[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Rules and Regulations]
[Pages 3882-3918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1073]



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Part V





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 Southern 
California Range Complex; Final Rule

  Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 0808061069-81583-02]
RIN 0648-AW91


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Southern California 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, maintenance, and research, development, testing 
and evaluation (RDT&E) activities conducted in the Southern California 
Range Complex (SOCAL Range Complex), which extends south and southwest 
off the southern California coast, for the period of January 2009 
through January 2014. The Navy's activities are considered military 
readiness activities pursuant to the Marine Mammal Protection Act 
(MMPA), as amended by the National Defense Authorization Act for Fiscal 
Year 2004 (NDAA). These regulations, which allow for the issuance of 
``Letters of Authorization'' (LOAs) for the incidental take of marine 
mammals during the described activities and specified timeframes, 
prescribe the permissible methods of taking and other means of 
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 14, 2009 through January 14, 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 (see FOR FURTHER INFORMATION CONTACT).

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 Tuesday, October 14, 2008 (73 FR 60836). 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 April 1, 2008, NMFS received an application from the Navy 
requesting authorization for the take of individuals of 37 species of 
marine mammals incidental to upcoming Navy training activities, 
maintenance, and research, development, testing, and evaluation (RDT&E) 
activities to be conducted within the SOCAL Range Complex, which 
extends southwest approximately 600 nm in the general shape of a 200-nm 
wide rectangle (see the Navy's application), over the course of 5 
years. These activities are military readiness activities under the 
provisions of the NDAA. The Navy states, and NMFS concurs, that these 
military readiness activities may incidentally take marine mammals 
present within the SOCAL Range Complex by exposing them to sound from 
mid-frequency or high frequency active sonar (MFAS/HFAS) or underwater 
detonations. The Navy requests authorization to take individuals of 37 
species of marine mammals by Level B Harassment. Further, though they 
do not anticipate it to occur, the Navy requests authorization to take, 
by injury or mortality, up to 10 beaked whales over the course of the 
5-yr period for which the regulations will be in effect.

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. See 73 FR 60836.

Overview of the SOCAL Range Complex

    The proposed rule contains an overview of the SOCAL Range Complex 
that describes the SOCAL Operational Areas (OPAREAS), the Special Use 
Airspaces, San Clemente Island, and the overlap with Point Mugu Sea 
Range for certain anti-submarine warfare (ASW) training. The 
description contained in the proposed rule has not changed. See 73 FR 
60836, page 60837.

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

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describes the nature of the activities 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 
60836, pages 60837-60847. The narrative description of the action 
contained in the proposed rule has not changed, with the exception of 
the change from IEER to AEER described in the paragraph below. Tables 
1, 2, and 3 summarize the sonar and explosive exercise types used in 
the Navy's activities and hours of sonar operation conducted.
    The Navy is developing the Advanced Extended Echo Ranging (AEER) 
system as a replacement to the IEER system. AEER would use a new active 
sonobuoy (AN/SSQ-125) that utilizes a tonal (or a sonar ping) vice 
impulsive (or explosive) sound source as a replacement for the SSQ-110A 
(the system used in IEER). AEER will still use the ADAR sonobuoy as the 
systems receiver and be deployed by Marine Patrol Aircraft. As AEER is 
introduced for Fleet use, IEER will be removed. The same total number 
of buoys will be deployed as were presented in the proposed rule, but a 
subset of them will be AEER instead of IEER. The small difference in 
the number of anticipated marine mammal takes that will result from 
this change is indicated in the take table, along with other minor 
modifications. This small change in the take numbers did not affect 
NMFS' analysis of and conclusions regarding the proposed action.
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Description of Marine Mammals in the Area of the Specified Activities

    There are 41 marine mammal species with possible or confirmed 
occurrence in the SOCAL Range Complex. Nine marine mammal species 
listed as federally endangered under the Endangered Species Act (ESA) 
can occur in the SOCAL Range Complex: The humpback whale, North Pacific 
right whale, sei whale, fin whale, blue whale, sperm whale, southern 
resident killer whale, Guadalupe fur seal, and Steller sea lion. The 
proposed rule contains a discussion of three species that are not 
considered further in the analysis (southern resident killer whale, 
North Pacific right whale, and Steller sea lion) because of their 
rarity in the SOCAL Range Complex. With the exception of marine mammal 
abundance and Steller sea lion correction discussed below, the 
Description of Marine Mammals in the Area of the Specified Activities 
in the proposed rule remains unchanged (see 73 FR 60836, pages 60846-
60850).
    For this rulemaking and subsequent LOA, NMFS' Southwest Fisheries 
Science Center calculated marine mammal density estimates based on 
compiled densities from vessel surveys conducted from 1986 to 2005, and 
provided it to the Navy as Government Furnished Information (GFI). 
These density estimates are included in Table 4 and remain unchanged 
from the proposed rule. The proposed rule contains a description of the 
methods used to estimate density. During the public comment period for 
the proposed rule, several members of the public noted and commented 
that the abundance numbers provided for some marine mammal species were 
not from the latest NMFS stock assessment reports. Those numbers have 
been updated in Table 4, which now includes the abundance estimates 
from both the 2007 stock assessment reports and the draft 2008 reports. 
This correction did not affect NMFS analysis, as take estimates are 
based on density estimates (not abundance estimates), which remain 
unchanged from those presented in the proposed rule.
    The proposed rule indicated (73 FR 60836, page 60849) that the last 
sighting of a Steller sea lion in Southern California was that of a sub 
adult male that was briefly on San Miguel Island in 1998. In fact, a 
Steller sea lion was sighted in Newport Harbor in April 2008 and a 
Steller sea lion (that may have been the same individual) live stranded 
in Santa Barbara in the summer of 2008. This correction did not affect 
NMFS analysis and, as indicated in the proposed rule, Steller sea lions 
are not likely to be present in the action area or taken by the Navy's 
specified activities.

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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. See 73 FR 60836, pages 60850-60851. 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 SOCAL Range Complex, so this determination is 
inapplicable for this rulemaking); and (4) to prescribe requirements 
pertaining to monitoring and reporting.
    In the Potential Effects of Specified Activities on Marine Mammals 
Section of the proposed rule NMFS included a qualitative discussion of 
the different ways that MFAS/HFAS and underwater explosive detonations 
may potentially affect marine mammals (some of which NMFS would not 
classify as harassment). See 73 FR 60836, pages 60851-60863. 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). See 73 
FR 60836, pages 60859-60863. The information contained in the Potential 
Effects of Specified Activities on Marine Mammals Section from the 
proposed rule has not changed, with the exception of the following 
sentence. On page 60861, NMFS said ``Other species (Stenella 
coeruleoalba, Kogia breviceps and Balaenoptera acutorostrata) have 
stranded, but in much lower numbers and less consistently than beaked 
whales.'' As a member of the public pointed out, and as NMFS stated on 
page 60860 of the proposed rule, there was no likely association 
between the minke whale and spotted dolphin strandings referred to and 
the operation of MFAS. Therefore, the sentence should read ``Other 
species, such as Kogia breviceps, have stranded in association with the 
operation of MFAS, but in much lower numbers and less consistently than 
beaked whales.''

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    Later, in the Estimated Take of Marine Mammals section, NMFS 
relates and quantifies the potential effects to marine mammals from 
MFAS/HFAS and underwater detonation of explosives discussed here to the 
MMPA regulatory definitions of Level A and Level B Harassment. NMFS has 
also considered the effects of mortality on these species.

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 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 
SOCAL Range Complex activities described in the proposed rule are 
considered military readiness activities.
    NMFS reviewed the Navy's proposed SOCAL Range Complex activities 
and the proposed SOCAL 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 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.
    (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 potential 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 a Stranding Response Plan to 
address the concern listed above.
    The Navy's proposed mitigation measures, as well as the Stranding 
Response Plan, which is required under these regulations, were 
described in detail in the proposed rule (73 FR 60836, pages 60863-
60870). The Navy's measures address personnel training, lookout and 
watchstander responsibilities, and operating procedures for activities 
using both MFAS/HFAS and explosive detonations. Three modifications 
(see below) have been made to the mitigation measures described in the 
proposed rule. The final SOCAL 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 (the regulatory text, not the preamble) contained 
a measure in which the Navy indicated that ``prior to conducting the 
exercise, remotely sensed sea surface temperature maps would be 
reviewed. SINKEX shall not be conducted within areas where strong 
temperature discontinuities are present, thereby indicating the 
existence of oceanographic fronts.'' See 73 FR 60836, page 60904. 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.
    The following measure has been added to the Mitigation section of 
the regulations: Night vision goggles shall be available to all ships 
and air crews for use as appropriate.
    Last, the same mitigation measures outlined for the IEER system in 
the proposed rule will also be applied to the similar, but newly 
described, AEER system.
    NMFS has determined that the Navy's proposed mitigation measures 
(from the LOA application), along with 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. See 73 FR 60836, pages 60870-60871. 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.

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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 SOCAL Range Complex 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.

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 diseases 
and investigate the relationship with potential causal factors (e.g., 
sonar, seismic surveys, weather). The proposed rule contained an 
outline of the proposed study (73 FR 60836, pages 60837-60838). 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 SOCAL Range Complex

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the 
SOCAL Range Complex Marine Mammal and Sea Turtle Monitoring Plan 
(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 SOCAL Range Complex Monitoring Plan, which is 
summarized below may be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Navy plans to implement all of the 
components of the Monitoring Plan; however, only the marine mammal 
components (not the sea turtle components) will be required by the MMPA 
regulations and associated LOAs.
    The draft Monitoring Plan for the SOCAL Range Complex has been 
designed as a collection of focused ``studies'' (described fully in the 
SOCAL Range Complex Monitoring Plan) to gather data that will allow the 
Navy to address the following questions:
    (1) Are marine mammals and sea turtles exposed to 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?
    (2) If marine mammals and sea turtles are exposed to MFAS in the 
SOCAL Range Complex, do they redistribute geographically as a result of 
continued exposure? If so, how long does the redistribution last?
    (3) If marine mammals and sea turtles are exposed to MFAS, what are 
their behavioral responses to various levels?

[[Page 3888]]

    (4) What are the behavioral responses of marine mammals and sea 
turtles that are exposed to explosives at specific levels?
    (5) 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 and sea turtles?
    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 and aerial.
     Passive Acoustic Monitoring (PAM), including working with 
the passive acoustic detection capabilities of Navy's SOAR fixed range.
     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 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 SOCAL Range Complex 
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, 
under certain circumstances and strandings have been linked (beaked 
whales and other deep-diving species).
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Monitoring Workshop

    During the public comment period on the SOCAL Range Complex 
proposed rule (as well as the Hawaii Range Complex proposed rule), 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 SOCAL Range Complex 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 rules and 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 rules and 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 SOCAL Range Complex rule as well as 
monitoring results from other Navy rules and LOAs (e.g., the Atlantic 
Fleet Active Sonar Training, Hawaii Range Complex (HRC), 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 
research and development) and working within the framework of available 
resources and feasibility of implementation. NMFS and the Navy would 
then analyze the input from the Monitoring Workshop participants and 
determine the best way forward from a national perspective. Subsequent 
to the Monitoring Workshop, modifications would be applied to 
monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the Monitoring Plan for the SOCAL Range Complex, the 
Navy will complete the 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., SOCAL Range Complex plan) as well as Navy 
funded research and development (R&D) studies. The ICMP will coordinate 
the monitoring program's 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 SOCAL Range Complex rule and the other 
planned Navy rules (e.g., AFAST and HRC), 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 
the previous year's 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 SOCAL Range Complex 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 record-keeping 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 SOCAL Range Complex

    The proposed rule contained a detailed review of the previous 
marine mammal monitoring conducted in the SOCAL Range Complex, which 
was conducted in compliance with the terms and conditions of multiple 
biological opinions issued for MFAS activities (73 FR 60836, pages 
60873-60875). 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 activities in the SOCAL Range Complex will contain 
an adaptive

[[Page 3890]]

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 SOCAL Range Complex). 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 SOCAL Range Complex 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 SOCAL Range Complex or other locations, involving the 
coincident MFAS/HFAS of explosives training or not involving the 
coincident use).
     Results from the Long Term Prospective Study described 
below.
     Results from general marine mammal and sound research 
(funded by the Navy (described below) or otherwise).
    Mitigation measures could be modified or added (or deleted) if new 
data suggests that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final rule. The reporting 
requirements associated with this rule are designed to provide NMFS 
with monitoring data from the previous year to allow NMFS to consider 
the data and issue annual LOAs. NMFS and the Navy will meet annually 
(prior to LOA issuance, except in the year of the Monitoring Workshop) 
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 SOCAL Range Complex 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 
SOCAL Range Complex 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, marine mammal observers (MMOs) 
collecting marine mammal data pursuant to the SOCAL Range Complex 
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 SOCAL Range Complex Exercise Report referenced 
below.
    The SOCAL Range Complex Monitoring Plan Report may be provided to 
NMFS within a larger report that includes the required Monitoring Plan 
Reports from multiple Range Complexes.

Annual SOCAL Range Complex Exercise Report

    The Navy will submit an Annual SOCAL Range Complex Exercise Report 
on October 1 of every year (covering data gathered through August 1). 
This report shall contain the subsections and information indicated 
below.
MFAS/HFAS Major Training Exercises
    This section shall contain the following information for 
Integrated, Coordinated, and Major Training Exercises (MTEs), which 
include Ship ASW Readiness and Evaluation Measuring (SHAREM), 
Sustainment Exercises, Integrated ASW Course Phase II (IAC2), Composite 
Training Unit Exercises (COMPTUEX), and Joint Task Force Exercises 
(JTFEX) conducted in the SOCAL Range Complex:
    (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):


[[Page 3891]]


(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 
animals 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.)).
    (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 MTEs) 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 SOCAL Range Complex. The Navy shall include 
(in the SOCAL Range Complex 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 (738 m for SINKEX in the SOCAL Range 
Complex); (2) the required exclusion zone (1 nm for SINKEX in SOCAL 
Range Complex); (3) the required observation distance (if different 
than the exclusion zone (2 nm for SINKEX in SOCAL Range Complex); and 
(4) greater than the required observed distance. For example, in this 
case, the observer would indicate if < 738 m, from 738 m-1 nm, from 1 
nm-2 nm, and > 2 nm.
(xi) Observed behavior--Watchstanders will report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction.
(xii) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
(xiii) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal 
detection.
Improved Extended Echo-Ranging System (IEER) and Advanced Extended 
Echo-Ranging System (AEER) Summary
    This section shall include an annual summary of the following IEER/
AEER information:

(i) Total number of IEER and AEER events conducted in the SOCAL Range 
Complex.
(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 SOCAL Range Complex.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.) for 
each explosive type.

[[Page 3892]]

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 MTE (Sustainment, IAC2, SHAREM, COMPTUEX, 
or JTFEX) indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise.

SOCAL Range Complex 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 SOCAL Range Complex Exercise Reports and SOCAL Range 
Complex 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 for the SOCAL Range Complex, the 
Atlantic Fleet Active Sonar Training, the HRC, 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 SOCAL Range Complex Comprehensive 
Report, the Comprehensive National ASW report, the Annual SOCAL Range 
Complex Exercise Report, or the Annual SOCAL Range Complex 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.

SOCAL

Comments and Responses

    On October 14, 2008 (73 FR 60836), NMFS published a proposed rule 
in response to the Navy's request to take marine mammals incidental to 
military readiness training exercises in SOCAL 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 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, Whale and Dolphin Conservation Society, Cetacean Society 
International, Pamlico Tar River Foundation, League for Coastal 
Protection, and 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 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. Another commenter 
suggested that outside expert review of the ICMP by professional marine 
mammal biologists was needed.
    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, to include (among 
others) outside marine mammal experts, 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 SOCAL Range Complex 
monitoring are necessary based on the recommendations. As necessary, 
NMFS would incorporate any changes into future LOAs and future rules. 
However, NMFS disagrees 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, including 
recommending additional text. For example, one commenter recommended 
the Navy add a list of acronyms and another recommended adding text 
explaining that dropping sonobuoys from monitoring observation aircraft 
is another potential method of PAM whose feasibility and utility should 
be assessed as part of the SCMP.
    Response: NMFS and the Navy incorporated these recommendations 
where appropriate. For example, both of the above examples were 
incorporated. However, we did not incorporate the commenter's 
recommendations in all cases, if we believed doing so, for example, 
would needlessly lengthen and complicate the Plan or generally be 
duplicative with the analytical contents of the rule.
    Comment 3: 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

[[Page 3893]]

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/HFAS and explosive detonations. The Navy has 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).
    Regarding the issue of the mitigation being adequate to eliminate 
impacts, nowhere does either the Navy or NMFS indicate that the current 
mitigation will eliminate impacts. The MMPA requires that NMFS put 
forth the means of effecting the least practicable adverse impacts. As 
discussed in the Mitigation section of the proposed rule, NMFS has 
determined that the final required mitigation accomplishes this. If it 
were possible to eliminate impacts to marine mammals, an MMPA 
authorization would not be necessary.
    Comment 4: Two commenters were concerned that the Navy used the 
term ``relative distance'' when describing the data that would be 
gathered for marine mammals and sound sources and indicated that 
precise measurements are needed to draw accurate conclusions.
    Response: GPS measurements are used for the majority of Navy data, 
both for ship tracks and marine mammal sightings. The word ``relative'' 
was used because in some cases the Navy cannot report exactly where 
their exercise is for security reasons, but they can report exactly 
where the marine mammal was relative to the sound source.
    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: dropping 
sonobuoys from airplanes, specified focal follows of one animal before, 
during, and after sonar; photo-identification of marine mammals to look 
at residency patterns; or doing biopsy sampling to assess stress 
hormones.
    Response: There are many 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 (and in fact, the Navy will take photographs 
whenever feasible), while other methods, such as biopsy sampling (which 
would require a new research permit), would be more 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 regulations and 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 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: One commenter asked that the Navy specify somewhere in 
the Monitoring Plan that any potentially stranded animals will be 
photographed for individual identification purposes.
    Response: When possible, every attempt will be made to 
opportunistically collect concurrent digital video and digital 
photographs of animals under observation by both vessels and aircraft. 
Direct experience with aerial monitoring within the Hawaii and SOCAL 
Range Complexes in 2008 revealed the value of these techniques for on-
site and off-site species identification or confirmation, and for 
assistance in reviewing a given animal's behavioral state after the 
survey. Language to this effect has been added to the Monitoring Plan.
    Comment 7: One commenter questioned who will conduct the Adaptive 
Management Review and whether professional marine mammal and sea turtle 
biologists will be involved as advisors on a regular basis.
    Response: The NMFS and the Navy will conduct the Adaptive 
Management Reassessment review to examine the prior year's monitoring 
lessons learned, integrate new science, and re-direct monitoring based 
on input from the scientific community. As mentioned in comment 1, 
professional marine mammal biologists will be involved in the 2011 
Monitoring Workshop.
    Comment 8: One commenter noted that there is a lot of emphasis on 
collection of data by Navy watchstanders, but the Navy must acknowledge 
the limitation of these kinds of data. The relatively low level of 
training and experience by these people (in relation to professional 
marine mammal biologists) will make the data collected of little value. 
Another commenter similarly notes that the marine species awareness 
training consists primarily of watching a DVD, which is insufficient to 
ensure that they accurately detect many species.
    Response: The vast majority of the monitoring (pursuant to the 
monitoring plan) will be conducted by independent marine mammal 
scientists. Alternately, Navy lookouts are responsible for detecting 
marine mammal presence within the safety zone so that the mitigation 
can be implemented. 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 
SOCAL Range Complex 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. Though Navy 
lookouts are not trained biologists and may not always be able to 
identify a marine mammal to species, NMFS believes that if data is 
gathered systematically and in sufficient detail (as described in the 
Reporting section of the rule), Navy lookouts will provide important 
encounter rate data that will allow comparisons between lookouts and 
MMOs, as well as between when sonar is on or off.
    Comment 9: One commenter stated that it would seem to be a conflict 
of interest to be using Navy personnel to monitor training activity 
areas for marine mammals [during their own activities].
    Response: 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

[[Page 3894]]

authorization. It is definitely not a conflict of interest since the 
statute requires a permit holder to comply with regulations related to 
the incidental taking of marine mammals, including monitoring and 
reporting requirements.
    Comment 10: 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 11: Commenters questioned whether the Navy had considered 
whether a statistically sound sample size had been developed to answer 
the questions that monitoring is trying to answer.
    Response: The Navy will contract a team of marine mammal experts to 
implement the monitoring plan and fine-tune the sample size and 
analysis parameters. The data from the SOCAL Range Complex will be 
pooled (as appropriate) with data collected from other range complexes 
to maximize data collection each year. No conclusions will be made 
without a statistically valid sample size.
    Comment 12: One commenter stated: ``The Navy should establish a 
long-term research program, perhaps conducted by NMFS or by an 
independent agent, on the distribution, abundance, and population 
structuring of protected species on the SOCAL Range Complex, with the 
goal of supporting adaptive geographic avoidance of high-value 
habitat.'' Another commenter suggests that the Navy should 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. As 
mentioned above, the mitigation EA addresses geographic avoidance of 
high-value habitat. Separately, the Navy has voluntarily developed and 
funded a number of research plans that are designed to address 
technologies to reduce the impacts of active acoustic sources on marine 
mammals (see Research section).

Mitigation

    Comment 13: The Marine Mammal Commission recommends that NMFS:
    (a) Clarify which monitoring and mitigation measures will be 
required, in light of the fact that a revised Monitoring Plan was 
posted after the proposed rule was published.
    (b) Require performance testing and validation of those measures 
(and the MMC suggests that NMFS did not review, and the rule does not 
include reference to, five post-exercise reports that the Navy 
submitted to us for 2006/2007 exercises in the SOCAL Range Complex).
    (c) Require new measures to address remaining monitoring and 
mitigation shortcomings. The MMC suggests that visual and passive 
acoustic monitoring offer only limited detection capability but notes 
that NMFS asserts that more than 60 potential lethal or injurious takes 
have been mitigated to zero by posting visual observers and 
opportunistic monitoring using sonobuoys and other existing passive 
acoustic sensing capabilities.
    (d) Work with the Navy to develop a database for storing original 
records of marine mammal interactions; the database should meet the 
Navy's security requirements but also maintain what are potentially 
valuable records about the Navy's interactions with and effects on 
marine mammals. The MMC notes that the proposed rule indicates that the 
ship's logs of sightings, power-downs, and other mitigation actions are 
retained only for 30 days.
    Response: Following are responses to MMC's alphabetized sub-
comments:
    (a) The final required mitigation measures are exactly the same as 
those described in the proposed rule. As described in the proposed 
rule, the Monitoring Plan contains a table that generally describes the 
level of effort that the Navy has committed to in the monitoring, but 
the Navy continued to develop and improve the Monitoring Plan for the 
SOCAL Range Complex (based on public comments, among other input) 
throughout the MMPA and ESA processes. The Monitoring Plan will be 
finalized prior to the issuance of the first LOA, but we note that 
flexibility remains for the implementation team (the independent 
scientist contractors that the Navy will hire to conduct the 
monitoring) to further refine the specific protocols as appropriate.
    (b) 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. That said, the SOCAL Range 
Complex 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. 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.
    Contrary to the MMC's assertion, NMFS included both a summary table 
of (Table 7 in proposed rule), and general conclusions related to, 12 
post exercise reports that the Navy submitted for exercises conducted 
in 2006 and 2007. NMFS agrees that the review of post-exercise reports 
is critical, and through the implementation of the more rigorous 
reporting requirements that have been laid out in the final rule 
(versus the proposed rule) we should be able to reach well-supported 
conclusions regarding the effects of MFAS on marine mammals.
    (c) As described in the proposed rule, NMFS's analysis does not 
assert that 60+ injuries or mortalities are completely alleviated by 
mitigation implementation. Rather, we explain that, in the first place, 
the model that estimated 60 injuries and mortalities does not take into 
consideration at all that a subset of animals will avoid operating 
sound sources (or even vessels without operating sources), which means 
that fewer than 60 animals would be likely to get close enough to be 
exposed to levels expected to result in injury or death. For MFAS, 
animals

[[Page 3895]]

would need to approach within 10 m of the sound source to be exposed to 
levels likely to result in injury. For explosives, the larger charges 
have effects at greater distances, but they also have very rigorous 
clearance procedures that include monitoring the area for 2 hours in 
advance of the exercise. Nonetheless, NMFS acknowledges the opportunity 
for improvement via the use of dedicated passive or active sonar to 
detect marine mammals for mitigation implementation. However, current 
technology does not allow the Navy to detect, identify, and localize 
marine mammals and transmit this information to operators real-time 
while also not substantially reducing the effectiveness of the fast-
paced and complicated exercises that the Navy must conduct. The Navy is 
committed, however, to technological development in the area of marine 
mammal protection and is currently funding multiple research projects 
towards this goal (see Research section).
    (d) Though the original ship logs are destroyed after 30 days, the 
information pertaining to marine mammal observations and mitigation 
implementation is passed along to environmental compliance staff who 
are responsible for producing reports for NMFS and who already have a 
system for retaining the needed information. However, under the ICMP, 
NMFS will work with the Navy to ensure that all of the needed 
information is saved (in a standard form across geographic areas), 
which could potentially include the development of a new database.
    Comment 14: One commenter noted that the training exercises that 
the Navy proposes to conduct in the Southern California range from 2009 
to 2014 are apparently very similar to those that have in the past 
provoked extended litigation against the Navy by environmental groups 
(e.g., the RIMPAC litigation in 2006 and the ongoing SOCAL case, NRDC 
v. Winters, currently under review by the Supreme Court). The 
environmental groups have, thus far, been successful in both of their 
lawsuits against the Navy and the NMFS; each suit has required the Navy 
to take much more rigorous measures to mitigate the environmental 
impact of its sonar exercises. And yet neither the Navy nor the NMFS 
appears to have incorporated the lessons of these legal actions into 
their practices, as shown by the proposed regulation released for 
comment. Specifically, the NRDC asserts that NMFS's proposed rule, as 
well as the Navy's SOCAL Range Complex Draft Environmental Impact 
Statement (``DEIS'') (73 FR 18522 (Apr. 4, 2008)) ignores mitigation 
measures imposed specifically for the SOCAL Range Complex by courts in 
California. See NRDC v. Winter 527 F.Supp.2d 1216 (C.D. Cal. 2008), 
aff'd 518 F.3d 658 (9th Cir. 2008).
    Response: The outcome of any litigation is based very specifically 
on the content of the administrative record for the particular decision 
that is being litigated. NMFS has worked closely with the Navy, both in 
the development of the SOCAL Range Complex EIS and in the ESA and MMPA 
consultations, to build a strong administrative record (both procedure 
and content-wise) that supports our decisions under the applicable 
statutes. Both NMFS and the Navy have incorporated lessons from the 
aforementioned legal actions into our practices. For example, the Navy 
(with NMFS support as a cooperating agency) chose to develop EISs for 
their major MFAS training activities instead of relying on an 
Environmental Assessment as they did in RIMPAC 2006. However, NMFS and 
the Navy are still bound to make certain findings under different 
statutes, and just because additional measures were imposed by the 
court in previous similar cases does not mean that those measures are 
appropriate in the specific context of the statutes that NMFS or the 
Navy are endeavoring to comply with in a specific case. More 
specifically, though, both NMFS and the Navy have considered the types 
of measures recommended by the courts (see Mitigation EA). Finally, the 
Supreme Court (Winter v. NRDC) recently sided with the Navy in NRDC's 
challenge to the use of mid-frequency active sonar in the SOCAL Range 
Complex. The court determined the Navy's need to conduct realistic 
training with active sonar to respond to the threat posed by enemy 
submarines plainly outweighs the interests advanced by the plaintiffs.
    Comment 15: One commenter asserts that NMFS's 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) that analyzes a suite of 
possible 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) and has been relied upon to inform 
NMFS's MMPA decision.
    Comment 16: One commenter suggests that the graded response steps 
for MFAS based on the distance at which marine mammals are sighted does 
not make sense given the high proportion of time many marine mammal 
species, especially long-divers, spend underwater. A beaked whale 
sighted in the path of the vessel 600 yards ahead that then dives would 
only require a decrease in source level by 6 dB, even though the 
trajectory of the ship would take it directly over the animal while it 
is underwater.
    Response: The next ``graded'' mitigation measure says ``Should the 
marine mammal be detected within or closing to inside 200 yds (183 m) 
of the

[[Page 3896]]

sonar dome, active sonar transmissions shall cease.'' The ``or 
closing'' part of this measure ensures that if the Navy vessel is 
headed straight at an animal, they will use the appropriate measure. 
Additionally, review of the Navy's after-action reports shows that in 
the vast majority of marine mammal detections within 1000 yds, the Navy 
immediately shuts down the sonar, without going through the power-down 
step.
    Comment 17: 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 SOCAL 
Range Complex, 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 sonobuoy exercises. Pursuant to the Navy's 2000 Policy 
for Environmental Compliance at Sea, the commander or officer in charge 
of a major exercise shall provide participating foreign units with a 
description of the measures to protect the environment required of 
similar U.S. units as early as reasonable in the exercise planning 
process and shall encourage them to comply. As a binding international 
law, foreign sovereign immune vessels may not be compelled to adopt 
such mitigation measures.
    Comment 18: The Marine Mammal Commission recommends that NMFS 
modify the Navy's mitigation measures by requiring that the Navy delay 
resumption of full operational sonar use following a power-down or 
shutdown for 30 minutes if the sighted animal can be identified to the 
species level and the species is not deep diving and 60 minutes if it 
cannot be identified or is known to be a member of a deep-diving 
species such as sperm and beaked whales. They further recommend that 
NMFS allow resumption of full operations before the end of the 30-
minute period (when the species can be identified and is not a deep 
diver) or 60-minute period (the species cannot be determined or can be 
determined but is a deep diver) only when the Navy has good evidence 
that the marine mammal seen outside the safety zone is the same animal 
originally sighted within the zone.
    Response: NMFS 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:
     The ability of an animal to dive longer than 30 minutes 
does not mean that it will always do so. Therefore, 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 active 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. Even if a vessel was moving at 
the slower typical speed associated with active sonar use, an animal 
would need to be swimming near sustained maximum speed for an hour in 
the direction of the vessel's course to stay within the safety zone of 
the vessel. Increasing the typical speed associated with active sonar 
use would further narrow the circumstances in which the 60-minute delay 
would add value.
     Additionally, the times when marine mammals are deep-
diving (i.e., the times when they are under the water for longer 
periods of time) are the same times that a large portion of their 
motion is in the vertical direction, which means that they are far less 
likely to keep pace with a horizontally moving vessel.
     Given that, the animal would need to have stayed in the 
immediate vicinity of the sound source for an hour and 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).
    NMFS does not believe that 60-minute delay would add to the 
protection of marine mammals in the vast majority of cases, while it 
would definitely decrease the effectiveness of the Navy's training 
exercises by adding further delay, and therefore we have not required 
it. Regarding the MMCs second recommendation, the current measure says 
that sonar transmission will be limited until ``the animal is seen to 
leave the area''--NMFS does not believe that further clarification is 
needed regarding the fact that the Navy needs to be sure it is the same 
animal.
    Comment 19: One commenter states that 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: 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 if any mitigation measure implemented.
    Comment 20: One commenter asserts that the Navy should avoid fish 
spawning grounds and important fish habitat. It should also avoid high-
value sea turtle habitat. The Navy should include sea turtles in other 
described mitigation measures, including safety zones, for which 
floating weeds and kelp and algal mats should be taken as proxies for 
sea turtle presence.
    Response: These concerns are outside of the purview of the MMPA. 
Impacts to fish spawning grounds are dealt with pursuant to the 
Magnuson-Stevens Act as it relates to Essential Fish Habitat (EFH). 
NMFS Office of Habitat Conservation found that the Navy's proposed 
action would adversely affect EFH, but that the proposed mitigation 
measures (see the Navy's EFH assessment in Appendix E of the SOCAL 
Range Complex FEIS) would adequately address adverse impacts to EFH. 
Therefore, NMFS made no additional EFH conservation recommendations. 
Measures to reduce impacts to sea turtles are included in the terms and 
conditions of the biological opinion that NMFS issued to the Navy (view 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications). 
Finally, it should be noted that the Navy will be required to alter 
activities if floating weeds or kelp are seen within a particular area 
(e.g., for Surface-to-Surface Gunnery exercises: ``Lookouts shall 
visually survey for floating weeds

[[Page 3897]]

and kelp. Intended impact shall not be within 600 yds (585 m) of known 
or observed floating weeds and kelp, and algal mats'').

Acoustic Threshold for Behavioral Harassment

    Comment 21: 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) Odontocete 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. Bain's 
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 to 120 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. Bain's document 
were raised by other commenters and are addressed elsewhere in this 
Comment and Response Section and will not be 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 
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 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 SOCAL Range Complex, an

[[Page 3898]]

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 response to 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 scientifically valid 
incorporation of new data into our acoustic criteria. We acknowledge 
that this model has limitations, however, the limitations 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 22: 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) have 
major deficiencies, which NMFS ignores by using the data.
    Response: The SSC Dataset (Controlled Laboratory Experiments with 
Odontocetes) is not the primary source of data for the behavioral 
harassment threshold; rather, it is one of three datasets (the 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 23: 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

[[Page 3899]]

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 24: 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 25: 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 into account 
the potential for 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 could potentially 
apply, 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 26: One commenter asserts that 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 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 27: One commenter stated ``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: For the specific application in the risk function for 
behavioral harassment, 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 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 MMPA harassment likely occurred. The Navy's report may be viewed 
at: http://www.acousticecology.org/docs/SHOUPNavyReport0204.pdf.

[[Page 3900]]

Acoustic Thresholds for TTS and PTS

    Comment 28: One commenter notes that in the SOCAL proposed rule, 
NMFS sets its threshold for temporary hearing loss and behavioral 
effects, or ``temporary threshold shift'' (``TTS''), at 183 dB re 1 
[mu]Pa2[middot]s for harbor seals, 204 dB re 1 
[mu]Pa\2\[middot]s for northern elephant seals, and 206 dB re 1 
[mu]Pa\2\[middot]s for California sea lions (73 FR 60878). However, the 
commenter notes, in the proposed rule for AFAST, NMFS indicates that 
the TTS threshold for pinnipeds is 183 dB re 1 [mu]Pa\2\[middot]s. NMFS 
does not explain the difference in thresholds. The commenter makes the 
same comment for the PTS thresholds (which are 20 dB higher than the 
TTS thresholds).
    Response: As noted in the SOCAL proposed rule, the TTS thresholds 
are 183 dB re 1 FPa\2\[middot]s for harbor seals (and closely related 
species), 204 dB re 1 [mu]Pa\2\[middot]s for northern elephant seals 
(and closely related species), and 206 dB re 1 [mu]Pa\2\[middot]s for 
California sea lions (and closely related species) (73 FR 60878). The 
commenter is correct, in the AFAST rule, NMFS did not fully explain 
that all of the pinnipeds that might be exposed to MFAS are ``closely 
related'' to harbor seals. Therefore, the 183 dB SEL is the pinniped 
threshold applied in AFAST. The AFAST final rule will be amended to 
clarify this issue and be consistent with the SOCAL final rule. The 
same answer applies to the comment about PTS thresholds.
    Comment 29: One commenter stated that NMFS' take estimates do not 
reflect other non-auditory physiological impacts, such as from chronic 
exposure during development, stress, ship collisions, and exposure to 
toxic chemicals.
    Response: The commenter is correct that 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 
animals that are taken by harassment will also likely experience non-
auditory physiological effects (stress, etc.) and these effects are 
addressed in the proposed rule (see Stress Responses section). 
Regarding toxins, the Navy concluded 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. Therefore, 
the Navy determined that marine mammals would not be taken via the 
ingestion of toxins and they did not request (nor did NMFS grant) 
authorization for take of marine mammals from toxin ingestion. 
Similarly, regarding ship strikes, the Navy's EIS indicated that the 
Navy does not expect marine mammals to be struck because of standard 
operating procedures to reduce the likelihood of collisions, to 
include: (1) Use of lookouts trained to detect all objects on the 
surface of the water (including marine mammals); (2) reasonable and 
prudent actions to avoid the close interactions of Navy assets and 
marine mammals; and (3) maneuvering to keep away from any observed 
marine mammal. Therefore, the Navy did not request (nor did NMFS grant) 
authorization for take of marine mammals from ship strikes.
    Comment 30: 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 31: 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 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 32: One commenter states that NMFS' and the Navy's 
assessment of the risk of marine mammal injury and mortality is 
astonishingly poor. Although NMFS briefly discusses stranding events 
(73 FR 60859), the Marine Mammal Protection Act requires NMFS to fully 
consider the impacts of sonar on marine mammals to determine there is 
no more than a negligible impact before issuing an incidental take 
authorization.
    Response: NMFS disagrees. The proposed rule contains a detailed 
discussion of stranding events (those that were merely coincident with 
MFAS use, as well as those for which the evidence suggests that MFAS 
exposure was a contributing factor), a detailed discussion of the 
multiple hypotheses that describe how acoustically-mediated or 
behaviorally-mediated bubble growth can lead to marine mammal 
strandings, as well as a comprehensive discussion

[[Page 3901]]

of the more general potential effects to marine mammals of MFAS 
exposure. NMFS analyses fully considers the impacts to marine mammals, 
which allows us to determine that the specified activites will have a 
negligible impact on the affected species or stocks.
    Comment 33: 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 disagreement 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 34: One commenter states that the calculation of PTS (which 
is equated to the onset on injury) is based on studies of TTS that, as 
discussed below, are significantly limited.
    Response: NMFS addressed this issue in response to comments 22, 24, 
and 27.

Effects Analysis

    Comment 35: One commenter asserts that NMFS does not properly 
incorporate the latest available data on marine mammal population 
structure and abundance into its analysis. NMFS' (and the Navy's) 
analysis of marine mammal distribution, habitat abundance, population 
structure and ecology contains false, misleading or outdated 
assumptions that tend to both underestimate impacts on species and to 
impede consideration of mitigation measures. Specifically, commenters 
point to errors in the reported abundance of blue whales, Baird's 
beaked whales, and sei whales.
    Response: The Navy began drafting and submitted the SOCAL Range 
Complex LOA application to NMFS prior to wide dissemination of the 
NMFS' 2007 U.S. Pacific Stock Assessment Reports (SAR). Information on 
estimated population size was obtained from the 2006 SAR and these 
numbers were carried forward into the Proposed Rule. Table 3 of this 
final rule shows updated population estimates based on the both the 
2007 and 2008 DRAFT U.S. Pacific SARs. Discussion of population 
abundance is for general review of relative population size since these 
estimates can vary every year based on new survey information, or a 
revision of previous statistical analysis by NMFS. Alternately, for the 
estimated density of the affected marine mammal stocks reported in both 
the proposed rule and SOCAL EIS, the Navy used a different calculation 
provided by NMFS Southwest Fisheries Science Center (SWFSC). SWFSC 
provided a multi-year statistical analysis of potential marine mammal 
densities stratified on visual ship sightings from south of Point 
Conception, California. The density estimates used in the impact 
analysis described in the Proposed and Final rule are based on NMFS 
sighting data stratified for species specific sightings only occurring 
within SOCAL. Sighting data across a species or stock range, which can 
often be much broader than SOCAL, is used for calculating potential 
abundance for that stock in the Pacific SARs. NMFS feels that this 
approach to regional density calculation is more realistic and 
scientific given limitations to at-sea marine mammal surveys. Unlike 
the abundance numbers, these NMFS density estimates were directly used 
by the Navy in the model and analysis that generated the take estimates 
shown in table 4 of this final rule. In short, this error neither 
caused NMFS to underestimate impacts nor impeded consideration of 
mitigation measures.
    Comment 36: The Navy compiled table of occurrence of marine mammals 
(page 60848 of the proposed rule) overstates the absence of some 
species during certain periods. For example, both humpback and blue 
whales are listed as not occurring November-April, when in fact lower 
numbers are present throughout this time, particularly in the early and 
late period of that range. This table also cites only one confirmed 
sighting of Bryde's whales in California; however we observed this 
species on two occasions in 2006 at SOAR.
    Response: Table 4 was meant to be a generalized summary of SOCAL 
marine mammal presence subject to a number of caveats. Oceanographic 
variations within a season could impact relative occurrence of certain 
more migratory species such as blue whales, humpback whales, and some 
dolphin species. The main purpose of the warm and cold designations was 
to indicate if enough sighting data was available within the specified 
time in which to calculate a species density for use in the impact 
analysis. Species-specific densities were provided to the Navy by NMFS 
Southwest Fisheries Science Center based on best available science 
derived from NMFS marine mammal surveys and are shown in Table 4 of 
this final rule (same as table 13 in proposed rule). Status of Bryde's 
whales within SOCAL is perhaps more accurately defined as rarely 
documented and status of blue and humpback whales would more accurately 
be generalized by ``YES less''. The extent of this species occurrence 
within SOCAL is poorly known, primarily because morphologically Bryde's 
whales and fin whales are very similar when observed at sea. At the 
time of the Navy's LOA application and Proposed Rule, 1993 was the last 
known confirmed Bryde's whale sighting prior to the unpublished 
sighting reported by the commenter. Regardless of the words used in the 
generalized Table 4 of the proposed rule, a low density of Bryde's 
whale, as well as densities for blue and humpback whales, were 
incorporated into the impact analysis.
    Comment 37: One commenter states that preliminary results of recent 
visual-acoustic surveys at SOAR (sponsored by the Navy) suggest that 
the population densities used to calculate takes may seriously 
underestimate the number of individuals to be exposed to MFAS/HFAS. 
This is most relevant for Cuvier's beaked whales, which (with acoustic 
direction from the M3R system) were among the most frequently 
encountered species in surveys conducted in 2007 and 2008. The group 
sizes of Cuvier's beaked whales at SOAR were larger on average than 
were reported in the line-transect surveys from which take estimates 
were derived, and a minimum 30 unique individuals were photo-identified 
within a limited area of the SOAR array in a 5-day period in October 
2007 (Falcone et al., submitted).
    Response: As discussed in the SOCAL Monitoring Plan, the Navy 
already has a funded marine mammal research program within SOCAL 
specifically

[[Page 3902]]

looking at science issues related to beaked whales. Data collection, 
analysis, and reporting are ongoing over the next few years. The 
commenter is referring to preliminary data from this program that was 
not available to the Navy or NMFS at the time of the SOCAL proposed 
rule. For the SOCAL EIS and the proposed rule impact analysis, the Navy 
and NMFS used the latest beaked whale density provided by the NMFS 
Southwest Fisheries Science Center as the best available science as of 
rule making publication deadlines. As new small scale density data 
becomes published in peer-review literature, the Navy will consider 
this information for future NEPA documentation. Increased knowledge of 
beaked whale distribution within SOCAL is an important science gap to 
be filled. This is the intent of both the ongoing Navy funded research 
and the SOCAL Monitoring Plan. Therefore while quantitative re-analysis 
may not be currently warranted based on the preliminary unpublished 
data collected to date, it is interesting to note the frequency and 
visual re-sighting rate of Cuvier's beaked whales in an area that has 
been subject to Navy operations for over 40 years.
    Comment 38: One commenter states that there are also a number of 
marine mammal populations (e.g., bottlenose dolphins, short-finned 
pilot whale, transient killer whale, and minke whale) in the Southern 
California region that, while not threatened or endangered, have very 
low abundance and are therefore particularly vulnerable to human 
impact. They are concerned that a lack of information has biased NMFS 
and the Navy's effects analysis and thus the potential risk to these 
species has been significantly underestimated. They cite the most 
recent NOAA stock assessments which indicate that the loss of 0.98 
individual short-finned pilot whales and 5.4 individual minke whales 
would compromise survival of those species, and note that NMFS has 
authorized 45 and 126 respective takes of those whales per year.
    Response: The NOAA stock assessment reports are referring to the 
loss, or death, of individuals. The takes that NMFS is authorizing as 
part of the current MMPA process are all Level B Harassment takes which 
are not expected to lead to the loss of any of these animals. 
Additionally, though these species have low abundance, the animals span 
the entire West Coast and beyond. The small numbers of these animals 
are not all focused in SOCAL and they are not experiencing repeated or 
regular exposures to sonar. NMFS does not believe that potential risk 
to these species has been underestimated and for the reasons discussed 
in the Negligible Impact Analysis section, we have determined that the 
Navy's activities in SOCAL will have a negligible impact on these 
species or stocks.
    Comment 39: One commenter is concerned that by adopting the Navy's 
analysis wholesale--and finding that the ``there will be few, and more 
likely no, impacts'' on fish--NMFS disregards relevant scientific 
literature.
    Response: The commenter misquotes the proposed rule. In the Effects 
on Marine Mammal habitat section, after some discussion, NMFS concludes 
that there ``will be few, and more likely no, impacts on the behavior 
of fish from active sonar.'' NMFS also discusses the potential for both 
threshold shifts and mortality to fish from MFAS, though we conclude 
that these impacts would be short-term (threshold shift) and 
insignificant to the population as a whole in light of natural daily 
mortality rates.
    Comment 40: One commenter noted that the migratory range of gray 
whales is a well documented part of the SOCAL Range Complex, and is an 
area of specific importance for reproduction for pregnant females (who 
are documented to give birth in the area, and newly pregnant females 
transit the area) and calves, all of who are more vulnerable to adverse 
effects and impacts. The commenter stated that these impacts need to be 
included in the rule.
    Response: As indicated in the Navy's SOCAL EIS and referenced in 
the proposed rule, gray whales have a well-defined north-south 
migratory path that takes them through SOCAL twice a year, and they do 
not spend much time, if any, feeding within SOCAL. Some calves are born 
along the coast of California, however, most are born in the shallow 
protected waters on the Pacific coast on Baja California from Morro de 
Santo Domingo south to Isla Creciente. These areas are well south of 
the SOCAL areas used for the majority of Navy operations. The potential 
impacts to mother-calf pairs from sonar are specifically discussed in 
the Potential Effects of Specified Activities on Marine Mammals section 
of the proposed rule. Given the transient nature of gray whale inshore 
mother-calf occurrence, which is on the order of hours to a day while 
moving along a more inshore migration path through SOCAL, and in light 
of the Navy's mitigation measures, though some mother-calf pairs may be 
behaviorally disturbed, more severe responses are not anticipated and 
NMFS determined that the take will have a negligible impact on the 
stock.
    Comment 41: One commenter felt that the rule discounts the 
potential impacts on beaked whales within SOCAL based on assumptions 
that are unfounded. The first is that strandings are unlikely to occur 
because events are not planned ``in a location having a constricted 
channel less than 35 miles wide or with limited egress similar to the 
Bahamas (because none exist in the SOCAL Range Complex)'' (73 FR 
60863). The commenter notes that sonar-associated beaked whale 
mortalities have occurred in other areas (e.g. the Canary Islands in 
2002 and 2004) where such bathymetry was not present, suggesting this 
as not a requisite characteristic for sonar-influenced strandings. The 
second is the observation that unusual strandings have not been 
recorded to date in the region is not an indication that mortalities 
have not occurred. Given that most species of cetaceans sink upon 
death, and that most beaked whales occur in very deep water which would 
prevent decomposing carcasses from eventually refloating, it is highly 
unlikely that whales suffering mortal injury at sea would have been 
detected. This is especially true in offshore/island regions, where 
there is limited shoreline throughout much of the operational area, and 
much of it is steep or rocky and not conducive to holding moribund 
individuals or carcasses.
    Response: The rule does not discount the potential impacts on 
beaked whales from sonar. NMFS specifically addresses the potential 
impacts to beaked whales in the ``Acoustically Mediated Bubble Growth'' 
, ``Behaviorally Mediated Responses to MFAS That May Lead to 
Stranding'', ``Stranding and Mortality'', and ``Association Between 
Mass Stranding Events and Exposure to MFAS'' sections of the proposed 
rule. Specifically, in recognition of potential impacts to beaked 
whales and the scientific uncertainty surrounding the exact mechanisms 
that lead to strandings, the Navy requested, and NMFS has authorized, 
the mortality of 10 beaked whales over the course of 5 years in the 
unlikely event that a stranding occurs as a result of Navy training 
exercises. Additionally, the commenter is misrepresenting a piece of 
text from the proposed rule--though NMFS points out that the five 
factors that contributed to the stranding in the Bahamas are not all 
present in southern California, we do not say that that alone means 
strandings are unlikely to occur. We also further suggest that caution 
is recommended when any of the three environmental factors are present 
(constricted channels, steep bathymetry, or surface

[[Page 3903]]

ducts) in the presence of MFAS and beaked whales. Also, NMFS does not 
ever say that the fact that strandings have not been recorded to date 
in the region is not an indication that mortalities have not occurred. 
Rather, we say ``Though not all dead or injured animals are expected to 
end up on the shore (some may be eaten or float out to sea), one might 
expect that if marine mammals were being harmed by active sonar with 
any regularity, more evidence would have been detected over the 40-yr 
period'' (25 of which, people have actively been collecting stranding 
data).
    Comment 42: 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: Though the Navy's model does not quantitatively consider 
the points listed above (because the quantitative data necessary to 
include those concepts in a mathematical model do not currently exist), 
NMFS and the Navy have qualitatively addressed those concerns in their 
effects analyses in the rule and in the Navy's EIS.
    Comment 43: 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 directly 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. Additionally, within SOCAL, 
many of the modeling areas, defined based on regional bathymetry, are 
relatively deep (>1000 feet) and may not be as influenced by bottom 
revelation as the more shallow Haro Strait.
    Comment 44: One commenter stated that NMFS does not consider the 
potential for acute synergistic [indirect] effects from sonar training. 
For example, the agency does not consider the greater susceptibility to 
vessel strike of animals that have been temporarily harassed or 
disoriented. The absence of analysis is particularly glaring in light 
of the 2004 Nowacek et al. study, which indicates that mid-frequency 
sources provoke surfacing and other behavior in North Atlantic right 
whales that increases the risk of vessel strike.
    Response: In the proposed rule, NMFS refers the reader to a 
conceptual framework that illustrates the variety of avenues of effects 
that can result from sonar exposure, to include ``risk prone behavior'' 
resulting somewhat indirectly from attempting to avoid certain received 
levels. Though we consider the potential for this type of interaction, 
NMFS does not include detailed analysis of potential indirect effects 
that have not been empirically demonstrated. Though Nowacek showed that 
right whales responded to a signal with mid-frequency components (not 
an actual MFAS signal) in a way that appeared likely to put them at 
greater risk for ship strike, we do not have evidence that the 
hypothesized sequence of behaviors has actually led to a ship strike. 
Additionally, in general and if affected, marine mammals may be 
affected by (or respond to) sonar in more than one single way when 
exposed. However, when analyzing impacts, NMFS ``counts'' the most 
severe response. In the example given by the commenter, NMFS considers 
the overall possibility of ship strikes resulting from Navy activities, 
regardless of whether or not they would be preceded by a lesser 
response.
    Comment 45: One commenter asked how oceanographic conditions (e.g., 
water temperature profiles, water depth, salinity, etc.) will 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 the Navy's FEIS for the SOCAL Range 
Complex, 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.
    In terms of predicting potential MFAS exposure to marine mammals 
sighted during Navy training events and in context of the research 
goals of the SOCAL Monitoring Plan, there are a number of general and 
classified Navy models using the databases listed above and real-world 
measurements that may be used to predict likely exposure to compare 
with concurrent scientific observation of marine mammal behavior 
conducted under the Monitoring Plan.
General Opposition
    Comment 46: The NRDC urged NMFS to withdraw its proposed rule on 
SOCAL 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 SOCAL.
    Comment 47: A few commenters expressed general opposition to Navy 
activities and NMFS' issuance of an MMPA authorization and presented 
several reasons why MFAS was not necessary.
    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. Under the

[[Page 3904]]

MMPA, NMFS must make the decision of whether or not to issue an 
authorization based on the 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. NMFS has determined that the Navy training 
activities in the SOCAL Range Complex will have a negligible impact on 
the affected species or stocks and, therefore, we plan to issue the 
requested MMPA authorization.
Other
    Comment 48: Two commenters voiced general opposition to the Navy's 
capture, caging, or harnessing of marine mammals.
    Response: The Navy does not intend to capture marine mammals during 
these activities and this rule does not authorize the capture of marine 
mammals.
    Comment 49: 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 50: One commenter noted that in the second column of 73 FR 
60860, NMFS correctly asserts that ``As discussed in the Bahamas 
report, there is no likely association between the minke whale and 
spotted dolphin strandings and the operation of MFAS'' However, on page 
60861, third column under Association of Strandings and MFAS, the NMFS 
incorrectly still lists these species (minke whale and spotted dolphin) 
as associated with MFAS.'' This is incorrect as NMFS previously states. 
The sentence reads, ``Other species (Stenella coeruleoalba, Kogia 
breviceps and Balaenoptera acutorostrata) have stranded, but in much 
lower numbers and less consistently than beaked whales'' This sentence 
should be removed from the NMFS' Final Rule.
    Response: NMFS concurs that this sentence is incorrect in the 
context of discussing the 5 strandings associated with MFAS use and has 
modified the final rule.
    Comment 51: On the third column of 73 FR 60883, after the last 
sentence in this section, another sentence should be inserted to 
accurately frame the biological distribution for the species (harbor 
porpoise) in question. The harbor porpoise is more commonly found in 
near shore water from Central California north of Point Conception to 
Alaska.
    Response: The commenter is correct. To add clarity, though the 
harbor porpoise criteria were discussed in the rule, no harbor 
porpoises are expected to be harassed incidental to the SOCAL action, 
since SOCAL is outside the normal range of harbor porpoise 
distribution.
    Comment 52: The MMC recommends that NMFS work with the Navy to 
prepare an adequate analysis under the National Environmental Policy 
Act of proposed operations at Tanner Bank, but until such an analysis 
has been completed, NMFS withhold authorization for the taking of 
marine mammals at that site. MMC noted that the biological importance 
of Tanner Banks is well documented and any plans to increase naval 
activity in that area should be carefully evaluated and weighed against 
the options of increasing the use of alternative, existing 
countermeasure sites or placing the new minefield site elsewhere where 
it would be less likely to have a significant biological impact.
    Response: The Navy adequately considered alternative minefield 
sites to the new minefield site at Tanner Banks. As discussed in the 
SOCAL Draft and Final EIS, the Navy proposed to establish an offshore 
shallow water minefield in the SOCAL Range Complex to support an 
overall increased requirement for mine countermeasure training. The EIS 
proposed an increase in mine warfare training operations at the 
existing sites, as well as new sites based on expanding mine warfare 
training requirements in SOCAL associated with:
     Introduction of the MH-60S Helicopters (which have a new 
mine warfare mission focus),
     Introduction of the Littoral Combat Ship (LCS),
     Transfer of the Navy's mine warfare surface ships to San 
Diego from other homeports based on BRAC decision, and
     Overall increased emphasis on mine warfare training as a 
result of concerns about moored mines
    Two existing shallow water minefields were considered as 
alternatives to new proposed sites: ARPA off La Jolla, California and 
the Kingfisher Range northwest of Eel Point at San Clemente Island. In 
addition, the Navy evaluated new sites at Tanner Banks, offshore of 
Camp Pendleton, and off the southern end of San Clemente Island. The 
feasibility of each of these proposed alternatives were evaluated to 
determine if they satisfied the following environmental, 
infrastructure, and operationally-related criteria:
     Provide enough training opportunities and sites to 
accommodate all the various mine warfare training requirements which 
may overlap in time and space.
     Provide the unique oceanographic characteristics (depths 
less than 150 feet and offshore bathymetry with steep sloping canyons) 
that is representative of real world potential mine warfare operational 
areas.
     Provide the unique oceanographic characteristics where 
shallower water depths occur in a relatively open ocean area well away 
from land masses thereby offering minimal interference from civilian 
activities.
     Provide proximity to existing undersea ranges to include 
other mine warfare and anti-submarine ranges with complimentary 
features such that training opportunities could be optimized in one 
area reducing time/costs/personnel tempo and fuel (primarily aviation 
but also fuel costs for ships).
     Geography that optimizes use of the SOCAL Range Complex 
space during exercises and enhances realism of training (as compared to 
any other site) by providing a mine warfare training opportunity in the 
same area where units would be doing other operations at the same time 
as could be expected while deployed.
    The sites off Camp Pendleton and off San Clemente Islands meet 
several of the sighting requirements and were considered by the Navy. 
The Tanner Bank site, however, was found to meet all five of the 
necessary environmental, infrastructure, and operational criteria:
     The new Tanner Bank site ensures that there would be 
enough sites to provide the required increase mine warfare training by 
providing a new site away from the existing sites near San Clemente 
Island and offshore of La Jolla significantly enhancing the 
availability of training opportunities for the expanded mine warfare 
training requirements.
     The Tanner Bank site provides a realistic mine warfare 
environment that contains a series of underwater escarpments, canyons, 
banks, and sea mounts. Tanner Bank is the highest peak of the undersea 
ridges.
     The proposed site is approximately 90 nautical miles from 
the California coastline at San Diego and over 10 miles from San 
Clemente Island. This location is sufficiently distant to ensure 
minimal interference from civilian activities.

[[Page 3905]]

     The Tanner Bank site is in proximity to the existing 
Southern California Anti-Submarine Warfare Range (SOAR) and is within 
the area proposed for expansion of the SOAR, as well as the other 
ranges available on and around San Clemente Island Offshore Range 
(SCIUR). This location would allow the co-location of anti-submarine 
warfare and mine countermeasures training thereby optimizing the 
undersea warfare training available to a Strike Group, thereby saving 
time and fuel.
     Overall, the geographic location of the Tanner Bank site 
would enhance the quality and realism of training available in the 
SOCAL Range Complex. Significant portions of advanced Strike Group 
exercise training activities are concentrated in the areas southwest of 
San Clemente Island; adding a mine warfare range in this area at Tanner 
Banks allows mine warfare training to be conducted with other training 
enhancing realism.
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 
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 southern 
California, so this determination is inapplicable for this rulemaking); 
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 definitions of Level A and Level B Harassment and quantified 
(estimated) the effects on marine mammals that could result from the 
specific activities that the Navy intends to conduct. The subsections 
of 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). See 73 
FR 60836, pages 60876-60877. 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. See 73 FR 60836, pages 60877-
60883. 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 (>6dB) is induced) for MFAS/HFAS are as follows:
     Cetaceans--195 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))
     Harbor Seals (and closely related species)--183 dB re 1 
[mu]Pa2-s
     Northern Elephant Seals (and closely related species)--204 
dB re 1 [mu]Pa2-s
     California Sea Lions (and closely related species)--206 dB 
re 1 [mu]Pa2-s
    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))
     Harbor Seals (and closely related species)--203 dB re 1 
[mu]Pa2-s
     Northern Elephant Seals (and closely related species)--224 
dB re 1 [mu]Pa2-s
     California Sea Lions (and closely related species)--226 dB 
re 1 [mu]Pa2-s
    For the behavioral harassment criteria, NMFS uses acoustic risk 
functions developed by NMFS, with input from 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 MFA sonar. See 73 FR 60836, pages 60879-60883.
    Table 13 in the proposed rule summarizes the acoustic criteria for 
explosive detonations. See 73 FR 60836, page 60883.

Estimates of Potential Marine Mammal Exposures and Authorized Take

    Estimating the take that will result from the proposed activities 
entails the following four general steps: (1) Propagation model 
estimates animals exposed to sources at different levels; (2) further 
modeling determines number of exposures to levels indicated in criteria 
above (i.e., number of takes); (3) post-modeling corrections refine 
estimates to make them more accurate; and, (4) mitigation is taken into 
consideration. More information regarding the models used, the 
assumptions used in the models, and the process of estimating take is 
available in Appendix F of the Navy's SOCAL Range Complex FEIS.
    (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
    [cir] Active 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.
    [cir] Explosive source characteristics include: The net explosive 
weight (NEW) of an explosive, the type of explosive, the detonation 
depth, number of successive explosions.
     Transmission loss (in 13 representative environmental 
provinces across 8 sonar modeling areas in two

[[Page 3906]]

seasons) based on: water depth; sound speed variability throughout the 
water column (warm season exhibits a weak surface duct, cold season 
exhibits a relatively strong surface duct); bottom geo-acoustic 
properties (bathymetry); and wind speed.
     The estimated density of each marine mammal species in the 
SOCAL Range Complex (see Table 4), 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 SOCAL Range Complex, 
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 active sonar sources must account 
for land masses (by subtracting them out).
     Acoustic footprints for active 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 active 
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 by NMFS and 
adjustments may be applied to the numbers produced by the Navy's 
modeled estimates. For example, in some cases the raw modeled numbers 
of exposures to levels predicted to result in Level A Harassment from 
exposure to MFAS/HFAS might indicate that 1 blue whale would be exposed 
to levels of active sonar anticipated to result in PTS. However, a blue 
whale would need to be within approximately 10 m of the source vessel 
in order to be exposed to these levels. Because of the mitigation 
measures (watchstanders and shutdown zone), size of blue whales, and 
nature of blue whale behavior, it is highly unlikely that a blue whale 
would be exposed to those levels, and therefore the Navy would not 
request authorization for Level A Harassment of 1 blue whale. Table 6 
contains the Navy's modeled take estimates and the number of takes that 
NMFS is authorizing in these regulations.
    (5) Last, 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 2 (by multiplying the 
yearly estimate by 5) by more than 10 percent. NMFS estimates that a 
10-percent increase in active sonar hours would result in approximately 
a 10-percent increase in the number of takes, and we have considered 
this possibility in our analysis.

[[Page 3907]]

[GRAPHIC] [TIFF OMITTED] TR21JA09.005

Mortality

    Evidence from five beaked whale strandings, all of which have taken 
place outside of the SOCAL Range Complex, 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 factors 
believed to contribute to the likelihood of beaked whale strandings are 
not present in southern California 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 (and NMFS is 
authorizing) take, by injury or mortality. Although the Navy has 
requested take by injury or mortality of 10 beaked whales over the 
course of the 5-yr regulations, the Navy's model did not predict 
injurious takes of beaked whales and neither NMFS, nor the Navy 
anticipates that marine mammal strandings or mortality will result from 
the operation of MFAS during Navy exercises within the SOCAL Range 
Complex.

Effects on Marine Mammal Habitat

    NMFS' SOCAL Range Complex proposed rule included a detailed section 
that addressed the effects of the Navy's activities on Marine Mammal 
Habitat. See 73 FR 60836, pages 60886-60888. The analysis concluded 
that the Navy's activities would have minimal effects on fish or 
invertebrates (in their roles as food sources for marine mammals), or 
water quality in the SOCAL Range Complex. No changes have been made to 
the discussion

[[Page 3908]]

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 had a 17-percent reproductive 
success). A negligible impact finding is based on the lack of likely 
adverse effects on annual rates of recruitment or survival (i.e., 
population-level effects). An estimate of the number of Level B 
harassment takes, alone, is not enough information on which to base an 
impact determination. In addition to considering estimates of the 
number of marine mammals that might be ``taken'' through behavioral 
harassment, NMFS must consider other factors, such as the likely nature 
of any responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), 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 activities 
utilizing MFAS/HFAS and underwater detonations will have a negligible 
impact on the marine mammal species and stocks present in the SOCAL 
Range Complex. No changes have been made to the discussion contained in 
this section of the proposed rule. See 73 FR 60836, pages 60889-60899.

Subsistence Harvest of Marine Mammals

    NMFS has determined that the issuance of these regulations and 
subsequent LOAs for Navy activities in the SOCAL Range Complex 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.

ESA

    There are nine marine mammal species and four 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, southern 
resident killer whale, Guadalupe fur seal, Steller sea lion, loggerhead 
sea turtle, the green sea turtle, leatherback sea turtle, and olive 
ridley sea turtle. White Abalone (Haliotis sorenseni) are also present 
in the Navy's action area. 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 activities in the SOCAL Range Complex 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 SOCAL Range Complex, 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 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 Southern California Range 
Complex. 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 SOCAL Range Complex rule and subsequent LOAs. A 
finding of no significant impact for the mitigation EA was issued in 
January, 2009.

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, maintenance, and RDT&E activities utilizing 
MFAS/HFAS and underwater explosives in the SOCAL Range Complex 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

[[Page 3909]]

or stocks for taking for subsistence uses because no subsistence uses 
exist in the SOCAL Range Complex. 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 certified at the proposed rule 
stage 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 served 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 SOCAL Range 
Complex. 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 
and NMFS' and Navy's preference that the Navy be in compliance with the 
MMPA 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 
when issuing the Presidential Exemption under the CZMA for the SOCAL 
COMPTUEX/JTFEX exercises, the training proposed to be conducted in 
SOCAL is in the paramount interest of the United States. Also, the 
Supreme Court noted SOCAL is an ideal location for conducting 
integrated training exercises as the only area on the west coast that 
is relatively close to land, air and sea bases as well as amphibious 
landings areas. 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 14, 2009.
Samuel D. Rauch III,
Deputy Administrator for Regulatory Programs, 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 X is added to part 216 to read as follows:
Subpart X--Taking Marine Mammals Incidental to U.S. Navy Training in 
the Southern California Range Complex
Sec.
216.270 Specified activity and specified geographical region.
216.271 Effective dates and definitions.
216.272 Permissible methods of taking.
216.273 Prohibitions.
216.274 Mitigation.
216.275 Requirements for monitoring and reporting.
216.276 Applications for Letters of Authorization.
216.277 Letters of Authorization.
216.278 Renewal of Letters of Authorization.
216.279 Modifications to Letters of Authorization.

Subpart X--Taking Marine Mammals Incidental to U.S. Navy Training 
in the Southern California Range Complex (SOCAL Range Complex)


Sec.  216.270  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 within the SOCAL Range Complex (as depicted in Figure ES-1 in 
the Navy's Final Environmental Impact Statement for the SOCAL Range 
Complex), which extends southwest from southern California in an 
approximately 700 by 200 nm rectangle with the seaward corners at 
27[deg]30'00'' N. lat.; 127[deg]10'04'' W. long. and 24[deg]00'01'' N. 
lat.; 125[deg]00'03'' 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) 
sources, high frequency active sonar (HFAS) sources for U.S. Navy anti-
submarine warfare (ASW), mine warfare (MIW) training, maintenance, or 
research, development, testing, and evaluation (RDT&E) in the amounts 
indicated below (+/-10 percent):

(i) AN/SQS-53 (hull-mounted active sonar)--up to 9885 hours over the 
course of 5 years (an average of 1977 hours per year)
(ii) AN/SQS-56 (hull-mounted active sonar)--up to 2470 hours over the 
course of 5 years (an average of 494 hours per year)

[[Page 3910]]

(iii) AN/BQQ-10 (submarine active sonar)--up to 4075 hours over the 
course of 5 years (an average of 815 hours per year)(an average of 2 
pings per hour during training events, 60 pings per hour for 
maintenance)
(iv) AN/AQS-22 or 13 (active helicopter dipping sonar)--up to 13595 
dips over the course of 5 years (an average of 2719 dips per year--10 
pings per dip)
(v) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS) 
sonobuoys)--up to 21275 sonobuoys over the course of 5 years (an 
average of 4255 sonobuoys per year)
(vi) MK-48 (heavyweight torpedoes)--up to 435 torpedoes over the course 
of 5 years (an average of 87 torpedoes per year)
(vii) AN/BQQ-15 (submarine navigational sonar)--up to 610 hours over 
the course of 5 years (an average of 122 hours per year)
(viii) MK-46 (lightweight torpedoes)--up to 420 torpedoes over the 
course of 5 years (an average of 84 torpedoes per year)
(ix) AN/SLQ-25A NIXIE--up to 1135 hours over the course of 5 years (an 
average of 227 hours per year)
(x) AN/SSQ-125 (AEER sonar sonobuoy)--up to 540 sonobuoys (total, of 
EER/IEER and AEER) over the course of 5 years (an average of 108 per 
year))
    (2) The detonation of the underwater explosives identified in 
paragraph (c)(2)(i) conducted as part of the training exercises 
identified in paragraph (c)(2)(ii):
(i) Underwater Explosives:
    (A) 5'' Naval Gunfire (9.5 lbs)
    (B) 76 mm rounds (1.6 lbs)
    (C) Maverick (78.5 lbs)
    (D) Harpoon (448 lbs)
    (E) MK-82 (238 lbs)
    (F) MK-83 (574 lbs)
    (G) MK-84 (945 lbs)
    (H) MK-48 (851 lbs)
    (I) Demolition Charges (20 lbs)
    (J) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs)
    (ii) Training Events:
    (A) Surface-to-surface Gunnery Exercises (S-S GUNEX)--up to 2010 
exercises over the course of 5 years (an average of 402 per year)
    (B) Air-to-surface Missile Exercises (A-S MISSILEX)--up to 250 
exercises over the course of 5 years (an average of 50 per year)
    (C) Bombing Exercises (BOMBEX)--up to 200 exercises over the course 
of 5 years (an average of 40 per year)
    (D) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (an average of 2 per year)
    (E) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 15 exercises (total, of EER/IEER and AEER 
combined) over the course of 5 years (an average of 3 exercises, or 108 
sonobuoy deployments, per year).


Sec.  216.271  Effective dates and definitions.

    (a) Regulations are effective January 14, 2009 through January 14, 
2014.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place during an integrated, coordinated, or major training exercise 
(MTE) 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 Sec.  
216.271(b)(1)(ii) found dead or live on shore within a two day period 
and occurring within 30 miles of one another.
    (ii) A single individual or mother/calf pair of any of the 
following marine mammals of concern: Beaked whale of any species, dwarf 
or pygmy sperm whales, short-finned pilot whales, humpback whales, 
sperm whales, blue whales, fin whales, or sei whales.
    (iii) A group of 2 or more cetaceans of any species exhibiting 
indicators of distress as defined in the SOCAL Range Complex Stranding 
Response Plan.
    (2) Shutdown--The cessation of MFAS/HFAS operation or detonation of 
explosives within 14 nm of any live, in the water, animal involved in a 
USE.


Sec.  216.272  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 216.277, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  216.270(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.  216.270(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.  216.270(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)--110 (an average of 22 
annually)
    (B) Fin whale (Balaenoptera physalus)--870 (an average of 174 
annually)
    (C) Blue whale (Balaenoptera musculus)--3085 (an average of 617 
annually)
    (D) Minke whale (Balaenoptera acutorostrata)--665 (an average of 
133 annually)
    (E) Gray whale (Eschrichtius robustus)--27340 (an average of 5468 
annually)
(ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--775 (an average of 155 
annually)
    (B) Pygmy sperm whales (Kogia breviceps)--830 (an average of 166 
annually)
    (C) Dwarf sperm whale (Kogia sima)--100 (an average of 20 annually)
    (D) Mesoplodont beaked whales (Blainville's, Hubb's, Perrin's, 
pygmy, and ginkgo-toothed) (Mesoplodon densirostris, M. carlhubbsi, M. 
perrini, M. peruvianus, M. ginkgodens)--690 (an average of 138 
annually)
    (E) Cuvier's beaked whales (Ziphius cavirostris)--2175 (an average 
of 435 annually)
    (F) Baird's beaked whales (Berardius bairdii)--100 (an average of 
20 annually)
    (G) Unidentified beaked whales--555 (an average of 104 annually)
    (H) Rough-toothed dolphin (Steno bredanensis)--100 (an average of 
20 annually)
    (I) Bottlenose dolphin (Tursiops truncatus)--7480 (an average of 
1516 annually)
    (J) Pan-tropical spotted dolphin (Stenella attenuata)--100 (an 
average of 20 annually)
    (K) Spinner dolphin (Stenella longirostris)--100 (an average of 20 
annually)
    (L) Striped dolphin (Stenella coeruleoalba)--9190 (an average of 
1838 annually)
    (M) Long-beaked common dolphin (Delphinus capensis)--23145 (an 
average of 4629 annually)
    (N) Risso's dolphin (Grampus griseus)--17995 (an average of 3599 
annually)
    (O) Northern right whale dolphin (Lissodelphis borealis)--7935 (an 
average of 1547 annually)
    (P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--7020 
(an average of 1404 annually)
    (Q) Short-beaked common dolphin (Delphinus delphis)--197350 (an

[[Page 3911]]

average of 39470 annually)
    (R) Melon-headed whale (Peponocephala electra)--100 (an average of 
20 annually)
    (S) Pygmy killer whale (Feresa attenuata)--100 (an average of 20 
annually)
    (T) False killer whale (Pseudorca crassidens)--100 (an average of 
20 annually)
    (U) Killer whale (Orcinus orca)--70 (an average of 14 annually)
    (V) Short-finned pilot whale (Globicephala macrorynchus)--260 (an 
average of 52 annually)
    (W) Dall's porpoise (Phocoenoides dalli)--3145 (an average of 629 
annually)
(iii) Pinnipeds:
    (A) Northern elephant seal (Mirounga angustirostris)--4795 (an 
average of 959 annually)
    (B) Pacific harbor seal (Phoca vitulina)--28380 (an average of 5676 
annually)
    (C) California sea lion (Zalophus californianus)--277530 (an 
average of 55506 annually)
    (D) Northern fur seal (Callorhinus ursinus)--6185 (an average of 
1237 annually)
    (E) Guadalupe fur seal (Arctocephalus townsendi)--5340 (an average 
of 1068 annually)
    (2) Level A Harassment and/or mortality of no more than 10 beaked 
whales (total), of any of the species listed in Sec.  
216.272(c)(1)(ii)(D) through (G) over the course of the 5-year 
regulations.


Sec.  216.273  Prohibitions.

    Notwithstanding takings contemplated in Sec.  216.272 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 216.277, no person in connection with the activities described in 
Sec.  216.270 may:
    (a) Take any marine mammal not specified in Sec.  216.272(c);
    (b) Take any marine mammal specified in Sec.  216.272(c) other than 
by incidental take as specified in Sec.  216.272(c)(1) and (2);
    (c) Take a marine mammal specified in Sec.  216.272(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 216.277.


Sec.  216.274  Mitigation.

    (a) When conducting activities identified in Sec.  216.270(c), the 
mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.277 must be implemented. These 
mitigation measures include, but are not limited to:
    (1) Navy's General SOCAL Maritime Measures for All Training at Sea:
    (i) Personnel Training (for all Training Types):
    (A) All commanding officers (COs), executive officers (XOs), 
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter crews shall complete the NMFS-approved Marine Species 
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital 
versatile disk (DVD). All bridge lookouts shall complete both parts one 
and two of the MSAT; part two is optional for other personnel.
    (B) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced lookout. Following successful 
completion of this supervised training period, lookouts shall complete 
the Personal Qualification Standard Program, certifying that they have 
demonstrated the necessary skills (such as detection and reporting of 
partially submerged objects). Personnel being trained as lookouts can 
be counted among required lookouts as long as supervisors monitor their 
progress and performance.
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two 
lookouts with binoculars; surfaced submarines shall have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts will watch for 
and report to the OOD the presence of marine mammals.
    (D) On surface vessels equipped with a mid-frequency active sensor, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be properly 
installed and in good working order to assist in the detection of 
marine mammals in the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout 
Training Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookout Techniques in accordance with the Lookout Training Handbook. 
(NAVEDTRA 12968-D).
    (G) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'' so that the vessel 
can take proper and effective action to avoid a collision with any 
marine animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (H) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and take reasonable and practicable actions to 
avoid collisions and activities that might result in close interaction 
of naval assets and marine mammals. Actions may include changing speed 
and/or direction and are dictated by environmental and other conditions 
(e.g., safety, weather).
    (I) Floating weeds and kelp, algal mats, clusters of seabirds, and 
jellyfish are good indicators of marine mammals. Therefore, where these 
circumstances are present, the Navy shall exercise increased vigilance 
in watching for marine mammals.
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties. Marine 
mammal detections shall be immediately reported to assigned Aircraft 
Control Unit for further dissemination to ships in the vicinity of the 
marine species as appropriate when it is reasonable to conclude that 
the course of the ship will likely result in a closing of the distance 
to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting 
training operations should they be required for event reconstruction 
purposes. Logs and records will be kept for a period of 30

[[Page 3912]]

days following completion of a major training exercise.
    (2) Navy's Measures for MFAS Operations:
    (i) Personnel Training (for MFAS Operations):
    (A) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (B) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of mid-frequency active sonar.
    (C) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Educational Training [NAVEDTRA], 12968-D).
    (D) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts 
shall complete the Personal Qualification Standard program, certifying 
that they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). This does not forbid 
personnel being trained as lookouts from being counted as those listed 
in previous measures so long as supervisors monitor their progress and 
performance.
    (E) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (ii) Lookout and Watchstander Responsibilities:
    (A) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (B) All surface ships participating in ASW training events shall, 
in addition to the three personnel on watch noted previously, have at 
all times during the exercise at least two additional personnel on 
watch as marine mammal lookouts.
    (C) Personnel on lookout and officers on watch on the bridge shall 
have at least one set of binoculars available for each person to aid in 
the detection of marine mammals.
    (D) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and 
in good working order to assist in the detection of marine mammals in 
the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout 
Training Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (G) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, 
discoloration) in the water may be indicative of a threat to the vessel 
and its crew or indicative of a marine species that may need to be 
avoided as warranted.
    (iii) Operating Procedures:
    (A) Navy will distribute final mitigation measures contained in the 
LOA and the Incidental take statement of NMFS' biological opinion to 
the Fleet.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    (C) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (D) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (E) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties.
    (F) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    (G) Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate where it is 
reasonable to conclude that the course of the ship will likely result 
in a closing of the distance to the detected marine mammal.
    (H) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) within or closing to 
inside 1,000 yds (914 m) of the sonar dome (the bow), the ship or 
submarine shall limit active transmission levels to at least 6 decibels 
(dB) below normal operating levels.
    (1) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yds (1829 m) beyond the location of the 
last detection.
    (2) Should a marine mammal be detected within or closing to inside 
500 yds (457 m) of the sonar dome, active sonar transmissions shall be 
limited to at least 10-dB below the equipment's normal operating level. 
Ships and submarines shall continue to limit maximum ping levels by 
this 10-dB factor until the animal has been seen to leave the area, has 
not been detected for 30 minutes, or the vessel has transited more than 
2,000 yds (1829 m) beyond the location of the last detection.
    (3) Should the marine mammal be detected within or closing to 
inside 200 yds (183 m) of the sonar dome, active sonar transmissions 
shall cease. Sonar shall not resume until the animal has been seen to 
leave the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yds (1829 m) beyond the location of the last 
detection.
    (4) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (5) If the need for power-down should arise as detailed in 
paragraph (a)(2)(iii)(H) of this section, the Navy shall follow the 
requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down will be to 229 dB, 
regardless of at what level above 235 dB active sonar was being 
operated).
    (I) Prior to start up or restart of active sonar, operators will 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (J) Active sonar levels (generally)--Navy shall operate active 
sonar at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.

[[Page 3913]]

    (K) Helicopters shall observe/survey the vicinity of an ASW 
training event for 10 minutes before the first deployment of active 
(dipping) sonar in the water.
    (L) Helicopters shall not dip their active sonar within 200 yds 
(183 m) of a marine mammal and shall cease pinging if a marine mammal 
closes within 200 yds (183 m) after pinging has begun.
    (M) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
events involving active mid-frequency sonar.
    (N) Night vision goggles shall be available to all ships and air 
crews, for use as appropriate.
    (3) Navy's Measures for Underwater Detonations:
    (i) Surface-to-Surface Gunnery (explosive rounds):
    (A) Lookouts shall visually survey for floating weeds and kelp. 
Intended impact (i.e., where the Navy is aiming) shall not be within 
600 yds (585 m) of known or observed floating weeds and kelp, and algal 
mats.
    (B) For exercises using targets towed by a vessel or aircraft, 
target-towing vessels/aircraft shall maintain a trained lookout for 
marine mammals, if applicable. If a marine mammal is sighted in the 
vicinity, the tow aircraft/vessel shall immediately notify the firing 
vessel, which shall suspend the exercise until the area is clear.
    (C) A 600-yard radius buffer zone shall be established around the 
intended target.
    (D) From the intended firing position, trained lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
    (E) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within it.
    (ii) Surface-to-Surface Gunnery (non-explosive rounds):
    (A) Lookouts shall visually survey for floating weeds and kelp, and 
algal mats. Intended impact will not be within 200 yds (183 m) of known 
or observed floating weeds and kelp, and algal mats.
    (B) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (C) From the intended firing position, trained lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
    (D) If applicable, target towing vessels shall maintain a lookout. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
vessel shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (E) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
    (iii) Surface-to-Air Gunnery (explosive and non-explosive rounds):
    (A) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (B) Vessels will expedite the recovery of any parachute deploying 
aerial targets to reduce the potential for entanglement of marine 
mammals.
    (C) Target towing aircraft shall maintain a lookout, if applicable. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
aircraft shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (iv) Air-to-Surface Gunnery (explosive and non-explosive rounds)
    (A) If surface vessels are involved, lookouts will visually survey 
for floating kelp in the target area. Impact shall not occur within 200 
yds (183 m) of known or observed floating weeds and kelp or algal mats.
    (B) A 200 yd (183 m) radius buffer zone shall be established around 
the intended target.
    (C) If surface vessels are involved, lookout(s) shall visually 
survey the buffer zone for marine mammals prior to and during the 
exercise.
    (D) Aerial surveillance of the buffer zone for marine mammals shall 
be conducted prior to commencement of the exercise. Aircraft crew/pilot 
shall maintain visual watch during exercises. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually 
see ordnance impact areas.
    (E) The exercise shall be conducted only if marine mammals are not 
visible within the buffer zone.
    (v) Small Arms Training--(grenades, explosive and non-explosive 
rounds)--Lookouts will visually survey for floating weeds or kelp, 
algal mats, and marine mammals. Weapons shall not be fired in the 
direction of known or observed floating weeds or kelp, algal mats, or 
marine mammals.
    (vi) Air-to-Surface At-sea Bombing Exercises (explosive and non-
explosive):
    (A) If surface vessels are involved, trained lookouts shall survey 
for floating kelp and marine mammals. Ordnance shall not be targeted to 
impact within 1,000 yds (914 m) of known or observed floating kelp or 
marine mammals.
    (B) A 1,000 yd (914 m) radius buffer zone shall be established 
around the intended target.
    (C) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (152 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually 
see ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    (D) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
    (vii) Air-to-Surface Missile Exercises (explosive and non-
explosive):
    (A) Ordnance shall not be targeted to impact within 1,800 yds (1646 
m) of known or observed floating kelp.
    (B) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying 
at 1,500 (457 m) feet or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas. Explosive ordnance shall not be targeted to 
impact within 1,800 yds (1646 m) of sighted marine mammals.
    (viii) Demolitions, Mine Warfare, and Mine Countermeasures (up to a 
20-lb NEW charge):
    (A) Exclusion Zones--All Demolitions, Mine Warfare and Mine 
Countermeasures Operations involving the use of explosive charges must 
include exclusion zones for marine mammals to prevent physical and/or 
acoustic effects to those species. These exclusion zones shall extend 
in a 700-yard arc radius around the detonation site.
    (B) Pre-Exercise Surveys--For Demolition and Ship Mine 
Countermeasures Operations, pre-exercise survey shall be conducted 
within 30 minutes prior to the commencement of the scheduled explosive 
event. The survey may be conducted from the surface, by divers, and/or 
from the air, and personnel shall be alert to the presence of any 
marine mammal. Should a marine mammal be present within the survey 
area, the exercise shall be paused until the animal voluntarily leaves 
the area. The Navy shall suspend detonation exercises and ensure the 
area is clear for a full 30 minutes prior to detonation. Personnel 
shall record any marine mammal observations during the exercise.
    (C) Post-Exercise Surveys--Surveys within the same radius shall 
also be

[[Page 3914]]

conducted within 30 minutes after the completion of the explosive 
event.
    (D) Reporting--If there is evidence that a marine mammal may have 
been stranded, injured or killed by the action, Navy activities shall 
be immediately suspended and the situation immediately reported by the 
participating unit to the Officer in Charge of the Exercise (OCE), who 
will follow Navy procedures for reporting the incident to Commander, 
Pacific Fleet, Commander, Third Fleet, Commander, Navy Region 
Southwest, Environmental Director, and the chain-of-command. The 
situation shall also be reported to NMFS (see Stranding Plan for 
details).
    (ix) Mining Operations--Initial target points shall be briefly 
surveyed prior to inert ordnance (no live ordnance used) release from 
an aircraft to ensure the intended drop area is clear of marine 
mammals. To the extent feasible, the Navy shall retrieve inert mine 
shapes dropped during Mining Operations.
    (x) Sink Exercise:
    (A) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (B) An exclusion zone with a radius of 1.5 nm shall be established 
around each target. This 1.5 nm zone includes a buffer of 0.5 nm to 
account for errors, target drift, and animal movement. In addition to 
the 1.5 nm exclusion zone, a further safety zone, which extends from 
the exclusion zone at 1.5 nm out an additional 0.5 nm, shall be 
surveyed. Together, the zones (exclusion and safety) extend out 2 nm 
from the target.
    (C) 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 shall be as follows:
    (1) 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 
Tactical Aid, which provides the best search altitude, ground speed, 
and track spacing for the discovery of small, possibly dark objects in 
the water based on the environmental conditions of the day. These 
environmental conditions include the angle of sun inclination, amount 
of daylight, cloud cover, visibility, and sea state.
    (2) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team shall have completed the Navy's marine mammal training 
program for lookouts.
    (3) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring would be maintained throughout the 
exercise. Potential assets include sonobuoys, which can be utilized to 
detect any vocalizing marine mammals (particularly sperm whales) in the 
vicinity of the exercise. The sonobuoys shall be re-seeded as necessary 
throughout the exercise. Additionally, passive sonar onboard submarines 
may be utilized to detect any vocalizing marine mammals in the area. 
The OCE would be informed of any aural detection of marine mammals and 
would include this information in the determination of when it is safe 
to commence the exercise.
    (4) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence 2 hours prior to the first 
firing.
    (5) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares the safety and exclusion zones free of 
marine mammals.
    (6) If a protected species observed within the exclusion zone is 
diving, firing shall be delayed until the animal is re-sighted outside 
the exclusion zone, or 30 minutes have elapsed. After 30 minutes, if 
the animal has not been re-sighted it would be assumed to have left the 
exclusion zone.
    (7) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any protected species. If 
marine mammals are sighted within the exclusion zone, the OCE shall be 
notified, and the procedure described in paragraph (a)(3)(x)(C)(6 ) of 
this section would be followed.
    (8) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for 2 hours, or until sunset, to 
verify that no marine mammals were harmed.
    (D) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability. The Navy has 
several types of aircraft capable of performing this task; however, not 
all types are available for every exercise. For each exercise, the 
available asset best suited for identifying objects on and near the 
surface of the ocean would be used. These aircraft would be capable of 
flying at the slow safe speeds necessary to enable viewing of marine 
vertebrates with unobstructed, or minimally obstructed, downward and 
outward visibility. The exclusion and safety zone surveys may be 
cancelled 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.
    (E) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, i.e., Beaufort Sea 
State 3 or less. In the event of a 4 or above, survey efforts shall be 
increased within the zones. This shall be accomplished through the use 
of an additional aircraft, if available, and conducting tight search 
patterns.
    (F) The exercise shall not be conducted unless the exclusion zone 
can be adequately monitored visually.
    (G) In the event that any marine mammals are observed to be harmed 
in the area, a detailed description of the animal shall be taken, the 
location noted, and if possible, photos taken. This information shall 
be provided to NMFS via the Navy's regional environmental coordinator 
for purposes of identification (see the Stranding Plan for detail).
    (H) An after action report detailing the exercise's time line, the 
time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (xi) Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER/AEER):
    (A) Crews shall conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 457 m (500 yd) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct coordinated area clearances.
    (B) For IEER (AN/SSQ-110A), crews shall conduct a minimum of 30 
minutes of visual and aural monitoring of the search area prior to 
commanding the first post detonation. This 30-minute observation period 
may include pattern deployment time.
    (C) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 914 m (1,000 yd) of 
observed marine mammal activity, the Navy shall deploy the receiver 
ONLY and monitor while conducting a visual search. When marine mammals 
are no longer detected within 914 m (1,000 yd) of the intended post 
position, the Navy shall co-locate the explosive source sonobuoy (AN/
SSQ-110A) (source) with the receiver.
    (D) When able, Navy crews shall conduct continuous visual and aural 
monitoring of marine mammal activity. This is to include monitoring of 
own-

[[Page 3915]]

aircraft sensors from first sensor placement to checking off station 
and out of RF range of these sensors.
    (E) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the diligence 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (F) Visual Detection--If marine mammals are visually detected 
within 914 m (1,000 yd) of the explosive source sonobuoy (AN/SSQ-110A) 
intended for use, then that payload shall not be detonated. Aircrews 
may utilize this post once the marine mammals have not been re-sighted 
for 30 minutes, or are observed to have moved outside the 914 m (1,000 
yd) safety buffer. Aircrews may shift their multi-static active search 
to another post, where marine mammals are outside the 914 m (1,000 yd) 
safety buffer.
    (G) For IEER (AN/SSQ-110A), aircrews shall make every attempt to 
manually detonate the unexploded charges at each post in the pattern 
prior to departing the operations area by using the ``Payload 1 
Release'' command followed by the ``Payload 2 Release'' command. 
Aircrews shall refrain from using the ``Scuttle'' command when two 
payloads remain at a given post. Aircrews will ensure that a 914 m 
(1,000 yd) safety buffer, visually clear of marine mammals, is 
maintained around each post as is done during active search operations.
    (H) Aircrews shall only leave posts with unexploded charges in the 
event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In 
these cases, the sonobuoy will self-scuttle using the secondary or 
tertiary method.
    (I) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that can not be scuttled shall be 
reported as unexploded ordnance via voice communications while 
airborne, then upon landing via naval message.
    (J) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (4) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the SOCAL Range Complex'' 
(available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), 
which is incorporated herein by reference, to include the following 
measures:
    (i) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec.  216.271) occurs during a Major Training Exercise (MTE) 
(as defined in the Stranding Plan, meaning including Sustainment, 
SHAREM, IAC2, JTFEX, or COMPTUEX) in the SOCAL Range Complex, the Navy 
shall implement the procedures described below.
    (A) The Navy shall implement a Shutdown (as defined Sec.  216.271) 
when advised by a NMFS Office of Protected Resources Headquarters 
Senior Official designated in the SOCAL Range Complex 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 shall communicate, as needed, regarding the 
identification of the USE and the potential need to implement shutdown 
procedures.
    (B) 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).
    (C) If the Navy finds an injured or dead marine mammal 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 behaviors (if alive), and 
photo or video (if available). Based on the information provided, NMFS 
shall determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.
    (D) In the event, following a USE, that: (a) Qualified individuals 
are attempting to herd animals back out to the open ocean and animals 
are not willing to leave, or (b) 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/HFAS 
activities or explosive detonations, though farther than 14 nm from the 
distressed animal(s), is likely decreasing the likelihood that the 
animals return to the open water. If so, NMFS and the Navy shall 
further coordinate to determine what measures are necessary to further 
minimize that likelihood and implement those measures as appropriate.
    (ii) Within 72 hours of NMFS notifying the Navy of the presence of 
a USE, the Navy shall provide available information to NMFS (per the 
SOCAL Range Complex Communication Protocol) regarding the location, 
number and types of acoustic/explosive sources, direction and speed of 
units using MFAS/HFAS, 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 hours, period prior to the event shall 
be provided as soon as it becomes available. The Navy shall provide 
NMFS investigative teams with additional relevant unclassified 
information as requested, if available.
    (iii) 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.


Sec.  216.275  Requirements for monitoring and reporting.

    (a) As outlined in the SOCAL Range Complex Stranding Communication 
Plan, the Navy must notify NMFS immediately (or as soon as clearance 
procedures allow) if the specified activity identified in Sec.  
216.270(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.  216.272(c).
    (b) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the SOCAL Range 
Complex 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.

[[Page 3916]]

    (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 SOCAL Range Complex 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 
SOCAL Range Complex Monitoring Plan. 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 SOCAL Range Complex Monitoring Plan shall, 
at a minimum, provide the same marine mammal observation data required 
in the data required in Sec.  216.275(f)(1). The SOCAL Range Complex 
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 SOCAL Range Complex Exercise Report--The Navy shall 
submit an Annual SOCAL Range Complex Exercise Report on October 1 of 
every year (covering data gathered through August 1 of the same year). 
This report shall contain information identified in Sec.  216.275(f)(1) 
through (5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for Integrated, Coordinated, and Major 
Training Exercises (MTEs), which include Ship ASW Readiness and 
Evaluation Measuring (SHAREM), Sustainment Exercises, Integrated ASW 
Course Phase II (IAC2), Composite Training Unit Exercises (COMPTUEX), 
and Joint Task Force Exercises (JTFEX) conducted in the SOCAL Range 
Complex:
(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 < 200 yd, 200-500 yd, 500-1000 
yd, 1000-2000 yd, or > 2000 yd 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 (i.e., in paragraph (f)(1)(ii)(J) of this 
section) is hull-mounted, 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 
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.
    (2) 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) 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 MTEs) 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 SOCAL Range Complex. The Navy shall include 
(in the SOCAL Range Complex 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.
    (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

[[Page 3917]]

    (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 (738 m for SINKEX in the 
SOCAL Range Complex);
    (2) The required exclusion zone (1 nm for SINKEX in the SOCAL Range 
Complex);
    (3) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in the SOCAL Range Complex); and
    (4) Greater than the required observed distance. For example, in 
this case, the observer would indicate if < 738 m, from 738 m to 1 nm, 
from 1 nm to 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 SOCAL Range 
Complex
    (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 SOCAL Range Complex.
    (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 MTE 
(Sustainment, IAC2, SHAREM, COMPTUEX, or JTFEX) indicating:
    (1) Location of the exercise
    (2) Beginning and end dates of the exercise
    (3) Type of exercise (e.g., SHAREM, JTFEX, etc.)
    (h) SOCAL Range Complex 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 SOCAL Range 
Complex Exercise Reports and SOCAL Range Complex 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
    (i) Comprehensive National ASW Report--By June, 2014, the Navy 
shall submit a draft National Report that analyzes, compares, and 
summarizes the active sonar data gathered (through January 1, 2014) 
from the watchstanders and pursuant to the implementation of the 
Monitoring Plans for the SOCAL Range Complex, the Atlantic Fleet Active 
Sonar Training, the HRC, 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 SOCAL Range Complex 
Comprehensive Report, the Comprehensive National ASW report, the Annual 
SOCAL Range Complex Exercise Report, or the Annual SOCAL Range Complex 
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.  216.276  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) conducting 
the activity identified in Sec.  216.270(c) (the U.S. Navy) must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec.  216.277 or a renewal under Sec.  216.278.


Sec.  216.277  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.  216.278.
    (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).

[[Page 3918]]

Sec.  216.278  Renewal of Letters of Authorization and Adaptive 
Management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.277 for the activity identified in Sec.  216.270(c) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.276 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.  216.275(c) through (j); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.274 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.277, were 
undertaken and will be undertaken during the upcoming annual period of 
validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.278 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 set 
forth in the preamble of these regulations. Below are some of the 
possible sources of new data that could contribute to the decision to 
modify the mitigation or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from the SOCAL Range Complex or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  216.275(l)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  216.275(d)).
    (4) Results from specific stranding investigations (either from the 
SOCAL Range Complex or other locations, and involving coincident MFAS/
HFAS or explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded 
by the Navy (described below) or otherwise).


Sec.  216.279  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 216.277 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.  216.278, 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.  216.272(c), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 216.277 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. E9-1073 Filed 1-14-09; 4:15 pm]
BILLING CODE 3510-22-P