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, 4944-5029 [2024-31402]
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Federal Register / Vol. 90, No. 10 / Thursday, January 16, 2025 / Proposed Rules
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; notification of
issuance of Letters of Authorization.
Effective from January 16, 2025
to December 20, 2025.
ADDRESSES: Copies of the Navy’s
applications, NMFS’ proposed and final
rules and subsequent LOAs for these
regulations, NMFS’ proposed and final
rules and subsequent LOAs for the
associated 5-year HSTT Study Area
regulations, other supporting documents
cited herein, and a list of the references
cited in this document may be obtained
online at: https://www.fisheries.
noaa.gov/national/marine-mammalprotection/incidental-takeauthorizations-military-readinessactivities. In case of problems accessing
these documents, please use the contact
listed here (see FOR FURTHER
INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT:
Leah Davis, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
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 between
2018 and 2025. In 2021, two separate
U.S. Navy vessels struck unidentified
large whales on two separate occasions,
one whale in June 2021 and one whale
in July 2021, in waters off Southern
California. The takes by vessel strike of
the two whales by the U.S. Navy were
covered by the existing regulations and
Letters of Authorization (LOAs), which
authorize the U.S. Navy to take up to
three large whales by serious injury or
mortality by vessel strike between 2018
and 2025. The Navy reanalyzed the
potential of vessel strike in the HSTT
Study Area, including the recent strikes,
and as a result, requested two additional
takes of large whales by serious injury
or mortality by vessel strike for the
remainder of the current regulatory
period. In May 2023, a U.S. Navy vessel
struck a large whale in waters off
Southern California. NMFS reanalyzed
the potential for vessel strike based on
new information, including the three
strikes, and authorizes two additional
takes of large whales by serious injury
or mortality by vessel strike for the
remainder of the current regulatory
period (two takes in addition to the
three takes authorized in the current
regulations). The Navy’s activities
qualify as military readiness activities
pursuant to the MMPA, as amended by
the National Defense Authorization Act
for Fiscal Year 2004 (2004 NDAA).
Purpose of Regulatory Action
These regulations, promulgated under
the authority of the MMPA (16 U.S.C.
1361 et seq.), modify previous
regulations which allow for the
authorization of take of marine
mammals incidental to the Navy’s
training and testing activities (which
qualify as military readiness activities)
from the use of sonar and other
transducers, in-water detonations, air
guns, impact pile driving/vibratory
extraction, and the movement of vessels
throughout the HSTT Study Area (50
CFR part 218, subpart H; hereafter
‘‘2020 HSTT regulations’’).
NMFS received a request from the
Navy to modify the 2020 HSTT
regulations and LOAs to authorize two
additional takes of large whales by
serious injury or mortality by vessel
strike over the remainder of the HSTT
regulatory period. The 2020 HSTT
regulations and LOAs authorized the
incidental take, by serious injury or
mortality, of three large whales by
vessel strike. Here, in consideration of
the best available science, including
updated information related to vessel
strikes, NMFS analyzes and authorizes
the incidental serious injury or
mortality by vessel strike of five large
whales over the effective period of the
regulations (December 2018–December
2025). The effective period remains
unchanged from the existing
regulations. Further, the Navy’s planned
activities remain unchanged; however,
this final rule includes two additional
mitigation measures and revision of two
existing mitigation measures to further
reduce the probability of vessel strike,
as well as two additional reporting
measures (described below in the
DATES:
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 218
[Docket No. 241220–0334]
RIN 0648–BL72
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training
and Testing Activities in the HawaiiSouthern California Training and
Testing Study Area
AGENCY:
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SUMMARY:
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Changes from the Proposed Rule to the
Final Rule section) from that included
in the 2020 HSTT regulations. With the
exception of these new mitigation
measures and revisions to two existing
mitigation measures, the required
mitigation and monitoring measures
remain unchanged from the 2020 HSTT
regulations.
Section 101(a)(5)(A) of the MMPA (16
U.S.C. 1371(a)(5)(A)) directs the
Secretary of Commerce (as delegated to
NMFS) to allow, upon request, the
incidental, but not intentional taking of
small numbers of marine mammals by
U.S. citizens who engage in a specified
activity (other than commercial fishing)
within a specified geographical region
if, after notice and public comment, the
agency makes certain findings and
issues regulations that set forth
permissible methods of taking pursuant
to that activity, as well as monitoring
and reporting requirements. Section
101(a)(5)(A) of the MMPA and the
implementing regulations at 50 CFR part
216, subpart I, provide the legal basis for
issuing this final rule and the
subsequent LOAs. As directed by this
legal authority, this final rule contains
mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within
the Final Rule
The following is a summary of the
major provisions of this final rule
regarding the Navy’s activities. Major
provisions include, but are not limited
to:
• 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 (16 U.S.C. 1361 et
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seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
harassment, the public is provided with
notice of the proposed incidental take
authorization and the opportunity to
review and submit comments.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). Further, NMFS must prescribe
the permissible methods of taking and
other means of effecting the least
practicable adverse impact on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stocks for
taking for certain subsistence uses
(referred to in this rulemaking as
‘‘mitigation’’); and requirements
pertaining to the monitoring and
reporting of such takings. The MMPA
defines ‘‘take’’ to mean to harass, hunt,
capture, or kill, or attempt to harass,
hunt, capture, or kill any marine
mammal. The Analysis and Negligible
Impact Determination section below
discusses the definition of ‘‘negligible
impact.’’
The 2004 NDAA (Pub. L. 108–136)
amended section 101(a)(5) of the MMPA
to remove the ‘‘small numbers’’ and
‘‘specified geographical region’’
provisions indicated above and
amended the definition of ‘‘harassment’’
as applied to a ‘‘military readiness
activity.’’ The definition of harassment
for military readiness activities (section
3(18)(B) of the MMPA) is (i) any act that
injures or has the significant potential to
injure a marine mammal or marine
mammal stock in the wild (Level A
Harassment); or (ii) any act that disturbs
or is likely to disturb a marine mammal
or marine mammal stock in the wild by
causing disruption of natural behavioral
patterns, including, but not limited to,
migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where
such behavioral patterns are abandoned
or significantly altered (Level B
harassment). In addition, the 2004
NDAA amended the MMPA as it relates
to military readiness activities such that
the least practicable adverse impact
analysis shall include consideration of
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personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
The NDAA for Fiscal Year 2019 (2019
NDAA) (Pub. L. 115–232), amended the
MMPA to allow incidental take rules for
military readiness activities under
section 101(a)(5)(A) to be issued for up
to 7 years. Prior to this amendment, all
incidental take rules under section
101(a)(5)(A) were limited to 5 years.
Under the MMPA implementing
regulations, incidental take regulations
may be modified, in whole or in part, as
new information is developed and after
notice and opportunity for public
comment (50 CFR 216.105). An LOA
must be withdrawn or suspended if,
after notice and opportunity for public
comment, NMFS determines that the
regulations are not being substantially
complied with, or the taking is having,
or may have, more than a negligible
impact on species or stock. (Id. at
216.106(e)). Note, in its application,
Navy relied on §§ 218.76, and 218.77.
These sections outline the process for
modification of an LOA without
modifying the applicable incidental take
regulation. These sections do not apply
here because the Navy requested
modification of the 2020 HSTT
regulations.
Summary of Request
On December 27, 2018, NMFS issued
a 5-year final rule governing the taking
of marine mammals incidental to Navy
training and testing activities conducted
in the HSTT Study Area (83 FR 66846;
hereafter ‘‘2018 HSTT final rule’’).
Previously, on August 13, 2018, and
towards the end of the time period in
which NMFS was processing the Navy’s
request for the 2018 regulations, the
2019 NDAA amended the MMPA for
military readiness activities to allow
incidental take regulations to be issued
for up to 7 years instead of the previous
5 years. The Navy’s training and testing
activities conducted in the HSTT Study
Area qualify as military readiness
activities pursuant to the MMPA, as
amended by the 2004 NDAA. On March
11, 2019, the Navy submitted an
application requesting that NMFS
extend the 2018 HSTT final rule (83 FR
66846, December 27, 2018) and
associated LOAs such that they would
cover take incidental to 7 years of
training and testing activities instead of
5, extending the expiration date from
December 20, 2023 to December 20,
2025. On July 10, 2020, NOAA Fisheries
issued regulations (85 FR 41780) to
govern the taking of marine mammals
incidental to the training and testing
activities conducted in the HSTT Study
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Area over the course of 7 years,
effectively extending the effective
period from December 20, 2023 to
December 20, 2025.
On March 31, 2022, NMFS received
an adequate and complete application
(2022 Navy application) from the Navy
requesting that NMFS modify the
existing regulations and LOAs to
authorize two additional takes of large
whales by serious injury or mortality by
vessel strike over the remainder of the
HSTT authorization period. The 2020
HSTT regulations (50 CFR part 218,
subpart H) and LOAs authorize the take
of marine mammals from the Navy’s
training and testing activities in the
HSTT Study Area through December 20,
2025. These regulations and LOAs
authorize the take of three large whales
by serious injury or mortality by vessel
strike.
The Navy’s 2022 request is based
upon new information regarding U.S.
Navy vessel strikes off the coast of
Southern California. As described in the
2022 Navy application, in 2021, two
separate U.S. Navy vessels struck
unidentified large whales off the coast
of Southern California on two separate
occasions, one whale in June 2021 and
one whale in July 2021. Separately, a
foreign naval vessel struck two fin
whales off the coast of Southern
California in May 2021.
In the 2022 Navy application, the
Navy proposed no changes to the nature
of the specified activities covered by the
2020 HSTT final rule. The Navy stated
that the level of activity within and
between years would be consistent with
that previously analyzed in the 2020
HSTT final rule, and all activities would
be conducted within the same
boundaries of the HSTT Study Area
identified in the 2020 HSTT final rule.
The training and testing activities (e.g.,
equipment and sources used, exercises
conducted) are identical to those
described and analyzed in the 2020
HSTT final rule, and the mitigation,
monitoring, and reporting measures are
similar to those described and analyzed
in the 2020 HSTT final rule. The only
changes included in the Navy’s request
are for additional take by serious injury
or mortality by vessel strike.
The Navy’s mission is to organize,
train, equip, and maintain combat-ready
naval forces capable of winning wars,
deterring aggression, and maintaining
freedom of the seas. This mission is
mandated by Federal law (10 U.S.C.
8062), which ensures the readiness of
the naval forces of the United States.
The Navy executes this responsibility by
establishing and executing training
programs, including at-sea training and
exercises, and ensuring naval forces
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have access to the ranges, operating
areas (OPAREAs), and airspace needed
to develop and maintain skills for
conducting naval activities.
For a summary of the training and
testing activities within the HSTT Study
Area, see the Navy’s previous
rulemaking and LOA applications
submitted for HSTT Phase III activities
(October 13, 2017 initial rulemaking and
LOA application (hereafter ‘‘2017 Navy
application’’) and March 11, 2019
extension rulemaking and LOA
application (hereafter ‘‘2019 Navy
application’’)) and the 2020 HSTT
regulations that were subsequently
promulgated, which can be found at:
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 2022 Navy application and
this rule cover training and testing
activities that would occur over the
remainder of the effective period of the
current regulations, valid from the
publication date of this final rule
through December 20, 2025.
Summary of the Regulations
NMFS is modifying the incidental
take regulations and associated LOAs to
cover the same Navy activities covered
by the 2020 HSTT regulations but
authorize five takes of large whales by
serious injury or mortality by vessel
strike (two takes in addition to the three
takes authorized in the 2020 HSTT
regulations). In its 2022 application, the
Navy proposed no additional changes
and explained that its training and
testing activities, including the level of
vessel use, remain unchanged. Nearly
all mitigation, monitoring, and reporting
measures remain unchanged from the
2020 HSTT regulations (85 FR 41780,
July 10, 2020) with the exception of two
additional mitigation measures (see the
Mitigation Measures section of this final
rule), revision of two existing mitigation
measures (see the Mitigation Measures
section of this final rule), and two
additional reporting measures resulting
from discussions between the Navy and
NMFS (see the Reporting section of this
final rule).
In response to the Navy’s request, we
focus our analysis on the new
information related to vessel strike. We
also review any new information that
may be pertinent to our analysis of the
impacts from all other activities that
comprise Navy’s specified activity, and
our analysis of mitigation, monitoring,
and reporting. Where there is any new
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information pertinent to the
descriptions, analyses, or findings
required to authorize the incidental take
for military readiness activities under
MMPA section 101(a)(5)(A), that
information is provided in the
appropriate sections below. Where there
is no new information or any new
information does not change our
previous analysis or findings, we
indicate as such and refer the reader to
the original analysis in the 2018 HSTT
proposed and final rule, 2020 HSTT
final rule or the 2019 HSTT Final
Environmental Impact Statement (FEIS)/
Overseas Environmental Impact
Statement (OEIS).
After reviewing all new information
and as discussed below, we largely find
that our previous analyses and findings
remain current and applicable. For
vessel strike, we provide a new analysis
and authorize two additional takes of
large whales, for a total of five takes by
serious injury or mortality by vessel
strike over the 7-year period. We
authorize these additional takes after
analyzing the best available scientific
information and after considering the
effects of the entire specified activity
and the total taking as required by
MMPA section 101(a)(5)(A). When
setting forth the permissible methods of
taking pursuant to the activity and other
means of effecting the least practicable
adverse impact on the species or stock,
we require new and modified mitigation
and also consider whether to require
any new or modified mitigation for the
entire specified activity.
The regulatory language included at
the end of this final rule, which is
published at 50 CFR part 218, subpart
H, remains largely the same as that
under the HSTT 2020 regulations,
except for a small number of technical
changes related to the Navy’s 2022
request, new and revised mitigation
measures, and two new reporting
measures. Therefore, in this final rule,
we refer the reader to complete analyses
described in the 2018 HSTT final rule
or an updated analysis in the 2020
HSTT final rule, where appropriate.
Below is a list of the regulatory
documents referenced in this final rule.
The list indicates the short name by
which the document is referenced in
this final rule as well as the full titles
of the cited documents. All of the
documents can be found at: https://
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; 2018 HSTT proposed rule);
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• NMFS December 27, 2018, HawaiiSouthern California Training and
Testing (HSTT) final rule (83 FR 66846;
2018 HSTT final rule);
• NMFS September 13, 2019, HawaiiSouthern California Training and
Testing (HSTT) proposed rule (84 FR
48388; 2019 HSTT proposed rule);
• NMFS July 10, 2020, HawaiiSouthern California Training and
Testing (HSTT) final rule (85 FR 41780;
2020 HSTT final rule);
• NMFS October 3, 2023, HawaiiSouthern California Training and
Testing (HSTT) proposed rule (88 FR
68290; 2023 HSTT proposed rule);
• Navy October 13, 2017, MMPA
rulemaking and LOA application (2017
Navy application);
• Navy March 11, 2019, MMPA
rulemaking and LOA extension
application (2019 Navy application);
• Navy March 31, 2022, MMPA
rulemaking and LOA revision
application (2022 Navy application);
and
• October 26, 2018, Hawaii-Southern
California Training and Testing (HSTT)
Final Environmental Impact Statement/
Overseas Environmental Impact
Statement (FEIS/OEIS) (2018 HSTT
FEIS/OEIS).
Description of the Specified Activity
The Navy requested authorization to
take marine mammals incidental to
conducting training and testing
activities. The Navy has determined that
acoustic and explosives stressors are
most likely to result in impacts on
marine mammals that could rise to the
level of harassment. In addition to take
by harassment, the Navy has determined
that vessel movement may result in
serious injury or mortality to marine
mammals. Detailed descriptions of these
activities are provided in chapter 2 of
the 2018 HSTT FEIS/OEIS and in the
2017 Navy application.
Overview of Training and Testing
Activities
The Navy routinely trains in the
HSTT Study Area in preparation for
national defense missions. Training and
testing activities and components
covered in the 2022 Navy application
are described in detail in the Overview
of Training and Testing Activities
sections of the 2018 HSTT proposed
rule, the 2018 HSTT final rule, and
chapter 2 (Description of Proposed
Action and Alternatives) of the 2018
HSTT FEIS/OEIS (https://
www.hstteis.com/). Each military
training and testing activity described
meets mandated Fleet requirements to
deploy ready forces. The Navy proposed
no changes to the specified activities
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described and analyzed in the 2018
HSTT final rule and subsequent 2020
HSTT final rule. The boundaries of the
HSTT Study Area (see figure 2–1 of the
2019 Navy application); the dates and
duration of the activities; and the
training and testing activities (e.g.,
equipment and sources used, exercises
conducted) analyzed in this final rule
are identical to those described and
analyzed in the 2020 HSTT final rule
and therefore, are not repeated herein.
Please see the 2020 HSTT final rule for
more information. The manner of vessel
movement presented in this final rule is
also identical to that analyzed in the
2020 HSTT final rule.
Vessel Strike
Vessel strikes are not specific to any
particular training or testing activity but
rather, a limited, sporadic, and
incidental result of Navy vessel
movement within the HSTT Study Area.
Vessel strikes from commercial,
recreational, and military vessels are
known to seriously injure and
occasionally kill cetaceans (Abramson et
al. 2011; Berman-Kowalewski et al.
2010; Calambokidis, 2012; Douglas et al.
2008; Laggner, 2009; Lammers et al.
2003; Van der Hoop et al. 2012; Van der
Hoop et al. 2013; Crum et al. 2019),
although reviews of the literature on
vessel strikes mainly involve collisions
between commercial vessels and whales
(Jensen and Silber, 2003; Laist et al.
2001). Vessel speed, size, and mass are
all important factors in determining
both the potential likelihood and
impacts of a vessel strike to marine
mammals (Conn and Silber, 2013;
Gende et al. 2011; Silber et al. 2010;
Vanderlaan and Taggart, 2007; Wiley et
al. 2016). For large vessels, speed and
angle of approach can influence the
severity of a strike.
Navy vessels transit at speeds that are
optimal for fuel conservation or to meet
training and testing requirements. Small
craft (for purposes of this analysis, less
than 18 meters (m) in length) have much
more variable speeds (0–50+ knots (kn;
0–92.6 kilometers (km) per hour),
dependent on the activity). Submarines
generally operate at speeds in the range
of 8–13 kn (14.8–24.1 km per hour), and
the average speed of large Navy ships
range between 10 and 15 kn (18.5 and
27.8 km per hour). While these speeds
are considered averages and
representative of most events, some
vessels need to operate outside of these
parameters for certain times or during
certain activities. For example, to
produce the required relative wind
speed over the flight deck, an aircraft
carrier engaged in flight operations must
adjust its speed through the water
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accordingly. Also, there are other
instances when vessels would be dead
in the water or moving slowly ahead to
maintain steerage, such as launch and
recovery of a small rigid hull inflatable
boat; vessel boarding, search, and
seizure training events; or retrieval of a
target. There are a few specific events,
including high-speed tests of newly
constructed vessels, where vessels
would operate at higher speeds. By
comparison, this is slower than most
commercial vessels where full speed for
a container ship is typically 24 kn (44.4
km per hour; Bonney and Leach, 2010).
Large Navy vessels (greater than 18 m
in length) within the offshore areas of
range complexes and testing ranges
operate differently from commercial
vessels in ways that may reduce the
probability of whale collisions. Surface
ships operated by or for the Navy have
multiple personnel assigned to stand
watch at all times when a ship or
surfaced submarine is moving through
the water (underway). A primary duty of
personnel standing watch on surface
ships is to detect and report all objects
and disturbances sighted in the water
that may indicate a threat to the vessel
and its crew, such as debris, a
periscope, surfaced submarine, or
surface disturbance. Per vessel safety
requirements, personnel standing watch
also report any marine mammals sighted
in the path of the vessel as a standard
collision avoidance procedure. All
vessels proceed at a safe speed so they
can take proper and effective action to
avoid a collision with any sighted object
or disturbance and can be stopped
within a distance appropriate to the
prevailing circumstances and
conditions. As described in the
Standard Operating Procedures section,
the Navy utilizes Lookouts to avoid
collisions, and Lookouts are also trained
to spot marine mammals so that vessels
may change course or take other
appropriate action to avoid collisions.
Should a vessel strike occur, we
consider that it would likely result in
incidental take in the form of serious
injury and/or mortality and,
accordingly, for the purposes of the
analysis, we assume that any vessel
strike would result in serious injury or
mortality.
The Navy proposed no changes to the
nature of the specified activities, the
training and testing activities, the
manner of vessel movement, the speeds
at which vessels operate, the number of
vessels that would be used during
various activities, or the locations in
which Navy vessel activity would be
concentrated within the HSTT Study
Area described in the 2018 HSTT final
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rule and referenced in the 2020 HSTT
final rule.
Vessel Movement
Vessels used as part of the planned
activities include ships, submarines,
unmanned vessels, and boats ranging in
size from small, 22 feet (ft; 7 m) rigid
hull inflatable boats to aircraft carriers
with lengths up to 1,092 ft (333 m). The
average speed of large Navy ships ranges
between 10 and 15 kn (18.5 and 27.8 km
per hour) and submarines generally
operate at speeds in the range of 8–13
kn (14.8–24.1 km per hour) while a few
specialized vessels can travel at faster
speeds. Small craft (for purposes of this
analysis, less than 18 m in length) have
much more variable speeds (0–50+ kn
(0–92.6 km per hour), dependent on the
activity) but generally range from 10 to
14 kn (18.5 to 25.9 km per hour). From
unpublished Navy data, average median
speed for large Navy ships in the HSTT
Study Area from 2011–2015 varied from
5–10 knots (kn; 9.2–18.5 km per hour)
with variations by ship class and
location (i.e., slower speeds close to the
coast). While these speeds for large and
small craft are representative of most
events, some vessels need to
temporarily operate outside of these
parameters. Typical speed of Navy
vessels in HSTT core high use areas
from 2014–2018 were between 10 and
15 kn (18.5 and 27.8 km per hour;
Starcovic and Mintz 2021). This core
area is a region including the
approaches to San Diego, and
immediate offshore areas west of San
Diego, centered north and south of San
Clemente Island. A full description of
Navy vessels that are used during
training and testing activities can be
found in the 2017 Navy application and
chapter 2 (Description of Proposed
Action and Alternatives) of the 2018
HSTT FEIS/OEIS.
The number of Navy vessels used in
the HSTT Study Area varies based on
military training and testing
requirements, deployment schedules,
annual budgets, and other dynamic
factors. Most training and testing
activities involve the use of vessels.
These activities could be widely
dispersed throughout the HSTT Study
Area but would typically be conducted
near naval ports, piers, and range areas.
Navy vessel traffic would be especially
concentrated near San Diego, California
and Pearl Harbor, Hawaii. Based on
historical data, we anticipate the annual
number of at-sea hours by U.S. Navy
vessels in the HSTT action area will be
around 26,800 hours per year (Starcovic
and Mintz 2021). We expect that about
25 percent of this vessel activity would
occur within the Hawaii Range Complex
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(HRC) and 75 percent within the
Southern California Range Complex
(SOCAL; Mintz 2016). There is no
seasonal differentiation in Navy vessel
use because of continual operational
requirements from Combatant
Commanders. The majority of large
vessel traffic occurs between the
installations and the OPAREAs. The
transit corridor, notionally defined by
the great circle route (e.g., shortest
distance) from San Diego to the center
of the HRC, as depicted in the 2018
HSTT FEIS/OEIS, is generally used by
ships transiting between SOCAL and
HRC. While in transit, ships and aircraft
would, at times, conduct basic and
routine unit-level activities such as
gunnery, bombing, and sonar training
and maintenance. Of note, support craft
would be more concentrated in the
coastal waters in the areas of naval
installations, ports, and ranges.
Activities involving vessel movements
occur intermittently and are variable in
duration, ranging from a few hours up
to weeks. More information on Navy
and non-Navy vessel traffic patterns in
the HSTT Study Area may be found in
several studies prepared by the Navy
(Starcovic and Mintz 2021; Mintz, 2016;
Mintz and Filadelfo, 2011; Mintz, 2012;
Mintz and Parker, 2006).
Foreign Navies
In addition, we note that in some
cases, foreign militaries may participate
in U.S. Navy training or testing
activities in the HSTT Study Area. The
Navy does not consider these foreign
military activities as part of the
‘‘specified activity’’ under the MMPA,
and NMFS defers to the applicant to
describe the scope of its request for an
authorization.
The participation of foreign navies
varies from year to year, but overall is
infrequent compared with Navy’s total
training and testing activities. The most
significant joint training event is the
Rim of the Pacific (RIMPAC), a multinational training exercise held everyother-year primarily in the HRC. The
participation level of foreign military
vessels in U.S. Navy-led training or
testing events within the HRC and
within SOCAL differs greatly between
RIMPAC and non-RIMPAC years. For
example, in 2019 (a non-RIMPAC year),
there were 0.1 foreign navy surface
vessel at-sea days (i.e., 1 day = 24 hours)
within HRC and 20 foreign navy at-sea
days within SOCAL (Navy 2021). Out of
56 U.S.-led training events in 2019, 4
involved foreign navy vessels, with an
average time per event of 8.7 hours. In
2020, a RIMPAC year, foreign vessels
participating in U.S. Navy-led events
accounted for 32 at-sea days in the HRC
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from August through September (some
of this activity occurred after the
RIMPAC exercise). During RIMPAC
2022, foreign vessels operated and/or
transited through the HRC for 576 hours
(24 days). In 2023 (another non-RIMPAC
year), there was no foreign vessel
participation within SOCAL. Even in a
RIMPAC year, the days at sea for foreign
militaries engaged in a Navy-led
training or testing activity accounts for
a small, but variable, percentage
compared to the U.S. Navy activities.
For instance, the 2020 foreign military
participation (a RIMPAC-year) was 1.5
percent of the U.S. Navy’s average days
at sea (32 days out of an estimated 2,056
days at sea). During RIMPAC 2024,
twenty-five foreign surface vessels
participated for a combined 5,000 hours
in U.S.-led training events. Therefore,
foreign surface vessel activity is
estimated to conservatively account for
up to 10 percent of the U.S. Navy’s
annual at sea time in HSTT (205 days
out of an estimated 2,056 days at sea).
According to the U.S. Navy,
consistent with customary international
law, when a foreign military vessel
participates in a U.S. Navy exercise
within the U.S. territorial sea (i.e., 0 to
12 nautical miles (nmi; 0 to 22.2 km)
from shore), the U.S. Navy will request
that the foreign vessel follow the U.S.
Navy’s mitigation measures for that
particular event. When a foreign
military vessel participates in a U.S.
Navy exercise beyond the U.S. territorial
sea but within the U.S. Exclusive
Economic Zone, the U.S. Navy will
encourage the foreign vessel to follow
the U.S. Navy’s mitigation measures for
that particular event (Navy 2022a; Navy
2022b). In either scenario (i.e., both
within and beyond the territorial sea),
U.S. Navy personnel will provide the
foreign vessels participating with a
description of the mitigation measures
to follow.
According to the U.S. Navy, the May
2021 vessel strike of two fin whales by
an Australian navy vessel did not occur
while that vessel was participating in a
U.S. Navy-led training exercise. The
Royal Australian Navy vessel was
adhering to its standard operating
procedures at the time of the strike. The
Royal Australian Navy provided a report
of the incident, which is discussed
below to inform our analysis.
NMFS analyzes the effects of these
foreign military activities. First, effects
of all past foreign military activities are
captured in the baseline for the analysis,
through marine mammal abundance
estimates and population trends found
in the Stock Assessment Reports (SARs).
Second, NMFS considers foreign
military activities, including recent
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strikes, qualitatively in this final rule.
For instance, in preparing this
rulemaking, NMFS and the U.S. Navy
discussed the nature, frequency, and
control over joint or U.S. Navy-led
training and testing activities with
foreign entities to identify opportunities
to encourage foreign militaries to adopt
mitigation. NMFS and the U.S. Navy
examined the Royal Australian Navy
2021 strike report for any lessons that
could inform U.S. Navy strike
mitigation. NMFS considered the Royal
Australian Navy strikes along with other
recent U.S. Navy strikes to determine
whether these strikes indicate an
increased risk of strike by the U.S. Navy
in this region during the early summer
months. NMFS also considered the
species struck in this incident, fin
whales, along with other literature,
when considering the likelihood of
certain species to be struck by the U.S.
Navy. NMFS considered the fact that
two fin whales were struck by the Royal
Australian Navy qualitatively when
considering other fin whale population
and mortality trends, as well as the
authorized take, as part of the negligible
impact analysis.
This final rule includes a new
reporting measure that requires that the
Navy’s annual HSTT reports shall
include confirmation that foreign
military use of sonar and explosives,
when such militaries are participating
in a U.S. Navy-led exercise or event,
combined with the U.S. Navy’s use of
sonar and explosives, would not cause
exceedance of the analyzed levels
(within each Navy Acoustic Effects
Model (NAEMO) modeled sonar and
explosive bin) used for estimating
predicted impacts, which formed the
basis of our acoustic impacts effects
analysis that was used to estimate take
in this final rule. This new reporting
measure will allow NMFS to ensure that
its analysis remains valid.
Standard Operating Procedures
For training and testing to be
effective, personnel must be able to
safely use their sensors and weapon
systems as they are intended to be used
in a real-world situation and to their
optimum capabilities. While standard
operating procedures (SOPs) are
designed for the safety of personnel and
equipment and to ensure the success of
training and testing activities, their
implementation often yields additional
benefits on environmental,
socioeconomic, public health and
safety, and cultural resources. Because
SOPs are essential to safety and mission
success, the Navy considers them to be
part of the proposed activities under the
National Environmental Policy Act
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(NEPA) and included them in the
environmental analysis. We consider
SOPs as part of Navy’s specified activity
for the purposes of MMPA but also,
where procedures are utilized (even in
part) to reduce impacts to marine
mammal species and Navy’s
commitment to follow the measures are
practicable, certain SOPs may also be
required as mitigation. Details on SOPs
were provided in the 2018 HSTT
proposed rule; please see the 2018
HSTT proposed rule, the 2017 Navy
application, and chapter 2 (Description
of Proposed Action and Alternatives) of
the 2018 HSTT FEIS/OEIS for more
information.
As stated in its 2022 application, in
2018, the Navy updated its SOPs related
to vessel safety to incorporate revised
procedures regarding Lookouts for
certain ship classes as per the 2021
Surface Ship Navigation Department
Organization and Regulations Manual
(NAVDORM). The 2021 NAVDORM
requires the use of three Lookouts on
Navy cruisers and destroyers as
compared to the previous requirement
of one Lookout when a vessel was
underway and not engaged in sonar
training or testing. However, as
discussed in the Mitigation Measures
section below, the Navy informed
NMFS that requiring the additional
Lookouts as mitigation is not practicable
because this SOP may change in
response to manning issues and national
security needs. Further, since
submission of its 2022 application, the
Navy has updated its Lookout Training
Handbook and implemented other
training improvements, as described in
the Mitigation Measures section
(September 2022).
Comments and Responses
We published a proposed rule in the
Federal Register on October 3, 2023 (88
FR 68290), with a 45-day comment
period. That notice described, in detail,
Navy’s request for modification of the
2020 HSTT final rule and LOAs, new
information regarding the occurrence of
large whale strikes by naval vessels in
the southern California portion of the
HSTT Study Area and NMFS’ proposal
to authorize two additional takes of
large whales by serious injury or
mortality. In that notice, we requested
public input on the proposed
promulgation of modified regulations
and associated LOAs for the Navy
governing this additional incidental
taking of marine mammals. During the
45-day comment period, we received 20
comment submissions. Of this total, one
submission was from a nongovernmental organization (NGO) and
the remainder were from private
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citizens. NMFS has reviewed and
considered all public comments
received on the proposed rule and
issuance of the LOAs. All substantive
comments and our responses are
described below. We organize our
comment responses by major categories.
Take Estimates
Comment 1: A commenter
recommended ensuring that any
modifications to existing regulations or
authorizations are based on recent and
rigorous scientific evaluations. This can
be achieved by conducting regular
environmental impact assessments to
account for changes in marine mammal
populations and habitat conditions.
Response: NMFS concurs with the
commenter that modifications to
existing regulations or authorizations
must be based on rigorous scientific
evaluations. NMFS has conducted a
rigorous scientific evaluation in the
promulgation of this rulemaking and
has used the best available science to
inform its analysis. These final
regulations and LOAs include reporting
provisions to ensure compliance and
that the most value is obtained from the
required monitoring. Monitoring results
are considered annually through the
adaptive management process described
in the Adaptive Management section
herein. Further, incidental take
authorizations for military readiness
activities can be effective for no more
than 7 years. Therefore, at minimum,
NMFS must reconduct its analysis every
7 years, and in doing so, it considers
changes in marine mammal populations
and habitats in its analyses. However,
during the effective period of an LOA(s),
if NMFS were to find that the Navy’s
activities are having more than a
negligible impact on a species or stock,
NMFS is required to withdraw or
suspend the LOA(s) for a certain time
(16 U.S.C. 1371(a)(5)(B)).
Comment 2: A commenter stated that
the 2022 Navy application is based on
50 CFR 216.015 [the commenter is likely
referring to section 216.105], which
allows incidental take regulations to ‘‘be
modified, in whole or in part, as new
information is developed.’’ The
commenter asserted that the only ‘‘new
information’’ in the 2022 application is
the information that the Navy has
already reached its 7-year take limit and
that failure to meet our own standards
does not constitute ‘‘new information’’
in the sense of 50 CFR 216.015. The
commenter stated that ‘‘new
information’’ for this purpose would be
either (1) evidence that allowing two
additional takes (and relaxing mitigation
procedures as requested in the
application) during this time period will
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4949
have no impact on threatened cetacean
populations or (2) a dramatic increase in
the level of military activity in HSTT.
Response: The MMPA provides for
the authorization of incidental take
caused by specified activities at the
request of an applicant, provided certain
findings are made. The law directs
NMFS to process adequate and
complete applications for incidental
take authorization, and issue the
authorization provided all statutory
findings and requirements, as well as all
associated legal requirements, are met.
Under 50 CFR 216.105, as new
information is developed, through
monitoring, reporting, or research, the
regulations may be modified, in whole
or in part, after notice and opportunity
for public review. On March 31, 2022,
NMFS received an adequate and
complete application from the Navy
requesting that NMFS modify the
existing regulations and LOAs to
authorize two additional takes of large
whales by serious injury or mortality by
vessel strike over the remainder of the
HSTT regulatory period based on
probabilities derived from a Poisson
distribution using new vessel strike data
between 2009–2021 in the HSTT Study
Area, as well as historical at-sea days in
the HSTT Study Area from 2009–2015
and estimated at-sea days for the period
from 2016 to 2025, informed by
monitoring and reporting. NMFS
independently analyzed the request
based on updated vessel strike data and
days-at-sea, as well as using updated
probability methodology, and also
determined that the strike of up to two
large whales could occur over the
remaining duration of the regulations.
NMFS, following its own analysis and
proposed rule, has determined it is
appropriate to promulgate a revised
final rule and LOAs pursuant to 16
U.S.C. 1371(a)(5)(A) and 50 CFR
216.105.
Comment 3: A commenter stated that
Kuehne et al. (2020), referenced in the
2023 HSTT proposed rule (88 FR 68290,
October 3, 2023), indicates that noise
from Navy aircraft penetrates more
deeply into the water than the Navy or
NMFS considered in their analyses. The
commenter stated that the study found
that noise from aircraft can permeate the
water to at least 30 m and that the
detected noise level (134 ± 3 dB re 1 mPa
rms) exceeds volumes that can cause
behavioral changes in marine mammals
(Houser et al. 2013; Kastelein et al.
2012; Kuehne et al. 2020; Williams et al.
2002). The commenter asserted that,
therefore, the Navy’s reliance on this
paper to assert that aircrafts do not
impact marine mammals is misplaced,
and the proposed rule’s dismissal of the
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study because it ‘‘did not include
behavioral observations of wildlife, and
the authors’ conclusions about potential
impacts to wildlife were unsupported
by data from the study’’ ignores the
valid bases for these conclusions.
Response: NMFS disagrees with the
commenter that Kuehne et al. (2020)
shows impacts to marine mammals from
Navy’s HSTT activities that were not
considered by NMFS and the Navy in
their respective analyses. As stated in
the comment, the strongest one-second
window of underwater sound measured
by Kuehne et al. (2020) was 134 ± 3 dB
RMS re 1 mPa rms at 30 m below the sea
surface. While sound levels between the
hydrophone and the surface may have
been stronger than those measured at 30
m (Kuehne et al. 2020), for the reasons
discussed in the 2023 HSTT proposed
rule, there is no new information
presented in this study to indicate that
exposures closer to the surface or in air
would have resulted in behavioral
responses that would qualify as take by
Level B harassment.
We conclude that the information
presented in Kuehne et al. (2020) does
not reveal effects of the action on
marine mammals in a manner or to an
extent not already considered. We
reiterate that NMFS reviewed the Navy’s
analysis and conclusions that aircraft
noise will not result in incidental take
of marine mammals and finds the
analysis and conclusions remain
complete and supportable, as stated in
the 2018 HSTT final rule and in the
2023 HSTT proposed rule (88 FR 68290,
October 3, 2023). Please see section 3.7
(Marine Mammals) of the 2018 HSTT
FEIS/OEIS for additional information.
Of note, even if the sound level in the
water were to exceed the Level B
harassment threshold, a marine
mammal would need to cross the path
of the aircraft while the animal is
relatively close to the surface in order
for a take to occur, which is unlikely.
In addition to Kuehne et al. (2020),
the commenter referenced several other
studies that it described as indicating
that other Navy activities in the HSTT
Study Area may affect listed species to
an extent not previously considered.
These studies include Goldbogen et al.
(2013), Pirotta et al. (2019), Pirotta et al.
(2021), Pirotta et al (2022), Simonis et
al. (2020), Southall et al. (2019),
Southall et al. (2021), and Szesciorka et
al. (2019). NMFS considered Pirotta et
al. (2021), Pirotta et al. (2022), and
Southall et al. (2021) in its 2023 HSTT
proposed rule (88 FR 68290, October 3,
2023). NMFS considered Goldbogen et
al. (2013) in the 2018 HSTT proposed
rule (83 FR 29872, June 26, 2018) and
2018 HSTT final rule (83 FR 66846,
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December 27, 2018), and NMFS
considered Southall et al. (2019) in the
2019 HSTT proposed rule (84 FR 48388,
September 13, 2019). Pirotta et al.
(2019) found that environmental
changes could severely affect a
population’s vital rates, but that,
depending on the context of a
disturbance, individuals were tolerant
of anthropogenic disturbance. Simonis
et al. (2020) correlated strandings in the
Mariana islands with naval activities.
NMFS is aware of this study and has
considered it along with global
information related to the correlation of
sonar with strandings in our analysis. In
a case study of a close vessel encounter
with a blue whale, Szesciorka et al.
(2019) noted that the ship’s reduced
speed (i.e., 11.3 kn (20.9 km per hour))
may have played a role by giving the
whale enough time to respond to the
nearby vessel and that higher vessel
speeds increase the risk that a whale
could have been struck at the surface or
get close enough to the ship’s draft that
the propeller suction effect created by
the ship’s hydrodynamic flow could
pull the whale toward the hull.
Additionally, feeding whales may be
distracted and thus be less capable of
detecting and avoiding approaching
vessels (Szesciorka et al. 2019). NMFS
determined that the information
presented in these studies does not
substantively affect our analysis of
impacts on marine mammals and their
habitat that appeared in the 2023 HSTT
proposed rule, all of which remains
applicable and valid for our assessment
of the effects of the Navy’s activities
during the 7-year period of this final
rule. Please see NMFS’ response to
Comment 14 regarding vessel speed
restrictions.
Comment 4: A commenter expressed
support for Navy use of marine
mammals for military purposes through
its Marine Mammal Program. However,
the commenter stated that to ‘‘take’’
mammals simply as a training
opportunity via severe injury or
mortality is unethical and to allow the
killing of innocent animals as cross-fire
or training shouldn’t be tolerated.
Response: The actions the Navy takes
through its Marine Mammal Program are
outside the scope of this action; we note
that no animals are intentionally
exposed to serious injury or mortality
through that program. For additional
information about the Navy’s Marine
Mammal Program, please see the Navy’s
website at https://www.niwcpacific.
navy.mil/About/Departments/
Intelligence-Surveillance-andReconnaissance/Marine-MammalProgram/.
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Comment 5: A commenter stated that
the recent whale deaths indicate that (1)
NMFS’ earlier assumptions that vessel
strikes would be unlikely and easily
detected if they did occur were proven
wrong, (2) vessel strikes are occurring at
rates well-above that analyzed in NMFS’
analyses, (3) whales cannot avoid vessel
strike at the level NMFS assumed in
issuing the regulations, (4) and that
sonar affects blue whales in ways not
adequately considered.
Response: In the 2018 HSTT final
rule, 2020 HSTT final rule, and 2023
HSTT proposed rule, NMFS described
why a strike by a Navy vessel is unlikely
in comparison to a strike by a non-Navy
vessel, and that, overall, it is unlikely
that the Navy would hit a large whale
for these reasons. However, even in
consideration of these factors that make
vessel strike unlikely, given the history
of vessel strike by the U.S. Navy in the
HSTT Study Area, NMFS, in the 2018
and 2020 HSTT final rules concluded
that vessel strikes could occur and that
authorization of three takes by vessel
strike was appropriate. Therefore,
NMFS disagrees that the recent vessel
strikes disprove NMFS’ assumption that
vessel strikes would be unlikely.
To date, NMFS is aware of three
confirmed vessel strikes of large whales
by U.S. Navy vessels during the current
regulatory period. Therefore, the strikes
that have occurred to date have been
within what NMFS anticipated could
occur, though, NMFS’ current analysis
suggests that two additional strikes may
occur during the current regulatory
period based on the best available
scientific information since
promulgation of the 2020 HSTT final
rule.
NMFS further disagrees that the
recent vessel strikes disprove NMFS’
assumption that vessel strikes would be
detected if they did occur. As
demonstrated by the June 2021, July
2021, and May 2023 U.S. Navy strikes,
NMFS is confident that whales struck
by Navy vessels are detected and
reported, and Navy strikes are the
numbers used in NMFS’ analysis to
support the authorized number of
strikes. Navy ships have multiple
Lookouts, including on the forward part
of the ship that can visually detect a hit
whale (which has occasionally
occurred), in the unlikely event ship
personnel do not feel the strike. The
Navy’s strict internal procedures and
mitigation requirements include
reporting of any vessel strikes of marine
mammals, and the Navy’s discipline,
extensive training (not only for
detecting marine mammals but for
detecting and reporting any potential
navigational obstruction), and strict
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chain of command give NMFS a high
level of confidence that all strikes are
reported. Accordingly, NMFS is
confident that the information used to
support the analysis is accurate and
complete. Regarding the 2021 Royal
Australian Navy vessel strikes, while
the U.S. Navy cannot speculate on the
configurations of other ships bows and
even sonar dome specifications (that
may be at the bow), the Navy believes
it would be implausible for a marine
mammal to become lodged on the sonar
dome of a U.S. Navy ship and remain
undetected due to a technological
standard operating procedure.
While the 2018 HSTT final rule, the
2020 HSTT final rule, and this final rule
include mitigation to reduce the
potential for vessel strike, NMFS neither
states nor implies vessel strike
avoidance of a particular ‘‘level’’.
However, it is important that NMFS and
the Navy consider the new information
regarding vessel strikes in southern
California consistent with 50 CFR
216.105(c). Consideration of this new
information in an updated analysis
allows NMFS to reassess its negligible
impact determination and to determine
whether additional potential mortality
would still constitute a negligible
impact on the potentially affected
stocks, as it has determined would be
the case here.
The commenter referenced several
studies related to blue whales and
sonar. Please see NMFS’ response to
Comment 3.
Comment 6: A commenter stated that
NMFS should deny the Navy’s request
for authorization of two additional takes
of large whales by vessel strike because
for at least two of the impacted marine
mammal stocks (Eastern North Pacific
stock of blue whale and Central
America/Southern Mexico—California/
Oregon/Washington stock of humpback
whale) mortality and serious injury
already exceeds potential biological
removal (PBR). The commenter stated
that NMFS’ reasoning for authorizing
the take amounts to ‘‘take by a thousand
cuts’’ and defies the stated purpose and
objectives of the MMPA.
A commenter stated that NMFS may
allow take of marine mammals
incidental to military readiness
activities only if the taking will have a
‘‘negligible impact’’ on an affected
species or stock. The commenter further
stated that as one court has explained,
‘‘[b]ecause any mortality level that
exceeds PBR will not allow the stock to
reach or maintain its optimum
sustainable population (‘OSP’), such a
mortality level could not be said to have
only a ‘negligible impact’ on the stock.’’
(See Conservation Council for Hawai’i v.
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Nat’l Marine Fisheries Serv., 97 F. Supp.
3d 1210, 1225 (D. Haw. 2015); see also
54 FR 40338, 40341, 40342 (Sept. 29,
1989) (‘‘In order to make a negligible
impact finding, the proposed incidental
take must not prevent a depleted
population from increasing toward its
OSP.’’)). Indeed, NMFS itself has
previously recognized that when
mortality of a species is above its PBR,
‘‘a negligible impact finding under
section 101(a)(5)(A) cannot be made’’
(61 FR 54,157, October 17, 1996).
Response: The commenter is correct
that PBR for the Eastern North Pacific
stock of blue whales and the Central
America/Southern Mexico—California/
Oregon/Washington stock of humpback
whales is currently exceeded. However,
NMFS is not authorizing take by
mortality of the Central America/
Southern Mexico—California/Oregon/
Washington stock of humpback whales.
In this final rule, NMFS is authorizing
take of the Mainland Mexico-CA/OR/
WA stock of humpback whale, and PBR
is not exceeded for this stock. A stock’s
PBR is part of the best scientific
information available and therefore, is
considered in the negligible impact
determination (see Conservation
Council for Hawai’i v. Nat’l Marine
Fisheries Serv., 97 F. Supp. 3d 1210,
1228 (D. Haw. 2015)). However,
exceedance of PBR does not inherently
imply that a negligible impact
determination cannot be made for an
authorization that includes mortality or
serious injury (M/SI) of that stock. As
explained in the Serious Injury or
Mortality subsection of the Analysis and
Negligible Impact Determination section
of the 2018 HSTT final rule and 2020
HSTT final rule, and referenced in the
same section of this final rule, in the
commercial fisheries setting for
Endangered Species Act (ESA)-listed
marine mammals (which is similar to
the non-fisheries incidental take setting,
in that a negligible impact
determination is required that is based
on the assessment of take caused by the
activity being analyzed), NMFS may
find the impact of the authorized take
from a specified activity to be negligible
even if total human-caused mortality
exceeds PBR, if the authorized mortality
is less than 10 percent of PBR and
management measures are being taken
to address serious injuries and
mortalities from the other activities
causing mortality (i.e., other than the
specified activities covered by the
incidental take authorization in
consideration). When those
considerations are applied in the section
101(a)(5)(A) context here, the authorized
lethal take (0.14 annually) of blue
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whales from the Eastern North Pacific
stock is less than 10 percent of PBR (4.1)
and there are management measures in
place to address the mortality and
serious injury from the activities other
than those the Navy is conducting. For
the complete discussion of how NMFS
carefully considered potential
mortalities from the Navy’s activities in
light of PBR levels, including an
explanation for why mortality above
PBR will not necessarily induce
population-level non-negligible impacts,
see the discussion in the Analysis and
Negligible Impact Determination section
of this rule, the 2020 HSTT final rule,
and the 2018 HSTT final rule.
The commenter references a 1996
NMFS notice of receipt and request for
comments (61 FR 54,157; October 17,
1996) that stated that a negligible impact
finding under section 101(a)(5)(A) could
not be made where PBR for the North
Atlantic right whale stock was 0.4. The
method that NMFS has articulated
herein to evaluate negligible impact of
potential mortality was adopted in 1999
to evaluate negligible impact pursuant
to MMPA section 101(a)(5)(E). NMFS
uses these same criteria adopted in 1999
to inform (i.e., it is not the sole factor
considered) our negligible impact
analysis of potential mortality under
section 101(a)(5)(A).
The 1996 decision that a negligible
impact determination could not be
made was regarding a request for take by
mortality of North Atlantic right whale
(61 FR 54,157; October 17, 1996)). PBR
for North Atlantic right whale at that
time was 0.4. If NMFS were to apply its
current method for evaluating negligible
impact of potential mortality to that
request, the results would suggest that
take by mortality should not be
authorized (though again, the PBR
evaluation is not the sole factor
considered).
Comment 7: A commenter stated that
the Navy and NMFS must consider
serious injury and mortality that results
from joint training exercises the Navy
engages in with foreign nations as
‘‘take’’ under the regulations and that
NMFS must reexamine the impacts of
the Navy’s full suite of activities
(including joint activities with foreign
fleets) on marine mammals using the
best available science. In the proposed
rule, NMFS states that ‘‘[a]ccording to
the U.S. Navy, the May 2021 vessel
strike of two fin whales by an Australian
navy vessel did not occur while that
vessel was participating in a U.S. Navyled training exercise. The Royal
Australian Navy vessel was adhering to
its standard operating procedures at the
time of the strike.’’ The commenter
stated that this contradicts coverage of
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the incident, including by the Navy
Times/AP that reported: ‘‘[t]he Sydney
has been holding joint exercises with
the U.S. Navy in the area since early
April’’ (The Navy Times, 2021).
The commenter stated that elsewhere
in the rule, NMFS appears to say that
regardless of whether it considered
vessel strikes that occurred during joint
training or not, NMFS lets the Navy
decide what activities it requests
authorization for, and there is no
reasoned explanation provided for this
position. These joint activities led by
the U.S. Navy pose serious threats to
marine mammals, kill whales, and
should be included as specified
activities. The commenter
recommended that NMFS not ‘‘defer to
the applicant to describe the scope of its
request for an authorization.’’
Response: Under the MMPA, only a
U.S. Citizen may request NMFS
authorize the incidental take of marine
mammals (16 U.S.C. 1371(a)(5)(A)).
Further, the MMPA requires NMFS to
authorize the incidental take caused by
the applicant’s specified activities,
provided certain findings are made (Id.).
In some cases, foreign militaries may
participate in U.S. Navy training or
testing activities in the HSTT Study
Area. As stated in the proposed rule, the
HMAS Sydney most likely struck the
two fin whales around 6:25 a.m. the
morning of May 7, 2021 while the
HMAS Sydney was getting into position
to participate in a U.S. Navy-led
exercise later that day but was not
actively engaged in an exercise at the
presumed time of the strike. The Navy
does not consider the Royal Australian
Navy’s vessel movements at the time of
strike as part of the ‘specified activity’
under the MMPA, as the strike did not
occur while the HMAS Sydney was
actively participating in a joint training
exercise with the U.S. Navy. The MMPA
is necessarily an applicant-driven
process (Melone v. Coit, 100 F.4th 21, 32
(1st Cir. 2024)) and NMFS has
appropriately deferred to the Navy’s
reasoned explanation of why the Royal
Australian Navy’s operations were not
part of the ‘‘specified activity.’’
As explained in the Foreign Navies
section of this final rule, in preparing
this rulemaking, NMFS and the U.S.
Navy discussed the nature, frequency,
and control over joint or U.S. Navy-led
training and testing activities with
foreign entities. Consistent with
customary international law, U.S. Navy
requests or encourages participating
foreign entities to follow U.S. Navy’s
mitigation measures for that particular
event, depending on whether the
activity is in the U.S.’s territorial sea or
the EEZ. NMFS and the U.S. Navy also
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examined the Royal Australian Navy
2021 strike report, and NMFS concurred
with U.S. Navy’s conclusion that the
strike most likely occurred before, but
not during, a joint exercise, and the
Royal Australian Navy vessel was
adhering to its standard operating
procedures at the time of the strike.
As noted by the commenter in its
letter, NMFS assessed the effects of
foreign military activities. First, the
impacts of all activities are captured in
the baseline for the analysis, through
marine mammal abundance estimates
and population trends found in the
SARs. Second, NMFS considers foreign
military activities, including recent
strikes, qualitatively in its analysis, as
described in the Foreign Navies section
of this final rule. For instance, NMFS
and the U.S. Navy examined the Royal
Australian Navy 2021 strike report for
any lessons that could inform U.S. Navy
strike mitigation.
This final rule includes a new
reporting measure related to foreign
vessels. The new measure requires that
the Navy’s annual HSTT reports shall
include confirmation that foreign
military use of sonar and explosives,
when such militaries are participating
in a U.S. Navy-led exercise or event,
combined with the U.S. Navy’s use of
sonar and explosives, did not cause
exceedance of the analyzed levels
(within each NAEMO modeled sonar
and explosive bin) used for estimating
predicted impacts, which formed the
basis of our acoustic impacts effects
analysis that was used to estimate take
in this final rule. This new reporting
measure will allow NMFS to ensure that
its analysis remains valid.
Comment 8: A commenter stated that
it supports the Navy’s request for two
additional incidental takes of large
whales by vessel strike. The commenter
discussed a U.S. Supreme Court case,
Winter v. NRDC, Inc., 555 U.S. 7 (2008),
in support of its assertion that preparing
for war still plainly outweighs the
interests in the safety of marine life.
Considering these interests, the
commenter recommended that NMFS
consider granting the Navy’s request for
two additional incidental takes.
Response: NMFS has made the
required findings on the Navy’s request
consistent with the statutory criteria
under the MMPA and has authorized
two additional takes of large whales by
serious injury or mortality by vessel
strike for the remainder of the current
regulatory period (two takes in addition
to the three takes authorized in the
current regulations). NMFS does not
weigh the necessity of Navy training
and testing against the risks to marine
mammals as part of the required
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analysis for issuance of take regulations
under the MMPA. The MMPA requires
NMFS to authorize the incidental take
of marine mammals caused by specified
activities upon request, provided certain
findings are made (16 U.S.C.
1371(a)(5)(A)). NMFS’ least practicable
adverse impact determination for
military readiness activities must
include consideration of personnel
safety, practicality of implementation,
and impact on the effectiveness of the
military readiness activity (16 U.S.C.
1371(a)(5)(a)(iii)).
Comment 9: A commenter noted
NMFS’ reference to Cure et al. (2021)
and Isojunno et al. (2020) in the 2023
HSTT proposed rule (88 FR 68290,
October 3, 2023) discussing sperm
whale behavioral responses to exposure
to pulsed active sonar (PAS) and
continuous active sonar (CAS). The
commenter stated that physical trauma,
sensory impairment (PTS, TTS, and
acoustic masking), physiological
responses (particularly stress
responses), and behavioral disturbances
are all part of the harassment of the
whales and that these factors have not
been included in the ‘‘take’’ of the three
whales already, only the mortalities
have been counted. The commenter
stated that even brief and transient
exposure to modest levels of midfrequency military sonar has been
observed to cause whales to strand or
perish at sea within hours (Dave, D.M.,
& Dave, M., 2023). These studies do not
include the permanent injuries to these
marine mammals’ hearing and sonar
capabilities. The commenter stated that
effects on marine mammal hearing are
not mentioned outside of some studies
on stranding and should include more
study and data collection by marine
mammal experts when it comes to PTS
and sonar damage to these animals due
to the impact of the U.S. Navy’s military
ocean noise pollution.
Response: In the 2023 HSTT proposed
rule (88 FR 68290, October 3, 2023),
NMFS included a discussion of relevant
literature that had published since
publication of the 2020 HSTT final rule
(85 FR 41780, July 10, 2020), and in this
final rule, NMFS has included a
discussion of relevant literature that has
published since publication of the 2023
HSTT proposed rule. Herein, and in the
2023 HSTT proposed rule, NMFS
discussed all relevant literature, not just
that related to vessel strike. (See the
New Pertinent Science Since
Publication of the 2020 HSTT Final
Rule section of the 2023 HSTT proposed
rule and the Potential Effects of
Specified Activities on Marine
Mammals and their Habitat section of
this final rule.)
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The commenter’s statement that
‘‘even brief and transient exposure to
modest levels of mid-frequency military
sonar has been observed to cause whales
to strand or perish at sea within hours’’
is not supported. The proposed rule
discussed the limited examples of when
tactical active sonar, in certain
circumstances, have been found to have
likely contributed to marine mammal
stranding events. The reference that the
commenter cites (Dave, D.M. & Dave,
M., 2023) states that ‘‘even a brief and
transient exposure to modest levels of
mid-frequency military sonar has been
observed to cause whales to strand or
perish at sea within hours,’’ citing
Fernández et al. (2005) and NOAA and
U.S. Department of the Navy (2001).
These publications discuss two specific
stranding events in the Canary Islands
and the Bahamas, respectively. NMFS is
aware of stranding events coincident
with military MFAS use in which
exposure to sonar is believed to have
been a contributing factor and discussed
these cases in detail in the 2018 HSTT
proposed rule. While NMFS did not
repeat this information in the 2023
proposed rule as the analyses remain
unchanged, NMFS stated in the rule that
we refer the reader to complete analyses
described in the 2018 HSTT final rule
or an updated analysis in the 2020
HSTT final rule, where appropriate.
It is unclear what the commenter
means by physical trauma, sensory
impairment (PTS, TTS, and acoustic
masking), physiological responses
(particularly stress responses), and
behavioral disturbances not having been
included in the ‘‘take’’ of the three
whales already, and that only the
mortalities have been counted. In the
2020 HSTT final rule, NMFS discussed
all of the likely impacts to marine
mammals, including PTS, TTS,
masking, and stress, and authorized take
of marine mammals by Level B
harassment, Level A harassment, and
mortality. The 2023 HSTT proposed
rule and this final rule only discuss
changes to NMFS’ analysis regarding
mortality of marine mammals in detail,
and refer back to the 2018 HSTT
proposed and final rules and the 2020
HSTT final rule regarding take by Level
A harassment and Level B harassment.
However, NMFS’ analysis, including its
negligible impact determination, takes
into consideration the total authorized
take, not just mortality.
Comment 10: A commenter stated that
in addition to blue, humpback, and fin
whales, the Navy also identifies other
large whales in its request (Bryde’s
whales, gray whales, minke whales,
sperm whales, and sei whales) which
are also all vulnerable to vessel strikes
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(Laist et al. 2001, Glass et al. 2008, and
van der Hoop et al. 2015). NMFS’ 2023
HSTT proposed rule (88 FR 68290,
October 3, 2023) determined that the
likelihood of vessel strikes to those
whales is ‘‘discountable’’ due to their
relatively low occurrence in the HSTT
Study Area and the fact that they have
rarely, if ever, been recorded struck by
vessels. Due to the fact that reported
collisions vastly underestimate actual
strikes, the commenter asks NMFS and
the Navy to approach vessel strikes and
other harm very conservatively,
particularly in light of how some of
these whales are particularly vulnerable
to vessel strike and at already-small
population levels, as detailed in the
commenter’s July 1, 2022 letter.
Response: NMFS concurs with the
commenter that all large whales are
vulnerable to vessel strike, and that
reported vessel strikes vastly
underestimate actual strikes across
many industries generally. However,
NMFS has already conducted a
conservative vessel strike analysis.
While all large whales are vulnerable to
vessel strike, it would be inappropriate
to assume that all large whales that
occur in the HSTT Study Area are likely
to be struck by U.S. Navy vessels.
Of note, the commenter is correct that
NMFS does not anticipate vessel strike
of Bryde’s whale, minke whale, or
sperm whale. However, NMFS did
propose to authorize take by M/SI by
vessel strike of sei whale and Eastern
North Pacific gray whale in the 2023
HSTT proposed rule (88 FR 68290,
October 3, 2023) and would authorize
such take in this final rule. NMFS
proposed authorizing one take (0.14
takes annually) of sei whale (Eastern
North Pacific stock) and four takes (0.57
takes annually) of Eastern North Pacific
gray whale.
Regarding stocks for which take by M/
SI by vessel strike was not proposed, as
stated in the proposed rule, stocks that
have no record of ever having been
struck by any vessel are considered to
have a zero percent likelihood of being
struck by the Navy in the 7-year period
of the rule. This includes Bryde’s whale,
minke whale, and the CA/OR/WA stock
of sperm whale raised by the commenter
(an individual of the Hawaii stock of
sperm whale was struck in 2007; see
table 7 of this final rule). Stocks that
have never been struck by the Navy,
have rarely been struck by other vessels,
and have a low percent likelihood based
on the historical vessel strike
calculation are also considered to have
a zero percent likelihood to be struck by
the Navy during the 7-year rule. We
note that while vessel strike records
have not differentiated between Eastern
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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
encountered, much less struck. Further,
it is unlikely that the Hawaii stock of
sperm whale would be struck given the
zero percent likelihood of striking a
sperm whale as indicated by the
quantitative analysis in the Estimated
Take From Vessel Strikes and
Explosives by Serious Injury or Mortality
Vessel Strike section of the proposed
rule and the Authorized Take From
Vessel Strikes and Explosives by Serious
Injury or Mortality section in this final
rule. Vessel strikes of the Hawaii stock
of sperm whale are also unlikely given
the fact that the last U.S. Navy strike of
a Hawaii stock sperm whale was in
2007, before the mitigation updates
discussed above, and that, with the
exception of humpback whales, vessel
strikes (both military and non-military)
of other large whale species in the HRC
are extremely rare events (Carretta
2021b; Carretta 2022). Given this
analysis, NMFS concludes that the
proposed take by M/SI by vessel strike
included in the proposed rule remains
appropriately conservative, and has not
included take by M/SI by vessel strike
of Bryde’s whale, Western North Pacific
gray whale, minke whale, or sperm
whale in this final rule.
Comment 11: A commenter stated that
aside from excluding impacts from
foreign vessels, the proposed rule looks
at the impacts of vessel strikes on large
whales almost in isolation and does not
adequately assess new science on the
combined impacts of the Navy’s
activities, in particular on large whales.
The commenter asserted that while the
Navy acknowledges that sonar and
aircraft may affect whales, it does not
adequately consider the extent of these
impacts. Any analysis of the impacts of
the Navy’s exercises must include, in
addition to vessel strike impacts, the
impacts from sonar activities of
domestic vessels and foreign vessels
involved in joint training exercises and
any other stressor caused by the Navy’s
activities. The commenter also asserted
that the Navy’s literature review does
not adequately focus on the large baleen
whales that are of concern in this most
recent request.
The commenter stated that as it noted
in its July 2022 letter, in its review of
sound effects on animals, the Navy
focuses heavily on pinnipeds (seals and
sea lions) and odontocetes (dolphins
and toothed whales), while their request
for increased take focuses on mysticetes
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(baleen whales). Mysticetes’ hearing
systems are different from those of
pinnipeds and odontocetes, and so
while they are closely related one
cannot infer that each group will
experience the same effects from sound
pollution (Southall et al. 2019).
Mysticetes’ cochlea have their own
unique shape, which in concert with the
larger mass of baleen whales indicates
that they are more sensitive to lowfrequency sound (Southall et al. 2019).
Though auditory capabilities in baleen
whales are understudied (Southall et al.
2019), absence of literature on baleen
whales does not indicate absence of
effect. The commenter stated that
furthermore, the Navy ignored key
papers studying the effect of sonar on
baleen whales. It specifically stated that
the Navy failed to consider, and NMFS
failed to address in its proposed rule,
Goldbogen et al. (2013), and further
references Southall et al. (2019) and
Southall et al. (2021).
Response: NMFS disagrees with the
commenter that the proposed rule looks
at the impacts of vessel strikes on large
whales almost in isolation and does not
adequately assess new science on the
combined impacts of the Navy’s
activities, in particular on large whales.
While NMFS did not repeat discussion
of a portion of the analysis that did not
change (e.g., takes by harassment), this
analysis was incorporated into the
proposed rule and this final rule by
reference, and NMFS considered those
impacts in conjunction with the
updated M/SI analysis in making its
determinations.
NMFS further disagrees that the
literature review should have focused
on large baleen whales. In the proposed
rule (88 FR 68290, October 3, 2023), and
in this final rule, NMFS’ literature
review discussed recent literature
concerning potential impacts from all of
the Navy’s activities, not just those
related to vessel strike. As the
commenter has noted in its letter, NMFS
must consider the full range of effects of
the Navy’s activity, not just the potential
for vessel strike of large whales in
isolation. NMFS agrees with the
commenter that an absence of literature
on baleen whales does not indicate an
absence of effects, nor has NMFS drawn
such a conclusion. Rather, NMFS
conducted a thorough analysis on the
impacts of the Navy’s activities,
including sonar and explosive use, on
mysticetes, as well as other taxa, as
described in the proposed rule and this
final rule, which in some cases,
reference the 2018 (83 FR 66846,
December 27, 2018) and 2020 HSTT
final rules (85 FR 41780, July 10, 2020).
Regarding the specific studies that the
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commenter asserts NMFS failed to
consider, while not directly cited to in
the 2023 HSTT proposed rule (88 FR
68290, October 3, 2023), NMFS
considered and cited Goldbogen et al.
(2013) in the 2018 (83 FR 66846,
December 27, 2018) and 2020 HSTT
final rules (85 FR 41780, July 10, 2020),
and the Navy considered and cited this
paper in the 2018 HSTT EIS/OEIS.
NMFS considered and cited Southall et
al. (2019) and Southall et al. (2021) in
the 2023 HSTT proposed rule.
Please see NMFS’ response to
Comment 7 regarding foreign vessels.
Comment 12: A commenter stated that
the rule overlooks the likelihood that
the Navy’s activities will take humpback
whales from the endangered Central
America distinct population segment
(DPS). The commenter stated that its
read of the science is that most of the
humpback whale deaths that occur off
California could be from the endangered
Central America DPS. The commenter
further stated that Wade et al. (2017)
predicted a 67.2 percent movement
probability for a whale in California to
move to Central America. In other
words, an estimated 7.056 Central
America DPS humpback whales could
die from vessel strikes off California
annually (10.5 deaths * 0.672). The
commenter stated in its letter that
applying the Rockwood et al. (2021)
model, 10.5 humpback mortalities occur
annually off California from the January
to April and July to November periods
combined. The commenter stated that
this does not include potential deaths
from other sources or in other locations
yet still represents a significant source
of mortality for this already endangered
population.
Response: NMFS carefully considered
the potential for each stock of large
whales to be taken by serious injury or
mortality by vessel strike. As stated in
the 2023 HSTT proposed rule (88 FR
68290, October 3, 2023), regarding the
likelihood of striking a humpback whale
from a particular DPS, NMFS evaluated
the relative abundance of each of these
DPS in California waters. Curtis et al.
(2022) estimated the abundance of the
Central America DPS to be 1,496
whales. From Wade et al. (2017), about
93 percent (or 1,391 whales) of these
humpbacks that winter in Central
America will move to Oregon/California
in the summer months. While there is
currently no abundance estimate for the
Mexico DPS, an estimated 3,477 whales
from the Mexico DPS feed off the U.S.
West Coast (Calambokidis and Barlow
2020; Curtis 2022). Based on this
information, we estimate that
approximately 30 percent of the
humpback whales off the coast of
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California may be from the Central
America DPS and the remaining 70
percent are expected to be from the
Mexico DPS. Therefore, we anticipate
that if a Navy vessel strike of a
humpback whale were to occur within
SOCAL, it would likely be from the
Mexico DPS.
The commenter is correct that Wade
et al. (2017) predicts that 67.2 percent
of whales that summer in Oregon and
California will move to Central America
for the winter. However, NMFS
disagrees with the commenter’s
implication that it is more appropriate
for NMFS to assume that 67.2 percent of
humpbacks off of California are of the
Central America DPS, and the
commenter has not provided
justification for doing so. (Of note, an
updated paper from Wade (2021) shows
that 58 percent of whales that summer
in Oregon and California will move to
Mexico (only 42 percent will move to
Central America)). Rather, NMFS
continues to find that it is appropriate
to use the abundance estimates
described above and the estimate that
approximately 93 percent of humpbacks
that winter in Central America will
move to Oregon/California in the
summer months to determine the
relative abundance of each DPS off the
coast of California. Therefore, NMFS
continues to conclude that if a Navy
vessel strike of a humpback whale were
to occur within SOCAL, it would likely
be from the Mexico DPS.
Mitigation and Monitoring
Comment 13: A commenter stated that
in addition to strengthening the new
and revised mitigation measures that
NMFS included in the 2023 HSTT
proposed rule, it should also require the
following additional mitigation
measures to ensure the least practicable
adverse impact to marine mammals. The
commenter noted that it and others have
requested and expounded upon these
measures in previous comment letters.
1. Reinstating more protective
mitigation areas and restricted training
exercises in key migration corridors,
feeding habitat, and other biologically
important areas (BIAs) and creating/
expanding protective mitigation areas to
protect newly recognized critical habitat
and other BIAs. In a related comment,
a separate commenter stated that the
chances of an incidental take can be
dramatically reduced by adjusting the
time and location of exercises (e.g.,
minimizing activity in the vicinity of
California’s Channel Islands during
July–October) and reducing speed in
mitigation areas. The commenter further
asserted that additional BIAs identified
by Kratofil et al. 2023 provide new
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information that necessitates
reevaluation of mitigation measures, yet
NMFS rejects adding these new
mitigation areas as ‘‘impracticable.’’ A
third commenter stated that it is crucial
to integrate scientific research, public
awareness, and proactive measures to
ensure the sustained well-being of gray
whales and the preservation of their
migratory habitats.
2. Restricting activities when whale
detection is particularly difficult, such
as periods of low visibility (Williams et
al. 2016).
3. Improving detection of marine
mammals by adding alternative
detection methods, including safe/
environmentally-sound drone, thermal,
and/or acoustic technologies, to
lookouts/observers (Verfuss et al. 2018).
In a related comment, a commenter
recommended utilizing existing acoustic
detection systems to track marine
mammals in near real-time.
4. Capping/reducing the level of naval
activities authorized each year, in
particular major exercises. In a related
comment, a separate commenter stated
that it is crucial to limit the [Navy]’s
takes on marine mammals.
5. Halting training exercises when
whale presence in the area is ‘‘High’’ or
‘‘Very High,’’ per WhaleSafe (see
https://whalesafe.com).
Response: Under the MMPA, NMFS’
least practicable adverse impact
determination for military readiness
activities must include consideration of
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity (16 U.S.C. 1371(a)(5)(a)(iii)).
NMFS has responded to these
recommended measures, by
corresponding number.
1. In the 2023 HSTT proposed rule,
NMFS discussed that since publication
of the 2020 HSTT final rule, Kratofil et
al. (2023) identified updated BIAs in
Hawaii. The HSTT Study Area overlaps
the updated BIAs for small and resident
populations of the following species in
Hawaii: spinner dolphin, short-finned
pilot whale, rough-toothed dolphin,
pygmy killer whale, pantropical spotted
dolphin, melon-headed whale, false
killer whale, dwarf sperm whale, goosebeaked whale, common bottlenose
dolphin, and Blainville’s beaked whale.
Further, the HSTT Study Area overlaps
updated BIAs for humpback whale
reproduction in Hawaii. The updated
BIAs overlap critical Navy training and
testing areas within the HSTT Study
Area, including most of the internal
Navy operating areas. Please see Kratofil
et al. (2023) for additional details about
the BIAs.
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Since publication of the 2023 HSTT
proposed rule, Calambokidis et al.
(2024) identified updated BIAs on the
West Coast of the U.S. The HSTT Study
Area overlaps feeding BIAs for blue
whale and fin whale in SOCAL.
Additionally, it overlaps a reproductive
BIA as well as northbound and
southbound migratory BIAs for gray
whale. Please see Calambokidis et al.
(2024) for additional details about the
BIAs.
NMFS and the Navy considered
additional mitigation areas (beyond
those already identified with associated
measures to reduce impacts to marine
mammals) to further protect marine
mammals, including odontocetes with
small or resident populations in the
HSTT Study Area, and large whales
with feeding, reproductive, and
migratory BIAs in the HSTT Study Area.
This includes consideration of new
mitigation areas that could be based on
newly identified BIAs in Hawaii
(Kratofil et al. 2023) and on the West
Coast (Calambokidis et al. 2024). The
HRC overlaps BIAs identified in Kratofil
et al. (2023) for humpback whale,
spinner dolphin, short-finned pilot
whale, rough-toothed dolphin, pygmy
killer whale, pantropical spotted
dolphin, melon-headed whale, false
killer whale, dwarf sperm whale, goosebeaked whale, common bottlenose
dolphin, and Blainville’s beaked whale.
All of the BIAs that overlap the HRC are
small and resident population BIAs,
with the exception of the humpback
whale reproductive BIA. SOCAL
overlaps BIAs identified in
Calambokidis et al. (2024) for blue
whale (feeding area), fin whale (feeding
area), and gray whale (migratory route).
Additional restrictions in mitigation
areas beyond those restrictions and
areas included in the 2020 HSTT final
rule (including mitigation to reduce
vessel strike risk such as vessel speed
restrictions, and in consideration of the
newly identified BIAs (Kratofil et al.
2023 and Calambokidis et al. 2024)) is
impracticable given overlap with critical
Navy training areas in the HRC and
SOCAL, including areas around the
Channel Islands in SOCAL. However,
many of the BIAs identified in Kratofil
et al. 2023 and Calambokidis et al.
(2024) partially or fully overlap the
mitigation areas included in the 2020
HSTT final rule and this final rule and
are aimed at reducing impacts to the
same species for which Kratofil et al.
2023 and Calambokidis et al. (2024)
identified BIAs. In the HRC, the existing
mitigation areas are targeted and
expected to reduce impacts to
humpback whales, false killer whales,
dwarf sperm whales, pygmy killer
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4955
whales, short-finned pilot whales,
melon-headed whales, bottlenose
dolphins, spotted dolphins, spinner
dolphins, rough-toothed dolphins,
goose-beaked whales, and Blainville’s
beaked whales (i.e., all species for
which Kratofil et al. (2023) identified
BIAs). In SOCAL, the existing mitigation
areas are aimed at reducing impacts to
blue whales, fin whales, and gray
whales (i.e., all species for which
Calambokidis et al. (2024) identified
BIAs). Further, as included in the 2023
HSTT proposed rule, this final rule
requires that Navy personnel must issue
real-time notifications to Navy vessels of
large whale aggregations (four or more
whales) within 1 nmi (1.9 km) of a Navy
vessel in a select area of SOCAL, and
that Navy personnel must send alerts to
Navy vessels of increased risk of strike
following any reported Navy vessel
strike in the HSTT Study Area. Last, this
final rule includes modification of two
mitigation measures from the 2020
HSTT final rule (85 FR 41780; July 10,
2020) to further reduce the potential for
vessel strike.
Beyond the papers described herein,
NMFS is not aware of, nor have
commenters provided, additional
research that suggests other areas
warrant additional mitigation. While
NMFS agrees with the commenter that
public awareness can be an important
part of gray whale conservation, NMFS
does not anticipate that additional
public awareness would assist in
mitigating effects of Navy’s activities on
gray whales, and therefore, has not
required the Navy to implement
measures related to public awareness.
For a discussion of the mitigation
measures required by this final rule,
please see the Mitigation Measures
section.
Please see NMFS’ response to
Comment 14 regarding vessel speed
restrictions.
2. Anti-submarine warfare training
involving the use of mid-frequency
active sonar (MFAS) typically involves
the periodic use of active sonar to
develop the ‘‘tactical picture,’’ or an
understanding of the battle space (e.g.,
area searched or unsearched, presence
of false contacts, and an understanding
of the water conditions). Developing the
tactical picture can take several hours or
days, and typically occurs over vast
waters with varying environmental and
oceanographic conditions. Training
during both high visibility (e.g.,
daylight, favorable weather conditions)
and low visibility (e.g., nighttime,
inclement weather conditions) is vital
because sonar operators must be able to
understand the environmental
differences between day and night and
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varying weather conditions and how
they affect sound propagation and the
detection capabilities of sonar.
Temperature layers move up and down
in the water column and ambient noise
levels can vary significantly between
night and day, affecting sound
propagation and how sonar systems are
operated. Reducing or securing power in
low-visibility conditions as a mitigation
would affect a commander’s ability to
develop the tactical picture and would
prevent sonar operators from training in
realistic conditions. Further, during
integrated training multiple vessels and
aircraft may participate in an exercise
using different dimensions of warfare
simultaneously (e.g., submarine warfare,
surface warfare, air warfare, etc.). If one
of these training elements were
adversely impacted (e.g., if sonar
training reflecting military operations
were not possible), the training value of
other integrated elements would also be
degraded. Additionally, failure to test
such systems in realistic military
operational scenarios increases the
likelihood these systems could fail
during military operations, thus
unacceptably placing sailors’ lives and
the Nation’s security at risk. Some
systems have a nighttime testing
requirement; therefore, these tests
cannot occur only in daylight hours.
Reducing or securing power in low
visibility conditions would decrease the
Navy’s ability to determine whether
systems are operationally effective,
suitable, survivable, and safe for their
intended use by the fleet even in
reduced visibility or difficult weather
conditions.
3. The Navy has compiled
information related to the effectiveness
of certain equipment to detect marine
mammals in the context of their
activities, as well as the practicality and
effect on mission effectiveness of using
various equipment. NMFS has reviewed
this evaluation and concurs with the
characterizations and the conclusions
below.
Thermal detection—Thermal
detection systems are more useful for
detecting marine mammals in some
marine environments than others.
Current technologies have limitations
regarding water temperature and survey
conditions (e.g., rain, fog, sea state,
glare, ambient brightness), for which
further effectiveness studies are
required. Thermal detection systems are
generally thought to be most effective in
cold environments, which have a large
temperature differential between an
animal’s temperature and the
environment. Current thermal detection
systems have proven more effective at
detecting large whale blows than the
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bodies of small animals, particularly at
a distance. The effectiveness of current
technologies has not been demonstrated
for small marine mammals. Thermal
detection systems exhibit varying
degrees of false positive detections (i.e.,
incorrect notifications) due in part to
their low sensor resolution and reduced
performance in certain environmental
conditions. False positive detections
may incorrectly identify other features
(e.g., birds, waves, boats) as marine
mammals. In one study, a false positive
rate approaching one incorrect
notification per 4 min of observation
was noted.
The Navy has been investigating the
use of thermal detection systems with
automated marine mammal detection
algorithms for future mitigation during
training and testing, including on
autonomous platforms. Thermal
detection technology being researched
by the Navy, which is largely based on
existing foreign military grade
hardware, is designed to allow observers
and eventually automated software to
detect the difference in temperature
between a surfaced marine mammal
(i.e., the body or blow of a whale) and
the environment (i.e., the water and air).
Although thermal detection may be
reliable in some applications and
environments, the current technologies
are limited by their: (1) Low sensor
resolution and a narrow field of view,
(2) reduced performance in certain
environmental conditions, (3) inability
to detect certain animal characteristics
and behaviors, and (4) high cost and
uncertain long-term reliability.
Thermal detection systems for
military applications are deployed on
various Department of Defense (DoD)
platforms. These systems were initially
developed for night time targeting and
object detection such as a boat, vehicle,
or people. Existing specialized DoD
infrared/thermal capabilities on Navy
aircraft and surface ships are designed
for fine-scale targeting. Viewing arcs of
these thermal systems are narrow and
focused on a target area. Furthermore,
sensors are typically used only in select
training events, not optimized for
marine mammal detection, and have a
limited lifespan before requiring
expensive replacement. Some sensor
elements can cost upward of $300,000
to $500,000 per device, so their use is
predicated on a distinct military need.
One example of trying to use existing
DoD thermal systems is being proposed
by the U.S. Air Force. The Air Force
agreed to attempt to use specialized U.S.
Air Force aircraft with military thermal
detection systems for marine mammal
detection and mitigation during a
limited at-sea testing event. It should be
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noted, however, that these systems are
specifically designed for and integrated
into a small number of U.S. Air Force
aircraft and cannot be added or
effectively transferred universally to
Navy aircraft. The effectiveness remains
unknown in using a standard DoD
thermal system for the detection of
marine mammals without the addition
of customized system-specific computer
software to provide critical reliability
(enhanced detection, cueing for an
operator, reduced false positive, etc.)
Finally, current DoD thermal sensors
are not always optimized for marine
mammal detections versus object
detection, nor do these systems have the
automated marine mammal detection
algorithms the Navy is testing via its
ongoing research program. The
combination of thermal technology and
automated algorithms are still
undergoing demonstration and
validation under Navy funding.
Thermal detection systems
specifically for marine mammal
detection have not been sufficiently
studied both in terms of their
effectiveness within the environmental
conditions found in the HSTT Study
Area and their compatibility with Navy
training and testing (i.e., polar waters vs.
temperate waters). The effectiveness of
even the most advanced thermal
detection systems with technological
designs specific to marine mammal
surveys is highly dependent on
environmental conditions, animal
characteristics, and animal behaviors.
At this time, thermal detection systems
have not been proven to be more
effective than, or equally effective as,
traditional techniques currently
employed by the Navy to observe for
marine mammals (i.e., naked-eye
scanning, hand-held binoculars, highpowered binoculars mounted on a ship
deck). Focusing on thermal detection
systems could also provide a distraction
from and compromise to the Navy’s
ability to implement its established
observation and mitigation
requirements. Last, the Navy does not
have available manpower to add
Lookouts to use thermal detection
systems in tandem with existing
Lookouts who are using traditional
observation techniques.
The Defense Advanced Research
Projects Agency funded six initial
studies to test and evaluate 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.
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The Office of Naval Research Marine
Mammals and Biology program funded
a project (2013–2019) to test the thermal
limits of infrared-based automatic whale
detection technology. That project
focused on capturing whale spouts at
two different locations featuring
subtropical and tropical water
temperatures, optimizing detector/
classifier performance on the collected
data, and testing system performance by
comparing system detections with
concurrent visual observations. Results
indicated that thermal detection systems
in subtropical and tropical waters can
be a valuable addition to marine
mammal surveys within a certain
distance from the observation platform
(e.g., during seismic surveys, vessel
movements), but have challenges
associated with false positive detections
of waves and birds (Boebel, 2017).
While Zitterbart et al. (2020) reported
on the results of land-based thermal
imaging of passing whales, their
conclusion was that thermal technology
under the right conditions and from
land can detect a whale within 3 km
although there could also be lots of false
positives, especially if there are birds,
boats, and breaking waves at sea.
The Navy’s Living Marine Resources
program is funding one ongoing thermal
imaging project entitled ‘‘Thermal
Imaging for Vessel Strike Mitigation on
Autonomous Vessels Project 68’’. The
project is focused on adapting and
testing two thermal imaging-based
whale detection systems to reduce the
potential for vessel strike during
navigation of unmanned Navy surface
vessels. Phase one is planned for 2024
and 2025. The schedule for subsequent
phases will be determined as work
progresses. Project details are available
at: https://exwc.navfac.navy.mil/
Portals/88/Documents/EXWC/
Environmental_Security/Living%20
Marine%20Resources/LMRFactSheet_
Project68.pdf.
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
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equipment); logistical and physical
considerations for device installment,
repair, and replacement (e.g.,
conducting engineering studies to
ensure there is no electronic or power
interference with existing shipboard
systems); manpower and resource
considerations for training personnel to
effectively operate the equipment; and
considerations of potential security and
classification issues. New system
integration on Navy assets can entail up
to 5 to 10 years of effort to account for
acquisition, engineering studies, and
development and execution of systems
training. The Navy will provide
information to NMFS about the status
and findings of Navy-funded thermal
detection studies and any associated
practicability assessments at the annual
adaptive management meetings.
Passive Acoustic Monitoring—
Regarding the recommendation to
utilize existing acoustic detection
systems to track marine mammals in
near real-time, the Navy does employ
passive acoustic monitoring when
practicable to do so (i.e., when assets
that have passive acoustic monitoring
capabilities are already participating in
the activity). For other explosive events,
there are no platforms participating that
have passive acoustic monitoring
capabilities. Adding a passive acoustic
monitoring capability (either by adding
a passive acoustic monitoring device to
a platform already participating in the
activity, or by adding a platform with
integrated passive acoustic monitoring
capabilities to the activity, such as a
sonobuoy) for mitigation is not
practicable. As discussed in chapter 5
(Mitigation), section 5.5.3 (Active and
Passive Acoustic Monitoring Devices) of
the 2018 HSTT FEIS/OEIS, there are
significant manpower and logistical
constraints that make constructing and
maintaining additional passive acoustic
monitoring systems or platforms for
each training and testing activity
impracticable. Additionally, diverting
platforms that have passive acoustic
monitoring platforms would impact
their ability to meet their Title 10
requirements for maintaining military
readiness and reduce the service life of
those systems.
The use of real-time PAM for
mitigation at the Southern California
Anti-submarine Warfare Range (SOAR)
exceeds the capability of current
technology. The Navy has a significant
research investment in the Marine
Mammal Monitoring on Navy Ranges
(M3R) system at three ocean locations
including SOAR. However, this system
was designed and intended to support
marine mammal research for select
species, and not as a mitigation tool.
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Marine mammal PAM using
instrumented hydrophones is still under
development and while it has produced
meaningful results for marine species
monitoring, abundance estimation, and
research, it was not developed for, nor
is it appropriate for, real-time
mitigation. The ability to detect,
classify, and develop an estimated
position (and the associated area of
uncertainty) differs across species,
behavioral context, animal location vs.
receiver geometry, source level, etc.
Based on current capabilities, and
given adequate time, vocalizing animals
within an indeterminate radius around
a particular hydrophone are detected,
but obtaining an estimated position for
all individual animals passing through a
predetermined area is not assured.
Detecting vocalizations on a
hydrophone does not determine
whether vocalizing individuals would
be within the established mitigation
zone in the timeframes required for
mitigation. Since detection ranges are
generally larger than current mitigation
zones for many activities, this would
unnecessarily delay events due to
uncertainty in the animal’s location and
put at risk event realism. If an event
were to be moved based upon lowconfidence 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
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in water depths of approximately 2 km
is preferred. In the absence of detection,
the analyst can only determine with
confidence if a group of beaked whales
is somewhere within 6 km of a
hydrophone. Beaked whales produce
stereotypic click trains during deep (500
m) foraging dives. The presence of a
vocalizing group can be readily detected
by an analyst by examining the click
structure and repetition rate. However,
estimating position is possible only if
the same train of clicks is detected on
multiple hydrophones which is often
precluded by the animal’s narrow beam
pattern. Currently, this is not an
automated routine.
In summary, the analytical and
technical capabilities required to use
PAM such as M3R at SOAR as a
required mitigation tool are not
sufficiently robust to rely upon due to
limitations with near real-time
classification and determining estimated
positions. The level of uncertainty as to
a species presence or absence and
location are too high to provide the
accuracy required for real-time
mitigation. As discussed in chapter 5
(Mitigation) of the 2018 HSTT FEIS/
OEIS, existing Navy visual mitigation
procedures and measures, when
performed by individual units at-sea,
still remain the most effective and
practical means of protection for marine
species.
NMFS is not requiring drones to be
used at this time and the commenters
did not provide information supporting
the recommendation that they be used
when considering the extensive
monitoring by Lookouts required.
4. The commenters neither offer a
rationale for why a cap on the level of
activities is needed nor do they suggest
what an appropriate cap might be. The
Navy is responsible under Title 10 of
the U.S. Code for conducting the needed
amount of testing and training to
maintain military readiness, which is
what they have proposed and NMFS has
analyzed. Further, the MMPA states that
NMFS shall issue MMPA authorizations
if the necessary findings can be made,
as they have been here. Importantly, as
described in the Mitigation Measures
section, the Navy has determined that it
is practicable to limit activities (active
sonar, explosive use, etc.) to varying
degrees in five areas that are important
to sensitive species or for important
behaviors in order to minimize impacts
that are more likely to lead to adverse
effects on rates of recruitment or
survival and is required by this final
rule to do so.
5. During the promulgation of this
rule, NMFS and the Navy fully explored
the potential for the Navy to incorporate
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WhaleSafe into its mitigation methods.
However, the current WhaleSafe
operational areas (Santa Barbara
Channel and off the coast of San
Francisco) do not overlap the HSTT
Study Area. As such, while WhaleSafe
can inform whale occurrence in other
areas of Southern California, it is not an
appropriate tool for determining
mitigation actions in the HSTT Study
Area, and NMFS has not required the
Navy to halt training exercises when
WhaleSafe indicates that whale
presence in the area is ‘‘high’’ or ‘‘very
high’’ as suggested by the commenter.
However, NMFS has recommended to
the Navy, including as a conservation
recommendation in the 2024 reinitiated
Biological and Conference Opinion, that
it explore funding options and seek
partnership opportunities for the
development of a mapping and analysis
tool that integrates acoustic and visual
whale detections with model
predictions to display near real-time
whale presence data within the SOCAL
and nearby surrounding areas.
Information generated by such a tool
could then be used by Navy, and
potentially non-military, vessels to
reduce the risk of large whale vessel
strike in Southern California.
Comment 14: A commenter stated that
NMFS must substantially strengthen
mitigation measures, including
requiring more effective measures to
protect large whales from vessel strikes,
before issuing any additional take
authorizations to the Navy. The
commenter stated that NMFS rejected
other mitigation measures, such as
requiring vessels used in the Navy’s
activities to slow to 10 kn (18.5 km per
hour) or less in certain BIAs to reduce
the risk of vessel strikes, by
downplaying the risk of vessel strikes to
endangered whales and other species
impacted by the Navy’s activities. The
commenter stated that NMFS’ proposed
modifications to the mitigation
measures fall short of meeting the least
practicable adverse impact standard.
Commenters provided several specific
recommendations for mitigation
measures.
1. The 2023 HSTT proposed rule
included a revised mitigation measure
that states ‘‘if marine mammals are
observed, Navy personnel must
maneuver (which may include reducing
speed as the mission or circumstances
allow) to maintain distance.’’ The
reference to reducing speed as the
mission or circumstances allow is a
revision from the measure in the 2020
HSTT final rule. The commenter stated
that this measure should be mandatory
in important whale habitat, where
whales are known to occur, and where
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vessel strikes have occurred or are
expected to occur, and should be
implemented in these areas even when
whales have not been observed by
Lookouts. Another commenter
recommended focusing on vessel speeds
and their impact on marine mammal
safety to mitigate the risks associated
with high-speed vessel travel and
including revised protocols.
2. The 2023 HSTT proposed rule also
requires that Navy personnel must send
alerts to Navy vessels of increased risk
of strike following any reported Navy
vessel strike in the HSTT Study Area.
The commenter stated that NMFS
should attach specific actions required
of other vessels in the area, including a
10 kn (18.5 km per hour) ship speed,
when a Navy vessel strike has been
reported, in order to reduce the risk of
further strikes. The commenter stated
that these alerts should also go to nonNavy vessels in the vicinity that pose a
risk to whales.
3. The 2023 HSTT proposed rule
modified the requirement for awareness
messages disseminated in Southern
California. The commenter stated that it
supports the use of more accurate
seasonal information to inform large
whale awareness messages, but expects
awareness and alerts to be tied to more
robust mitigation action, and
recommends that if a marine mammal is
spotted, NMFS should require a
mandatory 10 kn (18.5 km per hour)
ship speed limit.
4. The 2023 HSTT proposed rule also
contains a new mitigation measure in
which Navy personnel would issue realtime notifications to Navy vessels of
large whale aggregations (four or more
whales) within 1 nmi (1.9 km) of a Navy
vessel in a select area of SOCAL (Of
note, the four whales do not have to be
the same species and do not have to be
part of the same group (e.g., two whales
of one species sighted at a distance off
the port side at 500 yards (yd; 457.2 m)
and two more whales of another species
sighted off the starboard side at 500 yd
(457.2 m) would be considered an
aggregation under this measure)). The
commenter recommended that (a) this
should apply any time a whale is
sighted (i.e., Navy should not have to
observe at least four whales to trigger
this measure), (b) this should have no
geographic limitation, and (c) this
should trigger a mandatory 10 kn (18.5
km per hour) ship speed limit.
5. A commenter stated that the Navy
will evaluate future revisions to online
or DVD Marine Species Awareness
Training (MSAT) video training to
emphasize that when a protected
species is spotted, this may be an
indicator that additional marine
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mammals are present and nearby, and
the vessel should take this into
consideration when transiting. The
commenter stated that this purported
mitigation measure should be more
forceful; when a protected species is
spotted, protective actions must result.
Response: Under the MMPA, NMFS’
least practicable adverse impact
determination for military readiness
activities must include consideration of
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity (16 U.S.C. 1371(a)(5)(a)(iii)).
The recommendation for NMFS to
require, in some cases a reduction in
speed, and in other cases a 10 kn (18.5
km per hour) speed limit, generally
speaking, is impracticable because these
speed reductions and further reductions
to Navy vessel speeds negatively impact
mission effectiveness. The Navy is
unable to impose a 10 kn (18.5 km per
hour) ship speed limit because it would
not be practical to implement and
would impact the effectiveness of
Navy’s activities by putting constraints
on training and testing. The Navy
requires flexibility in the use of variable
ship speeds for training, testing,
operational, safety, and engineering
qualification requirements. Navy ships
typically use the lowest speed practical
given individual mission needs. NMFS
has reviewed the Navy’s analysis of
these additional restrictions and the
impacts they would have on military
readiness and concurs with the Navy’s
assessment that they are impracticable.
That said, NMFS has strengthened its
mitigation requirement requiring Navy
personnel to maneuver if marine
mammals are observed to add ‘‘which
may include reducing speed as the
mission or circumstances allow’’ to
emphasize that reduction of speeds
should be considered where
appropriate. Of note, current Navy
Standard Operating Procedures and
mitigations require a minimum of at
least three Lookouts on duty on Navy
cruisers and destroyers while underway
and, so long as safety of navigation is
maintained, to keep 500 yards away
from large whales and 200 yards away
from other marine mammals (except for
bow-riding dolphins and pinnipeds
hauled out on shore or man-made
navigational structures, port structures,
and vessels).
Previously, the Navy commissioned a
vessel density and speed report based
on an analysis of Navy ship traffic in the
HSTT Study Area between 2011 and
2015. Median speed of all Navy vessels
within the HSTT Study Area is typically
already low, with median speeds
between 5 and 12 kn (9.2 to 22.2 km per
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hour). Further, the presence and transits
of commercial and recreational vessels,
annually numbering in the thousands,
poses a more significant risk to large
whales than the presence of Navy
vessels. The Vessel Strike subsection of
the Estimated Take of Marine Mammals
section of the 2020 HSTT final rule and
this rule and the 2018 HSTT FEIS/OEIS
chapter 3 (Affected Environment and
Environmental Consequences) section
3.7.3.4.1 (Impacts from Vessels and InWater Devices) and Appendix K, section
K.4.1.6.2 (San Diego (Arc) Blue Whale
Feeding Area Mitigation
Considerations), explain the important
differences between most Navy vessels
and their operation and commercial
ships that make Navy vessels much less
likely to strike a whale.
When developing Phase III mitigation
measures, the Navy analyzed the
potential for implementing additional
types of mitigation, such as vessel speed
restrictions within the HSTT Study
Area. The Navy determined that based
on how the training and testing
activities will be conducted within the
HSTT Study Area, vessel speed
restrictions would be incompatible with
practicability criteria for safety,
sustainability, and training and testing
missions, as described in chapter 5
(Mitigation), section 5.3.4.1 (Vessel
Movement) of the 2018 HSTT FEIS/
OEIS. NMFS fully reviewed this
analysis and concurs with the Navy’s
conclusions. During the promulgation of
this final rule, NMFS again discussed
the potential for vessel speed
restrictions, including during limited
times and areas, and Navy continued to
assert that such restrictions are not
practicable. After thorough discussion,
NMFS again concurs with the Navy’s
conclusions.
Regarding the recommendation for
Navy to send alerts of increased risk of
strike to non-Navy vessels (such as
through the WhaleAlert app), Navy has
informed NMFS that transmitting
information between Navy and civilian
vessels poses security risks that make
sending alerts to non-Navy vessels
impracticable.
Regarding the recommendations for
the measure described in number 4 to be
implemented when a single whale is
sighted and in all areas, Navy asserts
that doing so is not practicable as it
would interfere with its mission
success. Four whales was determined to
be the appropriate trigger for this
measure as it represents an increased
strike risk without occurring so often
that this measure becomes impracticable
for the Navy to implement. Regarding
the geographic limitations, this measure
would apply to the area between 32–33
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degrees North and 117.2–119.5 degrees
West, which includes the locations
where recent (2009, 2021, 2023) strikes
occurred, and historic locations where
strikes occurred when precise latitude
and longitude were known. Given that
this area includes the location where all
known strikes have occurred, NMFS
anticipates that this measure is of
particular importance in this area, and
Navy asserted that implementing this
measure more broadly would be
impracticable, as it could divert the
attention of bridge personnel from other
critical tasks.
As stated by the commenter, the Navy
will evaluate future revisions to online
or DVD MSAT video training to
emphasize that when a protected
species is spotted, this may be an
indicator that additional marine
mammals are present and nearby, and
the vessel should take this into
consideration when transiting. NMFS
does not dictate exactly what measure
must be taken, as different situations
warrant different actions and may have
different safety and practicability
considerations.
The 2023 HSTT proposed rule and
this final rule include two new
mitigation measures beyond that
required by the 2020 HSTT final rule
and modification of two existing
mitigation measures. Please see NMFS’
response to Comment 15.
With the exception of the
recommended mitigation measures
discussed within this Comments and
Responses section, the commenter has
not demonstrated why NMFS has not
met the least practicable adverse impact
standard. As described in the Mitigation
Measures section of this final rule,
NMFS has included the mitigation
requirements necessary to achieve the
least practicable adverse impact on the
affected species or stocks and their
habitat.
Comment 15: Multiple commenters
stated that, rather than authorizing
additional take by serious injury or
mortality by vessel strike, NMFS should
require the Navy to implement
additional mitigation measures to avoid
harassment and future vessel strikes of
large whales. Commenters specifically
referenced the 2021 Royal Australian
Navy vessel strikes of fin whales, with
one commenter referencing what it
describes as NMFS’ acknowledgement
of the susceptibility of fin whales to
vessel strike year-round, and another
stating that the Royal Australian Navy
vessel strikes should be factored into the
take calculation for the HSTT Study
Area.
In a related comment, a commenter
questioned whether the Navy can
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continuously keep asking for more takes
if they continue to reach their
authorized number.
Response: Based on the available
information at the time that the 2020
HSTT final rule was promulgated,
NMFS’ analysis suggested that three
takes by serious injury or mortality by
vessel strike over the 7-year duration of
the HSTT rule could occur. To date,
NMFS is aware of three confirmed
vessel strikes of large whales by U.S.
Navy vessels during the current
regulatory period. While those three
takes are within what NMFS anticipated
could occur, given that three years
remained of the effective period of the
rule when the first two strikes occurred,
the Navy reanalyzed the potential for
take by mortality and serious injury by
vessel strike over the duration of the
rule, and that analysis suggested that
additional takes could occur. NMFS’
subsequent analysis also suggested that
two additional takes could occur over
the remainder of the regulatory period.
NMFS requires the Navy to implement
mitigation measures to reduce the
potential for vessel strike; however, this
mitigation is not quantitatively
incorporated into NMFS’ analysis, and
therefore, does not reduce the number of
takes that NMFS authorizes.
Regarding mitigation, the 2023 HSTT
proposed rule and this final rule include
two new mitigation measures beyond
that required by the 2020 HSTT final
rule and modification of two existing
mitigation measures. The new measures
include:
• Navy personnel must issue realtime notifications to Navy vessels of
large whale aggregations (four or more
whales) within 1 nmi (1.9 km) of a Navy
vessel in a select area of SOCAL; and
• Navy personnel must send alerts to
Navy vessels of increased risk of strike
following any reported Navy vessel
strike in the HSTT Study Area.
Additionally, the 2020 HSTT final
rule (85 FR 41780, July 10, 2020)
requires Navy personnel to issue
seasonal awareness notification
messages to alert ships and aircraft to
the possible presence of blue whales,
humpback whales, gray whales, and fin
whales in the seasons that they are most
likely to occur in the HSTT Study Area.
These messages assist in maintaining
safety of navigation and in avoiding
interactions with large whales during
transits. This final rule requires the
Navy to re-title the spring blue whale
message (released in June) to a large
whale awareness message inclusive of
typical spring-summer large whales in
southern California (mainly blue, fin,
and humpback whales), as included in
the 2023 HSTT proposed rule.
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Furthermore, rather than tying the
message release to a specific month, the
message would be for a period based on
predicted oceanographic conditions for
a given year.
For vessel movement, the 2020 HSTT
final rule (85 FR 41780, July 10, 2020)
required that ‘‘when underway, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must maneuver to maintain distance.’’
This measure has been updated to state
that reducing speed may be an
appropriate way to maneuver, as
included in the 2023 HSTT proposed
rule. Please see the Mitigation Measures
section for a full discussion of these
new and revised measures.
NMFS anticipates that additional
vessel strike of large whales could still
occur even in consideration of these
additional and modified mitigation
measures (noting that the mitigation
measures are not quantitatively
included in the vessel strike
calculation). Therefore, NMFS is
authorizing two additional takes of large
whales by serious injury or mortality by
vessel strike over the 7-year duration of
the HSTT rule (two takes in addition to
the three takes authorized in the current
regulations). In the 2023 HSTT
proposed rule and this final rule, NMFS
describes factors that make fin whales
particularly susceptible to vessel strike
by the Navy in southern California (e.g.,
occurrence, Navy vessel strike history in
SOCAL, year-round occurrence). As
such, NMFS analysis suggests that of the
five total takes by serious injury or
mortality by vessel strike of large
whales, up to four of those takes could
be of the CA/OR/WA stock of fin whale.
Regarding the suggestion that the Royal
Australian Navy vessel strike of two fin
whales should be factored into the take
calculation for the HSTT Study Area, as
explained in the 2023 HSTT proposed
rule and in the Vessel Strike section of
this final rule, according to the U.S.
Navy, the May 2021 vessel strike of two
fin whales by a Royal Australian Navy
vessel did not occur while that vessel
was participating in a U.S. Navy-led
training exercise, and the strike of those
two fin whales is not included in the
estimated take by vessel strike
calculation. Instead, NMFS considered
the 2021 vessel strike by the Royal
Australian Navy along with other strike
information when determining which
species could be among the estimated
large whales struck.
Regarding a commenter’s concern
about whether the Navy can
continuously keep asking for more takes
if they continue to reach their
authorized number, as stated in the
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Background section of this final rule, an
authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stocks and will not have
an unmitigable adverse impact on the
availability of the species or stocks for
taking for subsistence uses (where
relevant) (16 U.S.C. 1371(a)(5)(A)).
Further, NMFS must prescribe the
permissible methods of taking and other
means of effecting the least practicable
adverse impact on the affected species
or stocks and their habitat, paying
particular attention to rookeries, mating
grounds, and areas of similar
significance, and on the availability of
such species or stocks for taking for
certain subsistence uses (referred to in
this rule as ‘‘mitigation measures’’); and
requirements pertaining to the
monitoring and reporting of such
takings (16 U.S.C. 1371(a)(5)(A)). NMFS
has made the required findings, and
therefore, it must issue the requested
incidental take authorization to the
Navy.
Comment 16: The 2023 HSTT
proposed rule (88 FR 68290, October 3,
2023) states: ‘‘The 2021 NAVDORM
requires the use of three Lookouts on
Navy cruisers and destroyers as
compared to the previous requirement
of one Lookout when a vessel was
underway and not engaged in sonar
training or testing. However, as
discussed in the Mitigation Measures
section below, the Navy informed
NMFS that requiring the additional
Lookouts as mitigation is not practicable
because this SOP may change in
response to manning issues and national
security needs.’’ A commenter stated
that NMFS should reject the Navy’s
explanation for why three lookouts on
cruisers and destroyers are not
practicable. In a related comment, a
commenter stated that the 2023 HSTT
proposed rule seeks to reduce the
number of lookouts (the simplest and
cheapest mitigation strategy) from three
to one, and recommended increased
numbers of lookouts as a mitigation
measure. This commenter also
recommended enhancing bridge
resource management. A commenter
also recommended training for
Lookouts.
Response: Neither the 2023 HSTT
proposed rule nor this final rule propose
a reduction in the number of lookouts
required on Navy vessels, and it is
unclear what the commenter means by
enhancing bridge resource management,
though it is important to note that all
bridge watchstanders including
Lookouts take the Navy’s Marine
Species Awareness Training that NMFS
has reviewed and approved. The
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commenter did not suggest what
additional training Lookouts should
receive. As a general matter, NMFS’
evaluation of least practicable adverse
impact appropriately relies heavily on
input from the applicant regarding the
practicability of any given measure
provided the explanation is reasonable
and clear. Further, the 2004 NDAA
amended the MMPA as it relates to
military readiness activities and the
incidental take authorization process
such that a determination of ‘‘least
practicable adverse impact’’ shall
include consideration of personnel
safety, practicality of implementation,
and impact on the effectiveness of the
military readiness activity and
consultation with the Department of
Defense on these considerations (see 16
U.S.C. 1371(a)(5)(A)(iii)). The Navy has
clearly indicated the need for flexibility
to effectively carry out foreseeable
military readiness activities, such that
requiring additional Lookouts at all
times would be impracticable, and we
concur with that assessment.
Comment 17: A commenter stated that
if the Navy is allowed a greater number
of incidental takes on marine life, it
must enforce strategies to avoid such
incidents and suggested that the Navy
expand its existing precautions to
protect marine life and minimize takes
of marine animals. The commenter
encourages the Navy to (1) continue
implementing state-of-the-art
technology and best practices to reduce
underwater noise and disturbance
during training exercises, particularly in
areas where marine mammals are
known to inhabit, (2) collaborate with
marine biologists and conservation
experts to continually monitor the
effects of Navy activities on marine life
and suggest corrective actions when
necessary, (3) consider adjusting the
timing or location of training exercises
to minimize their impact on critical
marine habitats and migration paths,
and (4) promote transparency and
cooperation by engaging with
environmental organizations and local
communities to develop and assess
mitigation strategies collaboratively. In a
related comment, another commenter
stated that advanced technologies
should allow the United States military
to maintain readiness standards and
protect wildlife.
Response: NMFS worked closely with
the Navy to investigate the recent vessel
strikes and to identify ways to improve
mitigation measures. This final rule
includes revision to two existing
mitigation measures and two new
mitigation measures beyond that
included in the 2020 HSTT final rule
(85 FR 41780, July 10, 2020; described
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further in response to Comment 15). Of
note, this final rule authorizes
additional take by serious injury or
mortality by vessel strike beyond that
authorized by the 2020 HSTT final rule.
This final rule does not authorize
additional take by Level A or Level B
harassment. However, as discussed in
the Mitigation Measures section of this
final rule, elsewhere in this section, and
in chapter 5 (Mitigation) of the 2018
HSTT FSEIS/OEIS, the Navy will
implement extensive mitigation, both
procedural mitigation and mitigation
areas, to avoid or reduce potential
impacts from the HSTT activities on
marine mammals, including impacts
from sonar and explosives. (Note that
additional measures and revisions to
some existing measures have been made
since publication of this FEIS/OEIS).
Specifically, the Navy would use a
combination of delayed starts,
powerdowns, and shutdowns to
minimize the likelihood of M/SI,
minimize the likelihood or severity of
PTS or other injury, and reduce
instances of TTS or more severe
behavioral disruption caused by
acoustic sources or explosives. The
Navy will limit activities (active sonar,
explosive use, major training exercises
(MTEs), etc.) to varying degrees in
multiple areas that are important to
sensitive species or for critical behaviors
in order to minimize impacts that are
more likely to lead to adverse effects on
rates of recruitment or survival. The
mitigation measures would reduce the
probability and/or severity of impacts
expected to result from acute exposure
to acoustic sources or explosives, vessel
strike, and impacts to marine mammal
habitat. Please see the Mitigation
Measures section of this final rule for
additional detail regarding required
mitigation measures.
Regarding best practices to reduce
underwater noise, most of the Navy’s
vessels already have state of the art
quieting technologies employed to
reduce their sound profile to assist them
in avoiding detection by enemy forces,
therefore, they are much quieter than
commercial/recreational vessels of
similar sizes.
Regarding monitoring the effects of
Navy activities on marine life and the
commenter’s recommendation to take
corrective actions when necessary, as
required by this final rule, the Navy
implements a robust monitoring
program. Although the Navy has been
conducting research and monitoring in
the HSTT Study Area for over 20 years,
it developed a formal marine species
monitoring program in support of the
MMPA and ESA authorizations for the
Hawaii and Southern California range
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complexes in 2009. This robust program
has resulted in hundreds of technical
reports and publications on marine
mammals that have informed Navy and
NMFS analyses in environmental
planning documents, rules, and
Biological Opinions. The reports are
made available to the public on the
Navy’s marine species monitoring
website
(www.navymarinespeciesmonitoring.us)
and the data on the Ocean
Biogeographic Information System
Spatial Ecological Analysis of
Megavertebrate Populations (OBIS–
SEAMAP) (www.seamap.env.duke.edu).
For additional information about the
Navy’s monitoring program, please see
the Monitoring section herein and the
websites listed above.
Further, the regulations governing the
take of marine mammals incidental to
Navy training activities in the HSTT
Study Area contain an adaptive
management component. Our
understanding of the effects of Navy
training and testing activities (e.g.,
acoustic and explosive stressors) on
marine mammals continues to evolve,
which makes the inclusion of an
adaptive management component both
valuable and necessary within the
context of 7-year regulations. Please see
the Adaptive Management section of
this final rule for additional
information.
Regarding transparency and
cooperation, the MMPA does not
require an independent review of
mitigation measures. It does require
notice and opportunity for public
comment (16 U.S.C. 1371(a)(5)(A)(i)).
The public comment period is a means
by which the public (e.g., environmental
organizations and local communities)
are able to provide NMFS with
mitigation measure recommendations
supported by scientific evidence that
NMFS takes into consideration when
finalizing the rulemaking.
Comment 18: A commenter stated that
measures should be taken to cease any
more actions potentially impacting
marine mammals. The 2023 HSTT
proposed rule (88 FR 68290, October 3,
2023) states that results of a study
indicated that Navy Lookout Teams,
which include lookouts and other crew
members, have approximately an 80
percent chance of failing to detect a pod
of large whales beyond 200 yd (182.9
m), compared with a 49 percent chance
for trained marine mammal observers.
The commenter recommended that the
Navy hire trained marine mammal
observers to keep the incidents of whale
take to the original take numbers or less,
and not need to have modifications to
the LOA for additional animal take. The
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commenter also recommended having
experts that can accurately assess the
physical and mental health of these
animals. In a related comment, a
commenter stated that the rule calls into
question whether the three vessel strikes
that have occurred were due to the crew
not spotting the whales, not spotting
them before the strike, or the Navy not
emphasizing the importance of spotting
and avoiding marine wildlife to its
personnel.
Response: As described in the 2023
HSTT proposed rule (88 FR 68290,
October 3, 2023), a recent study by
Oedekoven and Thomas (2022) was
designed to evaluate the effectiveness of
Navy Lookouts at detecting marine
mammals before they entered a defined
set of mitigation zones (i.e., 200, 500,
and 1,000 yd (182.9, 457.2, and 914.4
m)) during MFAS training activities.
This study also compared Lookout
effectiveness with that of trained marine
mammal observers. Lookout teams were
comprised of varying numbers of
Lookouts depending on the type of ship
and the training activity that was
occurring (noting that the data was
collected prior to the Navy’s change in
its SOPs to require the use of three
Lookouts on Navy cruisers and
destroyers). Marine mammal observer
teams consisted of two dedicated
observers. As noted by the commenter,
results of this study indicate that Navy
Lookout Teams, which include
Lookouts and other crew members, have
approximately an 80 percent chance of
failing to detect a pod of large baleen
whales (rorquals) before they come
closer than a mitigation range of 200 yd
(182.9 m), compared with a 49 percent
chance for trained marine mammal
observers. The probability of a pod
remaining undetected by Lookouts was
greater for larger mitigation zones (i.e.,
85 percent at 500 yd (457.2 m); 91
percent at 1,000 yd (914.4 m)). These
values require some level of
interpretation with regard to the
numerical results. For instance, the
study’s statistical model assumed that
Navy ships moved in a straight line at
a set speed for the duration of the field
trials, and that animals could not move
in a direction perpendicular to a ship.
Violation of this model assumption
would underestimate Lookout
effectiveness for some data points. The
values for both Navy Lookouts and the
Marine Mammal Observers include
animals under the water that would not
have been available for detection by a
Lookout. This study suggests that
detection of marine mammals is less
certain than previously assumed at
certain distances. While this study
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suggests that trained marine mammal
observers are more effective than Navy
Lookouts, the Navy has asserted that it
is impracticable to station independent
marine mammal observers on Navy
vessels. When making the least
practicable adverse impact
determination for military readiness
activities, NMFS must consider
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activities and must consult with the
Department of Defense on these
considerations (16 U.S.C.
1371(a)(5)(A)(iii)). As described in
section 5.5.5 (Third-Party Observers) of
the 2018 HSTT FEIS/OEIS, use of thirdparty observers on Navy vessels or
aircraft would result in safety and
security clearance issues, berthing
shortages or exceedance of other space
limitations, impacts to Lookouts’
abilities to complete their other missionessential duties, and unsustainable
costs, among other issues. Please see the
2018 HSTT FEIS/OEIS for additional
detail.
Lookouts remain an important
component of the Navy’s mitigation
strategy, especially as it relates to
minimizing exposure to the more
harmful impacts that may occur within
closer proximity to the source, where
Lookouts are most effective. Further,
NMFS and the Navy are also
considering, through the adaptive
management process, whether there are
additional measures that would be
practicable to implement that would
improve effectiveness of Lookouts, such
as enhanced personnel training.
As described in the 2023 HSTT
proposed rule (88 FR 68290, October 3,
2023), the 2021 U.S. Navy vessel strikes
were the first known U.S. Navy vessel
strikes in the HSTT Study Area since
2009. Historically, military vessel
strikes of large whales within the HSTT
Study Area have been rare events with
only seven such strikes occurring over
the past 14 years, five U.S. Navy strikes,
and two Royal Australian Navy strikes.
Based on the Navy and NMFS’
investigation of these recent strike
incidents, NMFS found that the Navy
was substantially following the required
mitigation protocols, consistent with 16
U.S.C. 1371(a)(5)(B). These recent vessel
strike reports (2021, 2023) appear to
reflect the sporadic, episodic, or
clustered nature of vessel strike or may
reflect a trend of increased large whale
presence in this area in the early
summer months. Given the size of Navy
vessels and the need to maintain
specific speeds during certain activities,
even if a whale is detected, a U.S. Navy
vessel may not be able to avoid a strike.
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Therefore, given the potential shift in
factors contributing to vessel strike, and
the challenges in avoiding potential
strikes, it is important to ensure that the
compliance process addresses the
appropriate number of potential strikes
and that they are considered in the
negligible impact determination, which
is why it was necessary to evaluate the
authorization of an additional two takes
by strike. The MMPA provides for the
authorization of incidental take caused
by specified activities, provided certain
findings are made. The law directs
NMFS to process adequate and
complete applications for incidental
take authorization, and issue the
authorization provided all statutory
findings and requirements, as well as all
associated legal requirements, are met.
It is unclear how having experts that
can accurately assess the physical and
mental health of these animals, as
suggested by the commenter, would
assist in mitigating the effects of the
Navy’s activities, nor has the commenter
provided detail explaining how. The
required procedural mitigation
measures are implemented within
defined ranges based on established
criteria, and implementation does not
rely on a visual assessment of
behavioral or physiological effects to
animals. In its analysis, NMFS does
consider the potential impacts of stress
on marine mammals from exposure to
the Navy’s activities. Please see the
Stress Response section of the 2018
HSTT Proposed Rule for a discussion of
stress responses in marine mammals.
Further, since that discussion,
additional information about stress
responses has become available (e.g.,
Houser et al. (2020); Houser et al.
(2021)). However, the additional studies
do not change the expected potential
impacts of stress on marine mammals
from exposure to the Navy’s activities.
NMFS thoroughly discussed each of
the strikes with the Navy, and
summarized the circumstances
surrounding each strike in the
Estimated Take From Vessel Strikes and
Explosives by Serious Injury or Mortality
section of the 2023 HSTT proposed rule
((88 FR 68290, October 3, 2023) and the
Authorized Take From Vessel Strikes
and Explosives by Serious Injury or
Mortality section of this final rule. The
circumstances surrounding whale
detection ahead of each strike varied.
However, of note, Navy vessels
routinely successfully maneuver to
avoid large whales. Between 2009 and
2021 (the most recent year for which
data is available), U.S. Navy vessels in
the SOCAL portion of the HSTT Study
Area maneuvered 316 times to avoid
large whales during MTEs. The years
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2017 and 2021 had the highest number
of maneuvers (n = 64 and n = 82,
respectively). In all years for which data
is available (2009 to 2021), Navy
cruisers and destroyers account for 51 to
100 percent of maneuvers during MTEs
to avoid whales.
Comment 19: A commenter,
referencing two news articles, stated
that new information indicates that the
Navy is increasingly using unmanned
systems, which cannot replace human
monitoring, even if useful in addition to
the lookouts and observers NMFS relies
on to mitigate and monitor the impacts
of the Navy’s activities on marine
mammals.
Response: As stated in the 2023 HSTT
proposed rule (88 FR 68290, October 3,
2023), the Navy’s proposed activities
have not changed from that analyzed in
the 2018 final rule (83 FR 66846,
December 27, 2018) or the 2020 final
rule (85 FR 41780, July 10, 2020).
Impacts from all unmanned systems that
would be used in training and testing
activities under this proposed rule have
been accounted for in the analysis.
Neither NMFS nor the Navy have
proposed to replace human marine
mammal monitoring with monitoring by
unmanned systems.
Determinations
Comment 20: A commenter stated that
NMFS has neither adequately evaluated
nor met the negligible impact standard
for the following reasons:
1. The negligible impact
determination dismisses the important
fact that vessel strikes already pose a
substantial threat to large whales in the
region, and several populations are
already exceeding PBR. Endangered
blue whales, threatened and endangered
humpback whales, and endangered fin
whales off the coast of Southern
California are particularly vulnerable,
with even one additional ship strike
constituting a significant impact.
2. NMFS has failed to consider the
impacts of the full scope of training
exercises over 7 years on marine
mammals, including joint training
exercises with foreign fleets. The
commenter further asserted that what is
not unsaid in the rule, but is critically
important, is that the Navy’s activities
over 7 years (in contrast to the five
already authorized) has never been
evaluated under the MMPA, ESA, or
NEPA. The commenter stated that this
underscores that NMFS has not taken
the measures needed to ensure the
Navy’s activities in the HSTT Study
Area will have no more than a negligible
impact on endangered whales and other
marine mammals in the Pacific Ocean
over the full 7 years of the proposed
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authorization. NMFS must reexamine
the increased risk and incidence of
vessel strikes in light of the Navy’s full
suite of impacts on large whales and
other marine mammals (over this
extended period of time) and decline to
authorize this additional take.
Response: NMFS disagrees with the
commenter’s assertion that it has not
adequately evaluated nor met the
negligible impact standard. NMFS
assessed all of the best available
information about the relative risk of
vessel strikes by commercial,
recreational, and military vessels in the
Vessel Strike section of this final rule.
As explained in the Serious Injury or
Mortality subsection of the Analysis and
Negligible Impact Determination section
of the 2018 HSTT final rule, the 2020
HSTT final rule, and this final rule,
NMFS may find the impact of the
authorized take from a specified activity
to be negligible even if total humancaused mortality exceeds PBR, if the
authorized mortality is less than 10
percent of PBR and management
measures are being taken to address
serious injuries and mortalities from the
other activities causing mortality (i.e.,
other than the specified activities
covered by the incidental take
authorization in consideration,
including vessel strike from other
actions). When those considerations are
applied in the section 101(a)(5)(A)
context here, the authorized lethal take
(0.14 annually) of humpback whales
from the Mainland Mexico- CA/OR/WA
stock, and blue whales from the Eastern
North Pacific stock are less than 10
percent of PBR (less than 1 percent for
humpback whales from the Mainland
Mexico- CA/OR/WA stock and 3 percent
for blue whales from the Eastern North
Pacific stock). The authorized lethal
take (0.57 annually) of fin whales from
the CA/OR/WA stock is less than 10
percent of PBR also (less than 1
percent). There are management
measures in place to address the
mortality and serious injury from the
activities other than those the Navy is
conducting. For the complete discussion
of how NMFS carefully considered
potential mortalities from the Navy’s
activities in light of PBR levels,
including an explanation for why
mortality above PBR will not necessarily
induce population-level non-negligible
impacts, see the discussion in this rule,
the 2020 HSTT final rule, and the 2018
HSTT final rule.
NMFS acknowledges that the removal
of a reproductive female (or any female)
could be more impactful to the status of
a population than the removal of a male.
However, the PBR framework that
supports the negligible impact finding
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4963
inherently considers the likelihood that
the human-caused mortalities being
considered may consist of a random
distribution of individuals of different
sex in different life stages. Also, beyond
the low likelihood of striking a whale at
all, the likelihood of hitting a female is
even lower.
It is important to note that the only
change to the number of takes proposed
by the 2023 HSTT proposed rule was to
the take by vessel strike to account for
new information since publication of
the 2020 HSTT final rule. The 2020
HSTT final rule analyzed and
authorized take of marine mammals
over a 7-year period, not 5 years as
noted by the commenter, and NMFS
conducted the appropriate level of
MMPA, ESA, and NEPA analysis to
comply with both statutes during the
promulgation of the 2020 HSTT final
rule.
As stated in the Preliminary Analysis
and Negligible Impact Determination
section of the 2023 HSTT proposed rule
(88 FR 68290, October 3, 2023) and the
Analysis and Negligible Impact
Determination section of this final rule,
while this rule consists of a
modification of take by M/SI by vessel
strike, NMFS considers the impacts of
the entire specified activity and the total
taking in the negligible impact
determination. In consideration of the
total taking, including take by mortality,
Level A harassment, and Level B
harassment, NMFS finds that the
incidental take from the specified
activities will have a negligible impact
on all affected marine mammal species
and stocks. Consistent with 40 CFR
1502.9 and the information and analysis
contained in this final rule, the Navy
and NMFS as a cooperating agency
made a determination that this final rule
and the subsequent LOAs will not result
in significant impacts that were not
fully considered in the 2018 HSTT
FEIS/OEIS. As indicated in the 2023
HSTT proposed rule, the Navy has made
no substantial changes to the activities
nor are there significant new
circumstances or information relevant to
environmental concerns or their
impacts.
NMFS and the Navy reinitiated
consultation under the ESA. NMFS
issued a reinitiated Biological and
Conference Opinion on June 3, 2024
concluding that the issuance of the 2024
HSTT final rule and subsequent LOAs
are not likely to jeopardize the
continued existence of the threatened
and endangered species under NMFS’
jurisdiction and are not likely to result
in the destruction or adverse
modification of critical habitat in the
HSTT Study Area. The opinion is
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available at https://doi.org/10.25923/
7y9x-vw84.
Please also see NMFS’ response to
Comment 7 regarding foreign vessels.
Comment 21: Commenters stated that
they oppose this proposed promulgation
of modified regulations and associated
LOAs for the Navy because it is not
consistent with MMPA mandates that
require NMFS to ensure activities have
no more than a negligible impact on
marine mammal species or stocks and
that they have the least practicable
adverse impact on marine mammal
species, stocks, and habitat. In a related
comment, a commenter stated that this
rule would disregard the previously
established boundaries between the
Navy and NMFS and would also
disregard the push the United States
claims to have for the protection of
marine wildlife. The commenter stated
that it perceives the request to be
heavily hypocritical of the same
government that implemented
regulations to protect marine wildlife
that teeter on the edge of the endangered
species list, to reach for an exception for
its military, and further that the
proposed amendment is unethical,
hypocritical, and unnecessary.
Response: The MMPA requires NMFS
to authorize the incidental take of
marine mammals by specified activities
upon request if certain findings are
made (16 U.S.C. 1371(a)(5)(A)). Here,
the Navy submitted an application
requesting two additional takes of large
whales by serious injury or mortality by
vessel strike through modification of the
existing regulations and LOAs. As
required by the MMPA, NMFS
conducted the analysis described in the
2023 HSTT proposed rule and this final
rule and made all required findings
(preliminarily, in the case of the 2023
HSTT proposed rule), including finding
that the Navy’s activities will have a
negligible impact on marine mammals
and that the required mitigation
measures will effect the least practicable
adverse impact on marine mammals.
Therefore, promulgation of this final
rule is appropriate.
Please see the Mitigation Measures
section of this final rule for additional
discussion of the required mitigation
measures and NMFS’ least practicable
adverse impact finding.
Other Regulatory Processes
Comment 22: A commenter stated that
the Navy issued an EIS purporting to
analyze the environmental impacts of its
training and testing activities in the
HSTT Study Area. NMFS was a
cooperating agency for the 2018 HSTT
FEIS/OEIS. The EIS considered only
three alternatives in detail: the No
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Action Alternative under which the
Navy’s training activities would not
occur; Alternative 1 that considered
fluctuations in training cycles, testing
requirements, and deployment
schedules based on global demand and
other factors and included the Navy’s
entire suite of mitigation measures; and
Alternative 2 that considered a higher
number of training exercises and sonar
hours than in Alternative 1 and
included the Navy’s entire suite of
mitigation measures. Alternative 1 was
the preferred and adopted alternative.
The commenter stated that none of the
Navy’s alternatives considered in detail
an alternative that would require
mandatory speed limits to avoid
collisions with endangered whales.
Response: While none of the Navy’s
alternatives considered in the 2018
HSTT FEIS/OEIS include mandatory
vessel speed limits, the Navy conducted
an operational analysis of potential
mitigation throughout the entire Study
Area to consider a wide range of
mitigation options, including but not
limited to vessel speed restrictions. As
discussed in chapter 3, section
3.0.3.3.4.1 (Vessels and In-Water
Devices) of the 2018 HSTT FEIS/OEIS,
Navy ships transit at speeds that are
optimal for fuel conservation or to meet
operational requirements. Operational
input indicated that implementing
additional vessel speed restrictions
beyond what is identified in chapter 5
(Mitigation), section 5.4 (Mitigation
Areas to be Implemented) of the 2018
HSTT FEIS/OEIS would be
impracticable to implement due to
implications for safety and
sustainability. In its assessment of
potential mitigation, the Navy
considered implementing additional
vessel speed restrictions (e.g.,
expanding the 10 kn (18.5 km per hour)
restriction to other activities). The Navy
determined that implementing
additional vessel speed restrictions
beyond what is described in chapter 5
(Mitigation), section 5.5.2.2 (Restricting
Vessel Speed) of the 2018 HSTT FEIS/
OEIS would be impracticable due to
implications for safety (the ability to
avoid potential hazards), sustainability
(maintain readiness), and the Navy’s
ability to continue meeting its Title 10
requirements to successfully accomplish
military readiness objectives.
Additionally, as described in chapter 5
(Mitigation), section 5.5.2.2 (Restricting
Vessel Speed) of the 2018 HSTT FEIS/
OEIS, any additional vessel speed
restrictions would prevent vessel
operators from gaining skill proficiency,
would prevent the Navy from properly
testing vessel capabilities, or would
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Fmt 4701
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increase the time on station during
training or testing activities as required
to achieve skill proficiency or properly
test vessel capabilities, which would
significantly increase fuel consumption.
As discussed in chapter 5 (Mitigation),
section 5.3.4.1 (Vessel Movement) of the
2018 HSTT FEIS/OEIS, the Navy
implements mitigation to avoid vessel
strikes throughout the Study Area.
Additionally, this final rule includes
two new mitigation measures beyond
that required by the 2020 HSTT final
rule and modification of two existing
mitigation measures. These measures
are described in response to Comment
15 and the Mitigation Measures section
of this final rule.
Comment 23: A commenter stated that
agencies must prepare supplemental
EISs if: ‘‘(i) The agency makes
substantial changes in the proposed
action that are relevant to
environmental concerns; or (ii) There
are significant new circumstances or
information relevant to environmental
concerns and bearing on the proposed
action or its impacts’’ (40 CFR
1502.9(d)(1)). The commenter stated
that because these triggers have been
met, it urges NMFS to prepare a
supplemental EIS on the basis of the
new information that has come to light
since 2018, including on the impacts of
vessel strikes on large whales and on
alternatives that reduce vessel strike
impacts to marine mammals.
Response: NMFS disagrees with the
commenter that supplemental NEPA
evaluation is warranted. As described in
the National Environmental Policy Act
section herein, consistent with 40 CFR
1502.9(d) and the information and
analysis contained in this rule, the Navy
and NMFS as a cooperating agency have
determined that this final rule and any
subsequent LOAs would not result in
significant impacts that were not fully
considered in the 2018 HSTT FEIS/
OEIS. As indicated in this final rule and
a supplemental information report
prepared by NMFS, the Navy has made
no substantial changes to the activities
that are relevant to environmental
concerns; nor are there substantial new
circumstances or information about the
significance of adverse effects that bear
on the analysis.
Comment 24: A commenter stated that
despite the new 2020 authorization—
and the additional extensive take and
other impacts it enables—NMFS has not
completed new ESA consultation or a
supplemental NEPA evaluation. The
Navy is operating under the 2018 BiOp
and 2018 EIS. Since NMFS issued the
2018 BiOp and EIS, a slew of new
information—in addition to the
expanded scope of the Navy’s
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activities—indicates that the Navy’s
activities in the HSTT Study Area are
likely affecting ESA-listed species to an
extent not previously considered.
In a related comment regarding ESA
compliance, a commenter stated that the
proposed rule states, ‘‘NMFS has also
reinitiated consultation internally on
the issuance of these proposed, revised
regulations and LOAs under section
101(a)(5)(A) of the MMPA.’’ The
commenter noted that when reinitiation
is required, ‘‘the original opinion loses
its validity, as does its accompanying
incidental take statement, which then
no longer shields the action agency from
penalties for takings’’ (Ctr. for Biological
Diversity v. BLM, 698 F.3d 1101, 1108
(9th Cir. 2012)). A commenter stated
that it awaits the conclusion of this
reinitiated consultation and expects a
revised biological opinion that fully
complies with the ESA’s standards.
Response: NMFS has fully complied
with the ESA and NEPA. NMFS
described the ESA section 7
consultation history for this action in
the Endangered Species Act section of
the 2023 HSTT proposed rule and this
final rule. As described in that section,
NMFS consulted internally on the
issuance of the 2018 HSTT regulations
and LOAs under section 101(a)(5)(A) of
the MMPA.
NMFS issued a Biological Opinion on
December 10, 2018 concluding that the
issuance of the 2018 HSTT final rule
and subsequent LOAs are not likely to
jeopardize the continued existence of
the threatened and endangered species
under NMFS’ jurisdiction and are not
likely to result in the destruction or
adverse modification of critical habitat
in the HSTT Study Area. The 2018
Biological Opinion included specified
conditions under which NMFS would
be required to reinitiate section 7
consultation. NMFS reviewed these
specified conditions for the 2020 HSTT
rulemaking and determined that
reinitiation of consultation was not
warranted. The incidental take
statement that accompanied the 2018
Biological Opinion was amended to
cover the 7-year period of the 2020
HSTT rule. The 2018 Biological Opinion
for this action is available at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities.
The 2018 Biological Opinion
reinitiation clause (2), states that formal
consultation should be reinitiated if
‘‘new information reveals effects of the
agency action that may affect ESA-listed
species or critical habitat in a manner or
to an extent not previously considered.’’
Given the new information regarding
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the recent occurrence of large whale
strikes by naval vessels in the southern
California portion of the HSTT Study
Area, as described herein, the Navy has
reinitiated consultation with NMFS
pursuant to section 7 of the ESA for
HSTT Study Area activities, and NMFS
has also reinitiated consultation
internally on the issuance of the revised
regulations and LOAs under section
101(a)(5)(A) of the MMPA. On June 3,
2024, NMFS issued a 2024 reinitiated
Biological and Conference Opinion
concluding that the issuance of the rule
and subsequent LOAs is not likely to
jeopardize the continued existence of
the threatened and endangered species
under NMFS’ jurisdiction and are not
likely to result in the destruction or
adverse modification of critical habitat
in the HSTT Study Area. The 2024
reinitiated Biological and Conference
Opinion for this action is available at
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities.
NMFS is aware of the statement in
Ctr. for Biological Diversity v. BLM, 698
F.3d 1101, 1108 (9th Cir. 2012)
referenced by the commenter. NMFS’
position is that a biological opinion,
including its Incidental Take Statement,
for which formal consultation has been
re-initiated remains valid and effective
during the consultation and until a new
biological opinion is issued. When the
new biological opinion with a new ITS
is issued, it supersedes and replaces the
previous opinion and ITS.
Please see NMFS’ response to
Comment 23 regarding NEPA
compliance.
Changes From the Proposed Rule to the
Final Rule
NMFS has added two additional
reporting requirements since
publication of the 2023 HSTT proposed
rule. First, the Navy’s annual HSTT
Training Exercise Report and Testing
Activity Report must include
information that tracks the Navy’s
implementation of the new SOCAL large
whale aggregation real-time reporting
mitigation measure. The report must
include the following information for
each instance that an aggregation of
large whales is reported: (1) the date,
time and general location (e.g.,
approximately 10–12 nmi SE of San
Clemente Island) of the whales when
the aggregation was first sighted; (2) the
total number of whales observed within
1 nmi of a Navy vessel that make up the
aggregation; and (3) the approximate
distance (or distances if more than one
group of whales is sighted) of the vessel
from the whales in the aggregation when
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4965
the whales were first sighted. To the
extent practicable, this information
should be provided in the Navy’s
unclassified version of these reports.
Second, the Navy’s annual HSTT
Training Exercise Report and Testing
Activity Report must include a
confirmation that foreign military use of
sonar and explosives, when such
militaries are participating in a U.S.
Navy-led exercise or event, combined
with the U.S. Navy’s use of sonar and
explosives, would not cause exceedance
of the analyzed levels (within each
NAEMO modeled sonar and explosive
bin) used for estimating predicted
impacts, which formed the basis of the
acoustic impacts effects analysis used to
estimate take in this final rule.
NMFS has also made a nonsubstantive name change in the final
rule. Ziphius cavirostris has multiple
common names. In the 2018 HSTT final
rule, 2020 HSTT final rule, and 2023
HSTT proposed rule, NMFS used the
common name Cuvier’s beaked whale.
In this final rule, NMFS uses the
common name goose-beaked whale
instead.
Last, NMFS made several nonsubstantive changes to the regulations to
add clarity and improve readability.
Description of Marine Mammals and
Their Habitat in the Area of the
Specified Activities
Marine mammal species and their
associated stocks that have the potential
to occur in the HSTT Study Area are
presented in table 1 along with the best/
minimum abundance estimate and
associated coefficient of variation value.
Consistent with the 2018 HSTT final
rule and 2020 HSTT final rule, the Navy
anticipates the take of individuals from
38 marine mammal species by Level A
harassment and Level B harassment
incidental to training and testing
activities from the use of sonar and
other transducers, in-water detonations,
air guns, and impact pile driving/
vibratory extraction activities. As
described in detail later, serious injury
or mortality of six species is also
analyzed and authorized. Two marine
mammal species, the Hawaiian monk
seal and the Main Hawaiian Islands
Insular DPS of false killer whale, have
critical habitat designated under the
ESA (16 U.S.C. 1531 et seq.) in the
HSTT Study Area.
In the 2018 HSTT proposed rule and
2018 HSTT final rule, we presented a
detailed discussion of marine mammals
and their occurrence in the HSTT Study
Area, inclusive of important marine
mammal habitat (e.g., ESA-designated
critical habitat), BIAs, national marine
sanctuaries (NMSs), and unusual
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mortality events (UMEs). Please see
these rules and the 2017 and 2019 Navy
applications for additional information
beyond what is provided herein. While
there have been some minor changes
described here, there have been no
changes to important marine mammal
habitat, NMSs, or ESA-designated
critical habitat since the issuance of the
2018 HSTT final rule that change our
determination of which species or
stocks have the potential to be affected
by the Navy’s activities or the
information in the Description of Marine
Mammals and Their Habitat in the Area
of the Specified Activities section in the
2019 HSTT proposed rule and 2020
HSTT final rule. Therefore, the
information presented in those sections
of the 2019 HSTT proposed rule and
2020 HSTT final rule remains current
and valid with the exception of the
information about UMEs, BIAs, and
revised humpback whale stock
structures, discussed below.
On April 21, 2021, NMFS designated
critical habitat for the endangered
Western North Pacific DPS, the
endangered Central America DPS, and
the threatened Mexico DPS of
humpback whales (86 FR 21082). Areas
proposed as critical habitat include
specific marine areas located off the
coasts of California, Oregon,
Washington, and Alaska. None of the
designated critical habitat overlaps with
the HSTT Study Area. One of the
proposed areas, critical habitat Unit 19,
would have overlapped with the SOCAL
range in the HSTT Study Area but was
excluded after consideration of potential
national security and economic impacts
of designation. NMFS, in the final rule
designating critical habitat for
humpback whales, identified prey
species, primarily euphausiids and
small pelagic schooling fishes of
sufficient quality, abundance, and
accessibility within humpback whale
feeding areas to support feeding and
population growth, as an essential
habitat feature. NMFS, through a critical
habitat review team (CHRT), also
considered inclusion of migratory
corridors and passage features, as well
as sound and the soundscape, as
essential habitat features. NMFS did not
include either in the final critical
habitat, however, as the CHRT
concluded that the best available
science did not allow for identification
of any consistently used migratory
corridors or definition of any physical,
essential migratory or passage
conditions for whales transiting
between or within habitats of the three
DPSs. The best available science also
currently does not enable NMFS to
identify particular sound levels or to
describe a certain soundscape feature
that is essential to the conservation of
humpback whales. Regardless of
whether critical habitat is designated for
a particular area, NMFS has considered
all applicable information regarding
marine mammals and their habitat in
the analysis supporting these final
regulations.
NMFS has reviewed the 2023 SARs
(Carretta et al. 2024, Young et al. 2024).
For all species except humpback whale,
NMFS determined that neither the SARs
nor any other new information changes
our determination in the 2020 HSTT
final rule of which species or stocks
have the potential to be affected by the
Navy’s activities. For humpback whale,
the 2023 final SARs include a revision
to the humpback whale stock structure
in the Pacific Ocean. In the 2020 HSTT
final rule, NMFS authorized take of the
CA/OR/WA stock and Central North
Pacific stock of humpback whale. Given
the revised stock structure, in this final
rule, NMFS has reanalyzed the potential
for take of each stock of humpback
whale and determined that the Central
America/Southern Mexico-CA/OR/WA,
Mainland Mexico—CA/OR/WA stock,
and Hawaii stocks are likely to be taken
by the Navy’s activities. Please refer to
the 2023 Alaska and Pacific Ocean SARs
for additional information about these
new stocks.
The species considered but not
carried forward for analysis are two
American Samoa stocks of spinner
dolphins—(1) the Kure and Midway
stock and (2) the Pearl and Hermes
stock. There is no potential for overlap
with any stressors from Navy activities
and therefore there would be no
incidental takes, therefore, these stocks
are not considered further.
TABLE 1—MARINE MAMMAL OCCURRENCE WITHIN THE HSTT STUDY AREA
Status
Common name
Scientific name
Stock
MMPA
Blue whale ....................
Balaenoptera musculus
Eastern North Pacific ...
Central North Pacific ....
Bryde’s whale ...............
Balaenoptera brydei/
edeni.
Fin whale ......................
Balaenoptera physalus
Eastern Tropical Pacific
Hawaii ...........................
CA/OR/WA ...................
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Megaptera
novaeangliae.
Balaenoptera
acutorostrata.
Sei whale ......................
Balaenoptera borealis ..
Eschrichtius robustus ...
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-
Summer
1,898 (0.085)/
1,767.
133 (1.09)/63.
Southern California.
Hawaii .................
Southern California.
Hawaii .................
-
unknown.
-
791 (0.29)/623.
11,065 (0.405)/
7,970.
203 (0.99)/101.
1,496 (0.171)/
1,284.
Strategic
Threatened 1
Winter
-
-1
Southern California.
Hawaii .................
CA/OR/WA ...................
-
-
Hawaii ...........................
Eastern North Pacific ...
Strategic,
Depleted
Strategic,
Depleted
-
Endangered
Strategic,
Depleted
Endangered
Eastern North Pacific ...
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Endangered
-
Winter
Western North Pacific ..
VerDate Sep<11>2014
Endangered
Southern California.
Hawaii .................
Southern California.
Hawaii ...........................
Gray whale ....................
Endangered
Endangered 1
Central America/Southern Mexico—CA/OR/
WA.
Mainland Mexico—CA/
OR/WA.
Hawai1i ..........................
Minke whale ..................
Strategic,
Depleted
Strategic,
Depleted
-
ESA
Stock
abundance
(CV)/minimum
population
Strategic,
Depleted
Strategic,
Depleted
Strategic
Hawaii ...........................
Humpback whale ..........
Seasonal
absence
Occurrence
Endangered
Endangered
-
Summer
Southern California.
Hawaii .................
Southern California.
Hawaii .................
-
3,477 (0.101)/
3,185.
11,278 (0.56)/
7,265.
915 (0.792)/509.
Summer
-
438 (1.05)/212.
864 (0.40)/625.
Summer
391 (0.9)/204.
Southern California.
Southern California.
-
26,960 (0.05)/
25,849.
290 (NA)/271.
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4967
TABLE 1—MARINE MAMMAL OCCURRENCE WITHIN THE HSTT STUDY AREA—Continued
Status
Common name
Scientific name
Stock
MMPA
Sperm whale .................
Physeter
macrocephalus.
CA/OR/WA ...................
Hawaii ...........................
Endangered
Endangered
Kogia breviceps ............
CA/OR/WA ...................
Hawaii ...........................
-
-
Dwarf sperm whale .......
Kogia sima ....................
CA/OR/WA ...................
-
-
Baird’s beaked whale ...
Berardius bairdii ...........
Hawaii ...........................
CA/OR/WA ...................
-
-
Blainville’s beaked
whale.
Goose-beaked whale 2 ..
Mesoplodon densirostris
Hawaii ...........................
-
-
Ziphius cavirostris .........
CA/OR/WA ...................
-
-
Longman’s beaked
whale.
Mesoplodont beaked
whales.
Common Bottlenose
dolphin.
Indopacetus pacificus ...
Hawaii ...........................
Hawaii ...........................
-
-
Mesoplodon spp. ..........
CA/OR/WA ...................
-
-
Tursiops truncatus ........
California Coastal .........
-
-
CA/OR/WA Offshore ....
-
-
Hawaii Pelagic ..............
Kauai and Niihau ..........
Oahu .............................
Maui Nui 3 .....................
Hawaii Island ................
Main Hawaiian Islands
Insular 4.
Hawaii Pelagic ..............
Strategic,
Depleted
-
Northwestern Hawaiian
Islands.
Hawaii ...........................
-
Eastern North Pacific
Offshore.
West Coast Transient ...
-
-
-
-
Pseudorca crassidens ..
Fraser’s dolphin ............
Lagenodelphis hosei ....
Killer whale ...................
Orcinus orca .................
-
Southern California.
Hawaii .................
-
Southern California.
Hawaii .................
Winter and
Fall
-
Southern California.
Hawaii .................
Southern California.
Hawaii .................
-
Southern California.
Hawaii .................
Hawaii .................
-
-
Hawaii .................
-
-
Hawaii .................
5,528 (0.35)/
4,152.
477 (1.71)/178.
Hawaii .................
-
Southern California.
Southern California.
Hawaii .................
Southern California.
Hawaii .................
-
40,960 (0.7)/
24,068.
300 (0.1)/276.
-
349 (N/A)/349.
-
161 (1.06)/78.
83,379 (0.216)/
69,636.
40,647 (0.74)/
23,301.
unknown.
29,285 (0.72)/
17,024.
34,999 (0.222)/
29,090.
unknown.
-
-
Peponocephala electra
Hawaiian Islands ..........
-
-
Northern right whale
dolphin.
Pacific white-sided dolphin.
Pantropical spotted dolphin.
Lissodelphis borealis ....
Kohala Resident ...........
CA/OR/WA ...................
-
-
CA/OR/WA ...................
-
-
Oahu .............................
-
-
Hawaii .................
Southern California.
Southern California.
Hawaii .................
Maui Nui 3 .....................
Hawaii Island ................
Hawaii Pelagic ..............
-
-
Hawaii .................
Hawaii .................
Hawaii .................
-
Tropical .........................
-
-
Hawaii ...........................
-
-
Southern California.
Hawaii .................
Winter &
Spring
-
CA/OR/WA ...................
-
-
-
Hawaii ...........................
-
-
Southern California.
Hawaii .................
NSD 5 ............................
-
-
-
Hawaii ...........................
-
-
Southern California.
Hawaii .................
Delphinus delphis .........
CA/OR/WA ...................
-
-
Globicephala
macrorhynchus.
CA/OR/WA ...................
-
-
Hawaii ...........................
-
Hawaii Pelagic ..............
Hawaii Island ................
-
Rough-toothed dolphin
Short-beaked common
dolphin.
Short-finned pilot whale
Spinner dolphin .............
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Grampus griseus ..........
Steno bredanensis .......
Stenella longirostris ......
20:57 Jan 15, 2025
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Frm 00025
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Sfmt 4700
5,454 (0.27)/
4,214.
4,431 0.41/3,180.
2,550 (0.67)/
1,527.
3,044 (0.54)/
1,967.
453 (0.06)/346.
-
-
-
Risso’s dolphins ............
unknown.
1,363
(0.53)/894.
1,132 (0.99)/564.
Endangered
-
Hawaii ...........................
California ......................
Feresa attenuata ..........
2,606 (0.135)/
2,011.
5,707 (0.23)/
4,486.
4,111 (1.12)/
1,924.
42,083 (0.64)
25,695.
unknown.
-
Delphinus capensis ......
Lagenorhynchus
obliquidens.
Stenella attenuata ........
Stock
abundance
(CV)/minimum
population
Southern California.
Southern California.
Southern California.
Hawaii .................
Hawaii .................
Hawaii .................
Hawaii .................
Hawaii .................
Hawaii .................
Long-beaked common
dolphin.
Melon-headed whale ....
Pygmy killer whale ........
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Strategic,
Depleted
Strategic,
Depleted
-
ESA
Pygmy sperm whale .....
False killer whale ..........
Seasonal
absence
Occurrence
-
-
-
-
-
Southern California.
Southern California.
Hawaii .................
-
Hawaii .................
Hawaii .................
-
E:\FR\FM\16JAR3.SGM
16JAR3
-
-
3,477 (0.696)/
2,048.
unknown.
112 (0.24)/92.
112 (0.17)/97.
64 (0.15)/56.
136 (0.43)/96.
167 (0.14)/149.
unknown.
unknown.
67,313 (0.27)/
53,839.
unknown.
10,328 (0.75)/
5,885.
6,336 (0.32)/
4,817.
6,979 (0.29)/
5,283.
unknown.
83,915 (0.49)/
56,782.
1,056,308 (0.21)/
888,971.
836 (0.79)/466.
19,242 (0.23)/
15,894.
unknown.
665 (0.09)/617.
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TABLE 1—MARINE MAMMAL OCCURRENCE WITHIN THE HSTT STUDY AREA—Continued
Status
Common name
Scientific name
Stock
MMPA
Striped dolphin ..............
Stenella coeruleoalba ...
ESA
Oahu and 4-Islands ......
Kauai and Niihau ..........
Kure and Midway .........
Pearl and Hermes ........
CA/OR/WA ...................
-
-
Hawaii ...........................
-
-
Dall’s porpoise ..............
Phocoenoides dalli .......
CA/OR/WA ...................
-
-
Harbor seal ...................
Phoca vitulina ...............
California ......................
-
-
Hawaiian monk seal .....
Hawaii ...........................
California ......................
Strategic,
Depleted
-
Endangered
Northern elephant seal
Neomonachus
schauinslandi.
Mirounga angustirostris
-
California sea lion .........
Zalophus californianus
U.S. Stock ....................
-
-
Guadalupe fur seal .......
Arctocephalus
townsendi.
Callorhinus ursinus .......
Mexico to California ......
Strategic,
Depleted
Depleted
Threatened
Northern fur seal ...........
Seasonal
absence
Occurrence
California ......................
-
Hawaii .................
Hawaii .................
Hawaii .................
Hawaii .................
Southern California.
Hawaii .................
-
Southern California.
Southern California.
Hawaii .................
-
Southern
fornia.
Southern
fornia.
Southern
fornia.
Southern
fornia.
-
-
Cali-
-
Cali-
-
Cali-
-
Cali-
-
Stock
abundance
(CV)/minimum
population
unknown.
unknown.
unknown.
unknown.
29,988 (0.3)/
23,448.
64,343 (0.28)/
51,055.
16,498 (0.61)/
10,286.
30,968 (NA)/
27,348.
1,564 (0.05)/
1,444.
187,386 (NA)/
85,369.
257,606 (NA)/
233,515.
34,187 (NA)/
31,019.
14,050 (NA)/
7,524.
ddrumheller on DSK120RN23PROD with RULES3
Note: A ‘‘-’’ indicates that this column does not apply.
1 The Mainland Mexico—CA/OR/WA stock and the Mexico—North Pacific stock (which does not occur in the HSTT Study Area) of humpback whale comprise the
Mexico DPS. The Hawai1i stock comprises the Hawai1i DPS. The Central America/Southern Mexico—CA/OR/WA stock comprises the Central America DPS.
2 Ziphius cavirostris has multiple common names. In the 2018 HSTT final rule, 2020 HSTT final rule, and 2023 HSTT proposed rule, NMFS used the common name
Cuvier’s beaked whale. In this final rule, NMFS uses the common name goose-beaked whale instead.
3 The ‘‘4-Islands’’ stocks of common bottlenose dolphin and pantropical spotted dolphin are now the ‘‘Maui Nui’’ stocks.
4 NMFS relied on the 2022 final SAR for this stock.
5 NSD—No stock designation. Rough-toothed dolphin has a range known to include the waters off Southern California, but there is no recognized stock or data
available for the U.S. West Coast.
Unusual Mortality Events
Biologically Important Areas
An UME is defined under section
410(6) of the MMPA as a stranding that
is unexpected, involves a significant
die-off of any marine mammal
population, and demands immediate
response. From 1991 to the present,
there have been 17 formally recognized
UMEs affecting marine mammals in
California and Hawaii and involving
species under NMFS’ jurisdiction.
At the time of publication of the 2023
HSTT proposed rule, there was an
active UME for gray whales which
NMFS fully considered in its analysis
(88 FR 68290, October 3, 2023). This
UME was closed on November 9, 2023.
The UME involved 690 gray whale
strandings, including 347 in the United
States, 316 in Mexico, and 27 in Canada.
Strandings occurred from Alaska to
Mexico along the west coast of North
America, including in the whale’s
wintering, migratory, and feeding areas.
The Investigative Team concluded that
the preliminary cause of the UME was
localized ecosystem changes in the
whale’s Subarctic and Arctic feeding
areas that led to changes in food,
malnutrition, decreased birth rates, and
increased mortality all documented
during the UME. Please see https://
www.fisheries.noaa.gov/national/
marine-life-distress/2019-2023-easternnorth-pacific-gray-whale-ume-closed for
additional information on this UME.
Kratofil et al. (2023) identified
updated BIAs in Hawaii. The HSTT
Study Area overlaps the updated BIAs
for small and resident populations of
the following species in Hawaii: spinner
dolphin, short-finned pilot whale,
rough-toothed dolphin, pygmy killer
whale, pantropical spotted dolphin,
melon-headed whale, false killer whale,
dwarf sperm whale, goose-beaked
whale, common bottlenose dolphin, and
Blainville’s beaked whale. Further, the
HSTT Study Area overlaps updated
BIAs for humpback whale reproduction
in Hawaii. The updated BIAs overlap
critical Navy training and testing areas
within the HSTT Study Area, including
most of the internal Navy operating
areas. Please see Kratofil et al. (2023) for
additional details about the BIAs.
Since publication of the 2023 HSTT
proposed rule, Calambokidis et al.
(2024) identified updated BIAs on the
West Coast of the U.S. The HSTT Study
Area overlaps feeding BIAs for blue
whale and fin whale in SOCAL.
Additionally, it overlaps a reproductive
BIA as well as northbound and
southbound migratory BIAs for gray
whale. Please see Calambokidis et al.
(2024) for additional details about the
BIAs.
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Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
This section provides a discussion of
the ways in which components of the
specified activity may impact marine
mammals and their habitat. The
Estimated Take section later in this
document includes a quantitative
analysis of the number of individuals
that are expected to be taken by this
activity. The Analysis and Negligible
Impact Determination section considers
the content of this section, the
Estimated Take section, and the
Mitigation Measures section, to draw
conclusions regarding the likely impacts
of these activities on the reproductive
success or survivorship of individuals
and whether those impacts are
reasonably expected to, or reasonably
likely to, adversely affect the species or
stock through effects on annual rates of
recruitment or survival. In the Potential
Effects of Specified Activities on Marine
Mammals and Their Habitat section of
the 2018 HSTT proposed and final
rules, and as updated by the 2020 HSTT
final rule, NMFS provided a description
of the ways marine mammals may be
affected by the same activities that the
Navy will be conducting during the 7year period analyzed in this rulemaking
in the form of serious injury or
mortality, physical trauma, sensory
impairment (permanent and temporary
threshold shifts and acoustic masking),
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physiological responses (particularly
stress responses), behavioral
disturbance, or habitat effects. Further,
in the 2023 HSTT proposed rule, we
summarized any new relevant
information from the scientific literature
since publication of the 2020 HSTT
final rule. We do not repeat the
information here, all of which remains
current and applicable, but refer the
reader to those rules and the 2018 HSTT
FEIS/OEIS (chapter 3, section 3.7
Marine Mammals), which NMFS
participated in the development of via
our cooperating agency status and
adopted to meet our NEPA
requirements.
In the Potential Effects of Specified
Activities on Marine Mammals and
Their Habitat section of the 2018 HSTT
final rule, we stated that it has been
speculated for some time that beaked
whales might have unusual sensitivities
to sonar sound due to their likelihood
of stranding in conjunction with MFAS
use, although few definitive causal
relationships between MFAS use and
strandings have been documented, and
no such findings have been documented
with Navy use in Hawaii and southern
California. On March 25, 2022, a beaked
whale (species unknown) stranded in
Honaunau Bay, Hawaii. The animal was
observed swimming into shore and over
rocks. Bystanders intervened to turn the
animal off of the rocks, and it swam
back out of the Bay on its own. Locals
reported hearing a siren or alarm type of
sound underwater on the same day, and
a Navy vessel was observed from shore
on the following day. The Navy
confirmed it used CAS within 50 km (27
nmi) and 48 hours of the time of
stranding, though the stranding has not
been definitively linked to the Navy’s
CAS use.
An initial study of another deep
diving odontocete, the sperm whale,
found similar behavioral responses and
reductions in foraging when whales
were exposed to PAS and CAS at similar
cumulative Sound Exposure Levels
(SELcum), even though the CAS signal
had a lower source level than the PAS
signal. This may indicate that animals
were, in this case, responding to the
cumulative energy of a signal rather
than the instantaneous amplitude (Cure
et al. 2021, Isojunno et al. 2020). If a
beaked whale were inshore of a Navy
vessel using either PAS or CAS MFAS,
and responded by moving away from
the vessel, they could find themselves
in shallow water and become
disoriented, as may have happened in
the case of Honaunau Bay. In addition,
the animal was not seen after it returned
to sea, so blood tissue samples could not
be obtained. There has been a growing
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body of literature about the impacts of
new pathogens on the health and
stranding of marine mammals,
including beaked whales in Hawaii and
other locations in the Pacific (e.g.,
Clifton et al. 2023 and West et al. 2013).
NMFS has reviewed new relevant
information from the scientific literature
since publication of the 2023 HSTT
proposed rule. Further, in the 2023
HSTT proposed rule, we summarized
any new relevant information from the
scientific literature since publication of
the 2020 HSTT final rule. Summaries of
the new key scientific literature
reviewed since publication of the 2023
HSTT proposed rule are presented
below. The literature generally falls into
the following topic areas: Vessel Strike;
Hearing, Vocalization, and Masking;
Hearing Loss (Temporary Threshold
Shift (TTS) and Permanent Threshold
Shift (PTS)); Behavioral Reactions;
Stranding; Population Consequences of
Disturbance and Cumulative Stressors;
Methodology for Assessing Acoustic
Impacts.
Vessel Strike
Dunlop (2024) studied migrating east
Australian humpback whales’ response
to approaching vessels to determine if
individuals exhibited an avoidance
response. While some select groups did
display changes in their movements, the
sampled collective did not display any
consistent vessel avoidance response.
Furthermore, the degree of avoidance
was lower as vessels approached at
faster speeds. Overall, the results
showed that humpbacks were generally
unresponsive to approaching vessels
regardless of the speed or noise level at
which they approached. Female-calf
pairs proved to be the biggest exception
to this pattern; though this demographic
did not exhibit a consistent response as
a whole, these pairs were more likely to
change their travel pattern more than
any other group. Due to the lack of
response from the population, the
results suggest that implementation of
vessel strike avoidance protocols is
critical for successfully conserving large
whale populations.
Redfern et al. (2024) developed a new
metric for analyzing vessel strike risk
reduction (‘‘PLETHd’’) and applied it to
North Atlantic right, humpback, fin, and
sei whale distributions along the U.S.
East Coast. The metric is calculated
using three parameters: the relationship
between vessel speed and the
probability that a strike is lethal, vessel
transit distance, and whale
distributions. The authors compared the
impact of a 14 kn (25.9 km/hr) vs. 10 kn
(18.5 km/hr) speed restriction and found
that only the 10 kn (18.5 km/hr)
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4969
reduction substantially reduced risk.
The authors also found that applying a
10 kn (18.5 km/hr) speed restriction
within multiple whale species’ critical
habitat zones was almost as effective as
enacting the same speed restriction
along the entire East Coast Exclusive
Economic Zone (EEZ). The results
suggest that 10 kn (18.5 km/hr) speed
restrictions are a robust method for
reducing vessel strike risk and that
vessel restrictions within high-density
core areas of a marine mammal’s habitat
can be highly impactful.
Hearing, Vocalization, and Masking
Parnell et al. (2024) studied the
soundscapes of four underwater
Hawaiian monk seal critical habitats,
including measurement of ambient
noise and characterization of detected
sound sources. The authors observed
diel patterns in both anthropogenic and
biological sound sources that mask
acoustic communication in Hawaiian
monk seals. The measurements
collected for this study provide a
baseline for future research on impacts
of anthropogenic activities on these
soundscapes.
A multi-national team of scientists
(U.S. and Norway) obtained the first
hearing measurements of a mysticete
species through auditory evoked
potential (AEP) tests. During the 2023
field season, AEP tests were conducted
on two adolescent female minke whales
in Norway (Houser et al. 2024). Houser
et al. (2024) indicate that the minke
whale’s upper-frequency limit of
hearing occurs somewhere between 45
to 90 kHz. Minke whale’s highfrequency sensitivity is hypothesized to
support detection of the echolocation
clicks of one their predators, the killer
whale. The bandwidth of the tone-bursts
used in the Houser et al. (2024) AEP
testing was too broad to define the
precise upper-frequency limit, but
indicates this species is more sensitive
to higher frequencies than previously
predicted based on inner ear anatomy
and vocalization data (Southall et al.
2019; NMFS 2024). Results from their
final 2024 field season, which included
further examination of the upperfrequency limit of hearing, are expected
to be published in 2025, with
preliminary data from two additional
whales indicating that minke whale
hearing is best around 32 kHz.
Hearing Loss (TTS and PTS)
Gransier and Kastelein (2024)
examined TTS susceptibility in harbor
porpoises and harbor seals based on
exposures varying in frequency range
and level. Specifically, exposures
consisted of 100% duty cycle one-sixth-
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Federal Register / Vol. 90, No. 10 / Thursday, January 16, 2025 / Proposed Rules
octave noise bands at frequencies
covering the entire hearing range of each
species. Despite these species having
different audiograms and regions of best
sensitivity (i.e., underwater pinnipeds
are sensitive to sounds ranging from
approximately 0.01 to 40–60kHz, while
most odontocetes are sensitive sounds
ranging from approximately 0.25 to 80–
125kHz), the frequency-specific
susceptibility to TTS was similar
amongst both species, with the greatest
susceptibility to TTS occurring at
frequencies from 22.5 to 50 kHz and
least susceptible to sounds below 10
kHz. The frequency of minimum TTS
for the harbor seal aligns with its
frequency of best hearing, while
frequency of minimum TTS for the
harbor porpoise is well below the
frequency of best hearing. This study
illustrates that the audiogram does not
always serve as a good predictor of
frequency-dependent susceptibility to
TTS, with the pattern of susceptibility
to TTS in these two species being more
comparable than their audiograms.
Brewer et al. (2023) described 41 call
types of Cook Inlet beluga vocal
behavior and classified them into three
categories: (1) whistles, (2) pulsed calls,
and (3) combined calls. These are the
first descriptions of vocal repertoire of
this species in two critical habitat
locations and across multiple seasons.
Call types were then used to investigate
the potential for masking from
commercial ship noise. It was found
that call types (0–12 kHz) were partially
masked by distant ship noise and
completely masked by close ship noise.
This study provides evidence that ship
noise can impact vocal communication
of this population. Specifically Cook
Inlet beluga vocalizations in the Susitna
area, seven of the beluga’s most
common calls are either partially or
fully masked by commercial ship traffic.
Kastelein et al. (2024) examined TTS
in two California sea lions exposed to
one-sixth-octave noise band centered at
32 kHz for 60-minutes of exposure,
resulting in cumulative sound exposure
levels (SELcum) ranging from 168 to 192
dB. Hearing after exposure was
examined at the center frequency of the
fatiguing sound (32 kHz) and at half an
octave (44.8 kHz) and one octave above
the center frequency (63 kHz). Higher
SELcum resulted in greater threshold
shifts. Furthermore, the greatest TTS
occurred at half an octave above the
center frequency, with TTS onset (6 dB
threshold shift) measured at 44.8 kHz
occurring at a 179 dB SELcum. TTS
patterns and recovery was similar
between the two individuals, with TTSs
up to 6.7 dB recovering within 8
minutes of exposure, TTSs up to 12 dB
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20:57 Jan 15, 2025
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recovering within an hour, and only the
highest TTS measured (12.9 dB) taking
over an hour to recover. The results of
this study were directly incorporated in
the Navy’s updated Phase IV AUD INJ/
TTS criteria and indicate that California
sea lions have lower AUD INJ/TTS onset
than previously predicted (Southall et
al. 2019).
Behavioral Reactions
Ceciarini et al. (2023) tested the
efficacy of Acoustic Deterrent Devices
for minimizing common bottlenose
dolphin interactions with trammel nets
in the Northern Tyrrhenian Sea. The
authors used interactive pingers which
emitted output signals ‘‘from 5 up to
500 kHz at 168 dB re 1 mPa at 1 m as
random high-speed tones FM ranging
from 100 ms up to seconds’’. The study
found that catch damage from dolphins
was significantly lower in nets where
pingers were used.
Elmegaard et al. (2023) exposed six
harbor porpoises to Acoustic
Harassment Devices (AHDs), commonly
referred to as ‘‘seal scarers’’, to
determine if they would exhibit any
physiological or behavioral reactions.
The AHDs pulsed at 14 kHz with a
source level of 189 dB re 1 mPa (rms) or
sound exposure level of 184 dB re 1
mPa2s, with porpoise RLs ranging from
98–132 dB re 1 mPa. All individuals
sampled exhibited a mixture of
behavioral or physiological responses,
including startling, increased distance
from the sound source, increased swim
speed, diving, altered echolocation
patterns, cardiac responses, or altered
respiration patterns. Overall, responses
were observed in every individual up to
7 km or down to an RL of 98 dB re 1
mPa.
Frankish et al. (2023) followed ten
harbor porpoises for 5 to 10 days to
observe their reactions to ship traffic
around Denmark. The porpoises spent
over half of the study period within 10
km of a ship, and a third of the study
period exposed to noise levels above
ambient. The porpoises responded by
moving away from ships during the day,
and diving deep during the night. They
had a higher likelihood of altering their
movements when louder ships were
nearby (maximum probability of
deterrence = 12.2 percent during the day
and 14.9 percent at night), and moved
an average of 3.2 km away from 13.6
different ships every day. Deeper dives
occurred less frequently, at a rate of 5.7
different ships per individual per night.
The porpoises also reacted to loud ships
that were far away (>2 km at 93 ± 14 dB
re 1 mPa2), though responses occurred
less frequently (5 to 9 percent of the
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Sfmt 4700
time vs. up to 14.9 percent of the time
at close range).
Southall et al. (2023) used control
exposure experiments (CEEs) to provide
the first results in examining the impact
of mid-frequency navy sonar (3.5–4.1
kHz) or pseudorandom noise (similar
frequency, duration and source and
received level compared to midfrequency sonar) on fin whale behavior
in feeding habitats of the Southern
California Bight. Of the 15 exposed fin
whales, only five individuals
demonstrated a mild to moderate
behavioral changes (avoidance, changes
in feeding, diving, or respiration), with
no changes demonstrated for whales in
the six control exposures. Compared to
blue whales, fin whale behavioral
responses were more limited in
occurrence, severity and duration and
were found to be less dependent upon
contextual aspects of exposure, with
received level as the primary factor
associated with behavioral responses.
Additionally, foraging success was not
compromised by exposures from this
study. The authors note that differences
observed between behavioral response
in fin whales in this study and blue
whales in previously published studies
may be attributed to the smaller sample
size associated with this study.
However, as seen in blue whales, fin
whale behavior returned to baseline
conditions after noise exposure ended.
Methodology for Assessing Acoustic
Impacts
Indeck et al. (2024) assessed North
Atlantic right whale, fin, and blue whale
detectability by Slocum gliders near
heavily used shipping lanes in the Gulf
of St. Lawrence, Canada. The goal of the
study was to evaluate the gliders’
suitability as a passive acoustic
monitoring platform for whale detection
in areas with high anthropogenic noise
levels. The authors found that shipping
lane noise did not substantially impact
whale detectability, as calls from the
highly trafficked areas were not masked
significantly more than calls in quieter
areas nearby. The gliders were therefore
identified as a viable PAM platform to
use in and around busy shipping areas.
These results suggest that gliders could
be an important tool for monitoring
mysticetes in highly industrialized areas
and assisting in ongoing dynamic
management initiatives.
Conclusion for New Pertinent Science
Since Publication of the 2023 HSTT
Proposed Rule
Having considered the best scientific
information available, specifically new
relevant information published since
the 2023 HSTT proposed rule, we have
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determined that there is no new
information that substantively affects
our analysis of impacts on marine
mammals and their habitat that
appeared in the 2020 HSTT final rule,
all of which remains applicable and
valid for our assessment of the effects of
the Navy’s activities during the 7-year
period of this rulemaking.
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
application and agrees that the methods
the Navy has put forth described herein,
in the 2019 HSTT proposed rule, 2020
HSTT final rule, 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, with the exception of that
of humpback whales, discussed further
below. 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 and 2020 HSTT
regulations, with the exception of
authorized takes by serious injury or
mortality by vessel strike and
harassment takes of humpback whale
stocks in Southern California (due to the
new stock structure).
Takes are predominantly in the form
of harassment, but a small number of
serious injuries or mortalities could
occur. 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
the disruption of natural behavior
patterns to a point where they are
abandoned or significantly altered (as
defined specifically at the beginning of
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this section but referred to generally as
behavioral disturbance) or TTS for
marine mammals. There is also the
potential for Level A harassment 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. Additionally, serious injuries
or mortalities of mysticetes (except for
sei whales, minke whales, Bryde’s
whales, Central North Pacific stock of
blue whales, Hawaii stock of fin whales,
Western North Pacific stock of gray
whales, and sperm whales) could occur
through vessel strike. Mitigation and
monitoring measures are expected to
minimize the severity of the taking to
the extent practicable.
Generally speaking, for acoustic
impacts, NMFS estimates the amount
and type of harassment by considering:
(1) acoustic thresholds above which
NMFS believes the best available
science indicates marine mammals
would experience behavioral
disturbance 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) 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,
either directly or via the effects of TTS
(both equated to Level B harassment) or
PTS of some degree (equated to Level A
harassment). Thresholds have also been
developed to identify the pressure levels
above which animals may incur nonauditory injury from exposure to
pressure waves from explosive
detonation. We described the acoustic
thresholds and the methods used to
determine thresholds in detail in the
Acoustic Thresholds section of the 2018
HSTT final rule; please see the 2018
HSTT final rule for detailed
information. Further, in the 2020 HSTT
final rule, and 2023 HSTT proposed
rule, we described new relevant
information from the scientific literature
since publication of the 2018 HSTT
final rule and 2020 HSTT final rule,
respectively. Since publication of the
2023 HSTT proposed rule, NMFS has
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updated our Technical Guidance
(NMFS, 2024) containing updated
acoustic criteria for auditory injury (89
FR 36762, October 24, 2024). The
Technical Guidance provides updated
auditory injury thresholds, where
appropriate, as well as revised
weighting functions, in some cases. For
impulsive sources, the Updated
Technical Guidance’s auditory injury
thresholds generally remain identical or
are higher compared to our 2018
Technical Guidance, meaning that
received levels would need to be higher
in order for marine mammals to be
expected to incur auditory injury. The
exceptions are for phocid pinnipeds
(PW), where the cumulative SEL
threshold, in the Updated Technical
Guidance, is 2 dB lower and for otariid
pinnipeds (OW) where the peak sound
pressure level threshold is 2 dB lower
and the cumulative SEL threshold is 18
dB lower. As for the Updated Technical
Guidance’s weighting functions, for MF
cetaceans (now called HF cetaceans in
the updated document) and HF
cetaceans (now called VHF cetaceans in
the updated document), the weighting
functions reflect a higher susceptibility
to auditory injury at frequencies below
10 kHz, as compared to the 2018
Technical Guidance. Other minor
changes/shifts to weighting functions
(e.g., for LF cetaceans, PW pinnipeds,
OW pinnipeds) were also included. This
new information was not available in a
timeframe in which NMFS could have
incorporated it into the quantitative
analysis supporting this final
rulemaking; however, NMFS did
consider the information qualitatively.
While these changes in the auditory
injury thresholds and weighting
functions could result in minor
increases in PTS exposure estimates for
some species, given the conservative
assumptions built into the take estimate
methodology, they would not be
expected to result in meaningful, if any,
changes in take estimates and would not
be expected to change any of the
findings.
Navy’s Acoustic Effects Model
The Navy proposed no changes to the
Acoustic Effects Model as described in
the 2018 HSTT final rule (and
incorporated by reference in the 2020
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 and
proposed rules and Appendix E of the
2018 HSTT FEIS/OEIS for detailed
information, and see the discussion of
the 2024 Technical Guidance in the
Acoustic Thresholds section above.
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Range to Effects
The Navy proposed no changes from
the 2018 HSTT final rule (and
subsequent 2020 HSTT final rule) to the
type and nature of the specified
activities to be conducted during the 7year period analyzed in this final rule,
including equipment and sources used
and exercises conducted.
As described above in the Acoustic
Thresholds section, since publication of
the 2023 HSTT proposed rule, NMFS
has updated our Technical Guidance
(NMFS, 2024) containing updated
acoustic criteria for auditory injury (89
FR 36762). Please see that section for a
full discussion of the updates. This new
information was not available in a
timeframe in which NMFS could have
incorporated it into the quantitative
analysis supporting this final
rulemaking; however, NMFS did
consider the information qualitatively.
While these changes in the auditory
injury thresholds and weighting
functions could result in minor
increases in PTS exposure estimates for
some species, given the conservative
assumptions built into the take estimate
methodology, they would not be
expected to result in meaningful, if any,
changes in take estimates and would not
be expected to change any of the
findings.
Therefore, the ranges to effects in this
final rule are identical to those
described and analyzed in the 2018
HSTT final rule and 2020 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.
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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 or change the results in a
manner that would change the
necessary determinations supporting the
issuance of these regulations. The
Navy’s estimate of marine mammal
density as described in the 2018 HSTT
final rule remains valid, though, as
described herein, NMFS has
incorporated new information regarding
humpback whale stock structure into its
analysis. Please see the 2018 HSTT final
rule, and below, for detailed
information.
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As noted above, NMFS regularly
updates SARs, and in this rulemaking
considers the 2023 final SARs (Carretta
et al. 2024, Young et al. 2024). While
these SARs contain updated
information, the Navy’s estimate of
marine mammal density as described in
the 2018 HSTT final rule remains valid
for the following reasons. The Navy uses
its Marine Species Density Database
(NMSDD) for its analysis, which is
derived from multiple sources,
including but not limited to SARs. In
contrast, for most cetacean species, the
SAR is estimated using line-transect
surveys or mark-recapture studies (e.g.,
Barlow, 2010; Barlow and Forney, 2007;
Calambokidis et al. 2008). The result
provides one single abundance value for
each species across broad geographic
areas, but it does not provide
information on the species density or
concentrations within that area, and it
does not estimate density for other
timeframes or seasons that were not
surveyed. A change in a stock’s
abundance indicated in a SAR does not
necessarily indicate a change in that
stock’s density in any given area.
Therefore, stocks in the HSTT Study
Area with higher abundance estimates
in the most recent SARs in comparison
to the abundance estimates at the time
that marine mammal densities were
derived for the HSTT Study Area do not
necessarily now occur in higher
densities in the HSTT Study Area. For
humpback whale, while the stock
structure in the Pacific Ocean was
revised in the 2022 final SARs (Carretta
et al. 2023, Young et al. 2023), the
discussion above remains true regarding
density of humpback whales in the
HSTT Study Area across all stocks.
Take Requests
As in the 2018 HSTT final rule and
2020 HSTT final rule, 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
• Physical Disturbance and Strike
(vessel strike).
NMFS reviewed and agrees with the
Navy’s conclusion that acoustic and
explosive sources have the potential to
result in incidental takes of marine
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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. However, as noted
previously, in 2021, two separate U.S.
Navy vessels struck unidentified large
whales on two separate occasions, one
whale in June 2021 and one whale in
July 2021. In May 2023, the U.S. Navy
struck a large whale, which based on
available photos and video, NMFS and
the Navy have determined was either a
fin whale or sei whale. NMFS agrees
that vessel strikes have the potential to
result in incidental take from serious
injury or mortality for certain species of
large whales, and the Navy has
specifically requested coverage for these
species. Therefore, the likelihood of
vessel strikes, and later the effects of the
incidental take that is being authorized,
has been fully analyzed and is described
below.
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 2020
HSTT final rule, take estimates across
the 7 years were based on the Navy
conducting 4 years of a representative
level of activity and 3 years of
maximum level of activity. As in the
2020 HSTT final rule, the Navy uses the
maximum annual level to calculate
annual takes (which would remain
identical to what was determined in the
2020 HSTT final rule, with the
exception of attribution of takes to
humpback whale stocks), and the sum
of all years (4 representative and 3
maximum) to calculate the 7-year totals
for this rulemaking.
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
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
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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 section.
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,
with the exception of take of humpback
whales to account for the change in
stock structure. Please see the
documents described in the paragraph
above, the 2018 HSTT proposed rule,
the 2018 HSTT final rule, and below for
detailed descriptions of these analyses.
While Oedekoven and Thomas (2022)
suggest that detection of marine
mammals is less certain than previously
assumed at certain distances, NMFS has
independently evaluated the Navy’s
method for application of mitigation
effectiveness in estimating take 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,
including after consideration of
Oedekoven and Thomas (2022). In
summary, we believe the Navy’s
methods, including the method for
incorporating mitigation and avoidance,
are the most appropriate methods for
predicting PTS, TTS, and behavioral
disturbance. 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, TTS,
or behavioral disturbance.
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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
estimate 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 7-year period in its 2019
rulemaking/LOA application. With the
exception of changes to humpback
whale take, described below, 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 2022 Navy application
includes the Navy’s updated take
estimate and request for take by vessel
strike due to vessel movement in the
HSTT Study Area. NMFS reviewed the
Navy’s data, methodology, and analysis
and determined that it was complete,
but NMFS has reanalyzed the potential
for vessel strike following the May 2023
strike, as described in the Authorized
Take from Vessel Strikes and Explosives
by Serious Injury or Mortality section.
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 of instances
in which marine mammals are
reasonably expected to be taken at the
time of Navy’s request, and continues to
be for all stocks other than humpback
whales, for which changes are described
below. NMFS also agrees that the takes
by serious injury or mortality as a result
of vessel strikes could occur. Note that,
consistent with the 2020 HSTT final
rule, the total amount of estimated
incidental take from acoustic and
explosive sources over the total 7-year
period covered by the 2019 Navy
application is less than the annual total
multiplied by seven. Although the
annual estimates are based on the
maximum number of activities per year
and therefore, the maximum possible
estimated takes, the 7-year total take
estimates are based on the sum of 3
maximum years and 4 representative
years, with the exception of humpback
whale stocks that occur in SOCAL for
which 7-year total take is conservatively
estimated as the annual total multiplied
by seven. Not all activities occur every
year. Some activities would occur
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4973
multiple times within a year, and some
activities would occur only a few times
over the course of the 7-year period.
Using 7 years of the maximum number
of activities each year would vastly
overestimate the amount of incidental
take that would occur over the 7-year
period where the Navy knows that it
will not conduct the maximum number
of activities each and every year for the
7 years.
As described above in the Description
of Marine Mammals and Their Habitat
in the Area of the Specified Activities
section, the 2022 final SARs include a
revision to the humpback whale stock
structure in the Pacific Ocean. In the
2020 HSTT final rule, NMFS authorized
take of the CA/OR/WA stock and
Central North Pacific stock of humpback
whale. Given the revised stock
structure, in this final rule, NMFS has
reanalyzed the potential for take of each
stock of humpback whale and
determined that the Central America/
Southern Mexico-CA/OR/WA, Mainland
Mexico-CA/OR/WA stock, and Hawaii
stocks are likely to be taken by the
Navy’s activities.
Under the new stock structure, the
Hawaii stock (Hawaii DPS) is the only
stock that would occur in Hawaii.
Therefore, the Hawaii stock of
humpback whale is the only humpback
whale stock anticipated to be taken by
the Navy’s activities in the HRC, and all
takes of the Central North Pacific stock
of humpback whale that were
authorized in the 2020 HSTT final rule
are anticipated to be of individuals from
the new Hawaii stock. In SOCAL, the
takes of individuals from the former CA/
OR/WA stock that were authorized in
the 2020 HSTT final rule are anticipated
to be of individuals from the new
Central America/Southern Mexico-CA/
OR/WA and Mainland Mexico-CA/OR/
WA stock.
Please see the Authorized Harassment
Take from Testing Activities and
Authorized Harassment Take from
Training Activities sections below for
the authorized annual and 7-year total
number and type of Level A harassment
and Level B harassment for each
humpback whale stock.
Authorized Harassment Take From
Training Activities
For training activities, table 11 of the
2020 HSTT final rule summarizes the
Navy’s take estimate and request in the
2019 Navy application and the
maximum amount and type of Level A
harassment and Level B harassment that
NMFS concurred is reasonably expected
to occur by species or stock and
authorized in the 2020 HSTT LOA. In
the 2022 Navy application, the Navy
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requested no change to this authorized
take, though as described above, NMFS
has since published the 2023 final,
which include a revision to humpback
whale stock structure. For the estimated
7-year total amount and type of Level A
harassment and Level B harassment, see
table 11 of the 2020 HSTT final rule for
all species other than humpback whale.
illustrate the comparative amounts of
TTS and behavioral disturbance for each
species annually, noting that if a
modeled marine mammal was ‘‘taken’’
through exposure to both TTS and
behavioral disturbance in the model, it
was recorded as a TTS.
For the estimated amount and type of
Level A harassment and Level B
harassment annually, see table 41 in the
2018 HSTT final rule for all species
other than humpback whale. Note that
take by Level B harassment includes
both behavioral disturbance and TTS.
Navy figures 6–12 through 6–50 in
section 6 of the 2017 Navy application
TABLE 2—HUMPBACK WHALE TAKE FROM ACOUSTIC AND EXPLOSIVE EFFECTS FOR ALL TRAINING ACTIVITIES IN THE
HSTT STUDY AREA
Annual
Species
Humpback whale a .............
Stock
Level B
harassment
Hawaii ...........................................................
Central America/Southern Mexico-CA/OR/
WA (Central America DPS).
Mainland Mexico—CA/OR/WA (Mexico
DPS).
7-year total
Level A
harassment
Level B
harassment
Level A
harassment
5,604
585
1
0
b 4,095
34,437
12
0
669
1
b 4,683
7
a Combined takes from the Central America/Southern Mexico- CA/OR/WA stock and the Mainland Mexico CA/OR/WA stock are equal to takes
of the CA/OR/WA stock authorized in the 2020 HSTT final rule.
b Unlike other species and stocks, for the Central America/Southern Mexico-CA/OR/WA stock and Mainland Mexico-CA/OR/WA stock, NMFS
estimated the 7-year take by Level B harassment by multiplying the annual estimated take by seven. However, between the two stocks, NMFS
does not anticipate that the total number of takes by Level B harassment across all 7 years would exceed the 7,962 takes by Level B harassment from training activities that were authorized for the CA/OR/WA stock of humpback whales in the 2020 HSTT final rule.
Authorized Harassment Take From
Testing Activities
For testing activities, table 12 of the
2020 HSTT final rule summarizes the
Navy’s take estimate and request in the
2019 Navy application and the
maximum amount and type of Level A
harassment and Level B harassment that
NMFS concurred is reasonably expected
to occur by species or stock and
harassment includes both behavioral
disturbance 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 disturbance for each species
annually, noting that if a modeled
marine mammal was ‘‘taken’’ through
exposure to both TTS and behavioral
disturbance in the model, it was
recorded as a TTS.
authorized in the 2020 HSTT LOA. In
the 2022 Navy application, the Navy
requested no change to this authorized
take. For the estimated 7-year total
amount and type of Level A harassment
and Level B harassment, see table 12 of
the 2020 HSTT final rule. 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
TABLE 3—HUMPBACK WHALE TAKE FROM ACOUSTIC AND EXPLOSIVE EFFECTS FOR ALL TESTING ACTIVITIES IN THE
HSTT STUDY AREA
Annual
Species
Stock
Humpback whale a ................
Hawaii ...........................................................
Central America/Southern Mexico-CA/OR/
WA.
Mainland Mexico—CA/OR/WA ....................
Level B
harassment
7-year total
Level A
harassment
Level B
harassment
23,750
Level A
harassment
3,522
291
2
0
b 2,037
19
0
449
0
b 3,143
0
a Combined
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takes from the Central America/Southern Mexico- CA/OR/WA stock and the Mainland Mexico CA/OR/WA stock are equal to takes
of the CA/OR/WA stock authorized in the 2020 HSTT final rule.
b Unlike other species and stocks, for the Central America/Southern Mexico-CA/OR/WA stock and Mainland Mexico-CA/OR/WA stock, NMFS
estimated the 7-year take by Level B harassment by multiplying the annual estimated take by seven. However, between the two stocks, NMFS
does not anticipate that the total number of takes by Level B harassment across all 7 years would exceed the 4,961 takes by Level B harassment from testing activities that were authorized for the CA/OR/WA stock of humpback whales in the 2020 HSTT final rule.
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 fatalities
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to cetaceans (Abramson et al. 2011;
Berman-Kowalewski et al. 2010;
Calambokidis, 2012; Douglas et al. 2008;
Laggner, 2009; Lammers et al. 2003; Van
der Hoop et al. 2012; Van der Hoop et
al. 2013; Crum et al. 2019). Records of
collisions date back to the early 17th
century, and the worldwide number of
collisions appears to have increased
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steadily during recent decades (Laist et
al. 2001; Ritter 2012) due to increases in
the number and speed of large vessels,
increased reporting of strikes, and
increased abundance of some large
whales (Ransome et al. 2021), among
other factors.
Numerous studies of interactions
between surface vessels and marine
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mammals have demonstrated that freeranging marine mammals often, but not
always (e.g., McKenna et al. 2015;
Smultea et al. 2022; Szesciorka et al.
2019), 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;
Félix, 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
vessel movement 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
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 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,
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Vanderlaan and Taggart (2007) found
that between vessel speeds of 8.6 and 15
kn (15.9 and 27.8 km per hour), the
probability that a vessel strike is lethal
increases from 0.21 to 0.79. Large
whales also do not have to be at the
water’s surface to be struck. Silber et al.
(2010) found when a whale is below the
surface (about one to two times the
vessel draft), there is likely to be a
pronounced propeller suction effect.
This suction effect may draw the whale
into the hull of the ship, increasing the
probability of propeller strikes.
There are some key differences
between the operation of military and
non-military vessels, which make the
likelihood of a military vessel striking a
whale lower than some other vessels
(e.g., commercial merchant vessels). Key
differences include:
• Many military ships have their
bridges positioned closer to the bow,
offering better visibility ahead of the
ship (compared to a commercial
merchant vessel);
• There are often aircraft associated
with the training or testing activity
(which can serve as Lookouts), which
can more readily detect cetaceans in the
vicinity of a vessel or ahead of a vessel’s
present course before crew on the vessel
would be able to detect them;
• Military ships are generally more
maneuverable than commercial
merchant vessels, and if cetaceans are
spotted in the path of the ship, could be
capable of changing course more
quickly;
• The crew size on military vessels is
generally larger than merchant ships,
allowing for stationing more trained
Lookouts on the bridge. At all times
when vessels are underway, trained
Lookouts and bridge navigation teams
are used to detect objects on the surface
of the water ahead of the ship, including
cetaceans. Additional Lookouts, beyond
those already stationed on the bridge
and on navigation teams, are positioned
as Lookouts during some training
events; and
• When submerged, submarines are
generally slow moving (to avoid
detection), and therefore, marine
mammals at depth with a submarine are
likely able to avoid collision with the
submarine. When a submarine is
transiting on the surface, there are
Lookouts serving the same function as
they do on surface ships.
Vessel strike to marine mammals is
not associated with any specific training
or testing activity but is rather a limited
and sporadic, but possible, accidental
result of Navy vessel movement within
the HSTT Study Area or while in
transit.
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4975
In 2009, the Navy began
implementing additional mitigation
measures to further reduce the
likelihood of vessel strikes. Prior to the
recent strikes in 2021 and 2023, there
were two recorded U.S. Navy vessel
strikes of large whales in the HSTT
Study Area between 2009 and April
2021, a period of approximately 12
years.
Since 2021 there have been five
strikes of large whales in SOCAL
attributed to naval vessels, three by the
U.S. Navy and two by the Royal
Australian Navy. As stated previously,
the U.S. Navy struck a large whale in
waters off Southern California in May
2023. Based on available photos and
video, NMFS and the Navy have
determined this whale was either a fin
whale or sei whale. The U.S. Navy
struck two unidentified large whales
during the months of June and July
2021, and prior to that, on May 7, 2021,
the Royal Australian Navy HMAS
Sydney, a 147.5 m (161.3 yd) Hobart
Class Destroyer, struck and killed two
fin whales (a mother and her calf) while
operating within SOCAL. In the case of
the Royal Australian Navy strike, the
carcasses were first sighted under the
bow of the vessel while it was
approaching the Naval Base in San
Diego. The whales had been pinned to
a sonar dome in the front of the vessel
due to the force of water as the ship was
underway. Based on interviews with
HMAS Sydney personnel, the most
likely time of impact with the two
whales would have been around 6:25
a.m. when the vessel was located near
Cortes Bank, and visibility was poor.
The reported vessel speed at the
estimated time of strike was 9 kn (16.7
km per hour). One minute before the
estimated strike time a lookout reported
whales off the starboard bow. The
officer on-watch verbally acknowledged
the report, slowed speed, and visually
tracked the whales passing clear down
the starboard side until they were clear
of the ship. The morning of the strike,
the HMAS Sydney was getting into
position to participate in a U.S. Navyled exercise later that day. Of note,
throughout the remainder of the day
visibility was poor and the vessel had
implemented mitigation measures in
multiple instances due to whale
occurrence. In addition to being the
only documented occurrence of a
foreign military vessel strike of a large
whale within the HSTT Study Area, the
HMAS Sydney vessel strike was also
somewhat unique, as compared to other
reported military vessel strikes, in that
two whales were apparently struck at
one time, and both remained pinned to
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the front of the vessel until the vessel
approached the port.
On June 29, 2021, a U.S. Navy cruiser
struck an unknown whale species
approximately 95 nmi (176 km) west of
San Diego. The ship was returning from
Hawaii, heading to a rendezvous with a
fuel replenishment vessel (oiler) for an
Underway Replenishment. Off-duty
sailors noticed a group of whales
approaching the ship from the port
quarter (i.e., left rear of the ship), an area
unique to cruisers with some equipment
structures blocking close aboard sight.
The first indication of a whale within
the 500-yd mitigation zone immediately
prior to the strike was when an off-duty
sailor on the flight deck witnessed the
whale briefly surface on the aft port
quarter before diving. Shortly after this
occurred blood was noticed in the wake,
and a floating whale body was
eventually observed behind the ship.
The ship’s speed was 25 kn (46.3 km per
hour) at the estimated time the strike
occurred. The Navy also noted that, on
the morning before the strike occurred,
the ship had maneuvered several times
to avoid whale blows beyond the 500yd (457.2 m) mitigation zone, closer to
1,000 yd (914.4 m).
On July 11, 2021, a U.S. Navy cruiser
struck an unknown whale species
approximately 90 nmi (166.7 km) southsouthwest of San Diego. The vessel was
a participant in a MTE (Large Integrated
Anti-Submarine Warfare—Composite
Unit Training Exercise) within the
SOCAL portion of the action area. The
vessel was maneuvering for pending
flight operations to receive an inbound
helicopter. At 2:27 p.m., the starboard
lookout sighted what they believed to be
a whale crossing immediately under the
vessel’s bow. The conning officer
attempted to maneuver the vessel by
turning to port but internal
watchstanders subsequently felt the
ship shudder aft. The vessel’s combat
center observed a red slick 600 yd
(548.6 m) astern on a flight deck camera
and a brief surfacing of the whale itself,
but no carcass was observed. There had
not been any sightings of large whales
off the bow leading up to the incident.
Although the ship was traveling at 25–
30 kn (46.3–55.6 km per hour) 1 hour
before the estimated strike time, at 10
minutes before, the vessel changed
course and reduced its speed to 17 kn
(31.5 km per hour). These 2021
incidents were the first known U.S.
Navy vessel strikes in the HSTT Study
Area since 2009.
On May 20, 2023, a U.S. Navy aircraft
carrier was at sea conducting
independent, unit-level flight training
for the embarked airwing approximately
70 nmi (129.6 km) west of San Diego.
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Training exercises concluded for the
day at approximately 7:44 p.m. local
time. Navy personnel discovered a
whale impinged on the bow of the
vessel at approximately 8:00 p.m. local
time. The vessel was traveling at
approximately 5 kn (9.3 km per hour)
and had recently made a turn to reset
position for the evening when the Navy
personnel discovered the whale. Navy
personnel captured video and photos of
the carcass, and based on those images,
NMFS and the Navy have determined
this whale was either a fin whale or sei
whale; the two species are very similar
morphologically and are difficult to
distinguish from one another at sea.
Navy personnel stopped the vessel to
allow lack of momentum to dislodge the
carcass from the bow, and based on lack
of further observations after the carcass
dislodged, it is believed to have sunk
around 9:30 p.m. local time. Navy
personnel on board the vessel reported
that they did not feel an impact from
striking the whale. Prior to the strike,
between 6:45 p.m. and 7:45 p.m., the
forward Lookouts on the vessel
observed two whales crossing the
vessel’s bow but did not provide a
distance between the vessel and the
whales. One Lookout reported seeing
the blow and the other reported seeing
‘humps’ (presumably the dorsal of the
animal). Both whales were sighted past
the ship’s course to the northwest.
Within the same time window, one of
the aft Lookouts observed a single whale
swimming parallel to the ship and soon
passed astern of the ship. During the
same time, independent of the sightings
and for general movement reasons, the
ship changed speed from 17 kn (31.5 km
per hour) to 10 kn (18.5 km per hour)
at 7:22 p.m.
While in this incident a whale was
discovered impinged on the bow of a
Navy vessel, this incident is very
different from the discovery of two fin
whales discovered impinged on the
sonar dome of a Royal Australian Navy
vessel in 2021 when the vessel came to
port at Naval Base San Diego. While
U.S. Navy cannot speculate on the
configurations of other ships bows and
even sonar dome specifications (that
may be at the bow), the Navy believes
it would be implausible for a marine
mammal to become lodged on the sonar
dome of a U.S. Navy ship and remain
undetected due to a technological
standard operating procedure. Sonar
domes on U.S. Navy ships have a
pressurized rubber window that
maintains 150 pound-force per square
inch (PSI) through the ship’s fire main.
If anything affects the pressure, an alarm
sounds in the sonar control room. In the
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event of a whale strike in that location,
this alarm would alert personnel that
something hit the sonar dome. Further,
the shape, hydrodynamic design,
construction using a non-abrasive
material, and regular hull cleaning
procedures to remove barnacles and
other growth on U.S. Navy ships also
make it unlikely that a whale would
become lodged and remain undetected
on a U.S. Navy ship’s bow or even sonar
dome. While in the case of the May
2023 strike, described above, a whale
also became lodged on the ship’s bow,
the aircraft carrier that struck the whale
does not have active or passive sonar
capabilities (i.e., no sonar dome), nor
does it have a bulbous bow, and the
whale was more quickly discovered by
Navy personnel.
In March 2024 a dead fin whale was
discovered off of Pier 10 in Naval
Station San Diego within the Navy’s
security barrier. The security barrier,
which consists of a series of connected
floating sections, is intended to
discourage unauthorized boat entry to
the piers. The necropsy indicated that
vessel strike was the most likely cause
of death. Given the location the whale
was discovered, this could have been
the result of a military vessel strike.
However, the Navy reviewed its vessel
activity during that time frame and
available observations of those vessels
coming and going to port, as well as at
port, and determined it was unlikely
that the whale was carried into port by
a Navy vessel. Based on this and other
information from Navy’s investigation,
we cannot determine whether this
whale was struck by a Navy vessel
during HSTT activities or was struck by
a commercial or other vessel and drifted
into the Navy pier area.
For the same reasons listed above
describing why the likelihood of a
military vessel striking a whale is lower
than that of some other vessels striking
whales, it is also highly unlikely that a
Navy vessel would strike a whale,
dolphin, porpoise, or pinniped without
detecting it. Specifically, Navy vessels
have Lookouts, including on the
forward part of the ship that can
visually detect a hit animal in the event
ship personnel do not feel the strike
(which has occurred). Accordingly,
NMFS is confident that the Navy’s
reported strikes are accurate and
appropriate for use in the analysis. The
Navy has 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
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chain of command give NMFS a high
level of confidence that all strikes are
reported.
In order to better account for the
accidental nature of vessel strikes to
large whales in general and the potential
risk from U.S. Navy vessel movement
within the HSTT Study Area during the
remaining period of the HSTT rule in
particular, the Navy requested the HSTT
rule be modified to authorize additional
incidental takes by vessel strike based
on probabilities derived from a Poisson
distribution using vessel strike data
between 2009–2021 in the HSTT Study
Area (the time period from when
current mitigations were instituted until
the Navy conducted the analysis for the
2022 Navy application), as well as
historical at-sea days in the HSTT Study
Area from 2009–2015 and estimated atsea days for the period from 2016 to
2025 covered by the current regulations.
This distribution predicted the
probabilities of a specific number of
strikes (n = 0, 1, 2, etc.) over the
remaining period of the regulations at
the time of the Navy’s analysis (2022–
2025).
The Navy used the two fin whale
strikes (2009) and two unidentified large
whale strikes (2021) in their
calculations to determine the number of
strikes likely to result from its activities
over the remaining 3 years of the rule
(2023–2025, although worldwide strike
information from all Navy activities and
other sources was used to inform the
species that may be struck). The Navy
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 vessel strike, which
will remain in place along with
additional and modified mitigation
measures during the 7 years of this
rulemaking. From this analysis, the
Navy concluded that there was a 27
percent chance that zero whales would
be struck by Navy vessels over the
remaining period of the rule (which, at
the time that the application was
submitted, was 4 years), and a 35, 23,
and 10 percent chance that one, two, or
three whales, respectively, would be
struck over the remaining 4 years of the
rule. Therefore, the Navy estimated that
there was 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 what would have been the
remaining 4 years of the current
authorization, and the Navy requested
authorization of two additional takes of
large whales by serious injury or
mortality by vessel strike, beyond the
three takes authorized by the 2020
HSTT final rule (85 FR 41780, July 10,
2020).
NMFS has since updated this analysis
to reflect that an additional strike of an
unidentified large whale occurred in
May 2023 (either a fin whale or sei
whale, as stated above) and that
additional time has passed since the
4977
Navy submitted the 2022 Navy
application. Based on further
discussions with the Navy, NMFS has
also updated the way it calculated at-sea
days. This is a different manner of
calculating at-sea days for the purposes
of the strike analysis rather than a
change in Navy’s activity levels. For
2010–2015, the at-sea days used in
NMFS’ calculation reflected historic atsea days in the HSTT action area based
on positional vessel data records (Mintz,
2016). While the actual annual at-sea
days from 2016-present are currently
classified, NMFS’ updated calculation
reflects an extrapolation of the 2010–
2015 at-sea days (using the formula y =
–64x+131555) to estimate the number of
at-sea days in 2016 (Navy, 2022). The
number of at-sea days derived for 2016
was 2,056 at-sea days, which reflects the
downward trend in HSTT vessel activity
from 2010–2015. Since we do not have
sufficient information to say whether or
not this downward trend continued for
the years 2017–2023, we conservatively
estimate the average over these years
was the same as the 2016 extrapolated
value of 2,056 at-sea days. This analysis
only included at-sea days for Navy
warships greater than 65 feet (i.e.,
destroyers are the smallest ship class
included). Navy vessels smaller than 65
feet have never reported a whale strike
in the Pacific, and therefore, we
consider it unlikely that this would
occur in the remaining period of the
regulations.
TABLE 4—HSTT 2009 THROUGH MID-2023 AT-SEA DAYS USED FOR THE VESSEL STRIKE PROBABILITY CALCULATION
Year
At-Sea days
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2009 ..........................................
2010 ..........................................
2011 ..........................................
2012 ..........................................
2013 ..........................................
2014 ..........................................
2015 ..........................................
2016 ..........................................
2017 ..........................................
2018 ..........................................
2019 ..........................................
2020 ..........................................
2021 ..........................................
2022 ..........................................
2023 (first half of year) .............
2009- Mid-2023 total ................
4,233
5,207
4,483
4,081
4,041
4,272
3,311
2,056
2,056
2,056
2,056
2,056
2,056
2,056
1,028
45,048
NMFS then used the number of past
Navy vessel strikes and the at-sea days
to calculate a vessel strike rate for 2009
through mid-2023. The estimated total
number of Navy at-sea days (for vessels
greater than 65 feet) for 2009 through
mid-2023 was 45,048 days. Dividing the
five known strikes during that period by
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Derivation
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Estimated average based on 2010–2015 data.
Based on positional vessel data.
Based on positional vessel data.
Based on positional vessel data.
Based on positional vessel data.
Based on positional vessel data.
Based on positional vessel data.
Extrapolated from 2010–2015 regression.
Extrapolated from 2010–2015 regression.
Extrapolated from 2010–2015 regression.
Extrapolated from 2010–2015 regression.
Extrapolated from 2010–2015 regression.
Extrapolated from 2010–2015 regression.
Extrapolated from 2010–2015 regression.
Extrapolated from 2010–2015 regression, then reduced by half.
the at-sea days (i.e., 5 strikes/45,048 atsea days) results in a strike rate of
0.000111 strikes per day.
As described above, NMFS
conservatively assumed that the average
number of at-sea days from mid-2023
through 2025 (the remaining period of
the regulations at the time that the
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analysis was conducted) will be the
same as the 2016 extrapolated value of
2,056. Therefore, the estimated at-sea
days within the action area for the
period from mid-2023 through 2025 is
5,140 days. NMFS multiplied the
historic daily strike rate by the
estimated at-sea days from mid-2023
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through 2025 (0.000111 strikes per day
× 5,140 days) to estimate the number of
whale strikes anticipated during that
period. This calculation predicts an
estimated 0.57 strikes over the
remaining 2.5 years of the regulations at
the time the analysis was conducted
(mid-2023 through 2025).
As explained above, according to the
U.S. Navy, the May 2021 vessel strike of
two fin whales by a Royal Australian
Navy vessel did not occur while that
vessel was participating in a U.S. Navyled training exercise, and the strike of
those two fin whales is not included in
the estimated take by vessel strike
calculation. Instead, as noted below,
NMFS considered the 2021 vessel strike
by the Royal Australian Navy along with
other strike information when
determining which species could be
among the estimated large whales
struck.
NMFS used a Poisson distribution to
derive the probabilities of a specific
number of strikes (n=0, 1, 2, etc.) from
mid-2023 through 2025, given the
estimated 0.57 strikes during that
period. NMFS’ probability analysis
concluded that there is a 57 percent
chance that zero whales would be struck
by U.S. Navy vessels from mid-2023
through 2025, and a 32, 9, and 2 percent
chance that one, two, or three whales,
respectively, would be struck over that
period. Further, there is an estimated 11
percent chance that the Navy would
strike more than one large whale from
mid-2023 through 2025. We have
assessed these probabilities and
determined that the strike of up to two
large whales could occur over the
remaining duration of the regulations,
for a total of five takes by serious injury
or mortality of large whales by vessel
strike total over the 7-year duration of
the regulations (three takes authorized
in the 2020 HSTT final rule (85 FR
41780, July 10, 2020) which have
occurred, plus two additional takes).
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.), 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 any pinnipeds being
struck by a vessel as a result of Navy
activities. Over the same time period,
NMFS and the Navy have only one
record of a dolphin, porpoise, or small
whale being struck by a vessel as a
result of Navy activities. A dolphin was
accidentally struck by a Navy small boat
in fall 2021 in Saint Andrew’s Pass,
Florida. The smaller size and
maneuverability of dolphins, small
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whales, and pinnipeds generally make
such strikes very unlikely. Other than
this one reported strike of a dolphin in
2021, NMFS has never received any
reports from other LOA or Incidental
Harassment Authorization holders
indicating that these species have been
struck by vessels. In addition,
worldwide vessel 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 (and is authorizing)
incidental take by vessel strike of large
whales only (i.e., no dolphins, small
whales, porpoises, or pinnipeds) over
the course of the 7-year regulations from
training and testing activities as
discussed below.
Next, after determining that take of up
to five large whales could occur, NMFS
considered which species could be
among the five large whales struck. As
noted in the 2018 HSTT proposed and
final rules, the 2019 HSTT proposed
rule, 2020 HSTT final rule, and 2023
HSTT proposed rule, in the 2017 Navy
rulemaking/LOA 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
updated this analysis to consider several
factors, in addition to the overlap of
Navy activities with stock distribution:
(1) The relative likelihood of striking
one stock versus another based on
available strike data from all vessel
types as denoted in the Carretta et al.
(2021; referenced in the Pacific SARs),
the Pacific and Alaska SARs (Carretta et
al. 2024 and Young et al. 2024), and
unpublished NMFS vessel strike data
for 2019–2021; and (2) whether the
Navy has ever struck an individual from
a particular species or stock in the
HSTT Study Area, and if so, how many
times. (Note that since publication of
the 2023 HSTT proposed rule, Carretta
et al. (2023), which includes vessel
strike data through 2021 has published,
but NMFS included this data in its
analysis through the unpublished NMFS
vessel strike data for 2019–2021,
referenced above). NMFS did not
consider relative abundance, as was
considered in previous analyses, given
that the relative abundance of a stock
does not necessarily inform its
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occurrence in a specific area. Further,
NMFS did not consider the historical
strike data from older years (prior to
2015), given that more recent data is
more relevant to determining
occurrence of, and strike risk to, various
stocks. NMFS updated the analysis with
NMFS’ vessel strike probability analysis
for the remaining period of the rule (2.5
years at the time of the analysis) and
included new/updated vessel strike data
from the SARs and NMFS records for
California and Hawaii.
To address number (1) above, for
SOCAL, NMFS compiled information
from Carretta et al. (2021) and
unpublished NMFS vessel strike data
for 2020–2021 (since published in
Caretta et al. (2023)) for California on
known annual rates of large whale
serious injury or mortality from vessel
collisions (this data includes the strike
of two fin whales by the Royal
Australian Navy in 2021, but does not
include Navy strikes in 2021 and 2023
because the species struck is not
known). Use of Carretta et al. (2021)
rather than the Pacific SAR allows
NMFS to separate strikes that occurred
in California from strikes to the same
stocks that occurred in other locations.
For the HRC, NMFS compiled
information from the Pacific and Alaska
SARs and unpublished NMFS vessel
strike data for 2019–2021 for Hawaii on
known annual rates of large whale
serious injury or mortality from vessel
collisions. The annual rates of large
whale serious injury or mortality from
vessel collisions from those sources
help inform the relative susceptibility of
large whale species to vessel strike in
SOCAL and the HRC; therefore, we
considered only reported strikes where
the species struck was identified with
sufficient certainty (i.e., ‘‘known
strikes’’). Additionally, the M/SI in the
2023 SAR considers modeled takes for
some, but not most species and stocks
(i.e., M/SI for humpback whale includes
modeled takes from Rockwood et al.
(2017)). Using known strike data for all
species and stocks allows us to
consider-like metrics for this
comparative analysis. (Note we rely on
the M/SI estimates from the 2023 SAR
(or draft 2023 SAR, where relevant) in
our negligible impact analysis. We also
consider modeled takes of species from
Rockwood et al. (2017) in table 7). We
summed the annual rates of serious
injury or mortality from vessel
collisions in California and Hawaii as
calculated above and then divided each
species’ annual rate by this sum to get
the proportion of strikes for each
species/stock (table 5).
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TABLE 5—ANNUAL RATES OF SERIOUS INJURY AND MORTALITY FROM VESSEL STRIKE AND PERCENTAGE OF TOTAL
STRIKES BY SPECIES IN SOCAL AND THE HRC
ESA status
Species
Stock
Listed ..............
Blue whale ..........................
Humpback whale ................
Central North Pacific .................................
Eastern North Pacific ................................
California, Oregon, & Washington ............
Hawaiian ....................................................
Central America/Southern Mexico-CA/OR/
WA (Central America DPS).
Mainland Mexico- CA/OR/WA (Mexico
DPS).
Eastern North Pacific ................................
Hawaiian ....................................................
Western North Pacific ...............................
California, Oregon, & Washington ............
Hawaiian ....................................................
Eastern North Pacific ................................
ETP stock ..................................................
Hawaiian ....................................................
CA/OR/WA ................................................
Hawaii ........................................................
Hawaii (Hawaii DPS) .................................
.............................................
....................................................................
Fin whale a ..........................
Humpback whale ................
Sei whale ............................
Gray whale ..........................
Sperm whale .......................
Not listed ........
Gray whale ..........................
Bryde’s whale .....................
Minke whale ........................
Total ........
SOCAL annual
known strikes
(2015–2021)
HRC annual
known strikes
(2015–2021)
........................
0.57
1.57
........................
1b
0
........................
........................
0
........................
0.0
6.5
17.8
0.0
11.3
0.14
........................
0
0
........................
2.14
0
........................
0
........................
........................
........................
0
........................
........................
0
........................
........................
0
........................
0
3.4
1.6
0.0
0.0
0.0
0.0
24.3
0.0
0.0
0.0
0.0
38.5
8.82
Percentage of
total annual
strikes
............................
a This
includes the two fin whales struck by the Royal Australian Navy in May 2021.
strike occurred to an individual of the CA/OR/WA stock under the previous stock structure. As such, in its analysis, NMFS assumed that
this strike could have been of either stock.
b This
To inform the likelihood of striking a
particular species of large whale, we
multiplied the percent of total annual
strikes for a given species in table 5, by
the total percent likelihood of striking at
least one whale during the remaining
period of the rule (2023–2025 at the
time of the analysis; i.e., 43 percent, as
described by the probability analysis
above). We also calculated the percent
likelihood of striking a particular
species of large whale twice during the
remaining period of the rule by squaring
the value estimated for the probability
of striking a particular species of whale
once (i.e., to calculate the probability of
an event occurring twice, multiply the
probability of the first event by the
second). The results of these
calculations are reflected in the last two
columns of table 6. We note that these
probabilities vary from year to year as
the average annual mortality changes
depending on the specific range of time
considered; however, over the years and
through updated data in the SARs and
unpublished NMFS records, stocks tend
to consistently maintain a relatively
higher or relatively lower likelihood of
being struck.
TABLE 6—PERCENT LIKELIHOOD OF STRIKING EACH STOCK ONE OR TWO TIMES OVER 2.5 YEARS AND TOTAL KNOWN
U.S. NAVY STRIKES IN THE HSTT STUDY AREA
Stock
Blue whale ......................................
Central North Pacific ......................
Eastern North Pacific .....................
CA/OR/WA .....................................
Hawaiian ........................................
Central America/Southern MexicoCA/OR/WA (Central America
DPS).
Mainland Mexico- CA/OR/WA
(Mexico DPS).
Eastern North Pacific .....................
Hawaiian ........................................
Western North Pacific ....................
CA/OR/WA .....................................
Hawaiian ........................................
Eastern North Pacific .....................
ETP stock .......................................
Hawaiian ........................................
CA/OR/WA .....................................
Hawaii ............................................
Fin whale ........................................
Humpback whale ............................
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Sei whale ........................................
Gray whale .....................................
Sperm whale ...................................
Gray whale .....................................
Bryde’s whale .................................
Minke whale ....................................
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Percent
likelihood
of 1 strike
over 2.5 years
Percent
likelihood
of 2 strikes
over 2.5 years
.....................................................
in SOCAL (2004) ........................
in SOCAL (2009, 2023 a) ............
.....................................................
.....................................................
0.00
2.81
7.74 b
0.00
4.93
0.00
0.08
0.60 b
0.00
0.24
1 in SOCAL (2023 a) ......................
0 .....................................................
0 .....................................................
0.00 ................................................
1 in HRC (2007) .............................
3 in SOCAL (1993, 1998) ..............
0 .....................................................
0 .....................................................
0 .....................................................
0 .....................................................
0.69
0.00
0.00
0.00
0.00
10.55
0.00
0.00
0.00
0.00
0.00
0.00
0.00
Total known U.S Navy strikes in
HSTT study area
Species
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0
1
3
0
0
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1.11
0.00
0.00
0.00
0.00
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TABLE 6—PERCENT LIKELIHOOD OF STRIKING EACH STOCK ONE OR TWO TIMES OVER 2.5 YEARS AND TOTAL KNOWN
U.S. NAVY STRIKES IN THE HSTT STUDY AREA—Continued
Species
Stock
Total known U.S Navy strikes in
HSTT study area
Humpback whale ............................
Hawaii (Hawaii DPS) .....................
2 in HRC (2003) .............................
Percent
likelihood
of 1 strike
over 2.5 years
Percent
likelihood
of 2 strikes
over 2.5 years
16.76
2.81
a Based
on available photos and video, NMFS and the Navy have determined the May 2023 strike was of either a fin whale or sei whale. In
the analysis herein, NMFS has assumed that this strike could have been of either species, and has therefore, accounted for it in both the fin
whale and sei whale strike totals. Given that we are unable to identify the species of the whales struck by the U.S. Navy in 2021, NMFS did not
include the two 2021 strikes in this part of the analysis.
b This includes the two fin whales struck by the Royal Australian Navy in May 2021.
The percent likelihood calculated as
described above are then considered in
combination with the information
indicating the known species that the
Navy has hit in the HSTT Study Area
since 1991 (since they started tracking
consistently; table 6). We note that for
the lethal take of species specifically
denoted in table 7 below, 47 percent of
those struck by the Navy (8 of 17 in the
Pacific) remained unidentified
(including the May 2023 strike, which
as stated above, NMFS and the Navy
have determined was of either a fin
whale or sei whale). However, given the
information on known stocks struck, the
analysis below remains appropriate. We
also note that Rockwood et al. (2017)
modeled the likelihood of 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 could hit those
stocks.
For each indicated stock, table 7
includes the percent likelihood of
striking an individual whale from a
particular stock during the remaining
2.5 years of the rule once based on SAR
data, Carretta et al. (2021), and
unpublished NMFS vessel strike data
from 2019–2021 for Hawaii; total strikes
from Navy vessels in the HSTT Study
Area, and modeled vessel strikes from
Rockwood et al. (2017). The last column
indicates the authorized annual
mortality.
TABLE 7—SUMMARY OF FACTORS CONSIDERED IN DETERMINING THE NUMBER OF INDIVIDUALS IN EACH STOCK
POTENTIALLY STRUCK BY A VESSEL
Percent
likelihood
of one strike
over 2.5
years
ESA status
Species
Stock
Listed .............
Blue whale ..........................
Central North Pacific ..........
Eastern North Pacific ..........
CA/OR/WA ..........................
Hawaii .................................
Central America/Southern
Mexico- CA/OR/WA
(Central America DPS).
Mainland Mexico-CA/OR/
WA (Mexico DPS).
Eastern North Pacific ..........
Hawaii .................................
Western North Pacific .........
CA/OR/WA ..........................
Hawaii .................................
Eastern North Pacific ..........
Eastern Tropical Pacific ......
Hawaii .................................
CA/OR/WA ..........................
Hawaii .................................
Hawaii (Hawaii DPS) 5 ........
Fin whale ............................
Humpback whale 4 ..............
Sei whale ............................
Gray whale .........................
Sperm whale .......................
Not listed .......
Gray whale .........................
Bryde’s whale .....................
Minke whale ........................
Humpback whale ................
0.00
2.81
7.74 2
0.00
4.93
....................
0.69
0.00
0.00
0.00
0.00
10.55
0.00
0.00
0.00
0.00
16.76
Rockwood
et al. 2017
modeled
vessel
strikes 1
Annual
authorized
take from
2020 HSTT
final rule
..........................................
in SOCAL (2004) .............
in SOCAL (2009, 2023 3)
..........................................
..........................................
....................
18
43
....................
22
....................
0.14
0.29
....................
0.14
0
0.14
0.57
0
0
.............................................
....................
....................
0.14
in SOCAL(2023) 3 ............
..........................................
..........................................
..........................................
in HRC (2007) .................
in SOCAL (1993, 1998) ...
..........................................
..........................................
..........................................
..........................................
in HRC (2003) .................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
0.14
0.29
....................
....................
....................
....................
0.29
0.14
0
0
0
0
0.57
0
0
0
0
0.29
Total known U.S Navy
strikes in HSTT study area
(1993–2009)
0
1
3
0
0
1
0
0
0
1
3
0
0
0
0
2
Annual
authorized
take
1 Rockwood
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et al. modeled likely annual vessel strikes off the West Coast for these three species only.
2 This includes the two fin whales struck by the Royal Australian Navy in May 2021.
3 Based on available photos and video, NMFS and the Navy have determined the May 2023 strike was of either a fin whale or sei whale. In the analysis herein,
NMFS has assumed that this strike could have been of either species, and has therefore, accounted for it in both the fin whale and sei whale strike totals.
4 In the 2020 HSTT final rule, take of humpback whale by serious injury and mortality by vessel strike in SOCAL was attributed to the former CA/OR/WA stock and
the Mexico DPS. Text explains why takes in SOCAL come from the Mexico DPS, and therefore the Mainland Mexico-CA/OR/WA stock.
5 The 2023 final SAR reports vessel strike data for the Hawaii stock of humpback whales in Alaska, Washington, and Hawaii. Only vessel strike data from Hawaii
was incorporated into our analysis as Alaska and Washington are outside of the HSTT Study Area.
Accordingly, stocks that have no
record of ever having been struck by any
vessel are considered to have a zero
percent likelihood of being struck by the
Navy in the 7-year period of the rule.
Stocks that have never been struck by
the Navy, have rarely been struck by
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other vessels, and have a low percent
likelihood based on the historical vessel
strike calculation are also considered to
have a zero percent likelihood to be
struck by the Navy during the 7-year
rule. We note that while vessel strike
records have not differentiated between
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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
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they would be encountered, much less
struck. This rules out all but seven
stocks. Further, it is unlikely that the
Hawaii stock of sperm whale would be
struck given the zero percent likelihood
of striking a sperm whale as indicated
by the quantitative analysis above, the
fact that the last U.S. Navy strike of a
Hawaii stock sperm whale was in 2007,
before the mitigation updates discussed
above, and that, with the exception of
humpback whales, vessel strikes (both
military and non-military) of other large
whale species in the HRC are extremely
rare events (Carretta 2021b; Carretta
2022). (The 2020 HSTT final rule
authorized one take (0.14 annual take)
by mortality of the Hawaii stock of
sperm whale.)
As stated previously, based on
available photos and video of the whale
struck by the U.S. Navy in Southern
California in 2023, NMFS and the Navy
have determined this whale was either
a fin whale or sei whale. While the
species of the two whales struck by the
U.S. Navy in 2021 are unknown, given
the following factors, NMFS expects
these strikes may have been CA/OR/WA
fin whales or Eastern North Pacific
(ENP) gray whales, or some combination
of these two stocks. These species have
the highest annual rates of M/SI from
vessel collision in California (1.57, 2.14,
respectively, as noted above; which is
approximately one and a half to two
times higher than the species with the
next highest strike rate, humpback
whale, and approximately two to four
times higher than the strike rate of blue
whale). Additionally, gray whale and fin
whale have the most recorded vessel
strike incidents by military vessels in
SOCAL and are the only stocks known
to have been hit more than one time by
naval vessels in the SOCAL portion of
the HSTT Study Area (three gray whale
strikes by the U.S. Navy (1993, 1998),
two or three fin whale strikes by the
U.S. Navy (2009, potentially 2023), and
two fin whale strikes by the Royal
Australian Navy (2021)). Further,
accounting for undocumented vessel
strikes, Rockwood et al. (2021)
estimated that in their study area off
Southern California from 2012–2018, on
average 8.9 blue, 4.6 humpback, and 9.7
fin whales were killed by civilian vessel
strikes from June to November each
year. In addition, they estimated that, on
average, 5.7 humpback whales were
killed by civilian vessel strike from
January–April per year (Rockwood et al.
2021). For fin whales in particular,
model-predicted densities of large
whales in the Southern California Bight
from May to July 2021 (the time period
during which the 2021 strikes of two
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Jkt 265001
unidentified whales by the U.S. Navy
occurred) estimated fin whale
abundance as being nearly an order of
magnitude higher than either blue or
humpback whale abundance during this
time period (Becker et al. 2020; Zickel
et al. 2021). Ship-whale encounter
models for the U.S. West Coast
Exclusive Economic Zone also indicated
that vessel strike mortality estimates for
fin whales were significantly higher
than for blue whales and humpback
whales (Rockwood et al. 2017). The
comparatively higher modeled vessel
strike rates for fin whales result from
both the larger population as well as the
more offshore distribution that overlaps
significantly with several major
shipping routes for a much greater
spatial extent (Rockwood et al. 2017).
Based on 1,243 visual boat-based
sightings of 2,638 fin whales from 1991–
2011, Calambokidis et al. (2015) found
fin whale concentration areas included
the San Clemente Basin where the 2021
Navy vessel strikes occurred (Tanner
and Cortez Banks area and the shelf
edge west of San Nicolas Island were
also reported as fin whale concentration
areas). There are two different
populations of fin whales that occur in
the Southern California Bight: a
seasonal population, and a population
that occurs year-round with offshore/
inshore movements (Campbell et al.
2015; Falcone et al. 2022). This would
likely make fin whales more susceptible
to vessel strike year-round, as compared
to other large whale species that may
occur seasonally within SOCAL. Based
on all of these factors, there is a
reasonable likelihood that the CA/OR/
WA stock of fin whales or ENP stock of
gray whales could be struck twice
during the remaining period of the rule.
Therefore, we find that, of the five total
takes by serious injury or mortality by
vessel strike of large whales authorized
over the course of the 7-year rule, up to
four of those takes could be of the CA/
OR/WA stock of fin whale or the ENP
stock of gray whale given that the two
strikes of unidentified large whales in
2021 could have been of either stock.
Further, consistent with the 2020 HSTT
final rule, we expect that, of the five
total takes by serious injury or mortality
by vessel strike of large whales
authorized, up to two of those takes
could occur in Hawaii, and therefore be
of individuals of the Hawaii stock of
humpback whale.
Based on the information summarized
in table 7 and the fact that there is the
potential for up to two large whales to
be struck over the remaining period of
the rule (five strikes over the full 7-year
rule period), one individual from the
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4981
Eastern North Pacific stock of blue
whale, Mainland Mexico-CA/OR/WA
stock of humpback whale, or Eastern
North Pacific stock of sei whale could
be among the two whales struck during
the remaining effective period of the
regulations (2023–2025 at the time of
the analysis). The total strikes of Eastern
North Pacific blue whales and the
percent likelihood of striking one based
on the historic strike calculation above
can both be considered moderate
compared to other stocks, and the Navy
struck a blue whale in 2004 (based on
the historic strike calculation, the
likelihood of striking two blue whales is
well below one percent (table 6)).
Therefore, we consider it reasonably
likely that the Navy could strike one
individual over the course of the 7-year
rule, and given that we do not expect
that the 2023 strike nor either of the
2021 U.S. Navy strikes of unidentified
large whales were blue whales, we
expect that this strike could occur
during the remaining period of the rule.
The total strikes of Eastern North Pacific
sei whales are low compared to other
stocks, but NMFS and the Navy think it
is possible that the Navy may have
struck a sei whale in SOCAL in 2023.
Therefore, we consider it reasonably
likely that the Navy could strike a sei
whale over the remaining period of the
rule. The Navy has not hit a humpback
whale in the SOCAL portion of the
HSTT Study Area. However, in 2016 a
U.S. Coast Guard vessel participating in
a Navy event struck a humpback whale
in Hood Canal, and as a species,
humpbacks have a moderate to high
number of total strikes and percent
likelihood of being struck. Although the
likelihood of Central America/Southern
Mexico- CA/OR/WA (Central America
DPS) or Mainland Mexico-CA/OR/WA
(Mexico DPS) humpback whales being
struck by any vessel type 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 Mainland Mexico-CA/
OR/WA stock (Mexico DPS) over the 7year duration of the rule, as described
below.
Regarding the likelihood of striking a
humpback whale from a particular DPS,
we evaluated the relative abundance of
each of these DPS in California waters.
Curtis et al. (2022) estimated the
abundance of the Central America DPS
to be 1,496 whales. From Wade et al.
(2017), about 93 percent (or 1,391
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whales) of these humpbacks that winter
in Central America will move to
Oregon/California in the summer
months. While there is currently no
abundance estimate for the Mexico DPS,
an estimated 3,477 whales from the
Mexico DPS feed off the U.S. West Coast
(Calambokidis and Barlow 2020; Curtis
2022). Based on this information, we
estimate that approximately 30 percent
of the humpback whales off the coast of
California may be from the Central
America DPS with the remaining 70
percent expected to be from the Mexico
DPS. Therefore, we anticipate that if a
Navy vessel strike of a humpback whale
were to occur within SOCAL, it would
likely be from the Mexico DPS. Last,
Rockwood et al. (2017) supports a
relative likelihood of 1:1:2 for striking
blue whales, humpback whales, and fin
whales off the U.S West Coast (though
as noted above, more recent data
suggests that the relative likelihood of
striking a fin whale is higher and
suggests that the two 2021 U.S. Navy
vessel strikes of unidentified large
whales may have been fin whales),
which, in consideration of more recent
data also supports the authorized take
included in this rule, which is 1, 1, and
4, respectively over the 7-year period.
For these reasons, one lethal take of a
Mainland Mexico-CA/OR/WA
humpback whale (Mexico DPS) could
occur and is authorized.
For Hawaii stocks, given that all
known vessel strikes between 2015 and
2021 were of humpback whales, we
anticipate that any vessel strike of a
large whale in Hawaii would be of the
Hawaii stock of humpback whale. Given
that this stock has the highest
percentage of total annual strikes (38.5
percent) and a 2.81 percent chance of
being struck twice over the remaining
period of the rule (more than twice that
of the species with the next highest
percentage, gray whale), NMFS
authorizes two lethal takes of Hawaii
humpback whales.
As described above, the Navy’s
analysis suggests and NMFS’ analysis
concurs that the likelihood of vessel
strikes to the stocks below is
discountable 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, NMFS is not authorizing
lethal take for the following stocks: Blue
whale (Central North Pacific stock),
Bryde’s whale (Eastern Tropical Pacific
stock and Hawaii stock), fin whale
(Hawaii stock), gray whale (Western
North Pacific stock), humpback whale
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Jkt 265001
(Central America/Southern Mexico-CA/
OR/WA stock, Central America DPS),
minke whale (CA/OR/WA stock and
Hawaii stock), sei whale (Hawaii stock),
and sperm whale (CA/OR/WA stock and
Hawaii stock).
Also of note, while information on
past Navy vessel strikes can serve as a
reasonable indicator of future vessel
strike risk, future conditions may differ
from the past in ways that could
influence the likelihood of a large whale
vessel strike occurring. In general, the
magnitude of vessel strike risk may be
increasing over time as many whale
populations are gradually recovering
from centuries of commercial whaling
(Redfern et al. 2020). Increased vessel
strike risk off California in recent
decades has been associated with
increases in the abundance of fin and
humpback whale populations in the
North Pacific (Redfern et al. 2020). It has
also been suggested that the blue whale
population in the Eastern North Pacific,
inclusive of the SOCAL portion of the
HSTT Study Area, is at carrying
capacity and recovered to pre-whaling
levels (Monnahan et al. 2014). In
addition, the magnitude of risk may also
be affected by shifts in whale
distributions over time in response to
environmental factors including climate
change, marine heatwaves, and
associated changes in prey distribution.
Historically, military vessel strikes of
large whales within the HSTT Study
Area have been rare events with only
seven such strikes occurring over the
past 14 years, five U.S. Navy strikes, and
two Royal Australian Navy strikes.
However, the fact that four of these
strikes occurred within a 3-month
period (May-July) in 2021, and two
occurred within a 4-month period
(February-May) in 2009, suggests that
military vessel strikes in SOCAL can be
both highly episodic and clustered. The
four large whale strikes in 2021 (two
strikes of unidentified large whales by
the U.S. Navy and two fin whale strikes
by the Royal Australian Navy) appear to
be outliers in the time series of military
vessel strikes in SOCAL for that period.
However, particularly in consideration
of the 2023 U.S. Navy strike, these
strikes could also represent an early
indicator of an increased military vessel
strike risk within SOCAL based on the
factors discussed above. Results from a
survey of whale watching vessel
operators and crew in Southern
California, combined with remote
sensing data in the area, suggest that the
number of large whales may have been
greater in May through July of 2021
compared with previous years in certain
high military vessel traffic and ‘‘core’’
use HSTT areas off southern California,
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particularly farther offshore as well as
closer to shore off San Diego Bay (Zickel
MJ et al. 2021).
In conclusion, while take by vessel
strike across any given year is sporadic,
based on the information and analysis
above, including consideration of the
2021 and 2023 strikes by the U.S. Navy,
NMFS anticipates no more than five
takes of large whales by M/SI could
occur over the 7-year period of the rule.
Of those five whales over the 7-years, no
more than four may come from the
following stocks: gray whale (Eastern
North Pacific stock) and fin whale (CA/
OR/WA stock). No more than two may
come from the Hawaii stock of
humpback whales. No more than one
may come from the following stocks:
blue whale (Eastern North Pacific stock),
sei whale (Eastern North Pacific), and
humpback whale (Mexico-North Pacific
stock or Mainland Mexico-CA/OR/WA,
Mexico DPS). Accordingly, NMFS has
evaluated under the negligible impact
standard the M/SI of 0.14, 0.29, or 0.57
whales annually from each of these
species or stocks (i.e., one, two, or four
takes, respectively, divided by 7 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
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 report (U.S.
Department of the Navy, 2018).
Specifically, over the course of a
modeled maximum year of training and
testing, the Navy’s model and
quantitative analysis process estimates
M/SI of two short-beaked common
dolphin 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 7-year period of the 2020 HSTT
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.
NMFS makes no changes to the
authorization of take by M/SI as a result
of explosive use as the Navy made no
changes to its activities from that
described in the 2018 HSTT final rule,
and after reviewing all new information,
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we find that our previous analyses
remain applicable. Please refer to the
2018 HSTT final rule and 2020 HSTT
final rule for additional information.
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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.1 In evaluating what mitigation
measures are appropriate, NMFS
considers the potential impacts of the
Specified Activities, the availability of
measures to minimize those potential
1 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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impacts, and the practicability of
implementing those measures, as we
describe below. This final rule includes
all mitigation measures required by the
2020 HSTT final rule (though two have
been modified in this final rule), and
our discussion in that rule remains
complete and accurate (including
reference to the 2018 HSTT final rule),
except as described below.
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
measure(s) for applicant
implementation. Practicability of
implementation may consider such
things as cost, impact on activities, and,
in the case of a military readiness
activity, specifically considers
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
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
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4983
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
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
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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.
Assessment of Mitigation Measures for
HSTT Rule
NMFS fully reviewed the Navy’s
specified activities and the mitigation
measures for the 2020 HSTT final rule
and determined, with the addition of
the new and modified measures
discussed herein, and after
consideration of the new information
and studies described above, that the
mitigation measures would result in the
least practicable adverse impact on
marine mammals (see the 2019 Navy
application and the 2018 HSTT final
rule for detailed information on the
Navy’s mitigation measures, with the
exception of the new and modified
measures described herein). NMFS
worked with the Navy in the
development of the Navy’s mitigation
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 supports 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 2020
HSTT regulations and will be required
to continue implementation of the
mitigation measures identified in this
rulemaking for the full 7 years it covers
to avoid or reduce potential impacts
from acoustic, explosive, and physical
disturbance and vessel strike stressors.
The Navy also evaluated numerous
measures in the 2018 HSTT FEIS/OEIS
that were not included in the 2017 Navy
application, and NMFS independently
reviewed and considered all new
information, and continues to concur
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with Navy’s analysis that their inclusion
was not appropriate under the least
practicable adverse impact standard.
The Navy considered these additional
potential mitigation measures in two
groups. First, chapter 5 (Mitigation) of
the 2018 HSTT FEIS/OEIS, in the
Measures Considered but Eliminated
section, includes an analysis of an array
of different types of mitigation that have
been recommended over the years by
NGOs or the public, through scoping or
public comment on environmental
compliance documents. Appendix K
(Geographic Mitigation Assessment) of
the 2018 HSTT FEIS/OEIS includes an
in-depth analysis of time/area
restrictions that have been
recommended over time or previously
implemented as a result of litigation.
Below, we summarize the mitigation
measures (organized into procedural
measures and mitigation areas) that
NMFS has determined will ensure the
least practicable adverse impact on all
affected species and stocks and their
habitat, including the specific
considerations for military readiness
activities, and including several
measures that are new or modified since
publication of the 2020 HSTT final rule.
In its 2022 application, the Navy
proposed no changes to the procedural
or geographic mitigation measures in
the 2020 HSTT final rule. NMFS
reviewed new information potentially
pertinent to mitigation of the Navy’s
training and testing activities. While
Lookouts are essential to detecting the
potential for and potentially avoiding a
vessel strike of a marine mammal,
NMFS and the Navy have always
acknowledged that Lookouts cannot
prevent all vessel strikes. The recent
U.S. Navy and Royal Australian Navy
vessel strikes appear to confirm this, as
these strikes occurred when Lookouts
were posted. As acknowledged above,
these recent incidents may represent an
early indicator of an increased military
vessel strike risk within SOCAL. Recent
reports appear to reflect the sporadic,
episodic, or clustered nature of vessel
strike or may reflect a trend of increased
large whale presence in this area in the
early summer months. NMFS and the
Navy have discussed the circumstances
of each of the recent strikes, including
the Royal Australian Navy strike, and
discussed ways of improving strike
mitigation. In these further
conversations, NMFS and the Navy
developed several new and modified
mitigation measures in comparison to
those included in the 2020 HSTT final
rule.
For vessel movement, the 2020 HSTT
final rule required that ‘‘When
underway Navy personnel must observe
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the mitigation zone for marine
mammals; if marine mammals are
observed, Navy personnel must
maneuver to maintain distance.’’ This
measure has been updated to state that
reducing speed may be an appropriate
way to maneuver. The revised measure
states that ‘‘When underway, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must maneuver (which may include
reducing speed as the mission or
circumstances allow) to maintain
distance.’’ Of note, between 2009 and
2021 (the most recent year for which
data is available), U.S. Navy vessels in
the SOCAL portion of the HSTT Study
Area maneuvered 316 times to avoid
large whales during MTEs. The years
2017 and 2021 had the highest number
of maneuvers (n=64 and n=82,
respectively). In all years for which data
is available (2009 to 2021), Navy
cruisers and destroyers account for 51 to
100 percent of maneuvers during MTEs.
With this modified measure, NMFS is
emphasizing that Navy personnel
should consider reducing speed (as
mission or circumstances allow) when
maneuvering to avoid marine mammals,
though this modified measure does not
require reduction of vessel speed for
reasons explained in chapter 5
(Mitigation) of the 2018 HSTT FEIS/
OEIS, in the Measures Considered but
Eliminated section (i.e., requirements to
reduce vessel speeds would have
significant direct negative effects on
mission effectiveness).
This final rule also requires that Navy
personnel must send alerts to Navy
vessels of increased risk of strike
following any reported Navy vessel
strike in the HSTT Study Area.
Further, the 2020 HSTT final rule
included a requirement for Navy
personnel to issue seasonal awareness
notification messages to alert ships and
aircraft to the possible presence of blue
whales (June–October), humpback
whales (November–April), gray whales
(November–March), or fin whales
(November–May). These messages assist
in maintaining safety of navigation and
in avoiding interactions with large
whales during transits. 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. This final rule requires the
Navy to re-title the spring blue whale
message (released in June) to a large
whale awareness message inclusive of
typical spring-summer large whales in
southern California (mainly blue, fin,
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and humpback whales). Furthermore,
rather than tying the message release to
a specific month, the message would be
for a period based on predicted
oceanographic conditions for a given
year (e.g., May–November, April–
November, etc.). The Navy will also
evaluate information obtained from
NMFS’ Southwest Fisheries Science
Center scientists, recently published
West Coast BIAs (Calambokedis et al.
2024), and other oceanographic or
predictive models for guiding message
text descriptions of whale occurrence in
Southern California. The improvement
will emphasize that when a marine
mammal is spotted, this may be an
indicator that additional marine
mammals are present and nearby, and
increased vigilance and awareness of
Navy personnel is warranted.
This final rule also contains a new
mitigation measure in which Navy
personnel would issue real-time
notifications to Navy vessels of large
whale aggregations (four or more
whales) within 1 nmi (1.9 km) of a Navy
vessel in a select area of SOCAL (Of
note, the four whales do not have to be
the same species and do not have to be
part of the same group (e.g., two whales
of one species sighted at a distance off
the port side at 500 yd (457.2 m) and
two more whales of another species
sighted off the starboard side at 500 yd
(457.2 m) will be considered an
aggregation under this measure)). This
measure will apply to the area between
32–33 degrees North and 117.2–119.5
degrees West, which includes the
locations where recent (2009, 2021,
2023) strikes occurred, and historic
locations where strikes occurred when
precise latitude and longitude were
known.
Of note, in order to improve
mitigation effectiveness, in fall 2022 the
Navy made several changes to its
Lookout training. The Navy revised its
basic Lookout training materials to
improve marine mammal awareness and
spotting techniques through updates to
the Marine Mammal chapter of the
Navy’s September 2022 Lookout
Training Handbook. Further, the Navy
integrated improved Lookout training
into a new generation of a shipboard
simulator at its recruit training center in
the Great Lakes. This simulator
enhances new sailor knowledge and
skill under realistic training scenarios.
Last, the Navy will evaluate future
revisions to online or DVD Marine
Species Awareness Training video
training to emphasize that when a
protected species is spotted, this may be
an indicator that additional marine
mammals are present and nearby, and
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the vessel should take this into
consideration when transiting.
In addition to Lookouts required
under this rule, the Navy mandates the
number of Lookouts on underway
vessels per internal policy documents,
including the Surface Ship NAVDORM.
As described in the Standard Operating
Procedures section, in 2021, NAVDORM
policy changed to require three
Lookouts on most classes of surface
ship, including destroyers and cruisers.
However, the Navy asserts that always
including three Lookouts on these
vessels in the future as a required
mitigation measure is not practicable
because lookout numbers are subject to
change based on national security
needs, including manning and staffing
requirements. As such, although the
Navy describes these additional
Lookouts in its application under the
mitigation section, NMFS has not
considered the potential presence of two
additional lookouts when considering
Navy’s mitigation effectiveness. Please
see the Reporting section for additional
detail on this requirement.
With the exception of Oedekoven and
Thomas (2022) described above, there is
no new information that affects NMFS’
assessment of the applicability or
effectiveness of the measures included
in the 2018 HSTT final rule over the
remainder of the 7-year period. As
stated above in the Potential Effects of
Specified Activities on Marine
Mammals and Their Habitat section,
while (Oedekoven and Thomas, 2022)
suggests that detection of marine
mammals is less certain than previously
assumed at certain distances, model
assumptions may still underestimate
Lookout effectiveness in some cases.
Additionally, maneuvering data
summarized above demonstrates that
Navy vessels are successfully
maneuvering to avoid striking sighted
marine mammals in most cases, despite
the Oedekoven and Thomas (2022)
results. Further, as described above,
Navy and NMFS have developed
modified or new mitigation in this final
rule which are anticipated to further
reduce the risk of vessel strike of large
whales.
In summary, and as described in more
detail above regarding vessel strike, 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, vessel
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 and minimize
the likelihood or severity of PTS or
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4985
other injury, and reduce instances of
TTS or more severe behavioral
disturbance 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 would reduce take of
marine mammals in areas or at times
where they are known to engage in
important behaviors, such as feeding or
calving, where the disruption of those
behaviors would have a higher
probability of resulting in impacts on
reproduction or survival of individuals
that could lead to population-level
impacts. Table 8 provides the Navy’s
required procedural mitigation
measures for environmental awareness
and education and vessel movement as
well as summaries of the Navy’s
procedural mitigation measures for
other activities. Table 9 provides
summaries of mitigation areas for the
HSTT Study Area.
NMFS and the Navy considered
additional mitigation areas (beyond
those already identified with associated
measures to reduce impacts to marine
mammals) to further protect marine
mammals, including odontocetes with
small or resident populations in the
HSTT Study Area, and large whales
with feeding, reproductive, and
migratory BIAs in the HSTT Study Area.
This includes consideration of new
mitigation areas that could be based on
newly identified BIAs in Hawaii
(Kratofil et al. 2023) and on the West
Coast (Calambokidis et al. 2024). The
HRC overlaps BIAs identified in Kratofil
et al. (2023) for humpback whale,
spinner dolphin, short-finned pilot
whale, rough-toothed dolphin, pygmy
killer whale, pantropical spotted
dolphin, melon-headed whale, false
killer whale, dwarf sperm whale, goosebeaked whale, common bottlenose
dolphin, and Blainville’s beaked whale.
All of the BIAs that overlap the HRC are
small and resident population BIAs,
with the exception of the humpback
whale reproductive BIA. SOCAL
overlaps BIAs identified in
Calambokidis et al. (2024) for blue
whale (feeding area), fin whale (feeding
area), and gray whale (migratory route).
Additional restrictions in mitigation
areas beyond those restrictions and
areas included in the 2020 HSTT final
rule (including mitigation to reduce
vessel strike risk such as vessel speed
restrictions, and in consideration of the
newly identified BIAs (Kratofil et al.
2023 and Calambokidis et al. 2024)) is
impracticable given overlap with critical
Navy training areas in the HRC and
SOCAL. However, many of the BIAs
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identified in Kratofil et al. 2023 and
Calambokidis et al. (2024) partially or
fully overlap the mitigation areas
included in the 2020 HSTT final rule
and this final rule and are aimed at
reducing impacts to the same species for
which Kratofil et al. 2023 and
Calambokidis et al. (2024) identified
BIAs. In the HRC, the existing
mitigation areas are targeted and
expected to reduce impacts to
humpback whales, false killer whales,
dwarf sperm whales, pygmy killer
whales, short-finned pilot whales,
melon-headed whales, bottlenose
dolphins, spotted dolphins, spinner
dolphins, rough-toothed dolphins,
goose-beaked whales, and Blainville’s
beaked whales (i.e., all species for
which Kratofil et al. (2023) identified
BIAs). In SOCAL, the existing mitigation
areas are aimed at reducing impacts to
blue whales, fin whales, and gray
whales (i.e., all species for which
Calambokidis et al. (2024) identified
BIAs). Further, as included in the 2023
HSTT proposed rule, this final rule
requires that Navy personnel must issue
real-time notifications to Navy vessels of
large whale aggregations (four or more
whales) within 1 nmi (1.9 km) of a Navy
vessel in a select area of SOCAL, and
that Navy personnel must send alerts to
Navy vessels of increased risk of strike
following any reported Navy vessel
strike in the HSTT Study Area. Last, this
final rule includes modification of two
mitigation measures from the 2020
HSTT final rule (85 FR 41780; July 10,
2020) to further reduce the potential for
vessel strike.
TABLE 8—SUMMARY OF PROCEDURAL MITIGATION
Stressor or activity
Mitigation zone sizes and other requirements
Environmental Awareness and Education .....
• This mitigation applies to all training and testing activities, as applicable.
• Mitigation Requirements:
Æ Appropriate Navy personnel (including civilian personnel) involved in mitigation and training or testing activity
reporting under the specific activities must complete one or more modules of the U.S. Navy Afloat Environmental Compliance Training Series, as identified in their career path training plan. Modules include:
D Introduction to the U.S. Navy Afloat Environmental Compliance Training Series. The introductory module
provides information on environmental laws (e.g., ESA, MMPA) and the corresponding responsibilities that
are relevant to Navy training and testing activities. The material explains why environmental compliance is
important in supporting the Navy’s commitment to environmental stewardship.
D Marine Species Awareness Training. All bridge watch personnel, Commanding Officers, Executive Officers,
maritime patrol aircraft aircrews, anti-submarine warfare and mine warfare rotary-wing aircrews, Lookouts,
and equivalent civilian personnel must successfully complete the Marine Species Awareness Training prior
to standing watch or serving as a Lookout. The Marine Species Awareness Training provides information
on sighting cues, visual observation tools and techniques, and sighting notification procedures. Navy biologists developed Marine Species Awareness Training to improve the effectiveness of visual observations for
biological resources, focusing on marine mammals and sea turtles, and including floating vegetation, jellyfish aggregations, and flocks of seabirds.
D U.S. Navy Protective Measures Assessment Protocol. This module provides the necessary instruction for
accessing mitigation requirements during the event planning phase using the Protective Measures Assessment Protocol software tool.
D U.S. Navy Sonar Positional Reporting System and Marine Mammal Incident Reporting. This module provides instruction on the procedures and activity reporting requirements for the Sonar Positional Reporting
System and marine mammal incident reporting.
Depending on sonar source:
• 1,000 yd (914.4 m) power down, 500 yd (457.2 m) power down, and 200 yd (182.9 m) shut down.
• 200 yd (182.9 m) shut down.
• 150 yd (137.2 m).
• 100 yd (91.4 m).
• 30 degrees on either side of the firing line out to 70 yd (64 m).
• 600 yd (548.6 m).
• 2,100 yd (1,920.2 m).
• 1,000 yd (914.4 m; large-caliber projectiles).
• 600 yd (548.6 m; medium-caliber projectiles during surface-to-surface activities).
• 200 yd (182.9 m; medium-caliber projectiles during air-to-surface activities).
• 2,000 yd (1,828.8 m; 21–500 lb. net explosive weight).
• 900 yd (823 m; 0.6–20 lb. net explosive weight).
• 2,500 yd (2,286 m).
• 2.5 nmi (4.6 km).
• 2,100 yd (1,929.2 m; 6–650 lb net explosive weight).
• 600 yd (548.6 m; 0.1–5 lb net explosive weight).
• 1,000 yd (914.4 m; 21–60 lb net explosive weight for positive control charges and charges using time-delay fuses).
• 500 yd (457.2 m; 0.1–20 lb net explosive weight for positive control charges).
• 700 yd (640.1 m).
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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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 ..........................................
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• 200 yd (182.9 m).
• The mitigation must not be applied if: (1) The vessel’s safety is threatened, (2) the vessel is restricted in its ability to
maneuver (e.g., during launching and recovery of aircraft or landing craft, during towing activities, when mooring),
(3) the vessel is operated autonomously, or (4) when impractical based on mission requirements (e.g., during Amphibious Assault—Battalion Landing exercises).
• Number of Lookouts and Observation Platform:
Æ Lookout must be on the vessel that is underway.1
• Mitigation Requirements:
Æ Mitigation zones:—500 yd (457.2 m) around whales.—200 yd (182.9 m) around other marine mammals (except
bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels).
Æ When a vessel is underway, Navy personnel must observe the mitigation zone for marine mammals; if marine
mammals are observed, Navy personnel must maneuver (which may include reducing speed as the mission or
circumstances allow) to maintain distance.
• Additional requirements:
Æ If a marine mammal vessel strike occurs, Navy personnel must follow the established incident reporting procedures. Navy personnel must also send alerts to Navy vessels of increased risk of strike following any reported
Navy vessel strike in the HSTT Study Area.
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TABLE 8—SUMMARY OF PROCEDURAL MITIGATION—Continued
Stressor or activity
Mitigation zone sizes and other requirements
Towed In-Water Devices ...............................
Small-, Medium-, and Large-Caliber Non-Explosive Practice Munitions.
Non-Explosive Missiles and Rockets .............
Non-Explosive Bombs and Mine Shapes ......
Æ Navy personnel must issue real-time notifications to Navy vessels of large whale aggregations (four or more
whales) within 1 nmi (1.9 km) of a Navy vessel in the area between 32–33 degrees North and 117.2–119.5 degrees West. These notifications would be issued to Navy vessels within this boundary only.
• 250 yd (228.6 m; marine mammals).
• 200 yd (182.9 m).
• 900 yd (823 m).
• 1,000 yd (914.4 m).
Note: lb: pounds; nmi: nautical miles; yd: yards; m: meters.
1 Underway vessels will maintain at least one Lookout. For ship classes required to maintain more than one Lookout, the specific requirement is subject to change
over time in accordance with Navy navigation instruction (e.g., the Surface Ship NAVDORM). Navy personnel will notify NMFS as soon as practicable should its Lookout policies change, including in the NAVDORM.
TABLE 9—SUMMARY OF MITIGATION AREAS FOR MARINE MAMMALS
Summary of mitigation area requirements
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.1
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 largecaliber gunnery, torpedo, bombing, and missile (including 2.75’’ 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’’ 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’’ 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″ rockets) activities during training.1
Awareness Notification Message Areas (seasonal according to species)
• Navy personnel must issue spring awareness notification messages to alert ships and aircraft to the possible presence of large whales during a period based
on predicted oceanographic conditions for a given year. The message must emphasize to personnel on vessels that when a marine mammal is spotted, this
may be an indicator that additional marine mammals are present and nearby, and increased vigilance and awareness of Navy personnel is warranted. Navy
personnel must also issue awareness notification messages to alert ships and aircraft to the possible presence of gray whales (November–March) and fin
whales (November–May).
1 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 mitigation measures from the
2020 rule—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, with the exception of the
changes described herein—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
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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,
including consideration of personnel
safety, practicality of implementation,
and impact on the effectiveness of the
military readiness activity. After
considering all new information,
including consideration of new
information regarding vessel strike,
NMFS is requiring two additional
mitigation measures and revision of two
existing mitigation measures as
described above.
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Based on our evaluation of the Navy’s
current mitigation measures (which are
being implemented under the 2020
HSTT regulations), as well as modified
and new measures described above,
NMFS has determined that the
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 2020 HSTT final rule
includes an adaptive management
provision, which NMFS has included in
this final rule, which ensures that
mitigation is regularly assessed and
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provides a mechanism to improve the
mitigation, based on the factors above,
through modification as appropriate.
Monitoring
Section 101(a)(5)(A) of the MMPA
states that in order to authorize
incidental take for an activity, NMFS
must set forth requirements pertaining
to the monitoring and reporting of such
taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13)
indicate that requests for incidental take
authorizations must include the
suggested means of accomplishing the
necessary monitoring and reporting that
will result in increased knowledge of
the species and of the level of taking or
impacts on populations of marine
mammals that are expected to be
present.
In its 2022 application, the Navy
proposed no changes to the monitoring
described in the 2018 HSTT final rule
and 2020 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, 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, these modified
regulations would include identical
adaptive management provisions and
reporting requirements as the 2018
HSTT regulations. There is no new
information that would indicate that the
monitoring measures put in place under
the 2018 HSTT final rule would not
remain applicable and appropriate for
the 7-year period of this rule. See the
Monitoring section of the 2018 HSTT
final rule for more details on the
monitoring program 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 proposed by
the Navy.
Within the SOCAL portion of HSTT,
the Navy has been primarily focused on
beaked whale monitoring since 2018
through two separate ongoing projects
that are expected to continue until 2025.
These projects use passive acoustic
devices, visual surveys, satellite tagging,
genetic analysis, photoID, and response
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to anthropogenic sounds to refine
population status of beaked whales in
SOCAL. There is also one concurrent
project with fin whales using visual
surveys, satellite tagging, and photoID to
gather additional data on fin whale
populations in Southern California.
Finally, the Navy continues to fund
marine mammal sighting data collected
during California Cooperative Oceanic
Fisheries Investigations (CALCOFI)
https://calcofi.org/. These data are
collected on a much more frequent basis
than NMFS’ West Coast visual survey
which typically occur once every 5
years in the summer. CALCOFI surveys
occur quarterly every year to include
winter and spring seasons NMFS does
not survey. Sufficient marine mammal
sightings have been accumulated since
the Navy started funding in 2004 for the
data to be incorporated into ongoing
NMFS spatial habitat models, including
new models for select species. The Navy
also annually funds continued NMFS
spatial habitat model improvements as
new data and techniques become
available. These models benefit the
Navy and other Federal partners such as
the Bureau of Ocean Energy
Management and NMFS, for use in
future regional marine mammal density
derivation. For additional information,
please see the Navy’s Marine Species
Monitoring program website, https://
www.navymarinespeciesmonitoring.us/
regions/pacific/current-projects/.
Adaptive Management
The 2020 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 7-year regulations. The 2022
Navy application proposed no changes
to the adaptive management component
included in the 2020 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
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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 and 2022
Navy application proposed no changes
to the reporting requirements, though as
noted above, the Navy has since
proposed to report changes to Lookout
SOPs to NMFS. Except as discussed
below, reporting requirements would
remain identical to those described in
the 2018 HSTT final rule and 2020
HSTT final rule, and there is no new
information that would indicate that the
reporting requirements put in place
under the 2020 HSTT final rule would
not remain applicable and appropriate
for the remaining duration of the 7-year
period of this rule. See the Reporting
section of the 2018 HSTT final rule for
more details on the reporting that would
be required under this rulemaking. In
addition, the 2018 HSTT proposed and
final rules unintentionally failed to
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include the requirement for the Navy to
submit a final activity ‘‘close out’’ report
at the end of the regulatory period. That
oversight was corrected through the
2020 HSTT final rule. Please see the
2020 HSTT final rule for the detailed
requirements for that report.
In addition to the reporting
requirements included in the 2020
HSTT final rule, in 2023, we proposed
requiring the Navy to report changes in
its Lookout policies to NMFS as soon as
practicable after a change is made. This
final rule requires the Navy to
implement that reporting measure, as
well as two new measures that were not
included in the 2023 HSTT proposed
rule, described below.
The Navy’s annual HSTT Training
Exercise Report and Testing Activity
Report must include information that
tracks the Navy’s implementation of the
new SOCAL large whale aggregation
real-time reporting mitigation measure.
The report must include the following
information for each instance that an
aggregation of large whales is reported:
(1) the date, time and general location
(e.g., approximately 10–12 nmi (18.5 to
22.2 km) SE of San Clemente Island) of
the whales when the aggregation was
first sighted; (2) the total number of
whales observed within 1 nmi (1.8 km)
of a Navy vessel that make up the
aggregation; and (3) the approximate
distance (or distances if more than one
group of whales is sighted) of the vessel
from the whales in the aggregation when
the whales were first sighted. To the
extent practicable, this information
should be provided in the Navy’s
unclassified version of these reports.
The Navy’s annual HSTT Training
Exercise Report and Testing Activity
Report must include a confirmation that
foreign military use of sonar and
explosives, when such militaries are
participating in a U.S. Navy-led exercise
or event, combined with the U.S. Navy’s
use of sonar and explosives, would not
cause exceedance of the analyzed levels
(within each NAEMO modeled sonar
and explosive bin) used for estimating
predicted impacts, which formed the
basis of the acoustic impacts effects
analysis used to estimate take in this
final rule. The purpose of this new
reporting measure is for the Navy to
confirm annually that the Navy has
accounted for foreign military
participation in its annual report,
without requiring the Navy to
quantitatively account for foreign
military activity. The Navy informed
NMFS that it would be difficult for the
Navy to quantify foreign military
activities as a subset of its total activities
because the Navy does not track
activities conducted by foreign vessels
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in this manner. Furthermore, the annual
reported takes from Navy activities are
calculated the same regardless of
whether the activity was conducted by
a foreign military or not.
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). While this final rule
consists of a modification of take by M/
SI by vessel strike, NMFS considers the
impacts of the entire specified activity
and the total taking in the negligible
impact determination. 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 of the
2020 HSTT final rule), 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
(including foreign military 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,
ambient noise levels, and specific
consideration of take by Level A
harassment or M/SI previously
authorized for other NMFS activities).
In the Estimated Take of Marine
Mammals sections of this final rule and
the 2020 HSTT final rule (where the
activities, species and stocks, potential
effects, and mitigation measures (except
as modified above) are the same as for
this rulemaking), we identified the
subset of potential effects that would be
expected to rise to the level of takes
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4989
both annually and over the 7-year
period covered by this rulemaking 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 reasonably
expected to occur and are authorized, in
the context of the specific circumstances
surrounding these predicted takes. We
also assessed M/SI takes that could
occur, as well as considering the traits
and statuses of the affected species and
stocks. Last, we collectively evaluated
this information, as well as other more
taxa-specific information and mitigation
measure effectiveness, in group-specific
assessments that support our negligible
impact conclusions for each stock or
species. 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 2020
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 with the exception of
changes to mitigation measures and the
additional reporting requirements
described previously. There is no new
information since the publication of the
2020 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
the content of our analyses, with the
exception of that described below. First,
naval vessel strikes have occurred in the
HSTT and Atlantic Fleet Training and
Testing (AFTT) Study Areas since
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publication of the 2020 HSTT final rule
(one fin or sei whale struck by the U.S.
Navy in the HSTT Study Area (2023),
two unidentified large whales struck by
the U.S. Navy in the HSTT Study Area
(2021), two fin whales struck by a
foreign navy in the HSTT Study Area
(2021), and one dolphin struck by the
U.S. Navy in the AFTT Study Area
(2021)). Second, for gray whales, we
have considered the latest effects of the
recently closed UME on the west coast
of North America along with the effects
of the Navy’s activities in the negligible
impact analysis. Third, a new study
suggests that Lookout detection of
marine mammals is less certain than
previously assumed (Oedekoven and
Thomas, 2022). Fourth, stock
assessments have been updated for
multiple stocks in the 2023 Pacific and
Alaska SARs (Carretta et al. 2024;
Young et al. 2024).
As described above, since publication
of the 2023 HSTT proposed rule, NMFS
has updated our Technical Guidance
(NMFS, 2024) containing updated
acoustic criteria for auditory injury (89
FR 36762, October 24, 2024). The
Technical Guidance provides updated
auditory injury thresholds, where
appropriate, as well as revised
weighting functions, in some cases. For
impulsive sources, the Updated
Technical Guidance’s auditory injury
thresholds generally remain identical or
are higher compared to our 2018
Technical Guidance, meaning that
received levels would need to be higher
in order for marine mammals to be
expected to incur auditory injury. The
exceptions are for phocid pinnipeds
(PW), where the cumulative SEL
threshold, in the Updated Technical
Guidance, is 2 dB lower and for otariid
pinnipeds (OW) where the peak sound
pressure level threshold is 2 dB lower
and the cumulative SEL threshold is 18
dB lower. As for the Updated Technical
Guidance’s weighting functions, for MF
cetaceans (now called HF cetaceans in
the updated document) and HF
cetaceans (now called VHF cetaceans in
the updated document), the weighting
functions reflect a higher susceptibility
to auditory injury at frequencies below
10 kHz, as compared to the 2018
Technical Guidance. Other minor
changes/shifts to weighting functions
(e.g., for LF cetaceans, PW pinnipeds,
OW pinnipeds) were also included. This
new information was not available in a
timeframe in which NMFS could have
incorporated it into the quantitative
analysis supporting this final
rulemaking; however, NMFS did
consider the information qualitatively.
While these changes in the auditory
injury thresholds and weighting
functions could result in minor
increases in PTS exposure estimates for
some species, given the conservative
assumptions built into the take estimate
methodology, they would not be
expected to result in meaningful, if any,
changes in take estimates and would not
be expected to change any of the
findings.
Harassment
As described in the Estimated Take 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
and 42 in the Take Requests section of
the 2018 HSTT final rule, with the
exception of humpback whale, which
are presented in tables 2 and 3 herein.
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 2020 HSTT final rule.
The differences in the analysis is our
removal of consideration of California
Sea Lion UME and gray whale UME,
which have been closed since
publication of the 2020 HSTT final rule
and 2023 HSTT proposed rule,
respectively, and incorporation of the
revised stock structure for humpback
whales. This does not 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; also
incorporated by reference in the 2020
HSTT final rule).
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 for explosives and
revised for vessel strike), NMFS is
authorizing five mortalities of large
whales due to vessel strike over the 7year period of this rulemaking, two
more strikes than what was authorized
in the 2018 HSTT final rule and 2020
HSTT final rule. Across the 7-year
duration of the rule, take of an annual
average of 0.57 gray whales (Eastern
North Pacific stock) and fin whales (CA/
OR/WA stock), an annual average of
0.29 humpback whales (Hawaii stock)
and an annual average of 0.14 blue
whales (Eastern North Pacific stock), sei
whales (Eastern North Pacific stock) and
humpback whales (Mainland MexicoCA/OR/WA stock, Mexico DPS), as
described in table 7 (i.e., one, two, or
four take(s) over 7 years divided by
seven to get the annual number) could
occur and are authorized.
TABLE 10—SUMMARY INFORMATION RELATED TO MORTALITIES REQUESTED FOR VESSEL STRIKE, 2018–2025
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Species
(stock)
Fin whale (CA/OR/WA
stock).
Gray whale (Eastern North
Pacific stock).
Humpback whale (Mainland Mexico-CA/OR/WA
stock, Mexico DPS).
Humpback whale (Hawaii
stock).
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Fisheries
interactions
(Y/N); annual
rate
of M/SI
from fisheries
interactions *
Annual rate of
M/SI from
vessel
collision *
≥43.4
Y; ≥0.41 ............
Y, 43 ...............
80
36.6
0.57
131
Y, 9.3 ................
Y, 1.8 ..............
801
3,477
0.14
22
Y; 11.4 ..............
6 Y,
10.15 .......
11,278
0.29
27.09
Y; 8.39 ..............
8 Y,
10.59 .......
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Stock
abundance
(Nbest) *
Annual
authorized
take by
serious
injury or
mortality 1
Total
annual M/
SI * 2
11,065
0.57
26,960
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Residual
PBR (PBR
minus
annual
M/SI) 3
PBR *
Stock trend * 4
Recent UME
(Y/N); number
and year
(since 2007)
↑ .....................
N
670
5↑
Y; 690; 2019
65
7 43
Unknown ........
N
127
99.91
Unknown ........
Y; 52; 2015
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TABLE 10—SUMMARY INFORMATION RELATED TO MORTALITIES REQUESTED FOR VESSEL STRIKE, 2018–2025—
Continued
Species
(stock)
Blue whale (Eastern North
Pacific Stock).
Sei whale (Eastern North
Pacific Stock).
Fisheries
interactions
(Y/N); annual
rate
of M/SI
from fisheries
interactions *
Annual rate of
M/SI from
vessel
collision *
≥18.6
Y; ≥0.61 ............
Y, 18 ...............
4.1
¥14.5
Unknown ........
Y; 3, 2007
≥0
N; 0 ..................
Y, 0 .................
1.25
1.25
Unknown ........
N
Stock
abundance
(Nbest) *
Annual
authorized
take by
serious
injury or
mortality 1
Total
annual M/
SI * 2
1,898
0.14
864
0.14
PBR *
Residual
PBR (PBR
minus
annual
M/SI) 3
Stock trend * 4
Recent UME
(Y/N); number
and year
(since 2007)
* Presented in the 2023 final 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 authorized divided
by 7 years (the length of the rule and LOAs).
2 This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but
deducts the takes accrued from either Navy strikes or 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 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).
4 See relevant SARs for more information regarding stock status and trends.
5 The Pacific 2023 SAR indicates that the stock trend is increasing. However, recent (2023–2024) surveys conducted by NMFS’ Southwest Fisheries Science Center indicated that the estimated total abundance of gray whales during the 2023–2024 southbound migration was 19,260, though the authors note that this stock has
historically shown a pattern of population growth and decline that has not impacted the population in the long term (Eguchi et al. 2024).
6 Vessel strike of the Mainland Mexico-CA/OR/WA stock was calculated by applying a prorated portion of humpback whale strikes modeled by Rockwood et al.
(2017) to this stock.
7 For this stock, PBR is currently set at 43 for U.S. waters and 65 for the stock’s entire range. As the HSTT Study Area extends beyond U.S. waters and activities
have the potential to impact the entire stock, we present the analysis using the PBR for the stock’s entire range.
8 Annual vessel strike for this stock reported in the 2023 final SAR was calculated by summing vessel strike data from Hawaii, Alaska, and Washington. All observed strikes in Hawaii were assigned to the Hawaii stock, and a portion of observed strikes in Alaska were assigned to the Hawaii stock. Vessel strike of the Hawaii
stock in Washington waters was calculated by applying a prorated portion of humpback whale strikes modeled by Rockwood et al. (2017) to the Hawaii stock.
The Navy also requested a small
number of takes by M/SI from
explosives in the 2017 Navy
application. To calculate the annual
average of mortalities for explosives in
table 11, we used the same method as
described for vessel strikes. The annual
average is the total number of takes over
7 years divided by seven. Specifically,
NMFS is authorizing the following M/SI
takes from explosives: five California
sea lions and eight short-beaked
common dolphins over the 7-year
period (therefore 0.71 mortalities
annually for California sea lions and
1.14 mortalities annually for shortbeaked common dolphin), as described
in table 11. As this annual number is the
same as that analyzed and authorized in
the 2020 HSTT final rule, 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 is
identical to that presented in the 2020
HSTT final rule.
TABLE 11—SUMMARY INFORMATION RELATED TO MORTALITIES FROM EXPLOSIVES, 2018–2025
Species
(stock)
California sea lion (U.S. stock) ..............
Short-beaked common dolphin (CA/OR/
WA stock).
Stock
abundance
(nbest) *
Annual
authorized
take by
serious
injury or
mortality 1
257,606
1,056,308
0.71
1.14
Fisheries
interactions
(Y/N); annual
rate
of M/SI
from
fisheries
interactions *
Total
annual
M/SI * 2
≥321
≥30.5
Y; ≥197 .............
Y; ≥30.5 ............
PBR *
SWFSC
authorized
take
(annual) 3
14,011
8,889
6
2.8
Residual
PBRPBR
minus
annual
M/SI and
SWFSC 4
13,684
8,855.7
Stock
trend * 5
↑
unknown
UME
(Y/N);
number
and year
N
N
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* Presented in the 2023 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 7 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.
3 This column represents annual take authorized through NMFS’ SWFSC rulemaking/LOAs (86 FR 3840, January 15, 2021).
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 (321) and the annual authorized take from the SWFSC
(6) were subtracted from the calculated PBR of 14,011. In the case of short-beaked common dolphin the M/SI column (30.5) and the annual authorized take from the
SWFSC (2.8) were subtracted from the calculated PBR of 8,889.
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 is
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authorized, including the relationship of
potential mortality for each species to
the insignificance threshold and
residual PBR, except as updated below.
Stocks With M/SI Below the
Insignificance Threshold
As noted in the Serious Injury or
Mortality subsection of the Analysis and
Negligible Impact Determination section
in the 2018 HSTT final rule and 2020
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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
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shown in table 10 and table 11, the
following species or stocks have
potential or estimated M/SI from vessel
strike and explosive takes, respectively,
and authorized below their
insignificance threshold: fin whale (CA/
OR/WA stock), gray whale (Eastern
North Pacific stock), humpback whale
(Hawaii stock and Mainland MexicoCA/OR/WA stock), California sea lion
(U.S stock), and short-beaked common
dolphin (CA/OR/WA stock). While the
authorized M/SI of gray whales (Eastern
North Pacific stock) is below the
insignificance threshold, because of the
recent UME, we further address how the
authorized M/SI and the UME inform
the negligible impact determination
immediately below. For the other five
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
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.
Gray Whales (Eastern North Pacific
Stock)
The estimated and authorized lethal
take of gray whale (Eastern North Pacific
stock) is well below the insignificance
threshold (0.57 as compared to a
residual PBR of 670). Nonetheless, we
consider here how the 2019–2023 West
Coast Gray Whale UME informs our
negligible impact determination.
Strandings of eastern North Pacific gray
whales occurred in the United States,
Canada and Mexico along the west coast
of North America. They occurred in
wintering, migratory, and feeding areas.
Stranding rates have returned back to
normal and expected levels, and the
prevalence of thin live or thin dead
whales has also decreased. The
Investigative Team concluded localized
ecosystem changes, including both
access to and quality of prey, in the
northern Bering and Chukchi seas
caused the UME. These changes
contributed to the poor nutritional
condition observed in live whales in the
wintering areas of Mexico and dead
stranded gray whales in all three
countries. This malnutrition led to
increased mortality during the whales’
annual northward migration (from
Mexico to Alaska) and decreased
production of calves. This resulted in an
overall decline in population
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abundance. Because of the abundance
and residual PBR of this stock, as well
as the fact that the UME is closed and
increased mortality stopped in late 2023
(with peak strandings ending in
December 2020), 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.
Stocks with M/SI Above the
Insignificance Threshold
Blue Whale (Eastern North Pacific
Stock)
For blue whales (Eastern North Pacific
stock), PBR is currently set at 4.1 and
the total annual M/SI is estimated at
greater than or equal to 18.6, yielding a
residual PBR of ¥14.5. This is slightly
higher than the 2020 HSTT final rule
(¥16.7) and 2023 HSTT proposed rule
(¥15.4). NMFS authorizes one M/SI for
the Navy over the 7-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 14.5. However, as
described in the 2018 and 2020 rules,
given that the negligible impact
determination is based on the
assessment of take of the activity being
analyzed, when total annual mortality
from human activities is higher, but the
impacts from the specific activity being
analyzed are very small, NMFS may still
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 here, 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 4.1), 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 available data suggests
that the current number of vessel 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
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Sfmt 4700
whale in the 7 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 conclusion
sections.
As discussed in the 2018 HSTT final
rule and the 2020 HSTT final rule, the
2018 draft SAR and the more recent
SARs rely on a new method to estimate
annual deaths by vessel 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 1.54 from
fisheries interactions, results in the
current estimate of residual PBR being
¥15.4. Although NMFS’ Permits and
Conservation Division in the Office of
Protected Resources has independently
reviewed the vessel strike model and its
results and agrees that it is appropriate
for estimating blue whale mortality by
vessel 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 0.6, 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 vessel strike
suddenly increased to 18 recently. In
fact, the model is not specific to a year,
but rather offers a generalized
prediction of vessel 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 vessel 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.
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NMFS’ 2023 SAR states that the
current population trend is unknown,
though there may be evidence of a
population size increase since the
1990s. 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 vessel 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, vessel 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 vessel
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
Vessel Speed Reduction (VSR) zones
and the Channel Islands NMS region.
Redfern et al. (2013) note that the most
risky area for blue whales is the Santa
Barbara Channel, where shipping lanes
intersect with common feeding areas.
The seasonally established Southern
California VSR zone spans from Point
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Arguello to Dana Point, including the
Traffic Separation Schemes in the Santa
Barbara Channel and San Pedro
Channel. Vessels transiting the area
from May 1 through December 15, 2023
are recommended to exercise caution
and voluntarily reduce speed to 10 kn
(18.5 km per hour) or less for blue,
humpback, and fin whales. (Note this is
an expanded timeframe from the Whale
Advisory Zone discussed in the 2020
HSTT final rule, which spanned June
through November, though the effective
period could change in future years.)
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
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 means one
mortality in 1 of the 7 years and zero
mortalities in 6 of those 7 years.
Therefore, the Navy would not be
contributing to the total human-caused
mortality at all in 6 of the 7, or 85.7
percent, of the years covered by this
rulemaking. That means that even if a
blue whale were to be struck, in 6 of the
7 years there could be no effect on
annual rates of recruitment or survival
from Navy-caused M/SI. Additionally,
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
rulemaking 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 6 of the 7 years and the fact that the
single strike could be 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 7-year period covered by this
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4993
rulemaking, 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 1 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 the current
population trend of this blue whale
stock is unknown but likely
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 vessel strike from other vessel
activity in one of the highest-risk areas
for strikes. Based on the presence of the
factors 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 humancaused 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.
Sei Whale (Eastern North Pacific Stock)
For sei whales (Eastern North Pacific
stock), PBR is currently set at 1.25. The
total annual M/SI is estimated at greater
than or equal to 0 in the 2023 SAR,
yielding a residual PBR of 1.25. NMFS
authorizes one M/SI for the Navy over
the 7-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 1.11.
We acknowledge that the 2023 vessel
strike by the U.S. Navy could have been
of a sei whale or a CA/OR/WA fin
whale, and this strike is not
quantitatively included in this PBR
analysis (nor is it quantitatively
included in the PBR analysis for CA/
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OR/WA fin whale if both of the 2021
U.S. Navy strikes were fin whales)
which relies on the 2023 SARs.
However, consideration of the 2023
strike would not change the total M/SI
which NMFS compares to PBR, as the
2023 U.S. Navy strike occurred outside
of the time period considered in the
vessel strike analysis in the 2023 SAR.
Therefore, while we acknowledge the
2023 U.S. Navy strike, in the
quantitative analysis it is treated the
same as other non-U.S. Navy strikes that
occurred outside of the timeframe
reflected in the total M/SI.
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 conclusion
sections.
Of note, management measures are 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 VSR
zones and the Channel Islands NMS
region. The seasonally established
Southern California VSR 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 May 1 through
December 15, 2023 are recommended to
exercise caution and voluntarily reduce
speed to 10 kn (18.5 km per hour) or
less. While the VSR zone is aimed at
reducing risk of fatal vessel strike of
blue, humpback, and fin whales, this
measure is also anticipated to reduce
risk to sei whales (note, this is an
expanded timeframe from the Whale
Advisory Zone discussed in the 2020
HSTT final rule, which spanned June
through November, though the effective
period could change in future years).
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
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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.
Further, as stated in the 2023 SAR,
the California swordfish drift gillnet
fishery is the most likely U.S. fishery to
interact with Eastern North Pacific sei
whales, though there are zero estimated
annual takes from this fishery given no
observed entanglements from 1990–
2021 across 9,246 observed fishing sets
(Carretta et al. (2022)). 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.
In this case, 0.14 M/SI means one
authorized mortality in 1 of the 7 years
and zero authorized mortalities in 6 of
those 7 years. Therefore, the Navy’s
authorized take would not be
contributing to the total human-caused
mortality at all in 6 of the 7, or 85.7
percent, of the years covered by this
rulemaking. That means that even if a
sei whale were to be struck, in 6 of the
7 years there could be no effect on
annual rates of recruitment or survival
from Navy-caused M/SI. Additionally,
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
rulemaking 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 6 of the 7 years and the fact that the
single strike could be 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 7-year period covered by this
rulemaking, 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
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mortality in 1 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.’’ Even after qualitatively
considering the possibility that the
whale struck by Navy in 2023 was a sei
whale, and based on the presence of the
factors described above, we do not
expect one authorized lethal take from
Navy activities, alone, to adversely
affect Eastern North Pacific sei whales
through effects on annual rates of
recruitment or survival. 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
and was updated, as appropriate, in the
2020 HSTT final rule. 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, with the
exception of humpback whale, for
which the stock structure has been
revised, and NMFS has updated its
analyses accordingly for this final 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). In addition, apart from
the additional authorized incidental
take by vessel strike of two large whales,
the resulting changes to the average
annual mortality estimates discussed
above, and the revised humpback whale
stock structure, no new information has
been received since the publication of
the 2020 HSTT final rule that
significantly changes the analyses of the
effects of the Navy’s activities on each
species and stock presented in the 2020
HSTT final rule (new information
regarding vessel strike, the potential
impact of the gray whale UME (now
closed), and the revised humpback
whale stock structure 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
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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 disturbance) 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 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 1 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 3 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. An individual that incurs
a PTS or TTS take may sometimes, for
example, 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 also subjected to
behavioral disturbance would result in
impacts to reproduction or survival.
Alternately, we recognize that if an
individual is subjected to behavioral
disturbance repeatedly for a longer
duration and on consecutive 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
disturbance, so that individuals
potentially exposed to both threshold
shift and behavioral disturbance are
appropriately considered. We note that
the same reasoning applies with the
potential addition of behavioral
disturbance 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.
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 vessel strike
calculations and humpback stock
structure. We then summarize the
information for each species or stock,
considering the analysis from the 2018
HSTT final rule, 2020 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 12 and 13 below for
mysticetes, we indicate the total annual
mortality, Level A harassment, and
Level B harassment, and a number
indicating the instances of total take as
a percentage of abundance. Tables 12
and 13 have been updated from tables
18 and 19 in the 2020 HSTT final rule,
as appropriate, with the 2023 final 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 rule unless
specifically noted.
TABLE 12—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
Total takes a
Instances of indicated types of incidental take (not all
takes represent separate individuals, especially for
disturbance)
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Level B harassment
Species
Blue whale
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Mortality b
Behavioral
disturbance
TTS (may
also include
disturbance)
PTS
15
33
0
0
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Central
North
Pacific.
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Total
takes
(entire
study
area)
Level A
harassment
Stock
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Tissue
damage
0
Sfmt 4700
48
Abundance
Takes
(within
Navy
EEZ)
Instance of total take
as
percent of abundance
Total Navy
abundance
inside and
outside of
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)
43
33
112
121
40
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TABLE 12—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—Continued
Total takes a
Instances of indicated types of incidental take (not all
takes represent separate individuals, especially for
disturbance)
Level B harassment
Species
Bryde’s
whale.
Fin whale
Humpback
whale.
Minke
whale.
Sei whale
Total
takes
(entire
study
area)
Level A
harassment
Stock
Mortality b
Abundance
Takes
(within
Navy
EEZ)
Instance of total take
as
percent of abundance
Total Navy
abundance
inside and
outside of
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)
Behavioral
disturbance
TTS (may
also include
disturbance)
PTS
Hawaii .....
40
106
0
0
0
146
123
108
89
135
138
Hawaii .....
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
Hawaii .....
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
Tissue
damage
Note: For the Hawaii 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.
a Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
b The annual mortality of 0.29 is the result of no more than two mortalities over the course of 7 years from vessel strikes as described above in the Estimated Take
of Marine Mammals section.
TABLE 13—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)
Level B harassment
Species
Bryde’s whale ....
Fin whale ...........
Humpback whale
Minke whale ......
Sei whale ...........
Gray whale ........
Gray whale ........
ddrumheller on DSK120RN23PROD with RULES3
Level A
harassment
Total
takes
(entire
study
area)
Stock
Blue whale .........
Eastern North
Pacific.
Eastern Tropical
Pacific.
CA/OR/WA ........
Central America/
Southern Mexico-CA/OR/WA.
Mainland
Mexico- CA/
OR/WA.
CA/OR/WA ........
Eastern North
Pacific.
Eastern North
Pacific.
Western North
Pacific.
Total
takes a
Mortality b
Abundance
Instance of total take
as
percent of abundance
Navy
abundance
in
action area
(SOCAL)
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)
PTS
Tissue
damage
792
1,196
1
0
0.14
1,989
785
1,898
253
105
14
27
0
0
0
41
1.3
unknown
3,154
unknown
835
282
1,390
594
1
0
0
0
0.57
0
2,227
876
363
c 74
11,065
1,496
613
1,184
20
59
198
920
1
0
0.14
1,119
c 173
3,477
647
32
259
27
666
52
1
0
0
0
0
0.14
926
79
163
3
915
864
568
2,633
101
9
1,316
3,355
7
0
0.57
4,679
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).
a Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
b The annual mortality of 0.14 is the result of no more than one mortality over the course of 7 years from vessel strikes as described above in the Estimated Take
of Marine Mammals section. The annual mortality of 0.57 is the result of no more than four mortalities over the course of 7 years from vessel strikes.
c In the 2020 HSTT final rule, NMFS reported a Navy abundance in Action Area (SOCAL) of 247 CA/OR/WA humpback whales. As explained in more detail in the
Authorized Take From Vessel Strikes and Explosives by Serious Injury or Mortality section, NMFS estimates that approximately 30 percent of the humpback whales
off the coast of California may be from the Central America DPS with the remaining 70 percent are expected to be from the Mexico DPS. Therefore, of the estimated
247 humpback whales in SOCAL, NMFS anticipates that 74 would be of the Central America/Southern Mexico-CA/OR/WA stock (Central America DPS), and 173
would be of the Mainland Mexico-CA/OR/WA stock (Mexico DPS).
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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 species and stocks.
Blue Whale (Eastern North Pacific
Stock)
Blue whales are listed as endangered
under the ESA, and the current
population trend for the Eastern North
Pacific stock is unknown. We further
note that this stock was originally listed
under the ESA as a result of the impacts
from commercial whaling, which is no
longer affecting the species. NMFS
authorizes one mortality over the 7
years covered by this rulemaking 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 14.5. 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 7-year Navy rule is not
expected to, alone, lead to adverse
impacts on the stock through effects on
annual rates of recruitment or survival.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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 105 percent,
respectively (table 13). Given the range
of blue whales, this information
suggests that only some 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 SOCAL. Regarding the severity
of those individual Level B harassment
takes by behavioral disturbance, 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
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SOCAL in the majority of the BIAs
identified by Calambokidis et al. (2015).
These areas overlap a portion of the blue
whale feeding BIAs (parent and child;
see Harrison et al. 2023) identified in
Calambokidis et al. (2024) and 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 that 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
disturbance.
Altogether, only a small 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 5 or 6 days but
minimized in BIAs. This low magnitude
and severity of harassment effects is not
expected to result in impacts on the
reproduction or survival of any
individuals and, therefore, when
combined with the authorized mortality
(which our earlier analysis indicated
will not, alone, have more than a
negligible impact on this stock of blue
whales), the total take is not 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.
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 13). 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 was estimated at 160
in 1990. Given this information and 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
impacted, and few, if any, are likely
taken over more than 1 day. Regarding
the severity of those individual Level B
harassment takes by behavioral
disturbance, 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 lowfrequency cues. Any associated lost
opportunities and capabilities are not at
a level that will impact reproduction or
survival.
Altogether, only a small portion of the
stock is anticipated to be impacted 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 1 day in the year. 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.
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
disturbance), the number of estimated
total instances of take compared to the
abundance is 3,154 percent; however,
Fin Whale (CA/OR/WA Stock)
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The SAR identifies this stock as
‘‘increasing,’’ even though the larger
species is listed as endangered under
the ESA. NMFS authorizes four
mortalities over the 7 years covered by
this rulemaking, or 0.57 mortality
annually. The addition of this 0.57
annual mortality still leaves the total
human-caused mortality well under
residual PBR.
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We acknowledge the 2021 vessel
strike of two fin whales by the Royal
Australian Navy, and that the 2021 and
2023 vessel strikes by the U.S. Navy
could have been CA/OR/WA fin whales.
While the Royal Australian Navy strikes
are not quantitatively included in the
estimated take by vessel strike, even if
they were, and if we presumed that the
2021 and 2023 U.S. Navy strikes were
all fin whales, M/SI of this stock would
still fall well below PBR (80).
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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 20 percent, respectively
(table 13). 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. Regarding the
severity of those individual Level B
harassment takes by behavioral
disturbance, 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, Calambokidis et al. (2024)
identifies feeding BIAs for fin whales in
SOCAL. The Navy implements time/
area mitigation in SOCAL in blue whale
BIAs identified by Calambokidis et al.
(2015), and fin whales are known to
sometimes feed in some of the same
areas. Additionally, these mitigation
areas designed for blue whales overlap
a portion of the fin whale feeding BIAs
(parent and child; see Harrison et al.
2023) identified by Calambokidis et al.
(2024) which means fin whales could
potentially accrue some benefits from
the mitigation. Regarding the severity of
TTS takes, they are expected to be lowlevel, of short duration, and mostly not
in a frequency band that would be
expected to interfere with fin whale
communication or other important lowfrequency cues—and that 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
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harassment take by PTS for this stock is
unlikely to have any effects on the
reproduction or survival of that one
individual.
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 1 and 12 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
individual reproduction or survival, and
therefore, when combined with the
authorized mortality (which our earlier
analysis indicated will not, alone, have
more than a negligible impact on this
stock of fin whales), the total take is not
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 (Central America/
Southern Mexico-CA/OR/WA Stock)
The SAR identifies this stock as
increasing, though the growth rate is
uncertain. Animals in this stock are of
the Central America DPS which is
designated as endangered under the
ESA.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 1,184 and 59 percent,
respectively (table 13). 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 23 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
disturbance, 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
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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 that the associated
lost opportunities and capabilities are
not at a level that will impact
reproduction or survival. Altogether,
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 23 days, but with no
reason to think that more than a few 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 and,
therefore, the total take is not 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
America/Southern Mexico-CA/OR/WA
stock of humpback whales.
Humpback Whale (Mainland MexicoCA/OR/WA Stock)
The status of this stock is unknown.
Animals in this stock are of the Mexico
DPS which is designated as threatened
under the ESA. NMFS authorizes one
mortality over the 7 years covered by
this rulemaking, or 0.14 mortality
annually. The addition of this 0.14
annual mortality still leaves the total
human-caused mortality well under
residual PBR.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 647 and 32 percent, respectively
(table 13). 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 13 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 disturbance, the duration of
any exposure is expected to be between
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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 that 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.
Altogether, 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 13 days, but
with no reason to think that more than
a few 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 and,
therefore, when combined with the
authorized mortality (which our earlier
analysis indicated will not, alone, have
more than a negligible impact on this
stock of humpback whales), the total
take is not 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 tissue
damage from explosive exposure is
anticipated or authorized for this
species. Regarding the magnitude of
Level B harassment takes (TTS and
behavioral disturbance), the number of
estimated total instances of take
compared to the abundance (measured
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against both the Navy-estimated
abundance and the SAR) is 568 and 101
percent, respectively (table 13). 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. Regarding the
severity of those individual Level B
harassment takes by behavioral
disturbance, 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 that 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.
Altogether, 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 1 and 11 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
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 CA/OR/
WA stock of minke whales.
Sei Whale (Eastern North Pacific Stock)
The status of this stock is unknown,
and sei whales are listed under the ESA.
NMFS authorizes one mortality over the
7 years covered by this rulemaking or
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4999
0.14 mortality annually. The addition of
this 0.14 annual mortality still leaves
the total human-caused mortality under
residual PBR. After additionally
considering several qualitative factors
described above, including that the 2023
strike could have been a sei whale (or
fin whale), we do not expect one
authorized lethal take from Navy
activities, alone, to adversely affect
Eastern North Pacific sei whales through
effects on annual rates of recruitment or
survival. No Level A harassment is
anticipated or authorized.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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 9 percent,
respectively (table 13), 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 disturbance, 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 that
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the associated lost opportunities and
capabilities are not at a level that will
impact reproduction or survival.
Altogether, 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. This low
magnitude and severity of harassment
effects is not expected to result in
impacts on individual reproduction or
survival, and therefore, when combined
with the authorized mortality (which
our earlier analysis indicated will not,
alone, have more than a negligible
impact on this stock of sei whales), the
total take is not 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 sei whales.
Gray Whale (Eastern North Pacific
Stock)
The Eastern North Pacific stock of
gray whale is not ESA-listed and the
SAR indicates that the stock is
increasing. However, recent (2021–
2022) surveys conducted by NMFS’
Southwest Fisheries Science Center
estimated that the population has
declined to 16,650 whales, though the
authors note that this stock has
historically shown a pattern of
population growth and decline that has
not impacted the population in the long
term (Eguchi et al. 2022). NMFS is
authorizing four mortalities over the 7
years covered by this rulemaking, or
0.57 mortality annually. The addition of
this 0.57 annual mortality still leaves
the total human-caused mortality well
under the insignificance threshold of
residual PBR (670). We acknowledge
that the 2021 vessel strikes by the U.S.
Navy could have been Eastern North
Pacific gray whales. If we presumed that
the 2021 U.S. Navy strikes were both
gray whales, M/SI of this stock would
still fall well below PBR (801).
We also consider here how the 2019–
2023 West Coast Gray Whale UME
informs our negligible impact
determination. Because of the
abundance and residual PBR of this
stock, as well as the fact that the UME
is closed and increased mortality
stopped in late 2023 (with peak
strandings ending in December 2020),
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
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rate when it was occurring that would
influence our evaluation of the effects of
the mortality authorized on the stock.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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 (table 13). (Note that in
comparison to the recent Eguchi et al.
2024 abundance estimate, the number of
estimated total instances of take
compared to the abundance would be 24
percent.) 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 4,679 total takes, we
believe that it is more likely that a larger
number of individuals will be taken one
to a few times, 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 disturbance, 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
couple of 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 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 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 seven estimated Level A
harassment takes by PTS for gray whales
are unlikely to impact behaviors,
opportunities, or detection capabilities
to a degree that would interfere with
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reproductive success or survival of any
individuals.
Altogether, we have considered the
impacts of the recent (now closed) gray
whale UME, the Eastern North Pacific
stock of gray whales is not endangered
or threatened under the ESA. The SAR
indicates that the stock is increasing.
However, recent (2023–2024) surveys
conducted by NMFS’ Southwest
Fisheries Science Center estimated that
the population has declined since the
most recent Eastern North Pacific gray
whale SAR was published (Eguchi et al.
2024). 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 5 to 10 days. This low
magnitude and severity of harassment
effects is not expected to result in
impacts to reproduction or survival for
any individuals and, therefore, when
combined with the authorized mortality
of four whales over the 7 year period
(which our earlier analysis indicated
will not, alone, have more than a
negligible impact on this stock of gray
whales), the total take is not 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 2023 final SAR but is listed as
endangered under the ESA. No
mortality or Level A harassment is
anticipated or authorized. 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 (table 13). These takes will likely
accrue to different individuals, the
behavioral disturbances will be of a lowmoderate level, and the TTS instances
will be at a low level and short duration.
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.
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Humpback Whale (Hawaii Stock)
The status of this stock is unknown.
Animals in this stock are of the Hawaii
DPS which is not listed under the ESA.
No Level A harassment by tissue
damage is authorized. NMFS authorizes
two mortalities over the 7 years covered
by this rulemaking, 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.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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
(table 12). 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 1 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
disturbance, 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 areas
(BIA, parent and child; see Harrison et
al. 2023) identified in Kratofil et al.
(2023) 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 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
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 3 estimated Level A
harassment takes by PTS for humpback
whales are unlikely to impact behaviors,
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opportunities, or detection capabilities
to a degree that would interfere with
reproductive success or survival of any
individuals.
Altogether, this stock’s status is
unknown 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 1 to several days per
year, with little likelihood of take across
sequential days. This low magnitude
and severity of harassment effects is not
expected to result in impacts on
individual reproduction or survival, and
therefore, when combined with the
authorized mortality (which our earlier
analysis indicated will not, alone, have
more than a negligible impact on this
stock of humpback whales), the total
take is not expected to adversely affect
this stock through 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 Hawaii 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 are not
identified in the SARs. Blue whale
(Central North Pacific stock) and the
Hawaii stocks of fin whale and sei
whale are listed as endangered under
the ESA; the Hawaii stocks of minke
whales and Bryde’s whales 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
disturbance), 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 (table 12). This information
suggests that some portion of the stocks
(but not all) are likely impacted, over 1
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 disturbance, 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
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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 lowfrequency cues—and that 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 any individuals.
Altogether, 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 1 and several days,
with little chance that any are taken
across sequential days. This low
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 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 Whale, Dwarf Sperm Whale, and
Pygmy Sperm Whale
In table 14 and table 15 below for
sperm whale, dwarf sperm whale, and
pygmy sperm whale, we indicate the
total annual mortality (0 for all stocks;
the 2020 HSTT final rule included 0.14
annual takes by mortality of the Hawaii
stock of sperm whale), Level A and
Level B harassment, and a number
indicating the instances of total take as
a percentage of abundance. Table 14 and
table 15 are unchanged from tables 20
and 21 in the 2020 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 rule unless
specifically noted.
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TABLE 14—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)
Level B harassment
Species
Dwarf
sperm
whale.
Pygmy
sperm
whale.
Sperm
whale.
Total takes
Level A
harassment
Stock
Total
takes
(entire
study
area)
Takes
(within
NAVY
EEZ)
Abundance
Instances of total
take as percent
of abundance
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)
PTS
Hawaii ....
5,870
14,550
64
0
0
20,484
15,310
8,218
6,379
249
240
Hawaii ....
2,329
5,822
29
0
0
8,180
6,098
3,349
2,600
244
235
Hawaii ....
2,466
30
0
0
0
2,496
1,317
1,656
1,317
151
147
Mortality
Tissue
damage
Note: For the Hawaii 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 15—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)
Level B
harassment
Species
Kogia whales ...
Sperm whale ...
Level A
harassment
Stock
CA/OR/WA ......
CA/OR/WA ......
Total
takes
Behavioral
disturbance
TTS
(may also
include
disturbance)
PTS
2,779
2,437
6,353
56
38
0
Total
takes
(entire
study
area)
Mortality
Tissue
damage
0
0
0
0
Abundance
Instances of total
take as percent
of abundance
Navy
abundance
in action
area
NMFS
SARS
abundance
757
273
4,111
2,606
9,170
2,493
Total
take as
percentage
of total
Navy
abundance
in action
area
Total
take as
percentage
of total
SAR
abundance
1,211
913
223
96
ddrumheller on DSK120RN23PROD with RULES3
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 species and 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
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sperm whales and dwarf sperm whales
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 spp. off the U.S. West Coast
were not identified to species. All at-sea
sightings of Kogia spp. have been
identified as pygmy sperm whales or
Kogia spp. 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 spp. 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.
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EEZ. Due to the lack of abundance
estimate, it is not possible to predict the
take of dwarf sperm whales and take
estimates are identified as Kogia spp.
(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 density and
abundance in the U.S. EEZ is thought to
be low.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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 96 for
sperm whales and 1,211 and 223 for
Kogia spp., with a large proportion of
these anticipated to be pygmy sperm
whales due to the low abundance and
density of dwarf sperm whales in the
HSTT Study Area (table 15). Given the
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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 spp. and 18
days a year for sperm whales) of some
small subset of individuals that spend
extended time within the SOCAL Range.
Additionally, while interrupted feeding
bouts are a known response and concern
for odontocetes, we also know that there
are often viable alternative habitat
options in the relative vicinity.
Regarding the severity of those
individual Level B harassment takes by
behavioral disturbance, 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).
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 sperm whale
communication or other important lowfrequency 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 are unlikely to impact
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
survival of any individuals. Thus, the 38
total Level A harassment takes by PTS
for these 2 stocks are unlikely to affect
rates of recruitment and survival for the
stocks.
Altogether, 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. 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
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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 2020
HSTT final rule, however, foregone
reproduction (especially for 1 year,
which is the maximum predicted
because the small number anticipated in
any 1 year makes the probability that
any individual would be impacted in
this way twice in 7 years very low) has
far less of an impact on population rates
than mortality, and a small number of
instances of foregone reproduction are
not expected to adversely affect these
stocks through effects on annual rates of
recruitment or survival. We also note
that residual PBR is 19 for pygmy sperm
whales and 3.5 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 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
mortality or Level A harassment by PTS
or tissue damage is expected or
authorized.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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
(table 14). This information and the
sperm whale stock range suggest that
likely only a smaller portion of the stock
will be impacted, over 1 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
disturbance, the duration of any
exposure is expected to be between
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5003
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 that the associated
lost opportunities and capabilities are
not at a level that will impact
reproduction or survival.
Altogether, 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 1 and several days,
with little chance that any are taken
across sequential days. 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 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 Level A
harassment by tissue damage is
anticipated or authorized. Regarding the
magnitude of Level B harassment takes
(TTS and behavioral disturbance), 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 (table 14).
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 5 days per year, with little
likelihood of take across sequential
days. Regarding the severity of those
individual Level B harassment takes by
behavioral disturbance, 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
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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 and resident
population BIA for dwarf sperm whales
(Kratofil et al.2023), 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 sperm whale
communication or other important lowfrequency 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 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 dwarf and pygmy
sperm whales 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
instances of Level B harassment by
behavioral disturbance. Thus the 29 and
64 total Level A harassment takes by
PTS for dwarf and pygmy sperm whales,
respectively, are unlikely to affect rates
of recruitment and survival for these
stocks.
Altogether, 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 1
and 5 days, with little chance that any
are taken across sequential days. This
low magnitude and severity of Level A
and Level B harassment effects is not
expected to result in impacts on
individual reproduction or survival,
much less 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
expected and authorized take will have
a negligible impact on the Hawaii stocks
of pygmy and dwarf sperm whales.
Beaked Whales
In table 16 and table 17 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. Table 16 and
table 17 are unchanged from table 22
and table 23 in the 2020 HSTT final
rule, with the exception of a correction
to a rounding error as noted. 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 rule unless specifically noted.
TABLE 16—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)
Level B harassment
Species
Blainville’s
beaked
whale.
Goosebeaked
whale.
Longman’s
beaked
whale.
Total takes
Level A harassment
Stock
Mortality
Total
takes
(entire
study
area)
Takes
(within
Navy
EEZ)
Abundance
Instances of total take
as percent of abundance
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
a 544
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
Tissue
damage
PTS
Note: For the Hawaii 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.
a The 2020 final rule unintentionally presented this percentage as 545. The correct value is provided here. This error does not affect the conclusions in the 2020
HSTT final rule.
TABLE 17—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)
ddrumheller on DSK120RN23PROD with RULES3
Level B harassment
Species
Total
takes
Level A
harassment
Total
takes
(entire
study
area)
Stock
Behavioral
disturbance
TTS (may
also include
disturbance)
Mortality
PTS
Tissue
damage
Abundance
Instances of total take
as percent of abundance
Navy
abundance
in action
area
NMFS
SARs
abundance
Total take
as percentage of total
Navy
abundance
in action
area
Total take
as percentage of total
SAR
abundance
Baird’s beaked
whale.
Goose-beaked
whale.
CA/OR/WA ......
2,030
14
0
0
0
2,044
74
1,363
2,762
150
CA/OR/WA ......
11,373
127
1
0
0
11,501
520
5,454
2,212
211
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TABLE 17—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—Continued
Instances of indicated types of incidental take (not all takes
represent separate individuals, especially for disturbance)
Level B harassment
Species
Mesoplodon
species.
Total
takes
Level A
harassment
Total
takes
(entire
study
area)
Stock
CA/OR/WA ......
Behavioral
disturbance
TTS (may
also include
disturbance)
Mortality
PTS
6,125
68
1
Tissue
damage
0
0
Abundance
Instances of total take
as percent of abundance
Navy
abundance
in action
area
NMFS
SARs
abundance
89
3,044
6,194
Total take
as percentage of total
Navy
abundance
in action
area
Total take
as percentage of total
SAR
abundance
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 species or stocks addressed in
this section.
ddrumheller on DSK120RN23PROD with RULES3
Blainville’s, Goose-Beaked, 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
disturbance), 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 521–544 and 514–539
percent (table 16). 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, over 1 to perhaps 11 days per
year, with little likelihood of much take
across sequential days. Regarding the
severity of those individual Level B
harassment takes by behavioral
disturbance, 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 2 (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
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noted earlier, within the Hawaii Island
mitigation area (which overlaps a large
portion of the BIAs for goose-beaked
and Blainville’s beaked whales
identified in Kratofil et al. 2023),
explosives are not used and the use of
MF1 and MF4 active sonar is limited,
greatly reducing the severity of impacts
within 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 that the associated
lost opportunities and capabilities are
not at a level that will impact
reproduction or survival.
Altogether, 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 1 and 11 days, with little
chance that individuals are taken across
more than a few sequential days. 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 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 Beaked Whale, Goose-Beaked
Whale and Mesoplodon Species (All
CA/OR/WA Stocks)
The species are not listed under the
ESA and their populations have been
identified as ‘‘increasing,’’ ‘‘decreasing,’’
and ‘‘increasing,’’ respectively. No
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mortality is expected or authorized for
any of these three stocks and only two
takes by Level A harassment (PTS) are
authorized.
No methods are available to
distinguish between the six species of
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. 2018a). 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 spp, 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 identified as Mesoplodon spp.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), 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
150, 211, and 203 percent (measured
against the SAR) for Baird’s beaked
whales, goose-beaked beaked whales,
and Mesoplodon spp., respectively
(table 17). 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 goose-beaked)—
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potentially over a fair number of
sequential days, especially where
individuals spend extensive time in the
SOCAL Range. Note that we predict
lower 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. While
interrupted feeding bouts are a known
response and concern for odontocetes,
we also know that there are often viable
alternative habitat options in the
relative vicinity. Regarding the severity
of those individual Level B harassment
takes by behavioral disturbance, 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 2 (i.e., of a moderate
level). In addition, as noted, some of
these takes could occur on a fair number
of sequential days for these stocks.
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 similar reasons (as
described in the 2020 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 any individuals.
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. Though the
majority of impacts are expected to be
of a moderate severity, 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 1
year, which is the maximum predicted
because the small number anticipated in
any 1 year makes the probability that
any individual would be impacted in
this way twice in 7 years very low) has
far less of an impact on population rates
than mortality and a small number of
instances of foregone reproduction are
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 (8.7, 41.9, and 19.9,
respectively).
Further, Navy activities have been
conducted in SOCAL for many years at
similar levels and the SAR considers
Mesoplodon spp. and Baird’s beaked
whales as increasing. While NMFS’ SAR
indicates that goose-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 goose-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;
Širović 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 goosebeaked whale individuals with 40
percent having been seen in one or more
prior years, with re-sightings up to 7
years apart (Falcone and Schorr, 2014).
The documented residency by many
goose-beaked whales over multiple
years suggests that a stable population
may exist in that small portion of the
stock’s overall range (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 goose-beaked whales, as
well as all six species included within
the Mesoplodon spp.
Small Whales and Dolphins
In tables 18 and 19 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 18 and
19 are updated from tables 24 and 25 in
the 2020 HSTT final rule as appropriate
with the 2023 final SARs. 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 rule unless specifically noted.
TABLE 18—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)
ddrumheller on DSK120RN23PROD with RULES3
Level B harassment
Species
Bottlenose
dolphin.
Level A
harassment
Stock
Hawaii Pelagic.
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Behavioral
disturbance
TTS
(may also
include
disturbance)
PTS
3,196
132
0
0
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Total takes
Total
takes
(entire
study
area)
Mortality
PO 00000
Tissue
damage
0
Sfmt 4700
3,328
Takes
(within
Navy
EEZ)
Abundance
Instance of total take
as percent of
abundance
Total Navy
abundance
inside and
outside of
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)
1,528
1,442
218
172
2,481
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TABLE 18—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)
Level B harassment
Species
Bottlenose
dolphin.
Bottlenose
dolphin.
Bottlenose
dolphin.
Bottlenose
dolphin.
False killer
whale.
False killer
whale.
ddrumheller on DSK120RN23PROD with RULES3
False killer
whale.
Fraser’s
dolphin.
Killer
whale.
Melonheaded
whale.
Melonheaded
whale.
Pantropical
spotted
dolphin.
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.
Total takes
Level A
harassment
Stock
Behavioral
disturbance
TTS
(may also
include
disturbance)
PTS
Total
takes
(entire
study
area)
Mortality
Tissue
damage
Abundance
Takes
(within
Navy
EEZ)
Instance of total take
as percent of
abundance
Total Navy
abundance
inside and
outside of
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)
Kauai &
Niihau.
Oahu .......
534
31
0
0
0
565
264
184
184
307
143
8,600
61
1
0
0
8,662
8,376
743
743
a 1,166
a 1,127
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
324
Hawaii .....
572
17
0
0
0
589
476
147
147
b 401
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
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
Hawaii Island.
3,767
227
0
0
0
3,994
2,576
2,405
2,405
166
107
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
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
Hawaii Islands.
Kohala
Resident.
Note: For the Hawaii 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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a The 2020 final rule unintentionally presented these percentages as 1,169 and 1,130. The correct values are provided here. These errors do not affect the conclusions in the 2020 HSTT final rule.
b The 2020 final rule unintentionally presented this percentage as 400. The correct value is provided here. This rounding error does not affect the conclusions in the
2020 HSTT final rule.
TABLE 19—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)
Level B harassment
Species
Bottlenose dolphin.
Bottlenose dolphin.
Killer whale .....
Killer whale .....
Long-beaked
common dolphin.
Northern right
whale dolphin.
Pacific whitesided dolphin.
Risso’s dolphin
Short-beaked
common dolphin.
Short-finned
pilot whale.
Striped dolphin
Total
takes
Level A
harassment
Total
takes
(entire
study
area)
Stock
Abundance
Instance of total take
as percent of
abundance
Navy
abundance
in action
area
(SOCAL)
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)
PTS
Tissue
damage
1,771
38
0
0
0
1,809
238
453
760
399
51,727
3,695
3
0
0
55,425
5,946
3,477
932
1,594
Mortality
California
Coastal.
CA/OR/WA
Offshore.
ENP Offshore
ENP Transient/
West Coast
Transient.
California ........
96
179
11
20
0
0
0
0
0
0
107
199
4
30
300
349
2,675
663
36
57
233,485
13,787
18
2
0
247,292
10,258
83,379
2,411
297
CA/OR/WA .....
90,052
8,047
10
1
0
98,110
7,705
29,285
1,273
335
CA/OR/WA .....
69,245
6,093
5
0
0
75,343
6,626
34,999
1,137
215
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
1,056,308
1,622
571
1,993
141
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
29,988
440
584
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 7 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 species or
stocks through effects on annual rates of
recruitment or survival for any of the
affected species or stocks addressed in
this section.
ddrumheller on DSK120RN23PROD with RULES3
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 stocks are listed under
the ESA and their stock statuses are
considered ‘‘increasing,’’ ‘‘unknown,’’
and ‘‘increasing,’’ respectively. Eight
mortalities or serious injuries of shortbeaked common dolphins are
authorized over the 7-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
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PBR. The 3 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 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 1 year. As noted
previously, foregone reproduction has
less of an impact on population rates
than death (especially for only 1 year in
7, which is the maximum predicted
because the small number anticipated in
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any 1 year makes the probability that
any individual would be impacted in
this way twice in 7 years very low), and
1 to 10 instances would not be expected
to impact annual rates of recruitment or
survival for these stocks.
Regarding the magnitude of Level B
harassment takes (TTS and behavioral
disturbance), the number of estimated
total instances of take compared to the
abundance (measured against both the
Navy-estimated abundance and the
SAR) is 2,411, 1,273, and 571 percent
(respective to the stocks listed in the
heading) and 297, 335, and 141 percent
(respective to the stocks listed in the
heading) (table 19). 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 rangelimited long-beaked common dolphin is
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taken. All three stocks likely will
experience some repeat Level B
harassment exposure (perhaps up to 48,
25, or 11 days within a year, respective
to the stocks listed in the heading) of
some subset of individuals that spend
extended time within the SOCAL range
complex. While interrupted feeding
bouts are a known response and concern
for odontocetes, we also know that there
are often viable alternative habitat
options in the relative vicinity.
Regarding the severity of those
individual Level B harassment takes by
behavioral disturbance, 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).
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 high
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 are 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 2020 HSTT final rule, it is unlikely
to impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival of any individuals.
Altogether and as described in more
detail above, 1.14 annual lethal takes of
short-beaked common dolphins are
authorized, all three stocks may
experience a very small number of takes
by tissue damage or PTS (relative to the
stock abundance and PBR), and 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
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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 1 year out of 7, which is the
maximum predicted because the small
number anticipated in any 1 year makes
the probability that any individual
would be impacted in this way twice in
7 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 tissue damage takes) are not
expected to adversely affect the stocks
through effects on annual rates of
recruitment or survival, especially given
the very high residual PBRs of these
stocks (638.3, 156.4, and 8,858.5,
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 stocks are 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 M/SI 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
disturbance), 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
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36 to 1,993 percent, respectively (table
19). 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 with
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 would suggest.
While interrupted feeding bouts are a
known response and concern for
odontocetes, we also know that there are
often viable alternative habitat options
in the relative vicinity. Regarding the
severity of those individual Level B
harassment takes by behavioral
disturbance, 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).
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 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
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ddrumheller on DSK120RN23PROD with RULES3
behaviors, opportunities, or detection
capabilities to a degree that would
interfere with reproductive success or
survival of any individuals.
Altogether, 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 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 1 year in 7, which is the maximum
predicted because the small number
anticipated in any 1 year makes the
probability that any individual would
be impacted in this way twice in 7 years
very low) has far less of an impact on
population rates than mortality and a
small number of instances of foregone
reproduction are 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 (18.9,
272, and 42.3, 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 stock of false killer
whales (listed as endangered under the
ESA, with the MMPA stock identified as
‘‘decreasing’’), none of these stocks are
listed under the ESA and their stock
statuses are considered ‘‘unknown.’’ No
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M/SI 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
disturbance), 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 1,166 percent and 14
to 2,130 percent, respectively (table 18).
Given the ranges of these stocks (many
of them are small, resident, islandassociated 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 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 the within-U.S. EEZ percentage
suggests (42). While interrupted feeding
bouts are a known response and concern
for odontocetes, we also know that there
are often viable alternative habitat
options in the relative vicinity.
Regarding the severity of those
individual Level B harassment takes by
behavioral disturbance, 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). 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.
Within the Hawaii Island mitigation
area (which overlaps a large portion of
the BIAs for common bottlenose
dolphin, dwarf sperm whale, false killer
whale, melon-headed whale,
pantropical spotted dolphin, pygmy
killer whale, rough-toothed dolphin,
short-finned pilot whale, and spinner
dolphin identified in Kratofil et al.
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2023), the Navy will not use explosives
and will limit the use of MF1 and MF4
active sonar. The 4-Islands mitigation
area overlaps a portion of the BIAs
identified in Kratofil et al. (2023) for
common bottlenose dolphin, false killer
whale, pantropical spotted dolphin,
rough-toothed dolphin, and spinner
dolphin. Within the 4-Islands mitigation
area (November 15–April 15), the Navy
will not use MF1 surface ship hullmounted mid-frequency active sonar or
explosives that could potentially result
in takes of marine mammals. The
mitigation required in these two areas
will reduce the severity of impacts
within these small and 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 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 may include some degree of
energetic costs for compensating or may
mean some small loss of opportunities
or detection capabilities, they 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 accrued to
individuals that are also taken by
behavioral harassment at the same time.
Altogether, 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
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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 1
year, which is the maximum predicted
because the small number anticipated in
any 1 year makes the probability that
any individual would be impacted in
this way twice in 7 years very low) has
far less of an impact on population rates
than mortality and a small number of
instances of foregone reproduction are
not expected to adversely affect these
two stocks 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, 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 20 below for porpoises, we
indicate the total annual mortality,
Level A harassment and Level B
harassment, and a number indicating
the instances of total take as a
percentage of abundance. Table 20 is
updated from table 26 in the 2020 HSTT
final rule with the 2023 final SARs. 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 HTT final
rule, all of which remains applicable to
this rule unless specifically noted.
TABLE 20—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)
Level B harassment
Species
Dall’s porpoise
Total
takes
Level A
harassment
Total
takes
(entire
study
area)
Stock
CA/OR/WA ......
Behavioral
disturbance
TTS
(may also
include
disturbance)
PTS
14,482
29,891
209
Mortality
Tissue
damage
0
0
Abundance
Instances of total take
as percent of
abundance
Navy
abundance
in Action
Area
NMFS
SARs
abundance
2,054
16,498
44,582
Total take
as percentage
of total
Navy
abundance
in Action
Area
Total take
as percentage of total
SAR
abundance
2,170
270
ddrumheller on DSK120RN23PROD with RULES3
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 Dall’s porpoises
through effects on annual rates of
recruitment or survival.
Dall’s porpoise is not listed under the
ESA and the stock status is considered
‘‘unknown.’’ No M/SI 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 will
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 bowriding behaviors, which is very different
from the group dynamics observed in
the more typically solitary, cryptic
harbor porpoises, which are not often
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seen bow-riding. For these reasons,
Dall’s porpoises are not treated as
especially sensitive species (as
compared to harbor porpoises, which
have a lower threshold for Level B
harassment by behavioral disturbance
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
disturbance), 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 270 percent,
respectively (table 20). 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,
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especially where individuals spend
extensive time in the SOCAL range
complex. While interrupted feeding
bouts are a known response and concern
for odontocetes, we also know that there
are often viable alternative habitat
options in the relative vicinity.
Regarding the severity of those
individual Level B harassment takes by
behavioral disturbance, 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). 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
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mean some small loss of opportunities
or detection capabilities, the estimated
209 takes by Level A harassment by PTS
for Dall’s porpoise are unlikely to
impact behaviors, opportunities, or
detection capabilities to a degree that
would interfere with reproductive
success or survival for most individuals.
Because of the high number of PTS
takes, 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 would not
adversely impact rates of recruitment or
survival.
Altogether, 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 1 year
in 7, which is the maximum predicted
because the small number anticipated in
any 1 year makes the probability that
any individual would be impacted in
this way twice in 7 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
disturbance are 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
10,286 just within the U.S. EEZ) and
residual PBR of Dall’s porpoise (98.3).
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 Dall’s porpoise.
Pinnipeds
In tables 21 and 22 below for
pinnipeds, we indicate the total annual
mortality, Level A harassment and Level
B harassment, and a number indicating
the instances of total take as a
percentage of abundance. Tables 21 and
22 have been updated from tables 27
and 28 in the 2020 HSTT final rule with
the 2023 final SARs. 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 rule unless
specifically noted.
TABLE 21—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)
Level B harassment
Level A
harassment
Species
Behavioral disturbance
Hawaiian monk
seal.
TTS (may
also include
disturbance)
PTS
62
1
143 ...................
Total takes
Total takes
(entire study
area)
Mortality
Tissue
damage
0
0
206
Abundance
Takes
(within
Navy
EEZ)
Instance of total take
as percent of
abundance
Total Navy
abundance
inside and
outside of
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)
169
169
122
115
195
Note: For the Hawaii 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 22—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)
Level B harassment
ddrumheller on DSK120RN23PROD with RULES3
Species
Level A
harassment
Stock
Behavioral
disturbance
TTS
(may also
include disturbance)
PTS
Total
Takes
Total
takes
(entire
study
area)
Mortality
Tissue
damage
Abundance
Instance of total take
as percent of abundance
Navy
abundance
in action
area
(SOCAL)
NMFS
SARs
abundance
Total take
as percentage of total
Navy
abundance
in action
area
Total take
as percentage of total
SAR abundance
California sea
lion.
Guadalupe fur
seal.
U.S. .................
113,419
4,789
87
9
0.71
118,305
4,085
257,606
2,896
46
Mexico .............
1,442
15
0
0
0
1,457
1,171
34,187
124
4
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TABLE 22—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—Continued
Instances of indicated types of incidental take
(not all takes represent separate individuals, especially for disturbance)
Level B harassment
Species
Northern fur
seal.
Harbor seal ......
Northern elephant seal.
Level A
harassment
Stock
Total
Takes
Total
takes
(entire
study
area)
Abundance
Instance of total take
as percent of abundance
Navy
abundance
in action
area
(SOCAL)
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)
PTS
California .........
15,167
124
1
0
0
15,292
886
14,050
1,726
109
California .........
California .........
2,450
42,916
2,994
17,955
8
97
0
2
0
0
5,452
60,970
321
4,108
30,968
187,386
1,698
1,484
18
33
Mortality
Tissue
damage
ddrumheller on DSK120RN23PROD with RULES3
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 7 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
would not adversely affect any
pinnipeds through effects on annual
rates of recruitment or survival for any
of the affected species or stocks
addressed in this section.
Five M/SI takes of California sea lions
are authorized and when this mortality
is combined with the other humancaused mortality from other sources, it
still falls well below the insignificance
threshold for residual PBR (13,684). A
small number of Level A harassment
takes by tissue damage are also
authorized (nine and two for California
sea lions and northern elephant seals,
respectively), which, as discussed in the
2020 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 1 year. As noted
previously, foregone reproduction has
less of an impact on population rates
than death (especially for only one
within 7 years, which is the maximum
predicted because the small number
anticipated in any 1 year makes the
probability that any individual would
be impacted in this way twice in 7 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
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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
disturbance), 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 1 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 Navyestimated abundance and the SAR) is
1,484 to 2,896 percent and 18 to 46
percent, respectively (table 22). Given
the ranges of these stocks (i.e., very large
ranges, but with individuals often
staying in the vicinity of haulouts), 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 disturbance, 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 this stock.
As described in the 2018 HSTT final
rule and 2020 HSTT final rule, the
Hawaii and 4-Islands mitigation areas
protect (by not using explosives and
limiting MFAS within) a significant
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portion of the 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.
Because of the high number of PTS
takes for California sea lions and
northern elephant seals (87 and 97,
respectively), 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,
even if this occurred, it would not
adversely impact rates of recruitment or
E:\FR\FM\16JAR3.SGM
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survival (residual PBR of 13,684 and
5,108, respectively).
Altogether, an 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 1 year within 7,
which is the maximum predicted
because the small number anticipated in
any 1 year makes the probability that
any individual would be impacted in
this way twice in 7 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) are 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 1 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
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and residual PBRs of 14,050/30,968 and
449/1,598.
For California sea lions, given the
very high abundance and residual PBR
(257,606 and 13,684, 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, 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
(187,386 and 5,108, 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 2 individuals in a year taken by tissue
damage 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
species and 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
have evaluated how these impacts as
well as additional take of two large
whales by serious injury or mortality by
vessel strike, and the required
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
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assessment of effects on annual rates of
recruitment and survival. Accordingly,
the analysis included in the 2018 HSTT
final rule and 2020 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 2020
HSTT final rule were based have
changed, with the exception of
estimated take by vessel strike.
Therefore, even though this final rule
includes two additional takes by vessel
strike, little has changed that would
change our 2018 HSTT final rule and
subsequent 2020 HSTT final rule
analyses, and it is appropriate to rely on
those analyses, as well as the new
information and analysis discussed
above, for this final rule.
Based on the applicable information
and analysis from the 2018 HSTT final
rule and 2020 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
(Western North Pacific DPS), humpback
whale (Mexico and Central America
DPSs), sei whale, sperm whale, false
killer whale (Main Hawaiian Islands
Insular DPS), Hawaiian monk seal, and
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Guadalupe fur seal. There is also ESAdesignated 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. NMFS reviewed these
specified conditions for the 2020 HSTT
rulemaking and determined that
reinitiation of consultation was not
warranted. The incidental take
statement that accompanied the 2018
Biological Opinion was amended to
cover the 7-year period of the 2020
HSTT rule. The 2018 Biological Opinion
for this action is available at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities.
The 2018 Biological Opinion
reinitiation clause (2), states that formal
consultation should be reinitiated if
‘‘new information reveals effects of the
agency action that may affect ESA-listed
species or critical habitat in a manner or
to an extent not previously considered.’’
Given the new information regarding
the recent occurrence of large whale
strikes by naval vessels in the southern
California portion of the HSTT Study
Area, as described herein, the Navy
reinitiated consultation with NMFS
pursuant to section 7 of the ESA for
HSTT Study Area activities, and NMFS
also reinitiated consultation internally
on the issuance of these revised
regulations and LOAs under section
101(a)(5)(A) of the MMPA.
NMFS issued a reinitiated Biological
and Conference Opinion on June 3, 2024
concluding that the issuance of the 2024
HSTT final rule and subsequent LOAs
are not likely to jeopardize the
continued existence of the threatened
and endangered species under NMFS’
jurisdiction and are not likely to result
in the destruction or adverse
modification of critical habitat in the
HSTT Study Area. The opinion is
available at https://doi.org/10.25923/
7y9x-vw84.
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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.
NMFS 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 any
subsequent LOAs will not result in
impacts that were not fully considered
in the 2018 HSTT FEIS/OEIS. As
indicated in this final rule, the Navy has
made no substantial changes to the
activities that are relevant to
environmental concerns nor are there
substantial new circumstances or
information about the significance of
adverse effects that bear on the analysis.
Therefore, NMFS has determined that
the 2018 HSTT FEIS/OEIS remains
valid, and there is no need to
supplement the document for this
rulemaking. NOAA therefore, has
adopted the 2018 HSTT FEIS/OEIS.
NMFS has prepared a separate Record of
Decision. NMFS’ Record of Decision for
adoption of the 2018 HSTT FEIS/OEIS
and issuance of this final rule and
subsequent LOAs can be found at
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Fmt 4701
Sfmt 4700
5015
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities.
Regulatory Flexibility Act
The Office of Management and Budget
has determined that this rule is not
significant for purposes of Executive
Order 12866.
Pursuant to the Regulatory Flexibility
Act (RFA), the Chief Counsel for
Regulation of the Department of
Commerce has certified to the Chief
Counsel for Advocacy of the Small
Business Administration during the
proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received regarding
this certification. As a result, a
regulatory flexibility analysis was not
required and none was prepared.
Waiver of Delay in Effective Date 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 of 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 a delay
would be contrary to the public interest
and unnecessary. A delay in
effectiveness is contrary to public
interest because this rule allows the
Navy to continue training and testing
activities that are necessary for national
security in compliance with the MMPA.
Further, a delay is unnecessary because
this rule is not generally applicable to
the public. The Navy is the only entity
affected by the regulations, the Navy
specifically requested the modification
to the regulations, and the Navy has
fully agreed to the requirements
included herein. The Navy is
anticipating finalization of the rule and,
as such, is ready to comply immediately
upon publication. As such, there is good
cause to waive the 30-day delay in
effective date.
List of Subjects in 50 CFR Part 218
Administrative practice and
procedure, Endangered and threatened
species, Fish, Fisheries, Marine
mammals, Penalties, Reporting and
recordkeeping requirements,
Transportation, Wildlife.
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Federal Register / Vol. 90, No. 10 / Thursday, January 16, 2025 / Proposed Rules
Dated: December 23, 2024.
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.
■
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 (LOA).
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 HawaiiSouthern California Training and
Testing (HSTT)
§ 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 HSTT Study Area includes the atsea 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 HSTT
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:
(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 System Command
Testing Activities;
(iii) Office of Naval Research Testing
Activities; and
(iv) Naval Information Warfare
Systems Command.
§ 218.71
Effective dates.
This subpart is effective from January
16, 2025, 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 PARAGRAPH (b)
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Species
Stock
Blue whale ................................................................................................
Blue whale ................................................................................................
Bryde’s whale ...........................................................................................
Bryde’s whale ...........................................................................................
Fin whale ..................................................................................................
Fin whale ..................................................................................................
Humpback 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 .........................................................................
Goose-beaked whale ................................................................................
Goose-beaked whale ................................................................................
Longman’s beaked whale .........................................................................
Mesoplodon spp. ......................................................................................
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Central North Pacific
Eastern North Pacific
Eastern Tropical Pacific
Hawaii
CA/OR/WA
Hawaii
Central America/Southern Mexico-CA/OR/WA
Mainland Mexico-CA/OR/WA
Hawaii
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
Sfmt 4700
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Federal Register / Vol. 90, No. 10 / Thursday, January 16, 2025 / Proposed Rules
5017
TABLE 1 TO PARAGRAPH (b)—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.
ddrumheller on DSK120RN23PROD with RULES3
§ 218.73
Prohibitions.
§ 218.74
Except for incidental takings
contemplated in § 218.72(a) and
authorized by LOAs issued under
§§ 216.106 of this chapter and 218.76, it
is unlawful for any person to do any of
the following in connection with the
activities listed in § 218.70(c):
(a) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or an LOA issued under
§§ 216.106 of this chapter and 218.76;
(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) after 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. Navy personnel (including
civilian personnel) involved in
mitigation and training or testing
activity reporting under the specified
activities will complete one or more
modules identified in their career path
training plan, as specified in the LOAs.
(2) Active sonar. Active sonar
includes low-frequency active sonar,
mid-frequency active sonar, and highfrequency active sonar. For vessel-based
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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). For active
sonar subject mitigation requirements:
(i) Number of Lookouts and
observation platform—(A) Hullmounted sources. One Lookout is
required for hull-mounted sources for
platforms with space or manning
restrictions while underway (at the
forward part of a small boat or ship) and
for platforms using active sonar while
moored or at anchor (including
pierside). Two Lookouts are required for
hull mounted-sources 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 is required on the
ship or aircraft conducting the activity
for sources that are not hull-mounted.
(ii) Mitigation zone and requirements.
During active sonar use, the following
requirements apply:
(A) Powerdown for marine mammals
at 1,000 yards. At 1,000 yards (yd)
(914.4 m) from a marine mammal, Navy
personnel must power down by 6
decibels (dB).
(B) Powerdown for marine mammals
at 500 yards. At 500 yd (457.2 m) from
a marine mammal, Navy personnel must
power down by an additional 4 dB (for
a total of 10 dB).
(C) Shutdowns for marine mammals
at 200 yards. At 200 yd (182.9 m) from
a marine mammal, Navy personnel must
shut down low-frequency active sonar
≥200 dB and hull-mounted midfrequency active sonar; or Navy
personnel must shut down lowfrequency active sonar <200 dB, midfrequency active sonar sources that are
not hull-mounted, and high-frequency
active sonar.
(D) Prior to activity. Prior to the start
of the active sonar activity (e.g., when
maneuvering on station), Navy
personnel must observe the 1,000 yd
(914.4 m) mitigation zone for floating
vegetation; if floating vegetation is
observed in the mitigation zone, 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
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marine mammals are observed, Navy
personnel must relocate or delay the
start of active sonar transmission.
(E) During the activity for lowfrequency active sonar at or above 200
dB and hull-mounted mid-frequency
active sonar. When using low-frequency
active sonar at or above 200 dB and
hull-mounted mid-frequency active
sonar, Navy personnel must observe the
1,000 yd (914.4 m) mitigation zone for
marine mammals and power down
active sonar transmission by 6 dB if
marine mammals are observed within
1,000 yd (914.4 m) 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
(457.2 m) of the sonar source; and cease
transmission if marine mammals are
observed within 200 yd (182.9 m) of the
sonar source.
(F) During the activity for lowfrequency active sonar below 200 dB,
mid-frequency active sonar sources that
are not hull mounted, and highfrequency active sonar. 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 1,000 yd
(914.4 m) mitigation zone for marine
mammals and cease active sonar
transmission if marine mammals are
observed within 200 yd (182.9 m) of the
sonar source.
(G) Commencement/recommencement
conditions after a marine mammal
sighting before or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone indicated in § 218.74(a)(2)(ii) prior
to the initial start of the activity (by
delaying the start) or during the activity
(by not recommencing or powering up
active sonar transmission) until one of
the following conditions has been met:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the sonar source;
(3) Clear from additional sightings.
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;
(4) Sonar source transit. For mobile
activities, the active sonar source has
transited a distance equal to double that
of the mitigation zone size beyond the
location of the last sighting; or
(5) Bow-riding dolphins. For activities
using hull-mounted sonar where a
dolphin(s) is observed in the mitigation
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Sfmt 4700
zone, the Lookout concludes that the
dolphin(s) are deliberately closing in on
the ship to ride the ship’s bow wave,
and are therefore out of the main
transmission axis of the sonar (and there
are no other marine mammal sightings
within the mitigation zone).
(3) Air guns. For activities using air
guns:
(i) Number of Lookouts and
observation platform. One Lookout must
be positioned on a ship or pierside.
(ii) Mitigation zone and requirements.
The mitigation zone is 150 yd (137.2 m)
around the air gun.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the air gun;
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 30 min; or
(4) Air gun transit. 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. For 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.
The mitigation zone is 100 yd (91.4 m)
around the pile driver.
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(A) Prior to activity. 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 activity. 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.
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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the pile driving
location; or
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 30 minutes.
(5) Weapons firing noise. For 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.
The mitigation zone is 30 degrees on
either side of the firing line out to 70 yd
(64 m) from the muzzle of the weapon
being fired.
(A) Prior to activity. 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
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personnel must relocate or delay the
start of weapons firing.
(B) During activity. 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the firing ship;
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 30 min; or
(4) Firing ship transit. For mobile
activities, the firing ship has transited a
distance equal to double that of the
mitigation zone size beyond the location
of the last sighting.
(6) Explosive sonobuoys. For
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
while performing their regular duties.
(ii) Mitigation zone and requirements.
The mitigation zone is 600 yd (548.6 m)
around an explosive sonobuoy.
(A) Prior to activity. 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 activity. During the
activity, Navy personnel must observe
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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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the sonobuoy; or
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min
when the activity involves aircraft that
have fuel constraints (e.g., helicopter),
or 30 min when the activity involves
aircraft that are not typically fuel
constrained.
(D) After activity. 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 followon 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. For explosive
torpedoes:
(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 while performing their
regular duties.
(ii) Mitigation zone and requirements.
The mitigation zone is 2,100 yd (1,920.2
m) around the intended impact location.
(A) Prior to activity. 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
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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 activity. 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; or
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min
when the activity involves aircraft that
have fuel constraints, or 30 min when
the activity involves aircraft that are not
typically fuel constrained.
(D) After activity. 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.
(8) Explosive medium-caliber and
large-caliber projectiles. For gunnery
activities using explosive mediumcaliber and large-caliber projectiles, the
following 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
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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 while performing their
regular duties.
(ii) Mitigation zone and
requirements—(A) Air-to-surface
activities. The mitigation zone is 200 yd
(182.9 m) around the intended impact
location for air-to-surface activities
using explosive medium-caliber
projectiles.
(B) Surface-to-surface activities,
medium-caliber. The mitigation zone is
600 yd (548.6 m) around the intended
impact location for surface-to-surface
activities using explosive mediumcaliber projectiles.
(C) Surface-to-surface activities, largecaliber. The mitigation zone is 1,000 yd
(914.4 m) around the intended impact
location for surface-to-surface activities
using explosive large-caliber projectiles.
(D) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location;
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min for
aircraft-based firing or 30 min for vesselbased firing; or for activities using
mobile targets, the intended impact
location has transited a distance equal
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to double that of the mitigation zone
size beyond the location of the last
sighting.
(G) After activity. 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. For
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 while performing their
regular duties.
(ii) Mitigation zone and
requirements—(A) Missiles or rockets
with 0.6–20 lb net explosive weight. The
mitigation zone is 900 yd (823 m)
around the intended impact location for
missiles or rockets with 0.6–20 lb net
explosive weight.
(B) Missiles with 21–500 lb net
explosive weight. The mitigation zone is
2,000 yd (1,828.8 m) around the
intended impact location for missiles
with 21–500 lb net explosive weight.
(C) Prior to activity. Prior to the initial
start of the activity (e.g., during a flyover 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 activity. 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
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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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; or
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min
when the activity involves aircraft that
have fuel constraints, or 30 min when
the activity involves aircraft that are not
typically fuel constrained.
(F) After activity. 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. For 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
while performing their regular duties.
(ii) Mitigation zone and requirements.
The mitigation zone is 2,500 yd (2,286
m) around the intended target.
(A) Prior to activity. 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 activity. During the activity
(e.g., during target approach), Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must cease bomb deployment.
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(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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
target;
(3) Clear from additional sightings.
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 activity. 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. For 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 while
performing their regular duties.
(ii) Mitigation zone and requirements.
The mitigation zone is 2.5 nautical
miles (4.6 km) around the target ship
hulk.
(A) Prior to activity. 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
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5021
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 activity. 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 2 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the target ship
hulk; or
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 30 minutes.
(D) After activity. After completion of
the activity (for 2 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. For
explosive mine countermeasure and
neutralization activities:
(i) Number of Lookouts and
observation platform—(A) Smaller
mitigation zone. One Lookout must be
positioned on a vessel or in an aircraft
when implementing the smaller
mitigation zone.
(B) Larger mitigation zone. Two
Lookouts (one must be positioned in an
aircraft and one must be on a small boat)
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when implementing the larger
mitigation zone.
(C) Additional platforms. 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 while performing their
regular duties.
(ii) Mitigation zone and
requirements—(A) Activities using 0.1–5
lb net explosive weight. The mitigation
zone is 600 yd (548.6 m) around the
detonation site for activities using 0.1–
5 lb net explosive weight.
(B) Activities using 6–650 lb net
explosive weight. The mitigation zone is
2,100 yd (1,920.2 m) around the
detonation site for activities using 6–650
lb net explosive weight (including high
explosive target mines).
(C) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to detonation site; or
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min
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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 activity. After completion of
the activity (typically 10 min when the
activity involves aircraft that have fuel
constraints, or 30 min when the activity
involves aircraft that are not typically
fuel constrained), Navy personnel must
observe for marine mammals in the
vicinity of where detonations occurred;
if any injured or dead marine mammals
are observed, Navy personnel must
follow established incident reporting
procedures. If additional platforms are
supporting this activity (e.g., providing
range clearance), these Navy assets must
assist in the visual observation of the
area where detonations occurred.
(13) Explosive mine neutralization
activities involving Navy divers. For
explosive mine neutralization activities
involving Navy divers:
(i) Number of Lookouts and
observation platform—(A) Smaller
mitigation zone. 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) Larger mitigation zone. 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) Divers. 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) Additional platforms. 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 while performing their
regular duties.
(ii) Mitigation zone and
requirements—(A) Activities under
positive control using 0.1–20 lb net
explosive weight. The mitigation zone is
500 yd (457.2 m) around the detonation
site during activities under positive
control using 0.1–20 lb net explosive
weight.
(B) Activities under positive control
using 21–60 lb net explosive weight
charges. The mitigation zone is 1,000 yd
(914.4 m) 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.
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(C) Prior to activity. 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 activity. 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 minutes.
(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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. 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
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(3) Clear from additional sightings.
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 activity. After completion of
an activity (for 30 min), the Navy must
observe for marine mammals for 30
minutes. 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 while performing their
regular duties.
(ii) Mitigation zone and requirements.
200 yd (182.9 m) around the intended
detonation location.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
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(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
detonation location;
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 30 min; or
(4) Detonation location transit. 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 activity. 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. For underwater
demolition multiple charge—mat weave
and obstacle loading exercises:
(i) Number of Lookouts and
observation platform. Two Lookouts
(one must be positioned 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 while performing their
regular duties.
(ii) Mitigation zone and requirements.
The mitigation zone is 700 yd (640.1 m)
around the intended detonation
location.
(A) Prior to activity. 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 activity. During the
activity, Navy personnel must observe
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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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. 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
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min (as
determined by the Navy shore observer).
(D) After activity. 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 following
requirements apply to vessel movement,
except 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) Whales. The
mitigation zone is 500 yd (457.2 m)
around whales.
(B) Marine mammals other than
whales. The mitigation zone is 200 yd
(182.9 m) 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
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mammals; if marine mammals are
observed, Navy personnel must
maneuver (which may include reducing
speed as the mission or circumstances
allow) to maintain distance.
(iv) Incident reporting procedures. If a
marine mammal vessel strike occurs,
Navy personnel must follow the
established incident reporting
procedures.
(v) Post-strike alerts. Navy personnel
must send alerts to Navy vessels of
increased risk of strike following any
reported Navy vessel strike in the HSTT
Study Area.
(vi) Large whale aggregation alerts.
Navy personnel must issue real-time
notifications to Navy vessels of large
whale aggregations (four or more
whales) within 1 nmi (1.9 km) of a Navy
vessel in the area between 32–33
degrees North and 117.2–119.5 degrees
West.
(17) Towed in-water devices. The
following mitigation applies to devices
that are towed from a manned surface
platform or manned aircraft, except 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.
The mitigation zone is 250 yd (228.6 m)
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. For small-, medium-, and
large-caliber non-explosive practice
munitions, the following 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.
The mitigation zone is 200 yd (182.9 m)
around the intended impact location.
(A) Prior to activity. 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
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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 activity. 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:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location;
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min for
aircraft-based firing or 30 min for vesselbased firing; or
(4) Impact location transit. For
activities using 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. For aircraft-deployed nonexplosive missiles and rockets, the
following 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.
The mitigation zone is 900 yd (823 m)
around the intended impact location.
(A) Prior to activity. Prior to the initial
start of the activity (e.g., during a flyover 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 activity. During the
activity, Navy personnel must observe
the mitigation zone for marine
mammals; if marine mammals are
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observed, Navy personnel must cease
firing.
(C) Commencement/recommencement
conditions after a marine mammal
sighting prior to or during the activity.
Navy personnel must allow a sighted
marine mammal to leave the mitigation
zone prior to the initial start of the
activity (by delaying the start) or during
the activity (by not recommencing
firing) until one of the following
conditions has been met:
(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended
impact location; or
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min
when the activity involves aircraft that
have fuel constraints, or 30 min when
the activity involves aircraft that are not
typically fuel constrained.
(20) Non-explosive bombs and mine
shapes. For 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.
The mitigation zone is 1,000 yd (914.4
m) around the intended target.
(A) Prior to activity. 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 activity. 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:
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(1) Observed exiting. The animal is
observed exiting the mitigation zone;
(2) Thought to have exited. The
animal is thought to have exited the
mitigation zone based on a
determination of its course, speed, and
movement relative to the intended target
or minefield location;
(3) Clear from additional sightings.
The mitigation zone has been clear from
any additional sightings for 10 min; or
(4) Target transit. For activities using
mobile targets, the intended target has
transited a distance equal to double that
of the mitigation zone size beyond the
location of the last sighting.
(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) MF1
surface ship hull-mounted midfrequency active sonar, MF4 dipping
sonar, or explosives. Except as provided
in paragraph (b)(1)(i)(A)(2) of this
section, within the Hawaii Island
Mitigation Area, Navy personnel must
not conduct more than 300 hours of
MF1 surface ship hull-mounted midfrequency 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) National security exception.
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) MF1
surface ship hull-mounted midfrequency active sonar or explosives.
Except as provided in paragraph
(b)(1)(i)(B)(2) of this section, within the
4-Islands Region Mitigation Area, Navy
personnel must not use MF1 surface
ship hull-mounted mid-frequency active
sonar from November 15–April 15 or
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explosives that could potentially result
in takes of marine mammals at any time
during training and testing.
(2) National security exception.
Should national security require use of
MF1 surface ship hull-mounted midfrequency 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
Humpback Whale Special Reporting
Areas established from December 15–
April 15 in its annual training and
testing activity reports submitted to
NMFS.
(D) Humpback Whale Awareness
Notification Message Area (November–
April). The following requirements
apply in the Humpback Whale
Awareness Notification Message Area
established from November–April.
(1) Seasonal awareness notification
message. 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) Vessel instruction. 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) Awareness notification message
use. 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) MF1
surface ship hull-mounted midfrequency active sonar. Except as
provided in paragraph (b)(2)(i)(A)(2) of
this section, within the San Diego Arc,
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5025
San Nicolas Island, and Santa Monica/
Long Beach Mitigation Areas from June
1–October 31, 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) National security exception.
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) Explosives in San Diego Arc
Mitigation Area. 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) National security exception.
Should national security require use of
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 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) Explosives in San Nicolas Island
Mitigation Area. 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) National security exception.
Should national security require use of
explosives that could potentially result
in the take of marine mammals during
mine warfare, large-caliber gunnery,
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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) Explosives in the Santa Monica/
Long Beach Mitigation Area. 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) National security exception.
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) MF1 surface ship
hull-mounted mid-frequency active
sonar or explosives. Except as provided
in paragraph (b)(2)(i)(B)(2) of this
section, within the Santa Barbara Island
Mitigation Area, 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 mediumcaliber or large-caliber gunnery,
torpedo, bombing, and missile
(including 2.75-inch rockets) activities
during training.
(2) National security exception.
Should national security require use of
MF1 surface ship hull-mounted midfrequency 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
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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) Spring Large Whale Awareness
Notification Message—(1) Awareness
notification message. Navy personnel
must issue an awareness notification
message during the spring to alert ships
and aircraft within the eastern Pacific to
the possible presence of concentrations
of large whales, including blue whales,
fin whales, and humpback whales.
(2) Applicable period. This message
must apply to a period that is based on
predicted oceanographic conditions for
a given year.
(3) Marine mammals and vessel
transit. To maintain safety of navigation
and to avoid interactions with large
whales during transits, Navy personnel
must instruct personnel on vessels that
when a marine mammal is spotted, this
may be an indicator that additional
marine mammals are present nearby,
and increased vigilance and awareness
of Navy personnel is warranted.
(4) Platform use of message. 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.
(D) Gray Whale (November–March)
and Fin Whale (November–May)
Awareness Notification Message Areas.
The following requirements apply in the
Gray Whale Awareness Notification
Areas from November–March and Fin
Whale Awareness Notification Message
Areas from November–May.
(1) Seasonal awareness message.
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 gray whales, and fin whales.
(2) Marine mammals and vessel
transit. To maintain safety of navigation
and to avoid interactions with large
whales during transits, Navy personnel
must instruct personnel on vessels to
remain vigilant to the presence of large
whale species.
(3) Platform use of message. 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]
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§ 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 of marine
mammals not identified in § 218.72(b).
(b) Monitoring and reporting under
the LOAs. The Navy must conduct all
monitoring and reporting required
under the LOAs. 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 comply with all
notification and reporting requirements
under the LOAs. The Notification and
Reporting Plan, which sets out
notification, reporting, and other
requirements when dead, injured, or
live stranded marine mammals are
detected. The Notification and
Reporting Plan is available at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities.
(d) Changes in Lookout policies. The
Navy must report changes in its Lookout
policies to NMFS as soon as practicable
after a change is made.
(e) 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 3 months after the end of the
calendar year, or within 3 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,
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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.
(f) 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 1-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
paragraphs (f)(3) through (5) 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 (f)(1) through (9) 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.
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(E) Number and types of passive
acoustic sources used in exercise.
(F) Number and types of vessels,
aircraft, and other platforms
participating in each 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, and 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 (182.9 m), 200 to 500
yd (182.9 to 457.2 m), 500 to 1,000 yd
(457.2 m to 914.4 m), 1,000 to 2,000 yd
(914.4 m to 1,828.8 m), or greater than
2,000 yd (1,828.8 m) from sonar source.
(K) Whether operation of sonar sensor
was delayed, or sonar was powered or
shut down, and the length of 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).
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5027
(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 (182.9
m), 200 to 500 yd (182.9 to 457.2 m),
500 to 1,000 yd (457.2 m to 914.4 m),
1,000 to 2,000 yd (914.4 m to 1,828.8
m), or greater than 2,000 yd (1,828.8 m).
(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:
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(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
Humpback Whale Special Reporting
Area.
(5) Mitigation areas. The Navy must
report any use of restricted acoustic and
explosive sources identified in
§ 218.74(b). 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.
(7) Sonar exercise notification. The
Navy must submit to NMFS (contact as
specified in the LOA) an electronic
report within 15 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.
(8) Large whale aggregations. For each
instance that an aggregation of large
whales (4 or more whales within 1 nmi
(1.9 km)) is reported in the area between
32–33 degrees North and 117.2–119.5
degrees West, Navy personnel must
report the following information and to
the extent practicable, this information
should be provided in the Navy’s
unclassified version of these reports:
(i) Date, time, and general location
(e.g., approximately 10–12 nmi (18.5 to
22.2 km) Southeast of San Clemente
Island) of the whales when the
aggregation was first sighted
(ii) Total number of whales observed
within 1 nmi (1.9 km) of a Navy vessel
that make up the aggregation
(iii) Approximate distance (or
distances if more than 1 group of whales
is sighted) of the vessel from the whales
in the aggregation when the whales
were first sighted.
(9) Foreign military sonar and
explosives. Navy personnel must
confirm that foreign military use of
sonar and explosives, when such
militaries are participating in a U.S.
Navy-led exercise or event, combined
with the U.S. Navy’s use of sonar and
explosives, would not cause exceedance
of the analyzed levels within each
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NAEMO modeled sonar and explosive
bin used for estimating predicted
impacts.
(g) 7-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 7-year total for each sound source
bin with a comparison to the 7-year
allowance. Additionally, if there were
any changes to the sound source
allowance, this report must include a
discussion of why the change was made
and include the analysis to support how
the change did or did not result in a
change in the 2018 HSTT FEIS/OEIS
and final rule determinations. The draft
report must be submitted within 3
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 3 months
of receipt. The report will be considered
final after the Navy has addressed
NMFS’ comments, or 3 months after the
submittal of the draft if NMFS does not
provide comments.
§ 218.76
Letters of Authorization (LOA).
(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))
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.
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(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
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) 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.
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(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.
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(2) 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
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5029
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. 2024–31402 Filed 1–8–25; 4:15 pm]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Proposed Rules]
[Pages 4944-5029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31402]
[[Page 4943]]
Vol. 90
Thursday,
No. 10
January 16, 2025
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 218
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to the U.S. Navy Training and Testing Activities in the Hawaii-Southern
California Training and Testing Study Area; Proposed Rule
Federal Register / Vol. 90, No. 10 / Thursday, January 16, 2025 /
Proposed Rules
[[Page 4944]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 241220-0334]
RIN 0648-BL72
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training and Testing Activities in the
Hawaii-Southern California Training and Testing Study Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of Letters of
Authorization.
-----------------------------------------------------------------------
SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these
regulations pursuant to the Marine Mammal Protection Act (MMPA) to
govern the taking of marine mammals incidental to the training and
testing activities conducted in the Hawaii-Southern California Training
and Testing (HSTT) Study Area between 2018 and 2025. In 2021, two
separate U.S. Navy vessels struck unidentified large whales on two
separate occasions, one whale in June 2021 and one whale in July 2021,
in waters off Southern California. The takes by vessel strike of the
two whales by the U.S. Navy were covered by the existing regulations
and Letters of Authorization (LOAs), which authorize the U.S. Navy to
take up to three large whales by serious injury or mortality by vessel
strike between 2018 and 2025. The Navy reanalyzed the potential of
vessel strike in the HSTT Study Area, including the recent strikes, and
as a result, requested two additional takes of large whales by serious
injury or mortality by vessel strike for the remainder of the current
regulatory period. In May 2023, a U.S. Navy vessel struck a large whale
in waters off Southern California. NMFS reanalyzed the potential for
vessel strike based on new information, including the three strikes,
and authorizes two additional takes of large whales by serious injury
or mortality by vessel strike for the remainder of the current
regulatory period (two takes in addition to the three takes authorized
in the current regulations). The Navy's activities qualify as military
readiness activities pursuant to the MMPA, as amended by the National
Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
DATES: Effective from January 16, 2025 to December 20, 2025.
ADDRESSES: Copies of the Navy's applications, NMFS' proposed and final
rules and subsequent LOAs for these regulations, NMFS' proposed and
final rules and subsequent LOAs for the associated 5-year HSTT Study
Area regulations, other supporting documents cited herein, and a list
of the references cited in this document may be obtained online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case
of problems accessing these documents, please use the contact listed
here (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose of Regulatory Action
These regulations, promulgated under the authority of the MMPA (16
U.S.C. 1361 et seq.), modify previous regulations which allow for the
authorization of take of marine mammals incidental to the Navy's
training and testing activities (which qualify as military readiness
activities) from the use of sonar and other transducers, in-water
detonations, air guns, impact pile driving/vibratory extraction, and
the movement of vessels throughout the HSTT Study Area (50 CFR part
218, subpart H; hereafter ``2020 HSTT regulations'').
NMFS received a request from the Navy to modify the 2020 HSTT
regulations and LOAs to authorize two additional takes of large whales
by serious injury or mortality by vessel strike over the remainder of
the HSTT regulatory period. The 2020 HSTT regulations and LOAs
authorized the incidental take, by serious injury or mortality, of
three large whales by vessel strike. Here, in consideration of the best
available science, including updated information related to vessel
strikes, NMFS analyzes and authorizes the incidental serious injury or
mortality by vessel strike of five large whales over the effective
period of the regulations (December 2018-December 2025). The effective
period remains unchanged from the existing regulations. Further, the
Navy's planned activities remain unchanged; however, this final rule
includes two additional mitigation measures and revision of two
existing mitigation measures to further reduce the probability of
vessel strike, as well as two additional reporting measures (described
below in the Changes from the Proposed Rule to the Final Rule section)
from that included in the 2020 HSTT regulations. With the exception of
these new mitigation measures and revisions to two existing mitigation
measures, the required mitigation and monitoring measures remain
unchanged from the 2020 HSTT regulations.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional taking of small numbers of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity, as well as monitoring and reporting
requirements. Section 101(a)(5)(A) of the MMPA and the implementing
regulations at 50 CFR part 216, subpart I, provide the legal basis for
issuing this final rule and the subsequent LOAs. As directed by this
legal authority, this final rule contains mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Final Rule
The following is a summary of the major provisions of this final
rule regarding the Navy's activities. Major provisions include, but are
not limited to:
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 (16 U.S.C. 1361
et
[[Page 4945]]
seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow,
upon request, the incidental, but not intentional, taking of small
numbers of marine mammals by U.S. citizens who engage in a specified
activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, the public is
provided with notice of the proposed incidental take authorization and
the opportunity to review and submit comments.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in this rulemaking as
``mitigation''); and requirements pertaining to the monitoring and
reporting of such takings. The MMPA defines ``take'' to mean to harass,
hunt, capture, or kill, or attempt to harass, hunt, capture, or kill
any marine mammal. The Analysis and Negligible Impact Determination
section below discusses the definition of ``negligible impact.''
The 2004 NDAA (Pub. L. 108-136) amended section 101(a)(5) of the
MMPA to remove the ``small numbers'' and ``specified geographical
region'' provisions indicated above and amended the definition of
``harassment'' as applied to a ``military readiness activity.'' The
definition of harassment for military readiness activities (section
3(18)(B) of the MMPA) is (i) any act that injures or has the
significant potential to injure a marine mammal or marine mammal stock
in the wild (Level A Harassment); or (ii) any act that disturbs or is
likely to disturb a marine mammal or marine mammal stock in the wild by
causing disruption of natural behavioral patterns, including, but not
limited to, migration, surfacing, nursing, breeding, feeding, or
sheltering, to a point where such behavioral patterns are abandoned or
significantly altered (Level B harassment). In addition, the 2004 NDAA
amended the MMPA as it relates to military readiness activities such
that the least practicable adverse impact analysis shall include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity.
The NDAA for Fiscal Year 2019 (2019 NDAA) (Pub. L. 115-232),
amended the MMPA to allow incidental take rules for military readiness
activities under section 101(a)(5)(A) to be issued for up to 7 years.
Prior to this amendment, all incidental take rules under section
101(a)(5)(A) were limited to 5 years.
Under the MMPA implementing regulations, incidental take
regulations may be modified, in whole or in part, as new information is
developed and after notice and opportunity for public comment (50 CFR
216.105). An LOA must be withdrawn or suspended if, after notice and
opportunity for public comment, NMFS determines that the regulations
are not being substantially complied with, or the taking is having, or
may have, more than a negligible impact on species or stock. (Id. at
216.106(e)). Note, in its application, Navy relied on Sec. Sec.
218.76, and 218.77. These sections outline the process for modification
of an LOA without modifying the applicable incidental take regulation.
These sections do not apply here because the Navy requested
modification of the 2020 HSTT regulations.
Summary of Request
On December 27, 2018, NMFS issued a 5-year final rule governing the
taking of marine mammals incidental to Navy training and testing
activities conducted in the HSTT Study Area (83 FR 66846; hereafter
``2018 HSTT final rule''). Previously, on August 13, 2018, and towards
the end of the time period in which NMFS was processing the Navy's
request for the 2018 regulations, the 2019 NDAA amended the MMPA for
military readiness activities to allow incidental take regulations to
be issued for up to 7 years instead of the previous 5 years. The Navy's
training and testing activities conducted in the HSTT Study Area
qualify as military readiness activities pursuant to the MMPA, as
amended by the 2004 NDAA. On March 11, 2019, the Navy submitted an
application requesting that NMFS extend the 2018 HSTT final rule (83 FR
66846, December 27, 2018) and associated LOAs such that they would
cover take incidental to 7 years of training and testing activities
instead of 5, extending the expiration date from December 20, 2023 to
December 20, 2025. On July 10, 2020, NOAA Fisheries issued regulations
(85 FR 41780) to govern the taking of marine mammals incidental to the
training and testing activities conducted in the HSTT Study Area over
the course of 7 years, effectively extending the effective period from
December 20, 2023 to December 20, 2025.
On March 31, 2022, NMFS received an adequate and complete
application (2022 Navy application) from the Navy requesting that NMFS
modify the existing regulations and LOAs to authorize two additional
takes of large whales by serious injury or mortality by vessel strike
over the remainder of the HSTT authorization period. The 2020 HSTT
regulations (50 CFR part 218, subpart H) and LOAs authorize the take of
marine mammals from the Navy's training and testing activities in the
HSTT Study Area through December 20, 2025. These regulations and LOAs
authorize the take of three large whales by serious injury or mortality
by vessel strike.
The Navy's 2022 request is based upon new information regarding
U.S. Navy vessel strikes off the coast of Southern California. As
described in the 2022 Navy application, in 2021, two separate U.S. Navy
vessels struck unidentified large whales off the coast of Southern
California on two separate occasions, one whale in June 2021 and one
whale in July 2021. Separately, a foreign naval vessel struck two fin
whales off the coast of Southern California in May 2021.
In the 2022 Navy application, the Navy proposed no changes to the
nature of the specified activities covered by the 2020 HSTT final rule.
The Navy stated that the level of activity within and between years
would be consistent with that previously analyzed in the 2020 HSTT
final rule, and all activities would be conducted within the same
boundaries of the HSTT Study Area identified in the 2020 HSTT final
rule. The training and testing activities (e.g., equipment and sources
used, exercises conducted) are identical to those described and
analyzed in the 2020 HSTT final rule, and the mitigation, monitoring,
and reporting measures are similar to those described and analyzed in
the 2020 HSTT final rule. The only changes included in the Navy's
request are for additional take by serious injury or mortality by
vessel strike.
The Navy's mission is to organize, train, equip, and maintain
combat-ready naval forces capable of winning wars, deterring
aggression, and maintaining freedom of the seas. This mission is
mandated by Federal law (10 U.S.C. 8062), which ensures the readiness
of the naval forces of the United States. The Navy executes this
responsibility by establishing and executing training programs,
including at-sea training and exercises, and ensuring naval forces
[[Page 4946]]
have access to the ranges, operating areas (OPAREAs), and airspace
needed to develop and maintain skills for conducting naval activities.
For a summary of the training and testing activities within the
HSTT Study Area, see the Navy's previous rulemaking and LOA
applications submitted for HSTT Phase III activities (October 13, 2017
initial rulemaking and LOA application (hereafter ``2017 Navy
application'') and March 11, 2019 extension rulemaking and LOA
application (hereafter ``2019 Navy application'')) and the 2020 HSTT
regulations that were subsequently promulgated, which can be found at:
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 2022 Navy application and this rule
cover training and testing activities that would occur over the
remainder of the effective period of the current regulations, valid
from the publication date of this final rule through December 20, 2025.
Summary of the Regulations
NMFS is modifying the incidental take regulations and associated
LOAs to cover the same Navy activities covered by the 2020 HSTT
regulations but authorize five takes of large whales by serious injury
or mortality by vessel strike (two takes in addition to the three takes
authorized in the 2020 HSTT regulations). In its 2022 application, the
Navy proposed no additional changes and explained that its training and
testing activities, including the level of vessel use, remain
unchanged. Nearly all mitigation, monitoring, and reporting measures
remain unchanged from the 2020 HSTT regulations (85 FR 41780, July 10,
2020) with the exception of two additional mitigation measures (see the
Mitigation Measures section of this final rule), revision of two
existing mitigation measures (see the Mitigation Measures section of
this final rule), and two additional reporting measures resulting from
discussions between the Navy and NMFS (see the Reporting section of
this final rule).
In response to the Navy's request, we focus our analysis on the new
information related to vessel strike. We also review any new
information that may be pertinent to our analysis of the impacts from
all other activities that comprise Navy's specified activity, and our
analysis of mitigation, monitoring, and reporting. Where there is any
new information pertinent to the descriptions, analyses, or findings
required to authorize the incidental take for military readiness
activities under MMPA section 101(a)(5)(A), that information is
provided in the appropriate sections below. Where there is no new
information or any new information does not change our previous
analysis or findings, we indicate as such and refer the reader to the
original analysis in the 2018 HSTT proposed and final rule, 2020 HSTT
final rule or the 2019 HSTT Final Environmental Impact Statement
(FEIS)/Overseas Environmental Impact Statement (OEIS).
After reviewing all new information and as discussed below, we
largely find that our previous analyses and findings remain current and
applicable. For vessel strike, we provide a new analysis and authorize
two additional takes of large whales, for a total of five takes by
serious injury or mortality by vessel strike over the 7-year period. We
authorize these additional takes after analyzing the best available
scientific information and after considering the effects of the entire
specified activity and the total taking as required by MMPA section
101(a)(5)(A). When setting forth the permissible methods of taking
pursuant to the activity and other means of effecting the least
practicable adverse impact on the species or stock, we require new and
modified mitigation and also consider whether to require any new or
modified mitigation for the entire specified activity.
The regulatory language included at the end of this final rule,
which is published at 50 CFR part 218, subpart H, remains largely the
same as that under the HSTT 2020 regulations, except for a small number
of technical changes related to the Navy's 2022 request, new and
revised mitigation measures, and two new reporting measures. Therefore,
in this final rule, we refer the reader to complete analyses described
in the 2018 HSTT final rule or an updated analysis in the 2020 HSTT
final rule, where appropriate.
Below is a list of the regulatory documents referenced in this
final rule. The list indicates the short name by which the document is
referenced in this final rule as well as the full titles of the cited
documents. All of the documents can be found at: https://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; 2018 HSTT proposed
rule);
NMFS December 27, 2018, Hawaii-Southern California
Training and Testing (HSTT) final rule (83 FR 66846; 2018 HSTT final
rule);
NMFS September 13, 2019, Hawaii-Southern California
Training and Testing (HSTT) proposed rule (84 FR 48388; 2019 HSTT
proposed rule);
NMFS July 10, 2020, Hawaii-Southern California Training
and Testing (HSTT) final rule (85 FR 41780; 2020 HSTT final rule);
NMFS October 3, 2023, Hawaii-Southern California Training
and Testing (HSTT) proposed rule (88 FR 68290; 2023 HSTT proposed
rule);
Navy October 13, 2017, MMPA rulemaking and LOA application
(2017 Navy application);
Navy March 11, 2019, MMPA rulemaking and LOA extension
application (2019 Navy application);
Navy March 31, 2022, MMPA rulemaking and LOA revision
application (2022 Navy application); and
October 26, 2018, Hawaii-Southern California Training and
Testing (HSTT) Final Environmental Impact Statement/Overseas
Environmental Impact Statement (FEIS/OEIS) (2018 HSTT FEIS/OEIS).
Description of the Specified Activity
The Navy requested authorization to take marine mammals incidental
to conducting training and testing activities. The Navy has determined
that acoustic and explosives stressors are most likely to result in
impacts on marine mammals that could rise to the level of harassment.
In addition to take by harassment, the Navy has determined that vessel
movement may result in serious injury or mortality to marine mammals.
Detailed descriptions of these activities are provided in chapter 2 of
the 2018 HSTT FEIS/OEIS and in the 2017 Navy application.
Overview of Training and Testing Activities
The Navy routinely trains in the HSTT Study Area in preparation for
national defense missions. Training and testing activities and
components covered in the 2022 Navy application are described in detail
in the Overview of Training and Testing Activities sections of the 2018
HSTT proposed rule, the 2018 HSTT final rule, and chapter 2
(Description of Proposed Action and Alternatives) of the 2018 HSTT
FEIS/OEIS (https://www.hstteis.com/). Each military training and testing
activity described meets mandated Fleet requirements to deploy ready
forces. The Navy proposed no changes to the specified activities
[[Page 4947]]
described and analyzed in the 2018 HSTT final rule and subsequent 2020
HSTT final rule. The boundaries of the HSTT Study Area (see figure 2-1
of the 2019 Navy application); the dates and duration of the
activities; and the training and testing activities (e.g., equipment
and sources used, exercises conducted) analyzed in this final rule are
identical to those described and analyzed in the 2020 HSTT final rule
and therefore, are not repeated herein. Please see the 2020 HSTT final
rule for more information. The manner of vessel movement presented in
this final rule is also identical to that analyzed in the 2020 HSTT
final rule.
Vessel Strike
Vessel strikes are not specific to any particular training or
testing activity but rather, a limited, sporadic, and incidental result
of Navy vessel movement within the HSTT Study Area. Vessel strikes from
commercial, recreational, and military vessels are known to seriously
injure and occasionally kill cetaceans (Abramson et al. 2011; Berman-
Kowalewski et al. 2010; Calambokidis, 2012; Douglas et al. 2008;
Laggner, 2009; Lammers et al. 2003; Van der Hoop et al. 2012; Van der
Hoop et al. 2013; Crum et al. 2019), although reviews of the literature
on vessel strikes mainly involve collisions between commercial vessels
and whales (Jensen and Silber, 2003; Laist et al. 2001). Vessel speed,
size, and mass are all important factors in determining both the
potential likelihood and impacts of a vessel strike to marine mammals
(Conn and Silber, 2013; Gende et al. 2011; Silber et al. 2010;
Vanderlaan and Taggart, 2007; Wiley et al. 2016). For large vessels,
speed and angle of approach can influence the severity of a strike.
Navy vessels transit at speeds that are optimal for fuel
conservation or to meet training and testing requirements. Small craft
(for purposes of this analysis, less than 18 meters (m) in length) have
much more variable speeds (0-50+ knots (kn; 0-92.6 kilometers (km) per
hour), dependent on the activity). Submarines generally operate at
speeds in the range of 8-13 kn (14.8-24.1 km per hour), and the average
speed of large Navy ships range between 10 and 15 kn (18.5 and 27.8 km
per hour). While these speeds are considered averages and
representative of most events, some vessels need to operate outside of
these parameters for certain times or during certain activities. For
example, to produce the required relative wind speed over the flight
deck, an aircraft carrier engaged in flight operations must adjust its
speed through the water accordingly. Also, there are other instances
when vessels would be dead in the water or moving slowly ahead to
maintain steerage, such as launch and recovery of a small rigid hull
inflatable boat; vessel boarding, search, and seizure training events;
or retrieval of a target. There are a few specific events, including
high-speed tests of newly constructed vessels, where vessels would
operate at higher speeds. By comparison, this is slower than most
commercial vessels where full speed for a container ship is typically
24 kn (44.4 km per hour; Bonney and Leach, 2010).
Large Navy vessels (greater than 18 m in length) within the
offshore areas of range complexes and testing ranges operate
differently from commercial vessels in ways that may reduce the
probability of whale collisions. Surface ships operated by or for the
Navy have multiple personnel assigned to stand watch at all times when
a ship or surfaced submarine is moving through the water (underway). A
primary duty of personnel standing watch on surface ships is to detect
and report all objects and disturbances sighted in the water that may
indicate a threat to the vessel and its crew, such as debris, a
periscope, surfaced submarine, or surface disturbance. Per vessel
safety requirements, personnel standing watch also report any marine
mammals sighted in the path of the vessel as a standard collision
avoidance procedure. All vessels proceed at a safe speed so they can
take proper and effective action to avoid a collision with any sighted
object or disturbance and can be stopped within a distance appropriate
to the prevailing circumstances and conditions. As described in the
Standard Operating Procedures section, the Navy utilizes Lookouts to
avoid collisions, and Lookouts are also trained to spot marine mammals
so that vessels may change course or take other appropriate action to
avoid collisions. Should a vessel strike occur, we consider that it
would likely result in incidental take in the form of serious injury
and/or mortality and, accordingly, for the purposes of the analysis, we
assume that any vessel strike would result in serious injury or
mortality.
The Navy proposed no changes to the nature of the specified
activities, the training and testing activities, the manner of vessel
movement, the speeds at which vessels operate, the number of vessels
that would be used during various activities, or the locations in which
Navy vessel activity would be concentrated within the HSTT Study Area
described in the 2018 HSTT final rule and referenced in the 2020 HSTT
final rule.
Vessel Movement
Vessels used as part of the planned activities include ships,
submarines, unmanned vessels, and boats ranging in size from small, 22
feet (ft; 7 m) rigid hull inflatable boats to aircraft carriers with
lengths up to 1,092 ft (333 m). The average speed of large Navy ships
ranges between 10 and 15 kn (18.5 and 27.8 km per hour) and submarines
generally operate at speeds in the range of 8-13 kn (14.8-24.1 km per
hour) while a few specialized vessels can travel at faster speeds.
Small craft (for purposes of this analysis, less than 18 m in length)
have much more variable speeds (0-50+ kn (0-92.6 km per hour),
dependent on the activity) but generally range from 10 to 14 kn (18.5
to 25.9 km per hour). From unpublished Navy data, average median speed
for large Navy ships in the HSTT Study Area from 2011-2015 varied from
5-10 knots (kn; 9.2-18.5 km per hour) with variations by ship class and
location (i.e., slower speeds close to the coast). While these speeds
for large and small craft are representative of most events, some
vessels need to temporarily operate outside of these parameters.
Typical speed of Navy vessels in HSTT core high use areas from 2014-
2018 were between 10 and 15 kn (18.5 and 27.8 km per hour; Starcovic
and Mintz 2021). This core area is a region including the approaches to
San Diego, and immediate offshore areas west of San Diego, centered
north and south of San Clemente Island. A full description of Navy
vessels that are used during training and testing activities can be
found in the 2017 Navy application and chapter 2 (Description of
Proposed Action and Alternatives) of the 2018 HSTT FEIS/OEIS.
The number of Navy vessels used in the HSTT Study Area varies based
on military training and testing requirements, deployment schedules,
annual budgets, and other dynamic factors. Most training and testing
activities involve the use of vessels. These activities could be widely
dispersed throughout the HSTT Study Area but would typically be
conducted near naval ports, piers, and range areas. Navy vessel traffic
would be especially concentrated near San Diego, California and Pearl
Harbor, Hawaii. Based on historical data, we anticipate the annual
number of at-sea hours by U.S. Navy vessels in the HSTT action area
will be around 26,800 hours per year (Starcovic and Mintz 2021). We
expect that about 25 percent of this vessel activity would occur within
the Hawaii Range Complex
[[Page 4948]]
(HRC) and 75 percent within the Southern California Range Complex
(SOCAL; Mintz 2016). There is no seasonal differentiation in Navy
vessel use because of continual operational requirements from Combatant
Commanders. The majority of large vessel traffic occurs between the
installations and the OPAREAs. The transit corridor, notionally defined
by the great circle route (e.g., shortest distance) from San Diego to
the center of the HRC, as depicted in the 2018 HSTT FEIS/OEIS, is
generally used by ships transiting between SOCAL and HRC. While in
transit, ships and aircraft would, at times, conduct basic and routine
unit-level activities such as gunnery, bombing, and sonar training and
maintenance. Of note, support craft would be more concentrated in the
coastal waters in the areas of naval installations, ports, and ranges.
Activities involving vessel movements occur intermittently and are
variable in duration, ranging from a few hours up to weeks. More
information on Navy and non-Navy vessel traffic patterns in the HSTT
Study Area may be found in several studies prepared by the Navy
(Starcovic and Mintz 2021; Mintz, 2016; Mintz and Filadelfo, 2011;
Mintz, 2012; Mintz and Parker, 2006).
Foreign Navies
In addition, we note that in some cases, foreign militaries may
participate in U.S. Navy training or testing activities in the HSTT
Study Area. The Navy does not consider these foreign military
activities as part of the ``specified activity'' under the MMPA, and
NMFS defers to the applicant to describe the scope of its request for
an authorization.
The participation of foreign navies varies from year to year, but
overall is infrequent compared with Navy's total training and testing
activities. The most significant joint training event is the Rim of the
Pacific (RIMPAC), a multi-national training exercise held every-other-
year primarily in the HRC. The participation level of foreign military
vessels in U.S. Navy-led training or testing events within the HRC and
within SOCAL differs greatly between RIMPAC and non-RIMPAC years. For
example, in 2019 (a non-RIMPAC year), there were 0.1 foreign navy
surface vessel at-sea days (i.e., 1 day = 24 hours) within HRC and 20
foreign navy at-sea days within SOCAL (Navy 2021). Out of 56 U.S.-led
training events in 2019, 4 involved foreign navy vessels, with an
average time per event of 8.7 hours. In 2020, a RIMPAC year, foreign
vessels participating in U.S. Navy-led events accounted for 32 at-sea
days in the HRC from August through September (some of this activity
occurred after the RIMPAC exercise). During RIMPAC 2022, foreign
vessels operated and/or transited through the HRC for 576 hours (24
days). In 2023 (another non-RIMPAC year), there was no foreign vessel
participation within SOCAL. Even in a RIMPAC year, the days at sea for
foreign militaries engaged in a Navy-led training or testing activity
accounts for a small, but variable, percentage compared to the U.S.
Navy activities. For instance, the 2020 foreign military participation
(a RIMPAC-year) was 1.5 percent of the U.S. Navy's average days at sea
(32 days out of an estimated 2,056 days at sea). During RIMPAC 2024,
twenty-five foreign surface vessels participated for a combined 5,000
hours in U.S.-led training events. Therefore, foreign surface vessel
activity is estimated to conservatively account for up to 10 percent of
the U.S. Navy's annual at sea time in HSTT (205 days out of an
estimated 2,056 days at sea).
According to the U.S. Navy, consistent with customary international
law, when a foreign military vessel participates in a U.S. Navy
exercise within the U.S. territorial sea (i.e., 0 to 12 nautical miles
(nmi; 0 to 22.2 km) from shore), the U.S. Navy will request that the
foreign vessel follow the U.S. Navy's mitigation measures for that
particular event. When a foreign military vessel participates in a U.S.
Navy exercise beyond the U.S. territorial sea but within the U.S.
Exclusive Economic Zone, the U.S. Navy will encourage the foreign
vessel to follow the U.S. Navy's mitigation measures for that
particular event (Navy 2022a; Navy 2022b). In either scenario (i.e.,
both within and beyond the territorial sea), U.S. Navy personnel will
provide the foreign vessels participating with a description of the
mitigation measures to follow.
According to the U.S. Navy, the May 2021 vessel strike of two fin
whales by an Australian navy vessel did not occur while that vessel was
participating in a U.S. Navy-led training exercise. The Royal
Australian Navy vessel was adhering to its standard operating
procedures at the time of the strike. The Royal Australian Navy
provided a report of the incident, which is discussed below to inform
our analysis.
NMFS analyzes the effects of these foreign military activities.
First, effects of all past foreign military activities are captured in
the baseline for the analysis, through marine mammal abundance
estimates and population trends found in the Stock Assessment Reports
(SARs). Second, NMFS considers foreign military activities, including
recent strikes, qualitatively in this final rule. For instance, in
preparing this rulemaking, NMFS and the U.S. Navy discussed the nature,
frequency, and control over joint or U.S. Navy-led training and testing
activities with foreign entities to identify opportunities to encourage
foreign militaries to adopt mitigation. NMFS and the U.S. Navy examined
the Royal Australian Navy 2021 strike report for any lessons that could
inform U.S. Navy strike mitigation. NMFS considered the Royal
Australian Navy strikes along with other recent U.S. Navy strikes to
determine whether these strikes indicate an increased risk of strike by
the U.S. Navy in this region during the early summer months. NMFS also
considered the species struck in this incident, fin whales, along with
other literature, when considering the likelihood of certain species to
be struck by the U.S. Navy. NMFS considered the fact that two fin
whales were struck by the Royal Australian Navy qualitatively when
considering other fin whale population and mortality trends, as well as
the authorized take, as part of the negligible impact analysis.
This final rule includes a new reporting measure that requires that
the Navy's annual HSTT reports shall include confirmation that foreign
military use of sonar and explosives, when such militaries are
participating in a U.S. Navy-led exercise or event, combined with the
U.S. Navy's use of sonar and explosives, would not cause exceedance of
the analyzed levels (within each Navy Acoustic Effects Model (NAEMO)
modeled sonar and explosive bin) used for estimating predicted impacts,
which formed the basis of our acoustic impacts effects analysis that
was used to estimate take in this final rule. This new reporting
measure will allow NMFS to ensure that its analysis remains valid.
Standard Operating Procedures
For training and testing to be effective, personnel must be able to
safely use their sensors and weapon systems as they are intended to be
used in a real-world situation and to their optimum capabilities. While
standard operating procedures (SOPs) are designed for the safety of
personnel and equipment and to ensure the success of training and
testing activities, their implementation often yields additional
benefits on environmental, socioeconomic, public health and safety, and
cultural resources. Because SOPs are essential to safety and mission
success, the Navy considers them to be part of the proposed activities
under the National Environmental Policy Act
[[Page 4949]]
(NEPA) and included them in the environmental analysis. We consider
SOPs as part of Navy's specified activity for the purposes of MMPA but
also, where procedures are utilized (even in part) to reduce impacts to
marine mammal species and Navy's commitment to follow the measures are
practicable, certain SOPs may also be required as mitigation. Details
on SOPs were provided in the 2018 HSTT proposed rule; please see the
2018 HSTT proposed rule, the 2017 Navy application, and chapter 2
(Description of Proposed Action and Alternatives) of the 2018 HSTT
FEIS/OEIS for more information.
As stated in its 2022 application, in 2018, the Navy updated its
SOPs related to vessel safety to incorporate revised procedures
regarding Lookouts for certain ship classes as per the 2021 Surface
Ship Navigation Department Organization and Regulations Manual
(NAVDORM). The 2021 NAVDORM requires the use of three Lookouts on Navy
cruisers and destroyers as compared to the previous requirement of one
Lookout when a vessel was underway and not engaged in sonar training or
testing. However, as discussed in the Mitigation Measures section
below, the Navy informed NMFS that requiring the additional Lookouts as
mitigation is not practicable because this SOP may change in response
to manning issues and national security needs. Further, since
submission of its 2022 application, the Navy has updated its Lookout
Training Handbook and implemented other training improvements, as
described in the Mitigation Measures section (September 2022).
Comments and Responses
We published a proposed rule in the Federal Register on October 3,
2023 (88 FR 68290), with a 45-day comment period. That notice
described, in detail, Navy's request for modification of the 2020 HSTT
final rule and LOAs, new information regarding the occurrence of large
whale strikes by naval vessels in the southern California portion of
the HSTT Study Area and NMFS' proposal to authorize two additional
takes of large whales by serious injury or mortality. In that notice,
we requested public input on the proposed promulgation of modified
regulations and associated LOAs for the Navy governing this additional
incidental taking of marine mammals. During the 45-day comment period,
we received 20 comment submissions. Of this total, one submission was
from a non-governmental organization (NGO) and the remainder were from
private citizens. NMFS has reviewed and considered all public comments
received on the proposed rule and issuance of the LOAs. All substantive
comments and our responses are described below. We organize our comment
responses by major categories.
Take Estimates
Comment 1: A commenter recommended ensuring that any modifications
to existing regulations or authorizations are based on recent and
rigorous scientific evaluations. This can be achieved by conducting
regular environmental impact assessments to account for changes in
marine mammal populations and habitat conditions.
Response: NMFS concurs with the commenter that modifications to
existing regulations or authorizations must be based on rigorous
scientific evaluations. NMFS has conducted a rigorous scientific
evaluation in the promulgation of this rulemaking and has used the best
available science to inform its analysis. These final regulations and
LOAs include reporting provisions to ensure compliance and that the
most value is obtained from the required monitoring. Monitoring results
are considered annually through the adaptive management process
described in the Adaptive Management section herein. Further,
incidental take authorizations for military readiness activities can be
effective for no more than 7 years. Therefore, at minimum, NMFS must
reconduct its analysis every 7 years, and in doing so, it considers
changes in marine mammal populations and habitats in its analyses.
However, during the effective period of an LOA(s), if NMFS were to find
that the Navy's activities are having more than a negligible impact on
a species or stock, NMFS is required to withdraw or suspend the LOA(s)
for a certain time (16 U.S.C. 1371(a)(5)(B)).
Comment 2: A commenter stated that the 2022 Navy application is
based on 50 CFR 216.015 [the commenter is likely referring to section
216.105], which allows incidental take regulations to ``be modified, in
whole or in part, as new information is developed.'' The commenter
asserted that the only ``new information'' in the 2022 application is
the information that the Navy has already reached its 7-year take limit
and that failure to meet our own standards does not constitute ``new
information'' in the sense of 50 CFR 216.015. The commenter stated that
``new information'' for this purpose would be either (1) evidence that
allowing two additional takes (and relaxing mitigation procedures as
requested in the application) during this time period will have no
impact on threatened cetacean populations or (2) a dramatic increase in
the level of military activity in HSTT.
Response: The MMPA provides for the authorization of incidental
take caused by specified activities at the request of an applicant,
provided certain findings are made. The law directs NMFS to process
adequate and complete applications for incidental take authorization,
and issue the authorization provided all statutory findings and
requirements, as well as all associated legal requirements, are met.
Under 50 CFR 216.105, as new information is developed, through
monitoring, reporting, or research, the regulations may be modified, in
whole or in part, after notice and opportunity for public review. On
March 31, 2022, NMFS received an adequate and complete application from
the Navy requesting that NMFS modify the existing regulations and LOAs
to authorize two additional takes of large whales by serious injury or
mortality by vessel strike over the remainder of the HSTT regulatory
period based on probabilities derived from a Poisson distribution using
new vessel strike data between 2009-2021 in the HSTT Study Area, as
well as historical at-sea days in the HSTT Study Area from 2009-2015
and estimated at-sea days for the period from 2016 to 2025, informed by
monitoring and reporting. NMFS independently analyzed the request based
on updated vessel strike data and days-at-sea, as well as using updated
probability methodology, and also determined that the strike of up to
two large whales could occur over the remaining duration of the
regulations. NMFS, following its own analysis and proposed rule, has
determined it is appropriate to promulgate a revised final rule and
LOAs pursuant to 16 U.S.C. 1371(a)(5)(A) and 50 CFR 216.105.
Comment 3: A commenter stated that Kuehne et al. (2020), referenced
in the 2023 HSTT proposed rule (88 FR 68290, October 3, 2023),
indicates that noise from Navy aircraft penetrates more deeply into the
water than the Navy or NMFS considered in their analyses. The commenter
stated that the study found that noise from aircraft can permeate the
water to at least 30 m and that the detected noise level (134 3 dB re 1 [mu]Pa rms) exceeds volumes that can cause behavioral
changes in marine mammals (Houser et al. 2013; Kastelein et al. 2012;
Kuehne et al. 2020; Williams et al. 2002). The commenter asserted that,
therefore, the Navy's reliance on this paper to assert that aircrafts
do not impact marine mammals is misplaced, and the proposed rule's
dismissal of the
[[Page 4950]]
study because it ``did not include behavioral observations of wildlife,
and the authors' conclusions about potential impacts to wildlife were
unsupported by data from the study'' ignores the valid bases for these
conclusions.
Response: NMFS disagrees with the commenter that Kuehne et al.
(2020) shows impacts to marine mammals from Navy's HSTT activities that
were not considered by NMFS and the Navy in their respective analyses.
As stated in the comment, the strongest one-second window of underwater
sound measured by Kuehne et al. (2020) was 134 3 dB RMS re
1 [mu]Pa rms at 30 m below the sea surface. While sound levels between
the hydrophone and the surface may have been stronger than those
measured at 30 m (Kuehne et al. 2020), for the reasons discussed in the
2023 HSTT proposed rule, there is no new information presented in this
study to indicate that exposures closer to the surface or in air would
have resulted in behavioral responses that would qualify as take by
Level B harassment.
We conclude that the information presented in Kuehne et al. (2020)
does not reveal effects of the action on marine mammals in a manner or
to an extent not already considered. We reiterate that NMFS reviewed
the Navy's analysis and conclusions that aircraft noise will not result
in incidental take of marine mammals and finds the analysis and
conclusions remain complete and supportable, as stated in the 2018 HSTT
final rule and in the 2023 HSTT proposed rule (88 FR 68290, October 3,
2023). Please see section 3.7 (Marine Mammals) of the 2018 HSTT FEIS/
OEIS for additional information. Of note, even if the sound level in
the water were to exceed the Level B harassment threshold, a marine
mammal would need to cross the path of the aircraft while the animal is
relatively close to the surface in order for a take to occur, which is
unlikely.
In addition to Kuehne et al. (2020), the commenter referenced
several other studies that it described as indicating that other Navy
activities in the HSTT Study Area may affect listed species to an
extent not previously considered. These studies include Goldbogen et
al. (2013), Pirotta et al. (2019), Pirotta et al. (2021), Pirotta et al
(2022), Simonis et al. (2020), Southall et al. (2019), Southall et al.
(2021), and Szesciorka et al. (2019). NMFS considered Pirotta et al.
(2021), Pirotta et al. (2022), and Southall et al. (2021) in its 2023
HSTT proposed rule (88 FR 68290, October 3, 2023). NMFS considered
Goldbogen et al. (2013) in the 2018 HSTT proposed rule (83 FR 29872,
June 26, 2018) and 2018 HSTT final rule (83 FR 66846, December 27,
2018), and NMFS considered Southall et al. (2019) in the 2019 HSTT
proposed rule (84 FR 48388, September 13, 2019). Pirotta et al. (2019)
found that environmental changes could severely affect a population's
vital rates, but that, depending on the context of a disturbance,
individuals were tolerant of anthropogenic disturbance. Simonis et al.
(2020) correlated strandings in the Mariana islands with naval
activities. NMFS is aware of this study and has considered it along
with global information related to the correlation of sonar with
strandings in our analysis. In a case study of a close vessel encounter
with a blue whale, Szesciorka et al. (2019) noted that the ship's
reduced speed (i.e., 11.3 kn (20.9 km per hour)) may have played a role
by giving the whale enough time to respond to the nearby vessel and
that higher vessel speeds increase the risk that a whale could have
been struck at the surface or get close enough to the ship's draft that
the propeller suction effect created by the ship's hydrodynamic flow
could pull the whale toward the hull. Additionally, feeding whales may
be distracted and thus be less capable of detecting and avoiding
approaching vessels (Szesciorka et al. 2019). NMFS determined that the
information presented in these studies does not substantively affect
our analysis of impacts on marine mammals and their habitat that
appeared in the 2023 HSTT proposed rule, all of which remains
applicable and valid for our assessment of the effects of the Navy's
activities during the 7-year period of this final rule. Please see
NMFS' response to Comment 14 regarding vessel speed restrictions.
Comment 4: A commenter expressed support for Navy use of marine
mammals for military purposes through its Marine Mammal Program.
However, the commenter stated that to ``take'' mammals simply as a
training opportunity via severe injury or mortality is unethical and to
allow the killing of innocent animals as cross-fire or training
shouldn't be tolerated.
Response: The actions the Navy takes through its Marine Mammal
Program are outside the scope of this action; we note that no animals
are intentionally exposed to serious injury or mortality through that
program. For additional information about the Navy's Marine Mammal
Program, please see the Navy's website at https://www.niwcpacific.navy.mil/About/Departments/Intelligence-Surveillance-and-Reconnaissance/Marine-Mammal-Program/.
Comment 5: A commenter stated that the recent whale deaths indicate
that (1) NMFS' earlier assumptions that vessel strikes would be
unlikely and easily detected if they did occur were proven wrong, (2)
vessel strikes are occurring at rates well-above that analyzed in NMFS'
analyses, (3) whales cannot avoid vessel strike at the level NMFS
assumed in issuing the regulations, (4) and that sonar affects blue
whales in ways not adequately considered.
Response: In the 2018 HSTT final rule, 2020 HSTT final rule, and
2023 HSTT proposed rule, NMFS described why a strike by a Navy vessel
is unlikely in comparison to a strike by a non-Navy vessel, and that,
overall, it is unlikely that the Navy would hit a large whale for these
reasons. However, even in consideration of these factors that make
vessel strike unlikely, given the history of vessel strike by the U.S.
Navy in the HSTT Study Area, NMFS, in the 2018 and 2020 HSTT final
rules concluded that vessel strikes could occur and that authorization
of three takes by vessel strike was appropriate. Therefore, NMFS
disagrees that the recent vessel strikes disprove NMFS' assumption that
vessel strikes would be unlikely.
To date, NMFS is aware of three confirmed vessel strikes of large
whales by U.S. Navy vessels during the current regulatory period.
Therefore, the strikes that have occurred to date have been within what
NMFS anticipated could occur, though, NMFS' current analysis suggests
that two additional strikes may occur during the current regulatory
period based on the best available scientific information since
promulgation of the 2020 HSTT final rule.
NMFS further disagrees that the recent vessel strikes disprove
NMFS' assumption that vessel strikes would be detected if they did
occur. As demonstrated by the June 2021, July 2021, and May 2023 U.S.
Navy strikes, NMFS is confident that whales struck by Navy vessels are
detected and reported, and Navy strikes are the numbers used in NMFS'
analysis to support the authorized number of strikes. Navy ships have
multiple Lookouts, including on the forward part of the ship that can
visually detect a hit whale (which has occasionally occurred), in the
unlikely event ship personnel do not feel the strike. The Navy's strict
internal procedures and mitigation requirements include reporting of
any vessel strikes of marine mammals, and the Navy's discipline,
extensive training (not only for detecting marine mammals but for
detecting and reporting any potential navigational obstruction), and
strict
[[Page 4951]]
chain of command give NMFS a high level of confidence that all strikes
are reported. Accordingly, NMFS is confident that the information used
to support the analysis is accurate and complete. Regarding the 2021
Royal Australian Navy vessel strikes, while the U.S. Navy cannot
speculate on the configurations of other ships bows and even sonar dome
specifications (that may be at the bow), the Navy believes it would be
implausible for a marine mammal to become lodged on the sonar dome of a
U.S. Navy ship and remain undetected due to a technological standard
operating procedure.
While the 2018 HSTT final rule, the 2020 HSTT final rule, and this
final rule include mitigation to reduce the potential for vessel
strike, NMFS neither states nor implies vessel strike avoidance of a
particular ``level''. However, it is important that NMFS and the Navy
consider the new information regarding vessel strikes in southern
California consistent with 50 CFR 216.105(c). Consideration of this new
information in an updated analysis allows NMFS to reassess its
negligible impact determination and to determine whether additional
potential mortality would still constitute a negligible impact on the
potentially affected stocks, as it has determined would be the case
here.
The commenter referenced several studies related to blue whales and
sonar. Please see NMFS' response to Comment 3.
Comment 6: A commenter stated that NMFS should deny the Navy's
request for authorization of two additional takes of large whales by
vessel strike because for at least two of the impacted marine mammal
stocks (Eastern North Pacific stock of blue whale and Central America/
Southern Mexico--California/Oregon/Washington stock of humpback whale)
mortality and serious injury already exceeds potential biological
removal (PBR). The commenter stated that NMFS' reasoning for
authorizing the take amounts to ``take by a thousand cuts'' and defies
the stated purpose and objectives of the MMPA.
A commenter stated that NMFS may allow take of marine mammals
incidental to military readiness activities only if the taking will
have a ``negligible impact'' on an affected species or stock. The
commenter further stated that as one court has explained, ``[b]ecause
any mortality level that exceeds PBR will not allow the stock to reach
or maintain its optimum sustainable population (`OSP'), such a
mortality level could not be said to have only a `negligible impact' on
the stock.'' (See Conservation Council for Hawai'i v. Nat'l Marine
Fisheries Serv., 97 F. Supp. 3d 1210, 1225 (D. Haw. 2015); see also 54
FR 40338, 40341, 40342 (Sept. 29, 1989) (``In order to make a
negligible impact finding, the proposed incidental take must not
prevent a depleted population from increasing toward its OSP.'')).
Indeed, NMFS itself has previously recognized that when mortality of a
species is above its PBR, ``a negligible impact finding under section
101(a)(5)(A) cannot be made'' (61 FR 54,157, October 17, 1996).
Response: The commenter is correct that PBR for the Eastern North
Pacific stock of blue whales and the Central America/Southern Mexico--
California/Oregon/Washington stock of humpback whales is currently
exceeded. However, NMFS is not authorizing take by mortality of the
Central America/Southern Mexico--California/Oregon/Washington stock of
humpback whales. In this final rule, NMFS is authorizing take of the
Mainland Mexico-CA/OR/WA stock of humpback whale, and PBR is not
exceeded for this stock. A stock's PBR is part of the best scientific
information available and therefore, is considered in the negligible
impact determination (see Conservation Council for Hawai'i v. Nat'l
Marine Fisheries Serv., 97 F. Supp. 3d 1210, 1228 (D. Haw. 2015)).
However, exceedance of PBR does not inherently imply that a negligible
impact determination cannot be made for an authorization that includes
mortality or serious injury (M/SI) of that stock. As explained in the
Serious Injury or Mortality subsection of the Analysis and Negligible
Impact Determination section of the 2018 HSTT final rule and 2020 HSTT
final rule, and referenced in the same section of this final rule, in
the commercial fisheries setting for Endangered Species Act (ESA)-
listed marine mammals (which is similar to the non-fisheries incidental
take setting, in that a negligible impact determination is required
that is based on the assessment of take caused by the activity being
analyzed), NMFS may find the impact of the authorized take from a
specified activity to be negligible even if total human-caused
mortality exceeds PBR, if the authorized mortality is less than 10
percent of PBR and management measures are being taken to address
serious injuries and mortalities from the other activities causing
mortality (i.e., other than the specified activities covered by the
incidental take authorization in consideration). When those
considerations are applied in the section 101(a)(5)(A) context here,
the authorized lethal take (0.14 annually) of blue whales from the
Eastern North Pacific stock is less than 10 percent of PBR (4.1) and
there are management measures in place to address the mortality and
serious injury from the activities other than those the Navy is
conducting. For the complete discussion of how NMFS carefully
considered potential mortalities from the Navy's activities in light of
PBR levels, including an explanation for why mortality above PBR will
not necessarily induce population-level non-negligible impacts, see the
discussion in the Analysis and Negligible Impact Determination section
of this rule, the 2020 HSTT final rule, and the 2018 HSTT final rule.
The commenter references a 1996 NMFS notice of receipt and request
for comments (61 FR 54,157; October 17, 1996) that stated that a
negligible impact finding under section 101(a)(5)(A) could not be made
where PBR for the North Atlantic right whale stock was 0.4. The method
that NMFS has articulated herein to evaluate negligible impact of
potential mortality was adopted in 1999 to evaluate negligible impact
pursuant to MMPA section 101(a)(5)(E). NMFS uses these same criteria
adopted in 1999 to inform (i.e., it is not the sole factor considered)
our negligible impact analysis of potential mortality under section
101(a)(5)(A).
The 1996 decision that a negligible impact determination could not
be made was regarding a request for take by mortality of North Atlantic
right whale (61 FR 54,157; October 17, 1996)). PBR for North Atlantic
right whale at that time was 0.4. If NMFS were to apply its current
method for evaluating negligible impact of potential mortality to that
request, the results would suggest that take by mortality should not be
authorized (though again, the PBR evaluation is not the sole factor
considered).
Comment 7: A commenter stated that the Navy and NMFS must consider
serious injury and mortality that results from joint training exercises
the Navy engages in with foreign nations as ``take'' under the
regulations and that NMFS must reexamine the impacts of the Navy's full
suite of activities (including joint activities with foreign fleets) on
marine mammals using the best available science. In the proposed rule,
NMFS states that ``[a]ccording to the U.S. Navy, the May 2021 vessel
strike of two fin whales by an Australian navy vessel did not occur
while that vessel was participating in a U.S. Navy-led training
exercise. The Royal Australian Navy vessel was adhering to its standard
operating procedures at the time of the strike.'' The commenter stated
that this contradicts coverage of
[[Page 4952]]
the incident, including by the Navy Times/AP that reported: ``[t]he
Sydney has been holding joint exercises with the U.S. Navy in the area
since early April'' (The Navy Times, 2021).
The commenter stated that elsewhere in the rule, NMFS appears to
say that regardless of whether it considered vessel strikes that
occurred during joint training or not, NMFS lets the Navy decide what
activities it requests authorization for, and there is no reasoned
explanation provided for this position. These joint activities led by
the U.S. Navy pose serious threats to marine mammals, kill whales, and
should be included as specified activities. The commenter recommended
that NMFS not ``defer to the applicant to describe the scope of its
request for an authorization.''
Response: Under the MMPA, only a U.S. Citizen may request NMFS
authorize the incidental take of marine mammals (16 U.S.C.
1371(a)(5)(A)). Further, the MMPA requires NMFS to authorize the
incidental take caused by the applicant's specified activities,
provided certain findings are made (Id.). In some cases, foreign
militaries may participate in U.S. Navy training or testing activities
in the HSTT Study Area. As stated in the proposed rule, the HMAS Sydney
most likely struck the two fin whales around 6:25 a.m. the morning of
May 7, 2021 while the HMAS Sydney was getting into position to
participate in a U.S. Navy-led exercise later that day but was not
actively engaged in an exercise at the presumed time of the strike. The
Navy does not consider the Royal Australian Navy's vessel movements at
the time of strike as part of the `specified activity' under the MMPA,
as the strike did not occur while the HMAS Sydney was actively
participating in a joint training exercise with the U.S. Navy. The MMPA
is necessarily an applicant-driven process (Melone v. Coit, 100 F.4th
21, 32 (1st Cir. 2024)) and NMFS has appropriately deferred to the
Navy's reasoned explanation of why the Royal Australian Navy's
operations were not part of the ``specified activity.''
As explained in the Foreign Navies section of this final rule, in
preparing this rulemaking, NMFS and the U.S. Navy discussed the nature,
frequency, and control over joint or U.S. Navy-led training and testing
activities with foreign entities. Consistent with customary
international law, U.S. Navy requests or encourages participating
foreign entities to follow U.S. Navy's mitigation measures for that
particular event, depending on whether the activity is in the U.S.'s
territorial sea or the EEZ. NMFS and the U.S. Navy also examined the
Royal Australian Navy 2021 strike report, and NMFS concurred with U.S.
Navy's conclusion that the strike most likely occurred before, but not
during, a joint exercise, and the Royal Australian Navy vessel was
adhering to its standard operating procedures at the time of the
strike.
As noted by the commenter in its letter, NMFS assessed the effects
of foreign military activities. First, the impacts of all activities
are captured in the baseline for the analysis, through marine mammal
abundance estimates and population trends found in the SARs. Second,
NMFS considers foreign military activities, including recent strikes,
qualitatively in its analysis, as described in the Foreign Navies
section of this final rule. For instance, NMFS and the U.S. Navy
examined the Royal Australian Navy 2021 strike report for any lessons
that could inform U.S. Navy strike mitigation.
This final rule includes a new reporting measure related to foreign
vessels. The new measure requires that the Navy's annual HSTT reports
shall include confirmation that foreign military use of sonar and
explosives, when such militaries are participating in a U.S. Navy-led
exercise or event, combined with the U.S. Navy's use of sonar and
explosives, did not cause exceedance of the analyzed levels (within
each NAEMO modeled sonar and explosive bin) used for estimating
predicted impacts, which formed the basis of our acoustic impacts
effects analysis that was used to estimate take in this final rule.
This new reporting measure will allow NMFS to ensure that its analysis
remains valid.
Comment 8: A commenter stated that it supports the Navy's request
for two additional incidental takes of large whales by vessel strike.
The commenter discussed a U.S. Supreme Court case, Winter v. NRDC,
Inc., 555 U.S. 7 (2008), in support of its assertion that preparing for
war still plainly outweighs the interests in the safety of marine life.
Considering these interests, the commenter recommended that NMFS
consider granting the Navy's request for two additional incidental
takes.
Response: NMFS has made the required findings on the Navy's request
consistent with the statutory criteria under the MMPA and has
authorized two additional takes of large whales by serious injury or
mortality by vessel strike for the remainder of the current regulatory
period (two takes in addition to the three takes authorized in the
current regulations). NMFS does not weigh the necessity of Navy
training and testing against the risks to marine mammals as part of the
required analysis for issuance of take regulations under the MMPA. The
MMPA requires NMFS to authorize the incidental take of marine mammals
caused by specified activities upon request, provided certain findings
are made (16 U.S.C. 1371(a)(5)(A)). NMFS' least practicable adverse
impact determination for military readiness activities must include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity (16
U.S.C. 1371(a)(5)(a)(iii)).
Comment 9: A commenter noted NMFS' reference to Cure et al. (2021)
and Isojunno et al. (2020) in the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023) discussing sperm whale behavioral responses to
exposure to pulsed active sonar (PAS) and continuous active sonar
(CAS). The commenter stated that physical trauma, sensory impairment
(PTS, TTS, and acoustic masking), physiological responses (particularly
stress responses), and behavioral disturbances are all part of the
harassment of the whales and that these factors have not been included
in the ``take'' of the three whales already, only the mortalities have
been counted. The commenter stated that even brief and transient
exposure to modest levels of mid-frequency military sonar has been
observed to cause whales to strand or perish at sea within hours (Dave,
D.M., & Dave, M., 2023). These studies do not include the permanent
injuries to these marine mammals' hearing and sonar capabilities. The
commenter stated that effects on marine mammal hearing are not
mentioned outside of some studies on stranding and should include more
study and data collection by marine mammal experts when it comes to PTS
and sonar damage to these animals due to the impact of the U.S. Navy's
military ocean noise pollution.
Response: In the 2023 HSTT proposed rule (88 FR 68290, October 3,
2023), NMFS included a discussion of relevant literature that had
published since publication of the 2020 HSTT final rule (85 FR 41780,
July 10, 2020), and in this final rule, NMFS has included a discussion
of relevant literature that has published since publication of the 2023
HSTT proposed rule. Herein, and in the 2023 HSTT proposed rule, NMFS
discussed all relevant literature, not just that related to vessel
strike. (See the New Pertinent Science Since Publication of the 2020
HSTT Final Rule section of the 2023 HSTT proposed rule and the
Potential Effects of Specified Activities on Marine Mammals and their
Habitat section of this final rule.)
[[Page 4953]]
The commenter's statement that ``even brief and transient exposure
to modest levels of mid-frequency military sonar has been observed to
cause whales to strand or perish at sea within hours'' is not
supported. The proposed rule discussed the limited examples of when
tactical active sonar, in certain circumstances, have been found to
have likely contributed to marine mammal stranding events. The
reference that the commenter cites (Dave, D.M. & Dave, M., 2023) states
that ``even a brief and transient exposure to modest levels of mid-
frequency military sonar has been observed to cause whales to strand or
perish at sea within hours,'' citing Fern[aacute]ndez et al. (2005) and
NOAA and U.S. Department of the Navy (2001). These publications discuss
two specific stranding events in the Canary Islands and the Bahamas,
respectively. NMFS is aware of stranding events coincident with
military MFAS use in which exposure to sonar is believed to have been a
contributing factor and discussed these cases in detail in the 2018
HSTT proposed rule. While NMFS did not repeat this information in the
2023 proposed rule as the analyses remain unchanged, NMFS stated in the
rule that we refer the reader to complete analyses described in the
2018 HSTT final rule or an updated analysis in the 2020 HSTT final
rule, where appropriate.
It is unclear what the commenter means by physical trauma, sensory
impairment (PTS, TTS, and acoustic masking), physiological responses
(particularly stress responses), and behavioral disturbances not having
been included in the ``take'' of the three whales already, and that
only the mortalities have been counted. In the 2020 HSTT final rule,
NMFS discussed all of the likely impacts to marine mammals, including
PTS, TTS, masking, and stress, and authorized take of marine mammals by
Level B harassment, Level A harassment, and mortality. The 2023 HSTT
proposed rule and this final rule only discuss changes to NMFS'
analysis regarding mortality of marine mammals in detail, and refer
back to the 2018 HSTT proposed and final rules and the 2020 HSTT final
rule regarding take by Level A harassment and Level B harassment.
However, NMFS' analysis, including its negligible impact determination,
takes into consideration the total authorized take, not just mortality.
Comment 10: A commenter stated that in addition to blue, humpback,
and fin whales, the Navy also identifies other large whales in its
request (Bryde's whales, gray whales, minke whales, sperm whales, and
sei whales) which are also all vulnerable to vessel strikes (Laist et
al. 2001, Glass et al. 2008, and van der Hoop et al. 2015). NMFS' 2023
HSTT proposed rule (88 FR 68290, October 3, 2023) determined that the
likelihood of vessel strikes to those whales is ``discountable'' due to
their relatively low occurrence in the HSTT Study Area and the fact
that they have rarely, if ever, been recorded struck by vessels. Due to
the fact that reported collisions vastly underestimate actual strikes,
the commenter asks NMFS and the Navy to approach vessel strikes and
other harm very conservatively, particularly in light of how some of
these whales are particularly vulnerable to vessel strike and at
already-small population levels, as detailed in the commenter's July 1,
2022 letter.
Response: NMFS concurs with the commenter that all large whales are
vulnerable to vessel strike, and that reported vessel strikes vastly
underestimate actual strikes across many industries generally. However,
NMFS has already conducted a conservative vessel strike analysis. While
all large whales are vulnerable to vessel strike, it would be
inappropriate to assume that all large whales that occur in the HSTT
Study Area are likely to be struck by U.S. Navy vessels.
Of note, the commenter is correct that NMFS does not anticipate
vessel strike of Bryde's whale, minke whale, or sperm whale. However,
NMFS did propose to authorize take by M/SI by vessel strike of sei
whale and Eastern North Pacific gray whale in the 2023 HSTT proposed
rule (88 FR 68290, October 3, 2023) and would authorize such take in
this final rule. NMFS proposed authorizing one take (0.14 takes
annually) of sei whale (Eastern North Pacific stock) and four takes
(0.57 takes annually) of Eastern North Pacific gray whale.
Regarding stocks for which take by M/SI by vessel strike was not
proposed, as stated in the proposed rule, stocks that have no record of
ever having been struck by any vessel are considered to have a zero
percent likelihood of being struck by the Navy in the 7-year period of
the rule. This includes Bryde's whale, minke whale, and the CA/OR/WA
stock of sperm whale raised by the commenter (an individual of the
Hawaii stock of sperm whale was struck in 2007; see table 7 of this
final rule). Stocks that have never been struck by the Navy, have
rarely been struck by other vessels, and have a low percent likelihood
based on the historical vessel strike calculation are also considered
to have a zero percent likelihood to be struck by the Navy during the
7-year rule. We note that while vessel strike records have not
differentiated between Eastern North Pacific and Western North Pacific
gray whales, given their small population size and the comparative
rarity with which individuals from the Western North Pacific stock are
detected off the U.S. West Coast, it is highly unlikely that they would
be encountered, much less struck. Further, it is unlikely that the
Hawaii stock of sperm whale would be struck given the zero percent
likelihood of striking a sperm whale as indicated by the quantitative
analysis in the Estimated Take From Vessel Strikes and Explosives by
Serious Injury or Mortality Vessel Strike section of the proposed rule
and the Authorized Take From Vessel Strikes and Explosives by Serious
Injury or Mortality section in this final rule. Vessel strikes of the
Hawaii stock of sperm whale are also unlikely given the fact that the
last U.S. Navy strike of a Hawaii stock sperm whale was in 2007, before
the mitigation updates discussed above, and that, with the exception of
humpback whales, vessel strikes (both military and non-military) of
other large whale species in the HRC are extremely rare events
(Carretta 2021b; Carretta 2022). Given this analysis, NMFS concludes
that the proposed take by M/SI by vessel strike included in the
proposed rule remains appropriately conservative, and has not included
take by M/SI by vessel strike of Bryde's whale, Western North Pacific
gray whale, minke whale, or sperm whale in this final rule.
Comment 11: A commenter stated that aside from excluding impacts
from foreign vessels, the proposed rule looks at the impacts of vessel
strikes on large whales almost in isolation and does not adequately
assess new science on the combined impacts of the Navy's activities, in
particular on large whales. The commenter asserted that while the Navy
acknowledges that sonar and aircraft may affect whales, it does not
adequately consider the extent of these impacts. Any analysis of the
impacts of the Navy's exercises must include, in addition to vessel
strike impacts, the impacts from sonar activities of domestic vessels
and foreign vessels involved in joint training exercises and any other
stressor caused by the Navy's activities. The commenter also asserted
that the Navy's literature review does not adequately focus on the
large baleen whales that are of concern in this most recent request.
The commenter stated that as it noted in its July 2022 letter, in
its review of sound effects on animals, the Navy focuses heavily on
pinnipeds (seals and sea lions) and odontocetes (dolphins and toothed
whales), while their request for increased take focuses on mysticetes
[[Page 4954]]
(baleen whales). Mysticetes' hearing systems are different from those
of pinnipeds and odontocetes, and so while they are closely related one
cannot infer that each group will experience the same effects from
sound pollution (Southall et al. 2019). Mysticetes' cochlea have their
own unique shape, which in concert with the larger mass of baleen
whales indicates that they are more sensitive to low-frequency sound
(Southall et al. 2019). Though auditory capabilities in baleen whales
are understudied (Southall et al. 2019), absence of literature on
baleen whales does not indicate absence of effect. The commenter stated
that furthermore, the Navy ignored key papers studying the effect of
sonar on baleen whales. It specifically stated that the Navy failed to
consider, and NMFS failed to address in its proposed rule, Goldbogen et
al. (2013), and further references Southall et al. (2019) and Southall
et al. (2021).
Response: NMFS disagrees with the commenter that the proposed rule
looks at the impacts of vessel strikes on large whales almost in
isolation and does not adequately assess new science on the combined
impacts of the Navy's activities, in particular on large whales. While
NMFS did not repeat discussion of a portion of the analysis that did
not change (e.g., takes by harassment), this analysis was incorporated
into the proposed rule and this final rule by reference, and NMFS
considered those impacts in conjunction with the updated M/SI analysis
in making its determinations.
NMFS further disagrees that the literature review should have
focused on large baleen whales. In the proposed rule (88 FR 68290,
October 3, 2023), and in this final rule, NMFS' literature review
discussed recent literature concerning potential impacts from all of
the Navy's activities, not just those related to vessel strike. As the
commenter has noted in its letter, NMFS must consider the full range of
effects of the Navy's activity, not just the potential for vessel
strike of large whales in isolation. NMFS agrees with the commenter
that an absence of literature on baleen whales does not indicate an
absence of effects, nor has NMFS drawn such a conclusion. Rather, NMFS
conducted a thorough analysis on the impacts of the Navy's activities,
including sonar and explosive use, on mysticetes, as well as other
taxa, as described in the proposed rule and this final rule, which in
some cases, reference the 2018 (83 FR 66846, December 27, 2018) and
2020 HSTT final rules (85 FR 41780, July 10, 2020). Regarding the
specific studies that the commenter asserts NMFS failed to consider,
while not directly cited to in the 2023 HSTT proposed rule (88 FR
68290, October 3, 2023), NMFS considered and cited Goldbogen et al.
(2013) in the 2018 (83 FR 66846, December 27, 2018) and 2020 HSTT final
rules (85 FR 41780, July 10, 2020), and the Navy considered and cited
this paper in the 2018 HSTT EIS/OEIS. NMFS considered and cited
Southall et al. (2019) and Southall et al. (2021) in the 2023 HSTT
proposed rule.
Please see NMFS' response to Comment 7 regarding foreign vessels.
Comment 12: A commenter stated that the rule overlooks the
likelihood that the Navy's activities will take humpback whales from
the endangered Central America distinct population segment (DPS). The
commenter stated that its read of the science is that most of the
humpback whale deaths that occur off California could be from the
endangered Central America DPS. The commenter further stated that Wade
et al. (2017) predicted a 67.2 percent movement probability for a whale
in California to move to Central America. In other words, an estimated
7.056 Central America DPS humpback whales could die from vessel strikes
off California annually (10.5 deaths * 0.672). The commenter stated in
its letter that applying the Rockwood et al. (2021) model, 10.5
humpback mortalities occur annually off California from the January to
April and July to November periods combined. The commenter stated that
this does not include potential deaths from other sources or in other
locations yet still represents a significant source of mortality for
this already endangered population.
Response: NMFS carefully considered the potential for each stock of
large whales to be taken by serious injury or mortality by vessel
strike. As stated in the 2023 HSTT proposed rule (88 FR 68290, October
3, 2023), regarding the likelihood of striking a humpback whale from a
particular DPS, NMFS evaluated the relative abundance of each of these
DPS in California waters. Curtis et al. (2022) estimated the abundance
of the Central America DPS to be 1,496 whales. From Wade et al. (2017),
about 93 percent (or 1,391 whales) of these humpbacks that winter in
Central America will move to Oregon/California in the summer months.
While there is currently no abundance estimate for the Mexico DPS, an
estimated 3,477 whales from the Mexico DPS feed off the U.S. West Coast
(Calambokidis and Barlow 2020; Curtis 2022). Based on this information,
we estimate that approximately 30 percent of the humpback whales off
the coast of California may be from the Central America DPS and the
remaining 70 percent are expected to be from the Mexico DPS. Therefore,
we anticipate that if a Navy vessel strike of a humpback whale were to
occur within SOCAL, it would likely be from the Mexico DPS.
The commenter is correct that Wade et al. (2017) predicts that 67.2
percent of whales that summer in Oregon and California will move to
Central America for the winter. However, NMFS disagrees with the
commenter's implication that it is more appropriate for NMFS to assume
that 67.2 percent of humpbacks off of California are of the Central
America DPS, and the commenter has not provided justification for doing
so. (Of note, an updated paper from Wade (2021) shows that 58 percent
of whales that summer in Oregon and California will move to Mexico
(only 42 percent will move to Central America)). Rather, NMFS continues
to find that it is appropriate to use the abundance estimates described
above and the estimate that approximately 93 percent of humpbacks that
winter in Central America will move to Oregon/California in the summer
months to determine the relative abundance of each DPS off the coast of
California. Therefore, NMFS continues to conclude that if a Navy vessel
strike of a humpback whale were to occur within SOCAL, it would likely
be from the Mexico DPS.
Mitigation and Monitoring
Comment 13: A commenter stated that in addition to strengthening
the new and revised mitigation measures that NMFS included in the 2023
HSTT proposed rule, it should also require the following additional
mitigation measures to ensure the least practicable adverse impact to
marine mammals. The commenter noted that it and others have requested
and expounded upon these measures in previous comment letters.
1. Reinstating more protective mitigation areas and restricted
training exercises in key migration corridors, feeding habitat, and
other biologically important areas (BIAs) and creating/expanding
protective mitigation areas to protect newly recognized critical
habitat and other BIAs. In a related comment, a separate commenter
stated that the chances of an incidental take can be dramatically
reduced by adjusting the time and location of exercises (e.g.,
minimizing activity in the vicinity of California's Channel Islands
during July-October) and reducing speed in mitigation areas. The
commenter further asserted that additional BIAs identified by Kratofil
et al. 2023 provide new
[[Page 4955]]
information that necessitates reevaluation of mitigation measures, yet
NMFS rejects adding these new mitigation areas as ``impracticable.'' A
third commenter stated that it is crucial to integrate scientific
research, public awareness, and proactive measures to ensure the
sustained well-being of gray whales and the preservation of their
migratory habitats.
2. Restricting activities when whale detection is particularly
difficult, such as periods of low visibility (Williams et al. 2016).
3. Improving detection of marine mammals by adding alternative
detection methods, including safe/environmentally-sound drone, thermal,
and/or acoustic technologies, to lookouts/observers (Verfuss et al.
2018). In a related comment, a commenter recommended utilizing existing
acoustic detection systems to track marine mammals in near real-time.
4. Capping/reducing the level of naval activities authorized each
year, in particular major exercises. In a related comment, a separate
commenter stated that it is crucial to limit the [Navy]'s takes on
marine mammals.
5. Halting training exercises when whale presence in the area is
``High'' or ``Very High,'' per WhaleSafe (see https://whalesafe.com).
Response: Under the MMPA, NMFS' least practicable adverse impact
determination for military readiness activities must include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity (16
U.S.C. 1371(a)(5)(a)(iii)). NMFS has responded to these recommended
measures, by corresponding number.
1. In the 2023 HSTT proposed rule, NMFS discussed that since
publication of the 2020 HSTT final rule, Kratofil et al. (2023)
identified updated BIAs in Hawaii. The HSTT Study Area overlaps the
updated BIAs for small and resident populations of the following
species in Hawaii: spinner dolphin, short-finned pilot whale, rough-
toothed dolphin, pygmy killer whale, pantropical spotted dolphin,
melon-headed whale, false killer whale, dwarf sperm whale, goose-beaked
whale, common bottlenose dolphin, and Blainville's beaked whale.
Further, the HSTT Study Area overlaps updated BIAs for humpback whale
reproduction in Hawaii. The updated BIAs overlap critical Navy training
and testing areas within the HSTT Study Area, including most of the
internal Navy operating areas. Please see Kratofil et al. (2023) for
additional details about the BIAs.
Since publication of the 2023 HSTT proposed rule, Calambokidis et
al. (2024) identified updated BIAs on the West Coast of the U.S. The
HSTT Study Area overlaps feeding BIAs for blue whale and fin whale in
SOCAL. Additionally, it overlaps a reproductive BIA as well as
northbound and southbound migratory BIAs for gray whale. Please see
Calambokidis et al. (2024) for additional details about the BIAs.
NMFS and the Navy considered additional mitigation areas (beyond
those already identified with associated measures to reduce impacts to
marine mammals) to further protect marine mammals, including
odontocetes with small or resident populations in the HSTT Study Area,
and large whales with feeding, reproductive, and migratory BIAs in the
HSTT Study Area. This includes consideration of new mitigation areas
that could be based on newly identified BIAs in Hawaii (Kratofil et al.
2023) and on the West Coast (Calambokidis et al. 2024). The HRC
overlaps BIAs identified in Kratofil et al. (2023) for humpback whale,
spinner dolphin, short-finned pilot whale, rough-toothed dolphin, pygmy
killer whale, pantropical spotted dolphin, melon-headed whale, false
killer whale, dwarf sperm whale, goose-beaked whale, common bottlenose
dolphin, and Blainville's beaked whale. All of the BIAs that overlap
the HRC are small and resident population BIAs, with the exception of
the humpback whale reproductive BIA. SOCAL overlaps BIAs identified in
Calambokidis et al. (2024) for blue whale (feeding area), fin whale
(feeding area), and gray whale (migratory route).
Additional restrictions in mitigation areas beyond those
restrictions and areas included in the 2020 HSTT final rule (including
mitigation to reduce vessel strike risk such as vessel speed
restrictions, and in consideration of the newly identified BIAs
(Kratofil et al. 2023 and Calambokidis et al. 2024)) is impracticable
given overlap with critical Navy training areas in the HRC and SOCAL,
including areas around the Channel Islands in SOCAL. However, many of
the BIAs identified in Kratofil et al. 2023 and Calambokidis et al.
(2024) partially or fully overlap the mitigation areas included in the
2020 HSTT final rule and this final rule and are aimed at reducing
impacts to the same species for which Kratofil et al. 2023 and
Calambokidis et al. (2024) identified BIAs. In the HRC, the existing
mitigation areas are targeted and expected to reduce impacts to
humpback whales, false killer whales, dwarf sperm whales, pygmy killer
whales, short-finned pilot whales, melon-headed whales, bottlenose
dolphins, spotted dolphins, spinner dolphins, rough-toothed dolphins,
goose-beaked whales, and Blainville's beaked whales (i.e., all species
for which Kratofil et al. (2023) identified BIAs). In SOCAL, the
existing mitigation areas are aimed at reducing impacts to blue whales,
fin whales, and gray whales (i.e., all species for which Calambokidis
et al. (2024) identified BIAs). Further, as included in the 2023 HSTT
proposed rule, this final rule requires that Navy personnel must issue
real-time notifications to Navy vessels of large whale aggregations
(four or more whales) within 1 nmi (1.9 km) of a Navy vessel in a
select area of SOCAL, and that Navy personnel must send alerts to Navy
vessels of increased risk of strike following any reported Navy vessel
strike in the HSTT Study Area. Last, this final rule includes
modification of two mitigation measures from the 2020 HSTT final rule
(85 FR 41780; July 10, 2020) to further reduce the potential for vessel
strike.
Beyond the papers described herein, NMFS is not aware of, nor have
commenters provided, additional research that suggests other areas
warrant additional mitigation. While NMFS agrees with the commenter
that public awareness can be an important part of gray whale
conservation, NMFS does not anticipate that additional public awareness
would assist in mitigating effects of Navy's activities on gray whales,
and therefore, has not required the Navy to implement measures related
to public awareness. For a discussion of the mitigation measures
required by this final rule, please see the Mitigation Measures
section.
Please see NMFS' response to Comment 14 regarding vessel speed
restrictions.
2. Anti-submarine warfare training involving the use of mid-
frequency active sonar (MFAS) typically involves the periodic use of
active sonar to develop the ``tactical picture,'' or an understanding
of the battle space (e.g., area searched or unsearched, presence of
false contacts, and an understanding of the water conditions).
Developing the tactical picture can take several hours or days, and
typically occurs over vast waters with varying environmental and
oceanographic conditions. Training during both high visibility (e.g.,
daylight, favorable weather conditions) and low visibility (e.g.,
nighttime, inclement weather conditions) is vital because sonar
operators must be able to understand the environmental differences
between day and night and
[[Page 4956]]
varying weather conditions and how they affect sound propagation and
the detection capabilities of sonar. Temperature layers move up and
down in the water column and ambient noise levels can vary
significantly between night and day, affecting sound propagation and
how sonar systems are operated. Reducing or securing power in low-
visibility conditions as a mitigation would affect a commander's
ability to develop the tactical picture and would prevent sonar
operators from training in realistic conditions. Further, during
integrated training multiple vessels and aircraft may participate in an
exercise using different dimensions of warfare simultaneously (e.g.,
submarine warfare, surface warfare, air warfare, etc.). If one of these
training elements were adversely impacted (e.g., if sonar training
reflecting military operations were not possible), the training value
of other integrated elements would also be degraded. Additionally,
failure to test such systems in realistic military operational
scenarios increases the likelihood these systems could fail during
military operations, thus unacceptably placing sailors' lives and the
Nation's security at risk. Some systems have a nighttime testing
requirement; therefore, these tests cannot occur only in daylight
hours. Reducing or securing power in low visibility conditions would
decrease the Navy's ability to determine whether systems are
operationally effective, suitable, survivable, and safe for their
intended use by the fleet even in reduced visibility or difficult
weather conditions.
3. The Navy has compiled information related to the effectiveness
of certain equipment to detect marine mammals in the context of their
activities, as well as the practicality and effect on mission
effectiveness of using various equipment. NMFS has reviewed this
evaluation and concurs with the characterizations and the conclusions
below.
Thermal detection--Thermal detection systems are more useful for
detecting marine mammals in some marine environments than others.
Current technologies have limitations regarding water temperature and
survey conditions (e.g., rain, fog, sea state, glare, ambient
brightness), for which further effectiveness studies are required.
Thermal detection systems are generally thought to be most effective in
cold environments, which have a large temperature differential between
an animal's temperature and the environment. Current thermal detection
systems have proven more effective at detecting large whale blows than
the bodies of small animals, particularly at a distance. The
effectiveness of current technologies has not been demonstrated for
small marine mammals. Thermal detection systems exhibit varying degrees
of false positive detections (i.e., incorrect notifications) due in
part to their low sensor resolution and reduced performance in certain
environmental conditions. False positive detections may incorrectly
identify other features (e.g., birds, waves, boats) as marine mammals.
In one study, a false positive rate approaching one incorrect
notification per 4 min of observation was noted.
The Navy has been investigating the use of thermal detection
systems with automated marine mammal detection algorithms for future
mitigation during training and testing, including on autonomous
platforms. Thermal detection technology being researched by the Navy,
which is largely based on existing foreign military grade hardware, is
designed to allow observers and eventually automated software to detect
the difference in temperature between a surfaced marine mammal (i.e.,
the body or blow of a whale) and the environment (i.e., the water and
air). Although thermal detection may be reliable in some applications
and environments, the current technologies are limited by their: (1)
Low sensor resolution and a narrow field of view, (2) reduced
performance in certain environmental conditions, (3) inability to
detect certain animal characteristics and behaviors, and (4) high cost
and uncertain long-term reliability.
Thermal detection systems for military applications are deployed on
various Department of Defense (DoD) platforms. These systems were
initially developed for night time targeting and object detection such
as a boat, vehicle, or people. Existing specialized DoD infrared/
thermal capabilities on Navy aircraft and surface ships are designed
for fine-scale targeting. Viewing arcs of these thermal systems are
narrow and focused on a target area. Furthermore, sensors are typically
used only in select training events, not optimized for marine mammal
detection, and have a limited lifespan before requiring expensive
replacement. Some sensor elements can cost upward of $300,000 to
$500,000 per device, so their use is predicated on a distinct military
need. One example of trying to use existing DoD thermal systems is
being proposed by the U.S. Air Force. The Air Force agreed to attempt
to use specialized U.S. Air Force aircraft with military thermal
detection systems for marine mammal detection and mitigation during a
limited at-sea testing event. It should be noted, however, that these
systems are specifically designed for and integrated into a small
number of U.S. Air Force aircraft and cannot be added or effectively
transferred universally to Navy aircraft. The effectiveness remains
unknown in using a standard DoD thermal system for the detection of
marine mammals without the addition of customized system-specific
computer software to provide critical reliability (enhanced detection,
cueing for an operator, reduced false positive, etc.)
Finally, current DoD thermal sensors are not always optimized for
marine mammal detections versus object detection, nor do these systems
have the automated marine mammal detection algorithms the Navy is
testing via its ongoing research program. The combination of thermal
technology and automated algorithms are still undergoing demonstration
and validation under Navy funding.
Thermal detection systems specifically for marine mammal detection
have not been sufficiently studied both in terms of their effectiveness
within the environmental conditions found in the HSTT Study Area and
their compatibility with Navy training and testing (i.e., polar waters
vs. temperate waters). The effectiveness of even the most advanced
thermal detection systems with technological designs specific to marine
mammal surveys is highly dependent on environmental conditions, animal
characteristics, and animal behaviors. At this time, thermal detection
systems have not been proven to be more effective than, or equally
effective as, traditional techniques currently employed by the Navy to
observe for marine mammals (i.e., naked-eye scanning, hand-held
binoculars, high-powered binoculars mounted on a ship deck). Focusing
on thermal detection systems could also provide a distraction from and
compromise to the Navy's ability to implement its established
observation and mitigation requirements. Last, the Navy does not have
available manpower to add Lookouts to use thermal detection systems in
tandem with existing Lookouts who are using traditional observation
techniques.
The Defense Advanced Research Projects Agency funded six initial
studies to test and evaluate infrared-based thermal detection
technologies and algorithms to automatically detect marine mammals on
an unmanned surface vehicle. Based on the outcome of these initial
studies, the Navy is pursuing additional follow-on research efforts.
[[Page 4957]]
The Office of Naval Research Marine Mammals and Biology program
funded a project (2013-2019) to test the thermal limits of infrared-
based automatic whale detection technology. That project focused on
capturing whale spouts at two different locations featuring subtropical
and tropical water temperatures, optimizing detector/classifier
performance on the collected data, and testing system performance by
comparing system detections with concurrent visual observations.
Results indicated that thermal detection systems in subtropical and
tropical waters can be a valuable addition to marine mammal surveys
within a certain distance from the observation platform (e.g., during
seismic surveys, vessel movements), but have challenges associated with
false positive detections of waves and birds (Boebel, 2017). While
Zitterbart et al. (2020) reported on the results of land-based thermal
imaging of passing whales, their conclusion was that thermal technology
under the right conditions and from land can detect a whale within 3 km
although there could also be lots of false positives, especially if
there are birds, boats, and breaking waves at sea.
The Navy's Living Marine Resources program is funding one ongoing
thermal imaging project entitled ``Thermal Imaging for Vessel Strike
Mitigation on Autonomous Vessels Project 68''. The project is focused
on adapting and testing two thermal imaging-based whale detection
systems to reduce the potential for vessel strike during navigation of
unmanned Navy surface vessels. Phase one is planned for 2024 and 2025.
The schedule for subsequent phases will be determined as work
progresses. Project details are available at: https://exwc.navfac.navy.mil/Portals/88/Documents/EXWC/Environmental_Security/Living%20Marine%20Resources/LMRFactSheet_Project68.pdf.
The Navy plans to continue researching thermal detection systems
for marine mammal detection to determine their effectiveness and
compatibility with Navy applications. If the technology matures to the
state where thermal detection is determined to be an effective
mitigation tool during training and testing, NMFS and the Navy will
assess the practicability of using the technology during training and
testing events and retrofitting the Navy's observation platforms with
thermal detection devices. The assessment will include an evaluation of
the budget and acquisition process (including costs associated with
designing, building, installing, maintaining, and manning the
equipment); logistical and physical considerations for device
installment, repair, and replacement (e.g., conducting engineering
studies to ensure there is no electronic or power interference with
existing shipboard systems); manpower and resource considerations for
training personnel to effectively operate the equipment; and
considerations of potential security and classification issues. New
system integration on Navy assets can entail up to 5 to 10 years of
effort to account for acquisition, engineering studies, and development
and execution of systems training. The Navy will provide information to
NMFS about the status and findings of Navy-funded thermal detection
studies and any associated practicability assessments at the annual
adaptive management meetings.
Passive Acoustic Monitoring--Regarding the recommendation to
utilize existing acoustic detection systems to track marine mammals in
near real-time, the Navy does employ passive acoustic monitoring when
practicable to do so (i.e., when assets that have passive acoustic
monitoring capabilities are already participating in the activity). For
other explosive events, there are no platforms participating that have
passive acoustic monitoring capabilities. Adding a passive acoustic
monitoring capability (either by adding a passive acoustic monitoring
device to a platform already participating in the activity, or by
adding a platform with integrated passive acoustic monitoring
capabilities to the activity, such as a sonobuoy) for mitigation is not
practicable. As discussed in chapter 5 (Mitigation), section 5.5.3
(Active and Passive Acoustic Monitoring Devices) of the 2018 HSTT FEIS/
OEIS, there are significant manpower and logistical constraints that
make constructing and maintaining additional passive acoustic
monitoring systems or platforms for each training and testing activity
impracticable. Additionally, diverting platforms that have passive
acoustic monitoring platforms would impact their ability to meet their
Title 10 requirements for maintaining military readiness and reduce the
service life of those systems.
The use of real-time PAM for mitigation at the Southern California
Anti-submarine Warfare Range (SOAR) exceeds the capability of current
technology. The Navy has a significant research investment in the
Marine Mammal Monitoring on Navy Ranges (M3R) system at three ocean
locations including SOAR. However, this system was designed and
intended to support marine mammal research for select species, and not
as a mitigation tool. Marine mammal PAM using instrumented hydrophones
is still under development and while it has produced meaningful results
for marine species monitoring, abundance estimation, and research, it
was not developed for, nor is it appropriate for, real-time mitigation.
The ability to detect, classify, and develop an estimated position (and
the associated area of uncertainty) differs across species, behavioral
context, animal location vs. receiver geometry, source level, etc.
Based on current capabilities, and given adequate time, vocalizing
animals within an indeterminate radius around a particular hydrophone
are detected, but obtaining an estimated position for all individual
animals passing through a predetermined area is not assured. Detecting
vocalizations on a hydrophone does not determine whether vocalizing
individuals would be within the established mitigation zone in the
timeframes required for mitigation. Since detection ranges are
generally larger than current mitigation zones for many activities,
this would unnecessarily delay events due to uncertainty in the
animal's location and put at risk event realism. If an event were to be
moved based upon low-confidence localizations, it may inadvertently be
moved to an area where non-vocalizing animals of undetermined species
are present.
To develop an estimated position for an individual, it must be
vocalizing and its vocalizations must be detected on at least three
hydrophones. The hydrophones must have the required bandwidth, and
dynamic range to capture the signal. In addition, calls must be
sufficiently loud so as to provide the required signal to noise ratio
on the surrounding hydrophones. Typically, small odontocetes echolocate
with a directed beam that makes detection of the call on multiple
hydrophones difficult. Developing an estimated position of selected
species requires the presence of whistles which may or may not be
produced depending on the behavioral state. Beaked whales at SOAR
vocalize only during deep foraging dives which occur at a rate of
approximately 10 per day. They produce highly directed echolocation
clicks that are difficult to simultaneously detect on multiple
hydrophones. Current real-time systems cannot follow individuals and at
best produce sparse positions with multiple false locations. The
position estimation process must occur in an area with hydrophones
spaced to allow the detection of the same echolocation click on at
least three hydrophones. Typically, a spacing of less than 4 km
[[Page 4958]]
in water depths of approximately 2 km is preferred. In the absence of
detection, the analyst can only determine with confidence if a group of
beaked whales is somewhere within 6 km of a hydrophone. Beaked whales
produce stereotypic click trains during deep (500 m) foraging dives.
The presence of a vocalizing group can be readily detected by an
analyst by examining the click structure and repetition rate. However,
estimating position is possible only if the same train of clicks is
detected on multiple hydrophones which is often precluded by the
animal's narrow beam pattern. Currently, this is not an automated
routine.
In summary, the analytical and technical capabilities required to
use PAM such as M3R at SOAR as a required mitigation tool are not
sufficiently robust to rely upon due to limitations with near real-time
classification and determining estimated positions. The level of
uncertainty as to a species presence or absence and location are too
high to provide the accuracy required for real-time mitigation. As
discussed in chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS,
existing Navy visual mitigation procedures and measures, when performed
by individual units at-sea, still remain the most effective and
practical means of protection for marine species.
NMFS is not requiring drones to be used at this time and the
commenters did not provide information supporting the recommendation
that they be used when considering the extensive monitoring by Lookouts
required.
4. The commenters neither offer a rationale for why a cap on the
level of activities is needed nor do they suggest what an appropriate
cap might be. The Navy is responsible under Title 10 of the U.S. Code
for conducting the needed amount of testing and training to maintain
military readiness, which is what they have proposed and NMFS has
analyzed. Further, the MMPA states that NMFS shall issue MMPA
authorizations if the necessary findings can be made, as they have been
here. Importantly, as described in the Mitigation Measures section, the
Navy has determined that it is practicable to limit activities (active
sonar, explosive use, etc.) to varying degrees in five areas that are
important to sensitive species or for important behaviors in order to
minimize impacts that are more likely to lead to adverse effects on
rates of recruitment or survival and is required by this final rule to
do so.
5. During the promulgation of this rule, NMFS and the Navy fully
explored the potential for the Navy to incorporate WhaleSafe into its
mitigation methods. However, the current WhaleSafe operational areas
(Santa Barbara Channel and off the coast of San Francisco) do not
overlap the HSTT Study Area. As such, while WhaleSafe can inform whale
occurrence in other areas of Southern California, it is not an
appropriate tool for determining mitigation actions in the HSTT Study
Area, and NMFS has not required the Navy to halt training exercises
when WhaleSafe indicates that whale presence in the area is ``high'' or
``very high'' as suggested by the commenter. However, NMFS has
recommended to the Navy, including as a conservation recommendation in
the 2024 reinitiated Biological and Conference Opinion, that it explore
funding options and seek partnership opportunities for the development
of a mapping and analysis tool that integrates acoustic and visual
whale detections with model predictions to display near real-time whale
presence data within the SOCAL and nearby surrounding areas.
Information generated by such a tool could then be used by Navy, and
potentially non-military, vessels to reduce the risk of large whale
vessel strike in Southern California.
Comment 14: A commenter stated that NMFS must substantially
strengthen mitigation measures, including requiring more effective
measures to protect large whales from vessel strikes, before issuing
any additional take authorizations to the Navy. The commenter stated
that NMFS rejected other mitigation measures, such as requiring vessels
used in the Navy's activities to slow to 10 kn (18.5 km per hour) or
less in certain BIAs to reduce the risk of vessel strikes, by
downplaying the risk of vessel strikes to endangered whales and other
species impacted by the Navy's activities. The commenter stated that
NMFS' proposed modifications to the mitigation measures fall short of
meeting the least practicable adverse impact standard. Commenters
provided several specific recommendations for mitigation measures.
1. The 2023 HSTT proposed rule included a revised mitigation
measure that states ``if marine mammals are observed, Navy personnel
must maneuver (which may include reducing speed as the mission or
circumstances allow) to maintain distance.'' The reference to reducing
speed as the mission or circumstances allow is a revision from the
measure in the 2020 HSTT final rule. The commenter stated that this
measure should be mandatory in important whale habitat, where whales
are known to occur, and where vessel strikes have occurred or are
expected to occur, and should be implemented in these areas even when
whales have not been observed by Lookouts. Another commenter
recommended focusing on vessel speeds and their impact on marine mammal
safety to mitigate the risks associated with high-speed vessel travel
and including revised protocols.
2. The 2023 HSTT proposed rule also requires that Navy personnel
must send alerts to Navy vessels of increased risk of strike following
any reported Navy vessel strike in the HSTT Study Area. The commenter
stated that NMFS should attach specific actions required of other
vessels in the area, including a 10 kn (18.5 km per hour) ship speed,
when a Navy vessel strike has been reported, in order to reduce the
risk of further strikes. The commenter stated that these alerts should
also go to non-Navy vessels in the vicinity that pose a risk to whales.
3. The 2023 HSTT proposed rule modified the requirement for
awareness messages disseminated in Southern California. The commenter
stated that it supports the use of more accurate seasonal information
to inform large whale awareness messages, but expects awareness and
alerts to be tied to more robust mitigation action, and recommends that
if a marine mammal is spotted, NMFS should require a mandatory 10 kn
(18.5 km per hour) ship speed limit.
4. The 2023 HSTT proposed rule also contains a new mitigation
measure in which Navy personnel would issue real-time notifications to
Navy vessels of large whale aggregations (four or more whales) within 1
nmi (1.9 km) of a Navy vessel in a select area of SOCAL (Of note, the
four whales do not have to be the same species and do not have to be
part of the same group (e.g., two whales of one species sighted at a
distance off the port side at 500 yards (yd; 457.2 m) and two more
whales of another species sighted off the starboard side at 500 yd
(457.2 m) would be considered an aggregation under this measure)). The
commenter recommended that (a) this should apply any time a whale is
sighted (i.e., Navy should not have to observe at least four whales to
trigger this measure), (b) this should have no geographic limitation,
and (c) this should trigger a mandatory 10 kn (18.5 km per hour) ship
speed limit.
5. A commenter stated that the Navy will evaluate future revisions
to online or DVD Marine Species Awareness Training (MSAT) video
training to emphasize that when a protected species is spotted, this
may be an indicator that additional marine
[[Page 4959]]
mammals are present and nearby, and the vessel should take this into
consideration when transiting. The commenter stated that this purported
mitigation measure should be more forceful; when a protected species is
spotted, protective actions must result.
Response: Under the MMPA, NMFS' least practicable adverse impact
determination for military readiness activities must include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity (16
U.S.C. 1371(a)(5)(a)(iii)). The recommendation for NMFS to require, in
some cases a reduction in speed, and in other cases a 10 kn (18.5 km
per hour) speed limit, generally speaking, is impracticable because
these speed reductions and further reductions to Navy vessel speeds
negatively impact mission effectiveness. The Navy is unable to impose a
10 kn (18.5 km per hour) ship speed limit because it would not be
practical to implement and would impact the effectiveness of Navy's
activities by putting constraints on training and testing. The Navy
requires flexibility in the use of variable ship speeds for training,
testing, operational, safety, and engineering qualification
requirements. Navy ships typically use the lowest speed practical given
individual mission needs. NMFS has reviewed the Navy's analysis of
these additional restrictions and the impacts they would have on
military readiness and concurs with the Navy's assessment that they are
impracticable. That said, NMFS has strengthened its mitigation
requirement requiring Navy personnel to maneuver if marine mammals are
observed to add ``which may include reducing speed as the mission or
circumstances allow'' to emphasize that reduction of speeds should be
considered where appropriate. Of note, current Navy Standard Operating
Procedures and mitigations require a minimum of at least three Lookouts
on duty on Navy cruisers and destroyers while underway and, so long as
safety of navigation is maintained, to keep 500 yards away from large
whales and 200 yards away from other marine mammals (except for bow-
riding dolphins and pinnipeds hauled out on shore or man-made
navigational structures, port structures, and vessels).
Previously, the Navy commissioned a vessel density and speed report
based on an analysis of Navy ship traffic in the HSTT Study Area
between 2011 and 2015. Median speed of all Navy vessels within the HSTT
Study Area is typically already low, with median speeds between 5 and
12 kn (9.2 to 22.2 km per hour). Further, the presence and transits of
commercial and recreational vessels, annually numbering in the
thousands, poses a more significant risk to large whales than the
presence of Navy vessels. The Vessel Strike subsection of the Estimated
Take of Marine Mammals section of the 2020 HSTT final rule and this
rule and the 2018 HSTT FEIS/OEIS chapter 3 (Affected Environment and
Environmental Consequences) section 3.7.3.4.1 (Impacts from Vessels and
In-Water Devices) and Appendix K, section K.4.1.6.2 (San Diego (Arc)
Blue Whale Feeding Area Mitigation Considerations), explain the
important differences between most Navy vessels and their operation and
commercial ships that make Navy vessels much less likely to strike a
whale.
When developing Phase III mitigation measures, the Navy analyzed
the potential for implementing additional types of mitigation, such as
vessel speed restrictions within the HSTT Study Area. The Navy
determined that based on how the training and testing activities will
be conducted within the HSTT Study Area, vessel speed restrictions
would be incompatible with practicability criteria for safety,
sustainability, and training and testing missions, as described in
chapter 5 (Mitigation), section 5.3.4.1 (Vessel Movement) of the 2018
HSTT FEIS/OEIS. NMFS fully reviewed this analysis and concurs with the
Navy's conclusions. During the promulgation of this final rule, NMFS
again discussed the potential for vessel speed restrictions, including
during limited times and areas, and Navy continued to assert that such
restrictions are not practicable. After thorough discussion, NMFS again
concurs with the Navy's conclusions.
Regarding the recommendation for Navy to send alerts of increased
risk of strike to non-Navy vessels (such as through the WhaleAlert
app), Navy has informed NMFS that transmitting information between Navy
and civilian vessels poses security risks that make sending alerts to
non-Navy vessels impracticable.
Regarding the recommendations for the measure described in number 4
to be implemented when a single whale is sighted and in all areas, Navy
asserts that doing so is not practicable as it would interfere with its
mission success. Four whales was determined to be the appropriate
trigger for this measure as it represents an increased strike risk
without occurring so often that this measure becomes impracticable for
the Navy to implement. Regarding the geographic limitations, this
measure would apply to the area between 32-33 degrees North and 117.2-
119.5 degrees West, which includes the locations where recent (2009,
2021, 2023) strikes occurred, and historic locations where strikes
occurred when precise latitude and longitude were known. Given that
this area includes the location where all known strikes have occurred,
NMFS anticipates that this measure is of particular importance in this
area, and Navy asserted that implementing this measure more broadly
would be impracticable, as it could divert the attention of bridge
personnel from other critical tasks.
As stated by the commenter, the Navy will evaluate future revisions
to online or DVD MSAT video training to emphasize that when a protected
species is spotted, this may be an indicator that additional marine
mammals are present and nearby, and the vessel should take this into
consideration when transiting. NMFS does not dictate exactly what
measure must be taken, as different situations warrant different
actions and may have different safety and practicability
considerations.
The 2023 HSTT proposed rule and this final rule include two new
mitigation measures beyond that required by the 2020 HSTT final rule
and modification of two existing mitigation measures. Please see NMFS'
response to Comment 15.
With the exception of the recommended mitigation measures discussed
within this Comments and Responses section, the commenter has not
demonstrated why NMFS has not met the least practicable adverse impact
standard. As described in the Mitigation Measures section of this final
rule, NMFS has included the mitigation requirements necessary to
achieve the least practicable adverse impact on the affected species or
stocks and their habitat.
Comment 15: Multiple commenters stated that, rather than
authorizing additional take by serious injury or mortality by vessel
strike, NMFS should require the Navy to implement additional mitigation
measures to avoid harassment and future vessel strikes of large whales.
Commenters specifically referenced the 2021 Royal Australian Navy
vessel strikes of fin whales, with one commenter referencing what it
describes as NMFS' acknowledgement of the susceptibility of fin whales
to vessel strike year-round, and another stating that the Royal
Australian Navy vessel strikes should be factored into the take
calculation for the HSTT Study Area.
In a related comment, a commenter questioned whether the Navy can
[[Page 4960]]
continuously keep asking for more takes if they continue to reach their
authorized number.
Response: Based on the available information at the time that the
2020 HSTT final rule was promulgated, NMFS' analysis suggested that
three takes by serious injury or mortality by vessel strike over the 7-
year duration of the HSTT rule could occur. To date, NMFS is aware of
three confirmed vessel strikes of large whales by U.S. Navy vessels
during the current regulatory period. While those three takes are
within what NMFS anticipated could occur, given that three years
remained of the effective period of the rule when the first two strikes
occurred, the Navy reanalyzed the potential for take by mortality and
serious injury by vessel strike over the duration of the rule, and that
analysis suggested that additional takes could occur. NMFS' subsequent
analysis also suggested that two additional takes could occur over the
remainder of the regulatory period. NMFS requires the Navy to implement
mitigation measures to reduce the potential for vessel strike; however,
this mitigation is not quantitatively incorporated into NMFS' analysis,
and therefore, does not reduce the number of takes that NMFS
authorizes.
Regarding mitigation, the 2023 HSTT proposed rule and this final
rule include two new mitigation measures beyond that required by the
2020 HSTT final rule and modification of two existing mitigation
measures. The new measures include:
Navy personnel must issue real-time notifications to Navy
vessels of large whale aggregations (four or more whales) within 1 nmi
(1.9 km) of a Navy vessel in a select area of SOCAL; and
Navy personnel must send alerts to Navy vessels of
increased risk of strike following any reported Navy vessel strike in
the HSTT Study Area.
Additionally, the 2020 HSTT final rule (85 FR 41780, July 10, 2020)
requires Navy personnel to issue seasonal awareness notification
messages to alert ships and aircraft to the possible presence of blue
whales, humpback whales, gray whales, and fin whales in the seasons
that they are most likely to occur in the HSTT Study Area. These
messages assist in maintaining safety of navigation and in avoiding
interactions with large whales during transits. This final rule
requires the Navy to re-title the spring blue whale message (released
in June) to a large whale awareness message inclusive of typical
spring-summer large whales in southern California (mainly blue, fin,
and humpback whales), as included in the 2023 HSTT proposed rule.
Furthermore, rather than tying the message release to a specific month,
the message would be for a period based on predicted oceanographic
conditions for a given year.
For vessel movement, the 2020 HSTT final rule (85 FR 41780, July
10, 2020) required that ``when underway, Navy personnel must observe
the mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must maneuver to maintain distance.'' This measure has
been updated to state that reducing speed may be an appropriate way to
maneuver, as included in the 2023 HSTT proposed rule. Please see the
Mitigation Measures section for a full discussion of these new and
revised measures.
NMFS anticipates that additional vessel strike of large whales
could still occur even in consideration of these additional and
modified mitigation measures (noting that the mitigation measures are
not quantitatively included in the vessel strike calculation).
Therefore, NMFS is authorizing two additional takes of large whales by
serious injury or mortality by vessel strike over the 7-year duration
of the HSTT rule (two takes in addition to the three takes authorized
in the current regulations). In the 2023 HSTT proposed rule and this
final rule, NMFS describes factors that make fin whales particularly
susceptible to vessel strike by the Navy in southern California (e.g.,
occurrence, Navy vessel strike history in SOCAL, year-round
occurrence). As such, NMFS analysis suggests that of the five total
takes by serious injury or mortality by vessel strike of large whales,
up to four of those takes could be of the CA/OR/WA stock of fin whale.
Regarding the suggestion that the Royal Australian Navy vessel strike
of two fin whales should be factored into the take calculation for the
HSTT Study Area, as explained in the 2023 HSTT proposed rule and in the
Vessel Strike section of this final rule, according to the U.S. Navy,
the May 2021 vessel strike of two fin whales by a Royal Australian Navy
vessel did not occur while that vessel was participating in a U.S.
Navy-led training exercise, and the strike of those two fin whales is
not included in the estimated take by vessel strike calculation.
Instead, NMFS considered the 2021 vessel strike by the Royal Australian
Navy along with other strike information when determining which species
could be among the estimated large whales struck.
Regarding a commenter's concern about whether the Navy can
continuously keep asking for more takes if they continue to reach their
authorized number, as stated in the Background section of this final
rule, an authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stocks and will not have an unmitigable adverse impact on the
availability of the species or stocks for taking for subsistence uses
(where relevant) (16 U.S.C. 1371(a)(5)(A)). Further, NMFS must
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on the affected species
or stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance, and on the
availability of such species or stocks for taking for certain
subsistence uses (referred to in this rule as ``mitigation measures'');
and requirements pertaining to the monitoring and reporting of such
takings (16 U.S.C. 1371(a)(5)(A)). NMFS has made the required findings,
and therefore, it must issue the requested incidental take
authorization to the Navy.
Comment 16: The 2023 HSTT proposed rule (88 FR 68290, October 3,
2023) states: ``The 2021 NAVDORM requires the use of three Lookouts on
Navy cruisers and destroyers as compared to the previous requirement of
one Lookout when a vessel was underway and not engaged in sonar
training or testing. However, as discussed in the Mitigation Measures
section below, the Navy informed NMFS that requiring the additional
Lookouts as mitigation is not practicable because this SOP may change
in response to manning issues and national security needs.'' A
commenter stated that NMFS should reject the Navy's explanation for why
three lookouts on cruisers and destroyers are not practicable. In a
related comment, a commenter stated that the 2023 HSTT proposed rule
seeks to reduce the number of lookouts (the simplest and cheapest
mitigation strategy) from three to one, and recommended increased
numbers of lookouts as a mitigation measure. This commenter also
recommended enhancing bridge resource management. A commenter also
recommended training for Lookouts.
Response: Neither the 2023 HSTT proposed rule nor this final rule
propose a reduction in the number of lookouts required on Navy vessels,
and it is unclear what the commenter means by enhancing bridge resource
management, though it is important to note that all bridge
watchstanders including Lookouts take the Navy's Marine Species
Awareness Training that NMFS has reviewed and approved. The
[[Page 4961]]
commenter did not suggest what additional training Lookouts should
receive. As a general matter, NMFS' evaluation of least practicable
adverse impact appropriately relies heavily on input from the applicant
regarding the practicability of any given measure provided the
explanation is reasonable and clear. Further, the 2004 NDAA amended the
MMPA as it relates to military readiness activities and the incidental
take authorization process such that a determination of ``least
practicable adverse impact'' shall include consideration of personnel
safety, practicality of implementation, and impact on the effectiveness
of the military readiness activity and consultation with the Department
of Defense on these considerations (see 16 U.S.C. 1371(a)(5)(A)(iii)).
The Navy has clearly indicated the need for flexibility to effectively
carry out foreseeable military readiness activities, such that
requiring additional Lookouts at all times would be impracticable, and
we concur with that assessment.
Comment 17: A commenter stated that if the Navy is allowed a
greater number of incidental takes on marine life, it must enforce
strategies to avoid such incidents and suggested that the Navy expand
its existing precautions to protect marine life and minimize takes of
marine animals. The commenter encourages the Navy to (1) continue
implementing state-of-the-art technology and best practices to reduce
underwater noise and disturbance during training exercises,
particularly in areas where marine mammals are known to inhabit, (2)
collaborate with marine biologists and conservation experts to
continually monitor the effects of Navy activities on marine life and
suggest corrective actions when necessary, (3) consider adjusting the
timing or location of training exercises to minimize their impact on
critical marine habitats and migration paths, and (4) promote
transparency and cooperation by engaging with environmental
organizations and local communities to develop and assess mitigation
strategies collaboratively. In a related comment, another commenter
stated that advanced technologies should allow the United States
military to maintain readiness standards and protect wildlife.
Response: NMFS worked closely with the Navy to investigate the
recent vessel strikes and to identify ways to improve mitigation
measures. This final rule includes revision to two existing mitigation
measures and two new mitigation measures beyond that included in the
2020 HSTT final rule (85 FR 41780, July 10, 2020; described further in
response to Comment 15). Of note, this final rule authorizes additional
take by serious injury or mortality by vessel strike beyond that
authorized by the 2020 HSTT final rule. This final rule does not
authorize additional take by Level A or Level B harassment. However, as
discussed in the Mitigation Measures section of this final rule,
elsewhere in this section, and in chapter 5 (Mitigation) of the 2018
HSTT FSEIS/OEIS, the Navy will implement extensive mitigation, both
procedural mitigation and mitigation areas, to avoid or reduce
potential impacts from the HSTT activities on marine mammals, including
impacts from sonar and explosives. (Note that additional measures and
revisions to some existing measures have been made since publication of
this FEIS/OEIS). Specifically, the Navy would use a combination of
delayed starts, powerdowns, and shutdowns to minimize the likelihood of
M/SI, minimize the likelihood or severity of PTS or other injury, and
reduce instances of TTS or more severe behavioral disruption caused by
acoustic sources or explosives. The Navy will limit activities (active
sonar, explosive use, major training exercises (MTEs), etc.) to varying
degrees in multiple areas that are important to sensitive species or
for critical behaviors in order to minimize impacts that are more
likely to lead to adverse effects on rates of recruitment or survival.
The mitigation measures would reduce the probability and/or severity of
impacts expected to result from acute exposure to acoustic sources or
explosives, vessel strike, and impacts to marine mammal habitat. Please
see the Mitigation Measures section of this final rule for additional
detail regarding required mitigation measures.
Regarding best practices to reduce underwater noise, most of the
Navy's vessels already have state of the art quieting technologies
employed to reduce their sound profile to assist them in avoiding
detection by enemy forces, therefore, they are much quieter than
commercial/recreational vessels of similar sizes.
Regarding monitoring the effects of Navy activities on marine life
and the commenter's recommendation to take corrective actions when
necessary, as required by this final rule, the Navy implements a robust
monitoring program. Although the Navy has been conducting research and
monitoring in the HSTT Study Area for over 20 years, it developed a
formal marine species monitoring program in support of the MMPA and ESA
authorizations for the Hawaii and Southern California range complexes
in 2009. This robust program has resulted in hundreds of technical
reports and publications on marine mammals that have informed Navy and
NMFS analyses in environmental planning documents, rules, and
Biological Opinions. The reports are made available to the public on
the Navy's marine species monitoring website
(www.navymarinespeciesmonitoring.us) and the data on the Ocean
Biogeographic Information System Spatial Ecological Analysis of
Megavertebrate Populations (OBIS-SEAMAP) (www.seamap.env.duke.edu). For
additional information about the Navy's monitoring program, please see
the Monitoring section herein and the websites listed above.
Further, the regulations governing the take of marine mammals
incidental to Navy training activities in the HSTT Study Area contain
an adaptive management component. Our understanding of the effects of
Navy training and testing activities (e.g., acoustic and explosive
stressors) on marine mammals continues to evolve, which makes the
inclusion of an adaptive management component both valuable and
necessary within the context of 7-year regulations. Please see the
Adaptive Management section of this final rule for additional
information.
Regarding transparency and cooperation, the MMPA does not require
an independent review of mitigation measures. It does require notice
and opportunity for public comment (16 U.S.C. 1371(a)(5)(A)(i)). The
public comment period is a means by which the public (e.g.,
environmental organizations and local communities) are able to provide
NMFS with mitigation measure recommendations supported by scientific
evidence that NMFS takes into consideration when finalizing the
rulemaking.
Comment 18: A commenter stated that measures should be taken to
cease any more actions potentially impacting marine mammals. The 2023
HSTT proposed rule (88 FR 68290, October 3, 2023) states that results
of a study indicated that Navy Lookout Teams, which include lookouts
and other crew members, have approximately an 80 percent chance of
failing to detect a pod of large whales beyond 200 yd (182.9 m),
compared with a 49 percent chance for trained marine mammal observers.
The commenter recommended that the Navy hire trained marine mammal
observers to keep the incidents of whale take to the original take
numbers or less, and not need to have modifications to the LOA for
additional animal take. The
[[Page 4962]]
commenter also recommended having experts that can accurately assess
the physical and mental health of these animals. In a related comment,
a commenter stated that the rule calls into question whether the three
vessel strikes that have occurred were due to the crew not spotting the
whales, not spotting them before the strike, or the Navy not
emphasizing the importance of spotting and avoiding marine wildlife to
its personnel.
Response: As described in the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023), a recent study by Oedekoven and Thomas (2022) was
designed to evaluate the effectiveness of Navy Lookouts at detecting
marine mammals before they entered a defined set of mitigation zones
(i.e., 200, 500, and 1,000 yd (182.9, 457.2, and 914.4 m)) during MFAS
training activities. This study also compared Lookout effectiveness
with that of trained marine mammal observers. Lookout teams were
comprised of varying numbers of Lookouts depending on the type of ship
and the training activity that was occurring (noting that the data was
collected prior to the Navy's change in its SOPs to require the use of
three Lookouts on Navy cruisers and destroyers). Marine mammal observer
teams consisted of two dedicated observers. As noted by the commenter,
results of this study indicate that Navy Lookout Teams, which include
Lookouts and other crew members, have approximately an 80 percent
chance of failing to detect a pod of large baleen whales (rorquals)
before they come closer than a mitigation range of 200 yd (182.9 m),
compared with a 49 percent chance for trained marine mammal observers.
The probability of a pod remaining undetected by Lookouts was greater
for larger mitigation zones (i.e., 85 percent at 500 yd (457.2 m); 91
percent at 1,000 yd (914.4 m)). These values require some level of
interpretation with regard to the numerical results. For instance, the
study's statistical model assumed that Navy ships moved in a straight
line at a set speed for the duration of the field trials, and that
animals could not move in a direction perpendicular to a ship.
Violation of this model assumption would underestimate Lookout
effectiveness for some data points. The values for both Navy Lookouts
and the Marine Mammal Observers include animals under the water that
would not have been available for detection by a Lookout. This study
suggests that detection of marine mammals is less certain than
previously assumed at certain distances. While this study suggests that
trained marine mammal observers are more effective than Navy Lookouts,
the Navy has asserted that it is impracticable to station independent
marine mammal observers on Navy vessels. When making the least
practicable adverse impact determination for military readiness
activities, NMFS must consider personnel safety, practicality of
implementation, and impact on the effectiveness of the military
readiness activities and must consult with the Department of Defense on
these considerations (16 U.S.C. 1371(a)(5)(A)(iii)). As described in
section 5.5.5 (Third-Party Observers) of the 2018 HSTT FEIS/OEIS, use
of third-party observers on Navy vessels or aircraft would result in
safety and security clearance issues, berthing shortages or exceedance
of other space limitations, impacts to Lookouts' abilities to complete
their other mission-essential duties, and unsustainable costs, among
other issues. Please see the 2018 HSTT FEIS/OEIS for additional detail.
Lookouts remain an important component of the Navy's mitigation
strategy, especially as it relates to minimizing exposure to the more
harmful impacts that may occur within closer proximity to the source,
where Lookouts are most effective. Further, NMFS and the Navy are also
considering, through the adaptive management process, whether there are
additional measures that would be practicable to implement that would
improve effectiveness of Lookouts, such as enhanced personnel training.
As described in the 2023 HSTT proposed rule (88 FR 68290, October
3, 2023), the 2021 U.S. Navy vessel strikes were the first known U.S.
Navy vessel strikes in the HSTT Study Area since 2009. Historically,
military vessel strikes of large whales within the HSTT Study Area have
been rare events with only seven such strikes occurring over the past
14 years, five U.S. Navy strikes, and two Royal Australian Navy
strikes. Based on the Navy and NMFS' investigation of these recent
strike incidents, NMFS found that the Navy was substantially following
the required mitigation protocols, consistent with 16 U.S.C.
1371(a)(5)(B). These recent vessel strike reports (2021, 2023) appear
to reflect the sporadic, episodic, or clustered nature of vessel strike
or may reflect a trend of increased large whale presence in this area
in the early summer months. Given the size of Navy vessels and the need
to maintain specific speeds during certain activities, even if a whale
is detected, a U.S. Navy vessel may not be able to avoid a strike.
Therefore, given the potential shift in factors contributing to vessel
strike, and the challenges in avoiding potential strikes, it is
important to ensure that the compliance process addresses the
appropriate number of potential strikes and that they are considered in
the negligible impact determination, which is why it was necessary to
evaluate the authorization of an additional two takes by strike. The
MMPA provides for the authorization of incidental take caused by
specified activities, provided certain findings are made. The law
directs NMFS to process adequate and complete applications for
incidental take authorization, and issue the authorization provided all
statutory findings and requirements, as well as all associated legal
requirements, are met.
It is unclear how having experts that can accurately assess the
physical and mental health of these animals, as suggested by the
commenter, would assist in mitigating the effects of the Navy's
activities, nor has the commenter provided detail explaining how. The
required procedural mitigation measures are implemented within defined
ranges based on established criteria, and implementation does not rely
on a visual assessment of behavioral or physiological effects to
animals. In its analysis, NMFS does consider the potential impacts of
stress on marine mammals from exposure to the Navy's activities. Please
see the Stress Response section of the 2018 HSTT Proposed Rule for a
discussion of stress responses in marine mammals. Further, since that
discussion, additional information about stress responses has become
available (e.g., Houser et al. (2020); Houser et al. (2021)). However,
the additional studies do not change the expected potential impacts of
stress on marine mammals from exposure to the Navy's activities.
NMFS thoroughly discussed each of the strikes with the Navy, and
summarized the circumstances surrounding each strike in the Estimated
Take From Vessel Strikes and Explosives by Serious Injury or Mortality
section of the 2023 HSTT proposed rule ((88 FR 68290, October 3, 2023)
and the Authorized Take From Vessel Strikes and Explosives by Serious
Injury or Mortality section of this final rule. The circumstances
surrounding whale detection ahead of each strike varied. However, of
note, Navy vessels routinely successfully maneuver to avoid large
whales. Between 2009 and 2021 (the most recent year for which data is
available), U.S. Navy vessels in the SOCAL portion of the HSTT Study
Area maneuvered 316 times to avoid large whales during MTEs. The years
[[Page 4963]]
2017 and 2021 had the highest number of maneuvers (n = 64 and n = 82,
respectively). In all years for which data is available (2009 to 2021),
Navy cruisers and destroyers account for 51 to 100 percent of maneuvers
during MTEs to avoid whales.
Comment 19: A commenter, referencing two news articles, stated that
new information indicates that the Navy is increasingly using unmanned
systems, which cannot replace human monitoring, even if useful in
addition to the lookouts and observers NMFS relies on to mitigate and
monitor the impacts of the Navy's activities on marine mammals.
Response: As stated in the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023), the Navy's proposed activities have not changed from
that analyzed in the 2018 final rule (83 FR 66846, December 27, 2018)
or the 2020 final rule (85 FR 41780, July 10, 2020). Impacts from all
unmanned systems that would be used in training and testing activities
under this proposed rule have been accounted for in the analysis.
Neither NMFS nor the Navy have proposed to replace human marine mammal
monitoring with monitoring by unmanned systems.
Determinations
Comment 20: A commenter stated that NMFS has neither adequately
evaluated nor met the negligible impact standard for the following
reasons:
1. The negligible impact determination dismisses the important fact
that vessel strikes already pose a substantial threat to large whales
in the region, and several populations are already exceeding PBR.
Endangered blue whales, threatened and endangered humpback whales, and
endangered fin whales off the coast of Southern California are
particularly vulnerable, with even one additional ship strike
constituting a significant impact.
2. NMFS has failed to consider the impacts of the full scope of
training exercises over 7 years on marine mammals, including joint
training exercises with foreign fleets. The commenter further asserted
that what is not unsaid in the rule, but is critically important, is
that the Navy's activities over 7 years (in contrast to the five
already authorized) has never been evaluated under the MMPA, ESA, or
NEPA. The commenter stated that this underscores that NMFS has not
taken the measures needed to ensure the Navy's activities in the HSTT
Study Area will have no more than a negligible impact on endangered
whales and other marine mammals in the Pacific Ocean over the full 7
years of the proposed authorization. NMFS must reexamine the increased
risk and incidence of vessel strikes in light of the Navy's full suite
of impacts on large whales and other marine mammals (over this extended
period of time) and decline to authorize this additional take.
Response: NMFS disagrees with the commenter's assertion that it has
not adequately evaluated nor met the negligible impact standard. NMFS
assessed all of the best available information about the relative risk
of vessel strikes by commercial, recreational, and military vessels in
the Vessel Strike section of this final rule. As explained in the
Serious Injury or Mortality subsection of the Analysis and Negligible
Impact Determination section of the 2018 HSTT final rule, the 2020 HSTT
final rule, and this final rule, NMFS may find the impact of the
authorized take from a specified activity to be negligible even if
total human-caused mortality exceeds PBR, if the authorized mortality
is less than 10 percent of PBR and management measures are being taken
to address serious injuries and mortalities from the other activities
causing mortality (i.e., other than the specified activities covered by
the incidental take authorization in consideration, including vessel
strike from other actions). When those considerations are applied in
the section 101(a)(5)(A) context here, the authorized lethal take (0.14
annually) of humpback whales from the Mainland Mexico- CA/OR/WA stock,
and blue whales from the Eastern North Pacific stock are less than 10
percent of PBR (less than 1 percent for humpback whales from the
Mainland Mexico- CA/OR/WA stock and 3 percent for blue whales from the
Eastern North Pacific stock). The authorized lethal take (0.57
annually) of fin whales from the CA/OR/WA stock is less than 10 percent
of PBR also (less than 1 percent). There are management measures in
place to address the mortality and serious injury from the activities
other than those the Navy is conducting. For the complete discussion of
how NMFS carefully considered potential mortalities from the Navy's
activities in light of PBR levels, including an explanation for why
mortality above PBR will not necessarily induce population-level non-
negligible impacts, see the discussion in this rule, the 2020 HSTT
final rule, and the 2018 HSTT final rule.
NMFS acknowledges that the removal of a reproductive female (or any
female) could be more impactful to the status of a population than the
removal of a male. However, the PBR framework that supports the
negligible impact finding inherently considers the likelihood that the
human-caused mortalities being considered may consist of a random
distribution of individuals of different sex in different life stages.
Also, beyond the low likelihood of striking a whale at all, the
likelihood of hitting a female is even lower.
It is important to note that the only change to the number of takes
proposed by the 2023 HSTT proposed rule was to the take by vessel
strike to account for new information since publication of the 2020
HSTT final rule. The 2020 HSTT final rule analyzed and authorized take
of marine mammals over a 7-year period, not 5 years as noted by the
commenter, and NMFS conducted the appropriate level of MMPA, ESA, and
NEPA analysis to comply with both statutes during the promulgation of
the 2020 HSTT final rule.
As stated in the Preliminary Analysis and Negligible Impact
Determination section of the 2023 HSTT proposed rule (88 FR 68290,
October 3, 2023) and the Analysis and Negligible Impact Determination
section of this final rule, while this rule consists of a modification
of take by M/SI by vessel strike, NMFS considers the impacts of the
entire specified activity and the total taking in the negligible impact
determination. In consideration of the total taking, including take by
mortality, Level A harassment, and Level B harassment, NMFS finds that
the incidental take from the specified activities will have a
negligible impact on all affected marine mammal species and stocks.
Consistent with 40 CFR 1502.9 and the information and analysis
contained in this final rule, the Navy and NMFS as a cooperating agency
made a determination that this final rule and the subsequent LOAs will
not result in significant impacts that were not fully considered in the
2018 HSTT FEIS/OEIS. As indicated in the 2023 HSTT proposed rule, the
Navy has made no substantial changes to the activities nor are there
significant new circumstances or information relevant to environmental
concerns or their impacts.
NMFS and the Navy reinitiated consultation under the ESA. NMFS
issued a reinitiated Biological and Conference Opinion on June 3, 2024
concluding that the issuance of the 2024 HSTT final rule and subsequent
LOAs are not likely to jeopardize the continued existence of the
threatened and endangered species under NMFS' jurisdiction and are not
likely to result in the destruction or adverse modification of critical
habitat in the HSTT Study Area. The opinion is
[[Page 4964]]
available at https://doi.org/10.25923/7y9x-vw84.
Please also see NMFS' response to Comment 7 regarding foreign
vessels.
Comment 21: Commenters stated that they oppose this proposed
promulgation of modified regulations and associated LOAs for the Navy
because it is not consistent with MMPA mandates that require NMFS to
ensure activities have no more than a negligible impact on marine
mammal species or stocks and that they have the least practicable
adverse impact on marine mammal species, stocks, and habitat. In a
related comment, a commenter stated that this rule would disregard the
previously established boundaries between the Navy and NMFS and would
also disregard the push the United States claims to have for the
protection of marine wildlife. The commenter stated that it perceives
the request to be heavily hypocritical of the same government that
implemented regulations to protect marine wildlife that teeter on the
edge of the endangered species list, to reach for an exception for its
military, and further that the proposed amendment is unethical,
hypocritical, and unnecessary.
Response: The MMPA requires NMFS to authorize the incidental take
of marine mammals by specified activities upon request if certain
findings are made (16 U.S.C. 1371(a)(5)(A)). Here, the Navy submitted
an application requesting two additional takes of large whales by
serious injury or mortality by vessel strike through modification of
the existing regulations and LOAs. As required by the MMPA, NMFS
conducted the analysis described in the 2023 HSTT proposed rule and
this final rule and made all required findings (preliminarily, in the
case of the 2023 HSTT proposed rule), including finding that the Navy's
activities will have a negligible impact on marine mammals and that the
required mitigation measures will effect the least practicable adverse
impact on marine mammals. Therefore, promulgation of this final rule is
appropriate.
Please see the Mitigation Measures section of this final rule for
additional discussion of the required mitigation measures and NMFS'
least practicable adverse impact finding.
Other Regulatory Processes
Comment 22: A commenter stated that the Navy issued an EIS
purporting to analyze the environmental impacts of its training and
testing activities in the HSTT Study Area. NMFS was a cooperating
agency for the 2018 HSTT FEIS/OEIS. The EIS considered only three
alternatives in detail: the No Action Alternative under which the
Navy's training activities would not occur; Alternative 1 that
considered fluctuations in training cycles, testing requirements, and
deployment schedules based on global demand and other factors and
included the Navy's entire suite of mitigation measures; and
Alternative 2 that considered a higher number of training exercises and
sonar hours than in Alternative 1 and included the Navy's entire suite
of mitigation measures. Alternative 1 was the preferred and adopted
alternative. The commenter stated that none of the Navy's alternatives
considered in detail an alternative that would require mandatory speed
limits to avoid collisions with endangered whales.
Response: While none of the Navy's alternatives considered in the
2018 HSTT FEIS/OEIS include mandatory vessel speed limits, the Navy
conducted an operational analysis of potential mitigation throughout
the entire Study Area to consider a wide range of mitigation options,
including but not limited to vessel speed restrictions. As discussed in
chapter 3, section 3.0.3.3.4.1 (Vessels and In-Water Devices) of the
2018 HSTT FEIS/OEIS, Navy ships transit at speeds that are optimal for
fuel conservation or to meet operational requirements. Operational
input indicated that implementing additional vessel speed restrictions
beyond what is identified in chapter 5 (Mitigation), section 5.4
(Mitigation Areas to be Implemented) of the 2018 HSTT FEIS/OEIS would
be impracticable to implement due to implications for safety and
sustainability. In its assessment of potential mitigation, the Navy
considered implementing additional vessel speed restrictions (e.g.,
expanding the 10 kn (18.5 km per hour) restriction to other
activities). The Navy determined that implementing additional vessel
speed restrictions beyond what is described in chapter 5 (Mitigation),
section 5.5.2.2 (Restricting Vessel Speed) of the 2018 HSTT FEIS/OEIS
would be impracticable due to implications for safety (the ability to
avoid potential hazards), sustainability (maintain readiness), and the
Navy's ability to continue meeting its Title 10 requirements to
successfully accomplish military readiness objectives. Additionally, as
described in chapter 5 (Mitigation), section 5.5.2.2 (Restricting
Vessel Speed) of the 2018 HSTT FEIS/OEIS, any additional vessel speed
restrictions would prevent vessel operators from gaining skill
proficiency, would prevent the Navy from properly testing vessel
capabilities, or would increase the time on station during training or
testing activities as required to achieve skill proficiency or properly
test vessel capabilities, which would significantly increase fuel
consumption. As discussed in chapter 5 (Mitigation), section 5.3.4.1
(Vessel Movement) of the 2018 HSTT FEIS/OEIS, the Navy implements
mitigation to avoid vessel strikes throughout the Study Area.
Additionally, this final rule includes two new mitigation measures
beyond that required by the 2020 HSTT final rule and modification of
two existing mitigation measures. These measures are described in
response to Comment 15 and the Mitigation Measures section of this
final rule.
Comment 23: A commenter stated that agencies must prepare
supplemental EISs if: ``(i) The agency makes substantial changes in the
proposed action that are relevant to environmental concerns; or (ii)
There are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts'' (40 CFR 1502.9(d)(1)). The commenter stated that because
these triggers have been met, it urges NMFS to prepare a supplemental
EIS on the basis of the new information that has come to light since
2018, including on the impacts of vessel strikes on large whales and on
alternatives that reduce vessel strike impacts to marine mammals.
Response: NMFS disagrees with the commenter that supplemental NEPA
evaluation is warranted. As described in the National Environmental
Policy Act section herein, consistent with 40 CFR 1502.9(d) and the
information and analysis contained in this rule, the Navy and NMFS as a
cooperating agency have determined that this final rule and any
subsequent LOAs would not result in significant impacts that were not
fully considered in the 2018 HSTT FEIS/OEIS. As indicated in this final
rule and a supplemental information report prepared by NMFS, the Navy
has made no substantial changes to the activities that are relevant to
environmental concerns; nor are there substantial new circumstances or
information about the significance of adverse effects that bear on the
analysis.
Comment 24: A commenter stated that despite the new 2020
authorization--and the additional extensive take and other impacts it
enables--NMFS has not completed new ESA consultation or a supplemental
NEPA evaluation. The Navy is operating under the 2018 BiOp and 2018
EIS. Since NMFS issued the 2018 BiOp and EIS, a slew of new
information--in addition to the expanded scope of the Navy's
[[Page 4965]]
activities--indicates that the Navy's activities in the HSTT Study Area
are likely affecting ESA-listed species to an extent not previously
considered.
In a related comment regarding ESA compliance, a commenter stated
that the proposed rule states, ``NMFS has also reinitiated consultation
internally on the issuance of these proposed, revised regulations and
LOAs under section 101(a)(5)(A) of the MMPA.'' The commenter noted that
when reinitiation is required, ``the original opinion loses its
validity, as does its accompanying incidental take statement, which
then no longer shields the action agency from penalties for takings''
(Ctr. for Biological Diversity v. BLM, 698 F.3d 1101, 1108 (9th Cir.
2012)). A commenter stated that it awaits the conclusion of this
reinitiated consultation and expects a revised biological opinion that
fully complies with the ESA's standards.
Response: NMFS has fully complied with the ESA and NEPA. NMFS
described the ESA section 7 consultation history for this action in the
Endangered Species Act section of the 2023 HSTT proposed rule and this
final rule. As described in that section, NMFS consulted internally on
the issuance of the 2018 HSTT regulations and LOAs under section
101(a)(5)(A) of the MMPA.
NMFS issued a Biological Opinion on December 10, 2018 concluding
that the issuance of the 2018 HSTT final rule and subsequent LOAs are
not likely to jeopardize the continued existence of the threatened and
endangered species under NMFS' jurisdiction and are not likely to
result in the destruction or adverse modification of critical habitat
in the HSTT Study Area. The 2018 Biological Opinion included specified
conditions under which NMFS would be required to reinitiate section 7
consultation. NMFS reviewed these specified conditions for the 2020
HSTT rulemaking and determined that reinitiation of consultation was
not warranted. The incidental take statement that accompanied the 2018
Biological Opinion was amended to cover the 7-year period of the 2020
HSTT rule. The 2018 Biological Opinion for this action is available at
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
The 2018 Biological Opinion reinitiation clause (2), states that
formal consultation should be reinitiated if ``new information reveals
effects of the agency action that may affect ESA-listed species or
critical habitat in a manner or to an extent not previously
considered.'' Given the new information regarding the recent occurrence
of large whale strikes by naval vessels in the southern California
portion of the HSTT Study Area, as described herein, the Navy has
reinitiated consultation with NMFS pursuant to section 7 of the ESA for
HSTT Study Area activities, and NMFS has also reinitiated consultation
internally on the issuance of the revised regulations and LOAs under
section 101(a)(5)(A) of the MMPA. On June 3, 2024, NMFS issued a 2024
reinitiated Biological and Conference Opinion concluding that the
issuance of the rule and subsequent LOAs is not likely to jeopardize
the continued existence of the threatened and endangered species under
NMFS' jurisdiction and are not likely to result in the destruction or
adverse modification of critical habitat in the HSTT Study Area. The
2024 reinitiated Biological and Conference Opinion for this action is
available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
NMFS is aware of the statement in Ctr. for Biological Diversity v.
BLM, 698 F.3d 1101, 1108 (9th Cir. 2012) referenced by the commenter.
NMFS' position is that a biological opinion, including its Incidental
Take Statement, for which formal consultation has been re-initiated
remains valid and effective during the consultation and until a new
biological opinion is issued. When the new biological opinion with a
new ITS is issued, it supersedes and replaces the previous opinion and
ITS.
Please see NMFS' response to Comment 23 regarding NEPA compliance.
Changes From the Proposed Rule to the Final Rule
NMFS has added two additional reporting requirements since
publication of the 2023 HSTT proposed rule. First, the Navy's annual
HSTT Training Exercise Report and Testing Activity Report must include
information that tracks the Navy's implementation of the new SOCAL
large whale aggregation real-time reporting mitigation measure. The
report must include the following information for each instance that an
aggregation of large whales is reported: (1) the date, time and general
location (e.g., approximately 10-12 nmi SE of San Clemente Island) of
the whales when the aggregation was first sighted; (2) the total number
of whales observed within 1 nmi of a Navy vessel that make up the
aggregation; and (3) the approximate distance (or distances if more
than one group of whales is sighted) of the vessel from the whales in
the aggregation when the whales were first sighted. To the extent
practicable, this information should be provided in the Navy's
unclassified version of these reports.
Second, the Navy's annual HSTT Training Exercise Report and Testing
Activity Report must include a confirmation that foreign military use
of sonar and explosives, when such militaries are participating in a
U.S. Navy-led exercise or event, combined with the U.S. Navy's use of
sonar and explosives, would not cause exceedance of the analyzed levels
(within each NAEMO modeled sonar and explosive bin) used for estimating
predicted impacts, which formed the basis of the acoustic impacts
effects analysis used to estimate take in this final rule.
NMFS has also made a non-substantive name change in the final rule.
Ziphius cavirostris has multiple common names. In the 2018 HSTT final
rule, 2020 HSTT final rule, and 2023 HSTT proposed rule, NMFS used the
common name Cuvier's beaked whale. In this final rule, NMFS uses the
common name goose-beaked whale instead.
Last, NMFS made several non-substantive changes to the regulations
to add clarity and improve readability.
Description of Marine Mammals and Their Habitat in the Area of the
Specified Activities
Marine mammal species and their associated stocks that have the
potential to occur in the HSTT Study Area are presented in table 1
along with the best/minimum abundance estimate and associated
coefficient of variation value. Consistent with the 2018 HSTT final
rule and 2020 HSTT final rule, the Navy anticipates the take of
individuals from 38 marine mammal species by Level A harassment and
Level B harassment incidental to training and testing activities from
the use of sonar and other transducers, in-water detonations, air guns,
and impact pile driving/vibratory extraction activities. As described
in detail later, serious injury or mortality of six species is also
analyzed and authorized. Two marine mammal species, the Hawaiian monk
seal and the Main Hawaiian Islands Insular DPS of false killer whale,
have critical habitat designated under the ESA (16 U.S.C. 1531 et seq.)
in the HSTT Study Area.
In the 2018 HSTT proposed rule and 2018 HSTT final rule, we
presented a detailed discussion of marine mammals and their occurrence
in the HSTT Study Area, inclusive of important marine mammal habitat
(e.g., ESA-designated critical habitat), BIAs, national marine
sanctuaries (NMSs), and unusual
[[Page 4966]]
mortality events (UMEs). Please see these rules and the 2017 and 2019
Navy applications for additional information beyond what is provided
herein. While there have been some minor changes described here, there
have been no changes to important marine mammal habitat, NMSs, or ESA-
designated critical habitat since the issuance of the 2018 HSTT final
rule that change our determination of which species or stocks have the
potential to be affected by the Navy's activities or the information in
the Description of Marine Mammals and Their Habitat in the Area of the
Specified Activities section in the 2019 HSTT proposed rule and 2020
HSTT final rule. Therefore, the information presented in those sections
of the 2019 HSTT proposed rule and 2020 HSTT final rule remains current
and valid with the exception of the information about UMEs, BIAs, and
revised humpback whale stock structures, discussed below.
On April 21, 2021, NMFS designated critical habitat for the
endangered Western North Pacific DPS, the endangered Central America
DPS, and the threatened Mexico DPS of humpback whales (86 FR 21082).
Areas proposed as critical habitat include specific marine areas
located off the coasts of California, Oregon, Washington, and Alaska.
None of the designated critical habitat overlaps with the HSTT Study
Area. One of the proposed areas, critical habitat Unit 19, would have
overlapped with the SOCAL range in the HSTT Study Area but was excluded
after consideration of potential national security and economic impacts
of designation. NMFS, in the final rule designating critical habitat
for humpback whales, identified prey species, primarily euphausiids and
small pelagic schooling fishes of sufficient quality, abundance, and
accessibility within humpback whale feeding areas to support feeding
and population growth, as an essential habitat feature. NMFS, through a
critical habitat review team (CHRT), also considered inclusion of
migratory corridors and passage features, as well as sound and the
soundscape, as essential habitat features. NMFS did not include either
in the final critical habitat, however, as the CHRT concluded that the
best available science did not allow for identification of any
consistently used migratory corridors or definition of any physical,
essential migratory or passage conditions for whales transiting between
or within habitats of the three DPSs. The best available science also
currently does not enable NMFS to identify particular sound levels or
to describe a certain soundscape feature that is essential to the
conservation of humpback whales. Regardless of whether critical habitat
is designated for a particular area, NMFS has considered all applicable
information regarding marine mammals and their habitat in the analysis
supporting these final regulations.
NMFS has reviewed the 2023 SARs (Carretta et al. 2024, Young et al.
2024). For all species except humpback whale, NMFS determined that
neither the SARs nor any other new information changes our
determination in the 2020 HSTT final rule of which species or stocks
have the potential to be affected by the Navy's activities. For
humpback whale, the 2023 final SARs include a revision to the humpback
whale stock structure in the Pacific Ocean. In the 2020 HSTT final
rule, NMFS authorized take of the CA/OR/WA stock and Central North
Pacific stock of humpback whale. Given the revised stock structure, in
this final rule, NMFS has reanalyzed the potential for take of each
stock of humpback whale and determined that the Central America/
Southern Mexico-CA/OR/WA, Mainland Mexico--CA/OR/WA stock, and Hawaii
stocks are likely to be taken by the Navy's activities. Please refer to
the 2023 Alaska and Pacific Ocean SARs for additional information about
these new stocks.
The species considered but not carried forward for analysis are two
American Samoa stocks of spinner dolphins--(1) the Kure and Midway
stock and (2) the Pearl and Hermes stock. There is no potential for
overlap with any stressors from Navy activities and therefore there
would be no incidental takes, therefore, these stocks are not
considered further.
Table 1--Marine Mammal Occurrence Within the HSTT Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Status Stock abundance
Common name Scientific name Stock --------------------------------- Occurrence Seasonal (CV)/minimum
MMPA ESA absence population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... Balaenoptera Eastern North Strategic, Endangered Southern - 1,898 (0.085)/
musculus. Pacific. Depleted California. 1,767.
Central North Strategic, Endangered Hawaii.......... Summer 133 (1.09)/63.
Pacific. Depleted
Bryde's whale................. Balaenoptera Eastern Tropical - - Southern - unknown.
brydei/edeni. Pacific. California.
Hawaii.......... - - Hawaii.......... - 791 (0.29)/623.
Fin whale..................... Balaenoptera CA/OR/WA........ Strategic, Endangered Southern - 11,065 (0.405)/
physalus. Depleted California. 7,970.
Hawaii.......... Strategic, Endangered Hawaii.......... Summer 203 (0.99)/101.
Depleted
Humpback whale................ Megaptera Central America/ Strategic Endangered \1\ Southern Winter 1,496 (0.171)/
novaeangliae. Southern California. 1,284.
Mexico--CA/OR/
WA.
Mainland Mexico-- Strategic Threatened \1\ Southern Winter 3,477 (0.101)/
CA/OR/WA. California. 3,185.
Hawai[revaps]i.. - - \1\ Hawaii.......... Summer 11,278 (0.56)/
7,265.
Minke whale................... Balaenoptera CA/OR/WA........ - - Southern - 915 (0.792)/509.
acutorostrata. California.
Hawaii.......... - - Hawaii.......... Summer 438 (1.05)/212.
Sei whale..................... Balaenoptera Eastern North Strategic, Endangered Southern - 864 (0.40)/625.
borealis. Pacific. Depleted California.
Hawaii.......... Strategic, Endangered Hawaii.......... Summer 391 (0.9)/204.
Depleted
Gray whale.................... Eschrichtius Eastern North - - Southern - 26,960 (0.05)/
robustus. Pacific. California. 25,849.
Western North Strategic, Endangered Southern - 290 (NA)/271.
Pacific. Depleted California.
[[Page 4967]]
Sperm whale................... Physeter CA/OR/WA........ Strategic, Endangered Southern - 2,606 (0.135)/
macrocephalus. Depleted California. 2,011.
Hawaii.......... Strategic, Endangered Hawaii.......... - 5,707 (0.23)/
Depleted 4,486.
Pygmy sperm whale............. Kogia breviceps.. CA/OR/WA........ - - Southern Winter and 4,111 (1.12)/
California. Fall 1,924.
Hawaii.......... - - Hawaii.......... - 42,083 (0.64)
25,695.
Dwarf sperm whale............. Kogia sima....... CA/OR/WA........ - - Southern - unknown.
California.
Hawaii.......... - - Hawaii.......... - unknown.
Baird's beaked whale.......... Berardius bairdii CA/OR/WA........ - - Southern - 1,363
California. (0.53)/894.
Blainville's beaked whale..... Mesoplodon Hawaii.......... - - Hawaii.......... - 1,132 (0.99)/
densirostris. 564.
Goose-beaked whale \2\........ Ziphius CA/OR/WA........ - - Southern - 5,454 (0.27)/
cavirostris. California. 4,214.
Hawaii.......... - - Hawaii.......... - 4,431 0.41/
3,180.
Longman's beaked whale........ Indopacetus Hawaii.......... - - Hawaii.......... - 2,550 (0.67)/
pacificus. 1,527.
Mesoplodont beaked whales..... Mesoplodon spp... CA/OR/WA........ - - Southern - 3,044 (0.54)/
California. 1,967.
Common Bottlenose dolphin..... Tursiops California - - Southern - 453 (0.06)/346.
truncatus. Coastal. California.
CA/OR/WA - - Southern - 3,477 (0.696)/
Offshore. California. 2,048.
Hawaii Pelagic.. - - Hawaii.......... - unknown.
Kauai and Niihau - - Hawaii.......... - 112 (0.24)/92.
Oahu............ - - Hawaii.......... - 112 (0.17)/97.
Maui Nui \3\.... - - Hawaii.......... - 64 (0.15)/56.
Hawaii Island... - - Hawaii.......... - 136 (0.43)/96.
False killer whale............ Pseudorca Main Hawaiian Strategic, Endangered Hawaii.......... - 167 (0.14)/149.
crassidens. Islands Insular Depleted
\4\.
Hawaii Pelagic.. - - Hawaii.......... - 5,528 (0.35)/
4,152.
Northwestern - - Hawaii.......... .............. 477 (1.71)/178.
Hawaiian
Islands.
Fraser's dolphin.............. Lagenodelphis Hawaii.......... .............. ............... Hawaii.......... - 40,960 (0.7)/
hosei. 24,068.
Killer whale.................. Orcinus orca..... Eastern North - - Southern - 300 (0.1)/276.
Pacific California.
Offshore.
West Coast - - Southern - 349 (N/A)/349.
Transient. California.
Hawaii.......... - - Hawaii.......... - 161 (1.06)/78.
Long-beaked common dolphin.... Delphinus California...... - - Southern - 83,379 (0.216)/
capensis. California. 69,636.
Melon-headed whale............ Peponocephala Hawaiian Islands - - Hawaii.......... - 40,647 (0.74)/
electra. 23,301.
Kohala Resident. - - Hawaii.......... - unknown.
Northern right whale dolphin.. Lissodelphis CA/OR/WA........ - - Southern - 29,285 (0.72)/
borealis. California. 17,024.
Pacific white-sided dolphin... Lagenorhynchus CA/OR/WA........ - - Southern - 34,999 (0.222)/
obliquidens. California. 29,090.
Pantropical spotted dolphin... Stenella Oahu............ - - Hawaii.......... - unknown.
attenuata.
Maui Nui \3\.... - - Hawaii.......... - unknown.
Hawaii Island... - - Hawaii.......... - unknown.
Hawaii Pelagic.. - - Hawaii.......... - 67,313 (0.27)/
53,839.
Pygmy killer whale............ Feresa attenuata. Tropical........ - - Southern Winter & unknown.
California. Spring
Hawaii.......... - - Hawaii.......... - 10,328 (0.75)/
5,885.
Risso's dolphins.............. Grampus griseus.. CA/OR/WA........ - - Southern - 6,336 (0.32)/
California. 4,817.
Hawaii.......... - - Hawaii.......... - 6,979 (0.29)/
5,283.
Rough-toothed dolphin......... Steno bredanensis NSD \5\......... - - Southern - unknown.
California.
Hawaii.......... - - Hawaii.......... - 83,915 (0.49)/
56,782.
Short-beaked common dolphin... Delphinus delphis CA/OR/WA........ - - Southern - 1,056,308 (0.21)/
California. 888,971.
Short-finned pilot whale...... Globicephala CA/OR/WA........ - - Southern - 836 (0.79)/466.
macrorhynchus. California.
Hawaii.......... - - Hawaii.......... - 19,242 (0.23)/
15,894.
Spinner dolphin............... Stenella Hawaii Pelagic.. - - Hawaii.......... - unknown.
longirostris.
Hawaii Island... - - Hawaii.......... - 665 (0.09)/617.
[[Page 4968]]
Oahu and 4- - - Hawaii.......... - unknown.
Islands.
Kauai and Niihau - - Hawaii.......... - unknown.
Kure and Midway. - - Hawaii.......... - unknown.
Pearl and Hermes - - Hawaii.......... - unknown.
Striped dolphin............... Stenella CA/OR/WA........ - - Southern - 29,988 (0.3)/
coeruleoalba. California. 23,448.
Hawaii.......... - - Hawaii.......... - 64,343 (0.28)/
51,055.
Dall's porpoise............... Phocoenoides CA/OR/WA........ - - Southern - 16,498 (0.61)/
dalli. California. 10,286.
Harbor seal................... Phoca vitulina... California...... - - Southern - 30,968 (NA)/
California. 27,348.
Hawaiian monk seal............ Neomonachus Hawaii.......... Strategic, Endangered Hawaii.......... - 1,564 (0.05)/
schauinslandi. Depleted 1,444.
Northern elephant seal........ Mirounga California...... - - Southern - 187,386 (NA)/
angustirostris. California. 85,369.
California sea lion........... Zalophus U.S. Stock...... - - Southern - 257,606 (NA)/
californianus. California. 233,515.
Guadalupe fur seal............ Arctocephalus Mexico to Strategic, Threatened Southern - 34,187 (NA)/
townsendi. California. Depleted California. 31,019.
Northern fur seal............. Callorhinus California...... Depleted - Southern - 14,050 (NA)/
ursinus. California. 7,524.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: A ``-'' indicates that this column does not apply.
\1\ The Mainland Mexico--CA/OR/WA stock and the Mexico--North Pacific stock (which does not occur in the HSTT Study Area) of humpback whale comprise the
Mexico DPS. The Hawai[revaps]i stock comprises the Hawai[revaps]i DPS. The Central America/Southern Mexico--CA/OR/WA stock comprises the Central
America DPS.
\2\ Ziphius cavirostris has multiple common names. In the 2018 HSTT final rule, 2020 HSTT final rule, and 2023 HSTT proposed rule, NMFS used the common
name Cuvier's beaked whale. In this final rule, NMFS uses the common name goose-beaked whale instead.
\3\ The ``4-Islands'' stocks of common bottlenose dolphin and pantropical spotted dolphin are now the ``Maui Nui'' stocks.
\4\ NMFS relied on the 2022 final SAR for this stock.
\5\ NSD--No stock designation. Rough-toothed dolphin has a range known to include the waters off Southern California, but there is no recognized stock
or data available for the U.S. West Coast.
Unusual Mortality Events
An UME is defined under section 410(6) of the MMPA as a stranding
that is unexpected, involves a significant die-off of any marine mammal
population, and demands immediate response. From 1991 to the present,
there have been 17 formally recognized UMEs affecting marine mammals in
California and Hawaii and involving species under NMFS' jurisdiction.
At the time of publication of the 2023 HSTT proposed rule, there
was an active UME for gray whales which NMFS fully considered in its
analysis (88 FR 68290, October 3, 2023). This UME was closed on
November 9, 2023. The UME involved 690 gray whale strandings, including
347 in the United States, 316 in Mexico, and 27 in Canada. Strandings
occurred from Alaska to Mexico along the west coast of North America,
including in the whale's wintering, migratory, and feeding areas. The
Investigative Team concluded that the preliminary cause of the UME was
localized ecosystem changes in the whale's Subarctic and Arctic feeding
areas that led to changes in food, malnutrition, decreased birth rates,
and increased mortality all documented during the UME. Please see
https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2023-eastern-north-pacific-gray-whale-ume-closed for additional information
on this UME.
Biologically Important Areas
Kratofil et al. (2023) identified updated BIAs in Hawaii. The HSTT
Study Area overlaps the updated BIAs for small and resident populations
of the following species in Hawaii: spinner dolphin, short-finned pilot
whale, rough-toothed dolphin, pygmy killer whale, pantropical spotted
dolphin, melon-headed whale, false killer whale, dwarf sperm whale,
goose-beaked whale, common bottlenose dolphin, and Blainville's beaked
whale. Further, the HSTT Study Area overlaps updated BIAs for humpback
whale reproduction in Hawaii. The updated BIAs overlap critical Navy
training and testing areas within the HSTT Study Area, including most
of the internal Navy operating areas. Please see Kratofil et al. (2023)
for additional details about the BIAs.
Since publication of the 2023 HSTT proposed rule, Calambokidis et
al. (2024) identified updated BIAs on the West Coast of the U.S. The
HSTT Study Area overlaps feeding BIAs for blue whale and fin whale in
SOCAL. Additionally, it overlaps a reproductive BIA as well as
northbound and southbound migratory BIAs for gray whale. Please see
Calambokidis et al. (2024) for additional details about the BIAs.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Analysis and Negligible Impact
Determination section considers the content of this section, the
Estimated Take section, and the Mitigation Measures section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and whether those
impacts are reasonably expected to, or reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival. In the Potential Effects of Specified
Activities on Marine Mammals and Their Habitat section of the 2018 HSTT
proposed and final rules, and as updated by the 2020 HSTT final rule,
NMFS provided a description of the ways marine mammals may be affected
by the same activities that the Navy will be conducting during the 7-
year period analyzed in this rulemaking in the form of serious injury
or mortality, physical trauma, sensory impairment (permanent and
temporary threshold shifts and acoustic masking),
[[Page 4969]]
physiological responses (particularly stress responses), behavioral
disturbance, or habitat effects. Further, in the 2023 HSTT proposed
rule, we summarized any new relevant information from the scientific
literature since publication of the 2020 HSTT final rule. We do not
repeat the information here, all of which remains current and
applicable, but refer the reader to those rules and the 2018 HSTT FEIS/
OEIS (chapter 3, section 3.7 Marine Mammals), which NMFS participated
in the development of via our cooperating agency status and adopted to
meet our NEPA requirements.
In the Potential Effects of Specified Activities on Marine Mammals
and Their Habitat section of the 2018 HSTT final rule, we stated that
it has been speculated for some time that beaked whales might have
unusual sensitivities to sonar sound due to their likelihood of
stranding in conjunction with MFAS use, although few definitive causal
relationships between MFAS use and strandings have been documented, and
no such findings have been documented with Navy use in Hawaii and
southern California. On March 25, 2022, a beaked whale (species
unknown) stranded in Honaunau Bay, Hawaii. The animal was observed
swimming into shore and over rocks. Bystanders intervened to turn the
animal off of the rocks, and it swam back out of the Bay on its own.
Locals reported hearing a siren or alarm type of sound underwater on
the same day, and a Navy vessel was observed from shore on the
following day. The Navy confirmed it used CAS within 50 km (27 nmi) and
48 hours of the time of stranding, though the stranding has not been
definitively linked to the Navy's CAS use.
An initial study of another deep diving odontocete, the sperm
whale, found similar behavioral responses and reductions in foraging
when whales were exposed to PAS and CAS at similar cumulative Sound
Exposure Levels (SELcum), even though the CAS signal had a
lower source level than the PAS signal. This may indicate that animals
were, in this case, responding to the cumulative energy of a signal
rather than the instantaneous amplitude (Cure et al. 2021, Isojunno et
al. 2020). If a beaked whale were inshore of a Navy vessel using either
PAS or CAS MFAS, and responded by moving away from the vessel, they
could find themselves in shallow water and become disoriented, as may
have happened in the case of Honaunau Bay. In addition, the animal was
not seen after it returned to sea, so blood tissue samples could not be
obtained. There has been a growing body of literature about the impacts
of new pathogens on the health and stranding of marine mammals,
including beaked whales in Hawaii and other locations in the Pacific
(e.g., Clifton et al. 2023 and West et al. 2013).
NMFS has reviewed new relevant information from the scientific
literature since publication of the 2023 HSTT proposed rule. Further,
in the 2023 HSTT proposed rule, we summarized any new relevant
information from the scientific literature since publication of the
2020 HSTT final rule. Summaries of the new key scientific literature
reviewed since publication of the 2023 HSTT proposed rule are presented
below. The literature generally falls into the following topic areas:
Vessel Strike; Hearing, Vocalization, and Masking; Hearing Loss
(Temporary Threshold Shift (TTS) and Permanent Threshold Shift (PTS));
Behavioral Reactions; Stranding; Population Consequences of Disturbance
and Cumulative Stressors; Methodology for Assessing Acoustic Impacts.
Vessel Strike
Dunlop (2024) studied migrating east Australian humpback whales'
response to approaching vessels to determine if individuals exhibited
an avoidance response. While some select groups did display changes in
their movements, the sampled collective did not display any consistent
vessel avoidance response. Furthermore, the degree of avoidance was
lower as vessels approached at faster speeds. Overall, the results
showed that humpbacks were generally unresponsive to approaching
vessels regardless of the speed or noise level at which they
approached. Female-calf pairs proved to be the biggest exception to
this pattern; though this demographic did not exhibit a consistent
response as a whole, these pairs were more likely to change their
travel pattern more than any other group. Due to the lack of response
from the population, the results suggest that implementation of vessel
strike avoidance protocols is critical for successfully conserving
large whale populations.
Redfern et al. (2024) developed a new metric for analyzing vessel
strike risk reduction (``PLETHd'') and applied it to North Atlantic
right, humpback, fin, and sei whale distributions along the U.S. East
Coast. The metric is calculated using three parameters: the
relationship between vessel speed and the probability that a strike is
lethal, vessel transit distance, and whale distributions. The authors
compared the impact of a 14 kn (25.9 km/hr) vs. 10 kn (18.5 km/hr)
speed restriction and found that only the 10 kn (18.5 km/hr) reduction
substantially reduced risk. The authors also found that applying a 10
kn (18.5 km/hr) speed restriction within multiple whale species'
critical habitat zones was almost as effective as enacting the same
speed restriction along the entire East Coast Exclusive Economic Zone
(EEZ). The results suggest that 10 kn (18.5 km/hr) speed restrictions
are a robust method for reducing vessel strike risk and that vessel
restrictions within high-density core areas of a marine mammal's
habitat can be highly impactful.
Hearing, Vocalization, and Masking
Parnell et al. (2024) studied the soundscapes of four underwater
Hawaiian monk seal critical habitats, including measurement of ambient
noise and characterization of detected sound sources. The authors
observed diel patterns in both anthropogenic and biological sound
sources that mask acoustic communication in Hawaiian monk seals. The
measurements collected for this study provide a baseline for future
research on impacts of anthropogenic activities on these soundscapes.
A multi-national team of scientists (U.S. and Norway) obtained the
first hearing measurements of a mysticete species through auditory
evoked potential (AEP) tests. During the 2023 field season, AEP tests
were conducted on two adolescent female minke whales in Norway (Houser
et al. 2024). Houser et al. (2024) indicate that the minke whale's
upper-frequency limit of hearing occurs somewhere between 45 to 90 kHz.
Minke whale's high-frequency sensitivity is hypothesized to support
detection of the echolocation clicks of one their predators, the killer
whale. The bandwidth of the tone-bursts used in the Houser et al.
(2024) AEP testing was too broad to define the precise upper-frequency
limit, but indicates this species is more sensitive to higher
frequencies than previously predicted based on inner ear anatomy and
vocalization data (Southall et al. 2019; NMFS 2024). Results from their
final 2024 field season, which included further examination of the
upper-frequency limit of hearing, are expected to be published in 2025,
with preliminary data from two additional whales indicating that minke
whale hearing is best around 32 kHz.
Hearing Loss (TTS and PTS)
Gransier and Kastelein (2024) examined TTS susceptibility in harbor
porpoises and harbor seals based on exposures varying in frequency
range and level. Specifically, exposures consisted of 100% duty cycle
one-sixth-
[[Page 4970]]
octave noise bands at frequencies covering the entire hearing range of
each species. Despite these species having different audiograms and
regions of best sensitivity (i.e., underwater pinnipeds are sensitive
to sounds ranging from approximately 0.01 to 40-60kHz, while most
odontocetes are sensitive sounds ranging from approximately 0.25 to 80-
125kHz), the frequency-specific susceptibility to TTS was similar
amongst both species, with the greatest susceptibility to TTS occurring
at frequencies from 22.5 to 50 kHz and least susceptible to sounds
below 10 kHz. The frequency of minimum TTS for the harbor seal aligns
with its frequency of best hearing, while frequency of minimum TTS for
the harbor porpoise is well below the frequency of best hearing. This
study illustrates that the audiogram does not always serve as a good
predictor of frequency-dependent susceptibility to TTS, with the
pattern of susceptibility to TTS in these two species being more
comparable than their audiograms.
Brewer et al. (2023) described 41 call types of Cook Inlet beluga
vocal behavior and classified them into three categories: (1) whistles,
(2) pulsed calls, and (3) combined calls. These are the first
descriptions of vocal repertoire of this species in two critical
habitat locations and across multiple seasons. Call types were then
used to investigate the potential for masking from commercial ship
noise. It was found that call types (0-12 kHz) were partially masked by
distant ship noise and completely masked by close ship noise. This
study provides evidence that ship noise can impact vocal communication
of this population. Specifically Cook Inlet beluga vocalizations in the
Susitna area, seven of the beluga's most common calls are either
partially or fully masked by commercial ship traffic.
Kastelein et al. (2024) examined TTS in two California sea lions
exposed to one-sixth-octave noise band centered at 32 kHz for 60-
minutes of exposure, resulting in cumulative sound exposure levels
(SELcum) ranging from 168 to 192 dB. Hearing after exposure
was examined at the center frequency of the fatiguing sound (32 kHz)
and at half an octave (44.8 kHz) and one octave above the center
frequency (63 kHz). Higher SELcum resulted in greater
threshold shifts. Furthermore, the greatest TTS occurred at half an
octave above the center frequency, with TTS onset (6 dB threshold
shift) measured at 44.8 kHz occurring at a 179 dB SELcum.
TTS patterns and recovery was similar between the two individuals, with
TTSs up to 6.7 dB recovering within 8 minutes of exposure, TTSs up to
12 dB recovering within an hour, and only the highest TTS measured
(12.9 dB) taking over an hour to recover. The results of this study
were directly incorporated in the Navy's updated Phase IV AUD INJ/TTS
criteria and indicate that California sea lions have lower AUD INJ/TTS
onset than previously predicted (Southall et al. 2019).
Behavioral Reactions
Ceciarini et al. (2023) tested the efficacy of Acoustic Deterrent
Devices for minimizing common bottlenose dolphin interactions with
trammel nets in the Northern Tyrrhenian Sea. The authors used
interactive pingers which emitted output signals ``from 5 up to 500 kHz
at 168 dB re 1 [mu]Pa at 1 m as random high-speed tones FM ranging from
100 [mu]s up to seconds''. The study found that catch damage from
dolphins was significantly lower in nets where pingers were used.
Elmegaard et al. (2023) exposed six harbor porpoises to Acoustic
Harassment Devices (AHDs), commonly referred to as ``seal scarers'', to
determine if they would exhibit any physiological or behavioral
reactions. The AHDs pulsed at 14 kHz with a source level of 189 dB re 1
[micro]Pa (rms) or sound exposure level of 184 dB re 1 [micro]Pa\2\s,
with porpoise RLs ranging from 98-132 dB re 1 [micro]Pa. All
individuals sampled exhibited a mixture of behavioral or physiological
responses, including startling, increased distance from the sound
source, increased swim speed, diving, altered echolocation patterns,
cardiac responses, or altered respiration patterns. Overall, responses
were observed in every individual up to 7 km or down to an RL of 98 dB
re 1 [micro]Pa.
Frankish et al. (2023) followed ten harbor porpoises for 5 to 10
days to observe their reactions to ship traffic around Denmark. The
porpoises spent over half of the study period within 10 km of a ship,
and a third of the study period exposed to noise levels above ambient.
The porpoises responded by moving away from ships during the day, and
diving deep during the night. They had a higher likelihood of altering
their movements when louder ships were nearby (maximum probability of
deterrence = 12.2 percent during the day and 14.9 percent at night),
and moved an average of 3.2 km away from 13.6 different ships every
day. Deeper dives occurred less frequently, at a rate of 5.7 different
ships per individual per night. The porpoises also reacted to loud
ships that were far away (>2 km at 93 14 dB re 1
[mu]Pa\2\), though responses occurred less frequently (5 to 9 percent
of the time vs. up to 14.9 percent of the time at close range).
Southall et al. (2023) used control exposure experiments (CEEs) to
provide the first results in examining the impact of mid-frequency navy
sonar (3.5-4.1 kHz) or pseudorandom noise (similar frequency, duration
and source and received level compared to mid-frequency sonar) on fin
whale behavior in feeding habitats of the Southern California Bight. Of
the 15 exposed fin whales, only five individuals demonstrated a mild to
moderate behavioral changes (avoidance, changes in feeding, diving, or
respiration), with no changes demonstrated for whales in the six
control exposures. Compared to blue whales, fin whale behavioral
responses were more limited in occurrence, severity and duration and
were found to be less dependent upon contextual aspects of exposure,
with received level as the primary factor associated with behavioral
responses. Additionally, foraging success was not compromised by
exposures from this study. The authors note that differences observed
between behavioral response in fin whales in this study and blue whales
in previously published studies may be attributed to the smaller sample
size associated with this study. However, as seen in blue whales, fin
whale behavior returned to baseline conditions after noise exposure
ended.
Methodology for Assessing Acoustic Impacts
Indeck et al. (2024) assessed North Atlantic right whale, fin, and
blue whale detectability by Slocum gliders near heavily used shipping
lanes in the Gulf of St. Lawrence, Canada. The goal of the study was to
evaluate the gliders' suitability as a passive acoustic monitoring
platform for whale detection in areas with high anthropogenic noise
levels. The authors found that shipping lane noise did not
substantially impact whale detectability, as calls from the highly
trafficked areas were not masked significantly more than calls in
quieter areas nearby. The gliders were therefore identified as a viable
PAM platform to use in and around busy shipping areas. These results
suggest that gliders could be an important tool for monitoring
mysticetes in highly industrialized areas and assisting in ongoing
dynamic management initiatives.
Conclusion for New Pertinent Science Since Publication of the 2023 HSTT
Proposed Rule
Having considered the best scientific information available,
specifically new relevant information published since the 2023 HSTT
proposed rule, we have
[[Page 4971]]
determined that there is no new information that substantively affects
our analysis of impacts on marine mammals and their habitat that
appeared in the 2020 HSTT final rule, all of which remains applicable
and valid for our assessment of the effects of the Navy's activities
during the 7-year period of this rulemaking.
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 application and agrees that the methods the Navy has
put forth described herein, in the 2019 HSTT proposed rule, 2020 HSTT
final rule, 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, with the exception of that of humpback
whales, discussed further below. 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 and 2020 HSTT
regulations, with the exception of authorized takes by serious injury
or mortality by vessel strike and harassment takes of humpback whale
stocks in Southern California (due to the new stock structure).
Takes are predominantly in the form of harassment, but a small
number of serious injuries or mortalities could occur. 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 the
disruption of natural behavior patterns to a point where they are
abandoned or significantly altered (as defined specifically at the
beginning of this section but referred to generally as behavioral
disturbance) or TTS for marine mammals. There is also the potential for
Level A harassment 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. Additionally,
serious injuries or mortalities of mysticetes (except for sei whales,
minke whales, Bryde's whales, Central North Pacific stock of blue
whales, Hawaii stock of fin whales, Western North Pacific stock of gray
whales, and sperm whales) could occur through vessel strike. Mitigation
and monitoring measures are expected to minimize the severity of the
taking to the extent practicable.
Generally speaking, for acoustic impacts, NMFS estimates the amount
and type of harassment by considering: (1) acoustic thresholds above
which NMFS believes the best available science indicates marine mammals
would experience behavioral disturbance 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) 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, either directly or via the effects
of TTS (both equated to Level B harassment) or PTS of some degree
(equated to Level A harassment). Thresholds have also been developed to
identify the pressure levels above which animals may incur non-auditory
injury from exposure to pressure waves from explosive detonation. We
described the acoustic thresholds and the methods used to determine
thresholds in detail in the Acoustic Thresholds section of the 2018
HSTT final rule; please see the 2018 HSTT final rule for detailed
information. Further, in the 2020 HSTT final rule, and 2023 HSTT
proposed rule, we described new relevant information from the
scientific literature since publication of the 2018 HSTT final rule and
2020 HSTT final rule, respectively. Since publication of the 2023 HSTT
proposed rule, NMFS has updated our Technical Guidance (NMFS, 2024)
containing updated acoustic criteria for auditory injury (89 FR 36762,
October 24, 2024). The Technical Guidance provides updated auditory
injury thresholds, where appropriate, as well as revised weighting
functions, in some cases. For impulsive sources, the Updated Technical
Guidance's auditory injury thresholds generally remain identical or are
higher compared to our 2018 Technical Guidance, meaning that received
levels would need to be higher in order for marine mammals to be
expected to incur auditory injury. The exceptions are for phocid
pinnipeds (PW), where the cumulative SEL threshold, in the Updated
Technical Guidance, is 2 dB lower and for otariid pinnipeds (OW) where
the peak sound pressure level threshold is 2 dB lower and the
cumulative SEL threshold is 18 dB lower. As for the Updated Technical
Guidance's weighting functions, for MF cetaceans (now called HF
cetaceans in the updated document) and HF cetaceans (now called VHF
cetaceans in the updated document), the weighting functions reflect a
higher susceptibility to auditory injury at frequencies below 10 kHz,
as compared to the 2018 Technical Guidance. Other minor changes/shifts
to weighting functions (e.g., for LF cetaceans, PW pinnipeds, OW
pinnipeds) were also included. This new information was not available
in a timeframe in which NMFS could have incorporated it into the
quantitative analysis supporting this final rulemaking; however, NMFS
did consider the information qualitatively. While these changes in the
auditory injury thresholds and weighting functions could result in
minor increases in PTS exposure estimates for some species, given the
conservative assumptions built into the take estimate methodology, they
would not be expected to result in meaningful, if any, changes in take
estimates and would not be expected to change any of the findings.
Navy's Acoustic Effects Model
The Navy proposed no changes to the Acoustic Effects Model as
described in the 2018 HSTT final rule (and incorporated by reference in
the 2020 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 and proposed rules and Appendix E of the 2018 HSTT FEIS/OEIS
for detailed information, and see the discussion of the 2024 Technical
Guidance in the Acoustic Thresholds section above.
[[Page 4972]]
Range to Effects
The Navy proposed no changes from the 2018 HSTT final rule (and
subsequent 2020 HSTT final rule) to the type and nature of the
specified activities to be conducted during the 7-year period analyzed
in this final rule, including equipment and sources used and exercises
conducted.
As described above in the Acoustic Thresholds section, since
publication of the 2023 HSTT proposed rule, NMFS has updated our
Technical Guidance (NMFS, 2024) containing updated acoustic criteria
for auditory injury (89 FR 36762). Please see that section for a full
discussion of the updates. This new information was not available in a
timeframe in which NMFS could have incorporated it into the
quantitative analysis supporting this final rulemaking; however, NMFS
did consider the information qualitatively. While these changes in the
auditory injury thresholds and weighting functions could result in
minor increases in PTS exposure estimates for some species, given the
conservative assumptions built into the take estimate methodology, they
would not be expected to result in meaningful, if any, changes in take
estimates and would not be expected to change any of the findings.
Therefore, the ranges to effects in this final rule are identical
to those described and analyzed in the 2018 HSTT final rule and 2020
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 or change the results in a manner that would change the
necessary determinations supporting the issuance of these regulations.
The Navy's estimate of marine mammal density as described in the 2018
HSTT final rule remains valid, though, as described herein, NMFS has
incorporated new information regarding humpback whale stock structure
into its analysis. Please see the 2018 HSTT final rule, and below, for
detailed information.
As noted above, NMFS regularly updates SARs, and in this rulemaking
considers the 2023 final SARs (Carretta et al. 2024, Young et al.
2024). While these SARs contain updated information, the Navy's
estimate of marine mammal density as described in the 2018 HSTT final
rule remains valid for the following reasons. The Navy uses its Marine
Species Density Database (NMSDD) for its analysis, which is derived
from multiple sources, including but not limited to SARs. In contrast,
for most cetacean species, the SAR is estimated using line-transect
surveys or mark-recapture studies (e.g., Barlow, 2010; Barlow and
Forney, 2007; Calambokidis et al. 2008). The result provides one single
abundance value for each species across broad geographic areas, but it
does not provide information on the species density or concentrations
within that area, and it does not estimate density for other timeframes
or seasons that were not surveyed. A change in a stock's abundance
indicated in a SAR does not necessarily indicate a change in that
stock's density in any given area. Therefore, stocks in the HSTT Study
Area with higher abundance estimates in the most recent SARs in
comparison to the abundance estimates at the time that marine mammal
densities were derived for the HSTT Study Area do not necessarily now
occur in higher densities in the HSTT Study Area. For humpback whale,
while the stock structure in the Pacific Ocean was revised in the 2022
final SARs (Carretta et al. 2023, Young et al. 2023), the discussion
above remains true regarding density of humpback whales in the HSTT
Study Area across all stocks.
Take Requests
As in the 2018 HSTT final rule and 2020 HSTT final rule, 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
Physical Disturbance and Strike (vessel strike).
NMFS reviewed and agrees with the Navy's conclusion that acoustic
and explosive sources have the potential to result in incidental takes
of marine mammals by harassment, serious injury, or mortality. NMFS
carefully reviewed the Navy's analysis and conducted its own analysis
of vessel strikes, determining that the likelihood of any particular
species of large whale being struck is quite low. However, as noted
previously, in 2021, two separate U.S. Navy vessels struck unidentified
large whales on two separate occasions, one whale in June 2021 and one
whale in July 2021. In May 2023, the U.S. Navy struck a large whale,
which based on available photos and video, NMFS and the Navy have
determined was either a fin whale or sei whale. NMFS agrees that vessel
strikes have the potential to result in incidental take from serious
injury or mortality for certain species of large whales, and the Navy
has specifically requested coverage for these species. Therefore, the
likelihood of vessel strikes, and later the effects of the incidental
take that is being authorized, has been fully analyzed and is described
below.
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 2020
HSTT final rule, take estimates across the 7 years were based on the
Navy conducting 4 years of a representative level of activity and 3
years of maximum level of activity. As in the 2020 HSTT final rule, the
Navy uses the maximum annual level to calculate annual takes (which
would remain identical to what was determined in the 2020 HSTT final
rule, with the exception of attribution of takes to humpback whale
stocks), and the sum of all years (4 representative and 3 maximum) to
calculate the 7-year totals for this rulemaking.
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 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
[[Page 4973]]
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 section.
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, with the
exception of take of humpback whales to account for the change in stock
structure. Please see the documents described in the paragraph above,
the 2018 HSTT proposed rule, the 2018 HSTT final rule, and below for
detailed descriptions of these analyses. While Oedekoven and Thomas
(2022) suggest that detection of marine mammals is less certain than
previously assumed at certain distances, NMFS has independently
evaluated the Navy's method for application of mitigation effectiveness
in estimating take 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, including after consideration of
Oedekoven and Thomas (2022). In summary, we believe the Navy's methods,
including the method for incorporating mitigation and avoidance, are
the most appropriate methods for predicting PTS, TTS, and behavioral
disturbance. 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, TTS, or
behavioral disturbance.
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 estimate 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 7-year
period in its 2019 rulemaking/LOA application. With the exception of
changes to humpback whale take, described below, 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 2022 Navy
application includes the Navy's updated take estimate and request for
take by vessel strike due to vessel movement in the HSTT Study Area.
NMFS reviewed the Navy's data, methodology, and analysis and determined
that it was complete, but NMFS has reanalyzed the potential for vessel
strike following the May 2023 strike, as described in the Authorized
Take from Vessel Strikes and Explosives by Serious Injury or Mortality
section. 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 of instances in which marine mammals are reasonably
expected to be taken at the time of Navy's request, and continues to be
for all stocks other than humpback whales, for which changes are
described below. NMFS also agrees that the takes by serious injury or
mortality as a result of vessel strikes could occur. Note that,
consistent with the 2020 HSTT final rule, the total amount of estimated
incidental take from acoustic and explosive sources over the total 7-
year period covered by the 2019 Navy application is less than the
annual total multiplied by seven. Although the annual estimates are
based on the maximum number of activities per year and therefore, the
maximum possible estimated takes, the 7-year total take estimates are
based on the sum of 3 maximum years and 4 representative years, with
the exception of humpback whale stocks that occur in SOCAL for which 7-
year total take is conservatively estimated as the annual total
multiplied by seven. 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 7-year
period. Using 7 years of the maximum number of activities each year
would vastly overestimate the amount of incidental take that would
occur over the 7-year period where the Navy knows that it will not
conduct the maximum number of activities each and every year for the 7
years.
As described above in the Description of Marine Mammals and Their
Habitat in the Area of the Specified Activities section, the 2022 final
SARs include a revision to the humpback whale stock structure in the
Pacific Ocean. In the 2020 HSTT final rule, NMFS authorized take of the
CA/OR/WA stock and Central North Pacific stock of humpback whale. Given
the revised stock structure, in this final rule, NMFS has reanalyzed
the potential for take of each stock of humpback whale and determined
that the Central America/Southern Mexico-CA/OR/WA, Mainland Mexico-CA/
OR/WA stock, and Hawaii stocks are likely to be taken by the Navy's
activities.
Under the new stock structure, the Hawaii stock (Hawaii DPS) is the
only stock that would occur in Hawaii. Therefore, the Hawaii stock of
humpback whale is the only humpback whale stock anticipated to be taken
by the Navy's activities in the HRC, and all takes of the Central North
Pacific stock of humpback whale that were authorized in the 2020 HSTT
final rule are anticipated to be of individuals from the new Hawaii
stock. In SOCAL, the takes of individuals from the former CA/OR/WA
stock that were authorized in the 2020 HSTT final rule are anticipated
to be of individuals from the new Central America/Southern Mexico-CA/
OR/WA and Mainland Mexico-CA/OR/WA stock.
Please see the Authorized Harassment Take from Testing Activities
and Authorized Harassment Take from Training Activities sections below
for the authorized annual and 7-year total number and type of Level A
harassment and Level B harassment for each humpback whale stock.
Authorized Harassment Take From Training Activities
For training activities, table 11 of the 2020 HSTT final rule
summarizes the Navy's take estimate and request in the 2019 Navy
application and the maximum amount and type of Level A harassment and
Level B harassment that NMFS concurred is reasonably expected to occur
by species or stock and authorized in the 2020 HSTT LOA. In the 2022
Navy application, the Navy
[[Page 4974]]
requested no change to this authorized take, though as described above,
NMFS has since published the 2023 final, which include a revision to
humpback whale stock structure. For the estimated 7-year total amount
and type of Level A harassment and Level B harassment, see table 11 of
the 2020 HSTT final rule for all species other than humpback whale. For
the estimated amount and type of Level A harassment and Level B
harassment annually, see table 41 in the 2018 HSTT final rule for all
species other than humpback whale. Note that take by Level B harassment
includes both behavioral disturbance 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 disturbance for each species
annually, noting that if a modeled marine mammal was ``taken'' through
exposure to both TTS and behavioral disturbance in the model, it was
recorded as a TTS.
Table 2--Humpback Whale Take From Acoustic and Explosive Effects for All Training Activities in the HSTT Study
Area
----------------------------------------------------------------------------------------------------------------
Annual 7-year total
---------------------------------------------------------------
Species Stock Level B Level A Level B Level A
harassment harassment harassment harassment
----------------------------------------------------------------------------------------------------------------
Humpback whale \a\........... Hawaii.......... 5,604 1 34,437 12
Central America/ 585 0 \b\ 4,095 0
Southern Mexico-
CA/OR/WA
(Central
America DPS).
Mainland Mexico-- 669 1 \b\ 4,683 7
CA/OR/WA
(Mexico DPS).
----------------------------------------------------------------------------------------------------------------
\a\ Combined takes from the Central America/Southern Mexico- CA/OR/WA stock and the Mainland Mexico CA/OR/WA
stock are equal to takes of the CA/OR/WA stock authorized in the 2020 HSTT final rule.
\b\ Unlike other species and stocks, for the Central America/Southern Mexico-CA/OR/WA stock and Mainland Mexico-
CA/OR/WA stock, NMFS estimated the 7-year take by Level B harassment by multiplying the annual estimated take
by seven. However, between the two stocks, NMFS does not anticipate that the total number of takes by Level B
harassment across all 7 years would exceed the 7,962 takes by Level B harassment from training activities that
were authorized for the CA/OR/WA stock of humpback whales in the 2020 HSTT final rule.
Authorized Harassment Take From Testing Activities
For testing activities, table 12 of the 2020 HSTT final rule
summarizes the Navy's take estimate and request in the 2019 Navy
application and the maximum amount and type of Level A harassment and
Level B harassment that NMFS concurred is reasonably expected to occur
by species or stock and authorized in the 2020 HSTT LOA. In the 2022
Navy application, the Navy requested no change to this authorized take.
For the estimated 7-year total amount and type of Level A harassment
and Level B harassment, see table 12 of the 2020 HSTT final rule. 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 disturbance
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
disturbance for each species annually, noting that if a modeled marine
mammal was ``taken'' through exposure to both TTS and behavioral
disturbance in the model, it was recorded as a TTS.
Table 3--Humpback Whale Take From Acoustic and Explosive Effects for All Testing Activities in the HSTT Study
Area
----------------------------------------------------------------------------------------------------------------
Annual 7-year total
---------------------------------------------------------------
Species Stock Level B Level A Level B Level A
harassment harassment harassment harassment
----------------------------------------------------------------------------------------------------------------
Humpback whale \a\............ Hawaii.......... 3,522 2 23,750 19
Central America/ 291 0 \b\ 2,037 0
Southern Mexico-
CA/OR/WA.
Mainland Mexico-- 449 0 \b\ 3,143 0
CA/OR/WA.
----------------------------------------------------------------------------------------------------------------
\a\ Combined takes from the Central America/Southern Mexico- CA/OR/WA stock and the Mainland Mexico CA/OR/WA
stock are equal to takes of the CA/OR/WA stock authorized in the 2020 HSTT final rule.
\b\ Unlike other species and stocks, for the Central America/Southern Mexico-CA/OR/WA stock and Mainland Mexico-
CA/OR/WA stock, NMFS estimated the 7-year take by Level B harassment by multiplying the annual estimated take
by seven. However, between the two stocks, NMFS does not anticipate that the total number of takes by Level B
harassment across all 7 years would exceed the 4,961 takes by Level B harassment from testing activities that
were authorized for the CA/OR/WA stock of humpback whales in the 2020 HSTT final rule.
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 fatalities to cetaceans (Abramson et al. 2011; Berman-Kowalewski et
al. 2010; Calambokidis, 2012; Douglas et al. 2008; Laggner, 2009;
Lammers et al. 2003; Van der Hoop et al. 2012; Van der Hoop et al.
2013; Crum et al. 2019). 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) due to increases in the number and speed of large vessels,
increased reporting of strikes, and increased abundance of some large
whales (Ransome et al. 2021), among other factors.
Numerous studies of interactions between surface vessels and marine
[[Page 4975]]
mammals have demonstrated that free-ranging marine mammals often, but
not always (e.g., McKenna et al. 2015; Smultea et al. 2022; Szesciorka
et al. 2019), 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 vessel
movement 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 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 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 kn (15.9 and 27.8
km per hour), the probability that a vessel strike is lethal increases
from 0.21 to 0.79. Large whales also do not have to be at the water's
surface to be struck. Silber et al. (2010) found when a whale is below
the surface (about one to two times the vessel draft), there is likely
to be a pronounced propeller suction effect. This suction effect may
draw the whale into the hull of the ship, increasing the probability of
propeller strikes.
There are some key differences between the operation of military
and non-military vessels, which make the likelihood of a military
vessel striking a whale lower than some other vessels (e.g., commercial
merchant vessels). Key differences include:
Many military ships have their bridges positioned closer
to the bow, offering better visibility ahead of the ship (compared to a
commercial merchant vessel);
There are often aircraft associated with the training or
testing activity (which can serve as Lookouts), which can more readily
detect cetaceans in the vicinity of a vessel or ahead of a vessel's
present course before crew on the vessel would be able to detect them;
Military ships are generally more maneuverable than
commercial merchant vessels, and if cetaceans are spotted in the path
of the ship, could be capable of changing course more quickly;
The crew size on military vessels is generally larger than
merchant ships, allowing for stationing more trained Lookouts on the
bridge. At all times when vessels are underway, trained Lookouts and
bridge navigation teams are used to detect objects on the surface of
the water ahead of the ship, including cetaceans. Additional Lookouts,
beyond those already stationed on the bridge and on navigation teams,
are positioned as Lookouts during some training events; and
When submerged, submarines are generally slow moving (to
avoid detection), and therefore, marine mammals at depth with a
submarine are likely able to avoid collision with the submarine. When a
submarine is transiting on the surface, there are Lookouts serving the
same function as they do on surface ships.
Vessel strike to marine mammals is not associated with any specific
training or testing activity but is rather a limited and sporadic, but
possible, accidental result of Navy vessel movement within the HSTT
Study Area or while in transit.
In 2009, the Navy began implementing additional mitigation measures
to further reduce the likelihood of vessel strikes. Prior to the recent
strikes in 2021 and 2023, there were two recorded U.S. Navy vessel
strikes of large whales in the HSTT Study Area between 2009 and April
2021, a period of approximately 12 years.
Since 2021 there have been five strikes of large whales in SOCAL
attributed to naval vessels, three by the U.S. Navy and two by the
Royal Australian Navy. As stated previously, the U.S. Navy struck a
large whale in waters off Southern California in May 2023. Based on
available photos and video, NMFS and the Navy have determined this
whale was either a fin whale or sei whale. The U.S. Navy struck two
unidentified large whales during the months of June and July 2021, and
prior to that, on May 7, 2021, the Royal Australian Navy HMAS Sydney, a
147.5 m (161.3 yd) Hobart Class Destroyer, struck and killed two fin
whales (a mother and her calf) while operating within SOCAL. In the
case of the Royal Australian Navy strike, the carcasses were first
sighted under the bow of the vessel while it was approaching the Naval
Base in San Diego. The whales had been pinned to a sonar dome in the
front of the vessel due to the force of water as the ship was underway.
Based on interviews with HMAS Sydney personnel, the most likely time of
impact with the two whales would have been around 6:25 a.m. when the
vessel was located near Cortes Bank, and visibility was poor. The
reported vessel speed at the estimated time of strike was 9 kn (16.7 km
per hour). One minute before the estimated strike time a lookout
reported whales off the starboard bow. The officer on-watch verbally
acknowledged the report, slowed speed, and visually tracked the whales
passing clear down the starboard side until they were clear of the
ship. The morning of the strike, the HMAS Sydney was getting into
position to participate in a U.S. Navy-led exercise later that day. Of
note, throughout the remainder of the day visibility was poor and the
vessel had implemented mitigation measures in multiple instances due to
whale occurrence. In addition to being the only documented occurrence
of a foreign military vessel strike of a large whale within the HSTT
Study Area, the HMAS Sydney vessel strike was also somewhat unique, as
compared to other reported military vessel strikes, in that two whales
were apparently struck at one time, and both remained pinned to
[[Page 4976]]
the front of the vessel until the vessel approached the port.
On June 29, 2021, a U.S. Navy cruiser struck an unknown whale
species approximately 95 nmi (176 km) west of San Diego. The ship was
returning from Hawaii, heading to a rendezvous with a fuel
replenishment vessel (oiler) for an Underway Replenishment. Off-duty
sailors noticed a group of whales approaching the ship from the port
quarter (i.e., left rear of the ship), an area unique to cruisers with
some equipment structures blocking close aboard sight. The first
indication of a whale within the 500-yd mitigation zone immediately
prior to the strike was when an off-duty sailor on the flight deck
witnessed the whale briefly surface on the aft port quarter before
diving. Shortly after this occurred blood was noticed in the wake, and
a floating whale body was eventually observed behind the ship. The
ship's speed was 25 kn (46.3 km per hour) at the estimated time the
strike occurred. The Navy also noted that, on the morning before the
strike occurred, the ship had maneuvered several times to avoid whale
blows beyond the 500-yd (457.2 m) mitigation zone, closer to 1,000 yd
(914.4 m).
On July 11, 2021, a U.S. Navy cruiser struck an unknown whale
species approximately 90 nmi (166.7 km) south-southwest of San Diego.
The vessel was a participant in a MTE (Large Integrated Anti-Submarine
Warfare--Composite Unit Training Exercise) within the SOCAL portion of
the action area. The vessel was maneuvering for pending flight
operations to receive an inbound helicopter. At 2:27 p.m., the
starboard lookout sighted what they believed to be a whale crossing
immediately under the vessel's bow. The conning officer attempted to
maneuver the vessel by turning to port but internal watchstanders
subsequently felt the ship shudder aft. The vessel's combat center
observed a red slick 600 yd (548.6 m) astern on a flight deck camera
and a brief surfacing of the whale itself, but no carcass was observed.
There had not been any sightings of large whales off the bow leading up
to the incident. Although the ship was traveling at 25-30 kn (46.3-55.6
km per hour) 1 hour before the estimated strike time, at 10 minutes
before, the vessel changed course and reduced its speed to 17 kn (31.5
km per hour). These 2021 incidents were the first known U.S. Navy
vessel strikes in the HSTT Study Area since 2009.
On May 20, 2023, a U.S. Navy aircraft carrier was at sea conducting
independent, unit-level flight training for the embarked airwing
approximately 70 nmi (129.6 km) west of San Diego. Training exercises
concluded for the day at approximately 7:44 p.m. local time. Navy
personnel discovered a whale impinged on the bow of the vessel at
approximately 8:00 p.m. local time. The vessel was traveling at
approximately 5 kn (9.3 km per hour) and had recently made a turn to
reset position for the evening when the Navy personnel discovered the
whale. Navy personnel captured video and photos of the carcass, and
based on those images, NMFS and the Navy have determined this whale was
either a fin whale or sei whale; the two species are very similar
morphologically and are difficult to distinguish from one another at
sea. Navy personnel stopped the vessel to allow lack of momentum to
dislodge the carcass from the bow, and based on lack of further
observations after the carcass dislodged, it is believed to have sunk
around 9:30 p.m. local time. Navy personnel on board the vessel
reported that they did not feel an impact from striking the whale.
Prior to the strike, between 6:45 p.m. and 7:45 p.m., the forward
Lookouts on the vessel observed two whales crossing the vessel's bow
but did not provide a distance between the vessel and the whales. One
Lookout reported seeing the blow and the other reported seeing `humps'
(presumably the dorsal of the animal). Both whales were sighted past
the ship's course to the northwest. Within the same time window, one of
the aft Lookouts observed a single whale swimming parallel to the ship
and soon passed astern of the ship. During the same time, independent
of the sightings and for general movement reasons, the ship changed
speed from 17 kn (31.5 km per hour) to 10 kn (18.5 km per hour) at 7:22
p.m.
While in this incident a whale was discovered impinged on the bow
of a Navy vessel, this incident is very different from the discovery of
two fin whales discovered impinged on the sonar dome of a Royal
Australian Navy vessel in 2021 when the vessel came to port at Naval
Base San Diego. While U.S. Navy cannot speculate on the configurations
of other ships bows and even sonar dome specifications (that may be at
the bow), the Navy believes it would be implausible for a marine mammal
to become lodged on the sonar dome of a U.S. Navy ship and remain
undetected due to a technological standard operating procedure. Sonar
domes on U.S. Navy ships have a pressurized rubber window that
maintains 150 pound-force per square inch (PSI) through the ship's fire
main. If anything affects the pressure, an alarm sounds in the sonar
control room. In the event of a whale strike in that location, this
alarm would alert personnel that something hit the sonar dome. Further,
the shape, hydrodynamic design, construction using a non-abrasive
material, and regular hull cleaning procedures to remove barnacles and
other growth on U.S. Navy ships also make it unlikely that a whale
would become lodged and remain undetected on a U.S. Navy ship's bow or
even sonar dome. While in the case of the May 2023 strike, described
above, a whale also became lodged on the ship's bow, the aircraft
carrier that struck the whale does not have active or passive sonar
capabilities (i.e., no sonar dome), nor does it have a bulbous bow, and
the whale was more quickly discovered by Navy personnel.
In March 2024 a dead fin whale was discovered off of Pier 10 in
Naval Station San Diego within the Navy's security barrier. The
security barrier, which consists of a series of connected floating
sections, is intended to discourage unauthorized boat entry to the
piers. The necropsy indicated that vessel strike was the most likely
cause of death. Given the location the whale was discovered, this could
have been the result of a military vessel strike. However, the Navy
reviewed its vessel activity during that time frame and available
observations of those vessels coming and going to port, as well as at
port, and determined it was unlikely that the whale was carried into
port by a Navy vessel. Based on this and other information from Navy's
investigation, we cannot determine whether this whale was struck by a
Navy vessel during HSTT activities or was struck by a commercial or
other vessel and drifted into the Navy pier area.
For the same reasons listed above describing why the likelihood of
a military vessel striking a whale is lower than that of some other
vessels striking whales, it is also highly unlikely that a Navy vessel
would strike a whale, dolphin, porpoise, or pinniped without detecting
it. Specifically, Navy vessels have Lookouts, including on the forward
part of the ship that can visually detect a hit animal in the event
ship personnel do not feel the strike (which has occurred).
Accordingly, NMFS is confident that the Navy's reported strikes are
accurate and appropriate for use in the analysis. The Navy has strict
internal procedures and mitigation requirements include reporting of
any vessel strikes of marine mammals, and the Navy's discipline,
extensive training (not only for detecting marine mammals, but for
detecting and reporting any potential navigational obstruction), and
strict
[[Page 4977]]
chain of command give NMFS a high level of confidence that all strikes
are reported.
In order to better account for the accidental nature of vessel
strikes to large whales in general and the potential risk from U.S.
Navy vessel movement within the HSTT Study Area during the remaining
period of the HSTT rule in particular, the Navy requested the HSTT rule
be modified to authorize additional incidental takes by vessel strike
based on probabilities derived from a Poisson distribution using vessel
strike data between 2009-2021 in the HSTT Study Area (the time period
from when current mitigations were instituted until the Navy conducted
the analysis for the 2022 Navy application), as well as historical at-
sea days in the HSTT Study Area from 2009-2015 and estimated at-sea
days for the period from 2016 to 2025 covered by the current
regulations. This distribution predicted the probabilities of a
specific number of strikes (n = 0, 1, 2, etc.) over the remaining
period of the regulations at the time of the Navy's analysis (2022-
2025).
The Navy used the two fin whale strikes (2009) and two unidentified
large whale strikes (2021) in their calculations to determine the
number of strikes likely to result from its activities over the
remaining 3 years of the rule (2023-2025, although worldwide strike
information from all Navy activities and other sources was used to
inform the species that may be struck). The Navy 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 vessel strike, which will remain in place along with additional
and modified mitigation measures during the 7 years of this rulemaking.
From this analysis, the Navy concluded that there was a 27 percent
chance that zero whales would be struck by Navy vessels over the
remaining period of the rule (which, at the time that the application
was submitted, was 4 years), and a 35, 23, and 10 percent chance that
one, two, or three whales, respectively, would be struck over the
remaining 4 years of the rule. Therefore, the Navy estimated that there
was 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 what would have
been the remaining 4 years of the current authorization, and the Navy
requested authorization of two additional takes of large whales by
serious injury or mortality by vessel strike, beyond the three takes
authorized by the 2020 HSTT final rule (85 FR 41780, July 10, 2020).
NMFS has since updated this analysis to reflect that an additional
strike of an unidentified large whale occurred in May 2023 (either a
fin whale or sei whale, as stated above) and that additional time has
passed since the Navy submitted the 2022 Navy application. Based on
further discussions with the Navy, NMFS has also updated the way it
calculated at-sea days. This is a different manner of calculating at-
sea days for the purposes of the strike analysis rather than a change
in Navy's activity levels. For 2010-2015, the at-sea days used in NMFS'
calculation reflected historic at-sea days in the HSTT action area
based on positional vessel data records (Mintz, 2016). While the actual
annual at-sea days from 2016-present are currently classified, NMFS'
updated calculation reflects an extrapolation of the 2010-2015 at-sea
days (using the formula y = -64x+131555) to estimate the number of at-
sea days in 2016 (Navy, 2022). The number of at-sea days derived for
2016 was 2,056 at-sea days, which reflects the downward trend in HSTT
vessel activity from 2010-2015. Since we do not have sufficient
information to say whether or not this downward trend continued for the
years 2017-2023, we conservatively estimate the average over these
years was the same as the 2016 extrapolated value of 2,056 at-sea days.
This analysis only included at-sea days for Navy warships greater than
65 feet (i.e., destroyers are the smallest ship class included). Navy
vessels smaller than 65 feet have never reported a whale strike in the
Pacific, and therefore, we consider it unlikely that this would occur
in the remaining period of the regulations.
Table 4--HSTT 2009 Through Mid-2023 At-Sea Days Used for the Vessel Strike Probability Calculation
----------------------------------------------------------------------------------------------------------------
Year At-Sea days Derivation
----------------------------------------------------------------------------------------------------------------
2009.......................................... 4,233 Estimated average based on 2010-2015 data.
2010.......................................... 5,207 Based on positional vessel data.
2011.......................................... 4,483 Based on positional vessel data.
2012.......................................... 4,081 Based on positional vessel data.
2013.......................................... 4,041 Based on positional vessel data.
2014.......................................... 4,272 Based on positional vessel data.
2015.......................................... 3,311 Based on positional vessel data.
2016.......................................... 2,056 Extrapolated from 2010-2015 regression.
2017.......................................... 2,056 Extrapolated from 2010-2015 regression.
2018.......................................... 2,056 Extrapolated from 2010-2015 regression.
2019.......................................... 2,056 Extrapolated from 2010-2015 regression.
2020.......................................... 2,056 Extrapolated from 2010-2015 regression.
2021.......................................... 2,056 Extrapolated from 2010-2015 regression.
2022.......................................... 2,056 Extrapolated from 2010-2015 regression.
2023 (first half of year)..................... 1,028 Extrapolated from 2010-2015 regression, then
reduced by half.
2009- Mid-2023 total.......................... 45,048 ................................................
----------------------------------------------------------------------------------------------------------------
NMFS then used the number of past Navy vessel strikes and the at-
sea days to calculate a vessel strike rate for 2009 through mid-2023.
The estimated total number of Navy at-sea days (for vessels greater
than 65 feet) for 2009 through mid-2023 was 45,048 days. Dividing the
five known strikes during that period by the at-sea days (i.e., 5
strikes/45,048 at-sea days) results in a strike rate of 0.000111
strikes per day.
As described above, NMFS conservatively assumed that the average
number of at-sea days from mid-2023 through 2025 (the remaining period
of the regulations at the time that the analysis was conducted) will be
the same as the 2016 extrapolated value of 2,056. Therefore, the
estimated at-sea days within the action area for the period from mid-
2023 through 2025 is 5,140 days. NMFS multiplied the historic daily
strike rate by the estimated at-sea days from mid-2023
[[Page 4978]]
through 2025 (0.000111 strikes per day x 5,140 days) to estimate the
number of whale strikes anticipated during that period. This
calculation predicts an estimated 0.57 strikes over the remaining 2.5
years of the regulations at the time the analysis was conducted (mid-
2023 through 2025).
As explained above, according to the U.S. Navy, the May 2021 vessel
strike of two fin whales by a Royal Australian Navy vessel did not
occur while that vessel was participating in a U.S. Navy-led training
exercise, and the strike of those two fin whales is not included in the
estimated take by vessel strike calculation. Instead, as noted below,
NMFS considered the 2021 vessel strike by the Royal Australian Navy
along with other strike information when determining which species
could be among the estimated large whales struck.
NMFS used a Poisson distribution to derive the probabilities of a
specific number of strikes (n=0, 1, 2, etc.) from mid-2023 through
2025, given the estimated 0.57 strikes during that period. NMFS'
probability analysis concluded that there is a 57 percent chance that
zero whales would be struck by U.S. Navy vessels from mid-2023 through
2025, and a 32, 9, and 2 percent chance that one, two, or three whales,
respectively, would be struck over that period. Further, there is an
estimated 11 percent chance that the Navy would strike more than one
large whale from mid-2023 through 2025. We have assessed these
probabilities and determined that the strike of up to two large whales
could occur over the remaining duration of the regulations, for a total
of five takes by serious injury or mortality of large whales by vessel
strike total over the 7-year duration of the regulations (three takes
authorized in the 2020 HSTT final rule (85 FR 41780, July 10, 2020)
which have occurred, plus two additional takes).
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.), 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 any
pinnipeds being struck by a vessel as a result of Navy activities. Over
the same time period, NMFS and the Navy have only one record of a
dolphin, porpoise, or small whale being struck by a vessel as a result
of Navy activities. A dolphin was accidentally struck by a Navy small
boat in fall 2021 in Saint Andrew's Pass, Florida. The smaller size and
maneuverability of dolphins, small whales, and pinnipeds generally make
such strikes very unlikely. Other than this one reported strike of a
dolphin in 2021, NMFS has never received any reports from other LOA or
Incidental Harassment Authorization holders indicating that these
species have been struck by vessels. In addition, worldwide vessel
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 (and is authorizing) incidental take by
vessel strike of large whales only (i.e., no dolphins, small whales,
porpoises, or pinnipeds) over the course of the 7-year regulations from
training and testing activities as discussed below.
Next, after determining that take of up to five large whales could
occur, NMFS considered which species could be among the five large
whales struck. As noted in the 2018 HSTT proposed and final rules, the
2019 HSTT proposed rule, 2020 HSTT final rule, and 2023 HSTT proposed
rule, in the 2017 Navy rulemaking/LOA 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
updated this analysis to consider several factors, in addition to the
overlap of Navy activities with stock distribution: (1) The relative
likelihood of striking one stock versus another based on available
strike data from all vessel types as denoted in the Carretta et al.
(2021; referenced in the Pacific SARs), the Pacific and Alaska SARs
(Carretta et al. 2024 and Young et al. 2024), and unpublished NMFS
vessel strike data for 2019-2021; and (2) whether the Navy has ever
struck an individual from a particular species or stock in the HSTT
Study Area, and if so, how many times. (Note that since publication of
the 2023 HSTT proposed rule, Carretta et al. (2023), which includes
vessel strike data through 2021 has published, but NMFS included this
data in its analysis through the unpublished NMFS vessel strike data
for 2019-2021, referenced above). NMFS did not consider relative
abundance, as was considered in previous analyses, given that the
relative abundance of a stock does not necessarily inform its
occurrence in a specific area. Further, NMFS did not consider the
historical strike data from older years (prior to 2015), given that
more recent data is more relevant to determining occurrence of, and
strike risk to, various stocks. NMFS updated the analysis with NMFS'
vessel strike probability analysis for the remaining period of the rule
(2.5 years at the time of the analysis) and included new/updated vessel
strike data from the SARs and NMFS records for California and Hawaii.
To address number (1) above, for SOCAL, NMFS compiled information
from Carretta et al. (2021) and unpublished NMFS vessel strike data for
2020-2021 (since published in Caretta et al. (2023)) for California on
known annual rates of large whale serious injury or mortality from
vessel collisions (this data includes the strike of two fin whales by
the Royal Australian Navy in 2021, but does not include Navy strikes in
2021 and 2023 because the species struck is not known). Use of Carretta
et al. (2021) rather than the Pacific SAR allows NMFS to separate
strikes that occurred in California from strikes to the same stocks
that occurred in other locations. For the HRC, NMFS compiled
information from the Pacific and Alaska SARs and unpublished NMFS
vessel strike data for 2019-2021 for Hawaii on known annual rates of
large whale serious injury or mortality from vessel collisions. The
annual rates of large whale serious injury or mortality from vessel
collisions from those sources help inform the relative susceptibility
of large whale species to vessel strike in SOCAL and the HRC;
therefore, we considered only reported strikes where the species struck
was identified with sufficient certainty (i.e., ``known strikes'').
Additionally, the M/SI in the 2023 SAR considers modeled takes for
some, but not most species and stocks (i.e., M/SI for humpback whale
includes modeled takes from Rockwood et al. (2017)). Using known strike
data for all species and stocks allows us to consider-like metrics for
this comparative analysis. (Note we rely on the M/SI estimates from the
2023 SAR (or draft 2023 SAR, where relevant) in our negligible impact
analysis. We also consider modeled takes of species from Rockwood et
al. (2017) in table 7). We summed the annual rates of serious injury or
mortality from vessel collisions in California and Hawaii as calculated
above and then divided each species' annual rate by this sum to get the
proportion of strikes for each species/stock (table 5).
[[Page 4979]]
Table 5--Annual Rates of Serious Injury and Mortality From Vessel Strike and Percentage of Total Strikes by
Species in SOCAL and the HRC
----------------------------------------------------------------------------------------------------------------
SOCAL annual HRC annual Percentage of
ESA status Species Stock known strikes known strikes total annual
(2015-2021) (2015-2021) strikes
----------------------------------------------------------------------------------------------------------------
Listed................ Blue whale........ Central North .............. 0 0.0
Pacific.
Eastern North 0.57 .............. 6.5
Pacific.
Fin whale \a\..... California, 1.57 .............. 17.8
Oregon, &
Washington.
Hawaiian.......... .............. 0 0.0
Humpback whale.... Central America/ 1 \b\ .............. 11.3
Southern Mexico-
CA/OR/WA (Central
America DPS).
Mainland Mexico-
CA/OR/WA (Mexico
DPS).
Sei whale......... Eastern North 0.14 .............. 1.6
Pacific.
Hawaiian.......... .............. 0 0.0
Gray whale........ Western North 0 .............. 0.0
Pacific.
Sperm whale....... California, 0 .............. 0.0
Oregon, &
Washington.
Hawaiian.......... .............. 0 0.0
Not listed............ Gray whale........ Eastern North 2.14 .............. 24.3
Pacific.
Bryde's whale..... ETP stock......... 0 .............. 0.0
Hawaiian.......... .............. 0 0.0
Minke whale....... CA/OR/WA.......... 0 .............. 0.0
Hawaii............ .............. 0 0.0
Humpback whale.... Hawaii (Hawaii .............. 3.4 38.5
DPS).
-----------------------------------------------------------------------------------------
Total............. .................. .................. 8.82 ................
----------------------------------------------------------------------------------------------------------------
\a\ This includes the two fin whales struck by the Royal Australian Navy in May 2021.
\b\ This strike occurred to an individual of the CA/OR/WA stock under the previous stock structure. As such, in
its analysis, NMFS assumed that this strike could have been of either stock.
To inform the likelihood of striking a particular species of large
whale, we multiplied the percent of total annual strikes for a given
species in table 5, by the total percent likelihood of striking at
least one whale during the remaining period of the rule (2023-2025 at
the time of the analysis; i.e., 43 percent, as described by the
probability analysis above). We also calculated the percent likelihood
of striking a particular species of large whale twice during the
remaining period of the rule by squaring the value estimated for the
probability of striking a particular species of whale once (i.e., to
calculate the probability of an event occurring twice, multiply the
probability of the first event by the second). The results of these
calculations are reflected in the last two columns of table 6. We note
that these probabilities vary from year to year as the average annual
mortality changes depending on the specific range of time considered;
however, over the years and through updated data in the SARs and
unpublished NMFS records, stocks tend to consistently maintain a
relatively higher or relatively lower likelihood of being struck.
Table 6--Percent Likelihood of Striking Each Stock One or Two Times Over 2.5 Years and Total Known U.S. Navy
Strikes in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
Percent Percent
Total known U.S Navy likelihood of likelihood of
Species Stock strikes in HSTT study 1 strike over 2 strikes over
area 2.5 years 2.5 years
----------------------------------------------------------------------------------------------------------------
Blue whale........................ Central North Pacific 0.................... 0.00 0.00
Eastern North Pacific 1 in SOCAL (2004).... 2.81 0.08
Fin whale......................... CA/OR/WA............. 3 in SOCAL (2009, 7.74 \b\ 0.60 \b\
2023 \a\).
Hawaiian............. 0.................... 0.00 0.00
Humpback whale.................... Central America/ 0.................... 4.93 0.24
Southern Mexico- CA/
OR/WA (Central
America DPS).
Mainland Mexico- CA/
OR/WA (Mexico DPS).
Sei whale......................... Eastern North Pacific 1 in SOCAL (2023 \a\) 0.69 0.00
Hawaiian............. 0.................... 0.00 0.00
Gray whale........................ Western North Pacific 0.................... 0.00 0.00
Sperm whale....................... CA/OR/WA............. 0.00................. 0.00
Hawaiian............. 1 in HRC (2007)...... 0.00 0.00
Gray whale........................ Eastern North Pacific 3 in SOCAL (1993, 10.55 1.11
1998).
Bryde's whale..................... ETP stock............ 0.................... 0.00 0.00
Hawaiian............. 0.................... 0.00 0.00
Minke whale....................... CA/OR/WA............. 0.................... 0.00 0.00
Hawaii............... 0.................... 0.00 0.00
[[Page 4980]]
Humpback whale.................... Hawaii (Hawaii DPS).. 2 in HRC (2003)...... 16.76 2.81
----------------------------------------------------------------------------------------------------------------
\a\ Based on available photos and video, NMFS and the Navy have determined the May 2023 strike was of either a
fin whale or sei whale. In the analysis herein, NMFS has assumed that this strike could have been of either
species, and has therefore, accounted for it in both the fin whale and sei whale strike totals. Given that we
are unable to identify the species of the whales struck by the U.S. Navy in 2021, NMFS did not include the two
2021 strikes in this part of the analysis.
\b\ This includes the two fin whales struck by the Royal Australian Navy in May 2021.
The percent likelihood calculated as described above are then
considered in combination with the information indicating the known
species that the Navy has hit in the HSTT Study Area since 1991 (since
they started tracking consistently; table 6). We note that for the
lethal take of species specifically denoted in table 7 below, 47
percent of those struck by the Navy (8 of 17 in the Pacific) remained
unidentified (including the May 2023 strike, which as stated above,
NMFS and the Navy have determined was of either a fin whale or sei
whale). However, given the information on known stocks struck, the
analysis below remains appropriate. We also note that Rockwood et al.
(2017) modeled the likelihood of 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 could hit those stocks.
For each indicated stock, table 7 includes the percent likelihood
of striking an individual whale from a particular stock during the
remaining 2.5 years of the rule once based on SAR data, Carretta et al.
(2021), and unpublished NMFS vessel strike data from 2019-2021 for
Hawaii; total strikes from Navy vessels in the HSTT Study Area, and
modeled vessel strikes from Rockwood et al. (2017). The last column
indicates the authorized annual mortality.
Table 7--Summary of Factors Considered in Determining the Number of Individuals in Each Stock Potentially Struck by a Vessel
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Rockwood et Annual
likelihood Total known U.S Navy al. 2017 authorized Annual
ESA status Species Stock of one strikes in HSTT study modeled take from authorized
strike over area (1993-2009) vessel 2020 HSTT take
2.5 years strikes \1\ final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Listed.................. Blue whale.............. Central North Pacific.. 0.00 0...................... ........... ........... 0
Eastern North Pacific.. 2.81 1 in SOCAL (2004)...... 18 0.14 0.14
Fin whale............... CA/OR/WA............... 7.74 \2\ 3 in SOCAL (2009, 2023 43 0.29 0.57
\3\).
Hawaii................. 0.00 0...................... ........... ........... 0
Humpback whale \4\...... Central America/ 4.93 0...................... 22 0.14 0
Southern Mexico- CA/OR/
WA (Central America
DPS).
Mainland Mexico-CA/OR/ ........... ....................... ........... ........... 0.14
WA (Mexico DPS).
Sei whale............... Eastern North Pacific.. 0.69 1 in SOCAL(2023) \3\... ........... ........... 0.14
Hawaii................. 0.00 0...................... ........... ........... 0
Gray whale.............. Western North Pacific.. 0.00 0...................... ........... ........... 0
Sperm whale............. CA/OR/WA............... 0.00 0...................... ........... ........... 0
Hawaii................. 0.00 1 in HRC (2007)........ ........... 0.14 0
Not listed.............. Gray whale.............. Eastern North Pacific.. 10.55 3 in SOCAL (1993, 1998) ........... 0.29 0.57
Bryde's whale........... Eastern Tropical 0.00 0...................... ........... ........... 0
Pacific.
Hawaii................. 0.00 0...................... ........... ........... 0
Minke whale............. CA/OR/WA............... 0.00 0...................... ........... ........... 0
Hawaii................. 0.00 0...................... ........... ........... 0
Humpback whale.......... Hawaii (Hawaii DPS) \5\ 16.76 2 in HRC (2003)........ ........... 0.29 0.29
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Rockwood et al. modeled likely annual vessel strikes off the West Coast for these three species only.
\2\ This includes the two fin whales struck by the Royal Australian Navy in May 2021.
\3\ Based on available photos and video, NMFS and the Navy have determined the May 2023 strike was of either a fin whale or sei whale. In the analysis
herein, NMFS has assumed that this strike could have been of either species, and has therefore, accounted for it in both the fin whale and sei whale
strike totals.
\4\ In the 2020 HSTT final rule, take of humpback whale by serious injury and mortality by vessel strike in SOCAL was attributed to the former CA/OR/WA
stock and the Mexico DPS. Text explains why takes in SOCAL come from the Mexico DPS, and therefore the Mainland Mexico-CA/OR/WA stock.
\5\ The 2023 final SAR reports vessel strike data for the Hawaii stock of humpback whales in Alaska, Washington, and Hawaii. Only vessel strike data
from Hawaii was incorporated into our analysis as Alaska and Washington are outside of the HSTT Study Area.
Accordingly, stocks that have no record of ever having been struck
by any vessel are considered to have a zero percent likelihood of being
struck by the Navy in the 7-year period of the rule. Stocks that have
never been struck by the Navy, have rarely been struck by other
vessels, and have a low percent likelihood based on the historical
vessel strike calculation are also considered to have a zero percent
likelihood to be struck by the Navy during the 7-year rule. We note
that while vessel strike records have not differentiated between
Eastern North Pacific and Western North Pacific gray whales, given
their small population size and the comparative rarity with which
individuals from the Western North Pacific stock are detected off the
U.S. West Coast, it is highly unlikely that
[[Page 4981]]
they would be encountered, much less struck. This rules out all but
seven stocks. Further, it is unlikely that the Hawaii stock of sperm
whale would be struck given the zero percent likelihood of striking a
sperm whale as indicated by the quantitative analysis above, the fact
that the last U.S. Navy strike of a Hawaii stock sperm whale was in
2007, before the mitigation updates discussed above, and that, with the
exception of humpback whales, vessel strikes (both military and non-
military) of other large whale species in the HRC are extremely rare
events (Carretta 2021b; Carretta 2022). (The 2020 HSTT final rule
authorized one take (0.14 annual take) by mortality of the Hawaii stock
of sperm whale.)
As stated previously, based on available photos and video of the
whale struck by the U.S. Navy in Southern California in 2023, NMFS and
the Navy have determined this whale was either a fin whale or sei
whale. While the species of the two whales struck by the U.S. Navy in
2021 are unknown, given the following factors, NMFS expects these
strikes may have been CA/OR/WA fin whales or Eastern North Pacific
(ENP) gray whales, or some combination of these two stocks. These
species have the highest annual rates of M/SI from vessel collision in
California (1.57, 2.14, respectively, as noted above; which is
approximately one and a half to two times higher than the species with
the next highest strike rate, humpback whale, and approximately two to
four times higher than the strike rate of blue whale). Additionally,
gray whale and fin whale have the most recorded vessel strike incidents
by military vessels in SOCAL and are the only stocks known to have been
hit more than one time by naval vessels in the SOCAL portion of the
HSTT Study Area (three gray whale strikes by the U.S. Navy (1993,
1998), two or three fin whale strikes by the U.S. Navy (2009,
potentially 2023), and two fin whale strikes by the Royal Australian
Navy (2021)). Further, accounting for undocumented vessel strikes,
Rockwood et al. (2021) estimated that in their study area off Southern
California from 2012-2018, on average 8.9 blue, 4.6 humpback, and 9.7
fin whales were killed by civilian vessel strikes from June to November
each year. In addition, they estimated that, on average, 5.7 humpback
whales were killed by civilian vessel strike from January-April per
year (Rockwood et al. 2021). For fin whales in particular, model-
predicted densities of large whales in the Southern California Bight
from May to July 2021 (the time period during which the 2021 strikes of
two unidentified whales by the U.S. Navy occurred) estimated fin whale
abundance as being nearly an order of magnitude higher than either blue
or humpback whale abundance during this time period (Becker et al.
2020; Zickel et al. 2021). Ship-whale encounter models for the U.S.
West Coast Exclusive Economic Zone also indicated that vessel strike
mortality estimates for fin whales were significantly higher than for
blue whales and humpback whales (Rockwood et al. 2017). The
comparatively higher modeled vessel strike rates for fin whales result
from both the larger population as well as the more offshore
distribution that overlaps significantly with several major shipping
routes for a much greater spatial extent (Rockwood et al. 2017). Based
on 1,243 visual boat-based sightings of 2,638 fin whales from 1991-
2011, Calambokidis et al. (2015) found fin whale concentration areas
included the San Clemente Basin where the 2021 Navy vessel strikes
occurred (Tanner and Cortez Banks area and the shelf edge west of San
Nicolas Island were also reported as fin whale concentration areas).
There are two different populations of fin whales that occur in the
Southern California Bight: a seasonal population, and a population that
occurs year-round with offshore/inshore movements (Campbell et al.
2015; Falcone et al. 2022). This would likely make fin whales more
susceptible to vessel strike year-round, as compared to other large
whale species that may occur seasonally within SOCAL. Based on all of
these factors, there is a reasonable likelihood that the CA/OR/WA stock
of fin whales or ENP stock of gray whales could be struck twice during
the remaining period of the rule. Therefore, we find that, of the five
total takes by serious injury or mortality by vessel strike of large
whales authorized over the course of the 7-year rule, up to four of
those takes could be of the CA/OR/WA stock of fin whale or the ENP
stock of gray whale given that the two strikes of unidentified large
whales in 2021 could have been of either stock. Further, consistent
with the 2020 HSTT final rule, we expect that, of the five total takes
by serious injury or mortality by vessel strike of large whales
authorized, up to two of those takes could occur in Hawaii, and
therefore be of individuals of the Hawaii stock of humpback whale.
Based on the information summarized in table 7 and the fact that
there is the potential for up to two large whales to be struck over the
remaining period of the rule (five strikes over the full 7-year rule
period), one individual from the Eastern North Pacific stock of blue
whale, Mainland Mexico-CA/OR/WA stock of humpback whale, or Eastern
North Pacific stock of sei whale could be among the two whales struck
during the remaining effective period of the regulations (2023-2025 at
the time of the analysis). The total strikes of Eastern North Pacific
blue whales and the percent likelihood of striking one based on the
historic strike calculation above can both be considered moderate
compared to other stocks, and the Navy struck a blue whale in 2004
(based on the historic strike calculation, the likelihood of striking
two blue whales is well below one percent (table 6)). Therefore, we
consider it reasonably likely that the Navy could strike one individual
over the course of the 7-year rule, and given that we do not expect
that the 2023 strike nor either of the 2021 U.S. Navy strikes of
unidentified large whales were blue whales, we expect that this strike
could occur during the remaining period of the rule. The total strikes
of Eastern North Pacific sei whales are low compared to other stocks,
but NMFS and the Navy think it is possible that the Navy may have
struck a sei whale in SOCAL in 2023. Therefore, we consider it
reasonably likely that the Navy could strike a sei whale over the
remaining period of the rule. The Navy has not hit a humpback whale in
the SOCAL portion of the HSTT Study Area. However, in 2016 a U.S. Coast
Guard vessel participating in a Navy event struck a humpback whale in
Hood Canal, and as a species, humpbacks have a moderate to high number
of total strikes and percent likelihood of being struck. Although the
likelihood of Central America/Southern Mexico- CA/OR/WA (Central
America DPS) or Mainland Mexico-CA/OR/WA (Mexico DPS) humpback whales
being struck by any vessel type 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 Mainland Mexico-CA/OR/WA stock (Mexico DPS)
over the 7-year duration of the rule, as described below.
Regarding the likelihood of striking a humpback whale from a
particular DPS, we evaluated the relative abundance of each of these
DPS in California waters. Curtis et al. (2022) estimated the abundance
of the Central America DPS to be 1,496 whales. From Wade et al. (2017),
about 93 percent (or 1,391
[[Page 4982]]
whales) of these humpbacks that winter in Central America will move to
Oregon/California in the summer months. While there is currently no
abundance estimate for the Mexico DPS, an estimated 3,477 whales from
the Mexico DPS feed off the U.S. West Coast (Calambokidis and Barlow
2020; Curtis 2022). Based on this information, we estimate that
approximately 30 percent of the humpback whales off the coast of
California may be from the Central America DPS with the remaining 70
percent expected to be from the Mexico DPS. Therefore, we anticipate
that if a Navy vessel strike of a humpback whale were to occur within
SOCAL, it would likely be from the Mexico DPS. Last, Rockwood et al.
(2017) supports a relative likelihood of 1:1:2 for striking blue
whales, humpback whales, and fin whales off the U.S West Coast (though
as noted above, more recent data suggests that the relative likelihood
of striking a fin whale is higher and suggests that the two 2021 U.S.
Navy vessel strikes of unidentified large whales may have been fin
whales), which, in consideration of more recent data also supports the
authorized take included in this rule, which is 1, 1, and 4,
respectively over the 7-year period. For these reasons, one lethal take
of a Mainland Mexico-CA/OR/WA humpback whale (Mexico DPS) could occur
and is authorized.
For Hawaii stocks, given that all known vessel strikes between 2015
and 2021 were of humpback whales, we anticipate that any vessel strike
of a large whale in Hawaii would be of the Hawaii stock of humpback
whale. Given that this stock has the highest percentage of total annual
strikes (38.5 percent) and a 2.81 percent chance of being struck twice
over the remaining period of the rule (more than twice that of the
species with the next highest percentage, gray whale), NMFS authorizes
two lethal takes of Hawaii humpback whales.
As described above, the Navy's analysis suggests and NMFS' analysis
concurs that the likelihood of vessel strikes to the stocks below is
discountable 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, NMFS is
not authorizing lethal take for the following stocks: Blue whale
(Central North Pacific stock), Bryde's whale (Eastern Tropical Pacific
stock and Hawaii stock), fin whale (Hawaii stock), gray whale (Western
North Pacific stock), humpback whale (Central America/Southern Mexico-
CA/OR/WA stock, Central America DPS), minke whale (CA/OR/WA stock and
Hawaii stock), sei whale (Hawaii stock), and sperm whale (CA/OR/WA
stock and Hawaii stock).
Also of note, while information on past Navy vessel strikes can
serve as a reasonable indicator of future vessel strike risk, future
conditions may differ from the past in ways that could influence the
likelihood of a large whale vessel strike occurring. In general, the
magnitude of vessel strike risk may be increasing over time as many
whale populations are gradually recovering from centuries of commercial
whaling (Redfern et al. 2020). Increased vessel strike risk off
California in recent decades has been associated with increases in the
abundance of fin and humpback whale populations in the North Pacific
(Redfern et al. 2020). It has also been suggested that the blue whale
population in the Eastern North Pacific, inclusive of the SOCAL portion
of the HSTT Study Area, is at carrying capacity and recovered to pre-
whaling levels (Monnahan et al. 2014). In addition, the magnitude of
risk may also be affected by shifts in whale distributions over time in
response to environmental factors including climate change, marine
heatwaves, and associated changes in prey distribution.
Historically, military vessel strikes of large whales within the
HSTT Study Area have been rare events with only seven such strikes
occurring over the past 14 years, five U.S. Navy strikes, and two Royal
Australian Navy strikes. However, the fact that four of these strikes
occurred within a 3-month period (May-July) in 2021, and two occurred
within a 4-month period (February-May) in 2009, suggests that military
vessel strikes in SOCAL can be both highly episodic and clustered. The
four large whale strikes in 2021 (two strikes of unidentified large
whales by the U.S. Navy and two fin whale strikes by the Royal
Australian Navy) appear to be outliers in the time series of military
vessel strikes in SOCAL for that period. However, particularly in
consideration of the 2023 U.S. Navy strike, these strikes could also
represent an early indicator of an increased military vessel strike
risk within SOCAL based on the factors discussed above. Results from a
survey of whale watching vessel operators and crew in Southern
California, combined with remote sensing data in the area, suggest that
the number of large whales may have been greater in May through July of
2021 compared with previous years in certain high military vessel
traffic and ``core'' use HSTT areas off southern California,
particularly farther offshore as well as closer to shore off San Diego
Bay (Zickel MJ et al. 2021).
In conclusion, while take by vessel strike across any given year is
sporadic, based on the information and analysis above, including
consideration of the 2021 and 2023 strikes by the U.S. Navy, NMFS
anticipates no more than five takes of large whales by M/SI could occur
over the 7-year period of the rule. Of those five whales over the 7-
years, no more than four may come from the following stocks: gray whale
(Eastern North Pacific stock) and fin whale (CA/OR/WA stock). No more
than two may come from the Hawaii stock of humpback whales. No more
than one may come from the following stocks: blue whale (Eastern North
Pacific stock), sei whale (Eastern North Pacific), and humpback whale
(Mexico-North Pacific stock or Mainland Mexico-CA/OR/WA, Mexico DPS).
Accordingly, NMFS has evaluated under the negligible impact standard
the M/SI of 0.14, 0.29, or 0.57 whales annually from each of these
species or stocks (i.e., one, two, or four takes, respectively, divided
by 7 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 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 report (U.S. Department of the Navy,
2018). Specifically, over the course of a modeled maximum year of
training and testing, the Navy's model and quantitative analysis
process estimates M/SI of two short-beaked common dolphin 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 7[hyphen]year period of the 2020 HSTT 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. NMFS makes no changes to the
authorization of take by M/SI as a result of explosive use as the Navy
made no changes to its activities from that described in the 2018 HSTT
final rule, and after reviewing all new information,
[[Page 4983]]
we find that our previous analyses remain applicable. Please refer to
the 2018 HSTT final rule and 2020 HSTT final rule for additional
information.
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.\1\ 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. This final rule
includes all mitigation measures required by the 2020 HSTT final rule
(though two have been modified in this final rule), and our discussion
in that rule remains complete and accurate (including reference to the
2018 HSTT final rule), except as described below.
---------------------------------------------------------------------------
\1\ 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 measure(s) for applicant
implementation. Practicability of implementation may consider such
things as cost, impact on activities, and, in the case of a military
readiness activity, specifically considers personnel safety,
practicality of implementation, and impact on the effectiveness of the
military readiness activity.
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 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
[[Page 4984]]
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.
Assessment of Mitigation Measures for HSTT Rule
NMFS fully reviewed the Navy's specified activities and the
mitigation measures for the 2020 HSTT final rule and determined, with
the addition of the new and modified measures discussed herein, and
after consideration of the new information and studies described above,
that the mitigation measures would result in the least practicable
adverse impact on marine mammals (see the 2019 Navy application and the
2018 HSTT final rule for detailed information on the Navy's mitigation
measures, with the exception of the new and modified measures described
herein). NMFS worked with the Navy in the development of the Navy's
mitigation 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 supports 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 2020 HSTT regulations and will be required to
continue implementation of the mitigation measures identified in this
rulemaking for the full 7 years it covers to avoid or reduce potential
impacts from acoustic, explosive, and physical disturbance and vessel
strike stressors.
The Navy also evaluated numerous measures in the 2018 HSTT FEIS/
OEIS that were not included in the 2017 Navy application, and NMFS
independently reviewed and considered all new information, and
continues to concur with Navy's analysis that their inclusion was not
appropriate under the least practicable adverse impact standard. The
Navy considered these additional potential mitigation measures in two
groups. First, chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS, in
the Measures Considered but Eliminated section, includes an analysis of
an array of different types of mitigation that have been recommended
over the years by NGOs or the public, through scoping or public comment
on environmental compliance documents. Appendix K (Geographic
Mitigation Assessment) of the 2018 HSTT FEIS/OEIS includes an in-depth
analysis of time/area restrictions that have been recommended over time
or previously implemented as a result of litigation.
Below, we summarize the mitigation measures (organized into
procedural measures and mitigation areas) that NMFS has determined will
ensure the least practicable adverse impact on all affected species and
stocks and their habitat, including the specific considerations for
military readiness activities, and including several measures that are
new or modified since publication of the 2020 HSTT final rule.
In its 2022 application, the Navy proposed no changes to the
procedural or geographic mitigation measures in the 2020 HSTT final
rule. NMFS reviewed new information potentially pertinent to mitigation
of the Navy's training and testing activities. While Lookouts are
essential to detecting the potential for and potentially avoiding a
vessel strike of a marine mammal, NMFS and the Navy have always
acknowledged that Lookouts cannot prevent all vessel strikes. The
recent U.S. Navy and Royal Australian Navy vessel strikes appear to
confirm this, as these strikes occurred when Lookouts were posted. As
acknowledged above, these recent incidents may represent an early
indicator of an increased military vessel strike risk within SOCAL.
Recent reports appear to reflect the sporadic, episodic, or clustered
nature of vessel strike or may reflect a trend of increased large whale
presence in this area in the early summer months. NMFS and the Navy
have discussed the circumstances of each of the recent strikes,
including the Royal Australian Navy strike, and discussed ways of
improving strike mitigation. In these further conversations, NMFS and
the Navy developed several new and modified mitigation measures in
comparison to those included in the 2020 HSTT final rule.
For vessel movement, the 2020 HSTT final rule required that ``When
underway Navy personnel must observe the mitigation zone for marine
mammals; if marine mammals are observed, Navy personnel must maneuver
to maintain distance.'' This measure has been updated to state that
reducing speed may be an appropriate way to maneuver. The revised
measure states that ``When underway, Navy personnel must observe the
mitigation zone for marine mammals; if marine mammals are observed,
Navy personnel must maneuver (which may include reducing speed as the
mission or circumstances allow) to maintain distance.'' Of note,
between 2009 and 2021 (the most recent year for which data is
available), U.S. Navy vessels in the SOCAL portion of the HSTT Study
Area maneuvered 316 times to avoid large whales during MTEs. The years
2017 and 2021 had the highest number of maneuvers (n=64 and n=82,
respectively). In all years for which data is available (2009 to 2021),
Navy cruisers and destroyers account for 51 to 100 percent of maneuvers
during MTEs. With this modified measure, NMFS is emphasizing that Navy
personnel should consider reducing speed (as mission or circumstances
allow) when maneuvering to avoid marine mammals, though this modified
measure does not require reduction of vessel speed for reasons
explained in chapter 5 (Mitigation) of the 2018 HSTT FEIS/OEIS, in the
Measures Considered but Eliminated section (i.e., requirements to
reduce vessel speeds would have significant direct negative effects on
mission effectiveness).
This final rule also requires that Navy personnel must send alerts
to Navy vessels of increased risk of strike following any reported Navy
vessel strike in the HSTT Study Area.
Further, the 2020 HSTT final rule included a requirement for Navy
personnel to issue seasonal awareness notification messages to alert
ships and aircraft to the possible presence of blue whales (June-
October), humpback whales (November-April), gray whales (November-
March), or fin whales (November-May). These messages assist in
maintaining safety of navigation and in avoiding interactions with
large whales during transits. 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. This final
rule requires the Navy to re-title the spring blue whale message
(released in June) to a large whale awareness message inclusive of
typical spring-summer large whales in southern California (mainly blue,
fin,
[[Page 4985]]
and humpback whales). Furthermore, rather than tying the message
release to a specific month, the message would be for a period based on
predicted oceanographic conditions for a given year (e.g., May-
November, April-November, etc.). The Navy will also evaluate
information obtained from NMFS' Southwest Fisheries Science Center
scientists, recently published West Coast BIAs (Calambokedis et al.
2024), and other oceanographic or predictive models for guiding message
text descriptions of whale occurrence in Southern California. The
improvement will emphasize that when a marine mammal is spotted, this
may be an indicator that additional marine mammals are present and
nearby, and increased vigilance and awareness of Navy personnel is
warranted.
This final rule also contains a new mitigation measure in which
Navy personnel would issue real-time notifications to Navy vessels of
large whale aggregations (four or more whales) within 1 nmi (1.9 km) of
a Navy vessel in a select area of SOCAL (Of note, the four whales do
not have to be the same species and do not have to be part of the same
group (e.g., two whales of one species sighted at a distance off the
port side at 500 yd (457.2 m) and two more whales of another species
sighted off the starboard side at 500 yd (457.2 m) will be considered
an aggregation under this measure)). This measure will apply to the
area between 32-33 degrees North and 117.2-119.5 degrees West, which
includes the locations where recent (2009, 2021, 2023) strikes
occurred, and historic locations where strikes occurred when precise
latitude and longitude were known.
Of note, in order to improve mitigation effectiveness, in fall 2022
the Navy made several changes to its Lookout training. The Navy revised
its basic Lookout training materials to improve marine mammal awareness
and spotting techniques through updates to the Marine Mammal chapter of
the Navy's September 2022 Lookout Training Handbook. Further, the Navy
integrated improved Lookout training into a new generation of a
shipboard simulator at its recruit training center in the Great Lakes.
This simulator enhances new sailor knowledge and skill under realistic
training scenarios. Last, the Navy will evaluate future revisions to
online or DVD Marine Species Awareness Training video training to
emphasize that when a protected species is spotted, this may be an
indicator that additional marine mammals are present and nearby, and
the vessel should take this into consideration when transiting.
In addition to Lookouts required under this rule, the Navy mandates
the number of Lookouts on underway vessels per internal policy
documents, including the Surface Ship NAVDORM. As described in the
Standard Operating Procedures section, in 2021, NAVDORM policy changed
to require three Lookouts on most classes of surface ship, including
destroyers and cruisers. However, the Navy asserts that always
including three Lookouts on these vessels in the future as a required
mitigation measure is not practicable because lookout numbers are
subject to change based on national security needs, including manning
and staffing requirements. As such, although the Navy describes these
additional Lookouts in its application under the mitigation section,
NMFS has not considered the potential presence of two additional
lookouts when considering Navy's mitigation effectiveness. Please see
the Reporting section for additional detail on this requirement.
With the exception of Oedekoven and Thomas (2022) described above,
there is no new information that affects NMFS' assessment of the
applicability or effectiveness of the measures included in the 2018
HSTT final rule over the remainder of the 7-year period. As stated
above in the Potential Effects of Specified Activities on Marine
Mammals and Their Habitat section, while (Oedekoven and Thomas, 2022)
suggests that detection of marine mammals is less certain than
previously assumed at certain distances, model assumptions may still
underestimate Lookout effectiveness in some cases. Additionally,
maneuvering data summarized above demonstrates that Navy vessels are
successfully maneuvering to avoid striking sighted marine mammals in
most cases, despite the Oedekoven and Thomas (2022) results. Further,
as described above, Navy and NMFS have developed modified or new
mitigation in this final rule which are anticipated to further reduce
the risk of vessel strike of large whales.
In summary, and as described in more detail above regarding vessel
strike, 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, vessel 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 and minimize the likelihood or severity of PTS or other
injury, and reduce instances of TTS or more severe behavioral
disturbance 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 would reduce take of marine mammals in areas
or at times where they are known to engage in important behaviors, such
as feeding or calving, where the disruption of those behaviors would
have a higher probability of resulting in impacts on reproduction or
survival of individuals that could lead to population-level impacts.
Table 8 provides the Navy's required procedural mitigation measures for
environmental awareness and education and vessel movement as well as
summaries of the Navy's procedural mitigation measures for other
activities. Table 9 provides summaries of mitigation areas for the HSTT
Study Area.
NMFS and the Navy considered additional mitigation areas (beyond
those already identified with associated measures to reduce impacts to
marine mammals) to further protect marine mammals, including
odontocetes with small or resident populations in the HSTT Study Area,
and large whales with feeding, reproductive, and migratory BIAs in the
HSTT Study Area. This includes consideration of new mitigation areas
that could be based on newly identified BIAs in Hawaii (Kratofil et al.
2023) and on the West Coast (Calambokidis et al. 2024). The HRC
overlaps BIAs identified in Kratofil et al. (2023) for humpback whale,
spinner dolphin, short-finned pilot whale, rough-toothed dolphin, pygmy
killer whale, pantropical spotted dolphin, melon-headed whale, false
killer whale, dwarf sperm whale, goose-beaked whale, common bottlenose
dolphin, and Blainville's beaked whale. All of the BIAs that overlap
the HRC are small and resident population BIAs, with the exception of
the humpback whale reproductive BIA. SOCAL overlaps BIAs identified in
Calambokidis et al. (2024) for blue whale (feeding area), fin whale
(feeding area), and gray whale (migratory route).
Additional restrictions in mitigation areas beyond those
restrictions and areas included in the 2020 HSTT final rule (including
mitigation to reduce vessel strike risk such as vessel speed
restrictions, and in consideration of the newly identified BIAs
(Kratofil et al. 2023 and Calambokidis et al. 2024)) is impracticable
given overlap with critical Navy training areas in the HRC and SOCAL.
However, many of the BIAs
[[Page 4986]]
identified in Kratofil et al. 2023 and Calambokidis et al. (2024)
partially or fully overlap the mitigation areas included in the 2020
HSTT final rule and this final rule and are aimed at reducing impacts
to the same species for which Kratofil et al. 2023 and Calambokidis et
al. (2024) identified BIAs. In the HRC, the existing mitigation areas
are targeted and expected to reduce impacts to humpback whales, false
killer whales, dwarf sperm whales, pygmy killer whales, short-finned
pilot whales, melon-headed whales, bottlenose dolphins, spotted
dolphins, spinner dolphins, rough-toothed dolphins, goose-beaked
whales, and Blainville's beaked whales (i.e., all species for which
Kratofil et al. (2023) identified BIAs). In SOCAL, the existing
mitigation areas are aimed at reducing impacts to blue whales, fin
whales, and gray whales (i.e., all species for which Calambokidis et
al. (2024) identified BIAs). Further, as included in the 2023 HSTT
proposed rule, this final rule requires that Navy personnel must issue
real-time notifications to Navy vessels of large whale aggregations
(four or more whales) within 1 nmi (1.9 km) of a Navy vessel in a
select area of SOCAL, and that Navy personnel must send alerts to Navy
vessels of increased risk of strike following any reported Navy vessel
strike in the HSTT Study Area. Last, this final rule includes
modification of two mitigation measures from the 2020 HSTT final rule
(85 FR 41780; July 10, 2020) to further reduce the potential for vessel
strike.
Table 8--Summary of Procedural Mitigation
------------------------------------------------------------------------
Mitigation zone sizes and other
Stressor or activity requirements
------------------------------------------------------------------------
Environmental Awareness and This mitigation applies to all
Education. training and testing activities, as
applicable.
Mitigation Requirements:
[cir] Appropriate Navy personnel
(including civilian personnel)
involved in mitigation and training
or testing activity reporting under
the specific activities must complete
one or more modules of the U.S. Navy
Afloat Environmental Compliance
Training Series, as identified in
their career path training plan.
Modules include:
[ssquf] Introduction to the U.S.
Navy Afloat Environmental
Compliance Training Series. The
introductory module provides
information on environmental laws
(e.g., ESA, MMPA) and the
corresponding responsibilities that
are relevant to Navy training and
testing activities. The material
explains why environmental
compliance is important in
supporting the Navy's commitment to
environmental stewardship.
[ssquf] Marine Species Awareness
Training. All bridge watch
personnel, Commanding Officers,
Executive Officers, maritime patrol
aircraft aircrews, anti-submarine
warfare and mine warfare rotary-
wing aircrews, Lookouts, and
equivalent civilian personnel must
successfully complete the Marine
Species Awareness Training prior to
standing watch or serving as a
Lookout. The Marine Species
Awareness Training provides
information on sighting cues,
visual observation tools and
techniques, and sighting
notification procedures. Navy
biologists developed Marine Species
Awareness Training to improve the
effectiveness of visual
observations for biological
resources, focusing on marine
mammals and sea turtles, and
including floating vegetation,
jellyfish aggregations, and flocks
of seabirds.
[ssquf] U.S. Navy Protective
Measures Assessment Protocol. This
module provides the necessary
instruction for accessing
mitigation requirements during the
event planning phase using the
Protective Measures Assessment
Protocol software tool.
[ssquf] U.S. Navy Sonar Positional
Reporting System and Marine Mammal
Incident Reporting. This module
provides instruction on the
procedures and activity reporting
requirements for the Sonar
Positional Reporting System and
marine mammal incident reporting.
Active Sonar................. Depending on sonar source:
1,000 yd (914.4 m) power
down, 500 yd (457.2 m) power down,
and 200 yd (182.9 m) shut down.
200 yd (182.9 m) shut down.
Air Guns..................... 150 yd (137.2 m).
Pile Driving................. 100 yd (91.4 m).
Weapons Firing Noise......... 30 degrees on either side of the
firing line out to 70 yd (64 m).
Explosive Sonobuoys.......... 600 yd (548.6 m).
Explosive Torpedoes.......... 2,100 yd (1,920.2 m).
Explosive Medium-Caliber and 1,000 yd (914.4 m; large-caliber
Large-Caliber Projectiles. projectiles).
600 yd (548.6 m; medium-caliber
projectiles during surface-to-surface
activities).
200 yd (182.9 m; medium-caliber
projectiles during air-to-surface
activities).
Explosive Missiles and 2,000 yd (1,828.8 m; 21-500 lb.
Rockets. net explosive weight).
900 yd (823 m; 0.6-20 lb. net
explosive weight).
Explosive Bombs.............. 2,500 yd (2,286 m).
Sinking Exercises............ 2.5 nmi (4.6 km).
Explosive Mine Countermeasure 2,100 yd (1,929.2 m; 6-650 lb
and Neutralization net explosive weight).
Activities. 600 yd (548.6 m; 0.1-5 lb net
explosive weight).
Explosive Mine Neutralization 1,000 yd (914.4 m; 21-60 lb net
Activities Involving Navy explosive weight for positive control
Divers. charges and charges using time-delay
fuses).
500 yd (457.2 m; 0.1-20 lb net
explosive weight for positive control
charges).
Underwater Demolition 700 yd (640.1 m).
Multiple Charge--Mat Weave
and Obstacle Loading.
Maritime Security Operations-- 200 yd (182.9 m).
Anti-Swimmer Grenades.
Vessel Movement.............. The mitigation must not be
applied if: (1) The vessel's safety is
threatened, (2) the vessel is restricted
in its ability to maneuver (e.g., during
launching and recovery of aircraft or
landing craft, during towing activities,
when mooring), (3) the vessel is
operated autonomously, or (4) when
impractical based on mission
requirements (e.g., during Amphibious
Assault--Battalion Landing exercises).
Number of Lookouts and
Observation Platform:
[cir] Lookout must be on the vessel
that is underway.\1\
Mitigation Requirements:
[cir] Mitigation zones:--500 yd (457.2
m) around whales.--200 yd (182.9 m)
around other marine mammals (except
bow-riding dolphins and pinnipeds
hauled out on man-made navigational
structures, port structures, and
vessels).
[cir] When a vessel is underway, Navy
personnel must observe the mitigation
zone for marine mammals; if marine
mammals are observed, Navy personnel
must maneuver (which may include
reducing speed as the mission or
circumstances allow) to maintain
distance.
Additional requirements:
[cir] If a marine mammal vessel strike
occurs, Navy personnel must follow
the established incident reporting
procedures. Navy personnel must also
send alerts to Navy vessels of
increased risk of strike following
any reported Navy vessel strike in
the HSTT Study Area.
[[Page 4987]]
[cir] Navy personnel must issue real-
time notifications to Navy vessels of
large whale aggregations (four or
more whales) within 1 nmi (1.9 km) of
a Navy vessel in the area between 32-
33 degrees North and 117.2-119.5
degrees West. These notifications
would be issued to Navy vessels
within this boundary only.
Towed In-Water Devices....... 250 yd (228.6 m; marine
mammals).
Small-, Medium-, and Large- 200 yd (182.9 m).
Caliber Non-Explosive
Practice Munitions.
Non-Explosive Missiles and 900 yd (823 m).
Rockets.
Non-Explosive Bombs and Mine 1,000 yd (914.4 m).
Shapes.
------------------------------------------------------------------------
Note: lb: pounds; nmi: nautical miles; yd: yards; m: meters.
\1\ Underway vessels will maintain at least one Lookout. For ship
classes required to maintain more than one Lookout, the specific
requirement is subject to change over time in accordance with Navy
navigation instruction (e.g., the Surface Ship NAVDORM). Navy
personnel will notify NMFS as soon as practicable should its Lookout
policies change, including in the NAVDORM.
Table 9--Summary of Mitigation Areas for Marine Mammals
------------------------------------------------------------------------
Summary of mitigation area requirements
-------------------------------------------------------------------------
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.\1\
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'' 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'' 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'' 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'' rockets) activities during
training.\1\
Awareness Notification Message Areas (seasonal according to species)
Navy personnel must issue spring awareness notification
messages to alert ships and aircraft to the possible presence of
large whales during a period based on predicted oceanographic
conditions for a given year. The message must emphasize to
personnel on vessels that when a marine mammal is spotted, this may
be an indicator that additional marine mammals are present and
nearby, and increased vigilance and awareness of Navy personnel is
warranted. Navy personnel must also issue awareness notification
messages to alert ships and aircraft to the possible presence of
gray whales (November-March) and fin whales (November-May).
------------------------------------------------------------------------
\1\ 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 mitigation measures from
the 2020 rule--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, with the exception of the changes described herein--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, including consideration of personnel safety,
practicality of implementation, and impact on the effectiveness of the
military readiness activity. After considering all new information,
including consideration of new information regarding vessel strike,
NMFS is requiring two additional mitigation measures and revision of
two existing mitigation measures as described above.
Based on our evaluation of the Navy's current mitigation measures
(which are being implemented under the 2020 HSTT regulations), as well
as modified and new measures described above, NMFS has determined that
the 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 2020 HSTT final rule includes an adaptive management
provision, which NMFS has included in this final rule, which ensures
that mitigation is regularly assessed and
[[Page 4988]]
provides a mechanism to improve the mitigation, based on the factors
above, through modification as appropriate.
Monitoring
Section 101(a)(5)(A) of the MMPA states that in order to authorize
incidental take for an activity, NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) indicate that
requests for incidental take authorizations must include the suggested
means of accomplishing the necessary monitoring and reporting that will
result in increased knowledge of the species and of the level of taking
or impacts on populations of marine mammals that are expected to be
present.
In its 2022 application, the Navy proposed no changes to the
monitoring described in the 2018 HSTT final rule and 2020 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, 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, these modified regulations would
include identical adaptive management provisions and reporting
requirements as the 2018 HSTT regulations. There is no new information
that would indicate that the monitoring measures put in place under the
2018 HSTT final rule would not remain applicable and appropriate for
the 7-year period of this rule. See the Monitoring section of the 2018
HSTT final rule for more details on the monitoring program 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 proposed by the Navy.
Within the SOCAL portion of HSTT, the Navy has been primarily
focused on beaked whale monitoring since 2018 through two separate
ongoing projects that are expected to continue until 2025. These
projects use passive acoustic devices, visual surveys, satellite
tagging, genetic analysis, photoID, and response to anthropogenic
sounds to refine population status of beaked whales in SOCAL. There is
also one concurrent project with fin whales using visual surveys,
satellite tagging, and photoID to gather additional data on fin whale
populations in Southern California. Finally, the Navy continues to fund
marine mammal sighting data collected during California Cooperative
Oceanic Fisheries Investigations (CALCOFI) https://calcofi.org/. These
data are collected on a much more frequent basis than NMFS' West Coast
visual survey which typically occur once every 5 years in the summer.
CALCOFI surveys occur quarterly every year to include winter and spring
seasons NMFS does not survey. Sufficient marine mammal sightings have
been accumulated since the Navy started funding in 2004 for the data to
be incorporated into ongoing NMFS spatial habitat models, including new
models for select species. The Navy also annually funds continued NMFS
spatial habitat model improvements as new data and techniques become
available. These models benefit the Navy and other Federal partners
such as the Bureau of Ocean Energy Management and NMFS, for use in
future regional marine mammal density derivation. For additional
information, please see the Navy's Marine Species Monitoring program
website, https://www.navymarinespeciesmonitoring.us/regions/pacific/current-projects/.
Adaptive Management
The 2020 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 7-year regulations. The 2022 Navy
application proposed no changes to the adaptive management component
included in the 2020 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 and 2022
Navy application proposed no changes to the reporting requirements,
though as noted above, the Navy has since proposed to report changes to
Lookout SOPs to NMFS. Except as discussed below, reporting requirements
would remain identical to those described in the 2018 HSTT final rule
and 2020 HSTT final rule, and there is no new information that would
indicate that the reporting requirements put in place under the 2020
HSTT final rule would not remain applicable and appropriate for the
remaining duration of the 7-year period of this rule. See the Reporting
section of the 2018 HSTT final rule for more details on the reporting
that would be required under this rulemaking. In addition, the 2018
HSTT proposed and final rules unintentionally failed to
[[Page 4989]]
include the requirement for the Navy to submit a final activity ``close
out'' report at the end of the regulatory period. That oversight was
corrected through the 2020 HSTT final rule. Please see the 2020 HSTT
final rule for the detailed requirements for that report.
In addition to the reporting requirements included in the 2020 HSTT
final rule, in 2023, we proposed requiring the Navy to report changes
in its Lookout policies to NMFS as soon as practicable after a change
is made. This final rule requires the Navy to implement that reporting
measure, as well as two new measures that were not included in the 2023
HSTT proposed rule, described below.
The Navy's annual HSTT Training Exercise Report and Testing
Activity Report must include information that tracks the Navy's
implementation of the new SOCAL large whale aggregation real-time
reporting mitigation measure. The report must include the following
information for each instance that an aggregation of large whales is
reported: (1) the date, time and general location (e.g., approximately
10-12 nmi (18.5 to 22.2 km) SE of San Clemente Island) of the whales
when the aggregation was first sighted; (2) the total number of whales
observed within 1 nmi (1.8 km) of a Navy vessel that make up the
aggregation; and (3) the approximate distance (or distances if more
than one group of whales is sighted) of the vessel from the whales in
the aggregation when the whales were first sighted. To the extent
practicable, this information should be provided in the Navy's
unclassified version of these reports.
The Navy's annual HSTT Training Exercise Report and Testing
Activity Report must include a confirmation that foreign military use
of sonar and explosives, when such militaries are participating in a
U.S. Navy-led exercise or event, combined with the U.S. Navy's use of
sonar and explosives, would not cause exceedance of the analyzed levels
(within each NAEMO modeled sonar and explosive bin) used for estimating
predicted impacts, which formed the basis of the acoustic impacts
effects analysis used to estimate take in this final rule. The purpose
of this new reporting measure is for the Navy to confirm annually that
the Navy has accounted for foreign military participation in its annual
report, without requiring the Navy to quantitatively account for
foreign military activity. The Navy informed NMFS that it would be
difficult for the Navy to quantify foreign military activities as a
subset of its total activities because the Navy does not track
activities conducted by foreign vessels in this manner. Furthermore,
the annual reported takes from Navy activities are calculated the same
regardless of whether the activity was conducted by a foreign military
or not.
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). While this final rule consists of a modification of
take by M/SI by vessel strike, NMFS considers the impacts of the entire
specified activity and the total taking in the negligible impact
determination. 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 of the 2020 HSTT final
rule), 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 (including foreign military 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, ambient noise levels, and specific
consideration of take by Level A harassment or M/SI previously
authorized for other NMFS activities).
In the Estimated Take of Marine Mammals sections of this final rule
and the 2020 HSTT final rule (where the activities, species and stocks,
potential effects, and mitigation measures (except as modified above)
are the same as for this rulemaking), we identified the subset of
potential effects that would be expected to rise to the level of takes
both annually and over the 7-year period covered by this rulemaking 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 reasonably expected to
occur and are authorized, in the context of the specific circumstances
surrounding these predicted takes. We also assessed M/SI takes that
could occur, as well as considering the traits and statuses of the
affected species and stocks. Last, we collectively evaluated this
information, as well as other more taxa-specific information and
mitigation measure effectiveness, in group-specific assessments that
support our negligible impact conclusions for each stock or species.
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 2020 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 with the exception of changes to
mitigation measures and the additional reporting requirements described
previously. There is no new information since the publication of the
2020 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 the content of our analyses,
with the exception of that described below. First, naval vessel strikes
have occurred in the HSTT and Atlantic Fleet Training and Testing
(AFTT) Study Areas since
[[Page 4990]]
publication of the 2020 HSTT final rule (one fin or sei whale struck by
the U.S. Navy in the HSTT Study Area (2023), two unidentified large
whales struck by the U.S. Navy in the HSTT Study Area (2021), two fin
whales struck by a foreign navy in the HSTT Study Area (2021), and one
dolphin struck by the U.S. Navy in the AFTT Study Area (2021)). Second,
for gray whales, we have considered the latest effects of the recently
closed UME on the west coast of North America along with the effects of
the Navy's activities in the negligible impact analysis. Third, a new
study suggests that Lookout detection of marine mammals is less certain
than previously assumed (Oedekoven and Thomas, 2022). Fourth, stock
assessments have been updated for multiple stocks in the 2023 Pacific
and Alaska SARs (Carretta et al. 2024; Young et al. 2024).
As described above, since publication of the 2023 HSTT proposed
rule, NMFS has updated our Technical Guidance (NMFS, 2024) containing
updated acoustic criteria for auditory injury (89 FR 36762, October 24,
2024). The Technical Guidance provides updated auditory injury
thresholds, where appropriate, as well as revised weighting functions,
in some cases. For impulsive sources, the Updated Technical Guidance's
auditory injury thresholds generally remain identical or are higher
compared to our 2018 Technical Guidance, meaning that received levels
would need to be higher in order for marine mammals to be expected to
incur auditory injury. The exceptions are for phocid pinnipeds (PW),
where the cumulative SEL threshold, in the Updated Technical Guidance,
is 2 dB lower and for otariid pinnipeds (OW) where the peak sound
pressure level threshold is 2 dB lower and the cumulative SEL threshold
is 18 dB lower. As for the Updated Technical Guidance's weighting
functions, for MF cetaceans (now called HF cetaceans in the updated
document) and HF cetaceans (now called VHF cetaceans in the updated
document), the weighting functions reflect a higher susceptibility to
auditory injury at frequencies below 10 kHz, as compared to the 2018
Technical Guidance. Other minor changes/shifts to weighting functions
(e.g., for LF cetaceans, PW pinnipeds, OW pinnipeds) were also
included. This new information was not available in a timeframe in
which NMFS could have incorporated it into the quantitative analysis
supporting this final rulemaking; however, NMFS did consider the
information qualitatively. While these changes in the auditory injury
thresholds and weighting functions could result in minor increases in
PTS exposure estimates for some species, given the conservative
assumptions built into the take estimate methodology, they would not be
expected to result in meaningful, if any, changes in take estimates and
would not be expected to change any of the findings.
Harassment
As described in the Estimated Take 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 and 42 in the Take Requests section of the 2018 HSTT final
rule, with the exception of humpback whale, which are presented in
tables 2 and 3 herein. 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 2020 HSTT final rule. The
differences in the analysis is our removal of consideration of
California Sea Lion UME and gray whale UME, which have been closed
since publication of the 2020 HSTT final rule and 2023 HSTT proposed
rule, respectively, and incorporation of the revised stock structure
for humpback whales. This does not 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;
also incorporated by reference in the 2020 HSTT final rule).
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 for explosives and revised for vessel strike),
NMFS is authorizing five mortalities of large whales due to vessel
strike over the 7-year period of this rulemaking, two more strikes than
what was authorized in the 2018 HSTT final rule and 2020 HSTT final
rule. Across the 7-year duration of the rule, take of an annual average
of 0.57 gray whales (Eastern North Pacific stock) and fin whales (CA/
OR/WA stock), an annual average of 0.29 humpback whales (Hawaii stock)
and an annual average of 0.14 blue whales (Eastern North Pacific
stock), sei whales (Eastern North Pacific stock) and humpback whales
(Mainland Mexico-CA/OR/WA stock, Mexico DPS), as described in table 7
(i.e., one, two, or four take(s) over 7 years divided by seven to get
the annual number) could occur and are authorized.
Table 10--Summary Information Related to Mortalities Requested for Vessel Strike, 2018-2025
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annual
authorized Residual
Stock take by Total Fisheries interactions Annual rate of M/SI PBR (PBR Recent UME (Y/N);
Species (stock) abundance serious annual M/ (Y/N); annual rate of M/ from vessel collision PBR * minus Stock trend * \4\ number and year (since
(Nbest) * injury or SI * \2\ SI from fisheries * annual M/ 2007)
mortality interactions * SI) \3\
\1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale (CA/OR/WA stock)......... 11,065 0.57 >=43.4 Y; >=0.41............... Y, 43................. 80 36.6 [uarr]................ N
Gray whale (Eastern North Pacific 26,960 0.57 131 Y, 9.3.................. Y, 1.8................ 801 670 \5\ [uarr]............ Y; 690; 2019
stock).
Humpback whale (Mainland Mexico-CA/ 3,477 0.14 22 Y; 11.4................. \6\ Y, 10.15.......... 65 \7\ 43 Unknown............... N
OR/WA stock, Mexico DPS).
Humpback whale (Hawaii stock)...... 11,278 0.29 27.09 Y; 8.39................. \8\ Y, 10.59.......... 127 99.91 Unknown............... Y; 52; 2015
[[Page 4991]]
Blue whale (Eastern North Pacific 1,898 0.14 >=18.6 Y; >=0.61............... Y, 18................. 4.1 -14.5 Unknown............... Y; 3, 2007
Stock).
Sei whale (Eastern North Pacific 864 0.14 >=0 N; 0.................... Y, 0.................. 1.25 1.25 Unknown............... N
Stock).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the 2023 final 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 authorized divided by 7 years (the length
of the rule and LOAs).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued
from either Navy strikes or 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\ 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).
\4\ See relevant SARs for more information regarding stock status and trends.
\5\ The Pacific 2023 SAR indicates that the stock trend is increasing. However, recent (2023-2024) surveys conducted by NMFS' Southwest Fisheries Science Center indicated that the estimated
total abundance of gray whales during the 2023-2024 southbound migration was 19,260, though the authors note that this stock has historically shown a pattern of population growth and decline
that has not impacted the population in the long term (Eguchi et al. 2024).
\6\ Vessel strike of the Mainland Mexico-CA/OR/WA stock was calculated by applying a prorated portion of humpback whale strikes modeled by Rockwood et al. (2017) to this stock.
\7\ For this stock, PBR is currently set at 43 for U.S. waters and 65 for the stock's entire range. As the HSTT Study Area extends beyond U.S. waters and activities have the potential to
impact the entire stock, we present the analysis using the PBR for the stock's entire range.
\8\ Annual vessel strike for this stock reported in the 2023 final SAR was calculated by summing vessel strike data from Hawaii, Alaska, and Washington. All observed strikes in Hawaii were
assigned to the Hawaii stock, and a portion of observed strikes in Alaska were assigned to the Hawaii stock. Vessel strike of the Hawaii stock in Washington waters was calculated by applying
a prorated portion of humpback whale strikes modeled by Rockwood et al. (2017) to the Hawaii stock.
The Navy also requested a small number of takes by M/SI from
explosives in the 2017 Navy application. To calculate the annual
average of mortalities for explosives in table 11, we used the same
method as described for vessel strikes. The annual average is the total
number of takes over 7 years divided by seven. Specifically, NMFS is
authorizing the following M/SI takes from explosives: five California
sea lions and eight short-beaked common dolphins over the 7-year period
(therefore 0.71 mortalities annually for California sea lions and 1.14
mortalities annually for short-beaked common dolphin), as described in
table 11. As this annual number is the same as that analyzed and
authorized in the 2020 HSTT final rule, 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 is identical to that presented in the 2020 HSTT final rule.
Table 11--Summary Information Related to Mortalities from Explosives, 2018-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual
authorized Fisheries SWFSC Residual
Stock take by Total interactions (Y/N); authorized PBR- PBR UME (Y/N);
Species (stock) abundance serious annual M/ annual rate of M/SI PBR * take minus Stock trend number and
(nbest) * injury or SI * \2\ from fisheries (annual) annual M/ * \5\ year
mortality interactions * \3\ SI and
\1\ SWFSC \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion (U.S. 257,606 0.71 >=321 Y; >=197............ 14,011 6 13,684 [uarr] N
stock).
Short-beaked common dolphin (CA/ 1,056,308 1.14 >=30.5 Y; >=30.5........... 8,889 2.8 8,855.7 unknown N
OR/WA stock).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the 2023 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 7 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.
\3\ This column represents annual take authorized through NMFS' SWFSC rulemaking/LOAs (86 FR 3840, January 15, 2021).
\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 (321) and the annual authorized take
from the SWFSC (6) were subtracted from the calculated PBR of 14,011. In the case of short-beaked common dolphin the M/SI column (30.5) and the annual
authorized take from the SWFSC (2.8) were subtracted from the calculated PBR of 8,889.
\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 is authorized,
including the relationship of potential mortality for each species to
the insignificance threshold and residual PBR, except as updated below.
Stocks With M/SI Below the Insignificance Threshold
As noted in the Serious Injury or Mortality subsection of the
Analysis and Negligible Impact Determination section in the 2018 HSTT
final rule and 2020 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
[[Page 4992]]
shown in table 10 and table 11, the following species or stocks have
potential or estimated M/SI from vessel strike and explosive takes,
respectively, and authorized below their insignificance threshold: fin
whale (CA/OR/WA stock), gray whale (Eastern North Pacific stock),
humpback whale (Hawaii stock and Mainland Mexico-CA/OR/WA stock),
California sea lion (U.S stock), and short-beaked common dolphin (CA/
OR/WA stock). While the authorized M/SI of gray whales (Eastern North
Pacific stock) is below the insignificance threshold, because of the
recent UME, we further address how the authorized M/SI and the UME
inform the negligible impact determination immediately below. For the
other five 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 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.
Gray Whales (Eastern North Pacific Stock)
The estimated and authorized lethal take of gray whale (Eastern
North Pacific stock) is well below the insignificance threshold (0.57
as compared to a residual PBR of 670). Nonetheless, we consider here
how the 2019-2023 West Coast Gray Whale UME informs our negligible
impact determination. Strandings of eastern North Pacific gray whales
occurred in the United States, Canada and Mexico along the west coast
of North America. They occurred in wintering, migratory, and feeding
areas. Stranding rates have returned back to normal and expected
levels, and the prevalence of thin live or thin dead whales has also
decreased. The Investigative Team concluded localized ecosystem
changes, including both access to and quality of prey, in the northern
Bering and Chukchi seas caused the UME. These changes contributed to
the poor nutritional condition observed in live whales in the wintering
areas of Mexico and dead stranded gray whales in all three countries.
This malnutrition led to increased mortality during the whales' annual
northward migration (from Mexico to Alaska) and decreased production of
calves. This resulted in an overall decline in population abundance.
Because of the abundance and residual PBR of this stock, as well as the
fact that the UME is closed and increased mortality stopped in late
2023 (with peak strandings ending in December 2020), 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.
Stocks with M/SI Above the Insignificance Threshold
Blue Whale (Eastern North Pacific Stock)
For blue whales (Eastern North Pacific stock), PBR is currently set
at 4.1 and the total annual M/SI is estimated at greater than or equal
to 18.6, yielding a residual PBR of -14.5. This is slightly higher than
the 2020 HSTT final rule (-16.7) and 2023 HSTT proposed rule (-15.4).
NMFS authorizes one M/SI for the Navy over the 7-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 14.5. However,
as described in the 2018 and 2020 rules, given that the negligible
impact determination is based on the assessment of take of the activity
being analyzed, when total annual mortality from human activities is
higher, but the impacts from the specific activity being analyzed are
very small, NMFS may still 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 here, 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 4.1), 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
available data suggests that the current number of vessel 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 7 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 conclusion sections.
As discussed in the 2018 HSTT final rule and the 2020 HSTT final
rule, the 2018 draft SAR and the more recent SARs rely on a new method
to estimate annual deaths by vessel 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 1.54 from fisheries
interactions, results in the current estimate of residual PBR being -
15.4. Although NMFS' Permits and Conservation Division in the Office of
Protected Resources has independently reviewed the vessel strike model
and its results and agrees that it is appropriate for estimating blue
whale mortality by vessel 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 0.6, 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 vessel strike
suddenly increased to 18 recently. In fact, the model is not specific
to a year, but rather offers a generalized prediction of vessel 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
vessel 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.
[[Page 4993]]
NMFS' 2023 SAR states that the current population trend is unknown,
though there may be evidence of a population size increase since the
1990s. 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
vessel 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, vessel 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 vessel 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 Vessel Speed Reduction (VSR) zones and the Channel
Islands NMS region. Redfern et al. (2013) note that the most risky area
for blue whales is the Santa Barbara Channel, where shipping lanes
intersect with common feeding areas. The seasonally established
Southern California VSR 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 May 1 through
December 15, 2023 are recommended to exercise caution and voluntarily
reduce speed to 10 kn (18.5 km per hour) or less for blue, humpback,
and fin whales. (Note this is an expanded timeframe from the Whale
Advisory Zone discussed in the 2020 HSTT final rule, which spanned June
through November, though the effective period could change in future
years.) 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 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 means one mortality in 1 of the 7 years and
zero mortalities in 6 of those 7 years. Therefore, the Navy would not
be contributing to the total human-caused mortality at all in 6 of the
7, or 85.7 percent, of the years covered by this rulemaking. That means
that even if a blue whale were to be struck, in 6 of the 7 years there
could be no effect on annual rates of recruitment or survival from
Navy-caused M/SI. Additionally, 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 rulemaking 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 6 of the 7 years and the fact that the single strike could be 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 7-year period covered by this rulemaking, 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 1 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 the current
population trend of this blue whale stock is unknown but likely
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 vessel strike from other vessel activity in one of
the highest-risk areas for strikes. Based on the presence of the
factors 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.
Sei Whale (Eastern North Pacific Stock)
For sei whales (Eastern North Pacific stock), PBR is currently set
at 1.25. The total annual M/SI is estimated at greater than or equal to
0 in the 2023 SAR, yielding a residual PBR of 1.25. NMFS authorizes one
M/SI for the Navy over the 7-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 1.11.
We acknowledge that the 2023 vessel strike by the U.S. Navy could
have been of a sei whale or a CA/OR/WA fin whale, and this strike is
not quantitatively included in this PBR analysis (nor is it
quantitatively included in the PBR analysis for CA/
[[Page 4994]]
OR/WA fin whale if both of the 2021 U.S. Navy strikes were fin whales)
which relies on the 2023 SARs. However, consideration of the 2023
strike would not change the total M/SI which NMFS compares to PBR, as
the 2023 U.S. Navy strike occurred outside of the time period
considered in the vessel strike analysis in the 2023 SAR. Therefore,
while we acknowledge the 2023 U.S. Navy strike, in the quantitative
analysis it is treated the same as other non-U.S. Navy strikes that
occurred outside of the timeframe reflected in the total M/SI.
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 conclusion sections.
Of note, management measures are 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 VSR zones and the
Channel Islands NMS region. The seasonally established Southern
California VSR 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 May 1 through December
15, 2023 are recommended to exercise caution and voluntarily reduce
speed to 10 kn (18.5 km per hour) or less. While the VSR zone is aimed
at reducing risk of fatal vessel strike of blue, humpback, and fin
whales, this measure is also anticipated to reduce risk to sei whales
(note, this is an expanded timeframe from the Whale Advisory Zone
discussed in the 2020 HSTT final rule, which spanned June through
November, though the effective period could change in future years).
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 scientists. Real time and historical whale observation data
collected from multiple sources can be viewed on the Point Blue Whale
Database.
Further, as stated in the 2023 SAR, the California swordfish drift
gillnet fishery is the most likely U.S. fishery to interact with
Eastern North Pacific sei whales, though there are zero estimated
annual takes from this fishery given no observed entanglements from
1990-2021 across 9,246 observed fishing sets (Carretta et al. (2022)).
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.
In this case, 0.14 M/SI means one authorized mortality in 1 of the
7 years and zero authorized mortalities in 6 of those 7 years.
Therefore, the Navy's authorized take would not be contributing to the
total human-caused mortality at all in 6 of the 7, or 85.7 percent, of
the years covered by this rulemaking. That means that even if a sei
whale were to be struck, in 6 of the 7 years there could be no effect
on annual rates of recruitment or survival from Navy-caused M/SI.
Additionally, 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
rulemaking 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 6 of the 7
years and the fact that the single strike could be 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 7-year period covered by this rulemaking, 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
1 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.'' Even after qualitatively considering the possibility that
the whale struck by Navy in 2023 was a sei whale, and based on the
presence of the factors described above, we do not expect one
authorized lethal take from Navy activities, alone, to adversely affect
Eastern North Pacific sei whales through effects on annual rates of
recruitment or survival. 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
and was updated, as appropriate, in the 2020 HSTT final rule. 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, with the exception of humpback whale, for which the stock
structure has been revised, and NMFS has updated its analyses
accordingly for this final 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). In addition,
apart from the additional authorized incidental take by vessel strike
of two large whales, the resulting changes to the average annual
mortality estimates discussed above, and the revised humpback whale
stock structure, no new information has been received since the
publication of the 2020 HSTT final rule that significantly changes the
analyses of the effects of the Navy's activities on each species and
stock presented in the 2020 HSTT final rule (new information regarding
vessel strike, the potential impact of the gray whale UME (now closed),
and the revised humpback whale stock structure 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
[[Page 4995]]
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
disturbance) 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 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 1 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 3 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. An
individual that incurs a PTS or TTS take may sometimes, for example,
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 also subjected to behavioral disturbance would result in
impacts to reproduction or survival. Alternately, we recognize that if
an individual is subjected to behavioral disturbance repeatedly for a
longer duration and on consecutive 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 disturbance, so that
individuals potentially exposed to both threshold shift and behavioral
disturbance are appropriately considered. We note that the same
reasoning applies with the potential addition of behavioral disturbance
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.
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
vessel strike calculations and humpback stock structure. We then
summarize the information for each species or stock, considering the
analysis from the 2018 HSTT final rule, 2020 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 12 and 13 below for mysticetes, we indicate the total
annual mortality, Level A harassment, and Level B harassment, and a
number indicating the instances of total take as a percentage of
abundance. Tables 12 and 13 have been updated from tables 18 and 19 in
the 2020 HSTT final rule, as appropriate, with the 2023 final 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 rule unless specifically noted.
Table 12--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 Total takes \a\ Abundance Instance of total take
takes represent separate individuals, especially for -------------------------------------------- as percent of
disturbance) abundance
---------------------------------------------------------- -----------------------
Level B harassment Level A Total Total Navy Total take EEZ take
Species Stock --------------------------- harassment takes Takes abundance Within EEZ as as
------------------ (entire (within inside and Navy percentage percentage
TTS (may Mortality study Navy outside of abundance of total of Navy
Behavioral also include Tissue \b\ area) EEZ) EEZ (HRC) (HRC) Navy EEZ
disturbance disturbance) PTS damage abundance abundance
(HRC) (HRC)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale............................. Central North Pacific.... 15 33 0 0 0 48 40 43 33 112 121
[[Page 4996]]
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......................... Hawaii................... 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 Hawaii 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.
\a\ Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
\b\ The annual mortality of 0.29 is the result of no more than two mortalities over the course of 7 years from vessel strikes as described above in the Estimated Take of Marine Mammals
section.
Table 13--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 Total Abundance Instance of total take
all takes represent separate individuals, especially takes ------------------------ as percent of
for disturbance) \a\ abundance
------------------------------------------------------------------- -----------------------
Level B harassment Level A Total take
--------------------------- harassment Navy as Total take
Species Stock ----------------- Total abundance NMFS SARs percentage as
Mortality takes in action abundance of total percentage
Behavioral TTS (may \b\ (entire area Navy of total
disturbance also include PTS Tissue study (SOCAL) abundance SAR
disturbance) damage area) in action abundance
area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................................. Eastern North Pacific.......... 792 1,196 1 0 0.14 1,989 785 1,898 253 105
Bryde's whale............................... Eastern Tropical Pacific....... 14 27 0 0 0 41 1.3 unknown 3,154 unknown
Fin whale................................... CA/OR/WA....................... 835 1,390 1 0 0.57 2,227 363 11,065 613 20
Humpback whale.............................. Central America/Southern Mexico- 282 594 0 0 0 876 \c\ 74 1,496 1,184 59
CA/OR/WA.
Mainland Mexico- CA/OR/WA...... 198 920 1 0 0.14 1,119 \c\ 173 3,477 647 32
Minke whale................................. CA/OR/WA....................... 259 666 1 0 0 926 163 915 568 101
Sei whale................................... Eastern North Pacific.......... 27 52 0 0 0.14 79 3 864 2,633 9
Gray whale.................................. Eastern North Pacific.......... 1,316 3,355 7 0 0.57 4,679 193 26,960 2,424 17
Gray whale.................................. Western North Pacific.......... 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).
\a\ Total takes inside and outside U.S. EEZ represent the sum of annual Level A and Level B harassment from training and testing activities.
\b\ The annual mortality of 0.14 is the result of no more than one mortality over the course of 7 years from vessel strikes as described above in the Estimated Take of Marine Mammals section.
The annual mortality of 0.57 is the result of no more than four mortalities over the course of 7 years from vessel strikes.
\c\ In the 2020 HSTT final rule, NMFS reported a Navy abundance in Action Area (SOCAL) of 247 CA/OR/WA humpback whales. As explained in more detail in the Authorized Take From Vessel Strikes
and Explosives by Serious Injury or Mortality section, NMFS estimates that approximately 30 percent of the humpback whales off the coast of California may be from the Central America DPS
with the remaining 70 percent are expected to be from the Mexico DPS. Therefore, of the estimated 247 humpback whales in SOCAL, NMFS anticipates that 74 would be of the Central America/
Southern Mexico-CA/OR/WA stock (Central America DPS), and 173 would be of the Mainland Mexico-CA/OR/WA stock (Mexico DPS).
[[Page 4997]]
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 species and stocks.
Blue Whale (Eastern North Pacific Stock)
Blue whales are listed as endangered under the ESA, and the current
population trend for the Eastern North Pacific stock is unknown. We
further note that this stock was originally listed under the ESA as a
result of the impacts from commercial whaling, which is no longer
affecting the species. NMFS authorizes one mortality over the 7 years
covered by this rulemaking 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 14.5.
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 7-year Navy rule is not expected to, alone, lead
to adverse impacts on the stock through effects on annual rates of
recruitment or survival.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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 105 percent, respectively
(table 13). Given the range of blue whales, this information suggests
that only some 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 SOCAL. Regarding the severity of those individual Level B
harassment takes by behavioral disturbance, 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 identified by
Calambokidis et al. (2015). These areas overlap a portion of the blue
whale feeding BIAs (parent and child; see Harrison et al. 2023)
identified in Calambokidis et al. (2024) and 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 that 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 disturbance.
Altogether, only a small 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 5 or 6 days but minimized in
BIAs. This low magnitude and severity of harassment effects is not
expected to result in impacts on the reproduction or survival of any
individuals and, therefore, when combined with the authorized mortality
(which our earlier analysis indicated will not, alone, have more than a
negligible impact on this stock of blue whales), the total take is not
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 disturbance), 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
13). 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 was estimated at 160 in
1990. Given this information and 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 impacted, and
few, if any, are likely taken over more than 1 day. Regarding the
severity of those individual Level B harassment takes by behavioral
disturbance, 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, only a small portion of the stock is anticipated to be
impacted 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 1 day in the year. 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. NMFS authorizes
four mortalities over the 7 years covered by this rulemaking, or 0.57
mortality annually. The addition of this 0.57 annual mortality still
leaves the total human-caused mortality well under residual PBR.
[[Page 4998]]
We acknowledge the 2021 vessel strike of two fin whales by the
Royal Australian Navy, and that the 2021 and 2023 vessel strikes by the
U.S. Navy could have been CA/OR/WA fin whales. While the Royal
Australian Navy strikes are not quantitatively included in the
estimated take by vessel strike, even if they were, and if we presumed
that the 2021 and 2023 U.S. Navy strikes were all fin whales, M/SI of
this stock would still fall well below PBR (80).
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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 20 percent, respectively
(table 13). 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. Regarding the severity of those individual
Level B harassment takes by behavioral disturbance, 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, Calambokidis et al. (2024)
identifies feeding BIAs for fin whales in SOCAL. The Navy implements
time/area mitigation in SOCAL in blue whale BIAs identified by
Calambokidis et al. (2015), and fin whales are known to sometimes feed
in some of the same areas. Additionally, these mitigation areas
designed for blue whales overlap a portion of the fin whale feeding
BIAs (parent and child; see Harrison et al. 2023) identified by
Calambokidis et al. (2024) which means fin whales 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 that 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.
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 1 and 12 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 individual reproduction or survival, and therefore, when
combined with the authorized mortality (which our earlier analysis
indicated will not, alone, have more than a negligible impact on this
stock of fin whales), the total take is not 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 (Central America/Southern Mexico-CA/OR/WA Stock)
The SAR identifies this stock as increasing, though the growth rate
is uncertain. Animals in this stock are of the Central America DPS
which is designated as endangered under the ESA.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), the number of estimated total instances of
take compared to the abundance (measured against both the Navy-
estimated abundance and the SAR) is 1,184 and 59 percent, respectively
(table 13). 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
23 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 disturbance, 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 that the associated lost
opportunities and capabilities are not at a level that will impact
reproduction or survival. Altogether, 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 23 days, but with no reason to think that more than a few 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 and, therefore, the total
take is not 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 America/Southern Mexico-CA/OR/WA stock of
humpback whales.
Humpback Whale (Mainland Mexico-CA/OR/WA Stock)
The status of this stock is unknown. Animals in this stock are of
the Mexico DPS which is designated as threatened under the ESA. NMFS
authorizes one mortality over the 7 years covered by this rulemaking,
or 0.14 mortality annually. The addition of this 0.14 annual mortality
still leaves the total human-caused mortality well under residual PBR.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), the number of estimated total instances of
take compared to the abundance (measured against both the Navy-
estimated abundance and the SAR) is 647 and 32 percent, respectively
(table 13). 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
13 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 disturbance, the
duration of any exposure is expected to be between
[[Page 4999]]
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 that 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.
Altogether, 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 13 days, but with no
reason to think that more than a few 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
and, therefore, when combined with the authorized mortality (which our
earlier analysis indicated will not, alone, have more than a negligible
impact on this stock of humpback whales), the total take is not
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 tissue damage from explosive
exposure is anticipated or authorized for this species. Regarding the
magnitude of Level B harassment takes (TTS and behavioral disturbance),
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 101 percent, respectively (table 13). 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.
Regarding the severity of those individual Level B harassment takes by
behavioral disturbance, 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 that 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.
Altogether, 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 1
and 11 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 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 CA/OR/WA stock of minke whales.
Sei Whale (Eastern North Pacific Stock)
The status of this stock is unknown, and sei whales are listed
under the ESA. NMFS authorizes one mortality over the 7 years covered
by this rulemaking or 0.14 mortality annually. The addition of this
0.14 annual mortality still leaves the total human-caused mortality
under residual PBR. After additionally considering several qualitative
factors described above, including that the 2023 strike could have been
a sei whale (or fin whale), we do not expect one authorized lethal take
from Navy activities, alone, to adversely affect Eastern North Pacific
sei whales through effects on annual rates of recruitment or survival.
No Level A harassment is anticipated or authorized.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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 9 percent, respectively
(table 13), 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 disturbance, 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 that
[[Page 5000]]
the associated lost opportunities and capabilities are not at a level
that will impact reproduction or survival.
Altogether, 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. This low
magnitude and severity of harassment effects is not expected to result
in impacts on individual reproduction or survival, and therefore, when
combined with the authorized mortality (which our earlier analysis
indicated will not, alone, have more than a negligible impact on this
stock of sei whales), the total take is not 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 sei whales.
Gray Whale (Eastern North Pacific Stock)
The Eastern North Pacific stock of gray whale is not ESA-listed and
the SAR indicates that the stock is increasing. However, recent (2021-
2022) surveys conducted by NMFS' Southwest Fisheries Science Center
estimated that the population has declined to 16,650 whales, though the
authors note that this stock has historically shown a pattern of
population growth and decline that has not impacted the population in
the long term (Eguchi et al. 2022). NMFS is authorizing four
mortalities over the 7 years covered by this rulemaking, or 0.57
mortality annually. The addition of this 0.57 annual mortality still
leaves the total human-caused mortality well under the insignificance
threshold of residual PBR (670). We acknowledge that the 2021 vessel
strikes by the U.S. Navy could have been Eastern North Pacific gray
whales. If we presumed that the 2021 U.S. Navy strikes were both gray
whales, M/SI of this stock would still fall well below PBR (801).
We also consider here how the 2019-2023 West Coast Gray Whale UME
informs our negligible impact determination. Because of the abundance
and residual PBR of this stock, as well as the fact that the UME is
closed and increased mortality stopped in late 2023 (with peak
strandings ending in December 2020), 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.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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
(table 13). (Note that in comparison to the recent Eguchi et al. 2024
abundance estimate, the number of estimated total instances of take
compared to the abundance would be 24 percent.) 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 4,679 total takes, we believe that it is
more likely that a larger number of individuals will be taken one to a
few times, 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 disturbance, 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 couple of 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 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 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
seven estimated Level A harassment takes by PTS for gray whales are
unlikely to impact behaviors, opportunities, or detection capabilities
to a degree that would interfere with reproductive success or survival
of any individuals.
Altogether, we have considered the impacts of the recent (now
closed) gray whale UME, the Eastern North Pacific stock of gray whales
is not endangered or threatened under the ESA. The SAR indicates that
the stock is increasing. However, recent (2023-2024) surveys conducted
by NMFS' Southwest Fisheries Science Center estimated that the
population has declined since the most recent Eastern North Pacific
gray whale SAR was published (Eguchi et al. 2024). 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 5 to 10 days. This low magnitude and severity of
harassment effects is not expected to result in impacts to reproduction
or survival for any individuals and, therefore, when combined with the
authorized mortality of four whales over the 7 year period (which our
earlier analysis indicated will not, alone, have more than a negligible
impact on this stock of gray whales), the total take is not 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 2023 final SAR but is listed as endangered under the
ESA. No mortality or Level A harassment is anticipated or authorized.
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 (table 13). 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
short duration. 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.
[[Page 5001]]
Humpback Whale (Hawaii Stock)
The status of this stock is unknown. Animals in this stock are of
the Hawaii DPS which is not listed under the ESA. No Level A harassment
by tissue damage is authorized. NMFS authorizes two mortalities over
the 7 years covered by this rulemaking, 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.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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 (table 12).
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 1 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 disturbance,
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 areas (BIA, parent
and child; see Harrison et al. 2023) identified in Kratofil et al.
(2023) 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 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
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 3 estimated Level A harassment takes by PTS for
humpback whales are unlikely to impact behaviors, opportunities, or
detection capabilities to a degree that would interfere with
reproductive success or survival of any individuals.
Altogether, this stock's status is unknown 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 1 to several days per year, with
little likelihood of take across sequential days. This low magnitude
and severity of harassment effects is not expected to result in impacts
on individual reproduction or survival, and therefore, when combined
with the authorized mortality (which our earlier analysis indicated
will not, alone, have more than a negligible impact on this stock of
humpback whales), the total take is not expected to adversely affect
this stock through 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 Hawaii 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 are not identified in the SARs. Blue
whale (Central North Pacific stock) and the Hawaii stocks of fin whale
and sei whale are listed as endangered under the ESA; the Hawaii stocks
of minke whales and Bryde's whales 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 disturbance), 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 (table
12). This information suggests that some portion of the stocks (but not
all) are likely impacted, over 1 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 disturbance,
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 that
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 any
individuals.
Altogether, 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 1 and several days, with little chance that any are taken
across sequential days. This low 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 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 Whale, Dwarf Sperm Whale, and Pygmy Sperm Whale
In table 14 and table 15 below for sperm whale, dwarf sperm whale,
and pygmy sperm whale, we indicate the total annual mortality (0 for
all stocks; the 2020 HSTT final rule included 0.14 annual takes by
mortality of the Hawaii stock of sperm whale), Level A and Level B
harassment, and a number indicating the instances of total take as a
percentage of abundance. Table 14 and table 15 are unchanged from
tables 20 and 21 in the 2020 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 rule unless
specifically noted.
[[Page 5002]]
Table 14--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 Total takes Abundance Instances of total
takes represent separate individuals, especially for -------------------------------------------- take as percent of
disturbance) abundance
----------------------------------------------------------- -----------------------
Level B harassment Level A Total Total Navy Total take
Species Stock --------------------------- harassment takes Takes abundance Within EEZ as EEZ take
------------------- (entire (within inside and Navy percentage as
TTS (may Mortality study NAVY outside abundance of total percentage
Behavioral also include Tissue area) EEZ) EEZ (HRC) (HRC) Navy of EEZ
disturbance disturbance) PTS damage abundance abundance
(HRC) (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 2,496 1,317 1,656 1,317 151 147
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the Hawaii 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 15--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 Total Abundance Instances of total
takes represent separate individuals, especially for takes ------------------------ take as percent of
disturbance) ---------- abundance
----------------------------------------------------------- -----------------------
Level B harassment Level A Total take
--------------------------- harassment Total Navy as Total take
Species Stock ------------------- takes abundance NMFS SARS percentage as
(entire in action abundance of total percentage
Behavioral TTS (may Mortality study area Navy of total
disturbance also include PTS Tissue area) abundance SAR
disturbance) damage in action abundance
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 2,606 913 96
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 species and 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 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 spp. off the U.S. West Coast were not identified to species.
All at-sea sightings of Kogia spp. have been identified as pygmy sperm
whales or Kogia spp. 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 spp. 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
abundance estimate, it is not possible to predict the take of dwarf
sperm whales and take estimates are identified as Kogia spp. (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 density and
abundance in the U.S. EEZ is thought to be low.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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 96 for sperm
whales and 1,211 and 223 for Kogia spp., with a large proportion of
these anticipated to be pygmy sperm whales due to the low abundance and
density of dwarf sperm whales in the HSTT Study Area (table 15). Given
the
[[Page 5003]]
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 spp. and 18 days a year for sperm
whales) of some small subset of individuals that spend extended time
within the SOCAL Range. Additionally, while interrupted feeding bouts
are a known response and concern for odontocetes, we also know that
there are often viable alternative habitat options in the relative
vicinity. Regarding the severity of those individual Level B harassment
takes by behavioral disturbance, 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). 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 sperm whale 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 are unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of any
individuals. Thus, the 38 total Level A harassment takes by PTS for
these 2 stocks are unlikely to affect rates of recruitment and survival
for the stocks.
Altogether, 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. 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 2020
HSTT final rule, however, foregone reproduction (especially for 1 year,
which is the maximum predicted because the small number anticipated in
any 1 year makes the probability that any individual would be impacted
in this way twice in 7 years very low) has far less of an impact on
population rates than mortality, and a small number of instances of
foregone reproduction are not expected to adversely affect these stocks
through effects on annual rates of recruitment or survival. We also
note that residual PBR is 19 for pygmy sperm whales and 3.5 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 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 mortality or Level A harassment
by PTS or tissue damage is expected or authorized.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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 (table 14).
This information and the sperm whale stock range suggest that likely
only a smaller portion of the stock will be impacted, over 1 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 disturbance, 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 that the associated lost opportunities and
capabilities are not at a level that will impact reproduction or
survival.
Altogether, 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 1 and
several days, with little chance that any are taken across sequential
days. 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 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 Level A harassment by tissue damage is
anticipated or authorized. Regarding the magnitude of Level B
harassment takes (TTS and behavioral disturbance), 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 (table 14). 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 5 days per year, with little likelihood of take
across sequential days. Regarding the severity of those individual
Level B harassment takes by behavioral disturbance, 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
[[Page 5004]]
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
and resident population BIA for dwarf sperm whales (Kratofil et
al.2023), 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 sperm whale 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
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 dwarf and
pygmy sperm whales 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 instances
of Level B harassment by behavioral disturbance. Thus the 29 and 64
total Level A harassment takes by PTS for dwarf and pygmy sperm whales,
respectively, are unlikely to affect rates of recruitment and survival
for these stocks.
Altogether, 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 1 and 5 days, with
little chance that any are taken across sequential days. This low
magnitude and severity of Level A and Level B harassment effects is not
expected to result in impacts on individual reproduction or survival,
much less 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 expected and authorized take
will have a negligible impact on the Hawaii stocks of pygmy and dwarf
sperm whales.
Beaked Whales
In table 16 and table 17 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.
Table 16 and table 17 are unchanged from table 22 and table 23 in the
2020 HSTT final rule, with the exception of a correction to a rounding
error as noted. 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 rule unless specifically noted.
Table 16--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 Total takes Abundance Instances of total
takes represent separate individuals, especially for -------------------------------------------- take as percent of
disturbance) abundance
----------------------------------------------------------- -----------------------
Level B harassment Level A harassment Total Total Navy Total take
Species Stock ------------------------------------------------ takes Takes abundance Within EEZ as EEZ take
(entire (within inside and Navy percentage as
TTS (may Mortality study Navy outside abundance of total percentage
Behavioral also include PTS Tissue area) EEZ) EEZ (HRC) (HRC) Navy of EEZ
disturbance disturbance) damage abundance abundance
(HRC) (HRC)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale............. Hawaii................... 5,369 16 0 0 0 5,385 4,140 989 768 \a\ 544 539
Goose-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 Hawaii 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.
\a\ The 2020 final rule unintentionally presented this percentage as 545. The correct value is provided here. This error does not affect the conclusions in the 2020 HSTT final rule.
Table 17--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 Total Abundance Instances of total
takes represent separate individuals, especially for takes ------------------------ take as percent of
disturbance) ---------- abundance
----------------------------------------------------------- -----------------------
Level B harassment Level A Total take
--------------------------- harassment Total Navy as Total take
Species Stock ------------------- takes abundance NMFS SARs percentage as
(entire in action abundance of total percentage
Behavioral TTS (may Mortality study area Navy of total
disturbance also include PTS Tissue area) abundance SAR
disturbance) damage in action abundance
area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Baird's beaked whale....................... CA/OR/WA...................... 2,030 14 0 0 0 2,044 74 1,363 2,762 150
Goose-beaked whale......................... CA/OR/WA...................... 11,373 127 1 0 0 11,501 520 5,454 2,212 211
[[Page 5005]]
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 species or stocks addressed in this
section.
Blainville's, Goose-Beaked, 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 disturbance),
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 521-544 and 514-539 percent (table 16). 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, over 1 to perhaps
11 days per year, with little likelihood of much take across sequential
days. Regarding the severity of those individual Level B harassment
takes by behavioral disturbance, 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 2
(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 overlaps a large portion of the BIAs for goose-beaked and
Blainville's beaked whales identified in Kratofil et al. 2023),
explosives are not used and the use of MF1 and MF4 active sonar is
limited, greatly reducing the severity of impacts within 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 that the associated lost
opportunities and capabilities are not at a level that will impact
reproduction or survival.
Altogether, 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 1 and 11 days,
with little chance that individuals are taken across more than a few
sequential days. 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 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 Beaked Whale, Goose-Beaked Whale and Mesoplodon Species (All
CA/OR/WA Stocks)
The species are not listed under the ESA and their populations have
been identified as ``increasing,'' ``decreasing,'' and ``increasing,''
respectively. No mortality is expected or authorized for any of these
three stocks and only two takes by Level A harassment (PTS) are
authorized.
No methods are available to distinguish between the six species of
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.
2018a). 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 spp, 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 identified as Mesoplodon spp.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), 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 150, 211,
and 203 percent (measured against the SAR) for Baird's beaked whales,
goose-beaked beaked whales, and Mesoplodon spp., respectively (table
17). 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 goose-beaked)--
[[Page 5006]]
potentially over a fair number of sequential days, especially where
individuals spend extensive time in the SOCAL Range. Note that we
predict lower 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. While interrupted feeding bouts are a known response and
concern for odontocetes, we also know that there are often viable
alternative habitat options in the relative vicinity. Regarding the
severity of those individual Level B harassment takes by behavioral
disturbance, 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 2
(i.e., of a moderate level). In addition, as noted, some of these takes
could occur on a fair number of sequential days for these stocks.
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 similar reasons (as described in the 2020 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 any individuals.
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. Though the majority of impacts are expected to be of a
moderate severity, 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 1 year,
which is the maximum predicted because the small number anticipated in
any 1 year makes the probability that any individual would be impacted
in this way twice in 7 years very low) has far less of an impact on
population rates than mortality and a small number of instances of
foregone reproduction are 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 (8.7, 41.9,
and 19.9, respectively).
Further, Navy activities have been conducted in SOCAL for many
years at similar levels and the SAR considers Mesoplodon spp. and
Baird's beaked whales as increasing. While NMFS' SAR indicates that
goose-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 goose-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 goose-beaked
whale individuals with 40 percent having been seen in one or more prior
years, with re-sightings up to 7 years apart (Falcone and Schorr,
2014). The documented residency by many goose-beaked whales over
multiple years suggests that a stable population may exist in that
small portion of the stock's overall range (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
goose-beaked whales, as well as all six species included within the
Mesoplodon spp.
Small Whales and Dolphins
In tables 18 and 19 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 18 and 19 are updated from tables 24 and 25 in the
2020 HSTT final rule as appropriate with the 2023 final SARs. 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 rule unless specifically noted.
Table 18--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 Total takes Abundance Instance of total take
takes represent separate individuals, especially for -------------------------------------------- as percent of
disturbance) abundance
---------------------------------------------------------- -----------------------
Level B harassment Level A Total Total Navy Total take EEZ take
Species Stock --------------------------- harassment takes Takes abundance Within EEZ as as
------------------ (entire (within inside and Navy percentage percentage
TTS (may Mortality study Navy outside of abundance of total of Navy
Behavioral also include Tissue area) EEZ) EEZ (HRC) (HRC) Navy EEZ
disturbance disturbance) PTS damage abundance abundance
(HRC) (HRC)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin..................... Hawaii Pelagic........... 3,196 132 0 0 0 3,328 2,481 1,528 1,442 218 172
[[Page 5007]]
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 \a\ 1,166 \a\ 1,127
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 572 17 0 0 0 589 476 147 147 \b\ 401 324
Insular.
False killer whale..................... Northwestern Hawaiian 365 16 0 0 0 381 280 215 169 177 166
Islands.
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
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 Hawaii 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 5008]]
\a\ The 2020 final rule unintentionally presented these percentages as 1,169 and 1,130. The correct values are provided here. These errors do not affect the conclusions in the 2020 HSTT final
rule.
\b\ The 2020 final rule unintentionally presented this percentage as 400. The correct value is provided here. This rounding error does not affect the conclusions in the 2020 HSTT final rule.
Table 19--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 Total takes Abundance Instance of total take
all takes represent separate individuals, especially ------------------------------------- as percent of
for disturbance) abundance
--------------------------------------------------------- -----------------------
Level B harassment Level A Total take
--------------------------- harassment Navy as Total take
Species Stock ----------------- Total takes abundance NMFS SARs percentage as
(entire in action abundance of total percentage
Behavioral TTS (may Mortality study area) area Navy of total
disturbance also include PTS Tissue (SOCAL) abundance SAR
disturbance) damage in action abundance
area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 3,477 932 1,594
Killer whale............................... ENP Offshore................. 96 11 0 0 0 107 4 300 2,675 36
Killer whale............................... ENP Transient/West Coast 179 20 0 0 0 199 30 349 663 57
Transient.
Long-beaked common dolphin................. California................... 233,485 13,787 18 2 0 247,292 10,258 83,379 2,411 297
Northern right whale dolphin............... CA/OR/WA..................... 90,052 8,047 10 1 0 98,110 7,705 29,285 1,273 335
Pacific white-sided dolphin................ CA/OR/WA..................... 69,245 6,093 5 0 0 75,343 6,626 34,999 1,137 215
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 1,056,308 571 141
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 29,988 440 584
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 7 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
species or stocks through effects on annual rates of recruitment or
survival for any of the affected species or 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 stocks are listed under the ESA and their stock
statuses are considered ``increasing,'' ``unknown,'' and
``increasing,'' respectively. Eight mortalities or serious injuries of
short-beaked common dolphins are authorized over the 7-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 3 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 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 1
year. As noted previously, foregone reproduction has less of an impact
on population rates than death (especially for only 1 year in 7, which
is the maximum predicted because the small number anticipated in any 1
year makes the probability that any individual would be impacted in
this way twice in 7 years very low), and 1 to 10 instances would not be
expected to impact annual rates of recruitment or survival for these
stocks.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disturbance), the number of estimated total instances of
take compared to the abundance (measured against both the Navy-
estimated abundance and the SAR) is 2,411, 1,273, and 571 percent
(respective to the stocks listed in the heading) and 297, 335, and 141
percent (respective to the stocks listed in the heading) (table 19).
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
[[Page 5009]]
taken. All three stocks likely will experience some repeat Level B
harassment exposure (perhaps up to 48, 25, or 11 days within a year,
respective to the stocks listed in the heading) of some subset of
individuals that spend extended time within the SOCAL range complex.
While interrupted feeding bouts are a known response and concern for
odontocetes, we also know that there are often viable alternative
habitat options in the relative vicinity. Regarding the severity of
those individual Level B harassment takes by behavioral disturbance,
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). 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 high 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 are 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 2020
HSTT final rule, it is unlikely to impact behaviors, opportunities, or
detection capabilities to a degree that would interfere with
reproductive success or survival of any individuals.
Altogether and as described in more detail above, 1.14 annual
lethal takes of short-beaked common dolphins are authorized, all three
stocks may experience a very small number of takes by tissue damage or
PTS (relative to the stock abundance and PBR), and 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 1 year out of 7, which is the maximum
predicted because the small number anticipated in any 1 year makes the
probability that any individual would be impacted in this way twice in
7 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 tissue damage takes) are not expected to adversely affect the
stocks through effects on annual rates of recruitment or survival,
especially given the very high residual PBRs of these stocks (638.3,
156.4, and 8,858.5, 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 stocks are 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 M/SI 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 disturbance), 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
1,993 percent, respectively (table 19). 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 with 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 would suggest. While interrupted feeding bouts are a known
response and concern for odontocetes, we also know that there are often
viable alternative habitat options in the relative vicinity. Regarding
the severity of those individual Level B harassment takes by behavioral
disturbance, 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).
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 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
[[Page 5010]]
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of any
individuals.
Altogether, 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 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 1 year in 7, which is the maximum predicted because the small
number anticipated in any 1 year makes the probability that any
individual would be impacted in this way twice in 7 years very low) has
far less of an impact on population rates than mortality and a small
number of instances of foregone reproduction are 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 (18.9, 272, and 42.3, 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 stock of false
killer whales (listed as endangered under the ESA, with the MMPA stock
identified as ``decreasing''), none of these stocks are listed under
the ESA and their stock statuses are considered ``unknown.'' No M/SI 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 disturbance), 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 1,166 percent and 14 to
2,130 percent, respectively (table 18). 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 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 the within-U.S. EEZ percentage suggests (42). While interrupted
feeding bouts are a known response and concern for odontocetes, we also
know that there are often viable alternative habitat options in the
relative vicinity. Regarding the severity of those individual Level B
harassment takes by behavioral disturbance, 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). 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.
Within the Hawaii Island mitigation area (which overlaps a large
portion of the BIAs for common bottlenose dolphin, dwarf sperm whale,
false killer whale, melon-headed whale, pantropical spotted dolphin,
pygmy killer whale, rough-toothed dolphin, short-finned pilot whale,
and spinner dolphin identified in Kratofil et al. 2023), the Navy will
not use explosives and will limit the use of MF1 and MF4 active sonar.
The 4-Islands mitigation area overlaps a portion of the BIAs identified
in Kratofil et al. (2023) for common bottlenose dolphin, false killer
whale, pantropical spotted dolphin, rough-toothed dolphin, and spinner
dolphin. Within the 4-Islands mitigation area (November 15-April 15),
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. The mitigation required in these two areas will reduce
the severity of impacts within these small and 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 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 may include some degree of energetic costs for
compensating or may mean some small loss of opportunities or detection
capabilities, they 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 accrued to
individuals that are also taken by behavioral harassment at the same
time.
Altogether, 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
[[Page 5011]]
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 1 year, which is the maximum predicted
because the small number anticipated in any 1 year makes the
probability that any individual would be impacted in this way twice in
7 years very low) has far less of an impact on population rates than
mortality and a small number of instances of foregone reproduction are
not expected to adversely affect these two stocks 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,
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 20 below for porpoises, we indicate the total annual
mortality, Level A harassment and Level B harassment, and a number
indicating the instances of total take as a percentage of abundance.
Table 20 is updated from table 26 in the 2020 HSTT final rule with the
2023 final SARs. 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 HTT final rule, all of which remains
applicable to this rule unless specifically noted.
Table 20--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 Total Abundance Instances of total
takes represent separate individuals, especially for takes ------------------------ take as percent of
disturbance) ---------- abundance
----------------------------------------------------------- -----------------------
Level B harassment Level A Total take
--------------------------- harassment Total Navy as Total take
Species Stock ------------------- takes abundance NMFS SARs percentage as
(entire in Action abundance of total percentage
Behavioral TTS (may Mortality study Area Navy of total
disturbance also include PTS Tissue area) abundance SAR
disturbance) damage in Action abundance
Area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Dall's porpoise............................ CA/OR/WA...................... 14,482 29,891 209 0 0 44,582 2,054 16,498 2,170 270
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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
Dall's porpoises through effects on annual rates of recruitment or
survival.
Dall's porpoise is not listed under the ESA and the stock status is
considered ``unknown.'' No M/SI 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 will 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 especially sensitive species (as compared to harbor
porpoises, which have a lower threshold for Level B harassment by
behavioral disturbance 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 disturbance), 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 270 percent, respectively
(table 20). 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. While
interrupted feeding bouts are a known response and concern for
odontocetes, we also know that there are often viable alternative
habitat options in the relative vicinity. Regarding the severity of
those individual Level B harassment takes by behavioral disturbance,
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). 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
[[Page 5012]]
mean some small loss of opportunities or detection capabilities, the
estimated 209 takes by Level A harassment by PTS for Dall's porpoise
are unlikely to impact behaviors, opportunities, or detection
capabilities to a degree that would interfere with reproductive success
or survival for most individuals. Because of the high number of PTS
takes, 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 would not adversely
impact rates of recruitment or survival.
Altogether, 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 1 year in 7, which
is the maximum predicted because the small number anticipated in any 1
year makes the probability that any individual would be impacted in
this way twice in 7 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
disturbance are 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 10,286 just within the U.S. EEZ) and residual PBR of
Dall's porpoise (98.3). 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 Dall's porpoise.
Pinnipeds
In tables 21 and 22 below for pinnipeds, we indicate the total
annual mortality, Level A harassment and Level B harassment, and a
number indicating the instances of total take as a percentage of
abundance. Tables 21 and 22 have been updated from tables 27 and 28 in
the 2020 HSTT final rule with the 2023 final SARs. 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 rule unless specifically noted.
Table 21--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 Instance of total take
separate individuals, especially for disturbance) ----------------------------------------------- as percent of
----------------------------------------------------------------------------- abundance
Level B harassment Level A -----------------------
---------------------------------------------- harassment Total Navy Total take EEZ take
Species ------------------- Total takes Takes abundance Within EEZ as as
(entire (within inside and Navy percentage percentage
TTS (may Mortality study area) Navy outside of abundance of total of Navy
Behavioral disturbance also include PTS Tissue EEZ) EEZ (HRC) (HRC) Navy EEZ
disturbance) damage abundance abundance
(HRC) (HRC)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hawaiian monk seal.......................... 143........................... 62 1 0 0 206 195 169 169 122 115
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For the Hawaii 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 22--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 Total Abundance Instance of total take
takes represent separate individuals, especially for Takes ------------------------ as percent of
disturbance) ---------- abundance
----------------------------------------------------------- -----------------------
Level B harassment Level A Total take
--------------------------- harassment Total Navy as Total take
Species Stock ------------------- takes abundance NMFS SARs percentage as
(entire in action abundance of total percentage
Behavioral TTS (may Mortality study area Navy of total
disturbance also include PTS Tissue area) (SOCAL) abundance SAR
disturbance) damage in action abundance
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 34,187 124 4
[[Page 5013]]
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 4,108 187,386 1,484 33
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 7 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 would not adversely affect any
pinnipeds through effects on annual rates of recruitment or survival
for any of the affected species or stocks addressed in this section.
Five M/SI takes of California sea lions are authorized and when
this mortality is combined with the other human-caused mortality from
other sources, it still falls well below the insignificance threshold
for residual PBR (13,684). A small number of Level A harassment takes
by tissue damage are also authorized (nine and two for California sea
lions and northern elephant seals, respectively), which, as discussed
in the 2020 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 1 year. As noted previously, foregone reproduction has
less of an impact on population rates than death (especially for only
one within 7 years, which is the maximum predicted because the small
number anticipated in any 1 year makes the probability that any
individual would be impacted in this way twice in 7 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 disturbance), 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
1 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) is 1,484 to
2,896 percent and 18 to 46 percent, respectively (table 22). Given the
ranges of these stocks (i.e., very large ranges, but with individuals
often staying in the vicinity of haulouts), 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 disturbance, 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 this stock.
As described in the 2018 HSTT final rule and 2020 HSTT final rule,
the Hawaii and 4-Islands mitigation areas protect (by not using
explosives and limiting MFAS within) a significant portion of the
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. Because of the high number of PTS takes for California sea
lions and northern elephant seals (87 and 97, respectively), 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, even if this occurred, it would not adversely impact rates of
recruitment or
[[Page 5014]]
survival (residual PBR of 13,684 and 5,108, respectively).
Altogether, an 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 1 year
within 7, which is the maximum predicted because the small number
anticipated in any 1 year makes the probability that any individual
would be impacted in this way twice in 7 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) are 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 1 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 and residual PBRs of 14,050/
30,968 and 449/1,598.
For California sea lions, given the very high abundance and
residual PBR (257,606 and 13,684, 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, 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 (187,386 and 5,108, 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 2 individuals in a year taken by tissue damage
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
species and 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 have
evaluated how these impacts as well as additional take of two large
whales by serious injury or mortality by vessel strike, and the
required 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 and 2020 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 2020 HSTT final rule were
based have changed, with the exception of estimated take by vessel
strike. Therefore, even though this final rule includes two additional
takes by vessel strike, little has changed that would change our 2018
HSTT final rule and subsequent 2020 HSTT final rule analyses, and it is
appropriate to rely on those analyses, as well as the new information
and analysis discussed above, for this final rule.
Based on the applicable information and analysis from the 2018 HSTT
final rule and 2020 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 (Western North Pacific DPS), humpback whale (Mexico and Central
America DPSs), sei whale, sperm whale, false killer whale (Main
Hawaiian Islands Insular DPS), Hawaiian monk seal, and
[[Page 5015]]
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. NMFS reviewed these specified conditions for the 2020
HSTT rulemaking and determined that reinitiation of consultation was
not warranted. The incidental take statement that accompanied the 2018
Biological Opinion was amended to cover the 7-year period of the 2020
HSTT rule. The 2018 Biological Opinion for this action is available at
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
The 2018 Biological Opinion reinitiation clause (2), states that
formal consultation should be reinitiated if ``new information reveals
effects of the agency action that may affect ESA-listed species or
critical habitat in a manner or to an extent not previously
considered.'' Given the new information regarding the recent occurrence
of large whale strikes by naval vessels in the southern California
portion of the HSTT Study Area, as described herein, the Navy
reinitiated consultation with NMFS pursuant to section 7 of the ESA for
HSTT Study Area activities, and NMFS also reinitiated consultation
internally on the issuance of these revised regulations and LOAs under
section 101(a)(5)(A) of the MMPA.
NMFS issued a reinitiated Biological and Conference Opinion on June
3, 2024 concluding that the issuance of the 2024 HSTT final rule and
subsequent LOAs are not likely to jeopardize the continued existence of
the threatened and endangered species under NMFS' jurisdiction and are
not likely to result in the destruction or adverse modification of
critical habitat in the HSTT Study Area. The opinion is available at
https://doi.org/10.25923/7y9x-vw84.
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. NMFS 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 any subsequent LOAs will not result in impacts that were not fully
considered in the 2018 HSTT FEIS/OEIS. As indicated in this final rule,
the Navy has made no substantial changes to the activities that are
relevant to environmental concerns nor are there substantial new
circumstances or information about the significance of adverse effects
that bear on the analysis. Therefore, NMFS has determined that the 2018
HSTT FEIS/OEIS remains valid, and there is no need to supplement the
document for this rulemaking. NOAA therefore, has adopted the 2018 HSTT
FEIS/OEIS. NMFS has prepared a separate Record of Decision. NMFS'
Record of Decision for adoption of the 2018 HSTT FEIS/OEIS and issuance
of this final rule and subsequent LOAs can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
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 has certified to the Chief
Counsel for Advocacy of the Small Business Administration during the
proposed rule stage that this action would not have a significant
economic impact on a substantial number of small entities. The factual
basis for the certification was published in the proposed rule and is
not repeated here. No comments were received regarding this
certification. As a result, a regulatory flexibility analysis was not
required and none was prepared.
Waiver of Delay in Effective Date 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 of 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 a delay would be contrary to
the public interest and unnecessary. A delay in effectiveness is
contrary to public interest because this rule allows the Navy to
continue training and testing activities that are necessary for
national security in compliance with the MMPA. Further, a delay is
unnecessary because this rule is not generally applicable to the
public. The Navy is the only entity affected by the regulations, the
Navy specifically requested the modification to the regulations, and
the Navy has fully agreed to the requirements included herein. The Navy
is anticipating finalization of the rule and, as such, is ready to
comply immediately upon publication. As such, there is good cause to
waive the 30-day delay in effective date.
List of Subjects in 50 CFR Part 218
Administrative practice and procedure, Endangered and threatened
species, Fish, Fisheries, Marine mammals, Penalties, Reporting and
recordkeeping requirements, Transportation, Wildlife.
[[Page 5016]]
Dated: December 23, 2024.
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.
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 (LOA).
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 HSTT
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 HSTT 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:
(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 System Command Testing Activities;
(iii) Office of Naval Research Testing Activities; and
(iv) Naval Information Warfare Systems Command.
Sec. 218.71 Effective dates.
This subpart is effective from January 16, 2025, 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 Paragraph (b)
------------------------------------------------------------------------
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.............................. Hawaii
Humpback whale......................... Central America/Southern Mexico-
CA/OR/WA
Humpback whale......................... Mainland Mexico-CA/OR/WA
Humpback whale......................... Hawaii
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
Goose-beaked whale..................... CA/OR/WA
Goose-beaked whale..................... Hawaii
Longman's beaked whale................. Hawaii
Mesoplodon spp......................... CA/OR/WA
[[Page 5017]]
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.
Except for incidental takings contemplated in Sec. 218.72(a) and
authorized by LOAs issued under Sec. Sec. 216.106 of this chapter and
218.76, it is unlawful for any person to do any of the following in
connection with the activities listed in Sec. 218.70(c):
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. Sec. 216.106
of this chapter and 218.76;
(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) after 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. Navy personnel
(including civilian personnel) involved in mitigation and training or
testing activity reporting under the specified activities will complete
one or more modules identified in their career path training plan, as
specified in the LOAs.
(2) Active sonar. Active sonar includes low-frequency active sonar,
mid-frequency active sonar, and high-frequency active sonar. For
vessel-based
[[Page 5018]]
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). For
active sonar subject mitigation requirements:
(i) Number of Lookouts and observation platform--(A) Hull-mounted
sources. One Lookout is required for hull-mounted sources for platforms
with space or manning restrictions while underway (at the forward part
of a small boat or ship) and for platforms using active sonar while
moored or at anchor (including pierside). Two Lookouts are required for
hull mounted-sources 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 is
required on the ship or aircraft conducting the activity for sources
that are not hull-mounted.
(ii) Mitigation zone and requirements. During active sonar use, the
following requirements apply:
(A) Powerdown for marine mammals at 1,000 yards. At 1,000 yards
(yd) (914.4 m) from a marine mammal, Navy personnel must power down by
6 decibels (dB).
(B) Powerdown for marine mammals at 500 yards. At 500 yd (457.2 m)
from a marine mammal, Navy personnel must power down by an additional 4
dB (for a total of 10 dB).
(C) Shutdowns for marine mammals at 200 yards. At 200 yd (182.9 m)
from a marine mammal, Navy personnel must shut down low-frequency
active sonar >=200 dB and hull-mounted mid-frequency active sonar; or
Navy personnel must shut down low-frequency active sonar <200 dB, mid-
frequency active sonar sources that are not hull-mounted, and high-
frequency active sonar.
(D) Prior to activity. Prior to the start of the active sonar
activity (e.g., when maneuvering on station), Navy personnel must
observe the 1,000 yd (914.4 m) mitigation zone for floating vegetation;
if floating vegetation is observed in the mitigation zone, 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.
(E) During the activity for low-frequency active sonar at or above
200 dB and hull-mounted mid-frequency active sonar. When using low-
frequency active sonar at or above 200 dB and hull-mounted mid-
frequency active sonar, Navy personnel must observe the 1,000 yd (914.4
m) mitigation zone for marine mammals and power down active sonar
transmission by 6 dB if marine mammals are observed within 1,000 yd
(914.4 m) 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
(457.2 m) of the sonar source; and cease transmission if marine mammals
are observed within 200 yd (182.9 m) of the sonar source.
(F) 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. 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 1,000 yd (914.4 m) mitigation zone for marine mammals and
cease active sonar transmission if marine mammals are observed within
200 yd (182.9 m) of the sonar source.
(G) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity. Navy personnel must allow a
sighted marine mammal to leave the mitigation zone indicated in Sec.
218.74(a)(2)(ii) prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing or
powering up active sonar transmission) until one of the following
conditions has been met:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the sonar source;
(3) Clear from additional sightings. 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;
(4) Sonar source transit. For mobile activities, the active sonar
source has transited a distance equal to double that of the mitigation
zone size beyond the location of the last sighting; or
(5) Bow-riding dolphins. For activities using hull-mounted sonar
where a dolphin(s) is observed in the mitigation zone, the Lookout
concludes that the dolphin(s) are deliberately closing in on the ship
to ride the ship's bow wave, and are therefore out of the main
transmission axis of the sonar (and there are no other marine mammal
sightings within the mitigation zone).
(3) Air guns. For activities using air guns:
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on a ship or pierside.
(ii) Mitigation zone and requirements. The mitigation zone is 150
yd (137.2 m) around the air gun.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the air gun;
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 30 min; or
(4) Air gun transit. 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. For 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. The mitigation zone is 100
yd (91.4 m) around the pile driver.
[[Page 5019]]
(A) Prior to activity. 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 activity. 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. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the pile driving location; or
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 30 minutes.
(5) Weapons firing noise. For 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. The mitigation zone is 30
degrees on either side of the firing line out to 70 yd (64 m) from the
muzzle of the weapon being fired.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the firing ship;
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 30 min; or
(4) Firing ship transit. For mobile activities, the firing ship has
transited a distance equal to double that of the mitigation zone size
beyond the location of the last sighting.
(6) Explosive sonobuoys. For 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 while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 600
yd (548.6 m) around an explosive sonobuoy.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the sonobuoy; or
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min when the activity
involves aircraft that have fuel constraints (e.g., helicopter), or 30
min when the activity involves aircraft that are not typically fuel
constrained.
(D) After activity. 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. For explosive torpedoes:
(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 while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 2,100
yd (1,920.2 m) around the intended impact location.
(A) Prior to activity. 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
[[Page 5020]]
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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended impact location; or
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min when the activity
involves aircraft that have fuel constraints, or 30 min when the
activity involves aircraft that are not typically fuel constrained.
(D) After activity. 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.
(8) Explosive medium-caliber and large-caliber projectiles. For
gunnery activities using explosive medium-caliber and large-caliber
projectiles, the following 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 while performing their regular duties.
(ii) Mitigation zone and requirements--(A) Air-to-surface
activities. The mitigation zone is 200 yd (182.9 m) around the intended
impact location for air-to-surface activities using explosive medium-
caliber projectiles.
(B) Surface-to-surface activities, medium-caliber. The mitigation
zone is 600 yd (548.6 m) around the intended impact location for
surface-to-surface activities using explosive medium-caliber
projectiles.
(C) Surface-to-surface activities, large-caliber. The mitigation
zone is 1,000 yd (914.4 m) around the intended impact location for
surface-to-surface activities using explosive large-caliber
projectiles.
(D) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended impact location;
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min for aircraft-based
firing or 30 min for vessel-based firing; or 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 activity. 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. For 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 while performing their regular duties.
(ii) Mitigation zone and requirements--(A) Missiles or rockets with
0.6-20 lb net explosive weight. The mitigation zone is 900 yd (823 m)
around the intended impact location for missiles or rockets with 0.6-20
lb net explosive weight.
(B) Missiles with 21-500 lb net explosive weight. The mitigation
zone is 2,000 yd (1,828.8 m) around the intended impact location for
missiles with 21-500 lb net explosive weight.
(C) Prior to activity. 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 activity. 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
[[Page 5021]]
activity (by delaying the start) or during the activity (by not
recommencing firing) until one of the following conditions has been
met:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended impact location; or
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min when the activity
involves aircraft that have fuel constraints, or 30 min when the
activity involves aircraft that are not typically fuel constrained.
(F) After activity. 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. For 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 while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 2,500
yd (2,286 m) around the intended target.
(A) Prior to activity. 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 activity. During the activity (e.g., during target
approach), Navy personnel must 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended target;
(3) Clear from additional sightings. 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 activity. 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. For 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 while performing
their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 2.5
nautical miles (4.6 km) around the target ship hulk.
(A) Prior to activity. 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 activity. 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 2 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the target ship hulk; or
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 30 minutes.
(D) After activity. After completion of the activity (for 2 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.
For explosive mine countermeasure and neutralization activities:
(i) Number of Lookouts and observation platform--(A) Smaller
mitigation zone. One Lookout must be positioned on a vessel or in an
aircraft when implementing the smaller mitigation zone.
(B) Larger mitigation zone. Two Lookouts (one must be positioned in
an aircraft and one must be on a small boat)
[[Page 5022]]
when implementing the larger mitigation zone.
(C) Additional platforms. 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 while performing their regular duties.
(ii) Mitigation zone and requirements--(A) Activities using 0.1-5
lb net explosive weight. The mitigation zone is 600 yd (548.6 m) around
the detonation site for activities using 0.1-5 lb net explosive weight.
(B) Activities using 6-650 lb net explosive weight. The mitigation
zone is 2,100 yd (1,920.2 m) around the detonation site for activities
using 6-650 lb net explosive weight (including high explosive target
mines).
(C) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to detonation site; or
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min when the activity
involves aircraft that have fuel constraints, or 30 min when the
activity involves aircraft that are not typically fuel constrained.
(F) After activity. After completion of the activity (typically 10
min when the activity involves aircraft that have fuel constraints, or
30 min when the activity involves aircraft that are not typically fuel
constrained), Navy personnel must observe for marine mammals in the
vicinity of where detonations occurred; if any injured or dead marine
mammals are observed, Navy personnel must follow established incident
reporting procedures. If additional platforms are supporting this
activity (e.g., providing range clearance), these Navy assets must
assist in the visual observation of the area where detonations
occurred.
(13) Explosive mine neutralization activities involving Navy
divers. For explosive mine neutralization activities involving Navy
divers:
(i) Number of Lookouts and observation platform--(A) Smaller
mitigation zone. 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) Larger mitigation zone. 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) Divers. 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) Additional platforms. 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 while performing their regular duties.
(ii) Mitigation zone and requirements--(A) Activities under
positive control using 0.1-20 lb net explosive weight. The mitigation
zone is 500 yd (457.2 m) around the detonation site during activities
under positive control using 0.1-20 lb net explosive weight.
(B) Activities under positive control using 21-60 lb net explosive
weight charges. The mitigation zone is 1,000 yd (914.4 m) 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 activity. 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 activity. 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 minutes.
(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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. 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
[[Page 5023]]
(3) Clear from additional sightings. 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 activity. After completion of an activity (for 30 min),
the Navy must observe for marine mammals for 30 minutes. 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 while performing their regular duties.
(ii) Mitigation zone and requirements. 200 yd (182.9 m) around the
intended detonation location.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended detonation location;
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 30 min; or
(4) Detonation location transit. 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 activity. 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. For underwater demolition multiple charge--mat weave
and obstacle loading exercises:
(i) Number of Lookouts and observation platform. Two Lookouts (one
must be positioned 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 while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 700
yd (640.1 m) around the intended detonation location.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. 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
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min (as determined by the
Navy shore observer).
(D) After activity. 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 following requirements apply to vessel
movement, except 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) Whales. The mitigation
zone is 500 yd (457.2 m) around whales.
(B) Marine mammals other than whales. The mitigation zone is 200 yd
(182.9 m) 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
[[Page 5024]]
mammals; if marine mammals are observed, Navy personnel must maneuver
(which may include reducing speed as the mission or circumstances
allow) to maintain distance.
(iv) Incident reporting procedures. If a marine mammal vessel
strike occurs, Navy personnel must follow the established incident
reporting procedures.
(v) Post-strike alerts. Navy personnel must send alerts to Navy
vessels of increased risk of strike following any reported Navy vessel
strike in the HSTT Study Area.
(vi) Large whale aggregation alerts. Navy personnel must issue
real-time notifications to Navy vessels of large whale aggregations
(four or more whales) within 1 nmi (1.9 km) of a Navy vessel in the
area between 32-33 degrees North and 117.2-119.5 degrees West.
(17) Towed in-water devices. The following mitigation applies to
devices that are towed from a manned surface platform or manned
aircraft, except 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. The mitigation zone is 250
yd (228.6 m) 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. For small-, medium-, and large-caliber non-explosive
practice munitions, the following 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. The mitigation zone is 200
yd (182.9 m) around the intended impact location.
(A) Prior to activity. 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 activity. 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:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended impact location;
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min for aircraft-based
firing or 30 min for vessel-based firing; or
(4) Impact location transit. For activities using 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. For aircraft-deployed non-
explosive missiles and rockets, the following 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. The mitigation zone is 900
yd (823 m) around the intended impact location.
(A) Prior to activity. 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 activity. 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 activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met:
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended impact location; or
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min when the activity
involves aircraft that have fuel constraints, or 30 min when the
activity involves aircraft that are not typically fuel constrained.
(20) Non-explosive bombs and mine shapes. For 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. The mitigation zone is 1,000
yd (914.4 m) around the intended target.
(A) Prior to activity. 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 activity. 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:
[[Page 5025]]
(1) Observed exiting. The animal is observed exiting the mitigation
zone;
(2) Thought to have exited. The animal is thought to have exited
the mitigation zone based on a determination of its course, speed, and
movement relative to the intended target or minefield location;
(3) Clear from additional sightings. The mitigation zone has been
clear from any additional sightings for 10 min; or
(4) Target transit. For activities using mobile targets, the
intended target has transited a distance equal to double that of the
mitigation zone size beyond the location of the last sighting.
(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) MF1
surface ship hull-mounted mid-frequency active sonar, MF4 dipping
sonar, or explosives. Except as provided in paragraph (b)(1)(i)(A)(2)
of this section, within the Hawaii Island Mitigation Area, 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) National security exception. 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) MF1 surface ship hull-
mounted mid-frequency active sonar or explosives. Except as provided in
paragraph (b)(1)(i)(B)(2) of this section, within the 4-Islands Region
Mitigation Area, Navy personnel must not use MF1 surface ship hull-
mounted mid-frequency active sonar from November 15-April 15 or
explosives that could potentially result in takes of marine mammals at
any time during training and testing.
(2) National security exception. 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 Humpback Whale Special Reporting
Areas established from December 15-April 15 in its annual training and
testing activity reports submitted to NMFS.
(D) Humpback Whale Awareness Notification Message Area (November-
April). The following requirements apply in the Humpback Whale
Awareness Notification Message Area established from November-April.
(1) Seasonal awareness notification message. 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) Vessel instruction. 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) Awareness notification message use. 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) MF1 surface ship hull-mounted mid-frequency active sonar.
Except as provided in paragraph (b)(2)(i)(A)(2) of this section, within
the San Diego Arc, San Nicolas Island, and Santa Monica/Long Beach
Mitigation Areas from 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.
(2) National security exception. 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) Explosives in San Diego Arc Mitigation Area. 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) National security exception. Should national security require
use of 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 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) Explosives in San Nicolas Island Mitigation Area. 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) National security exception. Should national security require
use of explosives that could potentially result in the take of marine
mammals during mine warfare, large-caliber gunnery,
[[Page 5026]]
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) Explosives in the Santa Monica/Long Beach Mitigation Area.
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) National security exception. 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) MF1
surface ship hull-mounted mid-frequency active sonar or explosives.
Except as provided in paragraph (b)(2)(i)(B)(2) of this section, within
the Santa Barbara Island Mitigation Area, 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) National security exception. 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) Spring Large Whale Awareness Notification Message--(1)
Awareness notification message. Navy personnel must issue an awareness
notification message during the spring to alert ships and aircraft
within the eastern Pacific to the possible presence of concentrations
of large whales, including blue whales, fin whales, and humpback
whales.
(2) Applicable period. This message must apply to a period that is
based on predicted oceanographic conditions for a given year.
(3) Marine mammals and vessel transit. To maintain safety of
navigation and to avoid interactions with large whales during transits,
Navy personnel must instruct personnel on vessels that when a marine
mammal is spotted, this may be an indicator that additional marine
mammals are present nearby, and increased vigilance and awareness of
Navy personnel is warranted.
(4) Platform use of message. 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.
(D) Gray Whale (November-March) and Fin Whale (November-May)
Awareness Notification Message Areas. The following requirements apply
in the Gray Whale Awareness Notification Areas from November-March and
Fin Whale Awareness Notification Message Areas from November-May.
(1) Seasonal awareness message. 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 gray whales, and fin whales.
(2) Marine mammals and vessel transit. To maintain safety of
navigation and to avoid interactions with large whales during transits,
Navy personnel must instruct personnel on vessels to remain vigilant to
the presence of large whale species.
(3) Platform use of message. 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 of marine mammals not
identified in Sec. 218.72(b).
(b) Monitoring and reporting under the LOAs. The Navy must conduct
all monitoring and reporting required under the LOAs. 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 comply with all notification and reporting requirements
under the LOAs. The Notification and Reporting Plan, which sets out
notification, reporting, and other requirements when dead, injured, or
live stranded marine mammals are detected. The Notification and
Reporting Plan is available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
(d) Changes in Lookout policies. The Navy must report changes in
its Lookout policies to NMFS as soon as practicable after a change is
made.
(e) 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 3 months after the
end of the calendar year, or within 3 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,
[[Page 5027]]
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.
(f) 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 1-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
paragraphs (f)(3) through (5) 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
(f)(1) through (9) 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 each 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, and 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 (182.9 m),
200 to 500 yd (182.9 to 457.2 m), 500 to 1,000 yd (457.2 m to 914.4 m),
1,000 to 2,000 yd (914.4 m to 1,828.8 m), or greater than 2,000 yd
(1,828.8 m) from sonar source.
(K) Whether operation of sonar sensor was delayed, or sonar was
powered or shut down, and the length of 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 (182.9 m), 200 to 500 yd
(182.9 to 457.2 m), 500 to 1,000 yd (457.2 m to 914.4 m), 1,000 to
2,000 yd (914.4 m to 1,828.8 m), or greater than 2,000 yd (1,828.8 m).
(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:
[[Page 5028]]
(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 Humpback Whale Special
Reporting Area.
(5) Mitigation areas. The Navy must report any use of restricted
acoustic and explosive sources identified in Sec. 218.74(b).
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.
(7) Sonar exercise notification. The Navy must submit to NMFS
(contact as specified in the LOA) an electronic report within 15
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.
(8) Large whale aggregations. For each instance that an aggregation
of large whales (4 or more whales within 1 nmi (1.9 km)) is reported in
the area between 32-33 degrees North and 117.2-119.5 degrees West, Navy
personnel must report the following information and to the extent
practicable, this information should be provided in the Navy's
unclassified version of these reports:
(i) Date, time, and general location (e.g., approximately 10-12 nmi
(18.5 to 22.2 km) Southeast of San Clemente Island) of the whales when
the aggregation was first sighted
(ii) Total number of whales observed within 1 nmi (1.9 km) of a
Navy vessel that make up the aggregation
(iii) Approximate distance (or distances if more than 1 group of
whales is sighted) of the vessel from the whales in the aggregation
when the whales were first sighted.
(9) Foreign military sonar and explosives. Navy personnel must
confirm that foreign military use of sonar and explosives, when such
militaries are participating in a U.S. Navy-led exercise or event,
combined with the U.S. Navy's use of sonar and explosives, would not
cause exceedance of the analyzed levels within each NAEMO modeled sonar
and explosive bin used for estimating predicted impacts.
(g) 7-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 7-year total for each sound source bin with a comparison to the 7-
year allowance. Additionally, if there were any changes to the sound
source allowance, this report must include a discussion of why the
change was made and include the analysis to support how the change did
or did not result in a change in the 2018 HSTT FEIS/OEIS and final rule
determinations. The draft report must be submitted within 3 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 3 months of receipt. The report will
be considered final after the Navy has addressed NMFS' comments, or 3
months after the submittal of the draft if NMFS does not provide
comments.
Sec. 218.76 Letters of Authorization (LOA).
(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) 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.
[[Page 5029]]
(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) 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. 2024-31402 Filed 1-8-25; 4:15 pm]
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