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

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

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 §§ 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

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

http://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 (

http://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

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

(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

(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 μPa 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

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 μPa 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

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

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.)

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 (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

(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

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

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.

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

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

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

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

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

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

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

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

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

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