[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Rules and Regulations]
[Pages 69295-69326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27540]



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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 218



Taking and Importing Marine Mammals; Navy Training Activities Conducted 
Within the Northwest Training Range Complex; Final Rule

Federal Register / Vol. 75 , No. 217 / Wednesday, November 10, 2010 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 0906101030-0489-03]
RIN 0648-AX88


Taking and Importing Marine Mammals; Navy Training Activities 
Conducted Within the Northwest Training 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 activities conducted in the Northwest Training Range 
Complex (NWTRC), off the coasts of Washington, Oregon, and northern 
California, for the period of October 2010 through October 2015. The 
Navy's activities are considered military readiness activities pursuant 
to the Marine Mammal Protection Act (MMPA), as amended by the National 
Defense Authorization Act for Fiscal Year 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 effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, as well as requirements pertaining to the monitoring and 
reporting of such taking.

DATES: Effective November 9, 2010 through November 9, 2015.

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 (see FOR FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION: 

Availability of Supporting Information

    Extensive Supplementary Information was provided in the proposed 
rule for this activity, which was published in the Federal Register on 
Monday, July 13, 2009 (74 FR 33828). 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.

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, notice of a proposed authorization is 
provided to the public for 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 National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) modified the MMPA by removing 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

    In September 2008, NMFS received an application from the Navy 
requesting authorization for the take of individuals of 26 species of 
marine mammals incidental to upcoming Navy training activities to be 
conducted within the NWTRC, which extends west to 250 nautical miles 
(nm) (463 kilometers [km]) beyond the coast of Northern California, 
Oregon, and Washington and east to Idaho and encompasses 122,400 nm\2\ 
(420,163 km\2\) of surface/subsurface ocean operating areas. These 
training activities are military readiness activities under the 
provisions of the NDAA. The Navy states, and NMFS concurs, that these 
military readiness activities may incidentally take marine mammals 
present within the NWTRC by exposing them to sound from mid-frequency 
or high-frequency active sonar (MFAS/HFAS) or underwater detonations. 
The Navy requested authorization to take individuals of 26 species of 
marine mammals by Level B Harassment and 13 individuals of 9 species by 
Level A Harassment. The Navy's model, which did not factor in any 
potential benefits of mitigation measures, predicted that 13 individual 
marine mammals would be exposed to levels of sound or pressure that 
would result in injury; thus, NMFS is authorizing the take of 13 
individuals per year by Level A Harassment. However, NMFS and the Navy 
have determined that injury can most likely be avoided through the 
implementation of the required mitigation measures. No mortality of 
marine mammals is authorized incidental to naval exercises in the 
NWTRC.

Background of 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 (74 FR 33829).

Overview of the NWTRC

    The proposed rule contains a description of the NWTRC, including 
both the Inshore and Offshore areas. The description contained in the 
proposed rule has not changed (74 FR 33829).

Description of 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

[[Page 69297]]

related LOAs. The proposed rule describes the nature and number of 
anti-submarine warfare (ASW) exercises, anti-surface warfare (ASUW) 
exercises, and mine warfare training (MIW) exercises, involving both 
mid- and high-frequency active sonar (MFAS and HFAS), as well as 
explosive detonations. It also describes the sound sources and 
explosive types used (74 FR 33828, pages 33829-33838). The narrative 
description of the action contained in the proposed rule has not 
changed, with one exception and one clarification indicated below. 
Tables 1, 2, and 3 list the types of sonar sources and the estimated 
yearly use, summarize the characteristics of the exercise types, and 
list the explosive types used.
    As a result of their Section 7 consultation with the U.S. Fish and 
Wildlife Service, the Navy agreed to make a small modification to their 
activity. They agreed to not conduct Explosive Ordnance Disposal (EOD) 
underwater demolition training at the Naval Magazine Indian Island site 
(1 event per year was previously included in the proposed rule). 
Instead, that training event will be conducted at the Hood Canal 
training site, so there will now be up to a total of two events per 
year in Hood Canal (instead of 1). The Navy further agreed that EOD 
will utilize charge sizes of 1.5 lbs or less at the Hood Canal site, 
instead of the 2.5 lbs or less identified in the proposed rule.
    The Navy has carefully characterized the training activities 
planned for the NWTRC over the 5 years covered by these regulations; 
however, evolving real-world needs necessitate flexibility in annual 
activities. NMFS has attempted to bound this flexibility with new 
language in the regulatory text (see Sec.  218.110(c)) which allows for 
flexibility in planned activities, provided it does not affect the take 
estimates and anticipated impacts in a manner that changes our 
analysis.
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Description of Marine Mammals in the Area of the Specified Activities

    Twenty-seven marine mammal species have confirmed or possible 
occurrence within the NWTRC, including six species of baleen whales 
(mysticetes), 16 species of toothed whales (odontocetes), five species 
of seals and sea lions (pinnipeds), and the sea otter (mustelids). Sea 
otters are under the jurisdiction of the Department of the Interior and 
are not considered further.) Table 4 summarizes their abundance, 
Endangered Species Act (ESA) status, population trends, and occurrence 
in the area. Seven of the species are ESA-listed and considered 
depleted under the MMPA: Blue whale; fin whale; humpback whale; sei 
whale; sperm whale; southern resident killer whale; and Steller sea 
lion. The proposed rule contains a discussion of one species that is 
not considered further in the analysis (the North Pacific right whale) 
because of its rarity in the NWTRC. The proposed rule also contains a 
discussion of bottlenose dolphins, but due to their extralimitality, 
the impact analysis concluded that this species will not be taken by 
the Navy's activity. The proposed rule also contains a discussion of 
important areas, including southern resident killer whale and Steller 
sea lion critical habitat, and the gray whale migration corridor. The 
proposed rule also includes a discussion of marine mammal 
vocalizations. Last, the proposed rule includes a discussion of the 
methods used to estimate marine mammal density in the NWTRC. The 
Description of Marine Mammals in the Area of the Specified Activities 
section has not changed from what was in the proposed rule (74 FR 
33828, pages 33838-33842).

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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 (74 FR 33828, pages 33845-33846). 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.

[[Page 69303]]

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 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 NWTRC, so this determination is inapplicable 
for this rulemaking); 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), as well as a discussion of the potential 
effects of vessel movement and collision (74 FR 33828, pages 33846-
33862). 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) (74 FR 33828, pages 33855-33860). The information 
contained in Potential Effects of Specified Activities on Marine 
Mammals section from the proposed rule has not changed.
    Later, in the Estimated Take of Marine Mammals Section, NMFS 
relates and quantifies the potential effects to marine mammals from 
MFAS/HFAS and underwater detonation of explosives discussed here to the 
MMPA definitions of Level A and Level B Harassment.

Mitigation

    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 
effecting 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 NDAA of 2004 amended 
the MMPA as it relates to military-readiness activities and the ITA 
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 
training activities described in the NWTRC application are considered 
military readiness activities.
    NMFS reviewed the proposed NWTRC activities and the proposed NWTRC 
mitigation measures as described in the Navy's LOA application to 
determine if they would result in the least practicable adverse effect 
on marine mammals, which includes 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 effectiveness of the ``military-
readiness activity.'' NMFS determined that further discussion was 
necessary regarding the use of MFAS/HFAS for training in the Inshore 
Area that contains the southern resident killer whale critical habitat.
    To address the concerns above, the Navy clarified for NMFS that no 
training utilizing MFAS/HFAS had occurred in the Inshore Area of NWTRC 
for the last six years, that it is not being conducted now, and that 
there are no plans to utilize MFAS/HFAS for training in the Inshore 
Area (i.e., it is not part of the Navy's specified activity). This 
information has been factored into NMFS' effects analysis. The Navy has 
indicated that should their plans change in the future they will 
request a new LOA, which would likely require new regulations, for the 
additional activities within the NWTRC. The Navy further explained that 
no explosive training occurs in the Inshore Area other than the annual 
detonation of four, up to 1.5-2.5lb charges, which are not anticipated 
to result in the take of marine mammals. For these reasons, no take of 
killer whales is anticipated to result from the Navy's activities in 
the Inshore area and none has been authorized.
    NMFS' proposed rule includes a list of the Navy's proposed 
mitigation measures (74 FR 33828, pages 33863-33867), which have been 
included in the regulatory text of this document. The following 
mitigation measure has been added since the publication of the proposed 
rule:
    ``Naval vessels will maneuver to keep at least 1,500 ft (500 yds) 
away from any observed whale in the vessel's path and avoid approaching 
whales head-on. These requirements do not apply if a vessel's safety is 
threatened, such as when change of course will create an imminent and 
serious threat to a person, vessel, or aircraft, and to the extent 
vessels are restricted in their ability to maneuver. Restricted 
maneuverability includes, but is not limited to, situations when 
vessels are engaged in dredging, submerged activities, launching and 
recovering aircraft or landing craft, minesweeping activities, 
replenishment while underway and towing activities that severely 
restrict a vessel's ability to deviate course. Vessels will take 
reasonable steps to alert other vessels in the vicinity of the whale. 
Given rapid swimming speeds and maneuverability of many dolphin 
species, naval vessels would maintain normal course and speed on 
sighting dolphins unless some condition indicated a need for the vessel 
to maneuver.''
    Based on our evaluation of the proposed measures and other measures 
considered by NMFS or recommended by the public, NMFS has determined 
that the required mitigation measures (including the Adaptive 
Management (see Adaptive Management below) component) 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 
proposed rule contains further support for this finding in the 
Mitigation Conclusion section (74 FR 33828, pages 33867-33868). During 
the public comment period, a few mitigation measures not previously 
considered were recommended and NMFS' analysis of these measures is 
included in the Response to Public Comment section.

Research

    The Navy provides a significant amount of funding and support to 
marine research. In the past five years

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the agency provided over $100 million ($26 million in FY08 alone) to 
universities, research institutions, federal laboratories, private 
companies, and independent researchers around the world to study marine 
mammals. The U.S. Navy sponsors 70 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.
    This research is directly applicable to Fleet training activities, 
particularly with respect to the investigations of the potential 
effects of underwater noise sources on marine mammals and other 
protected species. Proposed training activities employ active sonar and 
underwater explosives, which introduce sound into the marine 
environment.
    The Marine Life Sciences Division of the 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, which include the Marine Resource Assessments and the 
Navy OPAREA Density Estimates (NODE) reports. 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 for and record the types of any pathologies and 
diseases and investigate the relationship with potential causal factors 
(e.g., active sonar, seismic, weather). The study will not be a true 
``cohort'' study, because NMFS will be unable to quantify or estimate 
specific active sonar or other sound exposures for individual animals 
that strand. However, a cross-sectional or correlational analyses, a 
method of descriptive rather than analytical epidemiology, can be 
conducted to compare population characteristics, e.g., frequency of 
strandings and types of specific pathologies between general periods of 
various anthropogenic activities and non-activities within a prescribed 
geographic space. In the long-term study, NMFS will more fully and 
consistently collect and analyze data on the demographics of strandings 
in specific locations and consider anthropogenic activities and 
physical, chemical, and biological environmental parameters. This 
approach in conjunction with true cohort studies (tagging animals, 
measuring received sounds, and evaluating behavior or injuries) in the 
presence of activities and non-activities will provide critical 
information needed to further define the impacts of active sonar 
training exercises and other anthropogenic and non-anthropogenic 
stressors. In coordination with the Navy and other Federal and non-
federal partners, the comparative study will be designed and conducted 
for specific sites during intervals of both the presence and absence of 
anthropogenic activities such as active sonar transmission or other 
sound exposures to evaluate demographics of morbidity and mortality, 
presence of lesions, and cause of death or stranding. Additional data 
that will be collected and analyzed in an effort to control potential 
confounding factors includes factors such as average sea temperature 
(or just season), meteorological or other environmental variables 
(e.g., seismic activity), fishing activities, etc. All efforts will be 
made to include appropriate controls (i.e., no active sonar or no 
seismic); environmental variables may, however, complicate the 
interpretation of ``control'' measurements. The Navy and NMFS along 
with other partners are evaluating mechanisms for funding this study.

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.

Proposed Monitoring Plan for the NWTRC

    The Navy's final Monitoring Plan for the NWTRC may be viewed at 
NMFS' web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Monitoring Plan for NWTRC has been 
designed as a collection of focused ``studies'' (described fully in the 
NWTRC draft Monitoring Plan) to gather data that will allow the Navy to 
address the following questions:
    (a) Are marine mammals exposed to MFAS/HFAS, especially at levels 
associated with adverse effects (i.e., based on NMFS' criteria for 
behavioral

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harassment, TTS, or PTS)? If so, at what levels are they exposed?
    (b) If marine mammals are exposed to MFAS/HFAS in the NWTRC Range 
Complex, do they redistribute geographically as a result of continued 
exposure? If so, how long does the redistribution last?
    (c) If marine mammals are exposed to MFAS/HFAS, 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/HFAS (e.g., 
measures agreed to by the Navy through permitting) effective at 
preventing TTS, injury, and mortality of marine mammals?
    The extent of the training utilizing MFAS/HFAS in the NWTRC is 
comparatively less than several of the other training areas utilized by 
the Navy and not every one of these original five study questions will 
be addressed within NWTRC. Rather, data collected from NWTRC monitoring 
will be used to supplement a consolidated range complex marine mammal 
monitoring report incorporating data from the Navy's Hawaii Range 
Complex, Marianas Island Range Complex, NWTRC, and Southern California 
Range Complex. Monitoring methods proposed for the NWTRC include a 
combination of research elements designed to support both Range Complex 
specific monitoring, and contribute information to a larger Navy-wide 
program. These research elements include:

--Deployment of passive acoustic monitoring (PAM) devices, and,
--Marine mammal tagging.

    The monitoring techniques selected for the NWTRC will be primarily 
focused on providing additional data for study questions (b), (c), and 
(d).
    The amount of each type of monitoring may vary from the summary 
table or Monitoring Plan based on annual discussions between NMFS and 
the Navy regarding previous monitoring results and effectiveness and in 
accordance with the Adaptive Management component of this rule, 
however, the overall effort over the 5-year period will remain 
approximately equal to that laid out in the monitoring plan.
    This monitoring plan has been designed to gather data on all 
species of marine mammals that are observed in the NWTRC; however, 
where appropriate, priority will be given to beaked whales, ESA-listed 
species, killer whales, and harbor porpoises. The Plan recognizes that 
deep-diving and cryptic species of marine mammals such as beaked whales 
have a low probability of detection (Barlow and Gisiner, 2006). 
Therefore, methods will be utilized to attempt to address this issue 
(e.g., passive acoustic monitoring).
    In addition to the Monitoring Plan for MIRC, the Navy has completed 
an Integrated Comprehensive Monitoring Program (ICMP) Plan.
    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. The 
Navy finalized a 2009 ICMP Plan outlining the program on December 22, 
2009, as required by the 2009 LOAs for the Hawaii Range Complex (HRC), 
the Southern California Range (SOCAL), and Atlantic Fleet Active Sonar 
Training (AFAST). The ICMP may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    The ICMP is a developing program that will be in place for the 
length of this rule, and beyond, and NMFS and Navy will evaluate it 
annually to determine if it needs to be updated in order to keep pace 
with advances in science and technology and the collection of new data. 
In the 2009 ICMP Plan, the Navy outlines three areas of targeted 
development for 2010, including:
    1. Identifying more specific monitoring sub-goals under the major 
goals that have been identified.
    2. Characterizing Navy Range Complexes and Study Areas within the 
context of the prioritization guidelines described in the ICMP.
    3. Continuing to Develop Data Management, Organization and Access 
Procedures.
    The Navy shall comply with the 2009 ICMP Plan and continue to 
improve the program in consultation with NMFS. Changes and improvements 
to the program made during 2010 (as prescribed in the 2009 ICMP and 
otherwise deemed appropriate by the Navy and NMFS) will be described in 
an updated 2010 ICMP and submitted to NMFS by October 31, 2010 for 
review. An updated 2010 ICMP will be finalized by December 31, 2010. 
NMFS plans to solicit public comments on the updated ICMP in January, 
2011 and the input will be used to inform the 2011 Monitoring Workshop, 
the further development of the ICMP, and, potentially, monitoring 
modifications in the Navy's 2012 monitoring plans.

Monitoring Workshop

    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 
monitoring pursuant to the NWTRC rule as well as monitoring results 
from other Navy rules and LOAs (e.g., SOCAL, HRC, etc.). 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 research and development) 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.

Adaptive Management

    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 is evolving fairly quickly. 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 in the NWTRC in the Navy's over 
60 years of use of the area for testing and training). NMFS has 
included an adaptive management component in the regulations, which 
will allow NMFS 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.
    The following are some of the possible sources of applicable data:
     Results from the Navy's monitoring from the previous year 
(either from NWTRC 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

[[Page 69306]]

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 NWTRC or other locations, and involving coincident MFAS/HFAS or 
explosives training or not involving coincident use).
     Results from the Long Term Prospective Study described 
above.
     Results from general marine mammal and sound research 
(funded by the Navy (described above) or other agencies or entities).
     Any information that reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent Letters of Authorization.
    Mitigation measures could be modified or added (or deleted) if new 
data suggests 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 final 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, prior to LOA issuance, 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 both to compliance as well as ensuring that the most value is 
obtained from the required monitoring. The proposed rule contains the 
reporting requirements for the Navy (74 FR 33828, pages 33871-33872), 
and these requirements remain unchanged with the following exception. 
The requirements as written in the proposed rule include specific due 
dates for each of the reports. NMFS and the Navy are coordinating a 
workload plan to determine the best times during every year to submit 
all of the reports that the Navy is responsible for under final rules 
for multiple Range Complexes and training exercises. Although the 
reports described will always be submitted every year at a time that 
allows for adequate analysis by NMFS prior to the issuance of the 
subsequent LOA, we want to allow flexibility to change those dates 
yearly. Therefore, the regulatory text below will not specify the 
specific dates that the reports are due, as the due dates will be 
specified in the annual LOA.

Comments and Responses

    On July 13, 2009 (74 FR 33828), NMFS published a proposed rule in 
response to the Navy's request to take marine mammals incidental to 
military readiness training in the NWTRC and requested comments, 
information and suggestions concerning the proposed rule. During the 
30-day public comment period, NMFS received comments from the Marine 
Mammal Commission, the Washington Department of Fish and Wildlife, the 
Department of the Interior, the Natural Resources Defense Council (on 
behalf of the International Fund for Animal Welfare, the Center for 
Biological Diversity, Cetacean Society International, Friends of the 
San Juans, the Humane Society of the United States, the Ocean Futures 
Society, the Ocean Mammal Institute, People for Puget sound, Davis 
Bain, and Jean-Michel Cousteau), the Orca Network, The Whale Museum, 
Turtle Island Restoration Network (TIRN) and Center for Biological 
Diversity (CBD), as well as over two hundred members of the public. The 
NRDC gained support for their comments from over 54,000 members through 
form letters.

Introduction

    As described elsewhere in this document, 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 effecting 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.'' NMFS' decisions regarding whether or not to require any 
particular mitigation measure must include a careful balancing of the 
likely benefit of any particular measure to marine mammals and the 
likely effectiveness of the measure, with the practicability of the 
measure, which (for military readiness activities) includes 
consideration of the likely effect of that measure on personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
``military-readiness activity.''
    Because some of the comments received reflect an incomplete or 
inaccurate understanding of the nature and scope of the Navy's MFAS 
training exercises, we will summarize and clarify some issues up front 
that will support multiple responses below. For example, one commenter 
begins by stating that the Navy contemplates extensive sonar training. 
This is not the case. In the NWTRC, the annual amount of planned 
operation for the most powerful surface hull-mounted MFAS (which is 
responsible for the vast majority of the takes) is 108 hours annually. 
Comparatively, the annual sonar use in other areas that the Navy uses 
for training is far more extensive: 1670 hrs/yr in Hawaii, 2400 in the 
Mariana Islands, 2470 in SOCAL, and 5110 off the Atlantic Coast. 
Another significant difference is the fact that all of the sonar 
exercises in the NWTRC are approximately 1.5-hr exercises that utilize 
a single surface hull-mounted sonar, versus the major exercises within 
other training areas, which may last for several weeks, and use 
multiple (sometimes 10 or more) surface hull-mounted sonars 
simultaneously.
    Another point that is germane to several of the comments raised is 
the typical way that the MFAS exercises utilizing surface hull-mounted 
sonar (TRACKEXs) are conducted, and the areas in which they are 
typically conducted. Approximately 10 percent of the surface hull-
mounted MFAS is conducted in conjunction with the use of the Portable 
Undersea Training Range (PUTR), while the remaining 90 percent is 
conducted primarily in-transit as the vessel is moving from one point 
to another, most often south through the NWTRC towards the Southern 
California Range Complex. The majority of the in-transit MFAS use in 
the NWTRC has taken place and is projected to continue to take place at 
a distance of 50 nm or greater from shore, with infrequent training 
events occurring between 12 and 50 nm from shore. In-transit MFAS 
training is not anticipated to occur inside of 12 nm.
    The PUTR has been developed to support ASW training in areas where 
the ocean depth is between 300 ft and 12,000 ft and at least 3 nm from 
land. The PUTR will not be utilized within the Olympic Coast National 
Marine Sanctuary (OCNMS).
    In addition, the Navy provided funding to NMFS's Southwest 
Fisheries Science Center (SWFSC) in the fall of

[[Page 69307]]

2009, to update their newest spatial predictive habitat model with 
composite data from 1991 through 2008, the date of the last U.S. West 
Coast marine mammal survey. In the spring of 2010, SWFSC completed this 
analysis which provides finer scale (25-km) density resolution for 12 
of the most commonly sighted species within the U.S. West Coast EEZ 
including NWTRC. Results of this effort will be published in a NMFS 
Technical Report.
    From 2009 through 2010, marine mammal satellite tracking tag 
studies funded by the Navy in Southern California show that static 
plots of marine mammal occurrence do not provide the entire story on 
marine mammal life history. Tagged baleen whales and dolphins within 
Southern California quite frequently move significant distances. As 
part of the Navy's NWTRC Monitoring Plan, presence\absence data will be 
collected via offshore long-term passive acoustic monitoring devices 
from Scripps Institute of Oceanography, as well as marine mammal 
satellite tagging.
    In summary, the Navy, as part of its NWTRC Monitoring Plan will 
continue to contribute valuable scientific data in collaborating with 
regional and national scientific academic partners as to marine mammal 
distributions within the NWTRC.
    Last, for the second year in a row, the Navy is convening a 
workshop in October to which marine mammal experts have been invited. 
The Navy will review its monitoring results from the previous year and 
solicit recommendations on future plans. More formally, the Navy has 
been required by multiple LOAs to hold a Monitoring Workshop in 2011 
that will include both marine mammal experts and non-governmental 
organizations. Here, again, the Navy will provide a review of previous 
monitoring results from multiple range complexes and solicit input. The 
goal of the 2011 workshop, as laid out in the Integrated Comprehensive 
Monitoring Program Plan, is to comprehensively consider the resources 
available in different ranges, the data needs, and the species and 
conditions present in different ranges in order to identify the most 
appropriate monitoring across range complexes that will provide the 
most efficient methodology and best results.

Additional Mitigation Recommendations

    Comment 1: NRDC and other commenters recommended the establishment 
of a panel of marine mammal and oceanographic experts with regional 
expertise on marine mammal distribution, abundance, habitat, or 
population structure and ecology, or habitat suitability modeling to 
identify high-value habitat by reviewing and analyzing the published 
literature, survey data, and predictive models. The use of sonar in 
such habitat would be prohibited or subject to additional operational 
measures to ensure the greatest protection of animals in the area.
    Response: In January 2009, the Administrator of the National 
Oceanic and Atmospheric Administration committed, in a letter to the 
Council on Environmental Quality, to convene a panel to identify 
important marine mammal habitat, as described above. This process has 
begun. Once the results of that effort are available (anticipated in 
2011), NMFS will use them to inform decisions related to geographic 
mitigation requirements, both in upcoming rules, as well as in rules 
that have already been issued, through the adaptive management 
provision (described in the Adaptive Management section above).
    Comment 2: NRDC and several other commenters recommended that NMFS 
establish a protection area for northwest harbor porpoise populations 
landward of the 100-m isobath. Further, they recommended that NMFS 
establish an adjacent buffer zone to ensure that exposure levels do not 
exceed 120dB within the 100-m isobath. NMFS should ask the Navy to 
prepare a nominal propogation analysis for the coast to determine what 
stand-off distances are necessary to reduce exposures below the 120dB 
threshold. The NRDC further notes that the vast majority of the takes 
in the NWTRC are harbor porpoises.
    Response: The Navy conducts about 99 percent of their MFAS 
activities in the W-237 area, which extends out approximately 200 nm 
from the coast of the northern half of Washington state (see page 2-5 
of the Navy's NWTRC FEIS). Within the W-237, the 100-m isobath extends 
out from the coast approximately 40 nm at some points, and up to 80 nm 
in the northern portion near the Strait of Juan de Fuca. As noted above 
in the introduction to this section, the Navy has conducted, and plans 
to conduct, the majority of their in-transit MFAS activities beyond 50 
nm from shore, and has operated MFAS between 12 and 50 nm from shore 
infrequently in the past. As mentioned above, the PUTR (with which 
approximately 10 percent of the MFAS activities are associated) is 
designed to be used in depths of 300-1200 ft, so it is unlikely that it 
will be used within the 100-m isobath. Based on this general 
operational plan, there is only a relatively small area within the 100-
m isobath in which the Navy would potentially operate MFAS, and this is 
only a very small percentage of the entire W-237 area that is available 
and in which the Navy typically operates MFAS. In order to adequately 
train, however, the Navy needs to train within a wide range of 
bathymetric conditions, environmental conditions, and operational 
conditions (i.e., proximity to certain resources such as airfields), so 
it is unlikely that they would completely avoid the 100-m isobath.
    In short, based on their general operating plans, the overall size 
of the area available for training and the fact that they only plan to 
operate 108 hours of surface hull-mounted sonar total annually (but 
need to operate in a variety of conditions, including depths other than 
within the 100-m isobath), it is likely that only a relatively small 
subset of the 108 hours of MFAS will be operated within the 100-m 
isobath, but these hours are needed for operational flexibility.
    Regarding the establishment of an additional buffer to ensure that 
the area within the 100-m isobath is not ensonified above 120 dB, the 
Navy has done a propagation analysis and the distance at which sound 
from a surface hull-mounted sonar attenuates to 120 dB in the NWTRC is 
approximately 70 nm. A buffer of this nature would extend out 
approximately 110-150 nm from shore, rendering about 60-70 percent of 
the available MFAS training area inaccessible and reducing access to 
the vast majority of the bathymetric relief that is necessary for 
effective training. (NMFS notes that 120 dB is the minimum received 
level at which we have estimated that harbor porpoises may be taken by 
behavioral (Level B) harassment, and avoiding exposure above this level 
is akin to avoiding take completely, which would negate the need for an 
incidental take authorization.)
    Last, NRDC notes that the vast majority of the total takes in the 
NWTRC are of harbor porpoises. This is correct; of the approximately 
130,000 total annual authorized takes in the NWTRC, 119,000 are of 
harbor porpoises. This is because harbor porpoises are considered more 
sensitive to sound than many other marine mammals and any exposure 
above a received level of 120 dB is considered a take. However, of the 
total harbor porpoise takes, approximately 85 percent are anticipated 
to occur at a received level between 120 and 140 dB, from which we 
would expect a comparatively less severe response. Additionally, only 
approximately 0.5 percent of these takes

[[Page 69308]]

would result from exposures above a received level of 160 dB, which is 
still far below received levels associated with injurious takes. In 
short, there are more takes of harbor porpoises because they are more 
sensitive to sound. However, because we use a step function to define 
their predicted response, instead of a dose curve as we do for other 
marine mammal species, a large portion of the takes will likely consist 
of the minimum response that we would still consider a take.
    Comment 3: NRDC and several other commenters recommended that NMFS 
provide additional protection for marine mammals from the use of sonar 
within the OCNMS, by specifically prohibiting sonar usage in the OCNMS, 
or at a minimum, limiting the exercises taking place with the OCNMS by 
requiring final approval from the Pacific Fleet command, or using other 
means to minimize sonar use. In support of this recommendation, NRDC 
notes the seasonal use of the area by migrating gray whales, summer 
resident gray whales that use the area for feeding, and Southern 
Resident killer whales (SRKW) that use the area for part of the year.
    Response: The OCNMS is contained within the NWTRC and the 
delineation of the edge of the OCNMS essentially follows the 100-m 
isobath. The Navy will not deploy the PUTR within the OCNMS. Otherwise, 
please see NMFS' response to comment 2, above. Of additional note, 
because of the seasonal nature of the use of the area by some of the 
species that the commenters mention, those species' potential exposure 
to MFAS is likely an even smaller proportion of the total hours, as 
some of the hours of operation will occur in months that they are not 
present.
    Although the comment addressed here mentions only sonar training, 
it is worth noting that the Navy does not do any live bombing in the 
OCNMS waters (i.e., BOMBEX and SINKEXs are conducted outside the limits 
of the OCNMS). Additionally, in their DEIS, the Navy indicated their 
intent to create a small underwater minefield training range. Although 
they did not specify it in the DEIS, they have since clarified the fact 
that this small range will not be in OCNMS waters.
    Comment 4: NRDC and several other commenters recommended that NMFS 
identify the Greater Puget Sound as a protection area (except for 
activities occurring as part of the Keyport EIS) as a condition of the 
proposed rule. They further recommended that if Puget Sound is not 
designated as a protected area, NMFS should make the following 
clarifications in its final rule:
    [cir] That any use of MFA sonar for training or maintenance in the 
Greater Puget Sound would first require the Navy to obtain an 
incidental take permit given the potential for serious injury or 
mortality to marine mammals in the area;
    [cir] That the Navy has agreed to conduct neither sonar training 
nor maintenance activities in the Greater Puget Sound without MMPA 
authorization;
    [cir] That the Navy has internal checks, in addition to the MMPA 
requirement, on non-RDT&E sonar use in the Greater Puget Sound (e.g., 
requiring approval from Fleet Command).
    Response: The Navy's action does not include the use of MFAS for 
training or in-transit maintenance in the Greater Puget Sound area, so 
it is not necessary to designate the Greater Puget Sound area as a 
Protection Area. The Navy does not currently plan to use MFAS for 
training or in-transit maintenance in the Greater Puget Sound area, and 
they have committed to obtaining a separate LOA (which would require a 
new rulemaking) if they plan to conduct those activities in the Greater 
Puget Sound area.
    Additionally, the Navy has in place, and has since June 2003, an 
internal requirement wherein they must obtain permission from the 
Commander Pacific Fleet (CPF) before they may operate MFAS for 
training, maintenance or testing in Puget Sound. Since 2003, it has 
been CPF policy to not approve training, maintenance or testing use of 
sonar systems for vessels underway within Puget Sound. Pierside 
maintenance/testing of sonar systems within Puget Sound still requires 
CPF approval, and may be approved by CPF if it is not practical or 
feasible to conduct alternate maintenance/testing outside of Puget 
Sound. Since this requirement was put into place, every request to use 
MFAS underway for training, maintenance, or testing in Puget Sound has 
been denied, except on the Nanoose Range.
    Separately, pier-side maintenance was not included as part of the 
proposed action, either for the MMPA authorization, or in the Navy's 
EIS. Pierside maintenance and testing of sonars rarely involves 
emission of sound. Most often the source is out of the water and might 
emit only one or a few low amplitude pings. The Navy is currently 
compiling detailed information on all pierside testing activity 
nationwide and that information will be included in the next phase of 
environmental assessments in 2014. At this time the Navy does not 
anticipate that there will be any additional risk to marine mammals 
from pierside testing due to the infrequency of sound emissions and the 
relative rarity of marine mammals in the vicinity of these sites.
    Comment 5: NRDC and several other commenters recommended that NMFS 
establish a seasonal protection area in certain canyons and banks on 
the NWTRC that represent important foraging habitat, particularly for 
humpback whales. NRDC recommends seasonal protection areas for the 
``Prairie,'' Juan de Fuca Canyon, Swiftsure Bank, Barkley and Nitinat 
Canyons, and Heceta Bank, during the main humpback whale feeding season 
from June to October.
    Response: With respect to some of these specific areas, the 
Swiftsure Bank is well within 50 nm of shore, and as described above, 
it is unlikely that the Navy will utilize in-transit MFAS there. 
Additionally, Swiftsure Bank is within the 100-m isobaths, which is not 
where the PUTR is designed to be used, and partially within the OCNMS, 
where the PUTR will not be used. Heceta Bank is located off the shore 
of Oregon, and 99 percent of the Navy's MFAS use in the NWTRC is 
conducted within the W-237 area, which is located off the coast of 
Washington, so MFAS use is not likely to occur there. Additionally, the 
Prairie is an area that is less than 100 m deep, so the PUTR is not 
likely to be deployed there.
    The Navy plans to conduct approximately 108 hours of surface hull-
mounted MFAS use in the NWTRC annually. Allowing for the fact that it 
is not all planned in the months of June-October, and not all planned 
in any one of the specific areas noted in the comment, only a small 
number of hours of sonar is likely to occur in any of the specific 
areas recommended for protection by the commentors.
    Generally speaking, because of the small number of hours that the 
Navy may be conducting MFAS sonar training, the short duration of the 
exercises, the use of only one single hull-mounted sonar vessel, and 
the huge area over which training is conducted, the impracticability of 
designating additional protective areas identified by the commentors 
outweighs the likely benefits. It requires a considerable amount of 
planning, education, and subsequent attention by the Navy to establish 
and implement protective areas. Furthermore, the Navy only anticipates 
taking a small number of the species for which the protected areas 
would be established, by Level B Harassment (15 humpback whales, 14 
killer whales, and 4 gray whales), with the exception of harbor 
porpoises

[[Page 69309]]

(discussed in comment response 2). Considering the density of marine 
mammals and the likelihood of encountering them in any location during 
the course of a 1.5 hour period, we cannot predict with sufficient 
certainty that avoiding these areas would necessarily result in a 
decrease of takes.
    In addition, as mentioned previously, the Navy's NWTRC Monitoring 
Plan entails deploying long-term passive acoustic monitoring devices at 
two locations within the offshore NWTRC. One such Navy funded device 
has been in operation near Quinault Canyon since 2004. This will be 
supplemented with a second device which is currently forecast for 
deployment near the Juan de Fuca Canyon. Information from both passive 
acoustic devices will provide valuable scientific data on marine mammal 
vocalizations and anthropogenic sounds including commercial ship noise 
or transitory MFAS at these two locations. This analytical approach 
continues to be refined based on lessons learned from similar 
deployments and data review in Hawaii and Southern California. Summary 
data from these devices will be provided to NMFS and the public via 
annual Navy monitoring reports.
    Comment 6: The NRDC and several other commenters recommended that 
NMFS require avoidance of, or a reduction of training activity within, 
areas between 500 and 2,000 meters depth with unusual bottom topography 
(such as canyons), to provide additional protection to beaked whales.
    Response: The NRDC notes in their comments that there are no 
particular areas of known concentration for beaked whales in the NWTRC, 
but that most species appear to have a preference for areas of the 
lower continental slope. They may also be found in a wider range of 
conditions, from slopes to abyssal plain. First, NMFS may consider 
requiring a geographic limitation on an activity in a specific area of 
known concentration of particular species of animals, if the 
practicability analysis (which includes consideration of the nature of 
the activity, the likely benefits to the species, and the 
practicability of the measure) suggests that it will accomplish the 
least practicable adverse impact. However, we are less likely to 
recommend the avoidance of all of a type of area that an animal has a 
general preference for, especially in a case like this where the 
activity is comparatively limited, because it is unclear whether 
avoidance of all of the areas of this type will result in the reduction 
of impacts to the animals.
    More specifically, in the case of beaked whales, we are only 
authorizing the Level B take of 38 animals, so there is only a very 
limited potential benefit to making a huge tract of area unavailable 
for training. Further, as noted above, beaked whales may prefer a wider 
variety of areas than previously thought. In summary, only a portion of 
the already few hours of planned MFAS use will occur in this habitat, 
and it is impracticable to completely prohibit the Navy's access to 
this particular depth when they need to train in a wide variety of 
circumstances.
    Comment 7: The MMC recommended that the rule require suspension of 
the Navy's activities if a marine mammal is seriously injured or killed 
and the injury or death could be associated with those activities. The 
injury or death should be investigated to determine the cause, assess 
the full impact of the activity or activities and determine how 
activities should be modified to avoid future injuries or deaths.
    Response: NMFS' regulations include a provision for ``General 
notification of injured or dead marine mammals,'' under which Navy 
personnel shall ensure that NMFS is notified immediately (or as soon as 
clearance procedures allow) if an injured, stranded, 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 provision further requires the Navy to 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 of the animals (if available).
    It can take months to years to complete the necessary tests and 
analyses required to determine, with a reasonable amount of certainty, 
the cause of a marine mammal death--and sometimes it is not possible to 
determine it. All but one of the small number of strandings that have 
occurred around the world associated with MFAS exercises have occurred 
concurrent to exercises that would be considered ``major'', which 
typically involve multiple surface vessels and last for a much longer 
duration than the non-major exercises that occur in the NWTRC (as 
described above in the Introduction to this section). Hence, NMFS (with 
input from the Navy) determined that it was beneficial and practicable 
to preemptively outline an explicit plan (that includes a shutdown 
requirement in certain circumstances) for how to deal with a stranding 
that occurs during a major exercise, and therefore Stranding Response 
Plans were developed for all of the areas in which major exercises are 
conducted. Alternatively, for non-major exercises (including all of the 
exercises in the NWTRC), the general notification provisions apply, 
which means that the Navy would contact NMFS as soon as clearance 
procedures allow and we would determine how best to proceed at that 
time.
    Because so few strandings have been definitively associated with 
MFAS training in the 60+ years that the U.S. and other countries that 
share information have been conducting MFAS training; the exercises 
conducted in the NWTRC are of short duration and involve only one 
surface hull-mounted sonar; and investigations take a long time and are 
not always conclusive, it is not reasonable or practicable to require 
the Navy to shut down every time an injured or dead animal is found in 
the vicinity pending the results of an investigation that could take 
years to conduct.
    Comment 8: One commenter recommended that MFAS not be utilized off 
the coast of California from June through October to protect seasonal 
migration of blue and humpback whales.
    Response: The Navy plans to conduct 99 percent of their MFAS 
operation (which consists of 108 hours of surface hull-mounted sonar) 
within the W-237 area, which is located off the coast of Washington. 
This means that MFAS would be operated for only a few hours annually 
off the coast of California, at most.
    Comment 9: One commenter recommended that the Navy avoid operating 
MFAS within 300 nm of the OCNMS.
    Response: A three hundred mile buffer around the OCNMS would 
entirely encompass the NWTRC, thereby preventing the Navy from 
conducting the proposed activity, which is not a practicable option 
under the MMPA.
    Comment 10: One commenter noted that there is no reference to the 
Navy going to the aid of stranded animals.
    Response: NMFS, as the agency with authority over marine mammal 
health and stranding, does not want Navy personnel or other untrained 
and unpermitted individuals going to the aid of stranded animals. 
Rather, as described in the response to comment 7, above, the Navy is 
required to notify NMFS if they encounter an injured, stranded, or dead 
animal, and NMFS will respond as appropriate.
    Comment 11: One commenter recommended that we correct the

[[Page 69310]]

statement ``Southern resident killer whales spend the majority of their 
time in the Inshore Area from May/June through October/November, 
although they do make multi-day trips to the outer coast,'' to say 
``mid-June through September.'' The commenter further recommended that 
the Navy's sonar activity be limited to the summer period and when 
SRKWs have been located well within the Inshore Area (e.g. greater than 
~30 nautical miles east of Cape Flattery for sonar activities lasting 
less than 6 hours) by the listening network (Salish Sea hydrophone 
network--http://orcasound.net) and/or sighting networks (The Whale 
Museum, whale watch operators, Orca Network, Center for Whale Research, 
etc.).
    Response: The months originally indicated are taken from NMFS' 
Southern Resident Killer Whale Recovery Plan. The commenter did not 
offer a citation to support the alternate months suggested and, 
therefore, NMFS declines to make the suggested change. Killer whales 
are rarely seen outside of Puget Sound, and the Navy's model predicts 
that only 14 whales will be taken by Level B Harassment annually. 
Further, killer whales have a comparatively high probability of 
detection (Barlow, 2003a; Forney et al., 1995) and there is little 
doubt that they will be detected and MFAS shutdown before they can be 
exposed to received levels that might be associated with more severe 
behavioral responses or hearing sensitivity loss.
    Considering the low likelihood of impacts to killer whales from 
sonar in the absence of the additional limitations recommended by the 
commenter, combined with the resources and effort that would be 
necessary to maintain a running knowledge of the location of the killer 
whale pods, NMFS is not requiring that the Navy implement the 
recommended measure.
    Comment 12: One commenter believes that the Navy should restrict 
its training operations to instrumented ranges with acoustic systems 
that allow real-time monitoring and mitigation for marine mammals, such 
as the one it operates off southern California. Acoustic ranges 
apparently work well for detecting baleen whales and may be the only 
effective way to detect and monitor beaked whales, but may not be as 
effective for species (e.g., some porpoises) that vocalize at very high 
frequencies. The Navy should consider developing such a range in the 
Pacific Northwest.
    Response: The Navy has several instrumented ranges (Bahamas, 
Southern California, and Hawaii) and plans to install another off of 
Jacksonville, Florida. These ranges are used regularly in Navy marine 
mammal research and monitoring, and have greatly contributed to marine 
mammal distribution and abundance data in these areas, as well as our 
understanding of behavioral responses to MFAS. However, they are not 
used for real-time implementation of mitigation (see Navy DEIS at 5-
29).
    Because of the need to train in a variety of operational situations 
(i.e., proximity to different Navy resources) and bathymetric/
oceanographic conditions, as well as the need to conduct a large volume 
of training, the Navy cannot limit its training to areas with 
instrumented ranges. Additionally, the conservation value of such a 
limitation is unclear, as it would focus a greater volume of MFAS use 
in areas that also have high densities of marine mammals and in some 
cases near areas considered particularly important to marine mammals.
    Last, MFAS training occurs in relatively low amounts annually in 
the NWTRC and an instrumented range is not currently needed or being 
considered.
    Comment 13: One commenter questioned why dolphins or porpoises that 
``deliberately'' ride Navy ships' bow waves are not entitled to any 
protections.
    Response: The mitigation measure indicates that ``[i]f, after 
conducting an initial maneuver to avoid close quarters with dolphins or 
porpoises, the OOD 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.'' Navy personnel first 
try and avoid the bow-riding dolphins, and if that does not work, they 
may continue without further mitigation. Bow-riding is a common 
occurrence with certain species, and shutting down MFAS as frequently 
as these animals are encountered would seriously impact the Navy's 
mission effectiveness. The proposed rule described the potential 
impacts from this difference in mitigation (74 FR 33868), which is 
primarily that a temporary loss of hearing sensitivity is more likely 
to be incurred by these species than others, but still of a relatively 
brief and mild nature, and NMFS was still able to make its negligible 
impact determination for these species.
    Comment 14: One commenter recommended that NOAA ensure that as 
noise levels are ramped up, cetaceans are not herded by the noise into 
progressively shallower and shallower water where they may strand as 
beaked whales did in the Bahamas (2000) during Navy exercises.
    Response: Although the Navy does not utilize a ramp-up strategy for 
their sound sources, there is no scenario in the Navy's action under 
which animals would be herded into shallower water. The Navy is not 
conducting any MFAS training within the Greater Puget Sound area and 
MFAS use of the Washington Coast is primarily farther than 50 nm from 
shore, with infrequent occurrences between 12 and 50 nm from shore.

Mitigation Effectiveness

    Comment 15: The MMC and several other commenters recommended that 
NMFS require the Navy to develop and implement a plan to validate the 
effectiveness of monitoring and mitigation measures before beginning, 
or in conjunction with, the proposed military readiness training 
operations. The MMC further notes that NMFS appears to have concurred 
with the Navy that the Navy's mitigation efforts will reduce Level A 
takes to 0 and that the proposed mitigation measures are sufficient.
    Response: First, in response to the second sentence above, the Navy 
has estimated, through their modeling efforts, the numbers of animals 
that will be exposed to levels of sound or pressure that would be 
thought to result in Level A take (either through a permanent loss of 
hearing sensitivity from noise exposure, or tissue damage from exposure 
to explosives) in the absence of any mitigation. Those are the numbers 
of Level A takes that they have requested and NMFS is authorizing. 
Hence, although NMFS believes that the Navy's mitigation will most 
likely be effective at avoiding exposure to these levels (which, in the 
case of MFAS occur within 10m of the vessel), and that many animals 
will avoid noises at the levels necessary to incur a permanent hearing 
sensitivity loss, we are still authorizing the Level A take of 13 
individuals of 9 species.
    Marine mammal researchers have developed detection probabilities 
that estimate the likelihood of detecting individuals of different 
species of marine mammals from different platforms, in different 
environmental conditions, and at different distances. As part of their 
Monitoring Plans in other areas where training occurs, the Navy has 
developed studies to determine how well their watchstanders detect 
marine mammals as compared to experienced marine mammal observers. Four 
of these comparison studies have been conducted by the Navy this year 
pursuant to the requirements of their

[[Page 69311]]

LOAs for HRC, SOCAL, and AFAST and when the results of these studies 
have been fully analyzed, they will be included in NMFS analysis of the 
likelihood of Level A takes occurring. In the meantime, we have 
conservatively assumed that the mitigation is not effective and that 
animals will be taken by Level A Harassment as predicted by the model, 
which assumes that animals do not move away from a strong sound source 
and that exposure at a high level will never be avoided through 
detection and implementation of a shutdown (or non-startup).
    If there are other studies that the MMC has in mind to quantify 
mitigation and monitoring effectiveness, we would welcome specific 
recommendations. Additionally, the Navy is required to hold a 
Monitoring Workshop in 2011 (at which MMC representatives will 
hopefully be present) and the discussions at that workshop are intended 
to inform potential modifications to the Navy's existing monitoring 
plans, if appropriate, as they pursue a more comprehensive plan that 
best utilizes the resources in each area to gather the data that is 
most needed and can most effectively be gathered in a particular 
geographic area.
    Comment 16: Several commenters suggested that the Navy's primary 
method of reducing harm to marine mammals, powering down or securing 
sonar, is not effective. They indicated that it is hard to sight whales 
on fast-moving ships, especially beaked whales, and especially in 
certain conditions). They further suggested that time/area closures are 
a more effective form of mitigation.
    Response: While few mitigation measures are 100 percent effective, 
the Navy's powerdown and shutdown strategy is likely effective at 
avoiding exposure to injurious levels of sound, and does succeed in 
reducing exposures of marine mammals (to varying degrees, depending on 
the species and environmental conditions) to higher levels of sound 
that might be associated with more severe behavioral responses. The 
Mitigation Conclusion section of the proposed rule describes our least 
practicable adverse impact analysis (74 FR 33867).
    NMFS agrees that geographic mitigation can be an effective tool for 
reducing impacts to marine mammals in certain circumstances. However, 
we have evaluated the potential areas recommended for marine mammal 
protection in the NWTRC and the impracticability of the recommended 
measures outweighed the likely benefit to the species.
    Comment 17: To protect the Southern Residents, NOAA should insist 
that the Navy not operate SONARs or set off explosions for any purposes 
short of war, unless they know that orcas are not within a distance 
where they would be killed, injured or caused to panic.
    Response: The Navy is currently required to implement MFAS and 
explosive powerdown and shutdown requirements, which, considering the 
high probability of detection of killer whales, should ensure that 
killer whales do not approach within a distance where they would be 
injured or killed. It is hard to know exactly what might cause a killer 
whale to panic, but the circumstances in which this behavior has 
previously been observed in killer whales in response to MFAS in this 
area are no longer likely to occur in the NWTRC, as no MFAS is operated 
within the Greater Puget Sound area and sonar is predominantly operated 
over 50 nm off-shore.
    Comment 18: NOAA should initiate studies independent of the Navy in 
order to determine if mitigation measures in other range complexes are 
working. If the measures are not working no future permits should be 
allowed until such time as alternative mitigation measures are proposed 
and tested. NOAA should also prepare to conduct studies, independent of 
Navy influence, in all Navy range complexes prior to issuing a permit 
for NWTRC.
    Response: NOAA has a duty to use the best available data to conduct 
our analyses and make our determinations. To assess the likely success 
of monitoring and mitigation measures, we consider available literature 
and examples of previous mitigation implementation and monitoring 
reports. We also require that the Navy submit multiple monitoring and 
reporting results annually for each range complex and that the Navy 
compile this information in a comprehensive manner for an annual 
adaptive management meeting. This meeting is used in coordination with 
the adaptive management components of the Navy rules, which provide a 
mechanism for mitigation or monitoring measures to be modified, as 
appropriate, based on new information.
    The MMPA does not require that NOAA initiate independent studies to 
determine if different mitigation measures are effective, nor do we 
always have the resources to do so, and nor is it necessary when 
information is available through other means. However, NOAA supports 
these efforts when feasible, and as noted in the introduction, in 
January 2009, NOAA committed to convene a workshop to identify cetacean 
hotspots and the information generated from that workshop will be used 
to inform management decisions, such as the development of geographic 
mitigation measures.
    Finally, most of the Navy funded range complex monitoring is 
conducted by qualified academic and scientific organizations. 
Information from these researchers is presented to NMFS and the public 
in annual monitoring reports, and these researchers have a long history 
of unbiased, successful scientific publication based on these studies. 
This kind of peer-review presentation of scientific results will 
continue based on monitoring efforts in the NWTRC and other Navy range 
complexes.

Impact Assessment

    Comment 19: The MMC recommended that NMFS require the Navy to 
conduct an external peer review of its marine mammal density estimates, 
the data upon which those estimates are based, and the manner in which 
those data are being used.
    Response: Both NMFS and the Navy use peer-reviewed science whenever 
it is available and applicable, and NMFS has encouraged the Navy to get 
the models they use and data they gather peer-reviewed. However, 
neither the NEPA, the MMPA, nor the ESA require that data or 
calculations used in the analyses pursuant to these statutes be peer-
reviewed prior to making a decision. Rather, NMFS and the Navy are 
required to use the best available science to inform our analyses.
    In the context of the Navy's NWTRC EIS/OEIS and LOA application, 
the marine mammal densities used in the Navy's impact analysis were 
derived from estimates directly provided by NMFS's Southwest Fisheries 
Science Center (SWFSC). As mentioned in a previous comment response, 
SWFWC continues to refine and improve this density estimation process.
    Also, while it is not the same as a peer review, both the NEPA and 
MMPA processes include a comment period in which the public can 
specifically recommend better ways to use the data to estimate density, 
and which the Navy and NMFS would need to address.
    Further, the Navy is developing a new systematic framework (that 
includes a hierarchy of preferred methodologies based on the data 
available in an area) to estimate density in the analyses for the rule 
renewals that will follow the expiration of the MMPA rules for Navy 
training issued in 2009, 2010, and 2011 (i.e., rules that would, if 
appropriate, be issued in 2014 and later). The Navy has indicated that 
they may pursue a peer

[[Page 69312]]

review of this framework and NMFS has encouraged them to do so.
    Comment 20: NRDC included a copy of their comments on the Navy's 
EIS and suggested that some of those comments also pertained to the 
MMPA authorization. Other commenters mirrored several of the 
recommendations that NRDC made in these comments.
    Response: NMFS has addressed the issues that apply to our issuance 
of the MMPA authorization below:
    (1) Additional Mitigation--NRDC recommends a suite of additional 
mitigation measures for the Navy to consider to protect various 
resources, including marine mammals. NMFS and the Navy have previously 
discussed either the specific measures listed in NRDC's comments on the 
Navy's EIS, or the general class of mitigation contemplated and have 
developed a section for the EIS that discusses the benefits of the 
proposed measure to marine mammals, the likely effectiveness of the 
measure, and the practicability of the measure for Navy implementation. 
Section 5.2.1.5 (begin page 5-23) of the NWTRC EIS, entitled 
Alternative Mitigation Measures Considered But Eliminated, explains why 
these measures are not included in NMFS MMPA regulations and NMFS 
refers readers to that document.
    (2) Dr. Bain's Critique of Risk Function--NRDC includes a 
comprehensive critique of the risk function that the Navy (and NMFS) 
uses to calculate takes. NMFS responded to Dr. Bain's comments in the 
Atlantic Fleet Active Sonar Training final rule (74 FR 4865) and refers 
readers to that document.
    Comment 21: One commenter suggests that it would be premature for 
NMFS to issue a take permit to the Navy until NOAA conducts an 
independent review of the adequacy of the Navy's proposed mitigation 
for the use of sonar.
    Response: Pursuant to Section 101(a)(5)(A) of the MMPA, NMFS has 
the responsibility of ensuring that any incidental take authorization 
regulations set forth the means of effecting the least practicable 
impact, which requires a review of the proposed mitigation measures in 
the context of the benefit to the species, the likely effectiveness of 
the measure, and the practicability of the measure for implementation. 
The rationale behind our finding of least practicable adverse impact 
was spelled out in the Mitigation Conclusion section of the proposed 
rule (74 FR 33868). The MMPA does not require that NOAA conduct an 
independent review. However, NMFS continues to monitor the Navy's 
mitigation and monitoring effectiveness by reviewing annual reports and 
using the adaptive management mechanism in the rule to inform decisions 
regarding whether mitigation or monitoring should be modified to 
increase their effectiveness.
    Comment 22: One commenter questioned why the Navy was not required 
to have incidental take authorization for explosive ordinance 
activities in the in-shore region.
    Response: As described in the proposed rule, (74 FR 33837), because 
of the more easily monitored inland location of the explosive ordnance 
disposal (EOD) ranges, the very limited use of explosives (4 individual 
explosions between 1.5 and 2.5 pounds) proposed annually for these Mine 
Countermeasure exercises, and the likely effectiveness of the 
mitigation (e.g., marine mammal take would only be expected if a marine 
mammal were exposed within less than 200 m of the detonation, and the 
Navy does not detonate explosives if a marine mammal is seen within 700 
m), take of marine mammals is not anticipated or authorized.
    Comment 23: A few commenters noted that NMFS should conduct 
additional analysis and provide stronger protection for marine mammals 
from Navy training vessel operations including collisions, discharges 
of wastewater and garbage, and emissions of air pollution and 
greenhouse gases. Some commenters also objected to the Navy's use of 
depleted uranium in some of their ordnance.
    Response: NMFS did analyze (74 FR 33862) the potential impacts from 
vessel strike in the proposed rule and added a mitigation measure in 
the final rule to minimize the likelihood of a strike (see Sec.  
218.114(a)(1)(ii)(I). Because of the relatively low density of Navy 
traffic in the NWTRC and the mitigation measures (and the fact that the 
Navy has not struck a whale there previously), NMFS does not believe 
that the vessel strike of a marine mammal is likely in the NWTRC.
    The Effects on Marine Mammal Habitat section of the proposed rule 
considered the impacts of expendable materials and some of the 
chemicals associated with Navy training activities on marine mammal 
habitat (74 FR 33885) and determined that there would be no significant 
impacts to marine mammal habitat. Additionally, NMFS' Biological 
Opinion (page 192-195) covering the Navy's training activities in the 
NWTRC, as well as NMFS' issuance of an MMPA authorization, analyzed the 
effects of the chemicals expended by the Navy's ordnance and 
projectiles and found they were unlikely to adversely impact ESA-listed 
marine mammals.
    The Navy's NWTRC EIS addresses discharges and emissions resulting 
from the Navy's training activities. The Navy complies with all state 
and Federal requirements related to water and air quality. Based on the 
Navy's analysis, NMFS does not believe that wastewater or garbage 
discharge or emissions will result in the take of marine mammals or 
significantly impact marine mammal habitat adversely.
    Separately, none of the surface combatant ships stationed in the 
Pacific Northwest, which are the ships that do the preponderance of 
training at sea in the Pacific Northwest, have depleted uranium rounds 
onboard. Subsequent to public release of the Draft EIS/OEIS, Commander 
Pacific Fleet directed that all Pacific Fleet ships offload all 
depleted uranium rounds at the earliest opportunity. This change is 
reflected in the Final EIS/OEIS in Section 2.4.1.1, which indicates 
that depleted uranium use is no longer included in the Navy's Proposed 
Action.
    Comment 24: One commenter suggested that the mitigation measures 
with regard to Navy vessels operating at ``safe speeds'' to avoid 
collisions with marine mammals are unrealistic. There is no such thing 
as a safe speed due to the fact that Navy vessels do not stop, turn or 
slow down like small speed boats or automobiles. Thus, avoiding a 
collision would be impossible because it takes thousands of yards to 
turn a vessel or slow it down. Marine mammals surface to breathe 
sporadically and are not seen on the surface often enough to give 
enough warning time to avoid collisions.
    Response: Avoiding collisions is difficult for large ships. 
However, some Navy vessels are fairly maneuverable, even at speed, and 
the more vigilant the watchstanders are (i.e., the earlier a whale is 
sighted), the more likely a collision can be avoided. Mitigation 
measures are intended to reduce the likelihood of ship strikes to the 
lowest level possible. In the case of the NWTRC, which has 
comparatively low Navy traffic and in which a Navy vessel has not 
previously struck a whale, NMFS believes that vessel strike is 
unlikely.
    Comment 25: One commenter suggests that the Navy's assumption of a 
``uniform and stationary distribution of marine mammals,'' would result 
in gross underestimation of potential exposures in all areas, seasons, 
or circumstances involving aggregations of animals engaged in mating, 
birthing, feeding, migrating, and other common activities

[[Page 69313]]

that often concentrate large numbers of animals in one area.
    Response: This statement is incorrect. Given the same total number 
of animals in an area (and the Navy used the best available survey 
information to inform their density estimates), over a long amount of 
time, you would encounter the same number of animals if they were 
evenly distributed as if they were clumped (unless you were selectively 
going to the places that they were clumped, which will not occur here). 
With a uniform distribution you would encounter marine mammals more 
often, but only one at a time, whereas with a clumped distribution, you 
would encounter them far less frequently, but in higher numbers at one 
time. Given a short amount of time (for example, the short duration of 
the MFAS activities in the NWTRC), a uniform distribution might be more 
likely to overestimate takes, because with a clumped distribution, you 
are far less likely to encounter groups of animals during the short 
duration of the actual exercises.
    Comment 26: One commenter states that the proposed rule assumes 
that because effects were not detected over the last 60 years, they 
never occurred, while at the same time, the proposed rule acknowledges 
that no monitoring has occurred during this period.
    Response: NMFS does not make this assumption (see 74 FR 33887-
33888). The Navy has been conducting MFAS/HFAS training exercises in 
the NWTRC Range Complex for over 60 years. Although the Navy has not 
conducted monitoring specifically in conjunction with training 
exercises in the past, people have been collecting stranding data in 
the NWTRC Range Complex for approximately 30 years. We further state 
that although not all dead or injured animals are expected to end up on 
the shore (some may be eaten or float out to sea), one might expect 
that if marine mammals were being harmed by the Navy training exercises 
with any regularity, more evidence would have been detected over the 
30-yr period.
    Comment 27: If the whales do not reach Alaska because they are all 
disoriented from sonar, bombings, etc., does this not affect the 
traditional Alaskan Native hunting grounds?
    Response: None of the species (or populations) of whales that 
Alaska natives currently hunt are present in the NWTRC (bowhead or 
beluga whales).
    Comment 28: One commenter had the following comment: Mooney, et al. 
(2009) have just demonstrated hearing loss in porpoises exposed to U.S. 
Navy MFA sonar ping recordings. Loss of auditory sensitivity could be 
as catastrophic for SRKWs (porpoises) as stranding. Because Navy 
underwater noise pollution could--in a worst case scenario--exacerbate 
difficulties the SRKWs may already be experiencing hearing the 
echolocation reflections from their rare salmonid prey (Au, 2004) due 
to vessel noise, the commenter has serious concerns about the proposed 
rule, and particularly the Killer Whale section on page 33890.
    Response: The proposed rule discusses both the likelihood of TTS 
occurring as a result of MFAS exposure (unlikely due to how close an 
animal would need to be to the source, the tendency of many marine 
mammals to avoid loud sounds at some distance, and the likely success 
of mitigation measures, especially for highly visible killer whales) 
and the likely overall impact of TTS if it should occur in these 
circumstances (minimal, short in duration and severity because of the 
short duration that an animal would likely be able to remain in close 
proximity to the source given the moving vessel and the continued 
likelihood of mitigation detection). Additionally, the Navy estimated 
that only 14 killer whales would be exposed to levels associated with 
Level B Harassment and that 0 would be exposed to levels associated 
with TTS, assuming no mitigation. In short, because of the low hours of 
total MFAS use, the short duration of each exercise, the fact that it 
is far from shore and does not take place in Puget Sound (where killer 
whales are known to concentrate in certain parts of the year, and where 
there are bathymetric conditions that have been associated with more 
severe responses to MFAS), killer whales are highly unlikely to incur 
TTS from the MFAS exercises in the NWTRC.
    Comment 29: One commenter suggested that NMFS made an incorrect 
statement in the proposed rule: ``Southern resident killer whales are 
very vocal, making calls during all types of behavioral states.'' They 
indicated that, on the contrary, it is well known that entire pods of 
SRKWs remain completely silent during the resting behavioral state.
    Response: This is a valid correction. NMFS did not mean to imply 
that killer whales vocalized while they are resting. A corrected 
sentence would read ``Southern resident killer whales are very vocal, 
making calls during almost all types of behavioral states.''
    Comment 30: Several comments made comments related to the analysis 
of cumulative impacts. One commenter specifically suggested that NMFS 
consider the cumulative impacts of several specific military activities 
that would likely occur in the area of the NWTRC (e.g., the Keyport 
expansion, and the explosives handling wharf at Naval Base Kitsap 
Bangor). Other commenters suggested that the Navy fails to consider the 
cumulative impacts of toxic chemicals on marine mammals. Another 
commenter suggested that the Navy has not considered the cumulative and 
synergistic impacts of ``taking'' marine mammals by exposure to MFAS 
from all of the Navy's range complexes. Another commenter suggests that 
NMFS and the Navy assume that the entire batch of proposed Navy actions 
will take place in a pristine environment and do not take into account 
their contributions to or exacerbation of existing conditions such as 
global climate change, acidification of the oceans, rising ocean 
levels, global ocean and atmospheric pollution, warming ocean waters, 
increased storm activities, global extinctions, and other disasters.
    Response: NMFS participated as a cooperating agency in the 
development of the Navy's NWTRC EIS and has adopted it to support our 
issuance of incidental take regulations and LOAs. NMFS discussed with 
the Navy the specific examples the commenter raised of activities that 
should be included in the cumulative impact analysis and they are 
included, as appropriate (i.e., considering the location of the 
activity and the anticipated impacts) in the FEIS. The FEIS contains a 
thorough analysis of potential cumulative effects, including pollutants 
and toxic chemicals. Throughout the FEIS, within the separate resource 
sections, the Navy addresses different ways that they will minimize 
adverse effects. As an agency, NMFS understands the importance of 
cumulative effects, and we continually look for ways to both better 
understand and more effectively reduce cumulative effects/impacts on 
marine mammals and other marine resources through implementation of our 
statutory authorities (Endangered Species Act (ESA), NEPA, Magnuson-
Stevens Fishery Conservation and Management Act, Coastal Zone 
Management Act, etc.) and more directly through policy and other 
actions, such as the implementation of the Right Whale Ship Strike 
Reduction rule or the convening of the Potential Application of Vessel-
Quieting Technology on Large Commercial Vessels meeting in May 2007.
    Regarding the consideration of the cumulative or synergistic 
effects of sonar conducted in all of the Navy's major range complexes 
the Navy has considered the cumulative impacts of sonar from different 
range complexes if they are adjacent or nearby. However, generally 
speaking (on the West Coast

[[Page 69314]]

especially), Navy range complexes are not in close proximity to one 
another and therefore the Navy has not considered the cumulative 
impacts of sonar use. Additionally, the vast majority of the impacts to 
marine mammals expected from sonar exposure are behavioral in nature, 
comparatively short in duration, and not of the type or severity that 
would be expected to be additive for the portion of marine mammals that 
might travel between range complexes.
    Last, NMFS and the Navy have considered how the Navy's action 
interacts with global conditions, such as climate change. The NWTRC 
FEIS notes that recent observed changes due to global warming include 
shrinking glaciers, thawing permafrost, a lengthened growing season, 
and shifts in plant and animal ranges (Intergovernmental Panel on 
Climate Change 2007). Also, predictions of long-term environmental 
impacts due to global warming include sea level rise, changing weather 
patterns with increases in the severity of storms and droughts, changes 
to local and regional ecosystems including the potential loss of 
species, and a significant reduction in winter snow pack. The 
Cumulative Impacts chapter of the NWTRC FEIS includes a discussion of 
climate change, greenhouse gases and other pollutants, and how the 
Navy's action will contribute to these global issues. The FEIS also 
highlights several goals that the Secretary of the Navy has established 
for reducing the Navy's consumption of fossil fuels, including:
     Mandate that energy usage, efficiency, life-cycle costs 
and other such factors be part of the Navy's decision when acquiring 
new equipment or systems, as well as vendors' efficiency or energy 
policies.
     Cut petroleum use by half in the Navy's fleet of 
commercial vehicles by 2015, by phasing in new hybrid trucks to replace 
older ones.
     Procure half the power at Navy shore installations from 
alternative energy sources--including wind or solar--by 2020, and where 
possible, supply energy back to the grid, as the Navy does today at 
Naval Air Weapons Station China Lake, California.
     Reach the point that half the energy used throughout the 
Navy Department, including in ships, aircraft, vehicles and shore 
stations, comes from alternative fuel or alternative sources by 2020. 
Today that percentage is about 17 percent.

Monitoring and Reporting

    Comment 31: One commenter suggested that it would be premature for 
NMFS to issue a take permit to the Navy until the public has had a 
chance to review the Monitoring Plan proposed for the NWTRC.
    Response: NMFS made the draft Monitoring Plan available on its 
webpage for the public to review during the public comment period.
    Comment 32: One commenter suggests that the Navy should assist in 
extending underwater monitoring for marine mammal sounds to the outer 
coast of Washington state.
    Response: The Navy's Monitoring Plan (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications) includes the deployment, and 
subsequent monitoring, of two passive acoustic devises on the outer 
coast of Washington.
    Comment 33: One commenter suggested that the Navy training DVD is 
inadequate for Navy observers.
    Response: The primary duty of the watchstanders on Navy vessels is 
to detect objects in the water, estimate their distance from the ship, 
and identify them as any of a number of inanimate or animate objects 
that are significant to a Navy exercise or as a marine mammal so that 
the mitigation can be implemented. Navy watchstanders go through 
extensive training to learn these skills, and the Marine Species 
Awareness Training is used to augment it with some marine mammal 
specific information that will make them aware of some cues that they 
may not otherwise have learned and may contribute to their collection 
of slightly more accurate and descriptive information in their reports. 
However, watchstanders are not expected to identify marine mammals to 
species and they are not expected to provide in-depth behavioral or 
status information on marine mammals.
    Alternatively, for the Monitoring Plans that the Navy develops and 
implements, professional biologists and scientists, with extensive 
marine mammal field experience, develop and conduct the data 
collection, and do the subsequent analysis.
    Comment 34: NMFS has prioritized beaked whales in the Navy's 
proposed Monitoring Plan for the area (74 FR 33870). This 
prioritization should include a firm, multi-year commitment to sponsor 
fine-scale surveys with the aim of identifying important beaked whale 
habitat for avoidance.
    Response: The Navy's current monitoring commitment includes the 
deployment of passive acoustic monitoring hydrophones off shore of 
Washington as well as tagging studies, both of which allow for a focus 
on beaked whales and will likely collect valuable information. In 2011, 
the Navy will hold a Monitoring Workshop, in which (with expert and 
public input) they will be comprehensively re-evaluating their 
monitoring priorities and plans (see Introduction to Monitoring 
section, above), and may modify this plan, as appropriate.
    Comments 35: We recommend that NMFS increase its reporting 
requirements for the Navy to provide information on (1) its use of mid-
frequency sonar (e.g., times, locations), which would greatly assist in 
analyzing and understanding the impacts of this sonar on marine 
mammals, and (2) the locations of southern resident killer whales and 
other marine mammals detected during its various monitoring efforts 
along the west coast.
    Response: For major MFAS training exercises (which do not occur in 
the NWTRC), the Navy is required to provide the times and locations of 
their MFAS use and the locations of the individual animals detected by 
their watchstanders. For non-major MFAS exercises (like those in the 
NWTRC), the Navy watchstanders implement the mitigation measures, but 
are not required to keep a written record of each animal seen because 
it is logistically difficult given the existing resources. Also for 
non-major exercises, the Navy is required to, to the extent 
practicable, develop and implement a method of annually reporting non-
major training utilizing hull-mounted sonar that presents an annual 
(and seasonal, where practicable) depiction of non-major training 
exercises geographically across NWTRC.
    The Navy also has a monitoring plan that includes the use of 
hydrophones to detect whale calls, and which will also utilize animal 
tagging. The results of the Navy's monitoring plan will be made 
available annually.

Other

    Comment 36: Multiple commenters requested an extension on the 30-
day public comment period on the MMPA proposed rule for the NWTRC. 
Another commenter suggested that in the future, NMFS allow 60 days for 
public comment on Navy training rules.
    Response: NMFS extended the public comment period by 7 days. Of 
note, the public comment period for the Navy's NWTRC DEIS was extended 
three times and the total comment period was 105 days. NMFS is 
currently working with the Navy to develop scheduling plans for the 
next round of training activities for which the Navy plans to request 
incidental take authorization. NMFS intends to include 60 days for 
public comment on these proposed rules.

[[Page 69315]]

    Comment 37: NMFS should hold back on approving marine mammal takes 
under the proposed MMPA rule for the NWTRC until the Presidential Ocean 
Policy Task Force process is complete.
    Response: NOAA is committed to the goals of the Ocean Policy Task 
Force. However, the intent is not to cease conducting our required 
regulatory actions while the details of implementation are being worked 
out. Additionally, the Ocean Policy Task Force strategy does not yet 
contain a level of detailed information that could be applied to this 
specific action. The MMPA mandates that NOAA ``shall issue'' the 
incidental take authorization if we are able to make the necessary 
findings. When the Task Force has produced a plan containing a level of 
detail that is applicable to MMPA authorizations under 101(a)(5)(A), it 
will be applied to this program. In the interim, NOAA will continue to 
comply with the MMPA requirements in a timely manner.
    Comment 38: Many commenters expressed general opposition to Navy 
activities and NMFS' issuance of an MMPA authorization, citing general 
concerns about the health and welfare of marine mammals.
    Response: NMFS appreciates the commenters' concern for the marine 
mammals that live in the area of the Navy's training activities. The 
MMPA directs NMFS to issue an incidental take authorization if certain 
findings can be made. NMFS has determined that the Navy's NWTRC 
training activities will have a negligible impact on the affected 
species or stocks. Additionally, NMFS has worked with the Navy to 
develop mitigation measures that help minimize the impacts to marine 
mammals and a monitoring plan that will increase our understanding of 
the marine mammals in the area and their responses in the presence of 
marine mammals. Therefore, we are issuing the necessary governing 
regulations and plan to issue the requested MMPA authorization.
    Comment 39: Several commenters recommended that the Navy share more 
of the information that they have access to with the public, for 
example:
     The Navy could make a significant contribution to the 
public's understanding of the whereabouts of killer whales by providing 
sighting data from their bases and ships as well as including 
hydrophones on the oceanographic buoys and tidal energy projects they 
are employing in the Sound.
     The Navy could utilize their existing infrastructure to 
provide the public (or at least independent scientists) with the 
ability to listen to the underwater soundscape on the outer coast of 
Washington.
     The Navy could share information about the locations of 
orcas with civilian agencies and organizations that seek to track the 
location of the orcas.
    Response: Following are responses to the specific bullets above:
     The reporting of killer whale sightings from transitory 
Navy ships would be of little value, given the vast tracts of ocean 
traversed in which sightings would not be obtained, the logistic 
difficulties of getting such reports in a useable and timely manner 
from the ships to outside Navy organizations, and the lack of useable 
scientific detail in a generic report of ``killer whale'' (no way to 
know if inshore or other killer whale stock). The shore based 
infrastructure is not part the Navy's LOA authorization for the NWTRC, 
nor is the Navy seeking MMPA authorization within inshore Washington 
State waters. The Navy's offshore monitoring program which includes 
passive acoustic monitoring will provide more scientifically robust 
information as to specific killer whale stocks detected and the 
periodicity of those detections, a far stronger and more useful 
approach than individual ship sightings.
     The Navy has no real-time infrastructure in-place for 
offshore passive acoustic ``listening''. Under the NWTRC Monitoring 
Plan, the Navy is proposing to deploy two of Scripps Institute of 
Oceanography High-frequency acoustic recording packages (HARP) within 
this area (http://cetus.ucsd.edu/). Given the distance from shore, 
depths of deployment (800-1000 m), and current technology limitations, 
there is no real-time listening available. Scripps services these 
devices approximately every 4-5 months to retrieve hard drives. New 
hard drives are inserted and the HARP re-deployed back into the ocean. 
The retrieved hard drive is then returned to the laboratory for 
analysis which can take some time to complete. Results from these 
deployments will however be provided to the NMFS and the public in the 
Navy's annual monitoring report for the NWTRC.
     All of the Navy monitoring results and summaries for the 
NWTRC will be made available to the NMFS and the public via annual 
monitoring reports. If detected, presence/absence vocalizations from 
offshore stocks and inshore resident stocks of killer whales will be 
reported. As described in the Navy's draft Monitoring Plan for the 
NWTRC, some results from the Quinault HARP do contain killer whale 
detections (see Oleson, E.M., J. Calambokidis, Erin Falcone, and Greg 
Schorr and J.A. Hildebrand. 2009. Acoustic and visual monitoring for 
cetaceans along the outer Washington coast-Technical Report, July 2004-
September 2008. Prepared for U.S. Navy. Naval Postgraduate School, 
Monterey, CA. NPS-OC-09-001. 45 pp.)
    Comment 40: In considering the U.S. Navy's plans to use loud sonars 
and to set off underwater explosions, it is imperative that NOAA be 
just as careful with the Navy with its fleets of generators of 
potentially lethal noises as NOAA is being with respect to whale watch 
boats and kayaks.
    Response: The Navy requested (pursuant to the MMPA) authorization 
to take marine mammals during their training exercises, which utilize 
sonar and explosives. In order to issue the authorization and comply 
with section 101(a)(5)(A) of the MMPA, NOAA must make certain findings 
and set forth appropriate mitigation and monitoring measures, which we 
have done. Additionally, where ESA-listed species are affected, and 
where NOAA proposes to authorize take, NOAA must evaluate those impacts 
pursuant to the ESA in a formal consultation, make certain findings, 
and issue an incidental take statement, which we have done.
    Alternately, in the case of whale watching boats and kayaks, those 
entities have not engaged in formal consultation under the ESA, nor do 
they have authorization under the MMPA to take marine mammals. Rather, 
NOAA has developed regional guidance regarding avoidance distances that 
are intended to completely avoid the take of killer whales. 
Consequently (and because the activities are completely different), the 
protective measures are different--the Navy is allowed to take marine 
mammals, but still has minimizing measures, whereas whalewatchers and 
kayakers have required measures to ensure that they do not take killer 
whales at all.
    Comment 41: Some comments addressed the protection of resources 
other than marine mammals (e.g., turtles) or addressed activities other 
than the take authorization (e.g., the designation of critical 
habitat). Some comments misrepresented the information contained in the 
proposed rule (e.g., ``NMFS should not allow the death of millions of 
marine mammals'').
    Response: NMFS considered these types of comments inapplicable and 
does not address them further here.

Estimated Take of Marine Mammals

    As mentioned previously, one of the main purposes of NMFS' effects 
assessments is to identify the

[[Page 69316]]

permissible methods of taking, meaning: The nature of the take (e.g., 
resulting from anthropogenic noise vs. from ship strike, etc.); the 
regulatory level of take (i.e., mortality vs. Level A or Level B 
Harassment) and the amount of take. In the Potential Effects of 
Exposure of Marine Mammals to MFAS/HFAS and Underwater Detonations 
section, NMFS identified the lethal responses, physical trauma, sensory 
impairment (permanent and temporary threshold shifts and acoustic 
masking), physiological responses (particular stress responses), and 
behavioral responses that could potentially result from exposure to 
MFAS/HFAS or underwater explosive detonations. In this section, we will 
relate the potential effects to marine mammals from MFAS/HFAS and 
underwater detonation of explosives to the MMPA statutory definitions 
of Level A and Level B Harassment and attempt to quantify the effects 
that might occur from the specific training activities that the Navy is 
proposing in the NWTRC.
    In the Estimated Take of Marine Mammals section of the proposed 
rule, NMFS relates the potential effects to marine mammals from MFAS/
HFAS and underwater detonations (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 activities that the Navy intends to conduct. The subsections 
of that analysis are discussed individually below.

Definition of Harassment

    The Definition of Harassment section of the proposed rule contains 
the definitions of Level A and Level B Harassment, 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). See 74 
FR 33828, pages 33872-33873. 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 (74 FR 33828, pages 33873-
33880). No changes have been made to the discussion contained in this 
section of the proposed rule.

Estimates of Potential Marine Mammal Exposure

    The proposed rule describes in detail how the Navy estimated the 
take that will result from their proposed activities (74 FR 33828, 
pages 33880-33881), which entails the following three general steps: 
(1) A propagation model estimates animals exposed to sources at 
different levels; (2) further modeling determines the number of 
exposures to levels indicated in criteria above (i.e., number of 
takes); and (3) post-modeling corrections refine estimates to make them 
more accurate. More information regarding the models used, the 
assumptions used in the models, and the process of estimating take is 
available in Appendix D of the Navy's DEIS for NWTRC.
    Table 5, which is identical to the Table 8 in the proposed rule 
with a few minor corrections (including the reduction from 1 to 0 of 
Level A Harassment takes of blue whales and Steller sea lions), 
indicates the number of takes that were modeled and that are being 
authorized yearly incidental to the Navy's activities, with the 
following allowances. The Navy has carefully characterized the training 
activities planned for the NWTRC over the 5 years covered by these 
regulations; however, evolving real-world needs necessitate flexibility 
in annual activities, which in turn is reflected in annual variation in 
the potential take of marine mammals. Where it was mentioned more 
generally in the proposed rule, NMFS has now included language bounding 
this flexibility in the regulatory text (see Sec.  218.112(c)). These 
potential annual variations were considered in the negligible impact 
analysis and the analysis in the proposed rule remains applicable. The 
new language indicates that after-action modeled annual takes (i.e., 
based on the activities that were actually conducted and which must be 
provided with annual LOA applications) of any individual species may 
vary but will not ultimately exceed the indicated 5-year total for that 
species by more than 10 percent and will not exceed the indicated 
annual total by more than 25 percent in any given year; and that 
modeled total yearly take of all species combined may vary but may not 
exceed the combined amount indicated below in any given year by more 
than 10 percent.
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Mortality

    Evidence from five beaked whale strandings, all of which have taken 
place outside the NWTRC and occurred over approximately a decade, 
suggests that the exposure of beaked whales to MFAS in the presence of 
certain conditions (e.g., multiple units using active sonar, steep 
bathymetry, constricted channels, strong surface ducts, etc.) may 
result in strandings, potentially leading to mortality. Although these 
physical factors believed to have contributed to the likelihood of 
beaked whale strandings are not present, in their aggregate, in the 
NWTRC, scientific uncertainty exists regarding what other factors, or 
combination of factors, may contribute to beaked whale strandings. 
However, because none of the MFAS/HFAS ASW exercises conducted in the 
NWTRC are major exercises employing multiple surface vessels, the 
exercises last 1.5 hours or less, and only 65 exercises are planned 
(for a total of about 100 hours of surface vessel sonar operation), 
NMFS and the Navy believe it is highly unlikely that marine mammals 
would respond to these exercises in a manner that would result in a 
stranding. Therefore, NMFS is not authorizing mortality.

Effects on Marine Mammal Habitat

    NMFS' proposed rule includes a section that addresses the effects 
of the Navy's activities on Marine Mammal Habitat (74 FR 33828, pages 
33883-33884). The analysis preliminarily concluded that the Navy's 
activities would have minimal effects on marine mammal habitat. No 
changes have been made to the discussion contained in this section of 
the proposed rule and NMFS has concluded there would be minimal effects 
on marine mammal habitat.

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 affected 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 had 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.), 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

[[Page 69318]]

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 preliminarily determine that Navy 
training will have a negligible impact on the marine mammal species and 
stocks present in NWTRC. No changes have been made to the discussion 
contained in this section of the proposed rule (74 FR 33828, pages 
33884-33892), with the following exception.
    As mentioned previously in the Estimated Take section, NMFS has 
added language bounding the flexibility in annual variation of 
potential take of individual marine mammal species into the regulatory 
text (see Sec.  218.112(c)). The new language indicates that modeled 
annual takes (which must be provided with the annual LOA application) 
of any individual species may vary but will not ultimately exceed the 
indicated 5-year total for that species (indicated by Table 6) by more 
than 10 percent and will not exceed the indicated annual total by more 
than 25 percent in any given year; and that modeled total yearly take 
of all species combined may vary but may not exceed the combined amount 
indicated below in any given year by more than 10 percent. NMFS has 
considered these limitations in our negligible impact determination and 
the findings described in the proposed rule remain applicable.

Determination

Negligible Impact

    Based on the analysis contained here 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 and monitoring measures, NMFS finds 
that the total taking from Navy training exercises utilizing MFAS/HFAS 
and underwater explosives in the NWTRC will have a negligible impact on 
the affected species or stocks. NMFS is issuing 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.

Subsistence Harvest of Marine Mammals

    NMFS has determined that the issuance of 5-year regulations and 
subsequent LOAs for Navy training exercises in the NWTRC would not have 
an unmitigable adverse impact on the availability of the affected 
species or stocks for subsistence use for any Alaska Natives or tribal 
member in the Northwest (e.g., Oregon, Washington, and northern 
California). Specifically, the Navy's exercises would not affect any 
Alaskan Native because the activities will be limited to waters off the 
coast of Washington, Oregon, and northern California, areas outside of 
traditional Alaskan Native hunting grounds. Moreover, there are no 
cooperative agreements in force under the MMPA or Whaling Convention 
Act that would allow for the subsistence harvest of marine mammals in 
waters off the Northwest coast. Consequently, this action would not 
result in an unmitigable adverse impact on the availability of the 
affected species or stocks for taking for subsistence uses in the 
Northwest.

ESA

    There are seven marine mammal species and one sea turtle species 
that are listed as endangered under the ESA with confirmed or possible 
occurrence in the study area: Humpback whale, sei whale, fin whale, 
blue whale, sperm whale, southern resident killer whale, Steller sea 
lion, and the leatherback 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) issued on June 15, 2010, NMFS concluded that the Navy's 
activities in the NWTRC 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 annual 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 the appropriate number of takes 
are authorized. For the Navy's proposed NWTRC training, 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 NMFS' ESA 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 marine 
mammal take authorized through the 2010 LOA (and subsequent LOAs in 
2011, 2012, 2013, and 2014). With respect to listed marine mammals, the 
terms and conditions of the ITSs will be incorporated into the LOAs.

NEPA

    NMFS has participated as a cooperating agency on the Navy's Draft 
Environmental Impact Statement (DEIS) for the NWTRC, which was 
published on December 29, 2008. A Notice of Availability for the FEIS 
was published on September 10, 2010. NMFS subsequently adopted the 
Navy's EIS for the purpose of complying with the MMPA.

Classification

    This action does not contain any collection of information 
requirements for purposes of the Paperwork Reduction Act.
    The Office of Management and Budget has determined that this final 
rule is not significant for purposes of Executive Order 12866.
    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

[[Page 69319]]

whenever the agency is required to publish a notice of proposed 
rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 
605 (b), that the action will not have a significant economic impact on 
a substantial number of small entities. The Navy is the sole 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 (RFA). 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. NMFS does not expect the issuance of 
these regulations or the associated LOAs to result in any impacts to 
small entities pursuant to the RFA. Because this action, if adopted, 
would directly affect the Navy and not a small entity, this 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. Navy, as the authorized entity, has 
informed NMFS that any delay of enacting the final rule would result in 
either: (1) A suspension of ongoing or planned naval training, which 
would disrupt vital training essential to national security; or (2) the 
Navy's procedural non-compliance with the MMPA (should the Navy conduct 
training without an LOA), thereby resulting in the potential for 
unauthorized takes of marine mammals. Moreover, the Navy is ready to 
implement the rule immediately. Therefore, these measures will become 
effective upon publication.

List of Subjects in 50 CFR Part 218

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

    Dated: October 25, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR part 218 is amended as 
follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 218 continues to read as follows:

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


0
2. Subpart M is added to part 218 to read as follows:
Subpart M--Taking and Importing Marine Mammals; U.S. Navy's Northwest 
Training Range Complex (NWTRC)
Sec.
218.110 Specified activity and specified geographical area.
218.111 Effective dates.
218.112 Permissible methods of taking.
218.113 Prohibitions.
218.114 Mitigation.
218.115 Requirements for monitoring and reporting.
218.116 Applications for Letters of Authorization.
218.117 Letters of Authorization.
218.118 Renewal of Letters of Authorization and adaptive management.
218.119 Modifications to Letters of Authorization.

Subpart M--Taking and Importing Marine Mammals; U.S. Navy's 
Northwest Training Range Complex (NWTRC)


Sec.  218.110  Specified activity and specified geographical area.

    (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 occur 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 within the Offshore area of the Northwest Training Range 
Complex (NWTRC) (as depicted in Figure ES-1 in the Navy's Draft 
Environmental Impact Statement for NWTRC), which is bounded by 
48[deg]30' N. lat.; 130[deg]00' W. long.; 40[deg]00' N. lat.; and on 
the east by 124[deg]00' W. long or by the shoreline where the shoreline 
extends west of 124[deg]00' W. long (excluding the Strait of Juan de 
Fuca (east of 124[deg]40' W. long), which is not included in the 
Offshore area).
    (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) 
sources, high frequency active sonar (HFAS) sources for U.S. Navy anti-
submarine warfare (ASW) and mine warfare (MIW) training, in the amounts 
indicated below:
    (i) AN/SQS-53 (hull-mounted active sonar)--up to 215 hours over the 
course of 5 years (an average of 43 hours per year);
    (ii) AN/SQS-56 (hull-mounted active sonar)--up to 325 hours over 
the course of 5 years (an average of 65 hours per year);
    (iii) SSQ-62 (Directional Command Activated Sonobuoy System 
(DICASS) sonobuoys)--up to 4430 sonobuoys over the course of 5 years 
(an average of 886 sonobuoys per year)
    (iv) MK-48 (heavyweight torpedoes)--up to 10 torpedoes over the 
course of 5 years (an average of 2 torpedoes per year);
    (v) AN/BQS-15 (mine detection and submarine navigational sonar)--up 
to 210 hours over the course of 5 years (an average of 42 hours per 
year);
    (vi) AN/SSQ-125 (AEER)--up to 745 buoys deployed over the course of 
5 years (total combined with the AN/SSQ-110A (IEER)) (an average of 149 
per year);
    (vii) Range Pingers--up to 900 hours over the course of 5 years (an 
average of 180 hours per year); and
    (viii) PUTR Uplink--up to 750 hours over the course of 5 years (an 
average of 150 hours per year).
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) conducted as part of the training events indicated 
in paragraph (c)(2)(ii):
    (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-48 (851 lbs);
    (G) Demolition Charges (2.5 lbs);
    (H) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs);
    (I) HARM;
    (J) Hellfire;
    (K) SLAM; and
    (L) GBU 10, 12, and 16.
    (ii) Training Events:
    (A) Surface-to-surface Gunnery Exercises (S-S GUNEX)--up to 1700 
exercises over the course of 5 years (an average of 340 per year).
    (B) Bombing Exercises (BOMBEX)--up to 150 exercises over the course 
of 5 years (an average of 30 per year).
    (C) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (an average of 2 per year).
    (D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 60 exercises (total combined with the AN/SSQ-125A 
(AEER)) over the course of 5 years (an average of 12 per year).
    (3) The taking of marine mammals may also be authorized in an LOA 
for

[[Page 69320]]

the activities and sources listed in Sec.  218.110(c)(1) should the 
amounts (i.e., hours, dips, number of exercises) vary from those 
estimated in Sec.  218.110(c)(2), provided that the variation does not 
result in exceeding the amount of take indicated in Sec.  218.112(c).


Sec.  218.111   Effective dates.

    Regulations are effective November 9, 2010 through November 9, 
2015.


Sec.  218.112  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 218.117 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``Navy'') may incidentally, but not 
intentionally, take marine mammals within the area described in Sec.  
218.110(b), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) [Reserved]
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.110(c) is limited to the species listed in 
paragraphs (c)(4) and (5) of this section by the indicated method of 
take and the indicated number of times (estimated based on the 
authorized amounts of sound source operation), but with the following 
allowances for annual variation in sonar activities:
    (1) In any given year, annual take, by harassment, of any species 
of marine mammal may not exceed the amount indentified in paragraph 
(c)(4) and (5) of this section, for that species by more than 25 
percent (a post-calculation/estimation of which must be provided in the 
annual LOA application);
    (2) In any given year, annual take by harassment of all marine 
mammal species combined may not exceed the estimated total of all 
species combined, indicated in paragraphs (c)(4) and (5), by more than 
10 percent; and
    (3) Over the course of the effective period of this subpart, total 
take, by harassment, of any species may not exceed the 5-year amounts 
indicated in paragraphs (c)(4) and (5) by more than 10 percent. A 
running calculation/estimation of takes of each species over the course 
of the years covered by the rule must be maintained.
    (4) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--75 (an average of 15 
annually);
    (B) Fin whale (Balaenoptera physalus)--720 (an average of 144 
annually);
    (C) Blue whale (Balaenoptera musculus)--95 (an average of 19 
annually);
    (D) Sei whale (Balaenoptera borealis)--5 (an average of 1 
annually);
    (E) Minke whale (Balaenoptera acutorostrata)--45 (an average of 9 
annually); and
    (F) Gray whale (Eschrichtius robustus)--20 (an average of 4 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--635 (an average of 127 
annually);
    (B) Killer whale (Orcinus orca)--70 (an average of 14 annually);
    (C) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--20 
(an average of 4 annually);
    (D) Mesoplodont beaked whales--75 (an average of 15 annually);
    (E) Cuvier's beaked whales (Ziphius cavirostris)--70 (an average of 
14 annually);
    (F) Baird's beaked whales (Berardius bairdii)--65 (an average of 13 
annually);
    (G) Short-finned pilot whale (Globicephala macrorynchus)--10 (an 
average of 2 annually);
    (H) Striped dolphin (Stenella coeruleoalba)--200 (an average of 40 
annually);
    (I) Short-beaked common dolphin (Globicephala macrorhynchus)--6280 
(an average of 1256 annually);
    (J) Risso's dolphin (Grampus griseus)--500 (an average of 100 
annually);
    (K) Northern right whale dolphin (Lissodelphis borealis)--3705 (an 
average of 741 annually);
    (L) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--2855 
(an average of 571 annually);
    (M) Dall's porpoise (Phocoenoides dalli)--23760 (an average of 4752 
annually); and
    (N) Harbor Porpoise (Phocoena phocoena)--596370 (an average of 
119274 annually).
    (ii) Pinnipeds:
    (A) Northern elephant seal (Mirounga angustirostris)--1890 (an 
average of 378 annually);
    (B) Pacific harbor seal (Phoca vitulina)--2930 (an average of 586 
annually);
    (C) California sea lion (Zalophus californianus)--1430 (an average 
of 286 annually);
    (D) Northern fur seal (Callorhinus ursinus)--6825 (an average of 
1365 annually); and
    (E) Steller sea lion (Eumetopias jubatus)--600 (an average of 120 
annually).
    (5) Level A Harassment:
    (i) Fin whale--5 (an average of 1 annually);
    (ii) Sperm whale--5 (an average of 1 annually);
    (iii) Dall's Porpoise--15 (an average of 3 annually);
    (iv) Harbor Porpoise--5 (an average of 1 annually);
    (v) Northern right whale dolphin--5 (an average of 1 annually);
    (vi) Short-beaked common dolphin--10 (an average of 2 annually);
    (vii) Northern elephant seal--10 (an average of 2 annually);
    (viii) Pacific harbor seal--5 (an average of 1 annually); and
    (ix) Northern fur seal--5 (an average of 1 annually).


Sec.  218.113  Prohibitions.

    No person in connection with the activities described in Sec.  
218.110 may:
    (a) Take any marine mammal not specified in Sec.  218.112(c);
    (b) Take any marine mammal specified in Sec.  218.112(c) other than 
by incidental take as specified in Sec. Sec.  218.112(c)(1) and (c)(2);
    (c) Take a marine mammal specified in Sec.  218.112(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 218.117 of this chapter.


Sec.  218.114  Mitigation.

    (a) When conducting training and utilizing the sound sources or 
explosives identified in Sec.  218.110(c), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 218.117 of this chapter must be implemented. These 
mitigation measures include, but are not limited to:
    (1) Navy's General Maritime Measures for All Training at Sea:
    (i) Personnel Training (for all Training Types):
    (A) All commanding officers (COs), executive officers (XOs), 
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter crews shall complete the NMFS-approved Marine Species 
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital 
versatile disk (DVD). All bridge lookouts shall complete both parts one 
and two of the MSAT; part two is optional for other personnel.
    (B) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D) 
available at https://portal.navfac.navy.mil/go/navytraining-env-docs.

[[Page 69321]]

    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced lookout. 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). Personnel being trained as lookouts can 
be counted among required lookouts as long as supervisors monitor their 
progress and performance.
    (D) 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 protective measures if marine species 
are spotted.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species protective measures.
    (B) COs 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.
    (C) While underway, surface vessels shall have at least two 
lookouts with binoculars; surfaced submarines shall have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts will watch for 
and report to the OOD the presence of marine mammals.
    (D) On surface vessels equipped with a multi-function active 
sensor, pedestal mounted ``Big Eye'' (20x110) binoculars shall be 
properly installed and in good working order to assist in the detection 
of marine mammals in the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout 
Training Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook. 
(NAVEDTRA 12968-D).
    (G) 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 within a distance appropriate to the 
prevailing circumstances and conditions.
    (H) 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).
    (I) Naval vessels shall maneuver to keep at least 1,500 ft (500 
yds) away from any observed whale in the vessel's path and avoid 
approaching whales head-on. These requirements do not apply if a 
vessel's safety is threatened, such as when change of course will 
create an imminent and serious threat to a person, vessel, or aircraft, 
and to the extent vessels are restricted in their ability to maneuver. 
Restricted maneuverability includes, but is not limited to, situations 
when vessels are engaged in dredging, submerged activities, launching 
and recovering aircraft or landing craft, minesweeping activities, 
replenishment while underway and towing activities that severely 
restrict a vessel's ability to deviate course. Vessels will take 
reasonable steps to alert other vessels in the vicinity of the whale. 
Given rapid swimming speeds and maneuverability of many dolphin 
species, naval vessels would maintain normal course and speed on 
sighting dolphins unless some condition indicated a need for the vessel 
to maneuver.
    (J) 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. Marine 
mammal detections shall be immediately reported to assigned Aircraft 
Control Unit for further dissemination to ships in the vicinity of the 
marine species as appropriate when 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.
    (K) All vessels shall maintain logs and records documenting 
training operations should they be required for event reconstruction 
purposes. Logs and records will be kept for a period of 30 days 
following completion of a major training exercise.
    (2) Navy's Measures for MFAS Operations:
    (i) Personnel Training (for MFAS Operations):
    (A) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (B) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of mid-frequency active sonar.
    (C) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Educational Training [NAVEDTRA], 12968-D).
    (D) 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). This does not forbid 
personnel being trained as lookouts from being counted as those listed 
in previous measures so long as supervisors monitor their progress and 
performance.
    (E) 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.
    (ii) Lookout and Watchstander Responsibilities:
    (A) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (B) All surface ships participating in ASW training events 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 marine mammal lookouts.
    (C) 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.
    (D) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and 
in good working order to assist in the detection of marine mammals in 
the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance

[[Page 69322]]

with the Lookout Training Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (G) 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, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, 
discoloration) in the water may be indicative of a threat to the vessel 
and its crew or indicative of a marine species that may need to be 
avoided as warranted.
    (iii) Operating Procedures (for MFAS Operations):
    (A) Navy will distribute final mitigation measures contained in the 
LOA and the Incidental take statement of NMFS' biological opinion to 
the Fleet.
    (B) COs 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.
    (C) 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.
    (D) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (E) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties.
    (F) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    (G) Marine mammal detections shall be immediately reported 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.
    (H) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that sonar transmission levels are limited to at least 6 dB below 
normal operating levels if any detected marine mammals are within 1,000 
yards (914 m) of the sonar dome (the bow).
    (1) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the 1,000-yd safety zone, has not been detected for 30 
minutes, or the vessel has transited more than 2,000 yds (1829 m) 
beyond the location of the last detection.
    (2). When marine mammals are detected by any means (aircraft, 
shipboard lookout, or acoustically) the Navy shall ensure that sonar 
transmission levels are limited to at least 10 dB below normal 
operating levels if any detected marine mammals are within 500 yards 
(497 m) of the sonar dome (the bow). Ships and submarines shall 
continue to limit maximum ping levels by this 10-dB factor until the 
animal has been seen to leave the 500-yd safety zone, has not been 
detected for 30 minutes, or the vessel has transited more than 2,000 
yds (1829 m) beyond the location of the last detection.
    (3). When marine mammals are detected by any means (aircraft, 
shipboard lookout, or acoustically) the Navy shall ensure that sonar 
transmission ceases if any detected marine mammals are within 200 yards 
(183 m) of the sonar dome (the bow). Sonar shall not resume until the 
animal has been seen to leave the the 200-yd safety zone, has not been 
detected for 30 minutes, or the vessel has transited more than 2,000 
yds (1829 m) beyond the location of the last detection.
    (4) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD 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.
    (5) If the need for power-down should arise as detailed in ``Safety 
Zones'' above, the 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 
active sonar was being operated).
    (I) Prior to start up or restart of active sonar, operators will 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (J) Active sonar levels (generally)--Navy shall operate active 
sonar at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    (K) Helicopters shall observe/survey the vicinity of an ASW 
training event for 10 minutes before the first deployment of active 
(dipping) sonar in the water.
    (L) Helicopters shall not dip their active sonar within 200 yds 
(183 m) of a marine mammal and shall cease pinging if a marine mammal 
closes within 200 yds of the sound source (183 m) after pinging has 
begun.
    (M) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
events involving active mid-frequency sonar.
    (N) Night vision goggles shall be available to all ships and air 
crews, for use as appropriate.
    (3) Navy's Measures for Underwater Detonations:
    (i) Surface-to-Surface Gunnery (non-explosive rounds)
    (A) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (B) From the intended firing position, trained lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
    (C) If applicable, target towing vessels shall maintain a lookout. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
vessel shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (D) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
    (ii) Surface-to-Air Gunnery (explosive and non-explosive rounds)
    (A) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (B) Vessels will attempt to recover any parachute deploying aerial 
targets to the extent practicable (and their parachutes if feasible) to 
reduce the potential for entanglement of marine mammals.
    (C) For exercises using targets towed by a vessel or aircraft, 
target towing vessel/aircraft shall maintain a lookout. If a marine 
mammal is sighted in the vicinity of the exercise, the tow aircraft 
shall immediately notify the firing vessel in order to secure gunnery 
firing until the area is clear.
    (iii) Air-to-Surface At-sea Bombing Exercises (explosive and non-
explosive):

[[Page 69323]]

    (A) If surface vessels are involved, trained lookouts shall survey 
for floating kelp and marine mammals. Ordnance shall not be targeted to 
impact within 1,000 yds (914 m) of known or observed floating kelp or 
marine mammals.
    (B) A 1,000 yd (914 m) radius buffer zone shall be established 
around the intended target.
    (C) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually 
see ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    (D) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
    (iv) Air-to-Surface Missile Exercises (explosive and non-
explosive):
    (A) Ordnance shall not be targeted to impact within 1,800 yds (1646 
m) of known or observed floating kelp.
    (B) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying 
at 1,500 ft (457 m) or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas. Explosive ordnance shall not be targeted to 
impact within 1,800 yds (1646 m) of sighted marine mammals.
    (v) Demolitions, Mine Warfare, and Mine Countermeasures (up to a 
2.5-lb charge):
    (A) Exclusion Zones--All Mine Warfare and Mine Countermeasures 
Operations involving the use of explosive charges must include 
exclusion zones for marine mammals to prevent physical and/or acoustic 
effects to those species. These exclusion zones shall extend in a 700-
yard arc radius around the detonation site.
    (B) Pre-Exercise Surveys--For Demolition and Ship Mine 
Countermeasures Operations, pre-exercise surveys shall be conducted 
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, and personnel shall be alert to the presence of any 
marine mammal. Should such an animal be present within the survey area, 
the explosive event shall not be started until the animal voluntarily 
leaves the area. The Navy will ensure the area is clear of marine 
mammals for a full 30 minutes prior to initiating the explosive event. 
Personnel will record any marine mammal observations during the 
exercise as well as measures taken if species are detected within the 
exclusion zone.
    (C) Post-Exercise Surveys--Surveys within the same radius shall 
also be conducted within 30 minutes after the completion of the 
explosive event.
    (D) Reporting--If there is evidence that a marine mammal may have 
been stranded, injured or killed by the action, Navy training 
activities shall be immediately suspended and the situation immediately 
reported by the participating unit to the Officer in Charge of the 
Exercise (OCE), who will follow Navy procedures for reporting the 
incident to Commander, Pacific Fleet, Commander, Navy Region Northwest, 
Environmental Director, and the chain-of-command. The situation shall 
also be reported to NMFS (see Stranding Plan for details).
    (vi) Sink Exercise:
    (A) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (B) An exclusion zone with a radius of 1.5 nm shall be established 
around each target. This 1.5 nm zone includes a buffer of 0.5 nm to 
account for errors, target drift, and animal movement. In addition to 
the 1.5 nm exclusion zone, a further safety zone, which extends from 
the exclusion zone at 1.5 nm out an additional 0.5 nm, shall be 
surveyed. Together, the zones extend out 2 nm (3.7 km) from the target.
    (C) A series of surveillance over-flights shall be conducted within 
the 2-nm zone around the target, prior to and during the exercise, when 
feasible. Survey protocol shall be as follows:
    (1) Overflights within the 2-nm zone around the target 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 Tactical Aid, which provides the best search altitude, 
ground speed, and track spacing for the discovery of small, possibly 
dark objects in the water based on the environmental conditions of the 
day. These environmental conditions include the angle of sun 
inclination, amount of daylight, cloud cover, visibility, and sea 
state.
    (2) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team is required to have completed the Navy's marine mammal 
training program for lookouts.
    (3) In addition to the overflights, the 2-nm zone around the target 
shall be monitored by passive acoustic means, when assets are 
available. This passive acoustic monitoring would be maintained 
throughout the exercise. Potential assets include sonobuoys, which can 
be utilized to detect any vocalizing marine mammals (particularly sperm 
whales) in the vicinity of the exercise. The sonobuoys shall be re-
seeded as necessary throughout the exercise. Additionally, if 
submarines are present, passive sonar onboard shall be utilized to 
detect any vocalizing marine mammals in the area. The OCE would 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.
    (4) On each day of the exercise, aerial surveillance of the 2-nm 
zone around the target shall commence 2 hours prior to the first 
firing.
    (5) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares the 2-nm zone around the target free of 
marine mammals.
    (6) If a marine mammal observed within the 2-nm zone around the 
target is diving, firing would be delayed until the animal is re-
sighted outside the 2-nm zone around the target, or 30 minutes have 
elapsed. After 30 minutes, if the animal has not been re-sighted it 
would be assumed to have left the exclusion zone. The OCE would 
determine if the identified marine mammal is in danger of being 
adversely affected by commencement of the exercise.
    (7) During breaks in the exercise of 30 minutes or more, the 2-nm 
zone around the target shall again be surveyed for any marine mammal. 
If marine mammals are sighted within 2-nm zone around the target, the 
OCE shall be notified, and the procedure described in (vi)(c)(1)-(6) 
would be followed.
    (8) Upon sinking of the vessel, a final surveillance of the 2-nm 
zone around the target shall be monitored for 2 hours, or until sunset, 
to verify that no marine mammals were injured.
    (D) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability.
    (E) 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 4 or above, 
survey efforts shall be increased within the 2-nm zone around the 
target. This shall be accomplished through the use of an additional 
aircraft, if available, and conducting tight search patterns.

[[Page 69324]]

    (F) The sink exercise shall not be conducted unless the 2-nm zone 
around the target could be adequately monitored visually.
    (G) In the event that any marine mammals are observed to be harmed 
in the area, NMFS shall be notified as soon as feasible following the 
stranding communication protocol. A detailed description of the animal 
shall be taken, the location noted, and if possible, photos taken. This 
information shall be provided to NMFS as soon as practicable via the 
Navy's regional environmental coordinator for purposes of 
identification.
    (H) An after action report detailing the exercise's time line, the 
time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (vii) Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER):
    (A) Crews shall conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 457 m (500 yd) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct area clearances utilizing more 
than one aircraft.
    (B) For IEER (AN/SSQ-110A), crews shall conduct a minimum of 30 
minutes of visual and aural monitoring of the search area prior to 
commanding the first post detonation. This 30-minute observation period 
may include pattern deployment time.
    (C) For any part of the intended sonobuoy pattern where a post 
(source/receiver sonobuoy pair) will be deployed within 914 m (1,000 
yd) of observed marine mammal activity, the Navy shall deploy the 
receiver ONLY (i.e., not the source) and monitor while conducting a 
visual search. When marine mammals are no longer detected within 914 m 
(1,000 yd) of the intended post position, the source sonobuoy (AN/SSQ-
110A/SSQ-125) will be co-located with the receiver.
    (D) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
shall include monitoring of aircraft sensors from the time of the first 
sensor placement until the aircraft have left the area and are out of 
RF range of these sensors.
    (E) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the vigilance 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (F) Visual Detection--If marine mammals are visually detected 
within 914 m (1,000 yd) 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 914 m (1,000 
yd) safety buffer. Aircrews may shift their multi-static active search 
to another post, where marine mammals are outside the 914 m (1,000 yd) 
safety buffer.
    (G) For IEER (AN/SSQ-110A), 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 914 m 
(1,000 yd) safety buffer, visually clear of marine mammals, is 
maintained around each post as is done during active search operations.
    (H) 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, or in-flight emergencies. In these 
cases, the sonobuoy will self-scuttle using the secondary or tertiary 
method.
    (I) 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.
    (J) Mammal monitoring shall continue until out of own-aircraft 
sensor range.
    (b) [Reserved]


Sec.  218.115  Requirements for monitoring and reporting.

    (a) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS is notified immediately ((see 
Communication Plan) or as soon as clearance procedures allow) if an 
injured, stranded, 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 the name of 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). In the event that an 
injured, stranded, or dead marine mammal is found by the Navy that is 
not in the vicinity of, or during or shortly after, MFAS, HFAS, or 
underwater explosive detonations, the Navy will report the same 
information as listed above as soon as operationally feasible and 
clearance procedures allow.
    (b) General Notification of Ship Strike--In the event of a ship 
strike by any Navy vessel, at any time or place, the Navy shall do the 
following:
    (1) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead (or unknown).
    (2) Report to NMFS as soon as operationally feasible the size and 
length of animal, an estimate of the injury status (ex., dead, injured 
but alive, injured and moving, unknown, etc.), vessel class/type and 
operational status.
    (3) Report to NMFS the vessel length, speed, and heading as soon as 
feasible.
    (4) Provide NMFS a photo or video, if equipment is available.
    (c) Event Communication Plan--The Navy shall develop a 
communication plan that will include all of the communication protocols 
(phone trees, etc.) and associated contact information required for 
NMFS and the Navy to carry out the necessary expeditious communication 
required in the event of a stranding or ship strike, including as 
described in the proposed notification measures above.
    (d) The Navy must conduct all monitoring and/or research required 
under the Letter of Authorization, including abiding by the annual 
NWTRC Monitoring Plan. (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications)
    (e) The Navy shall comply with the 2009 Integrated Comprehensive 
Monitoring Program (ICMP) Plan and continue to improve the program in 
consultation with NMFS. Changes and improvements to the program made 
during 2010 (as prescribed in the 2009 ICMP and otherwise deemed 
appropriate by the Navy and NMFS) will be described in an updated 2010 
ICMP and submitted to NMFS by October 31, 2010 for review. An updated 
2010 ICMP will be finalized by December 31, 2010.
    (f) Report on Monitoring required in paragraph (e) of this 
section--The Navy shall submit a report annually describing the 
implementation and results of the monitoring required in

[[Page 69325]]

paragraph (d) of this section. The required submission date will be 
identified each year in the LOA. The Navy will standardize data 
collection methods across ranges to allow for comparison in different 
geographic locations.
    (g) Annual NWTRC Report--The Navy will submit an Annual NWTRC 
Report every year. The required submission date will be identified each 
year in the LOA. This report shall contain the subsections and 
information indicated below.
    (1) ASW Summary--This section shall include the following 
information as summarized from non-major training exercises (unit-level 
exercises, such as TRACKEXs and MIW):
    (i) Total Hours--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) Cumulative Impacts--To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of 
annually reporting non-major training (i.e., ULT) utilizing hull-
mounted sonar. The report shall present an annual (and seasonal, where 
practicable) depiction of non-major training exercises geographically 
across NWTRC. The Navy shall include (in the NWTRC 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.
    (2) [Reserved]
    (h) Sinking Exercises (SINKEXs)--This section shall include the 
following information for each SINKEX completed that year:
    (1) 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); 
and
    (ix) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (2) Individual marine mammal observation during SINKEX (by Navy 
lookouts) information:
    (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:
    (A) the modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (662 m for SINKEX in NWTRC);
    (B) the required exclusion zone (1 nm for SINKEX in NWTRC);
    (C) the required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in NWTRC)); and
    (D) greater than the required observed distance. For example, in 
this case, the observer would indicate if < 662 m, from 738 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 munitions type in use at time of marine mammal 
detection.
    (i) Improved Extended Echo-Ranging System (IEER) Summary
    (1) Total number of IEER events conducted in NWTRC;
    (2) Total expended/detonated rounds (buoys); and
    (3) Total number of self-scuttled IEER rounds.
    (j) 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 shall 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.
    (k) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in NWTRC; and
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (l) NWTRC 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 NWTRC Exercise Reports 
and NWTRC Monitoring Plan Reports). This report will be submitted at 
the end of the fourth year of the rule (July 2014), covering activities 
that have occurred through February 1, 2014.
    (m) 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 for the Northwest Training Range Complex, the Southern 
California Range Complex, the Atlantic Fleet Active Sonar Training, the 
Hawaii Range Complex, the Marianas Islands Range Complex, and the Gulf 
of Alaska.
    (n) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the NWTRC Comprehensive 
Report, the Comprehensive National ASW report, the Annual NWTRC 
Exercise Report, or the Annual NWTRC 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.
    (o) 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.

[[Page 69326]]

Sec.  218.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. Citizen (as defined by Sec.  216.103) conducting the activity 
identified in Sec.  218.110(c) (i.e., the Navy) must apply for and 
obtain either an initial Letter of Authorization in accordance with 
Sec.  218.117 or a renewal under Sec.  218.118.


Sec.  218.117  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.  218.118.
    (b) Each Letter of Authorization shall 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 shall 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.  218.118  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
218.117 of this chapter for the activity identified in Sec.  218.110(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.116 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) Receipt of the monitoring reports and notifications within the 
timeframes indicated in the previous LOA; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.114 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 218.117 of this 
chapter, 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 Sec. Sec.  216.106 and 216.118 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.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with the Navy 
regarding the practicability of the modifications) if doing so creates 
a reasonable likelihood of more effectively accomplishing the goals of 
mitigation and monitoring set forth in the preamble of these 
regulations. 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 NWTRC Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011.
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the Integrated Comprehensive Monitoring 
Plan).
    (4) Results from specific stranding investigations (either from the 
NWTRC 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 described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded 
by the Navy or otherwise).
    (7) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not authorized by these regulations 
or subsequent Letters of Authorization.


Sec.  218.119  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 218.117 of this chapter 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.  218.118, 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.  218.112(c), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 218.117 of this 
chapter 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. 2010-27540 Filed 11-9-10; 8:45 am]
BILLING CODE 3510-22-P