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



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 216



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

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

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


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

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

ACTION: Final rule.

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

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

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

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

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

Background

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

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

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

    (i) Any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or
    (ii) any act that disturbs or is likely to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
natural behavioral patterns, including, but not limited to, 
migration, surfacing, nursing, breeding, feeding, or sheltering, to 
a point where such behavioral patterns are abandoned or 
significantly altered [Level B Harassment].

Summary of Request

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

Background of Navy Request

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

Description of the Specified Activities

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

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

    There are 27 marine mammal species with possible or confirmed 
occurrence in the HRC. Seven marine mammal species listed as federally 
endangered under the Endangered Species Act (ESA) occur in the HRC: The 
humpback whale, North Pacific right whale, sei whale, fin whale, blue 
whale, sperm whale, and Hawaiian monk seal. The most abundant marine 
mammals appear to be dwarf sperm whales, striped dolphins, and Fraser's 
dolphins. The most abundant large whales are sperm whales. Table 4 
provides the estimated abundance, estimated group size, and estimated 
probability of detection (based on Barlow 2006) of the marine mammal 
species that occur in the HRC.
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[GRAPHIC] [TIFF OMITTED] TR12JA09.041

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    The Navy has compiled information on the abundance, behavior, 
status and distribution, and vocalizations of marine mammal species in 
the Hawaiian waters from peer reviewed literature, the Navy Marine 
Resource Assessment, NMFS Stock Assessment Reports, and marine mammal 
surveys using acoustics or visual observations from aircraft or ships. 
This information may be viewed in the Navy's LOA application and/or the 
Navy's FEIS for the HRC (see FOR FURTHER INFORMATION). Additional 
information is available in NMFS Stock Assessment Reports, which may be 
viewed at: http://www.nmfs.noaa.gov/pr/sars/species.htm. As indicated 
in the proposed rule, based on their rare occurrence in the HRC, the 
Navy and NMFS do not anticipate any effects to Blue whales, North 
Pacific right whales, or Northern elephant seals and, therefore, they 
are not addressed further in this document.
    Because the consideration of areas where marine mammals are known 
to selectively breed or calve are important to both the negligible 
impact finding necessary for the issuance of an MMPA

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

A Brief Background on Sound

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

Potential Effects of Specified Activities on Marine Mammals

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

Mitigation

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

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

Research and Conservation Measures for Marine Mammals

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

Long-Term Prospective Study

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

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

Monitoring

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

Proposed Monitoring Plan for the HRC

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the HRC 
Monitoring Plan. Additionally, NMFS and the Navy have incorporated a 
recommendation from the public, which recommended the Navy hold a 
workshop to discuss the Navy's Monitoring Plan (see Monitoring Workshop 
section). The final HRC Monitoring Plan, which is summarized below, may 
be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    The draft Monitoring Plan for the HRC has been designed as a 
collection of focused ``studies'' (described fully in the HRC 
Monitoring Plan) to gather data that will allow the Navy to address the 
following questions:
    (a) Are marine mammals exposed to mid-frequency active sonar 
(MFAS), especially at levels associated with adverse effects (i.e., 
based on NMFS' criteria for behavioral harassment, TTS, or PTS)? If so, 
at what levels are they exposed?
    (b) If marine mammals are exposed to MFAS in the HRC, do they 
redistribute geographically within the HRC as a result of continued 
exposure? If so, how long does the redistribution last?
    (c) If marine mammals are exposed to MFAS, what are their 
behavioral responses to various levels?
    (d) What are the behavioral responses of marine mammals that are 
exposed to explosives at specific levels?
    (e) Is the Navy's suite of mitigation measures for MFAS and 
explosives (e.g., PMAP, major exercise measures agreed to by the Navy 
through permitting) effective at avoiding TTS, injury, and mortality of 
marine mammals?
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists that are experts in their field. 
They will use a combination of the following methods to collect data:
     Visual Surveys--Vessel, Aerial and Shore-based.
     Passive Acoustic Monitoring (PAM).
     Marine Mammal observers (MMOs) on Navy Vessels.
     Marine Mammal Tagging.
    In the five proposed study designs (all of which cover multiple 
years), the above methods will be used separately or in combination to 
monitor marine mammals in different combinations before, during, and 
after training activities utilizing MFAS/HFAS or explosive detonations. 
Table 5 contains a summary of the Monitoring effort that is planned for 
each study in each year (effort may vary slightly between years or 
study type, but overall effort will remain constant). The HRC 
Monitoring Plan is designed to collect data on all marine mammals and 
sea turtles encountered during monitoring studies. However, priority 
will be given to ESA-listed species and taxa in which MFAS exposure and 
strandings have been linked under certain circumstances. Because of the 
important reproductive area and the fact that humpback whales are 
present in very high densities in certain areas of the HRC, the Navy 
plans to dedicate a designated subset of their monitoring effort 
specifically to these high-density areas.
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BILLING CODE 3510-22-C

Monitoring Workshop

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

[[Page 1464]]

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

Integrated Comprehensive Monitoring Plan

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

Past Monitoring in the HRC

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

Adaptive Management

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

[[Page 1465]]

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

Reporting

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

General Notification of Injured or Dead Marine Mammals

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

Annual HRC Monitoring Plan Report

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

Annual HRC Exercise Report

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

MFAS/HFAS Major Training Exercises

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

ASW Summary

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

[[Page 1466]]

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

SINKEXs

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

Improved Extended Echo-Ranging System (IEER) Summary

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

Explosives Summary

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

Sonar Exercise Notification

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

HRC 5-yr Comprehensive Report

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

Comprehensive National ASW Report

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

Comments and Responses

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

[[Page 1467]]

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

Monitoring and Reporting

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

[[Page 1468]]

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

[[Page 1469]]

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

Mitigation

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

[[Page 1470]]

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

[[Page 1471]]

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

Acoustic Threshold for Behavioral Harassment

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

[[Page 1472]]

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

[[Page 1473]]

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

[[Page 1474]]

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

Acoustic Threshold for TTS

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

Acoustic Threshold for Injury

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

[[Page 1475]]

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

[[Page 1476]]

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

Effects Analysis

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

[[Page 1477]]

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

[[Page 1478]]

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

General Opposition

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

MMPA

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

[[Page 1479]]

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

Other

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

Estimated Take of Marine Mammals

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

[[Page 1480]]

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

Definition of Harassment

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

Acoustic Take Criteria

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

Take Calculations

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

[[Page 1481]]

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

BILLING CODE 3510-22-P

[[Page 1482]]

[GRAPHIC] [TIFF OMITTED] TR12JA09.043

BILLING CODE 3510-22-C

Mortality

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

[[Page 1483]]

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

Effects on Marine Mammal Habitat

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

Analysis and Negligible Impact Determination

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

Subsistence Harvest of Marine Mammals

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

Endangered Species Act (ESA)

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

[[Page 1484]]

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

NEPA

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

Determination

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

Classification

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

List of Subjects in 50 CFR Part 216

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

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

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

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

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

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


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

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

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

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


Sec.  216.170  Specified activity and specified geographical region.

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

[[Page 1485]]

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


Sec.  216.171  Effective dates and definitions.

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


Sec.  216.172  Permissible methods of taking.

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

[[Page 1486]]

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


Sec.  216.173  Prohibitions.

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


Sec.  216.174  Mitigation.

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

[[Page 1487]]

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

[[Page 1488]]

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

[[Page 1489]]

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


Sec.  216.175  Requirements for monitoring and reporting.

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

[[Page 1490]]

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

[[Page 1491]]

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


Sec.  216.176  Applications for Letters of Authorization.

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


Sec.  216.177  Letters of Authorization.

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


Sec.  216.178  Renewal of Letters of Authorization.

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


Sec.  216.179  Modifications to Letters of Authorization.

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

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