Federal Register, Volume 74 Issue 7 (Monday, January 12, 2009)

[Federal Register Volume 74, Number 7 (Monday, January 12, 2009)]
[Rules and Regulations]
[Pages 1456-1491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-37]

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Part III

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 216

Taking and Importing Marine Mammals; U.S. Navy Training in the Hawaii
Range Complex; Final Rule

Federal Register / Vol. 74, No. 7 / Monday, January 12, 2009 / Rules
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 080519680-81530-02]
RIN 0648-AW86

Taking and Importing Marine Mammals; U.S. Navy Training in the
Hawaii Range Complex

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing
regulations to govern the unintentional taking of marine mammals
incidental to training activities conducted within the Hawaii Range
Complex (HRC) for the period of January 2009 through January 2014. The
Navy's training activities are considered military readiness activities
pursuant to the Marine Mammal Protection Act (MMPA), as amended by the
National Defense Authorization Act of 2004 (NDAA). These regulations,
which allow for the issuance of ``Letters of Authorization'' (LOAs) for
the incidental take of marine mammals during the described activities
and specified timeframes, prescribe the permissible methods of taking
and other means of affecting the least practicable adverse impact on
marine mammal species and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking.

DATES: Effective January 5, 2009 through January 5, 2014.

ADDRESSES: A copy of the Navy's application, which contains a list of
the references used in this document, NMFS' Record of Decision (ROD),
and other documents cited herein, may be obtained by writing to Michael
Payne, Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact
listed here.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected
Resources, NMFS, (301) 713-2289, ext. 166.

SUPPLEMENTARY INFORMATION: Extensive supplementary information was
provided in the proposed rule for this activity, which was published in
the Federal Register on Monday, June 23, 2008 (73 FR 35510). This
information will not be reprinted here in its entirety; rather, all
sections from the proposed rule will be represented herein and will
contain either a summary of the material presented in the proposed rule
or a note referencing the page(s) in the proposed rule where the
information may be found. Any information that has changed since the
proposed rule was published will be addressed herein. Additionally,
this final rule contains a section that responds to the comments
received during the public comment period.

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) during periods of not more than five consecutive years each if
certain findings are made and regulations are issued or, if the taking
is limited to harassment and of no more than 1 year, the Secretary
shall issue a notice of proposed authorization for public review.
Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and if the permissible methods of taking
and requirements pertaining to the mitigation, monitoring and reporting
of such taking are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:

an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.

The NDAA (Pub. L. 108-136) removed the ``small numbers'' and
``specified geographical region'' limitations and amended the
definition of ``harassment'' as it applies to a ``military readiness
activity'' to read as follows (Section 3(18)(B) of the MMPA):

(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].

Summary of Request

On June 25, 2007, NMFS received an application from the Navy
requesting authorization for the take of 24 species of marine mammals
incidental to upcoming Navy training activities to be conducted within
the HRC, which covers 235,000 nm\2\ around the Main Hawaiian Islands
(see map on page 17 of the application), over the course of 5 years.
These training activities are classified as military readiness
activities. These training activities may incidentally take marine
mammals present within the HRC by exposing them to sound from mid-
frequency or high frequency active sonar (MFAS/HFAS) or to underwater
detonations at levels that NMFS associates with the take of marine
mammals. The Navy requested authorization to take individuals of 24
species of marine mammals by Level B Harassment. Further, though they
do not anticipate it to occur, the Navy requested authorization to
take, by injury or mortality, up to 10 individuals each of 10 species
over the course of the 5-year period (bottlenose dolphin, Kogia spp.,
melon-headed whale, pantropical spotted dolphin, pygmy killer whale,
short-finned pilot whale, striped dolphin, and Cuvier's, Longman's, and
Blainville's beaked whale).

Background of Navy Request

The proposed rule contains a description of the Navy's mission,
their responsibilities pursuant to Title 10 of the United States Code,
and the specific purpose and need for the activities for which they
requested incidental take authorization. The description contained in
the proposed rule has not changed (73 FR 35510).

Description of the Specified Activities

The proposed rule contains a complete description of the Navy's
specified activities that are covered by these final regulations, and
for which the associated incidental take of marine mammals will be
authorized in the related LOAs. The proposed rule describes the nature
of the training exercises involving both mid- and high-frequency active
sonar (MFAS and HFAS) and explosive detonations, as well as the MFAS
and HFAS sound sources and explosive types. See 73 FR 35510, page
35512. The narrative description of the action contained in the
proposed rule has not changed except for two corrections and one
clarification, noted in the paragraph below. Tables 1-3 summarize and
quantify the sonar exercise types, sonar sources, and explosive
exercise types

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used in these training exercises and contain minor corrections (from
the proposed rule) that did not affect NMFS' analysis of the proposed
action.
The last paragraph of the Mine Neutralization section of the
proposed rule contained an error. For the final rule, the sentence
beginning ``Standard practices for tethered mines * * *'' should be
replaced with the following sentence: ``Standard practice for tethered
mines is to tie off the explosive counter charge as closely as possible
to the mine case.'' In the proposed rule, Table 5 (which is Table 3 in
this final rule) mistakenly indicated that IEER exercises would only
occur in the summer months. In fact, IEER use in the winter months is
typically rare and infrequent due to the required mitigation measures,
but exercises may be planned for winter and NMFS and the Navy's
analyses accounted for this fact. Table 3 includes the correction here.
These two modifications are non-substantive and do not affect NMFS'
determinations.
Last, Table 1 (in this final rule) indicates that RIMPAC exercises
only occur in the summer (when humpback whales are not present) of
every other year, which is accurate. Table 2 shows that the Navy plans
to conduct the same number of sonar hours in each year. The needed
clarification (to ensure no unanticipated humpback whale take occurs)
follows: In the years without RIMPAC, the sonar hours conducted will be
seasonally and spatially distributed such that no additional exposures
of humpback whales to MFAS/HFAS would occur beyond those used to
estimate take in the years with a RIMPAC. In a simple example, in a
non-RIMPAC year, the Navy could choose to conduct the RIMPAC-sized lump
of sonar hours either in the summer when humpbacks are not present, or
in the winter but farther out to sea where their activities would not
expose humpbacks to MFAS/HFAS, or some combination of those two. This
clarification does not affect NMFS' determinations.
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Description of Marine Mammals in the Area of the Specified Activities

There are 27 marine mammal species with possible or confirmed
occurrence in the HRC. Seven marine mammal species listed as federally
endangered under the Endangered Species Act (ESA) occur in the HRC: The
humpback whale, North Pacific right whale, sei whale, fin whale, blue
whale, sperm whale, and Hawaiian monk seal. The most abundant marine
mammals appear to be dwarf sperm whales, striped dolphins, and Fraser's
dolphins. The most abundant large whales are sperm whales. Table 4
provides the estimated abundance, estimated group size, and estimated
probability of detection (based on Barlow 2006) of the marine mammal
species that occur in the HRC.
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The Navy has compiled information on the abundance, behavior,
status and distribution, and vocalizations of marine mammal species in
the Hawaiian waters from peer reviewed literature, the Navy Marine
Resource Assessment, NMFS Stock Assessment Reports, and marine mammal
surveys using acoustics or visual observations from aircraft or ships.
This information may be viewed in the Navy's LOA application and/or the
Navy's FEIS for the HRC (see FOR FURTHER INFORMATION). Additional
information is available in NMFS Stock Assessment Reports, which may be
viewed at: http://www.nmfs.noaa.gov/pr/sars/species.htm. As indicated
in the proposed rule, based on their rare occurrence in the HRC, the
Navy and NMFS do not anticipate any effects to Blue whales, North
Pacific right whales, or Northern elephant seals and, therefore, they
are not addressed further in this document.
Because the consideration of areas where marine mammals are known
to selectively breed or calve are important to both the negligible
impact finding necessary for the issuance of an MMPA

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authorization and the need for NMFS to put forth the means of affecting
the least practicable adverse impact paying particular attention to
rookeries, mating grounds, and other areas of similar significance, the
proposed rule contains a description of important reproductive areas,
with a special focus on humpback whales (73 FR 35510, page 35519). That
section includes a figure that generally illustrates humpback whale
survey data collected between 1993 and 2003 and indicates areas of high
and low density. The description contained in the proposed rule has not
changed.

A Brief Background on Sound

The proposed rule contains a section that provides a brief
background on the principles of sound that are frequently referred to
in this rulemaking (73 FR 35510, pages 35521-35522). This section also
includes a discussion of the functional hearing ranges of the different
groups of marine mammals (by frequency) as well as a discussion of the
two main sound metrics used in NMFS analysis (sound pressure level
(SPL) and sound energy level (SEL)). The information contained in the
proposed rule has not changed.

Potential Effects of Specified Activities on Marine Mammals

With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A Harassment
(injury), or mortality, including an identification of the number and
types of take that could occur by Level A or B harassment or mortality)
and to prescribe other means of affecting the least practicable adverse
impact on such species or stock and its habitat (i.e., mitigation); (2)
to determine whether the specified activity will have a negligible
impact on the affected species or stocks of marine mammals (based on
the likelihood that the activity will adversely affect the species or
stock through effects on annual rates of recruitment or survival); (3)
to determine whether the specified activity will have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses (however, there are no subsistence communities that
would be affected in the HRC, so this determination is inapplicable for
the HRC); and (4) to prescribe requirements pertaining to monitoring
and reporting.
In the Potential Effects of Specified Activities on Marine Mammals
Section of the proposed rule NMFS included a qualitative discussion of
the different ways that MFAS/HFAS and underwater explosive detonations
may potentially affect marine mammals (some of which NMFS would not
classify as harassment); 73 FR 35510, pages 35522-35534. Marine mammals
may experience direct physiological effects (such as threshold shift),
acoustic masking, impaired communications, stress responses, and
behavioral disturbance. This section also included a discussion of some
of the suggested explanations for the association between the use of
MFAS and marine mammal strandings, such as behaviorally-mediated bubble
growth, that have been observed a limited number of times in certain
circumstances (the specific events are also described); 73 FR 35510,
pages 35529-35534. The information contained in Potential Effects of
Specified Activities on Marine Mammals Section from the proposed rule
has not changed, except for one correction noted below.
The proposed rule contained an error in the Potential Effects of
Specified Activities on Marine Mammals Section (73 FR 35510, page
35534). The statement ``A surface duct may be present * * *'' should be
replaced with the following statement: ``Surface ducts are present
approximately 53 percent of the time.'' Note that the Navy's model for
estimating effects on marine mammals incorporates the likelihood of
strong surface ducts in the HRC (pers. comm. J. Hibbard to J. Harrison,
2007) and the exposure estimates it produces reflect this.
Later, in the Estimated Take of Marine Mammals Section, NMFS
relates the potential effects to marine mammals from MFAS/HFAS and
underwater detonation of explosives discussed here to the MMPA
regulatory definitions of Level A and Level B Harassment, and
mortality, and quantifies those effects.

Mitigation

In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations
setting forth the ``permissible methods of taking pursuant to such
activity, and other means of affecting the least practicable adverse
impact on such species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.'' The National Defense Authorization Act (NDAA) of 2004
amended the MMPA as it relates to military readiness activities and the
incidental take authorization process such that ``least practicable
adverse impact'' shall include consideration of personnel safety,
practicality of implementation, and impact on the effectiveness of the
``military readiness activity''. The HRC training activities described
in the proposed rule are considered military readiness activities.
NMFS reviewed the Navy's proposed HRC activities and the proposed
HRC mitigation measures (which the Navy refers to as Protective
Measures) presented in the Navy's application to determine whether the
activities and mitigation measures were capable of achieving the least
practicable adverse effect on marine mammals. NMFS determined that
further discussion was necessary regarding: (1) Humpback whales
congregating in the winter in the shallow areas of the HRC in high
densities to calve and breed; and (2) the potential relationship
between the operation of MFAS/HFAS and marine mammal strandings.
Any mitigation measure prescribed by NMFS should be known to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
(a) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals b, c, and d may contribute to this goal).
(b) A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to received
levels of MFAS/HFAS, underwater detonations, or other activities
expected to result in the take of marine mammals (this goal may
contribute to a, above, or to reducing harassment takes only).
(c) A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to received levels of MFAS/HFAS, underwater detonations, or other
activities expected to result in the take of marine mammals (this goal
may contribute to a, above, or to reducing harassment takes only).
(d) A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to received
levels of MFAS/HFAS, underwater detonations, or other activities
expected to result in the take of marine mammals (this goal may
contribute to a, above, or to reducing the severity of harassment takes
only).
(e) A reduction in adverse effects to marine mammal habitat, paying
special attention to the food base, activities that block or limit
passage to or from biologically important areas, permanent destruction
of habitat, or temporary destruction/disturbance of habitat during a
biologically important time.

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(f) For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation (shut-down zone, etc.).
NMFS worked with the Navy to identify additional practicable and
effective mitigation measures, which included a careful balancing of
the likely benefit of any particular measure to the marine mammals with
the likely effect of that measure on personnel safety, practicality of
implementation, and impact on the ``military-readiness activity''. NMFS
and the Navy developed two additional mitigation measures that address
the concerns mentioned above, including a humpback whale cautionary
area and a Stranding Response Plan.
The Navy's proposed mitigation measures, as well as the humpback
whale cautionary area and the Stranding Response Plan, both of which
are required under these regulations, were described in detail in the
proposed rule (73 FR 35510, pages 35535-35541). The Navy's measures
address personnel training, lookout and watchstander responsibilities,
and operating procedures for training activities using both MFAS/HFAS
and explosive detonations. No changes have been made to the mitigation
measures described in the proposed rule, with one correction and one
addition, addressed in the next paragraph. The final HRC Stranding
Response Plan, which includes a shutdown protocol, a stranding
investigation plan, and a requirement for Navy and NMFS to implement an
MOA that will establish a framework whereby the Navy can (and provide
the Navy examples of how they can best) assist NMFS with stranding
investigations in certain circumstances, may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Additionally,
the mitigation measures are included in full in the codified text of
the regulations.
The proposed rule contained a measure in which the Navy indicated
that ``prior to conducting the exercise, remotely sensed sea surface
temperature maps would be reviewed. SINKEX and air to surface missile
(ASM) Training activities would not be conducted within areas where
strong temperature discontinuities are present, thereby indicating the
existence of oceanographic fronts'' (73 FR 35510, page 35537). The Navy
included this measure in the LOA application in error. The removal of
the measure does not change NMFS' analysis and therefore the measure is
not included in the final rule. Additionally, the following measure has
been added to the regulations: Night vision goggles shall be available
to all ships and air crews for use as appropriate.
NMFS has determined that the Navy's proposed mitigation measures
(from the LOA application), along with the Humpback Whale Cautionary
Area and the Stranding Response Plan (and when the Adaptive Management
(see Adaptive Management below) component is taken into consideration)
are adequate means of effecting the least practicable adverse impacts
on marine mammal species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, while also considering personnel safety, practicality of
implementation, and impact on the effectiveness of the military
readiness activity. The justification for this conclusion is discussed
in the Mitigation Conclusion section of the proposed rule (73 FR 35510,
pages 35540-35541). The Mitigation Conclusion Section of the proposed
rule has not changed.

Research and Conservation Measures for Marine Mammals

The Navy provides a significant amount of funding and support for
marine research. The Navy provided $26 million in Fiscal Year 2008 and
plans for $22 million in Fiscal Year 2009 to universities, research
institutions, federal laboratories, private companies, and independent
researchers around the world to study marine mammals. Over the past
five years the Navy has funded over $100 million in marine mammal
research. The U.S. Navy sponsors seventy percent of all U.S. research
concerning the effects of human-generated sound on marine mammals and
50 percent of such research conducted worldwide. Major topics of Navy-
supported research include the following:
Better understanding of marine species distribution and
important habitat areas,
Developing methods to detect and monitor marine species
before and during training,
Understanding the effects of sound on marine mammals, sea
turtles, fish, and birds, and
Developing tools to model and estimate potential effects
of sound.
The Navy's Office of Naval Research currently coordinates six
programs that examine the marine environment and are devoted solely to
studying the effects of noise and/or the implementation of technology
tools that will assist the Navy in studying and tracking marine
mammals. The six programs are as follows:
Environmental Consequences of Underwater Sound,
Non-Auditory Biological Effects of Sound on Marine
Mammals,
Effects of Sound on the Marine Environment,
Sensors and Models for Marine Environmental Monitoring,
Effects of Sound on Hearing of Marine Animals, and
Passive Acoustic Detection, Classification, and Tracking
of Marine Mammals.
The Navy has also developed the technical reports referenced within
this document and the HRC EIS, such as the Marine Resource Assessments.
Furthermore, research cruises by NMFS and by academic institutions have
received funding from the U.S. Navy.
The Navy has sponsored several workshops to evaluate the current
state of knowledge and potential for future acoustic monitoring of
marine mammals. The workshops brought together acoustic experts and
marine biologists from the Navy and other research organizations to
present data and information on current acoustic monitoring research
efforts and to evaluate the potential for incorporating similar
technology and methods on instrumented ranges. However, acoustic
detection, identification, localization, and tracking of individual
animals still requires a significant amount of research effort to be
considered a reliable method for marine mammal monitoring. The Navy
supports research efforts on acoustic monitoring and will continue to
investigate the feasibility of passive acoustics as a potential
mitigation and monitoring tool.
Overall, the Navy will continue to fund ongoing marine mammal
research, and is planning to coordinate long term monitoring/studies of
marine mammals on various established ranges and operating areas. The
Navy will continue to research and contribute to university/external
research to improve the state of the science regarding marine species
biology and acoustic effects. These efforts include mitigation and
monitoring programs; data sharing with NMFS and via the literature for
research and development efforts; and future research as described
previously.

Long-Term Prospective Study

Apart from this final rule, NMFS, with input and assistance from
the Navy and several other agencies and entities, will perform a
longitudinal observational study of marine mammal strandings to
systematically observe and record the types of pathologies and

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diseases and investigate the relationship with potential causal factors
(e.g., sonar, seismic, weather). The proposed rule contained an outline
of the proposed study (73 FR 35510, pages 35541-35542). No changes have
been made to the longitudinal study as described in the proposed rule.

Monitoring

In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the level of taking or impacts on populations of marine
mammals that are expected to be present.
Monitoring measures prescribed by NMFS should accomplish one or
more of the following general goals:
(a) An increase in the probability of detecting marine mammals,
both within the safety zone (thus allowing for more effective
implementation of the mitigation) and in general to generate more data
to contribute to the effects analyses.
(b) An increase in our understanding of how many marine mammals are
likely to be exposed to levels of MFAS/HFAS (or explosives or other
stimuli) that we associate with specific adverse effects, such as
behavioral harassment, TTS, or PTS.
(c) An increase in our understanding of how marine mammals respond
(behaviorally or physiologically) to MFAS/HFAS (at specific received
levels), explosives, or other stimuli expected to result in take and
how anticipated adverse effects on individuals (in different ways and
to varying degrees) may impact the population, species, or stock
(specifically through effects on annual rates of recruitment or
survival)
(d) An increased knowledge of the affected species.
(e) An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.
(f) A better understanding and record of the manner in which the
authorized entity complies with the incidental take authorization.

Proposed Monitoring Plan for the HRC

As NMFS indicated in the proposed rule, the Navy has (with input
from NMFS) fleshed out the details of and made improvements to the HRC
Monitoring Plan. Additionally, NMFS and the Navy have incorporated a
recommendation from the public, which recommended the Navy hold a
workshop to discuss the Navy's Monitoring Plan (see Monitoring Workshop
section). The final HRC Monitoring Plan, which is summarized below, may
be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
The draft Monitoring Plan for the HRC has been designed as a
collection of focused ``studies'' (described fully in the HRC
Monitoring Plan) to gather data that will allow the Navy to address the
following questions:
(a) Are marine mammals exposed to mid-frequency active sonar
(MFAS), especially at levels associated with adverse effects (i.e.,
based on NMFS' criteria for behavioral harassment, TTS, or PTS)? If so,
at what levels are they exposed?
(b) If marine mammals are exposed to MFAS in the HRC, do they
redistribute geographically within the HRC as a result of continued
exposure? If so, how long does the redistribution last?
(c) If marine mammals are exposed to MFAS, what are their
behavioral responses to various levels?
(d) What are the behavioral responses of marine mammals that are
exposed to explosives at specific levels?
(e) Is the Navy's suite of mitigation measures for MFAS and
explosives (e.g., PMAP, major exercise measures agreed to by the Navy
through permitting) effective at avoiding TTS, injury, and mortality of
marine mammals?
Data gathered in these studies will be collected by qualified,
professional marine mammal biologists that are experts in their field.
They will use a combination of the following methods to collect data:
Visual Surveys--Vessel, Aerial and Shore-based.
Passive Acoustic Monitoring (PAM).
Marine Mammal observers (MMOs) on Navy Vessels.
Marine Mammal Tagging.
In the five proposed study designs (all of which cover multiple
years), the above methods will be used separately or in combination to
monitor marine mammals in different combinations before, during, and
after training activities utilizing MFAS/HFAS or explosive detonations.
Table 5 contains a summary of the Monitoring effort that is planned for
each study in each year (effort may vary slightly between years or
study type, but overall effort will remain constant). The HRC
Monitoring Plan is designed to collect data on all marine mammals and
sea turtles encountered during monitoring studies. However, priority
will be given to ESA-listed species and taxa in which MFAS exposure and
strandings have been linked under certain circumstances. Because of the
important reproductive area and the fact that humpback whales are
present in very high densities in certain areas of the HRC, the Navy
plans to dedicate a designated subset of their monitoring effort
specifically to these high-density areas.
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Monitoring Workshop

During the public comment period on the proposed rule for the HRC,
NMFS received a comment which, in consultation with the Navy, we have
chosen to incorporate into the final rule (in a modified form). One
commenter recommended that a workshop or panel be convened to solicit
input on the monitoring plan from researchers, experts, and other
interested parties. The HRC proposed rule included an adaptive
management component and both NMFS and the Navy believe that a workshop
would provide a means for Navy and NMFS to consider input from
participants in determining whether or how to modify monitoring
techniques to more effectively accomplish the goals of monitoring set
forth earlier in the document. NMFS and the Navy believe that this
workshop concept is valuable in relation to all of the Range Complexes
and major training exercise LOAs that NMFS is working on with the Navy
at this time, and consequently this single Monitoring Workshop will be
included as a component of all of the LOAs that NMFS will be processing
for the Navy in the next year or so.
The Navy, with guidance and support from NMFS, will convene a
Monitoring Workshop, including marine mammal and acoustic experts as
well as other interested parties, in 2011. The Monitoring Workshop
participants will review the monitoring results from the previous two
years of monitoring pursuant to the HRC rule as well as monitoring
results from other Navy rules issued after HRC (e.g., the Atlantic

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Fleet Active Sonar Training, Southern California Range Complex, and
other rules). The Monitoring Workshop participants would provide their
individual recommendations to the Navy and NMFS on the monitoring
plan(s) after also considering the current science (including Navy R&D
developments) and working within the framework of available resources
and feasibility of implementation. NMFS and the Navy would then analyze
the input from the Monitoring Workshop participants and determine the
best way forward from a national perspective. Subsequent to the
Monitoring Workshop, modifications would be applied to monitoring plans
as appropriate.

Integrated Comprehensive Monitoring Plan

In addition to the Monitoring Plan for the HRC, the Navy will
complete an Integrated Comprehensive Monitoring Program (ICMP) Plan by
the end of 2009. The ICMP will provide the overarching coordination
that will support compilation of data from range-specific monitoring
plans (e.g., HRC Range Complex plan) as well as Navy funded research
and development (R&D) studies. The ICMP will coordinate the monitoring
programs progress towards meeting its goals and develop a data
management plan. The ICMP will be evaluated annually to provide a
matrix for progress and goals for the following year, and will make
recommendations on adaptive management for refinement and analysis of
the monitoring methods.
The primary objectives of the ICMP are to:
Monitor and assess the effects of Navy activities on
protected species;
Ensure that data collected at multiple locations is
collected in a manner that allows comparison between and among
different geographic locations;
Assess the efficacy and practicality of the monitoring and
mitigation techniques;
Add to the overall knowledge-base of marine species and
the effects of Navy activities on marine species.
The ICMP will be used both as: (1) A planning tool to focus Navy
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy
Range Complexes and Exercises; and (2) an adaptive management tool,
through the consolidation and analysis of the Navy's monitoring and
watchstander data, as well as new information from other Navy programs
(e.g., R&D), and other appropriate newly published information.
In combination with the 2011 Monitoring Workshop and the adaptive
management component of the HRC rule and the other planned Navy rules
(e.g. AFAST and SOCAL), the ICMP could potentially provide a framework
for restructuring the monitoring plans and allocating monitoring effort
based on the value of particular specific monitoring proposals (in
terms of the degree to which results would likely contribute to stated
monitoring goals, as well as the likely technical success of the
monitoring based on a review of past monitoring results) that have been
developed through the ICMP framework, instead of allocating based on
maintaining an equal (or commensurate to effects) distribution of
monitoring effort across Range complexes. For example, if careful
prioritization and planning through the ICMP (which would include a
review of both past monitoring results and current scientific
developments) were to show that a large, intense monitoring effort in
Hawaii would likely provide extensive, robust and much-needed data that
could be used to understand the effects of sonar throughout different
geographical areas, it may be appropriate to have other Range Complexes
dedicate money, resources, or staff to the specific monitoring proposal
identified as ``high priority'' by the Navy and NMFS, in lieu of
focusing on smaller, lower priority projects divided throughout their
home Range Complexes.
The ICMP will identify:
A means by which NMFS and the Navy would jointly consider
prior years' monitoring results and advancing science to determine if
modifications are needed in mitigation or monitoring measures to better
effect the goals laid out in the Mitigation and Monitoring sections of
the HRC rule.
Guidelines for prioritizing monitoring projects.
If, as a result of the workshop and similar to the example
described in the paragraph above, the Navy and NMFS decide it is
appropriate to restructure the monitoring plans for multiple ranges
such that they are no longer evenly allocated (by Range Complex), but
rather focused on priority monitoring projects that are not necessarily
tied to the geographic area addressed in the rule, the ICMP will be
modified to include a very clear and unclassified recordkeeping system
that will allow NMFS and the public to see how each Range Complex/
project is contributing to all of the ongoing monitoring (resources,
effort, money, etc.).

Past Monitoring in the HRC

The proposed rule contained a detailed review of the previous
marine mammal monitoring conducted in the HRC, which was conducted in
compliance with the terms and conditions of multiple biological
opinions issued for MFAS training activities (73 FR 35510, pages 35544-
35548). No changes have been made to the discussion contained in the
proposed rule.

Adaptive Management

The final regulations governing the take of marine mammals
incidental to Navy training exercises in the HRC will contain an
adaptive management component. Our understanding of the effects of
MFAS/HFAS and explosives on marine mammals is still in its relative
infancy, and yet the science in this field continues to improve. These
circumstances make the inclusion of an adaptive management component
both valuable and necessary within the context of 5-year regulations
for activities that have been associated with marine mammal mortality
in certain circumstances and locations (though not the HRC). The use of
adaptive management will give NMFS the ability to consider new data
from different sources to determine (in coordination with the Navy) on
an annual basis if mitigation or monitoring measures should be modified
or added (or deleted) if new data suggests that such modifications are
appropriate (or are not appropriate) for subsequent annual LOAs.
Following are some of the possible sources of applicable data:
Results from the Navy's monitoring from the previous year
(either from the HRC or other locations).
Findings of the Workshop that the Navy will convene in
2011 to analyze monitoring results to date, review current science, and
recommend modifications, as appropriate to the monitoring protocols to
increase monitoring effectiveness.
Compiled results of Navy funded research and development
(R&D) studies (presented pursuant to the ICMP, which is discussed
elsewhere in this document).
Results from specific stranding investigations (either
from the HRC or other locations, and involving coincident MFAS/HFAS or
explosives training or not involving coincident use).
Results from the Long Term Prospective Study described
below.
Results from general marine mammal and sound research
(funded by

[[Page 1465]]

the Navy (described below) or otherwise).
Mitigation measures could be modified or added (or deleted) if new
data suggest that such modifications would have (or do not have) a
reasonable likelihood of accomplishing the goals of mitigation laid out
in this final rule and if the measures are practicable. NMFS would also
coordinate with the Navy to modify or add to (or delete) the existing
monitoring requirements if the new data suggest that the addition of
(or deletion of) a particular measure would more effectively accomplish
the goals of monitoring laid out in this final rule. The reporting
requirements associated with this rule are designed to provide NMFS
with monitoring data from the previous year to allow NMFS to consider
the data and issue annual LOAs. NMFS and the Navy will meet annually to
discuss the monitoring reports, Navy R&D developments, and current
science and whether mitigation or monitoring modifications are
appropriate.

Reporting

In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. Effective reporting is
critical to ensure compliance with the terms and conditions of an LOA,
and to provide NMFS and the Navy with data of the highest quality based
on the required monitoring.
As NMFS noted in its proposed rule, additional detail has been
added to the reporting requirements since they were outlined in the
proposed rule. The updated reporting requirements are all included
below. A subset of the information provided in the monitoring reports
may be classified and not releasable to the public.
NMFS will work with the Navy to develop tables that allow for
efficient submission of the information required below.

General Notification of Injured or Dead Marine Mammals

Navy personnel will ensure that NMFS (regional stranding
coordinator) is notified immediately (or as soon as operational
security allows) if an injured or dead marine mammal is found during or
shortly after, and in the vicinity of, any Navy training exercise
utilizing MFAS, HFAS, or underwater explosive detonations. The Navy
will provide NMFS with species or description of the animal(s), the
condition of the animal(s) (including carcass condition if the animal
is dead), location, time of first discovery, observed behaviors (if
alive), and photo or video (if available). The Stranding Response Plan
contains more specific reporting requirements for specific
circumstances.

Annual HRC Monitoring Plan Report

The Navy shall submit a report annually on October 1 describing the
implementation and results (through August 1 of the same year) of the
HRC Monitoring Plan, described above. Data collection methods will be
standardized across range complexes to allow for comparison in
different geographic locations. Although additional information will
also be gathered, the marine mammal observers (MMOs) collecting marine
mammal data pursuant to the HRC Monitoring Plan shall, at a minimum,
provide the same marine mammal observation data required in the MFAS/
HFAS major Training Exercises section of the Annual HRC Exercise Report
referenced below.
The HRC Monitoring Plan Report may be provided to NMFS within a
larger report that includes the required Monitoring Plan Reports from
multiple Range Complexes.

Annual HRC Exercise Report

The Navy will submit an Annual HRC Exercise Report on October 1 of
every year (covering data gathered through August 1 (or completion of
RIMPAC if later than Aug 1)). This report shall contain the subsections
and information indicated below.

MFAS/HFAS Major Training Exercises

This section shall contain the following information for Major
Training Exercises (MTEs, which include RIMPAC, USWEX, and Multi Strike
Group) conducted in the HRC:
(a) Exercise Information (for each MTE):
(i) Exercise designator.
(ii) Date that exercise began and ended.
(iii) Location.
(iv) Number and types of active sources used in the exercise.
(v) Number and types of passive acoustic sources used in exercise.
(vi) Number and types of vessels, aircraft, etc., participating in
exercise.
(vii) Total hours of observation by watchstanders.
(viii) Total hours of all active sonar source operation.
(ix) Total hours of each active sonar source (along with
explanation of how hours are calculated for sources typically
quantified in alternate way (buoys, torpedoes, etc.)).
(x) Wave height (high, low, and average during exercise).
(b) Individual marine mammal sighting info (for each sighting in
each MTE).
(i) Location of sighting.
(ii) Species (if not possible--indication of whale/dolphin/
pinniped).
(iii) Number of individuals.
(iv) Calves observed (y/n).
(v) Initial Detection Sensor.
(vi) Indication of specific type of platform observation made from
(including, for example, what type of surface vessel, i.e., FFG, DDG,
or CG)
(vii) Length of time observers maintained visual contact with
marine mammal(s).
(viii) Wave height (in feet).
(ix) Visibility.
(x) Sonar source in use (y/n).
(xi) Indication of whether animal is <200yd, 200-500yd, 500-1000yd,
1000-2000yd, or >2000yd from sonar source in (x) above.
(xiii) Mitigation Implementation--Whether operation of sonar sensor
was delayed, or sonar was powered or shut down, and how long the delay
was.
(xiv) If source in use (x) is hullmounted, true bearing of animal
from ship, true direction of ship's travel, and estimation of animal's
motion relative to ship (opening, closing, parallel)
(xv) Observed behavior--Watchstanders shall report, in plain
language and without trying to categorize in any way, the observed
behavior of the animals (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming, etc.)
(c) An evaluation (based on data gathered during all of the MTEs)
of the effectiveness of mitigation measures designed to avoid exposing
marine mammals to mid-frequency sonar. This evaluation shall identify
the specific observations that support any conclusions the Navy reaches
about the effectiveness of the mitigation.

ASW Summary

This section shall include the following information as summarized
from both MTEs and non-major training exercises (unit-level exercises,
such as TRACKEXs):
(i) Total annual hours of each type of sonar source (along with
explanation of how hours are calculated for sources typically
quantified in alternate way (buoys, torpedoes, etc.))
(ii) Total hours (from December 15 through April 15) of hullmounted
active sonar operation occurring in the dense humpback areas generally
shown on the Mobley map (73 FR 35510, page 35520)

[[Page 1466]]

plus a 5-km buffer, but not including the Pacific Missile Range
Facility. NMFS and the Navy will work together to develop the exact
boundaries of this area.
(iii) Total estimated annual hours of hull-mounted active sonar
operation conducted in Humpback Whale Cautionary area between December
15 and April 15.
(iv) Cumulative Impact Report--To the extent practicable, the Navy,
in coordination with NMFS, shall develop and implement a method of
annually reporting non-major (i.e., other than RIMPAC, USWEX, or Multi-
Strike Group Exercises) training exercises utilizing hull-mounted
sonar. The report shall present an annual (and seasonal, where
practicable) depiction of non-major training exercises geographically
across the HRC. The Navy shall include (in the HRC annual report) a
brief annual progress update on the status of the development of an
effective and unclassified method to report this information until an
agreed-upon (with NMFS) method has been developed and implemented.

SINKEXs

This section shall include the following information for each
SINKEX completed that year:
(a) Exercise info:
(i) Location.
(ii) Date and time exercise began and ended.
(iii) Total hours of observation by watchstanders before, during,
and after exercise.
(iv) Total number and types of rounds expended/explosives
detonated.
(v) Number and types of passive acoustic sources used in exercise.
(vi) Total hours of passive acoustic search time.
(vii) Number and types of vessels, aircraft, etc., participating in
exercise.
(viii) Wave height in feet (high, low and average during exercise).
(ix) Narrative description of sensors and platforms utilized for
marine mammal detection and timeline illustrating how marine mammal
detection was conducted.
(b) Individual marine mammal observation (by Navy lookouts) info.
(i) Location of sighting.
(ii) Species (if not possible--indication of whale/dolphin/
pinniped).
(iii) Number of individuals.
(iv) Calves observed (y/n).
(v) Initial detection sensor.
(vi) Length of time observers maintained visual contact with marine
mammal.
(vii) Wave height.
(viii) Visibility.
(ix) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
(x) Distance of marine mammal from actual detonations--or target
spot if not yet detonated)--use four categories to define distance: (1)
The modeled injury threshold radius for the largest explosive used in
that exercise type in that OPAREA (91 m for SINKEX in HRC); (2) the
required exclusion zone (1 nm for SINKEX in HRC); (3) the required
observation distance (if different than the exclusion zone (2 nm for
SINKEX in HRC); and (4) greater than the required observed distance.
For example, in this case, the observer would indicate if < 91 m, from
91 m--1 nm, from 1 nm--2 nm, and > 2 nm.
(xi) Observed behavior--Watchstanders will report, in plain
language and without trying to categorize in any way, the observed
behavior of the animals (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming etc.),
including speed and direction.
(xii) Resulting mitigation implementation--Indicate whether
explosive detonations were delayed, ceased, modified, or not modified
due to marine mammal presence and for how long.
(xiii) If observation occurs while explosives are detonating in the
water, indicate munition type in use at time of marine mammal
detection.

Improved Extended Echo-Ranging System (IEER) Summary

This section shall include an annual summary of the following IEER
information:
(i) Total number of IEER events conducted in the HRC.
(ii) Total expended/detonated rounds (buoys).
(iii) Total number of self-scuttled IEER rounds.

Explosives Summary

The Navy is in the process of improving the methods used to track
explosive use to provide increased granularity. To the extent
practicable, the Navy will provide the information described below for
all of their explosive exercises. Until the Navy is able to report in
full the information below, they will provide an annual update on the
Navy's explosive tracking methods, including improvements from the
previous year.
(i) Total annual number of each type of explosive exercise (of
those identified as part of the ``specified activity'' in this final
rule) conducted in the HRC.
(iii) Total annual expended/detonated rounds (missiles, bombs,
etc.) for each explosive type.

Sonar Exercise Notification

The Navy shall submit to the NMFS Office of Protected Resources
(specific contact information to be provided in LOA) either an
electronic (preferably) or verbal report within fifteen calendar days
after the completion of any major exercise (RIMPAC, USWEX, or Multi
Strike Group) indicating:
(1) Location of the exercise.
(2) Beginning and end dates of the exercise.
(3) Type of exercise (i.e., RIMPAC, USWEX, or Multi Strike Group).

HRC 5-yr Comprehensive Report

The Navy shall submit to NMFS a draft report that analyzes and
summarizes all of the multi-year marine mammal information gathered
during ASW and explosive exercises for which annual reports are
required (Annual HRC Exercise Reports and HRC Monitoring Plan Reports).
This report will be submitted at the end of the fourth year of the rule
(November 2012), covering activities that have occurred through June 1,
2012.

Comprehensive National ASW Report

By June, 2014, the Navy shall submit a draft National Report that
analyzes, compares, and summarizes the active sonar data gathered
(through January 1, 2014) from the watchstanders and pursuant to the
implementation of the Monitoring Plans the HRC, the Atlantic Fleet
Active Sonar Training, the Southern California (SOCAL) Range Complex,
the Marianas Range Complex, the Northwest Training Range, the Gulf of
Alaska, and the East Coast Undersea Warfare Training Range.
The Navy shall respond to NMFS comments and requests for additional
information or clarification on the HRC Comprehensive Report, the
Comprehensive National ASW report, the Annual HRC Exercise Report, or
the Annual HRC Monitoring Plan Report (or the multi-Range Complex
Annual Monitoring Plan Report, if that is how the Navy chooses to
submit the information) if submitted within 3 months of receipt. These
reports will be considered final after the Navy has addressed NMFS'
comments or provided the requested information, or three months after
the submittal of the draft if NMFS does not comment by then.

Comments and Responses

On June 23, 2008 (73 FR 35510), NMFS published a proposed rule in

[[Page 1467]]

response to the Navy's request to take marine mammals incidental to
military readiness training exercises in the HRC and requested
comments, information and suggestions concerning the request. During
the 30-day public comment period, NMFS received 8 comments from private
citizens, comments from the Marine Mammal Commission (MMC) and the
Office of Hawaiian Affairs, and several sets of comments from non-
governmental organizations, including, the Natural Resources Defense
Council (NRDC) (which commented on behalf of The Humane Society of the
United States, the International Fund for Animal Welfare, Cetacean
Society International, Ocean Mammal Institute, the International Ocean
Noise Coalition, Seaflow, and the Ocean Futures Society and its founder
Jean-Michel Cousteau), the Cascadia Research Collective (CRC), Ziphius
EcoServices, and Smultea Environmental Sciences, LLC. The comments are
summarized and sorted into general topic areas and are addressed below.
Full copies of the comment letters may be accessed at http://www.regulations.gov.

Monitoring and Reporting

Comment 1: One commenter stated that ``It is advisable to hold a
multi-day workshop to discuss controversial issues related to the
problem.'' The commenter further indicated that the workshop should
include representatives from the Navy, NMFS, relevant marine mammal
researchers, NGOs (e.g., NRDC), and invited experts on certain topics
of interest. The goal of the workshop should be to move towards
consensus on a way forward for the monitoring plan.
Response: NMFS believes that a workshop consisting of the Navy,
NMFS, researchers, invited experts, and other interested parties, in
combination with an adaptive management plan that allows for
modification to the monitoring plan, would provide a means for the Navy
to potentially make changes to the Monitoring Plan that would more
effectively accomplish some of the goals of monitoring set forth
earlier in the Monitoring section. NMFS and the Navy have coordinated
on this point and the Navy will convene a workshop in 2011. The
workshop and how it will interact with the adaptive management
component are discussed in the Monitoring Workshop section of this
final rule. The Monitoring Workshop participants will be asked to
submit individual recommendations to the Navy and NMFS, and both
agencies will work together to determine whether modifications to the
HRC monitoring are necessary based on the recommendations. As
necessary, NMFS would incorporate any changes into future LOAs and
future rules. However, we disagree with the commenter's suggestion that
the workshop participants seek to achieve consensus on a way forward
for the monitoring plan. NMFS has statutory responsibility to prescribe
regulations pertaining to monitoring and reporting, and will, in
coordination with the Navy, develop the most effective and appropriate
monitoring and reporting protocols for future authorizations.
Comment 2: Two commenters made several recommendations regarding
the formatting and understandability of the monitoring plan.
Response: NMFS incorporated these recommendations where
appropriate. For example, a map of the area that the ICMP covers was
added to the plan, a list of the animals in the HRC was added, and
bulleted lists will replace long paragraphs in some places. However, we
did not incorporate the commenters recommendations in all cases, for
example, the commenter recommended that a lot of the analysis contained
in the proposed rule be included in the Monitoring plan, such as a
summary of Southall et al., 2007, or the regulatory definitions of
Level A and Level B harassment, which NMFS believes would needlessly
lengthen and complicate the Plan and generally be duplicative.
Comment 3: Two commenters asked for more detail, and associated
references, in several areas of the methods sections.
Response: NMFS has provided additional detail (including citations)
concerning the survey methods used in the monitoring plan in the final
rule.
Comment 4: One commenter stated: ``The Navy improperly assumes that
they have no impact on the marine mammals. It is clear that the draft
plan begins with the assumption that the Navy has no impact on marine
mammals, or that the current mitigation is adequate to eliminate
impacts. This is not supported by facts, and it invalidates the entire
purpose of the plan. The Navy must acknowledge that sonar testing may
indeed impact marine mammals and provide references, and must be
willing to work as an active partner in a plan to investigate the
extent and severity of such impacts, and how to reduce them to
insignificant levels. Otherwise, this entire exercise is just `window
dressing' and will be a major waste of taxpayer dollars.''
Response: NMFS disagrees with this commenter's assertion. It is
possible that the commenter mistook the fact that the Navy phrased some
of their goals as null hypotheses (``If marine mammals and sea turtles
are exposed to MFAS, what are their behavioral responses? Are they
different at various levels?'') to mean that they think there are no
effects. The Navy's LOA application and EIS clearly discuss the
potential adverse effects that marine mammals may experience when
exposed to MFAS. The Navy has worked and will continue to work as an
active partner to investigate the extent and severity of the impacts
and how to reduce them (see Navy Research section of this final rule).
Comment 5: A few commenters asked why the Navy did not consider
additional survey methods, or modifications to the existing methods,
beyond those currently included in the plan, such as: Specified focal
follows of one animal before, during, and after sonar; photo-
identification of marine mammals to look at residency patterns; having
a helicopter on board, on call to opportunistically observe marine
mammals around sonar transmissions; or doing biopsy sampling to assess
stress hormones.
Response: There are a lot of different methods available with which
to monitor marine mammals and the Navy considered a wide range of
methods in the development of their plan. NMFS considered all of the
public comments (including the recommended additional survey methods)
received during this rulemaking. Some of the methods suggested by the
public, such as the photo-identification method, would likely be
feasible and provide useful information, while other methods, such as
having a helicopter on standby, would be difficult both financially and
operationally. Nevertheless, the Navy must work within the framework of
the available resources and the operational constraints associated with
doing work in the vicinity of a complex military exercise. NMFS
provided input during the development of the plan and believes that
results from the required monitoring will provide valuable information
regarding the effects of MFAS on marine mammals. Additionally, by
including the Monitoring Plan as a requirement of the LOA, NMFS is
compliant with the MMPA requirement to prescribe regulations setting
forth the requirements pertaining to the monitoring and reporting of
taking. That being said, the Navy and NMFS understand the importance of
marine mammal monitoring to determine the effects of MFAS, which is why
the Navy agreed to conduct the Workshop referred to in Comment 1 during
which the workshop participants will review

[[Page 1468]]

and assess the monitoring results (from this Monitoring Plan and others
from other Range complexes and areas) and make informed recommendations
for how to move forward with the best Monitoring strategy.
Comment 6: The Marine Mammal Commission was supportive of the use
of Adaptive Management, but wanted a more detailed implementation plan.
Response: NMFS has included additional detail regarding how
adaptive management will be implemented. Please see the Adaptive
Management, Monitoring Workshop, and Integrated Comprehensive
Monitoring Plan sections of the final rule.
Comment 7: Multiple commenters questioned whether the Marine Mammal
Observers identified in the Monitoring Plan are independent scientists
or Navy employees? Some commenters questioned the objectivity of Navy
scientists.
Response: Independent scientists will be conducting the vast
majority of the observations pursuant to the Monitoring Plan. Navy
scientists will be involved in a small portion of the field work and
some of the post-monitoring analysis. The Navy is responsible for both
the funding and implementation of a substantial amount of marine mammal
and acoustic research and NMFS has no concerns regarding the
objectivity of the reported results from either these research projects
or the monitoring required pursuant to the MMPA authorization.
Comment 8: During aerial surveys, information on headings/
orientation of animals should be collected as these data can later be
examined to assess movement/response of animals relative to locations
and received sound levels of MFAS and underwater detonations.
Response: As NMFS noted in the proposed rule, additional detail has
been added to the Reporting Requirements section of the final rule. A
requirement that Navy lookouts report the relative directions of both
the marine mammals and the sonar source has been included. NMFS also
included a requirement that the MMOs collecting data for the Monitoring
Plan collect, at a minimum, the same data outlined in the Reporting
Requirements section for the Navy lookouts.
Comment 9: One commenter was concerned that the Navy would not
begin collecting data until mid-late 2009 when the ICMP was finalized.
Response: The ICMP is an overarching framework for all of the
Navy's Range-specific MMPA Monitoring Plans and does not include a
field-work component (rather it addresses prioritization,
standardization, and summarization of actual data-gathering). The Navy
actually began doing some of the data collection in 2007 outside of the
commitments made through the HRC EIS process, and they will begin
collecting field data pursuant to the HRC-specific Monitoring Plan
shortly after the authorized exercises begin in early 2009.
Comment 10: Two commenters questioned whether the Navy had
considered whether a statistically sound sample size had been developed
to answer the questions that the monitoring is trying to answer. One
commenter stated: ``To determine the sample sizes required to assess
impacts and the validity of this monitoring effort, the statistical
power should be estimated, with a range of potential effect sizes, and
taking into account information available from previous monitoring
efforts with vessel or aerial platforms, to predict sighting rates
given the amount of effort planned. Planning on, for example, 40 hours
of aerial surveys associated with a particular exercise, is likely to
provide such small sample sizes of sightings that the power to assess
redistribution of animals may be close to zero.''
Response: The Navy will contract a team of marine mammal experts to
determine monitoring plan implementation, sample size and analysis
parameters. The data from Hawaii will be pooled (as appropriate) with
data collected from other range complexes to maximize data collection
each year. No conclusions will be made without statistically valid
sample size. Furthermore, the study designed to assess the
redistribution of animals not only uses aerial surveys, but aerial
surveys in conjunction with a passive acoustic component to include an
array of ten to fifteen autonomous acoustic recording buoys, such as a
High-frequency Acoustic Recording Package (HARP), which will be
deployed for months at a time. Using both of these methods together,
the Navy is more likely to detect a change in the distribution of
marine mammals.
Comment 11: One commenter asserts that the deployment of five
satellite tags on individuals prior to an exercise is not likely to be
sufficient to assess reactions or redistribution during the exercise.
Response: The Navy has revised the HRC Monitoring Plan such that
the goal is to tag 15 animals in FY 2010, 25 animals in FY 2011, and 30
animals in both FY 2012 and 2013.
Comment 12: One commenter stated: ``A large proportion of marine
mammals are missed in aerial surveys; this needs to be taken into
account when assessing the efficacy of using aerial surveys for
monitoring potential behavioral impacts. The fact that observers on-
board naval vessels sighted no marine mammals during USWEX 06-04 and
07-02 illustrates either that marine mammals are strongly reacting to
sounds produced by these vessels at distances far greater than the
observers are able to monitor (and are thus not being detected), or
that the on-board observer program for mitigating impacts is extremely
ineffective, contrary to the statement that `data from watchstanders is
generally useful to indicate the presence or absence of marine mammals
within the safety zones' (pg. 35547).''
Response: The Navy has considered the strengths and weaknesses of
the different marine mammal survey methods in the development of the
Monitoring Plan. In order to monitor potential behavioral effects, the
Navy's HRC Monitoring Plan outlines a study design that includes aerial
monitoring, vessel monitoring, passive acoustic monitoring, and marine
mammal tagging. NMFS disagrees with the assertion that a lack of marine
mammal sightings during two exercises means that marine mammals must be
strongly reacting at great distances--rather, it could mean that
animals are avoiding the sound at a distance beyond which the
watchstanders can see (which would not necessarily be classified as a
strong reaction), and separately, it could be a reflection of the low
marine mammal density in offshore Hawaii (also--we note that in some
cases lookouts were only required to report the marine mammals that
were detected within 2000 m--so other animals may have been detected at
greater distances, but not reported. That issue has been corrected in
the current reporting requirements, which require lookouts to report
all sightings). The mitigation powerdown and shutdown zones are
relatively close to the ship (1000, 500, and 200 yd) and there is no
indication that lookouts are missing animals that are visibly
detectable within these distances--Navy After Action Reports show
anywhere from 0 to 26 marine mammal sightings in Hawaii for one
exercise, and up to 133 sightings during an exercise in California, and
report many sonar shutdowns (often when animals are much farther from
the source than the distance at which shutdowns are required).
Nonetheless, the Navy's Monitoring Plan includes a study designed to
compare the detection rate of Navy lookouts (who are responsible for
detecting marine mammals for mitigation

[[Page 1469]]

implementation) to scientifically trained marine mammal observers.
Comment 13: One commenter noted: ``The location of the Navy's
training exercises are highly variable, with the exception of the
Navy's ranges (PMRF, etc.)'' This commenter further asked if these
ranges are being studied and whether there are fewer marine mammals in
frequently used ranges than one might expect.
Response: The PMRF does not have one of prototype systems being
tested at both the SOAR (Southern California Range Complex) and AUTEC
(Bahamas) ranges. This prototype system being tested at SOAR and AUTEC
currently has a limited ability to detect and localize a few numbers of
two species of beaked whales of marine mammals in real time. At PMRF,
data collected from range hydrophones have observed over 100,000
acoustic detections per hour and, on some, over 6 million acoustic
detections in one day. This acoustic data may suggest more marine
mammals present than expected (based on current stock assessment
numbers). The range at PMRF is not currently being utilized for the
analysis of marine mammal behavior during training exercises. The HRC
Monitoring Plan does not contain a specific monitoring component for
PMRF. It is difficult to make inferences regarding the reasons for
marine mammal use (i.e., the number of animals) in any particular area
with focused anthropogenic activities if observations were not made
prior to the focused human activities. However, for the East Coast
Undersea Warfare Training Range Complex (USWTR), the Navy has developed
and implemented a monitoring plan that is surveying for marine mammals
years in advance of the construction of the Range (which consists
primarily of a large array of hydrophones) so that the abundance and
distribution of marine mammals can be compared before and after the
construction and operation of the Range.

Mitigation

Comment 14: One commenter asserts that NMFS' analysis ignores or
improperly discounts an array of options that have been considered and
imposed by other active sonar users, including avoidance of coastal
waters, high-value habitat, and complex topography; the employment of a
safety zone more protective than the 1000-yard power-down and 200-yard
shutdown accepted by NMFS; general passive acoustic monitoring for
whales; special rules for surface ducting and low-visibility
conditions; monitoring and shutdown procedures for sea turtles and
large schools of fish; and many others. The commenter further provides
a detailed list of 30 additional measures that should be considered.
Other commenters made additional recommendations of mitigation measures
that should be considered.
Response: NMFS considered a wide range of mitigation options in our
analysis, including those listed by the commenters. In order to issue
an incidental take authorization (ITA) under Section 101(a)(5)(A) of
the MMPA, NMFS must set forth the ``permissible methods of taking
pursuant to such activity, and other means of affecting the least
practicable adverse impact on such species or stock and its habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.'' The National Defense Authorization Act (NDAA)
of 2004 amended the MMPA as it relates to military-readiness activities
(which these Navy activities are) and the incidental take authorization
process such that ``least practicable adverse impact'' shall include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the ``military readiness activity''.
NMFS worked with the Navy to identify practicable and effective
mitigation measures, which included a careful balancing of the likely
benefit of any particular measure to the marine mammals with the likely
effect of that measure on personnel safety, practicality of
implementation, and impact on the ``military-readiness activity''. NMFS
developed an Environmental Assessment (EA) specifically to help analyze
the available mitigation measures in regard to potential benefits for
marine mammals (see goals of mitigation in the Mitigation section of
this proposed rule) and practicability for the Navy. That EA, which
considered all of the measures recommended by these public comments, is
currently available on the NMFS Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications).
Comment 15: One commenter stated: ``The Navy should conduct long-
term research on the distribution, abundance, and population
structuring of protected species in the HRC. They should also conduct
research and development of technologies to reduce the impacts of
active acoustic sources on marine mammals.''
Response: The MMPA does not require that individuals who have
received an incidental take authorization conduct research. However,
the Navy has voluntarily developed and funded a number of research
plans that are designed to address the issues raised by the commenter
(see Research section).
Comment 16: One commenter asked whether the Navy intends to
forewarn marine mammals by using small explosions or noise so that
marine mammals would not be exposed to hazardous detonations.
Response: No. However, there are range clearance procedures to
minimize the likelihood that animals would be exposed to hazardous
levels of sound or pressure (see Mitigation section).
Comment 17: The marine species awareness training (MSAT) should be
updated more often. So little is known about effects of sonar and
underwater noise, and ongoing research constantly changes assumptions.
NMFS, not the Navy, should decide when updates are ``appropriate.''
Response: The Navy solicited input from NMFS on the MSAT training,
initially, and NMFS will continue to make recommendations regarding the
MSAT training, as appropriate. However, a large portion of the
information contained in the training is of a general nature that does
not necessarily require frequent updates.
Comment 18: One commenter asked about the duration of a lookout's
shift and was concerned that lookouts may fatigue quickly.
Response: Navy lookouts are critical to both training and
operational success, as well as personnel safety. The Navy takes the
potential fatigue of the lookout into consideration when scheduling
them. A typical lookout shift is 4 hours, with the lookout rotating
into a different location every 1 hour. NMFS does not believe that
fatigue would set in within this relatively short time and typically
recommends no longer than a 4-hour shift for marine mammal observers.
Comment 19: NRDC recommends prescription of specific mitigation
requirements for individual categories (or sub-categories) of testing
and training activities, in order to maximize mitigation given varying
sets of operational needs. Also, the Navy should require that other
nations abide by U.S. mitigation measures when training in the HRC,
except where their own measures are more stringent.
Response: The Navy's standard protective measures include measures
that are specific to certain categories of activities. For example,
different exclusion zones are utilized for hull-mounted sonar and
dipping sonar, and different range clearance procedures are used for
SINKEXs and IEER exercises. Pursuant to the Navy's 2000 Policy for
Environmental Compliance at Sea, when foreign navies participate in

[[Page 1470]]

exercises with the U.S. Navy, the U.S. Navy provides them with the
mitigation requirements (under the MMPA and ESA) and strongly
encourages foreign navies to implement the mitigation requirements.
Comment 20: The Marine Mammal Commission recommends that, if the
National Marine Fisheries Service issues a final rule to authorize the
taking of small numbers of marine mammals incidental to the proposed
military training operations, the Navy be required to:
Explain all analytical procedures and provide all data
used to estimate take levels in sufficient detail that reviewers can
understand, reconstruct, and verify the estimated risks;
Calibrate and verify the performance of the proposed
visual and passive acoustic monitoring programs before operations begin
so that all interested parties can evaluate the effectiveness of the
mitigation measures;
Retain the power-down or shutdown period of 30 minutes for
most marine mammals, expand it to 60 minutes for deep-diving species,
and provide follow-up data on the effectiveness and costs associated
with this mitigation measure;
Suspend activities if a beaked whale or other marine
mammal is killed or seriously injured and the death or injury appears
to be associated with that activity, and resume the activity only after
a review by the Service of the circumstances of the death or injury and
the Navy's plans for avoiding additional incidents; and
Provide a release date for the comprehensive report of
monitoring and watchstander data from operations in the HRC, the
Southern California Range Complex, and Atlantic Fleet Active Sonar
Training activities.
Response: Following are the responses to the MMCs bulleted
recommendations:
NMFS believes that Appendix J of the Navy's HRC EIS (which
is referenced in the rule) adequately explains the analytical
procedures and provides the data used to estimate take levels in
sufficient detail that the reviewers can understand and verify the
estimated risks. However, reviewers would not be able to reconstruct
the process exactly because inherent to the overall exposure model is
the CASS/GRAB submodel, the specific details of which cannot be
included in the EIS because the model is a Navy owned, restricted
distribution model available only to U.S. Government Agencies and their
contractors. This high fidelity acoustic propagation model (CASS/GRAB)
used for marine mammal effects analysis is the same model used for the
operational use of tactical sonar, and it is included in the Navy's
Oceanographic and Atmospheric Master Library (OAML), which has a
rigorous acceptance process for all databases, models and algorithms
prior to being accepted into OAML.
Navy lookouts are specifically trained to detect anomalies
in the water around the ship and both the safety of Navy personnel and
success in the training exercise depend on the lookout being able to
detect objects (or marine mammals) effectively around the ship. NMFS
has reviewed the Navy's After Action Reports from previous exercises
and they show that lookouts are detecting marine mammals, and
implementing sonar shutdowns as required when they do. That said, the
HRC Monitoring Plan contains a study in which Navy lookouts will be on
watch simultaneously with non-Navy marine mammal observers and their
detection rates will be compared. The Navy's HRC Monitoring Plan
contains a segment that will compare the detection capabilities of Navy
watchstanders to non-Navy marine mammal observers. The passive acoustic
systems used to assist with marine mammal detection are the same
systems used in the tactical training, and their performance must be
regularly calibrated and verified in order to be effectively used in
the training exercises. Additionally, the regulations and subsequent
authorization would require the Navy to provide ``an evaluation (based
on data gathered during all of the major training exercises) of the
effectiveness of mitigation measures designed to avoid exposing marine
mammals to mid-frequency sonar. This evaluation shall identify the
specific observations that support any conclusions the Navy reaches
about the effectiveness of the mitigation included in the
authorization.'' Last, the rule contains an adaptive management
component that specifies that NMFS and the Navy will meet on an annual
basis to evaluate the Navy Reports (on both Navy lookout observations
as well as Monitoring Plan reporting) and other new information (such
as Navy R & D developments or new science) to ascertain whether
mitigation or monitoring modifications are appropriate.
NMFS does retain the power-down or shutdown period of 30
minutes for most marine mammals, but does not concur with the MMC that
we should expand the delay (until sonar can be restarted after a
shutdown due to a marine mammal sighting) to 60 minutes for deep-diving
species for the following reasons:
Just because an animal can dive for longer than 30 minutes
does not mean that they always do, so the 60 minute delay would only
potentially add value in instances when animals had remained under
water for more than 30 minutes.
Navy vessels typically move at 10-12 knots (5-6 m/sec)
when operating sonar and potentially much faster when not. Fish et. al.
(2006) measured speeds of 7 species of odontocetes and found that they
ranged from 1.4-7.30 m/sec. Essentially, if a vessel was moving at the
typical sonar speed, or faster, an animal would need to be swimming
near max speed for an hour to stay within the safety zone of a vessel.
This further narrows the circumstances in which the 60-minute delay
would add value.
Additionally, the animal would need to have stayed in the
immediate vicinity of the sound source for an hour. Considering the
maximum area that both the vessel and the animal could cover in an
hour, it is improbable that this would randomly occur. Moreover,
considering that many animals have been shown to avoid both acoustic
sources and ships without acoustic sources, it is improbable that a
deep-diving cetacean (as opposed to a dolphin that might bow ride)
would choose to remain in the immediate vicinity of the source. NMFS
believes that it is unlikely that a single cetacean would remain in the
safety zone of a Navy sound source for more than 30 minutes.
Last, in many cases, the lookouts are not able to
differentiate species to the degree that would be necessary to
implement this measure. Plus, Navy operators have indicated that
increasing the number of mitigation decisions that need to be made
based on biological information is more difficult for the lookouts
(because it is not their area of expertise). In this case NMFS does not
believe that it will add to the protection of marine mammals in the
vast majority of cases, and therefore we have not required it.
NMFS is requiring the Navy to abide by a Stranding
Response Plan (viewable at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications) that clearly lays out the steps the Navy
would take in the event of a stranding and summarizes how NMFS plans to
handle the investigation in a timely manner. In the event of a live
stranding, there is a 14-nm area around the animals in which the Navy
will not operate sonar--to ensure that the distressed animals are not
put at further risk. In the event of a stranding involving dead
animals--NMFS' investigation will ideally include an

[[Page 1471]]

aerial survey to ensure that additional animals are not stranded in the
vicinity. However, if the stranded animals are dead, the Navy will not
be required to shut down. It is not possible to immediately determine
whether sonar contributed to a marine mammal stranding and
investigations into the cause of death of stranded marine mammals take
months or more to complete, and are often inconclusive. It would be
impracticable to delay the Navy's training activities for an
indeterminate amount of time when we have no idea if their action
contributed to the stranding. That said, NMFS and the Navy are
committed to fully investigating strandings that occur coincident with
major Navy training exercises and to using any information gathered in
the implementation of adaptive management.
Comment 21: The Navy should apply mitigation prescribed by the
Hawaii Office of Planning and other state regulators, by the courts, by
other navies or research centers, or by the U.S. Navy in the past or in
other contexts. In addition, the Navy should engage in timely and
regular reporting to NOAA, state coastal management authorities, and
the public to describe and verify use of mitigation measures during
testing and training activities.
Response: NMFS (with input from the Navy) has considered
recommendations that have been received from the sources the commenter
cites above. As mentioned in the response to Comment 14, NMFS developed
an Environmental Assessment (EA), which is available at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications, specifically
to help analyze the available mitigation measures in regard to
potential benefits for marine mammals (see goals of mitigation in the
Mitigation section of this proposed rule) and practicability for the
Navy. The Navy will be required to submit annual reports and these
reports will be made available to the public upon the Notice to the
public (in the Federal Register) of the issuance of subsequent LOAs.
The reports will include a description of the mitigation measures
implemented during major exercises and will also include an evaluation
of the effectiveness of any mitigation measure implemented.

Acoustic Threshold for Behavioral Harassment

Comment 22: The NRDC submitted a comprehensive critique of the risk
function (authored by Dr. David Bain), which NMFS has posted on our Web
site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications).
NRDC summarized some general limitations of the risk function and
included a fairly detailed critique of the specific structure of and
parameters chosen for use in the model. Following are some of the
general topics addressed in the letter:
Factors that Dr. Bain thinks should be addressed by the
model, such as social interactions and multiple sources.
Critique of the datasets that NMFS used to populate the
risk function (described Level B Harasssment--Risk Function section of
the proposed rule): (1) Controlled Laboratory Experiments with
Odontocetes (SSC Dataset); (2) Mysticete Field Study (Nowacek et. al.,
2004), and (3) Odontocet Field Data (Haro Strait--USS Shoup).
Consideration of some datasets that were considered by
NMFS, but not used in the risk function.
A critique of the parameters (A, B, and K) used in the
risk function.
A sensitivity analysis of the parameters (i.e., takes were
modeled while applying variable values for the A, B, and K values).
Dr. Bain included a summary of his concerns and an abbreviated
version is included below. Additionally (and not included in the
summary), Dr. Bain suggested that the effect of multiple sources may be
both different and greater than the effects of fewer sources and
provided supporting examples.
Dr. Bain's Summary follows (comments that were in Dr. Bains
summary, but have been addressed elsewhere in this Comment Response
section, are not included below):
In summary, development of a function that recognizes
individual variation is a step in the right direction.
The selected equation is likely to produce underestimates
of takes due to asymmetries in the number of individuals affected if
parameters are either underestimated or overestimated due to
uncertainty. Thus it will be important to use the risk function in a
precautionary manner.
The sensitivity analysis reveals the importance of using
as many datasets as possible. First, for historical reasons, there has
been an emphasis on high energy noise sources and the species tolerant
enough of noise to be observed near them. Exclusion of the rarer
datasets demonstrating responses to low levels of noise biases the
average parameter values, and hence underestimates effects on sensitive
species.
A similar mistake was made with the right whale data. The
level at which 100 percent of individuals responded was used as the
value at which 50 percent of individuals responded (B+K). Likewise, the
level at which 100 percent of killer whales responded to mid-frequency
sonar is less than the value derived for B+K in the HRC SDEIS (Dept.
Navy 2008b).
It is likely that biological B values should be in the
range from just detectable above ambient noise to120 dB re 1 [mu]Pa.
The resulting mathematical B value could be tens of dB lower, not the
120 dB re 1 [mu]Pa proposed. For many species, risk may approach 100
percent in the range from 120-135 dB re 1 [mu]Pa, putting K in the 15-
45 dB range.
The A values do not seem well supported by the data, and
in any case, are likely to be misleading in social species as the risk
function is likely to be asymmetrical with a disproportionate number of
individuals responding at low noise levels. Rather than one equation
fitting all species well, parameters are likely to be species typical.
As realistic parameter values are lower than those
employed in the HRC SDEIS (Dept. Navy 2008b), AFAST DEIS (Dept. Navy
2008a) and related DEIS's, take numbers should be recalculated to
reflect the larger numbers of individuals likely to be taken. The
difference between the parameter values estimated here and those used
in the SDEIS suggests takes were underestimated by two orders of
magnitude.
Response: Many of the limitations outlined in Dr. Bains document
were raised by other commenters and are addressed elsewhere in this
Comment and Response Section and will not be raised and addressed again
here. Below, NMFS responds to the specific points summarized above.
The effects of multiple sources: Mathematically, the
Navy's exposure model has already accounted for takes of animals
exposed to multiple sources in the number of estimated takes. NMFS
concurs with the commenter, however, in noting that the severity of
responses of the small subset of animals that are actually exposed to
multiple sources simultaneously could potentially be greater than
animals exposed to a single source due to the fact that received level,
both SPL and SEL, would be slightly higher and because contextually it
could be perceived as more threatening to an animal to receive multiple
stimuli coming from potentially multiple directions at once (for
example, marine mammals have been shown to respond more severely to
sources coming directly towards them, vs. obliquely (Wartzok, 2004)).
However, it is also worth noting that according to information provided
by the Navy, surface vessels do not typically operate closer than 10-20

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miles from another surface vessel (and greater distance is ideal), and
other sonar sources, such as dipping sonar and sonobuoys, are almost
always used 20 or more miles away from the surface vessel. This means
that if the two most powerful sources were operating at the closest
distance they are likely to (10 miles), in the worst case scenario,
animals that would have been exposed to 150 dB SPL or less (taken from
table 16 of the proposed rule) may be exposed to slightly higher levels
or to similar levels or less coming from multiple directions.
Underestimates of takes due to asymmetries in the number
of individuals affected when parameters are underestimated and
overestimated due to uncertainty: The commenter's point is
acknowledged. When a sensitivity analysis is conducted and parameters
are varied (both higher and lower values used)--the degree of
difference in take estimates is much greater when the parameter is
adjusted in one direction than in the other, which suggests that the
way that this generalized model incorporates uncertainty may not be
conservative. However, in all cases when the adjustment of the
parameter in a certain direction results in a disproportionately (as
compared to an adjustment in the other direction) large increase in the
number of takes, it is because the model is now estimating that a
larger percentage of animals will be taken at greater distances from
the source. This risk function is based completely on the received
level of sound. As discussed in the proposed rule, there are other
contextual variables that are very important to the way that an animal
responds to a sound, such as nearness of the source, relative movement
(approaching or retreating), or the animals familiarity with the
source. Southall et al. (2007) indicates that the presence of high-
frequency components and a lack of reverberation (which are indicative
of nearness) may be more relevant acoustic cues of spatial relationship
than simply exposure level alone. In the HRC, an animal exposed to
between 120 and 130 dB may be more than 65 nm from the sonar source.
NMFS is not aware of any data that describe the response of any marine
mammals to sounds at that distance, much less data that indicate that
an animal responded in a way we would classify as harassment at that
distance. Because of this, NMFS does not believe it is currently
possible or appropriate to modify the model to further address
uncertainty if doing so results in the model predicting that much
larger numbers of animals will be taken at great distances from the
source when we have no data to suggest that that would occur.
Using many datasets: NMFS has explained both in the rule,
and then again elsewhere in these comments, why we chose the three
datasets we did to define the risk function. As Dr. Bain points out,
there are datasets that report marine mammal responses to lower levels
of received sound. However, because of the structure of the curve NMFS
is using and what it predicts (Level B Harassment), we need datasets
that show a response that we have determined qualifies as harassment
(in addition to needing a source that is adequately representative of
MFAS and reliable specific received level information), which many of
the lower level examples do not.
50-percent vs. 100-percent response: Dr. Bain asserts that
two of the three datasets (Nowacek et. al., 2004 and Haro Strait--USS
SHOUP) that NMFS uses to derive the 50-percent response probability in
the risk function actually report a 100-percent response at the
indicated received levels. For the Haro Strait dataset, a range of
estimated received levels at the closest approach to the J Pod were
estimated. Given that neither the number of individual exposures or
responses were available, the mean of this range was used as a
surrogate for the 50-percent response probability in the development of
the risk function. For the Nowacek data, NMFS used 139.2 dB, which is
the mean of the received levels at which 5 of 6 animals showed a
significant response to the signal. However, viewed another way, of 6
animals, one animal did not respond to the signal and the other five
responded at received levels of 133 dB, 135 dB, 137 dB, 143 dB, and 148
dB, which means that 3 of the 6 animals (50 percent) showed a
significant response at 139.2 dB or less.
120 dB basement value: When the broad array of data
reported from exposures across taxa and to varied sources are reviewed,
NMFS believes that 120 dB is an appropriate B value for a curve
designed to predict responses that rise to the level of an MMPA
harassment (not just any response). The available data do not support
the commenter's assertion that risk may approach 100 percent in the
range from 120-135 dB for many species. For example, the Southall et
al. (2007) summary of behavioral response data clearly shows, in almost
every table (for all sound types), reports of events in which animals
showed no observable response, or low-level responses NMFS would not
likely consider harassment, in the 120 to 135-dB range. For the species
(the harbor porpoise) for which the data do support that assertion,
which the Southall et al. (2007) paper considers ``particularly
sensitive'', NMFS has implemented the use of a species-specific step
function threshold of 120 dB SPL.
The A value: Please see the second bullet of this response
for the first part of the answer. NMFS concurs with the commenter that
species-specific parameters would likely be ideal, however there are
not currently enough applicable data to support separate curves for
each species. We note, though, that even with species-specific
parameters, the context of the exposure will still likely result in a
substantive variability of behavioral responses to the same received
level by the same species.
Recalculation: For the reasons described in the bullets
above in this response, NMFS disagrees with the commenter's assertion
that the parameters used in the proposed rule and the EIS are
unrealistic and that they result in take estimates that are too small
by two orders of magnitude. We do not believe that a recalculation is
necessary.
The science in the field of marine mammals and underwater sound is
evolving relatively rapidly. NMFS is in the process of revisiting our
acoustic criteria with the goal of developing a framework (Acoustic
Guidelines) that allows for the regular and defensible incorporation of
new data into our acoustic criteria. We acknowledge that this model has
limitations, however, they are primarily based on the lack of
applicable quantitative data. We believe that the best available
science has been used in the development of the criteria used in this
and other concurrent Navy rules and that this behavioral harassment
threshold far more accurately represents the number of marine mammals
that will be taken than the criteria used in the RIMPAC 2006
authorization. We appreciate the input from the public and intend to
consider it further as we move forward and develop the Acoustic
Guidelines.
Comment 23: One commenter expressed the concern that NMFS blindly
relies on TTS studies conducted on 7 captive animals of two species (to
the exclusion of copious data on animals in the wild) as a primary
source of data for the behavioral harassment threshold. The commenter
further asserts that these studies (on highly trained animals that do
not represent a normal range of variation within their own species, as
they have been housed in a noisy bay for most of their lives)

[[Page 1473]]

have major deficiencies, which NMFS ignores by using the data.
Response: As mentioned in Comment 22, the SSC Dataset (Controlled
Laboratory Experiments with Odontocetes) is not the primary source of
data for the behavioral harassment threshold, it is one of three
datasets (other two datasets are from wild species exposed to noise in
the field) treated equally in the determination of the K value (equates
to midpoint) of the behavioral risk function. NMFS recognizes that
certain limitations may exist when one develops and applies a risk
function to animals in the field based on captive animal behavioral
data. However, we note that for the SSC Dataset: (1) Researchers had
superior control over and ability to quantify noise exposure
conditions; (2) behavioral patterns of exposed marine mammals were
readily observable and definable; and, (3) fatiguing noise consisted of
tonal noise exposures with frequencies contained in the tactical mid-
frequency sonar bandwidth. NMFS does not ignore the deficiencies of
these data, rather we weighed them against the value of the data and
compared the dataset to the other available datasets and decided that
the SSC dataset was one of the three appropriate datasets to use in the
development of the risk function.
Comment 24: NMFS fails to include data from the July 2004 Hanalei
Bay event, in which 150-200 melon-headed whales were embayed for more
than 24 hours during the Navy's Rim of the Pacific exercise. According
to the Navy's analysis, predicted mean received levels (from mid-
frequency sonar) inside and at the mouth of Hanalei Bay ranged from
137.9 dB to 149.2 dB. NMFS' failure to incorporate these numbers into
its methodology as another data set is not justifiable.
Response: NMFS' investigation of the Hanalei event concluded that
there was insufficient evidence to determine causality. There are a
number of uncertainties about sonar exposure and other potential
contributing factors and assumptions inherent to a reconstruction of
events in which sonar was the causative agent that simply preclude this
determination. Because of this, NMFS did not use the numbers (137.9-
149.2 dB) in our methodology. Additionally, even if NMFS had concluded
that MFAS were the causative agent, insufficient evidence exists
regarding the received level when the animals responded (there is no
information regarding where they were when they would have first heard
the sound).
Comment 25: One commenter stated ``NMFS excludes a substantial body
of research on wild animals (and some research on other experimental
animals as well, within a behavioral experimental protocol). Perhaps
most glaringly, while the related DEIS prepared for the Navy's Atlantic
Fleet Active Sonar Training activities appears to acknowledge the
strong sensitivity of harbor porpoises by setting an absolute take
threshold of 120 dB (SPL)--a sensitivity that, as NMFS has noted, is
reflected in numerous wild and captive animal studies--the agencies
improperly fail to include any of these studies in their data set. The
result is clear bias, for even if one assumes (for argument's sake)
that the SPAWAR data has value, NMFS has included a relatively
insensitive species in setting its general standard for marine mammals
while excluding a relatively sensitive one.''
Response: As explained in the Level B Harassment (Risk Function)
section of the proposed rule the risk function is based primarily on
three datasets (SSC dataset, Nowacek et al. (2004), and Haro Strait--
USS SHOUP) in which marine mammals exposed to mid-frequency sound
sources were reported to respond in a manner that NMFS would classify
as Level B Harassment. NMFS considered the ``substantial body of
research'' that the commenter refers to but was unable to find other
datasets that were suitable in terms of all of the following: The
equivalency of the sound source to MFAS, a reported behavioral response
that NMFS would definitively consider Level B Harassment, and a
received level reported with high confidence. The SSC dataset is only
one of three used and, in fact, the other 2 datasets (which are from
wild animals--killer whales and North Atlantic right whales) both
report behavioral responses at substantively lower levels (i.e., the
``relatively insensitive'' species is not driving the values in the
function).
Separately, combined wild and captive data support the conclusion
that harbor porpoises (high-frequency hearing specialists) are quite
sensitive to a variety of anthropogenic sounds at very low exposures
(Southall et al., 2007). Southall et al. (which refer to harbor
porpoises as particularly sensitive species) report that all recorded
exposures exceeding 140 dB SPL induced profound and sustained avoidance
behavior in wild harbor porpoises. Unlike for the mid-frequency and
low-frequency species, there are also no reported instances where
harbor porpoises were exposed to higher levels and did not have a high
response score. For these reasons, harbor porpoises are considered
especially sensitive and NMFS determined that it is appropriate to
apply a more conservative threshold.
Comment 26: The risk function must take into account the social
ecology of some marine mammal species. For species that travel in
tight-knit groups, an effect on certain individuals can adversely
influence the behavior of the whole. Should those individuals fall on
the more sensitive end of the spectrum, the entire group or pod can
suffer significant harm at levels below what the Navy would use as the
mean. In developing its ``K'' parameter, NMFS must take account of such
potential indirect effects.
Response: The risk function is intended to define the received
level of MFAS at which exposed marine mammals will experience
behavioral harassment. The issue the commenter raises is related to the
Navy's exposure model--not the risk function. However, because of a
lack of related data there is no way to numerically address this issue
in the model. Although the point the commenter raises is valid, one
could also assert that if certain animals in a tight knit group were
less sensitive it would have the opposite effect on the group.
Additionally, the modeling is based on uniform marine mammal density
(distributed evenly over the entire area of potential effect), which
does not consider the fact that marine mammals appearing in pods will
be easier to detect and, therefore, the Navy will be more likely to
implement mitigation measures that avoid exposing the animals to the
higher levels received within 1000m of the source.
Comment 27: NMFS' threshold is applied in such a way as to preclude
any assessment of long-term behavioral impacts on marine mammals. It
does not account, to any degree, for the problem of repetition: the way
that apparently insignificant impacts, such as subtle changes in dive
times or vocalization patterns, can become significant if experienced
repeatedly or over time.
Response: NMFS threshold does not preclude any assessment of long-
term behavioral impacts on marine mammals. The threshold is a
quantitative tool that NMFS uses to estimate individual behavioral
harassment events. Quantitative data relating to long-term behavioral
impacts are limited, and therefore NMFS' assessment of long-term
behavioral impacts is qualitative in nature (see Diel Cycle section in
Negligible Impact Analysis section). NMFS analysis discusses the
potential significance of impacts that continue more than 24 hours and/
or are repeated on subsequent days and, though it does

[[Page 1474]]

not quantify those impacts, further indicates that these types of
impacts are not likely to occur because of the nature of the Navy's
training activities and the large area over which they are conducted.
Comment 28: One commenter noted that the threshold used in the
Proposed Rule differs from the one used by the Navy to estimate marine
mammal take during previous exercises (i.e., instead of using an energy
level (EL) standard of 173 dB re 1 microPa\2\s, NMFS applies a
pressure (SPL)-based dose-response function that begins at 120 dB re 1
microPa and reaches its mean at 165 dB re 1 [mu]Pa). The commenter was
concerned that under 173 dB (EL) threshold, the RIMPAC 2006 event was
expected to result in slightly less than 33,000 behavioral takes of
marine mammals--while under the risk function, RIMPAC events conducted
with the same number of hours of sonar use would supposedly cause fewer
than 6,000 takes. The commenter requests that NMFS provide a take
estimate using the 173 dB (EL) standard.
Response: NMFS develops and implements thresholds based on the best
available science, not on how changing the threshold will affect the
number of estimated takes. As described in the proposed rule, the
decision to use a risk continuum approach instead of a step function
was based on the fact that behavioral responses are very individual and
context-specific and a risk function allows for this variation to be
considered in the take estimate, versus a step function, which assumes
that every animal will be harassed at the same received level in every
situation. Although both SPL and SEL are valuable metrics for
predicting the behavioral responses of marine mammals to sound, SPL is
currently the best metric with which to assess the available behavioral
response data because it is the metric that has most often been
measured or estimated during behavioral disturbance studies (Southall
et al., 2007). Additionally, SEL is more difficult to estimate in the
field than SPL. Regarding the decrease in the number of estimated takes
for current RIMPAC exercises as compared to RIMPAC 2006, NMFS notes the
following items, other than the new threshold, that have contributed to
the reduction in the take estimate:
The RIMPAC 2006 take estimate was calculated for 532 hours
of sonar, while the current RIMPAC estimate is based on 399 hours of
sonar.
In 2006, the Navy model did not subtract out the land mass
area when multiplying the ensonified area by the animal density to
determine the estimated marine mammal exposures. Currently, the Navy
has implemented a post-modeling calculation that allows them to account
for that.
For the 2006 RIMPAC, all of the surface vessel sonar hours
were modeled as using the 53C hull-mounted sonar source, though both
53C and 56C sources are used in Hawaii. The 56C hull-mounted sonar
source is typically operated at 10 dB SPL lower source level than the
53C sonar source (225 vs. 235 dB), which means that the horizontal
ensonified area around the source is at least 10 times smaller--which
translates to substantially fewer animals exposed to received sound
levels associated with MMPA takes. In modeling impacts for this
rulemaking, the Navy more accurately modeled both 53C and 56C sonar
sources in the exposure analysis, which contributes to the more
realistic lower take estimate.
Currently, the Navy applies marine mammal depth profiles
to the take estimate that allows for consideration of where in the
water column marine mammals are likely to be in relation to the
propagated sound. Alternatively, in 2006, marine mammals were only
distributed 2-dimensionally, which meant that an exposed animal was
always counted as having been exposed to whatever the highest level of
sound in the entire vertical water column was.
NMFS will continue to evaluate new science and thresholds will
likely evolve gradually in response to applicable data. Requiring the
Navy to calculate take estimates based on an outdated threshold would
cost the Navy unnecessary resources and would not result in any added
value to the effects analysis or the protection of marine mammals.
Comment 29: ``NMFS appears to have misused data garnered from the
Haro Strait incident--one of only three data sets it considers--by
including only those levels of sound received by the `J' pod of killer
whales when the USS Shoup was at its closest approach. These numbers
represent the maximum level at which the pod was harassed; in fact, the
whales were reported to have broken off their foraging and to have
engaged in significant avoidance behavior at far greater distances from
the ship, where received levels would have been orders of magnitude
lower. We must insist that NMFS provide the public with the Navy's
propagation analysis for the Haro Strait event, which it used in
preparing its 2005 Assessment of the incident.''
Response: NMFS used the levels of sound received by the ``J'' pod
when the USS Shoup was at its closest approach because a review of the
videotapes and other materials by NMFS detailing the behavior of the
animals in relation to the location of the Navy vessels showed that it
was after the closest approach of the vessel that the whales were
observed responding in a manner that NMFS would classify as
``harassed''. Though animals were observed potentially responding to
the source at greater distances, NMFS scientists believed that the
responses observed at greater distances were notably less severe and
would not rise to the level of an MMPA harassment. Though the received
levels observed in relation to the lesser responses could be used in
some types of analytical tools, the risk continuum specifically
requires that we use received sound levels that are representative of
when an MMPA harassment occurred. The Navy's report may be viewed at:
http://www.acousticecology.org/docs/SHOUPNavyReport0204.pdf.

Acoustic Threshold for TTS

Comment 30: NRDC argues that a 190 dB re 1 [mu]Pa\2\-s TTS
threshold would have ``fit the applicable data'' better than the 195-dB
threshold (i.e., the data better support a 190-dB TTS threshold) NMFS
and the Navy have established for MFAS and would have had the advantage
of being marginally more conservative given the enormous uncertainties
surrounding the effects of mid-frequency sonar on marine mammals.
Response: The most recent and best available scientific
information, i.e., Southall et al. (2007), support the application of
the 195-dB SEL TTS-onset threshold for cetaceans and non-pulse sounds
(such as MFAS). Published TTS data are limited to bottlenose dolphin
and beluga (six publications); however, in order to be precautionary,
where data exist for both species, the authors use the more
conservative result (usually for beluga) to represent TTS-onset for all
mid-frequency cetaceans. NMFS scientists and the authors of Southall et
al. (2007) believe that the existing data support a 195-dB threshold.

Acoustic Threshold for Injury

Comment 31: One commenter stated that: ``The take estimates do not
reflect other non-auditory physiological impacts, as from stress and
from chronic exposure''.
Response: The commenter is correct, the Navy's estimated take
numbers do not reflect non-auditory physiological impacts because the
quantitative data necessary to address those factors in the exposure
model do not exist. However, NMFS acknowledges that a subset of the

[[Page 1475]]

animals that are taken by Harassment will also likely experience non-
auditory physiological effects and these effects are addressed in the
proposed rule (see Stress Responses section).
Comment 32: The Navy's exclusive reliance on energy flux density as
its unit of analysis does not take other potentially relevant acoustic
characteristics into account. Reflecting this uncertainty, the Navy
should establish a dual threshold for marine mammal injury.
Response: NMFS currently uses the injury threshold recommended by
Southall et al. (2007) for MFAS. Specifically, NMFS uses the 215-dB SEL
sound exposure level threshold (the commenter refers to it as energy
flux density level). Southall et al. (2007) presents a dual threshold
for injury, which also includes a 230-dB peak pressure level threshold.
NMFS discussed this issue with the Navy early in the MMPA process and
determined that the 215-dB SEL injury threshold was the more
conservative of the two thresholds (i.e., the 230-dB peak pressure
threshold occurs much closer to the source than the 215-dB SEL
threshold) and therefore it was not necessary to consider the 230-dB
peak pressure threshold further. For example, an animal will be within
the 215-dB SEL threshold and counted as a take before it is exposed to
the 230-dB threshold. NMFS concurs with Southall et al. (2007), which
asserts that for an exposed individual, whichever criterion is exceeded
first, the more precautionary of the two measures should be used as the
operative injury criterion.
Comment 33: One commenter suggested that the Navy has not explained
how they determine when or how injuries or harassment of marine mammals
have occurred during the specified activities.
Response: It is difficult to detect when animals experience
behavioral harassment. Though it would likely be easier to detect if an
animal were injured as a result of the Navy's activities, it is still
difficult because of the fact that marine mammals spend a lot of time
underwater (where they cannot be visually observed) and because of the
large areas that Navy training activities cover (i.e., they do not stay
in one area for a long time). The Navy has a robust Monitoring Plan
that utilizes vessel monitoring, aerial monitoring, passive acoustic
monitoring, and tagging and is intended to detect and report marine
mammal responses to MFAS exposure. However, in order to quantify the
takes that are likely to occur as a result of particular training
exercises, the Navy must make estimates based on the propagation of
sound from their sources, the density of marine mammals in the area,
and the acoustic thresholds, which predict at what received level of
sound an animal will be harassed and were developed by NMFS using the
best available science.
Comment 34: One commenter asserts that most whales injured or
killed by sonar will not be found, or they will sink and die rather
than beach themselves on shore. Further, the commenter states, the
proposed tests and war games will likely injure and harass many more
marine mammals than the number of takings requested by the Navy.
Response: For the reasons set forth in this rulemaking, NMFS does
not believe that the Navy's training will result in more take than is
authorized in these final regulations. The Navy has been conducting
MFAS/HFAS training exercises in the HRC for over 40 years. Though
monitoring specifically to determine the effects of sonar on marine
mammals was not being conducted prior to 2006 and the symptoms
indicative of potential acoustic trauma were not as well recognized
prior to the mid-nineties, people have been collecting stranding data
in Hawaii for 25 years. Though not all dead or injured animals are
expected to end up on the shore (some may be preyed upon or float out
to sea), one might expect that if marine mammals were being harmed by
sonar with any regularity or in large numbers, more evidence would have
been detected over the 40-yr period. An average of 24 stranding events
per year are documented in Hawaii. However, as described in the rule,
NMFS and the Navy have definitively determined that the use of MFAS was
a contributing factor in 5 stranding events worldwide, none of which
took place in Hawaii.
Comment 35: One commenter stated: ``[M]arine mammals are stressed
by many other factors, the most critical being global warming, which is
both increasing the temperature of the oceans and acidifying them, with
observed changes in food supplies and timing of migrations. Allowing
use of active sonar may be the last straw for some of these species. It
is important to protect marine mammals until it is known that
populations can sustain limited and completely quantified incidental
harassment and death. Since that is not known at present, NOAA should
not allow the Navy to proceed with active sonar testing as requested.''
Response: NMFS acknowledges that global warming is a threat to some
species of marine mammals. For the reasons described in this
rulemaking, NMFS believes that the Navy's model, combined with NMFS'
designated thresholds, is able to adequately quantify the number of
marine mammals that will likely be ``taken'' by the Navy's proposed
activity. Further, based on the analysis contained in this rule, NMFS
was able to conclude that the total taking of marine mammals over the
5-yr period incidental to the Navy's training activities would have a
negligible impact on the affected species or stock (i.e., would not
have adverse effects on the annual rates of survival or recruitment in
the affected populations or stocks). Therefore, NMFS has issued these
regulations and plans to issue Letters of Authorization for this
activity. Of note--pursuant to the MMPA, NMFS does not ``allow'' or
disallow the Navy to proceed with their activities; rather, NMFS either
authorizes or does not authorize the take of marine mammals incidental
to the specified activities that are analyzed.
Comment 36: One commenter asserts that NMFS disregards data gained
from actual whale mortalities. The commenter cites to peer-reviewed
literature that indicates that sound levels at the most likely
locations of beaked whales beached in the Bahamas strandings run far
lower than the Navy's threshold for injury here: approximately 150-160
dB re 1 [mu]Pa for 50-150 seconds, over the course of the transit. A
further modeling effort, undertaken in part by the Office of Naval
Research, the commenter states, suggests that the mean exposure level
of beaked whales, given their likely distribution in the Bahamas'
Providence Channels and averaging results from various assumptions, may
have been lower than 140 dB re 1 [mu]Pa. Last the commenter suggests
that when duration is factored in, evidence would support a maximum
energy level (``EL'') threshold for serious injury on the order of 182
dB re 1 [mu]Pa\2\[middot]s, at least for beaked whales.
Response: No one knows where the beaked whales were when they were
first exposed to MFAS in the Bahamas or the duration of exposure for
individuals (in regards to maximum EL) and, therefore, we cannot
accurately estimate the received level that triggered the response that
ultimately led to the stranding. Therefore, NMFS is unable to
quantitatively utilize any data from this event in the mathematical
model utilized to estimate the number of animals that will be ``taken''
incidental to the Navy's proposed action. However, NMFS does not
disregard the data; the proposed rule includes a qualitative discussion
of the Bahamas stranding and four other strandings that NMFS and the
Navy concur that the operation

[[Page 1476]]

of MFAS likely contributed to. These data illustrate a ``worst case
scenario'' of the range of potential effects from sonar and the
analysis of these strandings supports the Navy's request for
authorization to take 10 individuals of several species by mortality
over the 5-yr period.
Comment 37: One commenter states: ``NMFS fails to take proper
account of published research on bubble growth in marine mammals, which
separately indicates the potential for injury and death at lower
[received sound] levels. According to the best available scientific
evidence, gas bubble growth is the causal mechanism most consistent
with the observed injuries. NMFS' argument to the contrary simply
misrepresents the available literature.''
Response: The proposed rule contained a detailed discussion of the
many hypotheses involving both acoustically-mediated and behaviorally-
mediated bubble growth. NMFS concluded that there is not sufficient
evidence to definitively say that any of these hypotheses accurately
describe the exact mechanism that leads from sonar exposure to a
stranding. Despite the many theories involving bubble formation (both
as a direct cause of injury and an indirect cause of stranding),
Southall et al. (2007) summarizes that scientific agreement or complete
lack of information exists regarding the following important points:
(1) Received acoustical exposure conditions for animals involved in
stranding events; (2) pathological interpretation of observed lesions
in stranded marine mammals; (3) acoustic exposure conditions required
to induce such physical trauma directly; (4) whether noise exposure may
cause behavioral reactions (such as atypical diving behavior) that
secondarily cause bubble formation and tissue damage; and (5) the
extent the post mortem artifacts introduced by decomposition before
sampling, handling, freezing, or necropsy procedures affect
interpretation of observed lesions.
Comment 38: One commenter states: ``[C]oncerning direct
physiological effects, only a few studies provide empirical information
on the levels at which noise-induced loss in hearing sensitivity occurs
in nonhuman animals. Given the lack of data, and importance of hearing
in the ocean, shouldn't we follow the precautionary principle for
underwater noise?''
Response: The TTS thresholds are based on published data gathered
from beluga whales, bottlenose dolphins, California sea lions, harbor
seals, and elephant seals via several different studies. The PTS
threshold (for estimating PTS onset, which is considered to occur in
conditions causing 40 dB of TTS, based on research on several
terrestrial mammal species) is derived by combining measured or
estimated TTS onset levels in marine mammals and the estimated
``growth'' of TTS in certain terrestrial mammals exposed to increasing
noise levels (Southall et al., 2007). Precautionary choices were made
at several decision points in the development of these thresholds and
Southall et al. (2007) indicate that the approach is to ``acknowledge
scientific uncertainty and to err on the side of overestimating the
possibility of PTS (i.e., on the side of underestimating the exposure
required to cause PTS onset).'' For example, 40 dB of TTS is considered
the onset of PTS; however, this is likely somewhat precautionary
because, based on previous studies of terrestrial mammals, there is
often complete recovery from TTS of this magnitude or greater (i.e.,
PTS is not induced).

Effects Analysis

Comment 39: ``Why is impaired communication considered for these
rules, but not in the Navy EIS?''
Response: The Navy's conceptual framework, the figure in the Navy's
EIS in which they outline the potential effects on marine mammals from
exposure to sonar, includes a box indicating behavioral changes to
vocalizations. Further, the HRC EIS contains a detailed section on
masking, which is closely associated with any communication impairment
that might result from MFAS exposure (NMFS included a brief discussion
of communication impairment in the same section as masking). Both NMFS
and the Navy believe that both masking and communication impairment are
relatively unlikely to occur as a result of MFAS exposure because of
the pulse length and duty cycle of the MFAS signal.
Comment 40: One commenter asked why the MMPA rules find greater
stress responses than the Navy EIS.
Response: Both the proposed rule and the EIS discuss stress
responses as related to marine mammal exposure to MFAS. Because of the
lack of quantitative data, neither document attempts to quantify the
number of animals that will likely experience a stress response or the
specific degree of distress these animals may experience--i.e., the
rule does not ``find greater stress responses'' than the EIS.
Comment 41: One commenter noted that the proposed rule said:
``Little is known about the breeding and calving behaviors of many of
the marine mammals that occur in the HRC.'' Then he questioned how such
precise predictions of harm can be made.
Response: What is not indicated above is that, though little is
known about the breeding and calving behaviors of many of the marine
mammals that occur in the HRC, what is known is that these behaviors
are most likely occurring in areas outside of the HRC (mysticetes other
than humpback whales) or that there are not likely specific focused
areas of reproductive importance in the HRC. Therefore, we do not
expect focused effects of sonar to occur in an important reproductive
area. When this is combined with the fact that we do not expect injury
of marine mammals to occur (because of the mitigation measures), we do
predict a lack of harm.
Comment 42: One commenter noted the LOA application requirement to
provide the anticipated impact of the activity upon the species or
stock. The commenter indicated that there is not enough data to answer
the question adequately and that they are skeptical of Navy data as it
``has been shown to be unreliable.'' Further, the commenter ``generally
feels that it is unwise to rely on an applicant's data set and urge
that independent analysis be done.'' Last, they assert that ``Because
there is a paucity of Navy data regarding their own estimates for
takes, it is reasonable for NMFS to take a conservative and
precautionary view towards issuing permits regarding the extremely
broad, long-term, and harmful actions proposed.''
Response: The commenter does not provide any information to support
his assertion that the Navy data ``has been shown to be unreliable''.
NMFS relies upon the data that the Navy (or any applicant) provides in
our analysis, but also conducts an independent review of the data and
incorporates additional data into our analysis as appropriate. Next,
NMFS is not sure what the commenter meant when he stated: ``Because
there is a paucity of Navy data regarding their own estimates for
takes.'' NMFS strives to always make decisions based on the best
scientific data. In circumstances of scientific uncertainty and
potentially high risk when a decision is necessary, NMFS errs on the
side of being more conservative, whenever that conclusion is supported
by the agency's record.
Comment 43: One commenter stated: ``[T]here is a disconnect that
exists between the modeling adopted by NMFS in estimating species take
and the scope of the authorization that NMFS has issued. NMFS' rule
would permit the Navy to operate anywhere

[[Page 1477]]

around the range without any substantive restriction. If NMFS' analysis
is dependent on certain assumptions about the Navy's training--
including, for example, the siting of exercises--it must incorporate
those assumptions as limitations on the training that the Navy is
authorized to perform. Otherwise, there can be no assurance that takes
will remain within even the limits that NMFS has proposed.''
Response: As it relates to humpback whales only, NMFS analysis is
dependent on certain assumptions about the Navy's training (the
assumption that a relatively small portion of the overall Navy training
will occur within the areas that are known to contain high densities of
humpback whales in the winter months (referred to as the Mobley Area
because of a map he compiled)). Because of the need for operational
flexibility, the Navy cannot commit to limiting their sonar use over
the entire Mobley Area (though they will implement the humpback whale
cautionary area measure specifically in the Maui Basin). However, the
following facts support the idea that hours of sonar training will be
relatively low in the Mobley Area and that effects on humpback whales
will be relatively less severe:
SPORTS data from 2007 indicates that the Navy operated
sonar for a total of approximately 30 hours in the Mobley Area.
Though SPORTS was not operative prior to 2007, the Navy
indicated that sonar use in the Mobley Area prior to 2007 was similarly
limited.
The Navy generally asserts that the majority of the
exercises are in waters 2,000-4,000 km deep. This means that the
exercises are 2-15 km (1-8 nm), or farther, out from the densest areas
of humpbacks, which would suggest, based on propagation information
provided by the Navy, that the majority of behavioral takes of
humpbacks would occur at received levels less than 150-160 dB. This
further suggests that the overall potential severity of the effects is
likely less than one would anticipate if humpbacks were not selectively
using the shallower, inshore areas and the Navy were not conducting the
majority of their exercises in deeper areas.
That being said, however, NMFS concurs with the commenter that NMFS
needs to ensure that the Navy's effects remain within the bounds of
those anticipated by and analyzed within the rule. For this reason,
NMFS has added a reporting requirement that requires the Navy to
annually report the number of hours of sonar operation within the
Mobley Area. The rule also includes an adaptive management component,
which means that NMFS and the Navy have the flexibility to modify
mitigation or monitoring measures if appropriate.
Comment 44: One commenter asserts that the Navy's exposure model
fails to consider the following important points:
Possible synergistic effects of using multiple sources in
the same exercise, or the combined effects of multiple exercises.
Indirect effects, such as the potential for mother-calf
separation, that can result from short-term disturbance.
In assuming animals are evenly distributed--the magnifying
effects of social structure, whereby impacts on a single animal within
a pod, herd, or other unit may affect the entire group.
In assuming that every whale encountered during subsequent
exercises is essentially a new whale--the cumulative impacts on the
breeding, feeding, and other activities of species and stocks.
Response: The commenter is correct, the Navy's model does not
consider the points listed above because the quantitative data
necessary to include those concepts in a mathematical model do not
currently exist. However, NMFS and the Navy have qualitatively
addressed those concerns in their effects analyses in the rule and in
the Navy's EIS.
Comment 45: One commenter noted that the numbers of modeled hours
in the Navy's EIS and NMFS' Proposed Rule are lower than those set
forth in the DEIS (by half), due, apparently, to the Navy's application
of its new Sonar Positional Reporting System (SPORTS). The commenter
further notes that the discrepancy in use hours between the DEIS and
EIS raises some question about SPORTS' reliability. The commenter
recommends that NMFS require the Navy to compare SPORTS data with logs
retained by the Pacific Fleet, over a sample period, to confirm that
SPORTS reporting does indeed capture all mid-frequency sonar use in the
Hawaii Range Complex, and then publicly report the total number of
sonar use hours occurring on the HRC on no less than an annual basis,
to ensure that levels remain below the levels established here.
Response: SPORTS is the single method that the Navy has available
to them to accurately keep track of hours of sonar operation. Prior to
the implementation of this system, the Navy estimated the hours of
sonar operation based on other operational factors, such as the length
of the whole exercise. Their estimates were conservative, which is why
the numbers went down when they began using the SPORTS. NMFS is
requiring (see Reporting Requirements section) the Navy to report the
number of hours of sonar operation on an annual basis, however, the
Navy will decide how best to provide that information, which at this
point in time includes the use of SPORTS.
Comment 46: One commenter stated: ``NMFS does not properly account
for reasonably foreseeable reverberation effects (as in the Haro Strait
incident), giving no indication that its modeling sufficiently
represents areas in which the risk of reverberation is greatest.''
Response: The model does indirectly incorporate surface-ducting
(surface reverberation), as conditions in the model are based on
nominal conditions calculated from a generalized digitalized monthly
average. Though the model does not consider reverberations, these
effects are generally at received levels many orders of magnitude below
those of direct exposures (as demonstrated in the Haro Strait analysis
associated with bottom reverberation) and thus contribute essentially
nothing to the cumulative SEL exposure and would not result in the
exposure of an animal to a higher SPL than the direct exposure, which
is already considered by the model.
Comment 47: How will oceanographic conditions (e.g., water
temperature profiles, water depth, salinity, etc.) be factored into the
modeling of received sound levels of MFAS and underwater detonations?
Which oceanographic data sources will be used?
Response: The Take Calculation section of the proposed rule
generally discusses how these and other variables are factored into the
take estimates and references Appendix J of the Navy's FEIS for HRC,
which contains the details of the model and how these variables are
incorporated. Due to the importance that propagation loss plays in ASW,
the Navy has invested heavily over the last four to five decades in
measuring and modeling environmental parameters. The result of this
effort is the following collection of global databases of environmental
parameters that are accepted as standards for all Navy modeling
efforts:
Water depth--Digital Bathymetry Data Base Variable
Resolution (DBDBV),
Sound speed--Generalized Dynamic Environmental Model
(GDEM),
Bottom loss--Low-Frequency Bottom Loss (LFBL), Sediment
Thickness Database, and High-Frequency Bottom Loss (HFBL), and
Wind speed--U.S. Navy Marine Climatic Atlas of the World.
Comment 48: One commenter cites concerns that the Navy's take
estimates

[[Page 1478]]

(for monk seals specifically) are substantively lower in the FEIS than
the DEIS. Further comments indicate some confusion regarding whether
any monk seals are expected to be injured by the predicted exposures to
MFAS or explosives.
Response: Though this comment is outside the purview of the MMPA,
NMFS directs the commenter to the Navy's Supplement to the DEIS, which
clearly explains that the implementation of the new system for keeping
track of sonar hours (SPORTS) resulted in fewer estimated hours of
sonar operation, which in turn results in lower take estimates.
Separately, to clarify--based on the model, no monk seals will be
exposed to any injurious levels of sound or pressure. Additionally,
though a few seals were modeled as being exposed to levels that could
result in TTS, NMFS believes that these exposures are not likely to
occur when the mitigation is taken into consideration (see Negligible
Impact Analysis).
Comment 49: One commenter stated: ``NMFS has not considered the
best available evidence of population structuring in Hawaiian marine
mammals: Notably, NMFS does not account (in its abundance estimates)
for evidence of considerable site fidelity by Cuvier's and Blainville's
beaked whales, which is suggestive of residency and additional
population structuring. NMFS significantly overestimates the size of
these populations and thus significantly underestimates the proportion
that would be taken and the effects that its repeated activities would
have.''
Response: NMFS' analysis includes qualitative consideration of the
evidence of site fidelity by Cuvier's and Blainville's beaked whales
(see Resident Populations/Additional Management Units section in the
proposed rule). NMFS considers the abundance estimates of designated
marine mammal stocks and these beaked whale groups have not been
designated as separate stocks by NMFS. As discussed in the indicated
section, if the nature of the Navy's training exercises was such that
they were disproportionately conducting sonar in a certain fairly large
area that largely overlapped with a particular demographically isolated
population, stock, or resident population, additional analysis might be
needed to determine what additional impacts might occur. However, due
to the Navy's need to train in a variety of bathymetric conditions and
in the vicinity of a variety of other resources throughout the Main
Hawaiian Islands, the location of the Navy's training exercises are
highly variable, and no focused impacts are anticipated in the vicinity
of these groups.
Comment 50: One commenter asked why the rule finds a stronger
correlation between sonar and marine mammal strandings than the Navy
EIS and why the rule finds more serious effects than the Navy EIS?
Response: Both the EIS and the proposed rule discuss the
association between the 5 specific marine mammal strandings and the use
of MFAS and both the rule and the EIS discuss a wide range of potential
physiological and behavioral effects on marine mammals from MFAS,
ranging from avoidance to PTS to bubble formation that could cause
tissue damage. The rule utilizes the same estimated take numbers that
the EIS does. NMFS disagrees with the assumptions underlying the
commenter's question and, therefore, cannot answer the question.

General Opposition

Comment 51: The NRDC urged NMFS to withdraw its proposed rule on
the Hawaii Range Complex and to revise the document prior to its
recirculation for public comment. They suggested NMFS revisit its
profoundly flawed analysis of environmental impacts and prescribe
mitigation measures that truly result in the least practicable adverse
impact on marine species.
Response: NMFS has addressed specific comments related to the
effects analysis here and the mitigation measures in the Mitigation
Environmental Assessment. We do not believe that the analysis is flawed
and we believe that the prescribed measures will result in the least
practicable adverse impacts on the affected species or stock.
Therefore, NMFS does not intend to withdraw its rule on the HRC.
Comment 52: A few commenters expressed general opposition to Navy
activities and NMFS' issuance of an MMPA authorization.
Response: NMFS appreciates the commenter's concern for the marine
mammals that live in the area of the proposed activities. However, the
MMPA directs NMFS to issue an incidental take authorization if certain
findings can be made. NMFS has determined that the Navy training
activities in the HRC will have a negligible impact on the affected
species or stock and, therefore, we plan to issue the requested MMPA
authorization.

MMPA

Comment 53: One commenter stated: ``Currently, the Hawaiian monk
seal population has reached a critical point where recovery of the
species is questionable, which should be considered grounds for the
termination of sonars in and around areas where the Hawaiian monk seal
is known to be present.''
Response: As with other species, the Navy is required to powerdown
if a monk seal is detected within 1000 yds of the sonar source (and
powerdown further if the seal is detected within 500 yd and shutdown if
the seal is detected within 200 yds). Monk seals generally forage at
depths of less than 100 m (109 yd), but occasionally dive to depths of
over 500 m (546 yd). The majority of ASW training in the HRC, however,
takes place in waters 4 to 8 times deeper than even this known (500-m
(546-yd)) maximum and it is very rare for ASW training to take place in
waters as shallow as 100 m (109 yd) in depth. So, generally, monk seals
are less likely to be in the vicinity of ASW activities, and we believe
that watchstanders are likely to spot the seals before they could close
within the distance necessary to sustain TTS, which would be less than
100 m (109 yd).
Comment 54: One commenter expressed general opposition to the
marine mammal take that NMFS had proposed to authorize and presented
several reasons why MFAS was not necessary. The same commenter
discussed the purpose of the MMPA and suggested that the Navy had not
earned the right to take any marine mammals.
Response: Under section 101(a)(5)(A) of the MMPA, NMFS must make
the decision of whether or not to issue an authorization based on the
applicant's proposed action that the applicant submits--the MMPA does
not contain a mechanism for NMFS to question the need for the action
that the applicant has proposed (unless the action is illegal).
Similarly, any U.S. citizen (including the Navy) can request and
receive an MMPA authorization as long as all of the necessary findings
can be made, it is not necessary that the Navy or any other entity
``earn the right''.
Comment 55: ``Any organism that frequents the HRC is protected by
state law even when outside the three mile state boundary. Many of the
species affected by active sonars are affected by this legislation.
Therefore if any of these animals are thought to be caused harm, this
would fall under state jurisdiction thus requiring state involvement in
the decision making process. We call on NMFS to involve the state in
the decision making process.''
Response: It is unclear what statute the commenter is referring to.
In any case, however, NMFS may only authorize the take of marine
mammals incidental to a specified activity. NMFS ensures that the
proposed activities are

[[Page 1479]]

consistent with or in compliance with the applicable federal statutes
before issuing an authorization.

Other

Comment 56: OHA advocates for a narrow view by NMFS of the number
of take permits to be issued for the proposed actions and a
determination that the proposed and even ongoing activities in the HRC
do adversely affect Hawaiian Monk seals and other marine mammals.
Response: NMFS determined that the training activities proposed to
be conducted in the HRC and the issuance of an MMPA authorization may
affect listed marine mammals such as the Hawaiian monk seal.
Consequently, the Navy and NMFS (the branch that issues an MMPA
authorization) consulted with NMFS under section 7 of the ESA. In a
Biological Opinions (BiOp), NMFS concluded that the Navy's training
activities in the HRC and NMFS' issuance of these regulations and the
2009 LOA are not likely to jeopardize the continued existence of
threatened or endangered species or destroy or adversely modify any
designated critical habitat. NMFS also determined that the Navy's
training activities and NMFS issuance of the LOA were likely to
adversely affect the affected marine mammal stocks and species and
issued an incidental take statement. The ITS issued for the LOA will
contain implementing terms and conditions to minimize the effects on
ESA-listed species of the marine mammal take authorized through the
2009 LOA.
Comment 57: One commenter was concerned that State commerce could
be jeopardized as the sonar could negatively impact the humpback whale
populations and other marine species, which draw over 900,000 visitors
to the state. The commenter questioned whether these effects had been
adequately addressed.
Response: NMFS recommends that the commenter review the Navy's EIS
to obtain information about the potential socio-economic impacts
resulting from the Navy's use of sonar in the HRC.
Comment 58: ``Fish are affected by sonars, airguns and other
underwater noises. With possible physical damage, decreased catch size
and altered behaviors resulting from HRC activities, the Magnuson
Stevens Fishery Act may question the validity of these exercises.''
Response: NMFS reviewed the Navy's Essential Fish Habitat and Coral
Reef Assessment for the HRC and concurred with the Navy that it is
unlikely that the proposed project would have adverse impacts to EFH
provided the proposed mitigation measures were implemented (see
Essential Fish habitat Determination section).
Comment 59: A few members of the public submitted comments on the
Navy's EIS that they did not clearly tie to the proposed rule.
Response: The purpose of this comment period was for the public to
provide comments on the proposed rule. Responses were not provided to
comments on the EIS if their bearing on the MMPA authorization was not
clear.
Comment 60: How will all the sunken objects--hulks, sonobuoys,
explosive devices, etc.--affect marine life? They will attract plant
growth and animals that feed on the plants, changing the ecosystem. And
what toxins will they release into the ocean?
Response: The Navy's HRC FEIS analyzed how sunken objects, such as
sonobuoys and expended explosive devices, would affect marine life. The
Navy found that the likelihood of a marine mammal or fish encountering
and having an adverse interaction with expended materials was remote.
Also, the Navy found that the potential ingestion of toxins, such as
the small amount of propellant or stimulant remaining in the spent
boosters or on pieces of missile debris, by marine mammals or fish
species would be remote because of (1) atmospheric dispersion, (2) the
diluting and neutralizing effects of seawater, and (3) the relatively
small area that could potentially be affected.
Comment 61: The NRDC notes that NMFS is preparing an environmental
assessment on the environmental effects of various mitigation measures,
and suggests that if NMFS intends to rely on this document for its
Final Rule, or if this document constitutes significant new
information, NMFS must postpone finalizing the rule and open up its
assessment to public comment.
Response: NMFS is not required to provide advance notice and
opportunity for comment on the draft Environmental Assessment. This
document does not constitute significant new information, rather it is
a summary of the universe of mitigation measures (many of them
recommended in public comments) that NMFS considered when developing
the MMPA authorization with a discussion of their potential benefits to
marine mammals and their practicability of implementation. Much of the
information, especially as it relates to practicability of
implementation, was included in the Navy's EIS. Finally, NMFS and the
Navy have provided the public with a substantial amount of
environmental information related to the HRC activities (e.g., during
the Navy's EIS process and NMFS' MMPA process).
Comment 62: One commenter was concerned about the effects of the
Navy's training in the Papahanaumokuakea Marine National Monument,
which contains the largest coral reef area in Hawaii, one of the
largest and most important assemblages of tropical seabirds in the
world, greater than 98 percent of the world's Laysan and black-footed
albatrosses nests, the majority of the population of the Hawaiian monk
seal, and over 90 percent of the Hawaiian green sea turtle nests there.
The Navy proposes to increase the impacts to this remarkable area and
the effects could be dramatic.
Response: Most of this comment does not pertain to NMFS' authority
pursuant to the MMPA. However, NMFS notes that only a very small part
of the Papahanaumokuakea Marine National Monument overlaps with the
HRC, and it is in a remote portion of the HRC. Therefore, NMFS
anticipates relatively few hours of sonar operation to occur in that
area. Additionally, the effects of this action are temporary and
acoustic in nature, and NMFS does not expect them to result in harm to
the protected natural and cultural resources of these areas. The
Northwestern Hawaiian Islands Marine National Monument proclamation
contains the following language ``The prohibitions required by this
proclamation shall not apply to activities and exercises of the Armed
Forces (including those carried out by the United States Coast Guard)
that are consistent with applicable laws.''
Comment 63: Several commenters included potentially technical
comments that NMFS could not interpret from the context in which they
were presented, such as: ``Sonar hours should not be averaged, because
longer exposure leads to more disruption of feeding, caring for young,
mating, resting, and other activities necessary to animals' long-term
well-being'' or ``OHA also asks that NMFS consider the NMFS defined
refresh rate of 24 hours, which represents the amount of time in which
individual marine mammals can be harassed no more than once when
considering authorizing their take permits for this proposed action.''
Response: NMFS is not responding to these comments because the
meaning of the comment is not clear.

Estimated Take of Marine Mammals

As mentioned previously, with respect to the MMPA, NMFS' effects
assessments serve three primary purposes: (1) To put forth the
permissible methods of taking (i.e., Level B Harassment (behavioral

[[Page 1480]]

harassment), Level A Harassment (injury), or mortality, including an
identification of the number and types of take that could occur by
Level A or B harassment or mortality) and to prescribe other means of
effecting the least practicable adverse impact on such species or stock
and its habitat (i.e., mitigation); (2) to determine whether the
specified activity will have a negligible impact on the affected
species or stocks of marine mammals (based on the likelihood that the
activity will adversely affect the species or stock through effects on
annual rates of recruitment or survival); (3) to determine whether the
specified activity will have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (however,
there are no subsistence communities that would be affected in the HRC,
so this determination is inapplicable for the HRC); and (4) to
prescribe requirements pertaining to monitoring and reporting.
In the Estimated Take of Marine Mammals section of the proposed
rule, NMFS related the potential effects to marine mammals from MFAS/
HFAS and underwater detonation of explosives (discussed in the
Potential Effects of Specified Activities on Marine Mammals Section) to
the MMPA regulatory definitions of Level A and Level B Harassment and
quantified (estimated) the effects on marine mammals that could result
from the specific training activities that the Navy intends to conduct.
The subsections of this analysis are discussed individually below.

Definition of Harassment

The Definition of Harassment section of the proposed rule contained
the definitions of Level A and Level B Harassments, and a discussion of
which of the previously discussed potential effects of MFAS/HFAS or
explosive detonations fall into the categories of Level A Harassment
(permanent threshold shift (PTS), acoustically mediated bubble growth,
behaviorally mediated bubble growth, and physical disruption of tissues
resulting from explosive shock wave) or Level B Harassment (temporary
threshold shift (TTS), acoustic masking and communication impairment,
and behavioral disturbance rising to the level of harassment); 73 FR
35510, pages 35549-35550. No changes have been made to the discussion
contained in this section of the proposed rule.

Acoustic Take Criteria

In the Acoustic Take Criteria section of the proposed rule, NMFS
described the development and application of the acoustic criteria for
both MFAS/HFAS and explosive detonations (73 FR 35510, pages 35550-
35555). No changes have been made to the discussion contained in this
section of the proposed rule. NMFS has also summarized the acoustic
criteria below.
For MFAS/HFAS, NMFS uses acoustic criteria for PTS, TTS, and
behavioral harassment.
NMFS' TTS criteria (which indicate the received level at which
onset TTS (>6 dB) is induced) for MFAS/HFAS are as follows:
Cetaceans--195 dB re 1 [mu]Pa\2\-s (based on mid-frequency
cetaceans--no published data exist on auditory effects of noise in low
or high frequency cetaceans (Southall et al. (2007)).
Pinnipeds (monk seals)--204 dB re 1 [mu]Pa²-s
(based on data from elephant seals, which are the most closely related
to the monk seal).
NMFS uses the following acoustic criteria for injury (Level A
Harassment):
Cetaceans--215 dB re 1 [mu]Pa²-s (based on mid-
frequency cetaceans)--no published data exist on auditory effects of
noise in low or high frequency cetaceans (Southall et al. (2007))
Pinnipeds (monk seals)--224 dB re 1 [mu]Pa²-s
(based on data from elephant seals, which are the most closely related
to the monk seal).
For the behavioral harassment criteria, NMFS uses acoustic risk
functions developed by NMFS and the Navy to estimate the probability of
behavioral responses to MFAS/HFAS (interpreted as the percentage of the
exposed population) that NMFS would classify as harassment for the
purposes of the MMPA given exposure to specific received levels of MFAS
(73 FR 35510, page 35554).
Table 13 in the proposed rule summarizes the acoustic criteria for
explosive detonations (73 FR 35510, page 35555).

Take Calculations

Estimating the take that will result from the proposed activities
entails the following four steps: Propagation model estimates animals
exposed to sources at different levels; further modeling determines
number of exposures to levels indicated in criteria above (i.e., number
of takes); post-modeling corrections refine estimates to make them more
accurate; mitigation is taken into consideration in post-modeling
analysis. More information regarding the models used, the assumptions
used in the models, and the process of estimating take is available in
Appendix J of the Navy's FEIS for the HRC.
(1) In order to quantify the types of take described in previous
sections that are predicted to result from the Navy's specified
activities, the Navy first uses a sound propagation model that predicts
the number of animals that will be exposed to a range of levels of
pressure and energy (of the metrics used in the criteria) from MFAS/
HFAS and explosive detonations based on several important pieces of
information, including:
Characteristics of the sound sources
Sonar source characteristics include: Source level (with
horizontal and vertical directivity corrections), source depth, center
frequency, source directivity (horizontal/vertical beam width and
horizontal/vertical steer direction), and ping spacing.
Explosive source characteristics include: The weight of an
explosive, the type of explosive, the detonation depth, number of
successive explosions.
Transmission loss (in 20 representative environmental
provinces across 8 sonar modeling areas) based on: Water depth; sound
speed variability throughout the water column (presume surface duct is
present in HRC); bottom geo-acoustic properties (bathymetry); and wind
speed.
The density of each marine mammal species in the HRC (see
Table 14), horizontally distributed uniformly and vertically
distributed according to dive profiles based on field data.
(2) Next, the criteria discussed in the previous section are
applied to the estimated exposures to predict the number of exposures
that exceed the criteria, i.e., the number of takes by Level B
Harassment, Level A Harassment, and mortality.
(3) During the development of the EIS for the HRC, NMFS and the
Navy determined that the output of the model could be made more
realistic by applying post-modeling corrections to account for the
following:
Acoustic footprints for sonar sources must account for
land masses (by subtracting them out).
Acoustic footprints for sonar sources should not be added
independently, rather, the degree to which the footprints from multiple
ships participating in the same exercise would typically overlap needs
to be taken into consideration.
Acoustic modeling should account for the maximum number of
individuals of a species that could potentially be exposed to sonar
within the course of 1 day or a discreet continuous sonar event if less
than 24 hours.
(4) Mitigation measures are taken into consideration. For example,
in some cases the raw modeled numbers of

[[Page 1481]]

exposures to levels predicted to result in Level A Harassment from
exposure to sonar might indicate that 1 fin whale would be exposed to
levels of sonar anticipated to result in PTS. However, a fin whale
would need to be within approximately 10 m of the source vessel in
order to be exposed to sound pressure levels that would result in PTS.
Because of the mitigation measures (watchstanders and shutdown zone),
size of fin whales, and nature of fin whale behavior, it is highly
unlikely that a fin whale would be exposed to those levels, and
therefore, NMFS would not expect fin whales to experience injury as a
result of sonar use. Table 6 contains the Navy's take estimates as well
as the number of takes that these regulations and the associated LOAs
will authorize. The table contains a few minor corrections that did not
affect NMFS analysis.
(5) The Navy's specified activities have been described based on
best estimates of the number of MFAS/HFAS hours that the Navy will
conduct. The exact number of hours may vary from year to year, but will
not exceed the 5-year total indicated in Table 3 (by multiplying the
yearly estimate by 5) by more than 10-percent. NMFS estimates that a
10-percent increase in sonar hours would result in approximately a 10-
percent increase in the number of takes, and we have considered this
possibility in our analysis.

BILLING CODE 3510-22-P

[[Page 1482]]

[GRAPHIC] [TIFF OMITTED] TR12JA09.043

BILLING CODE 3510-22-C

Mortality

Evidence from five beaked whale strandings, all of which have taken
place outside the HRC, and have occurred over approximately a decade,
suggests that the exposure of beaked whales to mid-frequency sonar in
the presence of certain conditions (e.g., multiple units using tactical
sonar, steep bathymetry, constricted channels, strong surface ducts,
etc.) may result in strandings, potentially leading to mortality.
Although these physical

[[Page 1483]]

factors believed to contribute to the likelihood of beaked whale
strandings are not present in the Hawaiian Islands in the aggregate,
scientific uncertainty exists regarding what other factors, or
combination of factors, may contribute to beaked whale strandings.
Accordingly, to allow for scientific uncertainty regarding contributing
causes of beaked whale strandings and the exact behavioral or
physiological mechanisms that can lead to the ultimate physical effects
(stranding and/or death), the Navy has requested authorization for
take, by serious injury or mortality, of 10 individuals of each of the
following species over the course of the five-year rule: bottlenose
dolphin, Kogia spp., melon-headed whale, pantropical spotted dolphin,
pygmy killer whale, short-finned pilot whale, striped dolphin,
Cuvier's, Longman's, and Blainville's beaked whales. Although the Navy
has requested take by serious injury or mortality, neither agency
expects that marine mammal strandings or mortality would result from
the operation of mid-frequency sonar during Navy exercises within the
HRC.

Effects on Marine Mammal Habitat

NMFS' proposed rule for the HRC included a detailed section that
addressed the effects of the Navy's training activities on Marine
Mammal Habitat (73 FR 35510, pages 35559-35560). The analysis concluded
that the Navy's training activities would have minimal effects on fish,
essential fish habitat, or marine mammal habitat provided the Navy's
mitigation measures were implemented. No changes have been made to the
discussion contained in this section of the proposed rule.

Analysis and Negligible Impact Determination

Pursuant to NMFS' regulations implementing the MMPA, an applicant
is required to estimate the number of animals that will be ``taken'' by
the specified activities (i.e., takes by harassment only, or takes by
harassment, injury, and/or death). This estimate informs the analysis
that NMFS must perform to determine whether the activity will have a
``negligible impact'' on the species or stock. Level B (behavioral)
harassment occurs at the level of the individual(s) and does not assume
any resulting population-level consequences, though there are known
avenues through which behavioral disturbance of individuals can result
in population-level effects (for example: Pink-footed geese (Anser
brachyrhynchus) in undisturbed habitat gained body mass and had about a
46-percent reproductive success compared with geese in disturbed
habitat (being consistently scared off the fields on which they were
foraging) which did not gain mass and has a 17-percent reproductive
success). A negligible impact finding is based on the lack of likely
adverse effects on annual rates of recruitment or survival (i.e.,
population-level effects). An estimate of the number of Level B
harassment takes, alone, is not enough information on which to base an
impact determination. In addition to considering estimates of the
number of marine mammals that might be ``taken'' through behavioral
harassment, NMFS must consider other factors, such as the likely nature
of any responses (their intensity, duration, etc.), the context of any
responses (critical reproductive time or location, migration, etc.), or
any of the other variables mentioned in the first paragraph (if known),
as well as the number and nature of estimated Level A takes, the number
of estimated mortalities, and effects on habitat. Generally speaking,
and especially with other factors being equal, the Navy and NMFS
anticipate more severe effects from takes resulting from exposure to
higher received levels (though this is in no way a strictly linear
relationship throughout species, individuals, or circumstances) and
less severe effects from takes resulting from exposure to lower
received levels.
In the Analysis and Negligible Impact Determination section of the
proposed rule, NMFS addressed the issues identified in the preceding
paragraph in combination with additional detailed analysis regarding
the severity of the anticipated effects, and including species (or
group)-specific discussions, to determine that Navy training exercises
utilizing MFAS/HFAS and underwater detonations will have a negligible
impact on the marine mammal species and stocks present in the HRC. No
changes have been made to the discussion contained in this section of
the proposed rule.

Subsistence Harvest of Marine Mammals

NMFS has determined that the issuance of these regulations and
subsequent LOAs for Navy training exercises in the HRC would not have
an unmitigable adverse impact on the availability of the affected
species or stocks for taking for subsistence uses, since there are no
such uses in the specified area.

Endangered Species Act (ESA)

There are seven marine mammal species and five sea turtle species
listed as threatened or endangered under the ESA with confirmed or
possible occurrence in the study area: Humpback whale, North Pacific
right whale, sei whale, fin whale, blue whale, sperm whale, and
Hawaiian monk seal, loggerhead sea turtle, the green sea turtle,
hawksbill sea turtle, leatherback sea turtle, and olive ridley sea
turtle. Pursuant to section 7 of the ESA, the Navy has consulted with
NMFS on this action. NMFS has also consulted internally on the issuance
of regulations under section 101(a)(5)(A) of the MMPA for this
activity. In a Biological Opinion (BiOp), NMFS concluded that the
Navy's training activities in the HRC and NMFS' issuance of these
regulations are not likely to jeopardize the continued existence of
threatened or endangered species or destroy or adversely modify any
designated critical habitat.
NMFS (the Endangered Species Division) will also issue BiOps and
associated incidental take statements (ITSs) to NMFS (the Permits,
Conservation, and Recreation Division) to exempt the take (under the
ESA) that NMFS authorizes in the LOAs under the MMPA. Because of the
difference between the statutes, it is possible that ESA analysis of
the applicant's action could produce a take estimate that is different
than the takes requested by the applicant (and analyzed for
authorization by NMFS under the MMPA process), despite the fact that
the same proposed action (i.e., number of sonar hours and explosive
detonations) was being analyzed under each statute. When this occurs,
NMFS staff coordinate to ensure that that the most conservative
(lowest) number of takes are authorized. For the Navy's proposed
training in the HRC, coordination with the Endangered Species Division
indicates that they will likely allow for a lower level of take of ESA-
listed marine mammals than were requested by the applicant (because
their analysis indicates that fewer will be taken than estimated by the
applicant). Therefore, the number of authorized takes in NMFS' LOA(s)
will reflect the lower take numbers from the ESA consultation, though
the specified activities (i.e., number of sonar hours, etc.) will
remain the same. Alternately, these regulations indicate the maximum
number of takes that may be authorized under the MMPA.
The ITS(s) issued for each LOA will contain implementing terms and
conditions to minimize the effect of the

[[Page 1484]]

marine mammal take authorized through the 2009 LOA (and subsequent LOAs
in 2010, 2011, 2012, and 2013). With respect to listed marine mammals,
the terms and conditions of the ITSs will be incorporated into the
LOAs.

NEPA

NMFS participated as a cooperating agency on the Navy's Final
Environmental Impact Statement (FEIS) for the Hawaii Range Complex,
which was published on May 9, 2008. NMFS subsequently adopted the
Navy's EIS for the purpose of complying with the MMPA. Additionally,
NMFS prepared an Environmental Assessment (EA) that tiered off the
Navy's FEIS. The EA analyzed the environmental effects of several
different mitigation alternatives for the issuance of the HRC rule and
subsequent LOAs. A finding of no significant impact was issued for the
Mitigation EA on December 30, 2008.

Determination

Based on the analysis contained herein, and in the proposed rule
(and other related documents), of the likely effects of the specified
activity on marine mammals and their habitat and dependent upon the
implementation of the mitigation measures, NMFS finds that the total
taking from Navy training exercises utilizing MFAS/HFAS and underwater
explosives in the HRC over the 5 year period will have a negligible
impact on the affected species or stocks and will not result in an
unmitigable adverse impact on the availability of marine mammal species
or stocks for taking for subsistence uses because no subsistence uses
exist in the HRC. NMFS has issued regulations for these exercises that
prescribe the means of effecting the least practicable adverse impact
on marine mammals and their habitat and set forth requirements
pertaining to the monitoring and reporting of that taking.

Classification

This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act.
Pursuant to the procedures established to implement section 6 of
Executive Order 12866, the Office of Management and Budget has
determined that this final rule is significant.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
final rule, if adopted, would not have a significant economic impact on
a substantial number of small entities. The Regulatory Flexibility Act
requires Federal agencies to prepare an analysis of a rule's impact on
small entities whenever the agency is required to publish a notice of
proposed rulemaking. However, a Federal agency may certify, pursuant to
5 U.S.C. section 605(b), that the action will not have a significant
economic impact on a substantial number of small entities. The Navy is
the entity that will be affected by this rulemaking, not a small
governmental jurisdiction, small organization or small business, as
defined by the Regulatory Flexibility Act. Any requirements imposed by
a Letter of Authorization issued pursuant to these regulations, and any
monitoring or reporting requirements imposed by these regulations, will
be applicable only to the Navy. Because this action, if adopted, would
directly affect the Navy and not a small entity, NMFS concludes the
action would not result in a significant economic impact on a
substantial number of small entities.
The Assistant Administrator for Fisheries has determined that there
is good cause under the Administrative Procedure Act (5 U.S.C.
553(d)(3)) to waive the 30-day delay in effective date of the measures
contained in the final rule. Since January 23, 2007, the Navy has been
conducting military readiness activities employing mid-frequency active
sonar (MFAS) pursuant to a 2-year MMPA National Defense Exemption
(NDE). The NDE serves as a bridge to long-term compliance with the MMPA
while the Navy prepared its Environmental Impact Statement and pursued
the necessary MMPA incidental take authorization for the HRC. The NDE
will expire on January 23, 2009, by which time it is imperative that
the regulations and the measures identified in a subsequent LOA become
effective. Any delay of these measures would result in either: (1) A
suspension of ongoing or planned naval exercises, which would disrupt
vital sequential training and certification processes essential to
national security; or (2) the Navy's non-compliance with the MMPA
(should the Navy conduct exercises without an LOA), thereby resulting
in the potential for unauthorized takes of marine mammals upon
expiration of the NDE. National security interests and the need for
MMPA compliance after January 23, 2009, dictate that these measures go
into effect immediately. The Navy is the entity subject to the
regulations and has informed NMFS that it is imperative that these
measures be effective on or before January 23, 2009. Finally, as
recognized by the President and the United States Supreme Court, the
training proposed to be conducted in the HRC is in the paramount
interest of the United States. Any delay in the implementation of these
measures would raise serious national security implications. Therefore,
these measures will become effective upon filing.

List of Subjects in 50 CFR Part 216

Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.

Dated: January 2, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR Part 216 is amended as
follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. Subpart P is added to part 216 to read as follows:

Subpart P--Taking Marine Mammals Incidental to U.S. Navy Training
in the Hawaii Range Complex (HRC)

Sec.
216.170 Specified activity and specified geographical region.
216.171 Effective dates and definitions.
216.172 Permissible methods of taking.
216.173 Prohibitions.
216.174 Mitigation.
216.175 Requirements for monitoring and reporting.
216.176 Applications for Letters of Authorization.
216.177 Letters of Authorization.
216.178 Renewal of Letters of Authorization.
216.179 Modifications to Letters of Authorization.

Subpart P--Taking Marine Mammals Incidental to U.S. Navy Training
in the Hawaii Range Complex (HRC)

Sec. 216.170 Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occurs incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs

[[Page 1485]]

within the Hawaii Operational Area, which extends from 16 to 43[deg] N.
lat. and from 150 to 179[deg] degrees W. long.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities within the designated
amounts of use:
(1) The use of the following mid-frequency active sonar (MFAS) and
high frequency active sonar (HFAS) sources for U.S. Navy anti-submarine
warfare (ASW) training in the amounts indicated below (+/-10 percent):
(i) AN/SQS-53 (hull-mounted sonar)--up to 6420 hours over the
course of 5 years (an average of 1284 hours per year)
(ii) AN/SQS-56 (hull-mounted sonar)--up to 1915 hours over the
course of 5 years (an average of 383 hours per year)
(iii) AN/AQS-22 (helicopter dipping sonar)--up to 5050 dips over
the course of 5 years (an average of 1010 dips per year)
(iv) SSQ-62 (sonobuoys)--up to 12115 sonobuoys over the course of 5
years (an average of 2423 sonobuoys per year)
(v) MK-48 (torpedoes)--up to 1565 torpedoes over the course of 5
years (an average of 313 torpedoes per year)
(vi) AN/BQQ-10 (submarine mounted sonar)--up to 1000 hours over the
course of 5 years (an average of 200 per year)
(2) The detonation of the underwater explosives indicated in
paragraph (c)(2)(i) of this section conducted as part of the training
exercises indicated in paragraph (c)(2)(ii) of this section:
(i) Underwater Explosives:
(A) 5'' Naval Gunfire (9.5 lbs).
(B) 76 mm rounds (1.6 lbs).
(C) Maverick (78.5 lbs).
(D) Harpoon (448 lbs).
(E) MK-82 (238 lbs).
(F) MK-83 (574 lbs).
(G) MK-84 (945 lbs).
(H) MK-48 (851 lbs).
(I) Demolition Charges (20 lbs).
(J) EER/IEER (5 lbs).
(ii) Training Events:
(A) Mine Neutralization--up to 340 exercises over the course of 5
years (an average of 68 per year).
(B) Air-to-Surface MISSILEX--up to 250 exercises over the course of
5 years (an average of 50 per year).
(C) Surface-to-Surface MISSILEX--up to 60 exercises over the course
of 5 years (an average of 12 per year).
(D) BOMBEX--up to 195 exercises over the course of 5 years (an
average of 38 per year).
(E) SINKEX--up to 30 exercises over the course of 5 years (an
average of 6 per year).
(F) Surface-to-Surface GUNEX--up to 455 exercises over the course
of 5 years (an average of 91 per year).
(G) Naval Surface Fire Support--up to 140 exercises over the course
of 5 years (an average of 28 per year).

Sec. 216.171 Effective dates and definitions.

(a) Regulations are effective January 5, 2009 through January 5,
2014.
(b) The following definitions are utilized in these regulations:
(1) Uncommon Stranding Event (USE)--A stranding event that takes
place during a major training exercise and involves any one of the
following:
(i) Two or more individuals of any cetacean species (not including
mother/calf pairs, unless of species of concern listed in next bullet)
found dead or live on shore within a two day period and occurring on
same shore lines or facing shorelines of different islands.
(ii) A single individual or mother/calf pair of any of the
following marine mammals of concern: Beaked whale of any species, Kogia
sp., Risso's dolphin, melon-headed whale, pilot whales, humpback
whales, sperm whales, blue whales, fin whales, sei whales, or monk
seal.
(iii) A group of 2 or more cetaceans of any species exhibiting
indicators of distress.
(2) Shutdown (this definition specifically applies only to the word
as used in Sec. 216.174(a)(1)(xxviii)(A)(1) and (2))--The cessation of
MFAS operation or detonation of explosives within 14 nm of any live, in
the water animal involved in a USE.

Sec. 216.172 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.177, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 216.170(b), provided the activity is in
compliance with all terms, conditions, and requirements of these
regulations and the appropriate Letter of Authorization.
(b) The activities identified in Sec. 216.170(c) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 216.170(c) is limited to the following species, by
the indicated method of take and the indicated number of times:
(1) Level B Harassment (+/-10 percent of the number of takes
indicated below):
(i) Mysticetes:
(A) Humpback whale (Megaptera novaeangliae)--49470 (an average of
9894 annually).
(B) Minke whale (Balaenoptera acutorostrata)--320 (an average of 64
annually).
(C) Sei whale (Balaenoptera borealis)--230 (an average of 46
annually).
(D) Fin whale (Balaenoptera physalus)--230 (an average of 46
annually).
(E) Bryde's whale (Balaenoptera edeni)--320 (an average of 64
annually).
(ii) Odontocetes:
(A) Sperm whales (Physeter macrocephalus)--3905 (an average of 781
annually).
(B) Pygmy sperm whales (Kogia breviceps)--4325 (an average of 865
annually).
(C) Dwarf sperm whale (Kogia sima)--10610 (an average of 2122
annually).
(D) Cuvier's beaked whale (Ziphius cavirostris)--5750 (an average
of 1150 annually).
(E) Blainville's beaked whale (Mesoplodon densirostris)--1785 (an
average of 357 annually).
(F) Longman's beaked whale (Indopacetus pacificus)--525 (an average
of 105 annually).
(G) Rough-toothed dolphin (Steno bredanensis)--5385 (an average of
1077 annually).
(H) Bottlenose dolphin (Tursiops truncatus)--3670 ( an average of
734 annually).
(I) Pan-tropical dolphins (Stenella attenuata)--10995 (an average
of 2199 annually).
(J) Spinner dolphins (Stenella longirostris)--2105 (an average of
421 annually).
(K) Striped dolphins (Stenella coeruleoalba)--16045 (an average of
3209 annually).
(L) Risso's dolphin (Grampus griseus)--2485 (an average of 497
annually).
(M) Melon-headed whale (Peponocephala electra)--2985 (an average of
597 annually).
(N) Fraser's dolphin (Lagenodelphis hosei)--6235 (an average of
1247 annually).
(O) Pygmy killer whale (Feresa attenuata)--980 (an average of 196
annually).
(P) False killer whale (Pseudorca crassidens)--230 (an average of
46 annually).
(Q) Killer whale (Orcinus orca)--230 (an average of 46 annually).
(R) Short-finned pilot whale (Globicephala macrorynchus)--8990 (an
average of 1798 annually).
(iii) Pinnipeds: Hawaiian monk seal (Monachus schauinslandi)--550
(an average of 110 annually).

[[Page 1486]]

(2) Level A Harassment and/or mortality of no more than 10
individuals total of each of the species listed below over the course
of the 5-year regulations: Bottlenose dolphin (Tursiops truncatus),
Pygmy and Dwarf sperm whales (Kogia breviceps and sima), Melon-headed
whale (Peponocephala electra), Pantropical spotted dolphin (Stenella
attenuata), Pygmy killer whale (Feresa attenuata), Short-finned pilot
whale (Globicephala macrorynchus), Striped dolphin (Stenella
coeruleoalba), and Cuvier's beaked whale (Ziphius cavirostris),
Blainville's beaked whale, (Mesoplodon densirostris), Longman's beaked
whale (Indopacetus pacificus).

Sec. 216.173 Prohibitions.

Notwithstanding takings contemplated in Sec. 216.172 and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 216.177, no person in connection with the activities described in
Sec. 216.170 may:
(a) Take any marine mammal not specified in Sec. 216.172(c);
(b) Take any marine mammal specified in Sec. 216.172(c) other than
by incidental take as specified in Sec. 216.172(c)(1) and (2);
(c) Take a marine mammal specified in Sec. 216.172(c) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.177.

Sec. 216.174 Mitigation.

(a) When conducting training activities identified in Sec.
216.170(c), the mitigation measures contained in the Letter of
Authorization issued under Sec. Sec. 216.106 of this chapter and
216.177 must be implemented. These mitigation measures include, but are
not limited to:
(1) Mitigation Measures for ASW training: (i) All lookouts onboard
platforms involved in ASW training events shall review the NMFS-
approved Marine Species Awareness Training (MSAT) material prior to use
of mid-frequency active sonar.
(ii) All Commanding Officers, Executive Officers, and officers
standing watch on the Bridge shall have reviewed the MSAT material
prior to a training event employing the use of mid-frequency active
sonar.
(iii) Navy lookouts shall undertake extensive training in order to
qualify as a watchstander in accordance with the Lookout Training
Handbook (NAVEDTRA, 12968-D).
(iv) Lookout training shall include on-the-job instruction under
the supervision of a qualified, experienced watchstander. Following
successful completion of this supervised training period, Lookouts
shall complete the Personal Qualification Standard program, certifying
that they have demonstrated the necessary skills (such as detection and
reporting of partially submerged objects).
(v) Lookouts shall be trained in the most effective means to ensure
quick and effective communication within the command structure in order
to facilitate implementation of mitigation measures if marine species
are spotted.
(vi) On the bridge of surface ships, there shall be at least three
people on watch whose duties include observing the water surface around
the vessel.
(vii) All surface ships participating in ASW exercises shall, in
addition to the three personnel on watch noted previously, have at all
times during the exercise at least two additional personnel on watch as
lookouts.
(viii) Personnel on lookout and officers on watch on the bridge
shall have at least one set of binoculars available for each person to
aid in the detection of marine mammals.
(ix) On surface vessels equipped with mid-frequency active sonar,
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and
in good working order.
(x) Personnel on lookout shall employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
(xi) After sunset and prior to sunrise, lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook.
(xii) Personnel on lookout shall be responsible for reporting all
objects or anomalies sighted in the water (regardless of the distance
from the vessel) to the Officer of the Deck.
(xiii) CPF shall distribute the final mitigation measures contained
in the LOA and BO to the Fleet.
(xiv) Commanding Officers shall make use of marine species
detection cues and information to limit interaction with marine species
to the maximum extent possible consistent with safety of the ship.
(xv) All personnel engaged in passive acoustic sonar operation
(including aircraft, surface ships, or submarines) shall monitor for
marine mammal vocalizations and report the detection of any marine
mammal to the appropriate watch station for dissemination and
appropriate action.
(xvi) During mid-frequency active sonar training activities,
personnel shall utilize all available sensor and optical systems (such
as Night Vision Goggles) to aid in the detection of marine mammals.
(xvii) Navy aircraft participating in exercises at sea shall
conduct and maintain, when operationally feasible and safe,
surveillance for marine mammals as long as it does not violate safety
constraints or interfere with the accomplishment of primary operational
duties.
(xviii) Aircraft with deployed sonobuoys shall use only the passive
capability of sonobuoys when marine mammals are detected within 200
yards (182 m) of the sonobuoy.
(xix) Marine mammal detections shall be reported immediately to
assigned Aircraft Control Unit for further dissemination to ships in
the vicinity of the marine species as appropriate where it is
reasonable to conclude that the course of the ship will likely result
in a closing of the distance to the detected marine mammal.
(xx) Safety Zones--When marine mammals are detected by any means
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure
that MFAS transmission levels are limited to at least 6 dB below normal
operating levels if any detected marine mammals are within 1000 yards
(914 m) of the sonar dome (the bow).
(A) Ships and submarines shall continue to limit maximum MFAS
transmission levels by this 6-dB factor until the marine mammal has
been seen to leave the area, has not been detected for 30 minutes, or
the vessel has transited more than 2,000 yards (1828 m) beyond the
location of the last detection.
(B) The Navy shall ensure that MFAS transmissions will be limited
to at least 10 dB below the equipment's normal operating level if any
detected animals are within 500 yards (457 m) of the sonar dome. Ships
and submarines shall continue to limit maximum ping levels by this 10-
dB factor until the marine mammal has been seen to leave the area, has
not been detected for 30 minutes, or the vessel has transited more than
2000 yards (1828 m) beyond the location of the last detection.
(C) The Navy shall ensure that MFAS transmissions are ceased if any
detected marine mammals are within 200 yards of the sonar dome. MFAS
transmissions will not resume until the marine mammal has been seen to
leave the area, has not been detected for 30 minutes, or the vessel has
transited more than 2,000 yards beyond the location of the last
detection.

[[Page 1487]]

(D) Special conditions applicable for dolphins and porpoises only:
If, after conducting an initial maneuver to avoid close quarters with
dolphins or porpoises, the Officer of the Deck concludes that dolphins
or porpoises are deliberately closing to ride the vessel's bow wave, no
further mitigation actions are necessary while the dolphins or
porpoises continue to exhibit bow wave riding behavior.
(E) If the need for power-down should arise as detailed in ``Safety
Zones'' in paragraph (a)(1)(xx) of this section, Navy shall follow the
requirements as though they were operating at 235 dB--the normal
operating level (i.e., the first power-down will be to 229 dB,
regardless of at what level above 235 dB sonar was being operated).
(xxi) Prior to start up or restart of active sonar, operators shall
check that the Safety Zone radius around the sound source is clear of
marine mammals.
(xxii) Sonar levels (generally)--Navy shall operate sonar at the
lowest practicable level, not to exceed 235 dB, except as required to
meet tactical training objectives.
(xxiii) Helicopters shall observe/survey the vicinity of an ASW
Exercise for 10 minutes before the first deployment of active (dipping)
sonar in the water.
(xxiv) Helicopters shall not dip their sonar within 200 yards (183
m) of a marine mammal and shall cease pinging if a marine mammal closes
within 200 yards (183 m) after pinging has begun.
(xxv) Submarine sonar operators shall review detection indicators
of close-aboard marine mammals prior to the commencement of ASW
training activities involving active mid-frequency sonar.
(xxvi) Night vision goggles shall be available to all ships and air
crews, for use as appropriate.
(xxvii) Humpback Whale Cautionary Area: An area extending 5km (2.7
nm) from a line drawn from Kaunakakai on the island of Molokai to Kaena
Point on the Island of Lanai; and an area extending 5 km (2.7 nm) from
a line drawn from Kaunolu on the Island of Lanai to the most
Northeastern point on the Island of Kahoolawe; and within a line drawn
from Kanapou Bay on the Island of Kahoolawe to Kanahena Point on the
Island of Maui and a line drawn from Cape Halawa on the Island of
Molokai to Lipo Point on the Island of Maui, excluding the existing
submarine operating area.
(A) Should national security needs require MFAS training and
testing in the cautionary area between 15 December and 15 April, it
must be personally authorized by the Commander, U.S. Pacific Fleet
based on his determination that training and testing in that specific
area is required for national security purposes. This authorization
shall be documented by the CPF in advance of transiting and training in
the cautionary area, and the determination shall be based on the unique
characteristics of the area from a military readiness perspective,
taking into account the importance of the area for humpback whales and
the need to minimize adverse impacts on humpback whales from MFAS
whenever practicable. Further, Commander, U.S. Pacific Fleet will
provide specific direction on required mitigation measures prior to
operational units transiting to and training in the cautionary area.
(B) The Navy shall provide advance notification to NMFS of any such
activities (listed in paragraph (a)(1)(xxvii)(A)of this section).
(C) The Navy shall include in its periodic reports for compliance
with the MMPA whether or not activities occurred in the Humpback Whale
Cautionary Area and any observed effects on humpback whales due to the
conduct of these activities.
(xxviii) The Navy shall abide by the letter of the ``Stranding
Response Plan for Major Navy Training Exercises in the HRC'' to include
the following measures:
(A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 216.171(b)) occurs during a Major Training Exercise
(MTE, including RIMPAC, USWEX, or Multi-Strike Group Exercise) in the
HRC, the Navy shall implement the procedures described below.
(1) The Navy shall implement a Shutdown (as defined Sec.
216.171(b)) when advised by a NMFS Office of Protected Resources
Headquarters Senior Official designated in the HRC Stranding
Communication Protocol that a USE involving live animals has been
identified and that at least one live animal is located in the water.
NMFS and Navy will maintain a dialogue, as needed, regarding the
identification of the USE and the potential need to implement shutdown
procedures.
(2) Any shutdown in a given area shall remain in effect in that
area until NMFS advises the Navy that the subject(s) of the USE at that
area die or are euthanized, or that all live animals involved in the
USE at that area have left the area (either of their own volition or
herded).
(3) If the Navy finds an injured or dead animal floating at sea
during an MTE, the Navy shall notify NMFS immediately or as soon as
operational security considerations allow. The Navy shall provide NMFS
with species or description of the animal(s), the condition of the
animal(s) including carcass condition if the animal(s) is/are dead),
location, time of first discovery, observed behavior (if alive), and
photo or video (if available). Based on the information provided, NMFS
will determine if, and advise the Navy whether a modified shutdown is
appropriate on a case-by-case basis.
(4) In the event, following a USE, that qualified individuals are
attempting to herd animals back out to the open ocean and animals are
not willing to leave, or animals are seen repeatedly heading for the
open ocean but turning back to shore, NMFS and the Navy shall
coordinate (including an investigation of other potential anthropogenic
stressors in the area) to determine if the proximity of MFAS training
activities or explosive detonations, though farther than 14 nm from the
distressed animal(s), is likely contributing to the animals' refusal to
return to the open water. If so, NMFS and the Navy will further
coordinate to determine what measures are necessary to improve the
probability that the animals will return to open water and implement
those measures as appropriate.
(B) Within 72 hours of NMFS notifying the Navy of the presence of a
USE, the Navy shall provide available information to NMFS (per the HRC
Communication Protocol) regarding the location, number and types of
acoustic/explosive sources, direction and speed of units using MFAS,
and marine mammal sightings information associated with training
activities occurring within 80 nm (148 km) and 72 hours prior to the
USE event. Information not initially available regarding the 80 nm (148
km), 72 hour period prior to the event will be provided as soon as it
becomes available. The Navy will provide NMFS investigative teams with
additional relevant unclassified information as requested, if
available.
(C) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop
a MOA, or other mechanism consistent with federal fiscal law
requirements (and all other applicable laws), that will establish a
framework whereby the Navy can (and provide the Navy examples of how
they can best) assist NMFS with stranding investigations in certain
circumstances.
(xxix) While in transit, naval vessels shall be alert at all times,
use extreme caution, and proceed at a ``safe speed'' so that the vessel
can take proper and effective action to avoid a collision with any
marine animal and can be stopped

[[Page 1488]]

within a distance appropriate to the prevailing circumstances and
conditions.
(xxx) When marine mammals have been sighted in the area, Navy
vessels shall increase vigilance and take reasonable and practicable
actions to avoid collisions and activities that might result in close
interaction of naval assets and marine mammals. Actions may include
changing speed and/or direction and are dictated by environmental and
other conditions (e.g., safety, weather).
(2) Mitigation for IEER--The following are protective measures for
use with Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER) given an explosive source generates the acoustic wave used in
this sonobuoy.
(i) Crews shall conduct aerial visual reconnaissance of the drop
area prior to laying their intended sonobuoy pattern. This search
should be conducted below 500 yards (457 m) at a slow speed, if
operationally feasible and weather conditions permit. In dual aircraft
training activities, crews are allowed to conduct coordinated area
clearances.
(ii) Crews shall conduct a minimum of 30 minutes of visual and
acoustic monitoring of the search area prior to commanding the first
post detonation. This 30-minute observation period may include pattern
deployment time.
(iii) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of
observed marine mammal activity, the Navy shall deploy the receiver
ONLY and monitor while conducting a visual search. When marine mammals
are no longer detected within 1,000 yards (914 m) of the intended post
position, co-locate the explosive source sonobuoy (AN/SSQ-110A)
(source) with the receiver.
(iv) When able, crews will conduct continuous visual and aural
monitoring of marine mammal activity. This is to include monitoring of
own-aircraft sensors from first sensor placement to checking off
station and out of communication range of these sensors.
(v) Aural Detection: If the presence of marine mammals is detected
aurally, then that shall cue the aircrew to increase the diligence of
their visual surveillance. Subsequently, if no marine mammals are
visually detected, then the crew may continue multi-static active
search.
(vi) Visual Detection:
(A) If marine mammals are visually detected within 1,000 yards (914
m) of the explosive source sonobuoy (AN/SSQ-110A) intended for use,
then that payload shall not be detonated. Aircrews may utilize this
post once the marine mammals have not been re-sighted for 30 minutes,
or are observed to have moved outside the 1,000 yards (914 m) safety
buffer.
(B) Aircrews may shift their multi-static active search to another
post, where marine mammals are outside the 1,000 yards (914 m) safety
buffer.
(vii) Aircrews shall make every attempt to manually detonate the
unexploded charges at each post in the pattern prior to departing the
operations area by using the ``Payload 1 Release'' command followed by
the ``Payload 2 Release'' command. Aircrews shall refrain from using
the ``Scuttle'' command when two payloads remain at a given post.
Aircrews will ensure that a 1,000 yard (914 m) safety buffer, visually
clear of marine mammals, is maintained around each post as is done
during active search operations.
(viii) Aircrews shall only leave posts with unexploded charges in
the event of a sonobuoy malfunction, an aircraft system malfunction, or
when an aircraft must immediately depart the area due to issues such as
fuel constraints, inclement weather, and in-flight emergencies. In
these cases, the sonobuoy will self-scuttle using the secondary or
tertiary method.
(ix) The navy shall ensure all payloads are accounted for.
Explosive source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall
be reported as unexploded ordnance via voice communications while
airborne, then upon landing via naval message.
(x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
(3) Mitigation for Demolitions (DEMOs) and Mine Countermeasure
(MCM) Training (Up to 20 lb).
(i) Exclusion Zones--Explosive charges shall not be detonated if a
marine mammal is detected within 700 yards (640 m) of the detonation
site.
(ii) Pre-Exercise Surveys--For MCM training activities, the Navy
shall conduct a pre-exercise survey within 30 minutes prior to the
commencement of the scheduled explosive event. The survey may be
conducted from the surface, by divers, and/or from the air. If a marine
mammal is detected within the survey area, the exercise shall be
suspended until the animal voluntarily leaves the area.
(iii) Post-Exercise Surveys--Surveys within the same radius shall
also be conducted within 30 minutes after the completion of the
explosive event.
(iv) Reporting--Any evidence of a marine mammal that may have been
injured or killed by the action shall be reported immediately to NMFS.
(v) Mine Laying Training--Though mine laying training operations
involve aerial drops of inert training shapes on floating targets,
measures 1, 2, and 3 for Demolitions and Mine countermeasures will
apply to mine laying training. To the maximum extent feasible, the Navy
shall retrieve inert mine shapes dropped during Mine Laying Training.
(4) Mitigation for SINKEX, GUNEX, MISSILEX, and BOMBEX. (i) All
weapons firing shall be conducted during the period 1 hour after
official sunrise to 30 minutes before official sunset.
(ii) Extensive range clearance operations shall be conducted in the
hours prior to commencement of the exercise.
(iii) An exclusion zone with a radius of 1.0 nm (1.85 km) shall be
established around each target. An additional buffer of 0.5 nm (0.93
km) shall be added to account for errors, target drift, and animal
movements. Additionally, a safety zone, which extends out an additional
0.5 nm (0.93 km), shall be surveyed. Together, the zones extend out 2
nm (3.7 km) from the target.
(iv) A series of surveillance over-flights shall be conducted
within the exclusion and the safety zones, prior to and during the
exercise, when feasible. Survey protocol would be as follows:
(A) Overflights within the exclusion zone shall be conducted in a
manner that optimizes the surface area of the water observed. This may
be accomplished through the use of the Navy's Search and Rescue (SAR)
Tactical Aid (TACAID).
(B) All visual surveillance activities shall be conducted by Navy
personnel trained in visual surveillance. At least one member of the
mitigation team shall have completed the Navy's marine mammal training
program for lookouts.
(C) In addition to the overflights, the exclusion zone shall be
monitored by passive acoustic means, when assets are available. This
passive acoustic monitoring shall be maintained throughout the
exercise. Potential assets include sonobuoys, which can be utilized to
detect any vocalizing marine mammals in the vicinity of the exercise.
The sonobuoys shall be re-seeded as necessary throughout the exercise.
Additionally, passive sonar onboard submarines may be utilized to
detect any vocalizing marine mammals in the area. The Officer
Conducting the Exercise (OCE) shall be informed of any aural detection
of marine mammals and would include this information in the
determination of when it is safe to commence the exercise.
(D) On each day of the exercise, aerial surveillance of the
exclusion and safety

[[Page 1489]]

zones shall commence two hours prior to the first firing.
(E) The results of all visual, aerial, and acoustic searches shall
be reported immediately to the OCE. No weapons launches or firing would
commence until the OCE declares the safety and exclusion zones free of
marine mammals.
(F) If a marine mammal observed within the exclusion zone is
diving, firing shall be delayed until the animal is re-sighted outside
the exclusion zone, or 30 minutes has elapsed.
(G) During breaks in the exercise of 30 minutes or more, the
exclusion zone shall again be surveyed for any marine mammals. If
marine mammals are sighted within the exclusion zone, the OCE would be
notified, and the procedure described in paragraph (a)(4)(iv)(F) of
this section would be followed.
(H) Upon sinking of the vessel, a final surveillance of the
exclusion zone shall be monitored for two hours, or until sunset, to
verify that no marine mammals were harmed.
(v) Aerial surveillance would be conducted using helicopters or
other aircraft based on necessity and availability. These aircraft
shall be capable of (and shall, to the extent practicable) flying at
the slow safe speeds necessary to enable viewing of marine mammals with
unobstructed, or minimally obstructed, downward and outward visibility.
The Navy may cancel the exclusion and safety zone surveys in the event
that a mechanical problem, emergency search and rescue, or other
similar and unexpected event preempts the use of one of the aircraft
onsite for the exercise.
(vi) Where practicable, the Navy shall conduct the exercise in sea
states that are ideal for marine mammal sighting, i.e., Beaufort Sea
State 3 or less. In the event of a Beaufort Sea State of 4 or above,
the Navy shall utilize additional aircraft (conducting tight search
patterns), if available, to increase survey efforts within the zones.
(vii) The exercise shall not be conducted unless the exclusion zone
can be adequately monitored visually.
(viii) In the unlikely event that any marine mammals are observed
to be harmed in the area, a detailed description of the animal shall be
documented, the location noted, and if possible, photos taken. This
information would be provided to NMFS.
(b) [Reserved]

Sec. 216.175 Requirements for monitoring and reporting.

(a) As outlined in the HRC Stranding Communication Plan, the Holder
of the Authorization must notify NMFS immediately (or as soon as
clearance procedures allow) if the specified activity identified in
Sec. 216.170(c) is thought to have resulted in the mortality or injury
of any marine mammals, or in any take of marine mammals not identified
in Sec. 216.172(c).
(b) The Holder of the Letter of Authorization must conduct all
monitoring and required reporting under the Letter of Authorization,
including abiding by the HRC Monitoring Plan.
(c) The Navy shall complete an Integrated Comprehensive Monitoring
Plan (ICMP) in 2009. This planning and adaptive management tool shall
include:
(1) A method for prioritizing monitoring projects that clearly
describes the characteristics of a proposal that factor into its
priority.
(2) A method for annually reviewing, with NMFS, monitoring results,
Navy R&D, and current science to use for potential modification of
mitigation or monitoring methods.
(3) A detailed description of the Monitoring Workshop to be
convened in 2011 and how and when Navy/NMFS will subsequently utilize
the findings of the Monitoring Workshop to potentially modify
subsequent monitoring and mitigation.
(4) An adaptive management plan.
(5) A method for standardizing data collection across Range
Complexes.
(d) General Notification of Injured or Dead Marine Mammals--Navy
personnel shall ensure that NMFS (regional stranding coordinator) is
notified immediately (or as soon as clearance procedures allow) if an
injured or dead marine mammal is found during or shortly after, and in
the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or
underwater explosive detonations. The Navy shall provide NMFS with
species or description of the animal(s), the condition of the animal(s)
(including carcass condition if the animal is dead), location, time of
first discovery, observed behaviors (if alive), and photo or video (if
available). The Navy shall consult the Stranding Response Plan to
obtain more specific reporting requirements for specific circumstances.
(e) Annual HRC Monitoring Plan Report--The Navy shall submit a
report annually on October 1 describing the implementation and results
(through August 1 of the same year) of the HRC Monitoring Plan,
described in Sec. 216.175(b). Data collection methods will be
standardized across range complexes to allow for comparison in
different geographic locations. Although additional information will be
gathered, the marine mammal observers (MMOs) collecting marine mammal
data pursuant to the HRC Monitoring Plan shall, at a minimum, provide
the same marine mammal observation data required in Sec.
216.175(f)(1).
The HRC Monitoring Plan Report may be provided to NMFS within a
larger report that includes the required Monitoring Plan Reports from
multiple Range Complexes.
(f) Annual HRC Exercise Report--The Navy shall submit an Annual HRC
Exercise Report on October 1 of every year (covering data gathered
through August 1 (or completion of RIMPAC if later than Aug 1) of the
same year). This report shall contain information identified in
subsections 216.175(f)(1)--(f)(5).
(1) MFAS/HFAS Major Training Exercises--This section shall contain
the following information for Major Training Exercises (MTEs, which
include RIMPAC, USWEX, and Multi Strike Group) conducted in the HRC:
(i) Exercise Information (for each MTE):
(A) Exercise designator.
(B) Date that exercise began and ended.
(C) Location.
(D) Number and types of active sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, etc., participating in
exercise.
(G) Total hours of observation by watchstanders.
(H) Total hours of all active sonar source operation.
(I) Total hours of each active sonar source (along with explanation
of how hours are calculated for sources typically quantified in
alternate way (buoys, torpedoes, etc.)).
(J) Wave height (high, low, and average during exercise).
(ii) Individual marine mammal sighting info (for each sighting in
each MTE).
(A) Location of sighting.
(B) Species (if not possible--indication of whale/dolphin/
pinniped).
(C) Number of individuals.
(D) Calves observed (y/n).
(E) Initial Detection Sensor.
(F) Indication of specific type of platform observation made from
(including, for example, what type of surface vessel, i.e., FFG, DDG,
or CG).
(G) Length of time observers maintained visual contact with marine
mammal.
(H) Wave height (in feet).
(I) Visibility.
(J) Sonar source in use (y/n).
(K) Indication of whether animal is <200yd, 200-500yd, 500-1000yd,
1000-

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2000yd, or >2000yd from sonar source in paragraph (f)(1)(ii)(J) of this
section.
(L) Mitigation Implementation--Whether operation of sonar sensor
was delayed, or sonar was powered or shut down, and how long the delay
was.
(M) If source in use (see paragraph (f)(1)(ii)(J) of this section)
is hullmounted, true bearing of animal from ship, true direction of
ship's travel, and estimation of animal's motion relative to ship
(opening, closing, parallel).
(N) Observed behavior--Watchstanders shall report, in plain
language and without trying to categorize in any way, the observed
behavior of the animals (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming, etc.).
(iii) An evaluation (based on data gathered during all of the MTEs)
of the effectiveness of mitigation measures designed to avoid exposing
to mid-frequency sonar. This evaluation shall identify the specific
observations that support any conclusions the Navy reaches about the
effectiveness of the mitigation.
(2) ASW Summary--This section shall include the following
information as summarized from both MTEs and non-major training
exercises (i.e., unit-level exercises, such as TRACKEXs):
(i) Total annual hours of each type of sonar source (along with
explanation of how hours are calculated for sources typically
quantified in alternate way (buoys, torpedoes, etc.)).
(ii) Total hours (from December 15 through April 15) of hullmounted
active sonar operation occurring in the dense humpback areas plus a 5-
km buffer, but not including the Pacific Missile Range Facility. The
Navy shall work with NMFS to develop the exact boundaries of this area.
(iii) Total estimated annual hours of hull-mounted active sonar
operation conducted in Humpback Whale Cautionary area between December
15 and April 15.
(iv) Cumulative Impact Report--To the extent practicable, the Navy,
in coordination with NMFS, shall develop and implement a method of
annually reporting non-major (i.e., other than RIMPAC, USWEX, or Multi-
Strike Group Exercises) training exercises utilizing hull-mounted
sonar. The report shall present an annual (and seasonal, where
practicable) depiction of non-major training exercises geographically
across the HRC. The Navy shall include (in the HRC annual report) a
brief annual progress update on the status of development until an
agreed-upon (with NMFS) method has been developed and implemented.
(3) SINKEXs--This section shall include the following information
for each SINKEX completed that year:
(i) Exercise information (gathered for each SINKEX):
(A) Location.
(B) Date and time exercise began and ended.
(C) Total hours of observation by watchstanders before, during, and
after exercise.
(D) Total number and types of rounds expended/explosives detonated.
(E) Number and types of passive acoustic sources used in exercise.
(F) Total hours of passive acoustic search time.
(G) Number and types of vessels, aircraft, etc., participating in
exercise.
(H) Wave height in feet (high, low and average during exercise).
(I) Narrative description of sensors and platforms utilized for
marine mammal detection and timeline illustrating how marine mammal
detection was conducted.
(ii) Individual marine mammal observation (by Navy lookouts)
information (gathered for each marine mammal sighting):
(A) Location of sighting.
(B) Species (if not possible, indicate whale, dolphin or pinniped).
(C) Number of individuals.
(D) Whether calves were observed.
(E) Initial detection sensor.
(F) Length of time observers maintained visual contact with marine
mammal.
(G) Wave height.
(H) Visibility.
(I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
(J) Distance of marine mammal from actual detonations (or target
spot if not yet detonated)--use four categories to define distance:
(1) The modeled injury threshold radius for the largest explosive
used in that exercise type in that OPAREA (91 m for SINKEX in HRC);
(2) The required exclusion zone (1 nm for SINKEX in HRC);
(3) The required observation distance (if different than the
exclusion zone (2 nm for SINKEX in HRC); and
(4) Greater than the required observed distance. For example, in
this case, the observer would indicate if < 91 m, from 91 m--1 nm, from
1 nm--2 nm, and > 2 nm.
(K) Observed behavior--Watchstanders will report, in plain language
and without trying to categorize in any way, the observed behavior of
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and
direction.
(L) Resulting mitigation implementation--Indicate whether explosive
detonations were delayed, ceased, modified, or not modified due to
marine mammal presence and for how long.
(M) If observation occurs while explosives are detonating in the
water, indicate munition type in use at time of marine mammal
detection.
(4) IEER Summary--This section shall include an annual summary of
the following IEER information:
(i) Total number of IEER events conducted in the HRC.
(ii) Total expended/detonated rounds (buoys).
(iii) Total number of self-scuttled IEER rounds.
(5) Explosives Summary--To the extent practicable, the Navy will
provide the information described below for all of their explosive
exercises. Until the Navy is able to report in full the information
below, they will provide an annual update on the Navy's explosive
tracking methods, including improvements from the previous year.
(i) Total annual number of each type of explosive exercises (of
those identified as part of the ``specified activity'' in this final
rule) conducted in the HRC.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.)
for each explosive type.
(g) Sonar Exercise Notification--The Navy shall submit to the NMFS
Office of Protected Resources (specific contact information to be
provided in LOA) either an electronic (preferably) or verbal report
within fifteen calendar days after the completion of any major
exercise. (RIMPAC, USWEX, or Multi Strike Group) indicating:
(1) Location of the exercise.
(2) Beginning and end dates of the exercise.
(3) Type of exercise (e.g., RIMPAC, USWEX, or Multi Strike Group).
(h) HRC 5-yr Comprehensive Report--The Navy shall submit to NMFS a
draft report that analyzes and summarizes all of the multi-year marine
mammal information gathered during ASW and explosive exercises for
which annual reports are required (Annual HRC Exercise Reports and HRC
Monitoring Plan Reports). This report will be submitted at the end of
the fourth year of the rule (November 2012), covering activities that
have occurred through June 1, 2012.

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(i) Comprehensive National ASW Report--By June 2014, the Navy shall
submit a draft Comprehensive National Report that analyzes, compares,
and summarizes the active sonar data gathered (through January 1, 2014)
from the watchstanders in accordance with the Monitoring Plans for the
HRC, the Atlantic Fleet Active Sonar Training, the Southern California
(SOCAL) Range Complex, the Marianas Range Complex, the Northwest
Training Range, the Gulf of Alaska, and the East Coast Undersea Warfare
Training Range.
(j) The Navy shall respond to NMFS comments and requests for
additional information or clarification on the HRC Comprehensive
Report, the draft National ASW report, the Annual HRC Exercise Report,
or the Annual HRC Monitoring Plan Report (or the multi-Range Complex
Annual Monitoring Plan Report, if that is how the Navy chooses to
submit the information) if submitted within 3 months of receipt. These
reports will be considered final after the Navy has addressed NMFS'
comments or provided the requested information, or three months after
the submittal of the draft if NMFS does not comment by then.
(k) In 2011, the Navy shall convene a Monitoring Workshop in which
the Monitoring Workshop participants will be asked to review the Navy's
Monitoring Plans and monitoring results and make individual
recommendations (to the Navy and NMFS) of ways of improving the
Monitoring Plans. The recommendations shall be reviewed by the Navy, in
consultation with NMFS, and modifications to the Monitoring Plan shall
be made, as appropriate.

Sec. 216.176 Applications for Letters of Authorization.

To incidentally take marine mammals pursuant to the regulations in
this subpart, the U.S. citizen (as defined by Sec. 216.103 of this
chapter) conducting the activity identified in Sec. 216.170(c) (the
U.S. Navy) must apply for and obtain either an initial Letter of
Authorization in accordance with Sec. 216.177 or a renewal under Sec.
216.178.

Sec. 216.177 Letters of Authorization.

(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 216.178.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization will be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).

Sec. 216.178 Renewal of Letters of Authorization.

(a) A Letter of Authorization issued under Sec. Sec. 216.106 and
216.177 for the activity identified in Sec. 216.170(c) will be renewed
annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 216.176 will be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12 months;
(2) Timely receipt (by the dates indicated in these regulations) of
the monitoring reports required under Sec. 216.175(c) through (j); and
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 216.174 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 216.177, were
undertaken and will be undertaken during the upcoming annual period of
validity of a renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under this Sec. 216.106 and Sec. 216.178 indicates that a substantial
modification, as determined by NMFS, to the described work, mitigation
or monitoring undertaken during the upcoming season will occur, the
NMFS will provide the public a period of 30 days for review and comment
on the request. Review and comment on renewals of Letters of
Authorization are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
(d) NMFS, in response to new information and in consultation with
the Navy, may modify the mitigation or monitoring measures in
subsequent LOAs if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of mitigation and monitoring. Below
are some of the possible sources of new data that could contribute to
the decision to modify the mitigation or monitoring measures:
(1) Results from the Navy's monitoring from the previous year
(either from the HRC or other locations).
(2) Findings of the Monitoring Workshop that the Navy will convene
in 2011 (Sec. 216.175(q)).
(3) Compiled results of Navy funded research and development (R&D)
studies (presented pursuant to the ICMP (Sec. 216.175(d)).
(4) Results from specific stranding investigations (either from the
HRC Study Area or other locations, and involving coincident MFAS/HFAS
or explosives training or not involving coincident use).
(5) Results from the Long Term Prospective Study. (6) Results from
general marine mammal and sound research (funded by the Navy (or
otherwise).

Sec. 216.179 Modifications to Letters of Authorization.

(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106
and 216.177 and subject to the provisions of this subpart shall be made
until after notification and an opportunity for public comment has been
provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 216.178, without modification (except for the
period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.172(c), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.177 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.

[FR Doc. E9-37 Filed 1-5-09; 4:15 pm]
BILLING CODE 3510-22-P