka‘i. They noted that the Navy
admits that the primary use of the
northeast Ka‘iwi Channel is for transit,
and some limited unit-level straits
training when ships are transiting
through the area, however, straits
training is primarily conducted in the
‘Alenuiha¯ha¯ channel and the Pailolo
and Kalohi channels. The Commenters
asserted that the inconvenience
associated with longer transit times
around northeast Moloka‘i and Ka‘iwi
Channel which the Navy invoked to
explain the alleged impracticability of
additional protections for this area does
not meet the ‘‘stringent standard’’ test
imposed by courts. The Commenters
also noted that the Penguin Bank
training area, which is located wholly in
previous settlement area 2A and to the
southeast of Moloka‘i, is used for
specific submarine training and testing
activities identified by the Navy.
However, the Navy proffers no
explanation why sonar and explosive
restriction cannot be imposed for a
limited five-month period annually, as
in the rest of the 4-Islands Region
Mitigation Area, leaving the remaining
seven months free for military readiness
activities. The Commenters noted that
an increased reporting burden is exactly
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41835
the type of inconvenience that the Court
considered insufficient to meet the
stringent practicability standard during
the last round of HSTT authorizations.
They asserted that NMFS cannot simply
‘‘summarize the Navy’s indication of
impracticality without analyzing it all,’’
but that is exactly what it has done here.
The Commenters state that NMFS
should reinstate additional protections
around eastern Moloka‘i and other
biologically important marine habitat
included in the 2015 settlement
agreement, and expand protections
throughout the Ka‘iwi Channel area as
described above.
Response: Appendix K (Geographic
Mitigation Assessment) of the 2018
HSTT FEIS/OEIS described the
comprehensive method for analyzing
potential geographic mitigation that
included consideration of both a
biological assessment of how the
potential time/area limitation would
benefit the species or stock and its
habitat (e.g., is a key area of biological
importance or would result in
avoidance or reduction of impacts) in
the context of the stressors of concern in
the specific area and an operational
assessment of the practicability of
implementation (e.g., including an
assessment of the specific importance of
that area for training, considering
proximity to training ranges and
emergency landing fields and other
issues). The analysis included an
extensive list of areas, including areas in
which certain Navy activities were
limited under the terms of the 2015
HSTT settlement agreement, areas
identified by the California Coastal
Commission, and areas suggested during
scoping. As discussed in the 2018 HSTT
final rule and applicable to this rule,
NMFS also specifically considered the
measures from the 2015 settlement
agreement and how they compared to
both new procedural mitigation
measures and mitigation areas (see the
section Brief Comparison of 2015
Settlement Mitigation and Final HSTT
Mitigation in the Rule in the 2018 HSTT
final rule). For those areas that were
previously covered under the 2015
settlement agreement, it is essential to
understand that: (1) The measures were
developed pursuant to negotiations with
the plaintiffs and were specifically not
selected and never evaluated based on
an examination of the best available
science that NMFS otherwise applies to
a mitigation assessment and (2) the
Navy’s agreement to restrictions on its
activities as part of a relatively shortterm settlement (which did not extend
beyond the expiration of the 2013
regulations) did not mean that those
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restrictions were practicable to
implement over the longer term. The
2018 HSTT final rule then provided the
rationale, again applicable to this final
rule, for not adopting the relatively
small subset of measures that were not
carried forward (i.e., why some areas
from the 2015 settlement agreement
were fully or partially retained, and
others were not, based upon the
standards of the MMPA).
As explained in more detail in the
2018 HSTT final rule and in the full
analysis in Section 3 of Appendix K
(Geographic Mitigation Assessment) of
the 2018 HSTT FEIS/OEIS, Penguin
Bank offers critical shallow and
constrained conditions for Navy training
(especially submarines) that are not
available anywhere else in Hawaii. The
areas north of Molokai and Maui that
are not included in the current 4-Islands
Mitigation Area are similarly critical for
certain exercises that specifically
include torpedo exercises, deliberately
conducted in this area north of the
islands to avoid the other suitable
training areas between the four islands
where humpback whale density is
higher. The 2015 settlement agreement
mitigation restricted all MFAS and
explosive use on Penguin Bank (area 2–
A), however, as the Navy explained, this
MFAS restriction is impracticable for
the period covered by this rule because
it would have unacceptable impacts on
their training and testing capabilities. In
addition, the Navy does not typically
use explosives in this area. For the
settlement areas north of Molokai and
Maui that are not covered in the rule
(area 2–B and part of area 2–C), the
settlement agreement restricted
explosive use but did not restrict MFAS
in the 2–B area. Explosive use in these
areas is also already rare, but for the
reasons described in Appendix K of the
2018 HSTT FEIS/OEIS, restricting
MFAS use is impracticable and would
have unacceptable impacts on training
and testing. We also note that while it
is not practicable to restrict MFAS use
on Penguin Bank, MFAS use is
relatively low and we have identified it
as a special reporting area for which the
Navy reports the MFAS use in that area
to inform adaptive management
discussions in the future. Additionally,
some of the areas that the 2015
settlement agreement identified
included language regarding extra
vigilance intended to avoid vessel
strikes. Neither NMFS nor the Navy
thought that inclusion of this term as
written would necessarily reduce the
probability of a vessel strike, so instead
we have included the Humpback Whale
Awareness Notification provision,
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which sends out a message to all Navy
vessels in Hawaii during the time that
humpback whales are present. Last, we
note that the 2015 settlement mitigation
areas with MFAS restrictions sometimes
excluded all MFAS, while sometimes
they limited the number of MTEs that
could occur (with no limit on any
particular type of sonar, meaning that
hull-mounted surface ship sonar could
be operated), whereas the sonar
restrictions in this final rule limit the
use of surface ship hull-mounted sonar,
which is the source that results in the
vast majority of incidental takes.
Additional Mitigation Research
Comment 81: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended NMFS consider
additional mitigation measures to
prescribe or research including: (1)
Research into sonar signal
modifications; (2) mitigation and
research on Navy ship speeds (the
Commenter recommended that the
agency require the Navy to collect and
report data on ship speed as part of the
EIS process); and (3) compensatory
mitigation for the adverse impacts of the
activities on marine mammals and their
habitat that cannot be prevented or
mitigated.
Response: NMFS consulted with the
Navy regarding potential research into
additional mitigation measures and
discussion is included below.
1. Research into sonar signal
modification—Sonar signals are
designed explicitly to provide optimum
performance at detecting underwater
objects (e.g., submarines) in a variety of
acoustic environments. The Navy
acknowledges that there is very limited
data, and some suggest that up or down
sweeps of the sonar signal may result in
different animal reactions; however, this
is a very small data sample, and this
science requires further development. If
future studies indicate this could be an
effective approach, then NMFS and the
Navy will investigate the feasibility and
practicability to modify signals, based
on tactical considerations and cost, to
determine how it will affect the sonar’s
performance.
2. Mitigation and research on Navy
ship speeds inclusive of Navy collecting
and reporting data on ship speed as part
of the EIS—The Navy conducted an
operational analysis of potential
mitigation areas throughout the entire
Study Area to consider a wide range of
mitigation options, including but not
limited to vessel speed restrictions. As
discussed in Chapter 3, Section
3.0.3.3.4.1 (Vessels and In-Water
Devices) of the HSTT FEIS/OEIS, Navy
ships transit at speeds that are optimal
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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 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 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. NMFS
thoroughly reviewed and considered
this information and determined that
additional vessel speed restrictions
would be impracticable. As discussed in
Chapter 5 (Mitigation), Section 5.3.4.1
(Vessel Movement) of the HSTT FEIS/
OEIS, the Navy implements mitigation
to avoid vessel strikes throughout the
Study Area. As directed by the Chief of
Naval Operations Instruction
(OPNAVINST) 5090.1D, Environmental
Readiness Program and as discussed in
this rule and the 2018 HSTT final rule,
Navy vessels report all marine mammal
incidents worldwide, including ship
speed. Therefore, the data required for
ship strike analysis discussed in the
comment is already being collected.
Any additional data collection required
would create an unnecessary and
impracticable administrative burden on
the Navy.
3. Compensatory mitigation—For
years, the Navy has implemented a very
broad and comprehensive range of
measures to mitigate potential impacts
to marine mammals from military
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readiness activities. As described in this
rule, the 2018 HSTT final rule, and the
2018 HSTT FEIS/OEIS documents in
Chapter 5 (Mitigation), NMFS and the
Navy have expanded these measures
further where practicable. Aside from
direct mitigation, as noted by the
Commenter, the Navy engages in an
extensive spectrum of other activities
that greatly benefit marine species in a
more general manner that is not
necessarily tied to just military
readiness activities. As noted in Chapter
3, Section 3.0.1.1 (Marine Species
Monitoring and Research Programs) of
the HSTT FEIS/OEIS, the Navy provides
extensive investment for research
programs in basic and applied research.
The U.S. Navy is one of the largest
sources of funding for marine mammal
research in the world, which has greatly
enhanced the scientific community’s
understanding of marine species more
generally. The Navy’s support of marine
mammal research includes: Marine
mammal detection, including the
development and testing of new
autonomous hardware platforms and
signal processing algorithms for
detection, classification, and
localization of marine mammals;
improvements in density information
and development of abundance models
of marine mammals; and advancements
in the understanding and
characterization of the behavioral,
physiological (hearing and stress
response), and potentially populationlevel consequences of sound exposure
on marine life. Compensatory mitigation
is not required to be imposed upon LOA
holders under the MMPA. Importantly,
the Commenter did not recommend any
specific measure(s), rendering it
impossible to conduct any meaningful
evaluation of its recommendation.
Finally, many of the methods of
compensatory mitigation that have
proven successful in terrestrial settings
(purchasing or preserving land with
important habitat, improving habitat
through plantings, etc.) are not
applicable in a marine setting with such
far-ranging species. Thus, any presumed
conservation value from such an idea
would be purely speculative at this
time.
Comment 82: In a comment on the
2019 HSTT proposed rule, Commenters
asserted that NMFS should consider
source-based approaches to mitigate
impacts on frequently exposed
populations. They stated that several
recent studies (described in their
comments on the 2018 HSTT proposed
rule) suggest that modifying the sonar
signal might reduce behavioral response
in at least some species of marine
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mammals, and certain promising types
of modifications, such as converting
upsweeps to downsweeps—which
would not alter the signal’s spectral
output in any way—may well be
practicable and should be studied
further, especially for reducing impacts
in cases where spatial conflicts are
unavoidable.
Response: As described in the 2018
HSTT final rule, sonar signals are
designed explicitly to provide optimum
performance at detecting underwater
objects (e.g., submarines) in a variety of
acoustic environments. NMFS and the
Navy acknowledge that there is very
limited data available on behavioral
responses to modified sonar signals, and
some suggest that up or down sweeps of
the sonar signal may result in different
animal reactions; however, this science
requires further development. Further,
the references cited by the Commenter
pertain to harbor porpoises and harbor
seals. Harbor porpoises are not found in
the HSTT Study Area. The reaction of
these two more coastal species may not
be indicative of how all other species
may react to the same stimuli. The
Navy’s research programs continue to
support new hearing and response
studies and results of these studies will
be incorporated into future analyses. If
future studies indicate this could be an
effective approach, then NMFS and the
Navy will investigate the feasibility and
practicability to modify signals, based
on tactical considerations and cost, to
determine how it will affect the sonar’s
performance.
Comment 83: In a comment on the
2019 HSTT proposed rule, Commenters
asserted that NMFS should require the
Navy, through the Center for Naval
Analyses or a similar organization, to
study whether active sonar activities in
the HSTT Study Area can be reduced
through the use of simulators.
Response: The Navy has extensively
studied and evaluated the degree to
which simulations can be utilized to
meet their mission requirements, and
NMFS and the Navy have further
considered the information in the
context of measures that could
potentially reduce impacts to marine
mammals. We disagree that NMFS
should require additional study.
As described by the Navy, it already
uses simulators, and the proposed
activities were specifically built with
the assumption that a certain percentage
of training activities would be
accomplished through simulation
versus live training. The Navy currently
uses, and will continue to use, computer
simulation to augment training
whenever possible. Simulators and
synthetic training are critical elements
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that provide early skill repetition and
enhance teamwork; however, they
cannot duplicate the complexity faced
by Navy personnel during military
missions and combat operations for the
types of active sonar used for the
proposed activities (e.g., hull-mounted
mid-frequency active sonar). Simulators
are used at unit-level training for basic
system familiarity and refresher
training. In addition, several annual
exercises in the Pacific Ocean,
simulating many hundreds of hours of
sonar use are conducted virtually for
command staff training.
As described in Chapter 5 (Mitigation)
of the 2018 HSTT FEIS/OEIS, the Navy
needs to train and test in the conditions
in which it fights—and these types of
modifications would fundamentally
change the activity in a manner that
would not support the purpose and
need for the training and testing (i.e., are
entirely impracticable). NMFS finds the
Navy’s explanation for why adoption of
these recommendations would
unacceptably undermine the purpose of
the testing and training persuasive. As
described in the Mitigation Measures
section of the 2018 HSTT final rule,
after independent review, NMFS finds
Navy’s judgment on the impacts of
potential mitigation measures, including
simulators, to personnel safety,
practicality of implementation, and the
undermining of the effectiveness of
training and testing persuasive.
Comment 84: In a comment on the
2019 HSTT proposed rule, due to the
circumstances for gray whales
(described in Comment 78) Commenters
recommended that consistent with its
responsibilities under the MMPA’s
provisions on UMEs (e.g., 16 U.S.C.
1421c), as well as with the requirements
under NEPA to obtain information
essential to its analysis of reasonable
alternatives (40 CFR 1502.22), that
NMFS urgently fund research to assess
the extent of prey availability loss for
California gray whales and to determine
the cause of that loss of prey.
Response: Since January 1, 2019,
elevated gray whale strandings have
occurred along the west coast of North
America, from Mexico to Canada. This
event has been declared an Unusual
Mortality Event (UME). As part of the
UME investigation process, NOAA has
assembled an independent team of
scientists to coordinate with the
Working Group on Marine Mammal
Unusual Mortality Events to review the
data collected, sample stranded whales,
and determine the next steps for the
investigation. The investigative team
has not as of yet identified a primary
cause for the UME. The team is
investigating various causes that could
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be contributing to the increased
strandings including disease, biotoxins,
human interactions, environmental
drivers, carrying capacity, etc. For the
environmental and oceanographic
impacts, the team is working with (and
in part, financially supporting) a
subgroup of researchers (both internal
and external to NMFS) that are currently
researching changes in oceanographic
temperatures, primary productivity, and
prey impacts (and other indicators)
during the UME to help us understand
what if any environmental drivers may
be impacting the whales.
Comment 85: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that given the paucity of
information on marine mammal habitat
currently available for the HSTT Study
Area, efforts should be undertaken in an
iterative manner by NMFS, and the
Navy, to identify additional important
habitat areas across the HSTT Study
Area, using the full range of data and
information available to the agencies
(e.g., habitat-based density models,
NOAA-recognized BIAs, survey data,
oceanographic and other environmental
data, etc.).
Response: NMFS and the Navy used
the best available scientific information
(e.g., SARs and numerous study reports
from Navy-funded monitoring and
research in the specific geographic
region) in assessing density,
distribution, and other information
regarding marine mammal use of
habitats in the HSTT Study Area. In
addition, NMFS consulted LaBrecque et
al. (2015), which provides a specific,
detailed assessment of known BIAs.
These BIAs may be region-, species-,
and/or time-specific, include
reproductive areas, feeding areas,
migratory corridors, and areas in which
small and resident populations are
concentrated. While the science of
marine mammal occurrence,
distribution, and density resides as a
core NMFS mission, the Navy does
provide extensive support to the NMFS
mission via ongoing HSTT specific
monitoring as detailed in this final rule.
The Navy also provides funding support
to NMFS for programmatic marine
mammal surveys in Hawaii and the U.S.
West Coast, and spatial habitat model
improvements. NMFS and the Navy in
collaboration with experts are currently
working to assess and update current
BIAs, and identify new BIAs for marine
mammals.
Comment 86: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended integration of important
habitat areas to improve resolution of
operations. The delineation of BIAs by
NOAA, the updates made by the Navy
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to its predictive habitat models, and
evidence of additional important habitat
areas within the HSTT Study Area
provide the opportunity for the agencies
to improve upon their current approach
to the development of alternatives by
improving resolution of their analysis of
operations. The Commenter offered the
following thoughts for consideration.
They state that recognizing that
important habitat areas imply the nonrandom distribution and density of
marine mammals in space and time,
both the spatial location and the timing
of training and testing events in relation
to those areas is a significant
determining factor in the assessment of
acoustic impacts. Levels of acoustic
impact derived from the NAEMO model
are likely to be under- or over-estimated
depending on whether the location of
the modeled event is further from the
important habitat area, or closer to it,
than the actual event. Thus, there is a
need for the Navy to compile more
information regarding the number,
nature, and timing of testing and
training events that take place within, or
in close proximity to, important habitat
areas, and to refine its scale of analysis
of operations to match the scale of the
habitat areas that are considered to be
important. While the 2018 HSTT
proposed rule, in assessing
environmental impacts on marine
mammals, breaks down estimated
impacts by general region (i.e., HRC and
SOCAL), the resolution is seldom
greater than range complex or homeport
and is not specifically focused on areas
of higher biological importance. Current
and ongoing efforts to identify
important habitat areas for marine
mammals should be used by NMFS and
by the Navy as a guide to the most
appropriate scale(s) for the analysis of
operations.
Response: In their take request and
effects analysis provided to NMFS, the
Navy considered historic use (number
and nature of training and testing
activities) and locational information of
training and testing activities when
developing modelling boxes. The timing
of training cycles and testing needs
varies based on deployment
requirements to meet current and
emerging threats. Due to the variability,
the Navy’s description of its specified
activities is structured to provide
flexibility in training and testing
locations, timing, and number. In
addition, information regarding the
exact location of sonar usage is
classified. Due to the variety of factors,
many of which influence locations that
cannot be predicted in advance (e.g.,
weather), the analysis is completed at a
scale that is necessary to allow for
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flexibility. The purpose of the Navy’s
quantitative acoustic analysis is to
provide the best estimate of impact/take
to marine mammals and ESA listed
species for the MMPA regulatory and
ESA section 7 consultation analyses.
Specifically, the analysis must take into
account multiple Navy training and
testing activities over large areas of the
ocean for multiple years; therefore,
analyzing activities in multiple
locations over multiple seasons
produces the best estimate of impacts/
take to inform the 2018 HSTT FEIS/
OEIS and NMFS. Also, the scale at
which spatially explicit marine mammal
density models are structured is
determined by the data collection
method and the environmental variables
that are used to build the model.
Therefore, altogether, given the
variables that determine when and
where the Navy trains and tests, as well
as the resolution of the density data, the
analysis of potential impacts is scaled to
the level that the data fidelity will
support. NMFS has worked with the
Navy over the years to increase the
spatio-temporal specificity of the
descriptions of activities planned in or
near areas of biological importance (e.g.,
in BIAs or national marine sanctuaries),
when possible, and NMFS is confident
that the granularity of information
provided sufficiently allows for an
accurate assessment of both the impacts
of the Navy’s activities on marine
mammal populations and the protective
measures evaluated to mitigate those
impacts.
Monitoring Recommendations
Comment 87: In a comment on the
2018 HSTT proposed rule, a Commenter
recommended that NMFS require that
the Navy continue to conduct long-term
monitoring with the aim to provide
baseline information on occurrence,
distribution, and population structure of
marine mammal species and stocks, and
baseline information upon which the
extent of exposure to disturbance from
training and testing activities at the
individual, and ultimately, population
level-impacts, and the effectiveness of
mitigation measures, can be evaluated.
The Commenter recommended
individual-level behavioral-response
studies, such as focal follows and
tagging using DTAGs, be carried out
before, during, and after Navy training
and testing activities. The Commenter
recommended prioritizing DTAG
studies that further characterize the
suite of vocalizations related to social
interactions. The Commenter
recommends the use of unmanned aerial
vehicles. The Commenter recommended
that NMFS require the Navy to use these
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technologies for assessing marine
mammal behavior before, during, and
after Navy training and testing (e.g.,
swim speed and direction, group
cohesion). Additionally, the Commenter
recommended that the Navy support
studies to explore how these
technologies can be used to assess body
condition, as this can provide an
important indication of energy budget
and health, which can inform the
assessment of population-level impacts.
Response: Broadly speaking, in order
to ensure that the monitoring the Navy
conducts satisfies the requirements of
the MMPA, NMFS works closely with
the Navy in the identification of
monitoring priorities and the selection
of projects to conduct, continue, modify,
and/or stop through the Adaptive
Management process, which includes
annual review and debriefs by all
scientists conducting studies pursuant
to the MMPA authorization. The process
NMFS and the Navy have developed
allows for comprehensive and timely
input from the Navy and other
stakeholders that is based on rigorous
reporting out from the Navy and the
researchers doing the work. Further, the
Navy is pursuing many of the topics that
the Commenter identifies, either
through the Navy monitoring required
under the MMPA and ESA, or through
Navy-funded research programs (ONR
and LMR). We are confident that the
monitoring conducted by the Navy
satisfies the requirements of the MMPA.
With extensive input from NMFS, the
Navy established the Strategic Planning
Process under the marine species
monitoring program to help structure
the evaluation and prioritization of
projects for funding. Chapter 5
(Mitigation), Section 5.1.2.2.1.3
(Strategic Planning Process) of the 2018
HSTT FEIS/OEIS provides a brief
overview of the Strategic Planning
Process. More detail, including the
current intermediate scientific
objectives, is available on the
monitoring portal as well as in the
Strategic Planning Process report. The
Navy’s evaluation and prioritization
process is driven largely by a standard
set of criteria that help the steering
committee evaluate how well a potential
project would address the primary
objectives of the monitoring program.
NMFS has opportunities to provide
input regarding the Navy’s intermediate
scientific objectives as well as providing
feedback on individual projects through
the annual program review meeting and
annual report. For additional
information, please visit: https://
www.navymarinespeciesmonitoring.us/
about/strategic-planning-process/.
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Details on the Navy’s involvement
with future research will continue to be
developed and refined by the Navy and
NMFS through the consultation and
adaptive management processes, which
regularly consider and evaluate the
development and use of new science
and technologies for Navy applications.
The Navy has indicated that it will
continue to be a leader in funding of
research to better understand the
potential impacts of Navy training and
testing activities and to operate with the
least possible impacts while meeting
training and testing requirements. (1)
Individual-level behavioral-response
studies—In addition to the Navy’s
marine species monitoring program,
investments for individual-level
behavioral-response studies, the Office
of Naval Research Marine Mammals and
Biology program and the Navy’s Living
Marine Resources program continue to
heavily invest in this topic. For
example, as of March, 2020 the
following representative studies are
currently being funded:
• Behavioral Responses of Cetaceans
to Naval Sonar 2016–2021
(Organizations: Norwegian Defense
Research Establishment, Forsvarets
forskningsinstitutt, University of St.
Andrews Sea Mammal Research Unit);
• ACCURATE: ACoustic CUe RATEs
for Passive Acoustics Density
Estimation 2019–2023 (Organization:
University of St. Andrews);
• Acoustic Metadata Management for
Navy Fleet Operations 2015–2020
(Organization: San Diego State
University);
• Acoustic startle responses as
aversive reactions and hearing
indicators in cetaceans 2016–2020
(Organization: University of St.
Andrews);
• Analytical Methods to Support the
Development of Noise Exposure Criteria
for Behavioral Response 2018–2022
(Organizations: University of St.
Andrews Centre for Research into
Ecological and Environmental
Modelling and Harris);
• Assessing resilience of beaked
whale populations to human impacts:
Population structure and genetic
diversity in impacted and semi-pristine
areas 2016–2020 (Organization:
University of La Laguna);
• Behavioral and physiological
response studies (BPRS) with social
delphinid cetaceans using operational
and simulated military mid-frequency
active sonar 2019–2022 (Organization:
Southall Environmental Associates
Inc.);
• Behavioral Assessment of Auditory
Sensitivity in Hawaiian Monk Seals
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2018–2020 (Organization: University of
California Santa Cruz);
• Behavioral response evaluations
employing robust baselines and actual
Navy training (BREVE) 2016–2020
(Organizations: Naval Information
Warfare Center Pacific, National Marine
Mammal Foundation Inc.);
• Blue and Fin Whale Density
Estimation in the Southern California
Offshore Range Using PAM Data 2015–
2020 (Organization: Texas A&M
University Galveston);
• Cetaceans, pinnipeds, and humans:
Monitoring marine mammals in the
Arctic and characterizing their acoustic
spaces 2018–2021 (Organization:
University of Washington);
• Collection of auditory evoked
potential hearing thresholds in minke
whales 2019–2023 (Organization:
National Marine Mammal Foundation
Inc.) [in partnership with Subcommittee
on Ocean Science and Technology
(SOST)];
• Cuvier’s Beaked Whale and Fin
Whale Behavior During Military Sonar
Operations: Using Medium-term Tag
Technology to Develop Empirical Risk
Functions 2017–2021 (Organization:
Marine Ecology and Telemetry
Research);
• Demographics and diving behavior
of Cuvier’s beaked whales at Guadalupe
Island, Mexico: A comparative study to
better understand sonar impacts at
SCORE 2018–2021 (Organization:
Marine Ecology and Telemetry
Research);
• Demonstration and Validation of
Passive Acoustic Density Estimation for
Right Whales 2019–2022 (Organization:
Syracuse University, University of St.
Andrews Centre for Research into
Ecological and Environmental
Modelling);
• DenMod: Working Group for the
Advancement of Marine Species Density
Surface Modeling 2017–2021
(Organization: University of St.
Andrews Centre for Research into
Ecological and Environmental
Modelling);
• Dynamic marine mammal
distribution estimation using coupled
acoustic propagation, habitat suitability
and soundscape models 2018–2020
(Organization: Woods Hole
Oceanographic Institution);
• Environmentally influenced
Behavioral Response Evaluations (E–
BREVE) 2019–2022 (Organization: Naval
Information Warfare Center Pacific);
• Frequency-dependent Growth and
Recovery of TTS in Bottlenose Dolphins
2017–2020 (Organization: Naval
Information Warfare Center Pacific);
• Integrating information on
displacement caused by mid-frequency
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active sonar and measurements of prey
field into a population consequences of
disturbance model for beaked whales
2018–2021 (Organizations: Naval
Undersea Warfare Center Newport,
University of St. Andrews, Monterey
Bay Aquarium Research Institute);
• Investigating bone conduction as a
pathway for mysticete hearing 2019–
2023 (Organization: San Diego State
University);
• Measuring the Effect of Range on
the Behavioral Response of Marine
Mammals Through the Use of Navy
Sonar 2017–2021 (Organization: Naval
Undersea Warfare Center Newport);
• Multi-spaced Measurement of
Underwater Sound Fields from
Explosive Sources 2019–2020
(Organization: University of
Washington);
• Off-range beaked whale study:
Behavior and demography of Cuvier’s
beaked whale at the Azores 2017–2020
(Organization: Kelp);
• Passive and active acoustic tracking
mooring 2019–2020 (Organization:
Scripps Institution of Oceanography);
• Single sensor and compact array
localization methods 2016–2020
(Organization: University of Hawaii);
• Standardizing Methods and
Nomenclature for Automated Detection
of Navy Sonar 2018–2021 Project
#LMR–34 (Organization: Naval
Information Warfare Center Pacific,
Naval Undersea Warfare Center
Newport);
• The diet composition of pilot
whales, dwarf sperm whales and pygmy
sperm whales in the North Pacific 2017–
2020 (Organization: University of
Hawaii);
• The use of Navy range bottommounted, bi-directional transducers for
long-term, deep-ocean prey mapping
2017–2020 (Organization: Monterey Bay
Aquarium Research Institute);
• Towards a mysticete audiogram
using humpback whales’ behavioral
response thresholds 2019–2023
(Organization: University of Queensland
Cetacean Ecology and Acoustics
Laboratory) [in partnership with SOST];
• Unifying modeling approaches for
better understanding and characterizing
the effects of sound on marine mammals
2019–2022 (Organization: University of
California Santa Cruz);
• Use of ‘Chirp’ Stimuli for Noninvasive, Low-frequency Measurement
of Marine Mammal Auditory Evoked
Potentials 2019–2021 Project #LMR–39
(Organization: Naval Information
Warfare Center Pacific); and
• Using context to improve marine
mammal classification 2017–2020
(Organization: San Diego State
University).
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(2) Tags and other detection
technologies to characterize social
communication between individuals of
a species or stock, including mothers
and calves—DTAGs are just one
example of animal movement and
acoustics tag. From the Navy’s Office of
Naval Research and Living Marine
Resource programs, Navy funding is
being used to improve a suite of marine
mammal tags to increase attachment
times, improve data being collected, and
improve data satellite transmission. The
Navy has funded a variety of projects
that are collecting data that can be used
to study social interactions amongst
individuals. For example, as of March
2020 the following studies are currently
being funded:
• Assessing performance and effects
of new integrated transdermal large
whale satellite tags 2018–2021
(Organization: Marine Ecology and
Telemetry Research);
• Autonomous Floating Acoustic
Array and Tags for Cue Rate Estimation
2019–2020 (Organization: Texas A&M
University Galveston);
• Development of the next generation
automatic surface whale detection
system for marine mammal mitigation
and distribution estimation 2019–2021
(Organization: Woods Hole
Oceanographic Institution);
• High Fidelity Acoustic and Finescale Movement Tags 2016–2020
(Organization: University of Michigan);
• Improved Tag Attachment System
for Remotely-deployed Medium-term
Cetacean Tags 2019–2023 (Organization:
Marine Ecology and Telemetry
Research);
• Next generation sound and
movement tags for behavioral studies on
whales 2016–2020 (Organization:
University of St. Andrews);
• On-board calculation and telemetry
of the body condition of individual
marine mammals 2017–2021
(Organization: University of St.
Andrews, Sea Mammal Research Unit);
and
• The wide-band detection and
classification system 2018–2020
(Organization: Woods Hole
Oceanographic Institution).
(3) Unmanned Aerial Vehicles to
assess marine mammal behavior before,
during, and after Navy training and
testing activities (e.g., swim speed and
direction, group cohesion)—Studies that
use unmanned aerial vehicles to assess
marine mammal behaviors and body
condition are being funded by the Office
of Naval Research Marine Mammals and
Biology program. Although the
technology shows promise (as reviewed
by Verfuss et al., 2019), the field
limitations associated with the use of
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this technology have hindered its useful
application in behavioral response
studies in association with Navy
training and testing events. For safety,
research vessels cannot remain in close
proximity to Navy vessels during Navy
training or testing events, so battery life
of the unmanned aerial vehicles has
been an issue. However, as the
technology improves, the Navy will
continue to assess the applicability of
this technology for the Navy’s research
and monitoring programs. An example
project is integrating remote sensing
methods to measure baseline behavior
and responses of social delphinids to
Navy sonar 2016–2019 (Organization:
Southall Environmental Associates
Inc.).
(4) Modeling methods that could
provide indicators of population-level
effects—NMFS asked the Navy to
expand funding to explore the utility of
other, simpler modeling methods that
could provide at least an indicator of
population-level effects, even if each of
the behavioral and physiological
mechanisms are not fully characterized.
The Office of Naval Research Marine
Mammals and Biology program has
invested in the Population
Consequences of Disturbance (PCoD)
model, which provides a theoretical
framework and the types of data that
would be needed to assess population
level impacts. Although the process is
complicated and many species are data
poor, this work has provided a
foundation for the type of data that is
needed. Therefore, in the future,
relevant data that is needed for
improving the analytical approaches for
population level consequences resulting
from disturbances will be collected
during projects funded by the Navy’s
marine species monitoring program.
General population level trend analysis
is conducted by NMFS through its stock
assessment reports and regulatory
determinations. The Navy’s analysis of
effects to populations (species and
stocks) of all potentially exposed marine
species, including marine mammals and
sea turtles, is based on the best available
science as discussed in Sections 3.7
(Marine Mammals) and 3.8 (Reptiles) of
the 2018 HSTT FEIS/OEIS. PCoD
models, similar to many fisheries stock
assessment models, once developed will
be powerful analytical tools when
mature. However, currently they are
dependent on too many unknown
factors for these types of models to
produce a reliable answer. Current ONR
and LMR projects supporting improved
modeling include (as of March, 2020):
• A model for linking physiological
measures of individual health to
population vital rates for cetaceans
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2017–2020 (Organization: National
Marine Mammal Foundation Inc.);
• Body condition as a predictor of
behavioral responses of cetaceans to
sonar 2019–2021 (Organization:
University of St. Andrews);
• Integrating the results of behavioral
response studies into models of the
population consequences of disturbance
2019–2021 (Organizations: University of
Washington, Naval Undersea Warfare
Center Newport);
• Developing metrics of animal
condition and their linkage to vital
rates: Further development of the PCoD
model 2018–2021 (Organization:
University of California Santa Cruz);
• Development of an index to
measure body condition of free-ranging
cetaceans 2016–2020 (Organization:
University of California Santa Cruz);
• Double Mocha: Phase II MultiStudy Ocean acoustic Human effects
Analysis 2018–2021 (Organization:
University of St. Andrews Centre for
Research into Ecological and
Environmental Modelling);
• Dynamics of eDNA 2018–2020
(Organization: Oregon State University);
• Further investigation of blow or
exhaled breath condensate as a noninvasive tool to monitor the
physiological response to stressors in
cetaceans 2018–2020 (Organization:
Mystic Aquarium);
• Heart rate logging in deep diving
toothed whales: A new tool for assessing
responses to disturbance 2016–2020
(Organization: San Jose State
University);
• Measuring heart rate to assess the
stress response in large whales 2019–
2021 (Organization: Stanford
University);
• Measuring stress hormone levels
and reproductive rates in two species of
common dolphins relative to midfrequency active sonar within the
greater region of the SOAR range, San
Clemente Island, California 2017–2020
(Organization: Southwest Fisheries
Science Center);
• MSM4PCoD: Marine Species
Monitoring for the Population
Consequences of Disturbance 2019–
2023 (Organization: University of St.
Andrews, Sea Mammal Research Unit);
• Neurobiological and physiological
measurements from free swimming
marine mammals 2019–2022
(Organization: Fundacion Oceanografic);
• Physiological consequences of flight
responses in diving mammals: Critical
metrics for assessing the impacts of
novel environmental stimuli on
cetaceans and other marine living
species 2017–2020 (Organization:
University of California Santa Cruz);
and
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• Reconstructing stress and stressor
profiles in baleen whale earplugs 2017–
2020 (Organization: Baylor University).
As discussed in the Monitoring
section of the final rule, the Navy’s
marine species monitoring program
typically supports 10–15 projects in the
Pacific at any given time. Current
projects cover a range of species and
topics from collecting baseline data on
occurrence and distribution, to tracking
whales, to conducting behavioral
response studies on beaked whales and
pilot whales. The Navy’s marine species
monitoring web portal provides details
on past and current monitoring projects,
including technical reports,
publications, presentations, and access
to available data and can be found at:
https://
www.navymarinespeciesmonitoring.us/
regions/atlantic/current-projects/. A list
of the monitoring studies that the Navy
will be conducting under this rule are
listed at the bottom of the Monitoring
section of the 2018 HSTT final rule.
In summary, NMFS and the Navy
work closely together to prioritize,
review, and adaptively manage the
extensive suite of monitoring that the
Navy conducts in order to ensure that it
satisfies the MMPA requirements.
NMFS has laid out a broad set of goals
that are appropriate for any entity
authorized under the MMPA to pursue,
and then we have worked with the Navy
to manage their projects to best target
the most appropriate goals given their
activities, impacts, and assets in the
HSTT Study Area. Given the scale of the
HSTT Study Area and the variety of
activities conducted, there are many
possible combinations of projects that
could satisfy the MMPA standard for the
rule. The Commenter has recommended
more and/or different monitoring than
NMFS is requiring and the Navy is
conducting or currently plans to
conduct, but has in no way
demonstrated that the monitoring
currently being conducted does not
satisfy the MMPA standard. NMFS
appreciates the Commenter’s input, and
will consider it as appropriate in the
context of our adaptive management,
but is not recommending any changes at
this time.
Negligible Impact Determination
General
Comment 88: In a comment on the
2018 HSTT proposed rule, Commenters
stated that NMFS’ analytical approach
for negligible impact determination is
not transparent and that the methods
and resulting data cannot be
substantiated with the information
provided. Commenters stated that in
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general, NMFS has based negligible
impact determinations associated with
incidental take authorizations on
abundance estimates provided either in
its Stock Assessment Reports (SARs) or
other more recent published literature.
For the HSTT proposed rule, NMFS
used abundance estimates as
determined by the Navy’s underlying
density estimates rather than abundance
estimates from either the SARs or
published literature. NMFS also did not
specify how it determined the actual
abundance given that many of the
densities differ on orders of kilometers.
Interpolation or smoothing, and
potentially extrapolation, of data likely
would be necessary to achieve NMFS’
intended goal—it is unclear whether
any such methods were implemented.
In addition, it is unclear whether NMFS
estimated the abundances in the same
manner beyond the U.S. EEZ as it did
within the U.S. EEZ for HRC and why
it did not compare takes within the U.S.
EEZ and beyond the U.S. EEZ for
SOCAL, given that a larger proportion of
the Navy’s SOCAL action area is beyond
the U.S.EEZ than HRC. Furthermore,
NMFS did not specify how it
determined the proportion of total takes
that would occur beyond the U.S. EEZ.
Moreover, the ‘‘instances’’ of the
specific types of taking (i.e., mortality,
Level A and B harassment) do not match
the total takes ‘‘inside and outside the
EEZ’’ in Tables 69–81 (where
applicable) or those take estimates in
Tables 41–42 and 67–68 of the 2018
HSTT proposed rule. It also appears the
‘‘instances’’ of take columns were based
on only those takes in the U.S. EEZ for
HRC rather than the area within and
beyond the U.S. EEZ. It further is
unclear why takes were not apportioned
within and beyond the U.S. EEZ for
SOCAL. Given that the negligible
impact determination is based on the
total taking in the entire study area,
NMFS should have partitioned the takes
in the ‘‘instances’’ of take columns in
Tables 69–81 of the 2018 HSTT
proposed rule for all activities that
occur within and beyond the U.S. EEZ.
One Commenter further asserts that any
‘‘small numbers’’ determination that
relies on abundance estimates derived
simplistically from modeled densities is
both arbitrary and capricious. The
Commenters assert that NMFS should,
at least for data rich species, derive its
absolute abundance estimates from
NMFS’ SARs or more recently
published literature.
Response: NMFS’ Analysis and
Negligible Impact Determination section
was updated and expanded in the 2018
HSTT final rule to clarify the issues the
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Commenters raised here (as well as
others). Specifically, though, NMFS
uses both the Navy-calculated
abundance (based on the Navycalculated densities described in detail
in the Estimated Take of Marine
Mammal section) and the SARs
abundances, where appropriate, in the
negligible impact analysis—noting that
the nature of the overlap of the Navy
Study Area with the U.S. EEZ is
different in Hawaii versus SOCAL,
supporting different analytical
comparisons.
NMFS acknowledges that there were
a few small errors in the take numbers
in the proposed rule; however, they
have been corrected (i.e., the take totals
in Tables 41 and 42 of the 2018 HSTT
proposed rule for a given stock now
equal the ‘‘in and outside the U.S. EEZ’’
take totals in Tables 41 and 42 (of the
HSTT final rule) and the minor changes
do not affect the analysis or
determinations in the rule.
Also, the Commenters are incorrect
that the instances of take for HRC do not
reflect the take both within and outside
the U.S. EEZ. They do. Lastly, the
Commenter mentions the agency
making a ‘‘small numbers’’
determination, but such a determination
is not applicable in the context of
military readiness activities.
Comment 89: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that the activities proposed by the
Navy include high-intensity noise
pollution, vessel traffic, explosions, pile
driving, and more at a massive scale.
According to the Commenter, NMFS has
underestimated the amount of take and
the adverse impact that it will have on
marine mammals and their habitat.
Response: NMFS has provided
extensive information demonstrating
that the best available science has been
used to estimate the amount of take, and
further to analyze the impacts that all of
these takes combined will have on the
affected species and stocks. As
described in the Analysis and Negligible
Impact Determination section, this
information and our associated analyses
support the negligible impact
determinations necessary to issue these
regulations.
Comment 90: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that blue whales exposed to midfrequency sonar (with received levels of
110 to 120 dB re: 1 mPa) are less likely
to produce calls associated with feeding
behavior. They cite the Goldbogen et al.
(2013) study (and a subsequent study) as
extremely concerning because of the
potential impacts of sonar on the
essential life functions of blue whales as
it found that sonar can disrupt feeding
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and displace blue whales from highquality prey patches, significantly
impacting their foraging ecology,
individual fitness, and population
health. They also state that midfrequency sonar has been associated
with several cases of blue whale
stranding events and that low-frequency
anthropogenic noise can mask calling
behavior, reduce communication range,
and damage hearing. These impacts
from sonar on blue whales suggest that
the activities’ impacts would have longterm, non-negligible impacts on the blue
whale population.
Response: As described in this final
rule in the Analysis and Negligible
Impact Determination section, NMFS
has fully considered the effects that
exposure to sonar can have on blue
whales, including impacts on calls and
feeding and those outlined in the
Goldbogen study. However, as
discussed, any individual blue whale is
not expected to be exposed to sonar and
taken on more than several days per
year. Thus, while vocalizations may be
impacted or feeding behaviors
temporarily disrupted, this small scale
of impacts is not expected to affect
reproductive success or survival of any
individuals, especially given the
limitations on sonar and explosive use
within blue whale BIAs. Of additional
note, while the blue whale behavioral
response study (BRS) in Southern
California documented some foraging
responses by blue whales to simulated
Navy sonar, any response was highly
variable by individual and context of
the exposure. There were, for instance,
some individual blue whales that did
not respond. Recent Navy-funded blue
whale tracking has documented wide
ranging movements through Navy areas
such that any one area is not used
extensively for foraging. More long-term
blue whale residency occurs north of
and outside of the HSTT Study Area.
Further, we disagree with the assertion
that MFAS has been causally associated
with blue whale strandings. This topic
was discussed at length in the proposed
rule and there is no data causally
linking MFAS use with blue whale
strandings.
Comment 91: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that NMFS cannot consider the
additional mortality/serious injury,
including the 0.2 in the proposed
authorization for ship strike for blue
whales in the 2018 HSTT proposed rule,
to have a negligible impact for this
stock. They also state that counts of
mortality/serious injury do not account
for the additional takes proposed to be
authorized that cumulatively can have
population level impacts from auditory
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injury and behavioral disturbance.
Similarly, the Commenter stated that
NMFS cannot consider the proposed
authorization for 0.4 annual mortality/
serious injury to have a negligible
impact on the CA/OR/WA stock of
humpback whales in the 2018 HSTT
proposed rule because take is already
exceeding the potential biological
removal, and especially concerning is
any take authorized for the critically
endangered Central America population
that would have significant adverse
population impacts.
Response: As described in detail in
the Estimated Take of Marine Mammals
section, the Navy and NMFS revisited
and re-analyzed the Navy’s initial
request of takes by mortality of blue and
humpback whales from vessel strike and
determined that only one strike of either
would be possible over the course of
five years in the 2018 HSTT final rule,
and therefore authorized the lesser
amount. Further, NMFS has expanded
and refined the discussion of mortality
take, PBR, and our negligible impact
finding in the Serious Injury and
Mortality subsection of the Analysis and
Negligible Impact Determination section
and does not repeat it here.
Comment 92: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that the estimated population size
for the Hawaii stock of sei whales is
only 178 animals, and the potential
biological removal is 0.2 whales per
year. According to the Commenter,
NMFS admits that the mortality for the
Hawaii stock of sei whales is above
potential biological removal. The
Commenter asserted that the conclusion
that the action will have a negligible
impact on this stock is arbitrary and
capricious.
Response: As described in detail in
the Estimated Take of Marine Mammals
section, the Navy and NMFS revisited
and re-analyzed the Navy’s initial
request for the take of a sei whale from
vessel strike and determined that this
take is unlikely to occur and, therefore,
it is not authorized.
Comment 93: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that any take of Hawaiian monk
seal by the proposed activities will have
a non-negligible impact given the
precarious status of this species.
Response: NMFS’ rationale for finding
that the Navy’s activity will have a
negligible impact on monk seals is
included in the Pinniped subsection of
the Analysis and Negligible Impact
Determination section and is not reprinted here. Nonetheless, we reiterate
that no mortality or injury due to tissue
damage is anticipated or authorized,
only one instance of PTS is estimated
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and authorized, and no individual monk
seal is expected to be exposed to
stressors that would result in take more
than a few days a year. Further, the
Hawaii Island and 4-Island Region
mitigation areas provide significant
protection of monk seal critical habitat
in the Main Hawaiian Islands, reducing
impacts from sonar and explosives
around a large portion of pupping
beaches and foraging habitat, as
described in the Mitigation Measures
section.
Comment 94: In a comment on the
2019 HSTT proposed rule, Commenters
stated that satellite telemetry data and
eight years’ worth of photoidentification and mark-recapture data,
representing the best available science,
indicate that San Nicolas Basin
represents an area of high site fidelity,
and residency, for a small population of
Cuvier’s beaked whales associated with
San Clemente Island (Falcone et al.,
2009; Falcone et al., 2014; Schorr et al.,
2014). They stated that the population’s
primary habitat overlaps directly with
the SOAR Range. They asserted that
many factors—their repeated exposure
to Navy activities, their clear foragingrelated responses to both controlled
sonar playbacks (DeRuiter et al., 2013)
and live exercises (Falcone et al., 2017),
and their small abundance and
apparently limited range—raise obvious
concerns about population-level
consequences for these whales (Claridge
and Dunn, 2014, Moretti et al., 2015).
The Commenters asserted that without
meaningful additional mitigation, they
do not see how NMFS can conclude that
population-level harm would not occur
or, ultimately, how NMFS can credibly
reach a finding of negligible impact with
respect to this population.
Response: As noted in our response to
a similar comment (Comment 97 below)
on the 2018 HSTT proposed rule, NMFS
acknowledges the sensitivity of small
resident populations both in our
analyses and in the identification of
mitigation measures, where appropriate.
However, we are required to make our
negligible impact determination in the
context of the MMPA-designated stock,
which, in the case of the CA/OR/WA
stock of Cuvier’s beaked whale, spans
the U.S. EEZ off the U.S. West Coast. As
described in our responses to previous
comments, NMFS and the Navy have
fully accounted for the sensitivity of
Cuvier’s beaked whales in the
behavioral thresholds and the
estimation of take. NMFS has also
considered the potential impacts of
repeated takes on individuals that show
site fidelity. Nonetheless, in 2020, an
estimate of overall abundance of
Cuvier’s beaked whales at the Navy’s
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instrumented range in San Nicolas
Basin was obtained using new divecounting acoustic methods and an
archive of passive acoustic M3R data
representing 49,855 hrs of data
(DiMarzio et al., 2020; Moretti, 2017).
Over the ten-year period from 2010–
2019, there was no observed decrease
and perhaps a slight increase in annual
Cuvier’s beaked whale abundance
within San Nicolas Basin (DiMarzio et
al., 2020). There does appear to be a
repeated dip in population numbers and
associated echolocation clicks during
the fall centered around August and
September (Moretti, 2017, DiMarzio et
al., 2020). A similar August and
September dip was noted by researchers
using stand-alone off-range bottom
passive acoustic devices in Southern
California (Sˇirovic´ et al., 2016; Rice et
al., 2017, 2019, 2020). This dip in
abundance may be tied to some as of yet
unknown population dynamic or
oceanographic and prey availability
dynamics.
Comment 95: In a comment on the
2019 HSTT proposed rule, due to the
circumstances for gray whales
(described in Comment 78) Commenters
asserted that in considering the effects
of acoustic exposure on gray whales,
NMFS cannot presume that the
consequences of the Navy’s behavioral
disruption will be ‘‘minor’’ or ‘‘shortterm.’’ They asserted that NMFS must
carefully consider the biological context
of behavioral disruption on that species
and evaluate the meaningful risk of
serious or severe consequences,
including mortality.
Response: NMFS acknowledges that
individual marine mammals that are
emaciated or have underlying health
issues, such as some gray whales have
experienced, may be impacted more
severely by exposure to additional
stressors than healthy animals.
However, the expected nature and short
duration of any individual gray whale’s
exposure to Navy activity is still such
that impacts would not be expected to
be compounded to the point where
individual fitness is affected.
Specifically, gray whales seasonally
migrate through the Southern California
portion of the HSTT Study Area and are
not known to forage in the HSTT Study
Area. Most gray whales spend only brief
periods of time (days) in the HSTT
Study Area and we have no reason to
expect that the anticipated incremental,
short term, and predominately low-level
behavioral responses to transitory
stressors such as Navy training and
testing activities will have impacts on
individual gray whale fitness, much less
adversely affect the stock at the
population level. Also, as noted
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previously, both the Eastern Pacific
stock (not ESA listed) and the Western
Pacific stock of gray whales is described
as increasing in the 2018 final SARs (the
most recent SARs for these stocks). The
population size of the Eastern North
Pacific gray whale stock has increased
over several decades despite an UME in
1999 and 2000.
Cumulative and Aggregate Effects
Comment 96: In a comment on the
2018 HSTT proposed rule, a Commenter
asserted that NMFS has not apparently
considered the impact of Navy activities
on a population basis for many of the
marine mammal populations within the
HSTT Study Area. Instead, it has lodged
discussion for many populations within
broader categories, most prominently
‘‘mysticetes’’ (14 populations) and
‘‘odontocetes’’ (37 populations), that in
some cases correspond to general
taxonomic groups. Such grouping of
stocks elides important differences in
abundance, demography, distribution,
and other population-specific factors,
making it difficult to assume ‘‘that the
effects of an activity on the different
stock populations’’ are identical. That is
particularly true where small, resident
populations are concerned, and
differences in population abundance,
habitat use, and distribution relative to
Navy activities can be profoundly
significant. Additionally, the
Commenter stated that NMFS assumed
that all of the Navy’s estimated impacts
would not affect individuals or
populations through repeated activity—
even though the takes anticipated each
year would affect the same populations
and, indeed, would admittedly involve
extensive use of some of the same
biogeographic areas.
Response: NMFS provides
information regarding broader groups in
order to avoid repeating information
that is applicable across multiple
species or stocks, but analyses have
been conducted and determinations
made specific to each stock. The method
used to avoid repeating information
applicable to a number of species or
stocks while also presenting and
integrating all information applicable to
particular species or stocks is described
in the rule. Also, NMFS’ analysis does
address the fact that some individuals
may be repeatedly impacted and how
those impacts may or may not accrue to
more serious effects. The Analysis and
Negligible Impact Determination section
has been expanded and refined to better
explain this.
Comment 97: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that NMFS’ negligible impact
analysis for Cuvier’s beaked whales is
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predicated on a single take estimate for
the CA/OR/WA stock. This is deeply
problematic as the species is known to
occur in small, resident populations
within the SOCAL Range Complex.
These populations are acutely
vulnerable to Navy sonar. Cuvier’s
beaked whales have repeatedly been
associated with sonar-related pathology,
are known to react strongly to sonar at
distances up to 100 kilometers, and are
universally regarded to be among the
most sensitive of all marine mammals to
anthropogenic noise (Falcone et al.,
2017). Some populations, such as the
one in San Nicolas Basin that coincides
with the Navy’s much-used Southern
California ASW Range (SOAR), are
repeatedly exposed to sonar, posing the
same risk of population-wide harm
documented on a Navy range in the
Bahamas (Falcone and Schorr, 2013).
The broad take estimates presented in
the 2018 HSTT proposed rule, and the
negligible impact analysis that they are
meant to support, provide no insight
into the specific impacts proposed for
these small populations.
Response: NMFS acknowledges the
sensitivity of small resident populations
both in our analyses and in the
identification of mitigation measures,
where appropriate. However, we are
required to make our negligible impact
determination in the context of the
MMPA-designated stock, which, in the
case of the CA/OR/WA stock of Cuvier’s
beaked whale, spans the U.S. EEZ off
the West Coast. As described in our
responses to previous comments, NMFS
and the Navy have fully accounted for
the sensitivity of Cuvier’s beaked
whales in the behavioral thresholds and
the estimation of take. Further, contrary
to the assertions of the Commenter,
NMFS has absolutely considered the
potential impacts of repeated takes on
individuals that show site fidelity and
that analysis can be found in the
Analysis and Negligible Impact
Determination section, which has been
refined and updated since the proposed
rule based on public input. Nonetheless,
in 2020, an estimate of overall
abundance of Cuvier’s beaked whales at
the Navy’s instrumented range in San
Nicolas Basin was obtained using new
dive-counting acoustic methods and an
archive of passive acoustic M3R data
representing 49,855 hrs of data
(DiMarzio et al., 2020; Moretti, 2017).
Over the ten-year period from 2010–
2019, there was no observed decrease
and perhaps a slight increase in annual
Cuvier’s beaked whale abundance
within San Nicolas Basin (DiMarzio et
al., 2020). There does appear to be a
repeated dip in population numbers and
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associated echolocation clicks during
the fall centered around August and
September (Moretti, 2017, DiMarzio et
al., 2020). A similar August and
September dip was noted by researchers
using stand-alone off-range bottom
passive acoustic devices in Southern
California (Sˇirovic´ et al., 2016; Rice et
al., 2017, 2019, 2020). This dip in
abundance may be tied to some as of yet
unknown population dynamic or
oceanographic and prey availability
dynamics.
Comment 98: In a comment on the
2018 HSTT proposed rule, a Commenter
asserted that with respect to mortalities
and serious injuries, NMFS’ application
of potential biological removal (PBR) is
unclear and may not be consistent with
its prior interpretations. The agency
recognizes that PBR is a factor in
determining whether the negligible
impact threshold has been exceeded,
but argues that, since PBR and
negligible impact are different statutory
standards, NMFS might find that an
activity that kills marine mammals
beyond what PBR could support would
not necessarily exceed the negligible
impact threshold. Regardless, however,
of whether Congress intended PBR as a
formal constraint on NMFS’ ability to
issue incidental take permits under
section 101(a)(5), NMFS’ own definition
of ‘‘negligible impact’’ prevents it from
authorizing mortalities or other takes
that would threaten the sustainability of
marine mammal stocks. Mortalities and
serious injuries exceeding potential
biological removal levels would do just
that.
Additionally, in assessing the
consequences of authorized mortality
below PBR, NMFS applies an
‘‘insignificance’’ standard, such that any
lethal take below 10 percent of residual
PBR is presumed not to exceed the
negligible impact threshold. This
approach seems inconsistent, however,
with the regulatory thresholds
established for action under the
commercial fisheries provision of the
Act, where bycatch of 1 percent of total
PBR triggers mandatory take reduction
procedures for strategic marine mammal
stocks. See 16 U.S.C. 1387(f)(1); 83 FR
5349, 5349 (Feb. 7, 2018). NMFS should
clarify why it has chosen 10 percent
rather than, for example, 1 percent as its
‘‘insignificance’’ threshold, at least for
endangered species and other
populations designated as strategic
under the MMPA.
Response: NMFS disagrees that the
consideration of PBR is unclear and
notes that the narrative describing the
application of PBR has been updated in
this final rule to further explain how the
agency considers this metric in the
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context of the negligible impact
determination under section
101(a)(5)(A) (see the Serious Injury and
Mortality sub-section of the Analysis
and Negligible Impact Determination
section) and is not repeated here. That
discussion includes how PBR is
calculated and therefore how it is
possible for anticipated M/SI to exceed
PBR or residual PBR and yet not
adversely affect a particular species or
stock through effects on annual rates of
recruitment and survival.
Regarding the insignificance
threshold, as explained in the rule,
residual PBR is a metric that can be
used to inform the assessment of M/SI
impacts, and the insignificance
threshold is an analytical tool to help
prioritize analyst effort. But the
insignificance threshold is not applied
as a strict presumption as described by
the Commenter. Although it is true that
as a general matter M/SI that is less than
10 percent of residual PBR should have
no effect on rates of recruitment or
survival, the agency will consider
whether there are other factors that
should be considered, such as whether
an UME is affecting the species or stock.
The 10 percent insignificance
threshold is an analytical tool that
indicates that the potential mortality or
serious injury is an insignificant
incremental increase in anthropogenic
mortality and serious injury that alone
(in the absence of any other take and
any other unusual circumstances)
would clearly not affect rates of
recruitment or survival. As such,
potential mortality and serious injury at
the insignificance-threshold level or
below is evaluated in light of other
relevant factors (such as an ongoing
UME) and then considered in
conjunction with any anticipated Level
A or Level B harassment take to
determine if the total take would affect
annual rates of recruitment or survival.
Ten percent was selected because it
corresponds to the insignificance
threshold under the MMPA framework
for authorizing incidental take of marine
mammals resulting from commercial
fisheries. There the insignificance
threshold, which also is 10 percent of
PBR, is ‘‘the upper limit of annual
incidental mortality and serious injury
of marine mammal stocks by
commercial fisheries that can be
considered insignificant levels
approaching a zero mortality and
serious injury rate’’ (see 50 CFR 229.2).
A threshold that represents an
insignificant level of mortality or
serious injury approaching a zero
mortality and serious injury rate was
thought to be an appropriate level to
indicate when, absent other factors, the
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agency can be confident that expected
mortality and serious injury will not
affect annual rates of recruitment and
survival, without the need for
significant additional analysis.
Regarding the claim that NMFS’
interpretation of PBR may be
inconsistent with prior interpretations,
we disagree. Rather, NMFS’
interpretation of PBR has been utilized
appropriately within the context of the
different MMPA programs and
associated statutory standards it has
informed. The application of PBR under
section 101(a)(5)(A) also has developed
and been refined in response to
litigation and as the amount of and
nature of M/SI requested pursuant to
this section has changed over time,
thereby calling for the agency to take a
closer look at how M/SI relative to PBR
relates to effects on rates of recruitment
and survival.
Specifically, until recently, NMFS
had used PBR relatively few times to
support determinations outside of the
context of MMPA commercial fisheries
assessments and decisions. Indeed, in
Georgia Aquarium, Inc. v. Pritzker, 135
F. Supp.3d 1280 (N.D. Ga. 2015), in
ruling on a lawsuit in which the
plaintiffs sought to use PBR as the
reason they should be allowed to import
animals from the Sahklin-Amur stock of
beluga whales for public display, the
Court summarized a ‘‘handful’’ of cases
where NMFS had used PBR to support
certain agency findings. The Court
agreed that the agency does not have a
‘‘practice and policy’’ of applying PBR
in all circumstances. Importantly, the
Court stated that ‘‘NMFS has shown that
where the Agency has considered PBR
outside of the U.S. commercial fisheries
context, it has treated PBR as only one
‘quantitative tool’ and that it is not used
as the sole basis for its impact
analyses,’’ just as NMFS has done here
for its negligible impact analyses.
The examples considered by the
Georgia Aquarium Court involved
scientific research permits or
subsistence harvest decisions where
reference to PBR was one consideration
among several. Thus, in one of the
examples referenced by the Court, PBR
was included to evaluate different
alternatives in a 2007 EIS developed in
support of future grants and permits
related to research on northern fur seals
and Steller sea lions (available at
https://repository.library.noaa.gov/view/
noaa/17331). Similarly, in the 2015
draft EIS on the Makah Tribe’s request
to hunt gray whales, different levels of
harvest were compared against PBR
along with other considerations in the
various alternatives (available at https://
www.westcoast.fisheries.noaa.gov/
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publications/protected_species/marine_
mammals/cetaceans/gray_whales/
makah_deis_feb_2015.pdf). Consistent
with what the Georgia Aquarium Court
found, in both of those documents PBR
was one consideration in developing
alternatives for the agency’s EIS and not
determinative in any decision-making
process.
After 2013 in response to an
incidental take authorization request
from NMFS’ Southwest Fisheries
Science Center that contained PBR
analysis and more particularly in
response to a District Court’s March
2015 ruling that NMFS’ failure to
consider PBR when evaluating lethal
take under section 101(a)(5)(A) violated
the requirement to use the best available
science (see Conservation Council for
Hawaii v. National Marine Fisheries
Service, 97 F. Supp.3d 1210 (D. Haw.
2015)), NMFS began to systematically
consider the role of PBR when
evaluating the effects of M/SI during
section 101(a)(5)(A) rulemakings.
Previously, in 1996 shortly after the PBR
metric was first introduced, NMFS
denied a request from the U.S. Coast
Guard for an incidental take
authorization for their vessel and
aircraft operations, seemingly solely on
the basis of the potential for ship strike
in relation to PBR. The decision did not
appear to consider other factors that
might also have informed the potential
for ship strike of a North Atlantic right
whale in relation to the negligible
impact standard.
During the following years and until
the Court’s decision in Conservation
Council and the agency issuing the
proposed incidental take authorization
for the Southwest Fisheries Science
Center, NMFS issued incidental take
regulations without referencing PBR.
Thereafter, however, NMFS began
considering and articulating the
appropriate role of PBR when
processing incidental take requests for
M/SI under section 101(a)(5)(A).
Consistent with the interpretation of
PBR across the rest of the agency,
NMFS’ Permits and Conservation
Division has been using PBR as a tool
to inform the negligible impact analysis
under section 101(a)(5)(A), recognizing
that it is not a dispositive threshold that
automatically determines whether a
given amount of M/SI either does or
does not exceed a negligible impact on
the affected species or stock.
Comment 99: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that NMFS failed to adequately
assess the aggregate effects of all of the
Navy’s activities included in the rule.
The Commenter alleges that NMFS’ lack
of analysis of these aggregate impacts,
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41845
which is essential to any negligible
impact determination, represents a
glaring omission from the proposed
rule. While NMFS states that Level B
behavioral harassment (aside from those
caused by masking effects) involves a
stress response that may contribute to
an animal’s allostatic load, it assumes
without further analysis that any such
impacts would be insignificant.
Response: NMFS did analyze the
potential for aggregate effects from
mortality, injury, masking, habitat
effects, energetic costs, stress, hearing
loss, and behavioral harassment from
the Navy’s activities in reaching the
negligible impact determinations.
Significant additional discussion has
been added to the Analysis and
Negligible Impact Determination section
of the final rule to better explain the
potential for aggregate or cumulative
effects on individuals as well as how
these effects on individuals relate to
potential effects on annual rates of
recruitment and survival for each
species or stock.
In addition, NMFS fully considers the
potential for aggregate effects from all
Navy activities. We also consider UMEs
and previous environmental impacts,
where appropriate, to inform the
baseline levels of both individual health
and susceptibility to additional
stressors, as well as stock status.
Further, the species and stock-specific
assessments in the Analysis and
Negligible Impact Determination section
(which have been updated and
expanded) pull together and address the
combined mortality, injury, behavioral
harassment, and other effects of the
aggregate HSTT activities (and in
consideration of applicable mitigation)
as well as other information that
supports our determinations that the
Navy activities will not adversely affect
any species or stocks via impacts on
rates of recruitment or survival. We refer
the reader to the Analysis and Negligible
Impact Determination section for this
analysis.
Widespread, extensive monitoring
since 2006 on Navy ranges that have
been used for training and testing for
decades has demonstrated no evidence
of population-level impacts. Based on
the best available research from NMFS
and Navy-funded marine mammal
studies, there is no evidence that
‘‘population-level harm’’ to marine
mammals, including beaked whales, is
occurring in the HSTT Study Area. The
presence of numerous small, resident
populations of cetaceans, documented
high abundances, and populations
trending to increase for many marine
mammals species in the area suggests
there are not likely population-level
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consequences resulting from decades of
ongoing Navy training and testing
activities. Through the process
described in the rule and the LOAs, the
Navy will work with NMFS to assure
that the aggregate or cumulative impacts
remain at the negligible impact level.
Regarding the consideration of stress
responses, NMFS does not assume that
the impacts are insignificant. There is
currently neither adequate data nor a
mechanism by which the impacts of
stress from acoustic exposure can be
reliably and independently quantified.
However, stress effects that result from
noise exposure likely often occur
concurrently with behavioral
harassment and many are likely
captured and considered in the
quantification of other takes by
harassment that occur when individuals
come within a certain distance of a
sound source (behavioral harassment,
PTS, and TTS).
Comment 100: In a comment on the
2018 HSTT proposed rule, Commenters
asserted that in reaching our MMPA
negligible impact finding, NMFS did not
adequately consider the cumulative
impacts of the Navy’s activities when
combined with the effects of other nonNavy activities.
Response: Both the statute and the
agency’s implementing regulations call
for analysis of the effects of the
applicant’s activities on the affected
species and stocks, not analysis of other
unrelated activities and their impacts on
the species and stocks. That does not
mean, however, that effects on the
species and stocks caused by other nonNavy activities are ignored. The
preamble for NMFS’ implementing
regulations under section 101(a)(5) (54
FR 40338; September 29, 1989) explains
in response to comments that the
impacts from other past and ongoing
anthropogenic activities are to be
incorporated into the negligible impact
analysis via their impacts on the
environmental baseline. Consistent with
that direction, NMFS has factored into
its negligible impact analyses the
impacts of other past and ongoing
anthropogenic activities via their
impacts on the baseline (e.g., as
reflected in the density/distribution and
status of the species, population size
and growth rate, and other relevant
stressors (such as incidental mortality in
commercial fisheries or UMEs)). See the
Analysis and Negligible Impact
Determination section of this rule and
the 2018 HSTT final rule.
Our 1989 final rule for the MMPA
implementing regulations also
addressed public comments regarding
cumulative effects from future,
unrelated activities. There we stated
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that such effects are not considered in
making findings under section 101(a)(5)
concerning negligible impact. We
indicated that NMFS would consider
cumulative effects that are reasonably
foreseeable when preparing a NEPA
analysis and also that reasonably
foreseeable cumulative effects would be
considered under section 7 of the ESA
for ESA-listed species.
Also, as described further in the
Analysis and Negligible Impact
Determination section of the final rule,
NMFS evaluated the impacts of HSTT
authorized mortality on the affected
stocks in consideration of other
anticipated human-caused mortality,
including the mortality predicted in the
SARs for other activities along with
other NMFS-permitted mortality (i.e.,
authorized as part of the Southwest
Fisheries Science Center rule), using
multiple factors, including PBR. As
described in more detail in the Analysis
and Negligible Impact Determination
section, PBR was designed to identify
the maximum number of animals that
may be removed from a stock (not
including natural mortalities) while
allowing that stock to reach or maintain
its OSP and is also helpful in informing
whether mortality will adversely affect
annual rates of recruitment or survival
in the context of a section 101(a)(5)(A).
NEPA
Comment 101: In a comment on the
2018 HSTT proposed rule, Commenters
stated that NMFS cannot rely on the
2018 HSTT FEIS/OEIS to fulfill its
obligations under NEPA because the
purpose and need is too narrow and
does not support NMFS’ MMPA action,
and therefore the 2018 HSTT FEIS/OEIS
does not explore a reasonable range of
alternatives.
Response: The proposed action at
issue is the Navy’s proposal to conduct
testing and training activities in the
HSTT Study Area. NMFS is a
cooperating agency for that proposed
action, as it has jurisdiction by law and
special expertise over marine resources
impacted by the proposed action,
including marine mammals and
federally-listed threatened and
endangered species. Consistent with the
regulations published by the Council on
Environmental Quality (CEQ), it is
common and sound NEPA practice for
NOAA to adopt a lead agency’s NEPA
analysis when, after independent
review, NOAA determines the
document to be sufficient in accordance
with 40 CFR 1506.3. Specifically here,
NOAA must be satisfied that the EIS
adequately addresses the impacts of
issuing the MMPA incidental take
authorization and that NOAA’s
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comments and concerns have been
adequately addressed. There is no
requirement in CEQ regulations that
NMFS, as a cooperating agency, issue a
separate purpose and need statement in
order to ensure adequacy and
sufficiency for adoption. Nevertheless,
the Navy, in coordination with NMFS,
has clarified the statement of purpose
and need in the 2018 HSTT FEIS/OEIS
to more explicitly acknowledge NMFS’
action of issuing an MMPA incidental
take authorization. NMFS also clarified
how its regulatory role under the MMPA
related to the Navy’s activities. NMFS’
early participation in the NEPA process
and role in shaping and informing
analyses using its special expertise
ensured that the analysis in the 2018
HSTT FEIS/OEIS is sufficient for
purposes of NMFS’ own NEPA
obligations related to its issuance of
incidental take authorization under the
MMPA.
Regarding the alternatives, NMFS’
early involvement in development of
the 2018 HSTT FEIS/OEIS and role in
evaluating the effects of incidental take
under the MMPA ensured that the 2018
HSTT FEIS/OEIS would include
adequate analysis of a reasonable range
of alternatives. The 2018 HSTT FEIS/
OEIS includes a No Action Alternative
specifically to address what could
happen if NMFS did not issue an
MMPA authorization. The other two
Alternatives address two action options
that the Navy could potentially pursue
while also meeting their mandated Title
10 training and testing responsibilities.
More importantly, these alternatives
fully analyze a comprehensive variety of
mitigation measures. This mitigation
analysis supported NMFS’ evaluation of
our options in potentially issuing an
MMPA authorization, which, if the
authorization may be issued, primarily
revolves around the appropriate
mitigation to prescribe. This approach
to evaluating a reasonable range of
alternatives is consistent with NMFS
policy and practice for issuing MMPA
incidental take authorizations. NOAA
has independently reviewed and
evaluated the EIS, including the
purpose and need statement and range
of alternatives, and determined that the
2018 HSTT FEIS/OEIS fully satisfies
NMFS’ NEPA obligations related to its
decision to issue the MMPA final rule
and associated LOAs, and we have
adopted it.
Endangered Species Act
Comment 102: In a comment on the
2018 HSTT proposed rule, a Commenter
stated that under the ESA NMFS has the
discretion to impose terms, conditions,
and mitigation on any authorization.
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They believe the proposed action clearly
affects listed whales, sea turtles, and
Hawaiian monk seals, triggering the
duty to consult. The Commenter urged
NMFS to fully comply with the ESA and
implement robust reasonable and
prudent alternatives and conservation
measures to avoid harm to endangered
species and their habitats.
Response: NMFS has fully complied
with the ESA. The agency consulted
pursuant to section 7 of the ESA and
NMFS’ ESA Interagency Cooperation
Division provided a biological opinion
concluding that NMFS’ action of issuing
MMPA incidental take regulations for
the Navy HSTT activities would not
jeopardize the continued existence of
any threatened or endangered species
and nor would it adversely modify any
designated critical habitat. The
biological opinion may be viewed at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities.
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 10 along with the
best/minimum abundance estimate and
associated coefficient of variation value.
The Navy anticipates the take of
individuals from 38 marine mammal
species 3 by Level A harassment and
Level B harassment incidental to
training and testing activities from the
use of sonar and other transducers, inwater detonations, air guns, and impact
pile driving/vibratory extraction
activities. The Navy requested
authorization for 13 serious injuries or
mortalities combined of two marine
mammal stocks from explosives, and
three takes of large whales by serious
injury or mortality from vessel strikes
over the seven-year period. Two marine
mammal species, the Hawaiian monk
seal and the Main Hawaiian Islands
Insular Distinct Population Segment
(DPS) of false killer whale, have critical
habitat designated under the
Endangered Species Act (16 U.S.C. 1531
et seq.; ESA) in the HSTT Study Area.
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,
biologically important areas (BIAs),
national marine sanctuaries (NMSs)),
and unusual mortality events (UMEs) in
the 2018 HSTT proposed rule and 2018
HSTT final rule; please see these rules
and the 2017 and 2019 Navy
applications for complete information.
There have been no changes to
important marine mammal habitat,
BIAs, NMSs, or ESA designated critical
habitat since the issuance of the 2018
HSTT final rule; therefore the
information that supports our
determinations here can be found in the
2018 HSTT proposed and final rules.
However, since publication of the 2018
HSTT final rule, NMFS published a
proposed rule to designate ESA critical
habitat for the Central America and
Mexico DPSs of humpback whales on
October 9, 2019 (84 FR 54354). In the
proposed rule only critical habitat Unit
19 overlapped with the HSTT Study
Area, and NMFS proposed to exclude
this unit from the critical habitat
designation based on consideration of
national security. A final rule
designating critical habitat for these two
DPSs of humpback whales has not been
published.
NMFS also has reviewed the most
recent 2019 draft Stock Assessment
Reports (SARs) and 2018 final SARs
(Carretta et al., 2019, which can be
found at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessments);
information on relevant UMEs; and new
scientific literature (see the Potential
Effects of Specified Activities on Marine
Mammals and their Habitat section),
and determined that none of these nor
any other new information changes our
determination of which species or
stocks have the potential to be affected
by the Navy’s activities or the pertinent
information in the Description of Marine
Mammals and Their Habitat in the Area
of the Specified Activities section in the
2018 HSTT proposed and final rules.
Therefore, the information presented in
those sections of the 2018 HSTT
proposed and final rules remains
current and valid.
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, in which case, these
stocks are not considered further.
TABLE 10—MARINE MAMMAL OCCURRENCE WITHIN THE HSTT STUDY AREA
Status 1
Common name
Scientific name
Stock
Occurrence
MMPA
Blue whale ..............
Balaenoptera musculus .......
Bryde’s whale .........
Balaenoptera brydei/edeni ...
Fin whale ................
Balaenoptera physalus ........
Gray whale ..............
Eschrichtius robustus ..........
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Humpback whale ....
Megaptera novaeangliae .....
Minke whale ............
Balaenoptera acutorostrata
Sei whale ................
Balaenoptera borealis ..........
Sperm whale ...........
Physeter macrocephalus .....
Pygmy sperm whale
Kogia breviceps ...................
Eastern North Pacific.
Central North Pacific.
Eastern Tropical Pacific.
Hawaii .....................
CA/OR/WA .............
Hawaii .....................
Eastern North Pacific.
Western North Pacific.
CA/OR/WA .............
Central North Pacific.
CA/OR/WA .............
Hawaii .....................
Eastern North Pacific.
Hawaii .....................
CA/OR/WA .............
Hawaii .....................
CA/OR/WA .............
Hawaii .....................
3 In the 2018 HSTT final rule the number of
species was unintentionally presented incorrectly
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ESA
Stock abundance
(CV)/minimum
population 2
Strategic, Depleted
Endangered ...................
Southern California
.................................
1,496 (0.44)/1,050
Strategic, Depleted
Endangered ...................
Hawaii .....................
Summer ..................
133 (1.09)/63
.................................
.......................................
Southern California
.................................
unknown
.................................
Strategic, Depleted
Strategic, Depleted
.................................
.......................................
Endangered ...................
Endangered ...................
.......................................
Hawaii .....................
Southern California
Hawaii .....................
Southern California
.................................
.................................
Summer ..................
.................................
Strategic, Depleted
Endangered ...................
Southern California
.................................
1,751 (0.29)/1,378
9,029 (0.12)/8,127
154 (1.05)/75
26,960 (0.05)/
25,849
290 (NA)/271
Strategic, Depleted
Threatened/ Endangered 3.
.......................................
Southern California
.................................
2,900 (0.05)/2,784
Strategic .................
Hawaii .....................
Summer ..................
10,103 (0.30)/7,891
.................................
.................................
Strategic, Depleted
.......................................
.......................................
Endangered ...................
Southern California
Hawaii .....................
Southern California
.................................
Summer ..................
.................................
636 (0.72)/369
unknown
519 (0.40)/374
Strategic, Depleted
Strategic, Depleted
Strategic, Depleted
.................................
.................................
Endangered ...................
Endangered ...................
Endangered ...................
.......................................
.......................................
Hawaii .....................
Southern California
Hawaii .....................
Southern California
Hawaii .....................
Summer ..................
.................................
.................................
Winter and Fall .......
.................................
391 (0.90)/204
1,997 (0.57)/1,270
4,559 (0.33)/3,478
4,111 (1.12)/1,924
unknown
as 39 and is corrected here. This transcription error
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absence
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does not affect the analysis or conclusions reached
in the 2018 HSTT final rule.
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TABLE 10—MARINE MAMMAL OCCURRENCE WITHIN THE HSTT STUDY AREA—Continued
Status 1
Common name
Scientific name
Seasonal
absence
.......................................
.......................................
.......................................
Southern California
Hawaii .....................
Southern California
.................................
.................................
.................................
unknown
unknown
2,697 (0.60)/1,633
MMPA
ESA
.................................
.................................
.................................
Dwarf sperm whale
Kogia sima ...........................
Baird’s beaked
whale.
Blainville’s beaked
whale.
Cuvier’s beaked
whale.
Berardius bairdii ...................
CA/OR/WA .............
Hawaii .....................
CA/OR/WA .............
Mesoplodon densirostris ......
Hawaii .....................
.................................
.......................................
Hawaii .....................
.................................
2,105 (1.13)/980
Ziphius cavirostris ................
CA/OR/WA .............
.................................
.......................................
Southern California
.................................
3,274 (0.67)/2,059
Indopacetus pacificus ..........
Hawaii .....................
Hawaii .....................
.................................
.................................
.......................................
.......................................
Hawaii .....................
Hawaii .....................
.................................
.................................
723 0.69/428
7,619 (0.66)/4,592
Mesoplodon spp. .................
CA/OR/WA .............
.................................
.......................................
Southern California
.................................
3,044 (0.54)/1,967
Tursiops truncatus ...............
California Coastal ...
.................................
.......................................
Southern California
.................................
453 (0.06)/346
CA/OR/WA Offshore
Hawaii Pelagic ........
.................................
.................................
.......................................
.......................................
Southern California
Hawaii .....................
.................................
.................................
Kauai and Niihau ....
Oahu .......................
4-Islands .................
Hawaii Island ..........
Main Hawaiian Islands Insular.
Hawaii Pelagic ........
Northwestern Hawaiian Islands.
Hawaii .....................
.................................
.................................
.................................
.................................
Strategic, Depleted
.......................................
.......................................
.......................................
.......................................
Endangered ...................
Hawaii
Hawaii
Hawaii
Hawaii
Hawaii
.....................
.....................
.....................
.....................
.....................
.................................
.................................
.................................
.................................
.................................
1,924 (0.54)/1,255
21,815 (0.57)/
13,957
NA NA/97
NA
NA
NA NA/91
167 (0.14)/149
.................................
.................................
.......................................
.......................................
Hawaii .....................
Hawaii .....................
.................................
.................................
1,540 (0.66)/928
617 (1.11)/290
.................................
.......................................
Hawaii .....................
.................................
Eastern North Pacific Offshore.
West Coast Transient.
Hawaii .....................
California ................
.................................
.......................................
Southern California
.................................
51,491 (0.66)/
31,034
300 (0.1)/276
.................................
.......................................
Southern California
.................................
243 unknown/243
.................................
.................................
.......................................
.......................................
Hawaii .....................
Southern California
.................................
.................................
.................................
.................................
.................................
.......................................
.......................................
.......................................
Hawaii .....................
Hawaii .....................
Southern California
.................................
.................................
.................................
146 (0.96)/74
101,305 (0.49)/
68,432
8,666 (1.00)/4,299
447 (0.12)/404
26,556 (0.44)/
18,608
26,814 (0.28)/
21,195
unknown
Longman’s beaked
whale.
Mesoplodon beaked
whales.
Common Bottlenose
dolphin.
False killer whale ....
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Stock abundance
(CV)/minimum
population 2
Occurrence
Stock
Pseudorca crassidens .........
Fraser’s dolphin ......
Lagenodelphis hosei ............
Killer whale .............
Orcinus orca ........................
Long-beaked common dolphin.
Melon-headed whale
Delphinus capensis .............
Northern right whale
dolphin.
Pacific white-sided
dolphin.
Pantropical spotted
dolphin.
Lissodelphis borealis ...........
Hawaiian Islands ....
Kohala Resident .....
CA/OR/WA .............
Lagenorhynchus obliquidens
CA/OR/WA .............
.................................
.......................................
Southern California
.................................
Stenella attenuata ................
Oahu .......................
.................................
.......................................
Hawaii .....................
.................................
4-Islands .................
Hawaii Island ..........
Hawaii Pelagic ........
.................................
.................................
.................................
.......................................
.......................................
.......................................
Hawaii .....................
Hawaii .....................
Hawaii .....................
.................................
.................................
.................................
Tropical ...................
Hawaii .....................
CA/OR/WA .............
Hawaii .....................
NSD4 ......................
.................................
.................................
.................................
.................................
.................................
.......................................
.......................................
.......................................
.......................................
.......................................
Southern California
Hawaii .....................
Southern California
Hawaii .....................
Southern California
Winter & Spring ......
.................................
.................................
.................................
.................................
Hawaii .....................
.................................
.......................................
Hawaii .....................
.................................
CA/OR/WA .............
.................................
.......................................
Southern California
.................................
Peponocephala electra ........
Pygmy killer whale ..
Feresa attenuata .................
Risso’s dolphins ......
Grampus griseus .................
Rough-toothed dolphin.
Steno bredanensis ...............
Short-beaked common dolphin.
Short-finned pilot
whale.
Delphinus delphis ................
Globicephala
macrorhynchus.
CA/OR/WA .............
.................................
.......................................
Southern California
.................................
Hawaii .....................
.................................
.......................................
Hawaii .....................
.................................
Hawaii Pelagic ........
Hawaii Island ..........
Oahu and 4-Islands
Kauai and Niihau ....
Kure and Midway ...
Pearl and Hermes ..
CA/OR/WA .............
.................................
.................................
.................................
.................................
.................................
.................................
.................................
.......................................
.......................................
.......................................
.......................................
.......................................
.......................................
.......................................
Hawaii .....................
Hawaii .....................
Hawaii .....................
Hawaii .....................
Hawaii .....................
Hawaii .....................
Southern California
.................................
.................................
.................................
.................................
.................................
.................................
.................................
Spinner dolphin .......
Stenella longirostris .............
Striped dolphin ........
Stenella coeruleoalba ..........
Hawaii .....................
.................................
.......................................
Hawaii .....................
.................................
Dall’s porpoise ........
Phocoenoides dalli ..............
CA/OR/WA .............
.................................
.......................................
Southern California
.................................
Harbor seal .............
Hawaiian monk seal
Northern elephant
seal.
California sea lion ...
Phoca vitulina ......................
Neomonachus schauinslandi
Mirounga angustirostris .......
California ................
Hawaii .....................
California ................
.................................
Strategic, Depleted
.................................
.......................................
Endangered ...................
.......................................
Southern California
Hawaii .....................
Southern California
.................................
.................................
.................................
Zalophus californianus .........
U.S. Stock ..............
.................................
.......................................
Southern California
.................................
Guadalupe fur seal
Northern fur seal .....
Arctocephalus townsendi .....
Callorhinus ursinus ..............
Mexico to California
California ................
Strategic, Depleted
.................................
Threatened ....................
.......................................
Southern California
Southern California
.................................
.................................
unknown
unknown
55,795 (0.40)/
40,338
unknown
10,640 (0.53)/6,998
6,336 (0.32)/4,817
11,613 (0.43)/8,210
unknown
72,528 (0.39)/
52,833
969,861 (0.17)/
839,325
836 (0.79)/466
19,503 (0.49)/
13,197
unknown
665 (0.09)/617
NA
NA
unknown
unknown
29,211 (0.20)/
24,782
61,021 (0.38)/
44,922
25,750 (0.45)/
17,954
30,968 (NA)/27,348
1,351 (0.03)/1,325
179,000 (NA)/
81,368
257,606 (NA)/
233,515
34,187 (NA)/31,019
14,050 (NA)/7,524
1 Endangered Species Act (ESA) status: Endangered, Threatened. MMPA status: Strategic, Depleted. A dash (-) indicates that the species/stock is not listed under the ESA or designated as
depleted/strategic under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds potential biological removal (PBR) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and
as a strategic stock.
2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
3 The two humpback whale Distinct Population Segments (DPSs) making up the California/Oregon/Washington (CA/OR/WA) stock present in Southern California are the Mexico DPS, listed
under the ESA as Threatened, and the Central America DPS, which is listed under the ESA as Endangered.
4 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.
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Unusual Mortality Events (UMEs)
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. Three
UMEs with ongoing or recently closed
investigations in the HSTT Study Area
that inform our analysis are discussed
below. The California sea lion UME in
California was closed on May 6, 2020.
The Guadalupe fur seal UME in
California and the gray whale UME
along the west coast of North America
are active and involve ongoing
investigations.
California Sea Lion UME
From January 2013 through
September 2016, a greater than expected
number of young malnourished
California sea lions (Zalophus
californianus) stranded along the coast
of California. Sea lions stranding from
an early age (6–8 months old) through
two years of age (hereafter referred to as
juveniles) were consistently
underweight without other disease
processes detected. Of the 8,122
stranded juveniles attributed to the
UME, 93 percent stranded alive
(n=7,587, with 3,418 of these released
after rehabilitation) and 7 percent
(n=531) stranded dead. Several factors
are hypothesized to have impacted the
ability of nursing females and young sea
lions to acquire adequate nutrition for
successful pup rearing and juvenile
growth. In late 2012, decreased anchovy
and sardine recruitment (CalCOFI data,
July 2013) may have led to nutritionally
stressed adult females. Biotoxins were
present at various times throughout the
UME, and while they were not detected
in the stranded juvenile sea lions
(whose stomachs were empty at the time
of stranding), biotoxins may have
impacted the adult females’ ability to
support their dependent pups by
affecting their cognitive function (e.g.,
navigation, behavior towards their
offspring). Therefore, the role of
biotoxins in this UME, via its possible
impact on adult females’ ability to
support their pups, is unclear. The
proposed primary cause of the UME was
malnutrition of sea lion pups and
yearlings due to ecological factors.
These factors included shifts in
distribution, abundance and/or quality
of sea lion prey items around the
Channel Island rookeries during critical
sea lion life history events (nursing by
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adult females, and transitioning from
milk to prey by young sea lions). These
prey shifts were most likely driven by
unusual oceanographic conditions at the
time due to the ‘‘Warm Water Blob’’ and
El Nin˜o. This investigation closed on
May 6, 2020. Please refer to: https://
www.fisheries.noaa.gov/national/
marine-life-distress/2013-2017california-sea-lion-unusual-mortalityevent-california for more information on
this UME.
Guadalupe Fur Seal UME
Increased strandings of Guadalupe fur
seals began along the entire coast of
California in January 2015 and were
eight times higher than the historical
average (approximately 10 seals/yr).
Strandings have continued since 2015
and remained well above average
through 2019. Numbers by year are as
follows: 2015 (98), 2016 (76), 2017 (62),
2018 (45), 2019 (116), 2020 (3 as of 3/
6/2020). The total number of Guadalupe
fur seals stranding in California from
January 1, 2015, through March 6, 2020,
in the UME is 400. While outside the
HSTT Study Area, strandings of
Guadalupe fur seals became elevated in
the spring of 2019 in Washington and
Oregon; subsequently, strandings for
seals in these two states have been
added to the UME starting from January
1, 2019. The current total number of
strandings in Washington and Oregon is
94 seals, including 91 in 2019 and 3 in
2020 as of March 6, 2020. Strandings are
seasonal and generally peak in April
through June of each year. The
Guadalupe fur seal strandings have been
mostly weaned pups and juveniles (1–
2 years old) with both live and dead
strandings occurring. Current findings
from the majority of stranded animals
include primary malnutrition with
secondary bacterial and parasitic
infections. The California portion of this
UME was occurring in the same area as
the 2013–2016 California sea lion UME.
This investigation is ongoing. Please
refer to: https://www.fisheries.noaa.gov/
national/marine-life-distress/2015-2019guadalupe-fur-seal-unusual-mortalityevent-california for more information on
this UME.
Gray Whale UME
Since January 1, 2019, elevated gray
whale strandings have occurred along
the west coast of North America, from
Mexico to Canada. As of March 13,
2020, there have been a total of 264
strandings along the coasts of the United
States, Canada, and Mexico, with 129 of
those strandings occurring along the
U.S. coast. Of the strandings on the U.S.
coast, 48 have occurred in Alaska, 35 in
Washington, 6 in Oregon, and 40 in
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California. Partial necropsy
examinations conducted on a subset of
stranded whales have shown evidence
of poor to thin body condition. As part
of the UME investigation process,
NOAA is assembling an independent
team of scientists to coordinate with the
Working Group on Marine Mammal
Unusual Mortality Events to review the
data collected, sample stranded whales,
and determine the next steps for the
investigation. Please refer to: https://
www.fisheries.noaa.gov/national/
marine-life-distress/2019-gray-whaleunusual-mortality-event-along-westcoast for more information on this UME.
Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
We provided a full discussion of the
potential effects of the specified
activities on marine mammals and their
habitat in our 2018 HSTT proposed and
final rules. In the Potential Effects of
Specified Activities on Marine
Mammals and Their Habitat section of
the 2018 HSTT proposed and final
rules, NMFS provided a description of
the ways marine mammals may be
affected by the same activities that the
Navy will be conducting during the
seven-year period analyzed in this rule
in the form of serious injury or
mortality, physical trauma, sensory
impairment (permanent and temporary
threshold shifts and acoustic masking),
physiological responses (particularly
stress responses), behavioral
disturbance, or habitat effects.
Therefore, 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 National
Environmental Policy Act (NEPA)
requirements.
NMFS has reviewed new relevant
information from the scientific literature
since publication of the 2018 HSTT
final rule. Summaries of new scientific
literature since publication of the 2018
HSTT final rule are presented below.
Nachtigall et al. (2018) and Finneran
(2018) describe the measurements of
hearing sensitivity of multiple
odontocete species (bottlenose dolphin,
harbor porpoise, beluga, and false killer
whale) when a relatively loud sound
was preceded by a warning sound.
These captive animals were shown to
reduce hearing sensitivity when warned
of an impending intense sound. Based
on these experimental observations of
captive animals, the authors suggest that
wild animals may dampen their hearing
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during prolonged exposures or if
conditioned to anticipate intense
sounds. Finneran (2018) recommends
further investigation of the mechanisms
of hearing sensitivity reduction in order
to understand the implications for
interpretation of existing TTS data
obtained from captive animals, notably
for considering TTS due to short
duration, unpredictable exposures. No
modification of the 2018 HSTT EIS/
OEIS analysis of auditory impacts is
necessary based on this research, as
these findings suggest additional
research is required to understand
implications on TTS data, and the
current auditory impact thresholds are
based on best available data for both
impulsive and non-impulsive exposures
to marine mammals.
Several publications described
models developed to examine the longterm effects of environmental or
anthropogenic disturbance of foraging
on various life stages of selected species
(sperm whale, Farmer et al. (2018);
California sea lion, McHuron et al.
(2018); and blue whale, Pirotta, et al.
(2018a)). These models, taken into
consideration with similar models
described in the 2018 HSTT EIS/OEIS,
continue to add to refinement to the
approaches to the population
consequences of disturbance (PCOD)
framework. Such models also help
identify what data inputs require further
investigation. Pirotta et al. (2018b)
provides a review of the PCOD
framework with details on each step of
the process and approaches to applying
real data or simulations to achieve each
step. As described in the 2018 HSTT
EIS/OEIS, many of the inputs required
by such models are not yet known for
acoustic and explosive impacts. NMFS
will continue to assess the applicability
of population consequences models in
our analyses.
Southall et al. (2019a) evaluated
Southall et al. (2007) and used updated
scientific information to propose revised
noise exposure criteria to predict onset
of auditory effects in marine mammals
(i.e., PTS and TTS onset). Southall et al.
(2019a) note that the quantitative
processes described and the resulting
exposure criteria (i.e., thresholds and
auditory weighting functions) are
largely identical to those in Finneran
(2016) and NOAA (2016 and 2018).
However, they differ in that the Southall
et al. (2019a) exposure criteria are more
broadly applicable as they include all
marine mammal species (rather than
those only under NMFS jurisdiction) for
all noise exposures (both in air and
underwater for amphibious species),
and that while the hearing group
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compositions are identical they
renamed the hearing groups.
In continued investigations of
pinniped hearing, Kastelein et al.
(2019a) exposed two female captive
harbor seals to 6.5 kHz continuous,
sinusoidal tones for 60 minutes
(cumulative sound exposure levels
(SELs) of 159–195 dB re: 1 mPa2s), then
measured TTS using behavioral
(psychoacoustic) methods at the center
frequency of the fatiguing sound (6.5
kHz) and 0.5 and 1 octave above that
frequency (9.2 and 13 kHz).
Susceptibility to TTS was similar in
both individuals tested. At cumulative
SELs below 179 dB re: 1 mPa2s,
maximum TTS was induced at the
center frequency (6.5 kHz), and at
cumulative SELs above 179 dB re: 1
mPa2s, maximum TTS was induced at
0.5 octave above the center frequency
(9.2 kHz). The highest TTSs were
produced in the one-half octave band
above the exposure frequency. Both
seals recovered within 1–2 hours for up
to 6 dB of TTS. One seal showed 19 dB
of TTS after a dB re: 1 mPa2s exposure
and recovered within 24 hours. Overall,
this study combined with previous work
showed that for harbor seals, recovery
times are consistent for similarmagnitude TTS, regardless of the type of
fatiguing sound exposure (impulsive,
continuous noise band, or sinusoidal
wave), and that susceptibility to TTS in
the fatiguing frequency range tested
(2.5–6.5 kHz) varies little with hearing
frequency. The two harbor seals in this
study (and Kastelein et al., 2012) had
similar susceptibility to TTS as the seal
in Kastak et al. (2005). The authors note
that more fatiguing sound frequencies
need to be tested in harbor seals to
produce equal TTS curves, for
generating weighting functions that can
be used to develop exposure criteria for
broadband sounds in the marine
environment (Houser et al., 2017).
To determine the distances at which
Helicopter Long Range Active Sonar
(HELRAS) signals (∼1.3–1.4 kHz) can be
detected, Kastelein et al. (2019b)
measured hearing thresholds using
behavioral (psychoacoustic) techniques
to simulated HELRAS signals in two
captive harbor seals. Both seals showed
similar thresholds (51 dB re: 1 mPa rms,
approximately 4 dB lower than the
detection thresholds for the same
individuals in Kastelein et al., 2009) to
previously obtained data for stimuli
having the same center frequencies,
which suggests that the harmonics
present within HELRAS sources do not
impact hearing threshold and that a
tonal audiogram can be used to estimate
the audibility of more complex narrowband tonal signals in harbor seals.
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Accomando et al. (2020) examined
the directional dependence of hearing
thresholds for 2, 10, 20 and 30 kHz in
two adult bottlenose dolphins. They
observed that source direction (i.e., the
relative angle between the sound source
location and the dolphin) impacted
hearing thresholds for these frequencies.
Sounds projected from directly behind
the dolphins resulted in frequencydependent increases in hearing
thresholds of up to 18.5 dB when
compared to sounds projected from in
front of the dolphins. Sounds projected
directly above the dolphins resulted in
thresholds that were approximately 8
dB higher than those obtained when
sounds were projected below the
dolphins. These findings suggest that
dolphins may receive lower source
levels when they are oriented 180
degrees away from the sound source,
and dolphins are less sensitive to sound
projected from above (likely leading to
some spatial release from masking).
Directional or spatial hearing also
allows animals to locate sound sources.
This study indicates dolphins can detect
source direction at lower frequencies
than previously thought, allowing them
to successfully avoid or approach
biologically significant or anthropogenic
sound sources at these frequencies.
Recent studies on the behavioral
responses of cetaceans to sonar examine
and continue to demonstrate the
importance of not only sound source
parameters, but exposure context (e.g.,
behavioral state, presence of other
animals and social relationships, prey
abundance, distance to source, presence
of vessels, environmental parameters) in
determining or predicting a behavioral
response.
• Kastelein et al. (2018) examined the
role of sound pressure level (SPL) and
duty cycle on the behavior of two
captive harbor porpoises when exposed
to simulated Navy mid-frequency sonar
(53C, 3.5 to 4.1 kHz). Neither harbor
porpoise responded to the low duty
cycle (2.7 percent) at any of the five
SPLs presented, even at the maximum
received SPL (143 dB re: 1 mPa). At the
higher duty cycle (96 percent), one
porpoise responded by increasing his
respiration rate at a received SPL of
greater than or equal to 119 dB re: 1 mPa,
and moved away from the transducer at
a received SPL of 143 dB re: 1 mPa.
Kastelein et al. (2018) observed that at
the same received SPL and duty cycle,
harbor porpoises respond less to 53C
sonar sounds than 1–2 kHz, 6–7 kHz,
and 25 kHz sonar signals observed in
previous studies, but noted that when
examining behavioral responses it is
important to take into account the
spectrum and temporal structure of the
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signal, the duty cycle, and the
psychological interpretation by the
animal.
• To investigate the effect of signal to
noise ratio (SNR) on behavioral
responses, Kastelein et al. (2019c)
observed respiration rates (an indicator
of behavioral response) of two captive
harbor porpoises when exposed to
simulated 30-minute playbacks of Navy
mid-frequency sonar (53C, 3.5 to 4.1
kHz, 96 percent duty cycle), in noise
simulating sea state 6 conditions. No
behavioral responses were observed
when the porpoises were exposed to
sonar signals at an SPL of 117 dB re: 1
mPa (SNR equal to 49 dB re: 1 Hz). Both
porpoises responded when exposed to
sonar signals at an SPL of 122 dB re: 1
mPa (SNR equal to 54 dB re: 1 Hz),
however in quiet conditions one
porpoise responded at similar levels
(Kastelein et al. 2018), suggesting the
behavioral responses of harbor
porpoises to sonar signals are not
affected in sea state 6 ambient noise
conditions.
• To determine if sonar sounds with
different harmonic contents and
amplitude envelopes had different
impacts on harbor porpoise behavior,
Kastelein et al. (2019d) examined the
behavioral responses of one male harbor
porpoise to four different low-frequency
HELRAS (1.33 to 1.43 kHz) sonar signals
(1.25 s in duration, 107 dB re: 1 mPa
SPL). The sonar sounds with sensation
levels of approximately 21 dB (and 8
percent duty cycle) caused a very small
displacement (mean increased distance
of 0.11 m), slight increase in respiration
rate, and a small increase in swimming
speed, and these effects did not
continue after the sound exposure
ceased. The authors concluded that if
porpoises at sea were exposed to sonar
signals of similar SPLs, the effects
would be expected to be minimal. The
authors noted that harbor porpoises are
relatively insensitive to low-frequency
signals below 4 kHz, however high SPL
harmonics of low-frequency sonar
sound sounds can impact the behavior
of harbor porpoises. They suggest new
sonar systems be designed to reduce the
level of harmonics.
• In an effort to examine potential
mitigation measures to reduce impacts
of seismic airguns on harbor porpoises,
Kastelein et al. (2019e) examined the
effect of a bubble screen on behavioral
responses of two captive harbor
porpoises exposed to airgun sounds.
The bubble screen reduced the
transmission of high-frequency airgun
sounds by 20–30 dB above 250 Hz,
however the broadband SELs-s was only
∼3 dB lower when the bubble screen
was present. The harbor porpoises
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responded differently to the airgun
sounds, with one being more responsive
than the other. When the bubble screen
was deployed neither individual
responded to the airgun sounds,
supporting the hypothesis that the
frequency content of impulsive sounds
is an important factor in behavioral
responses of harbor porpoises. The
authors suggest that small bubble
screens, such as those tested in this
study, could be an important tool in
improving living conditions for captive
harbor porpoises by reducing
background noise levels.
• Kastelein et al. (2019f) examined
fish catching efficiency in two captive
harbor porpoises exposed to pile-driving
playback sound (single strike exposure
levels between 125 and 143 dB re: 1
mPa2s) and ambient (quiet) sound. They
observed substantial individual
variation in responses between the two
harbor porpoises, with no change in fish
catch success in one porpoise and
decline in fish-catch success and trial
termination in the second porpoise.
These results suggest that highamplitude pile driving sounds may
negatively affect foraging behavior in
some harbor porpoises. However,
additional information is needed to
determine the role of individual
differences in responses to sound,
termination rates, and fish-catching
success to accurately estimate and
quantify potential impacts.
• Wensveen et al. (2019) examined
the role of sound source (simulated
sonar pulses) distance and received
level in northern bottlenose whales in
an environment without frequent sonar
activity using multi-scaled controlled
exposure experiments. They observed
behavioral avoidance of the sound
source over a wide range of distances
(0.8–28 km) and estimated avoidance
thresholds ranging from modeled
received SPLs of 117–126 dB re: 1 mPa
as described by von Benda-Beckmann et
al. (2019). The behavioral response
characteristics and avoidance thresholds
were comparable to those previously
observed in beaked whale studies;
however, they did not observe an effect
of distance on behavioral response and
found that onset and intensity of
behavioral response were better
predicted by received SPL.
• Joyce et al. (2019) presented
movement and dive behavior data from
seven Blainville’s beaked whales that
were satellite tagged prior to naval sonar
exercises using mid-frequency active
sonar (MFAS, 3–8 kHz) at the Atlantic
Undersea Test and Evaluation Center
(AUTEC) in the Bahamas. Five of the
seven tagged were displaced 28–68 km
after the onset of sonar exposure and
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41851
returned to the AUTEC range 2–4 days
after exercises ended. Three of the
individuals for which modeled received
SPLs were available during this
movement showed declining received
SPLs from initial maxima of 145–172 dB
re: 1 mPa to maxima of 70–150 dB re: 1
mPa after displacements. Tagged
individuals exhibited a continuation of
deep diving activity consistent with
foraging during MFAS exposure
periods, but data also suggested that
time spent on deep dives during initial
exposure periods was reduced. These
findings provide additional data for
ongoing Population Consequences of
Acoustic Disturbance assessments of
disturbance as authors note that
previous studies have suggested
foraging dives may be lost in response
to MFAS exposure, which could cause
a decrease in energy intake and have
potential effects on vital parameters.
The data presented by Joyce et al. (2019)
support the initial potential loss of
foraging time, however they also suggest
that Blainville’s beaked whales may
have the ability to partially compensate
for this loss (assuming they have ample
recovery times between dives) by
increasing time spent at foraging depths
following displacement.
• When conducting controlled
exposure experiments on blue whales,
Southall et al. (2019b) observed that
after exposure to simulated and
operational mid-frequency active sonar,
more than 50 percent of blue whales in
deep-diving states responded to the
sonar, while no behavioral response was
observed in shallow-feeding blue
whales. The behavioral responses they
observed were generally brief, of low to
moderate severity, and highly
dependent on exposure context
(behavioral state, source-to-whale
horizontal range, and prey availability).
Blue whale response did not follow a
simple exposure-response model based
on received sound exposure level.
• In an effort to compare behavioral
responses to continuous active sonar
(CAS) and pulsed (intermittent) active
sonar (PAS), Isojunno et al. (2020)
conducted at-sea experiments on 16
sperm whales equipped with animalattached sound- and movementrecording tags in Norway. They
examined changes in foraging effort and
proxies for foraging success and cost
during sonar and control exposures after
accounting for baseline variation. They
observed no reduction in time spent
foraging during exposures to mediumlevel PAS transmitted at the same peak
amplitude as CAS, however they
observed similar reductions in foraging
during CAS and PAS when they were
received at similar energy levels (SELs).
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The authors note that these results
support the hypothesis that sound
energy (SEL) is the main cause of
behavioral responses rather than sound
amplitude (SPL), and that exposure
context and measurements of
cumulative sound energy are important
considerations for future research and
noise impact assessments.
• Frankel and Stein (2020) used
shoreline theodolite tracking to examine
potential behavioral responses of
southbound migrating eastern gray
whales to a high-frequency active sonar
system transmitted by a vessel located
off the coast of California. The sonar
transducer deployed from the vessel
transmitted 21–25 kHz sweeps for half
of each day (experimental period), and
no sound the other half of the day
(control period). In contrast to lowfrequency active sonar tests conducted
in the same area (Clark et al., 1999;
Tyack and Clark, 1998), no overt
behavioral responses or deflections were
observed in field or visual data.
However, statistical analysis of the
tracking data indicated that during
experimental periods at received levels
of approximately 148 dB re: 1 mPa2 (134
dB re: 1 mPa2s) and less than 2 km of
the transmitting vessel, gray whales
deflected their migration paths inshore
from the vessel. The authors indicate
that these data suggest the functional
hearing sensitivity of gray whales
extends to at least 21 kHz. These
findings agree with the predicted
mysticete hearing curve and behavioral
response functions used in the analysis
to estimate take by Level A harassment
(PTS) and Level B harassment
(behavioral response) for this rule (see
the Technical Report ‘‘Criteria and
Thresholds for U.S. Navy Acoustic and
Explosive Effects Analysis (Phase III)’’).
• In a review of the previously
published data (considered in the 2018
HSTT final rule and 2018 HSTT EIS/
OEIS analysis) on the potential impacts
of sonar on beaked whales, Bernaldo de
Quiro´s et al. (2019) suggested that the
effect of mid-frequency active sonar on
beaked whales varies among individuals
or populations, and that predisposing
conditions such as previous exposure to
sonar and individual health risk factors
may contribute to individual outcomes
(such as decompression sickness).
• In an effort to improve estimates of
behavioral responses to anthropogenic
sound, Tyack and Thomas (2019)
compared the approach of using a single
threshold to newly developed doseresponse functions. They demonstrated
that the common approach of selecting
the threshold at which half of the
animals respond (RLp50)
underestimates the number of
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individuals impacted. They suggest
using a dose–response function to
derive more accurate estimates of
animals impacted and to set a threshold
(the Effective Response Level) that
corrects issues with the RLp50 estimate.
The authors note that the Navy has
calculated estimates of marine mammal
takes using methods similar to the ones
they recommend. Those methods were
used to estimate take for this rule (see
the Technical Report ‘‘Criteria and
Thresholds for U.S. Navy Acoustic and
Explosive Effects Analysis (Phase III)’’).
• Houser et al. (2020) measured
cortisol, aldosterone, and epinephrine
levels in the blood samples of 30
bottlenose dolphins before and after
exposure to simulated U.S. Navy midfrequency sonar from 115–185 dB re: 1
mPa. They collected blood samples
approximately one week prior to,
immediately following, and
approximately one week after exposures
and analyzed for hormones via
radioimmunoassay. Aldosterone levels
were below the detection limits in all
samples. While the observed severity of
behavioral responses scaled (increased)
with SPL, levels of cortisol and
epinephrine did not show consistent
relationships with received SPL.
Authors note that it is still unclear
whether intermittent, high-level
acoustic stimuli elicit endocrine
responses consistent with a stress
response, and that additional research is
needed to determine the relationship
between behavioral responses and
physiological responses.
Having considered this information,
and information provided in public
comments on the 2019 HSTT proposed
rule, we have determined that there is
no new information that substantively
affects our analysis of potential impacts
on marine mammals and their habitat
that appeared in the 2018 HSTT
proposed and final rules, all of which
remains applicable and valid for our
assessment of the effects of the Navy’s
activities during the seven-year period
of this rule.
Estimated Take of Marine Mammals
This section indicates the number of
takes that NMFS is authorizing, which
are based on the amount of take that
NMFS anticipates could occur or is
likely to occur, depending on the type
of take and the methods used to
estimate it, as described below. NMFS
coordinated closely with the Navy in
the development of their incidental take
applications, and agrees that the
methods the Navy has put forth
described herein and in the 2018 HSTT
proposed and final rules to estimate take
(including the model, thresholds, and
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density estimates), and the resulting
numbers are based on the best available
science and appropriate for
authorization. The number and type of
incidental takes that could occur or are
likely to occur annually remain
identical to those authorized in the 2018
HSTT regulations.
Takes are predominantly in the form
of harassment, but a small number of
serious injuries or mortalities are also
authorized. For military readiness
activities, the MMPA defines
‘‘harassment’’ as (i) Any act that injures
or has the significant potential to injure
a marine mammal or marine mammal
stock in the wild (Level A harassment);
or (ii) Any act that disturbs or is likely
to disturb a marine mammal or marine
mammal stock in the wild by causing
disruption of natural behavioral
patterns, including, but not limited to,
migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where
such behavioral patterns are abandoned
or significantly altered (Level B
harassment).
Authorized takes will primarily be in
the form of Level B harassment, as use
of the acoustic and explosive sources
(i.e., sonar, air guns, pile driving,
explosives) is more likely to result in
behavioral disruption (rising to the level
of a take as described above) or
temporary threshold shift (TTS) for
marine mammals than other forms of
take. There is also the potential for
Level A harassment, however, in the
form of auditory injury and/or tissue
damage (the latter from explosives only)
to result from exposure to the sound
sources utilized in training and testing
activities. No more than 13 serious
injuries or mortalities (eight shortbeaked common dolphins and five
California sea lions over the seven-year
period) are estimated as a result of
exposure to explosive training and
testing activities. Lastly, no more than
three serious injuries or mortalities total
(over the seven-year period) of
mysticetes (except for sei whales, minke
whales, Bryde’s whales, Central North
Pacific stock of blue whales, Hawaii
stock of fin whales, and Western North
Pacific stock of gray whales) and the
Hawaii stock of sperm whales could
occur through vessel collisions.
Although we analyze the impacts of
these potential serious injuries or
mortalities that are authorized, the
required mitigation and monitoring
measures are expected to minimize the
likelihood that ship strike or these highlevel explosive exposures (and the
associated serious injury or mortality)
actually occur.
Generally speaking, for acoustic
impacts we estimate the amount and
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type of harassment by considering: (1)
Acoustic thresholds above which NMFS
believes the best available science
indicates marine mammals will be taken
by behavioral Level B harassment (in
this case, as defined in the military
readiness definition of Level B
harassment included above) or incur
some degree of temporary or permanent
hearing impairment; (2) the area or
volume of water that will be ensonified
above these levels in a day or event; (3)
the density or occurrence of marine
mammals within these ensonified areas;
and (4) and the number of days of
activities or events.
to experience a disruption in behavior
patterns to a point where they are
abandoned or significantly altered. In
summary, we believe these behavioral
Level B harassment thresholds are the
most appropriate method for predicting
behavioral Level B harassment given the
best available science and the associated
uncertainty.
We described these acoustic
thresholds and the methods used to
determine thresholds, none of which
have changed, in detail in the Acoustic
Thresholds section of the 2018 HSTT
final rule; please see the 2018 HSTT
final rule for detailed information.
Acoustic Thresholds
Using the best available science,
NMFS, in coordination with the Navy,
has established acoustic thresholds that
identify the most appropriate received
level of underwater sound above which
marine mammals exposed to these
sound sources could be reasonably
expected to experience a disruption in
behavior patterns to a point where they
are abandoned or significantly altered,
or to incur TTS (equated to Level B
harassment) or permanent threshold
shift (PTS) of some degree (equated to
Level A harassment). Thresholds have
also been developed to identify the
pressure levels above which animals
may incur non-auditory injury from
exposure to pressure waves from
explosive detonation.
Despite the quickly evolving science,
there are still challenges in quantifying
expected behavioral responses that
qualify as take by Level B harassment,
especially where the goal is to use one
or two predictable indicators (e.g.,
received level and distance) to predict
responses that are also driven by
additional factors that cannot be easily
incorporated into the thresholds (e.g.,
context). So, while the new behavioral
Level B harassment thresholds have
been refined here to better consider the
best available science (e.g.,
incorporating both received level and
distance), they also still, accordingly,
have some built-in conservative factors
to address the challenge noted. For
example, while duration of observed
responses in the data are now
considered in the thresholds, some of
the responses that are informing take
thresholds are of a very short duration,
such that it is possible some of these
responses might not always rise to the
level of disrupting behavior patterns to
a point where they are abandoned or
significantly altered. We describe the
application of this Level B harassment
threshold as identifying the maximum
number of instances in which marine
mammals could be reasonably expected
Navy’s Acoustic Effects Model
The Navy proposed no changes to the
Acoustic Effects Model as described in
the 2018 HSTT final rule and there is no
new information that would affect the
applicability or validity of the model.
Please see the 2018 HSTT final rule and
Appendix E of the 2018 HSTT FEIS/
OEIS for detailed information.
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Range to Effects
The Navy proposed no changes from
the 2018 HSTT final rule to the type and
nature of the specified activities to be
conducted during the seven-year period
analyzed in this final rule, including
equipment and sources used and
exercises conducted. There is also no
new information that would affect the
applicability or validity of the ranges to
effects previously analyzed for these
activities. Therefore, the ranges to
effects in this final rule are identical to
those described and analyzed in the
2018 HSTT final rule, including
received sound levels that may cause
onset of significant behavioral response
and TTS and PTS in hearing for each
source type or explosives that may
cause non-auditory injury. Please see
the Range to Effects section and Tables
24 through 40 of the 2018 HSTT final
rule for detailed information.
Marine Mammal Density
The Navy proposed no changes to the
methods used to estimate marine
mammal density described in the 2018
HSTT final rule and there is no new
information that would affect the
applicability or validity of these
methods. Please see the 2018 HSTT
final rule for detailed information.
Take Requests
As in the 2018 HSTT final rule, in its
2019 application, the Navy determined
that the three stressors below could
result in the incidental taking of marine
mammals. NMFS has reviewed the
Navy’s data and analysis and
determined that it is complete and
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41853
accurate, and NMFS agrees that the
following stressors have the potential to
result in takes of marine mammals from
the Navy’s planned activities:
• Acoustics (sonar and other
transducers; air guns; pile driving/
extraction);
• Explosives (explosive shock wave
and sound, assumed to encompass the
risk due to fragmentation); and
• Vessel strike.
NMFS reviewed and agrees with the
Navy’s conclusion that acoustic and
explosive sources have the potential to
result in incidental takes of marine
mammals by harassment, serious injury,
or mortality. NMFS carefully reviewed
the Navy’s analysis and conducted its
own analysis of vessel strikes,
determining that the likelihood of any
particular species of large whale being
struck is quite low. Nonetheless, NMFS
agrees that vessel strikes have the
potential to result in incidental take
from serious injury or mortality for
certain species of large whales and the
Navy specifically requested coverage for
these species. Therefore, the likelihood
of vessel strikes, and later the effects of
the incidental take that is being
authorized, has been fully analyzed and
is described below.
Regarding the quantification of
expected takes from acoustic and
explosive sources (by Level A and Level
B harassment, as well as mortality
resulting from exposure to explosives),
the number of takes are based directly
on the level of activities (days, hours,
counts, etc., of different activities and
events) in a given year. In the 2018
HSTT final rule, take estimates across
the five-years were based on the Navy
conducting three years of a
representative level of activity and two
years of maximum level of activity.
Consistent with the pattern set forth in
the 2017 Navy application, the 2018
HSTT FEIS/OEIS, and the 2018 HSTT
final rule, the Navy included one
additional representative year and one
additional maximum year to determine
the predicted take numbers in this rule.
Specifically, as in the 2018 HSTT final
rule, the Navy uses the maximum
annual level to calculate annual takes
(which would remain identical to what
was determined in the 2018 HSTT final
rule), and the sum of all years (four
representative and three maximum) to
calculate the seven-year totals for this
rule.
The quantitative analysis process
used for the 2018 HSTT FEIS/OEIS and
the 2017 and 2019 Navy applications to
estimate potential exposures to marine
mammals resulting from acoustic and
explosive stressors is detailed in the
technical report titled ‘‘Quantifying
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Acoustic Impacts on Marine Mammals
and Sea Turtles: Methods and
Analytical Approach for Phase III
Training and Testing’’ (U.S. Department
of the Navy, 2018). The Navy Acoustic
Effects Model estimates acoustic and
explosive effects without taking
mitigation into account; therefore, the
model overestimates predicted impacts
on marine mammals within mitigation
zones. To account for mitigation for
marine species in the take estimates, the
Navy conducts a quantitative
assessment of mitigation. The Navy
conservatively quantifies the manner in
which procedural mitigation is expected
to reduce the risk for model-estimated
PTS for exposures to sonars and for
model-estimated mortality for exposures
to explosives, based on species
sightability, observation area, visibility,
and the ability to exercise positive
control over the sound source. Where
the analysis indicates mitigation would
effectively reduce risk, the modelestimated PTS are considered reduced
to TTS and the model-estimated
mortalities are considered reduced to
injury. For a complete explanation of
the process for assessing the effects of
mitigation, see the 2017 Navy
application and the Take Requests
section of the 2018 HSTT final rule. The
extent to which the mitigation areas
reduce impacts on the affected species
and stocks is addressed separately in the
Analysis and Negligible Impact
Determination sections of this rule and
the 2018 HSTT final rule.
No changes have been made to the
quantitative analysis process to estimate
potential exposures to marine mammals
resulting from acoustic and explosive
stressors and calculate take estimates. In
addition, there is no new information
that would call into question the
validity of the Navy’s quantitative
analysis process. Please see the
documents described in the paragraph
above, the 2018 HSTT proposed rule,
and the 2018 HSTT final rule for
detailed descriptions of these analyses.
In summary, we believe the Navy’s
methods, including the method for
incorporating mitigation and avoidance,
are the most appropriate methods for
predicting PTS, tissue damage, TTS, and
behavioral disruption. But even with the
consideration of mitigation and
avoidance, given some of the more
conservative components of the
methodology (e.g., the thresholds do not
consider ear recovery between pulses),
we would describe the application of
these methods as identifying the
maximum number of instances in which
marine mammals would be reasonably
expected to be taken through PTS, tissue
damage, TTS, or behavioral disruption.
Summary of Authorized Take From
Training and Testing Activities
Based on the methods discussed in
the previous sections and the Navy’s
model and quantitative assessment of
mitigation, the Navy provided its take
estimates and request for authorization
of takes incidental to the use of acoustic
and explosive sources for training and
testing activities both annually (based
on the maximum number of activities
that could occur per 12-month period)
and over the seven-year period covered
by the 2019 Navy application. Annual
takes (based on the maximum number of
activities that could occur per 12-month
period) from the use of acoustic and
explosive sources are identical to those
presented in Tables 41 and 42 and in
the Explosives subsection of the Take
Requests section of the 2018 HSTT final
rule. The 2019 Navy application also
includes the Navy’s take estimate and
request for vessel strikes due to vessel
movement in the HSTT Study Area. The
No Stock Designation stock of roughtoothed was modeled by the Navy and
estimated to have 0 takes of any type
from any activity source. NMFS has
reviewed the Navy’s data, methodology,
and analysis and determined that it is
complete and accurate. NMFS agrees
that the estimates for incidental takes by
harassment from all sources as well as
the incidental takes by serious injury or
mortality from explosives requested for
authorization are the maximum number
reasonably expected to occur. NMFS
also agrees that the takes by serious
injury or mortality as a result of vessel
strikes could occur. The total amount of
estimated incidental take from acoustic
and explosive sources over the total
seven-year period covered by the 2019
Navy application is less than the annual
total multiplied by seven, because
although the annual estimates are based
on the maximum number of activities
per year and therefore the maximum
possible estimated takes, the seven-year
total take estimates are based on the
sum of three maximum years and four
representative years. Not all activities
occur every year. Some activities would
occur multiple times within a year, and
some activities would occur only a few
times over the course of the seven-year
period. Using seven years of the
maximum number of activities each
year would vastly overestimate the
amount of incidental take that would
occur over the seven-year period where
the Navy knows that it will not conduct
the maximum number of activities each
and every year for the seven years.
Authorized Harassment Take from
Training Activities
For training activities, Table 11
summarizes the Navy’s take estimate
and request and the maximum amount
and type of Level A harassment and
Level B harassment for the seven-year
period covered by the 2019 Navy
application that NMFS concurs is
reasonably expected to occur by species
or stock, and is therefore authorized. For
the authorized amount and type of Level
A harassment and Level B harassment
annually, see Table 41 in the 2018
HSTT final rule. Note that take by Level
B harassment includes both behavioral
disruption and TTS. Navy Figures 6–12
through 6–50 in Section 6 of the 2017
Navy application illustrate the
comparative amounts of TTS and
behavioral disruption for each species
annually, noting that if a modeled
marine mammal was ‘‘taken’’ through
exposure to both TTS and behavioral
disruption in the model, it was recorded
as a TTS.
TABLE 11—SEVEN-YEAR TOTAL SPECIES- AND STOCK-SPECIFIC TAKE AUTHORIZED FROM ACOUSTIC AND EXPLOSIVE
SOUND SOURCE EFFECTS FOR ALL TRAINING ACTIVITIES
7-year total
Species
Stock
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Level B
Blue whale * ..................................................................
Bryde’s whale † .............................................................
Fin whale * ....................................................................
Humpback whale † .......................................................
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Central North Pacific ....................................................
Eastern North Pacific ....................................................
Eastern Tropical Pacific ................................................
Hawaiian † ....................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
CA/OR/WA † .................................................................
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7,116
167
631
7,731
197
7,962
Level A
0
6
0
0
0
0
7
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TABLE 11—SEVEN-YEAR TOTAL SPECIES- AND STOCK-SPECIFIC TAKE AUTHORIZED FROM ACOUSTIC AND EXPLOSIVE
SOUND SOURCE EFFECTS FOR ALL TRAINING ACTIVITIES—Continued
7-year total
Species
Stock
Level B
Minke whale ..................................................................
Sei whale * ....................................................................
Gray whale † .................................................................
Sperm whale * ...............................................................
Dwarf sperm whale .......................................................
Pygmy sperm whale .....................................................
Kogia whales ................................................................
Baird’s beaked whale ...................................................
Blainville’s beaked whale .............................................
Cuvier’s beaked whale .................................................
Longman’s beaked whale .............................................
Mesoplodon species (beaked whale guild) ..................
Bottlenose dolphin ........................................................
False killer whale † .......................................................
Fraser’s dolphin ............................................................
Killer whale ...................................................................
Long-beaked common dolphin .....................................
Melon-headed whale ....................................................
Northern right whale dolphin ........................................
Pacific white-sided dolphin ...........................................
Pantropical spotted dolphin ..........................................
Pygmy killer whale ........................................................
Risso’s dolphin .............................................................
Rough-toothed dolphin .................................................
Short-beaked common dolphin ....................................
Short-finned pilot whale ................................................
Spinner dolphin .............................................................
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Striped dolphin ..............................................................
Dall’s porpoise ..............................................................
California sea lion .........................................................
Guadalupe fur seal* ......................................................
Northern fur seal ...........................................................
Harbor seal ...................................................................
Hawaiian monk seal* ....................................................
Northern elephant seal .................................................
Central North Pacific ....................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Eastern North Pacific ....................................................
Hawaiian .......................................................................
Eastern North Pacific ....................................................
Western North Pacific † ................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
California Coastal .........................................................
CA/OR & WAOffshore ..................................................
Hawaiian Pelagic ..........................................................
Kauai & Niihau ..............................................................
Oahu .............................................................................
4-Island .........................................................................
Hawaii ...........................................................................
Hawaii Pelagic ..............................................................
Main Hawaiian Islands Insular † ...................................
Northwestern Hawaiian Islands ....................................
Hawaiian .......................................................................
Eastern North Pacific Offshore .....................................
Eastern North Pacific Transient/West Coast Transient
Hawaiian .......................................................................
California .......................................................................
Hawaiian Islands ..........................................................
Kohala Resident ...........................................................
CA/OR/WA ....................................................................
CA/OR/WA ....................................................................
Hawaii Island ................................................................
Hawaii Pelagic ..............................................................
Oahu .............................................................................
4-Island .........................................................................
Hawaiian .......................................................................
Tropical .........................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
NSD 1 ............................................................................
CA/OR/WA ....................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaii Island ................................................................
Hawaii Pelagic ..............................................................
Kauai & Niihau ..............................................................
Oahu & 4-Island ...........................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
U.S. ...............................................................................
Mexico ..........................................................................
California .......................................................................
California .......................................................................
Hawaiian .......................................................................
California .......................................................................
* ESA-listed species (all stocks) within the HSTT Study Area.
† Only designated stocks are ESA-listed.
1 NSD: No stock designation.
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E:\FR\FM\10JYR3.SGM
10JYR3
34,437
4,119
20,237
333
677
16,703
19
8,834
10,341
84,232
33,431
38,609
8,524
23,491
47,178
7,898
82,293
25,404
1,295
201,619
13,080
500
57,288
1,052
291
4,353
2,710
1,585
177,198
460
855
513
784,965
14,137
1,278
357,001
274,892
17,739
42,318
28,860
1,816
35,531
2,977
477,389
40,800
26,769
0
5,875,431
6,341
53,627
609
18,870
1,961
10,424
777,001
32,806
171,250
460,145
3,342
62,138
19,214
938
241,277
Level A
12
7
6
0
0
27
0
0
0
215
94
149
0
0
0
0
0
0
0
13
0
0
10
0
0
0
0
0
4
0
0
0
99
0
0
57
19
0
0
0
0
0
0
45
0
0
0
307
6
0
0
0
0
8
5
0
894
629
0
0
48
5
490
41856
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Authorized Harassment Take From
Testing Activities
For testing activities, Table 12
summarizes the Navy’s take estimate
and request and the maximum amount
and type of Level A harassment and
Level B harassment for the seven-year
period covered by the 2019 Navy
application that NMFS concurs is
reasonably expected to occur by species
or stock, and is therefore authorized. For
the estimated amount and type of Level
A harassment and Level B harassment
annually, see Table 42 in the 2018
HSTT final rule. Note that take by Level
B harassment includes both behavioral
disruption and TTS. Navy Figures 6–12
through 6–50 in Section 6 of the 2017
Navy application illustrate the
comparative amounts of TTS and
behavioral disruption for each species
annually, noting that if a modeled
marine mammal was ‘‘taken’’ through
exposure to both TTS and behavioral
disruption in the model, it was recorded
as a TTS.
TABLE 12—SEVEN-YEAR TOTAL SPECIES AND STOCK-SPECIFIC TAKE AUTHORIZED FROM ACOUSTIC AND EXPLOSIVE
SOUND SOURCE EFFECTS FOR ALL TESTING ACTIVITIES
7-year total
Species
Stock
Level B
Blue whale * ..................................................................
Bryde’s whale † .............................................................
Fin whale * ....................................................................
Humpback whale † .......................................................
Minke whale ..................................................................
Sei whale * ....................................................................
Gray whale † .................................................................
Sperm whale * ...............................................................
Dwarf sperm whale .......................................................
Pygmy sperm whale .....................................................
Kogia whales ................................................................
Baird’s beaked whale ...................................................
Blainville’s beaked whale .............................................
Cuvier’s beaked whale .................................................
Longman’s beaked whale .............................................
Mesoplodon species (beaked whale guild) ..................
Bottlenose dolphin ........................................................
False killer whale † .......................................................
Fraser’s dolphin ............................................................
Killer whale ...................................................................
Long-beaked common dolphin .....................................
Melon-headed whale ....................................................
Northern right whale dolphin ........................................
Pacific white-sided dolphin ...........................................
Pantropical spotted dolphin ..........................................
Pygmy killer whale ........................................................
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Risso’s dolphin .............................................................
Rough-toothed dolphin .................................................
Short-beaked common dolphin ....................................
Short-finned pilot whale ................................................
Spinner dolphin .............................................................
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Central North Pacific ....................................................
Eastern North Pacific ....................................................
Eastern Tropical Pacific ................................................
Hawaiian † ....................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
CA/OR/WA† ..................................................................
Central North Pacific ....................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Eastern North Pacific ....................................................
Hawaiian .......................................................................
Eastern North Pacific ....................................................
Western North Pacific † ................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
California Coastal .........................................................
CA/OR & WA Offshore .................................................
Hawaiian Pelagic ..........................................................
Kauai & Niihau ..............................................................
Oahu .............................................................................
4-Island .........................................................................
Hawaii ...........................................................................
Hawaii Pelagic ..............................................................
Main Hawaiian Islands Insular † ...................................
Northwestern Hawaiian Islands ....................................
Hawaiian .......................................................................
Eastern North Pacific Offshore .....................................
Eastern North Pacific Transient/West Coast Transient
Hawaiian .......................................................................
California .......................................................................
Hawaiian Islands ..........................................................
Kohala Resident ...........................................................
CA/OR/WA ....................................................................
CA/OR/WA ....................................................................
Hawaii Island ................................................................
Hawaii Pelagic ..............................................................
Oahu .............................................................................
4-Island .........................................................................
Hawaiian .......................................................................
Tropical .........................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaiian .......................................................................
NSD 1 ............................................................................
CA/OR/WA ....................................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
Hawaii Island ................................................................
Frm 00078
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10JYR3
93
5,679
97
278
6,662
108
4,961
23,750
1,855
9,822
178
329
13,077
15
7,409
5,269
43,374
17,396
20,766
4,841
11,455
30,180
3,784
41,965
16,383
11,158
158,700
8,469
3,091
3,230
1,129
260
2,287
1,256
837
85,193
236
438
279
805,063
7,678
1,119
280,066
213,380
9,568
24,805
1,349
2,513
18,347
1,928
339,334
19,027
14,851
0
3,795,732
6,253
29,269
1,394
Level A
0
0
0
0
7
0
0
19
0
7
0
0
9
0
0
0
197
83
94
0
0
28
0
0
15
0
8
0
0
0
0
0
0
0
0
9
0
0
0
34
0
0
22
14
0
0
0
0
0
0
24
0
0
0
304
0
0
0
41857
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TABLE 12—SEVEN-YEAR TOTAL SPECIES AND STOCK-SPECIFIC TAKE AUTHORIZED FROM ACOUSTIC AND EXPLOSIVE
SOUND SOURCE EFFECTS FOR ALL TESTING ACTIVITIES—Continued
7-year total
Species
Stock
Level B
Striped dolphin ..............................................................
Dall’s porpoise ..............................................................
California sea lion .........................................................
Guadalupe fur seal * .....................................................
Northern fur seal ...........................................................
Harbor seal ...................................................................
Hawaiian monk seal * ...................................................
Northern elephant seal .................................................
Hawaii Pelagic ..............................................................
Kauai & Niihau ..............................................................
Oahu & 4-Island ...........................................................
CA/OR/WA ....................................................................
Hawaiian .......................................................................
CA/OR/WA ....................................................................
U.S. ...............................................................................
Mexico ..........................................................................
California .......................................................................
California .......................................................................
Hawaiian .......................................................................
California .......................................................................
9,534
9,277
1,987
371,328
16,270
115,353
334,332
6,167
36,921
15,898
372
151,754
Level A
0
0
0
20
0
478
36
0
7
12
0
187
* ESA-listed species (all stocks) within the HSTT Study Area.
† Only designated stocks are ESA-listed.
1 NSD: No stock designation.
Authorized Take From Vessel Strikes
and Explosives by Serious Injury or
Mortality
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Vessel Strike
Vessel strikes from commercial,
recreational, and military vessels are
known to affect large whales and have
resulted in serious injury and occasional
fatalities to cetaceans (BermanKowalewski et al., 2010; Calambokidis,
2012; Douglas et al., 2008; Laggner
2009; Lammers et al., 2003). Records of
collisions date back to the early 17th
century, and the worldwide number of
collisions appears to have increased
steadily during recent decades (Laist et
al., 2001; Ritter 2012).
Numerous studies of interactions
between surface vessels and marine
mammals have demonstrated that freeranging marine mammals often, but not
always (e.g., McKenna et al., 2015),
engage in avoidance behavior when
surface vessels move toward them. It is
not clear whether these responses are
caused by the physical presence of a
surface vessel, the underwater noise
generated by the vessel, or an
interaction between the two (Amaral
and Carlson, 2005; Au and Green, 2000;
Bain et al., 2006; Bauer 1986; Bejder et
al., 1999; Bejder and Lusseau, 2008;
Bejder et al., 2009; Bryant et al., 1984;
Corkeron, 1995; Erbe, 2002; Fe´lix, 2001;
Goodwin and Cotton, 2004; Lemon et
al., 2006; Lusseau, 2003; Lusseau, 2006;
Magalhaes et al., 2002; Nowacek et al.,
2001; Richter et al., 2003; Scheidat et
al., 2004; Simmonds, 2005; Watkins,
1986; Williams et al., 2002; Wursig et
al., 1998). Several authors suggest that
the noise generated during motion is
probably an important factor (Blane and
Jaakson, 1994; Evans et al., 1992; Evans
et al., 1994). Water disturbance may also
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be a factor. These studies suggest that
the behavioral responses of marine
mammals to surface vessels are similar
to their behavioral responses to
predators. Avoidance behavior is
expected to be even stronger in the
subset of instances during which the
Navy is conducting training or testing
activities using active sonar or
explosives.
The marine mammals most vulnerable
to vessel strikes are those that spend
extended periods of time at the surface
in order to restore oxygen levels within
their tissues after deep dives (e.g., sperm
whales). In addition, some baleen
whales seem generally unresponsive to
vessel sound, making them more
susceptible to vessel collisions
(Nowacek et al., 2004). These species
are primarily large, slow moving
whales.
Some researchers have suggested the
relative risk of a vessel strike can be
assessed as a function of animal density
and the magnitude of vessel traffic (e.g.,
Fonnesbeck et al., 2008; Vanderlaan et
al., 2008). Differences among vessel
types also influence the probability of a
vessel strike. The ability of any ship to
detect a marine mammal and avoid a
collision depends on a variety of factors,
including environmental conditions,
ship design, size, speed, and ability and
number of personnel observing, as well
as the behavior of the animal. Vessel
speed, size, and mass are all important
factors in determining if injury or death
of a marine mammal is likely due to a
vessel strike. For large vessels, speed
and angle of approach can influence the
severity of a strike. For example,
Vanderlaan and Taggart (2007) found
that between vessel speeds of 8.6 and 15
knots, the probability that a vessel strike
is lethal increases from 0.21 to 0.79.
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Large whales also do not have to be at
the water’s surface to be struck. Silber
et al. (2010) found when a whale is
below the surface (about one to two
times the vessel draft), there is likely to
be a pronounced propeller suction
effect. This suction effect may draw the
whale into the hull of the ship,
increasing the probability of propeller
strikes.
There are some key differences
between the operation of military and
non-military vessels, which make the
likelihood of a military vessel striking a
whale lower than some other vessels
(e.g., commercial merchant vessels). Key
differences include:
• Many military ships have their
bridges positioned closer to the bow,
offering better visibility ahead of the
ship (compared to a commercial
merchant vessel).
• There are often aircraft associated
with the training or testing activity
(which can serve as Lookouts), which
can more readily detect cetaceans in the
vicinity of a vessel or ahead of a vessel’s
present course before crew on the vessel
would be able to detect them.
• Military ships are generally more
maneuverable than commercial
merchant vessels, and if cetaceans are
spotted in the path of the ship, could be
capable of changing course more
quickly.
• The crew size on military vessels is
generally larger than merchant ships,
allowing for stationing more trained
Lookouts on the bridge. At all times
when vessels are underway, trained
Lookouts and bridge navigation teams
are used to detect objects on the surface
of the water ahead of the ship, including
cetaceans. Additional Lookouts, beyond
those already stationed on the bridge
and on navigation teams, are positioned
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as Lookouts during some training
events.
• When submerged, submarines are
generally slow moving (to avoid
detection) and therefore marine
mammals at depth with a submarine are
likely able to avoid collision with the
submarine. When a submarine is
transiting on the surface, there are
Lookouts serving the same function as
they do on surface ships.
Vessel strike to marine mammals is
not associated with any specific training
or testing activity but is rather an
extremely limited and sporadic, but
possible, accidental result of Navy
vessel movement within the HSTT
Study Area or while in transit.
There have been two recorded Navy
vessel strikes of large whales in the
HSTT Study Area from 2009 through
2018, the period in which the Navy
began implementing effective mitigation
measures to reduce the likelihood of
vessel strikes. Both strikes occurred in
2009 and both were to fin whales. In
order to account for the accidental
nature of vessel strikes to large whales
in general, and the potential risk from
any vessel movement within the HSTT
Study Area within the seven-year period
in particular, the Navy requested
incidental takes based on probabilities
derived from a Poisson distribution
using ship strike data between 2009–
2018 in the HSTT Study Area (the time
period from when current mitigations
were instituted until the Navy
conducted the analysis for the 2019
Navy application), as well as historical
at-sea days in the HSTT Study Area
from 2009–2018 and estimated potential
at-sea days for the period from 2018 to
2025 covered by the requested
regulations. This distribution predicted
the probabilities of a specific number of
strikes (n=0, 1, 2, etc.) over the period
from 2018 to 2025. The analysis for the
period of 2018 to 2023 is described in
detail in Chapter 6 of the 2017 Navy
application and has been updated for
this seven-year rulemaking.
For the same reasons listed above,
describing why a Navy vessel strike is
comparatively unlikely, it is highly
unlikely that a Navy vessel would strike
a whale, dolphin, porpoise, or pinniped
without detecting it and, accordingly,
NMFS is confident that the Navy’s
reported strikes are accurate and
appropriate for use in the analysis.
Specifically, Navy ships have multiple
Lookouts, including on the forward part
of the ship that can visually detect a hit
animal, in the unlikely event ship
personnel do not feel the strike. Unlike
the situation for non-Navy ships
engaged in commercial activities, NMFS
and the Navy have no evidence that the
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Navy has struck a whale and not
detected it. 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
chain of command give NMFS a high
level of confidence that all strikes
actually get reported.
The Navy used the two fin whale
strikes in their calculations to determine
the number of strikes likely to result
from their activities (although
worldwide strike information, from all
Navy activities and other sources, was
used to inform the species that may be
struck) and evaluated data beginning in
2009, as that was the start of the Navy’s
Marine Species Awareness Training and
adoption of additional mitigation
measures to address ship strike, which
will remain in place along with
additional mitigation measures during
the seven years of this rule. The
probability analysis concluded that
there was a 22 percent chance that no
whales would be struck by Navy vessels
over the seven-year period, and a 33, 25,
13, and 5 percent chance that one, two,
three, or four whales, respectively,
would be struck over the seven-year
period. All other alternatives (i.e. one,
two, three, or more whales) represent a
78 percent chance that at least one
whale would be struck over the sevenyear period. Therefore, the Navy
estimates, and NMFS agrees, that there
is some probability that the Navy could
strike, and take by serious injury or
mortality, up to three large whales
incidental to training and testing
activities within the HSTT Study Area
over the course of the seven years.
The probability of the Navy striking
up to three large whales over the sevenyear period (which is a 13 percent
chance) as analyzed for this final rule
using updated Navy vessel strike data
and at-sea days is very close to the
probability of the Navy striking up to
three large whales over five years
(which was a 10 percent chance). As the
probability of striking three large whales
does not differ significantly from the
2018 HSTT final rule, and the
probability of striking four large whales
over seven years remains very low to the
point of being unlikely (less than 5
percent), the Navy has requested, and
we are authorizing no change in the
number of takes by serious injury or
mortality due to vessel strikes.
Small whales, delphinids, porpoises,
and pinnipeds are not expected to be
struck by Navy vessels. In addition to
the reasons listed above that make it
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unlikely that the Navy will hit a large
whale (more maneuverable ships, larger
crew, etc.), the following are the
additional reasons that vessel strike of
dolphins, small whales, porpoises, and
pinnipeds is considered very unlikely.
Dating back more than 20 years and for
as long as it has kept records, the Navy
has no records of individuals of these
groups being struck by a vessel as a
result of Navy activities and, further,
these species’ smaller size and
maneuverability make a strike unlikely.
Also, NMFS has never received any
reports from other authorized activities
indicating that these species have been
struck by vessels. Worldwide ship strike
records show little evidence of strikes of
these groups from the shipping sector
and larger vessels, and the majority of
the Navy’s activities involving fastermoving vessels (that could be
considered more likely to hit a marine
mammal) are located in offshore areas
where smaller delphinid, porpoise, and
pinniped densities are lower. Based on
this information, NMFS concurs with
the Navy’s assessment and recognizes
the potential for incidental take by
vessel strike of large whales only (i.e.,
no dolphins, small whales, porpoises, or
pinnipeds) over the course of the sevenyear regulations from training and
testing activities as discussed further
below.
As noted in the 2018 HSTT proposed
and final rules, in the 2017 Navy
application the Navy initially
considered a weight of evidence
approach that considered relative
abundance, historical strike data over
many years, and the overlap of Navy
activities with the stock distribution in
their request. NMFS and the Navy
further discussed the available
information and considered two factors
in addition to those considered in the
Navy’s request: (1) The relative
likelihood of hitting one stock versus
another based on available strike data
from all vessel types as denoted in the
SARs and (2) whether the Navy has ever
definitively struck an individual from a
particular stock and, if so, how many
times. For this seven-year rule, we have
reconsidered these two factors and
updated the analysis with the Navy’s
seven-year ship strike probability
analysis and any new/updated ship
strike data from the SARs.
To address number (1) above, NMFS
compiled information from NMFS’
SARs on detected annual rates of large
whale serious injury or mortality from
vessel collisions (Table 13). The annual
rates of large whale serious injury or
mortality from vessel collisions from the
SARs help inform the relative
susceptibility of large whale species to
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vessel strike in SOCAL and Hawaii as
recorded systematically over the last
five years (the period used for the
SARs). We summed the annual rates of
serious injury or mortality from vessel
collisions as reported in the SARs, then
divided each species’ annual rate by this
sum to get the proportion of strikes for
each species/stock. To inform the
likelihood of striking a particular
species of large whale, we multiplied
the proportion of strikes for each species
by the probability of striking a whale
(i.e., 78 percent, as described by the
Navy’s probability analysis above). We
also estimated the percent likelihood of
striking a particular species of large
whale twice by squaring the value
estimated for the probability of striking
a particular species of whale once (i.e.,
generally, to calculate the probability of
an event occurring twice, multiply the
probability of the first event by the
second). We note that these probabilities
vary from year to year as the average
annual mortality for a given five-year
window in the SAR changes (and we
include the annual averages from 2017
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and 2018 SARs in Table 13 to illustrate),
however, over the years and through
changing SARs, stocks tend to
consistently maintain a relatively higher
or relatively lower likelihood of being
struck.
The probabilities calculated as
described above are then considered in
combination with the information
indicating the species that the Navy has
definitively hit in the HSTT Study Area
since 1991 (since they started tracking
consistently), as well as the information
originally considered by the Navy in
their 2017 application, which includes
relative abundance, total recorded
strikes, and the overlay of all of this
information with the Navy’s Study Area.
We note that for all of the take of species
specifically denoted in Table 13 below,
19 percent of the individuals struck
overall by any vessel type remained
unidentified and 36 percent of those
struck by the Navy (5 of 14 in the
Pacific) remain unidentified. However,
given the information on known species
or stocks struck, the analysis below
remains appropriate. We also note that
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41859
Rockwood et al. (2017) modeled the
likely vessel strike of blue whales, fin
whales, and humpback whales on the
U.S. West Coast (discussed in more
detail in the Serious Injury or Mortality
subsection of the Analysis and
Negligible Impact Determination
section), and those numbers help inform
the relative likelihood that the Navy
will hit those stocks.
For each indicated stock, Table 13
includes the percent likelihood of
hitting an individual whale once based
on SAR data, total strikes from Navy
vessels and from all other vessels,
relative abundance, and modeled vessel
strikes from Rockwood et al. (2017). The
last column indicates the annual
mortality that has the reasonable
potential to occur and is authorized:
Those stocks with one serious injury or
mortality (M/SI) take authorized over
the seven-year period of the rule are
shaded lightly, while those with two M/
SI takes that have the potential to occur
and are authorized over the seven-year
period of the rule are shaded more
darkly.
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Accordingly, stocks that have no
record of ever having been struck by any
vessel are considered unlikely to be
struck by the Navy in the seven-year
period of the rule. Stocks that have
never been struck by the Navy, have
rarely been struck by other vessels, and
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have a low percent likelihood based on
the SAR calculation and a low relative
abundance are also considered unlikely
to be struck by the Navy during the
seven years covered by this rule. We
note that while vessel strike records
have not differentiated between Eastern
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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
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encountered, much less struck. This
rules out all but six stocks.
Three of the six stocks (CA/OR/WA
stock of fin whale, Eastern North Pacific
stock of gray whale, and Central North
Pacific stock of humpback whale) are
the only stocks to have been hit more
than one time each by the Navy in the
HSTT Study Area, have the three
highest total strike records (21, 35, and
58 respectively), have three of the four
highest percent likelihoods based on the
SAR records, have three of the four
significantly higher relative abundances,
and have up to a 3.4 percent likelihood
of being struck twice based on NMFS’
SAR calculation (not shown in Table 13,
but proportional to percent likelihood of
being struck once). Based on all of these
factors, it is considered reasonably
likely that these stocks could be struck
twice during the seven-year rule.
Based on the information summarized
in Table 13, and the fact that there is the
potential for up to three large whales to
be struck, it is considered reasonably
likely that one individual from the
remaining three stocks could be one of
the three whales struck. Sperm whales
have only been struck a total of two
times by any vessel type in the whole
HSTT Study Area, however, the Navy
struck a sperm whale once in Hawaii
prior to 2009 and the relative abundance
of sperm whales in Hawaii is the highest
of any of the stocks present. Therefore,
we consider it reasonably likely that the
Hawaii stock of sperm whales could be
struck once during the seven-year rule.
The total strikes of Eastern North Pacific
blue whales, the percent likelihood of
striking one based on the SAR
calculation, and their relative
abundance can all be considered
moderate compared to other stocks, and
the Navy has struck one in the past prior
to 2009 (with the likelihood of striking
two based on the SAR calculation being
below one percent). Therefore, we
consider it reasonably likely that the
Navy could strike one individual over
the course of the seven-year rule. The
Navy has not hit a humpback whale in
the HSTT Study Area and the relative
abundance of the CA/OR/WA stock is
very low. However, a U.S. Coast Guard
vessel escorting a Navy vessel struck a
humpback whale in the Northwest
(outside of the HSTT Study Area) and
as a species, humpback whales have a
moderate to high number of total strikes
and percent likelihood of being struck.
Although the likelihood of CA/OR/WA
humpback whales being struck overall
is moderate to high relative to other
stocks, the distribution of the Mexico
DPS versus the Central America DPS, as
well as the distribution of overall vessel
strikes inside versus outside of the
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SOCAL area (the majority are outside),
supports the reasonable likelihood that
the Navy could strike one individual
humpback whale from the CA/OR/WA
stock (not two), and that that individual
would be highly likely to be from the
Mexico DPS, as described below.
Specifically, regarding the likelihood
of striking a humpback whale from a
particular DPS, as suggested in Wade et
al. (2016), the probability of
encountering (which is thereby applied
to striking) humpback whales from each
DPS in the CA/OR area is 89.6 percent
and 19.7 percent for the Mexico and
Central America DPSs, respectively
(note that these percentages reflect the
upper limit of the 95 percent confidence
interval to reduce the likelihood of
underestimating take, and thereby do
not total to 100). This suggests that the
chance of striking a humpback whale
from the Central America DPS is one
tenth to one fifth of the overall chance
of hitting a CA/OR/WA humpback
whale in general in the SOCAL part of
the HSTT Study Area, which in
combination with the fact that no
humpback whale has been struck in
SOCAL makes it highly unlikely, and
thereby no strikes of whales from the
Central America DPS are anticipated or
authorized. If a humpback whale were
struck in SOCAL, it is likely it would be
of the Mexico DPS. However, regarding
the overall likelihood of striking a
humpback whale at all and the likely
number of times, we note that the
majority of strikes of the CA/OR/WA
humpback whale stock (i.e., the
numbers reflected in Table 13) take
place outside of SOCAL. Whereas the
comparative DPS numbers cited above
apply in the California and Oregon
feeding area and in the Washington and
Southern British Columbia feeding area,
Wade et al. (2016) suggest that 52.9,
41.9, and 14.7 percent of humpback
whales encountered will come from the
Hawaii, Mexico, and Central America
DPSs, respectively. This means that the
numbers in Table 13 indicating the
overall strikes of CA/OR/WA humpback
whales and SAR calculations based on
average annual mortality over the last
five years are actually lower than
indicated for the Mexico DPS, which
would only be a subset of those
mortalities. Lastly, the Rockwood et al.
paper supports a relative likelihood of
1:1:2 for striking blue whales,
humpback whales, and fin whales off
the U.S. West Coast, which supports the
authorized take included in this rule,
which is 1, 1, and 2, respectively over
the seven-year period. For these reasons,
one M/SI take of CA/OR/WA humpback
whales, which would be expected to be
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41861
of the Mexico DPS, could reasonably
likely occur and is authorized.
Accordingly, the Navy has requested,
and NMFS authorizes, take by M/SI
from vessel strike of up to two of any
of the following species/stocks in the
seven-year period: Gray whale (Eastern
North Pacific stock), fin whale (CA/OR/
WA stock), humpback whale (Central
North Pacific stock); and one of any of
the following species/stocks in the
seven-year period: Blue whale (Eastern
North Pacific stock), humpback whale
(CA/OR/WA stock, Mexico DPS), or
sperm whale (Hawaii stock).
As described above, the Navy analysis
suggests, and NMFS analysis concurs,
that vessel strikes to the stocks below
are very unlikely to occur due to the
stocks’ relatively low occurrence in the
HSTT Study Area, particularly in core
HSTT training and testing subareas, and
the fact that the stocks have not been
struck by the Navy and are rarely, if
ever, recorded struck by other vessels.
Therefore, the Navy is not requesting
lethal take authorization, and NMFS is
not authorizing lethal take, for the
following stocks: Bryde’s whale (Eastern
Tropical Pacific stock), Bryde’s whale
(Hawaii stock), humpback whale (CA/
OR/WA stock, Central America DPS),
minke whale (CA/OR/WA stock), minke
whale (Hawaii stock), sei whale (Hawaii
stock), sei whale (Eastern North Pacific
stock), and sperm whale (CA/OR/WA
stock).
In conclusion, although it is generally
unlikely that any whales will be struck
in a year, based on the information and
analysis above, NMFS anticipates that
no more than three whales have the
potential to be taken by M/SI over the
seven-year period of the rule, and that
those three whales may include no more
than two of any of the following stocks:
Gray whale (Eastern North Pacific
stock), fin whale (CA/OR/WA stock),
and humpback whale (Central North
Pacific stock); and no more than one of
any of the following stocks: Blue whale
(Eastern North Pacific stock), humpback
whale (CA/OR/WA, Mexico DPS), and
sperm whale (Hawaii stock).
Accordingly, NMFS has evaluated
under the negligible impact standard the
M/SI of 0.14 or 0.29 whales annually
from each of these species or stocks (i.e.,
1 or 2 takes, respectively, divided by
seven years to get the annual number),
along with the expected incidental takes
by harassment.
Explosives
The Navy’s model and quantitative
analysis process used for the 2018 HSTT
FEIS/OEIS and in the Navy’s 2017 and
2019 applications to estimate potential
exposures of marine mammals to
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explosive stressors is detailed in the
technical report titled ‘‘Quantifying
Acoustic Impacts on Marine Mammals
and Sea Turtles: Methods and
Analytical Approach for Phase III
Training and Testing’’ (U.S. Department
of the Navy, 2018). Specifically, over the
course of a modelled maximum year of
training and testing, the Navy’s model
and quantitative analysis process
estimates M/SI of two short-beaked
common dolphins and one California
sea lion as a result of exposure to
explosive training and testing activities
(please see Section 6 of the 2017 Navy
application where it is explained how
maximum annual estimates are
calculated). Over the five-year period of
the 2018 HSTT regulations, mortality of
6 short-beaked common dolphins and 4
California sea lions was estimated and
authorized (10 marine mammals in
total) as a result of exposure to
explosive training and testing activities.
In extending the same training and
testing activities for an additional two
years, over the seven-year period of the
regulations M/SI of 8 short-beaked
common dolphins and 5 California sea
lions (13 marine mammals in total) is
estimated as a result of exposure to
explosive training and testing activities,
and is therefore authorized. As
explained in the aforementioned
Analytical Approach technical report,
expected impacts were calculated
considering spatial and seasonal
differences in model inputs, as well as
the expected variation in the number of
training and testing events from year to
year, described as representative and
maximum levels of activity. The
summed impacts over any multi-year
period, therefore, are the expected value
for impacts over that time period rather
than a multiple of a single maximum
year’s impacts. Therefore, calculating
the seven-year total is not a matter of
simply multiplying the annual estimate
by seven, as the total amount of
estimated mortalities over the seven
years covered by the 2019 Navy
application is less than the sum total of
each year. As explained earlier,
although the annual estimates are based
on the maximum number of activities
per year and therefore the maximum
estimated takes, the seven-year total
take estimates are based on the sum of
three maximum years and four
representative years. NMFS coordinated
with the Navy in the development of
their take estimates and concurs with
the Navy’s approach for estimating the
number of animals from each species or
stock that could be taken by M/SI from
explosives.
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Mitigation Measures
Under section 101(a)(5)(A) of the
MMPA, NMFS must set forth the
permissible methods of taking pursuant
to the activity, and other means of
effecting the least practicable adverse
impact on the species or stock(s) and its
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of the species or stock(s) for
subsistence uses (‘‘least practicable
adverse impact’’). NMFS does not have
a regulatory definition for least
practicable adverse impact. The 2004
NDAA amended the MMPA as it relates
to military readiness activities and the
incidental take authorization process
such that a determination of ‘‘least
practicable adverse impact’’ shall
include consideration of personnel
safety, practicality of implementation,
and impact on the effectiveness of the
military readiness activity. For the full
discussion of how NMFS interprets least
practicable adverse impact, including
how it relates to the negligible-impact
standard, see the Mitigation Measures
section in the 2018 HSTT final rule.
Section 101(a)(5)(A)(i)(II) requires
NMFS to issue, in conjunction with its
authorization, binding—and
enforceable—restrictions (in the form of
regulations) setting forth how the
activity must be conducted, thus
ensuring the activity has the ‘‘least
practicable adverse impact’’ on the
affected species or stocks. In situations
where mitigation is specifically needed
to reach a negligible impact
determination, section 101(a)(5)(A)(i)(II)
also provides a mechanism for ensuring
compliance with the ‘‘negligible
impact’’ requirement. Finally, the least
practicable adverse impact standard also
requires consideration of measures for
marine mammal habitat, with particular
attention to rookeries, mating grounds,
and other areas of similar significance,
and for subsistence impacts, whereas
the negligible impact standard is
concerned solely with conclusions
about the impact of an activity on
annual rates of recruitment and
survival.4 In evaluating what mitigation
measures are appropriate, NMFS
considers the potential impacts of the
Specified Activities, the availability of
measures to minimize those potential
impacts, and the practicability of
implementing those measures, as we
describe below.
4 Outside of the military readiness context,
mitigation may also be appropriate to ensure
compliance with the ‘‘small numbers’’ language in
MMPA sections 101(a)(5)(A) and (D).
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Implementation of Least Practicable
Adverse Impact Standard
Our evaluation of potential mitigation
measures includes consideration of two
primary factors:
(1) The manner in which, and the
degree to which, implementation of the
potential measure(s) is expected to
reduce adverse impacts to marine
mammal species or stocks, their habitat,
and their availability for subsistence
uses (where relevant). This analysis
considers such things as the nature of
the potential adverse impact (such as
likelihood, scope, and range), the
likelihood that the measure will be
effective if implemented, and the
likelihood of successful
implementation; and
(2) The practicability of the measures
for applicant implementation.
Practicability of implementation may
consider such things as cost, impact on
activities, and, in the case of a military
readiness activity, under section
101(a)(5)(A)(ii) specifically considers
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
While the language of the least
practicable adverse impact standard
calls for minimizing impacts to affected
species or stocks, we recognize that the
reduction of impacts to those species or
stocks accrues through the application
of mitigation measures that limit
impacts to individual animals.
Accordingly, NMFS’ analysis focuses on
measures that are designed to avoid or
minimize impacts on individual marine
mammals that are likely to increase the
probability or severity of populationlevel effects.
While direct evidence of impacts to
species or stocks from a specified
activity is rarely available, and
additional study is still needed to
understand how specific disturbance
events affect the fitness of individuals of
certain species, there have been
improvements in understanding the
process by which disturbance effects are
translated to the population. With
recent scientific advancements (both
marine mammal energetic research and
the development of energetic
frameworks), the relative likelihood or
degree of impacts on species or stocks
may often be inferred given a detailed
understanding of the activity, the
environment, and the affected species or
stocks—and the best available science
has been used here. This same
information is used in the development
of mitigation measures and helps us
understand how mitigation measures
contribute to lessening effects (or the
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risk thereof) to species or stocks. We
also acknowledge that there is always
the potential that new information, or a
new recommendation could become
available in the future and necessitate
reevaluation of mitigation measures
(which may be addressed through
adaptive management) to see if further
reductions of population impacts are
possible and practicable.
In the evaluation of specific measures,
the details of the specified activity will
necessarily inform each of the two
primary factors discussed above
(expected reduction of impacts and
practicability), and are carefully
considered to determine the types of
mitigation that are appropriate under
the least practicable adverse impact
standard. Analysis of how a potential
mitigation measure may reduce adverse
impacts on a marine mammal stock or
species, consideration of personnel
safety, practicality of implementation,
and consideration of the impact on
effectiveness of military readiness
activities are not issues that can be
meaningfully evaluated through a yes/
no lens. The manner in which, and the
degree to which, implementation of a
measure is expected to reduce impacts,
as well as its practicability in terms of
these considerations, can vary widely.
For example, a time/area restriction
could be of very high value for
decreasing population-level impacts
(e.g., avoiding disturbance of feeding
females in an area of established
biological importance) or it could be of
lower value (e.g., decreased disturbance
in an area of high productivity but of
less firmly established biological
importance). Regarding practicability, a
measure might involve restrictions in an
area or time that impede the Navy’s
ability to certify a strike group (higher
impact on mission effectiveness), or it
could mean delaying a small in-port
training event by 30 minutes to avoid
exposure of a marine mammal to
injurious levels of sound (lower impact).
A responsible evaluation of ‘‘least
practicable adverse impact’’ will
consider the factors along these realistic
scales. Accordingly, the greater the
likelihood that a measure will
contribute to reducing the probability or
severity of adverse impacts to the
species or stock or its habitat, the greater
the weight that measure is given when
considered in combination with
practicability to determine the
appropriateness of the mitigation
measure, and vice versa. In the
evaluation of specific measures, the
details of the specified activity will
necessarily inform each of the two
primary factors discussed above
(expected reduction of impacts and
practicability), and will be carefully
considered to determine the types of
mitigation that are appropriate under
the least practicable adverse impact
standard. For more detail on how we
apply these factors, see the discussion
in the Mitigation Measures section of
the 2018 HSTT final rule.
NMFS fully reviewed the Navy’s
specified activities and the mitigation
measures for the 2018 HSTT rulemaking
and determined that the mitigation
measures would result in the least
practicable adverse impact on marine
mammals. There is no change in either
the activities or the mitigation measures
for this rule. See the 2019 Navy
application and the 2018 HSTT final
rule for detailed information on the
Navy’s mitigation measures. NMFS
worked with the Navy in the
development of the Navy’s initially
proposed measures, which were
informed by years of implementation
and monitoring. A complete discussion
of the Navy’s evaluation process used to
develop, assess, and select mitigation
measures, which was informed by input
from NMFS, can be found in Chapter 5
(Mitigation) of the 2018 HSTT FEIS/
OEIS. The process described in Chapter
5 (Mitigation) of the 2018 HSTT FEIS/
OEIS robustly supported NMFS’
independent evaluation of whether the
mitigation measures would meet the
41863
least practicable adverse impact
standard. The Navy has implemented
the mitigation measures under the 2018
HSTT regulations and will be required
to continue implementation of the
mitigation measures identified in this
rule for the full seven years it covers to
avoid or reduce potential impacts from
acoustic, explosive, and physical
disturbance and ship strike stressors.
In its 2019 application, the Navy
proposed no changes to the mitigation
measures in the 2018 HSTT final rule
and there is no new information that
affects NMFS’ assessment of the
applicability or effectiveness of those
measures over the new seven-year
period. See the 2018 HSTT proposed
rule and the 2018 HSTT final rule for
our full assessment of these measures.
In summary, the Navy has agreed to
procedural mitigation measures that
will reduce the probability and/or
severity of impacts expected to result
from acute exposure to acoustic sources
or explosives, ship strike, and impacts
to marine mammal habitat. Specifically,
the Navy will use a combination of
delayed starts, powerdowns, and
shutdowns to minimize or avoid 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 also implement multiple
time/area restrictions (several of which
were added in the 2018 HSTT final rule
since the previous HSTT MMPA
incidental take rule) that will reduce
take of marine mammals in areas or at
times where they are known to engage
in important behaviors, such as feeding
or calving, where the disruption of those
behaviors would have a higher
probability of resulting in impacts on
reproduction or survival of individuals
that could lead to population-level
impacts. Summaries of the Navy’s
procedural mitigation measures and
mitigation areas for the HSTT Study
Area are provided in Tables 14 and 15.
TABLE 14—SUMMARY OF PROCEDURAL MITIGATION
Stressor or activity
Mitigation zone sizes and other requirements
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Environmental Awareness and Education ...............................
Active Sonar .............................................................................
Air Guns ...................................................................................
Pile Driving ...............................................................................
Weapons Firing Noise ..............................................................
Explosive Sonobuoys ...............................................................
Explosive Torpedoes ................................................................
Explosive Medium-Caliber and Large-Caliber Projectiles ........
Explosive Missiles and Rockets ...............................................
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• Afloat Environmental Compliance Training program for applicable personnel.
Depending on sonar source:
• 1,000 yd power down, 500 yd power down, and 200 yd shut down.
• 200 yd shut down.
• 150 yd.
• 100 yd.
• 30 degrees on either side of the firing line out to 70 yd.
• 600 yd.
• 2,100 yd.
• 1,000 yd (large-caliber projectiles).
• 600 yd (medium-caliber projectiles during surface-to-surface activities).
• 200 yd (medium-caliber projectiles during air-to-surface activities).
• 2,000 yd (21–500 lb net explosive weight).
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TABLE 14—SUMMARY OF PROCEDURAL MITIGATION—Continued
Stressor or activity
Mitigation zone sizes and other requirements
Explosive Bombs ......................................................................
Sinking Exercises .....................................................................
Explosive Mine Countermeasure and Neutralization Activities
Explosive Mine Neutralization Activities Involving Navy Divers
Underwater Demolition Multiple Charge—Mat Weave and
Obstacle Loading.
Maritime Security Operations—Anti-Swimmer Grenades ........
Vessel Movement .....................................................................
Towed In-Water Devices ..........................................................
Small-, Medium-, and Large-Caliber Non-Explosive Practice
Munitions.
Non-Explosive Missiles and Rockets .......................................
Non-Explosive Bombs and Mine Shapes ................................
•
•
•
•
•
•
900 yd (0.6–20 lb net explosive weight).
2,500 yd.
2.5 nmi.
2,100 yd (6–650 lb net explosive weight).
600 yd (0.1–5 lb net explosive weight).
1,000 yd (21–60 lb net explosive weight for positive control charges and
charges using time-delay fuses).
• 500 yd (0.1–20 lb net explosive weight for positive control charges).
• 700 yd.
•
•
•
•
•
200
500
200
250
200
yd.
yd (whales).
yd (other marine mammals).
yd (marine mammals).
yd.
• 900 yd.
• 1,000 yd.
Notes: lb: pounds; nmi: nautical miles; yd: yards.
TABLE 15—SUMMARY OF MITIGATION AREAS FOR MARINE MAMMALS
Summary of mitigation area requirements 1
Hawaii Island Mitigation Area (year-round)
• Navy personnel must not conduct more than 300 hours of MF1 surface ship hull-mounted mid-frequency active sonar or 20 hours of MF4
dipping sonar, or use explosives that could potentially result in takes of marine mammals during training and testing.1
4-Islands Region Mitigation Area (November 15–April 15 for active sonar; year-round for explosives)
• Navy personnel must not use MF1 surface ship hull-mounted mid-frequency active sonar or explosives that could potentially result in
takes of marine mammals during training and testing.2
Humpback Whale Special Reporting Areas (December 15–April 15)
• Navy personnel must report the total hours of surface ship hull-mounted mid-frequency active sonar used in the special reporting areas
in its annual training and testing activity reports submitted to NMFS.
San Diego Arc, San Nicolas Island, and Santa Monica/Long Beach Mitigation Areas (June 1—October 31)
• Navy personnel must not conduct more than a total of 200 hours of MF1 surface ship hull-mounted mid-frequency active sonar in the
combined areas, excluding normal maintenance and systems checks, during training and testing.1
• Within the San Diego Arc Mitigation Area, Navy personnel must not use explosives that could potentially result in the take of marine
mammals during large-caliber gunnery, torpedo, bombing, and missile (including 2.75 inch rockets) activities during training and testing.1
• Within the San Nicolas Island Mitigation Area, Navy personnel must not use explosives that could potentially result in the take of marine
mammals during mine warfare, large-caliber gunnery, torpedo, bombing, and missile (including 2.75 inch rockets) activities during training.1
• Within the Santa Monica/Long Beach Mitigation Area, Navy personnel must not use explosives that could potentially result in the take of
marine mammals during mine warfare, large-caliber gunnery, torpedo, bombing, and missile (including 2.75 inch rockets) activities during
training and testing.1
Santa Barbara Island Mitigation Area (year-round)
• Navy personnel must not use MF1 surface ship hull-mounted mid-frequency active sonar during training and testing, or explosives that
could potentially result in the take of marine mammals during medium-caliber or large-caliber gunnery, torpedo, bombing, and missile (including 2.75 inch rockets) activities during training.1
Awareness Notification Message Areas (seasonal according to species)
• Navy personnel must issue awareness notification messages to alert ships and aircraft to the possible presence of humpback whales
(November–April), blue whales (June–October), gray whales (November–March), or fin whales (November–May).
1 In the 2018 HSTT Final Rule we inadvertently included ‘‘Mitigation Areas for Shallow-water Coral Reefs and Precious Coral Beds (yearround)’’ in this table. As this mitigation area does not relate to marine mammals we have not included it here.
2 If Naval units need to conduct more than the specified amount of training or testing, they will obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with advance notification and include the information in its annual activity reports submitted to NMFS.
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Mitigation Conclusions
NMFS has carefully evaluated the
Navy’s proposed mitigation measures—
many of which were developed with
NMFS’ input during the previous
phases of Navy training and testing
authorizations and none of which have
changed since our evaluation during the
2018 HSTT rulemaking—and
considered a broad range of other
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measures (i.e., the measures considered
but eliminated in the 2018 HSTT FEIS/
OEIS, which reflect many of the
comments that have arisen via NMFS or
public input in past years) in the
context of ensuring that NMFS
prescribes the means of effecting the
least practicable adverse impact on the
affected marine mammal species and
stocks and their habitat. Our evaluation
of potential measures included
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consideration of the following factors in
relation to one another: the manner in
which, and the degree to which, the
successful implementation of the
mitigation measures is expected to
reduce the likelihood and/or magnitude
of adverse impacts to marine mammal
species and stocks and their habitat; the
proven or likely efficacy of the
measures; and the practicability of the
measures for applicant implementation,
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including consideration of personnel
safety, practicality of implementation,
and impact on the effectiveness of the
military readiness activity. There is no
new information that affects our
analysis from the 2018 HSTT
rulemaking, all of which remains
applicable and valid for our assessment
of the appropriateness of the mitigation
measures during the seven-year period
of this rule.
Based on our evaluation of the Navy’s
measures (which are being implemented
under the 2018 HSTT regulations), as
well as other measures considered by
the Navy and NMFS, NMFS has
determined that the Navy’s mitigation
measures are appropriate means of
effecting the least practicable adverse
impact on marine mammal species or
stocks and their habitat, paying
particular attention to rookeries, mating
grounds, and areas of similar
significance, and considering
specifically personnel safety,
practicality of implementation, and
impact on the effectiveness of the
military readiness activity.
Additionally, as described in more
detail below, the 2018 HSTT final rule
includes an adaptive management
provision, which NMFS has extended
for the additional two years of this rule,
which ensures that mitigation is
regularly assessed and provides a
mechanism to improve the mitigation,
based on the factors above, through
modification as appropriate. Thus,
NMFS concludes that the mitigation
measures outlined in the final rule
satisfy the statutory standard and that
any adverse impacts that remain cannot
practicably be further mitigated.
Monitoring
Section 101(a)(5)(A) of the MMPA
states that in order to authorize
incidental take for an activity, NMFS
must set forth requirements pertaining
to the monitoring and reporting of such
taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13)
indicate that requests for incidental take
authorizations must include the
suggested means of accomplishing the
necessary monitoring and reporting that
will result in increased knowledge of
the species and of the level of taking or
impacts on populations of marine
mammals that are expected to be
present.
In its 2019 application, the Navy
proposed no changes to the monitoring
described in the 2018 HSTT final rule.
They would continue implementation of
the robust Integrated Comprehensive
Monitoring Program and Strategic
Planning Process described in the 2018
HSTT final rule. The Navy’s monitoring
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strategy, currently required by the 2018
HSTT regulations and extended for two
years under this final rule, is welldesigned to work across Navy ranges to
help better understand the impacts of
the Navy’s activities on marine
mammals and their habitat by focusing
on learning more about marine mammal
occurrence in different areas and
exposure to Navy stressors, marine
mammal responses to different sound
sources, and the consequences of those
exposures and responses on marine
mammal populations. Similarly, the
seven-year regulations include identical
adaptive management provisions and
reporting requirements as the 2018
HSTT regulations. There is no new
information to indicate that the
monitoring measures put in place under
the 2018 HSTT final rule do not remain
applicable and appropriate for the
seven-year period of this rule. See the
Monitoring section of the 2018 HSTT
final rule for more details on the
monitoring that would be required
under this rule. In addition, please see
the 2019 Navy application, which
references Chapter 13 of the 2017 Navy
application for full details on the
monitoring and reporting that will be
conducted by the Navy.
Adaptive Management
The 2018 HSTT regulations governing
the take of marine mammals incidental
to Navy training and testing 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 seven-year regulations. The
2019 Navy application proposed no
changes to the adaptive management
component included in the 2018 HSTT
final rule.
The reporting requirements associated
with this rule are designed to provide
NMFS with monitoring data from the
previous year to allow NMFS to
consider whether any changes to
existing mitigation and monitoring
requirements are appropriate. The use of
adaptive management allows NMFS to
consider new information from different
sources to determine (with input from
the Navy regarding practicability) on an
annual or biennial basis if mitigation or
monitoring measures should be
modified (including additions or
deletions). Mitigation measures could be
modified if new data suggests that such
modifications would have a reasonable
likelihood of more effectively
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accomplishing the goals of the
mitigation and monitoring and if the
measures are practicable. If the
modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS will publish a notice
of the planned LOA in the Federal
Register and solicit public comment.
The following are some of the
possible sources of applicable data to be
considered through the adaptive
management process: (1) Results from
monitoring and exercises reports, as
required by MMPA authorizations; (2)
compiled results of Navy funded R&D
studies; (3) results from specific
stranding investigations; (4) results from
general marine mammal and sound
research; and (5) any information which
reveals that marine mammals may have
been taken in a manner, extent, or
number not authorized by these
regulations or subsequent LOAs. The
results from monitoring reports and
other studies may be viewed at https://
www.navymarinespeciesmonitoring.us.
Reporting
In order to issue incidental take
authorization for an activity, section
101(a)(5)(A) of the MMPA states that
NMFS must set forth requirements
pertaining to the monitoring and
reporting of such taking. Effective
reporting is critical both to compliance
as well as ensuring that the most value
is obtained from the required
monitoring. Reports from individual
monitoring events, results of analyses,
publications, and periodic progress
reports for specific monitoring projects
will be posted to the Navy’s Marine
Species Monitoring web portal: https://
www.navymarinespeciesmonitoring.us.
The 2019 Navy application proposed no
changes to the reporting requirements.
Except as discussed below, reporting
requirements would remain identical to
those described in the 2018 HSTT final
rule, and there is no new information to
indicate that the reporting requirements
put in place under the 2018 HSTT final
rule do not remain applicable and
appropriate for the seven-year period of
this final rule. See the Reporting section
of the 2018 HSTT final rule for more
details on the reporting that is required
under this rule.
In addition, the 2018 HSTT proposed
and final rules unintentionally failed to
include the requirement for the Navy to
submit a final activity ‘‘close out’’ report
at the end of the regulatory period. That
oversight is being corrected through this
rulemaking. This comprehensive
training and testing activity report will
provide the annual totals for each sound
source bin with a comparison to the
annual allowance and the seven-year
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total for each sound source bin with a
comparison to the seven-year allowance.
Additionally, if there are any changes to
the sound source allowance, this report
will include a discussion of why the
change was made and include analysis
to support how the change did or did
not affect the analysis in the 2018 HSTT
FEIS/OEIS and MMPA final rule.
Analysis and Negligible Impact
Determination
NMFS has defined negligible impact
as an impact resulting from the
specified activity that cannot be
reasonably expected to, and is not
reasonably likely to, adversely affect the
species or stock through effects on
annual rates of recruitment or survival
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of takes alone is not enough information
on which to base an impact
determination. In addition to
considering estimates of the number of
marine mammals that might be ‘‘taken’’
through mortality, serious injury, and
Level A or Level B harassment (as
presented in Tables 11 and 12), NMFS
considers other factors, such as the
likely nature of any responses (e.g.,
intensity, duration), the context of any
responses (e.g., critical reproductive
time or location, migration), as well as
effects on habitat, and the likely
effectiveness of the mitigation. We also
assess the number, intensity, and
context of estimated takes by evaluating
this information relative to population
status. Consistent with the 1989
preamble for NMFS’ implementing
regulations (54 FR 40338; September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
incorporated into this analysis via their
impacts on the environmental baseline
(e.g., as reflected in the regulatory status
of the species, population size and
growth rate where known, other ongoing
sources of human-caused mortality, and
ambient noise levels).
In the Estimated Take of Marine
Mammals sections of this final rule and
the 2018 HSTT final rule (where the
activities, species and stocks, potential
effects, and mitigation measures are the
same as for this rule), we identified the
subset of potential effects that would be
expected to rise to the level of takes
both annually and over the seven-year
period covered by this rule, and then
identified the number of each of those
mortality takes that we believe could
occur or the maximum number of
harassment takes that are reasonably
expected to occur based on the methods
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described. The impact that any given
take will have is dependent on many
case-specific factors that need to be
considered in the negligible impact
analysis (e.g., the context of behavioral
exposures such as duration or intensity
of a disturbance, the health of impacted
animals, the status of a species that
incurs fitness-level impacts to
individuals, etc.). For this final rule we
evaluated the likely impacts of the
enumerated maximum number of
harassment takes that were proposed for
authorization and reasonably expected
to occur, in the context of the specific
circumstances surrounding these
predicted takes. We also assessed M/SI
takes that have the potential to occur, as
well as considering the traits and
statuses of the affected species and
stocks. Lastly, we collectively evaluated
this information, as well as other more
taxa-specific information and mitigation
measure effectiveness, in group-specific
assessments that support our negligible
impact conclusions for each stock.
Because all of the Navy’s specified
activities would occur within the ranges
of the marine mammal stocks identified
in the rule, all negligible impact
analyses and determinations are at the
stock level (i.e., additional species-level
determinations are not needed).
The Navy proposed no changes to the
nature or level of the specified activities
or the boundaries of the HSTT Study
Area, and therefore the training and
testing activities (e.g., equipment and
sources used, exercises conducted) are
the same as those analyzed in the 2018
HSTT final rule. In addition, the
mitigation, monitoring, and nearly all
reporting measures are identical to those
described and analyzed in the 2018
HSTT final rule. As described above,
there is no new information since the
publication of the 2018 HSTT final rule
regarding the impacts of the specified
activities on marine mammals, the
status and distribution of any of the
affected marine mammal species or
stocks, or the effectiveness of the
mitigation and monitoring measures
that would change our analyses, except
for one species. For that one species—
gray whales—we have considered the
effects of the new UME on the west
coast of North America along with the
effects of the Navy’s activities in the
negligible impact analysis.
Harassment
As described in the Estimated Takes
of Marine Mammals section, the annual
number of takes authorized and
reasonably expected to occur by Level A
harassment and Level B harassment
(based on the maximum number of
activities per 12-month period) are
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identical to those presented in Tables 41
through 42 in the Take Requests section
of the 2018 HSTT final rule. As such,
the negligible impact analyses and
determinations of the effects of the
estimated Level A harassment and Level
B harassment takes on annual rates of
recruitment or survival for each species
and stock are nearly identical to and
substantively unchanged from those
presented in the 2018 HSTT final rule.
The primary difference is that the
annual levels of take and the associated
effects on reproduction or survival
would occur for the seven-year period of
this rule instead of the five-year period
of the 2018 HSTT final rule, which will
make no difference in effects on annual
rates of recruitment or survival. The
other differences in the analyses include
our consideration of the newly-declared
gray whale UME and slightly modified
explosive take estimates, neither of
which, as described below, affect the
results of the analyses or our
determinations. For detailed discussion
of the impacts that affected individuals
may experience given the specific
characteristics of the specified activities
and required mitigation (e.g., from
behavioral disruption, masking, and
temporary or permanent threshold
shift), along with the effects of the
expected Level A harassment and Level
B harassment take on reproduction and
survival, see the applicable subsections
in the Analysis and Negligible Impact
Determination section of the 2018 HSTT
final rule (83 FR 66977–67018;
December 27, 2018).
Serious Injury or Mortality
Based on the information and
methods discussed in the Estimated
Take of Marine Mammals section
(which are identical to those used in the
2018 HSTT final rule), the number of
potential mortalities due to ship strike
requested and authorized over the
seven-year period of this rule is the
same as those authorized in the 2018
HSTT final rule. As the potential
mortalities are now spread over seven
years rather than five, an annual average
of 0.29 gray whales (Eastern North
Pacific stock), fin whales (CA/OR/WA
stock), and humpback whales (Central
North Pacific stock) and an annual
average of 0.14 blue whales (Eastern
North Pacific stock), humpback whales
(CA/OR/WA stock, Mexico DPS), and
sperm whales (Hawaii stock) as
described in Table 16 (i.e., one, or two,
take(s) over seven years divided by
seven to get the annual number) are
expected to potentially occur and are
authorized. As this annual number is
less than that analyzed and authorized
in the 2018 HSTT final rule, which was
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an annual average of 0.4 whales or 0.2
whales respectively for the same species
and stocks, and with the exception of
the new gray whale UME on the U.S.
West Coast and updated abundance
information for the Eastern North
Pacific stock of blue whales (available in
the 2019 draft SARs), no other relevant
information about the status,
abundance, or effects of M/SI on each
species or stock has changed, the
analysis of the effects of vessel strike
mirrors that presented in the 2018 HSTT
final rule.
TABLE 16—SUMMARY INFORMATION RELATED TO MORTALITIES REQUESTED FOR SHIP STRIKE, 2018–2025
Stock
abundance
(Nbest) *
Species
(stock)
Fin whale (CA/OR/WA
stock).
Gray whale (Eastern
North Pacific stock).
Humpback whale (CA/
OR/WA stock, Mexico
DPS).
Humpback whale (Central North Pacific
stock) 6.
Sperm whale (Hawaii
stock).
Blue whale (Eastern
North Pacific Stock).
Annual
authorized
take by
serious injury
or mortality 1
Fisheries
interactions
(Y/N);
annual rate
of M/SI from
fisheries
interactions *
Vessel collisions
(Y/N);
annual rate
of M/SI from
vessel collision *
Y; ≥0.5 ...................
Y, 43 ......................
Total annual
M/SI * 2
≥43.5
Potential
biological
removal
(PBR) * 3
Residual PBR
(PBR minus
annual M/SI) 4
Stock
trend * 5
Recent UME
(Y/N);
number and year
(since 2007)
37.5
↑ ................
N.
801
662
¥8.7
stable since
2003.
↑ (historically);
stable.
↑ ................
Y, 264, 2019.
33.4
9,029
0.29
81
26,960
0.29
139
Y, 9.6 .....................
Y, 0.8 .....................
2,900
0.14
≥42.1
Y; ≥17.3 .................
Y, 22 ......................
10,103
0.29
25
Y; 18 ......................
Y, 1.4 .....................
83
58
7 4,559
0.14
0.7
Y, 0.7 .....................
N ............................
14
13.3
? ................
N.
1,496
0.14
≥19.4
≥1.44 ......................
Y, 18 ......................
2.1
¥17.3
stable ........
Y; 3, 2007.
N.
N.
* Presented in the 2018 final SARs and draft 2019 SARs.
1 This column represents the annual take by serious injury or mortality (M/SI) by vessel collision and was calculated by the number of mortalities for authorization divided by seven years (the
length of the rule and LOAs).
2 This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued
from either other Navy strikes or NMFS’ Southwest Fisheries Science Center (SWFSC) takes in the SARs to ensure not double-counted against PBR. However, for these species, there were no
takes from either other Navy activities or SWFSC in the SARs to deduct that would be considered double-counting.
3 Potential biological removal (PBR) is defined in section 3 of the MMPA. See the Analysis and Negligible Impact Determination section of the 2018 HSTT final rule for a description of PBR.
4 This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is presented in the SARs). This
value represents the residual PBR for the stock in the stock’s entire range.
5 See relevant SARs for more information regarding stock status and trends.
6 Some values for the Central North Pacific stock of humpback whales were unintentionally presented incorrectly in Table 69 of the 2018 HSTT final rule. The correct values are provided here.
These transcription errors do not affect the analysis or conclusions in the 2018 HSTT final rule, as the correct values were used in the analysis presented in the Analysis and Negligible Impact
Determination section.
7 The stock abundance for the Hawaii stock of sperm whales was unintentionally presented incorrectly as 5,559 in the 2018 HSTT final rule and has been corrected here. This transcription
error does not affect the analysis or conclusions reached in the 2018 HSTT final rule.
The Navy has also requested a small
number of takes by M/SI from
explosives. To calculate the annual
average of mortalities for explosives in
Table 17 we used the same method as
described for vessel strikes. The annual
average is the total number of takes over
seven years divided by seven.
Specifically, NMFS is authorizing the
following M/SI takes from explosives: 5
California sea lions and 8 short-beaked
common dolphins over the seven-year
period (therefore 0.71 mortalities
annually for California sea lions and
1.14 mortalities annually for shortbeaked common dolphins), as described
in Table 17. As this annual number is
less than that analyzed and authorized
in the 2018 HSTT final rule, which was
an annual average of 0.8 California sea
lions and 1.2 short-beaked common
dolphins, and no other relevant
information about the status,
abundance, or effects of mortality on
each species or stock has changed, the
analysis of the effects of explosives
mirrors that presented in the 2018 HSTT
final rule.
TABLE 17—SUMMARY INFORMATION RELATED TO MORTALITIES FROM EXPLOSIVES, 2018–2025
Stock
abundance
(Nbest) *
Species
(stock)
California sea lion (U.S.
stock).
Short-beaked common
dolphin (CA/OR/WA
stock).
Annual
authorized
take by
serious injury
or mortality 1
Total annual
M/SI * 2
Fisheries
interactions
(Y/N);
annual rate
of M/SI from
fisheries
interactions *
PBR *
SWFSC
authorized
take
(annual) 3
Residual
PBR-PBR
minus annual
M/SI and
SWFSC 4
Stock
trend * 5
UME (Y/N);
number and year
257,606
0.71
319.4
Y;197 ......................
14,011 ....................
6.6
13,685
↑ ................
Y; 8,112; 2013.
969,861
1.14
≥40
Y; ≥40 ....................
8,393 ......................
2.8
8,350.2
? ................
N.
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* Presented in the 2018 final SARs. No changes for these stocks were included in the 2019 draft SARs.
1 This column represents the annual take by serious injury or mortality (M/SI) during explosive detonations and was calculated by the number of mortalities planned for authorization divided by
seven years (the length of the rule and LOAs).
2 This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued
from either other Navy activities or NMFS’ SWFSC takes in the SARs to ensure they are not double-counted against PBR. In this case, for California sea lion 0.8 annual M/SI from the U.S. West
Coast during scientific trawl and longline operations conducted by NMFS and 1.8 annual M/SI from marine mammal research related mortalities authorized by NMFS was deducted from total annual M/SI (322).
3 This column represents annual take authorized through NMFS’ SWFSC rulemaking/LOAs (80 FR 58982).
4 This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI column and the annual authorized
take from the SWFSC column). In the case of California sea lion the M/SI column (319.4) and the annual authorized take from the SWFSC (6.6) were subtracted from the calculated PBR of
14,011. In the case of Short-beaked common dolphin the M/SI column (40) and the annual authorized take from the SWFSC (2.8) were subtracted from the calculated PBR of 8,393.
5 See relevant SARs for more information regarding stock status and trends.
See the Serious Injury or Mortality
subsection in the Analysis and
Negligible Impact Determination section
of the 2018 HSTT final rule (83 FR
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66985–66993; December 27, 2018) for
detailed discussions of the impacts of
M/SI, including a description of how
the agency uses the PBR metric and
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other factors to inform our analysis, and
an analysis of the impacts on each
species and stock for which M/SI was
proposed for authorization, including
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the relationship of potential mortality
for each species to the insignificance
threshold and residual PBR.
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Stocks With M/SI Below the
Insignificance Threshold
As noted in the Serious Injury or
Mortality subsection of the Negligible
Impact Analysis and Determination
section in the 2018 HSTT final rule, for
a species or stock with incidental M/SI
less than 10 percent of residual PBR, we
consider M/SI from the specified
activities to represent an insignificant
incremental increase in ongoing
anthropogenic M/SI that alone (i.e., in
the absence of any other take and
barring any other unusual
circumstances) will clearly not
adversely affect annual rates of
recruitment and survival. In this case, as
shown in Tables 16 and 17, the
following species or stocks have
potential or estimated M/SI from ship
strike and explosive takes, respectively,
authorized below their insignificance
threshold: fin whale (CA/OR/WA stock),
gray whale (Eastern North Pacific stock),
humpback whale (Central North Pacific
stock), sperm whale (Hawaii stock),
California sea lion (U.S stock), and
short-beaked common dolphin (CA/OR/
WA stock). While the authorized M/SI
of California sea lions (U.S. stock) and
gray whales (Eastern North Pacific
stock) are below the insignificance
threshold, because of the recent UMEs,
we further address how the authorized
M/SI and the UME inform the negligible
impact determination immediately
below. For the other four stocks with
authorized M/SI below the
insignificance threshold, there are no
other known factors, information, or
unusual circumstances that indicate
anticipated M/SI below the
insignificance threshold could have
adverse effects on annual rates of
recruitment or survival and they are not
discussed further. For the remaining
two stocks with anticipated potential M/
SI above the insignificance threshold,
how that M/SI compares to residual
PBR, as well as additional factors, as
appropriate, are discussed below as
well.
California Sea Lion (U.S. Stock)
The estimated (and authorized) lethal
take of California sea lions is well below
the insignificance threshold (0.71 as
compared to a residual PBR of 13,686)
and NMFS classifies the stock as
‘‘increasing’’ in the 2018 final SAR, the
most recent SAR available for this stock.
Nonetheless, we consider here how the
2013–2016 (UME closed on May 6,
2020) California Sea Lion UME informs
our negligible impact determination.
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This UME was confined to pup and
yearling sea lions and many were
emaciated, dehydrated, and
underweight. NMFS staff confirmed that
the mortality of pups and yearlings
returned to normal in 2017 and 2018.
The UME Working Group recommended
closure of UME in April, 2020 and the
UME was closed on May 6, 2020.
NMFS’ findings indicate that a change
in the availability of sea lion prey,
especially anchovy and sardines, a high
value food source for nursing mothers,
was a likely contributor to the large
number of strandings. Sardine spawning
grounds shifted further offshore in 2012
and 2013, and while other prey were
available (market squid and rockfish),
these may not have provided adequate
nutrition in the milk of sea lion mothers
supporting pups, or for newly-weaned
pups foraging on their own. Although
the pups showed signs of some viruses
and infections, findings indicate that
this event was not caused by disease,
but rather by the lack of high quality,
close-by food sources for nursing
mothers. Average mortalities from
2013–2017 were 1,000–3,000 more
annually than they were in the previous
10 years. However, even if these
unusual mortalities were still occurring
(with current data suggesting they are
not), combined with other annual
human-caused mortalities, and viewed
through the PBR lens (for human-caused
mortalities), total human-caused
mortality (inclusive of the potential for
additional UME deaths) would still fall
well below residual PBR. Further, the
loss of pups and yearlings is not
expected to have as much of an effect on
annual population rates as the death of
adult females. In conclusion, because of
the abundance, population trend, and
residual PBR of this stock, as well as the
fact that the increased mortality stopped
two years ago, this UME is not expected
to have any impacts on individuals
during the period of this final rule, nor
is it thought to have had impacts on the
population rate when it was occurring
that would influence our evaluation of
the effects of the mortality authorized
on the stock.
Gray Whales (Eastern North Pacific
Stock)
Since January 2019, gray whale
strandings along the west coast of North
America have been significantly higher
than the previous 18-year averages.
Preliminary findings from necropsies
have shown evidence of emaciation.
The seasonal pattern of elevated
strandings in the spring and summer
months is similar to that of the previous
gray whale UME in 1999–2000. Current
total monthly strandings are slightly
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higher than 1999 and lower than 2000.
If strandings continue to follow a
similar pattern, we would anticipate a
decrease in strandings in late summer
and fall. However, combined with other
annual human-caused mortalities, and
viewed through the PBR lens (for
human-caused mortalities), total
human-caused mortality (inclusive of
the potential for additional UME deaths)
would still fall well below residual PBR
and the insignificance threshold.
Because of the abundance, population
trend (increasing, despite the UME in
1999–2000), and residual PBR (662) of
this stock, this UME is not expected to
have impacts on the population rate
that, in combination with the effects of
mortality authorized, would affect
annual rates of recruitment or survival.
Stocks with M/SI above the
Insignificance Threshold
Humpback Whale (CA/OR/WA Stock,
Mexico DPS)
For this stock, PBR is currently set at
16.7 for U.S. waters and 33.4 for the
stock’s entire range. In the 2018 HSTT
final rule and 2019 HSTT proposed rule
we inadvertently considered only the
PBR for U.S. waters (as presented in the
SAR summary tables). As the HSTT
Study Area extends beyond U.S. waters
and activities have the potential to
impact the entire stock, we have
corrected this here and present the
analysis using the PBR for the stock’s
entire range. The total annual M/SI is
estimated at greater than or equal to
42.1, yielding a residual PBR of –8.7.
With the corrected PBR, this potential
impact on the stock is less than what
was presented in both the 2018 HSTT
final rule and 2019 HSTT proposed rule.
NMFS authorizes one M/SI over the
seven-year duration of the rule (which
is 0.14 annually for the purposes of
comparing to PBR and considering other
effects on annual rates of recruitment
and survival), which means that
residual PBR is exceeded by 8.84. In the
2018 HSTT final rule the PBR was
correctly reported as 33.4 (PBR for the
stock’s entire range), however the total
annual M/SI was incorrectly reported as
greater than or equal to 40.76 (yielding
a residual PBR of –7.36). These
transcription errors do not affect the
fundamental analysis or conclusion
reached in the 2018 HSTT final rule,
however, and we have corrected these
values here using data from the 2019
draft SARs.
In the commercial fisheries setting for
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
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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 under consideration).
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
CA/OR/WA stock is significantly less
than 10 percent of PBR (in fact less than
1 percent of 33.4) and there are
management measures in place to
address M/SI from activities other than
those the Navy is conducting (as
discussed below).
Based on identical simulations as
those conducted to identify Recovery
Factors for PBR in Wade et al. (1998),
but where values less than 0.1 were
investigated (P. Wade, pers. comm.), we
predict that where the mortality from a
specified activity does not exceed Nmin
* 1⁄2 Rmax * 0.013, the contemplated
mortality for the specific activity will
not delay the time to recovery by more
than 1 percent. For this stock of
humpback whales, Nmin * 1⁄2 Rmax *
0.013 = 1.45 and the annual mortality
proposed for authorization is 0.14 (i.e.,
less than 1.45), which means that the
mortality authorized in this rule for
HSTT activities would not delay the
time to recovery by more than 1 percent.
As described in the 2018 HSTT final
rule, NMFS must also ensure that
impacts by the applicant on the species
or stock from other types of take (i.e.,
harassment) do not combine with the
impacts from M/SI to adversely affect
the species or stock via impacts on
annual rates of recruitment or survival,
which is discussed further below in the
species- and stock-specific section.
In November 2019, NMFS published
2019 draft SARs in which PBR is
reported as 33.4 with the predicted
average annual mortality greater than or
equal to 42.1 (including 22 estimated
from vessel collisions and greater than
17.3 observed fisheries interactions).
While the observed M/SI from vessel
strikes remains low at 2.2 per year, the
2018 final and 2019 draft SARs rely on
a new method to estimate annual deaths
by ship strike utilizing an encounter
theory model that combined species
distribution models of whale density,
vessel traffic characteristics, and whale
movement patterns obtained from
satellite-tagged animals in the region to
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estimate encounters that would result in
mortality (Rockwood et al., 2017). The
model predicts 22 annual mortalities of
humpback whales from this stock from
vessel strikes. The authors (Rockwood et
al., 2017) do not suggest that ship strike
suddenly increased to 22. In fact, the
model is not specific to a year, but
rather offers a generalized prediction of
ship strike off the U.S. West Coast.
Therefore, if the Rockwood et al. (2017)
model is an accurate representation of
vessel strike, then similar levels of ship
strike have been occurring in past years
as well. Put another way, if the model
is correct, for some number of years
total human-caused mortality has been
significantly underestimated, and PBR
has been similarly exceeded by a
notable amount, and yet the CA/OR/WA
stock of humpback whales is considered
stable nevertheless.
The CA/OR/WA stock of humpback
whales experienced a steady increase
from the 1990s through approximately
2008, and more recent estimates through
2014 indicate a leveling off of the
population size. This stock is comprised
of the feeding groups of three DPSs.
Two DPSs associated with this stock are
listed under the ESA as either
endangered (Central America DPS) or
threatened (Mexico DPS), while the
third is not listed. The mortality
authorized by this rule is for an
individual from the Mexico DPS only.
As described in the Final Rule
Identifying 14 DPSs of the Humpback
Whale and Revision of Species-Wide
Listing (81 FR 62260, September 8,
2016), the Mexico DPS was initially
proposed not to be listed as threatened
or endangered, but the final decision
was changed in consideration of a new
abundance estimate using a new
methodology that was more accurate
(less bias from capture heterogeneity
and lower coefficient of variation) and
resulted in a lower abundance than was
previously estimated. To be clear, the
new abundance estimate did not
indicate that the numbers had
decreased, but rather, the more accurate
new abundance estimate (3,264),
derived from the same data but based on
an integrated spatial multi-strata mark
recapture model (Wade et al., 2016) was
simply notably lower than earlier
estimates, which were 6,000–7,000 from
the SPLASH project (Calambokidis et
al., 2008) or higher (Barlow et al., 2011).
The updated abundance was still higher
than 2,000, which is the Biological
Review Team’s (BRT) threshold between
‘‘not likely to be at risk of extinction due
to low abundance alone’’ and
‘‘increasing risk from factors associated
with low abundance.’’ Further, the BRT
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concluded that the DPS was unlikely to
be declining because of the population
growth throughout most of its feeding
areas, in California/Oregon and the Gulf
of Alaska, but they did not have
evidence that the Mexico DPS was
actually increasing in overall population
size.
As discussed earlier, we also take into
consideration management measures in
place to address M/SI caused by other
activities. The California swordfish and
thresher shark drift gillnet fishery is one
of the primary causes of M/SI take from
fisheries interactions for humpback
whales on the West Coast. NMFS
established the Pacific Offshore
Cetacean Take Reduction Team in 1996
and prepared an associated Plan
(PCTRP) to reduce the risk of M/SI via
fisheries interactions. In 1997, NMFS
published final regulations formalizing
the requirements of the PCTRP,
including the use of pingers following
several specific provisions and the
employment of Skipper education
workshops.
Commercial fisheries such as crab pot,
gillnet, and prawn fisheries are also a
significant source of mortality and
serious injury for humpback whales and
other large whales and, unfortunately,
have increased mortalities and serious
injuries over recent years (Carretta et al.,
2019). However, the 2019 draft SAR
notes that a recent increase in
disentanglement efforts has resulted in
an increase in the fraction of cases that
are reported as non-serious injuries as a
result of successful disentanglement.
More importantly, since 2015, NMFS
has engaged in a multi-stakeholder
process in California (including
California State resource managers,
fishermen, non-governmental
organizations (NGOs), and scientists) to
identify and develop solutions and
make recommendations to regulators
and the fishing industry for reducing
whale entanglements (see https://
www.opc.ca.gov/whale-entanglementworking-group/), referred to as the
Whale Entanglement Working Group.
The Whale Entanglement Working
Group has made significant progress
since 2015 and is tackling the problem
from multiple angles, including:
• Development of Fact Sheets and
Best Practices for specific Fisheries
issues (e.g., California Dungeness Crab
Fishing BMPs and the 2018–2019 Best
Fishing Practices Guide);
• 2018–2019 Risk Assessment and
Mitigation Program (RAMP) to support
the state of California in working
collaboratively with experts (fishermen,
researchers, NGOs, etc.) to identify and
assess elevated levels of entanglement
risk and determine the need for
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management options to reduce risk of
entanglement; and
• Support of pilot studies to test new
fisheries technologies to reduce take
(e.g., Exploring Ropeless Fishing
Technologies for the California
Dungeness Crab Fishery).
The Working Group meets regularly,
posts reports and annual
recommendations, and makes all of
their products and guidance documents
readily accessible for the public. The
March 2019 Working Group Report
reported on the status of the fishery
closure, progress and continued
development of the RAMP (though there
is a separate RAMP report), discussed
the role of the Working Group
(development of a new Charter), and
indicated next steps.
Importantly, in early 2019, as a result
of a litigation settlement agreement, the
California Department of Fish and
Wildlife (CDFW) closed the Dungeness
crab fishery three months early for the
year, which is expected to reduce the
number of likely entanglements. The
agreement also limits the fishery
duration over the next couple of years
and has different triggers to reduce or
close it further. Further, pursuant to the
settlement, CDFW is required to apply
for a Section 10 Incidental Take Permit
under the ESA to address protected
species interactions with fishing gear
and crab fishing gear (pots), and they
have agreed to prepare a Conservation
Plan by May 2020. Any request for such
a permit must include a Conservation
Plan that specifies, among other things,
what steps the applicant will take to
minimize and mitigate the impacts, and
the funding that will be available to
implement such steps.
Regarding measures in place to reduce
mortality from other sources, the
Channel Islands NMS staff coordinates,
collects, and monitors whale sightings
in and around a Whale Advisory Zone
and the Channel Islands NMS region,
which is within the area of highest
vessel strike mortality (90th percentile)
for humpback whales on the U.S. West
Coast (Rockwood et al., 2017). The
seasonally established Whale Advisory
Zone spans from Point Arguello to Dana
Point, including the Traffic Separation
Schemes in the Santa Barbara Channel
and San Pedro Channel. Vessels
transiting the area from June through
November are recommended to exercise
caution and voluntarily reduce speed to
10 kn or less for blue, humpback, and
fin whales. Channel Island NMS
observers collect information from aerial
surveys conducted by NOAA, the U.S.
Coast Guard, California Department of
Fish and Game, and Navy chartered
aircraft. Information on seasonal
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presence, movement, and general
distribution patterns of large whales is
shared with mariners, NMFS’ Office of
Protected Resources, the U.S. Coast
Guard, the California Department of
Fish and Game, the Santa Barbara
Museum of Natural History, the Marine
Exchange of Southern California, and
whale scientists. Real time and
historical whale observation data
collected from multiple sources can be
viewed on the Point Blue Whale
Database.
More recently, similar efforts to
reduce entanglement risk and severity
have also been initiated in Oregon and
Washington. Both Oregon and
Washington are developing applications
for ESA Incidental Take Permits for
their commercial crab fisheries. They
advocate similar best practices for their
fishermen as California, and they are
taking regulatory steps related to gear
marking and pot limits.
In this case, 0.14 M/SI annually
means the potential for one mortality in
one of the seven years and zero
mortalities in six of those seven years.
Therefore, the Navy would not be
contributing to the total human-caused
mortality at all in six of the seven, or
85.7 percent, of the years covered by
this rule. That means that even if a
humpback whale from the CA/OR/WA
stock were to be struck, in six of the
seven years there could be no effect on
annual rates of recruitment or survival
from Navy-caused M/SI. Additionally,
as discussed in the Analysis and
Negligible Impact Determination section
of the 2018 HSTT final rule, the loss of
a male would have far less, if any, of an
effect on population rates and absent
any information suggesting that one sex
is more likely to be struck than another,
we can reasonably assume that there is
a 50 percent chance that the single
strike authorized by this rule would be
a male, thereby further decreasing the
likelihood of impacts on the population
rate. In situations like this where
potential M/SI is fractional,
consideration must be given to the
lessened impacts anticipated due to the
absence of M/SI in six of the years and
due to the fact that a single strike could
be of a male.
Lastly, we reiterate that PBR is a
conservative metric and also not
sufficiently precise to serve as an
absolute predictor of population effects
upon which mortality caps would
appropriately be based. This is
especially important given the minor
difference between zero and one across
the seven-year period covered by this
rule, which is the smallest distinction
possible when considering mortality.
Wade et al. (1998), authors of the paper
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from which the current PBR equation is
derived, note that ‘‘Estimating
incidental mortality in one year to be
greater than the PBR calculated from a
single abundance survey does not prove
the mortality will lead to depletion; it
identifies a population worthy of careful
future monitoring and possibly
indicates that mortality-mitigation
efforts should be initiated.’’
The information included here
illustrates that this humpback whale
stock is currently stable, the potential
(and authorized) mortality is well below
10 percent (0.4 percent) of PBR, and
management actions are in place to
minimize both fisheries interactions and
ship strike from other vessel activity in
one of the highest-risk areas for strikes.
More specifically, although the total
human-mortality exceeds PBR, the
authorized mortality for the Navy’s
specified activities would incrementally
contribute less than 1 percent of that
and, further, given the fact that it would
occur in only one of seven years and
could be comprised of a male (far less
impactful to the population), the
potential impacts on population rates
are even less. Based on all of the
considerations described above,
including consideration of the fact that
the authorized mortality of 0.14 would
not delay the time to recovery by more
than 1 percent, we do not expect the
potential lethal take from Navy
activities, alone, to adversely affect the
CA/OR/WA stock of humpback whales
through effects on annual rates of
recruitment or survival. Nonetheless,
the fact that total human-caused
mortality exceeds PBR necessitates close
attention to the remainder of the
impacts (i.e., harassment) on the CA/
OR/WA stock of humpback whales from
the Navy’s activities to ensure that the
total authorized takes would have a
negligible impact on the species and
stock. Therefore, this information will
be considered in combination with our
assessment of the impacts of authorized
harassment takes later in the Group and
Species-Specific Analyses section.
Blue Whale (Eastern North Pacific
Stock)
For blue whales (Eastern North Pacific
stock), PBR is currently set at 1.23 for
U.S. waters and 2.1 for the stock’s entire
range. In the 2018 HSTT final rule and
2019 HSTT proposed rule we
inadvertently presented only the PBR
for U.S. waters (as presented in the SAR
summary tables). As the HSTT Study
Area extends beyond U.S. waters and
activities have the potential to impact
the entire stock, we have corrected this
here and present the analysis using the
PBR for the stock’s entire range. The
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total annual M/SI is estimated at greater
than or equal to 19.4, yielding a residual
PBR of ¥17.3. NMFS authorizes one M/
SI for the Navy over the seven-year
duration of the rule (indicated as 0.14
annually for the purposes of comparing
to PBR and evaluating overall effects on
annual rates of recruitment and
survival), which means that residual
PBR is exceeded by 17.44. However, as
described previously, in the commercial
fisheries setting for ESA-listed marine
mammals (which is similar to the
incidental take setting, in that the
negligible impact determination 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, the
authorized lethal take (0.14 annually) of
blue whales from the Eastern North
Pacific stock is less than 10 percent of
PBR (which is 2.1) and there are
management measures in place to
address M/SI from activities other than
those the Navy is conducting (as
discussed below). Perhaps more
importantly, the population is
considered ‘‘stable’’ and, specifically,
the available data suggests that the
current number of ship strikes is not
likely to have an adverse impact on the
population, despite the fact that it
exceeds PBR, with the Navy’s minimal
additional mortality of one whale in the
seven years not creating the likelihood
of adverse impact. Immediately below,
we explain the information that
supports our finding that the Navy’s
authorized M/SI is not expected to
result in more than a negligible impact
on this stock. As described previously,
NMFS must also ensure that impacts by
the applicant on the species or stock
from other types of take (i.e.,
harassment) do not combine with the
impacts from mortality to adversely
affect the species or stock via impacts
on annual rates of recruitment or
survival, which occurs further below in
the stock-specific discussion sections.
As discussed in the 2018 HSTT final
rule, the 2018 final SAR and 2019 draft
SAR rely on a new method to estimate
annual deaths by ship strike utilizing an
encounter theory model that combined
species distribution models of whale
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density, vessel traffic characteristics,
and whale movement patterns obtained
from satellite-tagged animals in the
region to estimate encounters that
would result in mortality (Rockwood et
al., 2017). The model predicts 18 annual
mortalities of blue whales from vessel
strikes, which, with the additional M/SI
of 1.44 from fisheries interactions,
results in the current estimate of
residual PBR equal to ¥17.3. Although
NMFS’ Permits and Conservation
Division in the Office of Protected
Resources has independently reviewed
the new ship strike model and its results
and agrees that it is appropriate for
estimating blue whale mortality by ship
strike on the U.S. West Coast, for
analytical purposes we also note that if
the historical method were used to
predict vessel strike (i.e., using observed
mortality by vessel strike, or 0.4, instead
of 18), then total human-caused
mortality including the Navy’s potential
take would not exceed PBR. We further
note that the authors (Rockwood et al.,
2017) do not suggest that ship strike
suddenly increased to 18 recently. In
fact, the model is not specific to a year,
but rather offers a generalized
prediction of ship strike off the U.S.
West Coast. Therefore, if the Rockwood
et al. (2017) model is an accurate
representation of vessel strike, then
similar levels of ship strike have been
occurring in past years as well. Put
another way, if the model is correct, for
some number of years total-humancaused mortality has been significantly
underestimated and PBR has been
similarly exceeded by a notable amount,
and yet the Eastern North Pacific stock
of blue whales remains stable
nevertheless.
NMFS’ 2018 final SAR and 2019 draft
SAR state that the stock is ‘‘stable’’ and
there is no indication of a population
size increase in this blue whale
population since the early 1990s. The
lack of a species’ or stock’s population
increase can have several causes, some
of which are positive. The SAR further
cites to Monnahan et al. (2015), which
used a population dynamics model to
estimate that the Eastern North Pacific
blue whale population was at 97 percent
of carrying capacity in 2013, suggesting
that the observed lack of a population
increase since the early 1990s was
explained by density dependence, not
impacts from ship strike. This would
mean that this stock of blue whales
shows signs of stability and is not
increasing in population size because
the population size is at or nearing
carrying capacity for its available
habitat. In fact, we note that this
population has maintained this status
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41871
throughout the years that the Navy has
consistently tested and trained at
similar levels (with similar vessel
traffic) in areas that overlap with blue
whale occurrence, which would be
another indicator of population
stability.
Monnahan et al. (2015) modeled
vessel numbers, ship strikes, and the
population of the Eastern North Pacific
blue whale population from 1905 out to
2050 using a Bayesian framework to
incorporate informative biological
information and assign probability
distributions to parameters and derived
quantities of interest. The authors tested
multiple scenarios with differing
assumptions, incorporated uncertainty,
and further tested the sensitivity of
multiple variables. Their results
indicated that there is no immediate
threat (i.e., through 2050) to the
population from any of the scenarios
tested, which included models with 10
and 35 strike mortalities per year.
Broadly, the authors concluded that,
unlike other blue whale stocks, the
Eastern North Pacific blue whales have
recovered from 70 years of whaling and
are in no immediate threat from ship
strikes. They further noted that their
conclusion conflicts with the depleted
and strategic designation under the
MMPA, as well as PBR specifically.
As discussed, we also take into
consideration management measures in
place to address M/SI caused by other
activities. The Channel Islands NMS
staff coordinates, collects, and monitors
whale sightings in and around the
Whale Advisory Zone and the Channel
Islands NMS region. Redfern et al.
(2013) note that the areas of highest risk
for blue whales is the Santa Barbara
Channel, where shipping lanes intersect
with common feeding areas. The
seasonally established Whale Advisory
Zone spans from Point Arguello to Dana
Point, including the Traffic Separation
Schemes in the Santa Barbara Channel
and San Pedro Channel. Vessels
transiting the area from June through
November are recommended to exercise
caution and voluntarily reduce speed to
10 kn or less for blue, humpback, and
fin whales. Channel Island NMS
observers collect information from aerial
surveys conducted by NOAA, the U.S.
Coast Guard, California Department of
Fish and Game, and U.S. Navy chartered
aircraft. Information on seasonal
presence, movement, and general
distribution patterns of large whales is
shared with mariners, NMFS Office of
Protected Resources, U.S. Coast Guard,
California Department of Fish and
Game, the Santa Barbara Museum of
Natural History, the Marine Exchange of
Southern California, and whale
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scientists. Real time and historical
whale observation data collected from
multiple sources can be viewed on the
Point Blue Whale Database.
In this case, 0.14 M/SI annually
means one mortality in one of the seven
years and zero mortalities in six of those
seven years. Therefore, the Navy would
not be contributing to the total humancaused mortality at all in six of the
seven, or 85.7 percent, of the years
covered by this rule. That means that
even if a blue whale were to be struck,
in six of the seven years there could be
no effect on annual rates of recruitment
or survival from Navy-caused M/SI.
Additionally, as with humpback whales
discussed previously, the loss of a male
would have far less, if any, effect on
population rates and absent any
information suggesting that one sex is
more likely to be struck than another,
we can reasonably assume that there is
a 50 percent chance that the single
strike authorized by this rule would be
a male, thereby further decreasing the
likelihood of impacts on the population
rate. In situations like this where
potential M/SI is fractional,
consideration must be given to the
lessened impacts anticipated due to the
absence of M/SI in six of the seven years
and the fact that the single strike could
be a male. Lastly, as with the CA/OR/
WA stock of humpback whales above,
we reiterate that PBR is a conservative
metric and also not sufficiently precise
to serve as an absolute predictor of
population effects upon which mortality
caps would appropriately be based. This
is especially important given the minor
difference between zero and one across
the seven-year period covered by this
rule, which is the smallest distinction
possible when considering mortality. As
noted above, Wade et al. (1998), authors
of the paper from which the current PBR
equation is derived, note that
‘‘Estimating incidental mortality in one
year to be greater than the PBR
calculated from a single abundance
survey does not prove the mortality will
lead to depletion; it identifies a
population worthy of careful future
monitoring and possibly indicates that
mortality-mitigation efforts should be
initiated.’’ The information included
here indicates that this blue whale stock
is stable, approaching carrying capacity,
and has leveled off because of densitydependence, not human-caused
mortality, in spite of what might be
otherwise indicated from the calculated
PBR. Further, potential (and authorized)
M/SI is below 10 percent of PBR and
management actions are in place to
minimize ship strike from other vessel
activity in one of the highest-risk areas
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for strikes. Based on all of the
considerations described above, we do
not expect lethal take from Navy
activities, alone, to adversely affect
Eastern North Pacific blue whales
through effects on annual rates of
recruitment or survival. Nonetheless,
the fact that total human-caused
mortality exceeds PBR necessitates close
attention to the remainder of the
impacts (i.e., harassment) on the Eastern
North Pacific stock of blue whales from
the Navy’s activities to ensure that the
total authorized takes have a negligible
impact on the species or stock.
Therefore, this information will be
considered in combination with our
assessment of the impacts of authorized
harassment takes in the Group and
Species-Specific Analyses section that
follows.
Group and Species-Specific Analyses
In addition to broader analyses of the
impacts of the Navy’s activities on
mysticetes, odontocetes, and pinnipeds,
the 2018 HSTT final rule contained
detailed analyses of the effects of the
Navy’s activities in the HSTT Study
Area on each affected species and stock.
All of that information and analyses
remain applicable and valid for our
analyses of the effects of the same Navy
activities on the same species and stocks
for the seven-year period of this rule.
See the Group and Species-Specific
Analyses subsection in the Analysis and
Negligible Impact Determination section
of the 2018 HSTT final rule (83 FR
66993–67018; December 27, 2018). In
addition, no new information has been
received since the publication of the
2018 HSTT final rule that significantly
changes the analyses on the effects of
the Navy’s activities on each species
and stock presented in the 2018 HSTT
final rule (the potential impact of the
new gray whale UME and the corrected
numbers from the humpback whale
SARs were discussed earlier in the rule).
In the discussions below, the
estimated Level B harassment takes
represent instances of take, not the
number of individuals taken (the much
lower and less frequent Level A
harassment takes are far more likely to
be associated with separate individuals),
and in many cases some individuals are
expected to be taken more than one
time, while in other cases a portion of
individuals will not be taken at all.
Below, we compare the total take
numbers (including PTS, TTS, and
behavioral disruption) for species or
stocks to their associated abundance
estimates to evaluate the magnitude of
impacts across the species or stock and
to individuals. Specifically, when an
abundance percentage comparison is
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below 100, it means that that percentage
or less of the individuals in the stock
will be affected (i.e., some individuals
will not be taken at all), that the average
for those taken is one day per year, and
that we would not expect any
individuals to be taken more than a few
times in a year. When it is more than
100 percent, it means there will
definitely be some number of repeated
takes of individuals. For example, if the
percentage is 300, the average would be
each individual is taken on three days
in a year if all were taken, but it is more
likely that some number of individuals
will be taken more than three times and
some number of individuals fewer times
or not at all. While it is not possible to
know the maximum number of days
across which individuals of a stock
might be taken, in acknowledgement of
the fact that it is more than the average,
for the purposes of this analysis, we
assume a number approaching twice the
average. For example, if the percentage
of take compared to the abundance is
800, we estimate that some individuals
might be taken as many as 16 times.
Those comparisons are included in the
sections below. For some stocks these
numbers have been adjusted slightly
(with these adjustments being in the
single digits) so as to more consistently
apply this approach, but these minor
changes did not change the analysis or
findings.
To assist in understanding what this
analysis means, we clarify a few issues
related to estimated takes and the
analysis here. In the annual estimated
take tables below, takes within the U.S.
EEZ include only those takes within the
U.S. EEZ, where most Navy activities
occur and where we often have the best
information on species and stock
presence and abundance. Takes inside
and outside the EEZ include all takes in
the HSTT Study Area.
An individual that incurs a PTS or
TTS take may sometimes also be subject
to behavioral disturbance at the same
time. As described in the Harassment
subsection of the Analysis and
Negligible Impact Determination section
of the 2018 HSTT final rule, the degree
of PTS, and the degree and duration of
TTS, expected to be incurred from the
Navy’s activities are not expected to
impact marine mammals such that their
reproduction or survival could be
affected. Similarly, data do not suggest
that a single instance in which an
animal accrues PTS or TTS and is
subject to behavioral disturbance would
result in impacts to reproduction or
survival. Nonetheless, we recognize that
if an individual is subjected to
behavioral disturbance repeatedly for a
longer duration and on consecutive
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days, effects could accrue to the point
that reproductive success is jeopardized
(as discussed below in the stock-specific
summaries). Accordingly, in analyzing
the number of takes and the likelihood
of repeated and sequential takes (which
could result in reproductive impacts),
we consider the total takes, not just the
Level B harassment takes by behavioral
disruption, so that individuals
potentially exposed to both threshold
shift and behavioral disruption are
appropriately considered. We note that
the same reasoning applies with the
potential addition of behavioral
disruption to tissue damage from
explosives, the difference being that we
do already consider the likelihood of
reproductive impacts whenever tissue
damage occurs. Further, the number of
Level A harassment takes by either PTS
or tissue damage are so low compared
to abundance numbers that it is
considered highly unlikely that any
individual would be taken at those
levels more than once.
As noted previously, we presented a
detailed discussion of important marine
mammal habitat (e.g., ESA-designated
critical habitat, biologically important
areas (BIAs), and national marine
sanctuaries (NMSs)) for all species and
stocks in the HSTT Study Area in the
2018 HSTT proposed final rules. All of
that information remains valid and
applicable to the species- and stockspecific negligible impact analyses
below. Please see the 2018 rules for
complete information. In addition, since
publication of the 2018 HSTT final rule,
NMFS published a proposed rule to
designate ESA critical habitat for the
Central America and Mexico DPSs of
humpback whales on October 9, 2019
(84 FR 54354). In the proposed rule only
critical habitat Unit 19 overlapped with
the HSTT Study Area, and NMFS
proposed to exclude this unit from the
critical habitat designation based on
consideration of national security. A
final rule designating critical habitat for
these two DPSs of humpback whales has
not been published.
All species in the HSTT Study Area
will benefit from the procedural
mitigation measures summarized in the
Mitigation Measures section of this rule,
and described in detail in the Mitigation
Measures section of the 2018 HSTT final
rule. Additionally, the Navy will limit
activities and employ other measures in
mitigation areas that will avoid or
reduce impacts to several species and
stocks. These mitigation areas and the
associated limitations on activities are
summarized in Table 15 above and
described in detail in the Mitigation
Measures section of the 2018 HSTT final
rule. The manner and extent to which
the limitations in these mitigation areas
will prevent or minimize potential
impacts on specific species and stocks
in the HSTT Study Area is discussed in
the Mitigation Measures section of the
2018 HSTT final rule under Final
Mitigation Areas, all of which remains
valid and applicable for this final rule.
Having considered all of the
information and analyses previously
presented in the 2018 HSTT final rule,
including the Group and SpeciesSpecific Analyses discussions organized
by the different groups and species,
below we present tables showing
instances of total take as a percentage of
stock abundance for each group,
updated with the new explosion and
vessel strike calculations. We then
summarize the information for each
species or stock, considering the
analysis from the 2018 HSTT final rule
and any new analysis. The analyses
below in some cases address species
collectively if they occupy the same
functional hearing group (i.e., low, mid,
and high-frequency cetaceans and
pinnipeds in water), share similar life
history strategies, and/or are known to
behaviorally respond similarly to
acoustic stressors. Because some of
these groups or species share
characteristics that inform the impact
analysis similarly, it would be
duplicative to repeat the same analysis
for each species or stock. In addition,
animals belonging to each stock within
a species typically have the same
hearing capabilities and behaviorally
respond in the same manner as animals
in other stocks within the species.
Mysticetes
In Tables 18 and 19 below for
mysticetes, we indicate the total annual
mortality, Level A harassment, Level B
harassment, and a number indicating
the instances of total take as a
percentage of abundance. Tables 18 and
19 have been updated from Tables 71
and 72 in the 2018 HSTT final rule as
appropriate with the 2018 final SARs
and 2019 draft SARs and updated
information on mortality, as discussed
above. For additional information and
analysis supporting the negligibleimpact analysis, see the Mysticetes
discussion in the Group and SpeciesSpecific Analyses section of the 2018
HSTT final rule, all of which remains
applicable to this final rule unless
specifically noted.
TABLE 18—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR
MYSTICETES IN THE HRC PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL
TAKE AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Abundance
Level B harassment
Species
Blue whale
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Bryde’s
whale.
Fin whale
Humpback
whale.
Minke
whale.
Sei whale
Stock
Central
North
Pacific.
Hawaii .....
Level A harassment
Total takes
(entire study
area)
Takes
(within Navy
EEZ)
Total Navy
abundance
inside and
outside of
EEZ
(HRC)
Instance of total take as
percent of abundance
Within EEZ
Navy
abundance
(HRC)
Total take as
percentage of
total Navy
abundance
(HRC)
EEZ take as
percentage of
Navy EEZ
abundance
(HRC)
Behavioral
disturbance
TTS
(may also
include
disturbance)
15
33
0
0
0
48
40
43
33
112
121
40
106
0
0
0
146
123
108
89
135
138
Mortality
Tissue
damage
PTS
Hawaii .....
Central
North
Pacific.
Hawaii .....
21
2,837
27
6,289
0
3
0
0
0
0.29
48
9,129
41
7,389
52
5,078
40
4,595
92
180
103
161
1,233
3,697
2
0
0
4,932
4,030
3,652
2,835
135
142
Hawaii .....
46
121
0
0
0
167
135
138
107
121
126
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine
Mammals section of the 2018 HSTT final rule), both in and outside of the U.S. EEZ. Because the portion of the Navy’s study area inside the U.S. EEZ is generally concomitant with the area
used to generate the abundance estimates in the SARs, and the abundance predicted by the same underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
The annual mortality of 0.29 is the result of no more than two mortalities over the course of seven years from vessel strikes as described above in the Estimated Take of Marine Mammals
section.
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TABLE 19—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR
MYSTICETES IN THE SOCAL PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL
TAKE AS A PERCENTAGE OF STOCK ABUNDANCE.
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Species
Blue whale ...........
Bryde’s whale ......
Fin whale .............
Humpback whale
Minke whale ........
Sei whale .............
Gray whale ..........
Gray whale ..........
Stock
Eastern North Pacific.
Eastern Tropical
Pacific.
CA/OR/WA ..........
CA/OR/WA ..........
CA/OR/WA ..........
Eastern North Pacific.
Eastern North Pacific.
Western North
Pacific.
Level B harassment
Level A harassment
Behavioral
disturbance
TTS (may
also include
disturbance)
792
1,196
Total takes
(entire
Study Area)
Mortality
Tissue
damage
PTS
1
0
Total takes
0.14
Abundance
Navy
abundance
in Action
Area
(SOCAL)
1,989
Instance of total take as
percent of abundance
NMFS
SARS
abundance
Total take as
percentage of
total Navy
abundance in
Action Area
Total take as
percentage of
total SAR
abundance
785
1,496
253
133
14
27
0
0
0
41
1
unknown
3,154
unknown
835
480
259
27
1,390
1,514
666
52
1
1
1
0
0
0
0
0
0.29
0.14
0
0
2,226
1,995
926
79
363
247
163
3
9,029
2,900
636
519
613
808
568
2,633
25
69
146
15
1,316
3,355
7
0
0.29
4,678
193
26,960
2,424
17
2
4
0
0
0
6
0
290
0
2
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state
and beyond and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we
compare predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
The annual mortality of 0.14 is the result of no more than one mortality over the course of seven years from vessel strikes as described above in the Estimated Take of Marine Mammals section. The annual mortality of 0.29 is the result of no more than two mortalities over the course of seven years from vessel strikes.
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Below we compile and summarize the
information that supports our
determination that the Navy’s activities
will not adversely affect any species or
stocks through effects on annual rates of
recruitment or survival for any of the
affected mysticete stocks.
Blue Whale (Eastern North Pacific
Stock)
The SAR identifies this stock as
‘‘stable’’ even though the larger species
is listed as endangered under the ESA.
We further note that this species was
originally listed under the ESA as a
result of the impacts from commercial
whaling, which is no longer affecting
the species. No Level A harassment by
tissue damage is anticipated or
authorized. NMFS will authorize one
mortality over the seven years covered
by this rule, or 0.14 mortality annually.
With the addition of this 0.14 annual
mortality, residual PBR is exceeded,
resulting in the total human-caused
mortality exceeding PBR by 17.44.
However, as described in more detail in
the Serious Injury or Mortality section
above, when total human-caused
mortality exceeds PBR, we consider
whether the incremental addition of a
small amount of authorized mortality
from the specified activity may still
result in a negligible impact, in part by
identifying whether it is less than 10
percent of PBR. In this case, the
authorized mortality is well below 10
percent of PBR, management measures
are in place to reduce mortality from
other sources, and the incremental
addition of a single mortality over the
course of the seven-year Navy rule is not
expected to, alone, lead to adverse
impacts on the stock through effects on
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annual rates of recruitment or survival.
In addition, even with the additional
two years of activities under this rule,
no additional M/SI is estimated for this
stock, leading to a slight decrease (from
0.2 to 0.14 annually) in annual mortality
from the 2018 HSTT final rule.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 253 and 133 percent,
respectively. Given the range of blue
whales, this information suggests that
only some smaller portion of
individuals in the stock are likely
impacted, but that there will likely be
some repeat exposure (maybe 5 or 6
days within a year) of some subset of
individuals that spend extended time
within the SOCAL Range. Some of these
takes could occur on a few sequential
days for some small number of
individuals, for example, if they
resulted from a multi-day exercise on a
range while individuals were in the area
for multiple days feeding. However,
these amounts are still not expected to
adversely impact reproduction or
survival of any individuals. Regarding
the severity of those individual Level B
harassment takes by behavioral
disruption, the duration of any exposure
is expected to be between minutes and
hours (i.e., relatively short) and the
received sound levels largely below 172
dB with a portion up to 178 dB (i.e., of
a moderate or lower level, less likely to
evoke a severe response). Additionally,
the Navy implements time/area
mitigation in SOCAL in the majority of
the BIAs, which will reduce the severity
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of impacts to blue whales by reducing
interference in feeding that could result
in lost feeding opportunities or
necessitate additional energy
expenditure to find other good
opportunities. Regarding the severity of
TTS takes, we have explained in the
2018 HSTT final rule that they are
expected to be low-level, of short
duration, and mostly not in a frequency
band that would be expected to interfere
with blue whale communication or
other important low-frequency cues—
and the associated lost opportunities
and capabilities are not at a level that
will impact reproduction or survival.
For similar reasons (as described in the
2018 HSTT final rule) the single
estimated Level A harassment take by
PTS for this stock is unlikely to have
any effect on the reproduction or
survival of that one individual, even if
it were to be experienced by an animal
that also experiences one or more Level
B harassment takes by behavioral
disruption.
Altogether, this population is stable,
only a smaller portion of the stock is
anticipated to be impacted, and any
individual blue whale is likely to be
disturbed at a low-moderate level, with
likely many animals exposed only once
or twice and a subset potentially
disturbed across five or six days, but
minimized in biologically important
areas. This low magnitude and severity
of harassment effects is not expected to
result in impacts on the reproduction or
survival of any individuals, let alone
have impacts on annual rates of
recruitment or survival. One individual
is expected to be taken by PTS annually
of likely low severity. A small
permanent loss of hearing sensitivity
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(PTS) may include some degree of
energetic costs for compensating or may
mean some small loss of opportunities
or detection capabilities, but at the
expected scale the estimated one Level
A harassment take by PTS would be
unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of that
individual, let alone have effects on
annual rates of recruitment or survival.
Nor are these harassment takes
combined with the one authorized
mortality (which our earlier analysis
indicated will not have more than a
negligible impact on this stock of blue
whales), expected to adversely affect
this stock through impacts on annual
rates of recruitment or survival. For
these reasons, we have determined, in
consideration of all of the effects of the
Navy’s activities combined, that the
authorized take will have a negligible
impact on the Eastern North Pacific
stock of blue whales.
Bryde’s Whale (Eastern Tropical Pacific
Stock)
Little is known about this stock, or its
status, and it is not listed under the
ESA. No mortality or Level A
harassment is anticipated or authorized.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance is 3,154 percent, however,
the abundance upon which this
percentage is based (1.3 whales from the
Navy estimate, which is extrapolated
from density estimates based on very
few sightings) is clearly erroneous and
the SAR does not include an abundance
estimate because all of the survey data
is outdated (Table 19). However, the
abundance in the early 1980s was
estimated as 22,000 to 24,000, a portion
of the stock was estimated at 13,000 in
1993, and the minimum number in the
Gulf of California alone was estimated at
160 in 1990. Given this information and
there being no indication of dramatic
decline since these population
estimates, along with the fact that 41
total takes of Bryde’s whales were
estimated, this information suggests that
only a small portion of the individuals
in the stock are likely to be impacted,
and few, if any, are likely to be taken
over more than one day. Regarding the
severity of those individual Level B
harassment takes by behavioral
disruption, the duration of any exposure
is expected to be between minutes and
hours (i.e., relatively short) and the
received sound levels largely below 172
dB with a portion up to 178 dB (i.e., of
a moderate or lower level, less likely to
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evoke a severe response). Regarding the
severity of TTS takes, they are expected
to be low-level, of short duration, and
mostly not in a frequency band that
would be expected to interfere with
Bryde’s whale communication or other
important low-frequency cues. Any
associated lost opportunities and
capabilities are not at a level that will
impact reproduction or survival.
Altogether, in spite of the unknown
status and calculated number of
instances of take compared to
abundance, only a small portion of the
stock is anticipated to be impacted
based on the more likely minimum
population level and any individual
Bryde’s whale is likely to be disturbed
at a low-moderate level, with few, if
any, individuals exposed over more
than one day in the year. No mortality
and no Level A harassment is
anticipated or proposed for
authorization. This low magnitude and
severity of harassment effects is not
expected to result in impacts on
individual reproduction or survival,
much less annual rates of recruitment or
survival. For these reasons, we have
determined, in consideration of all of
the effects of the Navy’s activities
combined, that the authorized take will
have a negligible impact on the Eastern
Tropical Pacific stock of Bryde’s whales.
Fin Whale (CA/OR/WA Stock)
The SAR identifies this stock as
‘‘increasing,’’ even though the larger
species is listed as endangered under
the ESA. No Level A harassment by
tissue damage is anticipated or
authorized. NMFS authorizes two
mortalities over the seven years covered
by this rule, or 0.29 mortality annually.
The addition of this 0.29 annual
mortality still leaves the total humancaused mortality well under the
insignificance threshold of residual
PBR. In addition, even with the
additional two years of activities under
this rule, no additional M/SI is
estimated for this stock, leading to a
slight decrease (from 0.4 to 0.29
annually) in annual mortality from the
2018 HSTT final rule.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 613 and 25 percent,
respectively. This information suggests
that only some portion (less than 25
percent) of individuals in the stock are
likely impacted, but that there is likely
some repeat exposure (perhaps up to 12
days within a year) of some subset of
individuals that spend extended time
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within the SOCAL complex. Some of
these takes could occur on a few
sequential days for some small number
of individuals, for example, if they
resulted from a multi-day exercise on a
range while individuals were in the area
for multiple days feeding. However,
these amounts are still not expected to
adversely impact reproduction or
survival of any individuals. Regarding
the severity of those individual Level B
harassment takes by behavioral
disruption, the duration of any exposure
is expected to be between minutes and
hours (i.e., relatively short) and the
received sound levels largely below 172
dB with a portion up to 178 dB (i.e., of
a moderate or lower level, less likely to
evoke a severe response). Additionally,
while there are no BIAs for fin whales
in the SOCAL range, the Navy
implements time/area mitigation in
SOCAL in blue whale BIAs, and fin
whales are known to sometimes feed in
some of the same areas, which means
they could potentially accrue some
benefits from the mitigation. Regarding
the severity of TTS takes, they are
expected to be low-level, of short
duration, and mostly not in a frequency
band that would be expected to interfere
with fin whale communication or other
important low-frequency cues—and the
associated lost opportunities and
capabilities are not at a level that will
impact reproduction or survival. For
similar reasons (as described in the 2018
HSTT final rule) the single estimated
Level A harassment take by PTS for this
stock is unlikely to have any effects on
the reproduction or survival of that one
individual, even if it were to be
experienced by an animal that also
experiences one or more Level B
harassment takes by behavioral
disruption.
Altogether, this population is
increasing, only a small portion of the
stock is anticipated to be impacted, and
any individual fin whale is likely to be
disturbed at a low-moderate level, with
the taken individuals likely exposed
between one and twelve days, with a
few individuals potentially taken on a
few sequential days. This low
magnitude and severity of harassment
effects is not expected to result in
impacts on the reproduction or survival
for any individuals, let alone have
impacts on annual rates of recruitment
or survival. One individual is expected
to be taken by PTS annually of likely
low severity. A small permanent loss of
hearing sensitivity (PTS) may include
some degree of energetic costs for
compensating or may mean some small
loss of opportunities or detection
capabilities, but at the expected scale
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the estimated one Level A harassment
take by PTS would be unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of that individual,
let alone have effects on annual rates of
recruitment or survival. Nor are these
harassment takes combined with the
two authorized mortalities expected to
adversely affect this stock through
impacts on annual rates of recruitment
or survival. For these reasons, we have
determined, in consideration of all of
the effects of the Navy’s activities
combined, that the authorized take will
have a negligible impact on the CA/OR/
WA stock of fin whales.
Humpback Whale (CA/OR/WA Stock)
The SAR identifies this stock as stable
(having shown a long-term increase
from 1990 and then leveling off between
2008 and 2014) and the individuals in
this stock are associated with three
DPSs, one of which is not listed under
the ESA (Hawaii), one of which is listed
as threatened (Mexico), and one of
which is listed as endangered (Central
America). Individuals encountered in
the SOCAL portion of the HSTT Study
Area are likely to come from the latter
two DPSs. No Level A harassment by
tissue damage is anticipated or
authorized. NMFS authorizes one
mortality over the seven years covered
by this rule, or 0.14 mortality annually
(Mexico DPS only). With the addition of
this 0.14 annual mortality, the total
human-caused mortality exceeds PBR
by 8.84. However, as described in more
detail in the Serious Injury or Mortality
section, when total human-caused
mortality exceeds PBR, we consider
whether the incremental addition of a
small amount of authorized mortality
from the specified activity may still
result in a negligible impact, in part by
identifying whether it is less than 10
percent of PBR, which is 33.4. In this
case, the authorized mortality is well
below 10 percent of PBR (less than one
percent, in fact) and management
measures are in place to reduce
mortality from other sources. More
importantly, as described above in the
Serious Injury or Mortality section, the
authorized mortality of 0.14 will not
delay the time to recovery by more than
1 percent. Given these considerations
along with those discussed earlier, the
incremental addition of a single
mortality over the course of the sevenyear Navy rule is not expected to, alone,
lead to adverse impacts on the stock
through effects on annual rates of
recruitment or survival. In addition,
even with the additional two years of
activities under this rule, no additional
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M/SI is estimated for this stock, leading
to a slight decrease (from 0.2 to 0.14
annually) in annual mortality from the
2018 HSTT final rule.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 808 and 69 percent,
respectively. Given the range of
humpback whales, this information
suggests that only some portion of
individuals in the stock are likely
impacted, but that there is likely some
repeat exposure (perhaps up to 16 days
within a year) of some subset of
individuals that spend extended time
within the SOCAL complex. Regarding
the severity of those individual Level B
harassment takes by behavioral
disruption, the duration of any exposure
is expected to be between minutes and
hours (i.e., relatively short) and the
received sound levels largely below 172
dB with a portion up to 178 dB (i.e., of
a moderate or lower level, less likely to
evoke a severe response). Some of these
takes could occur on several sequential
days for some small number of
individuals, for example, if they
resulted from a multi-day exercise on a
range while individuals were in the area
for multiple days feeding. However,
these amounts are still not expected to
adversely impact reproduction or
survival of any individuals.
Regarding the severity of TTS takes,
they are expected to be low-level, of
short duration, and mostly not in a
frequency band that would be expected
to interfere with humpback whale
communication or other important lowfrequency cues—and the associated lost
opportunities and capabilities are not at
a level that will impact reproduction or
survival. For similar reasons (as
described in the 2018 HSTT final rule)
the single estimated Level A harassment
take by PTS for this stock is unlikely to
have any effects on the reproduction or
survival of that one individual, even if
it were to be experienced by an animal
that also experiences one or more Level
B harassment takes by behavioral
disruption.
Altogether, this population is stable,
only a small portion of the stock is
anticipated to be impacted and any
individual humpback whale is likely to
be disturbed at a low-moderate level,
with likely many animals exposed only
once or twice and a subset potentially
disturbed up to 16 days, but with no
reason to think that more than several
of those days would be sequential. This
low magnitude and severity of
harassment effects is not expected to
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result in impacts on the reproduction or
survival of any individuals, let alone
have impacts on annual rates of
recruitment or survival. One individual
is expected to be taken by PTS annually
of likely low severity. A small
permanent loss of hearing sensitivity
(PTS) may include some degree of
energetic costs for compensating or may
mean some small loss of opportunities
or detection capabilities, but at the
expected scale the estimated one Level
A harassment take by PTS would be
unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of that
individual, let alone have effects on
annual rates of recruitment or survival.
Nor are these harassment takes
combined with the one authorized
mortality (which our earlier analysis
indicated will not have more than a
negligible impact on this stock of
humpback whales) expected to
adversely affect this stock through
impacts on annual rates of recruitment
or survival. For these reasons, we have
determined, in consideration of all of
the effects of the Navy’s activities
combined, that the authorized take will
have a negligible impact on the CA/OR/
WA stock of humpback whales.
Minke Whale (CA/OR/WA Stock)
The status of this stock is unknown
and it is not listed under the ESA. No
mortality from vessel strike or Level A
harassment by tissue damage from
explosive exposure is anticipated or
authorized for this species. Regarding
the magnitude of Level B harassment
takes (TTS and behavioral disruption),
the number of estimated total instances
of take compared to the abundance
(measured against both the Navyestimated abundance and the SAR) is
568 and 146 percent, respectively.
Based on the behaviors of minke
whales, which often occur along
continental shelves and sometimes
establish home ranges along the West
Coast, this information suggests that
only a portion of individuals in the
stock are likely impacted, but that there
is likely some repeat exposure (perhaps
up to 11 days within a year) of some
subset of individuals that spend
extended time within the SOCAL
complex. Some of these takes could
occur on a few sequential days for some
small number of individuals, for
example, if they resulted from a multiday exercise on a range while
individuals were in the area for multiple
days feeding. However, these amounts
are still not expected to adversely
impact reproduction or survival of any
individuals. Regarding the severity of
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those individual Level B harassment
takes by behavioral disruption, the
duration of any exposure is expected to
be between minutes and hours (i.e.,
relatively short) and the received sound
levels largely below 172 dB with a
portion up to 178 dB (i.e., of a moderate
or lower level, less likely to evoke a
severe response). Regarding the severity
of TTS takes, they are expected to be
low-level, of short duration, and mostly
not in a frequency band that would be
expected to interfere with minke whale
communication or other important lowfrequency cues—and the associated lost
opportunities and capabilities are not at
a level that will impact reproduction or
survival. For similar reasons (as
described in the 2018 HSTT final rule)
the single estimated Level A harassment
take by PTS for this stock is unlikely to
have any effects on the reproduction or
survival of that individual, even if it
were to be experienced by an animal
that also experiences one or more Level
B harassment takes by behavioral
disruption.
Altogether, while the status of this
population is unknown, only a portion
of the stock is anticipated to be
impacted and any individual minke
whale is likely to be disturbed at a lowmoderate level, with the taken
individuals likely exposed between one
and eleven days, with a few individuals
potentially taken on a few sequential
days. No mortality is anticipated or
proposed for authorization. This low
magnitude and severity of harassment
effects is not expected to result in
impacts on individual reproduction or
survival, let alone have impacts on
annual rates of recruitment or survival.
One individual is expected to be taken
by PTS annually of likely low severity.
A small permanent loss of hearing
sensitivity (PTS) may include some
degree of energetic costs for
compensating or may mean some small
loss of opportunities or detection
capabilities, but at the expected scale
the estimated one Level A harassment
take by PTS would be unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of that individual,
let alone have effects on annual rates of
recruitment or survival. For these
reasons, we have determined, in
consideration of all of the effects of the
Navy’s activities combined, that the
authorized take will have a negligible
impact on the CA/OR/WA stock of
minke whales.
Sei Whale (Eastern North Pacific Stock)
The status of this stock is unknown
and it is listed as endangered under the
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ESA. No mortality or Level A
harassment is anticipated or authorized.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 2,633 and 15 percent,
respectively, however, the abundance
upon which the Navy percentage is
based (3 from the Navy estimate, which
is extrapolated from density estimates
based on very few sightings) is likely an
underestimate of the number of
individuals in the HSTT Study Area,
resulting in an overestimated
percentage. Given this information and
the large range of sei whales, and the
fact that only 79 total Level B
harassment takes of sei whales were
estimated, it is likely that some very
small number of sei whales would be
taken repeatedly, potentially up to 15
days in a year (typically 2,633 percent
would lead to the estimate of 52 days/
year, however, given that there are only
79 sei whale total takes, we used the
conservative assumption that five
individuals might be taken up to 15
times, with the few remaining takes
distributed among other individuals).
Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, the duration of
any exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB with a portion up to 178
dB (i.e., of a moderate or lower level,
less likely to evoke a severe response).
Some of these takes could occur on a
few sequential days for some small
number of individuals, for example, if
they resulted from a multi-day exercise
on a range while individuals were in the
area for multiple days feeding, however,
these amounts are still not expected to
adversely impact reproduction or
survival of any individuals. Regarding
the severity of TTS takes, they are
expected to be low-level, of short
duration, and mostly not in a frequency
band that would be expected to interfere
with sei whale communication or other
important low-frequency cues—and the
associated lost opportunities and
capabilities are not at a level that will
impact reproduction or survival.
Altogether, while the status of this
population is unknown, only a small
portion of the stock is anticipated to be
impacted and any individual sei whale
is likely to be disturbed at a lowmoderate level, with only a few
individuals exposed over one to 15 days
in a year, with no more than a few
sequential days. No mortality or Level A
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harassment is anticipated or authorized.
This low magnitude and severity of
harassment effects is not expected to
result in impacts on individual
reproduction or survival, much less
annual rates of recruitment or survival
for the stock. For these reasons, we have
determined, in consideration of all of
the effects of the Navy’s activities
combined, that the authorized take will
have a negligible impact on the Eastern
North Pacific stock of sei whales.
Gray Whale (Eastern North Pacific
Stock)
The SAR identifies this stock as
‘‘increasing’’ and the species is not
listed under the ESA. No Level A
harassment by tissue damage is
anticipated or authorized. NMFS is
authorizing two mortalities over the
seven years covered by this rule, or 0.29
mortality annually. The addition of this
0.29 annual mortality still leaves the
total human-caused mortality well
under the insignificance threshold of
residual PBR (663). On May 31, 2019,
NMFS declared the unusual spike in
strandings of gray whales along the west
coast of North America since January 1,
2019 an UME. As of March 13, 2020,
264 gray whales have stranded along the
west coast of North America (in the
U.S., Canada, and Mexico). Including
these mortalities in the calculated
residual PBR still leaves the addition of
0.29 annual mortality well under the
insignificance threshold of residual PBR
(399 including known deaths due to the
UME). In addition, even with the
additional two years of activities under
this rule, no additional M/SI is
estimated for this stock, leading to a
slight decrease (from 0.4 to 0.29
annually) in annual mortality from the
2018 HSTT final rule.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 2,424 and 17 percent,
respectively. This information suggests
that only some small portion of
individuals in the stock are likely
impacted (less than 17 percent), but that
there is likely some level of repeat
exposure of some subset of individuals
that spend extended time within the
SOCAL complex. Typically, 2,424
percent would lead to the estimate of 48
days/year, however, given that a large
number of gray whales are known to
migrate through the SOCAL complex
and the fact that there are 4,678 total
takes, we believe that it is more likely
that a larger number of individuals
would be taken one to a few times,
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while a small number staying in an area
to feed for several days may be taken on
5–10 days. Regarding the severity of
those individual Level B harassment
takes by behavioral disruption, the
duration of any exposure is expected to
be between minutes and hours (i.e.,
relatively short) and the received sound
levels largely below 172 dB with a
portion up to 178 dB (i.e., of a moderate
or lower level, less likely to evoke a
severe response). Some of these takes
could occur on a few sequential days for
some small number of individuals,
however, these amounts are still not
expected to adversely impact
reproduction or survival of any
individuals.
Regarding the severity of TTS takes,
they are expected to be low-level, of
short duration, and mostly not in a
frequency band that would be expected
to interfere with gray whale
communication or other important lowfrequency cues, and the associated lost
opportunities and capabilities are not at
a level that will impact reproduction or
survival. For these same reasons (low
level and frequency band), while a small
permanent loss of hearing sensitivity
may include some degree of energetic
costs for compensating or may mean
some small loss of opportunities or
detection capabilities, at the expected
scale the 7 estimated Level A
harassment takes by PTS for gray whales
will be unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of any
individuals, even if it were to be
experienced by an animal that also
experiences one or more Level B
harassment takes by behavioral
disruption.
Altogether, while we have considered
the impacts of the gray whale UME, gray
whales are not endangered or threatened
under the ESA and the Eastern North
Pacific stock is increasing. Only a small
portion of the stock is anticipated to be
impacted and any individual gray whale
is likely to be disturbed at a lowmoderate level, with likely many
animals exposed only once or twice and
a subset potentially disturbed across
five to ten days. This low magnitude
and severity of harassment effects is not
expected to result in impacts to
reproduction or survival for any
individuals, let alone have impacts on
annual rates of recruitment or survival.
Seven individuals are expected to be
taken by PTS annually of likely low
severity, with this unlikely to impact
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
survival of those individuals, let alone
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have effects on annual rates of
recruitment or survival. Nor are these
harassment takes combined with the
two authorized mortalities expected to
adversely affect this stock through
impacts on annual rates of recruitment
or survival. For these reasons, we have
determined, in consideration of all of
the effects of the Navy’s activities
combined, that the authorized take will
have a negligible impact on the Eastern
North Pacific stock of gray whales.
Gray Whale (Western North Pacific
Stock)
The Western North Pacific stock of
gray whales is reported as increasing in
the 2018 final SAR, but is listed as
endangered under the ESA. No
mortality or Level A harassment is
anticipated or authorization. This stock
is expected to incur the very small
number of 6 Level B harassment takes
(2 behavioral disruption and 4 TTS) to
a stock with a SAR-estimated
abundance of 290. These takes will
likely accrue to different individuals,
the behavioral disturbances will be of a
low-moderate level, and the TTS
instances will be at a low level and of
short duration (with the same expected
effects as described for the Eastern
North Pacific stock of gray whales
described above). This low magnitude
and severity of harassment effects is not
expected to result in impacts on
individual reproduction or survival,
much less to adversely affect this stock
through impacts on annual rates of
recruitment or survival. For these
reasons, we have determined, in
consideration of all of the effects of the
Navy’s activities combined, that the
authorized take will have a negligible
impact on the Western North Pacific
stock of gray whales.
Humpback Whale (Central North Pacific
Stock)
The 2018 final SAR identifies this
stock as ‘‘increasing’’ and the DPS is not
listed under the ESA. No Level A
harassment by tissue damage is
anticipated or authorized. NMFS
authorizes two mortalities over the
seven years covered by this rule, or 0.29
mortalities annually. The addition of
this 0.29 annual mortality still leaves
the total human-caused mortality well
under the insignificance threshold for
residual PBR. In addition, even with the
additional two years of activities under
this rule, no additional M/SI is
estimated for this stock, leading to a
slight decrease (from 0.4 to 0.29
annually) in annual mortality from the
2018 HSTT final rule.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
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disruption), the number of estimated
instances of take compared to the
abundance, both throughout the HSTT
Study Area and within the U.S. EEZ,
respectively, is 180 and 161 percent.
This information and the complicated
far-ranging nature of the stock structure
suggests that some portion of the stock
(but not all) are likely impacted, over
one to several days per year, with little
likelihood of take across sequential
days. Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, the duration of
any exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB with a portion up to 178
dB (i.e., of a moderate or lower level,
less likely to evoke a severe response).
Additionally, as noted above, there are
two mitigation areas implemented by
the Navy that span a large area of the
important humpback reproductive area
(BIA) and minimize impacts by limiting
the use of MF1 active sonar and
explosives, thereby reducing both the
number and severity of takes of
humpback whales. Regarding the
severity of TTS takes, they are expected
to be low-level, of short duration, and
mostly not in a frequency band that
would be expected to interfere with
humpback whale communication or
other important low-frequency cues,
and the associated lost opportunities
and capabilities are not at a level that
will impact reproduction or survival.
For these same reasons (low level and
frequency band), while a small
permanent loss of hearing sensitivity
may include some degree of energetic
costs for compensating or may mean
some small loss of opportunities or
detection capabilities, at the expected
scale the three estimated Level A
harassment takes by PTS for humpback
whales will be unlikely to impact
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
survival of any individuals, even if it
were to be experienced by an animal
that also experiences one or more Level
B harassment takes by behavioral
disruption.
Altogether, this stock is increasing
and the DPS is not listed as endangered
or threatened under the ESA. Only a
small portion of the stock is anticipated
to be impacted and any individual
humpback whale is likely to be
disturbed at a low-moderate level, with
the taken individuals likely exposed
between one to several days per year,
with little likelihood of take across
sequential days. This low magnitude
and severity of harassment effects is not
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expected to result in impacts on
individual reproduction or survival, let
alone have impacts on annual rates of
recruitment or survival. Three
individuals are estimated to be taken by
PTS annually of likely low severity,
with this unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of
those individuals, let alone have effects
on annual rates of recruitment or
survival. Nor are these harassment takes
combined with the two authorized
mortalities expected to adversely affect
this stock through impacts on annual
rates of recruitment or survival. For
these reasons, we have determined, in
consideration of all of the effects of the
Navy’s activities combined, that the
authorized take will have a negligible
impact on the Central North Pacific
stock of humpback whales.
Blue Whale (Central North Pacific
Stock) and the Hawaii Stocks of Bryde’s
Whale, Fin Whale, Minke Whale, and
Sei Whale
The status of these stocks is not
identified in the SARs. Blue whales, fin
whales, and sei whales are listed as
endangered under the ESA; minke
whales and Bryde’s whales (other than
the Gulf of Mexico DPS) are not listed
under the ESA. No mortality or Level A
harassment by tissue damage is
anticipated or authorized for any of
these stocks.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
instances of take compared to the
abundance, both throughout the HSTT
Study Area and within the U.S. EEZ,
respectively, is 92–135 and 103–142
percent. This information suggests that
some portion of the stocks (but not all)
are likely impacted, over one to several
days per year, with little likelihood of
take across sequential days. Regarding
the severity of those individual Level B
harassment takes by behavioral
disruption, the duration of any exposure
is expected to be between minutes and
hours (i.e., relatively short) and the
received sound levels largely below 172
dB with a portion up to 178 dB (i.e., of
a moderate or lower level, less likely to
evoke a severe response). Regarding the
severity of TTS takes, they are expected
to be low-level, of short duration, and
mostly not in a frequency band that
would be expected to interfere with
mysticete communication or other
important low-frequency cues—and the
associated lost opportunities and
capabilities are not at a level that will
impact reproduction or survival. For
similar reasons (as described in the 2018
HSTT final rule) the two estimated
Level A harassment takes by PTS for the
Hawaii stock of minke whales are
unlikely to have any effects on the
reproduction or survival of those two
individuals, even if it were to be
experienced by an animal that also
experiences one or more Level B
harassment takes by behavioral
disruption.
Altogether, while the status of these
populations is unknown, only a portion
of these stocks are anticipated to be
impacted and any individuals of these
stocks are likely to be disturbed at a
low-moderate level, with the taken
individuals likely exposed between one
and several days, with little chance that
any are taken across sequential days. No
mortality is anticipated or authorized
for any of these stocks. This low
magnitude and severity of harassment
effects is not expected to result in
impacts on individual reproduction or
survival, let alone have impacts on
annual rates of recruitment or survival.
Two individual minke whales from the
Hawaii stock are estimated to be taken
by PTS annually of likely low severity.
A small permanent loss of hearing
sensitivity (PTS) may include some
degree of energetic costs for
compensating or may mean some small
loss of opportunities or detection
capabilities, but at the expected scale
the estimated Level A harassment take
by PTS would be unlikely to impact
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
survival of those individuals, let alone
have effects on annual rates of
recruitment or survival. For these
reasons, we have determined, in
consideration of all of the effects of the
Navy’s activities combined, that the
authorized take will have a negligible
impact on these stocks.
Odontocetes
Sperm Whales, Dwarf Sperm Whales,
and Pygmy Sperm Whales
In Tables 20 and 21 below for sperm
whales, dwarf sperm whales, and
pygmy sperm whales, we indicate the
total annual mortality, Level A and
Level B harassment, and a number
indicating the instances of total take as
a percentage of abundance. Tables 20
and 21 are unchanged from Tables 73
and 74 in the 2018 HSTT final rule,
except for updated information on
mortality for the Hawaii stock of sperm
whales, as discussed above. For
additional information and analysis
supporting the negligible-impact
analysis, see the Odontocetes discussion
as well as the Sperm Whales, Dwarf
Sperm Whales, and Pygmy Sperm
Whales discussion in the Group and
Species-Specific Analyses section of the
2018 HSTT final rule, all of which
remains applicable to this final rule
unless specifically noted.
TABLE 20—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR SPERM
WHALES, DWARF SPERM WHALES, AND PYGMY SPERM WHALES IN THE HRC PORTION OF THE HSTT STUDY AREA
AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Abundance
Level B harassment
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Species
Dwarf
sperm
whale.
Pygmy
sperm
whale.
Sperm
whale.
Stock
Level A harassment
Within EEZ
Navy
abundance
(HRC)
Total take as
percentage of
total Navy
abundance
(HRC)
EEZ take as
percentage of
EEZ
abundance
(HRC)
8,218
6,379
249
240
6,098
3,349
2,600
244
235
1,317
1,656
1,317
151
147
Total takes
(entire study
area)
Takes
(within
NAVY EEZ)
Behavioral
disturbance
TTS
(may also
include
disturbance)
Hawaii .....
5,870
14,550
64
0
0
20,484
15,310
Hawaii .....
2,329
5,822
29
0
0
8,180
Hawaii .....
2,466
30
0
0
0.14
2,496
Mortality
Tissue
damage
PTS
Total Navy
abundance
inside and
outside
EEZ
(HRC)
Instances of total take as
percent of abundance
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine
Mammals section of the 2018 HSTT final rule), both in and outside of the U.S. EEZ. Because the portion of the Navy’s study area inside the U.S. EEZ is generally concomitant with the area
used to generate the abundance estimates in the SARs, and the abundance predicted by the same underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
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The annual mortality of 0.14 is the result of no more than one mortality over the course of seven years from vessel strikes as described above in the Estimated Take of Marine Mammals
section.
TABLE 21—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR SPERM
WHALES, DWARF SPERM WHALES, AND PYGMY SPERM WHALES IN THE SOCAL PORTION OF THE HSTT STUDY
AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Level B harassment
Species
Kogia whales .......
Sperm whale .......
Stock
CA/OR/WA ..........
CA/OR/WA ..........
Level A harassment
Behavioral
disturbance
TTS
(may also
include
disturbance)
2,779
2,437
6,353
56
Total takes
(entire study
area)
Mortality
Tissue
damage
PTS
38
0
0
0
0
0
Abundance
Navy
abundance
in action
area
9,170
2,493
Instances of total take as
percent of abundance
NMFS
SARS
abundance
757
273
4,111
1,997
Total take as
percentage of
total Navy
abundance in
action area
Total take as
percentage of
total SAR
abundance
1,211
913
223
125
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state
and beyond and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we
compare predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
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Below we compile and summarize the
information that supports our
determination that the Navy’s activities
will not adversely affect any species or
stocks through effects on annual rates of
recruitment or survival for any of the
affected stocks addressed in this section.
Sperm Whale, Dwarf Sperm Whale, and
Pygmy Sperm Whale (CA/OR/WA
Stocks)
The SAR identifies the CA/OR/WA
stock of sperm whales as ‘‘stable’’ and
the species is listed as endangered
under the ESA. The status of the CA/
OR/WA stocks of pygmy and dwarf
sperm whales is unknown and neither
are listed under the ESA. Neither
mortality nor Level A harassment by
tissue damage from exposure to
explosives is expected or authorized for
any of these three stocks.
Due to their pelagic distribution,
small size, and cryptic behavior, pygmy
sperm whales and dwarf sperm whales
(Kogia species) are rarely sighted during
at-sea surveys and are difficult to
distinguish between when visually
observed in the field. Many of the
relatively few observations of Kogia
species off the U.S. West Coast were not
identified to species. All at-sea sightings
of Kogia species have been identified as
pygmy sperm whales or Kogia species
generally. Stranded dwarf sperm and
pygmy sperm whales have been found
on the U.S. West Coast, however dwarf
sperm whale strandings are rare. NMFS
SARs suggest that the majority of Kogia
sighted off the U.S. West Coast were
likely pygmy sperm whales. As such,
the stock estimate in the NMFS SAR for
pygmy sperm whales is the estimate
derived for all Kogia species in the
region (Barlow, 2016), and no separate
abundance estimate can be determined
for dwarf sperm whales, though some
low number likely reside in the U.S.
EEZ. Due to the lack of an abundance
estimate it is not possible to predict the
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amount of Level A harassment and
Level B harassment take of dwarf sperm
whales and therefore take estimates are
identified as Kogia whales (including
both pygmy and dwarf sperm whales).
We assume only a small portion of those
takes are likely to be dwarf sperm
whales as the available information
indicates that the density and
abundance in the U.S. EEZ is low.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is, respectively, 913 and 125
percent for sperm whales and 1,211 and
223 percent for Kogia whales, with a
large proportion of the Kogia whales
anticipated to be pygmy sperm whales
due to the low abundance and density
of dwarf sperm whales in the HSTT
Study Area. Given the range of these
stocks (which extends the entire length
of the West Coast, as well as beyond the
U.S. EEZ boundary), this information
suggests that some portion of the
individuals in these stocks will not be
impacted, but that there is likely some
repeat exposure (perhaps up to 24 days
within a year for Kogia species and 18
days a year for sperm whales) of some
small subset of individuals that spend
extended time within the SOCAL Range.
Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, the duration of
any exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB (i.e., of a lower, to
occasionally moderate, level and less
likely to evoke a severe response).
Additionally, while interrupted feeding
bouts are a known response and concern
for odontocetes, we also know that there
are often viable alternative habitat
options in the relative vicinity.
However, some of these takes could
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occur on a fair number of sequential
days for some number of individuals.
Regarding the severity of TTS takes,
they are expected to be low-level, of
short duration, and mostly not in a
frequency band that would be expected
to interfere with any of these three
species’ communication or other
important low-frequency cues, and that
the associated lost opportunities and
capabilities are not at a level that will
impact reproduction or survival. For
these same reasons (low level and
frequency band), while a small
permanent loss of hearing sensitivity
(PTS) may include some degree of
energetic costs for compensating or may
mean some small loss of opportunities
or detection capabilities, at the expected
scale the estimated Level A harassment
takes by PTS for the dwarf and pygmy
sperm whale stocks will be unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of any individuals
(and no Level A harassment takes are
anticipated or authorized for sperm
whales), even if it were to be
experienced by an animal that also
experiences one or more Level B
harassment takes by behavioral
disruption. Thus the 38 Level A
harassment takes by PTS for the two
Kogia stocks are unlikely to affect rates
of recruitment and survival for the
stocks.
Altogether, while this population of
sperm whales is stable and the status of
the Kogia species stocks are unknown,
most members of the stocks will likely
be taken by Level B harassment at a low
to occasionally moderate level over
several days a year, and some smaller
portion of the stocks are expected to be
taken on a relatively moderate to high
number of days (up to 18 or 24) across
the year, some of which could be
sequential days. No mortality is
anticipated or authorized for any of
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these stocks. Thirty-eight individuals
from the two Kogia stocks are expected
to be taken by PTS annually of likely
low severity, with this unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of those individuals.
Though the majority of impacts are
expected to be of a lower to sometimes
moderate severity, the larger number of
takes for a subset of individuals makes
it more likely that a small number of
individuals could be interrupted during
foraging in a manner and amount such
that impacts to the energy budgets of
females (from either losing feeding
opportunities or expending considerable
energy to find alternative feeding
options) could cause them to forego
reproduction for a year. Energetic
impacts to males are generally
meaningless to population rates unless
they cause death, and it takes extreme
energy deficits beyond what would ever
be likely to result from these activities
to cause the death of an adult marine
mammal. As discussed in the 2018
HSTT final rule, however, foregone
reproduction (especially for one year,
which is the maximum predicted
because the small number anticipated in
any one year makes the probability that
any individual would be impacted in
this way twice in seven years very low)
has far less of an impact on population
rates than mortality and a small number
of instances of foregone reproduction is
not expected to adversely affect these
stocks through effects on annual rates of
recruitment or survival. We also note
that residual PBR is 19.2 for pygmy
sperm whales and 1.6 for sperm whales.
Both the abundance and PBR are
unknown for dwarf sperm whales,
however, we know that take of this
stock is likely significantly lower in
magnitude and severity (i.e., lower
number of total takes and repeated takes
of any individual) than pygmy sperm
whales. For these reasons, in
consideration of all of the effects of the
Navy’s activities combined, we have
determined that the authorized take will
have a negligible impact on the CA/OR/
WA stocks of sperm whales and pygmy
and dwarf sperm whales.
Sperm Whale (Hawaii Stock)
The SAR does not identify a trend for
this stock and the species is listed as
endangered under the ESA. No Level A
harassment by PTS or tissue damage is
expected or authorized. NMFS
authorizes one mortality over the seven
years covered by this rule, which is 0.14
mortalities annually. The addition of
this 0.14 annual mortality still leaves
the total human-caused mortality well
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under the insignificance threshold for
residual PBR. In addition, even with the
additional two years of activities under
this rule, no additional M/SI is
estimated for this stock, leading to a
slight decrease (from 0.2 to 0.14
annually) in annual mortality from the
2018 HSTT final rule.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
instances of take compared to the
abundance, both throughout the HSTT
Study Area and within the U.S. EEZ,
respectively, is 151 and 147 percent.
This information and the sperm whale
stock range suggest that likely only a
smaller portion of the stock will be
impacted, over one to a few days per
year, with little likelihood of take across
sequential days. Regarding the severity
of those individual Level B harassment
takes by behavioral disruption, the
duration of any exposure is expected to
be between minutes and hours (i.e.,
relatively short) and the received sound
levels largely below 172 dB (i.e., of a
lower, to occasionally moderate, level
and less likely to evoke a severe
response). Regarding the severity of TTS
takes, they are expected to be low-level,
of short duration, and mostly not in a
frequency band that would be expected
to interfere with sperm whale
communication or other important lowfrequency cues, and the associated lost
opportunities and capabilities are not at
a level that will impact reproduction or
survival.
Altogether, while the status of this
population is unknown, a relatively
small portion of this stock is anticipated
to be impacted and any individuals are
likely to be disturbed at a low-moderate
level, with the taken individuals likely
exposed between one and a few days,
with little chance that any are taken
across sequential days. No Level A
harassment by PTS or tissue damage is
expected or authorized. This low
magnitude and severity of harassment
effects is not expected to result in
impacts on individual reproduction or
survival, nor are these harassment takes
combined with the one authorized
mortality expected to adversely affect
the stock through impacts on annual
rates of recruitment or survival. For
these reasons, we have determined, in
consideration of all of the effects of the
Navy’s activities combined, that the
authorized take will have a negligible
impact on the Hawaii stock of sperm
whales.
Pygmy and Dwarf Sperm Whales
(Hawaii Stocks)
The SAR does not identify a trend for
these stocks and the species are not
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Sfmt 4700
41881
listed under the ESA. No mortality or
Level A harassment by tissue damage is
anticipated or authorized. Regarding the
magnitude of Level B harassment takes
(TTS and behavioral disruption), the
number of estimated instances of take
compared to the abundance, both
throughout the HSTT Study Area and
within the U.S. EEZ, respectively, is
244–249 and 235–240 percent. This
information and the pygmy and dwarf
sperm whale stock ranges (at least
throughout the U.S. EEZ around the
entire Hawaiian Islands) suggest that
likely a fair portion of each stock is not
impacted, but that a subset of
individuals may be taken over one to
perhaps five days per year, with little
likelihood of take across sequential
days. Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, the duration of
any exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB (i.e., of a lower, to
occasionally moderate, level and less
likely to evoke a severe response).
Additionally, as discussed earlier,
within the Hawaii Island Mitigation
Area, explosives are not used and the
use of MF1 and MF4 active sonar is
limited, greatly reducing the severity of
impacts within the small resident
population BIA for dwarf sperm whales,
which is entirely contained within this
mitigation area.
Regarding the severity of TTS takes,
they are expected to be low-level, of
short duration, and mostly not in a
frequency band that would be expected
to interfere with pygmy or dwarf sperm
whale communication or other
important low-frequency cues—and the
associated lost opportunities and
capabilities are not at a level that will
impact reproduction or survival. For
these same reasons (low level and
frequency band), while a small
permanent loss of hearing sensitivity
may include some degree of energetic
costs for compensating or may mean
some small loss of opportunities or
detection capabilities, at the expected
scale, estimated Level A harassment
takes by PTS for these stocks of dwarf
and pygmy sperm whales will be
unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that will interfere with
reproductive success or survival of any
individuals, even if it were to be
experienced by an animal that also
experiences one or more instances of
Level B harassment by behavioral
disruption. Thus the 64 and 29 total
Level A harassment takes by PTS for
dwarf and pygmy sperm whales,
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or survival for these stocks. Sixty-four
dwarf sperm whales and 29 pygmy
sperm whales are estimated to be taken
by PTS annually of likely low severity,
with this unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of
those individuals, let alone have effects
on annual rates of recruitment or
survival. For these reasons, we have
determined, in consideration of all of
the effects of the Navy’s activities
combined, that the expected and
authorized take will have a negligible
impact on the Hawaii stocks of pygmy
and dwarf sperm whales.
respectively, will be unlikely to affect
rates of recruitment and survival for
these stocks.
Altogether, while the status of these
populations is unknown, only a portion
of these stocks are likely to be impacted
and any individuals are likely to be
disturbed at a low-moderate level, with
the taken individuals likely exposed
between one and five days, with little
chance that any are taken across
sequential days. No mortality is
anticipated or authorized. This low
magnitude and severity of Level B
harassment effects is not expected to
result in impacts on individual
reproduction or survival, let alone have
impacts on annual rates of recruitment
Beaked Whales
In Tables 22 and 23 below for beaked
whales, we indicate the total annual
mortality, Level A and Level B
harassment, and a number indicating
the instances of total take as a
percentage of abundance. Tables 22 and
23 are unchanged from Tables 75 and 76
in the 2018 HSTT final rule. For
additional information and analysis
supporting the negligible-impact
analysis, see the Odontocetes discussion
as well as the Beaked Whales discussion
in the Group and Species-Specific
Analyses section of the 2018 HSTT final
rule, all of which remains applicable to
this final rule unless specifically noted.
TABLE 22—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR BEAKED
WHALES IN THE HRC PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE
AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Abundance
Level B harassment
Species
Blainville’s
beaked
whale.
Cuvier’s
beaked
whale.
Longman’s
beaked
whale.
Stock
Level A harassment
Instances of total take as percent of abundance
Total takes
(entire study
area)
Takes
(within
NAVY EEZ)
Total Navy
abundance
inside and
outside
EEZ (HRC)
Within EEZ
Navy
abundance
(HRC)
Total take as
percentage of
total Navy
abundance
(HRC)
EEZ take as
percentage of
EEZ
abundance
(HRC)
Behavioral
disturbance
TTS
(may also
include disturbance)
Hawaii .....
5,369
16
0
0
0
5,385
4,140
989
768
545
539
Hawaii .....
1,792
4
0
0
0
1,796
1,377
345
268
521
514
Hawaii .....
19,152
81
0
0
0
19,233
14,585
3,568
2,770
539
527
Mortality
Tissue
damage
PTS
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine
Mammals section of the 2018 HSTT final rule), both in and outside of the U.S. EEZ. Because the portion of the Navy’s study area inside the U.S. EEZ is generally concomitant with the area
used to generate the abundance estimates in the SARs, and the abundance predicted by the same underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
TABLE 23—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR BEAKED
WHALES IN THE SOCAL PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL
TAKE AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Level B harassment
Species
Stock
Level A harassment
Behavioral
disturbance
Baird’s beaked
whale.
Cuvier’s beaked
whale.
Mesoplodon species.
TTS
(may also
include
disturbance)
Total takes
(entire study
area)
Mortality
Tissue
damage
PTS
Abundance
Navy
abundance
in action
area
Instances of total take as
percent of abundance
NMFS
SARS
abundance
Total take as
percentage of
total Navy
abundance in
action area
Total take as
percentage of
total SAR
abundance
CA/OR/WA ..........
2,030
14
0
0
0
2,044
74
2,697
2,762
76
CA/OR/WA ..........
11,373
127
1
0
0
11,501
520
3,274
2,212
351
CA/OR/WA ..........
6,125
68
1
0
0
6,194
89
3,044
6,960
203
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Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state
and beyond and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we
compare predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Below we compile and summarize the
information that supports our
determination that the Navy’s activities
will not adversely affect any species or
stocks through effects on annual rates of
recruitment or survival for any of the
affected stocks addressed in this section.
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Blainville’s, Cuvier’s, and Longman’s
Beaked Whales (Hawaii Stocks)
The SAR does not identify a trend for
these stocks and the species are not
listed under the ESA. No mortality or
Level A harassment are expected or
authorized for any of these three stocks.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
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disruption), the number of estimated
instances of take compared to the
abundance, both throughout the HSTT
Study Area and within the U.S. EEZ,
respectively, is 521–545 and 514–539
percent. This information and the stock
ranges (at least of the small, resident
Island associated stocks around Hawaii)
suggest that likely a fair portion of the
stocks (but not all) will be impacted,
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over one to perhaps eleven days per
year, with little likelihood of much take
across sequential days. Regarding the
severity of those individual Level B
harassment takes by behavioral
disruption, the duration of any exposure
is expected to be between minutes and
hours (i.e., relatively short) and the
received sound levels largely below 160
dB, though with beaked whales, which
are considered somewhat more
sensitive, this could mean that some
individuals will leave preferred habitat
for a day or two (i.e., moderate level
takes). However, while interrupted
feeding bouts are a known response and
concern for odontocetes, we also know
that there are often viable alternative
habitat options nearby. Additionally, as
noted earlier, within the Hawaii Island
mitigation area (which entirely contains
the BIAs for Cuvier’s and Blainville’s
beaked whales), explosives are not used
and the use of MF1 and MF4 active
sonar is limited, greatly reducing the
severity of impacts to these two small
resident populations.
Regarding the severity of TTS takes,
they are expected to be low-level, of
short duration, and mostly not in a
frequency band that would be expected
to interfere with beaked whale
communication or other important lowfrequency cues, and the associated lost
opportunities and capabilities are not at
a level that will impact reproduction or
survival.
Altogether, the population trend for
the three stocks is unknown, a fair
portion of these stocks are anticipated to
be impacted, and any individuals are
likely to be disturbed at a moderate
level, with the taken individuals likely
exposed between one and eleven days,
with little chance that individuals are
taken across sequential days. No
mortality or Level A harassment are
expected or authorized for any of these
three stocks. This low, to occasionally
moderate, magnitude and severity of
harassment effects is not expected to
result in impacts on individual
reproduction or survival, much less
have impacts on annual rates of
recruitment or survival for these stocks.
For these reasons, we have determined,
in consideration of all of the effects of
the Navy’s activities combined, that the
authorized take will have a negligible
impact on the Hawaii stocks of beaked
whales.
Baird’s and Cuvier’s Beaked Whales and
Mesoplodon Species (all CA/OR/WA
Stocks)
These species are not listed under the
ESA and their populations have been
identified as ‘‘stable,’’ ‘‘decreasing,’’ and
‘‘increasing,’’ respectively. No mortality
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is expected or authorized for any of
these stocks and only two takes by Level
A harassment (PTS) are expected and
authorized (one each for Cuvier’s
beaked whale and the Mesoplodon
species). No Level A harassment by
tissue damage is anticipated or
authorized.
No methods are available to
distinguish between the six Mesoplodon
beaked whale CA/OR/WA stocks
(Blainville’s beaked whale (M.
densirostris), Perrin’s beaked whale (M.
perrini), Lesser beaked whale (M.
peruvianus), Stejneger’s beaked whale
(M. stejnegeri), Gingko-toothed beaked
whale (M. gingkodens), and Hubbs’
beaked whale (M. carlhubbsi)) when
observed during at-sea surveys (Carretta
et al., 2018). Bycatch and stranding
records from the region indicate that the
Hubbs’ beaked whale is most commonly
encountered (Carretta et al., 2008,
Moore and Barlow, 2013). As indicated
in the SAR, no species-specific
abundance estimates are available, the
abundance estimate includes all CA/
OR/WA Mesoplodon species, and the
six species are managed as one unit.
Due to the lack of species-specific
abundance estimates it is not possible to
predict the take of individual species
and take estimates are also identified as
Mesoplodon species.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance for these stocks is 2,762,
2,212, and 6,960 percent (measured
against Navy-estimated abundance) and
76, 351, and 203 percent (measured
against the SAR) for Baird’s beaked
whales, Cuvier’s beaked whales, and
Mesoplodon species, respectively. Given
the ranges of these stocks, this
information suggests that some smaller
portion of the individuals of these
stocks will be taken, and that some
subset of individuals within the stock
will be taken repeatedly within the year
(perhaps up to 20–25 days, and
potentially more for Cuvier’s)—
potentially over a fair number of
sequential days, especially where
individuals spend extensive time in the
SOCAL Range. Note that we predict
fewer days of repeated exposure for
these stocks than their percentages
might have suggested because of the
number of overall takes—i.e., using the
higher percentage would suggest that an
unlikely portion of the takes are taken
up by a small portion of the stock
incurring a very large number of repeat
takes, with little room for take resulting
from few or moderate numbers of
repeats, which is unlikely.
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41883
Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, we have
explained that the duration of any
exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 160 dB, though with beaked
whales, which are considered somewhat
more sensitive, this could mean that
some individuals will leave preferred
habitat for a day or two (i.e., of a
moderate level). While interrupted
feeding bouts are a known response and
concern for odontocetes, we also know
that there are often viable alternative
habitat options in the relative vicinity.
However, as noted, some of these takes
could occur on a fair number of
sequential days for these stocks.
The severity of TTS takes are
expected to be low-level, of short
duration, and mostly not in a frequency
band that would be expected to interfere
significantly with conspecific
communication, echolocation, or other
important low-frequency cues.
Therefore, the associated lost
opportunities and capabilities are not
expected to impact reproduction or
survival. For similar reasons (as
described in the 2018 HSTT final rule)
the single Level A harassment take each
by PTS for the Cuvier’s beaked whale
stock and the Mesoplodon species is
unlikely to have any effects on the
reproduction or survival of those
individuals, even if it were to be
experienced by an animal that also
experiences one or more Level B
harassment takes by behavioral
disruption.
Altogether, a portion of these stocks
will likely be taken (at a moderate or
sometimes low level) over several days
a year, and some smaller portion of the
stock is expected to be taken on a
relatively moderate to high number of
days across the year, some of which
could be sequential days. No mortality
is expected or authorized for any of
these stocks. Two individuals (one each
for Cuvier’s beaked whale and the
Mesoplodon species) are expected to be
taken by PTS annually of likely low
severity. A small permanent loss of
hearing sensitivity (PTS) may include
some degree of energetic costs for
compensating or may mean some small
loss of opportunities or detection
capabilities, but at the expected scale
the estimated one Level A harassment
take by PTS would be unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of that individual.
Though the majority of impacts are
expected to be of a moderate severity,
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the repeated takes over a potentially fair
number of sequential days for some
individuals makes it more likely that a
small number of individuals could be
interrupted during foraging in a manner
and amount such that impacts to the
energy budgets of females (from either
losing feeding opportunities or
expending considerable energy to find
alternative feeding options) could cause
them to forego reproduction for a year.
Energetic impacts to males are generally
meaningless to population rates unless
they cause death, and it takes extreme
energy deficits beyond what would ever
be likely to result from these activities
to cause the death of an adult marine
mammal. As noted previously, however,
foregone reproduction (especially for
one year, which is the maximum
predicted because the small number
anticipated in any one year makes the
probability that any individual would
be impacted in this way twice in seven
years very low) has far less of an impact
on population rates than mortality and
a small number of instances of foregone
reproduction is not expected to
adversely affect these stocks through
effects on annual rates of recruitment or
survival, especially given the residual
PBR of these three beaked whale stocks
(16, 21, and 20, respectively).
Further, Navy activities have been
conducted in SOCAL for many years at
similar levels and the SAR considers
Mesoplodon species as increasing and
Baird’s beaked whales as stable. While
NMFS’ SAR indicates that Cuvier’s
beaked whales on the U.S. West Coast
are declining based on a Bayesian trend
analysis of NMFS’ survey data collected
from 1991 through 2014, results from
passive acoustic monitoring and other
research have estimated regional
Cuvier’s beaked whale densities that
were higher than indicated by NMFS’
broad-scale visual surveys for the U.S.
West Coast (Debich et al., 2015a; Debich
et al., 2015b; Falcone and Schorr, 2012,
2014; Hildebrand et al., 2009; Moretti,
2016; Sˇirovic´ et al., 2016; Smultea and
Jefferson, 2014). Research also indicates
higher than expected residency in the
Navy’s instrumented Southern
California Anti-Submarine Warfare
Range in particular (Falcone and Schorr,
2012) and photo identification studies
in the SOCAL have identified
approximately 100 individual Cuvier’s
beaked whale individuals with 40
percent having been seen in one or more
prior years, with re-sightings up to
seven years apart (Falcone and Schorr,
2014). The documented residency by
many Cuvier’s beaked whales over
multiple years suggests that a stable
population may exist in that small
portion of the stock’s overall range (e.g.,
Falcone et al., 2009; Falcone and
Schorr, 2014; Schorr et al., 2017).
For these reasons, in consideration of
all of the effects of the Navy’s activities
combined, we have determined that the
authorized take will have a negligible
impact on the CA/OR/WA stocks of
Baird’s and Cuvier’s beaked whales, as
well as all six species included within
the Mesoplodon CA/OR/WA stocks.
Small Whales and Dolphins
In Tables 24 and 25 below for
dolphins and small whales, we indicate
the total annual mortality, Level A and
Level B harassment, and a number
indicating the instances of total take as
a percentage of abundance. Tables 24
and 25 are updated from Tables 77 and
78 in the 2018 HSTT final rule as
appropriate with the 2018 final SARs
and with updated information on
mortality, as discussed above. For
additional information and analysis
supporting the negligible-impact
analysis, see the Odontocetes discussion
as well as the Small Whales and
Dolphins discussion in the Group and
Species-Specific Analyses section of the
2018 HSTT final rule, all of which
remains applicable to this final rule
unless specifically noted.
TABLE 24—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR DOLPHINS
AND SMALL WHALES IN THE HRC PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF
TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Level B harassment
Species
Bottlenose
dolphin.
Bottlenose
dolphin.
Bottlenose
dolphin.
Bottlenose
dolphin.
Bottlenose
dolphin.
False killer
whale.
False killer
whale.
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False killer
whale.
Fraser’s
dolphin.
Killer
whale.
Melonheaded
whale.
Melonheaded
whale.
Pantropical
spotted
dolphin.
Stock
Level A harassment
Total takes
(entire study
area)
Abundance
Takes
(within Navy
EEZ)
Total Navy
abundance
inside and
outside of
EEZ
(HRC)
Instance of total take as
percent of abundance
Within EEZ
Navy
abundance
(HRC)
Total take as
percentage of
total Navy
abundance
(HRC)
EEZ take as
percentage of
Navy EEZ
abundance
(HRC)
Behavioral
disturbance
TTS
(may also
include
disturbance)
3,196
132
0
0
0
3,328
2,481
1,528
1,442
218
172
534
31
0
0
0
565
264
184
184
307
143
Mortality
Tissue
damage
PTS
Hawaii Pelagic.
Kauai &
Niihau.
Oahu .......
8,600
61
1
0
0
8,662
8,376
743
743
1,169
1,130
4-Island ...
349
10
0
0
0
359
316
189
189
190
167
Hawaii .....
74
6
0
0
0
80
42
131
131
61
32
Hawaii Pelagic.
Main Hawaiian
Islands
Insular.
Northwestern
Hawaiian Islands.
Hawaii .....
999
42
0
0
0
1,041
766
645
507
161
151
572
17
0
0
0
589
476
147
147
400
324
365
16
0
0
0
381
280
215
169
177
166
39,784
1,289
2
0
0
41,075
31,120
5,408
18,763
760
166
Hawaii .....
118
6
0
0
0
124
93
69
54
180
172
3,261
231
0
0
0
3,492
2,557
1,782
1,782
196
143
341
9
0
0
0
350
182
447
447
78
41
3,767
227
0
0
0
3,994
2,576
2,405
2,405
166
107
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Hawaii Islands.
Kohala
Resident.
Hawaii Island.
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TABLE 24—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR DOLPHINS
AND SMALL WHALES IN THE HRC PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF
TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE—Continued
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Level B harassment
Species
Pantropical
spotted
dolphin.
Pantropical
spotted
dolphin.
Pantropical
spotted
dolphin.
Pygmy killer whale.
Pygmy killer whale.
Risso’s
dolphin.
Roughtoothed
dolphin.
Shortfinned
pilot
whale.
Spinner
dolphin.
Spinner
dolphin.
Spinner
dolphin.
Spinner
dolphin.
Striped
dolphin.
Stock
Level A harassment
Total takes
(entire study
area)
Abundance
Takes
(within Navy
EEZ)
Total Navy
abundance
inside and
outside of
EEZ
(HRC)
Instance of total take as
percent of abundance
Within EEZ
Navy
abundance
(HRC)
Total take as
percentage of
total Navy
abundance
(HRC)
EEZ take as
percentage of
Navy EEZ
abundance
(HRC)
Behavioral
disturbance
TTS
(may also
include
disturbance)
Hawaii Pelagic.
9,973
476
0
0
0
10,449
7,600
5,462
4,637
191
164
Oahu .......
4,284
45
0
0
0
4,329
4,194
372
372
1,164
1,127
4-Island ...
701
17
0
0
0
718
634
657
657
109
96
Hawaii .....
8,122
402
0
0
0
8,524
6,538
4,928
3,931
173
166
Mortality
Tissue
damage
PTS
Tropical ...
710
50
0
0
0
760
490
159
23
478
2,130
Hawaii .....
8,950
448
0
0
0
9,398
7,318
1,210
4,199
777
174
Hawaii .....
6,112
373
0
0
0
6,485
4,859
3,054
2,808
212
173
Hawaii .....
12,499
433
0
0
0
12,932
9,946
6,433
5,784
201
172
Hawaii Island.
Hawaii Pelagic.
Kauai &
Niihau.
Oahu & 4Island.
Hawaii .....
279
12
0
0
0
291
89
629
629
46
14
4,332
202
0
0
0
4,534
3,491
2,885
2,229
157
157
1,683
63
0
0
0
1,746
812
604
604
289
134
1,790
34
1
0
0
1,825
1,708
354
354
516
482
7,379
405
0
0
0
7,784
6,034
4,779
3,646
163
165
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine
Mammals section of the 2018 HSTT final rule), both in and outside of the U.S. EEZ. Because the portion of the Navy’s study area inside the U.S. EEZ is generally concomitant with the area
used to generate the abundance estimates in the SARs, and the abundance predicted by the same underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
TABLE 25—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR DOLPHINS
AND SMALL WHALES IN THE SOCAL PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES
OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE.
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Species
Bottlenose dolphin
Bottlenose dolphin
Killer whale ..........
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Killer whale ..........
Long-beaked common dolphin.
Northern right
whale dolphin.
Pacific white-sided
dolphin.
Risso’s dolphin ....
Short-beaked
common dolphin.
Short-finned pilot
whale.
Striped dolphin ....
Stock
Level B harassment
Level A harassment
Total takes
Total takes
(entire study
area)
Mortality
Abundance
Navy
abundance
in action
area
(SOCAL)
Instance of total take as
percent of abundance
NMFS
SARS
abundance
Total take as
percentage of
total Navy
abundance in
action area
Total take as
percentage of
total SAR
abundance
Behavioral
disturbance
TTS (may
also include
disturbance)
1,771
51,727
38
3,695
0
3
0
0
0
0
1,809
55,425
238
5,946
453
1,924
760
932
399
2,881
96
11
0
0
0
107
4
300
2,675
36
Tissue
damage
PTS
California Coastal
CA/OR/WA Offshore.
Eastern North Pacific (ENP) Offshore.
ENP Transient/
West Coast
Transient.
California .............
179
20
0
0
0
199
30
243
663
82
233,485
13,787
18
2
0
247,292
10,258
101,305
2,411
244
CA/OR/WA ..........
90,052
8,047
10
1
0
98,110
7,705
26,556
1,273
369
CA/OR/WA ..........
69,245
6,093
5
0
0
75,343
6,626
26,814
1,137
281
CA/OR/WA ..........
CA/OR/WA ..........
116,143
1,374,048
10,118
118,525
9
79
0
10
0
1.14
126,270
1,492,664
7,784
261,438
6,336
969,861
1,622
571
1,993
154
CA/OR/WA ..........
1,789
124
1
0
0
1,914
208
836
920
229
CA/OR/WA ..........
163,640
11,614
3
0
0
175,257
39,862
29,211
440
600
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state
and beyond and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we
compare predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
For mortality takes there is an annual average of 1.14 short-beaked common dolphins (i.e., where eight takes could potentially occur divided by seven years to get the annual number of mortalities/serious injuries).
Mortality for the CA/OR/WA stock of short-beaked common dolphins was unintentionally presented incorrectly as 2 in Table 78 of the 2018 HSTT final rule. The correct value (updated for
seven years of activity) is provided here. This transcription error does not affect the analysis or conclusions in the 2018 HSTT final rule, as the correct value was used in the analysis presented
in the Analysis and Negligible Impact Determination section.
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Below we compile and summarize the
information that supports our
determination that the Navy’s activities
will not adversely affect any species or
stocks through effects on annual rates of
recruitment or survival for any of the
affected stocks addressed in this section.
Long-Beaked Common Dolphin
(California Stock), Northern Right
Whale Dolphin (CA/OR/WA Stock), and
Short-Beaked Common Dolphin (CA/
OR/WA Stock)
None of these species is listed under
the ESA and their stock statuses are
considered ‘‘increasing,’’ ‘‘unknown,’’
and ‘‘stable,’’ respectively. Eight
mortalities or serious injuries of shortbeaked common dolphins are estimated
and authorized over the seven-year rule,
or 1.14 M/SI annually. The addition of
this 1.14 annual mortality still leaves
the total human-caused mortality well
under the insignificance threshold for
residual PBR. The three stocks are
expected to accrue 2, 1, and 10 Level A
harassment takes from tissue damage
resulting from exposure to explosives,
respectively. As described in detail in
the 2018 HSTT final rule, the impacts of
a Level A harassment take by tissue
damage could range in impact from
minor to something just less than M/SI
that could seriously impact fitness.
However, given the Navy’s procedural
mitigation, exposure at the closer to the
source and more severe end of the
spectrum is less likely and we
cautiously assume some moderate
impact for these takes that could lower
the affected individual’s fitness within
the year such that a female (assuming a
50 percent chance of it being a female)
might forego reproduction for one year.
As noted previously, foregone
reproduction has less of an impact on
population rates than death (especially
for only one year in seven, which is the
maximum predicted because the small
number anticipated in any one year
makes the probability that any
individual would be impacted in this
way twice in seven years very low), and
1 to 10 instances is not expected to
impact annual rates of recruitment or
survival for these stocks.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance is 2,411, 1,273, and 571
percent (measured against the Navyestimated abundance) and 244, 369, and
154 percent (measured against the SAR
abundance) for long-beaked common
dolphins, northern right whale
dolphins, and short-beaked common
dolphins, respectively. Given the range
of these stocks, this information
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suggests that likely some portion (but
not all or even the majority) of the
individuals in the northern right whale
dolphin and short-beaked common
dolphin stocks are likely impacted,
while it is entirely possible that most or
all of the range-limited long-beaked
common dolphin is taken. All three
stocks likely will experience some
repeat Level B harassment exposure
(perhaps up to 48, 25, and 11 days
within a year for long-beaked common
dolphins, northern right whale
dolphins, and short-beaked common
dolphins, respectively) of some subset
of individuals that spend extended time
within the SOCAL range complex.
Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, the duration of
any exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB with a portion up to 178
dB (i.e., of a moderate or lower level,
less likely to evoke a severe response).
While interrupted feeding bouts are a
known response and concern for
odontocetes, we also know that there are
often viable alternative habitat options
in the relative vicinity. However, some
of these takes could occur on a fair
number of sequential days for longbeaked common dolphins or northern
right whale dolphins, or even some
number of short-beaked common
dolphins, given the higher number of
total takes (i.e., the probability that some
number of individuals get taken on a
higher number of sequential days is
higher, because the total take number is
relatively high, even though the
percentage is not that high).
The severity of TTS takes is expected
to be low-level, of short duration, and
mostly not in a frequency band that
would be expected to interfere
significantly with conspecific
communication, echolocation, or other
important low-frequency cues, and the
associated lost opportunities and
capabilities is not expected to impact
reproduction or survival. For these same
reasons (low level and frequency band),
while a small permanent loss of hearing
sensitivity may include some degree of
energetic costs for compensating or may
mean some small loss of opportunities
or detection capabilities, as discussed in
the 2018 HSTT final rule, the 18, 10,
and 79 Level A harassment takes by PTS
for long-beaked common dolphins,
northern right whale dolphins, and
short-beaked common dolphins,
respectively are unlikely to impact
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
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survival of any individuals, even if it
were to be experienced by an animal
that also experiences one or more Level
B harassment takes by behavioral
disruption.
Altogether these stock statuses are
considered ‘‘increasing,’’ ‘‘unknown,’’
and ‘‘stable,’’ respectively. Eight
mortalities of short-beaked common
dolphins are authorized (1.14 takes
annually), and all three stocks may
experience a very small number of Level
A harassment takes (relative to the stock
abundance and PBR) by tissue damage
or PTS. The 18, 10, and 79 takes by PTS
annually of likely low severity are
unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of
those individuals, let alone have effects
on annual rates of recruitment or
survival. Nonetheless, a moderate to
large portion of all three stocks will
likely be taken (at a low to occasionally
moderate level) over several days a year,
and some smaller portion of these stocks
is expected to be taken on a relatively
moderate to high number of days across
the year, some of which could be
sequential days. Though the majority of
impacts are expected to be of a lower to
sometimes moderate severity, the larger
number of takes (in total and for certain
individuals) makes it more likely
(probabilistically) that a small number
of individuals could be interrupted
during foraging in a manner and amount
such that impacts to the energy budgets
of females (from either losing feeding
opportunities or expending considerable
energy to find alternative feeding
options) could cause them to forego
reproduction for a year. Energetic
impacts to males are generally
meaningless to population rates unless
they cause death, and it takes extreme
energy deficits beyond what would ever
be likely to result from these activities
to cause the death of an adult marine
mammal. As noted previously, however,
foregone reproduction (especially for
only one year out of seven, which is the
maximum predicted because the small
number anticipated in any one year
makes the probability that any
individual would be impacted in this
way twice in seven years very low) has
far less of an impact on population rates
than mortality and a small number of
instances of foregone reproduction
(including in combination with that
which might result from the small
number of Level A harassment takes
from tissue damage) along with the
estimated eight mortalities or serious
injuries for short-beaked common
dolphins is not expected to adversely
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affect any of the stocks through effects
on annual rates of recruitment or
survival, especially given the very high
residual PBRs of these stocks (621, 175,
and 8,353, respectively). For these
reasons, in consideration of all of the
effects of the Navy’s activities combined
(mortality, Level A harassment, and
Level B harassment), we have
determined that the authorized take will
have a negligible impact on these three
stocks of dolphins.
All Other SOCAL Dolphin Stocks
(Except Long-Beaked Common Dolphin,
Northern Right Whale Dolphin, and
Short-Beaked Common Dolphin)
None of these species is listed under
the ESA and their stock statuses are
considered ‘‘unknown,’’ except for the
bottlenose dolphin (California coastal
stock) and killer whale (Eastern North
Pacific stock), which are considered
‘‘stable.’’ No mortality or Level A
harassment via tissue damage from
exposure to explosives is expected or
authorized for these stocks.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is from 440 to 2,675 percent and
36 to 2,881 percent, respectively. Given
the range of these stocks (along the
entire U.S. West Coast, or even beyond,
with some also extending seaward of the
HSTT Study Area boundaries), this
information suggests that some portion
(but not all or even the majority) of the
individuals of any of these stocks will
be taken, with the exception that most
or all of the individuals of the more
range-limited California coastal stock of
bottlenose dolphin may be taken. It is
also likely that some subset of
individuals within most of these stocks
will be taken repeatedly within the year
(perhaps up to 10–15 days within a
year), but for no more than several
potentially sequential days, although
the CA/OR/WA stocks of bottlenose
dolphins, Pacific white-sided dolphins,
and Risso’s dolphins may include
individuals that are taken repeatedly
within the year over a higher number of
days (up to 57, 22, and 40 days,
respectively) and potentially over a fair
number of sequential days, especially
where individuals spend extensive time
in the SOCAL range complex. Note that
though percentages are high for the
Eastern North Pacific stock of killer
whales and short-finned pilot whales,
given the low overall number of takes,
it is highly unlikely that any individuals
would be taken across the number of
days their percentages suggest.
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Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, we have
explained that the duration of any
exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB (i.e., of a lower, or
sometimes moderate level, less likely to
evoke a severe response). While
interrupted feeding bouts are a known
response and concern for odontocetes,
we also know that there are often viable
alternative habitat options in the
relative vicinity. However, as noted,
some of these takes could occur on a fair
number of sequential days for the three
stocks listed earlier.
The severity of TTS takes is expected
to be low-level, of short duration, and
mostly not in a frequency band that
would be expected to interfere
significantly with conspecific
communication, echolocation, or other
important low-frequency cues. For these
same reasons (low level and frequency
band), while a small permanent loss of
hearing sensitivity (PTS) may include
some degree of energetic costs for
compensating or may mean some small
loss of opportunities or detection
capabilities, it is unlikely to impact
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
survival of any individuals, even if it
were to be experienced by an animal
that also experiences one or more Level
B harassment takes by behavioral
disruption.
Altogether, the status of these stocks
is either unknown or stable. The small
number of annual estimated takes by
PTS of likely low severity for several
stocks are unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of
those individuals, let alone have effects
on annual rates of recruitment or
survival. A portion of all of these stocks
will likely be taken (at a low to
occasionally moderate level) over
several days a year, and some smaller
portion of the CA/OR/WA stocks of
bottlenose dolphins, Pacific white-sided
dolphins, and Risso’s dolphins,
specifically, are expected to be taken on
a relatively moderate to high number of
days across the year, some of which
could be sequential days. Though the
majority of impacts are expected to be
of a lower to sometimes moderate
severity, the larger number of takes (in
total and for certain individuals) for the
CA/OR/WA stocks of bottlenose
dolphins, Pacific white-sided dolphins,
and Risso’s dolphins makes it more
likely (probabilistically) that a small
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41887
number of individuals could be
interrupted during foraging in a manner
and amount such that impacts to the
energy budgets of females (from either
losing feeding opportunities or
expending considerable energy to find
alternative feeding options) could cause
them to forego reproduction for a year.
Energetic impacts to males are generally
meaningless to population rates unless
they cause death, and it takes extreme
energy deficits beyond what would ever
be likely to result from these activities
to cause the death of an adult marine
mammal. As noted previously, however,
foregone reproduction (especially for
only one year in seven, which is the
maximum predicted because the small
number anticipated in any one year
makes the probability that any
individual would be impacted in this
way twice in seven years very low) has
far less of an impact on population rates
than mortality and a small number of
instances of foregone reproduction is
not expected to adversely affect the
stocks through effects on annual rates of
recruitment or survival, especially given
the residual PBRs of the CA/OR/WA
stocks of bottlenose dolphins, Pacific
white-sided dolphins, and Risso’s
dolphins (9.4, 183, and 84,
respectively). For these reasons, in
consideration of all of the effects of the
Navy’s activities combined, we have
determined that the authorized take will
have a negligible impact on these stocks
of dolphins.
All HRC Dolphin Stocks
With the exception of the Main
Hawaiian Island DPS of false killer
whales (listed as endangered under the
ESA, with the MMPA stock identified as
‘‘decreasing’’), none of these species are
listed under the ESA and their stock
statuses are considered ‘‘unknown.’’ No
mortality or Level A harassment via
tissue damage from exposure to
explosives is expected or authorized for
these stocks.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is from 46 to 1,169 percent and 41
to 2,130 percent, respectively. Given the
ranges of these stocks (many of them are
small, resident, island-associated
stocks), this information suggests that a
fairly large portion of the individuals of
many of these stocks will be taken, but
that most individuals will only be
impacted across a smaller to moderate
number of days within the year (1–15),
and with no more than several
potentially sequential days, although
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two stocks (the Oahu stocks of
bottlenose dolphin and pantropical
spotted dolphin) have a slightly higher
percentage, suggesting they could be
taken up to 23 days within a year, with
perhaps a few more of those days being
sequential. We note that although the
percentage is higher for the tropical
stock of pygmy killer whale within the
U.S. EEZ (2,130), given (1) the low
overall number of takes (760) and (2) the
fact that the small within-U.S. EEZ
abundance is not a static set of
individuals, but rather individuals
moving in and out of the U.S. EEZ
making it more appropriate to use the
percentage comparison for the total
takes versus total abundance—it is
highly unlikely that any individuals
would be taken across the number of
days that the within-U.S. EEZ
percentage suggests which is 42.
Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, the duration of
any exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB (i.e., of a lower, or
sometimes moderate level, less likely to
evoke a severe response). While
interrupted feeding bouts are a known
response and concern for odontocetes,
we also know that there are often viable
alternative habitat options in the
relative vicinity. However, as noted,
some of these takes could occur on a fair
number of sequential days for the Oahu
stocks of bottlenose dolphin and
pantropical spotted dolphins.
Regarding the severity of TTS takes,
they are expected to be low-level, of
short duration, and mostly not in a
frequency band that would be expected
to interfere significantly with
conspecific communication,
echolocation, or other important lowfrequency cues. For these same reasons
(low level and frequency band), while a
small permanent loss of hearing
sensitivity (PTS) may include some
degree of energetic costs for
compensating or may mean some small
loss of opportunities or detection
capabilities, they will be unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of the one or two
individuals from the three affected
stocks, even if accrued to individuals
that are also taken by behavioral
harassment at the same time.
Altogether, the status these stocks is
unknown (with the exception of the
Main Hawaiian Islands Insular stock
identified as ‘‘decreasing’’) and most of
these stocks (all but the Oahu stocks of
bottlenose dolphin and pantropical
spotted dolphins) will likely be taken at
a low to occasionally moderate level
over several days a year, with some
smaller portion of the stock potentially
taken on a more moderate number of
days across the year (perhaps up to 15
days for Fraser’s dolphin, though others
notably less), some of which could be
across a few sequential days, which is
not expected to affect the reproductive
success or survival of individuals. For
the Oahu stocks of bottlenose dolphin
and pantropical spotted dolphins, some
subset of individuals could be taken up
to 23 days in a year, with some small
number being taken across several
sequential days, such that a small
number of individuals could be
interrupted during foraging in a manner
and amount such that impacts to the
energy budgets of females (from either
losing feeding opportunities or
expending considerable energy to find
alternative feeding options) could cause
them to forego reproduction for a year.
Energetic impacts to males are generally
meaningless to population rates unless
they cause death, and it takes extreme
energy deficits beyond what would ever
be likely to result from these activities
to cause the death of an adult marine
mammal. As noted previously, however,
foregone reproduction (especially for
one year, which is the maximum
predicted because the small number
anticipated in any one year makes the
probability that any individual would
be impacted in this way twice in seven
years very low) has far less of an impact
on population rates than mortality and
a small number of instances of foregone
reproduction is not expected to
adversely affect these two stocks
through effects on annual rates of
recruitment or survival. No mortality is
anticipated or authorized for any of
these stocks. One or two individuals
from three stocks (see Table 24) are
expected to be taken by PTS annually of
likely low severity, with this unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of those individuals,
let alone have effects on annual rates of
recruitment or survival. For these
reasons, in consideration of all of the
effects of the Navy’s activities
combined, we have determined that the
authorized take will have a negligible
impact on all of the stocks of dolphins
found in the vicinity of the HRC.
Dall’s Porpoise
In Table 26 below for porpoises, we
indicate the total annual mortality,
Level A and Level B harassment, and a
number indicating the instances of total
take as a percentage of abundance. Table
26 is unchanged from Table 79 in the
2018 HSTT final rule. For additional
information and analysis supporting the
negligible-impact analysis, see the
Odontocetes discussion as well as the
Dall’s Porpoise discussion in the Group
and Species-Specific Analyses section
of the 2018 HSTT final rule, all of which
remains applicable to this final rule
unless specifically noted.
TABLE 26—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR PORPOISES IN THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF
STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Level B harassment
Species
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Dall’s porpoise .....
Stock
CA/OR/WA ..........
Level A harassment
Behavioral
disturbance
TTS
(may also
include
disturbance)
14,482
29,891
Total takes
(entire study
area)
Mortality
Tissue
damage
PTS
209
0
0
Abundance
Navy
abundance
in action
area
44,582
Instances of total take as
percent of abundance
NMFS
SARS
abundance
2,054
25,750
Total take as
percentage of
total Navy
abundance in
action area
Total take as
percentage of
total SAR
abundance
2,170
173
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state
and beyond and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we
compare predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Below we compile and summarize the
information that supports our
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determination that the Navy’s activities
will not adversely affect the CA/OR/WA
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on annual rates of recruitment or
survival.
Dall’s porpoise is not listed under the
ESA and the stock status is considered
‘‘unknown.’’ No mortality or Level A
harassment via tissue damage from
exposure to explosives is expected or
authorized for this stock.
Most Level B harassments to Dall’s
porpoise from hull-mounted sonar
(MF1) in the HSTT Study Area would
result from received levels between 154
and 166 dB SPL (85 percent). While
harbor porpoises have been observed to
be especially sensitive to human
activity, the same types of responses
have not been observed in Dall’s
porpoises. Dall’s porpoises are typically
notably longer than, and weigh more
than twice as much as, harbor
porpoises, making them generally less
likely to be preyed upon and likely
differentiating their behavioral
repertoire somewhat from harbor
porpoises. Further, they are typically
seen in large groups and feeding
aggregations, or exhibiting bow-riding
behaviors, which is very different from
the group dynamics observed in the
more typically solitary, cryptic harbor
porpoises, which are not often seen
bow-riding. For these reasons, Dall’s
porpoises are not treated as an
especially sensitive species (as
compared to harbor porpoises which
have a lower threshold for Level B
harassment by behavioral disruption
and more distant cutoff) but, rather, are
analyzed similarly to other odontocetes.
Therefore, the majority of Level B
harassment takes are expected to be in
the form of milder responses compared
to higher level exposures. As discussed
more fully in the 2018 HSTT final rule,
we anticipate more severe effects from
takes when animals are exposed to
higher received levels.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 2,170 and 173 percent,
respectively. Given the range of this
stock (up the U.S. West Coast through
Washington and sometimes beyond the
U.S. EEZ), this information suggests that
some smaller portion of the individuals
of this stock will be taken, and that
some subset of individuals within the
stock will be taken repeatedly within
the year (perhaps up to 42 days)—
potentially over a fair number of
sequential days, especially where
individuals spend extensive time in the
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SOCAL range complex. Regarding the
severity of those individual Level B
harassment takes by behavioral
disruption, the duration of any exposure
is expected to be between minutes and
hours (i.e., relatively short) and the
received sound levels largely below 172
dB (i.e., of a lower, or sometimes
moderate level, less likely to evoke a
severe response). While interrupted
feeding bouts are a known response and
concern for odontocetes, we also know
that there are often viable alternative
habitat options in the relative vicinity.
However, as noted, some of these takes
could occur on a fair number of
sequential days for this stock.
The severity of TTS takes is expected
to be low-level, of short duration, and
mostly not in a frequency band that
would be expected to interfere
significantly with conspecific
communication, echolocation, or other
important low-frequency cues.
Therefore, the associated lost
opportunities and capabilities are not
expected to impact reproduction or
survival. For these same reasons (low
level and the likely frequency band),
while a small permanent loss of hearing
sensitivity may include some degree of
energetic costs for compensating or may
mean some small loss of opportunities
or detection capabilities, the estimated
209 Level A harassment takes by PTS
for Dall’s porpoise is unlikely to impact
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
survival for most individuals. Because
of the more substantial number of PTS
takes, however, we acknowledge that a
few animals could potentially incur
permanent hearing loss of a higher
degree that could potentially interfere
with their successful reproduction and
growth. Given the status of the stock,
even if this occurred, it will not
adversely impact annual rates of
recruitment or survival.
Altogether, the status of this stock is
unknown, a portion of this stock will
likely be taken (at a low to occasionally
moderate level) over several days a year,
and some smaller portion of the stock is
expected to be taken on a relatively
moderate to high number of days across
the year, some of which could be
sequential days. Though the majority of
impacts are expected to be of a lower to
sometimes moderate severity, the larger
number of takes (in total and for certain
individuals) for the Dall’s porpoise
makes it more likely (probabilistically)
that a small number of individuals
could be interrupted during foraging in
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41889
a manner and amount such that impacts
to the energy budgets of females (from
either losing feeding opportunities or
expending considerable energy to find
alternative feeding options) could cause
them to forego reproduction for a year.
Energetic impacts to males are generally
meaningless to population rates unless
they cause death, and it takes extreme
energy deficits beyond what would ever
be likely to result from these activities
to cause the death of an adult marine
mammal. Similarly, we acknowledge
the potential for this to occur to a few
individuals out of the 209 total that
might incur a higher degree of PTS. As
noted previously, however, foregone
reproduction (especially for only one
year in seven, which is the maximum
predicted because the small number
anticipated in any one year makes the
probability that any individual will be
impacted in this way twice in seven
years very low) has far less of an impact
on population rates than mortality.
Further, the small number of instances
of foregone reproduction that could
potentially result from PTS and/or the
few repeated, more severe Level B
harassment takes by behavioral
disruption is not expected to adversely
affect the stock through effects on
annual rates of recruitment or survival,
especially given the status of the species
(not endangered or threatened;
minimum population of 25,170 just
within the U.S. EEZ) and residual PBR
of Dall’s porpoise (171.4). For these
reasons, in consideration of all of the
effects of the Navy’s activities
combined, we have determined that the
authorized take will have a negligible
impact on the CA/OR/WA stock of
Dall’s porpoises.
Pinnipeds
In Tables 27 and 28 below for
pinnipeds, we indicate the total annual
mortality, Level A and Level B
harassment, and a number indicating
the instances of total take as a
percentage of abundance. Tables 27 and
28 have been updated from Tables 80
and 81 in the 2018 HSTT final rule, as
appropriate, with the 2018 final SARs
and updated information on mortality,
as discussed above. For additional
information and analysis supporting the
negligible-impact analysis, see the
Pinnipeds discussion in the Group and
Species-Specific Analyses section of the
2018 HSTT final rule, all of which
remains applicable to this final rule
unless specifically noted.
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TABLE 27—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR
PINNIPEDS IN THE HRC PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL
TAKE AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Abundance
Level B harassment
Species
Level A harassment
Behavioral
disturbance
Hawaiian monk
seal.
143 ......................
TTS
(may also
include
disturbance)
Mortality
Total takes
(entire study
area)
Takes
(within
NAVY EEZ)
Total Navy
abundance
inside and
outside
EEZ (HRC)
Within EEZ
Navy
abundance
(HRC)
Total take as
percentage of
total Navy
abundance
(HRC)
EEZ take as
percentage of
Navy EEZ
abundance
(HRC)
206
195
169
169
122
115
Tissue
damage
PTS
62
1
0
Instances of total take as
percent of abundance
0
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine
Mammals section of the 2018 HSTT final rule), both in and outside of the U.S. EEZ. Because the portion of the Navy’s study area inside the U.S. EEZ is generally concomitant with the area
used to generate the abundance estimates in the SARs, and the abundance predicted by the same underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
TABLE 28—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR
PINNIPEDS IN THE SOCAL PORTION OF THE HSTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL
TAKE AS A PERCENTAGE OF STOCK ABUNDANCE
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Total takes
Level B harassment
Species
California sea lion
Guadalupe fur
seal.
Northern fur seal
Harbor seal ..........
Northern elephant
seal.
Stock
Level A harassment
Total takes
(entire study
area)
Abundance
Navy
abundance
in action
area
(SOCAL)
Behavioral
disturbance
TTS
(may also
include
disturbance)
U.S. .....................
Mexico .................
113,419
1,442
4,789
15
87
0
9
0
0.71
0
118,305
1,457
4,085
1,171
California .............
California .............
California .............
15,167
2,450
42,916
124
2,994
17,955
1
8
97
0
0
2
0
0
0
15,292
5,452
60,970
886
321
4,108
Mortality
Tissue
damage
PTS
Instances of total take as
percent of abundance
Total take as
percentage of
total Navy
abundance in
action area
Total take as
percentage of
total SAR
abundance
257,606
20,000
2,896
124
46
7
14,050
30,968
179,000
1,726
1,698
1,484
109
18
34
NMFS
SARS
abundance
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Note: For the SOCAL take estimates, because of the manner in which the Navy action area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state
and beyond and abundance may only be predicted within the U.S. EEZ, while the Navy action area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we
compare predicted takes to both the abundance estimates for the action area, as well as the SARs.
For mortality takes there is an annual average of 0.71 California sea lions (i.e., where five takes could potentially occur divided by seven years to get the annual number of mortalities/serious
injuries).
Below we compile and summarize the
information that supports our
determination that the Navy’s activities
will not adversely affect any pinnipeds
through effects on annual rates of
recruitment or survival for any of the
affected stocks addressed in this section.
Five M/SI takes of California sea lions
over the seven years of the rule, or 0.71
mortality annually, are authorized,
which falls well below the
insignificance threshold for residual
PBR (13,685). No mortality is
anticipated or authorized for any other
pinniped stocks. A small number of
Level A harassment takes by tissue
damage are also authorized for two
stocks (9 and 2 for California sea lions
and northern elephant seals,
respectively), which, as discussed in the
2018 HSTT final rule, could range in
impact from minor to something just
less than M/SI that could seriously
impact fitness. However, given the
Navy’s mitigation, exposure at the closer
to the source and more severe end of the
spectrum is less likely. Nevertheless, we
cautiously assume some moderate
impact on the individuals that
experience these small numbers of take
that could lower the individual’s fitness
within the year such that a female
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(assuming a 50 percent chance of it
being a female) might forego
reproduction for one year. As noted
previously, foregone reproduction has
less of an impact on population rates
than death (especially for only one
within seven years, which is the
maximum predicted because the small
number anticipated in any one year
makes the probability that any
individual would be impacted in this
way twice in seven years very low) and
these low numbers of instances
(especially assuming the likelihood that
only 50 percent of the takes would affect
females) are not expected to impact
annual rates of recruitment or survival,
especially given the population sizes of
these species.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disruption), for Hawaiian monk seals
and Guadalupe fur seals, the two
species listed under the ESA, the
estimated instances of takes as
compared to the stock abundance does
not exceed 124 percent, which suggests
that some portion of these two stocks
would be taken on one to a few days per
year. For the remaining stocks, the
number of estimated total instances of
take compared to the abundance
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(measured against both the Navyestimated abundance and the SAR) for
these stocks is 1,484 to 2,896 percent
and 18 to 40 percent, respectively.
Given the ranges of these stocks (i.e.,
very large ranges, but with individuals
often staying in the vicinity of haul
outs), this information suggests that
some very small portion of the
individuals of these stocks will be
taken, but that some subset of
individuals within the stock will be
taken repeatedly within the year
(perhaps up to 58 days)—potentially
over a fair number of sequential days.
Regarding the severity of those
individual Level B harassment takes by
behavioral disruption, the duration of
any exposure is expected to be between
minutes and hours (i.e., relatively short)
and the received sound levels largely
below 172 dB, which is considered a
relatively low to occasionally moderate
level for pinnipeds. However, as noted,
some of these takes could occur on a fair
number of sequential days for these
stocks.
As described in the 2018 HSTT final
rule, the Hawaii and 4-Islands
mitigation areas protect (by not using
explosives and limiting MFAS within
them) a significant portion of the
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designated critical habitat for Hawaiian
monk seals in the Main Hawaiian
Islands, including all of it around the
islands of Hawaii and Lanai, most
around Maui, and good portions around
Molokai and Kaho’olawe. As discussed,
this protection reduces the overall
number of takes, and further reduces the
severity of effects by minimizing
impacts near pupping beaches and in
important foraging habitat.
The severity of TTS takes are
expected to be low-level, of short
duration, and mostly not in a frequency
band that would be expected to interfere
significantly with conspecific
communication, echolocation, or other
important low-frequency cues that
would affect the individual’s
reproduction or survival. For these same
reasons (low level and frequency band),
while a small permanent loss of hearing
sensitivity may include some degree of
energetic costs for compensating or may
mean some small loss of opportunities
or detection capabilities, the one to
eight estimated Level A harassment
takes by PTS for monk seals, northern
fur seals, and harbor seals are unlikely
to impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of any individuals,
even if it were to be experienced by an
animal that also experiences one or
more Level B harassment takes by
behavioral disruption. Because of the
high number of PTS takes for California
sea lions and northern elephant seals
(87 and 97, respectively); however, we
acknowledge that a few animals could
potentially incur permanent hearing
loss of a higher degree that could
potentially interfere with their
successful reproduction and growth.
Given the status of the stocks (along
with residual PBRs of 13,686 and 4,873,
respectively), even if this occurred, it
will not adversely impact annual rates
of recruitment or survival.
Altogether, any individual Hawaiian
monk seal and Guadalupe fur seal
would be taken no more than a few days
in any year, with none of the expected
take anticipated to affect individual
reproduction or survival, let alone
annual rates of recruitment and
survival. With all other stocks, only a
very small portion of the stock will be
taken in any manner. Of those taken,
some individuals will be taken by Level
B harassment (at a moderate or
sometimes low level) over several days
a year, and some smaller portion of
those taken will be on a relatively
moderate to high number of days across
the year (up to 58), a fair number of
which will likely be sequential days.
Though the majority of impacts are
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expected to be of a lower to sometimes
moderate severity, the repeated takes
over a potentially fair number of
sequential days for some individuals
makes it more likely that some number
of individuals could be interrupted
during foraging in a manner and amount
such that impacts to the energy budgets
of females (from either losing feeding
opportunities or expending considerable
energy to find alternative feeding
options) could cause them to forego
reproduction for a year (energetic
impacts to males are generally
meaningless to population rates unless
they cause death, and it takes extreme
energy deficits beyond what would ever
be likely to result from these activities
to cause the death of an adult marine
mammal). As noted previously,
however, foregone reproduction
(especially for only one year within
seven, which is the maximum predicted
because the small number anticipated in
any one year makes the probability that
any individual will be impacted in this
way twice in seven years very low) has
far less of an impact on population rates
than mortality and a relatively small
number of instances of foregone
reproduction (as compared to the stock
abundance and residual PBR) is not
expected to adversely affect the stock
through effects on annual rates of
recruitment or survival, especially given
the status of these stocks. Accordingly,
we do not anticipate the relatively small
number of individual Northern fur seals
or harbor seals that might be taken over
repeated days within the year in a
manner that results in one year of
foregone reproduction to adversely
affect the stocks through effects on rates
of recruitment or survival, given the
status of the stocks, which are
respectively increasing and stable with
abundances of 14,050 and 30,968 and
residual PBRs of 449 and 1,598.
For California sea lions, given the
very high abundance and residual PBR
(257,606 and 13,685, respectively), as
well as the increasing status of the stock
in the presence of similar levels of Navy
activities over past years—the impacts
of 0.71 annual mortalities, potential
foregone reproduction for up to nine
individuals in a year taken by tissue
damage, the effects of Level A
harassment by PTS, and some relatively
small number of individuals taken as a
result of repeated behavioral harassment
over a fair number of sequential days are
not expected to adversely affect the
stock through effects on annual rates of
recruitment or survival. Similarly, for
Northern elephant seals, given the very
high abundance and residual PBR
(179,000 and 4,873, respectively), as
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41891
well as the increasing status of the stock
in the presence of similar levels of Navy
activities over past years, the impacts of
potential foregone reproduction for up
to two individuals in a year taken by
tissue damage, the effects of Level A
harassment by PTS, and some relatively
small number of individuals taken as a
result of repeated behavioral harassment
over a fair number of sequential days are
not expected to adversely affect the
stock through effects on annual rates of
recruitment or survival. For these
reasons, in consideration of all of the
effects of the Navy’s activities combined
(M/SI, Level A harassment, and Level B
harassment), we have determined that
the authorized take will have a
negligible impact on all pinniped
stocks.
Determination
The 2018 HSTT final rule included a
detailed discussion of all of the
anticipated impacts on the affected
species and stocks from serious injury
or mortality, Level A harassment, and
Level B harassment; impacts on habitat;
and how the Navy’s mitigation and
monitoring measures reduce the number
and/or severity of adverse effects. We
evaluated how these impacts and
mitigation measures are expected to
combine, annually, to affect individuals
of each species and stock. Those effects
were then evaluated in the context of
whether they are reasonably likely to
impact reproductive success or
survivorship of individuals and then, if
so, further analyzed to determine
whether there would be effects on
annual rates of recruitment or survival
that would adversely affect the species
or stock.
As described above, the basis for the
negligible impact determination is the
assessment of effects on annual rates of
recruitment and survival. Accordingly,
the analysis included in the 2018 HSTT
final rule used annual activity levels,
the best available science, and approved
methods to predict the annual impacts
to marine mammals, which were then
analyzed in the context of whether each
species or stock would incur more than
a negligible impact based on anticipated
adverse impacts to annual rates of
recruitment or survival. As we have
described above, none of the factors
upon which the conclusions in the 2018
HSTT final rule were based have
changed. Therefore, even though this
final rule includes two additional years,
because our findings are based on
annual rates of recruitment and
survival, and little has changed that
would change our 2018 HSTT final rule
annual analyses, it is appropriate to rely
on those analyses, as well as the new
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information and analysis discussed
above, for this final rule.
Based on the applicable information
and analysis from the 2018 HSTT final
rule as updated with the information
and analysis contained herein on the
potential and likely effects of the
specified activities on the affected
marine mammals and their habitat, and
taking into consideration the
implementation of the monitoring and
mitigation measures, NMFS finds that
the incidental take from the specified
activities will have a negligible impact
on all affected marine mammal species
and stocks.
Subsistence Harvest of Marine
Mammals
There are no subsistence uses or
harvest of marine mammals in the
geographic area affected by the specified
activities. Therefore, NMFS has
determined that the total taking
affecting species or stocks would not
have an unmitigable adverse impact on
the availability of such species or stocks
for taking for subsistence purposes.
Classification
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Endangered Species Act
There are nine marine mammal
species under NMFS jurisdiction that
are listed as endangered or threatened
under the ESA with confirmed or
possible occurrence in the HSTT Study
Area: Blue whale, fin whale, gray whale,
humpback whale (Mexico and Central
America DPSs), sei whale, sperm whale,
false killer whale (Main Hawaiian
Islands Insular DPS), Hawaiian monk
seal, and Guadalupe fur seal. There is
also ESA-designated critical habitat for
Hawaiian monk seals and Main
Hawaiian Islands Insular false killer
whales. The Navy consulted with NMFS
pursuant to section 7 of the ESA for
HSTT activities. NMFS also 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. The agency
reviewed these specified conditions for
this rulemaking and determined that
reinitiation of consultation was not
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warranted. The incidental take
statement that accompanied the 2018
Biological Opinion has been amended to
cover the seven-year period of the rule.
The 2018 Biological Opinion for this
action is available at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities.
National Marine Sanctuaries Act
Federal agency actions that are likely
to injure national marine sanctuary
resources are subject to consultation
with the Office of National Marine
Sanctuaries (ONMS) under section
304(d) of the National Marine
Sanctuaries Act (NMSA). There are two
national marine sanctuaries in the HSTT
Study Area, the Hawaiian Islands
Humpback Whale National Marine
Sanctuary and the Channel Islands
National Marine Sanctuary. NMFS has
fulfilled its responsibilities and
completed all requirements under the
NMSA.
National Environmental Policy Act
To comply with the National
Environmental Policy Act of 1969
(NEPA; 42 U.S.C. 4321 et seq.) and
NOAA Administrative Order (NAO)
216–6A, NMFS must evaluate our
proposed actions and alternatives with
respect to potential impacts on the
human environment. NMFS
participated as a cooperating agency on
the 2018 HSTT FEIS/OEIS (published
on October 26, 2018, https://
www.hstteis.com) which evaluated
impacts from Navy training and testing
activities in the HSTT Study Area for
the reasonably foreseeable future
(including through 2025). In accordance
with 40 CFR 1506.3, NMFS
independently reviewed and evaluated
the 2018 HSTT FEIS/OEIS and
determined that it was adequate and
sufficient to meet our responsibilities
under NEPA for the issuance of the 2018
HSTT final rule and associated LOAs.
NOAA therefore adopted the 2018
HSTT FEIS/OEIS.
In accordance with 40 CFR 1502.9
and the information and analysis
contained in this final rule, NMFS has
determined that this final rule and the
subsequent LOAs will not result in
impacts that were not fully considered
in the 2018 HSTT FEIS/OEIS. In
addition, as indicated in this final rule,
the addition of two years of authorized
incidental take associated with the same
activities conducted in the same
geographic area and having the same
potential effects on the same species
and stocks is not a substantial change to
the action, nor are there significant new
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circumstances or information relevant to
environmental concerns or its impacts.
Therefore, NMFS has determined that
the 2018 HSTT FEIS/OEIS and 2018
NMFS ROD remain valid, and there is
no need to supplement either document
for this rulemaking.
Regulatory Flexibility Act
The Office of Management and Budget
has determined that this rule is not
significant for purposes of Executive
Order 12866.
Pursuant to the Regulatory Flexibility
Act (RFA), the Chief Counsel for
Regulation of the Department of
Commerce certified to the Chief Counsel
for Advocacy of the Small Business
Administration during the proposed
rule stage that this action would not
have a significant economic impact on
a substantial number of small entities.
The factual basis for the certification
was published in the proposed rule and
is not repeated here. No comments were
received regarding this certification. As
a result, a regulatory flexibility analysis
was not required and none was
prepared.
Waiver of Delay in Effective Date Under
the Administrative Procedure Act
NMFS has determined that there is
good cause under the Administrative
Procedure Act (5 U.S.C. 553(d)) to waive
the 30-day delay in the effective date for
this rule. This rule relieves the Navy
from the restrictions of the take
prohibitions under the MMPA by
granting the Navy’s request for
incidental take authorization under
MMPA section 101(a)(5)(A). In addition,
there is good cause to waive the 30-day
effective date period because the
regulations are identical to those that
the Navy has been implementing since
November 2018 (except for a small
number of minor, technical
clarifications that do not affect
implementation). The only substantive
change in the regulations is to extend
the mitigation measures and the
monitoring and reporting requirements
for an additional two years, until
December 20, 2025. The Navy is the
only entity affected by the regulations,
the Navy specifically requested
extension of the regulatory requirements
for the two years, and the Navy has fully
agreed to these requirements for the
additional two years through its
application for incidental take
authorization. The Navy is anticipating
finalization of the rule. For all these
reasons, there is no need for a period of
time following publication of the rule
for the Navy to bring its training and
testing operations into compliance with
the requirements of the rule.
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List of Subjects in 50 CFR Part 218
Subpart H—Taking and Importing
Marine Mammals; U.S. Navy’s HawaiiSouthern California Training and
Testing (HSTT)
Exports, Fish, Imports, Incidental
take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting
and recordkeeping requirements,
Seafood, Sonar, Transportation.
§ 218.70 Specified activity and
geographical region.
Dated: June 26, 2020
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble,
50 CFR part 218 is amended as follows:
PART 218—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 218
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq., unless
otherwise noted.
■
2. Revise subpart H to read as follows:
Subpart H—Taking and Importing Marine
Mammals; U.S. Navy’s Hawaii-Southern
California Training and Testing (HSTT)
Sec.
218.70 Specified activity and geographical
region.
218.71 Effective dates.
218.72 Permissible methods of taking.
218.73 Prohibitions.
218.74 Mitigation requirements.
218.75 Requirements for monitoring and
reporting.
218.76 Letters of Authorization.
218.77 Renewals and modifications of
Letters of Authorization.
218.78–218.79 [Reserved]
(a) Regulations in this subpart apply
only to the U.S. Navy (Navy) for the
taking of marine mammals that occurs
in the area described in paragraph (b) of
this section and that occurs incidental
to the activities listed in paragraph (c)
of this section.
(b) The taking of marine mammals by
the Navy under this subpart may be
authorized in Letters of Authorization
(LOAs) only if it occurs within the
Hawaii-Southern California Training
and Testing (HSTT) Study Area, which
includes established operating and
warning areas across the north-central
Pacific Ocean, from the mean high tide
line in Southern California west to
Hawaii and the International Date Line.
The Study Area includes the at-sea areas
of three existing range complexes, the
Hawaii Range Complex (HRC), the
Southern California Range Complex
(SOCAL), and the Silver Strand Training
Complex, and overlaps a portion of the
Point Mugu Sea Range (PMSR). Also
included in the Study Area are Navy
pierside locations in Hawaii and
Southern California, Pearl Harbor, San
Diego Bay, and the transit corridor on
the high seas where sonar training and
testing may occur.
(c) The taking of marine mammals by
the Navy is only authorized if it occurs
incidental to the Navy conducting
training and testing activities, including:
(1) Training. (i) Amphibious warfare;
(ii) Anti-submarine warfare;
(iii) Electronic warfare;
(iv) Expeditionary warfare;
(v) Mine warfare;
(vi) Surface warfare; and
(vii) Pile driving.
(2) Testing. (i) Naval Air Systems
Command Testing Activities;
(ii) Naval Sea Systems Command
Testing Activities;
(iii) Office of Naval Research Testing
Activities; and
(iv) Naval Information Warfare
Systems Command.
§ 218.71
Effective dates.
Regulations in this subpart are
effective from July 10, 2020, through
December 20, 2025.
§ 218.72
Permissible methods of taking.
(a) Under LOAs issued pursuant to
§§ 216.106 of this chapter and 218.76,
the Holder of the LOAs (hereinafter
‘‘Navy’’) may incidentally, but not
intentionally, take marine mammals
within the area described in § 218.70(b)
by Level A harassment and Level B
harassment associated with the use of
active sonar and other acoustic sources
and explosives as well as serious injury
or mortality associated with vessel
strikes and explosives, provided the
activity is in compliance with all terms,
conditions, and requirements of these
regulations in this subpart and the
applicable LOAs.
(b) The incidental take of marine
mammals by the activities listed in
§ 218.70(c) is limited to the following
species:
TABLE 1 TO § 218.72
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Species
Stock
Blue whale .......................................................................................................................................
Blue whale .......................................................................................................................................
Bryde’s whale ..................................................................................................................................
Bryde’s whale ..................................................................................................................................
Fin whale .........................................................................................................................................
Fin whale .........................................................................................................................................
Humpback whale .............................................................................................................................
Humpback whale .............................................................................................................................
Minke whale ....................................................................................................................................
Minke whale ....................................................................................................................................
Sei whale .........................................................................................................................................
Sei whale .........................................................................................................................................
Gray whale ......................................................................................................................................
Gray whale ......................................................................................................................................
Sperm whale ...................................................................................................................................
Sperm whale ...................................................................................................................................
Dwarf sperm whale .........................................................................................................................
Pygmy sperm whale ........................................................................................................................
Kogia whales ...................................................................................................................................
Baird’s beaked whale ......................................................................................................................
Blainville’s beaked whale ................................................................................................................
Cuvier’s beaked whale ....................................................................................................................
Cuvier’s beaked whale ....................................................................................................................
Longman’s beaked whale ...............................................................................................................
Mesoplodon spp. .............................................................................................................................
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41893
Central North Pacific.
Eastern North Pacific.
Eastern Tropical Pacific.
Hawaii.
CA/OR/WA.
Hawaiian.
CA/OR/WA.
Central North Pacific.
CA/OR/WA.
Hawaii.
Eastern North Pacific.
Hawaii.
Eastern North Pacific.
Western North Pacific.
CA/OR/WA.
Hawaii.
Hawaii.
Hawaii.
CA/OR/WA.
CA/OR/WA.
Hawaii.
CA/OR/WA.
Hawaii.
Hawaii.
CA/OR/WA.
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TABLE 1 TO § 218.72—Continued
Species
Stock
Bottlenose dolphin ...........................................................................................................................
Bottlenose dolphin ...........................................................................................................................
Bottlenose dolphin ...........................................................................................................................
Bottlenose dolphin ...........................................................................................................................
Bottlenose dolphin ...........................................................................................................................
Bottlenose dolphin ...........................................................................................................................
Bottlenose dolphin ...........................................................................................................................
False killer whale ............................................................................................................................
False killer whale ............................................................................................................................
False killer whale ............................................................................................................................
Fraser’s dolphin ...............................................................................................................................
Killer whale ......................................................................................................................................
Killer whale ......................................................................................................................................
Killer whale ......................................................................................................................................
Long-beaked common dolphin ........................................................................................................
Melon-headed whale .......................................................................................................................
Melon-headed whale .......................................................................................................................
Northern right whale dolphin ...........................................................................................................
Pacific white-sided dolphin ..............................................................................................................
Pantropical spotted dolphin .............................................................................................................
Pantropical spotted dolphin .............................................................................................................
Pantropical spotted dolphin .............................................................................................................
Pantropical spotted dolphin .............................................................................................................
Pygmy killer whale ..........................................................................................................................
Pygmy killer whale ..........................................................................................................................
Risso’s dolphin ................................................................................................................................
Risso’s dolphin ................................................................................................................................
Rough-toothed dolphin ....................................................................................................................
Short-beaked common dolphin .......................................................................................................
Short-finned pilot whale ..................................................................................................................
Short-finned pilot whale ..................................................................................................................
Spinner dolphin ...............................................................................................................................
Spinner dolphin ...............................................................................................................................
Spinner dolphin ...............................................................................................................................
Spinner dolphin ...............................................................................................................................
Striped dolphin ................................................................................................................................
Striped dolphin ................................................................................................................................
Dall’s porpoise .................................................................................................................................
California sea lion ...........................................................................................................................
Guadalupe fur seal ..........................................................................................................................
Northern fur seal .............................................................................................................................
Harbor seal ......................................................................................................................................
Hawaiian monk seal ........................................................................................................................
Northern elephant seal ....................................................................................................................
California Coastal.
CA/OR/WA Offshore.
Hawaii Pelagic.
Kauai & Niihau.
Oahu.
4-Island.
Hawaii.
Hawaii Pelagic.
Main Hawaiian Islands Insular.
Northwestern Hawaiian Islands.
Hawaii.
Eastern North Pacific (ENP) Offshore.
ENP Transient/West Coast Transient.
Hawaii.
California.
Hawaiian Islands.
Kohala Resident.
CA/OR/WA.
CA/OR/WA.
Hawaii Island.
Hawaii Pelagic.
Oahu.
4-Island.
Hawaii.
Tropical.
CA/OR/WA.
Hawaii.
Hawaii.
CA/OR/WA.
CA/OR/WA.
Hawaii.
Hawaii Island.
Hawaii Pelagic.
Kauai & Niihau.
Oahu & 4-Island.
CA/OR/WA.
Hawaii.
CA/OR/WA.
U.S.
Mexico.
California.
California.
Hawaii.
California.
Note to Table 1: CA/OR/WA = California/Oregon/Washington.
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§ 218.73
Prohibitions.
§ 218.74
Notwithstanding incidental takings
contemplated in § 218.72(a) and
authorized by LOAs issued under
§§ 216.106 of this chapter and 218.76,
no person in connection with the
activities listed in § 218.70(c) may:
(a) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or an LOA issued under
§§ 216.106 of this chapter and 218.76;
(b) Take any marine mammal not
specified in § 218.72(b);
(c) Take any marine mammal
specified in § 218.72(b) in any manner
other than as specified in the LOAs; or
(d) Take a marine mammal specified
in § 218.72(b) if NMFS determines such
taking results in more than a negligible
impact on the species or stocks of such
marine mammal.
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Mitigation requirements.
When conducting the activities
identified in § 218.70(c), the mitigation
measures contained in any LOAs issued
under §§ 216.106 of this chapter and
218.76 must be implemented. These
mitigation measures include, but are not
limited to:
(a) Procedural mitigation. Procedural
mitigation is mitigation that the Navy
must implement whenever and
wherever an applicable training or
testing activity takes place within the
HSTT Study Area for each applicable
activity category or stressor category and
includes acoustic stressors (i.e., active
sonar, air guns, pile driving, weapons
firing noise), explosive stressors (i.e.,
sonobuoys, torpedoes, medium-caliber
and large-caliber projectiles, missiles
and rockets, bombs, sinking exercises,
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mines, anti-swimmer grenades, and mat
weave and obstacle loading), and
physical disturbance and strike stressors
(i.e., vessel movement; towed in-water
devices; small-, medium-, and largecaliber non-explosive practice
munitions; non-explosive missiles and
rockets; and non-explosive bombs and
mine shapes).
(1) Environmental awareness and
education. Appropriate Navy personnel
(including civilian personnel) involved
in mitigation, monitoring, and training
or testing activity reporting under the
specified activities will complete one or
more modules of the U.S. Navy Afloat
Environmental Compliance Training
Series, as identified in their career path
training plan. Modules include:
Introduction to the U.S. Navy Afloat
Environmental Compliance Training
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Series, Marine Species Awareness
Training; U.S. Navy Protective Measures
Assessment Protocol; and U.S. Navy
Sonar Positional Reporting System and
Marine Mammal Incident Reporting.
(2) Active sonar. Active sonar
includes low-frequency active sonar,
mid-frequency active sonar, and highfrequency active sonar. For vessel-based
activities, mitigation applies only to
sources that are positively controlled
and deployed from manned surface
vessels (e.g., sonar sources towed from
manned surface platforms). For aircraftbased activities, mitigation applies only
to sources that are positively controlled
and deployed from manned aircraft that
do not operate at high altitudes (e.g.,
rotary-wing aircraft). Mitigation does
not apply to active sonar sources
deployed from unmanned aircraft or
aircraft operating at high altitudes (e.g.,
maritime patrol aircraft).
(i) Number of Lookouts and
observation platform—(A) Hullmounted sources. One Lookout for
platforms with space or manning
restrictions while underway (at the
forward part of a small boat or ship) and
platforms using active sonar while
moored or at anchor (including
pierside); and two Lookouts for
platforms without space or manning
restrictions while underway (at the
forward part of the ship).
(B) Sources that are not hull-mounted
sources. One Lookout on the ship or
aircraft conducting the activity.
(ii) Mitigation zone and requirements.
(A) During the activity, at 1,000 yards
(yd) Navy personnel must power down
6 decibels (dB), at 500 yd Navy
personnel must power down an
additional 4 dB (for a total of 10 dB),
and at 200 yd Navy personnel must shut
down for low-frequency active sonar
≥200 dB and hull-mounted midfrequency active sonar; or at 200 yd
Navy personnel must shut down for
low-frequency active sonar <200 dB,
mid-frequency active sonar sources that
are not hull-mounted, and highfrequency active sonar.
(B) Prior to the start of the activity
(e.g., when maneuvering on station),
Navy personnel must observe the
mitigation zone for floating vegetation;
if floating vegetation is observed, Navy
personnel must relocate or delay the
start of active sonar transmission until
the mitigation zone is clear. Navy
personnel must also observe the
mitigation zone for marine mammals; if
marine mammals are observed, Navy
personnel must relocate or delay the
start of active sonar transmission.
(C) During the activity for lowfrequency active sonar at or above 200
dB and hull-mounted mid-frequency
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active sonar, Navy personnel must
observe the mitigation zone for marine
mammals and power down active sonar
transmission by 6 dB if marine
mammals are observed within 1,000 yd
of the sonar source; power down by an
additional 4 dB (for a total of 10 dB
total) if marine mammals are observed
within 500 yd of the sonar source; and
cease transmission if marine mammals
are observed within 200 yd of the sonar
source.
(D) During the activity for lowfrequency active sonar below 200 dB,
mid-frequency active sonar sources that
are not hull mounted, and highfrequency active sonar, Navy personnel
must observe the mitigation zone for
marine mammals and cease active sonar
transmission if marine mammals are
observed within 200 yd of the sonar
source.
(E) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing or
powering up active sonar transmission)
until one of the following conditions
has been met: The animal is observed
exiting the mitigation zone; the animal
is thought to have exited the mitigation
zone based on a determination of its
course, speed, and movement relative to
the sonar source; the mitigation zone
has been clear from any additional
sightings for 10 minutes (min) for
aircraft-deployed sonar sources or 30
min for vessel-deployed sonar sources;
for mobile activities, the active sonar
source has transited a distance equal to
double that of the mitigation zone size
beyond the location of the last sighting;
or for activities using hull-mounted
sonar where a dolphin(s) is observed in
the mitigation zone, the Lookout
concludes that the dolphin(s) is
deliberately closing in on the ship to
ride the ship’s bow wave, and is
therefore out of the main transmission
axis of the sonar (and there are no other
marine mammal sightings within the
mitigation zone).
(3) Air guns—(i) Number of Lookouts
and observation platform. One Lookout
positioned on a ship or pierside.
(ii) Mitigation zone and requirements.
150 yd around the air gun.
(A) Prior to the initial start of the
activity (e.g., when maneuvering on
station), Navy personnel must observe
the mitigation zone for floating
vegetation; if floating vegetation is
observed, Navy personnel must relocate
or delay the start until the mitigation
zone is clear. Navy personnel must also
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observe the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must relocate
or delay the start of air gun use.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease air gun use.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing air
gun use) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the air gun; the
mitigation zone has been clear from any
additional sightings for 30 min; or for
mobile activities, the air gun has
transited a distance equal to double that
of the mitigation zone size beyond the
location of the last sighting.
(4) Pile driving. Pile driving and pile
extraction sound during Elevated
Causeway System training.
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned on the shore, the elevated
causeway, or a small boat.
(ii) Mitigation zone and requirements.
100 yd around the pile driver.
(A) Prior to the initial start of the
activity (for 30 min), Navy personnel
must observe the mitigation zone for
floating vegetation; if floating vegetation
is observed, Navy personnel must delay
the start until the mitigation zone is
clear. Navy personnel also must observe
the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must delay
the start of pile driving or vibratory pile
extraction.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease impact pile driving or
vibratory pile extraction.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
The Navy personnel must allow a
sighted marine mammal to leave the
mitigation zone prior to the initial start
of the activity (by delaying the start) or
during the activity (by not
recommencing pile driving or pile
extraction) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
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the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the pile driving
location; or the mitigation zone has been
clear from any additional sightings for
30 min.
(5) Weapons firing noise. Weapons
firing noise associated with large-caliber
gunnery activities.
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned on the ship conducting
the firing. Depending on the activity, the
Lookout could be the same as the one
provided for under ‘‘Explosive mediumcaliber and large-caliber projectiles’’ or
under ‘‘Small-, medium-, and largecaliber non-explosive practice
munitions’’ in paragraphs (a)(8)(i) and
(a)(18)(i) of this section.
(ii) Mitigation zone and requirements.
Thirty degrees on either side of the
firing line out to 70 yd from the muzzle
of the weapon being fired.
(A) Prior to the start of the activity,
Navy personnel must observe the
mitigation zone for floating vegetation;
if floating vegetation is observed, Navy
personnel must relocate or delay the
start of weapons firing until the
mitigation zone is clear. Navy personnel
must also observe the mitigation zone
for marine mammals; if marine
mammals are observed, Navy personnel
must relocate or delay the start of
weapons firing.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease weapons firing.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
weapons firing) until one of the
following conditions has been met: The
animal is observed exiting the
mitigation zone; the animal is thought to
have exited the mitigation zone based
on a determination of its course, speed,
and movement relative to the firing
ship; the mitigation zone has been clear
from any additional sightings for 30
min; or for mobile activities, the firing
ship has transited a distance equal to
double that of the mitigation zone size
beyond the location of the last sighting.
(6) Explosive sonobuoys—(i) Number
of Lookouts and observation platform.
One Lookout must be positioned in an
aircraft or on a small boat. If additional
platforms are participating in the
activity, Navy personnel positioned in
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those assets (e.g., safety observers,
evaluators) must support observing the
mitigation zone for applicable biological
resources while performing their regular
duties.
(ii) Mitigation zone and requirements.
600 yd around an explosive sonobuoy.
(A) Prior to the initial start of the
activity (e.g., during deployment of a
sonobuoy field, which typically lasts
20–30 min), Navy personnel must
observe the mitigation zone for floating
vegetation; if floating vegetation is
observed, Navy personnel must relocate
or delay the start of sonobuoy or source/
receiver pair detonations until the
mitigation zone is clear. Navy personnel
must conduct passive acoustic
monitoring for marine mammals and
use information from detections to assist
visual observations. Navy personnel
also must visually observe the
mitigation zone for marine mammals; if
marine mammals are observed, Navy
personnel must relocate or delay the
start of sonobuoy or source/receiver pair
detonations.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease sonobuoy or source/receiver
pair detonations.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
detonations) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the sonobuoy; or
the mitigation zone has been clear from
any additional sightings for 10 min
when the activity involves aircraft that
have fuel constraints (e.g., helicopter),
or 30 min when the activity involves
aircraft that are not typically fuel
constrained.
(D) After completion of the activity
(e.g., prior to maneuvering off station),
when practical (e.g., when platforms are
not constrained by fuel restrictions or
mission-essential follow-on
commitments), Navy personnel must
observe for marine mammals in the
vicinity of where detonations occurred;
if any injured or dead marine mammals
are observed, Navy personnel must
follow established incident reporting
procedures. If additional platforms are
supporting this activity (e.g., providing
range clearance), these Navy assets must
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assist in the visual observation of the
area where detonations occurred.
(7) Explosive torpedoes—(i) Number
of Lookouts and observation platform.
One Lookout positioned in an aircraft. If
additional platforms are participating in
the activity, Navy personnel positioned
in those assets (e.g., safety observers,
evaluators) must support observing the
mitigation zone for applicable biological
resources while performing their regular
duties.
(ii) Mitigation zone and requirements.
2,100 yd around the intended impact
location.
(A) Prior to the initial start of the
activity (e.g., during deployment of the
target), Navy personnel must observe
the mitigation zone for floating
vegetation and jellyfish aggregations; if
floating vegetation or jellyfish
aggregations are observed, Navy
personnel must relocate or delay the
start of firing until the mitigation zone
is clear. Navy personnel must conduct
passive acoustic monitoring for marine
mammals and use the information from
detections to assist visual observations.
Navy personnel also must visually
observe the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must relocate
or delay the start of firing.
(B) During the activity, Navy
personnel must observe for marine
mammals and jellyfish aggregations; if
marine mammals or jellyfish
aggregations are observed, Navy
personnel must cease firing.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
firing) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; or the mitigation zone
has been clear from any additional
sightings for 10 min when the activity
involves aircraft that have fuel
constraints, or 30 min when the activity
involves aircraft that are not typically
fuel constrained.
(D) After completion of the activity
(e.g., prior to maneuvering off station),
Navy personnel must when practical
(e.g., when platforms are not
constrained by fuel restrictions or
mission-essential follow-on
commitments), observe for marine
mammals in the vicinity of where
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detonations occurred; if any injured or
dead marine mammals are observed,
Navy personnel must follow established
incident reporting procedures. If
additional platforms are supporting this
activity (e.g., providing range clearance),
these Navy assets must assist in the
visual observation of the area where
detonations occurred.
(8) Explosive medium-caliber and
large-caliber projectiles. Gunnery
activities using explosive mediumcaliber and large-caliber projectiles.
Mitigation applies to activities using a
surface target.
(i) Number of Lookouts and
observation platform. One Lookout must
be on the vessel or aircraft conducting
the activity. For activities using
explosive large-caliber projectiles,
depending on the activity, the Lookout
could be the same as the one described
in ‘‘Weapons firing noise’’ in paragraph
(a)(5)(i) of this section. If additional
platforms are participating in the
activity, Navy personnel positioned in
those assets (e.g., safety observers,
evaluators) must support observing the
mitigation zone for applicable biological
resources while performing their regular
duties.
(ii) Mitigation zone and requirements.
(A) 200 yd around the intended impact
location for air-to-surface activities
using explosive medium-caliber
projectiles.
(B) 600 yd around the intended
impact location for surface-to-surface
activities using explosive mediumcaliber projectiles.
(C) 1,000 yd around the intended
impact location for surface-to-surface
activities using explosive large-caliber
projectiles.
(D) Prior to the start of the activity
(e.g., when maneuvering on station),
Navy personnel must observe the
mitigation zone for floating vegetation;
if floating vegetation is observed, Navy
personnel must relocate or delay the
start of firing until the mitigation zone
is clear. Navy personnel also must
observe the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must relocate
or delay the start of firing.
(E) During the activity, Navy
personnel must observe for marine
mammals; if marine mammals are
observed, Navy personnel must cease
firing.
(F) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
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firing) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; the mitigation zone has
been clear from any additional sightings
for 10 min for aircraft-based firing or 30
min for vessel-based firing; or for
activities using mobile targets, the
intended impact location has transited a
distance equal to double that of the
mitigation zone size beyond the location
of the last sighting.
(G) After completion of the activity
(e.g., prior to maneuvering off station),
Navy personnel must, when practical
(e.g., when platforms are not
constrained by fuel restrictions or
mission-essential follow-on
commitments), observe for marine
mammals in the vicinity of where
detonations occurred; if any injured or
dead marine mammals are observed,
Navy personnel must follow established
incident reporting procedures. If
additional platforms are supporting this
activity (e.g., providing range clearance),
these Navy assets must assist in the
visual observation of the area where
detonations occurred.
(9) Explosive missiles and rockets.
Aircraft-deployed explosive missiles
and rockets. Mitigation applies to
activities using a surface target.
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned in an aircraft. If additional
platforms are participating in the
activity, Navy personnel positioned in
those assets (e.g., safety observers,
evaluators) must support observing the
mitigation zone for applicable biological
resources while performing their regular
duties.
(ii) Mitigation zone and requirements.
(A) 900 yd around the intended impact
location for missiles or rockets with 0.6–
20 lb net explosive weight.
(B) 2,000 yd around the intended
impact location for missiles with 21–
500 lb net explosive weight.
(C) Prior to the initial start of the
activity (e.g., during a fly-over of the
mitigation zone), Navy personnel must
observe the mitigation zone for floating
vegetation; if floating vegetation is
observed, Navy personnel must relocate
or delay the start of firing until the
mitigation zone is clear. Navy personnel
also must observe the mitigation zone
for marine mammals; if marine
mammals are observed, Navy personnel
must relocate or delay the start of firing.
(D) During the activity, Navy
personnel must observe for marine
mammals; if marine mammals are
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41897
observed, Navy personnel must cease
firing.
(E) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
firing) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; or the mitigation zone
has been clear from any additional
sightings for 10 min when the activity
involves aircraft that have fuel
constraints, or 30 min when the activity
involves aircraft that are not typically
fuel constrained.
(F) After completion of the activity
(e.g., prior to maneuvering off station),
Navy personnel must, when practical
(e.g., when platforms are not
constrained by fuel restrictions or
mission-essential follow-on
commitments), observe for marine
mammals in the vicinity of where
detonations occurred; if any injured or
dead marine mammals are observed,
Navy personnel must follow established
incident reporting procedures. If
additional platforms are supporting this
activity (e.g., providing range clearance),
these Navy assets will assist in the
visual observation of the area where
detonations occurred.
(10) Explosive bombs—(i) Number of
Lookouts and observation platform. One
Lookout must be positioned in an
aircraft conducting the activity. If
additional platforms are participating in
the activity, Navy personnel positioned
in those assets (e.g., safety observers,
evaluators) must support observing the
mitigation zone for applicable biological
resources while performing their regular
duties.
(ii) Mitigation zone and requirements.
2,500 yd around the intended target.
(A) Prior to the initial start of the
activity (e.g., when arriving on station),
Navy personnel must observe the
mitigation zone for floating vegetation;
if floating vegetation is observed, Navy
personnel must relocate or delay the
start of bomb deployment until the
mitigation zone is clear. Navy personnel
also must observe the mitigation zone
for marine mammals; if marine
mammals are observed, Navy personnel
must relocate or delay the start of bomb
deployment.
(B) During the activity (e.g., during
target approach), Navy personnel must
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observe the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must cease
bomb deployment.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing bomb
deployment) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
target; the mitigation zone has been
clear from any additional sightings for
10 min; or for activities using mobile
targets, the intended target has transited
a distance equal to double that of the
mitigation zone size beyond the location
of the last sighting.
(D) After completion of the activity
(e.g., prior to maneuvering off station),
Navy personnel must, when practical
(e.g., when platforms are not
constrained by fuel restrictions or
mission-essential follow-on
commitments), observe for marine
mammals in the vicinity of where
detonations occurred; if any injured or
dead marine mammals are observed,
Navy personnel must follow established
incident reporting procedures. If
additional platforms are supporting this
activity (e.g., providing range clearance),
these Navy assets must assist in the
visual observation of the area where
detonations occurred.
(11) Sinking exercises—(i) Number of
Lookouts and observation platform.
Two Lookouts (one must be positioned
in an aircraft and one must be
positioned on a vessel). If additional
platforms are participating in the
activity, Navy personnel positioned in
those assets (e.g., safety observers,
evaluators) must support observing the
mitigation zone for applicable biological
resources while performing their regular
duties.
(ii) Mitigation zone and requirements.
2.5 nautical miles (nmi) around the
target ship hulk.
(A) Prior to the initial start of the
activity (90 min prior to the first firing),
Navy personnel must conduct aerial
observations of the mitigation zone for
floating vegetation and jellyfish
aggregations; if floating vegetation or
jellyfish aggregations are observed, Navy
personnel must delay the start of firing
until the mitigation zone is clear. Navy
personnel also must conduct aerial
observations of the mitigation zone for
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marine mammals; if marine mammals
are observed, Navy personnel must
delay the start of firing.
(B) During the activity, Navy
personnel must conduct passive
acoustic monitoring for marine
mammals and use the information from
detections to assist visual observations.
Navy personnel must visually observe
the mitigation zone for marine mammals
from the vessel; if marine mammals are
observed, Navy personnel must cease
firing. Immediately after any planned or
unplanned breaks in weapons firing of
longer than two hours, Navy personnel
must observe the mitigation zone for
marine mammals from the aircraft and
vessel; if marine mammals are observed,
Navy personnel must delay
recommencement of firing.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
firing) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the target ship
hulk; or the mitigation zone has been
clear from any additional sightings for
30 min.
(D) After completion of the activity
(for two hours after sinking the vessel or
until sunset, whichever comes first),
Navy personnel must observe for marine
mammals in the vicinity of where
detonations occurred; if any injured or
dead marine mammals are observed,
Navy personnel must follow established
incident reporting procedures. If
additional platforms are supporting this
activity (e.g., providing range clearance),
these Navy assets will assist in the
visual observation of the area where
detonations occurred.
(12) Explosive mine countermeasure
and neutralization activities—(i)
Number of Lookouts and observation
platform. (A) One Lookout must be
positioned on a vessel or in an aircraft
when implementing the smaller
mitigation zone.
(B) Two Lookouts (one must be
positioned in an aircraft and one must
be on a small boat) when implementing
the larger mitigation zone.
(C) If additional platforms are
participating in the activity, Navy
personnel positioned in those assets
(e.g., safety observers, evaluators) must
support observing the mitigation zone
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for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements.
(A) 600 yd around the detonation site
for activities using 0.1–5 lb net
explosive weight.
(B) 2,100 yd around the detonation
site for activities using 6–650 lb net
explosive weight (including high
explosive target mines).
(C) Prior to the initial start of the
activity (e.g., when maneuvering on
station; typically, 10 min when the
activity involves aircraft that have fuel
constraints, or 30 min when the activity
involves aircraft that are not typically
fuel constrained), Navy personnel must
observe the mitigation zone for floating
vegetation; if floating vegetation is
observed, Navy personnel must relocate
or delay the start of detonations until
the mitigation zone is clear. Navy
personnel also must observe the
mitigation zone for marine mammals; if
marine mammals are observed, Navy
personnel must relocate or delay the
start of detonations.
(D) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals,
concentrations of seabirds, and
individual foraging seabirds; if marine
mammals, concentrations of seabirds, or
individual foraging seabirds are
observed, Navy personnel must cease
detonations.
(E) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity or
a sighting of seabird concentrations or
individual foraging seabirds during the
activity. Navy personnel must allow a
sighted animal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
detonations) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to detonation site; or
the mitigation zone has been clear from
any additional sightings for 10 min
when the activity involves aircraft that
have fuel constraints, or 30 min when
the activity involves aircraft that are not
typically fuel constrained.
(F) After completion of the activity
(typically 10 min when the activity
involves aircraft that have fuel
constraints, or 30 min when the activity
involves aircraft that are not typically
fuel constrained), Navy personnel must
observe for marine mammals in the
vicinity of where detonations occurred;
if any injured or dead marine mammals
are observed, Navy personnel must
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follow established incident reporting
procedures. If additional platforms are
supporting this activity (e.g., providing
range clearance), these Navy assets must
assist in the visual observation of the
area where detonations occurred.
(13) Explosive mine neutralization
activities involving Navy divers—(i)
Number of Lookouts and observation
platform. (A) Two Lookouts (two small
boats with one Lookout each, or one
Lookout must be on a small boat and
one must be in a rotary-wing aircraft)
when implementing the smaller
mitigation zone.
(B) Four Lookouts (two small boats
with two Lookouts each), and a pilot or
member of an aircrew must serve as an
additional Lookout if aircraft are used
during the activity, when implementing
the larger mitigation zone.
(C) All divers placing the charges on
mines will support the Lookouts while
performing their regular duties and will
report applicable sightings to their
supporting small boat or Range Safety
Officer.
(D) If additional platforms are
participating in the activity, Navy
personnel positioned in those assets
(e.g., safety observers, evaluators) must
support observing the mitigation zone
for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements.
(A) 500 yd around the detonation site
during activities under positive control
using 0.1–20 lb net explosive weight.
(B) 1,000 yd around the detonation
site during all activities using timedelay fuses (0.1–29 lb net explosive
weight) and during activities under
positive control using 21–60 lb net
explosive weight charges.
(C) Prior to the initial start of the
activity (e.g., when maneuvering on
station for activities under positive
control; 30 min for activities using timedelay firing devices), Navy personnel
must observe the mitigation zone for
floating vegetation; if floating vegetation
is observed, Navy personnel must
relocate or delay the start of detonations
or fuse initiation until the mitigation
zone is clear. Navy personnel also must
observe the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must relocate
or delay the start of detonations or fuse
initiation.
(D) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals,
concentrations of seabirds, and
individual foraging seabirds (in the
water and not on shore); if marine
mammals, concentrations of seabirds, or
individual foraging seabirds are
observed, Navy personnel must cease
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detonations or fuse initiation. To the
maximum extent practicable depending
on mission requirements, safety, and
environmental conditions, Navy
personnel must position boats near the
mid-point of the mitigation zone radius
(but outside of the detonation plume
and human safety zone), must position
themselves on opposite sides of the
detonation location (when two boats are
used), and must travel in a circular
pattern around the detonation location
with one Lookout observing inward
toward the detonation site and the other
observing outward toward the perimeter
of the mitigation zone. If used, Navy
aircraft must travel in a circular pattern
around the detonation location to the
maximum extent practicable. Navy
personnel must not set time-delay firing
devices (0.1–29 lb. net explosive weight)
to exceed 10 min.
(E) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity or
a sighting of seabird concentrations or
individual foraging seabirds during the
activity. Navy personnel must allow a
sighted animal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
detonations) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the detonation
site; or the mitigation zone has been
clear from any additional sightings for
10 min during activities under positive
control with aircraft that have fuel
constraints, or 30 min during activities
under positive control with aircraft that
are not typically fuel constrained and
during activities using time-delay firing
devices.
(F) After completion of an activity, the
Navy must observe for marine mammals
for 30 min. Navy personnel must
observe for marine mammals in the
vicinity of where detonations occurred;
if any injured or dead marine mammals
are observed, Navy personnel must
follow established incident reporting
procedures. If additional platforms are
supporting this activity (e.g., providing
range clearance), these Navy assets must
assist in the visual observation of the
area where detonations occurred.
(14) Maritime security operations—
anti-swimmer grenades—(i) Number of
Lookouts and observation platform. One
Lookout must be positioned on the
small boat conducting the activity. If
additional platforms are participating in
the activity, Navy personnel positioned
in those assets (e.g., safety observers,
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41899
evaluators) must support observing the
mitigation zone for applicable biological
resources while performing their regular
duties.
(ii) Mitigation zone and requirements.
200 yd around the intended detonation
location.
(A) Prior to the initial start of the
activity (e.g., when maneuvering on
station), Navy personnel must observe
the mitigation zone for floating
vegetation; if floating vegetation is
observed, Navy personnel must relocate
or delay the start of detonations until
the mitigation zone is clear. Navy
personnel also must observe the
mitigation zone for marine mammals; if
marine mammals are observed, Navy
personnel must relocate or delay the
start of detonations.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease detonations.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
detonations) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
detonation location; the mitigation zone
has been clear from any additional
sightings for 30 min; or the intended
detonation location has transited a
distance equal to double that of the
mitigation zone size beyond the location
of the last sighting.
(D) After completion of the activity
(e.g., prior to maneuvering off station),
Navy personnel must, when practical
(e.g., when platforms are not
constrained by fuel restrictions or
mission-essential follow-on
commitments), observe for marine
mammals in the vicinity of where
detonations occurred; if any injured or
dead marine mammals are observed,
Navy personnel must follow established
incident reporting procedures. If
additional platforms are supporting this
activity (e.g., providing range clearance),
these Navy assets will assist in the
visual observation of the area where
detonations occurred.
(15) Underwater demolition multiple
charge—mat weave and obstacle
loading exercises—(i) Number of
Lookouts and observation platform.
Two Lookouts (one must be positioned
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on a small boat and one must be
positioned on shore from an elevated
platform). If additional platforms are
participating in the activity, Navy
personnel positioned in those assets
(e.g., safety observers, evaluators) must
support observing the mitigation zone
for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements.
700 yd around the intended detonation
location.
(A) Prior to the initial start of the
activity, or 30 min prior to the first
detonation, the Lookout positioned on a
small boat must observe the mitigation
zone for floating vegetation and marine
mammals; if floating vegetation or
marine mammals are observed, Navy
personnel must delay the start of
detonations until the mitigation zone is
clear. For 10 min prior to the first
detonation, the Lookout positioned on
shore must use binoculars to observe the
mitigation zone for marine mammals; if
marine mammals are observed, Navy
personnel must delay the start of
detonations.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease detonations.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
detonations) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the detonation
location; or the mitigation zone has been
clear from any additional sightings for
10 min (as determined by the Navy
shore observer).
(D) After completion of the activity
(for 30 min), the Lookout positioned on
a small boat must observe for marine
mammals in the vicinity of where
detonations occurred; if any injured or
dead marine mammals are observed,
Navy personnel must follow established
incident reporting procedures. If
additional platforms are supporting this
activity (e.g., providing range clearance),
these Navy assets must assist in the
visual observation of the area where
detonations occurred.
(16) Vessel movement. The mitigation
will not be applied if: The vessel’s
safety is threatened; the vessel is
restricted in its ability to maneuver (e.g.,
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during launching and recovery of
aircraft or landing craft, during towing
activities, when mooring); the vessel is
operated autonomously; or when
impracticable based on mission
requirements (e.g., during Amphibious
Assault—Battalion Landing exercise).
(i) Number of Lookouts and
observation platform. One Lookout must
be on the vessel that is underway.
(ii) Mitigation zone and requirements.
(A) 500 yd around whales.
(B) 200 yd around all other marine
mammals (except bow-riding dolphins
and pinnipeds hauled out on man-made
navigational structures, port structures,
and vessels).
(iii) During the activity. When
underway Navy personnel must observe
the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must
maneuver to maintain distance.
(iv) Incident reporting procedures. If a
marine mammal vessel strike occurs,
Navy personnel must follow the
established incident reporting
procedures.
(17) Towed in-water devices.
Mitigation applies to devices that are
towed from a manned surface platform
or manned aircraft. The mitigation will
not be applied if the safety of the towing
platform or in-water device is
threatened.
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned on a manned towing
platform.
(ii) Mitigation zone and requirements.
250 yd around marine mammals.
(iii) During the activity. During the
activity (i.e., when towing an in-water
device), Navy personnel must observe
the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must
maneuver to maintain distance.
(18) Small-, medium-, and largecaliber non-explosive practice
munitions. Mitigation applies to
activities using a surface target.
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned on the platform
conducting the activity. Depending on
the activity, the Lookout could be the
same as the one described for ‘‘Weapons
firing noise’’ in paragraph (a)(5)(i) of
this section.
(ii) Mitigation zone and requirements.
200 yd around the intended impact
location.
(A) Prior to the start of the activity
(e.g., when maneuvering on station),
Navy personnel must observe the
mitigation zone for floating vegetation;
if floating vegetation is observed, Navy
personnel must relocate or delay the
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start of firing until the mitigation zone
is clear. Navy personnel also must
observe the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must relocate
or delay the start of firing.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease firing.
(C) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
firing) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; the mitigation zone has
been clear from any additional sightings
for 10 min for aircraft-based firing or 30
min for vessel-based firing; or for
activities using a mobile target, the
intended impact location has transited a
distance equal to double that of the
mitigation zone size beyond the location
of the last sighting.
(19) Non-explosive missiles and
rockets. Aircraft-deployed nonexplosive missiles and rockets.
Mitigation applies to activities using a
surface target.
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned in an aircraft.
(ii) Mitigation zone and requirements.
900 yd around the intended impact
location.
(A) Prior to the initial start of the
activity (e.g., during a fly-over of the
mitigation zone), Navy personnel must
observe the mitigation zone for floating
vegetation; if floating vegetation is
observed, Navy personnel must relocate
or delay the start of firing until the
mitigation zone is clear. Navy personnel
also must observe the mitigation zone
for marine mammals; if marine
mammals are observed, Navy personnel
must relocate or delay the start of firing.
(B) During the activity, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease firing.
(C) Commencement/recommencement
conditions after a marine mammal
sighting prior to or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
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activity (by delaying the start) or during
the activity (by not recommencing
firing) until one of the following
conditions has been met: The animal is
observed exiting the mitigation zone;
the animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; or the mitigation zone
has been clear from any additional
sightings for 10 min when the activity
involves aircraft that have fuel
constraints, or 30 min when the activity
involves aircraft that are not typically
fuel constrained.
(20) Non-explosive bombs and mine
shapes. Non-explosive bombs and nonexplosive mine shapes during mine
laying activities.
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned in an aircraft.
(ii) Mitigation zone and requirements.
1,000 yd around the intended target.
(A) Prior to the initial start of the
activity (e.g., when arriving on station),
Navy personnel must observe the
mitigation zone for floating vegetation;
if floating vegetation is observed, Navy
personnel must relocate or delay the
start of bomb deployment or mine
laying until the mitigation zone is clear.
Navy personnel also must observe the
mitigation zone for marine mammals; if
marine mammals are observed, Navy
personnel must relocate or delay the
start of bomb deployment or mine
laying.
(B) During the activity (e.g., during
approach of the target or intended
minefield location), Navy personnel
must observe the mitigation zone for
marine mammals and, if marine
mammals are observed, Navy personnel
must cease bomb deployment or mine
laying.
(C) Commencement/recommencement
conditions after a marine mammal
sighting prior to or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing bomb
deployment or mine laying) until one of
the following conditions has been met:
The animal is observed exiting the
mitigation zone; the animal is thought to
have exited the mitigation zone based
on a determination of its course, speed,
and movement relative to the intended
target or minefield location; the
mitigation zone has been clear from any
additional sightings for 10 min; or for
activities using mobile targets, the
intended target has transited a distance
equal to double that of the mitigation
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zone size beyond the location of the last
sighting.
(b) Mitigation areas. In addition to
procedural mitigation, Navy personnel
must implement mitigation measures
within mitigation areas to avoid or
reduce potential impacts on marine
mammals.
(1) Mitigation areas for marine
mammals in the Hawaii Range Complex
for sonar, explosives, and vessel
strikes—(i) Mitigation area
requirements—(A) Hawaii Island
Mitigation Area (year-round)—(1)
Except as provided in paragraph
(b)(1)(i)(A)(2) of this section, Navy
personnel must not conduct more than
300 hours of MF1 surface ship hullmounted mid-frequency active sonar or
20 hours of MF4 dipping sonar
annually, or use explosives that could
potentially result in takes of marine
mammals during training and testing.
(2) Should national security require
conduct of more than 300 hours of MF1
surface ship hull-mounted midfrequency active sonar or 20 hours of
MF4 dipping sonar, or use of explosives
that could potentially result in the take
of marine mammals during training or
testing, Naval units must obtain
permission from the appropriate
designated Command authority prior to
commencement of the activity. Navy
personnel must provide NMFS with
advance notification and include the
information (e.g., sonar hours or
explosives usage) in its annual activity
reports submitted to NMFS.
(B) 4-Islands Region Mitigation Area
(November 15–April 15 for active sonar;
year-round for explosives)—(1) Except
as provided in paragraph (b)(1)(i)(B)(2)
of this section, Navy personnel must not
use MF1 surface ship hull-mounted
mid-frequency active sonar or
explosives that could potentially result
in takes of marine mammals during
training and testing.
(2) Should national security require
use of MF1 surface ship hull-mounted
mid-frequency active sonar or
explosives that could potentially result
in the take of marine mammals during
training or testing, Naval units must
obtain permission from the appropriate
designated Command authority prior to
commencement of the activity. Navy
personnel must provide NMFS with
advance notification and include the
information (e.g., sonar hours or
explosives usage) in its annual activity
reports submitted to NMFS.
(C) Humpback Whale Special
Reporting Areas (December 15–April
15). Navy personnel must report the
total hours of surface ship hull-mounted
mid-frequency active sonar used in the
special reporting areas in its annual
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41901
training and testing activity reports
submitted to NMFS.
(D) Humpback Whale Awareness
Notification Message Area (November–
April). (1) Navy personnel must issue a
seasonal awareness notification message
to alert ships and aircraft operating in
the area to the possible presence of
concentrations of large whales,
including humpback whales.
(2) To maintain safety of navigation
and to avoid interactions with large
whales during transits, Navy personnel
must instruct vessels to remain vigilant
to the presence of large whale species
(including humpback whales).
(3) Platforms must use the
information from the awareness
notification message to assist their
visual observation of applicable
mitigation zones during training and
testing activities and to aid in the
implementation of procedural
mitigation.
(ii) [Reserved]
(2) Mitigation areas for marine
mammals in the Southern California
portion of the study area for sonar,
explosives, and vessel strikes—(i)
Mitigation area requirements—(A) San
Diego Arc, San Nicolas Island, and
Santa Monica/Long Beach Mitigation
Areas (June 1–October 31). (1) Except as
provided in paragraph (b)(2)(i)(A)(2) of
this section, Navy personnel must not
conduct more than a total of 200 hours
of MF1 surface ship hull-mounted midfrequency active sonar in the combined
areas, excluding normal maintenance
and systems checks, during training and
testing.
(2) Should national security require
conduct of more than 200 hours of MF1
surface ship hull-mounted midfrequency active sonar in the combined
areas during training and testing
(excluding normal maintenance and
systems checks), Naval units must
obtain permission from the appropriate
designated Command authority prior to
commencement of the activity. Navy
personnel must provide NMFS with
advance notification and include the
information (e.g., sonar hours) in its
annual activity reports submitted to
NMFS.
(3) Except as provided in paragraph
(b)(2)(i)(A)(4) of this section, within the
San Diego Arc Mitigation Area, Navy
personnel must not use explosives that
could potentially result in the take of
marine mammals during large-caliber
gunnery, torpedo, bombing, and missile
(including 2.75-inch rockets) activities
during training and testing.
(4) Should national security require
use of explosives that could potentially
result in the take of marine mammals
during large-caliber gunnery, torpedo,
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bombing, and missile (including 2.75inch rockets) activities during training
or testing within the San Diego Arc
Mitigation Area, Naval units must
obtain permission from the appropriate
designated Command authority prior to
commencement of the activity. Navy
personnel must provide NMFS with
advance notification and include the
information (e.g., explosives usage) in
its annual activity reports submitted to
NMFS.
(5) Except as provided in paragraph
(b)(2)(i)(A)(6) of this section, within the
San Nicolas Island Mitigation Area,
Navy personnel must not use explosives
that could potentially result in the take
of marine mammals during mine
warfare, large-caliber gunnery, torpedo,
bombing, and missile (including 2.75inch rockets) activities during training.
(6) Should national security require
use of explosives that could potentially
result in the take of marine mammals
during mine warfare, large-caliber
gunnery, torpedo, bombing, and missile
(including 2.75-inch rockets) activities
during training in the San Nicolas
Island Mitigation Area, Naval units
must obtain permission from the
appropriate designated Command
authority prior to commencement of the
activity. Navy personnel must provide
NMFS with advance notification and
include the information (e.g., explosives
usage) in its annual activity reports
submitted to NMFS.
(7) Except as provided in paragraph
(b)(2)(i)(A)(8) of this section, within the
Santa Monica/Long Beach Mitigation
Area, Navy personnel must not use
explosives that could potentially result
in the take of marine mammals during
mine warfare, large-caliber gunnery,
torpedo, bombing, and missile
(including 2.75-inch rockets) activities
during training and testing.
(8) Should national security require
use of explosives that could potentially
result in the take of marine mammals
during mine warfare, large-caliber
gunnery, torpedo, bombing, and missile
(including 2.75-inch rockets) activities
during training or testing in the Santa
Monica/Long Beach Mitigation Area,
Naval units must obtain permission
from the appropriate designated
Command authority prior to
commencement of the activity. Navy
personnel must provide NMFS with
advance notification and include the
information (e.g., explosives usage) in
its annual activity reports submitted to
NMFS.
(B) Santa Barbara Island Mitigation
Area (year-round). (1) Except as
provided in paragraph (b)(2)(i)(B)(2) of
this section, Navy personnel must not
use MF1 surface ship hull-mounted
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mid-frequency active sonar during
training or testing, or explosives that
could potentially result in the take of
marine mammals during mediumcaliber or large-caliber gunnery,
torpedo, bombing, and missile
(including 2.75-inch rockets) activities
during training.
(2) Should national security require
use of MF1 surface ship hull-mounted
mid-frequency active sonar during
training or testing, or explosives that
could potentially result in the take of
marine mammals during mediumcaliber or large-caliber gunnery,
torpedo, bombing, and missile
(including 2.75-inch rockets) activities
during training, Naval units must obtain
permission from the appropriate
designated Command authority prior to
commencement of the activity. Navy
personnel must provide NMFS with
advance notification and include the
information (e.g., sonar hours or
explosives usage) in its annual activity
reports submitted to NMFS.
(C) Blue Whale (June–October), Gray
Whale (November–March), and Fin
Whale (November–May) Awareness
Notification Message Areas. (1) Navy
personnel must issue a seasonal
awareness notification message to alert
ships and aircraft operating in the area
to the possible presence of
concentrations of large whales,
including blue whales, gray whales, and
fin whales.
(2) To maintain safety of navigation
and to avoid interactions with large
whales during transits, Navy personnel
must instruct vessels to remain vigilant
to the presence of large whale species.
(3) Platforms must use the
information from the awareness
notification messages to assist their
visual observation of applicable
mitigation zones during training and
testing activities and to aid in the
implementation of procedural
mitigation.
(ii) [Reserved]
§ 218.75 Requirements for monitoring and
reporting.
(a) Unauthorized take. Navy
personnel must notify NMFS
immediately (or as soon as operational
security considerations allow) if the
specified activity identified in § 218.70
is thought to have resulted in the
mortality or serious injury of any marine
mammals, or in any Level A harassment
or Level B harassment take of marine
mammals not identified in this subpart.
(b) Monitoring and reporting under
the LOAs. The Navy must conduct all
monitoring and reporting required
under the LOAs, including abiding by
the HSTT Study Area monitoring
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program. Details on program goals,
objectives, project selection process, and
current projects are available at
www.navymarinespeciesmonitoring.us.
(c) Notification of injured, live
stranded, or dead marine mammals.
The Navy must consult the Notification
and Reporting Plan, which sets out
notification, reporting, and other
requirements when dead, injured, or
live stranded marine mammals are
detected. The Notification and
Reporting Plan is available at
www.fisheries.noaa.gov/national/
marine-mammal-protection/
incidentaltake-authorizations-militaryreadinessactivities.
(d) Annual HSTT Study Area marine
species monitoring report. The Navy
must submit an annual report of the
HSTT Study Area monitoring describing
the implementation and results from the
previous calendar year. Data collection
methods must be standardized across
range complexes and study areas to
allow for comparison in different
geographic locations. The report must
be submitted to the Director, Office of
Protected Resources, NMFS, either
within three months after the end of the
calendar year, or within three months
after the conclusion of the monitoring
year, to be determined by the Adaptive
Management process. This report will
describe progress of knowledge made
with respect to intermediate scientific
objectives within the HSTT Study Area
associated with the Integrated
Comprehensive Monitoring Program
(ICMP). Similar study questions must be
treated together so that progress on each
topic can be summarized across all
Navy ranges. The report need not
include analyses and content that does
not provide direct assessment of
cumulative progress on the monitoring
plan study questions. As an alternative,
the Navy may submit a multi-Range
Complex annual Monitoring Plan report
to fulfill this requirement. Such a report
will describe progress of knowledge
made with respect to monitoring study
questions across multiple Navy ranges
associated with the ICMP. Similar study
questions must be treated together so
that progress on each topic can be
summarized across multiple Navy
ranges. The report need not include
analyses and content that does not
provide direct assessment of cumulative
progress on the monitoring study
question. This will continue to allow
the Navy to provide a cohesive
monitoring report covering multiple
ranges (as per ICMP goals), rather than
entirely separate reports for the HSTT,
Gulf of Alaska, Mariana Islands, and
Northwest Study Areas.
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(e) Annual HSTT Study Area training
exercise report and testing activity
report. Each year, the Navy must submit
two preliminary reports (Quick Look
Report) detailing the status of
authorized sound sources within 21
days after the anniversary of the date of
issuance of each LOA to the Director,
Office of Protected Resources, NMFS.
Each year, the Navy must submit
detailed reports to the Director, Office of
Protected Resources, NMFS, within 3
months after the one-year anniversary of
the date of issuance of the LOA. The
HSTT annual Training Exercise Report
and Testing Activity Report can be
consolidated with other exercise reports
from other range complexes in the
Pacific Ocean for a single Pacific
Exercise Report, if desired. The annual
reports must contain information on
major training exercises (MTEs), Sinking
Exercise (SINKEX) events, and a
summary of all sound sources used,
including within specific mitigation
reporting areas as described in
paragraph (e)(3) of this section. The
analysis in the detailed reports must be
based on the accumulation of data from
the current year’s report and data
collected from previous reports. The
detailed reports must contain
information identified in paragraphs
(e)(1) through (7) of this section.
(1) MTEs. This section of the report
must contain the following information
for MTEs conducted in the HSTT Study
Area.
(i) Exercise Information for each MTE.
(A) Exercise designator.
(B) Date that exercise began and
ended.
(C) Location.
(D) Number and types of active sonar
sources used in the exercise.
(E) Number and types of passive
acoustic sources used in exercise.
(F) Number and types of vessels,
aircraft, and other platforms
participating in exercise.
(G) Total hours of all active sonar
source operation.
(H) Total hours of each active sonar
source bin.
(I) Wave height (high, low, and
average) during exercise.
(ii) Individual marine mammal
sighting information for each sighting in
each exercise where mitigation was
implemented.
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indication
of whale/dolphin/pinniped).
(C) Number of individuals.
(D) Initial Detection Sensor (e.g.,
sonar, Lookout).
(E) Indication of specific type of
platform observation was made from
(including, for example, what type of
surface vessel or testing platform).
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(F) Length of time observers
maintained visual contact with marine
mammal.
(G) Sea state.
(H) Visibility.
(I) Sound source in use at the time of
sighting.
(J) Indication of whether animal was
less than 200 yd, 200 to 500 yd, 500 to
1,000 yd, 1,000 to 2,000 yd, or greater
than 2,000 yd from sonar source.
(K) Whether operation of sonar sensor
was delayed, or sonar was powered or
shut down, and how long the delay.
(L) If source in use was hull-mounted,
true bearing of animal from the vessel,
true direction of vessel’s travel, and
estimation of animal’s motion relative to
vessel (opening, closing, parallel).
(M) Lookouts must report, in plain
language and without trying to
categorize in any way, the observed
behavior of the animal(s) (such as
animal closing to bow ride, paralleling
course/speed, floating on surface and
not swimming, etc.) and if any calves
were present.
(iii) An evaluation (based on data
gathered during all of the MTEs) of the
effectiveness of mitigation measures
designed to minimize the received level
to which marine mammals may be
exposed. This evaluation must identify
the specific observations that support
any conclusions the Navy reaches about
the effectiveness of the mitigation.
(2) SINKEXs. This section of the
report must include the following
information for each SINKEX completed
that year.
(i) Exercise information gathered for
each SINKEX.
(A) Location.
(B) Date and time exercise began and
ended.
(C) Total hours of observation by
Lookouts before, during, and after
exercise.
(D) Total number and types of
explosive source bins detonated.
(E) Number and types of passive
acoustic sources used in exercise.
(F) Total hours of passive acoustic
search time.
(G) Number and types of vessels,
aircraft, and other platforms,
participating in exercise.
(H) Wave height in feet (high, low,
and average) during exercise.
(I) Narrative description of sensors
and platforms utilized for marine
mammal detection and timeline
illustrating how marine mammal
detection was conducted.
(ii) Individual marine mammal
observation (by Navy Lookouts)
information for each sighting where
mitigation was implemented.
(A) Date/Time/Location of sighting.
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41903
(B) Species (if not possible, indicate
whale, dolphin, or pinniped).
(C) Number of individuals.
(D) Initial detection sensor (e.g., sonar
or Lookout).
(E) Length of time observers
maintained visual contact with marine
mammal.
(F) Sea state.
(G) Visibility.
(H) Whether sighting was before,
during, or after detonations/exercise,
and how many minutes before or after.
(I) Distance of marine mammal from
actual detonations (or target spot if not
yet detonated): Less than 200 yd, 200 to
500 yd, 500 to 1,000 yd, 1,000 to 2,000
yd, or greater than 2,000 yd.
(J) Lookouts must report, in plain
language and without trying to
categorize in any way, the observed
behavior of the animal(s) (such as
animal closing to bow ride, paralleling
course/speed, floating on surface and
not swimming etc.), including speed
and direction and if any calves were
present.
(K) The report must indicate whether
explosive detonations were delayed,
ceased, modified, or not modified due to
marine mammal presence and for how
long.
(L) If observation occurred while
explosives were detonating in the water,
indicate munition type in use at time of
marine mammal detection.
(3) Summary of sources used. This
section of the report must include the
following information summarized from
the authorized sound sources used in all
training and testing events:
(i) Total annual hours or quantity (per
the LOA) of each bin of sonar or other
acoustic sources (e.g., pile driving and
air gun activities); and
(ii) Total annual expended/detonated
ordinance (missiles, bombs, sonobuoys,
etc.) for each explosive bin.
(4) Humpback Whale Special
Reporting Area (December 15–April 15).
The Navy must report the total hours of
operation of surface ship hull-mounted
mid-frequency active sonar used in the
special reporting area.
(5) HSTT Study Area Mitigation
Areas. The Navy must report any use
that occurred as specifically described
in these areas. Information included in
the classified annual reports may be
used to inform future adaptive
management of activities within the
HSTT Study Area.
(6) Geographic information
presentation. The reports must present
an annual (and seasonal, where
practical) depiction of training and
testing bin usage (as well as pile driving
activities) geographically across the
HSTT Study Area.
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(7) Sonar exercise notification. The
Navy must submit to NMFS (contact as
specified in the LOA) an electronic
report within fifteen calendar days after
the completion of any MTE indicating:
(i) Location of the exercise;
(ii) Beginning and end dates of the
exercise; and
(iii) Type of exercise.
(f) Seven-year close-out
comprehensive training and testing
activity report. This report must be
included as part of the 2025 annual
training and testing report. This report
must provide the annual totals for each
sound source bin with a comparison to
the annual allowance and the sevenyear total for each sound source bin
with a comparison to the seven-year
allowance. Additionally, if there were
any changes to the sound source
allowance, this report must include a
discussion of why the change was made
and include the analysis to support how
the change did or did not affect the
analysis in the 2018 HSTT FEIS/OEIS
and MMPA final rule. The draft report
must be submitted within three months
after the expiration of this subpart to the
Director, Office of Protected Resources,
NMFS. NMFS must submit comments
on the draft close-out report, if any,
within three months of receipt. The
report will be considered final after the
Navy has addressed NMFS’ comments,
or 3 months after the submittal of the
draft if NMFS does not provide
comments.
§ 218.76
Letters of Authorization.
jbell on DSKJLSW7X2PROD with RULES3
(a) To incidentally take marine
mammals pursuant to the regulations in
this subpart, the Navy must apply for
and obtain LOAs in accordance with
§ 216.106 of this chapter.
(b) LOAs, unless suspended or
revoked, may be effective for a period of
time not to exceed December 20, 2025.
(c) If an LOA expires prior to
December 20, 2025, the Navy may apply
for and obtain a renewal of the LOA.
(d) In the event of projected changes
to the activity or to mitigation,
monitoring, or reporting (excluding
changes made pursuant to the adaptive
management provision of § 218.77(c)(1))
VerDate Sep<11>2014
20:37 Jul 09, 2020
Jkt 250001
required by an LOA issued under this
subpart, the Navy must apply for and
obtain a modification of the LOA as
described in § 218.77.
(e) Each LOA must set forth:
(1) Permissible methods of incidental
taking;
(2) Geographic areas for incidental
taking;
(3) Means of effecting the least
practicable adverse impact (i.e.,
mitigation) on the species or stocks of
marine mammals and their habitat; and
(4) Requirements for monitoring and
reporting.
(f) Issuance of the LOA(s) must be
based on a determination that the level
of taking is consistent with the findings
made for the total taking allowable
under the regulations in this subpart.
(g) Notice of issuance or denial of the
LOA(s) must be published in the
Federal Register within 30 days of a
determination.
§ 218.77 Renewals and modifications of
Letters of Authorization.
(a) An LOA issued under §§ 216.106
of this chapter and 218.76 for the
activity identified in § 218.70(c) may be
renewed or modified upon request by
the applicant, provided that:
(1) The planned specified activity and
mitigation, monitoring, and reporting
measures, as well as the anticipated
impacts, are the same as those described
and analyzed for the regulations in this
subpart (excluding changes made
pursuant to the adaptive management
provision in paragraph (c)(1) of this
section); and
(2) NMFS determines that the
mitigation, monitoring, and reporting
measures required by the previous
LOA(s) were implemented.
(b) For LOA modification or renewal
requests by the applicant that include
changes to the activity or to the
mitigation, monitoring, or reporting
measures (excluding changes made
pursuant to the adaptive management
provision in paragraph (c)(1) of this
section) that do not change the findings
made for the regulations or result in no
more than a minor change in the total
estimated number of takes (or
PO 00000
Frm 00126
Fmt 4701
Sfmt 9990
distribution by species or stock or
years), NMFS may publish a notice of
planned LOA in the Federal Register,
including the associated analysis of the
change, and solicit public comment
before issuing the LOA.
(c) An LOA issued under §§ 216.106
of this chapter and 218.76 may be
modified by NMFS under the following
circumstances:
(1) Adaptive management. After
consulting with the Navy regarding the
practicability of the modifications,
NMFS may modify (including adding or
removing measures) the existing
mitigation, monitoring, or reporting
measures if doing so creates a
reasonable likelihood of more
effectively accomplishing the goals of
the mitigation and monitoring.
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in an LOA include:
(A) Results from the Navy’s
monitoring from the previous year(s);
(B) Results from other marine
mammal and/or sound research or
studies; or
(C) Any information that reveals
marine mammals may have been taken
in a manner, extent, or number not
authorized by the regulations in this
subpart or subsequent LOAs.
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS will publish a notice
of planned LOA in the Federal Register
and solicit public comment.
(2) Emergencies. If NMFS determines
that an emergency exists that poses a
significant risk to the well-being of the
species or stocks of marine mammals
specified in LOAs issued pursuant to
§§ 216.106 of this chapter and 218.76,
an LOA may be modified without prior
notice or opportunity for public
comment. Notice would be published in
the Federal Register within 30 days of
the action.
§§ 218.78–218.79
[Reserved]
[FR Doc. 2020–14181 Filed 7–9–20; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\10JYR3.SGM
10JYR3
]]>Agencies
[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Rules and Regulations]
[Pages 41780-41904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14181]
[[Page 41779]]
Vol. 85
Friday,
No. 133
July 10, 2020
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; Final Rule
Federal Register / Vol. 85, No. 133 / Friday, July 10, 2020 / Rules
and Regulations
[[Page 41780]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 200625-0169]
RIN 0648-BJ06
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 over the course of seven years,
effectively extending the time period from December 20, 2023, to
December 20, 2025. In August 2018, the MMPA was amended by the John S.
McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019
to allow for seven-year authorizations for military readiness
activities, as compared to the previously allowed five years. The
Navy's activities qualify as military readiness activities pursuant to
the MMPA as amended by the NDAA for Fiscal Year 2004. These
regulations, which allow for the issuance of Letters of Authorization
(LOAs) for the incidental take of marine mammals during the described
activities and timeframes, prescribe the permissible methods of taking
and other means of effecting the least practicable adverse impact on
marine mammal species or stocks and their habitat, and establish
requirements pertaining to the monitoring and reporting of such taking.
DATES: Effective from July 10, 2020, to December 20, 2025.
ADDRESSES: Copies of the Navy's applications, NMFS' proposed rule for
these regulations, NMFS' proposed and final rules and subsequent LOAs
for the associated five-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: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these
documents, please use the contact listed here (see FOR FURTHER
INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Wendy Piniak, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose of Regulatory Action
These regulations, issued under the authority of the MMPA (16
U.S.C. 1361 et seq.), extend the framework for authorizing the take of
marine mammals incidental to the Navy's training and testing activities
(which qualify as military readiness activities) from the use of sonar
and other transducers, in-water detonations, air guns, impact pile
driving/vibratory extraction, and the movement of vessels throughout
the HSTT Study Area. The HSTT Study Area is comprised of established
operating and warning areas across the north-central Pacific Ocean,
from the mean high tide line in Southern California west to Hawaii and
the International Date Line. The Study Area includes the at-sea areas
of three existing range complexes (the Hawaii Range Complex, the
Southern California (SOCAL) Range Complex, and the Silver Strand
Training Complex), and overlaps a portion of the Point Mugu Sea Range
(PMSR). Also included in the Study Area are Navy pierside locations in
Hawaii and Southern California, Pearl Harbor, San Diego Bay, and the
transit corridor \1\ on the high seas where sonar training and testing
may occur.
---------------------------------------------------------------------------
\1\ Vessel transit corridors are the routes typically used by
Navy assets to traverse from one area to another. The route depicted
in Figure 2-1 of the Navy's March 2019 rulemaking/LOA application is
the shortest route between Hawaii and Southern California, making it
the quickest and most fuel efficient. The depicted vessel transit
corridor is notional and may not represent the actual routes used by
ships and submarines transiting from Southern California to Hawaii
and back. Actual routes navigated are based on a number of factors
including, but not limited to, weather, training, and operational
requirements.
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NMFS received an application from the Navy requesting to extend
NMFS' existing MMPA regulations (50 CFR part 218, subpart H; hereafter
``2018 HSTT regulations'') that authorize the take of marine mammals
incidental to Navy training and testing activities conducted in the
HSTT Study Area to cover seven years of the Navy's activities, instead
of five. Take is anticipated to occur by Level A harassment and Level B
harassment as well as a very small number of serious injuries or
mortalities incidental to the Navy's training and testing activities.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional taking of small numbers of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity, as well as monitoring and reporting
requirements. Section 101(a)(5)(A) of the MMPA and the implementing
regulations at 50 CFR part 216, subpart I, provide the legal basis for
issuing this final rule and the subsequent LOAs. As directed by this
legal authority, this final rule contains mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Final Rule
Following is a summary of the major provisions of this final rule
regarding the Navy's activities. Major provisions include, but are not
limited to:
The use of defined powerdown and shutdown zones (based on
activity);
Measures to reduce or eliminate the likelihood of ship
strikes;
Activity limitations in certain areas and times that are
biologically important (i.e., for foraging, migration, reproduction)
for marine mammals;
Implementation of a Notification and Reporting Plan (for
dead, live stranded, or marine mammals struck by a vessel); and
Implementation of a robust monitoring plan to improve our
understanding of the environmental effects resulting from the Navy
training and testing activities.
Additionally, the rule includes an adaptive management component
that allows for timely modification of mitigation or monitoring
measures based on new information, when appropriate.
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA direct the
Secretary of Commerce (as delegated to NMFS) to allow, upon request,
the incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed
[[Page 41781]]
authorization is provided to the public for review and the opportunity
to submit comments.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stocks and will not have an unmitigable adverse impact on the
availability of the species or stocks for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in this rule as
``mitigation measures''); 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 NDAA for Fiscal Year 2004 (2004 NDAA) (Pub. L. 108-136) amended
section 101(a)(5) of the MMPA to remove the ``small numbers'' and
``specified geographical region'' provisions indicated above and
amended the definition of ``harassment'' as applied to a ``military
readiness activity.'' The definition of harassment for military
readiness activities (section 3(18)(B) of the MMPA) is: (i) Any act
that injures or has the significant potential to injure a marine mammal
or marine mammal stock in the wild (Level A Harassment); or (ii) Any
act that disturbs or is likely to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of natural behavioral
patterns, including, but not limited to, migration, surfacing, nursing,
breeding, feeding, or sheltering, to a point where such behavioral
patterns are abandoned or significantly altered (Level B Harassment).
In addition, the 2004 NDAA amended the MMPA as it relates to military
readiness activities such that least practicable adverse impact shall
include consideration of personnel safety, practicality of
implementation, and impact on the effectiveness of the military
readiness activity.
More recently, section 316 of the NDAA for Fiscal Year 2019 (2019
NDAA) (Pub. L. 115-232), signed on August 13, 2018, amended the MMPA to
allow incidental take rules for military readiness activities under
section 101(a)(5)(A) to be issued for up to seven years. Prior to this
amendment, all incidental take rules under section 101(a)(5)(A) were
limited to five years.
Summary of Request
On December 27, 2018, NMFS published a five-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 seven years instead of the previous five 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 regulations and
associated LOAs such that they would cover take incidental to seven
years of training and testing activities instead of five, extending the
expiration date from December 20, 2023 to December 20, 2025.
In its 2019 application, the Navy proposed no changes to the nature
of the specified activities covered by the 2018 HSTT final rule, the
level of activity within and between years will be consistent with that
previously analyzed in the 2018 HSTT final rule, and all activities
will be conducted within the same boundaries of the HSTT Study Area
identified in the 2018 HSTT final rule. Therefore, the training and
testing activities (e.g., equipment and sources used, exercises
conducted) and the mitigation, monitoring, and nearly all reporting
measures are identical to those described and analyzed in the 2018 HSTT
final rule. The only changes included in the Navy's request were to
conduct those same activities in the same region for an additional two
years. In its request, the Navy included all information necessary to
identify the type and amount of incidental take that may occur in the
two additional years so NMFS could determine whether the analyses and
conclusions regarding the impacts of the proposed activities on marine
mammal species and stocks previously reached for five years of
activities remain applicable for seven years of identical activity.
The purpose of the Navy's training and testing activities is to
ensure that the Navy meets its mission mandated by federal law (10
U.S.C. 8062), which is to maintain, train, and equip combat-ready naval
forces capable of winning wars, deterring aggression, and maintaining
freedom of the seas. The Navy executes this responsibility by
establishing and executing training programs, including at-sea training
and exercises, and ensuring naval forces have access to the ranges,
operating areas (OPAREAs), and airspace needed to develop and maintain
skills for conducting naval activities. The Navy's mission is achieved
in part by conducting training and testing within the HSTT Study Area.
The Navy's March 11, 2019, rulemaking and LOA extension application
(hereafter ``2019 Navy application'') reflects the same compilation of
training and testing activities presented in the Navy's October 13,
2017, initial rulemaking and LOA application (hereafter ``2017 Navy
application'') and the 2018 HSTT regulations that were subsequently
promulgated, which can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. These activities are deemed by the Navy
necessary to accomplish military readiness requirements and are
anticipated to continue into the reasonably foreseeable future. The
2019 Navy application and this rule cover training and testing
activities that will occur over seven years, including the five years
already authorized under the 2018 HSTT regulations, with the
regulations valid from the publication date of this final rule through
December 20, 2025.
Summary of the Regulations
NMFS is extending the incidental take regulations and associated
LOAs through December 20, 2025, to cover the same Navy activities
covered by the 2018 HSTT regulations. The 2018 HSTT final rule was
recently published and its analysis remains current and valid. In its
2019 application, the Navy proposed no changes to the nature (e.g.,
equipment and sources used, exercises conducted) or level of the
specified activities within or between years or to the boundaries of
the HSTT Study Area. The mitigation, monitoring, and nearly all
reporting measures (described below) will be identical to those
described and analyzed in the 2018 HSTT final rule. The regulatory
language included at the end of this final rule, which will be
published at 50 CFR part 218, subpart H, also is the same as the HSTT
2018 regulations, except for a small number of technical changes. No
new information has been received from the
[[Page 41782]]
Navy, or otherwise become available to NMFS, since publication of the
2018 HSTT final rule that significantly changes the analyses supporting
the 2018 findings. Where there is any new information pertinent to the
descriptions, analyses, or findings required to authorize incidental
take for military readiness activities under MMPA section 101(a)(5)(A),
that information is provided in the appropriate sections below.
Because the activities included in the 2019 Navy application have
not changed and the analyses and findings included in the documents
provided and produced in support of the recently published 2018 HSTT
final rule remain current and applicable, this final rule relies
heavily on and references to the applicable information and analyses in
those documents. Below is a list of the primary 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:
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities and https://www.hstteis.com/.
NMFS June 26, 2018, Hawaii-Southern California Training
and Testing (HSTT) proposed rule (83 FR 29872; hereafter ``2018 HSTT
proposed rule'');
NMFS December 27, 2018, Hawaii-Southern California
Training and Testing (HSTT) final rule (83 FR 66846; hereafter ``2018
HSTT final rule'');
NMFS September 13, 2019, Hawaii-Southern California
Training and Testing (HSTT) proposed rule (84 FR 48388; hereafter
``2019 HSTT proposed rule'');
Navy October 13, 2017, MMPA rulemaking and LOA application
(hereafter ``2017 Navy application'');
Navy March 11, 2019, MMPA rulemaking and LOA extension
application (hereafter ``2019 Navy application''); and
October 26, 2018, Hawaii-Southern California Training and
Testing (HSTT) Final Environmental Impact Statement/Overseas
Environmental Impact Statement (FEIS/OEIS) (hereafter ``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. A
small number of serious injuries or mortalities are also possible from
vessel strikes or exposure to explosive detonations. Detailed
descriptions of these activities are provided in Chapter 2 of the 2018
HSTT FEIS/OEIS and in the 2017 and 2019 Navy applications.
Overview of Training and Testing Activities
The Navy routinely trains and tests in the HSTT Study Area in
preparation for national defense missions. Training and testing
activities and components covered in the 2019 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. Each military training and testing activity described
meets mandated Fleet requirements to deploy combat-ready forces. The
Navy proposed no changes to the specified activities described and
analyzed in the 2018 HSTT final rule. The boundaries of the HSTT Study
Area (see Figure 2-1 of the 2019 Navy application); the training and
testing activities (e.g., equipment and sources used, exercises
conducted); manner of or amount of vessel movement; and standard
operating procedures presented in this final rule are identical to
those described and analyzed in the 2018 HSTT final rule.
Dates and Duration
The specified activities will occur at any time during the seven-
year period of validity of the regulations. The number of training and
testing activities are described in the Detailed Description of the
Specified Activities section (Tables 1 through 5).
Geographical Region
The geographic extent of the HSTT Study Area is identical to that
described in the 2018 HSTT final rule. The HSTT Study Area (see Figure
2-1 of the 2019 Navy application) is comprised of established operating
and warning areas across the north-central Pacific Ocean, from the mean
high tide line in Southern California west to Hawaii and the
International Date Line. The Study Area includes the at-sea areas of
three existing range complexes (the Hawaii Range Complex, the Southern
California (SOCAL) Range Complex, and the Silver Strand Training
Complex), and overlaps a portion of the Point Mugu Sea Range (PMSR).
Also included in the Study Area are Navy pierside locations in Hawaii
and Southern California, Pearl Harbor, San Diego Bay, and the transit
corridor \2\ on the high seas where sonar training and testing may
occur.
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\2\ Vessel transit corridors are the routes typically used by
Navy assets to traverse from one area to another. The route depicted
in Figure 2-1 of the 2019 Navy application is the shortest route
between Hawaii and Southern California, making it the quickest and
most fuel efficient. The depicted vessel transit corridor is
notional and may not represent the actual routes used by ships and
submarines transiting from Southern California to Hawaii and back.
Actual routes navigated are based on a number of factors including,
but not limited to, weather, training, and operational requirements.
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A Navy range complex consists of geographic areas that encompass a
water component (above and below the surface) and airspace, and may
encompass a land component where training and testing of military
platforms, tactics, munitions, explosives, and electronic warfare
systems occur. Range complexes include established OPAREAs, which may
be further divided to provide better control of the area for safety
reasons. Additional detail on range complexes and testing ranges was
provided in the Duration and Location section of the 2018 HSTT proposed
rule; please see the 2018 HSTT proposed rule or the 2017 Navy
application for more information and maps.
Description of Acoustic and Explosive Stressors
The Navy uses a variety of sensors, platforms, weapons, and other
devices, including ones used to ensure the safety of Sailors and
Marines, to meet its statutory mission. Training and testing with these
systems may introduce acoustic (sound) energy or shock waves from
explosives into the environment. The specific components that could act
as stressors by having direct or indirect impacts on the environment
are described in detail in the Description of Acoustic and Explosive
Stressors section of the 2018 HSTT final rule and Chapter 2
(Description of Proposed Action and Alternatives) of the 2018 HSTT
FEIS/OEIS. The Navy proposes no changes to the nature of the specified
activities and, therefore, the acoustic and explosive stressors are
identical to those described and analyzed in the 2018 HSTT final rule.
Other Stressor--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. Navy vessels
transit at speeds that are optimal for fuel conservation or to meet
training and testing requirements. The average speed of large Navy
ships ranges between 10 and 15 knots and
[[Page 41783]]
submarines generally operate at speeds in the range of 8 to 13 knots,
while a few specialized vessels can travel at faster speeds. By
comparison, this is slower than most commercial vessels where full
speed for a container ship is typically 24 knots (Bonney and Leach,
2010), with average vessel speeds along the California coast recently
reported to be between 14 and 18 knots (Moore et al., 2018).
Should a vessel strike occur, it would likely result in incidental
take from serious injury and/or mortality and, accordingly, for the
purposes of the analysis we assume that any ship 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 or amount of vessel movement, or standard operating
procedures described in the 2018 HSTT final rule. Therefore, the
description of vessel strikes as a stressor is the same as that
presented in the Other Stressor--Vessel Strike sections of the 2018
HSTT proposed rule and 2018 HSTT final rule.
Detailed Description of the Specified Activities
The Navy's specified activities are presented and analyzed as a
representative year of training to account for the natural fluctuation
of training cycles and deployment schedules in any seven-year period.
In the 2018 HSTT final rule, NMFS analyzed the potential impacts of
these activities (i.e., incidental take of marine mammals) based on the
Navy conducting three years of a representative level of activity and
two years of a maximum level of activity. For the purposes of this
rulemaking, the Navy presented and NMFS analyzed activities based on
the additional two years of training and testing consisting of an
additional one year of a maximum level of activity and one year of a
representative level of activity consistent with the pattern set forth
in the 2018 HSTT final rule, the 2018 HSTT FEIS/OEIS, and the 2017 Navy
application.
Training Activities
The number of planned training activities that could occur annually
and the duration of those activities remains identical to those
presented in Table 4 of the 2018 HSTT final rule, and are not repeated
here. The number of planned training activities that could occur over
the seven-year period are presented in Table 1. The table is organized
according to primary mission areas and includes the activity name,
associated stressors applicable to these regulations, sound source bin,
number of proposed activities, and locations of those activities in the
HSTT Study Area. For further information regarding the primary platform
used (e.g., ship or aircraft type) see Appendix A (Navy Activity
Descriptions) of the 2018 HSTT FEIS/OEIS.
Table 1--Training Activities Analyzed for Seven-Year Period in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
7-year
Stressor category Activity name Description Source bin Location number of
events
----------------------------------------------------------------------------------------------------------------
Major Training Events--Large Integrated Anti-Submarine Warfare
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Composite Aircraft carrier and carrier ASW1, ASW2, SOCAL.......... 18
Training Unit air wing integrates with ASW3, ASW4,
Exercise \1\. surface and submarine units ASW5, HF1,
in a challenging multi-threat LF6, MF1, MF3,
operational environment that MF4, MF5,
certifies them ready to MF11, MF12.
deploy.
Acoustic.......... Rim of the A biennial multinational ASW2, ASW3, HRC............ 4
Pacific training exercise in which ASW4, HF1, SOCAL.......... 4
Exercise \1\. navies from Pacific Rim HF3, HF4, M3,
nations and the United MF1, MF3, MF4,
Kingdom assemble in Pearl MF5, MF11.
Harbor, Hawaii, to conduct
training throughout the
Hawaiian Islands in a number
of warfare areas. Marine
mammal systems may be used
during a Rim of the Pacific
exercise. Components of a Rim
of the Pacific exercise, such
as certain mine warfare and
amphibious training, may be
conducted in the Southern
California Range Complex.
----------------------------------------------------------------------------------------------------------------
Major Training Events--Medium Integrated Anti-Submarine Warfare
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Fleet Exercise/ Aircraft carrier and carrier ASW1, ASW2, HRC............ 7
Sustainment air wing integrates with ASW3, ASW4, SOCAL.......... 35
Exercise \1\. surface and submarine units HF1, LF6, MF1,
in a challenging multi-threat MF3, MF4, MF5,
operational environment to MF11, MF12.
maintain ability to deploy.
Acoustic.......... Undersea Elements of the anti-submarine ASW3, ASW4, HRC............ 17
Warfare warfare tracking exercise HF1, LF6, MF1,
Exercise. combine in this exercise of MF3, MF4, MF5,
multiple air, surface, and MF11, MF12.
subsurface units, over a
period of several days.
Sonobuoys are released from
aircraft. Active and passive
sonar used.
----------------------------------------------------------------------------------------------------------------
Integrated/Coordinated Training--Small Integrated Anti-Submarine Warfare Training
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Navy Undersea Multiple ships, aircraft, and ASW3, ASW4, HRC............ 7
Warfare submarines integrate the use HF1, MF1, MF3, SOCAL.......... 18
Training and of their sensors to search MF4, MF5.
Assessment for, detect, classify,
Course Surface localize, and track a threat
Warfare submarine in order to launch
Advanced an exercise torpedo.
Tactical
Training.
----------------------------------------------------------------------------------------------------------------
Integrated/Coordinated Training--Medium Coordinated Anti-Submarine Warfare Training
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Submarine Train prospective submarine ASW3, ASW4, HRC............ 12
Commanders Commanding Officers to HF1, MF1, MF3, SOCAL.......... 12
Course. operate against surface, air, MF4, MF5,
and subsurface threats. TORP1, TORP2.
----------------------------------------------------------------------------------------------------------------
[[Page 41784]]
Integrated/Coordinated Training--Small Coordinated Anti-Submarine Warfare Training
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Amphibious Small-scale, short duration, ASW2, ASW3, HRC............ 14
Ready Group/ coordinated anti-submarine ASW4, HF1, SOCAL.......... 86
Marine warfare exercises. MF1, MF3, MF4,
Expeditionary MF5, MF11.
Unit Exercise
Group Sail
Independent
Deployer
Certification
Exercise/
Tailored Anti-
Submarine
Warfare
Training.
----------------------------------------------------------------------------------------------------------------
Amphibious Warfare
----------------------------------------------------------------------------------------------------------------
Explosive......... Naval Surface Surface ship uses large- Large-caliber HRC (W188)..... 105
Fire Support caliber gun to support forces HE rounds (E5).
Exercise--at ashore; however, land target
Sea. simulated at sea. Rounds
impact water and are scored
by passive acoustic
hydrophones located at or
near target area.
Acoustic.......... Amphibious Navy and Marine Corps forces ASW2, ASW3, SOCAL.......... 18
Marine conduct advanced integration ASW4, HF1,
Expeditionary training in preparation for MF1, MF3, MF4,
Unit Exercise. deployment certification. MF5, MF11.
Acoustic.......... Amphibious Navy and Marine Corps forces ASW2, ASW3, SOCAL.......... 18
Marine conduct integration training ASW4, HF1,
Expeditionary at sea in preparation for MF1, MF3, MF4,
Unit deployment certification. MF5, MF11.
Integration
Exercise.
Acoustic.......... Marine Amphibious Ready Group ASW2, ASW3, SOCAL.......... 18
Expeditionary exercises are conducted to ASW4, HF1,
Unit Composite validate the Marine MF1, MF3, MF4,
Training Unit Expeditionary Unit's MF5, MF11.
Exercise. readiness for deployment and
includes small boat raids;
visit, board, search, and
seizure training; helicopter
and mechanized amphibious
raids; and a non-combatant
evacuation operation.
----------------------------------------------------------------------------------------------------------------
Anti-Submarine Warfare
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Anti-Submarine Helicopter crews search for, MF4, MF5, TORP1 HRC............ 42
Warfare track, and detect submarines. SOCAL.......... 728
Torpedo Recoverable air launched
Exercise--Heli torpedoes are employed
copter. against submarine targets.
Acoustic.......... Anti-Submarine Maritime patrol aircraft crews MF5, TORP1..... HRC............ 70
Warfare search for, track, and detect SOCAL.......... 175
Torpedo submarines. Recoverable air
Exercise--Mari launched torpedoes are
time Patrol employed against submarine
Aircraft. targets.
Acoustic.......... Anti-Submarine Surface ship crews search for, ASW3, MF1, HRC............ 350
Warfare track, and detect submarines. TORP1. SOCAL.......... 819
Torpedo Exercise torpedoes are used
Exercise--Ship. during this event.
Acoustic.......... Anti-Submarine Submarine crews search for, ASW4, HF1, MF3, HRC............ 336
Warfare track, and detect submarines. TORP2. SOCAL.......... 91
Torpedo Exercise torpedoes are used
Exercise--Subm during this event.
arine.
Acoustic.......... Anti-Submarine Helicopter crews search for, MF4, MF5....... HRC............ 1,113
Warfare track, and detect submarines. SOCAL, PMSR.... 3,668
Tracking HSTT Transit 42
Exercise--Heli Corridor.
copter.
Acoustic.......... Anti-Submarine Maritime patrol aircraft MF5............ HRC............ 182
Warfare aircrews search for, track, SOCAL, PMSR.... 350
Tracking and detect submarines.
Exercise--Mari Recoverable air launched
time Patrol torpedoes are employed
Aircraft. against submarine targets.
Acoustic.......... Anti-Submarine Surface ship crews search for, ASW3, MF1, HRC............ 1,568
Warfare track, and detect submarines. MF11, MF12. SOCAL, PMSR.... 2,961
Tracking
Exercise--Ship.
Acoustic.......... Anti-Submarine Submarine crews search for, ASW4, HF1, HF3, HRC............ 1,400
Warfare track, and detect submarines. MF3. SOCAL, PMSR.... 350
Tracking HSTT Transit 49
Exercise--Subm Corridor.
arine.
Explosive, Service Weapons Air, surface, or submarine HF1, MF3, MF6, HRC............ 14
Acoustic. Test. crews employ explosive TORP2, SOCAL.......... 7
torpedoes against virtual Explosive
targets. torpedoes
(E11).
----------------------------------------------------------------------------------------------------------------
Mine Warfare
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Airborne Mine Helicopter aircrews detect HF4............ SOCAL.......... 70
Countermeasure mines using towed or laser
-Mine mine detection systems.
Detection.
Explosive, Civilian Port Maritime security personnel HF4, SAS2...... Pearl Harbor, 7
Acoustic. Defense--Homel train to protect civilian E2, E4......... HI. 21
and Security ports against enemy efforts San Diego, CA..
Anti-Terrorism/ to interfere with access to
Force those ports.
Protection
Exercises.
Explosive......... Marine Mammal The Navy deploys trained E7............. HRC............ 70
Systems. bottlenose dolphins (Tursiops SOCAL.......... 1,225
truncatus) and California sea
lions (Zalophus
californianus) as part of the
marine mammal mine-hunting
and object-recovery system.
Acoustic.......... Mine Ship crews detect and avoid HF4, HF8, MF1K. HRC............ 210
Countermeasure mines while navigating SOCAL.......... 664
Exercise--Ship restricted areas or channels
Sonar. using active sonar.
Acoustic.......... Mine Mine countermeasure ship crews HF4............ SOCAL.......... 1,862
Countermeasure detect, locate, identify, and
Exercise--Surf avoid mines while navigating
ace. restricted areas or channels,
such as while entering or
leaving port.
[[Page 41785]]
Explosive, Mine Ship, small boat, and HF4, E4........ HRC............ 42
Acoustic. Countermeasure helicopter crews locate and SOCAL.......... 2,604
s Mine disable mines using remotely
Neutralization operated underwater vehicles.
Remotely
Operated
Vehicle.
Explosive......... Mine Personnel disable threat mines E4, E5, E6, E7. HRC (Puuloa)... 140
Neutralization using explosive charges. SOCAL (IB, TAR 1,358
Explosive 2, TAR 3, TAR
Ordnance 21, SWAT 3,
Disposal. SOAR).
Acoustic.......... Submarine Mine Submarine crews practice HF1............ HRC............ 280
Exercise. detecting mines in a SOCAL.......... 84
designated area.
Acoustic.......... Surface Ship Ship crews detect and avoid MF1K, HF8...... HRC............ 287
Object mines while navigating SOCAL.......... 1,134
Detection. restricted areas or channels
using active sonar.
Explosive......... Underwater Military personnel use E10, E13....... SOCAL (TAR 2, 126
Demolitions explosive charges to destroy TAR 3).
Multiple barriers or obstacles to
Charge--Mat amphibious vehicle access to
Weave and beach areas.
Obstacle
Loading.
Explosive......... Underwater Navy divers conduct various E6, E7......... HRC (Puuloa)... 203
Demolition levels of training and SOCAL (TAR 2).. 700
Qualification certification in placing
and underwater demolition charges.
Certification.
----------------------------------------------------------------------------------------------------------------
Surface Warfare
----------------------------------------------------------------------------------------------------------------
Explosive......... Bombing Fixed-wing aircrews deliver E12 \2\........ HRC............ 1,309
Exercise Air- bombs against surface targets. SOCAL.......... 4,480
to-Surface. HSTT Transit 35
Corridor.
Explosive......... Gunnery Small boat crews fire medium- E1, E2......... HRC............ 70
Exercise caliber guns at surface SOCAL.......... 98
Surface-to- targets.
Surface Boat
Medium-Caliber.
Explosive......... Gunnery Surface ship crews fire large- E5............. HRC............ 210
Exercise caliber guns at surface SOCAL.......... 1,302
Surface-to- targets. HSTT Transit 91
Surface Ship Corridor.
Large-caliber.
Explosive......... Gunnery Surface ship crews fire medium- E1, E2......... HRC............ 350
Exercise caliber guns at surface SOCAL.......... 1,260
Surface-to- targets. HSTT Transit 280
Surface Ship Corridor.
Medium-Caliber.
Explosive, Independent Multiple ships, aircraft and E1, E3, E6, E10 SOCAL.......... 7
Acoustic. Deployer submarines conduct integrated
Certification multi-warfare training with a
Exercise/ surface warfare emphasis.
Tailored Serves as a ready-to-deploy
Surface certification for individual
Warfare surface ships tasked with
Training. surface warfare missions.
Explosive......... Integrated Live Naval Forces defend against a E1, E3, E6, E10 HRC (W188A).... 7
Fire Exercise. swarm of surface threats SOCAL (SOAR)... 7
(ships or small boats) with
bombs, missiles, rockets, and
small-, medium- and large-
caliber guns.
Explosive......... Missile Fixed-wing and helicopter E6, E8, E10.... HRC............ 70
Exercise Air- aircrews fire air-to-surface SOCAL.......... 1,498
to-Surface. missiles at surface targets.
Explosive......... Missile Helicopter aircrews fire both E3............. HRC............ 1,598
Exercise Air- precision-guided and unguided SOCAL.......... 1,722
to-Surface rockets at surface targets.
Rocket.
Explosive......... Missile Surface ship crews defend E6, E10........ HRC (W188)..... 140
Exercise against surface threats SOCAL (W291)... 70
Surface-to- (ships or small boats) and
Surface. engage them with missiles.
Explosive, Sinking Aircraft, ship, and submarine TORP2, E5, E10, HRC............ 21
Acoustic. Exercise. crews deliberately sink a E12. SOCAL.......... 4
seaborne target, usually a
decommissioned ship made
environmentally safe for
sinking according to U.S.
Environmental Protection
Agency standards, with a
variety of munitions.
Pile driving...... Elevated A pier is constructed off of Impact hammer SOCAL.......... 14
Causeway the beach. Piles are driven or vibratory
System. into the bottom with an extractor.
impact hammer. Piles are
removed from seabed via
vibratory extractor. Only in-
water impacts are analyzed.
----------------------------------------------------------------------------------------------------------------
Other Training Exercises
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Kilo Dip....... Functional check of the MF4............ HRC............ 420
dipping sonar prior to SOCAL.......... 16,800
conducting a full test or
training event on the dipping
sonar.
Acoustic.......... Submarine Submarine crews operate sonar HF1, MF3....... Pearl Harbor, 1,540
Navigation for navigation and object HI. 560
Exercise. detection while transiting San Diego Bay,
into and out of port during CA.
reduced visibility.
Acoustic.......... Submarine Sonar Maintenance of submarine sonar MF3............ HRC............ 1,820
Maintenance systems is conducted pierside Pearl Harbor, 1,820
and Systems or at sea. HI. 651
Checks. SOCAL.......... 644
San Diego Bay,
CA.
HSTT Transit 70
Corridor.
[[Page 41786]]
Acoustic.......... Submarine Under- Submarine crews train to HF1............ HRC............ 84
Ice operate under ice. Ice SOCAL.......... 42
Certification. conditions are simulated
during training and
certification events.
Acoustic.......... Surface Ship Maintenance of surface ship HF8, MF1....... HRC............ 525
Sonar sonar systems is conducted Pearl Harbor, 560
Maintenance pierside or at sea. HI. 1,750
and Systems SOCAL.......... 1,750
Checks. San Diego, CA.. 56
HSTT Transit
Corridor.
Acoustic.......... Unmanned Unmanned underwater vehicle FLS2, M3, SAS2. HRC............ 175
Underwater certification involves SOCAL.......... 70
Vehicle training with unmanned
Training--Cert platforms to ensure submarine
ification and crew proficiency. Tactical
Development. development involves training
with various payloads for
multiple purposes to ensure
that the systems can be
employed effectively in an
operational environment.
----------------------------------------------------------------------------------------------------------------
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex, HSTT = Hawaii-Southern California
Training and Testing, PMSR = Point Mugu Sea Range Overlap, TAR = Training Area and Range, SOAR = Southern
California Anti-Submarine Warfare Range, IB = Imperial Beach Minefield.
1. Any non-antisubmarine warfare activity that could occur is captured in the individual activities.
2. For the Bombing Exercise Air-to-Surface, all activities were analyzed using E12 explosive bin, but smaller
explosives are frequently used.
Testing Activities
The number of planned testing activities that could occur annually
and the duration of those activities are identical to those presented
in Tables 5 through 8 of the 2018 HSTT final rule, and are not repeated
here. Similar to the 2017 Navy application, the Navy's planned testing
activities here are based on the level of testing activities
anticipated to be conducted into the reasonably foreseeable future,
with adjustments that account for changes in the types and tempo
(increases or decreases) of testing activities to meet current and
future military readiness requirements. The number of planned testing
activities that could occur for the seven-year period are presented in
Tables 2 through 5.
Naval Air Systems Command
The Naval Air Systems Command testing activities that could occur
over the seven-year period within the HSTT Study Area are presented in
Table 2.
Table 2--Naval Air Systems Command Testing Activities Analyzed for Seven-Year Period in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
7-year
Stressor category Activity name Description Source bin Location number of
events
----------------------------------------------------------------------------------------------------------------
Anti-Submarine Warfare
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Anti-Submarine This event is similar to the MF5, TORP1..... HRC............ 134
Warfare training event torpedo SOCAL.......... 353
Torpedo Test. exercise. Test evaluates anti-
submarine warfare systems
onboard rotary-wing and fixed-
wing aircraft and the ability
to search for, detect,
classify, localize, track,
and attack a submarine or
similar target.
Explosive, Anti-Submarine This event is similar to the MF4, MF5, E3... SOCAL.......... 414
Acoustic. Warfare training event anti-submarine
Tracking Test- tracking exercise-helicopter.
Helicopter. The test evaluates the
sensors and systems used to
detect and track submarines
and to ensure that helicopter
systems used to deploy the
tracking systems perform to
specifications.
Explosive, Anti-Submarine The test evaluates the sensors ASW2, ASW5, HRC............ 399
Acoustic. Warfare and systems used by maritime MF5, MF6, E1, SOCAL.......... 436
Tracking Test- patrol aircraft to detect and E3.
Maritime track submarines and to
Patrol ensure that aircraft systems
Aircraft. used to deploy the tracking
systems perform to
specifications and meet
operational requirements.
Explosive, Sonobuoy Lot Sonobuoys are deployed from ASW2, ASW5, SOCAL.......... 1,120
Acoustic. Acceptance surface vessels and aircraft HF5, HF6, LF4,
Test. to verify the integrity and MF5, MF6, E1,
performance of a lot or group E3, E4.
of sonobuoys in advance of
delivery to the fleet for
operational use.
----------------------------------------------------------------------------------------------------------------
Mine Warfare
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Airborne A mine-hunting dipping sonar HF4............ SOCAL.......... 24
Dipping Sonar system that is deployed from
Minehunting a helicopter and uses high-
Test. frequency sonar for the
detection and classification
of bottom and moored mines.
Explosive......... Airborne Mine A test of the airborne mine E4............. SOCAL.......... 117
Neutralization neutralization system that
System Test. evaluates the system's
ability to detect and destroy
mines from an airborne mine
countermeasures capable
helicopter (e.g., MH-60). The
airborne mine neutralization
system uses up to four
unmanned underwater vehicles
equipped with high-frequency
sonar, video cameras, and
explosive and non-explosive
neutralizers.
[[Page 41787]]
Acoustic.......... Airborne A mine-hunting system made up HF6............ SOCAL.......... 33
Sonobuoy of sonobuoys deployed from a
Minehunting helicopter. A field of
Test. sonobuoys, using high-
frequency sonar, is used for
detection and classification
of bottom and moored mines.
----------------------------------------------------------------------------------------------------------------
Surface Warfare
----------------------------------------------------------------------------------------------------------------
Explosive......... Air-to-Surface This event is similar to the E9............. HRC............ 56
Bombing Test. training event bombing SOCAL.......... 98
exercise air-to-surface.
Fixed-wing aircraft test the
delivery of bombs against
surface maritime targets with
the goal of evaluating the
bomb, the bomb carry and
delivery system, and any
associated systems that may
have been newly developed or
enhanced.
Explosive......... Air-to-Surface This event is similar to the E1............. HRC............ 35
Gunnery Test. training event gunnery SOCAL.......... 330
exercise air-to-surface.
Fixed-wing and rotary-wing
aircrews evaluate new or
enhanced aircraft guns
against surface maritime
targets to test that the gun,
gun ammunition, or associated
systems meet required
specifications or to train
aircrew in the operation of a
new or enhanced weapons
system.
Explosive......... Air-to-Surface This event is similar to the E6, E9, E10.... HRC............ 126
Missile Test. training event missile SOCAL.......... 384
exercise air-to-surface. Test
may involve both fixed-wing
and rotary-wing aircraft
launching missiles at surface
maritime targets to evaluate
the weapons system or as part
of another systems
integration test.
Explosive......... Rocket Test.... Rocket tests are conducted to E3............. HRC............ 14
evaluate the integration, SOCAL.......... 142
accuracy, performance, and
safe separation of guided and
unguided 2.75-inch rockets
fired from a hovering or
forward flying helicopter or
tilt rotor aircraft.
----------------------------------------------------------------------------------------------------------------
Other Testing Activities
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Kilo Dip....... Functional check of a MF4............ SOCAL.......... 12
helicopter deployed dipping
sonar system (e.g., AN/AQS-
22) prior to conducting a
testing or training event
using the dipping sonar
system.
Acoustic.......... Undersea Range Post installation node survey MF9............ HRC............ 129
System Test. and test and periodic testing
of range node transmit
functionality.
----------------------------------------------------------------------------------------------------------------
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex.
Naval Sea Systems Command
The Naval Sea Systems Command testing activities that could occur
over the seven-year period within the HSTT Study Area are presented in
Table 3.
Table 3--Naval Sea Systems Command Testing Activities Analyzed for Seven-Year Period in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
7-year
Stressor category Activity name Description Source bin Location number of
events
----------------------------------------------------------------------------------------------------------------
Anti-Submarine Warfare
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Anti-Submarine Ships and their supporting ASW1, ASW2, HRC............ 154
Warfare platforms (e.g., rotary-wing ASW3, ASW5, SOCAL.......... 161
Mission aircraft and unmanned aerial MF1, MF4, MF5,
Package systems) detect, localize, MF12, TORP1.
Testing. and prosecute submarines.
Acoustic.......... At-Sea Sonar At-sea testing to ensure ASW3, ASW4, HRC............ 109
Testing. systems are fully functional HF1, LF4, LF5, HRC--SOCAL..... 7
in an open ocean environment. M3, MF1, MF1K, SOCAL.......... 138
MF2, MF3, MF5,
MF9, MF10,
MF11.
Acoustic.......... Countermeasure Countermeasure testing ASW3, ASW4, HRC............ 56
Testing. involves the testing of HF5, TORP1, HRC--SOCAL..... 28
systems that will detect, TORP2. SOCAL.......... 77
localize, and track incoming HSTT Transit 14
weapons, including marine Corridor.
vessel targets. Testing
includes surface ship torpedo
defense systems and marine
vessel stopping payloads.
Acoustic.......... Pierside Sonar Pierside testing to ensure HF1, HF3, HF8, Pearl Harbor, 49
Testing. systems are fully functional M3, MF1, MF3, HI. 49
in a controlled pierside MF9. San Diego, CA..
environment prior to at-sea
test activities.
Acoustic.......... Submarine Sonar Pierside and at-sea testing of HF1, HF3, M3, HRC............ 28
Testing/ submarine systems occurs MF3. Pearl Harbor, 119
Maintenance. periodically following major HI. 168
maintenance periods and for San Diego, CA..
routine maintenance.
Acoustic.......... Surface Ship Pierside and at-sea testing of ASW3, MF1, HRC............ 21
Sonar Testing/ ship systems occurs MF1K, MF9, Pearl Harbor, 21
Maintenance. periodically following major MF10. HI. 21
maintenance periods and for San Diego, CA.. 21
routine maintenance. SOCAL..........
[[Page 41788]]
Explosive, Torpedo Air, surface, or submarine ASW3, HF1, HF5, HRC (W188)..... 56
Acoustic. (Explosive) crews employ explosive and HF6, MF1, MF3, HRC (W188) 21
Testing. non-explosive torpedoes MF4, MF5, MF6, SOCAL. .........
against artificial targets. TORP1, TORP2, SOCAL.......... 56
E8, E11.
Acoustic.......... Torpedo (Non- Air, surface, or submarine ASW3, ASW4, HRC............ 56
Explosive) crews employ non-explosive HF1, HF6, M3, HRC SOCAL...... 63
Testing. torpedoes against submarines MF1, MF3, MF4, SOCAL.......... 56
or surface vessels. MF5, MF6,
TORP1, TORP2,
TORP3.
----------------------------------------------------------------------------------------------------------------
Mine Warfare
----------------------------------------------------------------------------------------------------------------
Explosive, Mine Air, surface, and subsurface HF4, E4........ SOCAL.......... 70
Acoustic. Countermeasure vessels neutralize threat
and mines and mine-like objects.
Neutralization
Testing.
Explosive, Mine Vessels and associated HF4, SAS2, E4.. HRC............ 118
Acoustic. Countermeasure aircraft conduct mine SOCAL.......... 406
Mission countermeasure operations.
Package
Testing.
Acoustic.......... Mine Detection Air, surface, and subsurface HF1, HF8, MF1, HRC............ 14
and vessels detect and classify MF5. HRC SOCAL...... 10
Classification mines and mine-like objects. SOCAL.......... 77
Testing. Vessels also assess their
potential susceptibility to
mines and mine-like objects.
----------------------------------------------------------------------------------------------------------------
Surface Warfare
----------------------------------------------------------------------------------------------------------------
Explosive......... Gun Testing-- Surface crews defend against E3............. HRC............ 49
Large-Caliber. surface targets with large- HRC--SOCAL..... 504
caliber guns. SOCAL.......... 49
Explosive......... Gun Testing-- Surface crews defend against E1............. HRC............ 28
Medium-Caliber. surface targets with medium- HRC--SOCAL..... 336
caliber guns. SOCAL.......... 28
Explosive......... Missile and Missile and rocket testing E6............. HRC............ 91
Rocket Testing. includes various missiles or HRC--SOCAL..... 168
rockets fired from submarines SOCAL.......... 140
and surface combatants.
Testing of the launching
system and ship defense is
performed.
----------------------------------------------------------------------------------------------------------------
Unmanned Systems
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Unmanned Testing involves the HF4, SAS2...... HRC............ 21
Surface production or upgrade of SOCAL.......... 28
Vehicle System unmanned surface vehicles.
Testing. This may include tests of
mine detection capabilities,
evaluations of the basic
functions of individual
platforms, or complex events
with multiple vehicles.
Acoustic.......... Unmanned Testing involves the HF4, MF9....... HRC............ 21
Underwater production or upgrade of SOCAL.......... 2,037
Vehicle unmanned underwater vehicles.
Testing. This may include tests of
mine detection capabilities,
evaluations of the basic
functions of individual
platforms, or complex events
with multiple vehicles.
----------------------------------------------------------------------------------------------------------------
Vessel Evaluation
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Submarine Sea Submarine weapons and sonar HF1, M3, MF3, HRC............ 7
Trials--Weapon systems are tested at-sea to MF9, MF10, SOCAL.......... 7
s System meet the integrated combat TORP2.
Testing. system certification
requirements.
Explosive......... Surface Warfare Tests the capabilities of E1, E5, E8..... HRC............ 63
Testing. shipboard sensors to detect, HRC--SOCAL..... 441
track, and engage surface SOCAL.......... 102
targets. Testing may include
ships defending against
surface targets using
explosive and non-explosive
rounds, gun system structural
test firing, and
demonstration of the response
to Call for Fire against land-
based targets (simulated by
sea-based locations).
Acoustic.......... Undersea Ships demonstrate capability ASW4, HF4, HF8, HRC............ 49
Warfare of countermeasure systems and MF1, MF4, MF5, HRC SOCAL\..... 60
Testing. underwater surveillance, MF6, TORP1, SOCAL.......... 69
weapons engagement, and TORP2.
communications systems. This
tests ships ability to
detect, track, and engage
undersea targets.
Acoustic.......... Vessel Surface ship, submarine and ASW3........... HRC............ 28
Signature auxiliary system signature HRC SOCAL...... 252
Evaluation. assessments. This may include SOCAL.......... 168
electronic, radar, acoustic,
infrared and magnetic
signatures.
----------------------------------------------------------------------------------------------------------------
Other Testing Activities
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Insertion/ Testing of submersibles M3, MF9........ HRC............ 7
Extraction. capable of inserting and SOCAL.......... 7
extracting personnel and
payloads into denied areas
from strategic distances.
Acoustic.......... Signature Surface ship and submarine HF1, M3, MF9... HRC............ 14
Analysis testing of electromagnetic, SOCAL.......... 7
Operations. acoustic, optical, and radar
signature measurements.
----------------------------------------------------------------------------------------------------------------
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex, HSTT = Hawaii-Southern California
Training and Testing, CA = California, HI = Hawaii.
[[Page 41789]]
Office of Naval Research
The Office of Naval Research testing activities that could occur
over the seven-year period within the HSTT Study Area are presented in
Table 4.
Table 4--Office of Naval Research Testing Activities Analyzed for Seven-Year Period in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
7-year
Stressor category Activity name Description Source bin Location number of
events
----------------------------------------------------------------------------------------------------------------
Acoustic and Oceanographic Science and Technology
----------------------------------------------------------------------------------------------------------------
Explosive, Acoustic and Research using active AG, ASW2, BB4, HRC............ 14
Acoustic. Oceanographic transmissions from sources BB9, LF3, LF4, SOCAL.......... 28
Research. deployed from ships and LF5, MF8, MF9,
unmanned underwater vehicles. MF9, MF9, E3.
Research sources can be used
as proxies for current and
future Navy systems.
Acoustic.......... Long Range Bottom mounted acoustic source LF4............ HRC............ 21
Acoustic off of the Hawaiian Island of
Communications. Kauai will transmit a variety
of acoustic communications
sequences.
----------------------------------------------------------------------------------------------------------------
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex.
Naval Information Warfare Systems Command
The Naval Information Warfare Systems Command testing activities
that could occur over the seven-year period within the HSTT Study Area
are presented in Table 5.
Table 5--Naval Information Warfare Systems Command Testing Activities Analyzed for Seven-Year Period in the HSTT
Study Area
----------------------------------------------------------------------------------------------------------------
7-year
Stressor category Activity name Description Source bin Location number of
events
----------------------------------------------------------------------------------------------------------------
Acoustic.......... Anti-Terrorism/ Testing sensor systems that SD1............ San Diego, CA.. 98
Force can detect threats to naval SOCAL.......... 112
Protection. piers, ships, and shore
infrastructure.
Acoustic.......... Communications. Testing of underwater ASW2, ASW5, HRC............ 5
communications and networks HF6, LF4. SOCAL.......... 70
to extend the principles of
FORCEnet below the ocean
surface.
Acoustic.......... Energy and Develop, integrate, and AG, HF2, HF7, HRC............ 87
Intelligence, demonstrate Intelligence, LF4, LF5, LF6, SOCAL.......... 357
Surveillance, Surveillance, and MF10. HSTT Transit 56
and Reconnaissance systems and in- Corridor.
Reconnaissance situ energy systems to
Sensor Systems. support deployed systems.
Acoustic.......... Vehicle Testing Testing of surface and BB4, FLS2, HRC............ 8
subsurface vehicles and FLS3, HF6, SOCAL.......... 1,141
sensor systems that may LF3, M3, MF9, HSTT Transit 14
involve Unmanned Underwater MF13, SAS1, Corridor.
Vehicles, gliders, and SAS2, SAS3.
Unmanned Surface Vehicles.
----------------------------------------------------------------------------------------------------------------
Notes: HRC = Hawaii Range Complex, SOCAL = Southern California Range Complex, HSTT = Hawaii-Southern California
Training and Testing, CA = California.
Summary of Acoustic and Explosive Sources Analyzed for Training and
Testing
Tables 6 through 9 show the acoustic and explosive source classes,
bins, and numbers used, airgun sources and numbers used, and numbers of
pile driving and removal activities associated with the Navy's planned
training and testing activities over a seven-year period in the HSTT
Study Area that were analyzed in the 2019 Navy application and for this
final rule. The annual numbers for acoustic source classes, explosive
source bins, and airgun sources, as well as the annual pile driving and
removal activities associated with Navy training and testing activities
in the HSTT Study Area are identical to those presented in Tables 9
through 12 of the 2018 HSTT final rule, and are not repeated here.
Consistent with the periodicity in the 2018 HSTT final rule, the Navy
included the addition of two pile driving/extraction activities for
each of the two additional years.
Table 6 describes the acoustic source classes (i.e., low-frequency
(LF), mid-frequency (MF), and high-frequency (HF)) that could occur
over seven years under the planned training and testing activities.
Acoustic source bin use in the planned activities would vary annually.
The seven-year totals for the planned training and testing activities
take into account that annual variability.
Table 6--Acoustic Source Classes Analyzed and Number Used for Seven-Year Period for Training and Testing
Activities in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
Training Testing
Source class category Bin Description Unit \1\ -------------------------------
7-year total 7-year total
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF): Sources that LF3............. LF sources greater H....... 0 1,365
produce signals less than 1 kHz. than 200 dB.
[[Page 41790]]
LF4............. LF sources equal H....... 0 4,496
to 180 dB and up C....... 0 140
to 200 dB.
LF5............. LF sources less H....... 65 14,458
than 180 dB.
LF6............. LF sources greater H....... 956 360
than 200 dB with
long pulse
lengths.
Mid-Frequency (MF): Tactical and MF1............. Hull-mounted H....... 38,489 8,692
non-tactical sources that surface ship
produce signals between 1 and sonars (e.g., AN/
10 kHz. SQS-53C and AN/
SQS-61).
MF1K............ Kingfisher mode H....... 700 98
associated with
MF1 sonars.
MF2 \2\......... Hull-mounted H....... 0 378
surface ship
sonars (e.g., AN/
SQS-56).
MF3............. Hull-mounted H....... 14,700 9,177
submarine sonars
(e.g., AN/BQQ-10).
MF4............. Helicopter- H....... 2,719 2,502
deployed dipping
sonars (e.g., AN/
AQS-22 and AN/AQS-
13).
MF5............. Active acoustic C....... 40,128 38,233
sonobuoys (e.g.,
DICASS).
MF6............. Active underwater C....... 63 8,202
sound signal
devices (e.g., MK
84).
MF8............. Active sources H....... 0 490
(greater than 200
dB) not otherwise
binned.
MF9............. Active sources H....... 0 36,056
(equal to 180 dB
and up to 200 dB)
not otherwise
binned.
MF10............ Active sources H....... 0 13,104
(greater than 160
dB, but less than
180 dB) not
otherwise binned.
MF11............ Hull-mounted H....... 5,205 392
surface ship
sonars with an
active duty cycle
greater than 80%.
MF12............ Towed array H....... 1,260 4,620
surface ship
sonars with an
active duty cycle
greater than 80%.
MF13............ MF sonar source... H....... 0 2,100
High-Frequency (HF): Tactical HF1............. Hull-mounted H....... 12,550 5,403
and non-tactical sources that submarine sonars
produce signals between 10 and (e.g., AN/BQQ-10).
100 kHz.
HF2............. HF Marine Mammal H....... 0 840
Monitoring System.
HF3............. Other hull-mounted H....... 1,919 769
submarine sonars
(classified).
HF4............. Mine detection, H....... 15,012 114,069
classification,
and
neutralization
sonar (e.g., AN/
SQS-20).
HF5............. Active sources H....... 0 6,720
(greater than 200 C....... 0 280
dB) not otherwise
binned.
HF6............. Active sources H....... 0 7,015
(equal to 180 dB
and up to 200 dB)
not otherwise
binned.
HF7............. Active sources H....... 0 9,660
(greater than 160
dB, but less than
180 dB) not
otherwise binned.
HF8............. Hull-mounted H....... 711 5,136
surface ship
sonars (e.g., AN/
SQS-61).
Anti-Submarine Warfare (ASW): ASW1............ MF systems H....... 1,503 3,290
Tactical sources (e.g., active operating above
sonobuoys and acoustic 200 dB.
countermeasures systems) used
during ASW training and testing
activities.
ASW2............ MF Multistatic C....... 4,824 32,900
Active Coherent
sonobuoy (e.g.,
AN/SSQ-125).
ASW3............ MF towed active H....... 37,385 19,187
acoustic
countermeasure
systems (e.g., AN/
SLQ-25).
ASW4............ MF expendable C....... 9,023 15,398
active acoustic
device
countermeasures
(e.g., MK 3).
ASW5 \3\........ MF sonobuoys with H....... 1,780 3,854
high duty cycles.
Torpedoes (TORP): Source classes TORP1........... Lightweight C....... 1,605 6,454
associated with the active torpedo (e.g., MK
acoustic signals produced by 46, MK 54, or
torpedoes. Anti-Torpedo
Torpedo).
TORP2........... Heavyweight C....... 3,515 2,756
torpedo (e.g., MK
48).
TORP3........... C....... 0 315
Forward Looking Sonar (FLS): FLS2............ HF sources with H....... 196 3,424
Forward or upward looking short pulse
object avoidance sonars used lengths, narrow
for ship navigation and safety. beam widths, and
focused beam
patterns.
FLS3............ VHF sources with H....... 0 18,480
short pulse
lengths, narrow
beam widths, and
focused beam
patterns.
[[Page 41791]]
Acoustic Modems (M): Systems M3.............. MF acoustic modems H....... 274 3,623
used to transmit data through (greater than 190
the water. dB).
Swimmer Detection Sonars (SD): SD1-SD2......... HF and VHF sources H....... 0 70
Systems used to detect divers with short pulse
and submerged swimmers. lengths, used for
the detection of
swimmers and
other objects for
the purpose of
port security.
Synthetic Aperture Sonars (SAS): SAS1............ MF SAS systems.... H....... 0 13,720
Sonars in which active acoustic
signals are post-processed to
form high-resolution images of
the seafloor.
SAS2............ HF SAS systems.... H....... 6,297 60,088
SAS3............ VHF SAS systems... H....... 0 32,200
SAS4............ MF to HF broadband H....... 294 0
mine
countermeasure
sonar.
Broadband Sound Sources (BB): BB4............. LF to MF H....... 0 6,414
Sonar systems with large oceanographic
frequency spectra, used for source.
various purposes.
BB7............. LF oceanographic C....... 0 196
source.
BB9............. MF optoacoustic H....... 0 3,360
source.
----------------------------------------------------------------------------------------------------------------
\1\ H = hours; C = count (e.g., number of individual pings or individual sonobuoys).
\2\ MF2/MF2K are sources on frigate class ships, which were decommissioned during Phase II.
\3\ Formerly ASW2 (H) in Phase II.
Notes: dB = decibel(s), kHz = kilohertz, VHF = very high frequency.
Table 7 describes the number of air gun shots that could occur over
seven years under the planned training and testing activities.
Table 7--Training and Testing Air Gun Sources Quantitatively Analyzed in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
Training Testing
Source class category Bin Unit \1\ -------------------------------
7-year total 7-year total
----------------------------------------------------------------------------------------------------------------
Air Guns (AG): Small underwater air AG.................. C................... 0 5,908
guns.
----------------------------------------------------------------------------------------------------------------
\1\ C = count. One count (C) of AG is equivalent to 100 air gun firings.
Table 8 summarizes the impact pile driving and vibratory pile
removal activities that could occur during a 24-hour period. Annually,
for impact pile driving, the Navy will drive 119 piles, two times a
year for a total of 238 piles. Over the seven-year period of the rule,
the Navy will drive a total of 1,666 piles by impact pile driving.
Annually, for vibratory pile extraction, the Navy will extract 119
piles, two times a year for a total of 238 piles. Over the seven-year
period of the rule, the Navy will extract a total of 1,666 piles by
vibratory pile extraction.
Table 8--Summary of Pile Driving and Removal Activities per 24-Hour Period in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
Total
estimated time
Method Piles per 24- Time per pile of noise per
hour period (minutes) 24-hour period
(minutes)
----------------------------------------------------------------------------------------------------------------
Pile Driving (Impact)........................................... 6 15 90
Pile Removal (Vibratory)........................................ 12 6 72
----------------------------------------------------------------------------------------------------------------
Table 9 describes the number of in-water explosives that could be
used in any year under the proposed training and testing activities.
Under the proposed activities bin use would vary annually, and the
seven-year totals for the planned training and testing activities take
into account that annual variability.
[[Page 41792]]
Table 9--Explosive Source Bins Analyzed and Number Used for Seven-Year Period for Training and Testing
Activities Within the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
Modeled Training Testing
Net explosive underwater -------------------------------
Bin weight (lb.) Example explosive source detonation
\1\ depths (ft.) 7-year total 7-year total
----------------------------------------------------------------------------------------------------------------
E1.................... 0.1-0.25 Medium-caliber 0.3, 60 20,580 87,012
projectiles.
E2.................... >0.25-0.5 Medium-caliber 0.3, 50 12,222 0
projectiles.
E3.................... >0.5-2.5 Large-caliber 0.3, 60 19,579 20,848
projectiles.
E4.................... >2.5-5 Mine neutralization 10, 16, 33, 266 4,372
charge. 50, 61, 65,
650
E5.................... >5-10 5 in projectiles........ 0.3, 10, 50 33,310 9,800
E6.................... >10-20 Hellfire missile........ 0.3, 10, 50, 4,056 230
60
E7.................... >20-60 Demo block/............. 10, 50, 60 91 0
shaped charge...........
E8.................... >60-100 Lightweight torpedo..... 0.3, 150 241 399
E9.................... >100-250 500 lb bomb............. 0.3 2,950 28
E10................... >250-500 Harpoon missile......... 0.3 1,543 210
E11................... >500-650 650 lb mine............. 61, 150 69 84
E12................... >650-1,000 2,000 lb bomb........... 0.3 114 0
E13................... >1,000-1,740 Multiple Mat Weave NA \2\ 63 0
charges.
----------------------------------------------------------------------------------------------------------------
\1\ Net Explosive Weight refers to the amount of explosives; the actual weight of a munition may be larger due
to other components.
\2\ Not modeled because charge is detonated in surf zone; not a single E13 charge, but multiple smaller charges
detonated in quick succession.
Notes: in. = inch(es), lb. = pound(s), ft. = feet.
Vessel Movement
Vessels used as part of the planned activities include ships,
submarines, unmanned vessels, and boats ranging in size from small, 22
ft (7 m) rigid hull inflatable boats to aircraft carriers with lengths
up to 1,092 ft (333 m). The average speed of large Navy ships ranges
between 10 and 15 knots and submarines generally operate at speeds in
the range of 8-13 knots (kn), 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,
dependent on the activity), but generally range from 10 to 14 kn. From
unpublished Navy data, average median speed for large Navy ships in the
HSTT Study Area from 2011-2015 varied from 5-10 kn 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. 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
will be especially concentrated near San Diego, California and Pearl
Harbor, Hawaii. 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. Support craft will 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.
The manner in which Navy vessels will be used during training and
testing activities, the speeds at which they operate, the number of
vessels that will be used during various activities, and the locations
in which Navy vessel movement will be concentrated within the HSTT
Study Area have not changed from those analyzed in the 2018 HSTT final
rule. The only change related to the Navy's request regarding Navy
vessel movement is the vessel use associated with the additional two
years of Navy activities.
Standard Operating Procedures
For training and testing to be effective, personnel must be able to
safely use their sensors and weapon systems as they are intended to be
used in a real-world situation and to their optimum capabilities. While
standard operating procedures are designed for the safety of personnel
and equipment and to ensure the success of training and testing
activities, their implementation often yields additional benefits on
environmental, socioeconomic, public health and safety, and cultural
resources. Because standard operating procedures are essential to
safety and mission success, the Navy considers them to be part of the
planned activities and included them in the environmental analysis.
Details on standard operating procedures 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. The
Standard Operating Procedures for the seven-year period will be
identical to those in place under the 2018 HSTT final rule.
Comments and Responses
On May 8, 2019, we published a notice of receipt (NOR) in the
Federal Register (84 FR 20105) for the Navy's application to
effectively extend the five-year 2018 HSTT regulations to seven years,
and requested comments and information related to the Navy's request.
The review and comment period for the NOR ended on June 7, 2019. We
reviewed and considered all comments and information received on the
NOR in development of the proposed rule. We published the proposed
seven-year rule for the Navy's HSTT activities in the Federal Register
on September 13, 2019 (83 FR 48388),
[[Page 41793]]
with a 30-day comment period. In that proposed rule, we requested
public input on the request for authorization described therein, our
analyses, and the proposed authorizations and requested that interested
persons submit relevant information, suggestions, and comments. During
the 30-day comment period, we received 30 comment letters. Of this
total, one submission was from the Marine Mammal Commission (hereafter
``Commission''), two letters were from organizations or individuals
acting in an official capacity (e.g., non-governmental organizations
(NGOs)) and 27 submissions were from private citizens. Both the
Commission and NGOs included their comments submitted on the 2018 HSTT
proposed five-year rule, which the seven-year rule here is nearly
identical to. The Commission did not reiterate their 2018 HSTT proposed
rule recommendations in their comment letter but maintained that the
recommendations that NMFS did not incorporate into the 2018 HSTT final
rule are still relevant and pertain to the extension of the five-year
rule and asked that they be reviewed again in the course of considering
the new seven-year rule. One letter from NGOs attached their 2018 HSTT
proposed rule comment letter. They stated that ``most of the issues
raised [in their 2018 HSTT proposed rule comment letter] were not
adequately addressed in the 2018-2023 Final Rule'' and asked that NMFS
renew consideration of their prior comments. To the extent they raised
concerns with how ``most'' issues were addressed previously, they did
not identify which issues those were. The second letter from NGOs also
attached their comments on the 2018 HSTT proposed rule and the Notice
of Receipt of the 2017 Navy application.
NMFS has reviewed and considered all public comments received on
the 2019 HSTT proposed rule and issuance of the LOAs. In considering
the comments received we realized that our responses to some of the
comments on the 2018 HSTT proposed rule could benefit from additional
detail and/or clarification. Accordingly, we are republishing the
responses to comments received on the 2018 HSTT proposed rule, some of
which have been updated, along with providing our responses to new
comments on the 2019 proposed rule. Therefore, all relevant comments
received on both the 2018 and 2019 HSTT proposed rules and our
responses are presented below. We provide no response to specific
comments that addressed species or statutes not relevant to our
proposed authorization under section 101(a)(5)(A) of the MMPA (e.g.,
comments related to sea turtles) or species or stocks that do not occur
in the HSTT Study Area (e.g., Southern Resident Killer whales).
General Comments
The majority of the 18 comment letters received on the 2018 HSTT
proposed rule and 27 comment letters received on the 2019 HSTT proposed
rule from private citizens expressed general opposition toward the
Navy's proposed training and testing activities and requested that NMFS
not issue the LOAs while one comment on the 2019 HSTT proposed rule
expressed general support, with none of these general commenters
providing information relevant to NMFS' decisions. Therefore, these
comments were not considered further. The remaining comments are
addressed below.
Comment 1: Some commenters expressed concern with issuing LOAs for
seven years.
Response: Under section 101(a)(5)(A) of the MMPA, applicants may
apply for the incidental take coverage that they need for their
activities and NMFS ``shall issue'' the requested authorizations
provided certain findings (see the Background section) can be made. In
August 2018, Congress amended the MMPA through the NDAA for Fiscal Year
2019 to allow for seven-year authorizations for military readiness
activities, as compared to the previously allowed five years. Following
the statutory amendment, the Navy applied for longer term coverage for
its testing and training activities in the HSTT Study Area, and with
NMFS making the required findings through this rulemaking, issuance of
regulations and LOAs for the longer period is appropriate.
Comment 2: Several Commenters expressed concern and the need for
increased reporting and assessment of impacts due to impacts of climate
change on marine mammal populations.
Response: We note that the Navy is required to provide annual
reports to NMFS and the Adaptive Management process allows for timely
modification of mitigation or monitoring measures based on new
information, when appropriate (see the Mitigation Measures and
Monitoring sections for additional detail). The reporting requirements
included in this final rule are consistent with NMFS' regulations and
the goals of the monitoring and reporting program, as discussed in the
2018 HSTT final rule.
Impact Analysis
General
Comment 3: In a comment on the 2018 HSTT proposed rule, a Commenter
recommended that the Navy provide NMFS with an acoustics analysis that
addresses noise impacts on land, from the air, and underwater. Full
environmental analysis of the noise would examine a suite of metrics
appropriate to the array of resources impacted. The impacts should
discuss potential effects on wildlife, visitors, and other noise-
sensitive receivers.
The commenter also recommended that the Navy consider the following
as it plans to conduct activities in the HSTT Study Area:
Use appropriate metrics to assess potential environmental
impacts on land and water.
Determine natural ambient acoustic conditions as a
baseline for analysis.
Assess effects from cumulative noise output, incorporating
noise generated from other anthropogenic sources.
Determine distance at which noise will attenuate to
natural levels.
Assess effects that these noise levels would have on
terrestrial wildlife, marine wildlife, and visitors.
Appropriate and effective mitigation measures should be
developed and used to reduce vessel strike (e.g., timing activities to
avoid migration, and searching for marine mammals before and during
activities and taking avoidance measures).
Response: The analysis conducted by the Navy and provided to NMFS
was based on the best available science and provided NMFS with all
information needed to conduct a complete and thorough analysis of the
effects of Navy activities on affected marine mammals and their
habitat. In addition, NMFS refers the Commenter to the 2018 HSTT FEIS/
OEIS which conducted an assessment of all of the activities which
comprised the proposed action and their impacts (including cumulative
impacts) along with alternatives to the proposed action and their
impacts to relevant resources. In the context of this MMPA rule, the
Navy was not required to do ambient noise monitoring or assess impacts
to wildlife other than marine mammals or to visitors/tourists. The
mitigation measures in this rule include procedural measures to use
trained Lookouts to observe for marine mammals within a mitigation zone
before, during, and after applicable activities to avoid or reduce
potential impacts wherever and whenever training and testing activities
occur. Additionally, the Navy will implement
[[Page 41794]]
measures within mitigation areas to avoid potential impacts in key
areas of importance for marine mammal foraging, reproduction, and
migration. The mitigation measures in this rule also include procedural
measures to minimize vessel strike (avoiding whales by 500 yds, etc.),
mitigation areas to minimize strike in biologically important areas,
and Awareness Notification Message areas wherein all vessels are
alerted to stay vigilant to the presence of large whales.
Density Estimates
Comment 4: In a comment on the 2018 HSTT proposed rule, a Commenter
stated that 30 iterations or Monte Carlo simulations is low for general
bootstrapping methods used in those models but understands that
increasing the number of iterations in turn increases the computational
time needed to run the models. Accordingly, the Commenter suggested
that the Navy consider increasing the iterations from 30 to at least
200 for activities that have yet to be modeled for upcoming MMPA
rulemakings for Navy testing and training activities.
Response: In areas where there are four seasons, 30 iterations are
used in NAEMO which results in a total of 120 iterations per year for
each event. However, in areas where there are only two seasons, warm
and cold, the number of iterations per season is increased to 60 so
that 120 iterations per year are maintained. The Navy reached this
number of iterations by running two iterations of a scenario and
calculating the mean of exposures, then running a third iteration and
calculating the running mean of exposures, then a fourth iteration and
so on. This is done until the running mean becomes stable. Through this
approach, it was determined 120 iterations was sufficient to converge
to a statistically valid answer and provides a reasonable uniformity of
exposure predictions for most species and areas. There are a few
exceptions for species with sparsely populated distributions or highly
variable distributions. In these cases, the running mean may not
flatten out (or become stable); however, there were so few exposures in
these cases that while the mean may fluctuate, the overall number of
exposures did not result in significant differences in the totals. In
total, the number of simulations conducted for HSTT Phase III exceeded
six million simulations and produced hundreds of terabytes of data.
Increasing the number of iterations, based on the discussion above,
would not result in a significant change in the results, but would
incur a significant increase in resources (e.g., computational and
storage requirements). This would divert these resources from
conducting other more consequential analysis without providing for
meaningfully improved data. The Navy has communicated that it is
continually looking at ways to improve NAEMO and reduce data and
computational requirements. As technologies and computational
efficiencies improve, the Navy will evaluate these advances and
incorporate them where appropriate. NMFS has reviewed the Navy's
approach and concurs that it is technically sound and reflects the best
available science.
Comment 5: In a comment on the 2018 HSTT proposed rule, a Commenter
had concerns regarding the Navy's pinniped density estimates. Given
that a single density was provided for the respective areas and
pinnipeds were assumed to occur at sea as individual animals,
uncertainty does not appear to have been incorporated in the Navy's
animat modeling for pinnipeds. The Navy primarily used sightings or
abundance data, assuming certain correction factors, divided by an area
to estimate pinniped densities. Many, if not all, of the abundance
estimates had associated measures of uncertainty (i.e., coefficients of
variation (CV), standard deviation (SD), or standard error (SE)).
Therefore, the Commenter recommended that NMFS require the Navy to
specify whether and how it incorporated uncertainty in the pinniped
density estimates into its animat modeling and if it did not, require
the Navy to use measures of uncertainty inherent in the abundance data
(i.e., CV, SD, SE) similar to the methods used for cetaceans.
Response: As noted in the cited technical report ``Quantifying
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and
Analytical Approach for Phase III Training and Testing'' (U.S.
Department of the Navy, 2018), the Navy did not apply statistical
uncertainty outside the survey boundaries into non-surveyed areas,
since it deemed application of statistical uncertainty would not be
meaningful or appropriate. We note that there are no measures of
uncertainty (i.e., no CV, SD, or SE) provided in NMFS Pacific Stock
Assessment Report (SAR) Appendix 3 (Carretta et al., 2019) associated
with the abundance data for any of the pinniped species present in
Southern California. Although some measures of uncertainty are
presented in some citations within the SAR and in other relevant
publications for some survey findings, it is not appropriate for the
Navy to attempt to derive summations of total uncertainty for an
abundance when the authors of the cited studies and the SAR have not.
For additional information regarding use of pinniped density data, see
the cited ``U.S. Navy Marine Species Density Database Phase III for the
Hawaii-Southern California Training and Testing Study Area'' Section 11
(U.S. Department of the Navy, 2017b). As a result of the lack of
published applicable measures of uncertainty for pinnipeds during this
analysis, the Navy did not incorporate measures of uncertainty into the
pinniped density estimates. NMFS independently reviewed the methods and
densities used by the Navy and concur that they are appropriate and
reflect the best available science.
Comment 6: In a comment on the 2018 HSTT proposed rule, a Commenter
had concerns regarding the various areas, abundance estimates, and
correction factors that the Navy used for pinnipeds. The Commenter
referenced a lot of information in the context of both what the Navy
used and what the Commenter argued they could have used instead and
summarized the discussion with several recommendations.
For harbor seals, the area was based on the NMFS SOCAL stratum
(extending to the extent of the U.S. exclusive economic zone (EEZ), 370
km from the coast) for its vessel-based surveys (i.e., Barlow 2010) and
the Navy applied the density estimates from the coast to 80 km
offshore. The Commenter believes that this approach is inappropriate
and that the Navy should use the area of occurrence to estimate the
densities for harbor seals. For harbor seals, the Navy assumed that 22
percent of the stock occurred in SOCAL, citing Department of the Navy
(2015). The Commenter had two concerns with this approach. First, one
has to go to Department of the Navy (2015) to determine the original
source of the information (Lowry et al., 2008; see the commenter's
February 20, 2014, letter on this matter). Second, Lowry et al. (2008)
indicated that 23.3 percent of the harbor seal population occurred in
SOCAL, not 22 percent as used by the Navy. Therefore, the Commenter
recommended that, at the very least, NMFS require the Navy to revise
the pinniped density estimates using the extent of the coastal range
(e.g., from shore to 80 km offshore) of harbor seals as the applicable
area, 23.3 percent of the California abundance estimate based on Lowry
et al. (2008), and an at-sea correction factor of 65 percent based on
Harvey and Goley (2011) for both seasons.
[[Page 41795]]
For monk seals the area was based on the areas within the 200-m
isobaths in both the Main and Northwest Hawaiian Islands (MHI and NWHI,
respectively) and areas beyond the 200-m isobaths in the U.S. EEZ. The
Commenter asserted that some of the abundances used were not based on
best available science. The Navy noted that its monk seal abundance was
less than that reported by Baker et al. (2016), but that those more
recent data were not available when the Navy's modeling process began.
The Baker et al. (2016) data have been available for almost two years
and should have been incorporated accordingly, particularly since the
data would yield greater densities and the species is endangered. For
monk seals, the Commenter recommended using the 2015 monk seal
abundance estimate from Baker et al. (2016) and an at-sea correction
factor of 63 percent for the MHI based on Baker et al. (2016) and 69
percent for the NWHI based on Harting et al. (2017).
For the northern fur seals, the area was based on the NMFS SOCAL
stratum (extending to the extent of the U.S. EEZ, 370 km from the
coast) for its vessel-based surveys (i.e., Barlow, 2010). For elephant
seals, California sea lions, and Guadalupe fur seals, the area was
based on the Navy SOCAL modeling area. The Commenter had concerns that
these areas are not based on the biology or ecology of these species.
The Commenter recommended using the same representative area for
elephant seals, northern fur seals, Guadalupe fur seals, and California
sea lions.
The Commenter recommended using an increasing trend of 3.8 percent
annually for the last 15 years for elephant seals as part of the
California population and at least 31,000 as representative of the
Mexico population based on Lowry et al. (2014). Additionally, the
commenter recommended using an at-sea correction factor of 44 percent
for the cold season and 48 percent for the warm season for California
sea lions based on Lowry and Forney (2005).
Finally, the Commenter recommended that NMFS require the Navy to
(1) specify the assumptions made and the underlying data that were used
for the at-sea correction factors for Guadalupe and northern fur seals
and (2) consult with experts in academia and at the NMFS Science
Centers to develop more refined pinniped density estimates that account
for pinniped movements, distribution, at-sea correction factors, and
density gradients associated with proximity to haul-out sites or
rookeries.
Response: The Navy provided additional clarification regarding the
referenced concerns about areas, abundance estimates, and correction
factors that were used for pinnipeds. We note that take estimation is
not an exact science. There are many inputs that go into an estimate of
marine mammal exposure, and the data upon which those inputs are based
come with varying levels of uncertainty and precision. Also,
differences in life histories, behaviors, and distributions of stocks
can support different decisions regarding methods in different
situations. Different methods may be supportable in different
situations, and, further, there may be more than one acceptable method
to estimate take in a particular situation. Accordingly, while NMFS
always ensures that the methods are technically supportable and reflect
the best available science, NMFS does not prescribe any one method for
estimating take (or calculating some of the specific take estimate
components that the Commenter is concerned about). NMFS reviewed the
areas, abundances, and correction factors used by the Navy to estimate
take and concurs that they are appropriate. We note the following in
further support of the analysis: while some of the suggestions the
Commenter makes could provide alternate valid ways to conduct the
analyses, these modifications are not required in order to have equally
valid and supportable analyses and, further, would not change NMFS'
determinations for pinnipeds. In addition, we note that (1) many of the
specific recommendations that the Commenter makes are largely minor in
nature: ``44 not 47 percent,'' ``63 not 61 percent,'' ``23.3 not 22
percent'' or ``area being approximately 13 percent larger;'' and (2)
even where the recommendation is somewhat larger in scale, given the
ranges of these stocks, the size of the stocks, and the number and
nature of pinniped takes, recalculating the estimated take for any of
these pinniped stocks using the Commenter's recommended changes would
not change NMFS' assessment of impacts on the recruitment or survival
of any of these stocks, or the negligible impact determination. Below,
we address the Commenter's issues in more detail and, while we do not
explicitly note it in every section, NMFS has reviewed the Navy's
analysis and choices in relation to these comments and concurs that
they are technically sound and reflect the best available science.
For harbor seals--Based on the results from satellite tracking of
harbor seals at Monterey, California and the documented dive depths
(Eguchi and Harvey, 2005), the extent of the range for harbor seals in
the HSTT Study Area used by the Navy (a 50 Nmi buffer around all known
haul-out sites; approximately 93 km) is more appropriate than the
suggested 80 km offshore suggested by Commenter.
The comment is incorrect in its claim that the NMFS and Navy did
not use the best available science. Regarding the appropriate
percentage of the California Current Ecosystem abundance to assign to
the HSTT Study Area, the 22 percent that the Navy used is based on the
most recent of the two years provided in Lowry et al. (2008) rather
than the mean of two years, which is one valid approach. Additionally,
since approximately 74 percent of the harbor seal population in the
Channel Islands (Lowry et al., 2017) is present outside and to the
north of the HSTT Study Area, it is a reasonable assumption that the 22
percent used already provides a conservative overestimate and that it
would not be appropriate to apply a higher percentage of the overall
population for distribution into the Navy's modeling areas.
Again, the comment is incorrect in its claim that the correction
factors applied to population estimates were either unsubstantiated or
incorrect. Regarding the Commenter's recommended use of an at-sea
correction factor of 65 percent for both seasons based on Harvey and
Goley (2011), that correction factor was specifically meant to apply to
the single molting season when harbor seals are traditionally surveyed
(see discussion in Lowry et al., 2017). Additionally, the authors of
that study provided a correction factor (CF = 2.86; 35 percent) for
Southern California but left open the appropriateness of that factor
given the limited data available at the time. For these reasons, having
separate correction factors for each of the seasons is more appropriate
as detailed in Section 11.1.5 (Phoca vitulina, Pacific harbor seal) of
the ``U.S. Navy Marine Species Density Database Phase III for the
Hawaii-Southern California Training and Testing Study Area'' (U.S.
Department of the Navy, 2017b).
For monk seals, as detailed in Section 11.1.4 (Neomonachus
schauinslandi, Hawaiian monk seal) of the ``U.S. Navy Marine Species
Density Database Phase III for the Hawaii-Southern California Training
and Testing Study Area'' (U.S. Department of the Navy, 2017b), the Navy
consulted with the researchers and subject matter experts at the
Pacific Science Center and the Monk Seal Recovery Team regarding the
abundance estimates, at sea correction factors, and distribution for
monk seals in the Hawaiian Islands during development
[[Page 41796]]
of the 2018 HSTT FEIS/OEIS throughout 2015 and the Summer of 2016, and
as used subsequently in its MMPA application. The Navy incorporated the
results of those consultations, including unpublished data, into the
analysis of monk seals. Additional details in this regard to monk seal
distributions and population trends as reflected by the abundance in
the Hawaiian Islands are presented in the 2018 HSTT FEIS/OEIS in
Section 3.7.2.2.9.2 (Habitat and Geographic Range) and Section
3.7.2.2.9.3 (Population Trends). The Navy has indicated that it has
continued ongoing communications with researchers at the Pacific
Islands Science Center and elsewhere, has accounted for the findings in
the citations noted by the Commenter (Baker et al., 2016; Harting et
al., 2017) as well as information in forthcoming publications provided
ahead of publication via those researchers (cited as in preparation),
and specifically asked for and received concurrence from subject matter
experts regarding specific findings presented in the 2018 HSTT FEIS/
OEIS regarding monk seals. The Navy also considered (subsequent to
publication of the 2018 HSTT FEIS/OEIS) the new Main Hawaiian Islands
haul-out correction factor presented in the publication by Wilson et
al. (2017, which would be inconsistent with the use of the Baker et al.
(2016) correction factors suggested by the Commenter), and the Harting
et al. (2017) correction factor, and considered the new abundance
numbers presented in the 2016 Stock Assessment Report, which first
became available in January 2018. It is the Navy's assessment that a
revision of the monk seal at-sea density would only result in small
changes to the predicted effects and certainly would not change the
conclusions presented in the 2018 HSTT FEIS/OEIS regarding impact on
the population or the impact on the species. NMFS concurs with this
conclusion. The Navy has communicated that it assumes that as part of
the ongoing regulatory discussions with NMFS, changes to estimates of
effects can be best dealt with in the next rulemaking given Wilson et
al. (2017) has now also provided a totally new haulout correction
factor for the Main Hawaiian Islands that was not considered in Baker
et al. (2016), Harting et al. (2017), or the 2016 SAR. NMFS agrees.
For northern fur seals, elephant seals, California sea lions, and
Guadalupe fur seals, the Navy consulted with various subject matter
experts regarding the abundances and distributions used in the 2018
HSTT FEIS/OEIS analyses for these species and based on those
consultations and the literature available, the Navy and NMFS believe
that the findings presented in the 2018 HSTT FEIS/OEIS and supporting
technical reports provide the most accurate assessments available for
these species. Given the demonstrated differences in the at-sea
distributions of elephant seals, northern fur seals, Guadalupe fur
seals, and California sea lions (Gearin et al., 2017; Lowry et al.,
2014; Lowry, et al., 2017; Norris, 2017; Norris, et al., 2015; Robinson
et al., 2012; University of California Santa Cruz and National Marine
Fisheries Service, 2016), it would not be appropriate to use the same
representative area for distributions of these species' population
abundances. For example, California sea lions forage predominantly
within 20 nmi from shore (Lowry and Forney, 2005), while tag data shows
that many elephant seals (Robinson et al., 2012) and Guadalupe fur
seals (Norris, 2017) seasonally forage in deep waters of the Pacific
well outside the boundaries of the HSTT Study Area.
For northern elephant seals (Mirounga angustirostris, Northern
elephant seal), as detailed in Section 11.1.3 of the technical report
titled U.S. Navy Marine Species Density Database Phase III for the
Hawaii-Southern California Training and Testing Study Area (U.S.
Department of the Navy, 2017b), the Navy considered a number of factors
in the development of the data for this species, including the fact
that not all of the elephant seal population is likely to occur
exclusively within the Southern California portion of the HSTT Study
Area. Given that the three main rookeries considered in this analysis
are located at the northern boundary of the HSTT Study Area and that
elephant seals migrate northward after the breeding season, the Navy,
in consultation with subject matter experts, believes the current
abundance used in the analysis is based on the best available science
and represents a conservative overestimate of the number of elephant
seals likely to be affected by Navy activities in the HSTT Study Area.
NMFS agrees with this assessment, and it was used in the MMPA analysis.
For California sea lions, the citation (Lowry and Forney, 2005)
used as the basis for this recommendation specifically addressed the
use of the Central and Northern California at-sea correction factor
elsewhere, with the authors stating; ``In particular, [use of the
Central and Northern California at-sea correction factor] would not be
appropriate for regions where sea lions reproduce, such as in the
Southern California Bight (SCB) and in Mexico, . . .'' Given the waters
of the Southern California Bight and off Mexico overlap the HSTT Study
Area and since the authors of the cited study specifically recommended
not using the correction factor in the manner the Commenter suggested,
the Navy does not believe use of that correction factor for the HSTT
Study Area would be appropriate. NMFS concurs with this approach.
For Guadalupe fur seal--Additional detail regarding the data used
for the analysis of Guadalupe fur seals was added to the 2018 HSTT
FEIS/OEIS Section 3.7.2.2.8 (Arctocephalus townsendi, Guadalupe Fur
Seal). The Navy had integrated the latest (September 2017) unpublished
data for Guadalupe fur seals from researchers in the United States and
Mexico into the at-sea correction factor and density distribution of
the species used in the modeling, but consultations with experts in
academia and at the NMFS Science Centers and their recommendations had
not been finalized before release of the Draft EIS/OEIS. Subsequently,
this revision of the text was not considered critical for the final
NEPA document since the new data did not provide any significant change
to the conclusions reached regarding the Guadalupe fur seal population.
In fact, the data indicates an increase in the population and expansion
of their range concurrent with decades of ongoing Navy training and
testing in the SOCAL range complex. The Navy recently supported new
census and at-sea satellite tagging of Guadalupe fur seals in 2018 and
2019. These data were not available during the development of the 2018
HSTT FEIS/OEIS, but the results do not change the overall conclusions.
For instance, Guadalupe fur seals tagged to date are truly pelagic and
mainly transit the offshore (<2000 m) waters of the HSTT SOCAL area
(Norris et al., 2019a, 2019b; Norris et al., 2020). Therefore, modeled
takes are likely an over-prediction of exposure. NMFS agrees with this
assessment, and it was used in the MMPA analysis.
For Northern Fur Seal--As presented in Section 11.1.2 (Callorhinus
ursinus, Northern fur seal) of the Navy's Density Technical Report
(U.S. Department of the Navy, 2017b), the correction factor percentages
for northern fur seals potentially at sea were derived from the
published literature as cited (Antonelis et al., 1990; Ream, et al.,
2005; Roppel, 1984).
For future EISs, the Navy explained that it did and will continue
to consult with authors of the papers relevant to the analyses as well
as other experts in
[[Page 41797]]
academia and at the NMFS Science Centers during the development of the
Navy's analyses. During the development of the 2018 HSTT EIS/OEIS and
as late as September 2017, the Navy had ongoing communications with
various subject matter experts and specifically discussed pinniped
movements, the distribution of populations within the study area to
support the analyses, the pinniped haulout or at-sea correction
factors, and the appropriateness of density gradients associated with
proximity to haul-out sites or rookeries. As shown in the references
cited, the personal communications with researchers have been made part
of the public record, although many other informal discussions with
colleagues have also assisted in the Navy's approach to the analyses
presented.
The Navy acknowledges that there have been previous comments
provided by this Commenter on other Navy range complex documents
regarding the use of satellite tag movement and location data to derive
at-sea pinniped density data, and the Navy asserts that previous
responses to those comments remain valid. Additionally, the Commenter
has noted that the ``. . . Commenter continues to believe that data
regarding movements and dispersion of tagged pinnipeds could yield
better approximations of densities than the methods the Navy currently
uses.'' The Navy acknowledges that in comments to previous HSTT EIS/
OEIS analyses, the Commenter has recommended this untried approach;
responses to those previous comments have been provided. The Navy also
notes that there have been papers suggesting the future application of
Bayesian or Markov chain techniques for use in habitat modeling (e.g.,
Redfern et al., 2006) and overcoming the bias introduced by
interpretation of population habitat use based on non-randomized
tagging locations (e.g., Whitehead and Jonsen, 2013). However, the use
of satellite tag location data in a Bayesian approach to derive
cetacean or pinniped densities at sea has yet to be accepted,
implemented, or even introduced in the scientific literature.
This issue was in fact recently discussed as part of the Density
Modeling Workshop associated with the October 2017 Society for Marine
Mammalogy conference. The consensus of the marine mammal scientists
present was that while pinniped tag data could provide a good test
case, it realistically was unlikely to be a focus of the near-term
research. The working group determined that a focused technical group
should be established to specifically discuss pinnipeds and data
available for density surface modelling in the future. It was also
discussed at the Density Modeling Workshop in October 2018. The Navy
has convened a pinniped working group and NMFS Alaska Fisheries Science
Center is sponsoring a demonstration project to use haul-out and
telemetry data from seals in Alaska to determine the viability of such
an approach.
Therefore, consistent with previous assessments and based on recent
discussions with subject matter experts in academia, the NMFS Science
Centers, and the National Marine Mammal Laboratory, and given there is
no currently established methodology for implementing the approach
suggested by the Commenter, the Navy believes that attempting to create
and apply a new density derivation method at this point would introduce
additional levels of uncertainty into density estimations.
For these reasons, the Navy and NMFS did not use density estimates
based on pinniped tracking data. Publications reporting on satellite
tag location data have been and will continue to be used to aid in the
understanding of pinniped distributions and density calculations as
referenced in the 2018 HSTT FEIS/OEIS and the Navy's ``U.S. Navy Marine
Species Density Database Phase III for the Hawaii-Southern California
Training and Testing Study Area'' report (U.S. Department of the Navy,
2017b). The Navy has communicated that it will continue, as it has in
the past, to refine pinniped density and distributions using telemetry
data and evolving new techniques (such as passive acoustic survey data)
in development of the Navy's analyses. As noted above, NMFS has
reviewed the Navy's methods and concurs that they are appropriate and
reflect the best available science.
Comment 7: Commenters noted that in the 2018 HSTT final rule, NMFS
stated that it would incorporate the best and most recently available
abundance and haul out data for monk seals into its next rulemaking,
but failed to do so in the 2019 HSTT proposed rule. They argued that in
light of the critical status of the monk seals, which number
approximately 1,415 individuals, there is no justification for NMFS'
failure to comply with the MMPA's command to incorporate the best
available science into the proposed extension rule.
Response: As described in the response to Comment 6, in developing
the Marine Species Density Database Phase III for the Hawaii-Southern
California Training and Testing Study Area, as part of the 2018 HSTT
FEIS/OEIS, the Navy consulted with researchers and subject matter
experts at NMFS' Pacific Islands Fisheries Science Center and the Monk
Seal Recovery Team regarding the abundance estimates, at sea correction
factors, and distribution for monk seals in the Hawaiian Islands. The
Navy incorporated the results of those consultations, including
unpublished data from Wilson et al., then in review, into the analysis
of monk seals for the 2018 HSTT FEIS/OEIS and the 2017 and 2019 Navy
Applications. When developing the analysis for monk seals, the Navy, in
consultation with researchers at the NMFS Pacific Islands Fisheries
Science Center, incorporated an estimated increased monk seal
abundance. The published SAR for Hawaiian monk seals at the time (2015)
reported a population size of 1,112, however in consultation with NMFS
the Navy used a population size of 1,300. This estimate was also in
agreement with the population size estimates reported by Baker et al.
(2016) (2013 = 1,291, 2014 = 1,309, 2015 = 1,324). The most recent
draft 2019 SARs report a population size of 1,351 and the abundance
estimate used in the Navy's analyses is within the 95 percent
confidence interval (1,294-1,442; CV = 0.03). It is the Navy's
assessment that a revision of the monk seal at-sea density (given the
most recent abundance estimate of 1,351) would result in only very
small changes to the predicted effects (particularly given the
distribution of monk seals in the HSTT Study Area) and would not change
the conclusions presented in the 2018 HSTT FEIS/OEIS and 2017 and 2019
Navy applications regarding impact on the population or the impact on
the species. NMFS concurs with this conclusion. NMFS and the Navy will
continue to consider the most recent and best available data in future
EIS and MMPA rule analyses.
Comment 8: In a comment on the 2018 HSTT proposed rule, a Commenter
recommended that NMFS require the Navy to (1) specify what modeling
method and underlying assumptions, including any relevant source
spectra and assumed animal swim speeds and turnover rates, were used to
estimate the ranges to PTS and TTS for impact and vibratory pile-
driving activities, (2) accumulate the energy for the entire day of
proposed activities to determine the ranges to PTS and TTS for impact
and vibratory pile-driving activities, and (3) clarify why the PTS and
TTS ranges were estimated to be the same for LF and HF cetaceans during
impact pile driving.
Response: As explained in Section 3.7.3.1.4.1 of the 2018 HSTT
FEIS/OEIS,
[[Page 41798]]
the Navy measured values for source levels and transmission loss from
pile driving of the Elevated Causeway System, the only pile driving
activity included in the Specified Activity. The Navy reviewed the
source levels and how the spectrum was used to calculate the range to
effects; NMFS supports the use of these measured values for the MMPA
analysis. These recorded source waveforms were weighted using the
auditory weighting functions. Low-frequency and high-frequency
cetaceans have similar ranges for impact pile driving since low-
frequency cetaceans would be relatively more sensitive to the low-
frequency sound which is below high-frequency cetaceans' best range of
hearing. Neither the NMFS user spreadsheet nor NAEMO were required for
calculations. An area density model was developed in MS Excel which
calculated zones of influence (ZOI) to thresholds of interest (e.g.,
behavioral response) based on durations of pile driving and the
aforementioned measured and weighted source level values. The resulting
area was then multiplied by density of each marine mammal species that
could occur within the vicinity. This produced an estimated number of
animals that could be impacted per pile, per day, and overall during
the entire activity for both the impact pile driving and vibratory
removal phases. NMFS reviewed the manner in which the Navy applied the
frequency weighting and calculated all values and concurred with the
approach.
Regarding the appropriateness of accumulating energy for the entire
day, based on the best available science regarding animal reaction to
sound, selecting a reasonable SEL calculation period is necessary to
more accurately reflect the time period an animal would likely be
exposed to the sound. The Navy factored both mitigation effectiveness
and animal avoidance of higher sound levels into the impact pile
driving analysis. For impact pile driving, the mitigation zone extends
beyond the average ranges to PTS for all hearing groups; therefore,
mitigation will help prevent or reduce the potential for exposure to
PTS. The impact pile driving mitigation zone also extends beyond or
into a portion of the average ranges to TTS; therefore, mitigation will
help prevent or reduce the potential for exposure to all TTS or some
higher levels of TTS, depending on the hearing group. Mitigation
effectiveness and animal avoidance of higher sound levels were both
factored into the impact pile driving analysis as most marine mammals
should be able to easily move away from the expanding ensonified zone
of TTS/PTS within 60 seconds, especially considering the soft start
procedure, or avoid the zone altogether if they are outside of the
immediate area upon startup. Marine mammals are likely to leave the
immediate area of pile driving and extraction activities and be less
likely to return as activities persist. However, some ``naive'' animals
may enter the area during the short period of time when pile driving
and extraction equipment is being re-positioned between piles.
Therefore, an animal ``refresh rate'' of 10 percent was selected. This
means that 10 percent of the single pile ZOI was added for each
consecutive pile within a given 24-hour period to generate the daily
ZOI per effect category. These daily ZOIs were then multiplied by the
number of days of pile driving and pile extraction and then summed to
generate a total ZOI per effect category (i.e., behavioral response,
TTS, PTS). The small size of the mitigation zone and its close
proximity to the observation platform will result in a high likelihood
that Lookouts would be able to detect marine mammals throughout the
mitigation zone. NMFS concurs with the Navy's approach, and it was used
in the MMPA analysis.
PTS/TTS Thresholds
Comment 9: In a comment on the 2018 HSTT proposed rule, a Commenter
supported the weighting functions and associated thresholds as
stipulated in Finneran (2016), which are the same as those used for
Navy Phase III activities, but points to additional recent studies that
provide additional behavioral audiograms (e.g., Branstetter et al.,
2017; Kastelein et al., 2017b) and information on TTS (e.g., Kastelein
et al., 2017a, 2017c). However, they commented that the Navy should
provide a discussion of whether those new data corroborate the current
weighting functions and associated thresholds.
Response: The NMFS Revised Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2018)
(Acoustic Technical Guidance), which was used in the assessment of
effects for this rulemaking, compiled, interpreted, and synthesized the
best available scientific information for noise-induced hearing effects
for marine mammals to derive updated thresholds for assessing the
impacts of noise on marine mammal hearing, including the articles that
the Commenter referenced that were published subsequent to the
publication of the first version of 2016 Acoustic Technical Guidance.
The new data included in those articles are consistent with the
thresholds and weighting functions included in the current version of
the Acoustic Technical Guidance (NMFS, 2018).
NMFS will continue to review and evaluate new relevant data as it
becomes available and consider the impacts of those studies on the
Acoustic Technical Guidance to determine what revisions/updates may be
appropriate. Thus far, no new information has been published or
otherwise conveyed that would fundamentally change the assessment of
impacts or conclusions of this rule. Furthermore, the recent peer-
reviewed updated marine mammal noise exposure criteria by Southall et
al. (2019a) provide identical PTS and TTS thresholds to those provided
in NMFS' Acoustic Technical Guidance.
Comment 10: In a comment on the 2018 HSTT proposed rule, Commenters
stated that the criteria that NMFS has produced to estimate temporary
threshold shift (TTS) and permanent threshold shift (PTS) in marine
mammals are erroneous and non-conservative. Commenters cited multiple
purported issues with NMFS' Acoustic Technical Guidance, such as
pseudoreplication and inconsistent treatment of data, broad
extrapolation from a small number of individuals, and disregarding
``non-linear accumulation of uncertainty.'' Commenters suggested that
NMFS not rely exclusively on its auditory guidance for determining
Level A harassment take, but should at a minimum retain the historical
180-dB rms Level A harassment threshold as a ``conservative upper
bound'' or conduct a ``sensitivity analysis'' to ``understand the
potential magnitude'' of the supposed errors.
Response: NMFS disagrees with this characterization of the Acoustic
Technical Guidance and the associated recommendation. The Acoustic
Technical Guidance is a compilation, interpretation, and synthesis of
the scientific literature that provides the best scientific information
regarding the effects of anthropogenic sound on marine mammals'
hearing. The technical guidance was classified as a Highly Influential
Scientific Assessment and, as such, underwent three independent peer
reviews, at three different stages in its development, including a
follow-up to one of the peer reviews, prior to its dissemination by
NMFS. In addition, there were three separate public comment periods,
during which time we received and responded to similar comments on the
guidance (81 FR 51694), which we cross-reference here, and more recent
public and interagency review under Executive Order 13795. This review
process was scientifically rigorous and
[[Page 41799]]
ensured that the Guidance represents the best scientific data
available. Furthermore, the recent peer-reviewed updated marine mammal
noise exposure criteria by Southall et al. (2019a) provide identical
PTS and TTS thresholds to those provided in NMFS' Acoustic Technical
Guidance.
The Acoustic Technical Guidance updates the historical 180 dB rms
injury threshold, which was based on professional judgement (i.e., no
data were available on the effects of noise on marine mammal hearing at
the time this original threshold was derived). NMFS disagrees with any
suggestion that the use of the Acoustic Technical Guidance provides
erroneous results. The 180-dB rms threshold is plainly outdated, as the
best available science indicates that rms SPL is not even an
appropriate metric by which to gauge potential auditory injury.
Multiple studies from humans, terrestrial mammals, and marine
mammals have demonstrated less TTS from intermittent exposures compared
to continuous exposures with the same total energy because hearing is
known to experience some recovery in between noise exposures, which
means that the effects of intermittent noise sources such as tactical
sonars are likely overestimated. Marine mammal TTS data have also shown
that, for two exposures with equal energy, the longer duration exposure
tends to produce a larger amount of TTS. Most marine mammal TTS data
have been obtained using exposure durations of tens of seconds up to an
hour, much longer than the durations of many tactical sources (much
less the continuous time that a marine mammal in the field would be
exposed consecutively to those levels), further suggesting that the use
of these TTS data are likely to overestimate the effects of sonars with
shorter duration signals.
Regarding the suggestion of pseudoreplication and erroneous models,
since marine mammal hearing and noise-induced hearing loss data are
limited, both in the number of species and in the number of individuals
available, attempts to minimize pseudoreplication would further reduce
these already limited data sets. Specifically, with marine mammal
behavioral temporary threshold shift studies, behaviorally derived data
are only available for two mid-frequency cetacean species (bottlenose
dolphin, beluga) and two phocids (in-water) pinniped species (harbor
seal and northern elephant seal), with otariid (in-water) pinnipeds and
high-frequency cetaceans only having behaviorally-derived data from one
species. Arguments from Wright (2015) regarding pseudoreplication
within the TTS data are therefore largely irrelevant in a practical
sense because there are so few data. Multiple data points were not
included for the same individual at a single frequency. If multiple
data existed at one frequency, the lowest TTS onset was always used.
There is only a single frequency where TTS onset data exist for two
individuals of the same species: 3 kHz for dolphins. Their TTS
(unweighted) onset values were 193 and 194 dB re 1 [mu]Pa2s. Thus, NMFS
believes that the current approach makes the best use of the given
data. Appropriate means of reducing pseudoreplication may be considered
in the future, if more data become available. Many other comments from
Wright (2015) and the comments from Racca et al. (2015b) appear to be
erroneously based on the idea that the shapes of the auditory weighting
functions and TTS/PTS exposure thresholds are directly related to the
audiograms; i.e., that changes to the composite audiograms would
directly influence the TTS/PTS exposure functions (e.g., Wright (2015)
describes weighting functions as ``effectively the mirror image of an
audiogram'' (p. 2) and states, ``The underlying goal was to estimate
how much a sound level needs to be above hearing threshold to induce
TTS.'' (p. 3)). Both statements are incorrect and suggest a fundamental
misunderstanding of the criteria/threshold derivation. This would
require a constant (frequency-independent) relationship between hearing
threshold and TTS onset that is not reflected in the actual marine
mammal TTS data. Attempts to create a ``cautionary'' outcome by
artificially lowering the composite audiogram thresholds would not
necessarily result in lower TTS/PTS exposure levels, since the exposure
functions are to a large extent based on applying mathematical
functions to fit the existing TTS data.
Behavioral Harassment Thresholds
Comment 11: In a comment on the 2018 HSTT proposed rule, Commenters
commented on what they assert is NMFS' failure to set proper thresholds
for behavioral impacts. Referencing the biphasic function that assumes
an unmediated dose response relationship at higher received levels and
a context-influenced response at lower received levels that NMFS uses
to quantify behavioral harassment from sonar, Commenters commented that
resulting functions depend on some inappropriate assumptions that tend
to significantly underestimate effects. Commenters expressed concern
that every data point that informs the agency's pinniped function, and
nearly two-thirds of the data points informing the odontocete function
(30/49), are derived from a captive animal study. Additionally,
Commenters asserted that the risk functions do not incorporate (nor
does NMFS apparently consider) a number of relevant studies on wild
marine mammals. The Commenters stated that it is not clear from the
proposed rule, or from the Navy's recent technical report on acoustic
``criteria and thresholds,'' on which NMFS' approach in the rule is
based, exactly how each of the studies that NMFS employed was applied
in the analysis, or how the functions were fitted to the data, but the
available evidence on behavioral response raises concerns that the
functions are not conservative for some species. Commenters recommended
NMFS make additional technical information available, including from
any expert elicitation and peer review, so that the public can fully
comment.
Response: The ``Criteria and Thresholds for U.S. Navy Acoustic and
Explosive Impacts to Marine Mammals and Sea Turtles Technical Report''
(U.S. Department of the Navy, 2017a) details how the Navy's proposed
method, which was determined appropriate and adopted by NMFS, accounted
for the differences in captive and wild animals in the development of
the behavioral response functions. The Navy used the best available
science, which has been reviewed by external scientists and approved by
NMFS, in the analysis. The Navy and NMFS have utilized all available
data that relate known or estimable received levels to observations of
individual or group behavior as a result of sonar exposure (which is
needed to inform the behavioral response function) for the development
of updated thresholds. Limiting the data to the small number of field
studies that include these necessary data would not provide enough data
with which to develop the new risk functions. In addition, NMFS agrees
with the assumptions made by the Navy, including the fact that captive
animals may be less sensitive, in that the scale at which a moderate to
severe response was considered to have occurred is different for
captive animals than for wild animals, as the agency understands those
responses will be different.
The new risk functions were developed in 2016, before several
recent papers were published or the data were available. As new science
is published, NMFS and the Navy continue to evaluate the information.
The
[[Page 41800]]
thresholds have been rigorously vetted among scientists and within the
Navy community and then reviewed by the public before being applied--
all applicable technical information considered has been shared with
the public. It is not possible to revise and update the criteria and
risk functions every time a new paper is published. These new papers
provide additional information, and the Navy has considered them for
updates to the thresholds in the future, when the next round of updated
criteria will be developed. Thus far, no new information has been
published or otherwise conveyed that would fundamentally change the
assessment of impacts or conclusions of the HSTT FEIS/OEIS or this
rule. To be included in the behavioral response function, data sets
need to relate known or estimable received levels to observations of
individual or group behavior. Melcon et al. (2012) does not relate
observations of individual/group behavior to known or estimable
received levels (at that individual/group). In Melcon et al. (2012),
received levels at the HARP buoy averaged over many hours are related
to probabilities of D-calls, but the received level at the blue whale
individuals/group are unknown.
As noted, the derivation of the behavioral response functions is
provided in the 2017 technical report titled ``Criteria and Thresholds
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)''.
The appendices to this report detail the specific data points used to
generate the behavioral response functions. Data points come from
published data that is readily available and cited within the technical
report.
Comment 12: In a comment on the 2018 HSTT proposed rule, Commenters
stated concerns with the use of distance ``cut-offs'' in the behavioral
harassment thresholds, and one commenter recommended that NMFS refrain
from using cut-off distances in conjunction with the Bayesian BRFs and
re-estimate the numbers of marine mammal takes based solely on the
Bayesian BRFs.
Response: The consideration of proximity (cut-off distances) was
part of the criteria developed in consultation between the Navy and
NMFS, is appropriate based on the best available science which shows
that marine mammal responses to sound vary based on both sound level
and distance, and was applied within the Navy's acoustic effects model.
The derivation of the behavioral response functions and associated cut-
off distances is provided in the 2017 technical report titled
``Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects
Analysis (Phase III)''. To account for non-applicable contextual
factors, all available data on marine mammal reactions to actual Navy
activities and other sound sources (or other large scale activities
such as seismic surveys when information on proximity to sonar sources
is not available for a given species group) were reviewed to find the
farthest distance to which significant behavioral reactions were
observed. These distances were rounded up to the nearest 5 or 10 km
interval, and for moderate to large scale activities using multiple or
louder sonar sources, these distances were greatly increased--doubled
in most cases. The Navy's BRFs applied within these distances provide
technically sound methods reflective of the best available science to
estimate the impact and potential take under military readiness for the
actions analyzed within the 2018 HSTT FEIS/OEIS and included in these
regulations. NMFS has independently assessed the Navy's behavioral
harassment thresholds and believes that they appropriately apply the
best available science and it is not necessary to recalculate take
estimates.
The Commenter also specifically expressed concern that distance
``cut-offs'' alleviate some of the exposures that would otherwise have
been counted if the received level alone were considered. It is unclear
why the Commenter finds this inherently inappropriate, as this is what
the data show. As noted previously, there are multiple studies
illustrating that in situations where one would expect a behavioral
harassment because of the received levels at which previous responses
were observed, it has not occurred when the distance from the source
was larger than the distance of the first observed response.
Comment 13: In a comment on the 2018 HSTT proposed rule regarding
cut-off distances, Commenters noted that dipping sonar appears to be a
significant predictor of deep-dive rates in beaked whales on Southern
California Anti-submarine Warfare Range (SOAR), with the dive rate
falling significantly (e.g., to 35 percent of that individual's control
rate) during sonar exposure, and likewise appears associated with
habitat abandonment. Importantly, these effects were observed at
substantially greater distances (e.g., 30 or more km) from dipping
sonar than would otherwise be expected given the systems' source levels
and the beaked whale response thresholds developed from research on
hull-mounted sonar. Commenters suggested that the analysis, and
associated cut-off distances, do not properly consider the impacts of
dipping sonar.
Response: The Navy relied upon the best science that was available
to develop the behavioral response functions in consultation with NMFS.
The Navy's current beaked whale BRF acknowledges and incorporates the
increased sensitivity observed in beaked whales during both behavioral
response studies and during actual Navy training events, as well as the
fact that dipping sonar can have greater effects than some other
sources with the same source level. Specifically, the distance cut-off
for beaked whales is 50 km, larger than any other group. Moreover,
although dipping sonar has a significantly lower source level than
hull-mounted sonar, it is included in the category of sources with
larger distance cut-offs, specifically in acknowledgement of its
unpredictability and association with observed effects. This means that
``takes'' are reflected at lower received levels that would have been
excluded because of the distance for other source types.
The referenced article (Falcone et al., 2017) was not available at
the time the BRFs were developed. However, NMFS and the Navy have
reviewed the article and concur that neither this article nor any other
new information that has been published or otherwise conveyed since the
2018 HSTT proposed rule was published would change the assessment of
impacts or conclusions in the 2018 HSTT FEIS/OEIS or in this
rulemaking. Nonetheless, the new information and data presented in the
new article were thoroughly reviewed by the Navy and will be
quantitatively incorporated into future behavioral response functions,
as appropriate, when and if other new data that would meaningfully
change the functions would necessitate their revision.
Furthermore, ongoing Navy funded beaked whale monitoring at the
same site where the dipping sonar tests were conducted has not
documented habitat abandonment by beaked whales. Passive acoustic
detections of beaked whales have not significantly changed over ten
years of monitoring (DiMarzio et al., 2018, updated in 2020). From
visual surveys in the area since 2006 there have been repeated
sightings of: The same individual beaked whales, beaked whale mother-
calf pairs, and beaked whale mother-calf pairs with mothers on their
second calf (Schorr et al., 2018, 2020). Satellite tracking studies of
beaked whale documented high site fidelity to this area (Schorr et al.,
2018, updated in 2020).
Comment 14: In a comment on the 2018 HSTT proposed rule regarding
the behavioral thresholds for explosives, Commenters recommended that
NMFS
[[Page 41801]]
estimate and ultimately authorize behavioral takes of marine mammals
during all explosive activities, including those that involve single
detonations.
Response: The derivation of the explosive injury criteria is
provided in the 2017 technical report titled ``Criteria and Thresholds
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III),''
and NMFS has applied the general rule a commenter referenced to single
explosives for years, i.e., that marine mammals are unlikely to respond
to a single instantaneous detonation at received levels below the TTS
threshold in a manner that would rise to the level of a take. Neither
NMFS nor the Navy are aware of evidence to support the assertion that
animals will have significant behavioral reactions (i.e., those that
would rise to the level of a take) to temporally and spatially isolated
explosions below the TTS threshold.
Marine mammals may be exposed to isolated impulses in their natural
environment (e.g., lightning). There is no evidence to support that
animals have significant behavioral responses to temporally and
spatially isolated impulses (such as military explosions) that may rise
to the level of ``harassment'' under the MMPA for military readiness
activities. Still, the analysis conservatively assumes that any modeled
instance of temporally or spatially separated detonations occurring in
a single 24-hour period would result in harassment under the MMPA for
military readiness activities. The Navy has been monitoring detonations
since the 1990s and has not observed these types of reactions. To be
clear, this monitoring has occurred under the monitoring plans
developed specifically for shock trials, the detonations with the
largest net explosive weight conducted by the Navy, and no shock trials
are proposed in this Study Area.
Further, to clarify, the current take estimate framework does not
preclude the consideration of animals being behaviorally disturbed
during single explosions as they are counted as ``taken by Level B
harassment'' if they are exposed above the TTS threshold, which is only
5 dB higher than the behavioral harassment threshold. We acknowledge in
our analysis that individuals exposed above the TTS threshold may also
be behaviorally harassed and those potential impacts are considered in
the negligible impact determination.
All of the Navy's monitoring projects, reports, and publications
are available on the marine species monitoring web page (https://www.navymarinespeciesmonitoring. us/). NMFS will continue to review
applicable monitoring and science data and consider modifying these
criteria when and if new information suggests it is appropriate.
Mortality and injury thresholds for explosions
Comment 15: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that NMFS require the Navy to (1) explain why the
constants and exponents for onset mortality and onset slight lung
injury thresholds for Phase III have been amended, (2) ensure that the
modified equations are correct, and (3) specify any additional
assumptions that were made.
Response: The derivation of the explosive injury equations,
including any assumptions, is provided in the 2017 technical report
titled ``Criteria and Thresholds for U.S. Navy Acoustic and Explosive
Effects Analysis (Phase III)''. It is our understanding that the
constants and exponents for onset mortality and onset slight lung
injury were amended by the Navy since Phase II to better account for
the best available science. Specifically, the equations were modified
in Phase III to fully incorporate the injury model in Goertner (1982),
specifically to include lung compression with depth. NMFS independently
reviewed and concurred with this approach.
Comment 16: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that the Navy only used the onset mortality and onset
slight lung injury criteria to determine the range to effects, while it
used the 50 percent mortality and 50 percent slight lung injury
criteria to estimate the numbers of marine mammal takes. The Commenter
believes that this approach is inconsistent with the manner in which
the Navy estimated the numbers of takes for PTS, TTS, and behavioral
disruption for explosive activities. All of those takes have been and
continue to be based on onset, not 50-percent values. The Commenter
commented on circumstances of the deaths of multiple common dolphins
during one of the Navy's underwater detonation events in March 2011
(Danil and St. Leger, 2011) and indicated that the Navy's mitigation
measures are not fully effective, especially for explosive activities.
The Commenter believes it would be more prudent for the Navy to
estimate injuries and mortalities based on onset rather than a 50-
percent incidence of occurrence. The Navy did indicate that it is
reasonable to assume for its impact analysis--thus its take estimation
process--that extensive lung hemorrhage is a level of injury that would
result in mortality for a wild animal (Department of the Navy 2017a).
Thus, the Commenter asserted that it is unclear why the Navy did not
follow through with that premise. The Commenter recommended that NMFS
use onset mortality, onset slight lung injury, and onset GI tract
injury thresholds to estimate both the numbers of marine mammal takes
and the respective ranges to effect.
Response: Based on an extensive review of the incident referred to
by the Commenter, in coordination with NMFS the Navy revised and
updated the mitigation for these types of events. There have been no
further incidents since these mitigation changes were instituted in
2011. The Navy used the range to one percent risk of mortality and
injury (referred to as ``onset'' in the Draft EIS/OEIS) to inform the
development of mitigation zones for explosives. In all cases, the
mitigation zones for explosives extend beyond the range to one percent
risk of non-auditory injury, even for a small animal (representative
mass = 5 kg). The 2018 HSTT FEIS/OEIS clarified that the ``onset'' non-
auditory injury and mortality criteria are actually one percent risk
criteria.
Over-predicting impacts, which would occur with the use of one
percent non-auditory injury risk criteria in the quantitative analysis,
would not afford extra protection to any animal. The Navy, in
coordination with NMFS, has determined that the 50 percent incidence of
occurrence is a reasonable representation of a potential effect and
appropriate for take estimation. Although the commenter implies that
the Navy did not use extensive lung hemorrhage as indicative of
mortality, that statement is incorrect. Extensive lung hemorrhage is
assumed to result in mortality, and the explosive mortality criteria
are based on extensive lung injury data. See the 2017 technical report
titled ``Criteria and Thresholds for U.S. Navy Acoustic and Explosive
Effects Analysis (Phase III).''
Range to Effects
Comment 17: In a comment on the 2018 HSTT proposed rule, a
Commenter noted that regarding TTS, the ranges to effect provided in
Table 25 of the Federal Register notice of the 2018 HSTT proposed rule
and Table 6-4 of the 2017 Navy application appear to be incorrect. The
ranges for LF cetaceans should increase with increasing sonar emission
time. Therefore, the Commenter recommended that NMFS determine what the
appropriate ranges to TTS for bin LF5 should be and amend
[[Page 41802]]
the ranges for the various functional hearing groups in the tables
accordingly.
Response: The table regarding the Range to Temporary Threshold
Shift for sonar bin LF5 over a representative range of environments
within the HSTT Study Area (Table 25 in the Proposed and Final Rules)
is correct. The reason the values in the tables in the rules and the
2018 HSTT FEIS/OEIS do not change over the indicated interval (1 sec,
30 sec, 60 sec, 120 sec) is that the LF5 pulse interval is longer than
these values, hence the same range to TTS in the table. The values are
consistent across the board because the max source level of LF5 (<180
dB SPL) is so close to the LF cetacean TTS threshold 179 dB SEL. At
such small range to effects, the resolution of NAEMO comes into play,
and such small changes in range to effects cannot be discerned between
the example durations.
Mitigation and Avoidance Calculations
Comment 18: In a comment on the 2018 HSTT proposed rule, Commenters
cited concerns that there was not enough information by which to
evaluate the Navy's post-modeling calculations to account for
mitigation and avoidance and imply that Level A takes and mortality
takes may be underestimated. One Commenter recommended that NMFS (1)
authorize the total numbers of model-estimated Level A harassment (PTS)
and mortality takes rather than reduce the estimated numbers of takes
based on the Navy's post-model analyses and (2) use those numbers, in
addition to the revised Level B harassment takes, to inform its
negligible impact determination analyses.
Response: The consideration of marine mammal avoidance and
mitigation effectiveness is integral to the Navy's overall analysis of
impacts from sonar and explosive sources. NMFS has independently
evaluated the method and agrees that it is appropriately applied to
augment the model in the prediction and authorization of injury and
mortality as described in the rule. Details of this analysis are
provided in the Navy's 2018 technical report titled ``Quantifying
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and
Analytical Approach for Phase III Training and Testing''; additional
information on the mitigation analysis also was included in the 2018
HSTT final rule.
Sound levels diminish quickly below levels that could cause PTS.
Studies have shown that all animals observed avoid areas well beyond
these zones; therefore, the vast majority of animals are likely to
avoid sound levels that could cause injury to their ear. As discussed
in the Navy's 2018 technical report titled ``Quantifying Acoustic
Impacts on Marine Mammals and Sea Turtles: Methods and Analytical
Approach for Phase III Training and Testing,'' animats in the Navy's
acoustic effects model do not move horizontally or ``react'' to sound
in any way. However, the current best available science based on a
growing body of behavioral response research shows that animals do in
fact avoid the immediate area around sound sources to a distance of a
few hundred meters or more depending upon the species (see Appendix B
of the ``Criteria and Thresholds for U.S. Navy Acoustic and Explosive
Impacts to Marine Mammals and Sea Turtles Technical Report'' (U.S.
Department of the Navy, 2017a)) and Southall et al. (2019a). Avoidance
to this distance greatly reduces the likelihood of impacts to hearing
such as TTS and PTS. Accordingly, NMFS and the Navy's analysis
appropriately applies a quantitative adjustment to the exposure results
calculated by the model (which does not consider avoidance or
mitigation).
Specifically, behavioral response literature, including the recent
3S and SOCAL BRS studies, indicate that the multiple species from
different cetacean suborders do in fact avoid approaching sound sources
by a few hundred meters or more, which would reduce received sound
levels for individual marine mammals to levels below those that could
cause PTS. The ranges to PTS for most marine mammal groups are within a
few tens of meters and the ranges for the most sensitive group, the HF
cetaceans, average about 200 m, to a maximum of 270 m in limited cases.
For blue whales and other LF cetaceans, the range to PTS is 65 m for
MF1 30 sec duration exposure, which is well within the mitigation zones
for hull-mounted MFAS.
As discussed in the Navy's 2018 technical report titled
``Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles:
Methods and Analytical Approach for Phase III Training and Testing''
and the 2018 HSTT final rule, the Navy's acoustic effects model does
not consider procedural mitigations (i.e., power-down or shut-down of
sonars, or pausing explosive activities when animals are detected in
specific zones adjacent to the source), which necessitates
consideration of these factors in the Navy's overall acoustic analysis.
Credit taken for mitigation effectiveness is extremely conservative.
For example, if Lookouts can see the whole area, they get credit for it
in the calculation; if they can see more than half the area, they get
half credit; if they can see less than half the area, they get no
credit. Not considering animal avoidance and mitigation effectiveness
would lead to a great overestimate of injurious impacts. NMFS concurs
with the analytical approach used, i.e., we believe the estimated Level
A take numbers represent the maximum number of these takes that are
likely to occur and it would not be appropriate to authorize a higher
number or consider a higher number in the negligible impact analysis.
Lastly, the Navy's 2018 technical report titled ``Quantifying Acoustic
Impacts on Marine Mammals and Sea Turtles: Methods and Analytical
Approach for Phase III Training and Testing'' very clearly explains in
detail how species sightability, the Lookout's ability to observe the
range to PTS (for sonar and other transducers) and mortality (for
explosives), the portion of time when mitigation could potentially be
conducted during periods of reduced daytime visibility (to include
inclement weather and high sea state) and the portion of time when
mitigation could potentially be conducted at night, and the ability for
sound sources to be positively controlled (powered down) are considered
in the post-modeling calculation to account for mitigation and
avoidance. It is not necessary to view the many tables of numbers
generated in the assessment to evaluate the method.
Comment 19: In a comment on the 2019 HSTT proposed rule, Commenters
noted that the Navy and NMFS failed to consider the maximum amount of
take that is likely to occur because the Navy's computer modeled take
is reduced based on unsubstantiated assumptions concerning the
effectiveness of the Navy's procedural mitigation measures (primarily
Lookouts with some passive acoustic monitoring) and the rates at which
mammals avoid permanent threshold shift (PTS) exposure levels.
Therefore, they assert that the PTS and injury (Level A) take estimates
are low, and the negligible impact analysis is invalid because the
numbers considered by NMFS are arbitrary. They provide the following
example to illustrate their point: 2013 model-estimated PTS for blue
whales was 116 individual instances of take (see Navy Marine Mammal
Program, Space and Naval Warfare Systems Center Pacific, Post-Model
Quantitative Analysis of Animal Avoidance Behavior and Mitigation
Effectiveness for Hawaii-Southern California Training and Testing, 39
[[Page 41803]]
(Table 5-1) (August 27, 2013)). After implementation of mitigation, the
estimated instances of PTS were reduced to 9 instances, and after
assumed rates of animal avoidance were added, the estimated instances
of take were reduced to 0. The Commenters asserted that in other words,
the Navy assumed that it would be able to reduce 92 percent of modeled
PTS for blue whales based on the effectiveness of its Lookouts and that
PTS take estimates for other cetaceans are reduced at similar rates.
The Commenters noted that there is no apparent rational basis for the
extremely high rates of effectiveness (over 90 percent) the Navy claims
for its procedural mitigation. They asserted that it is difficult to
assess these claims, as neither the Navy nor NMFS has disclosed the
actual numbers used to assess mitigation effectiveness for cetaceans
along the four factors (species sightability, observation area,
visibility, positive control). The Commenters requested that NMFS
disclose those numbers and justify its reliance on them. The Commenters
also incorporated the critiques raised by the Marine Mammal Commission
in its 2017 comment letter concerning: (i) The comparative
ineffectiveness of marine observers compared to line-transect
observers; and (ii) the assumed 95 percent animal avoidance rate for
PTS. In particular, they assert that references cited by NMFS and the
Navy do not support the conclusion that cetaceans (other than beaked
whales) regularly avoid sonar sources so as to mitigate PTS.
Response: As noted in response to a similar comment on the 2018
HSTT proposed rule (see Comment 18 above), the consideration of marine
mammal avoidance and mitigation effectiveness is integral to the Navy's
overall analysis of impacts from sonar and explosive sources. NMFS has
independently evaluated the method and agrees that it is appropriately
applied to augment the model in the prediction and authorization of
injury and mortality as described in the rule. The example presented by
the Commenters is based on the analysis conducted during the 2013-2018
rulemaking (Phase II), rather than the current Phase III analysis used
for this rule, so it is not applicable to this final rule. See the
response to Comment 20 below for more information on how avoidance and
mitigation effectiveness are evaluated.
Comment 20: In a comment on the 2018 HSTT proposed rule, a
Commenter stated in regard to the method in which the Navy's post-model
calculation considers avoidance specifically (i.e., assuming animals
present beyond the range of PTS for the first few pings will be able to
avoid it and incur only TTS, which results in a 95 percent reduction in
the number of estimated PTS takes predicted by the model), given that
sound sources are moving, it may not be until later in an exercise that
the animal is close enough to experience PTS, and it is those few close
pings that contribute to the potential to experience PTS. An animal
being beyond the PTS zone initially has no bearing on whether it will
come within close range later during an exercise since both sources and
animals are moving. In addition, Navy vessels may move faster than the
ability of the animals to evacuate the area. The Navy should have been
able to query the dosimeters of the animats to verify whether its 5-
percent assumption was valid. The Commenter expressed concerned that
this method underestimates the number of PTS takes.
Response: The consideration of marine mammals avoiding the area
immediately around the sound source is provided in the Navy's 2018
technical report titled ``Quantitative Analysis for Estimating Acoustic
and Explosive Impacts to Marine Mammals and Sea Turtles.'' As the
Commenter correctly articulates: ``For avoidance, the Navy assumed that
animals present beyond the range to onset PTS for the first three to
four pings are assumed to avoid any additional exposures at levels that
could cause PTS. That equated to approximately 5 percent of the total
pings or 5 percent of the overall time active; therefore, 95 percent of
marine mammals predicted to experience PTS due to sonar and other
transducers were instead assumed to experience TTS.'' In regard to the
comment about vessels moving faster than animals' ability to get out of
the way, as discussed in the Navy's 2018 technical report titled
``Quantitative Analysis for Estimating Acoustic and Explosive Impacts
to Marine Mammals and Sea Turtles,'' animats in the Navy's acoustic
effects model do not move horizontally or ``react'' to sound in any
way, necessitating the additional step of considering animal avoidance
of close-in PTS zones. NMFS independently reviewed this approach and
concurs that it is supported by the best available science. Based on a
growing body of behavioral response research, animals do in fact avoid
the immediate area around sound sources to a distance of a few hundred
meters or more depending upon the species. Avoidance to this distance
greatly reduces the likelihood of impacts to hearing such as TTS and
PTS, respectively. Specifically, the ranges to PTS for most marine
mammal groups are within a few tens of meters and the ranges for the
most sensitive group, the HF cetaceans, average about 200 m, to a
maximum of 270 m in limited cases. Querying the dosimeters of the
animats would not produce useful information since, as discussed
previously, the animats do not move in the horizontal and are not
programmed to ``react'' to sound or any other stimulus. The Commenter
referenced comments that they have previously submitted on the Navy's
Gulf of Alaska incidental take regulations and we refer the Commenter
to NMFS' responses, which were included in the Federal Register
document announcing the issuance of the final regulations (82 FR 19572,
April 27, 2017).
Underestimated Beaked Whale Injury and Mortality
Comment 21: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that the Navy and NMFS both underestimate take for
Cuvier's beaked whales because they are extremely sensitive to sonar. A
new study of Cuvier's beaked whales in Southern California exposed to
mid and high-power sonar confirmed that they modify their diving
behavior up to 100-km away (Falcone et al., 2017). The Commenter
asserted that this science disproves NMFS' assumption that beaked
whales will find suitable habitat nearby within their small range. This
modified diving behavior, which was particularly strong when exposed to
mid-power sonar, indicates disruption of feeding. Accordingly, impacts
on Cuvier's beaked whales could include interference with essential
behaviors that will have more than a negligible impact on this species.
In addition, Lookouts and shutdowns do not protect Cuvier's beaked
whales from Navy sonar because this is a deep-diving species that is
difficult to see from ships.
Response: Takes of Cuvier's beaked whales are not underestimated.
The behavioral harassment threshold for beaked whales has two
components, both of which consider the sensitivity of beaked whales.
First, the biphasic behavioral harassment function for beaked whales,
which is based on data on beaked whale responses, has a significantly
lower mid-point than other groups and also reflects a significantly
higher probability of ``take'' at lower levels (e.g., close to 15
percent at 120 dB). Additionally, the distance cut-off used for beaked
whales is farther than for any other group (50 km, for both the MF1 and
MF4 bins, acknowledging the fact that the unpredictability of dipping
sonar likely results in takes at greater
[[Page 41804]]
distances than other more predictable sources of similar levels).
Regarding the referenced article, the Commenter has cited only part of
it. The study, which compiles information from multiple studies, found
that shallow dives were predicted to increase in duration as the
distance to both high-and mid-power MFAS sources decreased, beginning
at approximately 100 km away and, specifically, the differences only
varied from approximately 20 minutes without MFAS to about 24 minutes
with MFAS at the closest distance (i.e., the dive time varied from 20
to 24 minutes over the distance of 100 km away to the closest distance
measured). Further, the same article predicted that deep dive duration
(which is more directly associated with feeding and linked to potential
energetic effects) was predicted to increase with proximity to mid-
power MFAS from approximately 60 minutes to approximately 90 minutes
beginning at around 40 km (10 dives). There were four deep dives
exposed to high-power MFAS within 20 km, the distance at which deep
dive durations increased with the lower power source types. Other
responses to MFAS included deep dives that were shorter than typical
and shallower, and instances where there were no observed responses at
closer distances. The threshold for Level B harassment is higher than
just ``any measurable response'' and NMFS and the Navy worked closely
together to identify behavioral response functions and distance cut-
offs that reflect the best available science to identify when marine
mammal behavioral patterns will be disrupted to a point where they are
abandoned or significantly altered. Further, the take estimate is in no
way based on an assumption that beaked whales will always be sighted by
Lookouts--and adjustment to account for Lookout effectiveness considers
the variable detectability of different species. In this rule, both the
take estimate and the negligible impact analysis appropriately consider
the sensitivity of, and scale of impacts to (we address impacts to
feeding and energetics), Cuvier's (and all) beaked whales. Finally, new
passive acoustic monitoring in the HSTT Study Area documents more
extensive beaked whale distribution across the entire Study Area,
wherever sensors are deployed (Griffiths and Barlow 2016, Rice et al.
2020).
Comment 22: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that NMFS underestimated serious injury and mortality
for beaked whales. They noted the statement in the proposed rule that
because a causal relationship between Navy MFAS use and beaked whale
strandings has not been established in all instances, and that, in some
cases, sonar was considered to be only one of several factors that, in
aggregate, may have contributed to the stranding event, NMFS does ``not
expect strandings, serious injury, or mortality of beaked whales to
occur as a result of training activities.'' (83 FR 30007). The
Commenter asserted that this opinion is inconsistent with best
available science and does not take into account the fact that the
leading explanation for the mechanism of sonar-related injuries--that
whales suffer from bubble growth in organs that is similar to
decompression sickness, or ``the bends'' in human divers--has now been
supported by numerous papers. At the same time, the Commenter argued
that NMFS fails to seriously acknowledge that sonar can seriously
injure or kill marine mammals at distances well beyond those
established for permanent hearing loss (83 FR 29916) and dismisses the
risk of stranding and other mortality events (83 FR 30007) based on the
argument that such effects can transpire only under the same set of
circumstances that occurred during known sonar-related events--an
assumption that is arbitrary and capricious. In conclusion, the
Commenter argued that none of NMFS' assumptions regarding the expected
lack of serious injury and mortality for beaked whales are supported by
the record, and all lead to an underestimation of impacts.
Response: The Commenter's characterization of NMFS' analysis is
incorrect. NMFS does not disregard the fact that it is possible for
naval activities using hull-mounted tactical sonar to contribute to the
death of marine mammals in certain circumstances via strandings
resulting from behaviorally mediated physiological impacts or other
gas-related injuries. NMFS discussed these potential causes and
outlined the few cases where active naval sonar (in the United States
or, largely, elsewhere) had either potentially contributed to or (as
with the Bahamas example) been more definitively causally linked with
marine mammal strandings in the proposed rule. As noted, there are a
suite of factors that have been associated with these specific cases of
strandings directly associated with sonar (steep bathymetry, multiple
hull-mounted platforms using sonar simultaneously, constricted
channels, strong surface ducts, etc.) that are not present together in
the HSTT Study Area and during the specified activities (and which the
Navy takes care across the world not to operate under without
additional monitoring). There have been no documented beaked whale
mortalities from Navy activities within the HSTT Study Area. Further,
none of the beaked whale strandings causally associated with Navy sonar
stranding are in the Pacific. For these reasons, NMFS does not
anticipate that the Navy's HSTT training or testing activities will
result in beaked whale marine mammal strandings, and none are
authorized. Furthermore, ongoing Navy funded beaked whale monitoring at
a heavily used training and testing area in SOCAL has not documented
mortality or habitat abandonment by beaked whales. Passive acoustic
detections of beaked whales have not significantly changed over ten
years of monitoring (DiMarzio et al., 2018, 2019, 2020). From visual
surveys in the area since 2006 there have been repeated sightings of:
The same individual beaked whales, beaked whale mother-calf pairs, and
beaked whale mother-calf pairs with mothers on their second calf
(Schorr et al., 2018, 2020). Satellite tracking studies of beaked whale
documented high site fidelity to this area even though the study area
is located in one of the most used Navy areas in the Pacific (Schorr et
al., 2018, 2020).
Comment 23: In a comment on the 2019 HSTT proposed rule, Commenters
noted that NMFS did not propose to authorize beaked whale mortalities
subsequent to MFA sonar use for any of the Navy's Phase III activities
and states that that approach is inconsistent with the tack taken for
both TAP I and Phase II activities. The Commenters noted that for the
2013-2018 final rule for HSTT, NMFS authorized up to 10 beaked whale
mortality takes during the five-year period of the final rule (78 FR
78153; December 24, 2013). They noted that NMFS justified authorizing
those mortalities by stating that, although NMFS does not expect injury
or mortality of any beaked whales to occur as a result of active sonar
training exercises, there remains the potential for the operation of
mid-frequency active sonar to contribute to the mortality of beaked
whales (78 FR 78149; December 24, 2013). The Commenters stated that
this justification is still applicable. The Commenters state that
previously unrecognized sensitivities have been elucidated since the
previous final rule was authorized (December 24, 2013), noting that
Falcone et al., (2017) indicated that responses of Cuvier's beaked
whales to mid-frequency active sonar within and near the Navy's
Southern California Anti-submarine
[[Page 41805]]
Warfare Range (SOAR) were more pronounced during mid-power (i.e.,
helicopter-dipping sonar, MF4) than high-power (i.e., hull-mounted
sonar, MF1) sonar use. The Commenters state that this indicates lower
received levels from a less predictable source caused more marked
responses than higher received levels from a predictable source
traveling along a seemingly consistent course. The Commenters noted
that since multiple species of beaked whales are regularly observed on
the Navy's ranges in both Hawaii and Southern California, including its
instrumented ranges, those species have been a priority for the Navy's
monitoring program and that this indicates that research involving
beaked whales continues to be a priority for the Navy and some of the
whales' sensitivities to anthropogenic sound are just being discovered.
The Commenters assert that until such time that NMFS can better
substantiate its conclusion that the Navy's activities do not have the
potential to kill beaked whales, taking by mortality should be included
in all related rulemakings.
The Commenters asserted that NMFS indicated that steep bathymetry,
multiple hull-mounted platforms using sonar simultaneously, constricted
channels, and strong surface ducts are not all present together in the
HSTT Study Area during the specified activities (83 FR 66882; December
27, 2018), and that NMFS specified that it did not authorize beaked
whale mortalities in the 2018 HSTT final rule based on the lack of
those factors and the lack of any strandings associated with Navy sonar
use in the HSTT Study Area (83 FR 66882; December 27, 2018). The
Commenters stated that this does not comport with NMFS' acknowledgement
in the 2018 HSTT proposed rule that all five of those factors are not
necessary for a stranding to occur (83 FR 29930; June 26, 2018). They
go on to state that ``NMFS cannot ignore that there remains the
potential for the operation of MFA sonar to contribute to the mortality
of beaked whales.'' Given that the potential for beaked whale
mortalities cannot be obviated, the Commenters recommend that NMFS
authorize at least 10 mortality takes of beaked whales subsequent to
MFA sonar use, consistent with the HSTT Phase II final rule.
Response: NMFS does not disregard the fact that it is possible for
naval activities using hull-mounted tactical sonar to contribute to the
death of marine mammals in certain circumstances via strandings
resulting from behaviorally mediated physiological impacts or other
gas-related injuries. However, the Commenters are incorrect that NMFS
must either obviate the potential for mortality or authorize it. If the
best available science indicates that a take is reasonably likely to
occur, then NMFS should analyze it, and will authorize it if the
necessary findings can be made. Sometimes, especially where there is
greater uncertainty, NMFS will analyze and authorize (where
appropriate) impacts with a smaller likelihood of occurring to be
precautionary and/or where an applicant specifically requests the legal
coverage. However, the MMPA does not require NMFS to authorize impacts
that are unlikely to occur. For example, any marine vessel has the
potential of striking and killing a marine mammal--however, the
probability is so low for any particular vessel that authorization for
ship strike is neither requested nor authorized by NMFS except in cases
where the aggregated impacts of large fleets of vessels are under
consideration and the probability of a strike is high enough to
meaningfully consider and to expect it could occur within the period of
the authorization. In this case, the likelihood of a stranding
resulting from the Navy's activity is so low as to be discountable. In
an excess of caution, NMFS included authorization for beaked whale
mortality by stranding in the 2013-2018 HSTT rule. However, there is no
evidence that any such strandings subsequently actually occurred as a
result of the Navy's activities. Each rulemaking involves review of the
best available science independent of take that was authorized during
previous periods based on the science available at that time. Upon
consideration in this rulemaking of the statutory standards and the
best available science, including full consideration of Falcone et al.,
(2017), we have determined that mortality of beaked whales is unlikely
to occur and it is therefore not appropriate to authorize beaked whale
mortality.
As described in Comment 22, NMFS included a full discussion in the
2018 HSTT proposed rule of these potential causes of mortality and
specifically discussed the few cases where active naval sonar (in the
U.S. or, largely, elsewhere) has either potentially contributed to or
(as with the Bahamas example) been more definitively causally linked
with marine mammal strandings. As noted, there are a suite of factors
that have been associated with these specific cases of strandings
directly associated with sonar (steep bathymetry, multiple hull-mounted
platforms using sonar simultaneously, constricted channels, and strong
surface ducts). The Commenters are incorrect, however, in implying that
NMFS found that all these features must be present together--rather, we
have suggested that all else being equal, the fewer of these factors
that are present, the less likely they are, in combination, to lead to
a stranding. Further, in addition to the mitigation and monitoring
measures in place (visual monitoring, passive acoustic monitoring when
practicable, mitigation areas including the Hawaii Island Mitigation
Area, etc.; see the 2018 HSTT final rule Mitigation Measures and
Monitoring sections for a full description of these measures) the Navy
minimizes active sonar military readiness activities when these
features are present to the maximum extent practicable to meet specific
training or testing requirements. Additionally, as noted above, there
have never been any strandings associated with Navy sonar use in the
HSTT Study Area, including in the six years of Navy activities since
the 2013 authorizations referenced by the Commenters were issued.
The Navy acknowledges that it has funded research on the impacts of
their activities on beaked whales in the HSTT Study Area since 2008 and
plans to continue to do so during the seven years covered by this rule
(DiMarzio et al., 2019, 2020; Falcone et al., 2012, 2017; Rice et al.,
2019, 2020; Schorr et al., 2014, 2019, 2020). NMFS also acknowledges
the Commenters' statements that beaked whales have been documented
through Navy-funded studies responding to active sonar sources.
However, these are behavioral responses with animals eventually
returning after the sources have departed (DiMarzio et al. 2019, 2020;
Schorr et al. 2019, 2020). Further, controlled exposure experiments
have not documented any beaked whale mortalities (Falcone et al.,
2017). Additionally, while beaked whales have shown avoidance responses
to active sonar sources, to date, no population impacts have been
detected on two of the most heavily used anti-submarine warfare
training areas in the HSTT Study Area. This includes no significant
change in beaked whale foraging echolocation levels on a monthly or
annual basis as determined from over ten years of passive acoustic
monitoring (DiMarzio et al., 2019, 2020). Furthermore, visual, photo-
identification, and satellite tagging studies at a Navy range in
Southern California have documented repeated sightings of the same
beaked whale individuals, sightings of new beaked
[[Page 41806]]
whale individuals, sightings of beaked whale mother-calf pairs, and
most importantly, repeated sighting of beaked whale mothers with their
second calf (Falcone et al., 2012; Schorr et al., 2014, 2019, 2020).
New passive acoustic monitoring in the HSTT Study Area documents more
extensive beaked whale distribution across the entire Study Area,
wherever sensors are deployed (Griffiths and Barlow 2016, Rice et al.,
2019, 2020).
For these reasons as well as the other reasons discussed more fully
in the 2018 HSTT final rule (e.g., mitigation measures, monitoring,
etc.), NMFS does not anticipate that the Navy's HSTT training and
testing activities will result in beaked whale strandings and
mortality, and therefore, no takes are authorized.
Ship Strike
Comment 24: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that the Navy's current approach to determine the risk
of a direct vessel collision with marine mammals is flawed and fails to
account for the likelihood that ship strikes since 2009 were
unintentionally underreported. The Commenter noted that vessel
collisions are generally underreported in part because they can be
difficult to detect, especially for large vessels and that the
distribution, being based on reported strikes, does not account for
this problem. Additionally, the Commenter asserted that the Navy's
analysis does not address the potential for increased strike risk of
non-Navy vessels as a consequence of acoustic disturbance. For example,
some types of anthropogenic noise have been shown to induce near-
surfacing behavior in right whales, increasing the risk of ship-
strike--by not only the source vessel but potentially by third-party
vessels in the area--at relatively moderate levels of exposure (Nowacek
et al., 2004). An analysis based on reported strikes by Navy vessels
per se does not account for this additional risk. In assessing ship-
strike risk, the Navy should include offsets to account for potentially
undetected and unreported collisions.
Response: While NMFS agrees that broadly speaking the number of
total ship strikes may be underestimated due to incomplete information
from other sectors (shipping, etc.), NMFS is confident that whales
struck by Navy vessels are detected and reported, and Navy strikes are
the numbers used in NMFS' analysis to support the authorized number of
strikes. Navy ships have multiple Lookouts, including 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 chain of command give NMFS a high
level of confidence that all strikes actually get reported.
Accordingly, NMFS is confident that the information used to support the
analysis is accurate and complete.
There is no evidence that Navy training and testing activities (or
other acoustic activities) increase the risk of nearby non-Navy vessels
(or other nearby Navy vessels not involved in the referenced training
or testing) striking marine mammals. More whales are struck by non-Navy
vessels off California in areas outside of the HSTT Study Area such as
approaches to Los Angeles and San Francisco.
Comment 25: Commenters noted that between publication of the 2018
HSTT proposed rule and the 2018 HSTT final rule, NMFS removed seven
whale stocks from the list of whales the Navy determined were likely to
be struck and killed by a vessel in the initial five-year period,
including sei whales from the Hawaii and Eastern North Pacific stocks,
and sperm whales from the California/Oregon/Washington (CA/OR/WA)
stock. The Commenters asserted that NMFS has not sufficiently justified
its decision to remove the Eastern North Pacific stock of sei whales
and the CA/OR/WA stock of sperm whales from the list of whale stocks
the Navy initially determined had the potential to be struck and killed
by a vessel. They noted that while NMFS cited purportedly new
considerations in its decision (relative likelihood of hitting one
stock versus another and whether the Navy has ever definitively struck
an individual from a particular stock), the underlying data doesn't
support its conclusions as the strike probability for both stocks is
the same as for the Eastern North Pacific Blue whale which remains on
the list of whales that the Commenters characterize as those likely to
die from a vessel strike. The Commenters further noted that unlike the
other five stocks that NMFS removed from the list, individuals from
both the Eastern North Pacific stock of sei whales and CA/OR/WA stock
of sperm whales have been hit by a vessel in the past, and that the CA/
OR/WA stock of sperm whales is as relatively abundant as other stocks
included in the final strike list. The Commenters asserted that the
fact that the Navy itself has not previously hit whales from either
stock does not alone justify removal, especially when the Navy admits
that it was unable to identify the species of over one-third (36
percent) of the whales it struck during the relevant time period. The
Commenters stated that given the historic strike data and calculated
percent likelihood of being struck as indicated in Table 43 of the 2018
HSTT final rule, NMFS had no valid basis to conclude that Navy vessels
are not likely to strike sei whales from the Eastern North Pacific
stock or sperm whales from the CA/OR/WA stock.
Response: The Commenters are correct that the probabilities
calculated for vessel strike for each stock were considered in
combination with the information indicating the species that the Navy
has definitively hit in the HSTT Study Area since 1991 (since they
started tracking vessel strikes consistently), as well as the
information on relative abundance, total recorded strikes (by any
vessel), and the overlay of all of this information with the Navy's
area of testing and training activities. In Navy strikes over the last
11 years in the HSTT Study Area (2009-2019), the species struck has
been identified. The Eastern North Pacific stock of sei whales have
never been struck by the Navy, have rarely been struck by other vessels
(only one other vessel strike is known), have a low percent likelihood
of being struck based on the SAR calculations (2.3 percent), and a very
low relative abundance (0.007). The CA/OR/WA stock of sperm whales have
also never been struck by the Navy, have rarely been struck by other
vessels (only one other vessel strike is known, even given their higher
relative abundance, as noted by the Commenter), and have a low percent
likelihood of being struck based on the SAR calculations (2.3 percent).
Because of these reasons, these stocks are unlikely to be struck by the
Navy during the seven years covered by this rule.
Comment 26: In a comment on the 2019 HSTT proposed rule, Commenters
stated that the Navy arbitrarily failed to increase its vessel strike
estimate upwards to account for the greater number of at-sea days. They
stated that applying the historic strike rate of 0.00006 whales per day
by the increased number of at-sea days over seven years (assumed by the
Commenters to be 31,728) the new base strike estimate should be 1.9
whales rather than 1.34 whales. They further state that applying the
Poisson distribution to this new base strike estimate indicates that
there is an 8 percent chance that 4 large whales
[[Page 41807]]
will be hit during the extended seven-year time period. They asserted
that NMFS neither considers nor explains why the chance of striking 4
whales is not considered likely during the extended seven-year period
of authorization, and how this may impact overall strike probability
assessments for individual whale stocks and that NMFS' reliance on a
total vessel strike number derived for only five years of HSTT
activities to authorize those activities to continue for seven years is
arbitrary and capricious.
Response: Based on the revised seven-year ship strike analysis that
was used in the 2019 HSTT proposed rule (which incorporates all ship
strike data in the HSTT Study Area from 2009 through 2018, rather than
2016 as previously analyzed for the 2017 Navy application), the strike
rate is 0.000047 whales strikes per day at sea. Over a seven year
period the number of at-sea days is 31,729, leading to an estimate of
1.5 whales over seven years. When applying the Poisson distribution to
this strike estimate, as reported in the Vessel Strike section, the
probability analysis concluded that there was a 22 percent chance that
zero whales would be struck by Navy vessels over the seven-year period,
and a 33.5, 25.1, 12.5, and 4.7 percent chance that one, two, three, or
four whales, respectively, would be struck over the seven-year period.
The probability of the Navy striking up to three large whales over the
seven-year period (which is a 12.5 percent chance) as analyzed for this
final rule using updated Navy vessel strike data and at-sea days is
very close to the probability of the Navy striking up to three large
whales over five years (which was a 10 percent chance). As the
probability of striking three large whales does not differ
significantly from the 2018 HSTT final rule, and the probability of
striking four large whales over seven years remains very low to the
point of being unlikely (less than 5 percent), the Navy has requested,
and we are authorizing, no change in the number of takes by serious
injury or mortality due to vessel strikes over the seven-year period of
this rule. Furthermore, these are statistical calculations of
probabilities of strike that do not factor in Navy operating procedures
and mitigations to avoid large whales. There has not been an actual
Navy ship strike to a large whale in the HSTT Study Area since 2010.
This lack of vessel strikes is factored into the revised seven-year
statistical calculation and is reflected in the probabilities shown
above.
Comment 27: In a comment on the 2019 HSTT proposed rule, Commenters
asserted that it was arbitrary and capricious for NMFS to assume that
the annualized strike rate for each of the six large whales species
that NMFS determined have the potential to be struck would decrease
over the seven-year extension period as compared to the initial five-
year period. They asserted that given that the same level of training
and testing activities will continue under the proposed extension rule
for a longer amount of time, at minimum, the annual strike rate should
remain constant at the levels authorized in the 2018 HSTT final rule.
They asserted that NMFS' arbitrary reduction of the annual strike rate
precludes reasoned analysis of whether vessel strikes will inflict non-
negligible impacts on whale stocks. The Commenters noted of particular
concern were the CA/OR/WA stock of humpback whales and the Eastern
North Pacific stock of blue whales, both of which suffer annual human-
caused mortality at levels much higher than the established PBR
(Potential Biological Removal; as represented by the negative residual
PBR numbers). They asserted that by definition, any mortality above PBR
will decrease a marine mammal stock below its optimum sustainable
population, thereby inducing population level, non-negligible impacts.
The Commenters asserted that NMFS' analysis does not sufficiently
consider the effects of further increasing mortality above established
PBR levels, especially in light of the fact that annual take estimates
have been arbitrarily reduced. They noted that an additional 0.2
mortalities per year is a potentially significant stressor for the
populations of both the CA/OR/WA stock of humpback whales and the
Eastern North Pacific stock of blue whales, and that NMFS failed to
adequately consider this potential through population viability
analyses or other accepted method for determining long-term population
level effects. They further asserted that NMFS does not separately
address the possibility of striking and killing a reproductive female.
They stated that NMFS's failure to adequately consider the effects of
these additional mortalities, including the potential death of a
reproductive female, is arbitrary and capricious.
Response: In the 2018 HSTT final rule, potential mortalities of
three whales due to ship strike were spread over five years and
therefore, the annual average of 0.4 gray whales (Eastern North Pacific
stock), fin whales (CA/OR/WA stock), and humpback whales (Central North
Pacific stock) and an annual average of 0.2 blue whales (Eastern North
Pacific stock), humpback whales (CA/OR/WA stock, Mexico DPS), and sperm
whales (Hawaii stock) (i.e., one, or two, take(s) over five years
divided by five to get the annual number) were expected to potentially
occur and were authorized. NMFS did not arbitrarily reduce the
annualized strike rate in the seven-year analysis. Following these same
methods, as the three total potential mortalities are now spread over
seven years rather than five, an annual average of 0.29 gray whales
(Eastern North Pacific stock), fin whales (CA/OR/WA stock), and
humpback whales (Central North Pacific stock) and an annual average of
0.14 blue whales (Eastern North Pacific stock), humpback whales (CA/OR/
WA stock, Mexico DPS), and sperm whales (Hawaii stock) as described in
Table 16 (i.e., one, or two, take(s) over seven years divided by seven
to get the annual number) are expected to potentially occur and are
authorized.
As explained in the Serious Injury or Mortality subsection of the
Negligible Impact Analysis and Determination section of the 2018 HSTT
final rule and this rule, in the commercial fisheries setting for 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 humpback whales from the
CA/OR/WA stock, and blue whales from the Eastern North Pacific stock
are less than 10 percent of PBR (33.4 for humpback whales from the CA/
OR/WA stock and 2.1 for blue whales from the Eastern North Pacific
stock) 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
[[Page 41808]]
impacts, see the discussion in this 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 reproductive female is even lower.
Mitigation and Monitoring
Least Practicable Adverse Impact Determination
Comment 28: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that deaths of, or serious injuries to marine mammals
that occur pursuant to activities conducted under an incidental take
authorization, while perhaps negligible to the overall health and
productivity of the species or stock and of little consequence at that
level, nevertheless are clearly adverse to the individuals involved and
results in some quantifiable (though negligible) adverse impact on the
population; it reduces the population to some degree. Under the least
practicable adverse impact requirement, and more generally under the
purposes and policies of the MMPA, the Commenter asserted that Congress
embraced a policy to minimize, whenever practicable, the risk of
killing or seriously injuring a marine mammal incidental to an activity
subject to section 101(a)(5)(A), including providing measures in an
authorization to eliminate or reduce the likelihood of lethal taking.
The Commenter recommended that NMFS address this point explicitly in
its analysis and clarify whether it agrees that the incidental serious
injury or death of a marine mammal always should be considered an
adverse impact for purposes of applying the least practicable adverse
impact standard.
Response: NMFS disagrees that it is necessary or helpful to
explicitly address the point the Commenter raises in the discussion on
the least practicable adverse impact standard. It is always NMFS'
practice to mitigate mortality to the greatest degree possible, as
death is the impact that is most easily linked to reducing the
probability of adverse impacts to populations. However, we cannot agree
that one mortality will always decrease any population in a
quantifiable or meaningful way. For example, for very large
populations, one mortality may fall well within typical known annual
variation and not have any effect on population rates. Further, we do
not understand the problem that the Commenter's recommendation is
attempting to fix. Applicants generally do not express reluctance to
mitigate mortality, and we believe that modifications of this nature
would confuse the issue.
Comment 29: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that NMFS address the habitat component of the
least practicable adverse impact provision in greater detail. It
asserted that NMFS' discussion of critical habitat, marine sanctuaries,
and BIAs in the proposed rule is not integrated with the discussion of
the least practicable adverse impact standard. It would seem that,
under the least practicable adverse impact provision, adverse impacts
on important habitat should be avoided whenever practicable. Therefore,
to the extent that activities would be allowed to proceed in these
areas, NMFS should explain why it is not practicable to constrain them
further.
Response: Marine mammal habitat value is informed by marine mammal
presence and use and, in some cases, there may be overlap in measures
for the species or stock directly and for use of habitat. In this rule,
we have required time-area mitigations based on a combination of
factors that include higher densities and observations of specific
important behaviors of marine mammals themselves, but also that clearly
reflect preferred habitat (e.g., calving areas in Hawaii, feeding areas
in SOCAL). In addition to being delineated based on physical features
that drive habitat function (e.g., bathymetric features among others
for some BIAs), the high densities and concentration of certain
important behaviors (e.g., feeding) in these particular areas clearly
indicate the presence of preferred habitat. The Commenter seems to
suggest that NMFS must always consider separate measures aimed at
marine mammal habitat; however, the MMPA does not specify that effects
to habitat must be mitigated in separate measures, and NMFS has clearly
identified measures that provide significant reduction of impacts to
both ``marine mammal species and stocks and their habitat,'' as
required by the statute.
Comment 30: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that NMFS rework its evaluation criteria for
applying the least practicable adverse impact standard to separate the
factors used to determine whether a potential impact on marine mammals
or their habitat is adverse and whether possible mitigation measures
would be effective. In this regard, the Commenter asserted that it
seems as though the proposed ``effectiveness'' criterion more
appropriately fits as an element of practicability and should be
addressed under that prong of the analysis. In other words, a measure
not expected to be effective should not be considered a practicable
means of reducing impacts.
Response: In the Mitigation Measures section, NMFS has explained in
detail our interpretation of the least practicable adverse impact
standard, the rationale for our interpretation, and our approach for
implementing our interpretation. The ability of a measure to reduce
effects on marine mammals is entirely related to its ``effectiveness''
as a measure, whereas the effectiveness of a measure is not connected
to its practicability. The Commenter provides no support for its
argument, and NMFS has not implemented the suggestion.
Comment 31: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that NMFS recast its conclusions to provide
sufficient detail as to why additional measures either are not needed
(i.e., there are no remaining adverse impacts) or would not be
practicable to implement. The Commenter stated that the most concerning
element of NMFS' implementation of the least practicable adverse impact
standard is its suggestion that the mitigation measures proposed by the
Navy will ``sufficiently reduce impacts on the affected mammal species
and stocks and their habitats'' (83 FR 11045). That phrase suggests
that NMFS is applying a ``good-enough'' standard to the Navy's
activities. Under the statutory criteria, however, those proposed
measures are ``sufficient'' only if they have either (1) eliminated all
adverse impacts on marine mammal species and stocks and their habitat
or (2) if adverse impacts remain, it is not practicable to reduce them
further.
Response: The statement that the Commenter references does not
indicate that NMFS applies a ``good-enough'' standard to determining
least practicable adverse impact. Rather, it indicates that the
mitigation measures are sufficient to meet the statutory legal
standard. In addition, as NMFS has explained in our description of the
least practicable adverse impact standard, NMFS does not view the
necessary analysis through the yes/no lens that the Commenter seeks to
prescribe. Rather, NMFS' least practicable adverse impact analysis
considers both the reduction of adverse effects and their
practicability.
[[Page 41809]]
Further, since the 2018 HSTT proposed rule was published, the Navy and
NMFS evaluated additional measures in the context of both their
practicability and their ability to further reduce impacts to marine
mammals and have determined that the addition of several measures (see
Mitigation Measures section) is appropriate. Regardless, beyond these
new additional measures, where the Navy's HSTT activities are
concerned, the Navy has indicated that further procedural or area
mitigation of any kind (beyond that prescribed in this final rule)
would be impracticable. NMFS has reviewed documentation and analysis
provided by the Navy explaining how and why specific procedural and
geographic based mitigation measures impact practicability, and NMFS
concurs with these assessments and has determined that the mitigation
measures outlined in the final rule satisfy the statutory standard and
that any adverse impacts that remain cannot practicably be further
mitigated.
Comment 32: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that any ``formal interpretation'' of the least
practicable adverse impact standard by NMFS be issued in a stand-alone,
generally applicable rulemaking (e.g., in amendments to 50 CFR 216.103
or 216.105) or in a separate policy directive, rather than in the
preambles to individual proposed rules.
Response: We appreciate the Commenter's recommendation and may
consider the recommended approach in the future. We note, however, that
providing relevant explanations in a proposed incidental take rule is
an effective and efficient way to provide information to the reader and
solicit focused input from the public, and ultimately affords the same
opportunities for public comment as a stand-alone rulemaking would.
NMFS has provided similar explanations of the least practicable adverse
impact standard in other recent section 101(a)(5)(A) rules, including:
U.S. Navy Operations of Surveillance Towed Array Sensor System Low
Frequency Active (SURTASS LFA) Sonar; Geophysical Surveys Related to
Oil and Gas Activities in the Gulf of Mexico; and the final rule for
U.S. Navy Training and Testing Activities in the Atlantic Fleet Study
Area.
Comment 33: In a comment on the 2018 HSTT proposed rule, a
Commenter cited two judicial decisions and commented that the ``least
practicable adverse impact'' standard has not been met. The Commenter
stated that contrary to the Pritzker Court decision, NMFS, while
clarifying that population-level impacts are mitigated ``through the
application of mitigation measures that limit impacts to individual
animals,'' has again set population-level impact as the basis for
mitigation in the proposed rule. Because NMFS' mitigation analysis is
opaque, it is not clear what practical effect this position may have on
its rulemaking. The Commenter stated that the proposed rule is also
unclear in its application of the ``habitat'' emphasis in the MMPA's
mitigation standard, and that while NMFS' analysis is opaque, its
failure to incorporate or even, apparently, to consider viable time-
area measures suggests that the agency has not addressed this aspect of
the Pritzker decision. The Commenter argued that the MMPA sets forth a
``stringent standard'' for mitigation that requires the agency to
minimize impacts to the lowest practicable level, and that the agency
must conduct its own analysis and clearly articulate it: It ``cannot
just parrot what the Navy says.''
Response: NMFS disagrees with much of what the Commenter asserts.
First, we have carefully explained our interpretation of the least
practicable adverse impact standard and how it applies to both stocks
and individuals, including in the context of the Pritzker decision, in
the Mitigation Measures section. Further, we have applied the standard
correctly in this rule in requiring measures that reduce impacts to
individual marine mammals in a manner that reduces the probability and/
or severity of population-level impacts. Regarding the comment about
mitigation of habitat impacts, it has been addressed above in the
response to Comment 29.
When a suggested or recommended mitigation measure is not
practicable, NMFS has explored variations of that mitigation to
determine if a practicable form of related mitigation exists. This is
clearly illustrated in NMFS' independent mitigation analysis process
explained in the Mitigation Measures section of the 2018 HSTT final
rule. First, the type of mitigation required varies by mitigation area,
demonstrating that NMFS has engaged in a site-specific analysis to
ensure mitigation is tailored when practicability demands, i.e., some
forms of mitigation were practicable in some areas but not others.
Examples of NMFS' analysis on this issue appear throughout the rule.
For instance, while it was not practicable for the Navy to include a
mitigation area for the Tanner-Cortes blue whale BIA, the Navy did
agree to expand mitigation protection to all of the other blue whale
BIAs in the SOCAL region. Additionally, while the Navy cannot alleviate
all training in the mitigation areas that protect small resident
odontocete populations in Hawaii, it has further expanded the
protections in those areas such that it does not use explosives or MFAS
in the areas (MF1 bin in both areas, MF4 bin in the Hawaii Island
area).
Nonetheless, NMFS agrees that the agency must conduct its own
analysis, which it has done here, and not just accept what is provided
by the Navy. That does not mean, however, that NMFS cannot review the
Navy's analysis of effectiveness and practicability, and concur with
those aspects of the Navy's analysis with which NMFS agrees. The
Commenter seems to suggest that NMFS must describe in the rule in
detail the rationale for not adopting every conceivable permutation of
mitigation, which is neither reasonable nor required by the MMPA. NMFS
has described our well-reasoned process for identifying the measures
needed to meet the least practicable adverse impact standard in the
Mitigation Measures section in this rule, and we have followed the
approach described there when analyzing potential mitigation for the
Navy's activities in the HSTT Study Area. Discussion regarding specific
recommendations for mitigation measures provided by the Commenter on
the proposed rule are discussed separately.
Procedural Mitigation Effectiveness and Recommendations
Comment 34: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that the Navy's proposed mitigation zones are similar
to the zones previously used during Phase II activities and are
intended, based on the Phase III HSTT DEIS/OEIS, to avoid the potential
for marine mammals to be exposed to levels of sound that could result
in injury (i.e., PTS). However, the Commenter believed that Phase III
proposed mitigation zones would not protect various functional hearing
groups from PTS. For example, the mitigation zone for an explosive
sonobuoy is 549 m but the mean PTS zones range from 2,113-3,682 m for
HF. Similarly, the mitigation zone for an explosive torpedo is 1,920 m
but the mean PTS zones range from 7,635-10,062 m for HF, 1,969-4,315 m
for LF, and 3,053-3,311 for PW. The appropriateness of such zones is
further complicated by platforms firing munitions (e.g., for missiles
and rockets) at targets that are 28 to 139 km away from the firing
platform. An aircraft would clear the target area well before it
positions itself at the launch location and launches the missile or
rocket.
[[Page 41810]]
Ships, on the other hand, do not clear the target area before launching
the missile or rocket. In either case, marine mammals could be present
in the target area unbeknownst to the Navy at the time of the launch.
Response: NMFS is aware that some mitigation zones do not fully
cover the area in which an animal from a certain hearing group may
incur PTS. For this small subset of circumstances, NMFS discussed
potential enlargement of the mitigation zones with the Navy, but
concurred with the Navy's assessment that further enlargement would be
impracticable. Specifically, the Navy explained that, as discussed in
Chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS, for explosive
mitigation zones any additional increases in mitigation zone size
(beyond what is depicted for each explosive activity), or additional
observation requirements, would be impracticable to implement due to
implications for safety, sustainability, the Navy's ability to meet
Title 10 requirements to successfully accomplish military readiness
objectives, and the Navy's ability to conduct testing associated with
required acquisition milestones or as required to meet operational
requirements. Additionally, Navy Senior Leadership has approved and
determined that the mitigation detailed in Chapter 5 (Mitigation) of
the 2018 HSTT FEIS/OEIS provides the greatest extent of protection that
is practicable to implement. NMFS has analyzed the fact that despite
these mitigation measures, some Level A harassment may occur in some
circumstances; the Navy is authorized for these takes by Level A
harassment.
Comment 35: In a comment on the 2018 HSTT proposed rule, a
Commenter made several comments regarding visual and acoustic detection
as related to mitigating impacts that can cause injury. The Commenter
noted that the Navy indicated in the 2018 HSTT DEIS/OEIS that Lookouts
would not be 100 percent effective at detecting all species of marine
mammals for every activity because of the inherent limitations of
observing marine species and because the likelihood of sighting
individual animals is largely dependent on observation conditions
(e.g., time of day, sea state, mitigation zone size, observation
platform). The Navy has been collaborating with researchers at the
University of St. Andrews to study Navy Lookout effectiveness and the
Commenter anticipates that the Lookout effectiveness study will be very
informative once completed, but notes that in the interim, the
preliminary data do provide an adequate basis for taking a
precautionary approach. The Commenter believed that rather than simply
reducing the size of the mitigation zones it plans to monitor, the Navy
should supplement its visual monitoring efforts with other monitoring
measures including passive acoustic monitoring.
The Commenter suggested that sonobuoys could be deployed with the
target in the various target areas prior to the activity. This approach
would allow the Navy to better determine whether the target area is
clear and remains clear until the munition is launched.
Although the Navy indicated that it was continuing to improve its
capabilities for using range instrumentation to aid in the passive
acoustic detection of marine mammals, it also stated that it didn't
have the capability or resources to monitor instrumented ranges in real
time for the purpose of mitigation. That capability clearly exists.
While available resources could be a limiting factor, the Commenter
notes that personnel who monitor the hydrophones on the operational
side do have the ability to monitor for marine mammals as well. The
Commenter has supported the use of the instrumented ranges to fulfill
mitigation implementation for quite some time and contends that
localizing certain species (or genera) provides more effective
mitigation than localizing none at all.
The Commenter recommended that NMFS require the Navy to use passive
and active acoustic monitoring, whenever practicable, to supplement
visual monitoring during the implementation of its mitigation measures
for all activities that have the potential to cause injury or mortality
beyond those explosive activities for which passive acoustic monitoring
already was proposed, including those activities that would occur on
the Southern California Offshore Range (SCORE) and Pacific Missing
Range Facility (PMRF) ranges.
Response: For explosive mitigation zones, any additional increases
in mitigation zone size (beyond what is depicted for each explosive
activity) or observation requirements would be impracticable to
implement due to implications for safety, sustainability, and the
Navy's ability to meet Title 10 requirements to successfully accomplish
military readiness objectives. We do note, however, that since the 2018
HSTT proposed rule, the Navy has committed to implementing pre-event
observations for all in-water explosives events (including some that
were not previously monitored) and to using additional platforms if
available in the vicinity of the detonation area to help with this
monitoring.
As discussed in the comment (referencing the use of sonobuoys or
hydrophones), 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 (e.g., hydrophone) to a platform already participating in the
activity, or by adding a platform with integrated passive acoustic
monitoring capabilities to the activity, such as a sonobuoy) for
mitigation is not practicable. As discussed in Section 5.5.3 (Active
and Passive Acoustic Monitoring Devices) of the 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 and reduce the service life of those systems.
Regarding the use of instrumented ranges for real-time mitigation,
the Commenter is correct that the Navy continues to develop the
technology and capabilities on its Ranges for use in marine mammal
monitoring, which can be effectively compared to operational
information after the fact to gain information regarding marine mammal
response. However, the Navy's instrumented ranges were not developed
for the purpose of mitigation. As discussed above, the manpower and
logistical complexity involved in detecting and localizing marine
mammals in relation to multiple fast-moving sound source platforms in
order to implement real-time mitigation is significant. A more detailed
discussion of the limitations for on-range passive acoustic detection
as real-time mitigation is provided in Comment 42 and is not
practicable for the Navy. For example, beaked whales produce highly
directed echolocation clicks that are difficult to simultaneously
detect on multiple hydrophones within the instrumented range at PMRF;
therefore, there is a high probability that a vocalizing animal would
be assigned a false location on the range (i.e., the Navy would not be
able to verify its presence in a mitigation zone). Although the Navy is
continuing to improve its
[[Page 41811]]
capabilities to use range instrumentation to aid in the passive
acoustic detection of marine mammals, at this time it would not be
effective or practicable for the Navy to monitor instrumented ranges
for the purpose of real-time mitigation for the reasons discussed in
Section 5.5.3 (Active and Passive Acoustic Monitoring Devices) of the
2018 HSTT FEIS/OEIS.
Comment 36: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that NMFS require the Navy to conduct additional
pre-activity overflights before conducting any activities involving
detonations barring any safety issues (e.g., low fuel), as well as
post-activity monitoring for activities involving medium- and large
caliber projectiles, missiles, rockets, and bombs.
Response: The Navy has agreed to implement pre-event observation
mitigation, as well as post-event observation, for all in-water
explosive event mitigation measures. If there are other platforms
participating in these events and in the vicinity of the detonation
area, they will also visually observe this area as part of the
mitigation team.
Comment 37: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that the Navy implement larger shutdown zones.
Response: The Navy mitigation zones represent the maximum surface
area the Navy can effectively observe based on the platform involved,
number of personnel that will be involved, and the number and type of
assets and resources available. As mitigation zone sizes increase, the
potential for observing marine mammals and thus reducing impacts
decreases, because the number of observers cannot increase although the
area to observe increases. For instance, if a mitigation zone increases
from 1,000 to 2,000 yd, the area that must be observed increases four-
fold. NMFS has analyzed the Navy's required mitigation and found that
it will effect the least practicable adverse impact. The Navy's
mitigation measures consider both the need to reduce potential impacts
and the ability to provide effective observations throughout a given
mitigation zone. To implement these mitigation zones, Navy Lookouts are
trained to use a combination of unaided eye and optics as they search
the surface around a vessel, detonation location, or applicable sound
source. In addition, there are other Navy personnel on a given bridge
watch (in addition to designated Lookouts), who are also constantly
watching the water for safety of navigation and marine mammals. Takes
that cannot be mitigated are analyzed and authorized provided the
necessary findings can be made.
Comment 38: In a comment on the 2018 HSTT proposed rule, Commenters
stated that NMFS should cap the maximum level of activities each year.
Response: The Commenters offer no rationale for why a cap is needed
and nor do they suggest what an appropriate cap might be. The Navy is
responsible under Title 10 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
Areas section, the Navy will limit activities (active sonar, explosive
use, 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.
Comment 39: In a comment on the 2018 HSTT proposed rule, a
Commenter suggested the Navy could improve observer effectiveness
through the use of NMFS-certified marine mammal observers.
Response: The Navy currently requires at least one qualified
Lookout on watch at all times a vessel is underway. In addition, on
surface ships with hull-mounted sonars during sonar events, the number
increases with two additional Lookouts on the forward portion of the
vessel (i.e., total of three Lookouts). Furthermore, unlike civilian
commercial ships, there are additional bridge watch standers on Navy
ships viewing the water during all activities. The Navy's Marine
Species Awareness training that all bridge watchstanders including
Lookouts take has been reviewed and approved by NMFS. This training is
conducted annually and prior to MTEs. In addition, unit-based passive
acoustic detection is used when available and appropriate.
As we understand from the Navy, mandating NMFS-certified marine
mammal observers on all platforms would require setting up and
administering a certification program, providing security clearance for
certified people, ensuring that all platforms are furnished with these
individuals, and housing these people on ships for extended times from
weeks to months. This would be an extreme logistical burden on
realistic training. The requirement for additional non-Navy observers
would provide little additional benefit, especially at the near ship
mitigation ranges for mid-frequency active sonars on surface ships
(<1,000 yds), and would not be significantly better than the current
system developed by the Navy in consultation with NMFS.
The purpose of Navy Lookouts is to provide sighting information for
marine mammals and other protected species, as well as other boats and
vessels in the area, in-water debris, and other safety of navigation
functions. During active sonar use, additional personnel are assigned
for the duration of the sonar event. In addition, the other Navy
personnel on a given bridge watch along with designated Lookouts are
also constantly watching the water for safety of navigation and marine
mammals.
Navy training and testing activities often occur simultaneously and
in various regions throughout the HSTT Study Area, with underway time
that could last for days or multiple weeks at a time. The pool of
certified marine mammal observers across the U.S. West Coast is rather
limited, with many already engaged in regional NMFS survey efforts.
Relative to the number of dedicated MMOs that would be required to
implement this condition, as of July 2018, there are approximately 22
sonar-equipped Navy ships (i.e., surface ships with hull-mounted active
sonars) stationed in San Diego. Six additional vessels from the Pacific
Northwest also transit to Southern California for training (28 ships
times 2 observers per watch times 2 watches per day = minimum of 112
observers). There are currently not enough certified marine mammal
observers to cover these Navy activities, even if it were practicable
for the other reasons explained above.
Senior Navy commands in the Pacific continuously reemphasize the
importance of Lookout responsibilities to all ships. Further, the Navy
has an ongoing study in which certified Navy civilian scientist
observers embark periodically on Navy ships in support of a comparative
Lookout effectiveness study. Results from this study will be used to
make recommendations for further improvements to Lookout training.
Additionally, we note that the necessity to include trained NMFS-
approved PSOs on Navy vessels, while adding little or no additional
protective or data-gathering value, would be very expensive and those
costs would need to be offset--most likely through reductions in the
budget for Navy monitoring, through which invaluable data is gathered.
Comment 40: In a comment on the 2018 HSTT proposed rule, Commenters
stated that NMFS should consider
[[Page 41812]]
increasing the exclusion zone to the 120 dB isopleth because some
animals are sensitive to sonar at low levels of exposure.
Response: First, it is important to note that the Commenters are
suggesting that NMFS require mitigation that would eliminate all take,
which is not what the applicable standard requires. Rather, NMFS is
required to put in place measures that effect the ``least practicable
adverse impact.'' Separately, NMFS acknowledges that some marine
mammals may respond to sound at 120 dB in some circumstances; however,
based on the best available data, only a subset of those exposed at
that low level respond in a manner that would be considered harassment
under the MMPA. NMFS and the Navy have quantified those individuals of
certain stocks where appropriate, analyzed the impacts, and authorized
take where needed. Further, NMFS and the Navy have identified exclusion
zone sizes that are best suited to minimize impacts to marine mammal
species and stocks and their habitat while also being practicable (see
Mitigation Measures section).
Comment 41: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that NMFS should impose a 10-kn ship speed limit in
biologically important areas and critical habitat for marine mammals to
reduce vessel strikes. The Commenter also specifically referenced this
measure in regard to humpback whales and blue whales.
Response: This issue also is addressed elsewhere in the Comments
and Responses section for specific mitigation areas. However, generally
speaking, it is impracticable (because of impacts to mission
effectiveness) to further reduce ship speeds for Navy activities, and,
moreover, given the maneuverability of Navy ships at higher speeds and
the presence of effective Lookouts, any further reduction in speed
would reduce the already low probability of ship strike little, if any.
The Navy is unable to impose a 10-kn ship speed limit because it would
not be practical to implement and would impact the effectiveness of
Navy's activities by putting constraints on training, testing, and
scheduling. The Navy requires flexibility in use of variable ship
speeds for training, testing, operational, safety, and engineering
qualification requirements. Navy ships typically use the lowest 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.
The main driver for ship speed reduction is reducing the
possibility and severity of ship strikes to large whales. However, even
given the wide ranges of speeds from slow to fast that Navy ships must
use to meet training and testing requirements, the Navy has a very low
strike history to large whales in Southern California and Hawaii, with
no whales struck by the Navy from 2010-2019. There have been no whales
struck in Hawaii since 2008 (4 whales were struck between 2000 and
2008). Current Navy Standard Operating Procedures and mitigations
require a minimum of at least one Lookout on duty while underway (in
addition to bridge watch personnel) and, so long as safety of
navigation is maintained, to keep 500 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). Furthermore, there is no
Navy ship strike of a marine mammal on record in SOCAL that has
occurred in the coastal area (~40 nmi from shore), which is where speed
restrictions are most requested. Finally, the most recent model
estimate of the potential for civilian ship strike risk to blue,
humpback, and fin whales off the coast of California found the highest
risk near San Francisco and Long Beach associated with commercial ship
routes to and from those ports (Rockwood et al., 2017). There was no
indication of a similar high risk to these species off San Diego, where
the HSTT Study Area occurs.
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 knots. 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 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.
Comment 42: In a comment on the 2018 HSTT proposed rule, Commenters
stated that NMFS should improve detection of marine mammals with
restrictions on low-visibility activities and alternative detection
such as thermal or acoustic methods.
Response: 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.
Low visibility--Anti-submarine warfare training involving the use
of mid-frequency active sonar 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 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
[[Page 41813]]
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.
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 fields 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 system 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, 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). The use of
thermal detection systems instead of traditional techniques would
compromise the Navy's ability to observe for marine mammals within its
mitigation zones in the range of environmental conditions found
throughout the Study Area. Furthermore, thermal detection systems are
designed to detect marine mammals and do not have the capability to
detect other resources for which the Navy is required to implement
mitigation, including sea turtles. 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. The mitigation measures discussed in Chapter 5
(Mitigation), Section 5.3 (Procedural Mitigation to be Implemented) of
the 2018 HSTT FEIS/OEIS include the maximum number of Lookouts the Navy
can assign to each activity based on available manpower and resources;
therefore, it would be impractical to add personnel to serve as
additional Lookouts. For example, 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.
Additional studies are currently being planned for 2020+ but additional
[[Page 41814]]
information on the exact timing and scope of these studies is not
currently available (still in development stage).
The Office of Naval Research Marine Mammals and Biology program
also 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 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--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 and reduce the
service life of those systems.
The use of real-time passive acoustic monitoring (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.
Furthermore, PAM at SOAR does not account for animals not
vocalizing. For instance, there have been many documented occurrences
during PAM verification testing at SOAR of small boats on the water
coming across marine mammals such as baleen whales that were not
vocalizing and therefore not detected by the range hydrophones. Animals
must vocalize to be detected by PAM; the lack of detections on a
hydrophone may give the false impression that the area is clear of
marine mammals. The lack of vocalization detections is not a direct
measure of the absence of marine mammals. 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 in
water depths of approximately 2 km is preferred. In the absence of
detection,
[[Page 41815]]
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.
Comment 43: In a comment on the 2018 HSTT proposed rule, Commenters
stated that NMFS should add mitigation for other marine mammal
stressors such as dipping sonar, pile driving, and multiple exposures
near homeports.
Response: The Navy implements a 200-yd shutdown for dipping sonar
and a 100-yd exclusion zone for pile-driving. It is unclear what the
Commenter means by adding mitigation for ``multiple exposures'' near
homeports, and therefore no explanation can be provided.
Mitigation Areas
Introduction
The Navy included a comprehensive proposal of mitigation measures
in their 2017 application that included procedural mitigations that
reduce the likelihood of mortality, injury, hearing impairment, and
more severe behavioral responses for most species. The Navy also
included time/area mitigation that further protects areas where
important behaviors are conducted and/or sensitive species congregate,
which reduces the likelihood of takes that are likely to impact
reproduction or survival (as described in the Mitigation Measures
section of the final rule and the Navy's application). As a general
matter, where an applicant proposes measures that are likely to reduce
impacts to marine mammals, the fact that they are included in the
application indicates that the measures are practicable, and it is not
necessary for NMFS to conduct a detailed analysis of the measures the
applicant proposed (rather, they are simply included). However, it is
necessary for NMFS to consider whether there are additional practicable
measures that could also contribute to effecting the least practicable
adverse impact on the species or stocks and their habitat. In the case
of the Navy's HSTT application, we worked with the Navy prior to the
publication of the 2018 HSTT proposed rule and ultimately the Navy
agreed to increase geographic mitigation areas adjacent to the island
of Hawaii to more fully encompass specific biologically important areas
and the Alenuihaha Channel and to limit additional anti-submarine
warfare mid-frequency active sonar (ASW) source bins (MF4) within some
geographic mitigation areas.
During the public comment period on the 2018 HSTT proposed rule,
NMFS received numerous recommendations for the Navy to implement
additional mitigation measures, both procedural and time/area
limitations. Extensive discussion of the recommended mitigation
measures in the context of the factors considered in the least
practicable adverse impact analysis (considered in the Mitigation
Measures section of the final rule and described below), as well as
considerations of alternate iterations or portions of the recommended
measures considered to better address practicability concerns, resulted
in the addition of several procedural mitigations and expansion of
multiple time/area mitigations (see the Mitigation Measures section in
the final rule). These additional areas reflect, for example, concerns
about blue whales in SOCAL and small resident odontocete populations in
Hawaii (which resulted in expanded time/area mitigation), focus on
areas where important behaviors and habitat are found (e.g., in BIAs),
and enhancement of the Navy's ability to detect and reduce injury and
mortality (which resulted in expanded monitoring before and after
explosive events). Through extensive discussion, NMFS and the Navy
worked to identify and prioritize additional mitigation measures that
are likely to reduce impacts on marine mammal species or stocks and
their habitat and are also possible for the Navy to implement.
Following the publication of the 2013 HSTT MMPA incidental take
rule, the Navy and NMFS were sued and the resulting settlement
agreement prohibited or restricted Navy activities within specific
areas in the HSTT Study Area. These provisional prohibitions and
restrictions on activities within the HSTT Study Area were derived
pursuant to negotiations with the plaintiffs in that lawsuit and were
specifically not evaluated or selected based on the type of thorough
examination of best available science that occurs through the
rulemaking process under the MMPA, or through related analyses
conducted under the National Environmental Policy Act (NEPA) or the
ESA. The agreement did not constitute a concession by the Navy as to
the potential impacts of Navy activities on marine mammals or any other
marine species, or to the practicability of the measures. The Navy's
adoption of restrictions on its HSTT activities as part of a relatively
short-term settlement did not mean that those restrictions were
necessarily supported by the best available science, likely to reduce
impacts to marine mammal species or stocks and their habitat, or
practicable to implement from a military readiness standpoint over the
longer term in the HSTT Study Area. Accordingly, as required by
statute, NMFS analyzed the Navy's activities, impacts, mitigation and
potential mitigation (including the settlement agreement measures)
pursuant to the least practicable adverse impact standard to determine
the appropriate mitigation to include in these regulations. Some of the
measures included in the settlement agreement are included in the final
rule, while some are not. Other measures that were not included in the
settlement agreement are included in the final rule.
Ultimately, the Navy adopted all mitigation measures that are
practicable without jeopardizing its mission and Title 10
responsibilities. In other words, a comprehensive assessment by Navy
leadership of the final, entire list of mitigation measures concluded
that the inclusion of any further mitigation beyond those measures
identified here in the final rule would be impracticable. NMFS
independently reviewed the Navy's practicability determinations for
specific mitigation areas and concurs with the Navy's analysis.
As we outlined in the Mitigation Measures section of the 2018 HSTT
final rule, NMFS reviewed Appendix K (Geographic Mitigation Assessment)
in the 2018 HSTT FEIS/OEIS and the information contained there reflects
the best available science as well as a robust evaluation of the
practicability of different measures. NMFS used Appendix K to support
our independent
[[Page 41816]]
least practicable adverse impact analysis. Below is additional
discussion regarding specific recommendations for mitigation measures.
Comment 44: With respect to the national security exemption related
to mitigation areas, in a comment on the 2018 HSTT proposed rule, a
Commenter recommended that NMFS should specify that authorization may
be given only by high-level officers, consistent with the Settlement
Agreement or with previous HSTT rulings.
Response: The Navy provided the technical analyses contained in
Appendix K (Geographic Mitigation Assessment) of the 2018 HSTT FEIS/
OEIS that included details regarding changing the measure to the
appropriate delegated Command designee (see specifically Appendix K,
Section K.2.2.1 (Proposed Mitigation Areas within the HSTT Study Area),
for each of the proposed areas). The Commenter proposed ``authorization
may be given only by high-level officers'' and therefore appears to
have missed the designations made within the cited sections since those
do constitute positions that could only be considered ``high level
officers.'' The decision would be delegated to high-level officers.
This delegation has been clarified in this rule as ``permission from
the appropriate designated Command authority.''
SOCAL Areas
Comment 45: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that the Navy consider units of the National Park
Service (NPS) system and similar areas that occur near the Navy's
training and testing locations in Southern California and which may be
affected by noise, including Channel Islands National Park and Cabrillo
National Monument, as it plans its activities in the HSTT Study Area.
Response: Both NMFS and the Navy did consider the effects of Navy
activities on NPS sites and National Monuments. National Parks (NP) and
National Monuments are addressed in Chapter 6 of the 2018 HSTT FEIS/
OEIS. The Channel Islands NP consists of the five islands and
surrounding ocean environment out to 1 nmi of Anacapa Island, Santa
Cruz Island, Santa Rosa Island, San Miguel Island, and Santa Barbara
Island. Similarly, the Channel Islands National Marine Sanctuary (NMS)
consists of the ocean waters within an area of 1,109 nmi\2\ that also
surround the same islands of Anacapa Island, Santa Cruz Island, Santa
Rosa Island, San Miguel Island and Santa Barbara Island to the south.
The Channel Islands NMS waters extend from mean high tide to 6 nmi
offshore around each of these five islands which would also encompass
the surrounding ocean waters of the Channel Islands NP. Only 92 nmi\2\
of Santa Barbara Island, or about 8 percent of the Channel Islands NMS,
occurs within the SOCAL portion of the HSTT Study Area, but the
entirety of that piece is included in the Santa Barbara Mitigation
Area. The Navy will continue to implement a mitigation area out to 6
nmi of Santa Barbara Island, which includes a portion of the Channel
Islands NMS (inclusive of the Channels Island NP portion) where the
Navy will restrict the use of MF1 sonar sources and some explosives
during training. Therefore, no impacts are expected to occur within the
waters of the Channel Islands NP. Please refer to Figure 5.4-4 in the
2018 HSTT FEIS/OEIS, which shows the spatial extent of the Santa
Barbara Island Mitigation Area. Cabrillo National Monument in San Diego
only contains some intertidal areas, but no marine waters. No Navy
activities overlap with the Cabrillo National Monument; therefore, no
impacts are expected.
Comment 46: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended to extend the seasonality of the San Diego Arc
Mitigation Area to December 31 for blue whales that are present off
southern California almost year round, and relatively higher levels
from June 1 through December 31.
Response: Analysis of the San Diego Arc Mitigation Area and its
consideration for additional geographic mitigation is provided in the
2018 HSTT FEIS/OEIS in Appendix K (Geographic Mitigation Assessment),
Section K.4.1.6 (San Diego (Arc) Blue Whale Feeding Area; Settlement
Areas 3-A through 3-C, California Coastal Commission 3 nmi Shore Area,
and San Diego Arc Area), Section K.5.5 (Settlement Areas within the
Southern California Portion of the HSTT Study Area), and Section K.6.2
(San Diego Arc: Area Parallel to the Coastline from the Gulf of
California Border to just North of Del Mar). This analysis included
consideration of seasonality and the potential effectiveness of
restrictions to use of MFAS by the Navy in the area. Based on further
discussion between NMFS and the Navy in consideration of the Appendix K
(Geographic Mitigation Assessment) analyses, with the 2018 HSTT final
rule the Navy implemented additional mitigation within the San Diego
Arc Mitigation Area, as detailed in this 2020 rule and Chapter 5
(Mitigation) Section 5.4.3 (Mitigation Areas for Marine Mammals in the
Southern California Portion of the Study Area) of the 2018 HSTT FEIS/
OEIS, to further avoid or reduce impacts on marine mammals from
acoustic and explosive stressors and vessel strikes from Navy training
and testing in this location. The Navy is limiting MF1 surface ship
hull-mounted MFAS even further in the San Diego Arc Mitigation Area.
The Navy will not conduct more than 200 hrs of MF1 MFAS in the combined
areas of the San Diego Arc Mitigation Area and newly added San Nicolas
Island and Santa Monica/Long Beach Mitigation Areas. As described in
the 2018 rule and this rule, the Navy will not use explosives that
could potentially result in the take of marine mammals during large-
caliber gunnery, torpedo, bombing, and missile (including 2.75-in
rockets) activities during training and testing in the San Diego
Mitigation Area. Regarding the recommended increase in seasonality to
December 31, the San Diego Arc current seasonality is based on the
Biologically Important Area associated with this mitigation area
(Calambokidis et al., 2015), which identifies the primary months for
feeding. While blue whale calls have been detected in Southern
California through December (Rice et al., 2017, Lewis and
[Scaron]irovi[cacute], 2018), given a large propagation range (10-50 km
or more) for low-frequency blue whale vocalization, blue whale call
detection from a Navy-funded single passive acoustic device near the
San Diego Arc may not be a direct correlation with blue whale presence
within the San Diego Arc from November through December. In addition,
passive acoustic call detection data does not currently allow for
direct abundance estimates. Calls may indicate some level of blue whale
presence, but not abundance or individual residency time. In the most
recent Navy-funded passive acoustic monitoring report including the one
site in the northern San Diego Arc from June 2015 to April 2016, blue
whale call detection frequency near the San Diego Arc started declining
in November after an October peak (Rice et al., 2017,
[Scaron]irovi[cacute], personal communication). The Navy-funded
research on blue whale movements from 2014 to 2017 along the U.S. West
Coast based on satellite tagging, has shown that individual blue whale
movement is wide ranging with large distances covered daily (Mate et
al., 2017). Nineteen (19) blue whales were tagged in 2016, the most
recent reporting year available (Mate et al., 2017). Only 5 of the 19
blue whales spent time in the SOCAL portion of the HSTT Study Area, and
only spent a few days within the range complex (2-13 days). Average
distance from shore for
[[Page 41817]]
blue whales was 113 km. None of the 19 blue whales tagged in 2016 spent
time within the San Diego Arc. From previous year efforts (2014-2015),
only a few tagged blue whales passed through the San Diego Arc. In
addition, Navy and non-Navy-funded blue whale satellite tagging studies
started in the early 1990s and have continued irregularly through 2017.
In general, most blue whales start a south-bound migration from the
``summer foraging areas'' in the mid- to late-fall time period, unless
food has not been plentiful, which can lead to a much earlier migration
south. Therefore, while blue whales have been documented within the San
Diego Arc previously, individual use of the area is variable, likely of
short duration, and declining after October. Considering the newest
passive acoustic and satellite tagging data, there is no scientific
justification for extending the San Diego Arc Mitigation Area period
from October 31 to December 31.
Comment 47: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended limiting all MF1 use within the San Diego Arc
Mitigation Area. A Commenter also recommended NMFS should carefully
consider prohibiting use of other LFAS and MFAS during the time period
the San Diego Arc Mitigation Area is in place, and for the MTEs to be
planned for other months of the year.
Response: Based on further discussion between NMFS and the Navy in
consideration of the proposed mitigation presented in the 2018 HSTT
proposed rule, the Navy is now limiting MF1 surface ship hull-mounted
MFAS even further in the San Diego Arc Mitigation Area. The Navy will
not conduct more than 200 hrs of MF1 MFAS in the combined areas of the
San Diego Arc Mitigation Area and newly added San Nicolas Island and
Santa Monica/Long Beach Mitigation Areas. The Mitigation Measures
section of the 2018 HSTT final rule and Appendix K (Geographic
Mitigation Assessment) of the 2018 HSTT FEIS/OEIS discuss MFAS
restrictions within the San Diego Arc Mitigation Area. Other training
MFAS systems are likely to be used less frequently in the vicinity of
the San Diego Arc area than surface ship MFAS. Given water depths, the
San Diego Arc area is not conducive for large scale anti-submarine
warfare exercises, nor is it near areas where other anti-submarine
warfare training and testing occurs. Due to the presence of existing
Navy subareas in the southern part of the San Diego Arc, a limited
amount of helicopter dipping MFAS could occur. These designated range
areas are required for proximity to airfields in San Diego such as
Naval Air Station North Island and for airspace management. However,
helicopters only use these areas in the Arc for a Kilo Dip. A Kilo Dip
is a functional check of approximately 1-2 pings of active sonar to
confirm the system is operational before the helicopter heads to more
remote offshore training areas. This ensures proper system operation
and avoids loss of limited training time, expenditure of fuel, and
cumulative engine use in the event of equipment malfunction. The
potential effects of dipping sonar have been accounted for in the
rule's analysis. Dipping sonar is further discussed below in Comment
48.
Comment 48: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting the use of air-deployed MFAS in the
San Diego Arc Mitigation Area.
Response: The 2018 HSTT FEIS/OEIS and specifically Appendix K
(Geographic Mitigation Assessment) analyze MFAS and LFAS restrictions
within the San Diego Arc. Other sonar systems are used less frequently
in the vicinity of the San Diego Arc than surface ship MFAS. In regard
to the recommendation to prohibit ``air-deployed'' or dipping MFAS, the
only helicopter dipping sonar activity that would likely be conducted
in the San Diego Arc area is a Kilo Dip, which occurs relatively
infrequently and involves a functional check of approximately 1-2 pings
of active sonar before moving offshore beyond the San Diego Arc to
conduct the training activity. During use of this sonar, the Navy will
implement the procedural mitigation described in the Mitigation
Measures section of this rule. The Kilo Dip functional check needs to
occur close to Naval Air Station North Island in San Diego to ensure
all systems are functioning properly, before moving offshore. This
ensures proper system operation and avoids loss of limited training
time, expenditure of fuel, and cumulative engine use in the event of
equipment malfunction. The potential effects of dipping sonar have been
accounted for in the rule's analysis. Further, due to lower power
settings for dipping sonar, potential behavioral impact ranges of
dipping sonar are significantly lower than surface ship sonars. For
example, the HSTT average modeled range to temporary threshold shift of
dipping sonar for a 1-second ping on low-frequency cetacean (i.e., blue
whale) is 77 m (2018 HSTT FEIS/OEIS Table 3.7-7). This range is easily
monitored for large whales by a hovering helicopter and is accounted
for in the mitigation ranges for dipping sonars. Limited ping time and
lower power settings therefore would limit the impact from dipping
sonar to any marine mammal species. It should be pointed out that the
Commenter's recommendation is based on new behavioral response research
specific to beaked whales (Falcone et al., 2017). The Navy relied upon
the best science that was available to develop behavioral response
functions in consultation with NMFS for the 2018 HSTT FEIS/OEIS. The
article cited in the comment (Falcone et al., 2017) was not available
at the time the 2017 HSTT DEIS/OEIS was published. NMFS and the Navy
have reviewed the article and concur that neither this article nor any
other new information that has been published or otherwise conveyed
since the 2018 HSTT proposed rule was published would fundamentally
change the assessment of impacts or conclusions in the 2018 HSTT FEIS/
OEIS or in this rulemaking. Nonetheless, the new information and data
presented in the new article were thoroughly reviewed by the Navy and
will be quantitatively incorporated into future behavioral response
functions, as appropriate, when and if other new data that would
meaningfully change the functions would necessitate their revision. The
new information and data presented in the article was thoroughly
reviewed when it became available and further considered in discussions
with some of the paper's authors. Many of the variables requiring
further analysis for beaked whales and dipping sonar impact assessment
are still being researched under continued Navy funding through 2023.
The small portion of designated Kilo Dip areas that overlap the
southern part of the San Diego Arc is not of sufficient depth for
preferred habitat of beaked whales (see Figure 2.1-9 in the 2018 HSTT
FEIS/OEIS). Further, passive acoustic monitoring for the past several
years in the San Diego Arc confirms a lack of beaked whale detections
(Rice et al., 2017). Also, behavioral responses of beaked whales from
dipping and other sonars cannot be universally applied to other species
including blue whales. Navy-funded behavioral response studies of blue
whales to simulated surface ship sonar has demonstrated there are
distinct individual variations as well as strong behavioral state
considerations that influence any response or lack of response
(Goldbogen et al., 2013).
Comment 49: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended requiring vessel speed
[[Page 41818]]
restrictions within the San Diego Arc Mitigation Area.
Response: Previously, the Navy commissioned a vessel density and
speed report for the HSTT Study Area (CNA, 2016). Based on an analysis
of Navy ship traffic in the HSTT Study Area between 2011 and 2015,
median speed of all Navy vessels within Southern California is
typically already low, with median speeds between 5 and 12 kn (CNA,
2016). Slowest speeds occurred closer to the coast including the
general area of the San Diego Arc and approaches to San Diego Bay. The
presence and transits of commercial and recreational vessels, numbering
in the many hundreds, far outweighs the presence of Navy vessels.
Regarding strikes by vessels other than Navy vessels, two blue whale
ship strike deaths were observed during the most recent five-year
period of 2013-2017 (Carretta et al. 2019, final 2018 SARs). There were
no reported ship-strike related serious injuries during this time
period (Carretta et al. 2019). Observations of blue whale ship strikes
have been highly-variable in previous five-year periods, with as many
as 10 observed (nine deaths and one serious injury) during 2007-2011
(Carretta et al., 2013). The highest number of blue whale ship strikes
observed in a single year (2007) was five whales (Carretta et al.
2013). Additionally, ship strike mortality was estimated for blue
whales in the U.S. West Coast EEZ (Rockwood et al., 2017), using an
encounter theory model (Martin et al., 2016) that combined species
distribution models of whale density (Becker et al., 2016), vessel
traffic characteristics (size, speed, and spatial use), along with
whale movement patterns obtained from satellite-tagged whales in the
region to estimate encounters that would result in mortality and
predicted higher annual numbers of mortality. But as discussed in this
final rule, the SAR further cites to Monnahan et al. (2015), which used
a population dynamics model to estimate that the Eastern North Pacific
blue whale population was at 97 percent of carrying capacity in 2013
and to suggest that the observed lack of a population increase since
the early 1990s was explained by density dependence, not impacts from
ship strike. Ship strike in the West Coast EEZ continues to be complex
with vessel speeds, types, and routes of travel all contributing to
variability in ship traffic and animal vulnerability. That said, there
has been no confirmed Navy ship strike to a blue whale in the entire
Pacific over the 14-year period from 2005 to 2019. To minimize the
possibility of ship strike in the San Diego Arc Mitigation Area, the
Navy will implement procedural mitigation for vessel movements based on
guidance from NMFS for vessel strike avoidance. The Navy will also
issue seasonal awareness notification messages to all Navy vessels of
blue, fin, and gray whale occurrence to increase ships awareness of
marine mammal presence as a means of improving detection and avoidance
of whales in SOCAL. When developing the mitigation for the 2018 HSTT
final rule, NMFS and the Navy analyzed the potential for implementing
additional types of mitigation, such as developing 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 under the planned activities, vessel speed restrictions
would be incompatible with the practicability assessment criteria for
safety, sustainability, and Title 10 requirements, as described in
Section 5.3.4.1 (Vessel Movement) of the 2018 HSTT FEIS/OEIS.
Comment 50: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting the use of air-deployed MFAS in the
Santa Barbara Island Mitigation Area.
Response: The Commenter's request to prohibit ``air-deployed'' MFAS
is based on one paper (Falcone et al., 2017), which is a Navy-funded
project designed to study behavioral responses of a single species,
Cuvier's beaked whales, to MFAS. The Navy in consultation with NMFS
relied upon the best science that was available to develop behavioral
response functions for beaked whales and other marine mammals for the
2018 HSTT FEIS/OEIS. NMFS and the Navy have reviewed the article and
concur that neither this article (Falcone et al., 2017) nor any other
new information that has been published or otherwise conveyed since the
2018 HSTT proposed rule was published would fundamentally change the
assessment of impacts or conclusions in the 2018 HSTT FEIS/OEIS or in
this rulemaking. Nonetheless, the new information and data presented in
the new article were thoroughly reviewed by the Navy and will be
quantitatively incorporated into future behavioral response functions,
as appropriate, when and if other new data that would meaningfully
change the functions would necessitate their revision. Many of the
variables requiring further analysis for beaked whales and dipping
sonar impact assessment are still being researched under continued Navy
funding through 2023.
Behavioral responses of beaked whales from dipping and other sonars
cannot be universally applied to other marine mammal species. For
example, Navy-funded behavioral response studies of blue whales to
simulated surface ship sonar has demonstrated there are distinct
individual variations as well as strong behavioral state considerations
that influence any response or lack of response (Goldbogen et al.,
2013). The same conclusion on the importance of exposure and behavioral
context was stressed by Harris et al. (2017). Therefore, it is expected
that other species would also have highly variable individual responses
ranging from some response to no response to any anthropogenic sound.
This variability is accounted for in the current behavioral response
curves described in the 2018 HSTT FEIS/OEIS and supporting technical
reports, and used by NMFS in the MMPA rule.
The potential effects of dipping sonar have been rigorously
accounted for in the analysis. Parameters such as power level and
propagation range for typical dipping sonar use are factored into HSTT
acoustic impact analysis along with guild specific criteria and other
modeling variables as detailed in the 2018 HSTT FEIS/OEIS and
associated technical reports for criteria and acoustic modeling. Due to
lower power settings for dipping sonar, potential impact ranges of
dipping sonar are significantly lower than surface ship sonars. For
example, the HSTT average modeled range to temporary threshold shift of
dipping sonar for a 1-second ping on low-frequency cetacean (i.e., blue
whale) is 77 m, and for mid-frequency cetaceans including beaked whales
is 22 m (2018 HSTT FEIS/OEIS Table 3.7-7). This range is monitored for
marine mammals by a hovering helicopter and is accounted for in the
mitigation ranges for dipping sonars (200 yd or 183 m). Limited ping
time and lower power settings therefore would limit the impact from
dipping sonar to any marine mammal species.
For other marine mammal species, the small area around Santa
Barbara Island does not have resident marine mammals, identified
biologically important areas, nor is it identified as a breeding or
persistent foraging location for cetaceans. Instead, the same marine
mammals that range throughout the offshore Southern California area
could pass at some point through the marine waters of Santa Barbara
Island. As discussed in the mitigation section of the rule, the Navy
will implement (and is currently implementing) year-round limitations
to MFAS and larger
[[Page 41819]]
explosive use. The Navy will not use MF1 surface ship hull-mounted MFAS
during training or testing, or explosives that could potentially result
in the take of marine mammals during medium-caliber or large-caliber
gunnery, torpedo, bombing, and missile (including 2.75-in rockets)
activities during training in the Santa Barbara Island Mitigation Area.
Other MFAS systems within SOCAL are used less frequently than surface
ship sonars, and more importantly are of much lower power with
correspondingly lower propagation ranges and reduced potential
behavioral impacts.
Comment 51: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting other sources of MFAS in the Santa
Barbara Mitigation Area.
Response: Appendix K (Geographic Mitigation Assessment) of the 2018
HSTT FEIS/OEIS, which NMFS reviewed, concurred with, and used to
support our MMPA least practicable adverse impact analysis, discusses
the Navy's analysis of MFAS restrictions around Santa Barbara Island.
Other training MFAS systems are likely to be used less frequently in
the vicinity of Santa Barbara Island than surface ship MFASs. Although
not prohibiting the use of other sources of MFAS, the Navy will not use
MF1 surface ship hull-mounted MFAS during training or testing, or
explosives that could potentially result in the take of marine mammals
during medium-caliber or large-caliber gunnery, torpedo, bombing, and
missile (including 2.75-in rockets) activities during training in the
Santa Barbara Island Mitigation Area.
The relatively small area surrounding the Santa Barbara Island
Mitigation Area represents less than 0.08 percent of the entire HSTT
SOCAL area. An even smaller portion of this area meets the
scientifically accepted minimum depth criteria expected for beaked
whale habitat, in Southern California usually greater than 800 m. The
bathymetric area greater than 800 m depth and within the Santa Barbara
Island Mitigation Area is approximately 24 square Nmi (26 percent of
the total Mitigation Area spatial extent or only 0.02 percent of the
total HSTT SOCAL area). Beaked whale monitoring at other locations
within SOCAL have shown that even in ocean basins thought to have
Cuvier's beaked whale sub-population, there is still quite a bit of
variation in occurrence and movement of beaked whales within a given
basin (Schorr et al., 2017, 2018, 2020). The small area around Santa
Barbara Island is not known to have resident marine mammals, formally
identified biologically important areas, nor is it identified as a
breeding or persistent foraging location for cetaceans. Instead, the
same marine mammals that range throughout the offshore Southern
California area could pass at some point through the marine waters of
Santa Barbara Island. As discussed in this rule the Navy is
implementing year-round limitations to MFAS and larger explosive use.
Other MFAS systems for which the Navy sought coverage within SOCAL are
used less frequently than surface ship sonars, and more importantly are
of much lower power with correspondingly lower propagation ranges and
reduced potential behavioral impacts. Therefore, further limitations of
active sonars within this area are not anticipated to be meaningfully
more protective to marine mammal populations than existing mitigation
measures within the entire SOCAL portion of the HSTT Study Area.
Comment 52: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended implementing vessel speed restrictions in the
Santa Barbara Island Mitigation Area (Channel Islands Sanctuary
Cautionary Area).
Response: The Channel Islands Sanctuary Cautionary Area was renamed
the Santa Barbara Island Mitigation Area for the rule. All locations
within the HSTT Study Area have been used for Navy training and testing
for decades. There has not been any Navy ship strike to marine mammals
in SOCAL over the 10-year period from 2010-2019, and there has never
been a Navy strike within the boundary of the Channel Islands National
Marine Sanctuary over the course of strike record collection dating
back 20 years. Therefore, ship strike risk to marine mammals transiting
the Santa Barbara Island Mitigation Area is minimal. Additionally, as
discussed in this rule, the 2018 HSTT final rule, and the 2018 HSTT
FEIS/OEIS Section 3.7.3.4.1 (Impacts from Vessels and In-Water Devices)
and Appendix K (Geographic Mitigation Assessment), there are important
differences between most Navy vessels and their operation and
commercial ships that individually make Navy vessels much less likely
to strike a whale. Navy vessels already operate at lower speeds given a
particular transit or activity need. Mitigation measures include a
provision to avoid large whales by 500 yd, so long as safety of
navigation and safety of operations is maintained. Previously, the Navy
commissioned a vessel density and speed report for HSTT (CNA, 2016).
Based on an analysis of Navy ship traffic in HSTT between 2011 and
2015, the average speed of all Navy vessels within Southern California
is typically already low, with median speeds between 5 and 12 kn (CNA,
2016). Slowest speeds occurred closer to the coast and islands. Given
the history of no documented Navy ship strikes over the last 10 years
(2010-2019) throughout SOCAL during Navy activities, lack of
significant and repeated use of the small portion of waters within the
Santa Barbara Island Mitigation Area by marine mammals, anticipated low
individual residency times within the Santa Barbara Island Mitigation
Area, application of mitigation and protective measures as outlined in
this rule and the 2018 HSTT final rule, documented lower speeds Navy
vessels already navigate by, detailed assessments of realistic training
and testing requirements, and potential impacts of further
restrictions, NMFS has determined that vessel speed restrictions in the
Santa Barbara Island Mitigation Area are not warranted.
Comment 53: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended additional mitigation areas for important beaked
whale habitat in the Southern California Bight. The Commenter asserted
that it is important to focus substantial management efforts on beaked
whales within the Navy's SOCAL Range Complex, which sees the greatest
annual amount of sonar and explosives activity of any Navy range in the
Pacific.
Response: The basis for this comment includes incorrect or outdated
information or information that does not reflect the environment
present in the HSTT Study Area, such as, ``. . . beaked whale
populations in the California Current have shown significant, possibly
drastic declines in abundance over the last twenty years.'' The
citation provided in the footnote to the comment and postulated
``decline'' was for beaked whales up until 2008 (which does not take
into account information from the last 10 years) and was a postulated
trend for the entire U.S. West Coast, not data which is specific to the
HSTT Study Area. As noted in Section 3.7.3.1.1.7 (Long-Term
Consequences) of the 2018 HSTT FEIS/OEIS, the postulated decline was in
fact not present within the SOCAL portion of the HSTT Study Area, where
abundances of beaked whales have remained higher than other locations
off the U.S. West Coast. In addition, the authors of the 2013 citation
(Moore and Barlow, 2013) have published trends based on survey data
gathered since 2008 for beaked whales in the California Current, which
now includes the highest abundance estimate in the history of these
surveys (Barlow 2016; Carretta et al., 2017; Moore and Barlow,
[[Page 41820]]
2017). Also, when considering the portion of the beaked whale
population within the SOCAL portion of the HSTT Study Area and as
presented in the 2018 HSTT FEIS/OEIS, multiple studies have documented
continued high abundance of beaked whales and the long-term residency
of documented individual beaked whales, specifically where the Navy has
been training and testing for decades (see for example Debich et al.,
2015a, 2015b; Dimarzio et al., 2018, 2020; Falcone and Schorr, 2012,
2014, 2018, 2020; Hildebrand et al., 2009; Moretti, 2016;
[Scaron]irovi[cacute] et al., 2016; Smultea and Jefferson, 2014). There
is no evidence that there have been any population-level impacts to
beaked whales resulting from Navy training and testing in the SOCAL
portion of the HSTT Study Area. NMFS and the Navy considered additional
geographic mitigation for beaked whales in the Southern California
Bight, as described in Appendix K (Geographic Mitigation Assessment),
Section K.7.2 (Southern California Public Comment Mitigation Area
Assessment) and specifically Section K.7.2.7 (Northern Catalina Basin
and the San Clemente Basin) of the 2018 HSTT FEIS/OEIS, which NMFS used
in support of this rule. See Chapter 5 (Mitigation), Section 5.4.1.2
(Mitigation Area Assessment) of the 2018 HSTT FEIS/OEIS for additional
details regarding the assessments of areas considered for mitigation.
Comment 54: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended additional mitigation areas in the San Nicolas
Basin. The Commenter noted that the settlement agreement established a
``refuge'' from sonar and explosives activities in a portion of the
whales' secondary habitat, outside the Southern California Anti-
submarine Warfare Range (SOAR), with more management effort being
necessary in the long term. The Commenter recommended at a minimum that
NMFS should prescribe the ``refuge'' during the next five-year
operation period and should consider all possible habitat-based
management efforts, including but not limited to the expansion of this
area further south towards SOAR, to address impacts on the small
population of Cuvier's beaked whales associated with San Clemente
Island.
Response: NMFS and the Navy considered additional geographic
mitigation for beaked whales in the San Nicolas Basin, as described in
Appendix K (Geographic Mitigation Assessment), Section K.7.2 (Southern
California Public Comment Mitigation Area Assessment), and specifically
Section K.7.2.1 (San Nicolas Basin) of the 2018 HSTT FEIS/OEIS, which
NMFS reviewed, concurred with, and used to support the mitigation
analysis in the rule. See Chapter 5 (Mitigation), Section 5.4.1.2
(Mitigation Area Assessment) of the 2018 HSTT FEIS/OEIS for additional
details regarding the assessments of areas considered for mitigation.
Further, the Mitigation Measures, Brief Comparison of 2015 Settlement
Mitigation and Final HSTT Mitigation in the Rule section of the 2018
HSTT final rule explicitly discusses NMFS consideration of mitigation
that was included in the settlement agreement versus what was included
in the final rule in the context of the MMPA least practicable adverse
impact standard.
Within the San Nicolas Basin, there is a documented, recurring
number of Cuvier's beaked whales strongly indicating that the Navy's
activities are not having a population-level impact on this species.
This is supported by repeated visual re-sighting rates of individuals,
sightings of calves and, more importantly, reproductive females, and
passive acoustic assessments of steady vocalization rates and abundance
over at least the most recent seven-year interval. It is incorrect to
conclude that there is a ``population sink,'' such as has been seen on
the Navy's AUTEC range. In the citation provided (Claridge, 2013), that
statement is merely a hypothesis, yet to be demonstrated.
The Navy has been funding Cuvier's beaked whale research
specifically in the San Nicolas Basin since 2006. This research is
planned to continue through the duration of this MMPA authorization.
Cumulative from 2006 to 2016, over 170 individual Cuvier's beaked
whales have been catalogued within the San Nicolas Basin. Schorr et al.
(2018) stated for the field season from 2016 to 2017 that:
Identification photos of suitable quality were collected from 69 of the
estimated 81 individual Cuvier's beaked whales encountered in 2016-
2017. These represented 48 unique individuals, with eight of these
whales sighted on two different days, and another three on three
different days during the study period. Nineteen (39 percent) of these
whales had been sighted in previous years. Many more whales identified
in 2016 had been sighted in a previous year (16/28 individuals, 57
percent), compared to 2017 (5/22 individuals, 23 percent), though both
years had sightings of whales seen as early as 2007. There were three
adult females photographed in 2016 that had been sighted with calves in
previous years, one of which was associated with her second calf.
Additionally, a fourth adult female, first identified in 2015 without a
calf, was subsequently sighted with a calf. The latter whale was
sighted for a third consecutive year in 2017, this time without a calf,
along with two other adult females with calves who had not been
previously sighted. These sightings of known reproductive females with
and without calves over time (n = 45) are providing critically needed
calving and weaning rate data for Population Consequences of
Disturbance (PcoD) models currently being developed for this species on
SOAR.
From August 2010 through October 2019, an estimate of overall
abundance of Cuvier's beaked whales at the Navy's instrumented range in
San Nicolas Basin was obtained using new dive-counting acoustic methods
and an archive of passive acoustic M3R data representing 49,855 hours
of data (DiMarzio et al., 2020). Over the 10-year interval from 2010-
2019, there was no observed change and perhaps a slight increase in
annual Cuvier's beaked whale abundance within San Nicolas Basin
(DiMarzio et al., 2020). There does appear to be a repeated dip in
population numbers and associated echolocation clicks during the fall
centered around August and September (DiMarzio et al., 2020; Moretti,
2017). A similar August and September dip was noted by researchers
using stand-alone off-range bottom passive acoustic devices in Southern
California (Rice et al., 2017, 2019, 2020; [Scaron]irovi[cacute] et
al., 2016). This dip in abundance documented over 10 years of
monitoring may be tied to some as of yet unknown population dynamic or
oceanographic and prey availability dynamic. It is unknown
scientifically if this represents a movement to different areas by
parts of the population, or a change in behavioral states without
movement (i.e., breeding versus foraging). Navy training and testing
events are spatially and temporally spread out across the SOCAL portion
of the HSTT Study Area. In some years events occur in the fall, yet in
other years events do not. Yet, the same dip has consistently been
observed lending further evidence this is likely a population
biological function.
Comment 55: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended additional mitigation areas in the Santa Catalina
Basin. A Commenter commented that there is likely a small, resident
population of Cuvier's beaked whales that resides in the Santa Catalina
Basin and that this population is subject to regular acoustic
disturbance due to the presence of the Shore Bombardment Area (SHOBA)
and 3803XX. The population may also be exposed to training activities
that
[[Page 41821]]
occupy waters between Santa Catalina and San Clemente Islands. Similar
to the San Nicolas population, the settlement agreement established a
``refuge'' from sonar and explosives activities in the northern portion
of the Santa Catalina Basin. A Commenter recommended that, at a
minimum, the Navy should carefully consider implementing the ``refuge''
during the next five-year authorization period and should continue to
consider all possible habitat-based management efforts to address
impacts on the population.
Response: The water space areas mentioned in the comment as
``(SHOBA)'' off the southern end of San Clemente Island are waters
designated as Federal Danger and Safety Zones via formal rulemaking
(Danger Zone--33 CFR 334.950 and Safety Zone--33 CFR 165.1141) because
they are adjacent to the shore bombardment impact area that is on land
at the southern end of San Clemente Island. Waters designated as
``3803XX,'' which are associated with the Wilson Cove anchorages and
moorings, where ship calibration tests, sonobuoy lot testing, and
special projects take place, are designated as Federal Safety and
Restricted Zones via formal rulemaking (Safety Zone--33 CFR 165.1141
and Restricted Zone--33 CFR 334.920).
The comment states a concern that a population of Cuvier's beaked
whale is, ``subject to regular acoustic disturbance due to the presence
of the Shore Bombardment Area,'' is not correct. The SHOBA is a naval
gun impact area located on land at the southern end of San Clemente
Island. This area is an instrumented land training range used for a
variety of bombardment training and testing activities. The in-water
administrative boundary for SHOBA does not delineate the locations
where a ship firing at land targets must be located and does not
represent where gunfire rounds are targeted. The water area in Santa
Catalina Basin is a controlled safety zone in the very unlikely event a
round goes over the island and lands in the water. With the modern
advent of better precision munitions, computers, and advanced fire
control, that probability is very remote. Navy vessels use the waters
south of San Clemente Island (SHOBA West and SHOBA East) from which to
fire into land targets on southern San Clemente Island (see the 2018
HSTT FEIS/OEIS Figure 2.1-7). Therefore, there would not be any
underwater acoustic disturbance to Cuvier's beaked whales located
within the Santa Catalina Basin from in-water explosives or ship
firing. Further, the Mitigation Measures subsection, Brief Comparison
of 2015 Settlement Mitigation and Final HSTT Mitigation in the Rule
section, of the 2018 HSTT final rule explicitly discusses NMFS'
consideration of mitigation that was included in the settlement
agreement versus what was included in the final rule in the context of
the MMPA least practicable adverse impact standard.
Comment 56: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended additional mitigation areas for the southernmost
edge of the California Current, west of Tanner and Cortes Banks. In
light of the importance of the Southernmost edge of the California
Current, west of Tanner and Cortes banks, Commenters recommend
assessing the designation of the southern offshore waters of the
Southern California Bight as a seasonal time-area management area for
Cuvier's beaked whales between November and June. The approximate
coordinates are 32.75 N., 119.46 W (referenced as Site E). As part of
this assessment, the Commenter recommended that the boundaries be
refined via expert consideration of acoustic and other relevant
information pertaining to beaked whale biology and bathymetric and
oceanographic data.
Response: Baumann-Pickering et al. (2014a, b, 2015), as the
Commenter referenced, did not specify this area as biologically
important and the author's data only indicated there have been
detections of the Cuvier's beaked whales within this area. Further, the
species is widely distributed within Southern California and across the
Pacific with almost all suitable deep water habitat greater than 800 m
in Southern California conceivably containing Cuvier's beaked whales.
Only limited population vital rates exist for beaked whales, covering
numbers of animals, populations vs. subpopulations determination, and
residency time for individual animals (Schorr et al., 2017, 2018). The
science of passive acoustic monitoring is positioned to answer some
questions on occurrence and seasonality of beaked whales, but cannot as
of yet address all fundamental population parameters including
individual residency time.
Furthermore, while passive acoustic monitoring within Southern
California has been ongoing for 28 years, with many sites funded by the
Navy, not all sites have been consecutively monitored for each year.
All of the single bottom-mounted passive acoustic devices used for the
analysis by Baumann-Pickering et al. (2014a, b, 2015), and used in the
comment to support its argument, are not continuous and have various
periodicities from which data have been collected. Specifically,
devices have been deployed and removed from various locations with some
sites having multiple years of data, and others significantly less,
with perhaps just a few months out of a year. For instance, Site E,
located west of Tanner and Cortes Banks and used by the Commenter to
justify restrictions in this area, was only monitored for 322 days from
September 2006 through July 2009 (obtaining slightly less than a full
year's worth of data).
Site E was also used again for another 63 days from Dec 2010
through February 2011. During this second monitoring period at Site E,
Gassman et al. (2015) reported detection of only three Cuvier's beaked
whales over six separate encounters with time intervals of 10-33
minutes. As sources of data associated with a single monitoring point,
the two monitoring episodes conducted at Site E may not be indicative
of Cuvier's beaked whale presence at other locations within Southern
California, which lack comparable monitoring devices. Nor would they be
indicative of overall importance or lack of importance of the area west
of Tanner and Cortes Banks. Further, more recent acoustic sampling of
bathymetrically featureless areas off Southern California with drifting
hydrophones conducted by NMFS, detected many beaked whales over abyssal
plains and not associated with slope or seamount features. This
counters a common misperception that beaked whales are primarily found
over slope waters, in deep basins, or over seamounts (Griffins and
Barlow, 2016).
Most importantly, older passive acoustic data prior to 2009 may not
be indicative of current or future occurrence of beaked whales,
especially in terms of potential impact of climate change on species
distributions within Southern California. To summarize, these limited
periods of monitoring (322 days in a three-year period prior to 2010
and 63 days in 2011) may or may not be reflective of current beaked
whale distributions within Southern California and into the future.
Furthermore, passive acoustic-only detection of beaked whales, without
additional population parameters, can only determine relative
occurrence, which could be highly variable over sub-regions and through
time.
While Cuvier's beaked whales have been detected west of Tanner and
Cortes Banks, as noted above this species is also detected in most all
Southern California locations greater than 800 m in depth. Furthermore,
the Navy has been training and testing in and around Tanner and Cortes
Banks with the same
[[Page 41822]]
basic systems for over 40 years, with no evidence of any adverse
impacts having occurred. Further, there are no indications that Navy
training and testing in the SOCAL portion of the HSTT Study Area has
had any adverse impacts on populations of beaked whales in Southern
California. In particular, a reoccurring population of Cuvier's beaked
whales co-exists within San Nicolas Basin to the east, an area with
significantly more in-water sonar use than west of Tanner and Cortes
Banks.
To gain further knowledge on the presence of beaked whales in
Southern California, the Navy continues to fund additional passive
acoustic field monitoring, as well as research advancements for density
derivation from passive acoustic data. For the five-year period from
2013 to 2019, U.S. Pacific Fleet on behalf of the U.S. Navy funded $18
million in marine species monitoring within Hawaii and Southern
California. Specifically, in terms of beaked whales, the Navy has been
funding beaked whale population dynamics, tagging, and passive acoustic
studies within the HSTT Study Area since 2007 (DiMarzio et al., 2018,
2019, 2020; Moretti, 2017; Rice et al., 2017, 2018, 2019, 2020; Schorr
et al., 2017, 2018, 2019, 2020; [Scaron]irovi[cacute], et al., 2017).
Variations of these efforts are planned to continue through the
duration of the seven-year rule using a variety of passive acoustic,
visual, tagging, photo ID, and genetics research tools. This Navy
effort is in addition and complementary to any planned NMFS efforts for
beaked whales and other marine mammals. For instance, the Navy co-
funded with NMFS and the Bureau of Ocean Energy Management a summer-
fall 2018 visual and passive acoustic survey along the U.S. West Coast
and off Baja Mexico (Henry et al. in press). New passive detection
technologies focusing on beaked whales were deployed during these
surveys (similar to Griffiths and Barlow, 2016). The Navy continues
SOCAL beaked whale occurrence and impact studies with additional effort
anticipated through 2020.
Analysis of the southernmost edge of the California Current, west
of Tanner-Cortes Bank and the presence of Cuvier's beaked whales was
addressed in Appendix K (Geographic Mitigation Assessment), Section
K.7.2.4 (Southernmost Edge of California Current, West of Tanner-Cortes
Bank), and Section K.7.2.6 (Cuvier's Beaked Whale Habitat Areas
Mitigation Assessment) of the 2018 HSTT FEIS/OEIS, which NMFS used to
support its mitigation analysis described in this final rule. Also see
Chapter 3, Section 3.7.2.3.24 (Cuvier's Beaked Whale (Ziphius
cavirostris)) of the 2018 HSTT FEIS/OEIS for additional information
regarding this species.
As noted in Appendix K (Geographic Mitigation Assessment), the
waters west of Tanner and Cortes Banks are also critical to the Navy's
training and testing activities; therefore, it is not practicable to
preclude activities within that water space in the SOCAL portion of the
HSTT Study Area. Reasonable mitigation measures, as discussed in
Appendix K (Geographic Mitigation Assessment), would limit the impact
of training and testing on marine mammals, and especially beaked
whales, in this area. In addition, with new deployments of HARP buoys
from 2019-2021, the Navy has expanded passive acoustic monitoring for
beaked whales to include new areas west of Tanner Bank and areas off
Baja Mexico.
Given that there is no evidence that Navy training and testing
activities are having significant impacts to populations of beaked
whales anywhere in the SOCAL portion of the HSTT Study Area, the
uncertainty of current use by Cuvier's beaked whales of the area west
of Tanner and Cortes Banks, the fact that general occurrence of beaked
whales in Southern California may not necessarily equate to factors
typically associated with biologically important areas, and
consideration of the importance of Navy training and testing activities
in the areas around Tanner and Cortes Banks discussed in Appendix K
(Geographic Mitigation Assessment) of the 2018 HSTT FEIS/OEIS,
additional geographic mitigation specifically for the area west of
Tanner and Cortes Banks is not warranted.
As noted in Appendix K (Geographic Mitigation Assessment) and
Chapter 5 (Mitigation), Section 5.3 (Procedural Mitigation to be
Implemented) of the 2018 HSTT FEIS/OEIS, the Navy will continue to
implement procedural mitigation measures throughout the HSTT Study
Area.
Comment 57: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that the same long-term passive acoustic study of the
Southern California Bight as discussed for Cuvier's beaked whales above
in Comment 56 also suggests that southern-central waters represent
biologically important habitat for Perrin's beaked whale. The Commenter
recommended that the Northern Catalina Basin and the waters southeast
of Santa Catalina Island (approximate coordinates of 33.28 N, -118.25
W), and the San Clemente Basin (approximate coordinates of 32.52 N, -
118.32 W), both based on location of HARP deployments (referenced as
sites ``A'' and ``S''), be considered as management areas for Perrin's
beaked whales. The Commenter recommended that the boundaries of any
restrictions be established via expert consideration.
Response: All of the single bottom-mounted passive acoustic devices
used for the analysis by Baumann-Pickering et al. (2014b) and used by
the Commenter to support their argument are not continuous and have
various periodicities for which data have been collected. As single
point sources of data, these passive acoustic devices may not be
indicative of Perrin's beaked whale presence at other locations within
Southern California without comparable devices. Nor would older data
prior to 2009 be indicative of current or future occurrence especially
in terms of potential impact of climate change on species
distributions.
Navy-funded passive acoustic monitoring within the SOCAL portion of
the HSTT Study Area has been ongoing for the past 21 years, but not all
areas are monitored continuously, and devices have been deployed and
removed from various locations. Santa Catalina Basin was only monitored
from August 2005 to July 2009. Santa Catalina Basin has not been
monitored under Navy funding since 2009 because other areas in Southern
California were prioritized for passive acoustic device placement by
the researchers. For San Clemente Island, the single monitoring site
``S'' used in Baumann-Pickering et al. (2014b) and cited as the source
of the comment's claim for San Clemente Basin was only deployed for a
limited time of approximately 1.5 years, resulting in 409 days of data
(September 2009-May 2011). For both sites combined, only 41 hours of
BW43 signal types were detected over a cumulative approximately five-
and-a-half years of monitoring. The 41 hours of BW43 detections
therefore only represents a small fraction of overall recording time
(less than 1 percent).
The beaked whale signal type detected called BW43 has been
suggested as coming from Perrin's beaked whales (Baumann-Pickering et
al., 2014b), but not yet conclusively and scientifically confirmed.
A different Navy-funded single site south of San Clemente Island
within the San Clemente Basin has had a passive acoustic device in
place from July 2014 through current. [Scaron]irovi[cacute] et al.
(2016) and Rice et al. (2017) contain the most current results from San
Clemente Basin site ``N.'' While [Scaron]irovi[cacute] et al. (2016)
and Rice et al. (2017) do report periodic passive acoustic detections
of
[[Page 41823]]
Mesoplodon beaked whales thought to be Perrin's beaked whale in San
Clemente Basin, the overall detection rate, periodicity, and occurrence
has not been high. Between May 2015 and June 2016, there were only
seven weeks in which potential Perrin's beaked whale echolocation
clicks were detected, with each week having less than 0.14 hours/week
of detections. Acoustic sampling of bathymetrically featureless areas
off Southern California with drifting hydrophones by NMFS detected many
beaked whales over abyssal plains and not always associated with slope
or seamount features, which counters a common misperception that beaked
whales are primarily found over slope waters, in deep basins, or over
seamounts (Griffins and Barlow, 2016). One of these devices was
deployed within the SOCAL portion of the HSTT Study Area. In addition,
analysis of NMFS visual survey data from 2014, the most recent year
available, showed an increase in Mesoplodon beaked whales along the
entire U.S. West Coast, which the authors attributed to an influx of
tropical species of Mesoplodon during the unusually warm water
condition that year (Barlow, 2016; Moore and Barlow, 2017). Perrin's
beaked whale, part of the Mesoplodon guild, could be part of these
sightings. In summary, San Clemente Basin and Santa Catalina Basin with
similar low passive acoustic detection rates are likely to be part of
Perrin beaked whale's general distribution along the U.S. West Coast
and in particular Southern California and Baja Mexico. This
distribution is likely to be wide ranging for Perrin's beaked whales as
a species and highly correlated to annual oceanographic conditions.
Santa Catalina and San Clemente basins do have infrequent suspected
Perrin's beaked whale passive acoustic detections from a limited number
of devices, but these areas may not specifically represent unique high
occurrence locations warranting geographic protection beyond existing
Navy protective measures. Current funded Navy passive acoustic
monitoring for beaked whales continues to report limited BW43
detections (Rice et al. 2017, 2018, 2019, 2020).
The Navy has been training and testing in and around the Northern
Catalina Basin and waters southeast of Santa Catalina Island with the
same systems for over 40 years, and there is no evidence of any adverse
impacts having occurred and no indications that Navy training and
testing has had any adverse impacts on populations of beaked whales in
Southern California. The main source of anthropogenic noise in the
Catalina Basin and waters south of San Clemente Island are associated
with commercial vessel traffic concentrated in the northbound and
southbound lanes of the San Pedro Channel that runs next to Santa
Catalina Island and leads to and from the ports of Los Angeles/Long
Beach and other commercial traffic from San Diego and ports to the
north and south of Southern California. These waters in and around
Northern Catalina Basin and waters southeast of Santa Catalina Island
are critical to the Navy's training and testing activities, and so it
is not practicable to limit or reduce access or preclude activities
within that water space in the SOCAL portion of the HSTT Study Area.
NMFS and the Navy considered the Santa Catalina Basin area and
Perrin's beaked whales, as described in Appendix K (Geographic
Mitigation Assessment), Section K.7.2.3 (Catalina Basin) and K.7.2.7
(Northern Catalina Basin and the San Clemente Basin) of the 2018 HSTT
FEIS/OEIS. Also see Appendix K (Geographic Mitigation Assessment),
Section K.7.2.7.2 (Northern Catalina Basin and Waters Southeast of
Catalina Island Perrin's Beaked Whale Habitat Mitigation
Considerations) of the 2018 HSTT FEIS/OEIS for additional information
regarding this species. Additional limitations as discussed in Appendix
K (Geographic Mitigation Assessment) would limit training and impact
readiness. Given that there is no evidence of impacts to the population
of beaked whales in the area, and low potential occurrence of Perrin's
beaked whales in the Southern California portion of the HSTT Study
Area, geographic mitigation would not effectively balance a reduction
of biological impacts with an acceptable level of impact on military
readiness activities and, 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. As noted in
Appendix K (Geographic Mitigation Assessment) and Chapter 5, Section
5.3 (Procedural Mitigation to be Implemented) of the 2018 HSTT FEIS/
OEIS, the Navy will continue to implement procedural mitigation
measures throughout the HSTT Study Area.
Comment 58: In a comment on the 2018 HSTT proposed rule, Commenters
recommended additional mitigation areas for important fin whale habitat
off Southern California. The Commenters recommended that the waters
between the 200 m and 1,000 m isobaths be assessed for time-area
management so that, at minimum, ship strike awareness measures for fin
whales can be implemented during the months of November through
February, when the whales aggregate in the area.
Response: As described and detailed in the 2018 HSTT FEIS/OEIS, the
Navy implements a number of ship-strike risk reduction measures for all
vessels, in all locations and seasons, and for all marine mammal
species. New research by [Scaron]irovi[cacute] et al. (2017) supports a
hypothesis that between the Gulf of California and Southern California,
there could be up to four distinct sub-populations based on fin whale
call types, including a Southern California resident population. There
is also evidence that there can be both sub-population shifts and
overlap within Southern California ([Scaron]irovi[cacute] et al.,
2017). Scales et al. (2017) also postulated two Southern California
sub-populations of fin whales based on satellite tagging and habitat
modeling. Scales et al. (2017) stated that some fin whales may not
follow the typical baleen whale migration paradigm, with some
individuals found in both warm, shallow nearshore waters less than 500
m, and deeper cool waters over complex seafloor topographies.
Collectively, the author's spatial habitat models with highest
predicted occurrence for fin whales cover the entire core training and
testing portion of the SOCAL portion of the HSTT Study Area, not just
areas between 200 and 1,000 m. Results from Navy-funded long-term
satellite tagging of fin whales in Southern and Central California
still shows some individual fin whales engage in wide-ranging movements
along the U.S. West Coast, as well as large daily movements well within
subareas (Mate et al., 2017; Schorr et al., 2020). In support of
further refining the science on Southern California fin whales, Falcone
and Schorr (2014) examined fin whale movements through photo ID and
short-to-medium term (days-to-several weeks) satellite tag tracking
under funding from the Navy. The authors conducted small boat surveys
from June 2010 through January 2014, approximately three-and-a-half
years. Of interest in terms of the comment and the 200-1,000 m isobaths
occurrence, more fin whale tag locations were reported off the Palos
Verdes Peninsula and off of the Los Angeles/Long Beach commercial
shipping ports in fall, both areas north of and outside of the Navy's
SOCAL Range Complex. Compared to the above areas, there were not as
many tag locations in the similar isobaths region off San Diego
associated
[[Page 41824]]
with the Navy range area. Falcone and Schorr (2014) did document an
apparent inshore-offshore distribution between Winter-Spring and
Summer-Fall. Given the apparent resident nature of some fin whales in
Southern California as discussed in Falcone and Schorr (2014), Scales
et al. (2017), and [Scaron]irovi[cacute] et al. (2017), it remains
uncertain if the inshore-offshore seasonal pattern as well as sub-
population occurrence will persist into the future, or if fin whales
will change distribution based on oceanographic impacts on available
prey (e.g. El Nino, climate change, etc.). The efforts from Falcone and
Schorr on fin whales began in 2010, and Navy monitoring funding to
further refine fin whale population structure and occurrence within
Southern California is planned to continue for the duration of this
rule.
The data from the various single bottom-mounted passive acoustic
devices used in the analysis to support this comment are not continuous
and have various periodicities for which data have been collected. Many
of these devices are purposely placed in 200-1,000 m of water. Given
these are point sources of data, they may or may not be indicative of
fin whale calling or presence at other locations within Southern
California without devices. Passive acoustic analysis is only useful
for those individuals that are calling and may not indicate total
population occurrence. Low-frequency fin whale calls by their very
nature have relatively long underwater propagation ranges so detections
at a single device could account for individuals 10-50 miles away if
not further, depending on local propagation conditions. This would mean
calling whales are not in the 200-1,000 m area. [Scaron]irovi[cacute]
et al. (2015) acknowledge in discussing their data biases, that their
use of ``call index'' may best indicate a period of peak calling. But
fin whales produce multiple call types depending on behavioral state.
Based on technology limitations, some fin whale call types were not
included in [Scaron]irovi[cacute] et al. (2015). The following are
factors supporting NMFS' determination that ship speed reduction is
specifically not warranted in this area.
1. The study cited by a Commenter ([Scaron]irovi[cacute] et al.,
2015) and used as the basis for ``Figure 3'' concerns trends seen
within the Southern California Bight, not exclusively the SOCAL Range
Complex;
2. The research used as the basis for Figure 3 was funded by the
Navy to develop baseline information for the areas where Navy trains
and tests and was by no means designed to or otherwise intended as a
representative sample of all waters off California or the entire
habitat of the fin whale population in the area;
3. It is not correct to assume detected vocalizations (a ``call
index'') reported in [Scaron]irovi[cacute] et al. (2015) for fin whales
equates with where fin whales are aggregated in the Southern California
Bight. For example, the acoustic monitoring data did not pick up or
otherwise correspond to the observed seasonal distribution shift of fin
whales indicated by visual survey data covering the same time periods
(Campbell et al., 2015; Douglas et al., 2014);
4. [Scaron]irovi[cacute] et al. (2015) make no such claim of
aggregations during the winter months but instead compare call index
rates and state that the purpose for the paper was to demonstrate that
passive acoustics can be a powerful tool to monitor population trends,
not relative abundances;
5. There is no science to support the contention that fin whales
are ``at particular risk of ship-strike on the naval range.'' Two fin
whales were struck by the Navy in 2009 in the SOCAL portion of the HSTT
Study Area as Navy noted in Appendix K (Geographic Mitigation
Assessment), but since that time there have been no fin whales struck
or any species of whales struck despite a documented increase in the
fin whale population inhabiting the area (Barlow, 2016; Moore and
Barlow, 2011; Smultea and Jefferson, 2014). Furthermore, one of those
vessel strikes occurred at the end of the recommended mitigation
timeframe (February) and the other well outside the time period (May),
so the proposed mitigation would only have been marginally effective,
if at all. Neither of these Navy fin whale strike locations were close
to shore (both >50-60 Nmi from shore), or associated with coastal
shipping lanes. Based on an analysis of Navy ship traffic in the HSTT
Study Area between 2011 and 2015, median speed of all Navy vessels
within Southern California is typically already low, with median speeds
between 5 and 12 kn (CNA, 2016). This includes areas within and outside
of 200-1,000 m within Southern California, with slowest speeds closer
to the coast; and
6. As presented in the 2018 HSTT FEIS/OEIS, fin whales are present
off all the waters of Southern California year-round
([Scaron]irovi[cacute] et al., 2015, 2017). Using available
quantitative density and distribution mapping, the best available
science, and expert elicitation, definitive areas of importance for fin
whales could not be determined by a panel of scientists specifically
attempting to do so (Calambokidis et al., 2015).
Navy vessels already operate at slower speeds given a particular
transit or activity need. This also includes a provision to avoid large
whales by 500 yd, so long as safety of navigation and safety of
operations is maintained. Previously, the Navy commissioned a vessel
density and speed report for HSTT (CNA, 2016). Based on an analysis of
Navy ship traffic in the HSTT Study Area between 2011 and 2015, median
speed of all Navy vessels within Southern California is typically
already low, with median speeds between 5 and 12 kn (CNA, 2016). The
slowest speeds occurred closer to the coast and islands.
Therefore, NMFS has determined that vessel speed restrictions
within 200-1,000 m are not warranted given the wide range of fin whale
movements along the U.S. West Coast including areas within and outside
of 200-1,000 m contours, sometimes large-scale daily movements within
regional areas as documented from Navy-funded satellite tagging, the
current lack of ship strike risk from Navy vessels in Southern
California (as well as throughout the HSTT Study Area) (2010-2019), the
lower training and testing ship speeds Navy uses within the HSTT Study
Area, and existing Navy mitigation measures including provisions to
avoid large whales by 500 yds where safe to do so.
In addition, the Navy agreed to send out seasonal awareness
messages of fin, blue, and gray whale occurrence to improve awareness
of all vessels operating to the presence of these species in SOCAL from
November through May (fin whales), November through March (gray
whales), and June through October (blue whales). The Navy will also
review WhaleWatch, a program coordinated by NMFS' West Coast Region as
an additional information source to inform the drafting of the seasonal
awareness message to alert vessels in the area to the possible presence
of concentrations of large whales, including fin whales in SOCAL.
Hawaii Areas
Comment 59: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that the Navy consider the following as it plans
to conduct activities in the HSTT Study Area. The Commenter notes units
of the NPS system that occur near training and testing areas around
Hawaii and identifies which may be affected by noise. The Units are:
Kaloko-Honokohau National Historical Park (NHP), Pu'uhonua o Honaunau
NHP,
[[Page 41825]]
Pu'ukolhola Heiau National Historic Site, Kalaupapa NHP, Hawaii
Volcanoes NP, Haleakala NP, and the World War II Valor in the Pacific
National Monument.
Response: National Parks and National Monuments are addressed in
Chapter 6 of the 2018 HSTT FEIS/OEIS. Kalaupapa NHP is discussed in
Comment 60 below. No planned activities overlap with Kaloko-Honokohau
NHP; therefore, no impacts are expected within the Kaloko-Honokohau
NHP. The Pu'uhonua o Honaunau NHP, Haleakala NP, and Pu'ukolhola Heiau
National Historic Site are not specifically addressed in Chapter 6 of
the 2018 HSTT FEIS/OEIS, but none of these sites appear to contain any
marine waters. The Navy's planned activities do not occur on land
except in designated training areas on Navy properties (i.e., for
amphibious assaults, etc.); therefore, there are no activities that
overlap with these sites and no impacts are expected. For the Hawaii
Volcanoes NP, the Navy's planned activities addressed in the 2018 HSTT
FEIS/OEIS do not include aircraft or unmanned aerial systems flights
over or near the Hawaii Volcanoes National Park; therefore, no impacts
are expected. The World War II Valor in the Pacific Monument is for the
USS Arizona, which is a Navy war memorial. No activities occur within
the boundary of the site itself, and the monument was not designated to
protect marine species. There are training and testing activities that
occur within Pearl Harbor as a whole, and impacts to marine mammals in
the waters of Pearl Harbor were included in the Navy's proposed
activities and therefore analyzed by NMFS in the final rule.
Comment 60: In a comment on the 2018 HSTT proposed rule, a
Commenter noted the presence of marine mammal species in the Kalaupapa
NHP (on the north shore of Molokai), and is concerned about potential
take of protected species that inhabit water out to 1,000 fathoms, and
recommended the Navy consider alternate training areas to avoid impacts
to these species. Species that occur year-round include the false
killer whale, sperm whale, pygmy sperm whale, spinner dolphin, and
bottlenose dolphin. Humpback whales are seasonal visitors from November
to April. The Hawaiian monk seal pups are within the Kalaupapa NHP
during the spring and summer.
Response: Part of the Kalaupapa NHP (northern portion) is protected
by the measures employed inside the 4-Islands Region Mitigation Area
such as year-round prohibition on explosives and no use of MF1 surface
ship hull mounted mid-frequency active sonar from November 15 through
April 15.
We note, however, that the majority of the Kalaupapa NHP is not in
the 4-Islands Region Mitigation Area as it is mainly land-based, but
just outside it. The Kalaupapa NHP was designated to protect the two
historic leper colonies on the property and was not designated with the
purpose of protecting marine species. The boundaries of the Kalaupapa
NHP extend a quarter mile offshore. The Navy does propose conducting
activities associated with the planned activities in the boundary of
the Kalaupapa NHP. There would be no effect to Hawaiian monk seal
pupping on NHP land as the Navy does not have any planned activities in
the boundary of the Kalaupapa NHP, especially on land. The Navy's
planned activities do not include any land-based activities except for
a few activities which are conducted on designated Navy property (i.e.,
amphibious assaults on Silver Strand, etc.). Further, as the sea space
adjacent to the Kalaupapa NHP is not an established training or testing
area, it is unlikely naval activity would occur in this area.
Comment 61: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended expanding the Hawaii Island Mitigation Area
westward to protect resident Cuvier's beaked whales and rough-toothed
dolphins. The boundaries of the Hawaii Island Mitigation Area should be
expanded westward to remain consistent with the boundaries of the BIAs
defined in Baird et al. (2015), which informed the boundaries of
Conservation Council Settlement Areas 1-C and 1-D. This expansion will
cover habitat for Cuvier's beaked whales and toothed dolphins that are
resident around the Big Island.
Response: Please see the Mitigation Measures, Brief Comparison of
2015 Settlement Mitigation and Final HSTT Mitigation in the Rule
section of the 2018 HSTT final rule, which discusses NMFS analysis and
decisions in regard to required mitigation areas with explicit
consideration of areas that were previously required by the settlement
agreement. Analyses of the marine mammal species mentioned in the
comment and considered within the Hawaii Island Mitigation Area are
discussed in Appendix K (Geographic Mitigation Assessment), Section K.3
(Biologically Important Areas within the Hawaii Range Complex Portion
of the HSTT Study Area) and Sections K.5.1 (Settlement Areas Within the
Hawaii Portion of the HSTT Study Area) through K.5.4 (Proposed
Mitigation Areas that Overlap the Hawaii Portion of the HSTT Settlement
Agreement Areas) of the 2018 HSTT FEIS/OEIS. NMFS concurs with the
analysis included in this document and has used it to support our
findings in this rule. Additional information on the marine mammals
mentioned in the comment is also provided in the species-specific sub-
sections in Chapter 3, Section 3.7.2 (Affected Environment) of the 2018
HSTT FEIS/OEIS. Based on these analyses, the Navy will implement
additional mitigation within the Hawaii Island Mitigation Area (year-
round), as described in the Mitigation Measures section in the 2018
HSTT final rule and this rule, to further avoid or reduce impacts on
marine mammals from acoustic and explosive stressors from the planned
activities.
The mitigation requirement of prohibiting the use of explosives
year-round during training and testing across the entire Hawaii Island
Mitigation Area satisfies the previous mitigation requirement of a
prohibition on the use of in-water explosives for training and testing
activities of the Settlement Agreement for Areas 1-A, 1-C, and 1-D, and
further extends that requirement to the Alenuih[amacr]h[amacr] Channel
(Area 1-B). The Hawaii Island Mitigation Area still includes 100
percent of Settlement Areas 1-C and 1-D and includes a large majority
of the BIAs for Cuvier's beaked whale (Hawaii Island BIA) and rough-
toothed Dolphins (Hawaii Island BIA) (the areas in question by this
comment). Particularly, it covers 93.30 percent of the Cuvier's beaked
whale BIA westward of Hawaii Island and 83.58 percent of rough-toothed
dolphins Hawaii Island BIA westward of Hawaii Island.
Only the northern portion of the Cuvier's beaked whale BIA in
Alenuihaha Channel and a smaller offshore portion of the BIA west of
Hawaii are not covered by mitigations included in the Hawaii Island
Mitigation Area on the west and east of Hawaii Island. The BIA is based
on the known range of the island-associated population, and the authors
suggest that ``the range of individuals from this population is likely
to increase as additional satellite-tag data become available'' (Baird
et al., 2015). Cuvier's beaked whales are not expected to be displaced
from their habitat due to training and testing activities further
offshore in these small areas of the biologically important area, given
that the BIA covers 23,583 km\2\, is unbroken and continuous
surrounding the island, and the BIA likely underrepresents their range.
The small portion of the BIA that does not overlap the Hawaii Island
Mitigation Area is offshore, and according to the most recent stock
[[Page 41826]]
assessment approximately 95 percent of all sighting locations were
within 45 km of shore. Additionally, consequences to individuals or
populations are not unknown. No PTS is estimated or authorized. A small
number of TTS and Level B behavioral harassment takes for Cuvier's
beaked whales are estimated across the entire Hawaii portion of the
HSTT Study Area due to acoustic stressors. Most of the TTS and Level B
behavioral harassment takes for Cuvier's beaked whales are associated
with testing in the Hawaii Temporary Operating Area, impacting the
pelagic population (see Figure 3.7-36 of the 2018 HSTT FEIS/OEIS). It
is extremely unlikely that any modeled takes would be of individuals in
this small portion of the BIA that extends outside the Hawaii Island
Mitigation Area.
Long-term and relatively comprehensive research has found no
evidence of any apparent effects while documenting the continued
existence of multiple small and resident populations of various species
as well as long-term residency by individual beaked whales spanning the
length of the current studies that exceed a decade. Further, the Navy
has considered research showing that in specific contexts (such as
associated with urban noise, commercial vessel traffic, eco-tourism, or
whale watching, Chapter 3, Section 3.7.2.1.5.2 (Commercial Industries))
of the 2018 HSTT FEIS/OEIS that chronic repeated displacement and
foraging disruption of populations with residency or high site fidelity
can result in population-level effects. As also detailed in the 2018
HSTT FEIS/OEIS, however, the Navy training and testing activities do
not equate with the types of disturbance in this body of research, nor
do they rise to the level of chronic disturbance where such effects
have been demonstrated because Navy activities are typically sporadic
and dispersed. There is no evidence to suggest there have been any
population-level effects in the waters around Oahu, Kauai, and Niihau
or anywhere in the HSTT Study Area. In the waters around Oahu, Kauai,
and Niihau, documented long-term residency by individuals and the
existence of multiple small and resident populations are precisely
where Navy training and testing have been occurring for decades,
strongly suggesting a lack of significant impact to those individuals
and populations from the continuation of Navy training and testing.
Mark-recapture estimates derived from photographs of rough-toothed
dolphins taken between 2003 and 2006 resulted in a small and resident
population estimate of 198 around the island of Hawaii (Baird et al.,
2008), but those surveys were conducted primarily with 40 km of shore
and may underestimate the population. Data do suggest high site
fidelity and low population size for the island-associated population.
There are no tagging data to provide information about the range of the
island-associated population; the BIA is based on sighting locations
and encompasses 7,175 km\2\. Generally, this species is typically found
close to shore around oceanic islands. Only approximately half of the
BIA offshore is not covered by the Hawaii Island Mitigation Area, where
the BIA overlaps with special use airspace. Consequences to individuals
or populations are not unknown. No PTS is estimated or authorized. Some
TTS and Level B behavioral harassment takes due to acoustic stressors
are authorized for this species across the entire HSTT Study Area (see
Figure 3.7-66 of the 2018 HSTT FEIS/OEIS). Significant impacts on
rough-toothed dolphin natural behaviors or abandonment due to training
with sonar and other transducers are unlikely to occur within the small
and resident population area. A few minor to moderate TTS or Level B
behavioral harassment takes to an individual over the course of a year
are unlikely to have any significant costs or long-term consequences
for that individual, and nothing in the planned activities is expected
to cause a ``catastrophic event.'' The Navy operating areas west of
Hawaii Island are used commonly for larger events for a variety of
reasons described further in Section K.3 (Appendix K of the 2018 HSTT
FEIS/OEIS, Biologically Important Areas Within the Hawaiian Range
Complex Portion of the HSTT Study Area) (e.g., the relatively large
group of seamounts in the open ocean offers challenging bathymetry in
the open ocean far away from civilian vessel traffic and air lanes
where ships, submarines, and aircraft are completely free to maneuver)
and sonar may be used by a variety of platforms. Enlarging the Hawaii
Island Mitigation Area is not anticipated to realistically reduce
adverse impacts. Expanding the Hawaii Island Mitigation Area has a
limited likelihood of further reducing impacts on marine mammal species
or stocks and their habitat, while these open ocean operating areas are
important for training and testing and, in consideration of these
factors (and the broader least practicable adverse impact
considerations discussed in the introduction), NMFS has determined that
requiring this additional mitigation is not appropriate.
Comment 62: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended limiting MTEs to reduce cumulative exposure in
the Hawaii Island Mitigation Area.
Response: Prohibiting MTEs outright or spatially separating them
within the Hawaii Island Mitigation Area was proposed as additional
mitigation to ensure that ``marine mammal populations with highly
discrete site fidelity . . . are not exposed to MTEs within a single
year.'' The goal of geographic mitigation is not to be an absolute,
outright barrier and stop exposing animals to exercises per se; it is
to reduce adverse impacts to the maximum extent practicable. Impacts
associated with MTEs, including cumulative impacts, are addressed in
the 2018 HSTT proposed and final rules, as well as in Chapters 3
(Affected Environment and Environmental Consequences) and Chapter 4
(Cumulative Impacts) of the 2018 HSTT FEIS/OEIS. The Navy's
quantitative analysis using the best available science has determined
that training and testing activities will not have population-level
impacts on any species, and the operational and time/area mitigation
measures required by the MMPA rule further reduce impacts on marine
mammals and their habitat. As determined in Chapter 3, Section 3.7.4
(Summary of Potential Impacts on Marine Mammals) of the 2018 HSTT FEIS/
OEIS, it is not anticipated that the planned activities will result in
significant impacts to marine mammals. To date, the findings from
research and monitoring and the regulatory conclusions from previous
analyses by NMFS are that the majority of impacts from Navy training
and testing activities are not expected to have deleterious impacts on
the fitness of any individuals or long-term consequences to populations
of marine mammals the Commenter references.
MTEs cannot be further limited in space or time within the Hawaii
Island Mitigation Area, given that those activities are specifically
located to leverage particular features like the Alenuihaha Channel and
the approaches to Kawaihae Harbor. This recommendation is not,
therefore, appropriate in consideration of NMFS' least practicable
adverse impact standard.
To limit impacts, the Navy will not conduct more than 300 hrs of
MF1 surface ship hull-mounted MFAS or 20 hrs of MF4 dipping sonar, or
use explosives that could potentially result in takes of marine mammals
during training and testing in the Hawaii Island Mitigation Area.
[[Page 41827]]
Comment 63: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting or restricting other sources of MFAS
in the Hawaii Island Mitigation Area including prohibiting the use of
helicopter-deployed MFAS in the Hawaii Island Mitigation Area.
Response: The Navy is already limiting other sources of MFAS.
Between the application and the proposed rule, the Navy added new
mitigation that includes a limit to the annual use of helicopter
dipping sonar in the Hawaii Island Mitigation Area. Specifically, the
Navy will not conduct more than 20 hrs of MF4 dipping sonar that could
potentially result in takes of marine mammals during training and
testing. Helicopters deploy MFAS from a hover position in bouts
generally lasting under 20 minutes, moving rapidly between sequential
deployment and their duration of use and source level (217 dB) are
generally well below those of hull-mounted frequency sonar (235 dB).
All locations within the HSTT Study Area have been used for Navy
training and testing for decades. There has been no scientific evidence
to indicate the Navy's activities are having adverse effects on
populations of marine mammals, many of which continue to increase in
number or are maintaining populations based on what regional conditions
can support. Navy research and monitoring funding continues within the
HSTT Study Area under current NMFS MMPA and ESA permits, and is planned
through the duration of any future permits. Given the lack of effects
to marine mammal populations in the HSTT Study Area from larger, more
powerful surface ship sonars, the effects from intermittent, less
frequent use of lower powered MF dipping sonar or other MFAS would also
not significantly affect small and resident populations.
Comment 64: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended extending the 4-Islands Region Mitigation Area
westward to encompass the Humpback Whale Special Reporting Area in
Kaiwi Channel. Additionally, they argue that the 4-Island Region
Mitigation Area is inadequate to protect endangered Main Hawaiian
Island insular false killer whales as the Main Hawaiian Island insular
false killer whale is highly range-restricted to certain high-use
areas, one of which includes the ESA critical habitat and the BIA north
of Maui and Molokai (``False killer whale Hawaii Island to Niihau''
BIA).
Response: In regard to extending the 4-Islands Region Mitigation
Area westward to encompass the Humpback Whale Special Reporting Area in
Kaiwi Channel, reducing or limiting Navy training and testing in the
Southeast Oahu area is not likely to be effective in reducing or
avoiding impacts given that the Navy does not routinely conduct
activities that involve sonar or other transducers or explosives in
this portion of the Humpback Whale Reproduction Area (included in the
Humpback Whale Special Reporting Area in Kaiwi Channel). The portion of
the special reporting area that extends into Kaiwi Channel over Penguin
Bank (equivalent to settlement area 2A) is generally not a higher use
area for Main Hawaiian Island insular false killer whales and does not
overlap significantly with the BIA. As presented in Chapter 3 of the
2018 HSTT FEIS/OEIS (Affected Environment and Environmental
Consequences), which supports NMFS' analysis for the rule, the Navy's
quantitative analysis indicates that significant impacts on false
killer whale natural behaviors or abandonment due to training with
sonar and other transducers are unlikely to occur within the entire
small and resident population area, let alone in the small sub-portion
of the biologically important area that overlaps the proposed
extension. Additionally, most of the modeled takes are for the Hawaii
pelagic population of false killer whale (see Figure 3.7-46 and Table
3.7-31 in the 2018 HSTT FEIS/OEIS). Also, as described in more detail
in Appendix K of the 2018 HSTT FEIS/OEIS, due to training and testing
needs, the expansion of this area is considered impracticable.
Comment 65: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended extending the seasonal restrictions to year-round
restrictions in the 4-Islands Region Mitigation Area and proposed
extending the Mitigation Area into the Kaiwi Channel Humpback Whale
Special Reporting Area.
Response: The proposed extension of the 4-Islands Region Mitigation
Area into Kaiwi Channel was addressed above in Comment 64. The
additional expansion requested in the comment is not expected to reduce
adverse impacts to an extent that would outweigh the negative impacts
if unit commanders were unable to conduct unit-level training and
testing, especially as they pass over Penguin Bank while transiting
between Pearl Harbor and other parts of the Study Area. Prohibiting
mid-frequency active sonar would preclude the Submarine Command Course
from meeting its objectives and leveraging the important and unique
characteristics of the 4-Islands Region, as described in multiple
sections of Appendix K of the 2018 HSTT FEIS/OEIS (e.g., Section
K.3.1.6 (4-Islands Region and Penguin Bank Humpback Whale Reproduction
Area, and Settlement Area 2-A and 2-B)), which NMFS concurs with and
used to support the mitigation analysis for the rule. Penguin Bank is
particularly used for shallow water submarine testing and anti-
submarine warfare training because of its large expanse of shallow
bathymetry. The conditions in Penguin Bank offer ideal bathymetric and
oceanographic conditions allowing for realistic training and testing
and serve as surrogate environments for active theater locations.
Additionally, this mitigation would further increase reporting
requirements. As discussed in Chapter 5 (Mitigation) Section 5.5.2.6
(Increasing Reporting Requirements) of the 2018 HSTT FEIS/OEIS, the
Navy developed its reporting requirements in conjunction with NMFS,
balancing the usefulness of the information to be collected with the
practicability of collecting it. An increase in reporting requirements
as a mitigation would draw the event participants' attention away from
the complex tactical tasks they are primarily obligated to perform
(such as driving a warship), which would adversely impact personnel
safety, public health and safety, and the effectiveness of the military
readiness activity. Expanding the Mitigation Area and extending the
restrictions is not, therefore, appropriate in consideration of NMFS'
least practicable adverse impact standard.
Comment 66: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended implementing vessel speed restrictions within the
4-Islands Region Mitigation Area.
Response: This mitigation measure was proposed to address impacts
on humpback whales due to both ship noise and ship strikes. As
described and detailed in the Mitigation Measures section of the 2018
HSTT final rule, this rule, and the 2018 HSTT FEIS/OEIS, the Navy
already implements a number of ship-strike risk reduction measures for
all vessels, in all locations and seasons, and for all marine mammal
species. The Navy cannot implement mitigation that restricts vessel
speed during training or testing in the HSTT Study Area because it is
not practicable. Vessels must be able to maneuver freely as required by
their tactics in order for training events to be effective. Imposition
of vessel speed restrictions would interfere with the Navy's ability to
complete tests that must occur in specific bathymetric and oceanic
conditions and at specific speeds. Navy vessel operators must test and
train with vessels in such a manner that ensures their ability to
operate
[[Page 41828]]
vessels as they would in military missions and combat operations
(including being able to react to changing tactical situations and
evaluate system capabilities). Furthermore, testing of new platforms
requires testing at the full range of propulsion capabilities and is
required to ensure the delivered platform meets requirements. Based on
an analysis of Navy ship traffic in the HSTT Study Area between 2011
and 2015, median speed of all Navy vessels within Hawaii is typically
already low, with median speeds between 8-16 kn (CNA, 2016). Speed
restrictions in the Cautionary Area (renamed the 4-Islands Region
Mitigation Area) are unwarranted given the movement of all social
groups throughout the islands outside the Mitigation Area, the current
lack of ship strike risk from Navy vessels in Hawaii (2010-2017), the
already safe training and testing ship speeds the Navy uses within the
HSTT Study Area, and existing Navy mitigation measures, including
provisions to avoid large whales by 500 yards where safe to do so.
Implementing speed restrictions in the Mitigation Area is not,
therefore, appropriate in consideration of NMFS' least practicable
adverse impact standard.
Information on the response of baleen whales to vessel noise is
presented in Section 3.7.3.1.1.5 (Behavioral Reactions) and Section
3.7.3.1.5 (Impacts from Vessel Noise) of the 2018 HSTT FEIS/OEIS, which
supports NMFS analyses. Impacts, if they did occur, would most likely
be short-term masking and minor behavioral responses. Therefore,
significant impacts on humpback whale reproductive behaviors from
vessel noise associated with training activities are not expected. Navy
vessels are intentionally designed to be quieter than civilian vessels,
and ship speed reductions are not expected to reduce adverse impacts on
humpback whales due to vessel noise.
Comment 67: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting the use of in-water explosives in the
4-Islands Region Mitigation Area.
Response: The Navy has agreed to implement a year-round restriction
on the use of in-water explosives that could potentially result in
takes of marine mammals during training and testing. Should national
security present a requirement to use explosives that could potentially
result in the take of marine mammals during training or testing, naval
units will obtain permission from the appropriate designated Command
authority prior to commencement of the activity. The Navy will provide
NMFS with advance notification and include the information (e.g., sonar
hours or explosives usage) in its annual activity reports submitted to
NMFS.
Comment 68: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting other sources of MFAS in the 4-
Islands Region Mitigation Area.
Response: NMFS fully assessed the mitigation for the 4-Islands
Region Mitigation Area (see the Mitigation Measures section in the 2018
HSTT final rule). As the Navy has described, this area provides a
unique and irreplaceable shallow water training capability for units to
practice operations in littoral areas that are both shallow and
navigationally constrained (2018 HSTT FEIS/OEIS Appendix K (Geographic
Mitigation Assessment), Section K.3.3.1.6). The 4-Islands Region
provides an environment for anti-submarine warfare search, tracking and
avoidance of opposing anti-submarine warfare forces. The bathymetry
provides unique attributes and unmatched opportunity to train in
searching for submarines in shallow water. Littoral training allows
units to continue to deploy improved sensors or tactics in littoral
waters. In the Hawaii portion of the HSTT Study Area specifically,
anti-submarine warfare training in shallow water is vitally important
to the Navy since diesel submarines typically hide in that extremely
noisy and complex marine environment (Arabian Gulf, Strait of Malacca,
Sea of Japan, and the Yellow Sea all contain water less than 200 m
deep). There is no other area in this portion of the HSTT Study Area
with the bathymetry and sound propagation analogous to seas where the
Navy conducts real operations that this training could relocate to. The
Navy cannot conduct realistic shallow water training exercises without
training in and around the 4-Islands Region Mitigation Area. In
addition, this area includes unique shallow water training
opportunities for unit-level training, including opportunity to
practice operations in littoral areas that are both shallow, and
navigationally constrained, and in close proximity to deeper open ocean
environments. While MFAS is used infrequently in this area, a complete
prohibition of all active sonars would impact Navy training readiness
in an area identified as important for the Navy based on its unique
bathymetry. However, the Navy recognizes the biological importance of
this area to humpback whales during the reproductive season and in the
4-Islands Region Mitigation Area the Navy will not use MF1 surface
hull-mounted MFAS (the source that results in, by far, the highest
numbers of take) from November 15 through April 15 or use explosives in
this area at any time of the year. While the Navy has been training and
testing in the area with the same basic systems for over 40 years,
there is no evidence of any adverse impacts having occurred, and there
are multiple lines of evidence demonstrating the small odontocete
population high site fidelity to the area.
Comment 69: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting the use of helicopter-deployed mid-
frequency active sonar in the 4-Islands Region Mitigation Area.
Response: The Commenter's request to prohibit ``air-deployed'' MFAS
is based on one paper (Falcone et al., 2017), which is a Navy-funded
project designed to study the behavioral responses of a single species,
Cuvier's beaked whales, to MFAS. The Navy relied upon the best science
that was available to develop behavioral response functions for beaked
whales and other marine mammals in consultation with NMFS for the 2018
HSTT FEIS/OEIS. NMFS and the Navy have reviewed the article and concur
that neither this article nor any other new information that has been
published or otherwise conveyed since the 2018 HSTT proposed rule was
published would fundamentally change the assessment of impacts or
conclusions in the 2018 HSTT FEIS/OEIS or in this rulemaking.
Nonetheless, the new information and data presented in the new article
were thoroughly reviewed by the Navy and will be quantitatively
incorporated into future behavioral response functions, as appropriate,
when and if other new data that would meaningfully change the functions
would necessitate their revision. The new information and data
presented in the article was thoroughly reviewed when it became
available and further considered in discussions with some of the
paper's authors following its first presentation in October 2017 at a
recent scientific conference. Many of the variables requiring further
analysis for beaked whales and dipping sonar impact assessment are
still being researched under continued Navy funding through 2023.
There are no beaked whale biologically important areas in the 4-
Islands Region Mitigation Area, and the Mitigation Area is generally
shallower than beaked whales' preferred habitat. Behavioral responses
of beaked whales from dipping and other sonars cannot be universally
applied to other marine mammal species. Research indicates that there
are distinct individual
[[Page 41829]]
variations as well as strong behavioral state considerations that
influence any response or lack of response (Goldbogen et al., 2013;
Harris et al., 2017). Therefore, it is expected that other species
would have highly variable individual responses ranging from some
response to no response to any anthropogenic sound. This variability is
accounted for in the Navy's current behavioral response curves
described in the 2018 HSTT FEIS/OEIS and supporting technical reports.
Furthermore, the potential effects of dipping sonar have been
rigorously accounted for in the Navy's analysis. Parameters such as
power level and propagation range for typical dipping sonar use are
factored into HSTT acoustic impact analysis along with guild specific
criteria and other modeling variables, as detailed in the 2018 HSTT
FEIS/OEIS and associated technical reports for criteria and acoustic
modeling. Further, due to lower power settings for dipping sonar,
potential impact ranges of dipping sonar are significantly lower than
surface ship sonars. For example, the HSTT average modeled range to TTS
of dipping sonar for a 1-second ping on low-frequency cetacean (i.e.,
blue whale) is 77 m, and for mid-frequency cetaceans including beaked
whales is 22 m (2018 HSTT FEIS/OEIS Table 3.7-7). This range is easily
monitored for marine mammals by a hovering helicopter and is accounted
for in the Navy's proposed mitigation ranges for dipping sonars (200
yds or 183 m). Limited ping time (i.e., less dipping sonar use as
compared to typical surface ship sonar use) and lower power settings
therefore would limit the impact from dipping sonar to any marine
mammal species.
This is an area of extremely low use for air-deployed MFAS.
Prohibiting air-deployed MFAS in the Mitigation Area would not be any
more protective to marine mammal populations generally, or the Main
Hawaiian Islands insular false killer whale in particular, than
currently implemented procedural mitigation measures for air-deployed
MFAS and is not, therefore, appropriate in consideration of NMFS' least
practicable adverse impact standard.
Comment 70: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended prohibiting use of LFAS in the 4-Islands Region
Mitigation Area.
Response: The Commenter suggested that ``Baleen whales are
vulnerable to the impacts of LFAS, particularly in calving areas where
low-amplitude communication calls between mothers and calves can be
easily masked.'' As described in Chapter 3, Section 3.7.2.3.1 (Humpback
Whale (Megaptera novaeangliae), Hawaii DPS) of the 2018 HSTT FEIS/OEIS,
the best available science has demonstrated humpback whale population
increases and an estimated abundance greater than some pre-whaling
estimates. This data does not indicate any population-level impacts
from decades of ongoing Navy training and testing in the Hawaiian
Islands. The LFAS sources used in the HSTT Study Area are typically low
powered (less than 200 dB source level). Restrictions on the use of
LFAS would have a significant impact on the testing of current systems
and the development of new systems. This would deny research, testing,
and development program managers the flexibility to rapidly field or
develop necessary systems requiring testing in the area and the ability
to conduct these activities in the unique bathymetric environment of
the 4-Islands Region.
Comment 71: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended additional mitigation areas including critical
habitat for the Main Hawaiian Islands insular false killer whale. NMFS
issued the Final Rule designating critical habitat under the ESA on
July 24, 2018. The Commenter stated that in light of the 2018 listing
under the ESA, NMFS must protect this species from the noise and other
disturbance resulting from naval activities, including by mitigating
impacts within its critical habitat. The Commenter recommended that, at
minimum, the Navy establish protective Mitigation Areas in all the BIAs
identified for this species by NOAA and that NMFS should revisit and
revise its Mitigation Areas and mitigation requirements based on the
final critical habitat designation.
Response: Critical habitat includes waters from the 45-m depth
contour to the 3,200-m depth contour around the main Hawaiian Islands
from Niihau east to Hawaii (82 FR 51186). With regard to the analysis
of the identified Biologically Important Areas for the Main Hawaiian
Islands insular false killer whales, see Section K.3.3 in the 2018 HSTT
FEIS/OEIS (False Killer Whale Small and Resident Population Area: Main
Hawaiian Island Insular stock), which NMFS used to support our analysis
for the MMPA rule. With regard to the identified threats to the
species, see Section 3.7.2.2.7.5 in the 2018 HSTT FEIS/OEIS (Species-
Specific Threats) and specifically the documented incidental take by
commercial fisheries (Bradford and Forney, 2016; Oleson et al., 2010;
Reeves et al., 2009; West, 2016).
The Navy is implementing the Hawaii Island Mitigation Area which
encompasses all of the BIA for Main Hawaiian Islands insular false
killer whales around that island, and the 4-Islands Region Mitigation
Area (which captures approximately 40 percent of the BIAs in the 4-
Islands area). As discussed in the Mitigation Areas in Hawaii section
of the 2018 HSTT final rule, these mitigation areas are expected to
significantly reduce impacts to this stock and its habitat. NMFS has
determined that the Navy's current training and testing activities are
not expected to have fitness consequences for individual Main Hawaiian
Islands insular false killer whales and are not likely to reduce the
viability of the populations those individual whales represent. Further
limitation of activities in the area identified by the commenter would
not be practicable and is not included as a measure.
Comment 72: In a comment on the 2018 HSTT proposed rule, Commenters
recommended additional mitigation areas for important habitat areas off
Oahu, Kauai, and Niihau, providing mitigation measures for select
activities during even a limited season within some important habitat
areas. The waters off Oahu, Kauai, and Niihau include a number of
important habitat areas for a variety of species, including false
killer whale critical habitat (see above), five NOAA-identified BIAs
off Oahu (false killer whale, humpback whale, pantropical spotted
dolphin, bottlenose dolphin, and spinner dolphin) and three BIAs off
Kauai and Niihau (humpback whale, spinner dolphin, and bottlenose
dolphin) (Baird et al., 2012).
Response: The 2018 HSTT FEIS/OEIS considered the science, the Navy
requirements, and the mitigation value of identified habitat areas off
Oahu, Kauai, and Niihau as presented in Appendix K (Geographic
Mitigation Assessment) Section K.3 (Biologically Important Areas within
the Hawaii Range Complex Portion of the HSTT Study Area), which NMFS
used to support our analysis for the MMPA rule. This includes the five
identified BIAs off Oahu (false killer whale, humpback whale,
pantropical spotted dolphin, bottlenose dolphin, and spinner dolphin)
and three BIAs off Kauai and Niihau (humpback whale, spinner dolphin,
and bottlenose dolphin) as well as a discussion in Appendix K
(Geographic Mitigation Assessment), Section K.1.1.5 (Mitigation Areas
Currently Implemented) regarding the 4-Islands Region Mitigation Area.
See aslo the discussion in Appendix K (Geographic Mitigation
Assessment), Section K.2.1.2 (Biological Effectiveness
[[Page 41830]]
Assessment) of the 2018 HSTT FEIS/OEIS.
The Mitigation Areas in Hawaii section of the 2018 HSTT final rule
describes in detail the significant reduction of impacts afforded by
the required 4-Islands Region Mitigation Area and Hawaii Island
Mitigation Area to the species and stocks cited by the Commenters.
Together, these two areas significantly reduce impacts in this
important calving and breeding area for Humpback whales--please see the
response to Comment 74 for additional details regarding why additional
mitigation areas for humpback whales off Oahu, Niihua, or Kauai are not
included. Further, the Hawaii Island Mitigation Area overlaps multiple
small resident populations (BIAs) of odontocetes that span multiple
islands, and this mitigation area overlaps all of the stock's range
around the island of Hawaii for false killer whales (Main Hawaiian
Island insular stock) and spinner dolphins (Hawaiian Islands stock),
and approximately 90 percent of the range around the island of Hawaii
for pantropical spotted dolphins (Hawaii stock). Additionally, critical
habitat has been designated, pursuant to the ESA, for false killer
whales (Main Hawaiian Island insular stock) in waters between 45 and
3,200 m depth around all of the Main Hawaiian Islands, and this
mitigation area captures more than 95 percent of this area around the
island of Hawaii. The 4-Islands Region Mitigation Area also overlaps
multiple small resident populations of marine mammals (BIAs) that span
multiple islands, including about 80 percent of the pantropical spotted
dolphin (Hawaii stock) area adjacent to these four islands (one of
three discrete areas of the BIA), about 40 percent of the portion of
the false killer whale's (Main Hawaiian Island insular stock) range
that spans an area north of Molokai and Maui (one of the two
significantly larger areas that comprise the false killer whale BIA),
and a good portion of the BIA for spinner dolphins (Hawaiian Islands
stock), which spans the Main Hawaiian Islands in one large continuous
area. As noted above, the ESA-designated critical habitat for false
killer whales extends fairly far offshore (to 3,200 m depth) around all
the Main Hawaiian Islands. As described in the Hawaii Island Mitigation
Area section noted above, by limiting exposure to the most impactful
sonar source and explosives for these stocks in this 4-Islands Region
Mitigation Area, in addition to the Hawaii Island Mitigation Area, both
the magnitude and severity of both behavioral impacts and potential
hearing impairment are greatly reduced. See the responses to comments
71 and 64 for additional discussion of false killer whale mitigation.
The Commenters cite concerns for population-level effects. As
detailed in the 2018 HSTT FEIS/OEIS and indicated in this final rule,
the planned Navy training and testing activities are not likely to
result in impacts on reproduction or survival. There is no evidence to
suggest there have been any population-level effects in the waters
around Oahu, Kauai, and Niihau or in the HSTT Study Area resulting from
the training and testing activities that have been ongoing for decades,
which the Commenters recommend the need to stop, or at a minimum, be
mitigated. In the waters around Oahu, Kauai, and Niihau, documented
long-term residency by individuals and the existence of multiple small
and resident populations precisely where Navy training and testing have
been occurring for decades strongly suggests a lack of significant
impact to those individuals and populations from the continuation of
Navy training and testing. Appendix K of the 2018 HSTT FEIS/OEIS
further describes the importance of these areas for Navy training and
testing and why implementation of additional mitigation areas would be
impracticable.
Last, as discussed previously, the Navy adopted all mitigation
measures that are practicable without jeopardizing its mission and
Title 10 responsibilities. In other words, a comprehensive assessment
by Navy leadership of the final, entire list of mitigation measures
concluded that the inclusion of any further mitigation beyond those
measures identified here in the final rule would be impracticable. NMFS
independently reviewed the Navy's practicability determinations for
specific mitigation areas and concurs with the Navy's analysis. Given
the significant protection already afforded by the required measures,
and the impracticability of further geographic restrictions, NMFS has
determined that these measures are not warranted.
Comment 73: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended an additional mitigation area for Cross Seamount,
as Cross Seamount represents important foraging habitat for a
potentially rare or evolutionary distinct species of beaked whale. The
Commenter strongly recommended that the 2018 HSTT EIS/OEIS assess the
designation of a year-round management area to protect the seamount.
Such a designation would have secondary benefits for a variety of other
odontocete species foraging at Cross Seamount seasonally between
November and May. NMFS should also consider habitat-based management
measures for other nearby seamounts.
Response: NMFS and the Navy considered Cross Seamount and ``other
nearby seamounts'' for additional geographic mitigation as described in
Appendix K (Geographic Mitigation Assessment), Section K.7.1 (Hawaii
Public Comment Mitigation Area Assessment), including sub-sections
K.7.1.1 (General Biological Assessment of Seamounts in the Hawaii
Portion of the Study Area) and K.7.1.2 (Cross Seamount) of the 2018
HSTT FEIS/OEIS, which was used to support NMFS mitigation evaluation
for this rule.
As discussed in Appendix K (Geographic Mitigation Assessment),
Section 4.7.1.3 (Mitigation Assessment) of the 2018 HSTT FEIS/OEIS,
implementing new geographic mitigation measures in addition to ongoing
procedural mitigation within the vicinity of Cross Seamount would not
be effective at reducing adverse impacts on beaked whales or other
marine mammal populations. The Navy has been training and testing in
the broad ocean area around Cross Seamount with the same basic systems
for over 40 years, and there is no evidence of any adverse impacts to
marine species. Additionally, the suggested mitigation would not be
practicable for the Navy to implement. The broad ocean area around
Cross Seamount and the seamounts to the north are unique in that there
are no similar broad ocean areas in the vicinity of the Hawaiian
Islands that are not otherwise encumbered by commercial vessel traffic
and commercial air traffic routes. In addition, beaked whales may be
more widely distributed than currently believed. For example, Martin et
al. (2019) detected Cross Seamount beaked whale vocalizations at PMRF.
Ongoing passive acoustic efforts from NMFS and Navy within the Pacific
have documented beaked whale detections at many locations beyond slopes
and seamounts to include areas over abyssal plains (Klinck et al. 2015,
Griffiths and Barlow 2016, Rice et al., 2018).
Comment 74: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that NMFS must ensure that the activities are having
the least practicable adverse impact, so it must do a comprehensive
analysis of whether the proposed mitigation areas sufficiently protect
marine mammals. They asserted that NMFS must require the Navy to
implement additional, practicable measures to mitigate further the
adverse impacts of its activities. To ensure least practicable adverse
impacts, NMFS must consider additional mitigation
[[Page 41831]]
time/area restrictions, including but not limited to: (1) Expanded
areas in Southern California to include all of the biologically
important areas for whales; (2) add a Cuvier's beaked whale mitigation
area in Southern California to protect that small, declining population
that has high site fidelity; (3) add mitigation areas for the
biologically important areas off of Oahu and Kauai; (4) the entire
Humpback National Marine Sanctuary should be afforded protections from
Navy activities because it is an important habitat for breeding,
calving and nursing; and (5) limits on sonar and explosives should be
adopted in the designated critical habitat for the Hawaiian monk seal
and false killer whale.
Response: In regard to expanded areas in Southern California to
include all of the biologically important areas for whales, the Navy
has agreed to expanded areas in SOCAL, a portion of the San Nicolas
Island BIA and the Santa Monica/Long Beach BIA are now included as part
of the San Diego Arc Mitigation Area but also named the San Nicolas
Island Mitigation Area and the Santa Monica/Long Beach Mitigation Area.
The Santa Monica Bay/Long Beach and San Nicolas Island BIA only
partially overlaps a small portion of the northern part of the SOCAL
portion of the HSTT Study Area. The Santa Monica Bay/Long Beach BIA
overlap in SOCAL is 13.9 percent. The San Nicolas Island BIA overlap in
SOCAL is 23.5 percent.
The Navy will limit surface ship sonar and not exceed 200 hours of
MFAS sensor MF1 June 1 through October 31 during unit-level training
and MTEs in the Santa Monica Bay/Long Beach BIA and San Nicolas Island
Mitigation Areas (as well as San Diego Arc Mitigation Area). The Navy
has also agreed to limit explosives. Specifically, within the San
Nicolas Island Mitigation Area, the Navy will not use explosives that
could potentially result in the take of marine mammals during mine
warfare, large-caliber gunnery, torpedo, bombing, and missile
(including 2.75 in rockets) activities during training. Within the
Santa Monica/Long Beach Mitigation Area, the Navy will not use
explosives that could potentially result in the take of marine mammals
during mine warfare, large-caliber gunnery, torpedo, bombing, and
missile (including 2.75-in rockets) activities during training and
testing.
For the Tanner-Cortes Bank BIA, NMFS and the Navy have discussed
this extensively, and the Navy is unable to incorporate this area into
geographic mitigation because it is impracticable. Specifically, it
would not be practical for the Navy to implement and would prevent the
Navy from meeting training and testing missions. As discussed in detail
in Appendix K (Geographic Mitigation Assessment) of the 2018 HSTT FEIS/
OEIS, during the Navy's practicability and biological review of the
Tanner Bank BIA, it was concluded that implementation of a mitigation
area was not practical for this species. The area in and around Tanner
Banks is a core high priority training and testing venue for SOCAL
combining unique bathymetry and existing infrastructure. This includes
an existing bottom training minefield adjacent to Tanner Banks, future
Shallow Water Training Range (SWTR West) expansion as well as proximity
to critical tactical maneuver areas to the south and the Navy's
underwater instrumented range to the northeast. Furthermore, the
general area is in or adjacent to critical Navy training that cannot
occur at other locations due to available, existing infrastructure,
operationally relevant bathymetry, sea space, proximity to San Clemente
Island and San Diego, etc. Of all the blue whale BIAs designated, the
Tanner Banks BIA had the fewest blue whale sighting records supporting
its designation. New science since designation funded by the Navy
further highlights how infrequently Tanner Bank is used by blue whales
as compared to the rest of their movements in SOCAL. Out of 73 blue
whales tagged with satellite transmitters, only a few transits through
Tanner Banks were documented between 2014 and 2017. The longest
cumulative time any individual whale stayed within the boundaries of
the Tanner Banks BIA was less than one-and-a-half days. Typical average
blue whale daily movement along the U.S. West Coast is often up to 13-
27 nautical miles a day (Oregon State University, unpublished data).
Most blue whale area restricted foraging occurred around the northern
Channel Islands, north of and outside of the HSTT SOCAL Study Area.
The feeding areas as recommended by the Commenter north of Los
Angeles for humpbacks (Santa Barbara Channel--San Miguel BIA and Morro
Bay to Pt Sal) and blue whales (Santa Barbara Channel to San Miguel
BIA, Pt Conception/Arguello to Pt Sal) are outside of the HSTT Study
Area; therefore, they are not applicable for inclusion.
In regard to adding a Cuvier's beaked whale mitigation area in
Southern California to protect that small, declining population that
has high site fidelity, NMFS is assuming the Commenter is referring to
the area west of San Clemente Island as the comment letter did not
specify an exact location. The beaked whale species detected most
frequently in Southern California is Cuvier's beaked whale. Cuvier's
beaked whales are widely distributed within Southern California and
across the Pacific with almost all suitable deep water habitat >800 m
conceivably containing Cuvier's beaked whales. In new unpublished Navy
funded data, beaked whales have even been detected over deep water,
open abyssal plains (>14,000 ft). The Commenter's declining beaked
whale statement does not fully represent the current state of the
science. Moore and Barlow (2013) noted a decline in the overall beaked
whale population in a broad area of the Pacific Ocean along the U.S.
West Coast. New data has been published raising uncertainties over
whether a decline in the beaked whale population occurred off the U.S.
West Coast between 1996 and 2014 (Barlow, 2016). Moore and Barlow
(2017) have since incorporated information from the entire 1991 to 2014
time series, which suggests an increasing abundance trend and a
reversal of the declining trend along the U.S. West Coast that had been
noted in their previous (2013) analysis. Furthermore, there is no
evidence of any declining beaked whale populations in Southern
California. Schorr et al. (2020) and DiMarzio et al. (2020) continue to
document repeated sightings of the same beaked whales and steady if not
increasing population in SOAR. Only limited population vital rates
exist for beaked whales, covering numbers of animals, populations vs.
subpopulations determination, and residency time for individual
animals. While Cuvier's beaked whales have been detected north and west
of Tanner and Cortes Banks, as noted above this species is also
detected in most all Southern California locations 800 m in depth. The
Navy's Marine Mammal Monitoring on Navy Ranges (M3R) program has
documented continual Cuvier's beaked whale presence on SOAR over ten
years from 2010-2019 with slight abundance increases through 2019
(DiMarzio et al., 2018, 2019, 2020).
Navy-funded research on Cuvier's beaked whales within the SOCAL
Range Complex began in 2006. In 2008, researchers began deploying
satellite tags as a part of this research. To date, 27 Low-Impact
Minimally-Percutaneous External-electronics Transmitting (LIMPET) tags
have been deployed within the complex. Twenty-five of those whales were
tagged within the San Nicolas Basin and two were tagged in the Catalina
Basin. Average transmission duration was 36.6 days (sd
[[Page 41832]]
= 29.8), with the longest transmitting for 121.3 days. Movement data
suggest that Cuvier's beaked whales have a high degree of site-fidelity
to the Southern California Range Complex, and the San Nicolas basin in
particular. Overall, there were 3,207 filtered location estimates from
the 27 tagged whales, 91 percent of which were within the SoCal Range
Complex. 54 percent of all location estimates were within the San
Nicolas Basin, with twelve tagged whales spending more than 80 percent
of their transmission duration within the basin. The two whales tagged
in the Catalina Basin never entered the San Nicolas Basin. Only three
whales tagged in the San Nicolas Basin crossed into the Catalina Basin
(1.3 percent of all locations); two of those whales had just one
Catalina Basin location each, though the remaining whale had 28 percent
of its locations there. Five whales tagged in the San Nicolas Basin
moved into the Santa Cruz Basin for anywhere from 1-62 percent of their
time (6 percent of all locations). In contrast, 20 of 25 whales tagged
in the San Nicolas Basin moved south of the basin at some point. Of
these 20 whales, most remained within either Tanner Canyon or the San
Clemente Basin immediately to the south, but one traveled north to near
San Miguel Island and four traveled south towards Guadalupe Island.
Three of these whales have not been documented in the San Nicolas basin
since, though to date at least six whales tagged in the San Nicolas
Basin have been re-sighted there a year or more after the deployment.
Additionally, one of the whales that was south of San Nicolas when the
tag stopped transmitting has since been sighted three times since.
Given the uncertainty regarding residence of Cuvier's beaked whales
in the areas north and west of SOAR, the fact that general occurrence
of beaked whales in Southern California may not necessarily relate to
factors typically associated with biologically important areas (i.e.,
one area not being more important than another), the likely increasing
abundance trend in Cuvier's beaked whales in the area, and
consideration of the importance of Navy training and testing in the
areas around SOAR and Tanner and Cortes Banks (i.e., the
impracticability of additional area mitigation in this area; see
Appendix K (Geographic Mitigation Assessment)), additional geographic
mitigation to create a ``refuge'' in the recommended area is not
scientifically supported or warranted.
In regard to the comment proposing that the entire Humpback Whale
National Marine Sanctuary should be afforded protections from Navy
activities because it is an important habitat for breeding, calving and
nursing, the Humpback National Marine Sanctuary largely overlaps both
the Hawaii Island Mitigation Area as well as the 4-Islands Region
Mitigation Area. In the Hawaii Island Mitigation Area (year-round), the
Navy will not conduct more than 300 hours of MF1 surface ship hull-
mounted mid-frequency active sonar or 20 hours of MF4 dipping sonar, or
use explosives that could potentially result in takes of marine mammals
during training and testing. In the 4-Islands Region Mitigation Area
(November 15-April 15 for active sonar; year-round for explosives), the
Navy will not use MF1 surface ship hull-mounted mid-frequency active
sonar or explosives that could potentially result in takes of marine
mammals during training and testing. This seasonal limitation is
specifically during important breeding, calving, and nursing times/
habitat for humpback whales and was expanded for humpback whales as the
previous season for this mitigation area was December 15-April 15.
There are areas of the Humpback Whale National Marine Sanctuary
around the islands of Niihau, Kauai, Oahu, and west of Molokai (Penguin
Bank) that are outside of the Navy's mitigation areas. However, none of
the Navy's training and testing areas for explosives around Kauai and
Niihau are within the Hawaiian Islands Humpback Whale National Marine
Sanctuary. There may be limited sonar use as units transit to/from PMRF
ranges.
Part of the Humpback Whale National Marine Sanctuary, west of the
island of Molokai, Penguin Bank, is not included in the 4-Islands
Region Mitigation Area. Penguin Bank particularly is used for shallow
water submarine testing and anti-submarine warfare training because of
its large expanse of shallow bathymetry. While submarines do not
typically use mid-frequency active sonar, relying primarily on passive
sonar (listening mode) to avoid detection from adversaries, submarines
are required to train in counter detection tactics, techniques and
procedures against threat surface vessels, airborne anti-submarine
warfare units and other threat submarines using mid-frequency active
sonar as part of both their perspective Commanding Officers
qualification course and pre-deployment certification. The ability for
surface vessels and air assets to simulate opposing forces, using mid-
frequency active sonar when training with submarines, is critical to
submarine crew training for deployed and combat operations. Surface
ships and aircraft mimicking opposition forces present submarines with
a realistic and complicated acoustic and tactical environment. The Navy
expects real-world adversaries to target our submarines with active
sonar. Without active sonar from opposition forces, submarines do not
get a realistic picture regarding if they successfully evaded
detection. Surface warfare training is designed to support unit-level
training requirements and group cross-platform events in 28 mission
areas for surface ship certification prior to deployment.
Additionally, the Navy will implement the Humpback Whale Special
Reporting Area (December 15 through April 15), comprised of additional
areas of high humpback whale densities that overlap the Humpback Whale
National Marine Sanctuary. This reporting is included in the exercise
and monitoring reports that are an ongoing Navy requirement and are
submitted to NMFS annually. Special reporting data, along with all
other reporting requirements, are considered during adaptive management
to determine if additional mitigation may be required. The Navy
currently reports to NMFS the total hours (from December 15 through
April 15) of all hull-mounted mid-frequency active sonar usage
occurring in the Humpback Whale Special Reporting Area, plus a 5 km
buffer, but not including the Pacific Missile Range Facility. The Navy
will continue this reporting for the Humpback Whale Special Reporting
Area.
In regard to the comment that limits on sonar and explosives should
be adopted in the ESA-designated critical habitat for the Hawaiian monk
seal and false killer whale, the Navy will cap MFAS for the entire
false killer whale BIA adjacent to the island of Hawaii and a portion
of the false killer whale BIA north of Maui and Molokai as follows. The
Navy already will limit explosive use in the entire false killer whale
BIA adjacent to the island of Hawaii. Per the 2018 HSTT final rule, the
Navy currently implements year-round limitation on explosives to the 4-
Islands Region Mitigation Area, which includes a portion of the false
killer whale BIA north of Maui and Molokai.
For the Hawaii Island Mitigation Area (year-round): The Navy will
not conduct more than 300 hours of surface ship hull-mounted MFAS sonar
MF1 (MF1) or 20 hours of MFAS dipping sonar MF4 (MF4), or use
explosives during training and testing year-round.
For the 4-Islands Region Mitigation Area (November 15-April 15 for
active sonar, year-round for explosives): The
[[Page 41833]]
Navy will not use surface ship hull-mounted MFAS sonar MF1 from
November 15-April 15 and explosives year-round during training or
testing activities. The remaining false killer whale BIA overlaps with
areas (e.g., Kaiwi Channel) where additional mitigations were found to
be impractical.
In regard to limits on sonar and explosives in ESA-designated
critical habitat for Hawaiian monk seal, the Navy's training and
testing activities do occur in a portion of the ESA-designated critical
habitat for Hawaiian monk seals, which is of specific importance to the
species. However, monk seals in the main Hawaiian Islands have
increased while the Navy has continued its activities, even though the
Hawaiian monk seal overall population trend has been on a decline from
2004 through 2013, with the total number of Hawaiian monk seals
decreasing by 3.4 percent per year (Carretta et al., 2017). While the
decline has been driven by the population segment in the northwestern
Hawaiian Islands, the number of documented sightings and annual births
in the main Hawaiian Islands has increased since the mid-1990s (Baker,
2004; Baker et al., 2016). In the main Hawaiian Islands, the estimated
population growth rate is 6.5 percent per year (Baker et al., 2011;
Carretta et al., 2017). Of note, in the 2013 HRC Monitoring Report,
tagged monk seals did not show any behavioral changes during periods of
MFAS.
The Hawaii Island Mitigation Area overlaps all of their critical
habitat around the Island of Hawaii (as well as the southern end of
Maui) and, by not using explosives or the most impactful sonar sources
in this, thereby reduces the likelihood that take might impact
reproduction or survival by interfering with important feeding or
resting behaviors (potentially having adverse impacts on energy
budgets) or separating mothers and pups in times when pups are more
susceptible to predation and less able to feed or otherwise take care
of themselves. The 4-Islands Mitigation Area overlaps with ESA-
designated critical habitat around Maui, Lanai, and Molokai.
Comment 75: In a comment on the 2018 HSTT proposed rule, a
Commenter noted that in the 2018 HSTT proposed rule, NMFS estimates 588
takes annually will cause multiple instances of exposure to insular
false killer whales, taking 400 percent of the population. As the
potential biological removal (PBR) is 0.18 animals, the loss of a
single individual, or an impairment to its health and fitness, could
place the species on an extinction trajectory. The Commenter asserted
NMFS must consider additional mitigation in the designated critical
habitat, as well as excluded areas, to ensure a negligible impact on
false killer whales.
Response: The Commenter is conflating expected numbers of Level B
behavioral harassment take with the PBR number presented in the SAR.
There are no insular false killer whale mortality takes modeled,
anticipated, or authorized. Four hundred percent of the population
would mean that all animals would be behaviorally harassed an average
of four times per year, or once per season. The short term biological
reaction of an animal for periods of minutes to hours a few times a
year would not have any fitness impacts to the individual let alone any
population level impacts. NMFS confirms that these impacts are
negligible. Additionally, much of the Navy's mitigations on Hawaii and
the 4 islands region encompass areas that overlap with high use insular
false killer whale habitat and thus already mitigate impacts. From the
Navy consultation with NMFS under the ESA for insular false killer
whale critical habitat, less than 12 percent of modeled takes would
take place in or near insular false killer whale critical habitat.
These takes as explained previously would be transitory (short-
duration), and spread out in time and space.
Comment 76: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended establishing stand-off distances around the
Navy's mitigation areas to the greatest extent practicable, allowing
for variability in size given the location of the area, the type of
operation at issue, and the species of concern.
Response: Mitigation areas are typically developed in consideration
of both the area that is being protected and the distance from the
stressor in question that is appropriate to maintain to ensure the
protection. Sometimes this results in the identification of the area
plus a buffer, and sometimes both the protected area and the buffer are
considered together in the designation of the edge of the area. We note
that the edges of a protected area are typically of less importance to
a protected stock or behavior, since important areas often have a
density gradient that lessens towards the edge. Also, while a buffer of
a certain size may be ideal to alleviate all impacts of concern, a
lessened buffer does not mean that the protective value is
significantly reduced, as the core of the area is still protected.
Also, one should not assume that activities are constantly occurring in
the area immediately adjacent to the protected area.
These issues were considered here, and the Navy has indicated that
the mitigation included in the final rule represents the maximum
mitigation within mitigation areas and the maximum size of mitigation
areas that are practicable to implement under the specified activities.
The Navy has communicated (and NMFS concurs with the assessment) that
implementing additional mitigation (e.g., stand-off distances that
would extend the size of the mitigation areas) beyond what is described
here would be impracticable due to implications for safety (the ability
to avoid potential hazards), sustainability (based on the amount and
type of resources available, such as funding, personnel, and
equipment), and the Navy's ability to continue meeting its Title 10
requirements.
Comment 77: In a comment on the 2019 HSTT proposed rule, Commenters
noted that Southall et al. (2019c) investigated Cuvier's beaked whale
prey dynamics on SOAR and found that Cuvier's beaked whales, as well as
their prey, were concentrated on the western side of SOAR. They stated
that if beaked whales were to leave their preferred habitat on SOAR due
to disturbance, Southall et al. (2019c) stipulated that the animals
could encounter both the energetic costs of moving and substantially
poorer foraging options in the alternative areas (both offshore of SOAR
and on the eastern side of SOAR). Given the very large differences in
prey quality measured between those areas, the researchers asserted
that it may prove challenging for individual beaked whales to meet
basic energetic requirements in some of those areas, which could have
population-level consequences (Southall et al. 2019c). The Commenters
note that it is unclear the timescale over which the prey surveys were
conducted by Southall et al. (2019) and whether the prey dynamics were
reflective of seasonal or year-round patterns. However, they noted that
the researchers' contention that mitigation measures that would
concentrate MFA sonar operations to the eastern rather than western
side of SOAR would be beneficial for reducing the potential
consequences of disturbance, particularly for those operations that use
higher-intensity sonar. Commenters asserted that the findings of
Southall et al. (2019c) suggest that the off-range refuge areas
established by consent order in Conservation Council for Hawaii v.
NMFS, while presenting foraging habitat that is superior to that on the
eastern side of the range, are markedly inferior
[[Page 41834]]
to the whales' preferred foraging habitat on the western side.
Commenters recommended NMFS investigate whether the findings of
Southall et al. (2019) are applicable to seasonal or year-round
conditions at SOAR and whether implementation of mitigation areas on
the western side of SOAR would be a prudent approach for meeting its
negligible impact and least practicable adverse impact determinations
under the MMPA.
Response: Prey data analyzed by Southall et al. (2019c) were
published in Benoit-Bird et al. (2016) and collected in 2013. The field
effort only encompassed four days of survey in September 2013 to
include five transits in Western SOAR, five transits in eastern SOAR,
and two transits off-range. Southern, western, and eastern SOAR, areas
also used by beaked whales as shown by satellite tracking, were not
surveyed. Furthermore, based on passive acoustic monitoring from two
different sensor types, there is a repeated dip in Southern California
beaked whale occurrence in the August and September timeframes.
Therefore, there appears to be a factor, such as oceanography, prey
availability, or other biological parameter from August to September
that influences beaked whale occurrence unrelated to Navy activities.
Given ocean basin level oceanographic fluctuations since 2013, it is
also unclear if the 2013 prey results from Benoit-Bird et al. (2016)
remain unchanged as of 2019. Recent research has also suggested that
Cuvier's beaked whales tend to be visually sighted and passively
acoustically detected more frequently in the western portion of SOAR
(DiMarzio et al., 2020, Schorr et al., 2020). An important fact remains
that cumulatively throughout the entire year, beaked whale occurrence
and overall population abundance remains consistently stable in a
heavily used training area as discussed previously (DiMarzio et al.,
2020; Schorr et al., 2020). Given the parameters of Southall et al.
(2019) and Benoit-Bird et al. (2016) which include short-term seasonal
sampling and limited sampling throughout SOAR, as well as potential
variations in oceanographic parameters, it is premature and speculative
to designate additional mitigation areas specifically for western SOAR.
Also, current and ongoing beaked whale research on SOAR appears to
demonstrate a stable beaked whale population using SOAR (DiMarzio et
al., 2020; Schorr et al., 2020). Further, as noted in Appendix K
(Geographic Mitigation Assessment) of the 2018 HSTT FEIS/OEIS, the
waters in SOAR are critical to the Navy's training and testing
activities and it is not practicable to preclude activities within that
water space. Given the lack of sufficient evidence to support the
specific significance of the western side of SOAR and the stability of
beaked whale populations across SOAR, which suggests that Navy training
and testing activities are not having significant impacts to the
population of beaked whales anywhere in SOAR (DiMarzio et al., 2020,
Schorr et al., 2020), and in consideration of the importance of Navy
training and testing activities in this area discussed in Appendix K
(Geographic Mitigation Assessment) of the 2018 HSTT FEIS/OEIS,
additional geographic mitigation specifically for SOAR is not
warranted.
Comment 78: In a comment on the 2019 HSTT proposed rule, Commenters
stated that the California (or Eastern North Pacific) gray whale is
presently experiencing a major die-off which was declared an Unusual
Mortality Event (UME). They asserted that it is well established that
animals already exposed to one stressor may be less capable of
responding successfully to another, and that stressors can combine to
produce adverse synergistic effects (Wright et al., 2007). They noted
that disruption in gray whale behavior can act adversely with the
inanition caused by lack of food, increasing the risk of stranding and
lowering the risk of survival in compromised animals. The Commenters
further asserted that starving gray whales may travel into unexpected
areas in search of food--a likely contributing cause of some of the
ship-strikes observed in recently stranded animals.
Due to the circumstances for gray whales, the Commenters
recommended that NMFS strengthen the geographic protections proposed by
the Navy to reduce activities in habitat used seasonally by gray
whales. They noted that new scientific information on spatial and
temporal interannual changes in the eastern North Pacific gray whale
migration across seven migration seasons (2008-2009 to 2014-2015)
indicates that an increasing proportion of the population is using the
nearshore migration corridor in the Southern California Bight,
especially near Los Angeles (Guazzo et al., 2019). In addition, the
time period over which gray whales are detected visually off Los
Angeles, and acoustically across the broader region, is extending into
April (for acoustic detections) and May (for visual observations)
(Guazzo et al., 2019). The Commenters strongly recommended that a
Mitigation Area excluding sonar and explosives activities be
established in, at minimum, the Gray Whale Awareness Notification
Message Area, and that the mitigation period be extended from November-
March (the current period of operations for the Message Area) to
November-May.
Response: The Gray Whale Awareness Notification Message Area
includes all waters in the SOCAL portion of the HSTT Study Area. As
discussed in Appendix K (Geographic Mitigation Assessment Section K4.2)
of the 2018 HSTT FEIS/OEIS, the gray whale migration BIA overlaps with
a significant portion of the SOCAL portion of the HSTT Study Area out
to 100 nmi from shore over 10 months of the year. There is no
indication that infrequent behavioral disruptions from Navy activities
interrupt or significantly delay transit, and gray whales are not
anticipated to be foraging in this area. Therefore, creating a new
mitigation area excluding sonar and explosive activities for the SOCAL
portion of the HSTT Study Area is not warranted. The Navy's current
awareness notification message includes information that gray whales
may be present in the SOCAL portion of the HSTT Study Area from mid-
October through mid-July every year, which includes the November-May
timeframe suggested by the Commenters.
Comment 79: In a comment on the 2019 HSTT proposed rule, Commenters
noted that long-term passive acoustic monitoring conducted in the
Navy's SOCAL Range Complex from January 2013 to January 2017 detected a
peak in Northeast Pacific blue whale B calls from summer through late
winter with a peak from September through December, and a peak in
Northeast Pacific blue whale D calls in May and June (Baumann-Pickering
et al., 2018; Rice et al., 2017). They further asserted that the fall
peak in blue whale vocalizations coincides with a peak in detections of
mid-frequency active sonar in September through November. Resulting
maximum cumulative sound exposure levels of wave trains during these
times were greater than 170 dB re: 1 [mu]Pa2 -s, and the majority of
mid-frequency active sonar wave trains occurred in November 2016 during
a major training exercise (Rice et al., 2017). Explosions (including
those associated with Naval training exercises and fishing activity)
occurred relatively constantly throughout the monitoring period at the
sites where Northeast Pacific blue whale vocalizations were detected
most frequently (Rice et al., 2017). The Commenters asserted that this
new information demonstrates a peak in Northeast Pacific blue whale
[[Page 41835]]
presence in the late fall, a time that has historically coincided with
heightened periods of MFA sonar deployment and explosives use. The
Commenters recommended that the seasonality of the San Diego Arc
Mitigation Area and the Blue Whale Awareness Notification Message Area
be extended from June-October to May-December, and again urge the Navy
to strengthen its restrictions on activities during this period.
Response: Rice et al. 2020 (the most recent report referenced by
the Commenters was Rice et al. 2017) reports on Navy supported
monitoring at various locations within the Southern California Range
Complex portion of the HSTT Study Area. While the blue whale switch
from D calls to B calls has been documented by Rice et al. 2018 and
others, call detection may not be representative of the total blue
whale population or relative proportion in the SOCAL area. Nor do the
call data collected by offshore passive acoustic devices necessarily
reflect the amount of time or number of animals that would be in the
San Diego Arc Mitigation Area. For example, over four years of blue
whale tagging in SOCAL, most whales with long-term satellite tracking
tags typically have begun their southern migration by October (Mate et
al. 2018). The amount of time blue whales spent in the San Diego Arc as
a proportion of the total tag attachment time was very small. Based on
90 blue whales tagged from 2014-2017, blue whales spent an average
total of 1.2 days in the San Diego Mitigation Area (1.5 days 2014, 1.0
days 2015, 0 days 2016, 0.3 days 2017) (Mate et al., 2018).
Furthermore, the Navy reports that MTEs and unit level training spread
throughout the year. There is no basis for the Commenters' statement of
heightened sonar and explosive use in the fall. Rice et al. (2017)
captured a MTE in November in one year's data at one of the recording
sites (Site N). Site N is where trains with cSELs >170 dB were observed
(not the other sites in Rice et al. 2017), however, Site N is not near
the San Diego Arc Mitigation Area--it is south of San Clemente Island.
Therefore, extending the timeframe of these mitigation areas is not
warranted.
Comment 80: In a comment on the 2019 HSTT proposed rule, Commenters
stated that the least practicable adverse impact requirement imposes a
``stringent standard'' on NMFS to ensure that marine mammals are
protected to the greatest extent practical without interfering with
military readiness. The Commenters noted that the Navy's agreement to
restrict the use of sonar and explosives in specified habitat areas
around the Hawaiian Islands and off Southern California demonstrates
the practicability of implementing those specific time/area
restrictions. The Navy implemented these measures for over three years
during which time it never invoked its right under the settlement
agreement to train in these areas if necessary for national security.
The Commenters asserted that the Navy has a heavy burden to show these
areas are now required for training and testing activities when it
successfully maintained military readiness subject to the settlement
agreement restrictions for over three years and that NMFS has not held
the Navy to its burden.
The Commenters note that of particular concern are areas to the
northeast and southeast of Moloka`i leading into the Ka`iwi Channel as
this area includes biologically important areas (BIAs) for the humpback
whale, the Main Hawaiian Island Insular (MHI) stock of false killer
whales, and spinner dolphins. This area was partially protected as part
of settlement areas 2A, 2C, and 2D, all of which included a year-round
ban on the use of explosives, as well as a prohibition on use of mid-
frequency active sonar during multi-unit training exercises (areas 2A
and 2C). They asserted that the 2018 HSTT final rule and the proposed
extension rule provide no protections for the BIAs located to the
northeast and southeast of Moloka`i. They noted that the Navy admits
that the primary use of the northeast Ka`iwi Channel is for transit,
and some limited unit-level straits training when ships are transiting
through the area, however, straits training is primarily conducted in
the `Alenuih[amacr]h[amacr] channel and the Pailolo and Kalohi
channels. The Commenters asserted that the inconvenience associated
with longer transit times around northeast Moloka`i and Ka`iwi Channel
which the Navy invoked to explain the alleged impracticability of
additional protections for this area does not meet the ``stringent
standard'' test imposed by courts. The Commenters also noted that the
Penguin Bank training area, which is located wholly in previous
settlement area 2A and to the southeast of Moloka`i, is used for
specific submarine training and testing activities identified by the
Navy. However, the Navy proffers no explanation why sonar and explosive
restriction cannot be imposed for a limited five-month period annually,
as in the rest of the 4-Islands Region Mitigation Area, leaving the
remaining seven months free for military readiness activities. The
Commenters noted that an increased reporting burden is exactly the type
of inconvenience that the Court considered insufficient to meet the
stringent practicability standard during the last round of HSTT
authorizations. They asserted that NMFS cannot simply ``summarize the
Navy's indication of impracticality without analyzing it all,'' but
that is exactly what it has done here. The Commenters state that NMFS
should reinstate additional protections around eastern Moloka`i and
other biologically important marine habitat included in the 2015
settlement agreement, and expand protections throughout the Ka`iwi
Channel area as described above.
Response: Appendix K (Geographic Mitigation Assessment) of the 2018
HSTT FEIS/OEIS described the comprehensive method for analyzing
potential geographic mitigation that included consideration of both a
biological assessment of how the potential time/area limitation would
benefit the species or stock and its habitat (e.g., is a key area of
biological importance or would result in avoidance or reduction of
impacts) in the context of the stressors of concern in the specific
area and an operational assessment of the practicability of
implementation (e.g., including an assessment of the specific
importance of that area for training, considering proximity to training
ranges and emergency landing fields and other issues). The analysis
included an extensive list of areas, including areas in which certain
Navy activities were limited under the terms of the 2015 HSTT
settlement agreement, areas identified by the California Coastal
Commission, and areas suggested during scoping. As discussed in the
2018 HSTT final rule and applicable to this rule, NMFS also
specifically considered the measures from the 2015 settlement agreement
and how they compared to both new procedural mitigation measures and
mitigation areas (see the section Brief Comparison of 2015 Settlement
Mitigation and Final HSTT Mitigation in the Rule in the 2018 HSTT final
rule). For those areas that were previously covered under the 2015
settlement agreement, it is essential to understand that: (1) The
measures were developed pursuant to negotiations with the plaintiffs
and were specifically not selected and never evaluated based on an
examination of the best available science that NMFS otherwise applies
to a mitigation assessment and (2) the Navy's agreement to restrictions
on its activities as part of a relatively short-term settlement (which
did not extend beyond the expiration of the 2013 regulations) did not
mean that those
[[Page 41836]]
restrictions were practicable to implement over the longer term. The
2018 HSTT final rule then provided the rationale, again applicable to
this final rule, for not adopting the relatively small subset of
measures that were not carried forward (i.e., why some areas from the
2015 settlement agreement were fully or partially retained, and others
were not, based upon the standards of the MMPA).
As explained in more detail in the 2018 HSTT final rule and in the
full analysis in Section 3 of Appendix K (Geographic Mitigation
Assessment) of the 2018 HSTT FEIS/OEIS, Penguin Bank offers critical
shallow and constrained conditions for Navy training (especially
submarines) that are not available anywhere else in Hawaii. The areas
north of Molokai and Maui that are not included in the current 4-
Islands Mitigation Area are similarly critical for certain exercises
that specifically include torpedo exercises, deliberately conducted in
this area north of the islands to avoid the other suitable training
areas between the four islands where humpback whale density is higher.
The 2015 settlement agreement mitigation restricted all MFAS and
explosive use on Penguin Bank (area 2-A), however, as the Navy
explained, this MFAS restriction is impracticable for the period
covered by this rule because it would have unacceptable impacts on
their training and testing capabilities. In addition, the Navy does not
typically use explosives in this area. For the settlement areas north
of Molokai and Maui that are not covered in the rule (area 2-B and part
of area 2-C), the settlement agreement restricted explosive use but did
not restrict MFAS in the 2-B area. Explosive use in these areas is also
already rare, but for the reasons described in Appendix K of the 2018
HSTT FEIS/OEIS, restricting MFAS use is impracticable and would have
unacceptable impacts on training and testing. We also note that while
it is not practicable to restrict MFAS use on Penguin Bank, MFAS use is
relatively low and we have identified it as a special reporting area
for which the Navy reports the MFAS use in that area to inform adaptive
management discussions in the future. Additionally, some of the areas
that the 2015 settlement agreement identified included language
regarding extra vigilance intended to avoid vessel strikes. Neither
NMFS nor the Navy thought that inclusion of this term as written would
necessarily reduce the probability of a vessel strike, so instead we
have included the Humpback Whale Awareness Notification provision,
which sends out a message to all Navy vessels in Hawaii during the time
that humpback whales are present. Last, we note that the 2015
settlement mitigation areas with MFAS restrictions sometimes excluded
all MFAS, while sometimes they limited the number of MTEs that could
occur (with no limit on any particular type of sonar, meaning that
hull-mounted surface ship sonar could be operated), whereas the sonar
restrictions in this final rule limit the use of surface ship hull-
mounted sonar, which is the source that results in the vast majority of
incidental takes.
Additional Mitigation Research
Comment 81: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended NMFS consider additional mitigation measures to
prescribe or research including: (1) Research into sonar signal
modifications; (2) mitigation and research on Navy ship speeds (the
Commenter recommended that the agency require the Navy to collect and
report data on ship speed as part of the EIS process); and (3)
compensatory mitigation for the adverse impacts of the activities on
marine mammals and their habitat that cannot be prevented or mitigated.
Response: NMFS consulted with the Navy regarding potential research
into additional mitigation measures and discussion is included below.
1. Research into sonar signal modification--Sonar signals are
designed explicitly to provide optimum performance at detecting
underwater objects (e.g., submarines) in a variety of acoustic
environments. The Navy acknowledges that there is very limited data,
and some suggest that up or down sweeps of the sonar signal may result
in different animal reactions; however, this is a very small data
sample, and this science requires further development. If future
studies indicate this could be an effective approach, then NMFS and the
Navy will investigate the feasibility and practicability to modify
signals, based on tactical considerations and cost, to determine how it
will affect the sonar's performance.
2. Mitigation and research on Navy ship speeds inclusive of Navy
collecting and reporting data on ship speed as part of the EIS--The
Navy conducted an operational analysis of potential mitigation areas
throughout the entire Study Area to consider a wide range of mitigation
options, including but not limited to vessel speed restrictions. As
discussed in Chapter 3, Section 3.0.3.3.4.1 (Vessels and In-Water
Devices) of the 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 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 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. NMFS thoroughly
reviewed and considered this information and determined that additional
vessel speed restrictions would be impracticable. As discussed in
Chapter 5 (Mitigation), Section 5.3.4.1 (Vessel Movement) of the HSTT
FEIS/OEIS, the Navy implements mitigation to avoid vessel strikes
throughout the Study Area. As directed by the Chief of Naval Operations
Instruction (OPNAVINST) 5090.1D, Environmental Readiness Program and as
discussed in this rule and the 2018 HSTT final rule, Navy vessels
report all marine mammal incidents worldwide, including ship speed.
Therefore, the data required for ship strike analysis discussed in the
comment is already being collected. Any additional data collection
required would create an unnecessary and impracticable administrative
burden on the Navy.
3. Compensatory mitigation--For years, the Navy has implemented a
very broad and comprehensive range of measures to mitigate potential
impacts to marine mammals from military
[[Page 41837]]
readiness activities. As described in this rule, the 2018 HSTT final
rule, and the 2018 HSTT FEIS/OEIS documents in Chapter 5 (Mitigation),
NMFS and the Navy have expanded these measures further where
practicable. Aside from direct mitigation, as noted by the Commenter,
the Navy engages in an extensive spectrum of other activities that
greatly benefit marine species in a more general manner that is not
necessarily tied to just military readiness activities. As noted in
Chapter 3, Section 3.0.1.1 (Marine Species Monitoring and Research
Programs) of the HSTT FEIS/OEIS, the Navy provides extensive investment
for research programs in basic and applied research. The U.S. Navy is
one of the largest sources of funding for marine mammal research in the
world, which has greatly enhanced the scientific community's
understanding of marine species more generally. The Navy's support of
marine mammal research includes: Marine mammal detection, including the
development and testing of new autonomous hardware platforms and signal
processing algorithms for detection, classification, and localization
of marine mammals; improvements in density information and development
of abundance models of marine mammals; and advancements in the
understanding and characterization of the behavioral, physiological
(hearing and stress response), and potentially population-level
consequences of sound exposure on marine life. Compensatory mitigation
is not required to be imposed upon LOA holders under the MMPA.
Importantly, the Commenter did not recommend any specific measure(s),
rendering it impossible to conduct any meaningful evaluation of its
recommendation. Finally, many of the methods of compensatory mitigation
that have proven successful in terrestrial settings (purchasing or
preserving land with important habitat, improving habitat through
plantings, etc.) are not applicable in a marine setting with such far-
ranging species. Thus, any presumed conservation value from such an
idea would be purely speculative at this time.
Comment 82: In a comment on the 2019 HSTT proposed rule, Commenters
asserted that NMFS should consider source-based approaches to mitigate
impacts on frequently exposed populations. They stated that several
recent studies (described in their comments on the 2018 HSTT proposed
rule) suggest that modifying the sonar signal might reduce behavioral
response in at least some species of marine mammals, and certain
promising types of modifications, such as converting upsweeps to
downsweeps--which would not alter the signal's spectral output in any
way--may well be practicable and should be studied further, especially
for reducing impacts in cases where spatial conflicts are unavoidable.
Response: As described in the 2018 HSTT final rule, sonar signals
are designed explicitly to provide optimum performance at detecting
underwater objects (e.g., submarines) in a variety of acoustic
environments. NMFS and the Navy acknowledge that there is very limited
data available on behavioral responses to modified sonar signals, and
some suggest that up or down sweeps of the sonar signal may result in
different animal reactions; however, this science requires further
development. Further, the references cited by the Commenter pertain to
harbor porpoises and harbor seals. Harbor porpoises are not found in
the HSTT Study Area. The reaction of these two more coastal species may
not be indicative of how all other species may react to the same
stimuli. The Navy's research programs continue to support new hearing
and response studies and results of these studies will be incorporated
into future analyses. If future studies indicate this could be an
effective approach, then NMFS and the Navy will investigate the
feasibility and practicability to modify signals, based on tactical
considerations and cost, to determine how it will affect the sonar's
performance.
Comment 83: In a comment on the 2019 HSTT proposed rule, Commenters
asserted that NMFS should require the Navy, through the Center for
Naval Analyses or a similar organization, to study whether active sonar
activities in the HSTT Study Area can be reduced through the use of
simulators.
Response: The Navy has extensively studied and evaluated the degree
to which simulations can be utilized to meet their mission
requirements, and NMFS and the Navy have further considered the
information in the context of measures that could potentially reduce
impacts to marine mammals. We disagree that NMFS should require
additional study.
As described by the Navy, it already uses simulators, and the
proposed activities were specifically built with the assumption that a
certain percentage of training activities would be accomplished through
simulation versus live training. The Navy currently uses, and will
continue to use, computer simulation to augment training whenever
possible. Simulators and synthetic training are critical elements that
provide early skill repetition and enhance teamwork; however, they
cannot duplicate the complexity faced by Navy personnel during military
missions and combat operations for the types of active sonar used for
the proposed activities (e.g., hull-mounted mid-frequency active
sonar). Simulators are used at unit-level training for basic system
familiarity and refresher training. In addition, several annual
exercises in the Pacific Ocean, simulating many hundreds of hours of
sonar use are conducted virtually for command staff training.
As described in Chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS,
the Navy needs to train and test in the conditions in which it fights--
and these types of modifications would fundamentally change the
activity in a manner that would not support the purpose and need for
the training and testing (i.e., are entirely impracticable). NMFS finds
the Navy's explanation for why adoption of these recommendations would
unacceptably undermine the purpose of the testing and training
persuasive. As described in the Mitigation Measures section of the 2018
HSTT final rule, after independent review, NMFS finds Navy's judgment
on the impacts of potential mitigation measures, including simulators,
to personnel safety, practicality of implementation, and the
undermining of the effectiveness of training and testing persuasive.
Comment 84: In a comment on the 2019 HSTT proposed rule, due to the
circumstances for gray whales (described in Comment 78) Commenters
recommended that consistent with its responsibilities under the MMPA's
provisions on UMEs (e.g., 16 U.S.C. 1421c), as well as with the
requirements under NEPA to obtain information essential to its analysis
of reasonable alternatives (40 CFR 1502.22), that NMFS urgently fund
research to assess the extent of prey availability loss for California
gray whales and to determine the cause of that loss of prey.
Response: Since January 1, 2019, elevated gray whale strandings
have occurred along the west coast of North America, from Mexico to
Canada. This event has been declared an Unusual Mortality Event (UME).
As part of the UME investigation process, NOAA has assembled an
independent team of scientists to coordinate with the Working Group on
Marine Mammal Unusual Mortality Events to review the data collected,
sample stranded whales, and determine the next steps for the
investigation. The investigative team has not as of yet identified a
primary cause for the UME. The team is investigating various causes
that could
[[Page 41838]]
be contributing to the increased strandings including disease,
biotoxins, human interactions, environmental drivers, carrying
capacity, etc. For the environmental and oceanographic impacts, the
team is working with (and in part, financially supporting) a subgroup
of researchers (both internal and external to NMFS) that are currently
researching changes in oceanographic temperatures, primary
productivity, and prey impacts (and other indicators) during the UME to
help us understand what if any environmental drivers may be impacting
the whales.
Comment 85: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that given the paucity of information on marine
mammal habitat currently available for the HSTT Study Area, efforts
should be undertaken in an iterative manner by NMFS, and the Navy, to
identify additional important habitat areas across the HSTT Study Area,
using the full range of data and information available to the agencies
(e.g., habitat-based density models, NOAA-recognized BIAs, survey data,
oceanographic and other environmental data, etc.).
Response: NMFS and the Navy used the best available scientific
information (e.g., SARs and numerous study reports from Navy-funded
monitoring and research in the specific geographic region) in assessing
density, distribution, and other information regarding marine mammal
use of habitats in the HSTT Study Area. In addition, NMFS consulted
LaBrecque et al. (2015), which provides a specific, detailed assessment
of known BIAs. These BIAs may be region-, species-, and/or time-
specific, include reproductive areas, feeding areas, migratory
corridors, and areas in which small and resident populations are
concentrated. While the science of marine mammal occurrence,
distribution, and density resides as a core NMFS mission, the Navy does
provide extensive support to the NMFS mission via ongoing HSTT specific
monitoring as detailed in this final rule. The Navy also provides
funding support to NMFS for programmatic marine mammal surveys in
Hawaii and the U.S. West Coast, and spatial habitat model improvements.
NMFS and the Navy in collaboration with experts are currently working
to assess and update current BIAs, and identify new BIAs for marine
mammals.
Comment 86: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended integration of important habitat areas to improve
resolution of operations. The delineation of BIAs by NOAA, the updates
made by the Navy to its predictive habitat models, and evidence of
additional important habitat areas within the HSTT Study Area provide
the opportunity for the agencies to improve upon their current approach
to the development of alternatives by improving resolution of their
analysis of operations. The Commenter offered the following thoughts
for consideration.
They state that recognizing that important habitat areas imply the
non-random distribution and density of marine mammals in space and
time, both the spatial location and the timing of training and testing
events in relation to those areas is a significant determining factor
in the assessment of acoustic impacts. Levels of acoustic impact
derived from the NAEMO model are likely to be under- or over-estimated
depending on whether the location of the modeled event is further from
the important habitat area, or closer to it, than the actual event.
Thus, there is a need for the Navy to compile more information
regarding the number, nature, and timing of testing and training events
that take place within, or in close proximity to, important habitat
areas, and to refine its scale of analysis of operations to match the
scale of the habitat areas that are considered to be important. While
the 2018 HSTT proposed rule, in assessing environmental impacts on
marine mammals, breaks down estimated impacts by general region (i.e.,
HRC and SOCAL), the resolution is seldom greater than range complex or
homeport and is not specifically focused on areas of higher biological
importance. Current and ongoing efforts to identify important habitat
areas for marine mammals should be used by NMFS and by the Navy as a
guide to the most appropriate scale(s) for the analysis of operations.
Response: In their take request and effects analysis provided to
NMFS, the Navy considered historic use (number and nature of training
and testing activities) and locational information of training and
testing activities when developing modelling boxes. The timing of
training cycles and testing needs varies based on deployment
requirements to meet current and emerging threats. Due to the
variability, the Navy's description of its specified activities is
structured to provide flexibility in training and testing locations,
timing, and number. In addition, information regarding the exact
location of sonar usage is classified. Due to the variety of factors,
many of which influence locations that cannot be predicted in advance
(e.g., weather), the analysis is completed at a scale that is necessary
to allow for flexibility. The purpose of the Navy's quantitative
acoustic analysis is to provide the best estimate of impact/take to
marine mammals and ESA listed species for the MMPA regulatory and ESA
section 7 consultation analyses. Specifically, the analysis must take
into account multiple Navy training and testing activities over large
areas of the ocean for multiple years; therefore, analyzing activities
in multiple locations over multiple seasons produces the best estimate
of impacts/take to inform the 2018 HSTT FEIS/OEIS and NMFS. Also, the
scale at which spatially explicit marine mammal density models are
structured is determined by the data collection method and the
environmental variables that are used to build the model. Therefore,
altogether, given the variables that determine when and where the Navy
trains and tests, as well as the resolution of the density data, the
analysis of potential impacts is scaled to the level that the data
fidelity will support. NMFS has worked with the Navy over the years to
increase the spatio-temporal specificity of the descriptions of
activities planned in or near areas of biological importance (e.g., in
BIAs or national marine sanctuaries), when possible, and NMFS is
confident that the granularity of information provided sufficiently
allows for an accurate assessment of both the impacts of the Navy's
activities on marine mammal populations and the protective measures
evaluated to mitigate those impacts.
Monitoring Recommendations
Comment 87: In a comment on the 2018 HSTT proposed rule, a
Commenter recommended that NMFS require that the Navy continue to
conduct long-term monitoring with the aim to provide baseline
information on occurrence, distribution, and population structure of
marine mammal species and stocks, and baseline information upon which
the extent of exposure to disturbance from training and testing
activities at the individual, and ultimately, population level-impacts,
and the effectiveness of mitigation measures, can be evaluated. The
Commenter recommended individual-level behavioral-response studies,
such as focal follows and tagging using DTAGs, be carried out before,
during, and after Navy training and testing activities. The Commenter
recommended prioritizing DTAG studies that further characterize the
suite of vocalizations related to social interactions. The Commenter
recommends the use of unmanned aerial vehicles. The Commenter
recommended that NMFS require the Navy to use these
[[Page 41839]]
technologies for assessing marine mammal behavior before, during, and
after Navy training and testing (e.g., swim speed and direction, group
cohesion). Additionally, the Commenter recommended that the Navy
support studies to explore how these technologies can be used to assess
body condition, as this can provide an important indication of energy
budget and health, which can inform the assessment of population-level
impacts.
Response: Broadly speaking, in order to ensure that the monitoring
the Navy conducts satisfies the requirements of the MMPA, NMFS works
closely with the Navy in the identification of monitoring priorities
and the selection of projects to conduct, continue, modify, and/or stop
through the Adaptive Management process, which includes annual review
and debriefs by all scientists conducting studies pursuant to the MMPA
authorization. The process NMFS and the Navy have developed allows for
comprehensive and timely input from the Navy and other stakeholders
that is based on rigorous reporting out from the Navy and the
researchers doing the work. Further, the Navy is pursuing many of the
topics that the Commenter identifies, either through the Navy
monitoring required under the MMPA and ESA, or through Navy-funded
research programs (ONR and LMR). We are confident that the monitoring
conducted by the Navy satisfies the requirements of the MMPA.
With extensive input from NMFS, the Navy established the Strategic
Planning Process under the marine species monitoring program to help
structure the evaluation and prioritization of projects for funding.
Chapter 5 (Mitigation), Section 5.1.2.2.1.3 (Strategic Planning
Process) of the 2018 HSTT FEIS/OEIS provides a brief overview of the
Strategic Planning Process. More detail, including the current
intermediate scientific objectives, is available on the monitoring
portal as well as in the Strategic Planning Process report. The Navy's
evaluation and prioritization process is driven largely by a standard
set of criteria that help the steering committee evaluate how well a
potential project would address the primary objectives of the
monitoring program. NMFS has opportunities to provide input regarding
the Navy's intermediate scientific objectives as well as providing
feedback on individual projects through the annual program review
meeting and annual report. For additional information, please visit:
https://www.navymarinespeciesmonitoring.us/about/strategic-planning-
process/.
Details on the Navy's involvement with future research will
continue to be developed and refined by the Navy and NMFS through the
consultation and adaptive management processes, which regularly
consider and evaluate the development and use of new science and
technologies for Navy applications. The Navy has indicated that it will
continue to be a leader in funding of research to better understand the
potential impacts of Navy training and testing activities and to
operate with the least possible impacts while meeting training and
testing requirements. (1) Individual-level behavioral-response
studies--In addition to the Navy's marine species monitoring program,
investments for individual-level behavioral-response studies, the
Office of Naval Research Marine Mammals and Biology program and the
Navy's Living Marine Resources program continue to heavily invest in
this topic. For example, as of March, 2020 the following representative
studies are currently being funded:
Behavioral Responses of Cetaceans to Naval Sonar 2016-2021
(Organizations: Norwegian Defense Research Establishment, Forsvarets
forskningsinstitutt, University of St. Andrews Sea Mammal Research
Unit);
ACCURATE: ACoustic CUe RATEs for Passive Acoustics Density
Estimation 2019-2023 (Organization: University of St. Andrews);
Acoustic Metadata Management for Navy Fleet Operations
2015-2020 (Organization: San Diego State University);
Acoustic startle responses as aversive reactions and
hearing indicators in cetaceans 2016-2020 (Organization: University of
St. Andrews);
Analytical Methods to Support the Development of Noise
Exposure Criteria for Behavioral Response 2018-2022 (Organizations:
University of St. Andrews Centre for Research into Ecological and
Environmental Modelling and Harris);
Assessing resilience of beaked whale populations to human
impacts: Population structure and genetic diversity in impacted and
semi-pristine areas 2016-2020 (Organization: University of La Laguna);
Behavioral and physiological response studies (BPRS) with
social delphinid cetaceans using operational and simulated military
mid-frequency active sonar 2019-2022 (Organization: Southall
Environmental Associates Inc.);
Behavioral Assessment of Auditory Sensitivity in Hawaiian
Monk Seals 2018-2020 (Organization: University of California Santa
Cruz);
Behavioral response evaluations employing robust baselines
and actual Navy training (BREVE) 2016-2020 (Organizations: Naval
Information Warfare Center Pacific, National Marine Mammal Foundation
Inc.);
Blue and Fin Whale Density Estimation in the Southern
California Offshore Range Using PAM Data 2015-2020 (Organization: Texas
A&M University Galveston);
Cetaceans, pinnipeds, and humans: Monitoring marine
mammals in the Arctic and characterizing their acoustic spaces 2018-
2021 (Organization: University of Washington);
Collection of auditory evoked potential hearing thresholds
in minke whales 2019-2023 (Organization: National Marine Mammal
Foundation Inc.) [in partnership with Subcommittee on Ocean Science and
Technology (SOST)];
Cuvier's Beaked Whale and Fin Whale Behavior During
Military Sonar Operations: Using Medium-term Tag Technology to Develop
Empirical Risk Functions 2017-2021 (Organization: Marine Ecology and
Telemetry Research);
Demographics and diving behavior of Cuvier's beaked whales
at Guadalupe Island, Mexico: A comparative study to better understand
sonar impacts at SCORE 2018-2021 (Organization: Marine Ecology and
Telemetry Research);
Demonstration and Validation of Passive Acoustic Density
Estimation for Right Whales 2019-2022 (Organization: Syracuse
University, University of St. Andrews Centre for Research into
Ecological and Environmental Modelling);
DenMod: Working Group for the Advancement of Marine
Species Density Surface Modeling 2017-2021 (Organization: University of
St. Andrews Centre for Research into Ecological and Environmental
Modelling);
Dynamic marine mammal distribution estimation using
coupled acoustic propagation, habitat suitability and soundscape models
2018-2020 (Organization: Woods Hole Oceanographic Institution);
Environmentally influenced Behavioral Response Evaluations
(E-BREVE) 2019-2022 (Organization: Naval Information Warfare Center
Pacific);
Frequency-dependent Growth and Recovery of TTS in
Bottlenose Dolphins 2017-2020 (Organization: Naval Information Warfare
Center Pacific);
Integrating information on displacement caused by mid-
frequency
[[Page 41840]]
active sonar and measurements of prey field into a population
consequences of disturbance model for beaked whales 2018-2021
(Organizations: Naval Undersea Warfare Center Newport, University of
St. Andrews, Monterey Bay Aquarium Research Institute);
Investigating bone conduction as a pathway for mysticete
hearing 2019-2023 (Organization: San Diego State University);
Measuring the Effect of Range on the Behavioral Response
of Marine Mammals Through the Use of Navy Sonar 2017-2021
(Organization: Naval Undersea Warfare Center Newport);
Multi-spaced Measurement of Underwater Sound Fields from
Explosive Sources 2019-2020 (Organization: University of Washington);
Off-range beaked whale study: Behavior and demography of
Cuvier's beaked whale at the Azores 2017-2020 (Organization: Kelp);
Passive and active acoustic tracking mooring 2019-2020
(Organization: Scripps Institution of Oceanography);
Single sensor and compact array localization methods 2016-
2020 (Organization: University of Hawaii);
Standardizing Methods and Nomenclature for Automated
Detection of Navy Sonar 2018-2021 Project #LMR-34 (Organization: Naval
Information Warfare Center Pacific, Naval Undersea Warfare Center
Newport);
The diet composition of pilot whales, dwarf sperm whales
and pygmy sperm whales in the North Pacific 2017-2020 (Organization:
University of Hawaii);
The use of Navy range bottom-mounted, bi-directional
transducers for long-term, deep-ocean prey mapping 2017-2020
(Organization: Monterey Bay Aquarium Research Institute);
Towards a mysticete audiogram using humpback whales'
behavioral response thresholds 2019-2023 (Organization: University of
Queensland Cetacean Ecology and Acoustics Laboratory) [in partnership
with SOST];
Unifying modeling approaches for better understanding and
characterizing the effects of sound on marine mammals 2019-2022
(Organization: University of California Santa Cruz);
Use of `Chirp' Stimuli for Non-invasive, Low-frequency
Measurement of Marine Mammal Auditory Evoked Potentials 2019-2021
Project #LMR-39 (Organization: Naval Information Warfare Center
Pacific); and
Using context to improve marine mammal classification
2017-2020 (Organization: San Diego State University).
(2) Tags and other detection technologies to characterize social
communication between individuals of a species or stock, including
mothers and calves--DTAGs are just one example of animal movement and
acoustics tag. From the Navy's Office of Naval Research and Living
Marine Resource programs, Navy funding is being used to improve a suite
of marine mammal tags to increase attachment times, improve data being
collected, and improve data satellite transmission. The Navy has funded
a variety of projects that are collecting data that can be used to
study social interactions amongst individuals. For example, as of March
2020 the following studies are currently being funded:
Assessing performance and effects of new integrated
transdermal large whale satellite tags 2018-2021 (Organization: Marine
Ecology and Telemetry Research);
Autonomous Floating Acoustic Array and Tags for Cue Rate
Estimation 2019-2020 (Organization: Texas A&M University Galveston);
Development of the next generation automatic surface whale
detection system for marine mammal mitigation and distribution
estimation 2019-2021 (Organization: Woods Hole Oceanographic
Institution);
High Fidelity Acoustic and Fine-scale Movement Tags 2016-
2020 (Organization: University of Michigan);
Improved Tag Attachment System for Remotely-deployed
Medium-term Cetacean Tags 2019-2023 (Organization: Marine Ecology and
Telemetry Research);
Next generation sound and movement tags for behavioral
studies on whales 2016-2020 (Organization: University of St. Andrews);
On-board calculation and telemetry of the body condition
of individual marine mammals 2017-2021 (Organization: University of St.
Andrews, Sea Mammal Research Unit); and
The wide-band detection and classification system 2018-
2020 (Organization: Woods Hole Oceanographic Institution).
(3) Unmanned Aerial Vehicles to assess marine mammal behavior
before, during, and after Navy training and testing activities (e.g.,
swim speed and direction, group cohesion)--Studies that use unmanned
aerial vehicles to assess marine mammal behaviors and body condition
are being funded by the Office of Naval Research Marine Mammals and
Biology program. Although the technology shows promise (as reviewed by
Verfuss et al., 2019), the field limitations associated with the use of
this technology have hindered its useful application in behavioral
response studies in association with Navy training and testing events.
For safety, research vessels cannot remain in close proximity to Navy
vessels during Navy training or testing events, so battery life of the
unmanned aerial vehicles has been an issue. However, as the technology
improves, the Navy will continue to assess the applicability of this
technology for the Navy's research and monitoring programs. An example
project is integrating remote sensing methods to measure baseline
behavior and responses of social delphinids to Navy sonar 2016-2019
(Organization: Southall Environmental Associates Inc.).
(4) Modeling methods that could provide indicators of population-
level effects--NMFS asked the Navy to expand funding to explore the
utility of other, simpler modeling methods that could provide at least
an indicator of population-level effects, even if each of the
behavioral and physiological mechanisms are not fully characterized.
The Office of Naval Research Marine Mammals and Biology program has
invested in the Population Consequences of Disturbance (PCoD) model,
which provides a theoretical framework and the types of data that would
be needed to assess population level impacts. Although the process is
complicated and many species are data poor, this work has provided a
foundation for the type of data that is needed. Therefore, in the
future, relevant data that is needed for improving the analytical
approaches for population level consequences resulting from
disturbances will be collected during projects funded by the Navy's
marine species monitoring program. General population level trend
analysis is conducted by NMFS through its stock assessment reports and
regulatory determinations. The Navy's analysis of effects to
populations (species and stocks) of all potentially exposed marine
species, including marine mammals and sea turtles, is based on the best
available science as discussed in Sections 3.7 (Marine Mammals) and 3.8
(Reptiles) of the 2018 HSTT FEIS/OEIS. PCoD models, similar to many
fisheries stock assessment models, once developed will be powerful
analytical tools when mature. However, currently they are dependent on
too many unknown factors for these types of models to produce a
reliable answer. Current ONR and LMR projects supporting improved
modeling include (as of March, 2020):
A model for linking physiological measures of individual
health to population vital rates for cetaceans
[[Page 41841]]
2017-2020 (Organization: National Marine Mammal Foundation Inc.);
Body condition as a predictor of behavioral responses of
cetaceans to sonar 2019-2021 (Organization: University of St. Andrews);
Integrating the results of behavioral response studies
into models of the population consequences of disturbance 2019-2021
(Organizations: University of Washington, Naval Undersea Warfare Center
Newport);
Developing metrics of animal condition and their linkage
to vital rates: Further development of the PCoD model 2018-2021
(Organization: University of California Santa Cruz);
Development of an index to measure body condition of free-
ranging cetaceans 2016-2020 (Organization: University of California
Santa Cruz);
Double Mocha: Phase II Multi-Study Ocean acoustic Human
effects Analysis 2018-2021 (Organization: University of St. Andrews
Centre for Research into Ecological and Environmental Modelling);
Dynamics of eDNA 2018-2020 (Organization: Oregon State
University);
Further investigation of blow or exhaled breath condensate
as a non-invasive tool to monitor the physiological response to
stressors in cetaceans 2018-2020 (Organization: Mystic Aquarium);
Heart rate logging in deep diving toothed whales: A new
tool for assessing responses to disturbance 2016-2020 (Organization:
San Jose State University);
Measuring heart rate to assess the stress response in
large whales 2019-2021 (Organization: Stanford University);
Measuring stress hormone levels and reproductive rates in
two species of common dolphins relative to mid-frequency active sonar
within the greater region of the SOAR range, San Clemente Island,
California 2017-2020 (Organization: Southwest Fisheries Science
Center);
MSM4PCoD: Marine Species Monitoring for the Population
Consequences of Disturbance 2019-2023 (Organization: University of St.
Andrews, Sea Mammal Research Unit);
Neurobiological and physiological measurements from free
swimming marine mammals 2019-2022 (Organization: Fundacion
Oceanografic);
Physiological consequences of flight responses in diving
mammals: Critical metrics for assessing the impacts of novel
environmental stimuli on cetaceans and other marine living species
2017-2020 (Organization: University of California Santa Cruz); and
Reconstructing stress and stressor profiles in baleen
whale earplugs 2017-2020 (Organization: Baylor University).
As discussed in the Monitoring section of the final rule, the
Navy's marine species monitoring program typically supports 10-15
projects in the Pacific at any given time. Current projects cover a
range of species and topics from collecting baseline data on occurrence
and distribution, to tracking whales, to conducting behavioral response
studies on beaked whales and pilot whales. The Navy's marine species
monitoring web portal provides details on past and current monitoring
projects, including technical reports, publications, presentations, and
access to available data and can be found at: https://www.navymarinespeciesmonitoring.us/regions/atlantic/current-projects/.
A list of the monitoring studies that the Navy will be conducting under
this rule are listed at the bottom of the Monitoring section of the
2018 HSTT final rule.
In summary, NMFS and the Navy work closely together to prioritize,
review, and adaptively manage the extensive suite of monitoring that
the Navy conducts in order to ensure that it satisfies the MMPA
requirements. NMFS has laid out a broad set of goals that are
appropriate for any entity authorized under the MMPA to pursue, and
then we have worked with the Navy to manage their projects to best
target the most appropriate goals given their activities, impacts, and
assets in the HSTT Study Area. Given the scale of the HSTT Study Area
and the variety of activities conducted, there are many possible
combinations of projects that could satisfy the MMPA standard for the
rule. The Commenter has recommended more and/or different monitoring
than NMFS is requiring and the Navy is conducting or currently plans to
conduct, but has in no way demonstrated that the monitoring currently
being conducted does not satisfy the MMPA standard. NMFS appreciates
the Commenter's input, and will consider it as appropriate in the
context of our adaptive management, but is not recommending any changes
at this time.
Negligible Impact Determination
General
Comment 88: In a comment on the 2018 HSTT proposed rule, Commenters
stated that NMFS' analytical approach for negligible impact
determination is not transparent and that the methods and resulting
data cannot be substantiated with the information provided. Commenters
stated that in general, NMFS has based negligible impact determinations
associated with incidental take authorizations on abundance estimates
provided either in its Stock Assessment Reports (SARs) or other more
recent published literature. For the HSTT proposed rule, NMFS used
abundance estimates as determined by the Navy's underlying density
estimates rather than abundance estimates from either the SARs or
published literature. NMFS also did not specify how it determined the
actual abundance given that many of the densities differ on orders of
kilometers. Interpolation or smoothing, and potentially extrapolation,
of data likely would be necessary to achieve NMFS' intended goal--it is
unclear whether any such methods were implemented. In addition, it is
unclear whether NMFS estimated the abundances in the same manner beyond
the U.S. EEZ as it did within the U.S. EEZ for HRC and why it did not
compare takes within the U.S. EEZ and beyond the U.S. EEZ for SOCAL,
given that a larger proportion of the Navy's SOCAL action area is
beyond the U.S.EEZ than HRC. Furthermore, NMFS did not specify how it
determined the proportion of total takes that would occur beyond the
U.S. EEZ. Moreover, the ``instances'' of the specific types of taking
(i.e., mortality, Level A and B harassment) do not match the total
takes ``inside and outside the EEZ'' in Tables 69-81 (where applicable)
or those take estimates in Tables 41-42 and 67-68 of the 2018 HSTT
proposed rule. It also appears the ``instances'' of take columns were
based on only those takes in the U.S. EEZ for HRC rather than the area
within and beyond the U.S. EEZ. It further is unclear why takes were
not apportioned within and beyond the U.S. EEZ for SOCAL. Given that
the negligible impact determination is based on the total taking in the
entire study area, NMFS should have partitioned the takes in the
``instances'' of take columns in Tables 69-81 of the 2018 HSTT proposed
rule for all activities that occur within and beyond the U.S. EEZ. One
Commenter further asserts that any ``small numbers'' determination that
relies on abundance estimates derived simplistically from modeled
densities is both arbitrary and capricious. The Commenters assert that
NMFS should, at least for data rich species, derive its absolute
abundance estimates from NMFS' SARs or more recently published
literature.
Response: NMFS' Analysis and Negligible Impact Determination
section was updated and expanded in the 2018 HSTT final rule to clarify
the issues the
[[Page 41842]]
Commenters raised here (as well as others). Specifically, though, NMFS
uses both the Navy-calculated abundance (based on the Navy-calculated
densities described in detail in the Estimated Take of Marine Mammal
section) and the SARs abundances, where appropriate, in the negligible
impact analysis--noting that the nature of the overlap of the Navy
Study Area with the U.S. EEZ is different in Hawaii versus SOCAL,
supporting different analytical comparisons.
NMFS acknowledges that there were a few small errors in the take
numbers in the proposed rule; however, they have been corrected (i.e.,
the take totals in Tables 41 and 42 of the 2018 HSTT proposed rule for
a given stock now equal the ``in and outside the U.S. EEZ'' take totals
in Tables 41 and 42 (of the HSTT final rule) and the minor changes do
not affect the analysis or determinations in the rule.
Also, the Commenters are incorrect that the instances of take for
HRC do not reflect the take both within and outside the U.S. EEZ. They
do. Lastly, the Commenter mentions the agency making a ``small
numbers'' determination, but such a determination is not applicable in
the context of military readiness activities.
Comment 89: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that the activities proposed by the Navy include high-
intensity noise pollution, vessel traffic, explosions, pile driving,
and more at a massive scale. According to the Commenter, NMFS has
underestimated the amount of take and the adverse impact that it will
have on marine mammals and their habitat.
Response: NMFS has provided extensive information demonstrating
that the best available science has been used to estimate the amount of
take, and further to analyze the impacts that all of these takes
combined will have on the affected species and stocks. As described in
the Analysis and Negligible Impact Determination section, this
information and our associated analyses support the negligible impact
determinations necessary to issue these regulations.
Comment 90: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that blue whales exposed to mid-frequency sonar (with
received levels of 110 to 120 dB re: 1 [mu]Pa) are less likely to
produce calls associated with feeding behavior. They cite the Goldbogen
et al. (2013) study (and a subsequent study) as extremely concerning
because of the potential impacts of sonar on the essential life
functions of blue whales as it found that sonar can disrupt feeding and
displace blue whales from high-quality prey patches, significantly
impacting their foraging ecology, individual fitness, and population
health. They also state that mid-frequency sonar has been associated
with several cases of blue whale stranding events and that low-
frequency anthropogenic noise can mask calling behavior, reduce
communication range, and damage hearing. These impacts from sonar on
blue whales suggest that the activities' impacts would have long-term,
non-negligible impacts on the blue whale population.
Response: As described in this final rule in the Analysis and
Negligible Impact Determination section, NMFS has fully considered the
effects that exposure to sonar can have on blue whales, including
impacts on calls and feeding and those outlined in the Goldbogen study.
However, as discussed, any individual blue whale is not expected to be
exposed to sonar and taken on more than several days per year. Thus,
while vocalizations may be impacted or feeding behaviors temporarily
disrupted, this small scale of impacts is not expected to affect
reproductive success or survival of any individuals, especially given
the limitations on sonar and explosive use within blue whale BIAs. Of
additional note, while the blue whale behavioral response study (BRS)
in Southern California documented some foraging responses by blue
whales to simulated Navy sonar, any response was highly variable by
individual and context of the exposure. There were, for instance, some
individual blue whales that did not respond. Recent Navy-funded blue
whale tracking has documented wide ranging movements through Navy areas
such that any one area is not used extensively for foraging. More long-
term blue whale residency occurs north of and outside of the HSTT Study
Area. Further, we disagree with the assertion that MFAS has been
causally associated with blue whale strandings. This topic was
discussed at length in the proposed rule and there is no data causally
linking MFAS use with blue whale strandings.
Comment 91: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that NMFS cannot consider the additional mortality/
serious injury, including the 0.2 in the proposed authorization for
ship strike for blue whales in the 2018 HSTT proposed rule, to have a
negligible impact for this stock. They also state that counts of
mortality/serious injury do not account for the additional takes
proposed to be authorized that cumulatively can have population level
impacts from auditory injury and behavioral disturbance. Similarly, the
Commenter stated that NMFS cannot consider the proposed authorization
for 0.4 annual mortality/serious injury to have a negligible impact on
the CA/OR/WA stock of humpback whales in the 2018 HSTT proposed rule
because take is already exceeding the potential biological removal, and
especially concerning is any take authorized for the critically
endangered Central America population that would have significant
adverse population impacts.
Response: As described in detail in the Estimated Take of Marine
Mammals section, the Navy and NMFS revisited and re-analyzed the Navy's
initial request of takes by mortality of blue and humpback whales from
vessel strike and determined that only one strike of either would be
possible over the course of five years in the 2018 HSTT final rule, and
therefore authorized the lesser amount. Further, NMFS has expanded and
refined the discussion of mortality take, PBR, and our negligible
impact finding in the Serious Injury and Mortality subsection of the
Analysis and Negligible Impact Determination section and does not
repeat it here.
Comment 92: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that the estimated population size for the Hawaii
stock of sei whales is only 178 animals, and the potential biological
removal is 0.2 whales per year. According to the Commenter, NMFS admits
that the mortality for the Hawaii stock of sei whales is above
potential biological removal. The Commenter asserted that the
conclusion that the action will have a negligible impact on this stock
is arbitrary and capricious.
Response: As described in detail in the Estimated Take of Marine
Mammals section, the Navy and NMFS revisited and re-analyzed the Navy's
initial request for the take of a sei whale from vessel strike and
determined that this take is unlikely to occur and, therefore, it is
not authorized.
Comment 93: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that any take of Hawaiian monk seal by the proposed
activities will have a non-negligible impact given the precarious
status of this species.
Response: NMFS' rationale for finding that the Navy's activity will
have a negligible impact on monk seals is included in the Pinniped
subsection of the Analysis and Negligible Impact Determination section
and is not re-printed here. Nonetheless, we reiterate that no mortality
or injury due to tissue damage is anticipated or authorized, only one
instance of PTS is estimated
[[Page 41843]]
and authorized, and no individual monk seal is expected to be exposed
to stressors that would result in take more than a few days a year.
Further, the Hawaii Island and 4-Island Region mitigation areas provide
significant protection of monk seal critical habitat in the Main
Hawaiian Islands, reducing impacts from sonar and explosives around a
large portion of pupping beaches and foraging habitat, as described in
the Mitigation Measures section.
Comment 94: In a comment on the 2019 HSTT proposed rule, Commenters
stated that satellite telemetry data and eight years' worth of photo-
identification and mark-recapture data, representing the best available
science, indicate that San Nicolas Basin represents an area of high
site fidelity, and residency, for a small population of Cuvier's beaked
whales associated with San Clemente Island (Falcone et al., 2009;
Falcone et al., 2014; Schorr et al., 2014). They stated that the
population's primary habitat overlaps directly with the SOAR Range.
They asserted that many factors--their repeated exposure to Navy
activities, their clear foraging-related responses to both controlled
sonar playbacks (DeRuiter et al., 2013) and live exercises (Falcone et
al., 2017), and their small abundance and apparently limited range--
raise obvious concerns about population-level consequences for these
whales (Claridge and Dunn, 2014, Moretti et al., 2015). The Commenters
asserted that without meaningful additional mitigation, they do not see
how NMFS can conclude that population-level harm would not occur or,
ultimately, how NMFS can credibly reach a finding of negligible impact
with respect to this population.
Response: As noted in our response to a similar comment (Comment 97
below) on the 2018 HSTT proposed rule, NMFS acknowledges the
sensitivity of small resident populations both in our analyses and in
the identification of mitigation measures, where appropriate. However,
we are required to make our negligible impact determination in the
context of the MMPA-designated stock, which, in the case of the CA/OR/
WA stock of Cuvier's beaked whale, spans the U.S. EEZ off the U.S. West
Coast. As described in our responses to previous comments, NMFS and the
Navy have fully accounted for the sensitivity of Cuvier's beaked whales
in the behavioral thresholds and the estimation of take. NMFS has also
considered the potential impacts of repeated takes on individuals that
show site fidelity. Nonetheless, in 2020, an estimate of overall
abundance of Cuvier's beaked whales at the Navy's instrumented range in
San Nicolas Basin was obtained using new dive-counting acoustic methods
and an archive of passive acoustic M3R data representing 49,855 hrs of
data (DiMarzio et al., 2020; Moretti, 2017). Over the ten-year period
from 2010-2019, there was no observed decrease and perhaps a slight
increase in annual Cuvier's beaked whale abundance within San Nicolas
Basin (DiMarzio et al., 2020). There does appear to be a repeated dip
in population numbers and associated echolocation clicks during the
fall centered around August and September (Moretti, 2017, DiMarzio et
al., 2020). A similar August and September dip was noted by researchers
using stand-alone off-range bottom passive acoustic devices in Southern
California ([Scaron]irovi[cacute] et al., 2016; Rice et al., 2017,
2019, 2020). This dip in abundance may be tied to some as of yet
unknown population dynamic or oceanographic and prey availability
dynamics.
Comment 95: In a comment on the 2019 HSTT proposed rule, due to the
circumstances for gray whales (described in Comment 78) Commenters
asserted that in considering the effects of acoustic exposure on gray
whales, NMFS cannot presume that the consequences of the Navy's
behavioral disruption will be ``minor'' or ``short-term.'' They
asserted that NMFS must carefully consider the biological context of
behavioral disruption on that species and evaluate the meaningful risk
of serious or severe consequences, including mortality.
Response: NMFS acknowledges that individual marine mammals that are
emaciated or have underlying health issues, such as some gray whales
have experienced, may be impacted more severely by exposure to
additional stressors than healthy animals. However, the expected nature
and short duration of any individual gray whale's exposure to Navy
activity is still such that impacts would not be expected to be
compounded to the point where individual fitness is affected.
Specifically, gray whales seasonally migrate through the Southern
California portion of the HSTT Study Area and are not known to forage
in the HSTT Study Area. Most gray whales spend only brief periods of
time (days) in the HSTT Study Area and we have no reason to expect that
the anticipated incremental, short term, and predominately low-level
behavioral responses to transitory stressors such as Navy training and
testing activities will have impacts on individual gray whale fitness,
much less adversely affect the stock at the population level. Also, as
noted previously, both the Eastern Pacific stock (not ESA listed) and
the Western Pacific stock of gray whales is described as increasing in
the 2018 final SARs (the most recent SARs for these stocks). The
population size of the Eastern North Pacific gray whale stock has
increased over several decades despite an UME in 1999 and 2000.
Cumulative and Aggregate Effects
Comment 96: In a comment on the 2018 HSTT proposed rule, a
Commenter asserted that NMFS has not apparently considered the impact
of Navy activities on a population basis for many of the marine mammal
populations within the HSTT Study Area. Instead, it has lodged
discussion for many populations within broader categories, most
prominently ``mysticetes'' (14 populations) and ``odontocetes'' (37
populations), that in some cases correspond to general taxonomic
groups. Such grouping of stocks elides important differences in
abundance, demography, distribution, and other population-specific
factors, making it difficult to assume ``that the effects of an
activity on the different stock populations'' are identical. That is
particularly true where small, resident populations are concerned, and
differences in population abundance, habitat use, and distribution
relative to Navy activities can be profoundly significant.
Additionally, the Commenter stated that NMFS assumed that all of the
Navy's estimated impacts would not affect individuals or populations
through repeated activity--even though the takes anticipated each year
would affect the same populations and, indeed, would admittedly involve
extensive use of some of the same biogeographic areas.
Response: NMFS provides information regarding broader groups in
order to avoid repeating information that is applicable across multiple
species or stocks, but analyses have been conducted and determinations
made specific to each stock. The method used to avoid repeating
information applicable to a number of species or stocks while also
presenting and integrating all information applicable to particular
species or stocks is described in the rule. Also, NMFS' analysis does
address the fact that some individuals may be repeatedly impacted and
how those impacts may or may not accrue to more serious effects. The
Analysis and Negligible Impact Determination section has been expanded
and refined to better explain this.
Comment 97: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that NMFS' negligible impact analysis for Cuvier's
beaked whales is
[[Page 41844]]
predicated on a single take estimate for the CA/OR/WA stock. This is
deeply problematic as the species is known to occur in small, resident
populations within the SOCAL Range Complex. These populations are
acutely vulnerable to Navy sonar. Cuvier's beaked whales have
repeatedly been associated with sonar-related pathology, are known to
react strongly to sonar at distances up to 100 kilometers, and are
universally regarded to be among the most sensitive of all marine
mammals to anthropogenic noise (Falcone et al., 2017). Some
populations, such as the one in San Nicolas Basin that coincides with
the Navy's much-used Southern California ASW Range (SOAR), are
repeatedly exposed to sonar, posing the same risk of population-wide
harm documented on a Navy range in the Bahamas (Falcone and Schorr,
2013). The broad take estimates presented in the 2018 HSTT proposed
rule, and the negligible impact analysis that they are meant to
support, provide no insight into the specific impacts proposed for
these small populations.
Response: NMFS acknowledges the sensitivity of small resident
populations both in our analyses and in the identification of
mitigation measures, where appropriate. However, we are required to
make our negligible impact determination in the context of the MMPA-
designated stock, which, in the case of the CA/OR/WA stock of Cuvier's
beaked whale, spans the U.S. EEZ off the West Coast. As described in
our responses to previous comments, NMFS and the Navy have fully
accounted for the sensitivity of Cuvier's beaked whales in the
behavioral thresholds and the estimation of take. Further, contrary to
the assertions of the Commenter, NMFS has absolutely considered the
potential impacts of repeated takes on individuals that show site
fidelity and that analysis can be found in the Analysis and Negligible
Impact Determination section, which has been refined and updated since
the proposed rule based on public input. Nonetheless, in 2020, an
estimate of overall abundance of Cuvier's beaked whales at the Navy's
instrumented range in San Nicolas Basin was obtained using new dive-
counting acoustic methods and an archive of passive acoustic M3R data
representing 49,855 hrs of data (DiMarzio et al., 2020; Moretti, 2017).
Over the ten-year period from 2010-2019, there was no observed decrease
and perhaps a slight increase in annual Cuvier's beaked whale abundance
within San Nicolas Basin (DiMarzio et al., 2020). There does appear to
be a repeated dip in population numbers and associated echolocation
clicks during the fall centered around August and September (Moretti,
2017, DiMarzio et al., 2020). A similar August and September dip was
noted by researchers using stand-alone off-range bottom passive
acoustic devices in Southern California ([Scaron]irovi[cacute] et al.,
2016; Rice et al., 2017, 2019, 2020). This dip in abundance may be tied
to some as of yet unknown population dynamic or oceanographic and prey
availability dynamics.
Comment 98: In a comment on the 2018 HSTT proposed rule, a
Commenter asserted that with respect to mortalities and serious
injuries, NMFS' application of potential biological removal (PBR) is
unclear and may not be consistent with its prior interpretations. The
agency recognizes that PBR is a factor in determining whether the
negligible impact threshold has been exceeded, but argues that, since
PBR and negligible impact are different statutory standards, NMFS might
find that an activity that kills marine mammals beyond what PBR could
support would not necessarily exceed the negligible impact threshold.
Regardless, however, of whether Congress intended PBR as a formal
constraint on NMFS' ability to issue incidental take permits under
section 101(a)(5), NMFS' own definition of ``negligible impact''
prevents it from authorizing mortalities or other takes that would
threaten the sustainability of marine mammal stocks. Mortalities and
serious injuries exceeding potential biological removal levels would do
just that.
Additionally, in assessing the consequences of authorized mortality
below PBR, NMFS applies an ``insignificance'' standard, such that any
lethal take below 10 percent of residual PBR is presumed not to exceed
the negligible impact threshold. This approach seems inconsistent,
however, with the regulatory thresholds established for action under
the commercial fisheries provision of the Act, where bycatch of 1
percent of total PBR triggers mandatory take reduction procedures for
strategic marine mammal stocks. See 16 U.S.C. 1387(f)(1); 83 FR 5349,
5349 (Feb. 7, 2018). NMFS should clarify why it has chosen 10 percent
rather than, for example, 1 percent as its ``insignificance''
threshold, at least for endangered species and other populations
designated as strategic under the MMPA.
Response: NMFS disagrees that the consideration of PBR is unclear
and notes that the narrative describing the application of PBR has been
updated in this final rule to further explain how the agency considers
this metric in the context of the negligible impact determination under
section 101(a)(5)(A) (see the Serious Injury and Mortality sub-section
of the Analysis and Negligible Impact Determination section) and is not
repeated here. That discussion includes how PBR is calculated and
therefore how it is possible for anticipated M/SI to exceed PBR or
residual PBR and yet not adversely affect a particular species or stock
through effects on annual rates of recruitment and survival.
Regarding the insignificance threshold, as explained in the rule,
residual PBR is a metric that can be used to inform the assessment of
M/SI impacts, and the insignificance threshold is an analytical tool to
help prioritize analyst effort. But the insignificance threshold is not
applied as a strict presumption as described by the Commenter. Although
it is true that as a general matter M/SI that is less than 10 percent
of residual PBR should have no effect on rates of recruitment or
survival, the agency will consider whether there are other factors that
should be considered, such as whether an UME is affecting the species
or stock.
The 10 percent insignificance threshold is an analytical tool that
indicates that the potential mortality or serious injury is an
insignificant incremental increase in anthropogenic mortality and
serious injury that alone (in the absence of any other take and any
other unusual circumstances) would clearly not affect rates of
recruitment or survival. As such, potential mortality and serious
injury at the insignificance-threshold level or below is evaluated in
light of other relevant factors (such as an ongoing UME) and then
considered in conjunction with any anticipated Level A or Level B
harassment take to determine if the total take would affect annual
rates of recruitment or survival. Ten percent was selected because it
corresponds to the insignificance threshold under the MMPA framework
for authorizing incidental take of marine mammals resulting from
commercial fisheries. There the insignificance threshold, which also is
10 percent of PBR, is ``the upper limit of annual incidental mortality
and serious injury of marine mammal stocks by commercial fisheries that
can be considered insignificant levels approaching a zero mortality and
serious injury rate'' (see 50 CFR 229.2). A threshold that represents
an insignificant level of mortality or serious injury approaching a
zero mortality and serious injury rate was thought to be an appropriate
level to indicate when, absent other factors, the
[[Page 41845]]
agency can be confident that expected mortality and serious injury will
not affect annual rates of recruitment and survival, without the need
for significant additional analysis.
Regarding the claim that NMFS' interpretation of PBR may be
inconsistent with prior interpretations, we disagree. Rather, NMFS'
interpretation of PBR has been utilized appropriately within the
context of the different MMPA programs and associated statutory
standards it has informed. The application of PBR under section
101(a)(5)(A) also has developed and been refined in response to
litigation and as the amount of and nature of M/SI requested pursuant
to this section has changed over time, thereby calling for the agency
to take a closer look at how M/SI relative to PBR relates to effects on
rates of recruitment and survival.
Specifically, until recently, NMFS had used PBR relatively few
times to support determinations outside of the context of MMPA
commercial fisheries assessments and decisions. Indeed, in Georgia
Aquarium, Inc. v. Pritzker, 135 F. Supp.3d 1280 (N.D. Ga. 2015), in
ruling on a lawsuit in which the plaintiffs sought to use PBR as the
reason they should be allowed to import animals from the Sahklin-Amur
stock of beluga whales for public display, the Court summarized a
``handful'' of cases where NMFS had used PBR to support certain agency
findings. The Court agreed that the agency does not have a ``practice
and policy'' of applying PBR in all circumstances. Importantly, the
Court stated that ``NMFS has shown that where the Agency has considered
PBR outside of the U.S. commercial fisheries context, it has treated
PBR as only one `quantitative tool' and that it is not used as the sole
basis for its impact analyses,'' just as NMFS has done here for its
negligible impact analyses.
The examples considered by the Georgia Aquarium Court involved
scientific research permits or subsistence harvest decisions where
reference to PBR was one consideration among several. Thus, in one of
the examples referenced by the Court, PBR was included to evaluate
different alternatives in a 2007 EIS developed in support of future
grants and permits related to research on northern fur seals and
Steller sea lions (available at https://repository.library.noaa.gov/view/noaa/17331). Similarly, in the 2015 draft EIS on the Makah Tribe's
request to hunt gray whales, different levels of harvest were compared
against PBR along with other considerations in the various alternatives
(available at https://www.westcoast.fisheries.noaa.gov/publications/protected_species/marine_mammals/cetaceans/gray_whales/makah_deis_feb_2015.pdf). Consistent with what the Georgia Aquarium
Court found, in both of those documents PBR was one consideration in
developing alternatives for the agency's EIS and not determinative in
any decision-making process.
After 2013 in response to an incidental take authorization request
from NMFS' Southwest Fisheries Science Center that contained PBR
analysis and more particularly in response to a District Court's March
2015 ruling that NMFS' failure to consider PBR when evaluating lethal
take under section 101(a)(5)(A) violated the requirement to use the
best available science (see Conservation Council for Hawaii v. National
Marine Fisheries Service, 97 F. Supp.3d 1210 (D. Haw. 2015)), NMFS
began to systematically consider the role of PBR when evaluating the
effects of M/SI during section 101(a)(5)(A) rulemakings. Previously, in
1996 shortly after the PBR metric was first introduced, NMFS denied a
request from the U.S. Coast Guard for an incidental take authorization
for their vessel and aircraft operations, seemingly solely on the basis
of the potential for ship strike in relation to PBR. The decision did
not appear to consider other factors that might also have informed the
potential for ship strike of a North Atlantic right whale in relation
to the negligible impact standard.
During the following years and until the Court's decision in
Conservation Council and the agency issuing the proposed incidental
take authorization for the Southwest Fisheries Science Center, NMFS
issued incidental take regulations without referencing PBR. Thereafter,
however, NMFS began considering and articulating the appropriate role
of PBR when processing incidental take requests for M/SI under section
101(a)(5)(A). Consistent with the interpretation of PBR across the rest
of the agency, NMFS' Permits and Conservation Division has been using
PBR as a tool to inform the negligible impact analysis under section
101(a)(5)(A), recognizing that it is not a dispositive threshold that
automatically determines whether a given amount of M/SI either does or
does not exceed a negligible impact on the affected species or stock.
Comment 99: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that NMFS failed to adequately assess the aggregate
effects of all of the Navy's activities included in the rule. The
Commenter alleges that NMFS' lack of analysis of these aggregate
impacts, which is essential to any negligible impact determination,
represents a glaring omission from the proposed rule. While NMFS states
that Level B behavioral harassment (aside from those caused by masking
effects) involves a stress response that may contribute to an animal's
allostatic load, it assumes without further analysis that any such
impacts would be insignificant.
Response: NMFS did analyze the potential for aggregate effects from
mortality, injury, masking, habitat effects, energetic costs, stress,
hearing loss, and behavioral harassment from the Navy's activities in
reaching the negligible impact determinations. Significant additional
discussion has been added to the Analysis and Negligible Impact
Determination section of the final rule to better explain the potential
for aggregate or cumulative effects on individuals as well as how these
effects on individuals relate to potential effects on annual rates of
recruitment and survival for each species or stock.
In addition, NMFS fully considers the potential for aggregate
effects from all Navy activities. We also consider UMEs and previous
environmental impacts, where appropriate, to inform the baseline levels
of both individual health and susceptibility to additional stressors,
as well as stock status. Further, the species and stock-specific
assessments in the Analysis and Negligible Impact Determination section
(which have been updated and expanded) pull together and address the
combined mortality, injury, behavioral harassment, and other effects of
the aggregate HSTT activities (and in consideration of applicable
mitigation) as well as other information that supports our
determinations that the Navy activities will not adversely affect any
species or stocks via impacts on rates of recruitment or survival. We
refer the reader to the Analysis and Negligible Impact Determination
section for this analysis.
Widespread, extensive monitoring since 2006 on Navy ranges that
have been used for training and testing for decades has demonstrated no
evidence of population-level impacts. Based on the best available
research from NMFS and Navy-funded marine mammal studies, there is no
evidence that ``population-level harm'' to marine mammals, including
beaked whales, is occurring in the HSTT Study Area. The presence of
numerous small, resident populations of cetaceans, documented high
abundances, and populations trending to increase for many marine
mammals species in the area suggests there are not likely population-
level
[[Page 41846]]
consequences resulting from decades of ongoing Navy training and
testing activities. Through the process described in the rule and the
LOAs, the Navy will work with NMFS to assure that the aggregate or
cumulative impacts remain at the negligible impact level.
Regarding the consideration of stress responses, NMFS does not
assume that the impacts are insignificant. There is currently neither
adequate data nor a mechanism by which the impacts of stress from
acoustic exposure can be reliably and independently quantified.
However, stress effects that result from noise exposure likely often
occur concurrently with behavioral harassment and many are likely
captured and considered in the quantification of other takes by
harassment that occur when individuals come within a certain distance
of a sound source (behavioral harassment, PTS, and TTS).
Comment 100: In a comment on the 2018 HSTT proposed rule,
Commenters asserted that in reaching our MMPA negligible impact
finding, NMFS did not adequately consider the cumulative impacts of the
Navy's activities when combined with the effects of other non-Navy
activities.
Response: Both the statute and the agency's implementing
regulations call for analysis of the effects of the applicant's
activities on the affected species and stocks, not analysis of other
unrelated activities and their impacts on the species and stocks. That
does not mean, however, that effects on the species and stocks caused
by other non-Navy activities are ignored. The preamble for NMFS'
implementing regulations under section 101(a)(5) (54 FR 40338;
September 29, 1989) explains in response to comments that the impacts
from other past and ongoing anthropogenic activities are to be
incorporated into the negligible impact analysis via their impacts on
the environmental baseline. Consistent with that direction, NMFS has
factored into its negligible impact analyses the impacts of other past
and ongoing anthropogenic activities via their impacts on the baseline
(e.g., as reflected in the density/distribution and status of the
species, population size and growth rate, and other relevant stressors
(such as incidental mortality in commercial fisheries or UMEs)). See
the Analysis and Negligible Impact Determination section of this rule
and the 2018 HSTT final rule.
Our 1989 final rule for the MMPA implementing regulations also
addressed public comments regarding cumulative effects from future,
unrelated activities. There we stated that such effects are not
considered in making findings under section 101(a)(5) concerning
negligible impact. We indicated that NMFS would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis
and also that reasonably foreseeable cumulative effects would be
considered under section 7 of the ESA for ESA-listed species.
Also, as described further in the Analysis and Negligible Impact
Determination section of the final rule, NMFS evaluated the impacts of
HSTT authorized mortality on the affected stocks in consideration of
other anticipated human-caused mortality, including the mortality
predicted in the SARs for other activities along with other NMFS-
permitted mortality (i.e., authorized as part of the Southwest
Fisheries Science Center rule), using multiple factors, including PBR.
As described in more detail in the Analysis and Negligible Impact
Determination section, PBR was designed to identify the maximum number
of animals that may be removed from a stock (not including natural
mortalities) while allowing that stock to reach or maintain its OSP and
is also helpful in informing whether mortality will adversely affect
annual rates of recruitment or survival in the context of a section
101(a)(5)(A).
NEPA
Comment 101: In a comment on the 2018 HSTT proposed rule,
Commenters stated that NMFS cannot rely on the 2018 HSTT FEIS/OEIS to
fulfill its obligations under NEPA because the purpose and need is too
narrow and does not support NMFS' MMPA action, and therefore the 2018
HSTT FEIS/OEIS does not explore a reasonable range of alternatives.
Response: The proposed action at issue is the Navy's proposal to
conduct testing and training activities in the HSTT Study Area. NMFS is
a cooperating agency for that proposed action, as it has jurisdiction
by law and special expertise over marine resources impacted by the
proposed action, including marine mammals and federally-listed
threatened and endangered species. Consistent with the regulations
published by the Council on Environmental Quality (CEQ), it is common
and sound NEPA practice for NOAA to adopt a lead agency's NEPA analysis
when, after independent review, NOAA determines the document to be
sufficient in accordance with 40 CFR 1506.3. Specifically here, NOAA
must be satisfied that the EIS adequately addresses the impacts of
issuing the MMPA incidental take authorization and that NOAA's comments
and concerns have been adequately addressed. There is no requirement in
CEQ regulations that NMFS, as a cooperating agency, issue a separate
purpose and need statement in order to ensure adequacy and sufficiency
for adoption. Nevertheless, the Navy, in coordination with NMFS, has
clarified the statement of purpose and need in the 2018 HSTT FEIS/OEIS
to more explicitly acknowledge NMFS' action of issuing an MMPA
incidental take authorization. NMFS also clarified how its regulatory
role under the MMPA related to the Navy's activities. NMFS' early
participation in the NEPA process and role in shaping and informing
analyses using its special expertise ensured that the analysis in the
2018 HSTT FEIS/OEIS is sufficient for purposes of NMFS' own NEPA
obligations related to its issuance of incidental take authorization
under the MMPA.
Regarding the alternatives, NMFS' early involvement in development
of the 2018 HSTT FEIS/OEIS and role in evaluating the effects of
incidental take under the MMPA ensured that the 2018 HSTT FEIS/OEIS
would include adequate analysis of a reasonable range of alternatives.
The 2018 HSTT FEIS/OEIS includes a No Action Alternative specifically
to address what could happen if NMFS did not issue an MMPA
authorization. The other two Alternatives address two action options
that the Navy could potentially pursue while also meeting their
mandated Title 10 training and testing responsibilities. More
importantly, these alternatives fully analyze a comprehensive variety
of mitigation measures. This mitigation analysis supported NMFS'
evaluation of our options in potentially issuing an MMPA authorization,
which, if the authorization may be issued, primarily revolves around
the appropriate mitigation to prescribe. This approach to evaluating a
reasonable range of alternatives is consistent with NMFS policy and
practice for issuing MMPA incidental take authorizations. NOAA has
independently reviewed and evaluated the EIS, including the purpose and
need statement and range of alternatives, and determined that the 2018
HSTT FEIS/OEIS fully satisfies NMFS' NEPA obligations related to its
decision to issue the MMPA final rule and associated LOAs, and we have
adopted it.
Endangered Species Act
Comment 102: In a comment on the 2018 HSTT proposed rule, a
Commenter stated that under the ESA NMFS has the discretion to impose
terms, conditions, and mitigation on any authorization.
[[Page 41847]]
They believe the proposed action clearly affects listed whales, sea
turtles, and Hawaiian monk seals, triggering the duty to consult. The
Commenter urged NMFS to fully comply with the ESA and implement robust
reasonable and prudent alternatives and conservation measures to avoid
harm to endangered species and their habitats.
Response: NMFS has fully complied with the ESA. The agency
consulted pursuant to section 7 of the ESA and NMFS' ESA Interagency
Cooperation Division provided a biological opinion concluding that
NMFS' action of issuing MMPA incidental take regulations for the Navy
HSTT activities would not jeopardize the continued existence of any
threatened or endangered species and nor would it adversely modify any
designated critical habitat. The biological opinion may be viewed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
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 10
along with the best/minimum abundance estimate and associated
coefficient of variation value. The Navy anticipates the take of
individuals from 38 marine mammal species \3\ 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. The Navy
requested authorization for 13 serious injuries or mortalities combined
of two marine mammal stocks from explosives, and three takes of large
whales by serious injury or mortality from vessel strikes over the
seven-year period. Two marine mammal species, the Hawaiian monk seal
and the Main Hawaiian Islands Insular Distinct Population Segment (DPS)
of false killer whale, have critical habitat designated under the
Endangered Species Act (16 U.S.C. 1531 et seq.; ESA) in the HSTT Study
Area.
---------------------------------------------------------------------------
\3\ In the 2018 HSTT final rule the number of species was
unintentionally presented incorrectly as 39 and is corrected here.
This transcription error does not affect the analysis or conclusions
reached in the 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, biologically important
areas (BIAs), national marine sanctuaries (NMSs)), and unusual
mortality events (UMEs) in the 2018 HSTT proposed rule and 2018 HSTT
final rule; please see these rules and the 2017 and 2019 Navy
applications for complete information. There have been no changes to
important marine mammal habitat, BIAs, NMSs, or ESA designated critical
habitat since the issuance of the 2018 HSTT final rule; therefore the
information that supports our determinations here can be found in the
2018 HSTT proposed and final rules. However, since publication of the
2018 HSTT final rule, NMFS published a proposed rule to designate ESA
critical habitat for the Central America and Mexico DPSs of humpback
whales on October 9, 2019 (84 FR 54354). In the proposed rule only
critical habitat Unit 19 overlapped with the HSTT Study Area, and NMFS
proposed to exclude this unit from the critical habitat designation
based on consideration of national security. A final rule designating
critical habitat for these two DPSs of humpback whales has not been
published.
NMFS also has reviewed the most recent 2019 draft Stock Assessment
Reports (SARs) and 2018 final SARs (Carretta et al., 2019, which can be
found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments); information on relevant
UMEs; and new scientific literature (see the Potential Effects of
Specified Activities on Marine Mammals and their Habitat section), and
determined that none of these nor any other new information changes our
determination of which species or stocks have the potential to be
affected by the Navy's activities or the pertinent information in the
Description of Marine Mammals and Their Habitat in the Area of the
Specified Activities section in the 2018 HSTT proposed and final rules.
Therefore, the information presented in those sections of the 2018 HSTT
proposed and final rules remains current and valid.
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, in which case, these stocks are not
considered further.
Table 10--Marine Mammal Occurrence Within the HSTT Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Status \1\ Stock abundance
Common name Scientific name Stock ------------------------------------ Occurrence Seasonal (CV)/minimum
MMPA ESA absence population \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale................... Balaenoptera Eastern North Strategic, Endangered...... Southern ............... 1,496 (0.44)/
musculus. Pacific. Depleted. California. 1,050
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......... ............... 1,751 (0.29)/
1,378
Fin whale.................... Balaenoptera CA/OR/WA........ Strategic, Endangered...... Southern ............... 9,029 (0.12)/
physalus. Depleted. California. 8,127
Hawaii.......... Strategic, Endangered...... Hawaii......... Summer......... 154 (1.05)/75
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.
Humpback whale............... Megaptera CA/OR/WA........ Strategic, Threatened/ Southern ............... 2,900 (0.05)/
novaeangliae. Depleted. Endangered \3\. California. 2,784
Central North Strategic....... ................ Hawaii......... Summer......... 10,103 (0.30)/
Pacific. 7,891
Minke whale.................. Balaenoptera CA/OR/WA........ ................ ................ Southern ............... 636 (0.72)/369
acutorostrata. California.
Hawaii.......... ................ ................ Hawaii......... Summer......... unknown
Sei whale.................... Balaenoptera Eastern North Strategic, Endangered...... Southern ............... 519 (0.40)/374
borealis. Pacific. Depleted. California.
Hawaii.......... Strategic, Endangered...... Hawaii......... Summer......... 391 (0.90)/204
Depleted.
Sperm whale.................. Physeter CA/OR/WA........ Strategic, Endangered...... Southern ............... 1,997 (0.57)/
macrocephalus. Depleted. California. 1,270
Hawaii.......... Strategic, Endangered...... Hawaii......... ............... 4,559 (0.33)/
Depleted. 3,478
Pygmy sperm whale............ Kogia breviceps. CA/OR/WA........ ................ ................ Southern Winter and Fall 4,111 (1.12)/
California. 1,924
Hawaii.......... ................ ................ Hawaii......... ............... unknown
[[Page 41848]]
Dwarf sperm whale............ Kogia sima...... CA/OR/WA........ ................ ................ Southern ............... unknown
California.
Hawaii.......... ................ ................ Hawaii......... ............... unknown
Baird's beaked whale......... Berardius CA/OR/WA........ ................ ................ Southern ............... 2,697 (0.60)/
bairdii. California. 1,633
Blainville's beaked whale.... Mesoplodon Hawaii.......... ................ ................ Hawaii......... ............... 2,105 (1.13)/
densirostris. 980
Cuvier's beaked whale........ Ziphius CA/OR/WA........ ................ ................ Southern ............... 3,274 (0.67)/
cavirostris. California. 2,059
Hawaii.......... ................ ................ Hawaii......... ............... 723 0.69/428
Longman's beaked whale....... Indopacetus Hawaii.......... ................ ................ Hawaii......... ............... 7,619 (0.66)/
pacificus. 4,592
Mesoplodon 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 ............... 1,924 (0.54)/
Offshore. California. 1,255
Hawaii Pelagic.. ................ ................ Hawaii......... ............... 21,815 (0.57)/
13,957
Kauai and Niihau ................ ................ Hawaii......... ............... NA NA/97
Oahu............ ................ ................ Hawaii......... ............... NA
4-Islands....... ................ ................ Hawaii......... ............... NA
Hawaii Island... ................ ................ Hawaii......... ............... NA NA/91
False killer whale........... Pseudorca Main Hawaiian Strategic, Endangered...... Hawaii......... ............... 167 (0.14)/149
crassidens. Islands Insular. Depleted.
Hawaii Pelagic.. ................ ................ Hawaii......... ............... 1,540 (0.66)/
928
Northwestern ................ ................ Hawaii......... ............... 617 (1.11)/290
Hawaiian
Islands.
Fraser's dolphin............. Lagenodelphis Hawaii.......... ................ ................ Hawaii......... ............... 51,491 (0.66)/
hosei. 31,034
Killer whale................. Orcinus orca.... Eastern North ................ ................ Southern ............... 300 (0.1)/276
Pacific California.
Offshore.
West Coast ................ ................ Southern ............... 243 unknown/243
Transient. California.
Hawaii.......... ................ ................ Hawaii......... ............... 146 (0.96)/74
Long-beaked common dolphin... Delphinus California...... ................ ................ Southern ............... 101,305 (0.49)/
capensis. California. 68,432
Melon-headed whale........... Peponocephala Hawaiian Islands ................ ................ Hawaii......... ............... 8,666 (1.00)/
electra. 4,299
Kohala Resident. ................ ................ Hawaii......... ............... 447 (0.12)/404
Northern right whale dolphin. Lissodelphis CA/OR/WA........ ................ ................ Southern ............... 26,556 (0.44)/
borealis. California. 18,608
Pacific white-sided dolphin.. Lagenorhynchus CA/OR/WA........ ................ ................ Southern ............... 26,814 (0.28)/
obliquidens. California. 21,195
Pantropical spotted dolphin.. Stenella Oahu............ ................ ................ Hawaii......... ............... unknown
attenuata.
4-Islands....... ................ ................ Hawaii......... ............... unknown
Hawaii Island... ................ ................ Hawaii......... ............... unknown
Hawaii Pelagic.. ................ ................ Hawaii......... ............... 55,795 (0.40)/
40,338
Pygmy killer whale........... Feresa attenuata Tropical........ ................ ................ Southern Winter & Spring unknown
California.
Hawaii.......... ................ ................ Hawaii......... ............... 10,640 (0.53)/
6,998
Risso's dolphins............. Grampus griseus. CA/OR/WA........ ................ ................ Southern ............... 6,336 (0.32)/
California. 4,817
Hawaii.......... ................ ................ Hawaii......... ............... 11,613 (0.43)/
8,210
Rough-toothed dolphin........ Steno NSD\4\.......... ................ ................ Southern ............... unknown
bredanensis. California.
Hawaii.......... ................ ................ Hawaii......... ............... 72,528 (0.39)/
52,833
Short-beaked common dolphin.. Delphinus CA/OR/WA........ ................ ................ Southern ............... 969,861 (0.17)/
delphis. California. 839,325
Short-finned pilot whale..... Globicephala CA/OR/WA........ ................ ................ Southern ............... 836 (0.79)/466
macrorhynchus. California.
Hawaii.......... ................ ................ Hawaii......... ............... 19,503 (0.49)/
13,197
Spinner dolphin.............. Stenella Hawaii Pelagic.. ................ ................ Hawaii......... ............... unknown
longirostris.
Hawaii Island... ................ ................ Hawaii......... ............... 665 (0.09)/617
Oahu and 4- ................ ................ Hawaii......... ............... NA
Islands.
Kauai and Niihau ................ ................ Hawaii......... ............... NA
Kure and Midway. ................ ................ Hawaii......... ............... unknown
Pearl and Hermes ................ ................ Hawaii......... ............... unknown
Striped dolphin.............. Stenella CA/OR/WA........ ................ ................ Southern ............... 29,211 (0.20)/
coeruleoalba. California. 24,782
Hawaii.......... ................ ................ Hawaii......... ............... 61,021 (0.38)/
44,922
Dall's porpoise.............. Phocoenoides CA/OR/WA........ ................ ................ Southern ............... 25,750 (0.45)/
dalli. California. 17,954
Harbor seal.................. Phoca vitulina.. California...... ................ ................ Southern ............... 30,968 (NA)/
California. 27,348
Hawaiian monk seal........... Neomonachus Hawaii.......... Strategic, Endangered...... Hawaii......... ............... 1,351 (0.03)/
schauinslandi. Depleted. 1,325
Northern elephant seal....... Mirounga California...... ................ ................ Southern ............... 179,000 (NA)/
angustirostris. California. 81,368
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...... ................ ................ Southern ............... 14,050 (NA)/
ursinus. California. 7,524
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered, Threatened. MMPA status: Strategic, Depleted. A dash (-) indicates that the species/stock is not
listed under the ESA or designated as depleted/strategic under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-
caused mortality exceeds potential biological removal (PBR) or which is determined to be declining and likely to be listed under the ESA within the
foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ The two humpback whale Distinct Population Segments (DPSs) making up the California/Oregon/Washington (CA/OR/WA) stock present in Southern
California are the Mexico DPS, listed under the ESA as Threatened, and the Central America DPS, which is listed under the ESA as Endangered.
\4\ 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.
[[Page 41849]]
Unusual Mortality Events (UMEs)
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.
Three UMEs with ongoing or recently closed investigations in the HSTT
Study Area that inform our analysis are discussed below. The California
sea lion UME in California was closed on May 6, 2020. The Guadalupe fur
seal UME in California and the gray whale UME along the west coast of
North America are active and involve ongoing investigations.
California Sea Lion UME
From January 2013 through September 2016, a greater than expected
number of young malnourished California sea lions (Zalophus
californianus) stranded along the coast of California. Sea lions
stranding from an early age (6-8 months old) through two years of age
(hereafter referred to as juveniles) were consistently underweight
without other disease processes detected. Of the 8,122 stranded
juveniles attributed to the UME, 93 percent stranded alive (n=7,587,
with 3,418 of these released after rehabilitation) and 7 percent
(n=531) stranded dead. Several factors are hypothesized to have
impacted the ability of nursing females and young sea lions to acquire
adequate nutrition for successful pup rearing and juvenile growth. In
late 2012, decreased anchovy and sardine recruitment (CalCOFI data,
July 2013) may have led to nutritionally stressed adult females.
Biotoxins were present at various times throughout the UME, and while
they were not detected in the stranded juvenile sea lions (whose
stomachs were empty at the time of stranding), biotoxins may have
impacted the adult females' ability to support their dependent pups by
affecting their cognitive function (e.g., navigation, behavior towards
their offspring). Therefore, the role of biotoxins in this UME, via its
possible impact on adult females' ability to support their pups, is
unclear. The proposed primary cause of the UME was malnutrition of sea
lion pups and yearlings due to ecological factors. These factors
included shifts in distribution, abundance and/or quality of sea lion
prey items around the Channel Island rookeries during critical sea lion
life history events (nursing by adult females, and transitioning from
milk to prey by young sea lions). These prey shifts were most likely
driven by unusual oceanographic conditions at the time due to the
``Warm Water Blob'' and El Ni[ntilde]o. This investigation closed on
May 6, 2020. Please refer to: https://www.fisheries.noaa.gov/national/marine-life-distress/2013-2017-california-sea-lion-unusual-mortality-event-california for more information on this UME.
Guadalupe Fur Seal UME
Increased strandings of Guadalupe fur seals began along the entire
coast of California in January 2015 and were eight times higher than
the historical average (approximately 10 seals/yr). Strandings have
continued since 2015 and remained well above average through 2019.
Numbers by year are as follows: 2015 (98), 2016 (76), 2017 (62), 2018
(45), 2019 (116), 2020 (3 as of 3/6/2020). The total number of
Guadalupe fur seals stranding in California from January 1, 2015,
through March 6, 2020, in the UME is 400. While outside the HSTT Study
Area, strandings of Guadalupe fur seals became elevated in the spring
of 2019 in Washington and Oregon; subsequently, strandings for seals in
these two states have been added to the UME starting from January 1,
2019. The current total number of strandings in Washington and Oregon
is 94 seals, including 91 in 2019 and 3 in 2020 as of March 6, 2020.
Strandings are seasonal and generally peak in April through June of
each year. The Guadalupe fur seal strandings have been mostly weaned
pups and juveniles (1-2 years old) with both live and dead strandings
occurring. Current findings from the majority of stranded animals
include primary malnutrition with secondary bacterial and parasitic
infections. The California portion of this UME was occurring in the
same area as the 2013-2016 California sea lion UME. This investigation
is ongoing. Please refer to: https://www.fisheries.noaa.gov/national/marine-life-distress/2015-2019-guadalupe-fur-seal-unusual-mortality-event-california for more information on this UME.
Gray Whale UME
Since January 1, 2019, elevated gray whale strandings have occurred
along the west coast of North America, from Mexico to Canada. As of
March 13, 2020, there have been a total of 264 strandings along the
coasts of the United States, Canada, and Mexico, with 129 of those
strandings occurring along the U.S. coast. Of the strandings on the
U.S. coast, 48 have occurred in Alaska, 35 in Washington, 6 in Oregon,
and 40 in California. Partial necropsy examinations conducted on a
subset of stranded whales have shown evidence of poor to thin body
condition. As part of the UME investigation process, NOAA is assembling
an independent team of scientists to coordinate with the Working Group
on Marine Mammal Unusual Mortality Events to review the data collected,
sample stranded whales, and determine the next steps for the
investigation. Please refer to: https://www.fisheries.noaa.gov/national/marine-life-distress/2019-gray-whale-unusual-mortality-event-along-west-coast for more information on this UME.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
We provided a full discussion of the potential effects of the
specified activities on marine mammals and their habitat in our 2018
HSTT proposed and final rules. In the Potential Effects of Specified
Activities on Marine Mammals and Their Habitat section of the 2018 HSTT
proposed and final rules, NMFS provided a description of the ways
marine mammals may be affected by the same activities that the Navy
will be conducting during the seven-year period analyzed in this rule
in the form of serious injury or mortality, physical trauma, sensory
impairment (permanent and temporary threshold shifts and acoustic
masking), physiological responses (particularly stress responses),
behavioral disturbance, or habitat effects. Therefore, 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 National
Environmental Policy Act (NEPA) requirements.
NMFS has reviewed new relevant information from the scientific
literature since publication of the 2018 HSTT final rule. Summaries of
new scientific literature since publication of the 2018 HSTT final rule
are presented below.
Nachtigall et al. (2018) and Finneran (2018) describe the
measurements of hearing sensitivity of multiple odontocete species
(bottlenose dolphin, harbor porpoise, beluga, and false killer whale)
when a relatively loud sound was preceded by a warning sound. These
captive animals were shown to reduce hearing sensitivity when warned of
an impending intense sound. Based on these experimental observations of
captive animals, the authors suggest that wild animals may dampen their
hearing
[[Page 41850]]
during prolonged exposures or if conditioned to anticipate intense
sounds. Finneran (2018) recommends further investigation of the
mechanisms of hearing sensitivity reduction in order to understand the
implications for interpretation of existing TTS data obtained from
captive animals, notably for considering TTS due to short duration,
unpredictable exposures. No modification of the 2018 HSTT EIS/OEIS
analysis of auditory impacts is necessary based on this research, as
these findings suggest additional research is required to understand
implications on TTS data, and the current auditory impact thresholds
are based on best available data for both impulsive and non-impulsive
exposures to marine mammals.
Several publications described models developed to examine the
long-term effects of environmental or anthropogenic disturbance of
foraging on various life stages of selected species (sperm whale,
Farmer et al. (2018); California sea lion, McHuron et al. (2018); and
blue whale, Pirotta, et al. (2018a)). These models, taken into
consideration with similar models described in the 2018 HSTT EIS/OEIS,
continue to add to refinement to the approaches to the population
consequences of disturbance (PCOD) framework. Such models also help
identify what data inputs require further investigation. Pirotta et al.
(2018b) provides a review of the PCOD framework with details on each
step of the process and approaches to applying real data or simulations
to achieve each step. As described in the 2018 HSTT EIS/OEIS, many of
the inputs required by such models are not yet known for acoustic and
explosive impacts. NMFS will continue to assess the applicability of
population consequences models in our analyses.
Southall et al. (2019a) evaluated Southall et al. (2007) and used
updated scientific information to propose revised noise exposure
criteria to predict onset of auditory effects in marine mammals (i.e.,
PTS and TTS onset). Southall et al. (2019a) note that the quantitative
processes described and the resulting exposure criteria (i.e.,
thresholds and auditory weighting functions) are largely identical to
those in Finneran (2016) and NOAA (2016 and 2018). However, they differ
in that the Southall et al. (2019a) exposure criteria are more broadly
applicable as they include all marine mammal species (rather than those
only under NMFS jurisdiction) for all noise exposures (both in air and
underwater for amphibious species), and that while the hearing group
compositions are identical they renamed the hearing groups.
In continued investigations of pinniped hearing, Kastelein et al.
(2019a) exposed two female captive harbor seals to 6.5 kHz continuous,
sinusoidal tones for 60 minutes (cumulative sound exposure levels
(SELs) of 159-195 dB re: 1 [micro]Pa\2\s), then measured TTS using
behavioral (psychoacoustic) methods at the center frequency of the
fatiguing sound (6.5 kHz) and 0.5 and 1 octave above that frequency
(9.2 and 13 kHz). Susceptibility to TTS was similar in both individuals
tested. At cumulative SELs below 179 dB re: 1 [micro]Pa\2\s, maximum
TTS was induced at the center frequency (6.5 kHz), and at cumulative
SELs above 179 dB re: 1 [micro]Pa\2\s, maximum TTS was induced at 0.5
octave above the center frequency (9.2 kHz). The highest TTSs were
produced in the one-half octave band above the exposure frequency. Both
seals recovered within 1-2 hours for up to 6 dB of TTS. One seal showed
19 dB of TTS after a dB re: 1 [micro]Pa\2\s exposure and recovered
within 24 hours. Overall, this study combined with previous work showed
that for harbor seals, recovery times are consistent for similar-
magnitude TTS, regardless of the type of fatiguing sound exposure
(impulsive, continuous noise band, or sinusoidal wave), and that
susceptibility to TTS in the fatiguing frequency range tested (2.5-6.5
kHz) varies little with hearing frequency. The two harbor seals in this
study (and Kastelein et al., 2012) had similar susceptibility to TTS as
the seal in Kastak et al. (2005). The authors note that more fatiguing
sound frequencies need to be tested in harbor seals to produce equal
TTS curves, for generating weighting functions that can be used to
develop exposure criteria for broadband sounds in the marine
environment (Houser et al., 2017).
To determine the distances at which Helicopter Long Range Active
Sonar (HELRAS) signals (~1.3-1.4 kHz) can be detected, Kastelein et al.
(2019b) measured hearing thresholds using behavioral (psychoacoustic)
techniques to simulated HELRAS signals in two captive harbor seals.
Both seals showed similar thresholds (51 dB re: 1 [micro]Pa rms,
approximately 4 dB lower than the detection thresholds for the same
individuals in Kastelein et al., 2009) to previously obtained data for
stimuli having the same center frequencies, which suggests that the
harmonics present within HELRAS sources do not impact hearing threshold
and that a tonal audiogram can be used to estimate the audibility of
more complex narrow-band tonal signals in harbor seals.
Accomando et al. (2020) examined the directional dependence of
hearing thresholds for 2, 10, 20 and 30 kHz in two adult bottlenose
dolphins. They observed that source direction (i.e., the relative angle
between the sound source location and the dolphin) impacted hearing
thresholds for these frequencies. Sounds projected from directly behind
the dolphins resulted in frequency-dependent increases in hearing
thresholds of up to 18.5 dB when compared to sounds projected from in
front of the dolphins. Sounds projected directly above the dolphins
resulted in thresholds that were approximately 8 dB higher than those
obtained when sounds were projected below the dolphins. These findings
suggest that dolphins may receive lower source levels when they are
oriented 180 degrees away from the sound source, and dolphins are less
sensitive to sound projected from above (likely leading to some spatial
release from masking). Directional or spatial hearing also allows
animals to locate sound sources. This study indicates dolphins can
detect source direction at lower frequencies than previously thought,
allowing them to successfully avoid or approach biologically
significant or anthropogenic sound sources at these frequencies.
Recent studies on the behavioral responses of cetaceans to sonar
examine and continue to demonstrate the importance of not only sound
source parameters, but exposure context (e.g., behavioral state,
presence of other animals and social relationships, prey abundance,
distance to source, presence of vessels, environmental parameters) in
determining or predicting a behavioral response.
Kastelein et al. (2018) examined the role of sound
pressure level (SPL) and duty cycle on the behavior of two captive
harbor porpoises when exposed to simulated Navy mid-frequency sonar
(53C, 3.5 to 4.1 kHz). Neither harbor porpoise responded to the low
duty cycle (2.7 percent) at any of the five SPLs presented, even at the
maximum received SPL (143 dB re: 1 [micro]Pa). At the higher duty cycle
(96 percent), one porpoise responded by increasing his respiration rate
at a received SPL of greater than or equal to 119 dB re: 1 [micro]Pa,
and moved away from the transducer at a received SPL of 143 dB re: 1
[micro]Pa. Kastelein et al. (2018) observed that at the same received
SPL and duty cycle, harbor porpoises respond less to 53C sonar sounds
than 1-2 kHz, 6-7 kHz, and 25 kHz sonar signals observed in previous
studies, but noted that when examining behavioral responses it is
important to take into account the spectrum and temporal structure of
the
[[Page 41851]]
signal, the duty cycle, and the psychological interpretation by the
animal.
To investigate the effect of signal to noise ratio (SNR)
on behavioral responses, Kastelein et al. (2019c) observed respiration
rates (an indicator of behavioral response) of two captive harbor
porpoises when exposed to simulated 30-minute playbacks of Navy mid-
frequency sonar (53C, 3.5 to 4.1 kHz, 96 percent duty cycle), in noise
simulating sea state 6 conditions. No behavioral responses were
observed when the porpoises were exposed to sonar signals at an SPL of
117 dB re: 1 [micro]Pa (SNR equal to 49 dB re: 1 Hz). Both porpoises
responded when exposed to sonar signals at an SPL of 122 dB re: 1
[micro]Pa (SNR equal to 54 dB re: 1 Hz), however in quiet conditions
one porpoise responded at similar levels (Kastelein et al. 2018),
suggesting the behavioral responses of harbor porpoises to sonar
signals are not affected in sea state 6 ambient noise conditions.
To determine if sonar sounds with different harmonic
contents and amplitude envelopes had different impacts on harbor
porpoise behavior, Kastelein et al. (2019d) examined the behavioral
responses of one male harbor porpoise to four different low-frequency
HELRAS (1.33 to 1.43 kHz) sonar signals (1.25 s in duration, 107 dB re:
1 [mu]Pa SPL). The sonar sounds with sensation levels of approximately
21 dB (and 8 percent duty cycle) caused a very small displacement (mean
increased distance of 0.11 m), slight increase in respiration rate, and
a small increase in swimming speed, and these effects did not continue
after the sound exposure ceased. The authors concluded that if
porpoises at sea were exposed to sonar signals of similar SPLs, the
effects would be expected to be minimal. The authors noted that harbor
porpoises are relatively insensitive to low-frequency signals below 4
kHz, however high SPL harmonics of low-frequency sonar sound sounds can
impact the behavior of harbor porpoises. They suggest new sonar systems
be designed to reduce the level of harmonics.
In an effort to examine potential mitigation measures to
reduce impacts of seismic airguns on harbor porpoises, Kastelein et al.
(2019e) examined the effect of a bubble screen on behavioral responses
of two captive harbor porpoises exposed to airgun sounds. The bubble
screen reduced the transmission of high-frequency airgun sounds by 20-
30 dB above 250 Hz, however the broadband SELs-s was only ~3 dB lower
when the bubble screen was present. The harbor porpoises responded
differently to the airgun sounds, with one being more responsive than
the other. When the bubble screen was deployed neither individual
responded to the airgun sounds, supporting the hypothesis that the
frequency content of impulsive sounds is an important factor in
behavioral responses of harbor porpoises. The authors suggest that
small bubble screens, such as those tested in this study, could be an
important tool in improving living conditions for captive harbor
porpoises by reducing background noise levels.
Kastelein et al. (2019f) examined fish catching efficiency
in two captive harbor porpoises exposed to pile-driving playback sound
(single strike exposure levels between 125 and 143 dB re: 1 [mu]Pa\2\s)
and ambient (quiet) sound. They observed substantial individual
variation in responses between the two harbor porpoises, with no change
in fish catch success in one porpoise and decline in fish-catch success
and trial termination in the second porpoise. These results suggest
that high-amplitude pile driving sounds may negatively affect foraging
behavior in some harbor porpoises. However, additional information is
needed to determine the role of individual differences in responses to
sound, termination rates, and fish-catching success to accurately
estimate and quantify potential impacts.
Wensveen et al. (2019) examined the role of sound source
(simulated sonar pulses) distance and received level in northern
bottlenose whales in an environment without frequent sonar activity
using multi-scaled controlled exposure experiments. They observed
behavioral avoidance of the sound source over a wide range of distances
(0.8-28 km) and estimated avoidance thresholds ranging from modeled
received SPLs of 117-126 dB re: 1 [micro]Pa as described by von Benda-
Beckmann et al. (2019). The behavioral response characteristics and
avoidance thresholds were comparable to those previously observed in
beaked whale studies; however, they did not observe an effect of
distance on behavioral response and found that onset and intensity of
behavioral response were better predicted by received SPL.
Joyce et al. (2019) presented movement and dive behavior
data from seven Blainville's beaked whales that were satellite tagged
prior to naval sonar exercises using mid-frequency active sonar (MFAS,
3-8 kHz) at the Atlantic Undersea Test and Evaluation Center (AUTEC) in
the Bahamas. Five of the seven tagged were displaced 28-68 km after the
onset of sonar exposure and returned to the AUTEC range 2-4 days after
exercises ended. Three of the individuals for which modeled received
SPLs were available during this movement showed declining received SPLs
from initial maxima of 145-172 dB re: 1 [mu]Pa to maxima of 70-150 dB
re: 1 [mu]Pa after displacements. Tagged individuals exhibited a
continuation of deep diving activity consistent with foraging during
MFAS exposure periods, but data also suggested that time spent on deep
dives during initial exposure periods was reduced. These findings
provide additional data for ongoing Population Consequences of Acoustic
Disturbance assessments of disturbance as authors note that previous
studies have suggested foraging dives may be lost in response to MFAS
exposure, which could cause a decrease in energy intake and have
potential effects on vital parameters. The data presented by Joyce et
al. (2019) support the initial potential loss of foraging time, however
they also suggest that Blainville's beaked whales may have the ability
to partially compensate for this loss (assuming they have ample
recovery times between dives) by increasing time spent at foraging
depths following displacement.
When conducting controlled exposure experiments on blue
whales, Southall et al. (2019b) observed that after exposure to
simulated and operational mid-frequency active sonar, more than 50
percent of blue whales in deep-diving states responded to the sonar,
while no behavioral response was observed in shallow-feeding blue
whales. The behavioral responses they observed were generally brief, of
low to moderate severity, and highly dependent on exposure context
(behavioral state, source-to-whale horizontal range, and prey
availability). Blue whale response did not follow a simple exposure-
response model based on received sound exposure level.
In an effort to compare behavioral responses to continuous
active sonar (CAS) and pulsed (intermittent) active sonar (PAS),
Isojunno et al. (2020) conducted at-sea experiments on 16 sperm whales
equipped with animal-attached sound- and movement-recording tags in
Norway. They examined changes in foraging effort and proxies for
foraging success and cost during sonar and control exposures after
accounting for baseline variation. They observed no reduction in time
spent foraging during exposures to medium-level PAS transmitted at the
same peak amplitude as CAS, however they observed similar reductions in
foraging during CAS and PAS when they were received at similar energy
levels (SELs).
[[Page 41852]]
The authors note that these results support the hypothesis that sound
energy (SEL) is the main cause of behavioral responses rather than
sound amplitude (SPL), and that exposure context and measurements of
cumulative sound energy are important considerations for future
research and noise impact assessments.
Frankel and Stein (2020) used shoreline theodolite
tracking to examine potential behavioral responses of southbound
migrating eastern gray whales to a high-frequency active sonar system
transmitted by a vessel located off the coast of California. The sonar
transducer deployed from the vessel transmitted 21-25 kHz sweeps for
half of each day (experimental period), and no sound the other half of
the day (control period). In contrast to low-frequency active sonar
tests conducted in the same area (Clark et al., 1999; Tyack and Clark,
1998), no overt behavioral responses or deflections were observed in
field or visual data. However, statistical analysis of the tracking
data indicated that during experimental periods at received levels of
approximately 148 dB re: 1 [mu]Pa2 (134 dB re: 1 [mu]Pa2s) and less
than 2 km of the transmitting vessel, gray whales deflected their
migration paths inshore from the vessel. The authors indicate that
these data suggest the functional hearing sensitivity of gray whales
extends to at least 21 kHz. These findings agree with the predicted
mysticete hearing curve and behavioral response functions used in the
analysis to estimate take by Level A harassment (PTS) and Level B
harassment (behavioral response) for this rule (see the Technical
Report ``Criteria and Thresholds for U.S. Navy Acoustic and Explosive
Effects Analysis (Phase III)'').
In a review of the previously published data (considered
in the 2018 HSTT final rule and 2018 HSTT EIS/OEIS analysis) on the
potential impacts of sonar on beaked whales, Bernaldo de Quir[oacute]s
et al. (2019) suggested that the effect of mid-frequency active sonar
on beaked whales varies among individuals or populations, and that
predisposing conditions such as previous exposure to sonar and
individual health risk factors may contribute to individual outcomes
(such as decompression sickness).
In an effort to improve estimates of behavioral responses
to anthropogenic sound, Tyack and Thomas (2019) compared the approach
of using a single threshold to newly developed dose-response functions.
They demonstrated that the common approach of selecting the threshold
at which half of the animals respond (RLp50) underestimates the number
of individuals impacted. They suggest using a dose-response function to
derive more accurate estimates of animals impacted and to set a
threshold (the Effective Response Level) that corrects issues with the
RLp50 estimate. The authors note that the Navy has calculated estimates
of marine mammal takes using methods similar to the ones they
recommend. Those methods were used to estimate take for this rule (see
the Technical Report ``Criteria and Thresholds for U.S. Navy Acoustic
and Explosive Effects Analysis (Phase III)'').
Houser et al. (2020) measured cortisol, aldosterone, and
epinephrine levels in the blood samples of 30 bottlenose dolphins
before and after exposure to simulated U.S. Navy mid-frequency sonar
from 115-185 dB re: 1 [mu]Pa. They collected blood samples
approximately one week prior to, immediately following, and
approximately one week after exposures and analyzed for hormones via
radioimmunoassay. Aldosterone levels were below the detection limits in
all samples. While the observed severity of behavioral responses scaled
(increased) with SPL, levels of cortisol and epinephrine did not show
consistent relationships with received SPL. Authors note that it is
still unclear whether intermittent, high-level acoustic stimuli elicit
endocrine responses consistent with a stress response, and that
additional research is needed to determine the relationship between
behavioral responses and physiological responses.
Having considered this information, and information provided in
public comments on the 2019 HSTT proposed rule, we have determined that
there is no new information that substantively affects our analysis of
potential impacts on marine mammals and their habitat that appeared in
the 2018 HSTT proposed and final rules, all of which remains applicable
and valid for our assessment of the effects of the Navy's activities
during the seven-year period of this rule.
Estimated Take of Marine Mammals
This section indicates the number of takes that NMFS is
authorizing, which are based on the amount of take that NMFS
anticipates could occur or is likely to occur, depending on the type of
take and the methods used to estimate it, as described below. NMFS
coordinated closely with the Navy in the development of their
incidental take applications, and agrees that the methods the Navy has
put forth described herein and in the 2018 HSTT proposed and final
rules to estimate take (including the model, thresholds, and density
estimates), and the resulting numbers are based on the best available
science and appropriate for authorization. The number and type of
incidental takes that could occur or are likely to occur annually
remain identical to those authorized in the 2018 HSTT regulations.
Takes are predominantly in the form of harassment, but a small
number of serious injuries or mortalities are also authorized. For
military readiness activities, the MMPA defines ``harassment'' as (i)
Any act that injures or has the significant potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) Any act that disturbs or is likely to disturb a marine mammal
or marine mammal stock in the wild by causing disruption of natural
behavioral patterns, including, but not limited to, migration,
surfacing, nursing, breeding, feeding, or sheltering, to a point where
such behavioral patterns are abandoned or significantly altered (Level
B harassment).
Authorized takes will primarily be in the form of Level B
harassment, as use of the acoustic and explosive sources (i.e., sonar,
air guns, pile driving, explosives) is more likely to result in
behavioral disruption (rising to the level of a take as described
above) or temporary threshold shift (TTS) for marine mammals than other
forms of take. There is also the potential for Level A harassment,
however, in the form of auditory injury and/or tissue damage (the
latter from explosives only) to result from exposure to the sound
sources utilized in training and testing activities. No more than 13
serious injuries or mortalities (eight short-beaked common dolphins and
five California sea lions over the seven-year period) are estimated as
a result of exposure to explosive training and testing activities.
Lastly, no more than three serious injuries or mortalities total (over
the seven-year period) of mysticetes (except for sei whales, minke
whales, Bryde's whales, Central North Pacific stock of blue whales,
Hawaii stock of fin whales, and Western North Pacific stock of gray
whales) and the Hawaii stock of sperm whales could occur through vessel
collisions. Although we analyze the impacts of these potential serious
injuries or mortalities that are authorized, the required mitigation
and monitoring measures are expected to minimize the likelihood that
ship strike or these high-level explosive exposures (and the associated
serious injury or mortality) actually occur.
Generally speaking, for acoustic impacts we estimate the amount and
[[Page 41853]]
type of harassment by considering: (1) Acoustic thresholds above which
NMFS believes the best available science indicates marine mammals will
be taken by behavioral Level B harassment (in this case, as defined in
the military readiness definition of Level B harassment included above)
or incur some degree of temporary or permanent hearing impairment; (2)
the area or volume of water that will be ensonified above these levels
in a day or event; (3) the density or occurrence of marine mammals
within these ensonified areas; and (4) and the number of days of
activities or events.
Acoustic Thresholds
Using the best available science, NMFS, in coordination with the
Navy, has established acoustic thresholds that identify the most
appropriate received level of underwater sound above which marine
mammals exposed to these sound sources could be reasonably expected to
experience a disruption in behavior patterns to a point where they are
abandoned or significantly altered, or to incur TTS (equated to Level B
harassment) or permanent threshold shift (PTS) of some degree (equated
to Level A harassment). Thresholds have also been developed to identify
the pressure levels above which animals may incur non-auditory injury
from exposure to pressure waves from explosive detonation.
Despite the quickly evolving science, there are still challenges in
quantifying expected behavioral responses that qualify as take by Level
B harassment, especially where the goal is to use one or two
predictable indicators (e.g., received level and distance) to predict
responses that are also driven by additional factors that cannot be
easily incorporated into the thresholds (e.g., context). So, while the
new behavioral Level B harassment thresholds have been refined here to
better consider the best available science (e.g., incorporating both
received level and distance), they also still, accordingly, have some
built-in conservative factors to address the challenge noted. For
example, while duration of observed responses in the data are now
considered in the thresholds, some of the responses that are informing
take thresholds are of a very short duration, such that it is possible
some of these responses might not always rise to the level of
disrupting behavior patterns to a point where they are abandoned or
significantly altered. We describe the application of this Level B
harassment threshold as identifying the maximum number of instances in
which marine mammals could be reasonably expected to experience a
disruption in behavior patterns to a point where they are abandoned or
significantly altered. In summary, we believe these behavioral Level B
harassment thresholds are the most appropriate method for predicting
behavioral Level B harassment given the best available science and the
associated uncertainty.
We described these acoustic thresholds and the methods used to
determine thresholds, none of which have changed, in detail in the
Acoustic Thresholds section of the 2018 HSTT final rule; please see the
2018 HSTT final rule for detailed information.
Navy's Acoustic Effects Model
The Navy proposed no changes to the Acoustic Effects Model as
described in the 2018 HSTT final rule and there is no new information
that would affect the applicability or validity of the model. Please
see the 2018 HSTT final rule and Appendix E of the 2018 HSTT FEIS/OEIS
for detailed information.
Range to Effects
The Navy proposed no changes from the 2018 HSTT final rule to the
type and nature of the specified activities to be conducted during the
seven-year period analyzed in this final rule, including equipment and
sources used and exercises conducted. There is also no new information
that would affect the applicability or validity of the ranges to
effects previously analyzed for these activities. Therefore, the ranges
to effects in this final rule are identical to those described and
analyzed in the 2018 HSTT final rule, including received sound levels
that may cause onset of significant behavioral response and TTS and PTS
in hearing for each source type or explosives that may cause non-
auditory injury. Please see the Range to Effects section and Tables 24
through 40 of the 2018 HSTT final rule for detailed information.
Marine Mammal Density
The Navy proposed no changes to the methods used to estimate marine
mammal density described in the 2018 HSTT final rule and there is no
new information that would affect the applicability or validity of
these methods. Please see the 2018 HSTT final rule for detailed
information.
Take Requests
As in the 2018 HSTT final rule, in its 2019 application, the Navy
determined that the three stressors below could result in the
incidental taking of marine mammals. NMFS has reviewed the Navy's data
and analysis and determined that it is complete and accurate, and NMFS
agrees that the following stressors have the potential to result in
takes of marine mammals from the Navy's planned activities:
Acoustics (sonar and other transducers; air guns; pile
driving/extraction);
Explosives (explosive shock wave and sound, assumed to
encompass the risk due to fragmentation); and
Vessel strike.
NMFS reviewed and agrees with the Navy's conclusion that acoustic
and explosive sources have the potential to result in incidental takes
of marine mammals by harassment, serious injury, or mortality. NMFS
carefully reviewed the Navy's analysis and conducted its own analysis
of vessel strikes, determining that the likelihood of any particular
species of large whale being struck is quite low. Nonetheless, NMFS
agrees that vessel strikes have the potential to result in incidental
take from serious injury or mortality for certain species of large
whales and the Navy specifically requested coverage for these species.
Therefore, the likelihood of vessel strikes, and later the effects of
the incidental take that is being authorized, has been fully analyzed
and is described below.
Regarding the quantification of expected takes from acoustic and
explosive sources (by Level A and Level B harassment, as well as
mortality resulting from exposure to explosives), the number of takes
are based directly on the level of activities (days, hours, counts,
etc., of different activities and events) in a given year. In the 2018
HSTT final rule, take estimates across the five-years were based on the
Navy conducting three years of a representative level of activity and
two years of maximum level of activity. Consistent with the pattern set
forth in the 2017 Navy application, the 2018 HSTT FEIS/OEIS, and the
2018 HSTT final rule, the Navy included one additional representative
year and one additional maximum year to determine the predicted take
numbers in this rule. Specifically, as in the 2018 HSTT final rule, the
Navy uses the maximum annual level to calculate annual takes (which
would remain identical to what was determined in the 2018 HSTT final
rule), and the sum of all years (four representative and three maximum)
to calculate the seven-year totals for this rule.
The quantitative analysis process used for the 2018 HSTT FEIS/OEIS
and the 2017 and 2019 Navy applications to estimate potential exposures
to marine mammals resulting from acoustic and explosive stressors is
detailed in the technical report titled ``Quantifying
[[Page 41854]]
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and
Analytical Approach for Phase III Training and Testing'' (U.S.
Department of the Navy, 2018). The Navy Acoustic Effects Model
estimates acoustic and explosive effects without taking mitigation into
account; therefore, the model overestimates predicted impacts on marine
mammals within mitigation zones. To account for mitigation for marine
species in the take estimates, the Navy conducts a quantitative
assessment of mitigation. The Navy conservatively quantifies the manner
in which procedural mitigation is expected to reduce the risk for
model-estimated PTS for exposures to sonars and for model-estimated
mortality for exposures to explosives, based on species sightability,
observation area, visibility, and the ability to exercise positive
control over the sound source. Where the analysis indicates mitigation
would effectively reduce risk, the model-estimated PTS are considered
reduced to TTS and the model-estimated mortalities are considered
reduced to injury. For a complete explanation of the process for
assessing the effects of mitigation, see the 2017 Navy application and
the Take Requests section of the 2018 HSTT final rule. The extent to
which the mitigation areas reduce impacts on the affected species and
stocks is addressed separately in the Analysis and Negligible Impact
Determination sections of this rule and the 2018 HSTT final rule.
No changes have been made to the quantitative analysis process to
estimate potential exposures to marine mammals resulting from acoustic
and explosive stressors and calculate take estimates. In addition,
there is no new information that would call into question the validity
of the Navy's quantitative analysis process. Please see the documents
described in the paragraph above, the 2018 HSTT proposed rule, and the
2018 HSTT final rule for detailed descriptions of these analyses. In
summary, we believe the Navy's methods, including the method for
incorporating mitigation and avoidance, are the most appropriate
methods for predicting PTS, tissue damage, TTS, and behavioral
disruption. But even with the consideration of mitigation and
avoidance, given some of the more conservative components of the
methodology (e.g., the thresholds do not consider ear recovery between
pulses), we would describe the application of these methods as
identifying the maximum number of instances in which marine mammals
would be reasonably expected to be taken through PTS, tissue damage,
TTS, or behavioral disruption.
Summary of Authorized Take From Training and Testing Activities
Based on the methods discussed in the previous sections and the
Navy's model and quantitative assessment of mitigation, the Navy
provided its take estimates and request for authorization of takes
incidental to the use of acoustic and explosive sources for training
and testing activities both annually (based on the maximum number of
activities that could occur per 12-month period) and over the seven-
year period covered by the 2019 Navy application. Annual takes (based
on the maximum number of activities that could occur per 12-month
period) from the use of acoustic and explosive sources are identical to
those presented in Tables 41 and 42 and in the Explosives subsection of
the Take Requests section of the 2018 HSTT final rule. The 2019 Navy
application also includes the Navy's take estimate and request for
vessel strikes due to vessel movement in the HSTT Study Area. The No
Stock Designation stock of rough-toothed was modeled by the Navy and
estimated to have 0 takes of any type from any activity source. NMFS
has reviewed the Navy's data, methodology, and analysis and determined
that it is complete and accurate. NMFS agrees that the estimates for
incidental takes by harassment from all sources as well as the
incidental takes by serious injury or mortality from explosives
requested for authorization are the maximum number reasonably expected
to occur. NMFS also agrees that the takes by serious injury or
mortality as a result of vessel strikes could occur. The total amount
of estimated incidental take from acoustic and explosive sources over
the total seven-year period covered by the 2019 Navy application is
less than the annual total multiplied by seven, because although the
annual estimates are based on the maximum number of activities per year
and therefore the maximum possible estimated takes, the seven-year
total take estimates are based on the sum of three maximum years and
four representative years. Not all activities occur every year. Some
activities would occur multiple times within a year, and some
activities would occur only a few times over the course of the seven-
year period. Using seven years of the maximum number of activities each
year would vastly overestimate the amount of incidental take that would
occur over the seven-year period where the Navy knows that it will not
conduct the maximum number of activities each and every year for the
seven years.
Authorized Harassment Take from Training Activities
For training activities, Table 11 summarizes the Navy's take
estimate and request and the maximum amount and type of Level A
harassment and Level B harassment for the seven-year period covered by
the 2019 Navy application that NMFS concurs is reasonably expected to
occur by species or stock, and is therefore authorized. For the
authorized amount and type of Level A harassment and Level B harassment
annually, see Table 41 in the 2018 HSTT final rule. Note that take by
Level B harassment includes both behavioral disruption and TTS. Navy
Figures 6-12 through 6-50 in Section 6 of the 2017 Navy application
illustrate the comparative amounts of TTS and behavioral disruption for
each species annually, noting that if a modeled marine mammal was
``taken'' through exposure to both TTS and behavioral disruption in the
model, it was recorded as a TTS.
Table 11--Seven-Year Total Species- And Stock-Specific Take Authorized From Acoustic and Explosive Sound Source
Effects for all Training Activities
----------------------------------------------------------------------------------------------------------------
7-year total
Species Stock -------------------------------
Level B Level A
----------------------------------------------------------------------------------------------------------------
Blue whale *.................................. Central North Pacific........... 205 0
Eastern North Pacific........... 7,116 6
Bryde's whale [dagger]........................ Eastern Tropical Pacific........ 167 0
Hawaiian [dagger]............... 631 0
Fin whale *................................... CA/OR/WA........................ 7,731 0
Hawaiian........................ 197 0
Humpback whale [dagger]....................... CA/OR/WA [dagger]............... 7,962 7
[[Page 41855]]
Central North Pacific........... 34,437 12
Minke whale................................... CA/OR/WA........................ 4,119 7
Hawaiian........................ 20,237 6
Sei whale *................................... Eastern North Pacific........... 333 0
Hawaiian........................ 677 0
Gray whale [dagger]........................... Eastern North Pacific........... 16,703 27
Western North Pacific [dagger].. 19 0
Sperm whale *................................. CA/OR/WA........................ 8,834 0
Hawaiian........................ 10,341 0
Dwarf sperm whale............................. Hawaiian........................ 84,232 215
Pygmy sperm whale............................. Hawaiian........................ 33,431 94
Kogia whales.................................. CA/OR/WA........................ 38,609 149
Baird's beaked whale.......................... CA/OR/WA........................ 8,524 0
Blainville's beaked whale..................... Hawaiian........................ 23,491 0
Cuvier's beaked whale......................... CA/OR/WA........................ 47,178 0
Hawaiian........................ 7,898 0
Longman's beaked whale........................ Hawaiian........................ 82,293 0
Mesoplodon species (beaked whale guild)....... CA/OR/WA........................ 25,404 0
Bottlenose dolphin............................ California Coastal.............. 1,295 0
CA/OR & WAOffshore.............. 201,619 13
Hawaiian Pelagic................ 13,080 0
Kauai & Niihau.................. 500 0
Oahu............................ 57,288 10
4-Island........................ 1,052 0
Hawaii.......................... 291 0
False killer whale [dagger]................... Hawaii Pelagic.................. 4,353 0
Main Hawaiian Islands Insular 2,710 0
[dagger].
Northwestern Hawaiian Islands... 1,585 0
Fraser's dolphin.............................. Hawaiian........................ 177,198 4
Killer whale.................................. Eastern North Pacific Offshore.. 460 0
Eastern North Pacific Transient/ 855 0
West Coast Transient.
Hawaiian........................ 513 0
Long-beaked common dolphin.................... California...................... 784,965 99
Melon-headed whale............................ Hawaiian Islands................ 14,137 0
Kohala Resident................. 1,278 0
Northern right whale dolphin.................. CA/OR/WA........................ 357,001 57
Pacific white-sided dolphin................... CA/OR/WA........................ 274,892 19
Pantropical spotted dolphin................... Hawaii Island................... 17,739 0
Hawaii Pelagic.................. 42,318 0
Oahu............................ 28,860 0
4-Island........................ 1,816 0
Pygmy killer whale............................ Hawaiian........................ 35,531 0
Tropical........................ 2,977 0
Risso's dolphin............................... CA/OR/WA........................ 477,389 45
Hawaiian........................ 40,800 0
Rough-toothed dolphin......................... Hawaiian........................ 26,769 0
NSD \1\......................... 0 0
Short-beaked common dolphin................... CA/OR/WA........................ 5,875,431 307
Short-finned pilot whale...................... CA/OR/WA........................ 6,341 6
Hawaiian........................ 53,627 0
Spinner dolphin............................... Hawaii Island................... 609 0
Hawaii Pelagic.................. 18,870 0
Kauai & Niihau.................. 1,961 0
Oahu & 4-Island................. 10,424 8
Striped dolphin............................... CA/OR/WA........................ 777,001 5
Hawaiian........................ 32,806 0
Dall's porpoise............................... CA/OR/WA........................ 171,250 894
California sea lion........................... U.S............................. 460,145 629
Guadalupe fur seal*........................... Mexico.......................... 3,342 0
Northern fur seal............................. California...................... 62,138 0
Harbor seal................................... California...................... 19,214 48
Hawaiian monk seal*........................... Hawaiian........................ 938 5
Northern elephant seal........................ California...................... 241,277 490
----------------------------------------------------------------------------------------------------------------
* ESA-listed species (all stocks) within the HSTT Study Area.
[dagger] Only designated stocks are ESA-listed.
\1\ NSD: No stock designation.
[[Page 41856]]
Authorized Harassment Take From Testing Activities
For testing activities, Table 12 summarizes the Navy's take
estimate and request and the maximum amount and type of Level A
harassment and Level B harassment for the seven-year period covered by
the 2019 Navy application that NMFS concurs is reasonably expected to
occur by species or stock, and is therefore authorized. For the
estimated amount and type of Level A harassment and Level B harassment
annually, see Table 42 in the 2018 HSTT final rule. Note that take by
Level B harassment includes both behavioral disruption and TTS. Navy
Figures 6-12 through 6-50 in Section 6 of the 2017 Navy application
illustrate the comparative amounts of TTS and behavioral disruption for
each species annually, noting that if a modeled marine mammal was
``taken'' through exposure to both TTS and behavioral disruption in the
model, it was recorded as a TTS.
Table 12--Seven-Year Total Species and Stock-Specific Take Authorized From Acoustic and Explosive Sound Source
Effects for all Testing Activities
----------------------------------------------------------------------------------------------------------------
7-year total
Species Stock -------------------------------
Level B Level A
----------------------------------------------------------------------------------------------------------------
Blue whale *.................................. Central North Pacific........... 93 0
Eastern North Pacific........... 5,679 0
Bryde's whale [dagger]........................ Eastern Tropical Pacific........ 97 0
Hawaiian [dagger]............... 278 0
Fin whale *................................... CA/OR/WA........................ 6,662 7
Hawaiian........................ 108 0
Humpback whale [dagger]....................... CA/OR/WA[dagger]................ 4,961 0
Central North Pacific........... 23,750 19
Minke whale................................... CA/OR/WA........................ 1,855 0
Hawaiian........................ 9,822 7
Sei whale *................................... Eastern North Pacific........... 178 0
Hawaiian........................ 329 0
Gray whale [dagger]........................... Eastern North Pacific........... 13,077 9
Western North Pacific [dagger].. 15 0
Sperm whale *................................. CA/OR/WA........................ 7,409 0
Hawaiian........................ 5,269 0
Dwarf sperm whale............................. Hawaiian........................ 43,374 197
Pygmy sperm whale............................. Hawaiian........................ 17,396 83
Kogia whales.................................. CA/OR/WA........................ 20,766 94
Baird's beaked whale.......................... CA/OR/WA........................ 4,841 0
Blainville's beaked whale..................... Hawaiian........................ 11,455 0
Cuvier's beaked whale......................... CA/OR/WA........................ 30,180 28
Hawaiian........................ 3,784 0
Longman's beaked whale........................ Hawaiian........................ 41,965 0
Mesoplodon species (beaked whale guild)....... CA/OR/WA........................ 16,383 15
Bottlenose dolphin............................ California Coastal.............. 11,158 0
CA/OR & WA Offshore............. 158,700 8
Hawaiian Pelagic................ 8,469 0
Kauai & Niihau.................. 3,091 0
Oahu............................ 3,230 0
4-Island........................ 1,129 0
Hawaii.......................... 260 0
False killer whale [dagger]................... Hawaii Pelagic.................. 2,287 0
Main Hawaiian Islands Insular 1,256 0
[dagger].
Northwestern Hawaiian Islands... 837 0
Fraser's dolphin.............................. Hawaiian........................ 85,193 9
Killer whale.................................. Eastern North Pacific Offshore.. 236 0
Eastern North Pacific Transient/ 438 0
West Coast Transient.
Hawaiian........................ 279 0
Long-beaked common dolphin.................... California...................... 805,063 34
Melon-headed whale............................ Hawaiian Islands................ 7,678 0
Kohala Resident................. 1,119 0
Northern right whale dolphin.................. CA/OR/WA........................ 280,066 22
Pacific white-sided dolphin................... CA/OR/WA........................ 213,380 14
Pantropical spotted dolphin................... Hawaii Island................... 9,568 0
Hawaii Pelagic.................. 24,805 0
Oahu............................ 1,349 0
4-Island........................ 2,513 0
Pygmy killer whale............................ Hawaiian........................ 18,347 0
Tropical........................ 1,928 0
Risso's dolphin............................... CA/OR/WA........................ 339,334 24
Hawaiian........................ 19,027 0
Rough-toothed dolphin......................... Hawaiian........................ 14,851 0
NSD \1\......................... 0 0
Short-beaked common dolphin................... CA/OR/WA........................ 3,795,732 304
Short-finned pilot whale...................... CA/OR/WA........................ 6,253 0
Hawaiian........................ 29,269 0
Spinner dolphin............................... Hawaii Island................... 1,394 0
[[Page 41857]]
Hawaii Pelagic.................. 9,534 0
Kauai & Niihau.................. 9,277 0
Oahu & 4-Island................. 1,987 0
Striped dolphin............................... CA/OR/WA........................ 371,328 20
Hawaiian........................ 16,270 0
Dall's porpoise............................... CA/OR/WA........................ 115,353 478
California sea lion........................... U.S............................. 334,332 36
Guadalupe fur seal *.......................... Mexico.......................... 6,167 0
Northern fur seal............................. California...................... 36,921 7
Harbor seal................................... California...................... 15,898 12
Hawaiian monk seal *.......................... Hawaiian........................ 372 0
Northern elephant seal........................ California...................... 151,754 187
----------------------------------------------------------------------------------------------------------------
* ESA-listed species (all stocks) within the HSTT Study Area.
[dagger] Only designated stocks are ESA-listed.
\1\ NSD: No stock designation.
Authorized Take From Vessel Strikes and Explosives by Serious Injury or
Mortality
Vessel Strike
Vessel strikes from commercial, recreational, and military vessels
are known to affect large whales and have resulted in serious injury
and occasional fatalities to cetaceans (Berman-Kowalewski et al., 2010;
Calambokidis, 2012; Douglas et al., 2008; Laggner 2009; Lammers et al.,
2003). Records of collisions date back to the early 17th century, and
the worldwide number of collisions appears to have increased steadily
during recent decades (Laist et al., 2001; Ritter 2012).
Numerous studies of interactions between surface vessels and marine
mammals have demonstrated that free-ranging marine mammals often, but
not always (e.g., McKenna et al., 2015), engage in avoidance behavior
when surface vessels move toward them. It is not clear whether these
responses are caused by the physical presence of a surface vessel, the
underwater noise generated by the vessel, or an interaction between the
two (Amaral and Carlson, 2005; Au and Green, 2000; Bain et al., 2006;
Bauer 1986; Bejder et al., 1999; Bejder and Lusseau, 2008; Bejder et
al., 2009; Bryant et al., 1984; Corkeron, 1995; Erbe, 2002;
F[eacute]lix, 2001; Goodwin and Cotton, 2004; Lemon et al., 2006;
Lusseau, 2003; Lusseau, 2006; Magalhaes et al., 2002; Nowacek et al.,
2001; Richter et al., 2003; Scheidat et al., 2004; Simmonds, 2005;
Watkins, 1986; Williams et al., 2002; Wursig et al., 1998). Several
authors suggest that the noise generated during motion is probably an
important factor (Blane and Jaakson, 1994; Evans et al., 1992; Evans et
al., 1994). Water disturbance may also be a factor. These studies
suggest that the behavioral responses of marine mammals to surface
vessels are similar to their behavioral responses to predators.
Avoidance behavior is expected to be even stronger in the subset of
instances during which the Navy is conducting training or testing
activities using active sonar or explosives.
The marine mammals most vulnerable to vessel strikes are those that
spend extended periods of time at the surface in order to restore
oxygen levels within their tissues after deep dives (e.g., sperm
whales). In addition, some baleen whales seem generally unresponsive to
vessel sound, making them more susceptible to vessel collisions
(Nowacek et al., 2004). These species are primarily large, slow moving
whales.
Some researchers have suggested the relative risk of a vessel
strike can be assessed as a function of animal density and the
magnitude of vessel traffic (e.g., Fonnesbeck et al., 2008; Vanderlaan
et al., 2008). Differences among vessel types also influence the
probability of a vessel strike. The ability of any ship to detect a
marine mammal and avoid a collision depends on a variety of factors,
including environmental conditions, ship design, size, speed, and
ability and number of personnel observing, as well as the behavior of
the animal. Vessel speed, size, and mass are all important factors in
determining if injury or death of a marine mammal is likely due to a
vessel strike. For large vessels, speed and angle of approach can
influence the severity of a strike. For example, Vanderlaan and Taggart
(2007) found that between vessel speeds of 8.6 and 15 knots, the
probability that a vessel strike is lethal increases from 0.21 to 0.79.
Large whales also do not have to be at the water's surface to be
struck. Silber et al. (2010) found when a whale is below the surface
(about one to two times the vessel draft), there is likely to be a
pronounced propeller suction effect. This suction effect may draw the
whale into the hull of the ship, increasing the probability of
propeller strikes.
There are some key differences between the operation of military
and non-military vessels, which make the likelihood of a military
vessel striking a whale lower than some other vessels (e.g., commercial
merchant vessels). Key differences include:
Many military ships have their bridges positioned closer
to the bow, offering better visibility ahead of the ship (compared to a
commercial merchant vessel).
There are often aircraft associated with the training or
testing activity (which can serve as Lookouts), which can more readily
detect cetaceans in the vicinity of a vessel or ahead of a vessel's
present course before crew on the vessel would be able to detect them.
Military ships are generally more maneuverable than
commercial merchant vessels, and if cetaceans are spotted in the path
of the ship, could be capable of changing course more quickly.
The crew size on military vessels is generally larger than
merchant ships, allowing for stationing more trained Lookouts on the
bridge. At all times when vessels are underway, trained Lookouts and
bridge navigation teams are used to detect objects on the surface of
the water ahead of the ship, including cetaceans. Additional Lookouts,
beyond those already stationed on the bridge and on navigation teams,
are positioned
[[Page 41858]]
as Lookouts during some training events.
When submerged, submarines are generally slow moving (to
avoid detection) and therefore marine mammals at depth with a submarine
are likely able to avoid collision with the submarine. When a submarine
is transiting on the surface, there are Lookouts serving the same
function as they do on surface ships.
Vessel strike to marine mammals is not associated with any specific
training or testing activity but is rather an extremely limited and
sporadic, but possible, accidental result of Navy vessel movement
within the HSTT Study Area or while in transit.
There have been two recorded Navy vessel strikes of large whales in
the HSTT Study Area from 2009 through 2018, the period in which the
Navy began implementing effective mitigation measures to reduce the
likelihood of vessel strikes. Both strikes occurred in 2009 and both
were to fin whales. In order to account for the accidental nature of
vessel strikes to large whales in general, and the potential risk from
any vessel movement within the HSTT Study Area within the seven-year
period in particular, the Navy requested incidental takes based on
probabilities derived from a Poisson distribution using ship strike
data between 2009-2018 in the HSTT Study Area (the time period from
when current mitigations were instituted until the Navy conducted the
analysis for the 2019 Navy application), as well as historical at-sea
days in the HSTT Study Area from 2009-2018 and estimated potential at-
sea days for the period from 2018 to 2025 covered by the requested
regulations. This distribution predicted the probabilities of a
specific number of strikes (n=0, 1, 2, etc.) over the period from 2018
to 2025. The analysis for the period of 2018 to 2023 is described in
detail in Chapter 6 of the 2017 Navy application and has been updated
for this seven-year rulemaking.
For the same reasons listed above, describing why a Navy vessel
strike is comparatively unlikely, it is highly unlikely that a Navy
vessel would strike a whale, dolphin, porpoise, or pinniped without
detecting it and, accordingly, NMFS is confident that the Navy's
reported strikes are accurate and appropriate for use in the analysis.
Specifically, Navy ships have multiple Lookouts, including on the
forward part of the ship that can visually detect a hit animal, in the
unlikely event ship personnel do not feel the strike. Unlike the
situation for non-Navy ships engaged in commercial activities, NMFS and
the Navy have no evidence that the Navy has struck a whale and not
detected it. 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 chain of command give NMFS a high
level of confidence that all strikes actually get reported.
The Navy used the two fin whale strikes in their calculations to
determine the number of strikes likely to result from their activities
(although worldwide strike information, from all Navy activities and
other sources, was used to inform the species that may be struck) and
evaluated data beginning in 2009, as that was the start of the Navy's
Marine Species Awareness Training and adoption of additional mitigation
measures to address ship strike, which will remain in place along with
additional mitigation measures during the seven years of this rule. The
probability analysis concluded that there was a 22 percent chance that
no whales would be struck by Navy vessels over the seven-year period,
and a 33, 25, 13, and 5 percent chance that one, two, three, or four
whales, respectively, would be struck over the seven-year period. All
other alternatives (i.e. one, two, three, or more whales) represent a
78 percent chance that at least one whale would be struck over the
seven-year period. Therefore, the Navy estimates, and NMFS agrees, that
there is some probability that the Navy could strike, and take by
serious injury or mortality, up to three large whales incidental to
training and testing activities within the HSTT Study Area over the
course of the seven years.
The probability of the Navy striking up to three large whales over
the seven-year period (which is a 13 percent chance) as analyzed for
this final rule using updated Navy vessel strike data and at-sea days
is very close to the probability of the Navy striking up to three large
whales over five years (which was a 10 percent chance). As the
probability of striking three large whales does not differ
significantly from the 2018 HSTT final rule, and the probability of
striking four large whales over seven years remains very low to the
point of being unlikely (less than 5 percent), the Navy has requested,
and we are authorizing no change in the number of takes by serious
injury or mortality due to vessel strikes.
Small whales, delphinids, porpoises, and pinnipeds are not expected
to be struck by Navy vessels. In addition to the reasons listed above
that make it unlikely that the Navy will hit a large whale (more
maneuverable ships, larger crew, etc.), the following are the
additional reasons that vessel strike of dolphins, small whales,
porpoises, and pinnipeds is considered very unlikely. Dating back more
than 20 years and for as long as it has kept records, the Navy has no
records of individuals of these groups being struck by a vessel as a
result of Navy activities and, further, these species' smaller size and
maneuverability make a strike unlikely. Also, NMFS has never received
any reports from other authorized activities indicating that these
species have been struck by vessels. Worldwide ship strike records show
little evidence of strikes of these groups from the shipping sector and
larger vessels, and the majority of the Navy's activities involving
faster-moving vessels (that could be considered more likely to hit a
marine mammal) are located in offshore areas where smaller delphinid,
porpoise, and pinniped densities are lower. Based on this information,
NMFS concurs with the Navy's assessment and recognizes the potential
for incidental take by vessel strike of large whales only (i.e., no
dolphins, small whales, porpoises, or pinnipeds) over the course of the
seven-year regulations from training and testing activities as
discussed further below.
As noted in the 2018 HSTT proposed and final rules, in the 2017
Navy application the Navy initially considered a weight of evidence
approach that considered relative abundance, historical strike data
over many years, and the overlap of Navy activities with the stock
distribution in their request. NMFS and the Navy further discussed the
available information and considered two factors in addition to those
considered in the Navy's request: (1) The relative likelihood of
hitting one stock versus another based on available strike data from
all vessel types as denoted in the SARs and (2) whether the Navy has
ever definitively struck an individual from a particular stock and, if
so, how many times. For this seven-year rule, we have reconsidered
these two factors and updated the analysis with the Navy's seven-year
ship strike probability analysis and any new/updated ship strike data
from the SARs.
To address number (1) above, NMFS compiled information from NMFS'
SARs on detected annual rates of large whale serious injury or
mortality from vessel collisions (Table 13). The annual rates of large
whale serious injury or mortality from vessel collisions from the SARs
help inform the relative susceptibility of large whale species to
[[Page 41859]]
vessel strike in SOCAL and Hawaii as recorded systematically over the
last five years (the period used for the SARs). We summed the annual
rates of serious injury or mortality from vessel collisions as reported
in the SARs, then divided each species' annual rate by this sum to get
the proportion of strikes for each species/stock. To inform the
likelihood of striking a particular species of large whale, we
multiplied the proportion of strikes for each species by the
probability of striking a whale (i.e., 78 percent, as described by the
Navy's probability analysis above). We also estimated the percent
likelihood of striking a particular species of large whale twice by
squaring the value estimated for the probability of striking a
particular species of whale once (i.e., generally, to calculate the
probability of an event occurring twice, multiply the probability of
the first event by the second). We note that these probabilities vary
from year to year as the average annual mortality for a given five-year
window in the SAR changes (and we include the annual averages from 2017
and 2018 SARs in Table 13 to illustrate), however, over the years and
through changing SARs, stocks tend to consistently maintain a
relatively higher or relatively lower likelihood of being struck.
The probabilities calculated as described above are then considered
in combination with the information indicating the species that the
Navy has definitively hit in the HSTT Study Area since 1991 (since they
started tracking consistently), as well as the information originally
considered by the Navy in their 2017 application, which includes
relative abundance, total recorded strikes, and the overlay of all of
this information with the Navy's Study Area. We note that for all of
the take of species specifically denoted in Table 13 below, 19 percent
of the individuals struck overall by any vessel type remained
unidentified and 36 percent of those struck by the Navy (5 of 14 in the
Pacific) remain unidentified. However, given the information on known
species or stocks struck, the analysis below remains appropriate. We
also note that Rockwood et al. (2017) modeled the likely vessel strike
of blue whales, fin whales, and humpback whales on the U.S. West Coast
(discussed in more detail in the Serious Injury or Mortality subsection
of the Analysis and Negligible Impact Determination section), and those
numbers help inform the relative likelihood that the Navy will hit
those stocks.
For each indicated stock, Table 13 includes the percent likelihood
of hitting an individual whale once based on SAR data, total strikes
from Navy vessels and from all other vessels, relative abundance, and
modeled vessel strikes from Rockwood et al. (2017). The last column
indicates the annual mortality that has the reasonable potential to
occur and is authorized: Those stocks with one serious injury or
mortality (M/SI) take authorized over the seven-year period of the rule
are shaded lightly, while those with two M/SI takes that have the
potential to occur and are authorized over the seven-year period of the
rule are shaded more darkly.
[[Page 41860]]
[GRAPHIC] [TIFF OMITTED] TR10JY20.000
Accordingly, stocks that have no record of ever having been struck
by any vessel are considered unlikely to be struck by the Navy in the
seven-year period of the 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 SAR calculation and a low relative
abundance are also considered unlikely to be struck by the Navy during
the seven years covered by this 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
[[Page 41861]]
encountered, much less struck. This rules out all but six stocks.
Three of the six stocks (CA/OR/WA stock of fin whale, Eastern North
Pacific stock of gray whale, and Central North Pacific stock of
humpback whale) are the only stocks to have been hit more than one time
each by the Navy in the HSTT Study Area, have the three highest total
strike records (21, 35, and 58 respectively), have three of the four
highest percent likelihoods based on the SAR records, have three of the
four significantly higher relative abundances, and have up to a 3.4
percent likelihood of being struck twice based on NMFS' SAR calculation
(not shown in Table 13, but proportional to percent likelihood of being
struck once). Based on all of these factors, it is considered
reasonably likely that these stocks could be struck twice during the
seven-year rule.
Based on the information summarized in Table 13, and the fact that
there is the potential for up to three large whales to be struck, it is
considered reasonably likely that one individual from the remaining
three stocks could be one of the three whales struck. Sperm whales have
only been struck a total of two times by any vessel type in the whole
HSTT Study Area, however, the Navy struck a sperm whale once in Hawaii
prior to 2009 and the relative abundance of sperm whales in Hawaii is
the highest of any of the stocks present. Therefore, we consider it
reasonably likely that the Hawaii stock of sperm whales could be struck
once during the seven-year rule. The total strikes of Eastern North
Pacific blue whales, the percent likelihood of striking one based on
the SAR calculation, and their relative abundance can all be considered
moderate compared to other stocks, and the Navy has struck one in the
past prior to 2009 (with the likelihood of striking two based on the
SAR calculation being below one percent). Therefore, we consider it
reasonably likely that the Navy could strike one individual over the
course of the seven-year rule. The Navy has not hit a humpback whale in
the HSTT Study Area and the relative abundance of the CA/OR/WA stock is
very low. However, a U.S. Coast Guard vessel escorting a Navy vessel
struck a humpback whale in the Northwest (outside of the HSTT Study
Area) and as a species, humpback whales have a moderate to high number
of total strikes and percent likelihood of being struck. Although the
likelihood of CA/OR/WA humpback whales being struck overall is moderate
to high relative to other stocks, the distribution of the Mexico DPS
versus the Central America DPS, as well as the distribution of overall
vessel strikes inside versus outside of the SOCAL area (the majority
are outside), supports the reasonable likelihood that the Navy could
strike one individual humpback whale from the CA/OR/WA stock (not two),
and that that individual would be highly likely to be from the Mexico
DPS, as described below.
Specifically, regarding the likelihood of striking a humpback whale
from a particular DPS, as suggested in Wade et al. (2016), the
probability of encountering (which is thereby applied to striking)
humpback whales from each DPS in the CA/OR area is 89.6 percent and
19.7 percent for the Mexico and Central America DPSs, respectively
(note that these percentages reflect the upper limit of the 95 percent
confidence interval to reduce the likelihood of underestimating take,
and thereby do not total to 100). This suggests that the chance of
striking a humpback whale from the Central America DPS is one tenth to
one fifth of the overall chance of hitting a CA/OR/WA humpback whale in
general in the SOCAL part of the HSTT Study Area, which in combination
with the fact that no humpback whale has been struck in SOCAL makes it
highly unlikely, and thereby no strikes of whales from the Central
America DPS are anticipated or authorized. If a humpback whale were
struck in SOCAL, it is likely it would be of the Mexico DPS. However,
regarding the overall likelihood of striking a humpback whale at all
and the likely number of times, we note that the majority of strikes of
the CA/OR/WA humpback whale stock (i.e., the numbers reflected in Table
13) take place outside of SOCAL. Whereas the comparative DPS numbers
cited above apply in the California and Oregon feeding area and in the
Washington and Southern British Columbia feeding area, Wade et al.
(2016) suggest that 52.9, 41.9, and 14.7 percent of humpback whales
encountered will come from the Hawaii, Mexico, and Central America
DPSs, respectively. This means that the numbers in Table 13 indicating
the overall strikes of CA/OR/WA humpback whales and SAR calculations
based on average annual mortality over the last five years are actually
lower than indicated for the Mexico DPS, which would only be a subset
of those mortalities. Lastly, the Rockwood et al. paper supports a
relative likelihood of 1:1:2 for striking blue whales, humpback whales,
and fin whales off the U.S. West Coast, which supports the authorized
take included in this rule, which is 1, 1, and 2, respectively over the
seven-year period. For these reasons, one M/SI take of CA/OR/WA
humpback whales, which would be expected to be of the Mexico DPS, could
reasonably likely occur and is authorized.
Accordingly, the Navy has requested, and NMFS authorizes, take by
M/SI from vessel strike of up to two of any of the following species/
stocks in the seven-year period: Gray whale (Eastern North Pacific
stock), fin whale (CA/OR/WA stock), humpback whale (Central North
Pacific stock); and one of any of the following species/stocks in the
seven-year period: Blue whale (Eastern North Pacific stock), humpback
whale (CA/OR/WA stock, Mexico DPS), or sperm whale (Hawaii stock).
As described above, the Navy analysis suggests, and NMFS analysis
concurs, that vessel strikes to the stocks below are very unlikely to
occur due to the stocks' relatively low occurrence in the HSTT Study
Area, particularly in core HSTT training and testing subareas, and the
fact that the stocks have not been struck by the Navy and are rarely,
if ever, recorded struck by other vessels. Therefore, the Navy is not
requesting lethal take authorization, and NMFS is not authorizing
lethal take, for the following stocks: Bryde's whale (Eastern Tropical
Pacific stock), Bryde's whale (Hawaii stock), humpback whale (CA/OR/WA
stock, Central America DPS), minke whale (CA/OR/WA stock), minke whale
(Hawaii stock), sei whale (Hawaii stock), sei whale (Eastern North
Pacific stock), and sperm whale (CA/OR/WA stock).
In conclusion, although it is generally unlikely that any whales
will be struck in a year, based on the information and analysis above,
NMFS anticipates that no more than three whales have the potential to
be taken by M/SI over the seven-year period of the rule, and that those
three whales may include no more than two of any of the following
stocks: Gray whale (Eastern North Pacific stock), fin whale (CA/OR/WA
stock), and humpback whale (Central North Pacific stock); and no more
than one of any of the following stocks: Blue whale (Eastern North
Pacific stock), humpback whale (CA/OR/WA, Mexico DPS), and sperm whale
(Hawaii stock). Accordingly, NMFS has evaluated under the negligible
impact standard the M/SI of 0.14 or 0.29 whales annually from each of
these species or stocks (i.e., 1 or 2 takes, respectively, divided by
seven years to get the annual number), along with the expected
incidental takes by harassment.
Explosives
The Navy's model and quantitative analysis process used for the
2018 HSTT FEIS/OEIS and in the Navy's 2017 and 2019 applications to
estimate potential exposures of marine mammals to
[[Page 41862]]
explosive stressors is detailed in the technical report titled
``Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles:
Methods and Analytical Approach for Phase III Training and Testing''
(U.S. Department of the Navy, 2018). Specifically, over the course of a
modelled maximum year of training and testing, the Navy's model and
quantitative analysis process estimates M/SI of two short-beaked common
dolphins and one California sea lion as a result of exposure to
explosive training and testing activities (please see Section 6 of the
2017 Navy application where it is explained how maximum annual
estimates are calculated). Over the five[hyphen]year period of the 2018
HSTT regulations, mortality of 6 short-beaked common dolphins and 4
California sea lions was estimated and authorized (10 marine mammals in
total) as a result of exposure to explosive training and testing
activities. In extending the same training and testing activities for
an additional two years, over the seven[hyphen]year period of the
regulations M/SI of 8 short-beaked common dolphins and 5 California sea
lions (13 marine mammals in total) is estimated as a result of exposure
to explosive training and testing activities, and is therefore
authorized. As explained in the aforementioned Analytical Approach
technical report, expected impacts were calculated considering spatial
and seasonal differences in model inputs, as well as the expected
variation in the number of training and testing events from year to
year, described as representative and maximum levels of activity. The
summed impacts over any multi-year period, therefore, are the expected
value for impacts over that time period rather than a multiple of a
single maximum year's impacts. Therefore, calculating the seven-year
total is not a matter of simply multiplying the annual estimate by
seven, as the total amount of estimated mortalities over the seven
years covered by the 2019 Navy application is less than the sum total
of each year. As explained earlier, although the annual estimates are
based on the maximum number of activities per year and therefore the
maximum estimated takes, the seven-year total take estimates are based
on the sum of three maximum years and four representative years. NMFS
coordinated with the Navy in the development of their take estimates
and concurs with the Navy's approach for estimating the number of
animals from each species or stock that could be taken by M/SI from
explosives.
Mitigation Measures
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the
permissible methods of taking pursuant to the activity, and other means
of effecting the least practicable adverse impact on the species or
stock(s) and its habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance, and on the
availability of the species or stock(s) for subsistence uses (``least
practicable adverse impact''). NMFS does not have a regulatory
definition for least practicable adverse impact. The 2004 NDAA amended
the MMPA as it relates to military readiness activities and the
incidental take authorization process such that a determination of
``least practicable adverse impact'' shall include consideration of
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity. For the full
discussion of how NMFS interprets least practicable adverse impact,
including how it relates to the negligible-impact standard, see the
Mitigation Measures section in the 2018 HSTT final rule.
Section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction
with its authorization, binding--and enforceable--restrictions (in the
form of regulations) setting forth how the activity must be conducted,
thus ensuring the activity has the ``least practicable adverse impact''
on the affected species or stocks. In situations where mitigation is
specifically needed to reach a negligible impact determination, section
101(a)(5)(A)(i)(II) also provides a mechanism for ensuring compliance
with the ``negligible impact'' requirement. Finally, the least
practicable adverse impact standard also requires consideration of
measures for marine mammal habitat, with particular attention to
rookeries, mating grounds, and other areas of similar significance, and
for subsistence impacts, whereas the negligible impact standard is
concerned solely with conclusions about the impact of an activity on
annual rates of recruitment and survival.\4\ In evaluating what
mitigation measures are appropriate, NMFS considers the potential
impacts of the Specified Activities, the availability of measures to
minimize those potential impacts, and the practicability of
implementing those measures, as we describe below.
---------------------------------------------------------------------------
\4\ Outside of the military readiness context, mitigation may
also be appropriate to ensure compliance with the ``small numbers''
language in MMPA sections 101(a)(5)(A) and (D).
---------------------------------------------------------------------------
Implementation of Least Practicable Adverse Impact Standard
Our evaluation of potential mitigation measures includes
consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of
the potential measure(s) is expected to reduce adverse impacts to
marine mammal species or stocks, their habitat, and their availability
for subsistence uses (where relevant). This analysis considers such
things as the nature of the potential adverse impact (such as
likelihood, scope, and range), the likelihood that the measure will be
effective if implemented, and the likelihood of successful
implementation; and
(2) The practicability of the measures for applicant
implementation. Practicability of implementation may consider such
things as cost, impact on activities, and, in the case of a military
readiness activity, under section 101(a)(5)(A)(ii) specifically
considers personnel safety, practicality of implementation, and impact
on the effectiveness of the military readiness activity.
While the language of the least practicable adverse impact standard
calls for minimizing impacts to affected species or stocks, we
recognize that the reduction of impacts to those species or stocks
accrues through the application of mitigation measures that limit
impacts to individual animals. Accordingly, NMFS' analysis focuses on
measures that are designed to avoid or minimize impacts on individual
marine mammals that are likely to increase the probability or severity
of population-level effects.
While direct evidence of impacts to species or stocks from a
specified activity is rarely available, and additional study is still
needed to understand how specific disturbance events affect the fitness
of individuals of certain species, there have been improvements in
understanding the process by which disturbance effects are translated
to the population. With recent scientific advancements (both marine
mammal energetic research and the development of energetic frameworks),
the relative likelihood or degree of impacts on species or stocks may
often be inferred given a detailed understanding of the activity, the
environment, and the affected species or stocks--and the best available
science has been used here. This same information is used in the
development of mitigation measures and helps us understand how
mitigation measures contribute to lessening effects (or the
[[Page 41863]]
risk thereof) to species or stocks. We also acknowledge that there is
always the potential that new information, or a new recommendation
could become available in the future and necessitate reevaluation of
mitigation measures (which may be addressed through adaptive
management) to see if further reductions of population impacts are
possible and practicable.
In the evaluation of specific measures, the details of the
specified activity will necessarily inform each of the two primary
factors discussed above (expected reduction of impacts and
practicability), and are carefully considered to determine the types of
mitigation that are appropriate under the least practicable adverse
impact standard. Analysis of how a potential mitigation measure may
reduce adverse impacts on a marine mammal stock or species,
consideration of personnel safety, practicality of implementation, and
consideration of the impact on effectiveness of military readiness
activities are not issues that can be meaningfully evaluated through a
yes/no lens. The manner in which, and the degree to which,
implementation of a measure is expected to reduce impacts, as well as
its practicability in terms of these considerations, can vary widely.
For example, a time/area restriction could be of very high value for
decreasing population-level impacts (e.g., avoiding disturbance of
feeding females in an area of established biological importance) or it
could be of lower value (e.g., decreased disturbance in an area of high
productivity but of less firmly established biological importance).
Regarding practicability, a measure might involve restrictions in an
area or time that impede the Navy's ability to certify a strike group
(higher impact on mission effectiveness), or it could mean delaying a
small in-port training event by 30 minutes to avoid exposure of a
marine mammal to injurious levels of sound (lower impact). A
responsible evaluation of ``least practicable adverse impact'' will
consider the factors along these realistic scales. Accordingly, the
greater the likelihood that a measure will contribute to reducing the
probability or severity of adverse impacts to the species or stock or
its habitat, the greater the weight that measure is given when
considered in combination with practicability to determine the
appropriateness of the mitigation measure, and vice versa. In the
evaluation of specific measures, the details of the specified activity
will necessarily inform each of the two primary factors discussed above
(expected reduction of impacts and practicability), and will be
carefully considered to determine the types of mitigation that are
appropriate under the least practicable adverse impact standard. For
more detail on how we apply these factors, see the discussion in the
Mitigation Measures section of the 2018 HSTT final rule.
NMFS fully reviewed the Navy's specified activities and the
mitigation measures for the 2018 HSTT rulemaking and determined that
the mitigation measures would result in the least practicable adverse
impact on marine mammals. There is no change in either the activities
or the mitigation measures for this rule. See the 2019 Navy application
and the 2018 HSTT final rule for detailed information on the Navy's
mitigation measures. NMFS worked with the Navy in the development of
the Navy's initially proposed measures, which were informed by years of
implementation and monitoring. A complete discussion of the Navy's
evaluation process used to develop, assess, and select mitigation
measures, which was informed by input from NMFS, can be found in
Chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS. The process
described in Chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS robustly
supported NMFS' independent evaluation of whether the mitigation
measures would meet the least practicable adverse impact standard. The
Navy has implemented the mitigation measures under the 2018 HSTT
regulations and will be required to continue implementation of the
mitigation measures identified in this rule for the full seven years it
covers to avoid or reduce potential impacts from acoustic, explosive,
and physical disturbance and ship strike stressors.
In its 2019 application, the Navy proposed no changes to the
mitigation measures in the 2018 HSTT final rule and there is no new
information that affects NMFS' assessment of the applicability or
effectiveness of those measures over the new seven-year period. See the
2018 HSTT proposed rule and the 2018 HSTT final rule for our full
assessment of these measures. In summary, the Navy has agreed to
procedural mitigation measures that will reduce the probability and/or
severity of impacts expected to result from acute exposure to acoustic
sources or explosives, ship strike, and impacts to marine mammal
habitat. Specifically, the Navy will use a combination of delayed
starts, powerdowns, and shutdowns to minimize or avoid 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 also implement multiple time/area
restrictions (several of which were added in the 2018 HSTT final rule
since the previous HSTT MMPA incidental take rule) that will reduce
take of marine mammals in areas or at times where they are known to
engage in important behaviors, such as feeding or calving, where the
disruption of those behaviors would have a higher probability of
resulting in impacts on reproduction or survival of individuals that
could lead to population-level impacts. Summaries of the Navy's
procedural mitigation measures and mitigation areas for the HSTT Study
Area are provided in Tables 14 and 15.
Table 14--Summary of Procedural Mitigation
------------------------------------------------------------------------
Mitigation zone sizes and other
Stressor or activity requirements
------------------------------------------------------------------------
Environmental Awareness and Afloat Environmental Compliance
Education. Training program for applicable
personnel.
Active Sonar.................. Depending on sonar source:
1,000 yd power down, 500 yd
power down, and 200 yd shut down.
200 yd shut down.
Air Guns...................... 150 yd.
Pile Driving.................. 100 yd.
Weapons Firing Noise.......... 30 degrees on either side of
the firing line out to 70 yd.
Explosive Sonobuoys........... 600 yd.
Explosive Torpedoes........... 2,100 yd.
Explosive Medium-Caliber and 1,000 yd (large-caliber
Large-Caliber Projectiles. projectiles).
600 yd (medium-caliber
projectiles during surface-to-surface
activities).
200 yd (medium-caliber
projectiles during air-to-surface
activities).
Explosive Missiles and Rockets 2,000 yd (21-500 lb net
explosive weight).
[[Page 41864]]
900 yd (0.6-20 lb net explosive
weight).
Explosive Bombs............... 2,500 yd.
Sinking Exercises............. 2.5 nmi.
Explosive Mine Countermeasure 2,100 yd (6-650 lb net
and Neutralization Activities. explosive weight).
600 yd (0.1-5 lb net explosive
weight).
Explosive Mine Neutralization 1,000 yd (21-60 lb net
Activities Involving Navy explosive weight for positive control
Divers. charges and charges using time-delay
fuses).
500 yd (0.1-20 lb net explosive
weight for positive control charges).
Underwater Demolition Multiple 700 yd.
Charge--Mat Weave and
Obstacle Loading.
Maritime Security Operations-- 200 yd.
Anti-Swimmer Grenades.
Vessel Movement............... 500 yd (whales).
200 yd (other marine mammals).
Towed In-Water Devices........ 250 yd (marine mammals).
Small-, Medium-, and Large- 200 yd.
Caliber Non-Explosive
Practice Munitions.
Non-Explosive Missiles and 900 yd.
Rockets.
Non-Explosive Bombs and Mine 1,000 yd.
Shapes.
------------------------------------------------------------------------
Notes: lb: pounds; nmi: nautical miles; yd: yards.
Table 15--Summary of Mitigation Areas for Marine Mammals
------------------------------------------------------------------------
Summary of mitigation area requirements \1\
-------------------------------------------------------------------------
Hawaii Island Mitigation Area (year-round)
Navy personnel must not conduct more than 300 hours of MF1
surface ship hull-mounted mid-frequency active sonar or 20 hours of
MF4 dipping sonar, or use explosives that could potentially result
in takes of marine mammals during training and testing.\1\
4-Islands Region Mitigation Area (November 15-April 15 for active sonar;
year-round for explosives)
Navy personnel must not use MF1 surface ship hull-mounted
mid-frequency active sonar or explosives that could potentially
result in takes of marine mammals during training and testing.\2\
Humpback Whale Special Reporting Areas (December 15-April 15)
Navy personnel must report the total hours of surface ship
hull-mounted mid-frequency active sonar used in the special
reporting areas in its annual training and testing activity reports
submitted to NMFS.
San Diego Arc, San Nicolas Island, and Santa Monica/Long Beach
Mitigation Areas (June 1--October 31)
Navy personnel must not conduct more than a total of 200
hours of MF1 surface ship hull-mounted mid-frequency active sonar
in the combined areas, excluding normal maintenance and systems
checks, during training and testing.\1\
Within the San Diego Arc Mitigation Area, Navy personnel
must not use explosives that could potentially result in the take
of marine mammals during large-caliber gunnery, torpedo, bombing,
and missile (including 2.75 inch rockets) activities during
training and testing.\1\
Within the San Nicolas Island Mitigation Area, Navy
personnel must not use explosives that could potentially result in
the take of marine mammals during mine warfare, large-caliber
gunnery, torpedo, bombing, and missile (including 2.75 inch
rockets) activities during training.\1\
Within the Santa Monica/Long Beach Mitigation Area, Navy
personnel must not use explosives that could potentially result in
the take of marine mammals during mine warfare, large-caliber
gunnery, torpedo, bombing, and missile (including 2.75 inch
rockets) activities during training and testing.\1\
Santa Barbara Island Mitigation Area (year-round)
Navy personnel must not use MF1 surface ship hull-mounted
mid-frequency active sonar during training and testing, or
explosives that could potentially result in the take of marine
mammals during medium-caliber or large-caliber gunnery, torpedo,
bombing, and missile (including 2.75 inch rockets) activities
during training.\1\
Awareness Notification Message Areas (seasonal according to species)
Navy personnel must issue awareness notification messages
to alert ships and aircraft to the possible presence of humpback
whales (November-April), blue whales (June-October), gray whales
(November-March), or fin whales (November-May).
------------------------------------------------------------------------
\1\ In the 2018 HSTT Final Rule we inadvertently included ``Mitigation
Areas for Shallow-water Coral Reefs and Precious Coral Beds (year-
round)'' in this table. As this mitigation area does not relate to
marine mammals we have not included it here.
\2\ If Naval units need to conduct more than the specified amount of
training or testing, they will obtain permission from the appropriate
designated Command authority prior to commencement of the activity.
The Navy will provide NMFS with advance notification and include the
information in its annual activity reports submitted to NMFS.
Mitigation Conclusions
NMFS has carefully evaluated the Navy's proposed mitigation
measures--many of which were developed with NMFS' input during the
previous phases of Navy training and testing authorizations and none of
which have changed since our evaluation during the 2018 HSTT
rulemaking--and considered a broad range of other measures (i.e., the
measures considered but eliminated in the 2018 HSTT FEIS/OEIS, which
reflect many of the comments that have arisen via NMFS or public input
in past years) in the context of ensuring that NMFS prescribes the
means of effecting the least practicable adverse impact on the affected
marine mammal species and stocks and their habitat. Our evaluation of
potential measures included consideration of the following factors in
relation to one another: the manner in which, and the degree to which,
the successful implementation of the mitigation measures is expected to
reduce the likelihood and/or magnitude of adverse impacts to marine
mammal species and stocks and their habitat; the proven or likely
efficacy of the measures; and the practicability of the measures for
applicant implementation,
[[Page 41865]]
including consideration of personnel safety, practicality of
implementation, and impact on the effectiveness of the military
readiness activity. There is no new information that affects our
analysis from the 2018 HSTT rulemaking, all of which remains applicable
and valid for our assessment of the appropriateness of the mitigation
measures during the seven-year period of this rule.
Based on our evaluation of the Navy's measures (which are being
implemented under the 2018 HSTT regulations), as well as other measures
considered by the Navy and NMFS, NMFS has determined that the Navy's
mitigation measures are appropriate means of effecting the least
practicable adverse impact on marine mammal species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and considering specifically personnel
safety, practicality of implementation, and impact on the effectiveness
of the military readiness activity. Additionally, as described in more
detail below, the 2018 HSTT final rule includes an adaptive management
provision, which NMFS has extended for the additional two years of this
rule, which ensures that mitigation is regularly assessed and provides
a mechanism to improve the mitigation, based on the factors above,
through modification as appropriate. Thus, NMFS concludes that the
mitigation measures outlined in the final rule satisfy the statutory
standard and that any adverse impacts that remain cannot practicably be
further mitigated.
Monitoring
Section 101(a)(5)(A) of the MMPA states that in order to authorize
incidental take for an activity, NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) indicate that
requests for incidental take authorizations must include the suggested
means of accomplishing the necessary monitoring and reporting that will
result in increased knowledge of the species and of the level of taking
or impacts on populations of marine mammals that are expected to be
present.
In its 2019 application, the Navy proposed no changes to the
monitoring described in the 2018 HSTT final rule. They would continue
implementation of the robust Integrated Comprehensive Monitoring
Program and Strategic Planning Process described in the 2018 HSTT final
rule. The Navy's monitoring strategy, currently required by the 2018
HSTT regulations and extended for two years under this final rule, is
well-designed to work across Navy ranges to help better understand the
impacts of the Navy's activities on marine mammals and their habitat by
focusing on learning more about marine mammal occurrence in different
areas and exposure to Navy stressors, marine mammal responses to
different sound sources, and the consequences of those exposures and
responses on marine mammal populations. Similarly, the seven-year
regulations include identical adaptive management provisions and
reporting requirements as the 2018 HSTT regulations. There is no new
information to indicate that the monitoring measures put in place under
the 2018 HSTT final rule do not remain applicable and appropriate for
the seven-year period of this rule. See the Monitoring section of the
2018 HSTT final rule for more details on the monitoring that would be
required under this rule. In addition, please see the 2019 Navy
application, which references Chapter 13 of the 2017 Navy application
for full details on the monitoring and reporting that will be conducted
by the Navy.
Adaptive Management
The 2018 HSTT regulations governing the take of marine mammals
incidental to Navy training and testing 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 seven-year regulations. The 2019 Navy
application proposed no changes to the adaptive management component
included in the 2018 HSTT final rule.
The reporting requirements associated with this rule are designed
to provide NMFS with monitoring data from the previous year to allow
NMFS to consider whether any changes to existing mitigation and
monitoring requirements are appropriate. The use of adaptive management
allows NMFS to consider new information from different sources to
determine (with input from the Navy regarding practicability) on an
annual or biennial basis if mitigation or monitoring measures should be
modified (including additions or deletions). Mitigation measures could
be modified if new data suggests that such modifications would have a
reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring and if the measures are practicable. If
the modifications to the mitigation, monitoring, or reporting measures
are substantial, NMFS will publish a notice of the planned LOA in the
Federal Register and solicit public comment.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring and exercises reports, as required by MMPA
authorizations; (2) compiled results of Navy funded R&D studies; (3)
results from specific stranding investigations; (4) results from
general marine mammal and sound research; and (5) any information which
reveals that marine mammals may have been taken in a manner, extent, or
number not authorized by these regulations or subsequent LOAs. The
results from monitoring reports and other studies may be viewed at
https://www.navymarinespeciesmonitoring.us.
Reporting
In order to issue incidental take authorization for an activity,
section 101(a)(5)(A) of the MMPA states that NMFS must set forth
requirements pertaining to the monitoring and reporting of such taking.
Effective reporting is critical both to compliance as well as ensuring
that the most value is obtained from the required monitoring. Reports
from individual monitoring events, results of analyses, publications,
and periodic progress reports for specific monitoring projects will be
posted to the Navy's Marine Species Monitoring web portal: https://www.navymarinespeciesmonitoring.us. The 2019 Navy application proposed
no changes to the reporting requirements. Except as discussed below,
reporting requirements would remain identical to those described in the
2018 HSTT final rule, and there is no new information to indicate that
the reporting requirements put in place under the 2018 HSTT final rule
do not remain applicable and appropriate for the seven-year period of
this final rule. See the Reporting section of the 2018 HSTT final rule
for more details on the reporting that is required under this rule.
In addition, the 2018 HSTT proposed and final rules unintentionally
failed to include the requirement for the Navy to submit a final
activity ``close out'' report at the end of the regulatory period. That
oversight is being corrected through this rulemaking. This
comprehensive training and testing activity report will provide the
annual totals for each sound source bin with a comparison to the annual
allowance and the seven-year
[[Page 41866]]
total for each sound source bin with a comparison to the seven-year
allowance. Additionally, if there are any changes to the sound source
allowance, this report will include a discussion of why the change was
made and include analysis to support how the change did or did not
affect the analysis in the 2018 HSTT FEIS/OEIS and MMPA final rule.
Analysis and Negligible Impact Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through mortality, serious injury, and Level A or Level B
harassment (as presented in Tables 11 and 12), NMFS considers other
factors, such as the likely nature of any responses (e.g., intensity,
duration), the context of any responses (e.g., critical reproductive
time or location, migration), as well as effects on habitat, and the
likely effectiveness of the mitigation. We also assess the number,
intensity, and context of estimated takes by evaluating this
information relative to population status. Consistent with the 1989
preamble for NMFS' implementing regulations (54 FR 40338; September 29,
1989), the impacts from other past and ongoing anthropogenic activities
are incorporated into this analysis via their impacts on the
environmental baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, other ongoing
sources of human-caused mortality, and ambient noise levels).
In the Estimated Take of Marine Mammals sections of this final rule
and the 2018 HSTT final rule (where the activities, species and stocks,
potential effects, and mitigation measures are the same as for this
rule), we identified the subset of potential effects that would be
expected to rise to the level of takes both annually and over the
seven-year period covered by this rule, and then identified the number
of each of those mortality takes that we believe could occur or the
maximum number of harassment takes that are reasonably expected to
occur based on the methods described. The impact that any given take
will have is dependent on many case-specific factors that need to be
considered in the negligible impact analysis (e.g., the context of
behavioral exposures such as duration or intensity of a disturbance,
the health of impacted animals, the status of a species that incurs
fitness-level impacts to individuals, etc.). For this final rule we
evaluated the likely impacts of the enumerated maximum number of
harassment takes that were proposed for authorization and reasonably
expected to occur, in the context of the specific circumstances
surrounding these predicted takes. We also assessed M/SI takes that
have the potential to occur, as well as considering the traits and
statuses of the affected species and stocks. Lastly, we collectively
evaluated this information, as well as other more taxa-specific
information and mitigation measure effectiveness, in group-specific
assessments that support our negligible impact conclusions for each
stock. Because all of the Navy's specified activities would occur
within the ranges of the marine mammal stocks identified in the rule,
all negligible impact analyses and determinations are at the stock
level (i.e., additional species-level determinations are not needed).
The Navy proposed no changes to the nature or level of the
specified activities or the boundaries of the HSTT Study Area, and
therefore the training and testing activities (e.g., equipment and
sources used, exercises conducted) are the same as those analyzed in
the 2018 HSTT final rule. In addition, the mitigation, monitoring, and
nearly all reporting measures are identical to those described and
analyzed in the 2018 HSTT final rule. As described above, there is no
new information since the publication of the 2018 HSTT final rule
regarding the impacts of the specified activities on marine mammals,
the status and distribution of any of the affected marine mammal
species or stocks, or the effectiveness of the mitigation and
monitoring measures that would change our analyses, except for one
species. For that one species--gray whales--we have considered the
effects of the new UME on the west coast of North America along with
the effects of the Navy's activities in the negligible impact analysis.
Harassment
As described in the Estimated Takes of Marine Mammals section, the
annual number of takes authorized and reasonably expected to occur by
Level A harassment and Level B harassment (based on the maximum number
of activities per 12-month period) are identical to those presented in
Tables 41 through 42 in the Take Requests section of the 2018 HSTT
final rule. As such, the negligible impact analyses and determinations
of the effects of the estimated Level A harassment and Level B
harassment takes on annual rates of recruitment or survival for each
species and stock are nearly identical to and substantively unchanged
from those presented in the 2018 HSTT final rule. The primary
difference is that the annual levels of take and the associated effects
on reproduction or survival would occur for the seven-year period of
this rule instead of the five-year period of the 2018 HSTT final rule,
which will make no difference in effects on annual rates of recruitment
or survival. The other differences in the analyses include our
consideration of the newly-declared gray whale UME and slightly
modified explosive take estimates, neither of which, as described
below, affect the results of the analyses or our determinations. For
detailed discussion of the impacts that affected individuals may
experience given the specific characteristics of the specified
activities and required mitigation (e.g., from behavioral disruption,
masking, and temporary or permanent threshold shift), along with the
effects of the expected Level A harassment and Level B harassment take
on reproduction and survival, see the applicable subsections in the
Analysis and Negligible Impact Determination section of the 2018 HSTT
final rule (83 FR 66977-67018; December 27, 2018).
Serious Injury or Mortality
Based on the information and methods discussed in the Estimated
Take of Marine Mammals section (which are identical to those used in
the 2018 HSTT final rule), the number of potential mortalities due to
ship strike requested and authorized over the seven-year period of this
rule is the same as those authorized in the 2018 HSTT final rule. As
the potential mortalities are now spread over seven years rather than
five, an annual average of 0.29 gray whales (Eastern North Pacific
stock), fin whales (CA/OR/WA stock), and humpback whales (Central North
Pacific stock) and an annual average of 0.14 blue whales (Eastern North
Pacific stock), humpback whales (CA/OR/WA stock, Mexico DPS), and sperm
whales (Hawaii stock) as described in Table 16 (i.e., one, or two,
take(s) over seven years divided by seven to get the annual number) are
expected to potentially occur and are authorized. As this annual number
is less than that analyzed and authorized in the 2018 HSTT final rule,
which was
[[Page 41867]]
an annual average of 0.4 whales or 0.2 whales respectively for the same
species and stocks, and with the exception of the new gray whale UME on
the U.S. West Coast and updated abundance information for the Eastern
North Pacific stock of blue whales (available in the 2019 draft SARs),
no other relevant information about the status, abundance, or effects
of M/SI on each species or stock has changed, the analysis of the
effects of vessel strike mirrors that presented in the 2018 HSTT final
rule.
Table 16--Summary Information Related to Mortalities Requested for Ship Strike, 2018-2025
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annual
authorized Fisheries Vessel collisions Potential Residual PBR
Stock take by Total annual interactions (Y/N); (Y/N); annual rate biological (PBR minus Stock trend * Recent UME (Y/N);
Species (stock) abundance serious injury M/SI * \2\ annual rate of M/ of M/SI from removal (PBR) annual M/SI) \5\ number and year
(Nbest) * or mortality SI from fisheries vessel collision * * \3\ \4\ (since 2007)
\1\ interactions *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale (CA/OR/WA stock).... 9,029 0.29 >=43.5 Y; >=0.5............ Y, 43.............. 81 37.5 [uarr].......... N.
Gray whale (Eastern North 26,960 0.29 139 Y, 9.6.............. Y, 0.8............. 801 662 stable since Y, 264, 2019.
Pacific stock). 2003.
Humpback whale (CA/OR/WA 2,900 0.14 >=42.1 Y; >=17.3........... Y, 22.............. 33.4 -8.7 [uarr] N.
stock, Mexico DPS). (historically);
stable.
Humpback whale (Central North 10,103 0.29 25 Y; 18............... Y, 1.4............. 83 58 [uarr].......... N.
Pacific stock) \6\.
Sperm whale (Hawaii stock).... \7\ 4,559 0.14 0.7 Y, 0.7.............. N.................. 14 13.3 ?............... N.
Blue whale (Eastern North 1,496 0.14 >=19.4 >=1.44.............. Y, 18.............. 2.1 -17.3 stable.......... Y; 3, 2007.
Pacific Stock).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the 2018 final SARs and draft 2019 SARs.
\1\ This column represents the annual take by serious injury or mortality (M/SI) by vessel collision and was calculated by the number of mortalities for authorization divided by seven years
(the length of the rule and LOAs).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued
from either other Navy strikes or NMFS' Southwest Fisheries Science Center (SWFSC) takes in the SARs to ensure not double-counted against PBR. However, for these species, there were no takes
from either other Navy activities or SWFSC in the SARs to deduct that would be considered double-counting.
\3\ Potential biological removal (PBR) is defined in section 3 of the MMPA. See the Analysis and Negligible Impact Determination section of the 2018 HSTT final rule for a description of PBR.
\4\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is presented in the SARs). This
value represents the residual PBR for the stock in the stock's entire range.
\5\ See relevant SARs for more information regarding stock status and trends.
\6\ Some values for the Central North Pacific stock of humpback whales were unintentionally presented incorrectly in Table 69 of the 2018 HSTT final rule. The correct values are provided here.
These transcription errors do not affect the analysis or conclusions in the 2018 HSTT final rule, as the correct values were used in the analysis presented in the Analysis and Negligible
Impact Determination section.
\7\ The stock abundance for the Hawaii stock of sperm whales was unintentionally presented incorrectly as 5,559 in the 2018 HSTT final rule and has been corrected here. This transcription
error does not affect the analysis or conclusions reached in the 2018 HSTT final rule.
The Navy has also requested a small number of takes by M/SI from
explosives. To calculate the annual average of mortalities for
explosives in Table 17 we used the same method as described for vessel
strikes. The annual average is the total number of takes over seven
years divided by seven. Specifically, NMFS is authorizing the following
M/SI takes from explosives: 5 California sea lions and 8 short-beaked
common dolphins over the seven-year period (therefore 0.71 mortalities
annually for California sea lions and 1.14 mortalities annually for
short-beaked common dolphins), as described in Table 17. As this annual
number is less than that analyzed and authorized in the 2018 HSTT final
rule, which was an annual average of 0.8 California sea lions and 1.2
short-beaked common dolphins, and no other relevant information about
the status, abundance, or effects of mortality on each species or stock
has changed, the analysis of the effects of explosives mirrors that
presented in the 2018 HSTT final rule.
Table 17--Summary Information Related to Mortalities From Explosives, 2018-2025
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annual
authorized Fisheries SWFSC Residual PBR-
Stock take by Total annual interactions (Y/N); authorized PBR minus Stock trend * UME (Y/N); number
Species (stock) abundance serious injury M/SI * \2\ annual rate of M/ PBR * take (annual) annual M/SI \5\ and year
(Nbest) * or mortality SI from fisheries \3\ and SWFSC \4\
\1\ interactions *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion (U.S. 257,606 0.71 319.4 Y;197............... 14,011............. 6.6 13,685 [uarr].......... Y; 8,112; 2013.
stock).
Short-beaked common dolphin 969,861 1.14 >=40 Y; >=40............. 8,393.............. 2.8 8,350.2 ?............... N.
(CA/OR/WA stock).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the 2018 final SARs. No changes for these stocks were included in the 2019 draft SARs.
\1\ This column represents the annual take by serious injury or mortality (M/SI) during explosive detonations and was calculated by the number of mortalities planned for authorization divided
by seven years (the length of the rule and LOAs).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued
from either other Navy activities or NMFS' SWFSC takes in the SARs to ensure they are not double-counted against PBR. In this case, for California sea lion 0.8 annual M/SI from the U.S. West
Coast during scientific trawl and longline operations conducted by NMFS and 1.8 annual M/SI from marine mammal research related mortalities authorized by NMFS was deducted from total annual
M/SI (322).
\3\ This column represents annual take authorized through NMFS' SWFSC rulemaking/LOAs (80 FR 58982).
\4\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI column and the annual authorized take
from the SWFSC column). In the case of California sea lion the M/SI column (319.4) and the annual authorized take from the SWFSC (6.6) were subtracted from the calculated PBR of 14,011. In
the case of Short-beaked common dolphin the M/SI column (40) and the annual authorized take from the SWFSC (2.8) were subtracted from the calculated PBR of 8,393.
\5\ See relevant SARs for more information regarding stock status and trends.
See the Serious Injury or Mortality subsection in the Analysis and
Negligible Impact Determination section of the 2018 HSTT final rule (83
FR 66985-66993; December 27, 2018) for detailed discussions of the
impacts of M/SI, including a description of how the agency uses the PBR
metric and other factors to inform our analysis, and an analysis of the
impacts on each species and stock for which M/SI was proposed for
authorization, including
[[Page 41868]]
the relationship of potential mortality for each species to the
insignificance threshold and residual PBR.
Stocks With M/SI Below the Insignificance Threshold
As noted in the Serious Injury or Mortality subsection of the
Negligible Impact Analysis and Determination section in the 2018 HSTT
final rule, for a species or stock with incidental M/SI less than 10
percent of residual PBR, we consider M/SI from the specified activities
to represent an insignificant incremental increase in ongoing
anthropogenic M/SI that alone (i.e., in the absence of any other take
and barring any other unusual circumstances) will clearly not adversely
affect annual rates of recruitment and survival. In this case, as shown
in Tables 16 and 17, the following species or stocks have potential or
estimated M/SI from ship strike and explosive takes, respectively,
authorized below their insignificance threshold: fin whale (CA/OR/WA
stock), gray whale (Eastern North Pacific stock), humpback whale
(Central North Pacific stock), sperm whale (Hawaii stock), California
sea lion (U.S stock), and short-beaked common dolphin (CA/OR/WA stock).
While the authorized M/SI of California sea lions (U.S. stock) and gray
whales (Eastern North Pacific stock) are below the insignificance
threshold, because of the recent UMEs, we further address how the
authorized M/SI and the UME inform the negligible impact determination
immediately below. For the other four stocks with authorized M/SI below
the insignificance threshold, there are no other known factors,
information, or unusual circumstances that indicate anticipated M/SI
below the insignificance threshold could have adverse effects on annual
rates of recruitment or survival and they are not discussed further.
For the remaining two stocks with anticipated potential M/SI above the
insignificance threshold, how that M/SI compares to residual PBR, as
well as additional factors, as appropriate, are discussed below as
well.
California Sea Lion (U.S. Stock)
The estimated (and authorized) lethal take of California sea lions
is well below the insignificance threshold (0.71 as compared to a
residual PBR of 13,686) and NMFS classifies the stock as ``increasing''
in the 2018 final SAR, the most recent SAR available for this stock.
Nonetheless, we consider here how the 2013-2016 (UME closed on May 6,
2020) California Sea Lion UME informs our negligible impact
determination. This UME was confined to pup and yearling sea lions and
many were emaciated, dehydrated, and underweight. NMFS staff confirmed
that the mortality of pups and yearlings returned to normal in 2017 and
2018. The UME Working Group recommended closure of UME in April, 2020
and the UME was closed on May 6, 2020. NMFS' findings indicate that a
change in the availability of sea lion prey, especially anchovy and
sardines, a high value food source for nursing mothers, was a likely
contributor to the large number of strandings. Sardine spawning grounds
shifted further offshore in 2012 and 2013, and while other prey were
available (market squid and rockfish), these may not have provided
adequate nutrition in the milk of sea lion mothers supporting pups, or
for newly-weaned pups foraging on their own. Although the pups showed
signs of some viruses and infections, findings indicate that this event
was not caused by disease, but rather by the lack of high quality,
close-by food sources for nursing mothers. Average mortalities from
2013-2017 were 1,000-3,000 more annually than they were in the previous
10 years. However, even if these unusual mortalities were still
occurring (with current data suggesting they are not), combined with
other annual human-caused mortalities, and viewed through the PBR lens
(for human-caused mortalities), total human-caused mortality (inclusive
of the potential for additional UME deaths) would still fall well below
residual PBR. Further, the loss of pups and yearlings is not expected
to have as much of an effect on annual population rates as the death of
adult females. In conclusion, because of the abundance, population
trend, and residual PBR of this stock, as well as the fact that the
increased mortality stopped two years ago, this UME is not expected to
have any impacts on individuals during the period of this final rule,
nor is it thought to have had impacts on the population rate when it
was occurring that would influence our evaluation of the effects of the
mortality authorized on the stock.
Gray Whales (Eastern North Pacific Stock)
Since January 2019, gray whale strandings along the west coast of
North America have been significantly higher than the previous 18-year
averages. Preliminary findings from necropsies have shown evidence of
emaciation. The seasonal pattern of elevated strandings in the spring
and summer months is similar to that of the previous gray whale UME in
1999-2000. Current total monthly strandings are slightly higher than
1999 and lower than 2000. If strandings continue to follow a similar
pattern, we would anticipate a decrease in strandings in late summer
and fall. However, combined with other annual human-caused mortalities,
and viewed through the PBR lens (for human-caused mortalities), total
human-caused mortality (inclusive of the potential for additional UME
deaths) would still fall well below residual PBR and the insignificance
threshold. Because of the abundance, population trend (increasing,
despite the UME in 1999-2000), and residual PBR (662) of this stock,
this UME is not expected to have impacts on the population rate that,
in combination with the effects of mortality authorized, would affect
annual rates of recruitment or survival.
Stocks with M/SI above the Insignificance Threshold
Humpback Whale (CA/OR/WA Stock, Mexico DPS)
For this stock, PBR is currently set at 16.7 for U.S. waters and
33.4 for the stock's entire range. In the 2018 HSTT final rule and 2019
HSTT proposed rule we inadvertently considered only the PBR for U.S.
waters (as presented in the SAR summary tables). As the HSTT Study Area
extends beyond U.S. waters and activities have the potential to impact
the entire stock, we have corrected this here and present the analysis
using the PBR for the stock's entire range. The total annual M/SI is
estimated at greater than or equal to 42.1, yielding a residual PBR of
-8.7. With the corrected PBR, this potential impact on the stock is
less than what was presented in both the 2018 HSTT final rule and 2019
HSTT proposed rule. NMFS authorizes one M/SI over the seven-year
duration of the rule (which is 0.14 annually for the purposes of
comparing to PBR and considering other effects on annual rates of
recruitment and survival), which means that residual PBR is exceeded by
8.84. In the 2018 HSTT final rule the PBR was correctly reported as
33.4 (PBR for the stock's entire range), however the total annual M/SI
was incorrectly reported as greater than or equal to 40.76 (yielding a
residual PBR of -7.36). These transcription errors do not affect the
fundamental analysis or conclusion reached in the 2018 HSTT final rule,
however, and we have corrected these values here using data from the
2019 draft SARs.
In the commercial fisheries setting for 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
[[Page 41869]]
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 under
consideration). 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 CA/OR/WA stock is significantly less than
10 percent of PBR (in fact less than 1 percent of 33.4) and there are
management measures in place to address M/SI from activities other than
those the Navy is conducting (as discussed below).
Based on identical simulations as those conducted to identify
Recovery Factors for PBR in Wade et al. (1998), but where values less
than 0.1 were investigated (P. Wade, pers. comm.), we predict that
where the mortality from a specified activity does not exceed Nmin *
\1/2\ Rmax * 0.013, the contemplated mortality for the specific
activity will not delay the time to recovery by more than 1 percent.
For this stock of humpback whales, Nmin * \1/2\ Rmax * 0.013 = 1.45 and
the annual mortality proposed for authorization is 0.14 (i.e., less
than 1.45), which means that the mortality authorized in this rule for
HSTT activities would not delay the time to recovery by more than 1
percent.
As described in the 2018 HSTT final rule, NMFS must also ensure
that impacts by the applicant on the species or stock from other types
of take (i.e., harassment) do not combine with the impacts from M/SI to
adversely affect the species or stock via impacts on annual rates of
recruitment or survival, which is discussed further below in the
species- and stock-specific section.
In November 2019, NMFS published 2019 draft SARs in which PBR is
reported as 33.4 with the predicted average annual mortality greater
than or equal to 42.1 (including 22 estimated from vessel collisions
and greater than 17.3 observed fisheries interactions). While the
observed M/SI from vessel strikes remains low at 2.2 per year, the 2018
final and 2019 draft SARs rely on a new method to estimate annual
deaths by ship strike utilizing an encounter theory model that combined
species distribution models of whale density, vessel traffic
characteristics, and whale movement patterns obtained from satellite-
tagged animals in the region to estimate encounters that would result
in mortality (Rockwood et al., 2017). The model predicts 22 annual
mortalities of humpback whales from this stock from vessel strikes. The
authors (Rockwood et al., 2017) do not suggest that ship strike
suddenly increased to 22. In fact, the model is not specific to a year,
but rather offers a generalized prediction of ship strike off the U.S.
West Coast. Therefore, if the Rockwood et al. (2017) model is an
accurate representation of vessel strike, then similar levels of ship
strike have been occurring in past years as well. Put another way, if
the model is correct, for some number of years total human-caused
mortality has been significantly underestimated, and PBR has been
similarly exceeded by a notable amount, and yet the CA/OR/WA stock of
humpback whales is considered stable nevertheless.
The CA/OR/WA stock of humpback whales experienced a steady increase
from the 1990s through approximately 2008, and more recent estimates
through 2014 indicate a leveling off of the population size. This stock
is comprised of the feeding groups of three DPSs. Two DPSs associated
with this stock are listed under the ESA as either endangered (Central
America DPS) or threatened (Mexico DPS), while the third is not listed.
The mortality authorized by this rule is for an individual from the
Mexico DPS only. As described in the Final Rule Identifying 14 DPSs of
the Humpback Whale and Revision of Species-Wide Listing (81 FR 62260,
September 8, 2016), the Mexico DPS was initially proposed not to be
listed as threatened or endangered, but the final decision was changed
in consideration of a new abundance estimate using a new methodology
that was more accurate (less bias from capture heterogeneity and lower
coefficient of variation) and resulted in a lower abundance than was
previously estimated. To be clear, the new abundance estimate did not
indicate that the numbers had decreased, but rather, the more accurate
new abundance estimate (3,264), derived from the same data but based on
an integrated spatial multi-strata mark recapture model (Wade et al.,
2016) was simply notably lower than earlier estimates, which were
6,000-7,000 from the SPLASH project (Calambokidis et al., 2008) or
higher (Barlow et al., 2011). The updated abundance was still higher
than 2,000, which is the Biological Review Team's (BRT) threshold
between ``not likely to be at risk of extinction due to low abundance
alone'' and ``increasing risk from factors associated with low
abundance.'' Further, the BRT concluded that the DPS was unlikely to be
declining because of the population growth throughout most of its
feeding areas, in California/Oregon and the Gulf of Alaska, but they
did not have evidence that the Mexico DPS was actually increasing in
overall population size.
As discussed earlier, we also take into consideration management
measures in place to address M/SI caused by other activities. The
California swordfish and thresher shark drift gillnet fishery is one of
the primary causes of M/SI take from fisheries interactions for
humpback whales on the West Coast. NMFS established the Pacific
Offshore Cetacean Take Reduction Team in 1996 and prepared an
associated Plan (PCTRP) to reduce the risk of M/SI via fisheries
interactions. In 1997, NMFS published final regulations formalizing the
requirements of the PCTRP, including the use of pingers following
several specific provisions and the employment of Skipper education
workshops.
Commercial fisheries such as crab pot, gillnet, and prawn fisheries
are also a significant source of mortality and serious injury for
humpback whales and other large whales and, unfortunately, have
increased mortalities and serious injuries over recent years (Carretta
et al., 2019). However, the 2019 draft SAR notes that a recent increase
in disentanglement efforts has resulted in an increase in the fraction
of cases that are reported as non-serious injuries as a result of
successful disentanglement. More importantly, since 2015, NMFS has
engaged in a multi-stakeholder process in California (including
California State resource managers, fishermen, non-governmental
organizations (NGOs), and scientists) to identify and develop solutions
and make recommendations to regulators and the fishing industry for
reducing whale entanglements (see https://www.opc.ca.gov/whale-entanglement-working-group/), referred to as the Whale Entanglement
Working Group. The Whale Entanglement Working Group has made
significant progress since 2015 and is tackling the problem from
multiple angles, including:
Development of Fact Sheets and Best Practices for specific
Fisheries issues (e.g., California Dungeness Crab Fishing BMPs and the
2018-2019 Best Fishing Practices Guide);
2018-2019 Risk Assessment and Mitigation Program (RAMP) to
support the state of California in working collaboratively with experts
(fishermen, researchers, NGOs, etc.) to identify and assess elevated
levels of entanglement risk and determine the need for
[[Page 41870]]
management options to reduce risk of entanglement; and
Support of pilot studies to test new fisheries
technologies to reduce take (e.g., Exploring Ropeless Fishing
Technologies for the California Dungeness Crab Fishery).
The Working Group meets regularly, posts reports and annual
recommendations, and makes all of their products and guidance documents
readily accessible for the public. The March 2019 Working Group Report
reported on the status of the fishery closure, progress and continued
development of the RAMP (though there is a separate RAMP report),
discussed the role of the Working Group (development of a new Charter),
and indicated next steps.
Importantly, in early 2019, as a result of a litigation settlement
agreement, the California Department of Fish and Wildlife (CDFW) closed
the Dungeness crab fishery three months early for the year, which is
expected to reduce the number of likely entanglements. The agreement
also limits the fishery duration over the next couple of years and has
different triggers to reduce or close it further. Further, pursuant to
the settlement, CDFW is required to apply for a Section 10 Incidental
Take Permit under the ESA to address protected species interactions
with fishing gear and crab fishing gear (pots), and they have agreed to
prepare a Conservation Plan by May 2020. Any request for such a permit
must include a Conservation Plan that specifies, among other things,
what steps the applicant will take to minimize and mitigate the
impacts, and the funding that will be available to implement such
steps.
Regarding measures in place to reduce mortality from other sources,
the Channel Islands NMS staff coordinates, collects, and monitors whale
sightings in and around a Whale Advisory Zone and the Channel Islands
NMS region, which is within the area of highest vessel strike mortality
(90th percentile) for humpback whales on the U.S. West Coast (Rockwood
et al., 2017). The seasonally established Whale Advisory Zone spans
from Point Arguello to Dana Point, including the Traffic Separation
Schemes in the Santa Barbara Channel and San Pedro Channel. Vessels
transiting the area from June through November are recommended to
exercise caution and voluntarily reduce speed to 10 kn or less for
blue, humpback, and fin whales. Channel Island NMS observers collect
information from aerial surveys conducted by NOAA, the U.S. Coast
Guard, California Department of Fish and Game, and Navy chartered
aircraft. Information on seasonal presence, movement, and general
distribution patterns of large whales is shared with mariners, NMFS'
Office of Protected Resources, the U.S. Coast Guard, the California
Department of Fish and Game, the Santa Barbara Museum of Natural
History, the Marine Exchange of Southern California, and whale
scientists. Real time and historical whale observation data collected
from multiple sources can be viewed on the Point Blue Whale Database.
More recently, similar efforts to reduce entanglement risk and
severity have also been initiated in Oregon and Washington. Both Oregon
and Washington are developing applications for ESA Incidental Take
Permits for their commercial crab fisheries. They advocate similar best
practices for their fishermen as California, and they are taking
regulatory steps related to gear marking and pot limits.
In this case, 0.14 M/SI annually means the potential for one
mortality in one of the seven years and zero mortalities in six of
those seven years. Therefore, the Navy would not be contributing to the
total human-caused mortality at all in six of the seven, or 85.7
percent, of the years covered by this rule. That means that even if a
humpback whale from the CA/OR/WA stock were to be struck, in six of the
seven years there could be no effect on annual rates of recruitment or
survival from Navy-caused M/SI. Additionally, as discussed in the
Analysis and Negligible Impact Determination section of the 2018 HSTT
final rule, the loss of a male would have far less, if any, of an
effect on population rates and absent any information suggesting that
one sex is more likely to be struck than another, we can reasonably
assume that there is a 50 percent chance that the single strike
authorized by this rule would be a male, thereby further decreasing the
likelihood of impacts on the population rate. In situations like this
where potential M/SI is fractional, consideration must be given to the
lessened impacts anticipated due to the absence of M/SI in six of the
years and due to the fact that a single strike could be of a male.
Lastly, we reiterate that PBR is a conservative metric and also not
sufficiently precise to serve as an absolute predictor of population
effects upon which mortality caps would appropriately be based. This is
especially important given the minor difference between zero and one
across the seven-year period covered by this rule, which is the
smallest distinction possible when considering mortality. Wade et al.
(1998), authors of the paper from which the current PBR equation is
derived, note that ``Estimating incidental mortality in one year to be
greater than the PBR calculated from a single abundance survey does not
prove the mortality will lead to depletion; it identifies a population
worthy of careful future monitoring and possibly indicates that
mortality-mitigation efforts should be initiated.''
The information included here illustrates that this humpback whale
stock is currently stable, the potential (and authorized) mortality is
well below 10 percent (0.4 percent) of PBR, and management actions are
in place to minimize both fisheries interactions and ship strike from
other vessel activity in one of the highest-risk areas for strikes.
More specifically, although the total human-mortality exceeds PBR, the
authorized mortality for the Navy's specified activities would
incrementally contribute less than 1 percent of that and, further,
given the fact that it would occur in only one of seven years and could
be comprised of a male (far less impactful to the population), the
potential impacts on population rates are even less. Based on all of
the considerations described above, including consideration of the fact
that the authorized mortality of 0.14 would not delay the time to
recovery by more than 1 percent, we do not expect the potential lethal
take from Navy activities, alone, to adversely affect the CA/OR/WA
stock of humpback whales through effects on annual rates of recruitment
or survival. Nonetheless, the fact that total human-caused mortality
exceeds PBR necessitates close attention to the remainder of the
impacts (i.e., harassment) on the CA/OR/WA stock of humpback whales
from the Navy's activities to ensure that the total authorized takes
would have a negligible impact on the species and stock. Therefore,
this information will be considered in combination with our assessment
of the impacts of authorized harassment takes later in the Group and
Species-Specific Analyses section.
Blue Whale (Eastern North Pacific Stock)
For blue whales (Eastern North Pacific stock), PBR is currently set
at 1.23 for U.S. waters and 2.1 for the stock's entire range. In the
2018 HSTT final rule and 2019 HSTT proposed rule we inadvertently
presented only the PBR for U.S. waters (as presented in the SAR summary
tables). As the HSTT Study Area extends beyond U.S. waters and
activities have the potential to impact the entire stock, we have
corrected this here and present the analysis using the PBR for the
stock's entire range. The
[[Page 41871]]
total annual M/SI is estimated at greater than or equal to 19.4,
yielding a residual PBR of -17.3. NMFS authorizes one M/SI for the Navy
over the seven-year duration of the rule (indicated as 0.14 annually
for the purposes of comparing to PBR and evaluating overall effects on
annual rates of recruitment and survival), which means that residual
PBR is exceeded by 17.44. However, as described previously, in the
commercial fisheries setting for ESA-listed marine mammals (which is
similar to the incidental take setting, in that the negligible impact
determination 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, the
authorized lethal take (0.14 annually) of blue whales from the Eastern
North Pacific stock is less than 10 percent of PBR (which is 2.1) and
there are management measures in place to address M/SI from activities
other than those the Navy is conducting (as discussed below). Perhaps
more importantly, the population is considered ``stable'' and,
specifically, the available data suggests that the current number of
ship strikes is not likely to have an adverse impact on the population,
despite the fact that it exceeds PBR, with the Navy's minimal
additional mortality of one whale in the seven years not creating the
likelihood of adverse impact. Immediately below, we explain the
information that supports our finding that the Navy's authorized M/SI
is not expected to result in more than a negligible impact on this
stock. As described previously, NMFS must also ensure that impacts by
the applicant on the species or stock from other types of take (i.e.,
harassment) do not combine with the impacts from mortality to adversely
affect the species or stock via impacts on annual rates of recruitment
or survival, which occurs further below in the stock-specific
discussion sections.
As discussed in the 2018 HSTT final rule, the 2018 final SAR and
2019 draft SAR rely on a new method to estimate annual deaths by ship
strike utilizing an encounter theory model that combined species
distribution models of whale density, vessel traffic characteristics,
and whale movement patterns obtained from satellite-tagged animals in
the region to estimate encounters that would result in mortality
(Rockwood et al., 2017). The model predicts 18 annual mortalities of
blue whales from vessel strikes, which, with the additional M/SI of
1.44 from fisheries interactions, results in the current estimate of
residual PBR equal to -17.3. Although NMFS' Permits and Conservation
Division in the Office of Protected Resources has independently
reviewed the new ship strike model and its results and agrees that it
is appropriate for estimating blue whale mortality by ship strike on
the U.S. West Coast, for analytical purposes we also note that if the
historical method were used to predict vessel strike (i.e., using
observed mortality by vessel strike, or 0.4, instead of 18), then total
human-caused mortality including the Navy's potential take would not
exceed PBR. We further note that the authors (Rockwood et al., 2017) do
not suggest that ship strike suddenly increased to 18 recently. In
fact, the model is not specific to a year, but rather offers a
generalized prediction of ship strike off the U.S. West Coast.
Therefore, if the Rockwood et al. (2017) model is an accurate
representation of vessel strike, then similar levels of ship strike
have been occurring in past years as well. Put another way, if the
model is correct, for some number of years total-human-caused mortality
has been significantly underestimated and PBR has been similarly
exceeded by a notable amount, and yet the Eastern North Pacific stock
of blue whales remains stable nevertheless.
NMFS' 2018 final SAR and 2019 draft SAR state that the stock is
``stable'' and there is no indication of a population size increase in
this blue whale population since the early 1990s. The lack of a
species' or stock's population increase can have several causes, some
of which are positive. The SAR further cites to Monnahan et al. (2015),
which used a population dynamics model to estimate that the Eastern
North Pacific blue whale population was at 97 percent of carrying
capacity in 2013, suggesting that the observed lack of a population
increase since the early 1990s was explained by density dependence, not
impacts from ship strike. This would mean that this stock of blue
whales shows signs of stability and is not increasing in population
size because the population size is at or nearing carrying capacity for
its available habitat. In fact, we note that this population has
maintained this status throughout the years that the Navy has
consistently tested and trained at similar levels (with similar vessel
traffic) in areas that overlap with blue whale occurrence, which would
be another indicator of population stability.
Monnahan et al. (2015) modeled vessel numbers, ship strikes, and
the population of the Eastern North Pacific blue whale population from
1905 out to 2050 using a Bayesian framework to incorporate informative
biological information and assign probability distributions to
parameters and derived quantities of interest. The authors tested
multiple scenarios with differing assumptions, incorporated
uncertainty, and further tested the sensitivity of multiple variables.
Their results indicated that there is no immediate threat (i.e.,
through 2050) to the population from any of the scenarios tested, which
included models with 10 and 35 strike mortalities per year. Broadly,
the authors concluded that, unlike other blue whale stocks, the Eastern
North Pacific blue whales have recovered from 70 years of whaling and
are in no immediate threat from ship strikes. They further noted that
their conclusion conflicts with the depleted and strategic designation
under the MMPA, as well as PBR specifically.
As discussed, we also take into consideration management measures
in place to address M/SI caused by other activities. The Channel
Islands NMS staff coordinates, collects, and monitors whale sightings
in and around the Whale Advisory Zone and the Channel Islands NMS
region. Redfern et al. (2013) note that the areas of highest risk for
blue whales is the Santa Barbara Channel, where shipping lanes
intersect with common feeding areas. The seasonally established Whale
Advisory Zone spans from Point Arguello to Dana Point, including the
Traffic Separation Schemes in the Santa Barbara Channel and San Pedro
Channel. Vessels transiting the area from June through November are
recommended to exercise caution and voluntarily reduce speed to 10 kn
or less for blue, humpback, and fin whales. Channel Island NMS
observers collect information from aerial surveys conducted by NOAA,
the U.S. Coast Guard, California Department of Fish and Game, and U.S.
Navy chartered aircraft. Information on seasonal presence, movement,
and general distribution patterns of large whales is shared with
mariners, NMFS Office of Protected Resources, U.S. Coast Guard,
California Department of Fish and Game, the Santa Barbara Museum of
Natural History, the Marine Exchange of Southern California, and whale
[[Page 41872]]
scientists. Real time and historical whale observation data collected
from multiple sources can be viewed on the Point Blue Whale Database.
In this case, 0.14 M/SI annually means one mortality in one of the
seven years and zero mortalities in six of those seven years.
Therefore, the Navy would not be contributing to the total human-caused
mortality at all in six of the seven, or 85.7 percent, of the years
covered by this rule. That means that even if a blue whale were to be
struck, in six of the seven years there could be no effect on annual
rates of recruitment or survival from Navy-caused M/SI. Additionally,
as with humpback whales discussed previously, the loss of a male would
have far less, if any, effect on population rates and absent any
information suggesting that one sex is more likely to be struck than
another, we can reasonably assume that there is a 50 percent chance
that the single strike authorized by this rule would be a male, thereby
further decreasing the likelihood of impacts on the population rate. In
situations like this where potential M/SI is fractional, consideration
must be given to the lessened impacts anticipated due to the absence of
M/SI in six of the seven years and the fact that the single strike
could be a male. Lastly, as with the CA/OR/WA stock of humpback whales
above, we reiterate that PBR is a conservative metric and also not
sufficiently precise to serve as an absolute predictor of population
effects upon which mortality caps would appropriately be based. This is
especially important given the minor difference between zero and one
across the seven-year period covered by this rule, which is the
smallest distinction possible when considering mortality. As noted
above, Wade et al. (1998), authors of the paper from which the current
PBR equation is derived, note that ``Estimating incidental mortality in
one year to be greater than the PBR calculated from a single abundance
survey does not prove the mortality will lead to depletion; it
identifies a population worthy of careful future monitoring and
possibly indicates that mortality-mitigation efforts should be
initiated.'' The information included here indicates that this blue
whale stock is stable, approaching carrying capacity, and has leveled
off because of density-dependence, not human-caused mortality, in spite
of what might be otherwise indicated from the calculated PBR. Further,
potential (and authorized) M/SI is below 10 percent of PBR and
management actions are in place to minimize ship strike from other
vessel activity in one of the highest-risk areas for strikes. Based on
all of the considerations described above, we do not expect lethal take
from Navy activities, alone, to adversely affect Eastern North Pacific
blue whales through effects on annual rates of recruitment or survival.
Nonetheless, the fact that total human-caused mortality exceeds PBR
necessitates close attention to the remainder of the impacts (i.e.,
harassment) on the Eastern North Pacific stock of blue whales from the
Navy's activities to ensure that the total authorized takes have a
negligible impact on the species or stock. Therefore, this information
will be considered in combination with our assessment of the impacts of
authorized harassment takes in the Group and Species-Specific Analyses
section that follows.
Group and Species-Specific Analyses
In addition to broader analyses of the impacts of the Navy's
activities on mysticetes, odontocetes, and pinnipeds, the 2018 HSTT
final rule contained detailed analyses of the effects of the Navy's
activities in the HSTT Study Area on each affected species and stock.
All of that information and analyses remain applicable and valid for
our analyses of the effects of the same Navy activities on the same
species and stocks for the seven-year period of this rule. See the
Group and Species-Specific Analyses subsection in the Analysis and
Negligible Impact Determination section of the 2018 HSTT final rule (83
FR 66993-67018; December 27, 2018). In addition, no new information has
been received since the publication of the 2018 HSTT final rule that
significantly changes the analyses on the effects of the Navy's
activities on each species and stock presented in the 2018 HSTT final
rule (the potential impact of the new gray whale UME and the corrected
numbers from the humpback whale SARs were discussed earlier in the
rule).
In the discussions below, the estimated Level B harassment takes
represent instances of take, not the number of individuals taken (the
much lower and less frequent Level A harassment takes are far more
likely to be associated with separate individuals), and in many cases
some individuals are expected to be taken more than one time, while in
other cases a portion of individuals will not be taken at all. Below,
we compare the total take numbers (including PTS, TTS, and behavioral
disruption) for species or stocks to their associated abundance
estimates to evaluate the magnitude of impacts across the species or
stock and to individuals. Specifically, when an abundance percentage
comparison is below 100, it means that that percentage or less of the
individuals in the stock will be affected (i.e., some individuals will
not be taken at all), that the average for those taken is one day per
year, and that we would not expect any individuals to be taken more
than a few times in a year. When it is more than 100 percent, it means
there will definitely be some number of repeated takes of individuals.
For example, if the percentage is 300, the average would be each
individual is taken on three days in a year if all were taken, but it
is more likely that some number of individuals will be taken more than
three times and some number of individuals fewer times or not at all.
While it is not possible to know the maximum number of days across
which individuals of a stock might be taken, in acknowledgement of the
fact that it is more than the average, for the purposes of this
analysis, we assume a number approaching twice the average. For
example, if the percentage of take compared to the abundance is 800, we
estimate that some individuals might be taken as many as 16 times.
Those comparisons are included in the sections below. For some stocks
these numbers have been adjusted slightly (with these adjustments being
in the single digits) so as to more consistently apply this approach,
but these minor changes did not change the analysis or findings.
To assist in understanding what this analysis means, we clarify a
few issues related to estimated takes and the analysis here. In the
annual estimated take tables below, takes within the U.S. EEZ include
only those takes within the U.S. EEZ, where most Navy activities occur
and where we often have the best information on species and stock
presence and abundance. Takes inside and outside the EEZ include all
takes in the HSTT Study Area.
An individual that incurs a PTS or TTS take may sometimes also be
subject to behavioral disturbance at the same time. As described in the
Harassment subsection of the Analysis and Negligible Impact
Determination section of the 2018 HSTT final rule, the degree of PTS,
and the degree and duration of TTS, expected to be incurred from the
Navy's activities are not expected to impact marine mammals such that
their reproduction or survival could be affected. Similarly, data do
not suggest that a single instance in which an animal accrues PTS or
TTS and is subject to behavioral disturbance would result in impacts to
reproduction or survival. Nonetheless, we recognize that if an
individual is subjected to behavioral disturbance repeatedly for a
longer duration and on consecutive
[[Page 41873]]
days, effects could accrue to the point that reproductive success is
jeopardized (as discussed below in the stock-specific summaries).
Accordingly, in analyzing the number of takes and the likelihood of
repeated and sequential takes (which could result in reproductive
impacts), we consider the total takes, not just the Level B harassment
takes by behavioral disruption, so that individuals potentially exposed
to both threshold shift and behavioral disruption are appropriately
considered. We note that the same reasoning applies with the potential
addition of behavioral disruption to tissue damage from explosives, the
difference being that we do already consider the likelihood of
reproductive impacts whenever tissue damage occurs. Further, the number
of Level A harassment takes by either PTS or tissue damage are so low
compared to abundance numbers that it is considered highly unlikely
that any individual would be taken at those levels more than once.
As noted previously, we presented a detailed discussion of
important marine mammal habitat (e.g., ESA-designated critical habitat,
biologically important areas (BIAs), and national marine sanctuaries
(NMSs)) for all species and stocks in the HSTT Study Area in the 2018
HSTT proposed final rules. All of that information remains valid and
applicable to the species- and stock-specific negligible impact
analyses below. Please see the 2018 rules for complete information. In
addition, since publication of the 2018 HSTT final rule, NMFS published
a proposed rule to designate ESA critical habitat for the Central
America and Mexico DPSs of humpback whales on October 9, 2019 (84 FR
54354). In the proposed rule only critical habitat Unit 19 overlapped
with the HSTT Study Area, and NMFS proposed to exclude this unit from
the critical habitat designation based on consideration of national
security. A final rule designating critical habitat for these two DPSs
of humpback whales has not been published.
All species in the HSTT Study Area will benefit from the procedural
mitigation measures summarized in the Mitigation Measures section of
this rule, and described in detail in the Mitigation Measures section
of the 2018 HSTT final rule. Additionally, the Navy will limit
activities and employ other measures in mitigation areas that will
avoid or reduce impacts to several species and stocks. These mitigation
areas and the associated limitations on activities are summarized in
Table 15 above and described in detail in the Mitigation Measures
section of the 2018 HSTT final rule. The manner and extent to which the
limitations in these mitigation areas will prevent or minimize
potential impacts on specific species and stocks in the HSTT Study Area
is discussed in the Mitigation Measures section of the 2018 HSTT final
rule under Final Mitigation Areas, all of which remains valid and
applicable for this final rule.
Having considered all of the information and analyses previously
presented in the 2018 HSTT final rule, including the Group and Species-
Specific Analyses discussions organized by the different groups and
species, below we present tables showing instances of total take as a
percentage of stock abundance for each group, updated with the new
explosion and vessel strike calculations. We then summarize the
information for each species or stock, considering the analysis from
the 2018 HSTT final rule and any new analysis. The analyses below in
some cases address species collectively if they occupy the same
functional hearing group (i.e., low, mid, and high-frequency cetaceans
and pinnipeds in water), share similar life history strategies, and/or
are known to behaviorally respond similarly to acoustic stressors.
Because some of these groups or species share characteristics that
inform the impact analysis similarly, it would be duplicative to repeat
the same analysis for each species or stock. In addition, animals
belonging to each stock within a species typically have the same
hearing capabilities and behaviorally respond in the same manner as
animals in other stocks within the species.
Mysticetes
In Tables 18 and 19 below for mysticetes, we indicate the total
annual mortality, Level A harassment, Level B harassment, and a number
indicating the instances of total take as a percentage of abundance.
Tables 18 and 19 have been updated from Tables 71 and 72 in the 2018
HSTT final rule as appropriate with the 2018 final SARs and 2019 draft
SARs and updated information on mortality, as discussed above. For
additional information and analysis supporting the negligible-impact
analysis, see the Mysticetes discussion in the Group and Species-
Specific Analyses section of the 2018 HSTT final rule, all of which
remains applicable to this final rule unless specifically noted.
Table 18--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Mysticetes in the HRC Portion of the HSTT Study Area and Number Indicating the Instances of Total Take as a Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instance of total take as
represent separate individuals, especially for disturbance) ---------------------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment Total Navy
Species Stock ----------------------------------------------------- Total takes Takes abundance Within EEZ Total take as EEZ take as
TTS (may (entire (within inside and Navy percentage of percentage of
Behavioral also Tissue Mortality study area) Navy EEZ) outside of abundance total Navy Navy EEZ
disturbance include PTS damage EEZ (HRC) (HRC) abundance abundance
disturbance) (HRC) (HRC)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale..................................... Central North Pacific............ 15 33 0 0 0 48 40 43 33 112 121
Bryde's whale.................................. Hawaii........................... 40 106 0 0 0 146 123 108 89 135 138
Fin whale...................................... Hawaii........................... 21 27 0 0 0 48 41 52 40 92 103
Humpback whale................................. Central North Pacific............ 2,837 6,289 3 0 0.29 9,129 7,389 5,078 4,595 180 161
Minke whale.................................... Hawaii........................... 1,233 3,697 2 0 0 4,932 4,030 3,652 2,835 135 142
Sei whale...................................... Hawaii........................... 46 121 0 0 0 167 135 138 107 121 126
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule), both
in and outside of the U.S. EEZ. Because the portion of the Navy's study area inside the U.S. EEZ is generally concomitant with the area used to generate the abundance estimates in the SARs, and the abundance predicted by the same
underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
The annual mortality of 0.29 is the result of no more than two mortalities over the course of seven years from vessel strikes as described above in the Estimated Take of Marine Mammals section.
[[Page 41874]]
Table 19--Annual estimated takes by Level B harassment, Level A harassment, and mortality for mysticetes in the SOCAL portion of the HSTT Study Area and number indicating the instances of
total take as a percentage of stock abundance.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instance of total take as
represent separate individuals, especially for disturbance) --------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment Navy Total take as
Species Stock ----------------------------------------------------- Total takes abundance NMFS SARS percentage of Total take as
TTS (may Mortality (entire in Action abundance total Navy percentage of
Behavioral also include PTS Tissue Study Area) Area abundance in total SAR
disturbance disturbance) damage (SOCAL) Action Area abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale....................... Eastern North 792 1,196 1 0 0.14 1,989 785 1,496 253 133
Pacific.
Bryde's whale.................... Eastern Tropical 14 27 0 0 0 41 1 unknown 3,154 unknown
Pacific.
Fin whale........................ CA/OR/WA............ 835 1,390 1 0 0.29 2,226 363 9,029 613 25
Humpback whale................... CA/OR/WA............ 480 1,514 1 0 0.14 1,995 247 2,900 808 69
Minke whale...................... CA/OR/WA............ 259 666 1 0 0 926 163 636 568 146
Sei whale........................ Eastern North 27 52 0 0 0 79 3 519 2,633 15
Pacific.
Gray whale....................... Eastern North 1,316 3,355 7 0 0.29 4,678 193 26,960 2,424 17
Pacific.
Gray whale....................... Western North 2 4 0 0 0 6 0 290 0 2
Pacific.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state and beyond
and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we compare
predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
The annual mortality of 0.14 is the result of no more than one mortality over the course of seven years from vessel strikes as described above in the Estimated Take of Marine Mammals section.
The annual mortality of 0.29 is the result of no more than two mortalities over the course of seven years from vessel strikes.
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely affect any
species or stocks through effects on annual rates of recruitment or
survival for any of the affected mysticete stocks.
Blue Whale (Eastern North Pacific Stock)
The SAR identifies this stock as ``stable'' even though the larger
species is listed as endangered under the ESA. We further note that
this species was originally listed under the ESA as a result of the
impacts from commercial whaling, which is no longer affecting the
species. No Level A harassment by tissue damage is anticipated or
authorized. NMFS will authorize one mortality over the seven years
covered by this rule, or 0.14 mortality annually. With the addition of
this 0.14 annual mortality, residual PBR is exceeded, resulting in the
total human-caused mortality exceeding PBR by 17.44. However, as
described in more detail in the Serious Injury or Mortality section
above, when total human-caused mortality exceeds PBR, we consider
whether the incremental addition of a small amount of authorized
mortality from the specified activity may still result in a negligible
impact, in part by identifying whether it is less than 10 percent of
PBR. In this case, the authorized mortality is well below 10 percent of
PBR, management measures are in place to reduce mortality from other
sources, and the incremental addition of a single mortality over the
course of the seven-year Navy rule is not expected to, alone, lead to
adverse impacts on the stock through effects on annual rates of
recruitment or survival. In addition, even with the additional two
years of activities under this rule, no additional M/SI is estimated
for this stock, leading to a slight decrease (from 0.2 to 0.14
annually) in annual mortality from the 2018 HSTT final rule.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is 253 and 133 percent, respectively. Given the
range of blue whales, this information suggests that only some smaller
portion of individuals in the stock are likely impacted, but that there
will likely be some repeat exposure (maybe 5 or 6 days within a year)
of some subset of individuals that spend extended time within the SOCAL
Range. Some of these takes could occur on a few sequential days for
some small number of individuals, for example, if they resulted from a
multi-day exercise on a range while individuals were in the area for
multiple days feeding. However, these amounts are still not expected to
adversely impact reproduction or survival of any individuals. Regarding
the severity of those individual Level B harassment takes by behavioral
disruption, the duration of any exposure is expected to be between
minutes and hours (i.e., relatively short) and the received sound
levels largely below 172 dB with a portion up to 178 dB (i.e., of a
moderate or lower level, less likely to evoke a severe response).
Additionally, the Navy implements time/area mitigation in SOCAL in the
majority of the BIAs, which will reduce the severity of impacts to blue
whales by reducing interference in feeding that could result in lost
feeding opportunities or necessitate additional energy expenditure to
find other good opportunities. Regarding the severity of TTS takes, we
have explained in the 2018 HSTT final rule that they are expected to be
low-level, of short duration, and mostly not in a frequency band that
would be expected to interfere with blue whale communication or other
important low-frequency cues--and the associated lost opportunities and
capabilities are not at a level that will impact reproduction or
survival. For similar reasons (as described in the 2018 HSTT final
rule) the single estimated Level A harassment take by PTS for this
stock is unlikely to have any effect on the reproduction or survival of
that one individual, even if it were to be experienced by an animal
that also experiences one or more Level B harassment takes by
behavioral disruption.
Altogether, this population is stable, only a smaller portion of
the stock is anticipated to be impacted, and any individual blue whale
is likely to be disturbed at a low-moderate level, with likely many
animals exposed only once or twice and a subset potentially disturbed
across five or six days, but minimized in biologically important areas.
This low magnitude and severity of harassment effects is not expected
to result in impacts on the reproduction or survival of any
individuals, let alone have impacts on annual rates of recruitment or
survival. One individual is expected to be taken by PTS annually of
likely low severity. A small permanent loss of hearing sensitivity
[[Page 41875]]
(PTS) may include some degree of energetic costs for compensating or
may mean some small loss of opportunities or detection capabilities,
but at the expected scale the estimated one Level A harassment take by
PTS would be unlikely to impact behaviors, opportunities, or detection
capabilities to a degree that would interfere with reproductive success
or survival of that individual, let alone have effects on annual rates
of recruitment or survival. Nor are these harassment takes combined
with the one authorized mortality (which our earlier analysis indicated
will not have more than a negligible impact on this stock of blue
whales), expected to adversely affect this stock through impacts on
annual rates of recruitment or survival. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
impact on the Eastern North Pacific stock of blue whales.
Bryde's Whale (Eastern Tropical Pacific Stock)
Little is known about this stock, or its status, and it is not
listed under the ESA. No mortality or Level A harassment is anticipated
or authorized. Regarding the magnitude of Level B harassment takes (TTS
and behavioral disruption), the number of estimated total instances of
take compared to the abundance is 3,154 percent, however, the abundance
upon which this percentage is based (1.3 whales from the Navy estimate,
which is extrapolated from density estimates based on very few
sightings) is clearly erroneous and the SAR does not include an
abundance estimate because all of the survey data is outdated (Table
19). However, the abundance in the early 1980s was estimated as 22,000
to 24,000, a portion of the stock was estimated at 13,000 in 1993, and
the minimum number in the Gulf of California alone was estimated at 160
in 1990. Given this information and there being no indication of
dramatic decline since these population estimates, along with the fact
that 41 total takes of Bryde's whales were estimated, this information
suggests that only a small portion of the individuals in the stock are
likely to be impacted, and few, if any, are likely to be taken over
more than one day. Regarding the severity of those individual Level B
harassment takes by behavioral disruption, the duration of any exposure
is expected to be between minutes and hours (i.e., relatively short)
and the received sound levels largely below 172 dB with a portion up to
178 dB (i.e., of a moderate or lower level, less likely to evoke a
severe response). Regarding the severity of TTS takes, they are
expected to be low-level, of short duration, and mostly not in a
frequency band that would be expected to interfere with Bryde's whale
communication or other important low-frequency cues. Any associated
lost opportunities and capabilities are not at a level that will impact
reproduction or survival.
Altogether, in spite of the unknown status and calculated number of
instances of take compared to abundance, only a small portion of the
stock is anticipated to be impacted based on the more likely minimum
population level and any individual Bryde's whale is likely to be
disturbed at a low-moderate level, with few, if any, individuals
exposed over more than one day in the year. No mortality and no Level A
harassment is anticipated or proposed for authorization. This low
magnitude and severity of harassment effects is not expected to result
in impacts on individual reproduction or survival, much less annual
rates of recruitment or survival. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
impact on the Eastern Tropical Pacific stock of Bryde's whales.
Fin Whale (CA/OR/WA Stock)
The SAR identifies this stock as ``increasing,'' even though the
larger species is listed as endangered under the ESA. No Level A
harassment by tissue damage is anticipated or authorized. NMFS
authorizes two mortalities over the seven years covered by this rule,
or 0.29 mortality annually. The addition of this 0.29 annual mortality
still leaves the total human-caused mortality well under the
insignificance threshold of residual PBR. In addition, even with the
additional two years of activities under this rule, no additional M/SI
is estimated for this stock, leading to a slight decrease (from 0.4 to
0.29 annually) in annual mortality from the 2018 HSTT final rule.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is 613 and 25 percent, respectively. This
information suggests that only some portion (less than 25 percent) of
individuals in the stock are likely impacted, but that there is likely
some repeat exposure (perhaps up to 12 days within a year) of some
subset of individuals that spend extended time within the SOCAL
complex. Some of these takes could occur on a few sequential days for
some small number of individuals, for example, if they resulted from a
multi-day exercise on a range while individuals were in the area for
multiple days feeding. However, these amounts are still not expected to
adversely impact reproduction or survival of any individuals. Regarding
the severity of those individual Level B harassment takes by behavioral
disruption, the duration of any exposure is expected to be between
minutes and hours (i.e., relatively short) and the received sound
levels largely below 172 dB with a portion up to 178 dB (i.e., of a
moderate or lower level, less likely to evoke a severe response).
Additionally, while there are no BIAs for fin whales in the SOCAL
range, the Navy implements time/area mitigation in SOCAL in blue whale
BIAs, and fin whales are known to sometimes feed in some of the same
areas, which means they could potentially accrue some benefits from the
mitigation. Regarding the severity of TTS takes, they are expected to
be low-level, of short duration, and mostly not in a frequency band
that would be expected to interfere with fin whale communication or
other important low-frequency cues--and the associated lost
opportunities and capabilities are not at a level that will impact
reproduction or survival. For similar reasons (as described in the 2018
HSTT final rule) the single estimated Level A harassment take by PTS
for this stock is unlikely to have any effects on the reproduction or
survival of that one individual, even if it were to be experienced by
an animal that also experiences one or more Level B harassment takes by
behavioral disruption.
Altogether, this population is increasing, only a small portion of
the stock is anticipated to be impacted, and any individual fin whale
is likely to be disturbed at a low-moderate level, with the taken
individuals likely exposed between one and twelve days, with a few
individuals potentially taken on a few sequential days. This low
magnitude and severity of harassment effects is not expected to result
in impacts on the reproduction or survival for any individuals, let
alone have impacts on annual rates of recruitment or survival. One
individual is expected to be taken by PTS annually of likely low
severity. A small permanent loss of hearing sensitivity (PTS) may
include some degree of energetic costs for compensating or may mean
some small loss of opportunities or detection capabilities, but at the
expected scale
[[Page 41876]]
the estimated one Level A harassment take by PTS would be unlikely to
impact behaviors, opportunities, or detection capabilities to a degree
that would interfere with reproductive success or survival of that
individual, let alone have effects on annual rates of recruitment or
survival. Nor are these harassment takes combined with the two
authorized mortalities expected to adversely affect this stock through
impacts on annual rates of recruitment or survival. For these reasons,
we have determined, in consideration of all of the effects of the
Navy's activities combined, that the authorized take will have a
negligible impact on the CA/OR/WA stock of fin whales.
Humpback Whale (CA/OR/WA Stock)
The SAR identifies this stock as stable (having shown a long-term
increase from 1990 and then leveling off between 2008 and 2014) and the
individuals in this stock are associated with three DPSs, one of which
is not listed under the ESA (Hawaii), one of which is listed as
threatened (Mexico), and one of which is listed as endangered (Central
America). Individuals encountered in the SOCAL portion of the HSTT
Study Area are likely to come from the latter two DPSs. No Level A
harassment by tissue damage is anticipated or authorized. NMFS
authorizes one mortality over the seven years covered by this rule, or
0.14 mortality annually (Mexico DPS only). With the addition of this
0.14 annual mortality, the total human-caused mortality exceeds PBR by
8.84. However, as described in more detail in the Serious Injury or
Mortality section, when total human-caused mortality exceeds PBR, we
consider whether the incremental addition of a small amount of
authorized mortality from the specified activity may still result in a
negligible impact, in part by identifying whether it is less than 10
percent of PBR, which is 33.4. In this case, the authorized mortality
is well below 10 percent of PBR (less than one percent, in fact) and
management measures are in place to reduce mortality from other
sources. More importantly, as described above in the Serious Injury or
Mortality section, the authorized mortality of 0.14 will not delay the
time to recovery by more than 1 percent. Given these considerations
along with those discussed earlier, the incremental addition of a
single mortality over the course of the seven-year Navy rule is not
expected to, alone, lead to adverse impacts on the stock through
effects on annual rates of recruitment or survival. In addition, even
with the additional two years of activities under this rule, no
additional M/SI is estimated for this stock, leading to a slight
decrease (from 0.2 to 0.14 annually) in annual mortality from the 2018
HSTT final rule.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is 808 and 69 percent, respectively. Given the
range of humpback whales, this information suggests that only some
portion of individuals in the stock are likely impacted, but that there
is likely some repeat exposure (perhaps up to 16 days within a year) of
some subset of individuals that spend extended time within the SOCAL
complex. Regarding the severity of those individual Level B harassment
takes by behavioral disruption, the duration of any exposure is
expected to be between minutes and hours (i.e., relatively short) and
the received sound levels largely below 172 dB with a portion up to 178
dB (i.e., of a moderate or lower level, less likely to evoke a severe
response). Some of these takes could occur on several sequential days
for some small number of individuals, for example, if they resulted
from a multi-day exercise on a range while individuals were in the area
for multiple days feeding. However, these amounts are still not
expected to adversely impact reproduction or survival of any
individuals.
Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and mostly not in a frequency band that would
be expected to interfere with humpback whale communication or other
important low-frequency cues--and the associated lost opportunities and
capabilities are not at a level that will impact reproduction or
survival. For similar reasons (as described in the 2018 HSTT final
rule) the single estimated Level A harassment take by PTS for this
stock is unlikely to have any effects on the reproduction or survival
of that one individual, even if it were to be experienced by an animal
that also experiences one or more Level B harassment takes by
behavioral disruption.
Altogether, this population is stable, only a small portion of the
stock is anticipated to be impacted and any individual humpback whale
is likely to be disturbed at a low-moderate level, with likely many
animals exposed only once or twice and a subset potentially disturbed
up to 16 days, but with no reason to think that more than several of
those days would be sequential. This low magnitude and severity of
harassment effects is not expected to result in impacts on the
reproduction or survival of any individuals, let alone have impacts on
annual rates of recruitment or survival. One individual is expected to
be taken by PTS annually of likely low severity. A small permanent loss
of hearing sensitivity (PTS) may include some degree of energetic costs
for compensating or may mean some small loss of opportunities or
detection capabilities, but at the expected scale the estimated one
Level A harassment take by PTS would be unlikely to impact behaviors,
opportunities, or detection capabilities to a degree that would
interfere with reproductive success or survival of that individual, let
alone have effects on annual rates of recruitment or survival. Nor are
these harassment takes combined with the one authorized mortality
(which our earlier analysis indicated will not have more than a
negligible impact on this stock of humpback whales) expected to
adversely affect this stock through impacts on annual rates of
recruitment or survival. For these reasons, we have determined, in
consideration of all of the effects of the Navy's activities combined,
that the authorized take will have a negligible impact on the CA/OR/WA
stock of humpback whales.
Minke Whale (CA/OR/WA Stock)
The status of this stock is unknown and it is not listed under the
ESA. No mortality from vessel strike or Level A harassment by tissue
damage from explosive exposure is anticipated or authorized for this
species. Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is 568 and 146 percent, respectively. Based on
the behaviors of minke whales, which often occur along continental
shelves and sometimes establish home ranges along the West Coast, this
information suggests that only a portion of individuals in the stock
are likely impacted, but that there is likely some repeat exposure
(perhaps up to 11 days within a year) of some subset of individuals
that spend extended time within the SOCAL complex. Some of these takes
could occur on a few sequential days for some small number of
individuals, for example, if they resulted from a multi-day exercise on
a range while individuals were in the area for multiple days feeding.
However, these amounts are still not expected to adversely impact
reproduction or survival of any individuals. Regarding the severity of
[[Page 41877]]
those individual Level B harassment takes by behavioral disruption, the
duration of any exposure is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
172 dB with a portion up to 178 dB (i.e., of a moderate or lower level,
less likely to evoke a severe response). Regarding the severity of TTS
takes, they are expected to be low-level, of short duration, and mostly
not in a frequency band that would be expected to interfere with minke
whale communication or other important low-frequency cues--and the
associated lost opportunities and capabilities are not at a level that
will impact reproduction or survival. For similar reasons (as described
in the 2018 HSTT final rule) the single estimated Level A harassment
take by PTS for this stock is unlikely to have any effects on the
reproduction or survival of that individual, even if it were to be
experienced by an animal that also experiences one or more Level B
harassment takes by behavioral disruption.
Altogether, while the status of this population is unknown, only a
portion of the stock is anticipated to be impacted and any individual
minke whale is likely to be disturbed at a low-moderate level, with the
taken individuals likely exposed between one and eleven days, with a
few individuals potentially taken on a few sequential days. No
mortality is anticipated or proposed for authorization. This low
magnitude and severity of harassment effects is not expected to result
in impacts on individual reproduction or survival, let alone have
impacts on annual rates of recruitment or survival. One individual is
expected to be taken by PTS annually of likely low severity. A small
permanent loss of hearing sensitivity (PTS) may include some degree of
energetic costs for compensating or may mean some small loss of
opportunities or detection capabilities, but at the expected scale the
estimated one Level A harassment take by PTS would be unlikely to
impact behaviors, opportunities, or detection capabilities to a degree
that would interfere with reproductive success or survival of that
individual, let alone have effects on annual rates of recruitment or
survival. For these reasons, we have determined, in consideration of
all of the effects of the Navy's activities combined, that the
authorized take will have a negligible impact on the CA/OR/WA stock of
minke whales.
Sei Whale (Eastern North Pacific Stock)
The status of this stock is unknown and it is listed as endangered
under the ESA. No mortality or Level A harassment is anticipated or
authorized. Regarding the magnitude of Level B harassment takes (TTS
and behavioral disruption), the number of estimated total instances of
take compared to the abundance (measured against both the Navy-
estimated abundance and the SAR) is 2,633 and 15 percent, respectively,
however, the abundance upon which the Navy percentage is based (3 from
the Navy estimate, which is extrapolated from density estimates based
on very few sightings) is likely an underestimate of the number of
individuals in the HSTT Study Area, resulting in an overestimated
percentage. Given this information and the large range of sei whales,
and the fact that only 79 total Level B harassment takes of sei whales
were estimated, it is likely that some very small number of sei whales
would be taken repeatedly, potentially up to 15 days in a year
(typically 2,633 percent would lead to the estimate of 52 days/year,
however, given that there are only 79 sei whale total takes, we used
the conservative assumption that five individuals might be taken up to
15 times, with the few remaining takes distributed among other
individuals). Regarding the severity of those individual Level B
harassment takes by behavioral disruption, the duration of any exposure
is expected to be between minutes and hours (i.e., relatively short)
and the received sound levels largely below 172 dB with a portion up to
178 dB (i.e., of a moderate or lower level, less likely to evoke a
severe response). Some of these takes could occur on a few sequential
days for some small number of individuals, for example, if they
resulted from a multi-day exercise on a range while individuals were in
the area for multiple days feeding, however, these amounts are still
not expected to adversely impact reproduction or survival of any
individuals. Regarding the severity of TTS takes, they are expected to
be low-level, of short duration, and mostly not in a frequency band
that would be expected to interfere with sei whale communication or
other important low-frequency cues--and the associated lost
opportunities and capabilities are not at a level that will impact
reproduction or survival.
Altogether, while the status of this population is unknown, only a
small portion of the stock is anticipated to be impacted and any
individual sei whale is likely to be disturbed at a low-moderate level,
with only a few individuals exposed over one to 15 days in a year, with
no more than a few sequential days. No mortality or Level A harassment
is anticipated or authorized. This low magnitude and severity of
harassment effects is not expected to result in impacts on individual
reproduction or survival, much less annual rates of recruitment or
survival for the stock. For these reasons, we have determined, in
consideration of all of the effects of the Navy's activities combined,
that the authorized take will have a negligible impact on the Eastern
North Pacific stock of sei whales.
Gray Whale (Eastern North Pacific Stock)
The SAR identifies this stock as ``increasing'' and the species is
not listed under the ESA. No Level A harassment by tissue damage is
anticipated or authorized. NMFS is authorizing two mortalities over the
seven years covered by this rule, or 0.29 mortality annually. The
addition of this 0.29 annual mortality still leaves the total human-
caused mortality well under the insignificance threshold of residual
PBR (663). On May 31, 2019, NMFS declared the unusual spike in
strandings of gray whales along the west coast of North America since
January 1, 2019 an UME. As of March 13, 2020, 264 gray whales have
stranded along the west coast of North America (in the U.S., Canada,
and Mexico). Including these mortalities in the calculated residual PBR
still leaves the addition of 0.29 annual mortality well under the
insignificance threshold of residual PBR (399 including known deaths
due to the UME). In addition, even with the additional two years of
activities under this rule, no additional M/SI is estimated for this
stock, leading to a slight decrease (from 0.4 to 0.29 annually) in
annual mortality from the 2018 HSTT final rule.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is 2,424 and 17 percent, respectively. This
information suggests that only some small portion of individuals in the
stock are likely impacted (less than 17 percent), but that there is
likely some level of repeat exposure of some subset of individuals that
spend extended time within the SOCAL complex. Typically, 2,424 percent
would lead to the estimate of 48 days/year, however, given that a large
number of gray whales are known to migrate through the SOCAL complex
and the fact that there are 4,678 total takes, we believe that it is
more likely that a larger number of individuals would be taken one to a
few times,
[[Page 41878]]
while a small number staying in an area to feed for several days may be
taken on 5-10 days. Regarding the severity of those individual Level B
harassment takes by behavioral disruption, the duration of any exposure
is expected to be between minutes and hours (i.e., relatively short)
and the received sound levels largely below 172 dB with a portion up to
178 dB (i.e., of a moderate or lower level, less likely to evoke a
severe response). Some of these takes could occur on a few sequential
days for some small number of individuals, however, these amounts are
still not expected to adversely impact reproduction or survival of any
individuals.
Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and mostly not in a frequency band that would
be expected to interfere with gray whale communication or other
important low-frequency cues, and the associated lost opportunities and
capabilities are not at a level that will impact reproduction or
survival. For these same reasons (low level and frequency band), while
a small permanent loss of hearing sensitivity may include some degree
of energetic costs for compensating or may mean some small loss of
opportunities or detection capabilities, at the expected scale the 7
estimated Level A harassment takes by PTS for gray whales will be
unlikely to impact behaviors, opportunities, or detection capabilities
to a degree that would interfere with reproductive success or survival
of any individuals, even if it were to be experienced by an animal that
also experiences one or more Level B harassment takes by behavioral
disruption.
Altogether, while we have considered the impacts of the gray whale
UME, gray whales are not endangered or threatened under the ESA and the
Eastern North Pacific stock is increasing. Only a small portion of the
stock is anticipated to be impacted and any individual gray whale is
likely to be disturbed at a low-moderate level, with likely many
animals exposed only once or twice and a subset potentially disturbed
across five to ten days. This low magnitude and severity of harassment
effects is not expected to result in impacts to reproduction or
survival for any individuals, let alone have impacts on annual rates of
recruitment or survival. Seven individuals are expected to be taken by
PTS annually of likely low severity, with this unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of those
individuals, let alone have effects on annual rates of recruitment or
survival. Nor are these harassment takes combined with the two
authorized mortalities expected to adversely affect this stock through
impacts on annual rates of recruitment or survival. For these reasons,
we have determined, in consideration of all of the effects of the
Navy's activities combined, that the authorized take will have a
negligible impact on the Eastern North Pacific stock of gray whales.
Gray Whale (Western North Pacific Stock)
The Western North Pacific stock of gray whales is reported as
increasing in the 2018 final SAR, but is listed as endangered under the
ESA. No mortality or Level A harassment is anticipated or
authorization. This stock is expected to incur the very small number of
6 Level B harassment takes (2 behavioral disruption and 4 TTS) to a
stock with a SAR-estimated abundance of 290. These takes will likely
accrue to different individuals, the behavioral disturbances will be of
a low-moderate level, and the TTS instances will be at a low level and
of short duration (with the same expected effects as described for the
Eastern North Pacific stock of gray whales described above). This low
magnitude and severity of harassment effects is not expected to result
in impacts on individual reproduction or survival, much less to
adversely affect this stock through impacts on annual rates of
recruitment or survival. For these reasons, we have determined, in
consideration of all of the effects of the Navy's activities combined,
that the authorized take will have a negligible impact on the Western
North Pacific stock of gray whales.
Humpback Whale (Central North Pacific Stock)
The 2018 final SAR identifies this stock as ``increasing'' and the
DPS is not listed under the ESA. No Level A harassment by tissue damage
is anticipated or authorized. NMFS authorizes two mortalities over the
seven years covered by this rule, or 0.29 mortalities annually. The
addition of this 0.29 annual mortality still leaves the total human-
caused mortality well under the insignificance threshold for residual
PBR. In addition, even with the additional two years of activities
under this rule, no additional M/SI is estimated for this stock,
leading to a slight decrease (from 0.4 to 0.29 annually) in annual
mortality from the 2018 HSTT final rule.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances of take
compared to the abundance, both throughout the HSTT Study Area and
within the U.S. EEZ, respectively, is 180 and 161 percent. This
information and the complicated far-ranging nature of the stock
structure suggests that some portion of the stock (but not all) are
likely impacted, over one to several days per year, with little
likelihood of take across sequential days. Regarding the severity of
those individual Level B harassment takes by behavioral disruption, the
duration of any exposure is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
172 dB with a portion up to 178 dB (i.e., of a moderate or lower level,
less likely to evoke a severe response). Additionally, as noted above,
there are two mitigation areas implemented by the Navy that span a
large area of the important humpback reproductive area (BIA) and
minimize impacts by limiting the use of MF1 active sonar and
explosives, thereby reducing both the number and severity of takes of
humpback whales. Regarding the severity of TTS takes, they are expected
to be low-level, of short duration, and mostly not in a frequency band
that would be expected to interfere with humpback whale communication
or other important low-frequency cues, and the associated lost
opportunities and capabilities are not at a level that will impact
reproduction or survival. For these same reasons (low level and
frequency band), while a small permanent loss of hearing sensitivity
may include some degree of energetic costs for compensating or may mean
some small loss of opportunities or detection capabilities, at the
expected scale the three estimated Level A harassment takes by PTS for
humpback whales will be unlikely to impact behaviors, opportunities, or
detection capabilities to a degree that would interfere with
reproductive success or survival of any individuals, even if it were to
be experienced by an animal that also experiences one or more Level B
harassment takes by behavioral disruption.
Altogether, this stock is increasing and the DPS is not listed as
endangered or threatened under the ESA. Only a small portion of the
stock is anticipated to be impacted and any individual humpback whale
is likely to be disturbed at a low-moderate level, with the taken
individuals likely exposed between one to several days per year, with
little likelihood of take across sequential days. This low magnitude
and severity of harassment effects is not
[[Page 41879]]
expected to result in impacts on individual reproduction or survival,
let alone have impacts on annual rates of recruitment or survival.
Three individuals are estimated to be taken by PTS annually of likely
low severity, with this unlikely to impact behaviors, opportunities, or
detection capabilities to a degree that would interfere with
reproductive success or survival of those individuals, let alone have
effects on annual rates of recruitment or survival. Nor are these
harassment takes combined with the two authorized mortalities expected
to adversely affect this stock through impacts on annual rates of
recruitment or survival. For these reasons, we have determined, in
consideration of all of the effects of the Navy's activities combined,
that the authorized take will have a negligible impact on the Central
North Pacific stock of humpback whales.
Blue Whale (Central North Pacific Stock) and the Hawaii Stocks of
Bryde's Whale, Fin Whale, Minke Whale, and Sei Whale
The status of these stocks is not identified in the SARs. Blue
whales, fin whales, and sei whales are listed as endangered under the
ESA; minke whales and Bryde's whales (other than the Gulf of Mexico
DPS) are not listed under the ESA. No mortality or Level A harassment
by tissue damage is anticipated or authorized for any of these stocks.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances of take
compared to the abundance, both throughout the HSTT Study Area and
within the U.S. EEZ, respectively, is 92-135 and 103-142 percent. This
information suggests that some portion of the stocks (but not all) are
likely impacted, over one to several days per year, with little
likelihood of take across sequential days. Regarding the severity of
those individual Level B harassment takes by behavioral disruption, the
duration of any exposure is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
172 dB with a portion up to 178 dB (i.e., of a moderate or lower level,
less likely to evoke a severe response). Regarding the severity of TTS
takes, they are expected to be low-level, of short duration, and mostly
not in a frequency band that would be expected to interfere with
mysticete communication or other important low-frequency cues--and the
associated lost opportunities and capabilities are not at a level that
will impact reproduction or survival. For similar reasons (as described
in the 2018 HSTT final rule) the two estimated Level A harassment takes
by PTS for the Hawaii stock of minke whales are unlikely to have any
effects on the reproduction or survival of those two individuals, even
if it were to be experienced by an animal that also experiences one or
more Level B harassment takes by behavioral disruption.
Altogether, while the status of these populations is unknown, only
a portion of these stocks are anticipated to be impacted and any
individuals of these stocks are likely to be disturbed at a low-
moderate level, with the taken individuals likely exposed between one
and several days, with little chance that any are taken across
sequential days. No mortality is anticipated or authorized for any of
these stocks. This low magnitude and severity of harassment effects is
not expected to result in impacts on individual reproduction or
survival, let alone have impacts on annual rates of recruitment or
survival. Two individual minke whales from the Hawaii stock are
estimated to be taken by PTS annually of likely low severity. A small
permanent loss of hearing sensitivity (PTS) may include some degree of
energetic costs for compensating or may mean some small loss of
opportunities or detection capabilities, but at the expected scale the
estimated Level A harassment take by PTS would be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of those
individuals, let alone have effects on annual rates of recruitment or
survival. For these reasons, we have determined, in consideration of
all of the effects of the Navy's activities combined, that the
authorized take will have a negligible impact on these stocks.
Odontocetes
Sperm Whales, Dwarf Sperm Whales, and Pygmy Sperm Whales
In Tables 20 and 21 below for sperm whales, dwarf sperm whales, and
pygmy sperm whales, we indicate the total annual mortality, Level A and
Level B harassment, and a number indicating the instances of total take
as a percentage of abundance. Tables 20 and 21 are unchanged from
Tables 73 and 74 in the 2018 HSTT final rule, except for updated
information on mortality for the Hawaii stock of sperm whales, as
discussed above. For additional information and analysis supporting the
negligible-impact analysis, see the Odontocetes discussion as well as
the Sperm Whales, Dwarf Sperm Whales, and Pygmy Sperm Whales discussion
in the Group and Species-Specific Analyses section of the 2018 HSTT
final rule, all of which remains applicable to this final rule unless
specifically noted.
Table 20--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Sperm Whales, Dwarf Sperm Whales, and Pygmy Sperm Whales in the HRC Portion of the HSTT Study Area and Number Indicating the Instances of
Total Take as a Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instances of total take as
represent separate individuals, especially for disturbance) ---------------------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment Total Navy
Species Stock ----------------------------------------------------- Total takes Takes abundance Within EEZ Total take as EEZ take as
TTS (may (entire (within inside and Navy percentage of percentage of
Behavioral also Tissue Mortality study area) NAVY EEZ) outside EEZ abundance total Navy EEZ abundance
disturbance include PTS damage (HRC) (HRC) abundance (HRC)
disturbance) (HRC)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Dwarf sperm whale.............................. Hawaii........................... 5,870 14,550 64 0 0 20,484 15,310 8,218 6,379 249 240
Pygmy sperm whale.............................. Hawaii........................... 2,329 5,822 29 0 0 8,180 6,098 3,349 2,600 244 235
Sperm whale.................................... Hawaii........................... 2,466 30 0 0 0.14 2,496 1,317 1,656 1,317 151 147
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule), both
in and outside of the U.S. EEZ. Because the portion of the Navy's study area inside the U.S. EEZ is generally concomitant with the area used to generate the abundance estimates in the SARs, and the abundance predicted by the same
underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
[[Page 41880]]
The annual mortality of 0.14 is the result of no more than one mortality over the course of seven years from vessel strikes as described above in the Estimated Take of Marine Mammals section.
Table 21--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Sperm Whales, Dwarf Sperm Whales, and Pygmy Sperm Whales in the SOCAL portion of the HSTT Study
Area and Number Indicating the Instances of Total Take as a Percentage of Stock Abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instances of total take as
represent separate individuals, especially for disturbance) --------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment
Species Stock ----------------------------------------------------- Total takes Navy Total take as Total take as
TTS (may (entire abundance NMFS SARS percentage of percentage of
Behavioral also Tissue Mortality study area) in action abundance total Navy total SAR
disturbance include PTS damage area abundance in abundance
disturbance) action area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Kogia whales..................... CA/OR/WA............ 2,779 6,353 38 0 0 9,170 757 4,111 1,211 223
Sperm whale...................... CA/OR/WA............ 2,437 56 0 0 0 2,493 273 1,997 913 125
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state and beyond
and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we compare
predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely affect any
species or stocks through effects on annual rates of recruitment or
survival for any of the affected stocks addressed in this section.
Sperm Whale, Dwarf Sperm Whale, and Pygmy Sperm Whale (CA/OR/WA Stocks)
The SAR identifies the CA/OR/WA stock of sperm whales as ``stable''
and the species is listed as endangered under the ESA. The status of
the CA/OR/WA stocks of pygmy and dwarf sperm whales is unknown and
neither are listed under the ESA. Neither mortality nor Level A
harassment by tissue damage from exposure to explosives is expected or
authorized for any of these three stocks.
Due to their pelagic distribution, small size, and cryptic
behavior, pygmy sperm whales and dwarf sperm whales (Kogia species) are
rarely sighted during at-sea surveys and are difficult to distinguish
between when visually observed in the field. Many of the relatively few
observations of Kogia species off the U.S. West Coast were not
identified to species. All at-sea sightings of Kogia species have been
identified as pygmy sperm whales or Kogia species generally. Stranded
dwarf sperm and pygmy sperm whales have been found on the U.S. West
Coast, however dwarf sperm whale strandings are rare. NMFS SARs suggest
that the majority of Kogia sighted off the U.S. West Coast were likely
pygmy sperm whales. As such, the stock estimate in the NMFS SAR for
pygmy sperm whales is the estimate derived for all Kogia species in the
region (Barlow, 2016), and no separate abundance estimate can be
determined for dwarf sperm whales, though some low number likely reside
in the U.S. EEZ. Due to the lack of an abundance estimate it is not
possible to predict the amount of Level A harassment and Level B
harassment take of dwarf sperm whales and therefore take estimates are
identified as Kogia whales (including both pygmy and dwarf sperm
whales). We assume only a small portion of those takes are likely to be
dwarf sperm whales as the available information indicates that the
density and abundance in the U.S. EEZ is low.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is, respectively, 913 and 125 percent for sperm
whales and 1,211 and 223 percent for Kogia whales, with a large
proportion of the Kogia whales anticipated to be pygmy sperm whales due
to the low abundance and density of dwarf sperm whales in the HSTT
Study Area. Given the range of these stocks (which extends the entire
length of the West Coast, as well as beyond the U.S. EEZ boundary),
this information suggests that some portion of the individuals in these
stocks will not be impacted, but that there is likely some repeat
exposure (perhaps up to 24 days within a year for Kogia species and 18
days a year for sperm whales) of some small subset of individuals that
spend extended time within the SOCAL Range. Regarding the severity of
those individual Level B harassment takes by behavioral disruption, the
duration of any exposure is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
172 dB (i.e., of a lower, to occasionally moderate, level and less
likely to evoke a severe response). Additionally, while interrupted
feeding bouts are a known response and concern for odontocetes, we also
know that there are often viable alternative habitat options in the
relative vicinity. However, some of these takes could occur on a fair
number of sequential days for some number of individuals.
Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and mostly not in a frequency band that would
be expected to interfere with any of these three species' communication
or other important low-frequency cues, and that the associated lost
opportunities and capabilities are not at a level that will impact
reproduction or survival. For these same reasons (low level and
frequency band), while a small permanent loss of hearing sensitivity
(PTS) may include some degree of energetic costs for compensating or
may mean some small loss of opportunities or detection capabilities, at
the expected scale the estimated Level A harassment takes by PTS for
the dwarf and pygmy sperm whale stocks will be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of any
individuals (and no Level A harassment takes are anticipated or
authorized for sperm whales), even if it were to be experienced by an
animal that also experiences one or more Level B harassment takes by
behavioral disruption. Thus the 38 Level A harassment takes by PTS for
the two Kogia stocks are unlikely to affect rates of recruitment and
survival for the stocks.
Altogether, while this population of sperm whales is stable and the
status of the Kogia species stocks are unknown, most members of the
stocks will likely be taken by Level B harassment at a low to
occasionally moderate level over several days a year, and some smaller
portion of the stocks are expected to be taken on a relatively moderate
to high number of days (up to 18 or 24) across the year, some of which
could be sequential days. No mortality is anticipated or authorized for
any of
[[Page 41881]]
these stocks. Thirty-eight individuals from the two Kogia stocks are
expected to be taken by PTS annually of likely low severity, with this
unlikely to impact behaviors, opportunities, or detection capabilities
to a degree that would interfere with reproductive success or survival
of those individuals. Though the majority of impacts are expected to be
of a lower to sometimes moderate severity, the larger number of takes
for a subset of individuals makes it more likely that a small number of
individuals could be interrupted during foraging in a manner and amount
such that impacts to the energy budgets of females (from either losing
feeding opportunities or expending considerable energy to find
alternative feeding options) could cause them to forego reproduction
for a year. Energetic impacts to males are generally meaningless to
population rates unless they cause death, and it takes extreme energy
deficits beyond what would ever be likely to result from these
activities to cause the death of an adult marine mammal. As discussed
in the 2018 HSTT final rule, however, foregone reproduction (especially
for one year, which is the maximum predicted because the small number
anticipated in any one year makes the probability that any individual
would be impacted in this way twice in seven years very low) has far
less of an impact on population rates than mortality and a small number
of instances of foregone reproduction is not expected to adversely
affect these stocks through effects on annual rates of recruitment or
survival. We also note that residual PBR is 19.2 for pygmy sperm whales
and 1.6 for sperm whales. Both the abundance and PBR are unknown for
dwarf sperm whales, however, we know that take of this stock is likely
significantly lower in magnitude and severity (i.e., lower number of
total takes and repeated takes of any individual) than pygmy sperm
whales. For these reasons, in consideration of all of the effects of
the Navy's activities combined, we have determined that the authorized
take will have a negligible impact on the CA/OR/WA stocks of sperm
whales and pygmy and dwarf sperm whales.
Sperm Whale (Hawaii Stock)
The SAR does not identify a trend for this stock and the species is
listed as endangered under the ESA. No Level A harassment by PTS or
tissue damage is expected or authorized. NMFS authorizes one mortality
over the seven years covered by this rule, which is 0.14 mortalities
annually. The addition of this 0.14 annual mortality still leaves the
total human-caused mortality well under the insignificance threshold
for residual PBR. In addition, even with the additional two years of
activities under this rule, no additional M/SI is estimated for this
stock, leading to a slight decrease (from 0.2 to 0.14 annually) in
annual mortality from the 2018 HSTT final rule.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances of take
compared to the abundance, both throughout the HSTT Study Area and
within the U.S. EEZ, respectively, is 151 and 147 percent. This
information and the sperm whale stock range suggest that likely only a
smaller portion of the stock will be impacted, over one to a few days
per year, with little likelihood of take across sequential days.
Regarding the severity of those individual Level B harassment takes by
behavioral disruption, the duration of any exposure is expected to be
between minutes and hours (i.e., relatively short) and the received
sound levels largely below 172 dB (i.e., of a lower, to occasionally
moderate, level and less likely to evoke a severe response). Regarding
the severity of TTS takes, they are expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere with sperm whale communication or other important low-
frequency cues, and the associated lost opportunities and capabilities
are not at a level that will impact reproduction or survival.
Altogether, while the status of this population is unknown, a
relatively small portion of this stock is anticipated to be impacted
and any individuals are likely to be disturbed at a low-moderate level,
with the taken individuals likely exposed between one and a few days,
with little chance that any are taken across sequential days. No Level
A harassment by PTS or tissue damage is expected or authorized. This
low magnitude and severity of harassment effects is not expected to
result in impacts on individual reproduction or survival, nor are these
harassment takes combined with the one authorized mortality expected to
adversely affect the stock through impacts on annual rates of
recruitment or survival. For these reasons, we have determined, in
consideration of all of the effects of the Navy's activities combined,
that the authorized take will have a negligible impact on the Hawaii
stock of sperm whales.
Pygmy and Dwarf Sperm Whales (Hawaii Stocks)
The SAR does not identify a trend for these stocks and the species
are not listed under the ESA. No mortality or Level A harassment by
tissue damage is anticipated or authorized. Regarding the magnitude of
Level B harassment takes (TTS and behavioral disruption), the number of
estimated instances of take compared to the abundance, both throughout
the HSTT Study Area and within the U.S. EEZ, respectively, is 244-249
and 235-240 percent. This information and the pygmy and dwarf sperm
whale stock ranges (at least throughout the U.S. EEZ around the entire
Hawaiian Islands) suggest that likely a fair portion of each stock is
not impacted, but that a subset of individuals may be taken over one to
perhaps five days per year, with little likelihood of take across
sequential days. Regarding the severity of those individual Level B
harassment takes by behavioral disruption, the duration of any exposure
is expected to be between minutes and hours (i.e., relatively short)
and the received sound levels largely below 172 dB (i.e., of a lower,
to occasionally moderate, level and less likely to evoke a severe
response). Additionally, as discussed earlier, within the Hawaii Island
Mitigation Area, explosives are not used and the use of MF1 and MF4
active sonar is limited, greatly reducing the severity of impacts
within the small resident population BIA for dwarf sperm whales, which
is entirely contained within this mitigation area.
Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and mostly not in a frequency band that would
be expected to interfere with pygmy or dwarf sperm whale communication
or other important low-frequency cues--and the associated lost
opportunities and capabilities are not at a level that will impact
reproduction or survival. For these same reasons (low level and
frequency band), while a small permanent loss of hearing sensitivity
may include some degree of energetic costs for compensating or may mean
some small loss of opportunities or detection capabilities, at the
expected scale, estimated Level A harassment takes by PTS for these
stocks of dwarf and pygmy sperm whales will be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
will interfere with reproductive success or survival of any
individuals, even if it were to be experienced by an animal that also
experiences one or more instances of Level B harassment by behavioral
disruption. Thus the 64 and 29 total Level A harassment takes by PTS
for dwarf and pygmy sperm whales,
[[Page 41882]]
respectively, will be unlikely to affect rates of recruitment and
survival for these stocks.
Altogether, while the status of these populations is unknown, only
a portion of these stocks are likely to be impacted and any individuals
are likely to be disturbed at a low-moderate level, with the taken
individuals likely exposed between one and five days, with little
chance that any are taken across sequential days. No mortality is
anticipated or authorized. This low magnitude and severity of Level B
harassment effects is not expected to result in impacts on individual
reproduction or survival, let alone have impacts on annual rates of
recruitment or survival for these stocks. Sixty-four dwarf sperm whales
and 29 pygmy sperm whales are estimated to be taken by PTS annually of
likely low severity, with this unlikely to impact behaviors,
opportunities, or detection capabilities to a degree that would
interfere with reproductive success or survival of those individuals,
let alone have effects on annual rates of recruitment or survival. For
these reasons, we have determined, in consideration of all of the
effects of the Navy's activities combined, that the expected and
authorized take will have a negligible impact on the Hawaii stocks of
pygmy and dwarf sperm whales.
Beaked Whales
In Tables 22 and 23 below for beaked whales, we indicate the total
annual mortality, Level A and Level B harassment, and a number
indicating the instances of total take as a percentage of abundance.
Tables 22 and 23 are unchanged from Tables 75 and 76 in the 2018 HSTT
final rule. For additional information and analysis supporting the
negligible-impact analysis, see the Odontocetes discussion as well as
the Beaked Whales discussion in the Group and Species-Specific Analyses
section of the 2018 HSTT final rule, all of which remains applicable to
this final rule unless specifically noted.
Table 22--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Beaked Whales in the HRC portion of the HSTT Study Area and Number Indicating the Instances of Total Take as a Percentage of Stock
Abundance
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instances of total take as
represent separate individuals, especially for disturbance) ---------------------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment Total Navy Within EEZ Total take as
Species Stock ----------------------------------------------------- Total takes Takes abundance Navy percentage of EEZ take as
TTS (may Mortality (entire (within inside and abundance total Navy percentage of
Behavioral also include PTS Tissue study area) NAVY EEZ) outside (HRC) abundance EEZ abundance
disturbance disturbance) damage EEZ (HRC) (HRC) (HRC)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale...................... Hawaii........................... 5,369 16 0 0 0 5,385 4,140 989 768 545 539
Cuvier's beaked whale.......................... Hawaii........................... 1,792 4 0 0 0 1,796 1,377 345 268 521 514
Longman's beaked whale......................... Hawaii........................... 19,152 81 0 0 0 19,233 14,585 3,568 2,770 539 527
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule), both
in and outside of the U.S. EEZ. Because the portion of the Navy's study area inside the U.S. EEZ is generally concomitant with the area used to generate the abundance estimates in the SARs, and the abundance predicted by the same
underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Table 23--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Beaked Whales in the SOCAL Portion of the HSTT Study Area and Number Indicating the Instances of
Total Take as a Percentage of Stock Abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instances of total take as
represent separate individuals, especially for disturbance) --------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment
Species Stock ----------------------------------------------------- Total takes Navy Total take as Total take as
TTS (may (entire abundance NMFS SARS percentage of percentage of
Behavioral also include Tissue Mortality study area) in action abundance total Navy total SAR
disturbance PTS damage area abundance in abundance
disturbance) action area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Baird's beaked whale............. CA/OR/WA............ 2,030 14 0 0 0 2,044 74 2,697 2,762 76
Cuvier's beaked whale............ CA/OR/WA............ 11,373 127 1 0 0 11,501 520 3,274 2,212 351
Mesoplodon species............... CA/OR/WA............ 6,125 68 1 0 0 6,194 89 3,044 6,960 203
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state and beyond
and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we compare
predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely affect any
species or stocks through effects on annual rates of recruitment or
survival for any of the affected stocks addressed in this section.
Blainville's, Cuvier's, and Longman's Beaked Whales (Hawaii Stocks)
The SAR does not identify a trend for these stocks and the species
are not listed under the ESA. No mortality or Level A harassment are
expected or authorized for any of these three stocks. Regarding the
magnitude of Level B harassment takes (TTS and behavioral disruption),
the number of estimated instances of take compared to the abundance,
both throughout the HSTT Study Area and within the U.S. EEZ,
respectively, is 521-545 and 514-539 percent. This information and the
stock ranges (at least of the small, resident Island associated stocks
around Hawaii) suggest that likely a fair portion of the stocks (but
not all) will be impacted,
[[Page 41883]]
over one to perhaps eleven days per year, with little likelihood of
much take across sequential days. Regarding the severity of those
individual Level B harassment takes by behavioral disruption, the
duration of any exposure is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
160 dB, though with beaked whales, which are considered somewhat more
sensitive, this could mean that some individuals will leave preferred
habitat for a day or two (i.e., moderate level takes). However, while
interrupted feeding bouts are a known response and concern for
odontocetes, we also know that there are often viable alternative
habitat options nearby. Additionally, as noted earlier, within the
Hawaii Island mitigation area (which entirely contains the BIAs for
Cuvier's and Blainville's beaked whales), explosives are not used and
the use of MF1 and MF4 active sonar is limited, greatly reducing the
severity of impacts to these two small resident populations.
Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and mostly not in a frequency band that would
be expected to interfere with beaked whale communication or other
important low-frequency cues, and the associated lost opportunities and
capabilities are not at a level that will impact reproduction or
survival.
Altogether, the population trend for the three stocks is unknown, a
fair portion of these stocks are anticipated to be impacted, and any
individuals are likely to be disturbed at a moderate level, with the
taken individuals likely exposed between one and eleven days, with
little chance that individuals are taken across sequential days. No
mortality or Level A harassment are expected or authorized for any of
these three stocks. This low, to occasionally moderate, magnitude and
severity of harassment effects is not expected to result in impacts on
individual reproduction or survival, much less have impacts on annual
rates of recruitment or survival for these stocks. For these reasons,
we have determined, in consideration of all of the effects of the
Navy's activities combined, that the authorized take will have a
negligible impact on the Hawaii stocks of beaked whales.
Baird's and Cuvier's Beaked Whales and Mesoplodon Species (all CA/OR/WA
Stocks)
These species are not listed under the ESA and their populations
have been identified as ``stable,'' ``decreasing,'' and ``increasing,''
respectively. No mortality is expected or authorized for any of these
stocks and only two takes by Level A harassment (PTS) are expected and
authorized (one each for Cuvier's beaked whale and the Mesoplodon
species). No Level A harassment by tissue damage is anticipated or
authorized.
No methods are available to distinguish between the six Mesoplodon
beaked whale CA/OR/WA stocks (Blainville's beaked whale (M.
densirostris), Perrin's beaked whale (M. perrini), Lesser beaked whale
(M. peruvianus), Stejneger's beaked whale (M. stejnegeri), Gingko-
toothed beaked whale (M. gingkodens), and Hubbs' beaked whale (M.
carlhubbsi)) when observed during at-sea surveys (Carretta et al.,
2018). Bycatch and stranding records from the region indicate that the
Hubbs' beaked whale is most commonly encountered (Carretta et al.,
2008, Moore and Barlow, 2013). As indicated in the SAR, no species-
specific abundance estimates are available, the abundance estimate
includes all CA/OR/WA Mesoplodon species, and the six species are
managed as one unit. Due to the lack of species-specific abundance
estimates it is not possible to predict the take of individual species
and take estimates are also identified as Mesoplodon species.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance for these stocks is 2,762, 2,212, and 6,960
percent (measured against Navy-estimated abundance) and 76, 351, and
203 percent (measured against the SAR) for Baird's beaked whales,
Cuvier's beaked whales, and Mesoplodon species, respectively. Given the
ranges of these stocks, this information suggests that some smaller
portion of the individuals of these stocks will be taken, and that some
subset of individuals within the stock will be taken repeatedly within
the year (perhaps up to 20-25 days, and potentially more for
Cuvier's)--potentially over a fair number of sequential days,
especially where individuals spend extensive time in the SOCAL Range.
Note that we predict fewer days of repeated exposure for these stocks
than their percentages might have suggested because of the number of
overall takes--i.e., using the higher percentage would suggest that an
unlikely portion of the takes are taken up by a small portion of the
stock incurring a very large number of repeat takes, with little room
for take resulting from few or moderate numbers of repeats, which is
unlikely.
Regarding the severity of those individual Level B harassment takes
by behavioral disruption, we have explained that the duration of any
exposure is expected to be between minutes and hours (i.e., relatively
short) and the received sound levels largely below 160 dB, though with
beaked whales, which are considered somewhat more sensitive, this could
mean that some individuals will leave preferred habitat for a day or
two (i.e., of a moderate level). While interrupted feeding bouts are a
known response and concern for odontocetes, we also know that there are
often viable alternative habitat options in the relative vicinity.
However, as noted, some of these takes could occur on a fair number of
sequential days for these stocks.
The severity of TTS takes are expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere significantly with conspecific communication, echolocation,
or other important low-frequency cues. Therefore, the associated lost
opportunities and capabilities are not expected to impact reproduction
or survival. For similar reasons (as described in the 2018 HSTT final
rule) the single Level A harassment take each by PTS for the Cuvier's
beaked whale stock and the Mesoplodon species is unlikely to have any
effects on the reproduction or survival of those individuals, even if
it were to be experienced by an animal that also experiences one or
more Level B harassment takes by behavioral disruption.
Altogether, a portion of these stocks will likely be taken (at a
moderate or sometimes low level) over several days a year, and some
smaller portion of the stock is expected to be taken on a relatively
moderate to high number of days across the year, some of which could be
sequential days. No mortality is expected or authorized for any of
these stocks. Two individuals (one each for Cuvier's beaked whale and
the Mesoplodon species) are expected to be taken by PTS annually of
likely low severity. A small permanent loss of hearing sensitivity
(PTS) may include some degree of energetic costs for compensating or
may mean some small loss of opportunities or detection capabilities,
but at the expected scale the estimated one Level A harassment take by
PTS would be unlikely to impact behaviors, opportunities, or detection
capabilities to a degree that would interfere with reproductive success
or survival of that individual. Though the majority of impacts are
expected to be of a moderate severity,
[[Page 41884]]
the repeated takes over a potentially fair number of sequential days
for some individuals makes it more likely that a small number of
individuals could be interrupted during foraging in a manner and amount
such that impacts to the energy budgets of females (from either losing
feeding opportunities or expending considerable energy to find
alternative feeding options) could cause them to forego reproduction
for a year. Energetic impacts to males are generally meaningless to
population rates unless they cause death, and it takes extreme energy
deficits beyond what would ever be likely to result from these
activities to cause the death of an adult marine mammal. As noted
previously, however, foregone reproduction (especially for one year,
which is the maximum predicted because the small number anticipated in
any one year makes the probability that any individual would be
impacted in this way twice in seven years very low) has far less of an
impact on population rates than mortality and a small number of
instances of foregone reproduction is not expected to adversely affect
these stocks through effects on annual rates of recruitment or
survival, especially given the residual PBR of these three beaked whale
stocks (16, 21, and 20, respectively).
Further, Navy activities have been conducted in SOCAL for many
years at similar levels and the SAR considers Mesoplodon species as
increasing and Baird's beaked whales as stable. While NMFS' SAR
indicates that Cuvier's beaked whales on the U.S. West Coast are
declining based on a Bayesian trend analysis of NMFS' survey data
collected from 1991 through 2014, results from passive acoustic
monitoring and other research have estimated regional Cuvier's beaked
whale densities that were higher than indicated by NMFS' broad-scale
visual surveys for the U.S. West Coast (Debich et al., 2015a; Debich et
al., 2015b; Falcone and Schorr, 2012, 2014; Hildebrand et al., 2009;
Moretti, 2016; [Scaron]irovi[cacute] et al., 2016; Smultea and
Jefferson, 2014). Research also indicates higher than expected
residency in the Navy's instrumented Southern California Anti-Submarine
Warfare Range in particular (Falcone and Schorr, 2012) and photo
identification studies in the SOCAL have identified approximately 100
individual Cuvier's beaked whale individuals with 40 percent having
been seen in one or more prior years, with re-sightings up to seven
years apart (Falcone and Schorr, 2014). The documented residency by
many Cuvier's beaked whales over multiple years suggests that a stable
population may exist in that small portion of the stock's overall range
(e.g., Falcone et al., 2009; Falcone and Schorr, 2014; Schorr et al.,
2017).
For these reasons, in consideration of all of the effects of the
Navy's activities combined, we have determined that the authorized take
will have a negligible impact on the CA/OR/WA stocks of Baird's and
Cuvier's beaked whales, as well as all six species included within the
Mesoplodon CA/OR/WA stocks.
Small Whales and Dolphins
In Tables 24 and 25 below for dolphins and small whales, we
indicate the total annual mortality, Level A and Level B harassment,
and a number indicating the instances of total take as a percentage of
abundance. Tables 24 and 25 are updated from Tables 77 and 78 in the
2018 HSTT final rule as appropriate with the 2018 final SARs and with
updated information on mortality, as discussed above. For additional
information and analysis supporting the negligible-impact analysis, see
the Odontocetes discussion as well as the Small Whales and Dolphins
discussion in the Group and Species-Specific Analyses section of the
2018 HSTT final rule, all of which remains applicable to this final
rule unless specifically noted.
Table 24--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Dolphins and Small Whales in the HRC Portion of the HSTT Study Area and Number Indicating the Instances of Total Take as a Percentage of
Stock Abundance
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instance of total take as
represent separate individuals, especially for disturbance) ------------- -------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment Takes Total Navy
Species Stock ----------------------------------------------------- Total takes (within abundance Within EEZ Total take as EEZ take as
TTS (may (entire Navy EEZ) inside and Navy percentage of percentage of
Behavioral also Tissue Mortality study area) outside of abundance total Navy Navy EEZ
disturbance include PTS damage EEZ (HRC) (HRC) abundance abundance
disturbance) (HRC) (HRC)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin............................. Hawaii Pelagic................... 3,196 132 0 0 0 3,328 2,481 1,528 1,442 218 172
Bottlenose dolphin............................. Kauai & Niihau................... 534 31 0 0 0 565 264 184 184 307 143
Bottlenose dolphin............................. Oahu............................. 8,600 61 1 0 0 8,662 8,376 743 743 1,169 1,130
Bottlenose dolphin............................. 4-Island......................... 349 10 0 0 0 359 316 189 189 190 167
Bottlenose dolphin............................. Hawaii........................... 74 6 0 0 0 80 42 131 131 61 32
False killer whale............................. Hawaii Pelagic................... 999 42 0 0 0 1,041 766 645 507 161 151
False killer whale............................. Main Hawaiian Islands Insular.... 572 17 0 0 0 589 476 147 147 400 324
False killer whale............................. Northwestern Hawaiian Islands.... 365 16 0 0 0 381 280 215 169 177 166
Fraser's dolphin............................... Hawaii........................... 39,784 1,289 2 0 0 41,075 31,120 5,408 18,763 760 166
Killer whale................................... Hawaii........................... 118 6 0 0 0 124 93 69 54 180 172
Melon-headed whale............................. Hawaii Islands................... 3,261 231 0 0 0 3,492 2,557 1,782 1,782 196 143
Melon-headed whale............................. Kohala Resident.................. 341 9 0 0 0 350 182 447 447 78 41
Pantropical spotted dolphin.................... Hawaii Island.................... 3,767 227 0 0 0 3,994 2,576 2,405 2,405 166 107
[[Page 41885]]
Pantropical spotted dolphin.................... Hawaii Pelagic................... 9,973 476 0 0 0 10,449 7,600 5,462 4,637 191 164
Pantropical spotted dolphin.................... Oahu............................. 4,284 45 0 0 0 4,329 4,194 372 372 1,164 1,127
Pantropical spotted dolphin.................... 4-Island......................... 701 17 0 0 0 718 634 657 657 109 96
Pygmy killer whale............................. Hawaii........................... 8,122 402 0 0 0 8,524 6,538 4,928 3,931 173 166
Pygmy killer whale............................. Tropical......................... 710 50 0 0 0 760 490 159 23 478 2,130
Risso's dolphin................................ Hawaii........................... 8,950 448 0 0 0 9,398 7,318 1,210 4,199 777 174
Rough-toothed dolphin.......................... Hawaii........................... 6,112 373 0 0 0 6,485 4,859 3,054 2,808 212 173
Short-finned pilot whale....................... Hawaii........................... 12,499 433 0 0 0 12,932 9,946 6,433 5,784 201 172
Spinner dolphin................................ Hawaii Island.................... 279 12 0 0 0 291 89 629 629 46 14
Spinner dolphin................................ Hawaii Pelagic................... 4,332 202 0 0 0 4,534 3,491 2,885 2,229 157 157
Spinner dolphin................................ Kauai & Niihau................... 1,683 63 0 0 0 1,746 812 604 604 289 134
Spinner dolphin................................ Oahu & 4-Island.................. 1,790 34 1 0 0 1,825 1,708 354 354 516 482
Striped dolphin................................ Hawaii........................... 7,379 405 0 0 0 7,784 6,034 4,779 3,646 163 165
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule), both
in and outside of the U.S. EEZ. Because the portion of the Navy's study area inside the U.S. EEZ is generally concomitant with the area used to generate the abundance estimates in the SARs, and the abundance predicted by the same
underlying density estimates is the preferred abundance to use, there is no need to separately compare the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Table 25--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Dolphins and Small Whales in the SOCAL Portion of the HSTT Study Area and Number Indicating the
Instances of Total Take as a Percentage of Stock Abundance.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instance of total take as
represent separate individuals, especially for disturbance) --------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment Navy Total take as
Species Stock ----------------------------------------------------- Total takes abundance NMFS SARS percentage of Total take as
TTS (may Mortality (entire in action abundance total Navy percentage of
Behavioral also include PTS Tissue study area) area abundance in total SAR
disturbance disturbance) damage (SOCAL) action area abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin............... California Coastal.. 1,771 38 0 0 0 1,809 238 453 760 399
Bottlenose dolphin............... CA/OR/WA Offshore... 51,727 3,695 3 0 0 55,425 5,946 1,924 932 2,881
Killer whale..................... Eastern North 96 11 0 0 0 107 4 300 2,675 36
Pacific (ENP)
Offshore.
Killer whale..................... ENP Transient/West 179 20 0 0 0 199 30 243 663 82
Coast Transient.
Long-beaked common dolphin....... California.......... 233,485 13,787 18 2 0 247,292 10,258 101,305 2,411 244
Northern right whale dolphin..... CA/OR/WA............ 90,052 8,047 10 1 0 98,110 7,705 26,556 1,273 369
Pacific white-sided dolphin...... CA/OR/WA............ 69,245 6,093 5 0 0 75,343 6,626 26,814 1,137 281
Risso's dolphin.................. CA/OR/WA............ 116,143 10,118 9 0 0 126,270 7,784 6,336 1,622 1,993
Short-beaked common dolphin...... CA/OR/WA............ 1,374,048 118,525 79 10 1.14 1,492,664 261,438 969,861 571 154
Short-finned pilot whale......... CA/OR/WA............ 1,789 124 1 0 0 1,914 208 836 920 229
Striped dolphin.................. CA/OR/WA............ 163,640 11,614 3 0 0 175,257 39,862 29,211 440 600
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state and beyond
and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we compare
predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
For mortality takes there is an annual average of 1.14 short-beaked common dolphins (i.e., where eight takes could potentially occur divided by seven years to get the annual number of
mortalities/serious injuries).
Mortality for the CA/OR/WA stock of short-beaked common dolphins was unintentionally presented incorrectly as 2 in Table 78 of the 2018 HSTT final rule. The correct value (updated for seven
years of activity) is provided here. This transcription error does not affect the analysis or conclusions in the 2018 HSTT final rule, as the correct value was used in the analysis presented
in the Analysis and Negligible Impact Determination section.
[[Page 41886]]
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely affect any
species or stocks through effects on annual rates of recruitment or
survival for any of the affected stocks addressed in this section.
Long-Beaked Common Dolphin (California Stock), Northern Right Whale
Dolphin (CA/OR/WA Stock), and Short-Beaked Common Dolphin (CA/OR/WA
Stock)
None of these species is listed under the ESA and their stock
statuses are considered ``increasing,'' ``unknown,'' and ``stable,''
respectively. Eight mortalities or serious injuries of short-beaked
common dolphins are estimated and authorized over the seven-year rule,
or 1.14 M/SI annually. The addition of this 1.14 annual mortality still
leaves the total human-caused mortality well under the insignificance
threshold for residual PBR. The three stocks are expected to accrue 2,
1, and 10 Level A harassment takes from tissue damage resulting from
exposure to explosives, respectively. As described in detail in the
2018 HSTT final rule, the impacts of a Level A harassment take by
tissue damage could range in impact from minor to something just less
than M/SI that could seriously impact fitness. However, given the
Navy's procedural mitigation, exposure at the closer to the source and
more severe end of the spectrum is less likely and we cautiously assume
some moderate impact for these takes that could lower the affected
individual's fitness within the year such that a female (assuming a 50
percent chance of it being a female) might forego reproduction for one
year. As noted previously, foregone reproduction has less of an impact
on population rates than death (especially for only one year in seven,
which is the maximum predicted because the small number anticipated in
any one year makes the probability that any individual would be
impacted in this way twice in seven years very low), and 1 to 10
instances is not expected to impact annual rates of recruitment or
survival for these stocks.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance is 2,411, 1,273, and 571 percent (measured
against the Navy-estimated abundance) and 244, 369, and 154 percent
(measured against the SAR abundance) for long-beaked common dolphins,
northern right whale dolphins, and short-beaked common dolphins,
respectively. Given the range of these stocks, this information
suggests that likely some portion (but not all or even the majority) of
the individuals in the northern right whale dolphin and short-beaked
common dolphin stocks are likely impacted, while it is entirely
possible that most or all of the range-limited long-beaked common
dolphin is taken. All three stocks likely will experience some repeat
Level B harassment exposure (perhaps up to 48, 25, and 11 days within a
year for long-beaked common dolphins, northern right whale dolphins,
and short-beaked common dolphins, respectively) of some subset of
individuals that spend extended time within the SOCAL range complex.
Regarding the severity of those individual Level B harassment takes by
behavioral disruption, the duration of any exposure is expected to be
between minutes and hours (i.e., relatively short) and the received
sound levels largely below 172 dB with a portion up to 178 dB (i.e., of
a moderate or lower level, less likely to evoke a severe response).
While interrupted feeding bouts are a known response and concern for
odontocetes, we also know that there are often viable alternative
habitat options in the relative vicinity. However, some of these takes
could occur on a fair number of sequential days for long-beaked common
dolphins or northern right whale dolphins, or even some number of
short-beaked common dolphins, given the higher number of total takes
(i.e., the probability that some number of individuals get taken on a
higher number of sequential days is higher, because the total take
number is relatively high, even though the percentage is not that
high).
The severity of TTS takes is expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere significantly with conspecific communication, echolocation,
or other important low-frequency cues, and the associated lost
opportunities and capabilities is not expected to impact reproduction
or survival. For these same reasons (low level and frequency band),
while a small permanent loss of hearing sensitivity may include some
degree of energetic costs for compensating or may mean some small loss
of opportunities or detection capabilities, as discussed in the 2018
HSTT final rule, the 18, 10, and 79 Level A harassment takes by PTS for
long-beaked common dolphins, northern right whale dolphins, and short-
beaked common dolphins, respectively are unlikely to impact behaviors,
opportunities, or detection capabilities to a degree that would
interfere with reproductive success or survival of any individuals,
even if it were to be experienced by an animal that also experiences
one or more Level B harassment takes by behavioral disruption.
Altogether these stock statuses are considered ``increasing,''
``unknown,'' and ``stable,'' respectively. Eight mortalities of short-
beaked common dolphins are authorized (1.14 takes annually), and all
three stocks may experience a very small number of Level A harassment
takes (relative to the stock abundance and PBR) by tissue damage or
PTS. The 18, 10, and 79 takes by PTS annually of likely low severity
are unlikely to impact behaviors, opportunities, or detection
capabilities to a degree that would interfere with reproductive success
or survival of those individuals, let alone have effects on annual
rates of recruitment or survival. Nonetheless, a moderate to large
portion of all three stocks will likely be taken (at a low to
occasionally moderate level) over several days a year, and some smaller
portion of these stocks is expected to be taken on a relatively
moderate to high number of days across the year, some of which could be
sequential days. Though the majority of impacts are expected to be of a
lower to sometimes moderate severity, the larger number of takes (in
total and for certain individuals) makes it more likely
(probabilistically) that a small number of individuals could be
interrupted during foraging in a manner and amount such that impacts to
the energy budgets of females (from either losing feeding opportunities
or expending considerable energy to find alternative feeding options)
could cause them to forego reproduction for a year. Energetic impacts
to males are generally meaningless to population rates unless they
cause death, and it takes extreme energy deficits beyond what would
ever be likely to result from these activities to cause the death of an
adult marine mammal. As noted previously, however, foregone
reproduction (especially for only one year out of seven, which is the
maximum predicted because the small number anticipated in any one year
makes the probability that any individual would be impacted in this way
twice in seven years very low) has far less of an impact on population
rates than mortality and a small number of instances of foregone
reproduction (including in combination with that which might result
from the small number of Level A harassment takes from tissue damage)
along with the estimated eight mortalities or serious injuries for
short-beaked common dolphins is not expected to adversely
[[Page 41887]]
affect any of the stocks through effects on annual rates of recruitment
or survival, especially given the very high residual PBRs of these
stocks (621, 175, and 8,353, respectively). For these reasons, in
consideration of all of the effects of the Navy's activities combined
(mortality, Level A harassment, and Level B harassment), we have
determined that the authorized take will have a negligible impact on
these three stocks of dolphins.
All Other SOCAL Dolphin Stocks (Except Long-Beaked Common Dolphin,
Northern Right Whale Dolphin, and Short-Beaked Common Dolphin)
None of these species is listed under the ESA and their stock
statuses are considered ``unknown,'' except for the bottlenose dolphin
(California coastal stock) and killer whale (Eastern North Pacific
stock), which are considered ``stable.'' No mortality or Level A
harassment via tissue damage from exposure to explosives is expected or
authorized for these stocks.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is from 440 to 2,675 percent and 36 to 2,881
percent, respectively. Given the range of these stocks (along the
entire U.S. West Coast, or even beyond, with some also extending
seaward of the HSTT Study Area boundaries), this information suggests
that some portion (but not all or even the majority) of the individuals
of any of these stocks will be taken, with the exception that most or
all of the individuals of the more range-limited California coastal
stock of bottlenose dolphin may be taken. It is also likely that some
subset of individuals within most of these stocks will be taken
repeatedly within the year (perhaps up to 10-15 days within a year),
but for no more than several potentially sequential days, although the
CA/OR/WA stocks of bottlenose dolphins, Pacific white-sided dolphins,
and Risso's dolphins may include individuals that are taken repeatedly
within the year over a higher number of days (up to 57, 22, and 40
days, respectively) and potentially over a fair number of sequential
days, especially where individuals spend extensive time in the SOCAL
range complex. Note that though percentages are high for the Eastern
North Pacific stock of killer whales and short-finned pilot whales,
given the low overall number of takes, it is highly unlikely that any
individuals would be taken across the number of days their percentages
suggest.
Regarding the severity of those individual Level B harassment takes
by behavioral disruption, we have explained that the duration of any
exposure is expected to be between minutes and hours (i.e., relatively
short) and the received sound levels largely below 172 dB (i.e., of a
lower, or sometimes moderate level, less likely to evoke a severe
response). While interrupted feeding bouts are a known response and
concern for odontocetes, we also know that there are often viable
alternative habitat options in the relative vicinity. However, as
noted, some of these takes could occur on a fair number of sequential
days for the three stocks listed earlier.
The severity of TTS takes is expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere significantly with conspecific communication, echolocation,
or other important low-frequency cues. For these same reasons (low
level and frequency band), while a small permanent loss of hearing
sensitivity (PTS) may include some degree of energetic costs for
compensating or may mean some small loss of opportunities or detection
capabilities, it is unlikely to impact behaviors, opportunities, or
detection capabilities to a degree that would interfere with
reproductive success or survival of any individuals, even if it were to
be experienced by an animal that also experiences one or more Level B
harassment takes by behavioral disruption.
Altogether, the status of these stocks is either unknown or stable.
The small number of annual estimated takes by PTS of likely low
severity for several stocks are unlikely to impact behaviors,
opportunities, or detection capabilities to a degree that would
interfere with reproductive success or survival of those individuals,
let alone have effects on annual rates of recruitment or survival. A
portion of all of these stocks will likely be taken (at a low to
occasionally moderate level) over several days a year, and some smaller
portion of the CA/OR/WA stocks of bottlenose dolphins, Pacific white-
sided dolphins, and Risso's dolphins, specifically, are expected to be
taken on a relatively moderate to high number of days across the year,
some of which could be sequential days. Though the majority of impacts
are expected to be of a lower to sometimes moderate severity, the
larger number of takes (in total and for certain individuals) for the
CA/OR/WA stocks of bottlenose dolphins, Pacific white-sided dolphins,
and Risso's dolphins makes it more likely (probabilistically) that a
small number of individuals could be interrupted during foraging in a
manner and amount such that impacts to the energy budgets of females
(from either losing feeding opportunities or expending considerable
energy to find alternative feeding options) could cause them to forego
reproduction for a year. Energetic impacts to males are generally
meaningless to population rates unless they cause death, and it takes
extreme energy deficits beyond what would ever be likely to result from
these activities to cause the death of an adult marine mammal. As noted
previously, however, foregone reproduction (especially for only one
year in seven, which is the maximum predicted because the small number
anticipated in any one year makes the probability that any individual
would be impacted in this way twice in seven years very low) has far
less of an impact on population rates than mortality and a small number
of instances of foregone reproduction is not expected to adversely
affect the stocks through effects on annual rates of recruitment or
survival, especially given the residual PBRs of the CA/OR/WA stocks of
bottlenose dolphins, Pacific white-sided dolphins, and Risso's dolphins
(9.4, 183, and 84, respectively). For these reasons, in consideration
of all of the effects of the Navy's activities combined, we have
determined that the authorized take will have a negligible impact on
these stocks of dolphins.
All HRC Dolphin Stocks
With the exception of the Main Hawaiian Island DPS of false killer
whales (listed as endangered under the ESA, with the MMPA stock
identified as ``decreasing''), none of these species are listed under
the ESA and their stock statuses are considered ``unknown.'' No
mortality or Level A harassment via tissue damage from exposure to
explosives is expected or authorized for these stocks.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is from 46 to 1,169 percent and 41 to 2,130
percent, respectively. Given the ranges of these stocks (many of them
are small, resident, island-associated stocks), this information
suggests that a fairly large portion of the individuals of many of
these stocks will be taken, but that most individuals will only be
impacted across a smaller to moderate number of days within the year
(1-15), and with no more than several potentially sequential days,
although
[[Page 41888]]
two stocks (the Oahu stocks of bottlenose dolphin and pantropical
spotted dolphin) have a slightly higher percentage, suggesting they
could be taken up to 23 days within a year, with perhaps a few more of
those days being sequential. We note that although the percentage is
higher for the tropical stock of pygmy killer whale within the U.S. EEZ
(2,130), given (1) the low overall number of takes (760) and (2) the
fact that the small within-U.S. EEZ abundance is not a static set of
individuals, but rather individuals moving in and out of the U.S. EEZ
making it more appropriate to use the percentage comparison for the
total takes versus total abundance--it is highly unlikely that any
individuals would be taken across the number of days that the within-
U.S. EEZ percentage suggests which is 42.
Regarding the severity of those individual Level B harassment takes
by behavioral disruption, the duration of any exposure is expected to
be between minutes and hours (i.e., relatively short) and the received
sound levels largely below 172 dB (i.e., of a lower, or sometimes
moderate level, less likely to evoke a severe response). While
interrupted feeding bouts are a known response and concern for
odontocetes, we also know that there are often viable alternative
habitat options in the relative vicinity. However, as noted, some of
these takes could occur on a fair number of sequential days for the
Oahu stocks of bottlenose dolphin and pantropical spotted dolphins.
Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and mostly not in a frequency band that would
be expected to interfere significantly with conspecific communication,
echolocation, or other important low-frequency cues. For these same
reasons (low level and frequency band), while a small permanent loss of
hearing sensitivity (PTS) may include some degree of energetic costs
for compensating or may mean some small loss of opportunities or
detection capabilities, they will be unlikely to impact behaviors,
opportunities, or detection capabilities to a degree that would
interfere with reproductive success or survival of the one or two
individuals from the three affected stocks, even if accrued to
individuals that are also taken by behavioral harassment at the same
time.
Altogether, the status these stocks is unknown (with the exception
of the Main Hawaiian Islands Insular stock identified as
``decreasing'') and most of these stocks (all but the Oahu stocks of
bottlenose dolphin and pantropical spotted dolphins) will likely be
taken at a low to occasionally moderate level over several days a year,
with some smaller portion of the stock potentially taken on a more
moderate number of days across the year (perhaps up to 15 days for
Fraser's dolphin, though others notably less), some of which could be
across a few sequential days, which is not expected to affect the
reproductive success or survival of individuals. For the Oahu stocks of
bottlenose dolphin and pantropical spotted dolphins, some subset of
individuals could be taken up to 23 days in a year, with some small
number being taken across several sequential days, such that a small
number of individuals could be interrupted during foraging in a manner
and amount such that impacts to the energy budgets of females (from
either losing feeding opportunities or expending considerable energy to
find alternative feeding options) could cause them to forego
reproduction for a year. Energetic impacts to males are generally
meaningless to population rates unless they cause death, and it takes
extreme energy deficits beyond what would ever be likely to result from
these activities to cause the death of an adult marine mammal. As noted
previously, however, foregone reproduction (especially for one year,
which is the maximum predicted because the small number anticipated in
any one year makes the probability that any individual would be
impacted in this way twice in seven years very low) has far less of an
impact on population rates than mortality and a small number of
instances of foregone reproduction is not expected to adversely affect
these two stocks through effects on annual rates of recruitment or
survival. No mortality is anticipated or authorized for any of these
stocks. One or two individuals from three stocks (see Table 24) are
expected to be taken by PTS annually of likely low severity, with this
unlikely to impact behaviors, opportunities, or detection capabilities
to a degree that would interfere with reproductive success or survival
of those individuals, let alone have effects on annual rates of
recruitment or survival. For these reasons, in consideration of all of
the effects of the Navy's activities combined, we have determined that
the authorized take will have a negligible impact on all of the stocks
of dolphins found in the vicinity of the HRC.
Dall's Porpoise
In Table 26 below for porpoises, we indicate the total annual
mortality, Level A and Level B harassment, and a number indicating the
instances of total take as a percentage of abundance. Table 26 is
unchanged from Table 79 in the 2018 HSTT final rule. For additional
information and analysis supporting the negligible-impact analysis, see
the Odontocetes discussion as well as the Dall's Porpoise discussion in
the Group and Species-Specific Analyses section of the 2018 HSTT final
rule, all of which remains applicable to this final rule unless
specifically noted.
Table 26--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Porpoises in the HSTT Study Area and Number Indicating the Instances of Total Take as a Percentage
of Stock Abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instances of total take as
represent separate individuals, especially for disturbance) --------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment
Species Stock ----------------------------------------------------- Total takes Navy Total take as Total take as
TTS (may (entire abundance NMFS SARS percentage of percentage of
Behavioral also Tissue Mortality study area) in action abundance total Navy total SAR
disturbance include PTS damage area abundance in abundance
disturbance) action area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Dall's porpoise.................. CA/OR/WA............ 14,482 29,891 209 0 0 44,582 2,054 25,750 2,170 173
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the SOCAL take estimates, because of the manner in which the Navy study area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state and beyond
and abundance may only be predicted within the U.S. EEZ, while the Navy study area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we compare
predicted takes to both the abundance estimates for the study area, as well as the SARs (as described in the Estimated Take of Marine Mammals section of the 2018 HSTT final rule).
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely affect the
CA/OR/WA stock of Dall's porpoises through effects
[[Page 41889]]
on annual rates of recruitment or survival.
Dall's porpoise is not listed under the ESA and the stock status is
considered ``unknown.'' No mortality or Level A harassment via tissue
damage from exposure to explosives is expected or authorized for this
stock.
Most Level B harassments to Dall's porpoise from hull-mounted sonar
(MF1) in the HSTT Study Area would result from received levels between
154 and 166 dB SPL (85 percent). While harbor porpoises have been
observed to be especially sensitive to human activity, the same types
of responses have not been observed in Dall's porpoises. Dall's
porpoises are typically notably longer than, and weigh more than twice
as much as, harbor porpoises, making them generally less likely to be
preyed upon and likely differentiating their behavioral repertoire
somewhat from harbor porpoises. Further, they are typically seen in
large groups and feeding aggregations, or exhibiting bow-riding
behaviors, which is very different from the group dynamics observed in
the more typically solitary, cryptic harbor porpoises, which are not
often seen bow-riding. For these reasons, Dall's porpoises are not
treated as an especially sensitive species (as compared to harbor
porpoises which have a lower threshold for Level B harassment by
behavioral disruption and more distant cutoff) but, rather, are
analyzed similarly to other odontocetes. Therefore, the majority of
Level B harassment takes are expected to be in the form of milder
responses compared to higher level exposures. As discussed more fully
in the 2018 HSTT final rule, we anticipate more severe effects from
takes when animals are exposed to higher received levels.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated total instances of take
compared to the abundance (measured against both the Navy-estimated
abundance and the SAR) is 2,170 and 173 percent, respectively. Given
the range of this stock (up the U.S. West Coast through Washington and
sometimes beyond the U.S. EEZ), this information suggests that some
smaller portion of the individuals of this stock will be taken, and
that some subset of individuals within the stock will be taken
repeatedly within the year (perhaps up to 42 days)--potentially over a
fair number of sequential days, especially where individuals spend
extensive time in the SOCAL range complex. Regarding the severity of
those individual Level B harassment takes by behavioral disruption, the
duration of any exposure is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
172 dB (i.e., of a lower, or sometimes moderate level, less likely to
evoke a severe response). While interrupted feeding bouts are a known
response and concern for odontocetes, we also know that there are often
viable alternative habitat options in the relative vicinity. However,
as noted, some of these takes could occur on a fair number of
sequential days for this stock.
The severity of TTS takes is expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere significantly with conspecific communication, echolocation,
or other important low-frequency cues. Therefore, the associated lost
opportunities and capabilities are not expected to impact reproduction
or survival. For these same reasons (low level and the likely frequency
band), while a small permanent loss of hearing sensitivity may include
some degree of energetic costs for compensating or may mean some small
loss of opportunities or detection capabilities, the estimated 209
Level A harassment takes by PTS for Dall's porpoise is unlikely to
impact behaviors, opportunities, or detection capabilities to a degree
that would interfere with reproductive success or survival for most
individuals. Because of the more substantial number of PTS takes,
however, we acknowledge that a few animals could potentially incur
permanent hearing loss of a higher degree that could potentially
interfere with their successful reproduction and growth. Given the
status of the stock, even if this occurred, it will not adversely
impact annual rates of recruitment or survival.
Altogether, the status of this stock is unknown, a portion of this
stock will likely be taken (at a low to occasionally moderate level)
over several days a year, and some smaller portion of the stock is
expected to be taken on a relatively moderate to high number of days
across the year, some of which could be sequential days. Though the
majority of impacts are expected to be of a lower to sometimes moderate
severity, the larger number of takes (in total and for certain
individuals) for the Dall's porpoise makes it more likely
(probabilistically) that a small number of individuals could be
interrupted during foraging in a manner and amount such that impacts to
the energy budgets of females (from either losing feeding opportunities
or expending considerable energy to find alternative feeding options)
could cause them to forego reproduction for a year. Energetic impacts
to males are generally meaningless to population rates unless they
cause death, and it takes extreme energy deficits beyond what would
ever be likely to result from these activities to cause the death of an
adult marine mammal. Similarly, we acknowledge the potential for this
to occur to a few individuals out of the 209 total that might incur a
higher degree of PTS. As noted previously, however, foregone
reproduction (especially for only one year in seven, which is the
maximum predicted because the small number anticipated in any one year
makes the probability that any individual will be impacted in this way
twice in seven years very low) has far less of an impact on population
rates than mortality. Further, the small number of instances of
foregone reproduction that could potentially result from PTS and/or the
few repeated, more severe Level B harassment takes by behavioral
disruption is not expected to adversely affect the stock through
effects on annual rates of recruitment or survival, especially given
the status of the species (not endangered or threatened; minimum
population of 25,170 just within the U.S. EEZ) and residual PBR of
Dall's porpoise (171.4). For these reasons, in consideration of all of
the effects of the Navy's activities combined, we have determined that
the authorized take will have a negligible impact on the CA/OR/WA stock
of Dall's porpoises.
Pinnipeds
In Tables 27 and 28 below for pinnipeds, we indicate the total
annual mortality, Level A and Level B harassment, and a number
indicating the instances of total take as a percentage of abundance.
Tables 27 and 28 have been updated from Tables 80 and 81 in the 2018
HSTT final rule, as appropriate, with the 2018 final SARs and updated
information on mortality, as discussed above. For additional
information and analysis supporting the negligible-impact analysis, see
the Pinnipeds discussion in the Group and Species-Specific Analyses
section of the 2018 HSTT final rule, all of which remains applicable to
this final rule unless specifically noted.
[[Page 41890]]
Table 27--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Pinnipeds in the HRC Portion of the HSTT Study Area and Number Indicating the Instances of Total
Take as a Percentage of Stock Abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes represent Total takes Abundance Instances of total take as
separate individuals, especially for disturbance) ---------------------------------------------------- percent of abundance
--------------------------------------------------------------------------- -------------------------------
Level B harassment Level A harassment Total Navy
Species -------------------------------------------------------------- Total takes Takes abundance Within EEZ Total take as EEZ take as
TTS (may (entire (within inside and Navy percentage of percentage of
Behavioral also Tissue Mortality study area) NAVY EEZ) outside abundance total Navy Navy EEZ
disturbance include PTS damage EEZ (HRC) (HRC) abundance abundance
disturbance) (HRC) (HRC)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hawaiian monk seal............... 143................. 62 1 0 0 206 195 169 169 122 115
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the HI take estimates, we compare predicted takes to abundance estimates generated from the same underlying density estimates (as described in the Estimated Take of Marine Mammals
section of the 2018 HSTT final rule), both in and outside of the U.S. EEZ. Because the portion of the Navy's study area inside the U.S. EEZ is generally concomitant with the area used to
generate the abundance estimates in the SARs, and the abundance predicted by the same underlying density estimates is the preferred abundance to use, there is no need to separately compare
the take to the SARs abundance estimate.
Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
Table 28--Annual Estimated Takes by Level B Harassment, Level A Harassment, and Mortality for Pinnipeds in the SOCAL Portion of the HSTT Study Area and Number Indicating the Instances of Total
Take as a Percentage of Stock Abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Instances of indicated types of incidental take (not all takes Total takes Abundance Instances of total take as
represent separate individuals, especially for disturbance) --------------------------------------- percent of abundance
------------------------------------------------------------------ -------------------------------
Level B harassment Level A harassment Navy
Species Stock ----------------------------------------------------- Total takes abundance Total take as Total take as
TTS (may (entire in action NMFS SARS percentage of percentage of
Behavioral also Tissue Mortality study area) area abundance total Navy total SAR
disturbance include PTS damage (SOCAL) abundance in abundance
disturbance) action area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion.............. U.S................. 113,419 4,789 87 9 0.71 118,305 4,085 257,606 2,896 46
Guadalupe fur seal............... Mexico.............. 1,442 15 0 0 0 1,457 1,171 20,000 124 7
Northern fur seal................ California.......... 15,167 124 1 0 0 15,292 886 14,050 1,726 109
Harbor seal...................... California.......... 2,450 2,994 8 0 0 5,452 321 30,968 1,698 18
Northern elephant seal........... California.......... 42,916 17,955 97 2 0 60,970 4,108 179,000 1,484 34
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Note: For the SOCAL take estimates, because of the manner in which the Navy action area overlaps the ranges of many MMPA stocks (i.e., a stock may range far north to Washington state and
beyond and abundance may only be predicted within the U.S. EEZ, while the Navy action area is limited to Southern California and northern Mexico, but extends beyond the U.S. EEZ), we compare
predicted takes to both the abundance estimates for the action area, as well as the SARs.
For mortality takes there is an annual average of 0.71 California sea lions (i.e., where five takes could potentially occur divided by seven years to get the annual number of mortalities/
serious injuries).
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely affect any
pinnipeds through effects on annual rates of recruitment or survival
for any of the affected stocks addressed in this section.
Five M/SI takes of California sea lions over the seven years of the
rule, or 0.71 mortality annually, are authorized, which falls well
below the insignificance threshold for residual PBR (13,685). No
mortality is anticipated or authorized for any other pinniped stocks. A
small number of Level A harassment takes by tissue damage are also
authorized for two stocks (9 and 2 for California sea lions and
northern elephant seals, respectively), which, as discussed in the 2018
HSTT final rule, could range in impact from minor to something just
less than M/SI that could seriously impact fitness. However, given the
Navy's mitigation, exposure at the closer to the source and more severe
end of the spectrum is less likely. Nevertheless, we cautiously assume
some moderate impact on the individuals that experience these small
numbers of take that could lower the individual's fitness within the
year such that a female (assuming a 50 percent chance of it being a
female) might forego reproduction for one year. As noted previously,
foregone reproduction has less of an impact on population rates than
death (especially for only one within seven years, which is the maximum
predicted because the small number anticipated in any one year makes
the probability that any individual would be impacted in this way twice
in seven years very low) and these low numbers of instances (especially
assuming the likelihood that only 50 percent of the takes would affect
females) are not expected to impact annual rates of recruitment or
survival, especially given the population sizes of these species.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), for Hawaiian monk seals and Guadalupe fur
seals, the two species listed under the ESA, the estimated instances of
takes as compared to the stock abundance does not exceed 124 percent,
which suggests that some portion of these two stocks would be taken on
one to a few days per year. For the remaining stocks, the number of
estimated total instances of take compared to the abundance (measured
against both the Navy-estimated abundance and the SAR) for these stocks
is 1,484 to 2,896 percent and 18 to 40 percent, respectively. Given the
ranges of these stocks (i.e., very large ranges, but with individuals
often staying in the vicinity of haul outs), this information suggests
that some very small portion of the individuals of these stocks will be
taken, but that some subset of individuals within the stock will be
taken repeatedly within the year (perhaps up to 58 days)--potentially
over a fair number of sequential days. Regarding the severity of those
individual Level B harassment takes by behavioral disruption, the
duration of any exposure is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
172 dB, which is considered a relatively low to occasionally moderate
level for pinnipeds. However, as noted, some of these takes could occur
on a fair number of sequential days for these stocks.
As described in the 2018 HSTT final rule, the Hawaii and 4-Islands
mitigation areas protect (by not using explosives and limiting MFAS
within them) a significant portion of the
[[Page 41891]]
designated critical habitat for Hawaiian monk seals in the Main
Hawaiian Islands, including all of it around the islands of Hawaii and
Lanai, most around Maui, and good portions around Molokai and
Kaho'olawe. As discussed, this protection reduces the overall number of
takes, and further reduces the severity of effects by minimizing
impacts near pupping beaches and in important foraging habitat.
The severity of TTS takes are expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere significantly with conspecific communication, echolocation,
or other important low-frequency cues that would affect the
individual's reproduction or survival. For these same reasons (low
level and frequency band), while a small permanent loss of hearing
sensitivity may include some degree of energetic costs for compensating
or may mean some small loss of opportunities or detection capabilities,
the one to eight estimated Level A harassment takes by PTS for monk
seals, northern fur seals, and harbor seals are unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of any
individuals, even if it were to be experienced by an animal that also
experiences one or more Level B harassment takes by behavioral
disruption. Because of the high number of PTS takes for California sea
lions and northern elephant seals (87 and 97, respectively); however,
we acknowledge that a few animals could potentially incur permanent
hearing loss of a higher degree that could potentially interfere with
their successful reproduction and growth. Given the status of the
stocks (along with residual PBRs of 13,686 and 4,873, respectively),
even if this occurred, it will not adversely impact annual rates of
recruitment or survival.
Altogether, any individual Hawaiian monk seal and Guadalupe fur
seal would be taken no more than a few days in any year, with none of
the expected take anticipated to affect individual reproduction or
survival, let alone annual rates of recruitment and survival. With all
other stocks, only a very small portion of the stock will be taken in
any manner. Of those taken, some individuals will be taken by Level B
harassment (at a moderate or sometimes low level) over several days a
year, and some smaller portion of those taken will be on a relatively
moderate to high number of days across the year (up to 58), a fair
number of which will likely be sequential days. Though the majority of
impacts are expected to be of a lower to sometimes moderate severity,
the repeated takes over a potentially fair number of sequential days
for some individuals makes it more likely that some number of
individuals could be interrupted during foraging in a manner and amount
such that impacts to the energy budgets of females (from either losing
feeding opportunities or expending considerable energy to find
alternative feeding options) could cause them to forego reproduction
for a year (energetic impacts to males are generally meaningless to
population rates unless they cause death, and it takes extreme energy
deficits beyond what would ever be likely to result from these
activities to cause the death of an adult marine mammal). As noted
previously, however, foregone reproduction (especially for only one
year within seven, which is the maximum predicted because the small
number anticipated in any one year makes the probability that any
individual will be impacted in this way twice in seven years very low)
has far less of an impact on population rates than mortality and a
relatively small number of instances of foregone reproduction (as
compared to the stock abundance and residual PBR) is not expected to
adversely affect the stock through effects on annual rates of
recruitment or survival, especially given the status of these stocks.
Accordingly, we do not anticipate the relatively small number of
individual Northern fur seals or harbor seals that might be taken over
repeated days within the year in a manner that results in one year of
foregone reproduction to adversely affect the stocks through effects on
rates of recruitment or survival, given the status of the stocks, which
are respectively increasing and stable with abundances of 14,050 and
30,968 and residual PBRs of 449 and 1,598.
For California sea lions, given the very high abundance and
residual PBR (257,606 and 13,685, respectively), as well as the
increasing status of the stock in the presence of similar levels of
Navy activities over past years--the impacts of 0.71 annual
mortalities, potential foregone reproduction for up to nine individuals
in a year taken by tissue damage, the effects of Level A harassment by
PTS, and some relatively small number of individuals taken as a result
of repeated behavioral harassment over a fair number of sequential days
are not expected to adversely affect the stock through effects on
annual rates of recruitment or survival. Similarly, for Northern
elephant seals, given the very high abundance and residual PBR (179,000
and 4,873, respectively), as well as the increasing status of the stock
in the presence of similar levels of Navy activities over past years,
the impacts of potential foregone reproduction for up to two
individuals in a year taken by tissue damage, the effects of Level A
harassment by PTS, and some relatively small number of individuals
taken as a result of repeated behavioral harassment over a fair number
of sequential days are not expected to adversely affect the stock
through effects on annual rates of recruitment or survival. For these
reasons, in consideration of all of the effects of the Navy's
activities combined (M/SI, Level A harassment, and Level B harassment),
we have determined that the authorized take will have a negligible
impact on all pinniped stocks.
Determination
The 2018 HSTT final rule included a detailed discussion of all of
the anticipated impacts on the affected species and stocks from serious
injury or mortality, Level A harassment, and Level B harassment;
impacts on habitat; and how the Navy's mitigation and monitoring
measures reduce the number and/or severity of adverse effects. We
evaluated how these impacts and mitigation measures are expected to
combine, annually, to affect individuals of each species and stock.
Those effects were then evaluated in the context of whether they are
reasonably likely to impact reproductive success or survivorship of
individuals and then, if so, further analyzed to determine whether
there would be effects on annual rates of recruitment or survival that
would adversely affect the species or stock.
As described above, the basis for the negligible impact
determination is the assessment of effects on annual rates of
recruitment and survival. Accordingly, the analysis included in the
2018 HSTT final rule used annual activity levels, the best available
science, and approved methods to predict the annual impacts to marine
mammals, which were then analyzed in the context of whether each
species or stock would incur more than a negligible impact based on
anticipated adverse impacts to annual rates of recruitment or survival.
As we have described above, none of the factors upon which the
conclusions in the 2018 HSTT final rule were based have changed.
Therefore, even though this final rule includes two additional years,
because our findings are based on annual rates of recruitment and
survival, and little has changed that would change our 2018 HSTT final
rule annual analyses, it is appropriate to rely on those analyses, as
well as the new
[[Page 41892]]
information and analysis discussed above, for this final rule.
Based on the applicable information and analysis from the 2018 HSTT
final rule as updated with the information and analysis contained
herein on the potential and likely effects of the specified activities
on the affected marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the incidental take from the specified
activities will have a negligible impact on all affected marine mammal
species and stocks.
Subsistence Harvest of Marine Mammals
There are no subsistence uses or harvest of marine mammals in the
geographic area affected by the specified activities. Therefore, NMFS
has determined that the total taking affecting species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Classification
Endangered Species Act
There are nine marine mammal species under NMFS jurisdiction that
are listed as endangered or threatened under the ESA with confirmed or
possible occurrence in the HSTT Study Area: Blue whale, fin whale, gray
whale, humpback whale (Mexico and Central America DPSs), sei whale,
sperm whale, false killer whale (Main Hawaiian Islands Insular DPS),
Hawaiian monk seal, and Guadalupe fur seal. There is also ESA-
designated critical habitat for Hawaiian monk seals and Main Hawaiian
Islands Insular false killer whales. The Navy consulted with NMFS
pursuant to section 7 of the ESA for HSTT activities. NMFS also
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. The
agency reviewed these specified conditions for this rulemaking and
determined that reinitiation of consultation was not warranted. The
incidental take statement that accompanied the 2018 Biological Opinion
has been amended to cover the seven-year period of the rule. The 2018
Biological Opinion for this action is available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
National Marine Sanctuaries Act
Federal agency actions that are likely to injure national marine
sanctuary resources are subject to consultation with the Office of
National Marine Sanctuaries (ONMS) under section 304(d) of the National
Marine Sanctuaries Act (NMSA). There are two national marine
sanctuaries in the HSTT Study Area, the Hawaiian Islands Humpback Whale
National Marine Sanctuary and the Channel Islands National Marine
Sanctuary. NMFS has fulfilled its responsibilities and completed all
requirements under the NMSA.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed actions and alternatives with respect
to potential impacts on the human environment. NMFS participated as a
cooperating agency on the 2018 HSTT FEIS/OEIS (published on October 26,
2018, https://www.hstteis.com) which evaluated impacts from Navy
training and testing activities in the HSTT Study Area for the
reasonably foreseeable future (including through 2025). In accordance
with 40 CFR 1506.3, NMFS independently reviewed and evaluated the 2018
HSTT FEIS/OEIS and determined that it was adequate and sufficient to
meet our responsibilities under NEPA for the issuance of the 2018 HSTT
final rule and associated LOAs. NOAA therefore adopted the 2018 HSTT
FEIS/OEIS.
In accordance with 40 CFR 1502.9 and the information and analysis
contained in this final rule, NMFS has determined that this final rule
and the subsequent LOAs will not result in impacts that were not fully
considered in the 2018 HSTT FEIS/OEIS. In addition, as indicated in
this final rule, the addition of two years of authorized incidental
take associated with the same activities conducted in the same
geographic area and having the same potential effects on the same
species and stocks is not a substantial change to the action, nor are
there significant new circumstances or information relevant to
environmental concerns or its impacts. Therefore, NMFS has determined
that the 2018 HSTT FEIS/OEIS and 2018 NMFS ROD remain valid, and there
is no need to supplement either document for this rulemaking.
Regulatory Flexibility Act
The Office of Management and Budget has determined that this rule
is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel
for Regulation of the Department of Commerce certified to the Chief
Counsel for Advocacy of the Small Business Administration during the
proposed rule stage that this action would not have a significant
economic impact on a substantial number of small entities. The factual
basis for the certification was published in the proposed rule and is
not repeated here. No comments were received regarding this
certification. As a result, a regulatory flexibility analysis was not
required and none was prepared.
Waiver of Delay in Effective Date Under the Administrative Procedure
Act
NMFS has determined that there is good cause under the
Administrative Procedure Act (5 U.S.C. 553(d)) to waive the 30-day
delay in the effective date for this rule. This rule relieves the Navy
from the restrictions of the take prohibitions under the MMPA by
granting the Navy's request for incidental take authorization under
MMPA section 101(a)(5)(A). In addition, there is good cause to waive
the 30-day effective date period because the regulations are identical
to those that the Navy has been implementing since November 2018
(except for a small number of minor, technical clarifications that do
not affect implementation). The only substantive change in the
regulations is to extend the mitigation measures and the monitoring and
reporting requirements for an additional two years, until December 20,
2025. The Navy is the only entity affected by the regulations, the Navy
specifically requested extension of the regulatory requirements for the
two years, and the Navy has fully agreed to these requirements for the
additional two years through its application for incidental take
authorization. The Navy is anticipating finalization of the rule. For
all these reasons, there is no need for a period of time following
publication of the rule for the Navy to bring its training and testing
operations into compliance with the requirements of the rule.
[[Page 41893]]
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: June 26, 2020
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 218 is amended
as follows:
PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 218 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Revise subpart H to read as follows:
Subpart H--Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
Southern California Training and Testing (HSTT)
Sec.
218.70 Specified activity and geographical region.
218.71 Effective dates.
218.72 Permissible methods of taking.
218.73 Prohibitions.
218.74 Mitigation requirements.
218.75 Requirements for monitoring and reporting.
218.76 Letters of Authorization.
218.77 Renewals and modifications of Letters of Authorization.
218.78-218.79 [Reserved]
Subpart H--Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
Southern California Training and Testing (HSTT)
Sec. 218.70 Specified activity and geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
for the taking of marine mammals that occurs in the area described in
paragraph (b) of this section and that occurs incidental to the
activities listed in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy under this subpart may
be authorized in Letters of Authorization (LOAs) only if it occurs
within the Hawaii-Southern California Training and Testing (HSTT) Study
Area, which includes established operating and warning areas across the
north-central Pacific Ocean, from the mean high tide line in Southern
California west to Hawaii and the International Date Line. The Study
Area includes the at-sea areas of three existing range complexes, the
Hawaii Range Complex (HRC), the Southern California Range Complex
(SOCAL), and the Silver Strand Training Complex, and overlaps a portion
of the Point Mugu Sea Range (PMSR). Also included in the Study Area are
Navy pierside locations in Hawaii and Southern California, Pearl
Harbor, San Diego Bay, and the transit corridor on the high seas where
sonar training and testing may occur.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the Navy conducting training and testing
activities, including:
(1) Training. (i) Amphibious warfare;
(ii) Anti-submarine warfare;
(iii) Electronic warfare;
(iv) Expeditionary warfare;
(v) Mine warfare;
(vi) Surface warfare; and
(vii) Pile driving.
(2) Testing. (i) Naval Air Systems Command Testing Activities;
(ii) Naval Sea Systems Command Testing Activities;
(iii) Office of Naval Research Testing Activities; and
(iv) Naval Information Warfare Systems Command.
Sec. 218.71 Effective dates.
Regulations in this subpart are effective from July 10, 2020,
through December 20, 2025.
Sec. 218.72 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. Sec. 216.106 of this
chapter and 218.76, the Holder of the LOAs (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 218.70(b) by Level A harassment and Level B
harassment associated with the use of active sonar and other acoustic
sources and explosives as well as serious injury or mortality
associated with vessel strikes and explosives, provided the activity is
in compliance with all terms, conditions, and requirements of these
regulations in this subpart and the applicable LOAs.
(b) The incidental take of marine mammals by the activities listed
in Sec. 218.70(c) is limited to the following species:
Table 1 to Sec. 218.72
----------------------------------------------------------------------------------------------------------------
Species Stock
----------------------------------------------------------------------------------------------------------------
Blue whale............................... Central North Pacific.
Blue whale............................... Eastern North Pacific.
Bryde's whale............................ Eastern Tropical Pacific.
Bryde's whale............................ Hawaii.
Fin whale................................ CA/OR/WA.
Fin whale................................ Hawaiian.
Humpback whale........................... CA/OR/WA.
Humpback whale........................... Central North Pacific.
Minke whale.............................. CA/OR/WA.
Minke whale.............................. Hawaii.
Sei whale................................ Eastern North Pacific.
Sei whale................................ Hawaii.
Gray whale............................... Eastern North Pacific.
Gray whale............................... Western North Pacific.
Sperm whale.............................. CA/OR/WA.
Sperm whale.............................. Hawaii.
Dwarf sperm whale........................ Hawaii.
Pygmy sperm whale........................ Hawaii.
Kogia whales............................. CA/OR/WA.
Baird's beaked whale..................... CA/OR/WA.
Blainville's beaked whale................ Hawaii.
Cuvier's beaked whale.................... CA/OR/WA.
Cuvier's beaked whale.................... Hawaii.
Longman's beaked whale................... Hawaii.
Mesoplodon spp........................... CA/OR/WA.
[[Page 41894]]
Bottlenose dolphin....................... California Coastal.
Bottlenose dolphin....................... CA/OR/WA Offshore.
Bottlenose dolphin....................... Hawaii Pelagic.
Bottlenose dolphin....................... Kauai & Niihau.
Bottlenose dolphin....................... Oahu.
Bottlenose dolphin....................... 4-Island.
Bottlenose dolphin....................... Hawaii.
False killer whale....................... Hawaii Pelagic.
False killer whale....................... Main Hawaiian Islands Insular.
False killer whale....................... Northwestern Hawaiian Islands.
Fraser's dolphin......................... Hawaii.
Killer whale............................. Eastern North Pacific (ENP) Offshore.
Killer whale............................. ENP Transient/West Coast Transient.
Killer whale............................. Hawaii.
Long-beaked common dolphin............... California.
Melon-headed whale....................... Hawaiian Islands.
Melon-headed whale....................... Kohala Resident.
Northern right whale dolphin............. CA/OR/WA.
Pacific white-sided dolphin.............. CA/OR/WA.
Pantropical spotted dolphin.............. Hawaii Island.
Pantropical spotted dolphin.............. Hawaii Pelagic.
Pantropical spotted dolphin.............. Oahu.
Pantropical spotted dolphin.............. 4-Island.
Pygmy killer whale....................... Hawaii.
Pygmy killer whale....................... Tropical.
Risso's dolphin.......................... CA/OR/WA.
Risso's dolphin.......................... Hawaii.
Rough-toothed dolphin.................... Hawaii.
Short-beaked common dolphin.............. CA/OR/WA.
Short-finned pilot whale................. CA/OR/WA.
Short-finned pilot whale................. Hawaii.
Spinner dolphin.......................... Hawaii Island.
Spinner dolphin.......................... Hawaii Pelagic.
Spinner dolphin.......................... Kauai & Niihau.
Spinner dolphin.......................... Oahu & 4-Island.
Striped dolphin.......................... CA/OR/WA.
Striped dolphin.......................... Hawaii.
Dall's porpoise.......................... CA/OR/WA.
California sea lion...................... U.S.
Guadalupe fur seal....................... Mexico.
Northern fur seal........................ California.
Harbor seal.............................. California.
Hawaiian monk seal....................... Hawaii.
Northern elephant seal................... California.
----------------------------------------------------------------------------------------------------------------
Note to Table 1: CA/OR/WA = California/Oregon/Washington.
Sec. 218.73 Prohibitions.
Notwithstanding incidental takings contemplated in Sec. 218.72(a)
and authorized by LOAs issued under Sec. Sec. 216.106 of this chapter
and 218.76, no person in connection with the activities listed in Sec.
218.70(c) may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. Sec. 216.106
of this chapter and 218.76;
(b) Take any marine mammal not specified in Sec. 218.72(b);
(c) Take any marine mammal specified in Sec. 218.72(b) in any
manner other than as specified in the LOAs; or
(d) Take a marine mammal specified in Sec. 218.72(b) if NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal.
Sec. 218.74 Mitigation requirements.
When conducting the activities identified in Sec. 218.70(c), the
mitigation measures contained in any LOAs issued under Sec. Sec.
216.106 of this chapter and 218.76 must be implemented. These
mitigation measures include, but are not limited to:
(a) Procedural mitigation. Procedural mitigation is mitigation that
the Navy must implement whenever and wherever an applicable training or
testing activity takes place within the HSTT Study Area for each
applicable activity category or stressor category and includes acoustic
stressors (i.e., active sonar, air guns, pile driving, weapons firing
noise), explosive stressors (i.e., sonobuoys, torpedoes, medium-caliber
and large-caliber projectiles, missiles and rockets, bombs, sinking
exercises, mines, anti-swimmer grenades, and mat weave and obstacle
loading), and physical disturbance and strike stressors (i.e., vessel
movement; towed in-water devices; small-, medium-, and large-caliber
non-explosive practice munitions; non-explosive missiles and rockets;
and non-explosive bombs and mine shapes).
(1) Environmental awareness and education. Appropriate Navy
personnel (including civilian personnel) involved in mitigation,
monitoring, and training or testing activity reporting under the
specified activities will complete one or more modules of the U.S. Navy
Afloat Environmental Compliance Training Series, as identified in their
career path training plan. Modules include: Introduction to the U.S.
Navy Afloat Environmental Compliance Training
[[Page 41895]]
Series, Marine Species Awareness Training; U.S. Navy Protective
Measures Assessment Protocol; and U.S. Navy Sonar Positional Reporting
System and Marine Mammal Incident Reporting.
(2) Active sonar. Active sonar includes low-frequency active sonar,
mid-frequency active sonar, and high-frequency active sonar. For
vessel-based activities, mitigation applies only to sources that are
positively controlled and deployed from manned surface vessels (e.g.,
sonar sources towed from manned surface platforms). For aircraft-based
activities, mitigation applies only to sources that are positively
controlled and deployed from manned aircraft that do not operate at
high altitudes (e.g., rotary-wing aircraft). Mitigation does not apply
to active sonar sources deployed from unmanned aircraft or aircraft
operating at high altitudes (e.g., maritime patrol aircraft).
(i) Number of Lookouts and observation platform--(A) Hull-mounted
sources. One Lookout for platforms with space or manning restrictions
while underway (at the forward part of a small boat or ship) and
platforms using active sonar while moored or at anchor (including
pierside); and two Lookouts for platforms without space or manning
restrictions while underway (at the forward part of the ship).
(B) Sources that are not hull-mounted sources. One Lookout on the
ship or aircraft conducting the activity.
(ii) Mitigation zone and requirements. (A) During the activity, at
1,000 yards (yd) Navy personnel must power down 6 decibels (dB), at 500
yd Navy personnel must power down an additional 4 dB (for a total of 10
dB), and at 200 yd Navy personnel must shut down for low-frequency
active sonar >=200 dB and hull-mounted mid-frequency active sonar; or
at 200 yd Navy personnel must shut down for low-frequency active sonar
<200 dB, mid-frequency active sonar sources that are not hull-mounted,
and high-frequency active sonar.
(B) Prior to the start of the activity (e.g., when maneuvering on
station), Navy personnel must observe the mitigation zone for floating
vegetation; if floating vegetation is observed, Navy personnel must
relocate or delay the start of active sonar transmission until the
mitigation zone is clear. Navy personnel must also observe the
mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must relocate or delay the start of active sonar
transmission.
(C) During the activity for low-frequency active sonar at or above
200 dB and hull-mounted mid-frequency active sonar, Navy personnel must
observe the mitigation zone for marine mammals and power down active
sonar transmission by 6 dB if marine mammals are observed within 1,000
yd of the sonar source; power down by an additional 4 dB (for a total
of 10 dB total) if marine mammals are observed within 500 yd of the
sonar source; and cease transmission if marine mammals are observed
within 200 yd of the sonar source.
(D) During the activity for low-frequency active sonar below 200
dB, mid-frequency active sonar sources that are not hull mounted, and
high-frequency active sonar, Navy personnel must observe the mitigation
zone for marine mammals and cease active sonar transmission if marine
mammals are observed within 200 yd of the sonar source.
(E) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing or powering up active sonar transmission) until
one of the following conditions has been met: The animal is observed
exiting the mitigation zone; the animal is thought to have exited the
mitigation zone based on a determination of its course, speed, and
movement relative to the sonar source; the mitigation zone has been
clear from any additional sightings for 10 minutes (min) for aircraft-
deployed sonar sources or 30 min for vessel-deployed sonar sources; for
mobile activities, the active sonar source has transited a distance
equal to double that of the mitigation zone size beyond the location of
the last sighting; or for activities using hull-mounted sonar where a
dolphin(s) is observed in the mitigation zone, the Lookout concludes
that the dolphin(s) is deliberately closing in on the ship to ride the
ship's bow wave, and is therefore out of the main transmission axis of
the sonar (and there are no other marine mammal sightings within the
mitigation zone).
(3) Air guns--(i) Number of Lookouts and observation platform. One
Lookout positioned on a ship or pierside.
(ii) Mitigation zone and requirements. 150 yd around the air gun.
(A) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if floating vegetation is observed, Navy
personnel must relocate or delay the start until the mitigation zone is
clear. Navy personnel must also observe the mitigation zone for marine
mammals; if marine mammals are observed, Navy personnel must relocate
or delay the start of air gun use.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease air gun use.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing air gun use) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the air
gun; the mitigation zone has been clear from any additional sightings
for 30 min; or for mobile activities, the air gun has transited a
distance equal to double that of the mitigation zone size beyond the
location of the last sighting.
(4) Pile driving. Pile driving and pile extraction sound during
Elevated Causeway System training.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on the shore, the elevated causeway, or a small boat.
(ii) Mitigation zone and requirements. 100 yd around the pile
driver.
(A) Prior to the initial start of the activity (for 30 min), Navy
personnel must observe the mitigation zone for floating vegetation; if
floating vegetation is observed, Navy personnel must delay the start
until the mitigation zone is clear. Navy personnel also must observe
the mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must delay the start of pile driving or vibratory pile
extraction.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease impact pile driving or vibratory pile extraction.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. The Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing pile driving or pile extraction) until one of the
following conditions has been met: The animal is observed exiting the
mitigation zone;
[[Page 41896]]
the animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the pile
driving location; or the mitigation zone has been clear from any
additional sightings for 30 min.
(5) Weapons firing noise. Weapons firing noise associated with
large-caliber gunnery activities.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on the ship conducting the firing. Depending on the
activity, the Lookout could be the same as the one provided for under
``Explosive medium-caliber and large-caliber projectiles'' or under
``Small-, medium-, and large-caliber non-explosive practice munitions''
in paragraphs (a)(8)(i) and (a)(18)(i) of this section.
(ii) Mitigation zone and requirements. Thirty degrees on either
side of the firing line out to 70 yd from the muzzle of the weapon
being fired.
(A) Prior to the start of the activity, Navy personnel must observe
the mitigation zone for floating vegetation; if floating vegetation is
observed, Navy personnel must relocate or delay the start of weapons
firing until the mitigation zone is clear. Navy personnel must also
observe the mitigation zone for marine mammals; if marine mammals are
observed, Navy personnel must relocate or delay the start of weapons
firing.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease weapons firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing weapons firing) until one of the following
conditions has been met: The animal is observed exiting the mitigation
zone; the animal is thought to have exited the mitigation zone based on
a determination of its course, speed, and movement relative to the
firing ship; the mitigation zone has been clear from any additional
sightings for 30 min; or for mobile activities, the firing ship has
transited a distance equal to double that of the mitigation zone size
beyond the location of the last sighting.
(6) Explosive sonobuoys--(i) Number of Lookouts and observation
platform. One Lookout must be positioned in an aircraft or on a small
boat. If additional platforms are participating in the activity, Navy
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. 600 yd around an explosive
sonobuoy.
(A) Prior to the initial start of the activity (e.g., during
deployment of a sonobuoy field, which typically lasts 20-30 min), Navy
personnel must observe the mitigation zone for floating vegetation; if
floating vegetation is observed, Navy personnel must relocate or delay
the start of sonobuoy or source/receiver pair detonations until the
mitigation zone is clear. Navy personnel must conduct passive acoustic
monitoring for marine mammals and use information from detections to
assist visual observations. Navy personnel also must visually observe
the mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must relocate or delay the start of sonobuoy or source/
receiver pair detonations.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease sonobuoy or source/receiver pair detonations.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
sonobuoy; or the mitigation zone has been clear from any additional
sightings for 10 min when the activity involves aircraft that have fuel
constraints (e.g., helicopter), or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(D) After completion of the activity (e.g., prior to maneuvering
off station), when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(7) Explosive torpedoes--(i) Number of Lookouts and observation
platform. One Lookout positioned in an aircraft. If additional
platforms are participating in the activity, Navy personnel positioned
in those assets (e.g., safety observers, evaluators) must support
observing the mitigation zone for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements. 2,100 yd around the intended
impact location.
(A) Prior to the initial start of the activity (e.g., during
deployment of the target), Navy personnel must observe the mitigation
zone for floating vegetation and jellyfish aggregations; if floating
vegetation or jellyfish aggregations are observed, Navy personnel must
relocate or delay the start of firing until the mitigation zone is
clear. Navy personnel must conduct passive acoustic monitoring for
marine mammals and use the information from detections to assist visual
observations. Navy personnel also must visually observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must relocate or delay the start of firing.
(B) During the activity, Navy personnel must observe for marine
mammals and jellyfish aggregations; if marine mammals or jellyfish
aggregations are observed, Navy personnel must cease firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; or the mitigation zone has been clear from
any additional sightings for 10 min when the activity involves aircraft
that have fuel constraints, or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(D) After completion of the activity (e.g., prior to maneuvering
off station), Navy personnel must when practical (e.g., when platforms
are not constrained by fuel restrictions or mission-essential follow-on
commitments), observe for marine mammals in the vicinity of where
[[Page 41897]]
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(8) Explosive medium-caliber and large-caliber projectiles. Gunnery
activities using explosive medium-caliber and large-caliber
projectiles. Mitigation applies to activities using a surface target.
(i) Number of Lookouts and observation platform. One Lookout must
be on the vessel or aircraft conducting the activity. For activities
using explosive large-caliber projectiles, depending on the activity,
the Lookout could be the same as the one described in ``Weapons firing
noise'' in paragraph (a)(5)(i) of this section. If additional platforms
are participating in the activity, Navy personnel positioned in those
assets (e.g., safety observers, evaluators) must support observing the
mitigation zone for applicable biological resources while performing
their regular duties.
(ii) Mitigation zone and requirements. (A) 200 yd around the
intended impact location for air-to-surface activities using explosive
medium-caliber projectiles.
(B) 600 yd around the intended impact location for surface-to-
surface activities using explosive medium-caliber projectiles.
(C) 1,000 yd around the intended impact location for surface-to-
surface activities using explosive large-caliber projectiles.
(D) Prior to the start of the activity (e.g., when maneuvering on
station), Navy personnel must observe the mitigation zone for floating
vegetation; if floating vegetation is observed, Navy personnel must
relocate or delay the start of firing until the mitigation zone is
clear. Navy personnel also must observe the mitigation zone for marine
mammals; if marine mammals are observed, Navy personnel must relocate
or delay the start of firing.
(E) During the activity, Navy personnel must observe for marine
mammals; if marine mammals are observed, Navy personnel must cease
firing.
(F) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; the mitigation zone has been clear from any
additional sightings for 10 min for aircraft-based firing or 30 min for
vessel-based firing; or for activities using mobile targets, the
intended impact location has transited a distance equal to double that
of the mitigation zone size beyond the location of the last sighting.
(G) After completion of the activity (e.g., prior to maneuvering
off station), Navy personnel must, when practical (e.g., when platforms
are not constrained by fuel restrictions or mission-essential follow-on
commitments), observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(9) Explosive missiles and rockets. Aircraft-deployed explosive
missiles and rockets. Mitigation applies to activities using a surface
target.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned in an aircraft. If additional platforms are participating
in the activity, Navy personnel positioned in those assets (e.g.,
safety observers, evaluators) must support observing the mitigation
zone for applicable biological resources while performing their regular
duties.
(ii) Mitigation zone and requirements. (A) 900 yd around the
intended impact location for missiles or rockets with 0.6-20 lb net
explosive weight.
(B) 2,000 yd around the intended impact location for missiles with
21-500 lb net explosive weight.
(C) Prior to the initial start of the activity (e.g., during a fly-
over of the mitigation zone), Navy personnel must observe the
mitigation zone for floating vegetation; if floating vegetation is
observed, Navy personnel must relocate or delay the start of firing
until the mitigation zone is clear. Navy personnel also must observe
the mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must relocate or delay the start of firing.
(D) During the activity, Navy personnel must observe for marine
mammals; if marine mammals are observed, Navy personnel must cease
firing.
(E) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; or the mitigation zone has been clear from
any additional sightings for 10 min when the activity involves aircraft
that have fuel constraints, or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(F) After completion of the activity (e.g., prior to maneuvering
off station), Navy personnel must, when practical (e.g., when platforms
are not constrained by fuel restrictions or mission-essential follow-on
commitments), observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets will assist in the visual
observation of the area where detonations occurred.
(10) Explosive bombs--(i) Number of Lookouts and observation
platform. One Lookout must be positioned in an aircraft conducting the
activity. If additional platforms are participating in the activity,
Navy personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. 2,500 yd around the intended
target.
(A) Prior to the initial start of the activity (e.g., when arriving
on station), Navy personnel must observe the mitigation zone for
floating vegetation; if floating vegetation is observed, Navy personnel
must relocate or delay the start of bomb deployment until the
mitigation zone is clear. Navy personnel also must observe the
mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must relocate or delay the start of bomb deployment.
(B) During the activity (e.g., during target approach), Navy
personnel must
[[Page 41898]]
observe the mitigation zone for marine mammals; if marine mammals are
observed, Navy personnel must cease bomb deployment.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing bomb deployment) until one of the following
conditions has been met: The animal is observed exiting the mitigation
zone; the animal is thought to have exited the mitigation zone based on
a determination of its course, speed, and movement relative to the
intended target; the mitigation zone has been clear from any additional
sightings for 10 min; or for activities using mobile targets, the
intended target has transited a distance equal to double that of the
mitigation zone size beyond the location of the last sighting.
(D) After completion of the activity (e.g., prior to maneuvering
off station), Navy personnel must, when practical (e.g., when platforms
are not constrained by fuel restrictions or mission-essential follow-on
commitments), observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(11) Sinking exercises--(i) Number of Lookouts and observation
platform. Two Lookouts (one must be positioned in an aircraft and one
must be positioned on a vessel). If additional platforms are
participating in the activity, Navy personnel positioned in those
assets (e.g., safety observers, evaluators) must support observing the
mitigation zone for applicable biological resources while performing
their regular duties.
(ii) Mitigation zone and requirements. 2.5 nautical miles (nmi)
around the target ship hulk.
(A) Prior to the initial start of the activity (90 min prior to the
first firing), Navy personnel must conduct aerial observations of the
mitigation zone for floating vegetation and jellyfish aggregations; if
floating vegetation or jellyfish aggregations are observed, Navy
personnel must delay the start of firing until the mitigation zone is
clear. Navy personnel also must conduct aerial observations of the
mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must delay the start of firing.
(B) During the activity, Navy personnel must conduct passive
acoustic monitoring for marine mammals and use the information from
detections to assist visual observations. Navy personnel must visually
observe the mitigation zone for marine mammals from the vessel; if
marine mammals are observed, Navy personnel must cease firing.
Immediately after any planned or unplanned breaks in weapons firing of
longer than two hours, Navy personnel must observe the mitigation zone
for marine mammals from the aircraft and vessel; if marine mammals are
observed, Navy personnel must delay recommencement of firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the target
ship hulk; or the mitigation zone has been clear from any additional
sightings for 30 min.
(D) After completion of the activity (for two hours after sinking
the vessel or until sunset, whichever comes first), Navy personnel must
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed, Navy
personnel must follow established incident reporting procedures. If
additional platforms are supporting this activity (e.g., providing
range clearance), these Navy assets will assist in the visual
observation of the area where detonations occurred.
(12) Explosive mine countermeasure and neutralization activities--
(i) Number of Lookouts and observation platform. (A) One Lookout must
be positioned on a vessel or in an aircraft when implementing the
smaller mitigation zone.
(B) Two Lookouts (one must be positioned in an aircraft and one
must be on a small boat) when implementing the larger mitigation zone.
(C) If additional platforms are participating in the activity, Navy
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. (A) 600 yd around the
detonation site for activities using 0.1-5 lb net explosive weight.
(B) 2,100 yd around the detonation site for activities using 6-650
lb net explosive weight (including high explosive target mines).
(C) Prior to the initial start of the activity (e.g., when
maneuvering on station; typically, 10 min when the activity involves
aircraft that have fuel constraints, or 30 min when the activity
involves aircraft that are not typically fuel constrained), Navy
personnel must observe the mitigation zone for floating vegetation; if
floating vegetation is observed, Navy personnel must relocate or delay
the start of detonations until the mitigation zone is clear. Navy
personnel also must observe the mitigation zone for marine mammals; if
marine mammals are observed, Navy personnel must relocate or delay the
start of detonations.
(D) During the activity, Navy personnel must observe the mitigation
zone for marine mammals, concentrations of seabirds, and individual
foraging seabirds; if marine mammals, concentrations of seabirds, or
individual foraging seabirds are observed, Navy personnel must cease
detonations.
(E) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity or a sighting of seabird
concentrations or individual foraging seabirds during the activity.
Navy personnel must allow a sighted animal to leave the mitigation zone
prior to the initial start of the activity (by delaying the start) or
during the activity (by not recommencing detonations) until one of the
following conditions has been met: The animal is observed exiting the
mitigation zone; the animal is thought to have exited the mitigation
zone based on a determination of its course, speed, and movement
relative to detonation site; or the mitigation zone has been clear from
any additional sightings for 10 min when the activity involves aircraft
that have fuel constraints, or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(F) After completion of the activity (typically 10 min when the
activity involves aircraft that have fuel constraints, or 30 min when
the activity involves aircraft that are not typically fuel
constrained), Navy personnel must observe for marine mammals in the
vicinity of where detonations occurred; if any injured or dead marine
mammals are observed, Navy personnel must
[[Page 41899]]
follow established incident reporting procedures. If additional
platforms are supporting this activity (e.g., providing range
clearance), these Navy assets must assist in the visual observation of
the area where detonations occurred.
(13) Explosive mine neutralization activities involving Navy
divers--(i) Number of Lookouts and observation platform. (A) Two
Lookouts (two small boats with one Lookout each, or one Lookout must be
on a small boat and one must be in a rotary-wing aircraft) when
implementing the smaller mitigation zone.
(B) Four Lookouts (two small boats with two Lookouts each), and a
pilot or member of an aircrew must serve as an additional Lookout if
aircraft are used during the activity, when implementing the larger
mitigation zone.
(C) All divers placing the charges on mines will support the
Lookouts while performing their regular duties and will report
applicable sightings to their supporting small boat or Range Safety
Officer.
(D) If additional platforms are participating in the activity, Navy
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. (A) 500 yd around the
detonation site during activities under positive control using 0.1-20
lb net explosive weight.
(B) 1,000 yd around the detonation site during all activities using
time-delay fuses (0.1-29 lb net explosive weight) and during activities
under positive control using 21-60 lb net explosive weight charges.
(C) Prior to the initial start of the activity (e.g., when
maneuvering on station for activities under positive control; 30 min
for activities using time-delay firing devices), Navy personnel must
observe the mitigation zone for floating vegetation; if floating
vegetation is observed, Navy personnel must relocate or delay the start
of detonations or fuse initiation until the mitigation zone is clear.
Navy personnel also must observe the mitigation zone for marine
mammals; if marine mammals are observed, Navy personnel must relocate
or delay the start of detonations or fuse initiation.
(D) During the activity, Navy personnel must observe the mitigation
zone for marine mammals, concentrations of seabirds, and individual
foraging seabirds (in the water and not on shore); if marine mammals,
concentrations of seabirds, or individual foraging seabirds are
observed, Navy personnel must cease detonations or fuse initiation. To
the maximum extent practicable depending on mission requirements,
safety, and environmental conditions, Navy personnel must position
boats near the mid-point of the mitigation zone radius (but outside of
the detonation plume and human safety zone), must position themselves
on opposite sides of the detonation location (when two boats are used),
and must travel in a circular pattern around the detonation location
with one Lookout observing inward toward the detonation site and the
other observing outward toward the perimeter of the mitigation zone. If
used, Navy aircraft must travel in a circular pattern around the
detonation location to the maximum extent practicable. Navy personnel
must not set time-delay firing devices (0.1-29 lb. net explosive
weight) to exceed 10 min.
(E) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity or a sighting of seabird
concentrations or individual foraging seabirds during the activity.
Navy personnel must allow a sighted animal to leave the mitigation zone
prior to the initial start of the activity (by delaying the start) or
during the activity (by not recommencing detonations) until one of the
following conditions has been met: The animal is observed exiting the
mitigation zone; the animal is thought to have exited the mitigation
zone based on a determination of its course, speed, and movement
relative to the detonation site; or the mitigation zone has been clear
from any additional sightings for 10 min during activities under
positive control with aircraft that have fuel constraints, or 30 min
during activities under positive control with aircraft that are not
typically fuel constrained and during activities using time-delay
firing devices.
(F) After completion of an activity, the Navy must observe for
marine mammals for 30 min. Navy personnel must observe for marine
mammals in the vicinity of where detonations occurred; if any injured
or dead marine mammals are observed, Navy personnel must follow
established incident reporting procedures. If additional platforms are
supporting this activity (e.g., providing range clearance), these Navy
assets must assist in the visual observation of the area where
detonations occurred.
(14) Maritime security operations--anti-swimmer grenades--(i)
Number of Lookouts and observation platform. One Lookout must be
positioned on the small boat conducting the activity. If additional
platforms are participating in the activity, Navy personnel positioned
in those assets (e.g., safety observers, evaluators) must support
observing the mitigation zone for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements. 200 yd around the intended
detonation location.
(A) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if floating vegetation is observed, Navy
personnel must relocate or delay the start of detonations until the
mitigation zone is clear. Navy personnel also must observe the
mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must relocate or delay the start of detonations.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease detonations.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended detonation location; the mitigation zone has been clear from
any additional sightings for 30 min; or the intended detonation
location has transited a distance equal to double that of the
mitigation zone size beyond the location of the last sighting.
(D) After completion of the activity (e.g., prior to maneuvering
off station), Navy personnel must, when practical (e.g., when platforms
are not constrained by fuel restrictions or mission-essential follow-on
commitments), observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets will assist in the visual
observation of the area where detonations occurred.
(15) Underwater demolition multiple charge--mat weave and obstacle
loading exercises--(i) Number of Lookouts and observation platform. Two
Lookouts (one must be positioned
[[Page 41900]]
on a small boat and one must be positioned on shore from an elevated
platform). If additional platforms are participating in the activity,
Navy personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. 700 yd around the intended
detonation location.
(A) Prior to the initial start of the activity, or 30 min prior to
the first detonation, the Lookout positioned on a small boat must
observe the mitigation zone for floating vegetation and marine mammals;
if floating vegetation or marine mammals are observed, Navy personnel
must delay the start of detonations until the mitigation zone is clear.
For 10 min prior to the first detonation, the Lookout positioned on
shore must use binoculars to observe the mitigation zone for marine
mammals; if marine mammals are observed, Navy personnel must delay the
start of detonations.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease detonations.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
detonation location; or the mitigation zone has been clear from any
additional sightings for 10 min (as determined by the Navy shore
observer).
(D) After completion of the activity (for 30 min), the Lookout
positioned on a small boat must observe for marine mammals in the
vicinity of where detonations occurred; if any injured or dead marine
mammals are observed, Navy personnel must follow established incident
reporting procedures. If additional platforms are supporting this
activity (e.g., providing range clearance), these Navy assets must
assist in the visual observation of the area where detonations
occurred.
(16) Vessel movement. The mitigation will not be applied if: The
vessel's safety is threatened; the vessel is restricted in its ability
to maneuver (e.g., during launching and recovery of aircraft or landing
craft, during towing activities, when mooring); the vessel is operated
autonomously; or when impracticable based on mission requirements
(e.g., during Amphibious Assault--Battalion Landing exercise).
(i) Number of Lookouts and observation platform. One Lookout must
be on the vessel that is underway.
(ii) Mitigation zone and requirements. (A) 500 yd around whales.
(B) 200 yd around all other marine mammals (except bow-riding
dolphins and pinnipeds hauled out on man-made navigational structures,
port structures, and vessels).
(iii) During the activity. When underway Navy personnel must
observe the mitigation zone for marine mammals; if marine mammals are
observed, Navy personnel must maneuver to maintain distance.
(iv) Incident reporting procedures. If a marine mammal vessel
strike occurs, Navy personnel must follow the established incident
reporting procedures.
(17) Towed in-water devices. Mitigation applies to devices that are
towed from a manned surface platform or manned aircraft. The mitigation
will not be applied if the safety of the towing platform or in-water
device is threatened.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on a manned towing platform.
(ii) Mitigation zone and requirements. 250 yd around marine
mammals.
(iii) During the activity. During the activity (i.e., when towing
an in-water device), Navy personnel must observe the mitigation zone
for marine mammals; if marine mammals are observed, Navy personnel must
maneuver to maintain distance.
(18) Small-, medium-, and large-caliber non-explosive practice
munitions. Mitigation applies to activities using a surface target.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on the platform conducting the activity. Depending on the
activity, the Lookout could be the same as the one described for
``Weapons firing noise'' in paragraph (a)(5)(i) of this section.
(ii) Mitigation zone and requirements. 200 yd around the intended
impact location.
(A) Prior to the start of the activity (e.g., when maneuvering on
station), Navy personnel must observe the mitigation zone for floating
vegetation; if floating vegetation is observed, Navy personnel must
relocate or delay the start of firing until the mitigation zone is
clear. Navy personnel also must observe the mitigation zone for marine
mammals; if marine mammals are observed, Navy personnel must relocate
or delay the start of firing.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; the mitigation zone has been clear from any
additional sightings for 10 min for aircraft-based firing or 30 min for
vessel-based firing; or for activities using a mobile target, the
intended impact location has transited a distance equal to double that
of the mitigation zone size beyond the location of the last sighting.
(19) Non-explosive missiles and rockets. Aircraft-deployed non-
explosive missiles and rockets. Mitigation applies to activities using
a surface target.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned in an aircraft.
(ii) Mitigation zone and requirements. 900 yd around the intended
impact location.
(A) Prior to the initial start of the activity (e.g., during a fly-
over of the mitigation zone), Navy personnel must observe the
mitigation zone for floating vegetation; if floating vegetation is
observed, Navy personnel must relocate or delay the start of firing
until the mitigation zone is clear. Navy personnel also must observe
the mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must relocate or delay the start of firing.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if marine mammals are observed, Navy personnel
must cease firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting prior to or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the
[[Page 41901]]
activity (by delaying the start) or during the activity (by not
recommencing firing) until one of the following conditions has been
met: The animal is observed exiting the mitigation zone; the animal is
thought to have exited the mitigation zone based on a determination of
its course, speed, and movement relative to the intended impact
location; or the mitigation zone has been clear from any additional
sightings for 10 min when the activity involves aircraft that have fuel
constraints, or 30 min when the activity involves aircraft that are not
typically fuel constrained.
(20) Non-explosive bombs and mine shapes. Non-explosive bombs and
non-explosive mine shapes during mine laying activities.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned in an aircraft.
(ii) Mitigation zone and requirements. 1,000 yd around the intended
target.
(A) Prior to the initial start of the activity (e.g., when arriving
on station), Navy personnel must observe the mitigation zone for
floating vegetation; if floating vegetation is observed, Navy personnel
must relocate or delay the start of bomb deployment or mine laying
until the mitigation zone is clear. Navy personnel also must observe
the mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must relocate or delay the start of bomb deployment or
mine laying.
(B) During the activity (e.g., during approach of the target or
intended minefield location), Navy personnel must observe the
mitigation zone for marine mammals and, if marine mammals are observed,
Navy personnel must cease bomb deployment or mine laying.
(C) Commencement/recommencement conditions after a marine mammal
sighting prior to or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing bomb deployment or mine laying) until one of the
following conditions has been met: The animal is observed exiting the
mitigation zone; the animal is thought to have exited the mitigation
zone based on a determination of its course, speed, and movement
relative to the intended target or minefield location; the mitigation
zone has been clear from any additional sightings for 10 min; or for
activities using mobile targets, the intended target has transited a
distance equal to double that of the mitigation zone size beyond the
location of the last sighting.
(b) Mitigation areas. In addition to procedural mitigation, Navy
personnel must implement mitigation measures within mitigation areas to
avoid or reduce potential impacts on marine mammals.
(1) Mitigation areas for marine mammals in the Hawaii Range Complex
for sonar, explosives, and vessel strikes--(i) Mitigation area
requirements--(A) Hawaii Island Mitigation Area (year-round)--(1)
Except as provided in paragraph (b)(1)(i)(A)(2) of this section, Navy
personnel must not conduct more than 300 hours of MF1 surface ship
hull-mounted mid-frequency active sonar or 20 hours of MF4 dipping
sonar annually, or use explosives that could potentially result in
takes of marine mammals during training and testing.
(2) Should national security require conduct of more than 300 hours
of MF1 surface ship hull-mounted mid-frequency active sonar or 20 hours
of MF4 dipping sonar, or use of explosives that could potentially
result in the take of marine mammals during training or testing, Naval
units must obtain permission from the appropriate designated Command
authority prior to commencement of the activity. Navy personnel must
provide NMFS with advance notification and include the information
(e.g., sonar hours or explosives usage) in its annual activity reports
submitted to NMFS.
(B) 4-Islands Region Mitigation Area (November 15-April 15 for
active sonar; year-round for explosives)--(1) Except as provided in
paragraph (b)(1)(i)(B)(2) of this section, Navy personnel must not use
MF1 surface ship hull-mounted mid-frequency active sonar or explosives
that could potentially result in takes of marine mammals during
training and testing.
(2) Should national security require use of MF1 surface ship hull-
mounted mid-frequency active sonar or explosives that could potentially
result in the take of marine mammals during training or testing, Naval
units must obtain permission from the appropriate designated Command
authority prior to commencement of the activity. Navy personnel must
provide NMFS with advance notification and include the information
(e.g., sonar hours or explosives usage) in its annual activity reports
submitted to NMFS.
(C) Humpback Whale Special Reporting Areas (December 15-April 15).
Navy personnel must report the total hours of surface ship hull-mounted
mid-frequency active sonar used in the special reporting areas in its
annual training and testing activity reports submitted to NMFS.
(D) Humpback Whale Awareness Notification Message Area (November-
April). (1) Navy personnel must issue a seasonal awareness notification
message to alert ships and aircraft operating in the area to the
possible presence of concentrations of large whales, including humpback
whales.
(2) To maintain safety of navigation and to avoid interactions with
large whales during transits, Navy personnel must instruct vessels to
remain vigilant to the presence of large whale species (including
humpback whales).
(3) Platforms must use the information from the awareness
notification message to assist their visual observation of applicable
mitigation zones during training and testing activities and to aid in
the implementation of procedural mitigation.
(ii) [Reserved]
(2) Mitigation areas for marine mammals in the Southern California
portion of the study area for sonar, explosives, and vessel strikes--
(i) Mitigation area requirements--(A) San Diego Arc, San Nicolas
Island, and Santa Monica/Long Beach Mitigation Areas (June 1-October
31). (1) Except as provided in paragraph (b)(2)(i)(A)(2) of this
section, Navy personnel must not conduct more than a total of 200 hours
of MF1 surface ship hull-mounted mid-frequency active sonar in the
combined areas, excluding normal maintenance and systems checks, during
training and testing.
(2) Should national security require conduct of more than 200 hours
of MF1 surface ship hull-mounted mid-frequency active sonar in the
combined areas during training and testing (excluding normal
maintenance and systems checks), Naval units must obtain permission
from the appropriate designated Command authority prior to commencement
of the activity. Navy personnel must provide NMFS with advance
notification and include the information (e.g., sonar hours) in its
annual activity reports submitted to NMFS.
(3) Except as provided in paragraph (b)(2)(i)(A)(4) of this
section, within the San Diego Arc Mitigation Area, Navy personnel must
not use explosives that could potentially result in the take of marine
mammals during large-caliber gunnery, torpedo, bombing, and missile
(including 2.75-inch rockets) activities during training and testing.
(4) Should national security require use of explosives that could
potentially result in the take of marine mammals during large-caliber
gunnery, torpedo,
[[Page 41902]]
bombing, and missile (including 2.75-inch rockets) activities during
training or testing within the San Diego Arc Mitigation Area, Naval
units must obtain permission from the appropriate designated Command
authority prior to commencement of the activity. Navy personnel must
provide NMFS with advance notification and include the information
(e.g., explosives usage) in its annual activity reports submitted to
NMFS.
(5) Except as provided in paragraph (b)(2)(i)(A)(6) of this
section, within the San Nicolas Island Mitigation Area, Navy personnel
must not use explosives that could potentially result in the take of
marine mammals during mine warfare, large-caliber gunnery, torpedo,
bombing, and missile (including 2.75-inch rockets) activities during
training.
(6) Should national security require use of explosives that could
potentially result in the take of marine mammals during mine warfare,
large-caliber gunnery, torpedo, bombing, and missile (including 2.75-
inch rockets) activities during training in the San Nicolas Island
Mitigation Area, Naval units must obtain permission from the
appropriate designated Command authority prior to commencement of the
activity. Navy personnel must provide NMFS with advance notification
and include the information (e.g., explosives usage) in its annual
activity reports submitted to NMFS.
(7) Except as provided in paragraph (b)(2)(i)(A)(8) of this
section, within the Santa Monica/Long Beach Mitigation Area, Navy
personnel must not use explosives that could potentially result in the
take of marine mammals during mine warfare, large-caliber gunnery,
torpedo, bombing, and missile (including 2.75-inch rockets) activities
during training and testing.
(8) Should national security require use of explosives that could
potentially result in the take of marine mammals during mine warfare,
large-caliber gunnery, torpedo, bombing, and missile (including 2.75-
inch rockets) activities during training or testing in the Santa
Monica/Long Beach Mitigation Area, Naval units must obtain permission
from the appropriate designated Command authority prior to commencement
of the activity. Navy personnel must provide NMFS with advance
notification and include the information (e.g., explosives usage) in
its annual activity reports submitted to NMFS.
(B) Santa Barbara Island Mitigation Area (year-round). (1) Except
as provided in paragraph (b)(2)(i)(B)(2) of this section, Navy
personnel must not use MF1 surface ship hull-mounted mid-frequency
active sonar during training or testing, or explosives that could
potentially result in the take of marine mammals during medium-caliber
or large-caliber gunnery, torpedo, bombing, and missile (including
2.75-inch rockets) activities during training.
(2) Should national security require use of MF1 surface ship hull-
mounted mid-frequency active sonar during training or testing, or
explosives that could potentially result in the take of marine mammals
during medium-caliber or large-caliber gunnery, torpedo, bombing, and
missile (including 2.75-inch rockets) activities during training, Naval
units must obtain permission from the appropriate designated Command
authority prior to commencement of the activity. Navy personnel must
provide NMFS with advance notification and include the information
(e.g., sonar hours or explosives usage) in its annual activity reports
submitted to NMFS.
(C) Blue Whale (June-October), Gray Whale (November-March), and Fin
Whale (November-May) Awareness Notification Message Areas. (1) Navy
personnel must issue a seasonal awareness notification message to alert
ships and aircraft operating in the area to the possible presence of
concentrations of large whales, including blue whales, gray whales, and
fin whales.
(2) To maintain safety of navigation and to avoid interactions with
large whales during transits, Navy personnel must instruct vessels to
remain vigilant to the presence of large whale species.
(3) Platforms must use the information from the awareness
notification messages to assist their visual observation of applicable
mitigation zones during training and testing activities and to aid in
the implementation of procedural mitigation.
(ii) [Reserved]
Sec. 218.75 Requirements for monitoring and reporting.
(a) Unauthorized take. Navy personnel must notify NMFS immediately
(or as soon as operational security considerations allow) if the
specified activity identified in Sec. 218.70 is thought to have
resulted in the mortality or serious injury of any marine mammals, or
in any Level A harassment or Level B harassment take of marine mammals
not identified in this subpart.
(b) Monitoring and reporting under the LOAs. The Navy must conduct
all monitoring and reporting required under the LOAs, including abiding
by the HSTT Study Area monitoring program. Details on program goals,
objectives, project selection process, and current projects are
available at www.navymarinespeciesmonitoring.us.
(c) Notification of injured, live stranded, or dead marine mammals.
The Navy must consult the Notification and Reporting Plan, which sets
out notification, reporting, and other requirements when dead, injured,
or live stranded marine mammals are detected. The Notification and
Reporting Plan is available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities.
(d) Annual HSTT Study Area marine species monitoring report. The
Navy must submit an annual report of the HSTT Study Area monitoring
describing the implementation and results from the previous calendar
year. Data collection methods must be standardized across range
complexes and study areas to allow for comparison in different
geographic locations. The report must be submitted to the Director,
Office of Protected Resources, NMFS, either within three months after
the end of the calendar year, or within three months after the
conclusion of the monitoring year, to be determined by the Adaptive
Management process. This report will describe progress of knowledge
made with respect to intermediate scientific objectives within the HSTT
Study Area associated with the Integrated Comprehensive Monitoring
Program (ICMP). Similar study questions must be treated together so
that progress on each topic can be summarized across all Navy ranges.
The report need not include analyses and content that does not provide
direct assessment of cumulative progress on the monitoring plan study
questions. As an alternative, the Navy may submit a multi-Range Complex
annual Monitoring Plan report to fulfill this requirement. Such a
report will describe progress of knowledge made with respect to
monitoring study questions across multiple Navy ranges associated with
the ICMP. Similar study questions must be treated together so that
progress on each topic can be summarized across multiple Navy ranges.
The report need not include analyses and content that does not provide
direct assessment of cumulative progress on the monitoring study
question. This will continue to allow the Navy to provide a cohesive
monitoring report covering multiple ranges (as per ICMP goals), rather
than entirely separate reports for the HSTT, Gulf of Alaska, Mariana
Islands, and Northwest Study Areas.
[[Page 41903]]
(e) Annual HSTT Study Area training exercise report and testing
activity report. Each year, the Navy must submit two preliminary
reports (Quick Look Report) detailing the status of authorized sound
sources within 21 days after the anniversary of the date of issuance of
each LOA to the Director, Office of Protected Resources, NMFS. Each
year, the Navy must submit detailed reports to the Director, Office of
Protected Resources, NMFS, within 3 months after the one-year
anniversary of the date of issuance of the LOA. The HSTT annual
Training Exercise Report and Testing Activity Report can be
consolidated with other exercise reports from other range complexes in
the Pacific Ocean for a single Pacific Exercise Report, if desired. The
annual reports must contain information on major training exercises
(MTEs), Sinking Exercise (SINKEX) events, and a summary of all sound
sources used, including within specific mitigation reporting areas as
described in paragraph (e)(3) of this section. The analysis in the
detailed reports must be based on the accumulation of data from the
current year's report and data collected from previous reports. The
detailed reports must contain information identified in paragraphs
(e)(1) through (7) of this section.
(1) MTEs. This section of the report must contain the following
information for MTEs conducted in the HSTT Study Area.
(i) Exercise Information for each MTE.
(A) Exercise designator.
(B) Date that exercise began and ended.
(C) Location.
(D) Number and types of active sonar sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, and other platforms
participating in exercise.
(G) Total hours of all active sonar source operation.
(H) Total hours of each active sonar source bin.
(I) Wave height (high, low, and average) during exercise.
(ii) Individual marine mammal sighting information for each
sighting in each exercise where mitigation was implemented.
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indication of whale/dolphin/
pinniped).
(C) Number of individuals.
(D) Initial Detection Sensor (e.g., sonar, Lookout).
(E) Indication of specific type of platform observation was made
from (including, for example, what type of surface vessel or testing
platform).
(F) Length of time observers maintained visual contact with marine
mammal.
(G) Sea state.
(H) Visibility.
(I) Sound source in use at the time of sighting.
(J) Indication of whether animal was less than 200 yd, 200 to 500
yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd from
sonar source.
(K) Whether operation of sonar sensor was delayed, or sonar was
powered or shut down, and how long the delay.
(L) If source in use was hull-mounted, true bearing of animal from
the vessel, true direction of vessel's travel, and estimation of
animal's motion relative to vessel (opening, closing, parallel).
(M) Lookouts must report, in plain language and without trying to
categorize in any way, the observed behavior of the animal(s) (such as
animal closing to bow ride, paralleling course/speed, floating on
surface and not swimming, etc.) and if any calves were present.
(iii) An evaluation (based on data gathered during all of the MTEs)
of the effectiveness of mitigation measures designed to minimize the
received level to which marine mammals may be exposed. This evaluation
must identify the specific observations that support any conclusions
the Navy reaches about the effectiveness of the mitigation.
(2) SINKEXs. This section of the report must include the following
information for each SINKEX completed that year.
(i) Exercise information gathered for each SINKEX.
(A) Location.
(B) Date and time exercise began and ended.
(C) Total hours of observation by Lookouts before, during, and
after exercise.
(D) Total number and types of explosive source bins detonated.
(E) Number and types of passive acoustic sources used in exercise.
(F) Total hours of passive acoustic search time.
(G) Number and types of vessels, aircraft, and other platforms,
participating in exercise.
(H) Wave height in feet (high, low, and average) during exercise.
(I) Narrative description of sensors and platforms utilized for
marine mammal detection and timeline illustrating how marine mammal
detection was conducted.
(ii) Individual marine mammal observation (by Navy Lookouts)
information for each sighting where mitigation was implemented.
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indicate whale, dolphin, or
pinniped).
(C) Number of individuals.
(D) Initial detection sensor (e.g., sonar or Lookout).
(E) Length of time observers maintained visual contact with marine
mammal.
(F) Sea state.
(G) Visibility.
(H) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
(I) Distance of marine mammal from actual detonations (or target
spot if not yet detonated): Less than 200 yd, 200 to 500 yd, 500 to
1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd.
(J) Lookouts must report, in plain language and without trying to
categorize in any way, the observed behavior of the animal(s) (such as
animal closing to bow ride, paralleling course/speed, floating on
surface and not swimming etc.), including speed and direction and if
any calves were present.
(K) The report must indicate whether explosive detonations were
delayed, ceased, modified, or not modified due to marine mammal
presence and for how long.
(L) If observation occurred while explosives were detonating in the
water, indicate munition type in use at time of marine mammal
detection.
(3) Summary of sources used. This section of the report must
include the following information summarized from the authorized sound
sources used in all training and testing events:
(i) Total annual hours or quantity (per the LOA) of each bin of
sonar or other acoustic sources (e.g., pile driving and air gun
activities); and
(ii) Total annual expended/detonated ordinance (missiles, bombs,
sonobuoys, etc.) for each explosive bin.
(4) Humpback Whale Special Reporting Area (December 15-April 15).
The Navy must report the total hours of operation of surface ship hull-
mounted mid-frequency active sonar used in the special reporting area.
(5) HSTT Study Area Mitigation Areas. The Navy must report any use
that occurred as specifically described in these areas. Information
included in the classified annual reports may be used to inform future
adaptive management of activities within the HSTT Study Area.
(6) Geographic information presentation. The reports must present
an annual (and seasonal, where practical) depiction of training and
testing bin usage (as well as pile driving activities) geographically
across the HSTT Study Area.
[[Page 41904]]
(7) Sonar exercise notification. The Navy must submit to NMFS
(contact as specified in the LOA) an electronic report within fifteen
calendar days after the completion of any MTE indicating:
(i) Location of the exercise;
(ii) Beginning and end dates of the exercise; and
(iii) Type of exercise.
(f) Seven-year close-out comprehensive training and testing
activity report. This report must be included as part of the 2025
annual training and testing report. This report must provide the annual
totals for each sound source bin with a comparison to the annual
allowance and the seven-year total for each sound source bin with a
comparison to the seven-year allowance. Additionally, if there were any
changes to the sound source allowance, this report must include a
discussion of why the change was made and include the analysis to
support how the change did or did not affect the analysis in the 2018
HSTT FEIS/OEIS and MMPA final rule. The draft report must be submitted
within three months after the expiration of this subpart to the
Director, Office of Protected Resources, NMFS. NMFS must submit
comments on the draft close-out report, if any, within three months of
receipt. The report will be considered final after the Navy has
addressed NMFS' comments, or 3 months after the submittal of the draft
if NMFS does not provide comments.
Sec. 218.76 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations
in this subpart, the Navy must apply for and obtain LOAs in accordance
with Sec. 216.106 of this chapter.
(b) LOAs, unless suspended or revoked, may be effective for a
period of time not to exceed December 20, 2025.
(c) If an LOA expires prior to December 20, 2025, the Navy may
apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation, monitoring, or reporting (excluding changes made pursuant
to the adaptive management provision of Sec. 218.77(c)(1)) required by
an LOA issued under this subpart, the Navy must apply for and obtain a
modification of the LOA as described in Sec. 218.77.
(e) Each LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species or stocks of marine mammals and their
habitat; and
(4) Requirements for monitoring and reporting.
(f) Issuance of the LOA(s) must be based on a determination that
the level of taking is consistent with the findings made for the total
taking allowable under the regulations in this subpart.
(g) Notice of issuance or denial of the LOA(s) must be published in
the Federal Register within 30 days of a determination.
Sec. 218.77 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
218.76 for the activity identified in Sec. 218.70(c) may be renewed or
modified upon request by the applicant, provided that:
(1) The planned specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for the regulations in this subpart
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA(s) were implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or to the mitigation, monitoring, or
reporting measures (excluding changes made pursuant to the adaptive
management provision in paragraph (c)(1) of this section) that do not
change the findings made for the regulations or result in no more than
a minor change in the total estimated number of takes (or distribution
by species or stock or years), NMFS may publish a notice of planned LOA
in the Federal Register, including the associated analysis of the
change, and solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
218.76 may be modified by NMFS under the following circumstances:
(1) Adaptive management. After consulting with the Navy regarding
the practicability of the modifications, NMFS may modify (including
adding or removing measures) the existing mitigation, monitoring, or
reporting measures if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA
include:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies; or
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by the regulations in
this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of planned LOA in the Federal Register and
solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. Sec. 216.106
of this chapter and 218.76, an LOA may be modified without prior notice
or opportunity for public comment. Notice would be published in the
Federal Register within 30 days of the action.
Sec. Sec. 218.78-218.79 [Reserved]
[FR Doc. 2020-14181 Filed 7-9-20; 8:45 am]
BILLING CODE 3510-22-P
