[Federal Register Volume 74, Number 16 (Tuesday, January 27, 2009)]
[Rules and Regulations]
[Pages 4844-4885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1706]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 216



Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet Active 
Sonar Training (AFAST); Final Rule

  Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 080724897-81621-02]
RIN 0648-AW90


Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet 
Active Sonar Training (AFAST)

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

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to activities conducted off the U.S. Atlantic Coast and in 
the Gulf of Mexico 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 22, 2009 through January 22, 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 60754). 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 February 4, 2008, NMFS received an application from the Navy 
requesting authorization for the take of individuals of 40 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 Atlantic Fleet Active Sonar 
Training (AFAST) Study Area, which extends east from the Atlantic Coast 
of the U.S. to 45[deg] W. long. and south from the Atlantic and Gulf of 
Mexico Coasts to approximately 23[deg] N. lat., but not encompassing 
the Bahamas (see Figure 1-1 in 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 AFAST Study Area by exposing them to sound 
from mid-frequency or high frequency active sonar (MFAS/HFAS) or to 
employment of the improved extended echo ranging (IEER) system. The 
IEER consists of an explosive source sonobuoy (AN/SSQ-110A) and an air 
deployable active receiver (ADAR) sonobuoy (AN/SSQ-101). The Navy 
requested authorization to take individuals of 40 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 
regulations.

Background of Navy Request

    The proposed rule contains a description of the Navy's mission, 
their responsibilities pursuant to Title 10 of the United States Code, 
and the specific purpose and need for the activities for which they 
requested incidental take authorization. The description contained in 
the proposed rule has not changed (73 FR 60754).

Description of the Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule describes the nature 
and number of both the anti-submarine warfare (ASW) and mine warfare 
training (MIW) exercises involving both mid- and high-frequency active 
sonar (MFAS and HFAS), as well as the IEER exercises involving small 
explosive detonations. It also describes the sound sources used (73 FR 
60754,

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pages 60755-60762). The narrative description of the action contained 
in the proposed rule has not changed, with the exception of the change 
from IEER to the Advanced Extended Echo Ranging (AEER) discussed below. 
Tables 1 and 2 summarize the sonar and IEER exercise types used in 
these training exercises and the hours of sonar.
    Navy is developing the 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 ping) vice impulsive (or explosive) sound source as a 
replacement for the AN/SSQ-110A. AEER will still use the ADAR sonobuoy 
as the systems receiver and will be deployed by Maritime 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 (Table 
6), 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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AFAST Study Area

    The AFAST proposed rule contains a description of the AFAST Study 
Area along with a description of the areas in which certain types of 
activities will occur. Table 3, included here, summarizes the areas in 
which certain exercise types will occur. This section also contains a 
description of the North Atlantic right whale (NARW) critical habitat 
and the National Marine Sanctuaries (NMS) within the AFAST Study Area. 
The description of the AFAST Study Area in the proposed rule has not 
changed, with the exception of the paragraph relating to the NMSs, 
below (73 FR 60754, pages 60762-60764).
    The paragraph related to NMSs in the proposed rule should be 
replaced with the following paragraph:
    The Navy will not conduct active sonar activities within the 
Stellwagen Bank, Monitor, Gray's Reef, Flower Garden Banks, and Florida 
Keys National Marine Sanctuaries and will avoid these sanctuaries by 
observing a 5-km (2.7-NM) buffer. At all times, the Navy will conduct 
AFAST activities in a manner that avoids to the maximum extent 
practicable any adverse impacts on sanctuary resources. In the event 
the Navy determines AFAST activities, due to operational requirements, 
are likely to destroy, cause the loss of, or injure any sanctuary 
resource (for Stellwagen Bank National Marine Sanctuary, the threshold 
is ``may'' destroy, cause the loss of, or injure), the Navy would first 
consult with the Director, Office of National Marine Sanctuaries in 
accordance with 16 U.S.C. 1434(d). Although activities in the 
Sanctuaries are not planned or anticipated, NMFS' analysis, for 
purposes of the MMPA considers the effects on marine mammals of the 
Navy's conducting activities in the biologically important areas that 
occur in or near Sanctuaries.
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Description of Marine Mammals in the Area of the Specified Activities

    There are 43 marine mammal species with possible or confirmed 
occurrence in the AFAST Study Area. As indicated in Table 4, there are 
36 cetacean species (7 mysticetes and 29 odontocetes), six pinnipeds, 
and one sirenian (manatee). Six marine mammal species listed as 
federally endangered under the Endangered Species Act (ESA) and under 
the jurisdiction of NMFS occur in the AFAST Study Area: The NARW, 
humpback whale, sei whale, fin whale, blue whale, and sperm whale. 
Manatees are managed by the U.S. Fish and Wildlife Service and will not 
be addressed further here. The proposed rule contains a discussion of 
two species that are not considered further in the analysis (beluga 
whales and ringed seals) because of their rarity in the AFAST Study 
Area. The proposed rule also contains a discussion of important areas, 
including NARW critical habitat, humpback whale feeding grounds in the 
northeast, and sperm whale calving and nursing grounds in the 
Mississippi Delta area. Last, the proposed rule includes a discussion 
of the methods used to estimate marine mammal density in the AFAST 
Study Area. The Description of Marine Mammals in the Area of the 
Specified Activities section has not changed from what was in the 
proposed rule (73 FR 60754, pages 60766-60767).

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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 (73 FR 60754, pages 60767-60769). 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 AFAST Study Area, 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 
(IEER) may potentially affect marine mammals (some of which NMFS would 
not classify as harassment). See 73 FR 60754, pages 60769-60781. 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 has been observed a limited number of times in 
certain circumstances (the specific events are also described). See 73 
FR 60754, pages 60777-60781. The information contained in 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 60779, 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 has 
previously stated, there was no likely association between the minke 
whale and spotted dolphin strandings referred to here 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.''
    Later, in the Estimated Take of Marine Mammals section, NMFS 
relates and quantifies the potential effects to marine mammals from 
MFAS/HFAS and underwater detonation of explosives discussed here to the 
MMPA definitions of Level A and Level B Harassment. 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 National Defense Authorization Act (NDAA) of 2004 
amended the MMPA as it relates to military readiness activities and the 
incidental take authorization process such that ``least practicable 
adverse impact'' shall include consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
``military readiness activity''. The AFAST activities described in the 
proposed rule are considered military readiness activities.
    NMFS reviewed the Navy's proposed AFAST activities and the proposed 
AFAST mitigation measures (which the Navy refers to as Protective 
Measures) presented in the Navy's application to determine whether the 
activities and mitigation measures were capable of achieving the least 
practicable adverse effect on marine mammals. NMFS determined that 
further discussion was necessary regarding: (1) General minimization of 
marine mammal impacts; (2) minimization of impacts within the 
southeastern NARW critical habitat; and (3) 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

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the likely effect of that measure on personnel safety, practicality of 
implementation, and impact on the ``military-readiness activity.'' NMFS 
and the Navy developed additional mitigation measures that address the 
concerns mentioned above, including the development of Planning 
Awareness Areas (PAAs), additional minimization of impacts in the 
southeastern NARW critical habitat, and a Stranding Response Plan.
    The Navy's proposed mitigation measures, as well as the Planning 
Awareness Areas (PAAs), additional minimization of impacts in the 
southeastern NARW critical habitat, and Stranding Response Plan, which 
are required under these regulations, were described in detail in the 
proposed rule (73 FR 60754, pages 60781-60789). The Navy's measures 
address personnel training, lookout and watchstander responsibilities, 
operating procedures for training activities using both MFAS/HFAS and 
IEER, additional measures for TORPEXs in the northeastern NARW critical 
habitat, and mitigation related to vessel traffic and the NARW. No 
changes have been made to the mitigation measures described in the 
proposed rule, with the exception of adding that night vision devices 
shall be available to all ship crews and air crews for use as 
appropriate and making the IEER mitigation applicable to the newly 
described AEER system as well. Additionally, the definition for 
``Exhibiting Indicators of Distress'', which was originally included in 
the codified text of the proposed rule, has been removed in the final 
rule. The definition, which may be found in the AFAST Stranding 
Response Plan, was not included in the codified text because it could 
potentially be modified (pursuant to the adaptive management component 
of the rule) based on new data.
    The final AFAST Stranding Response Plan, which includes a shutdown 
protocol, a stranding investigation plan, and a requirement for Navy 
and NMFS to implement a memorandum of agreement (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.
    NMFS has determined that the Navy's proposed mitigation measures 
(which include a suite of measures that specifically address vessel 
transit and the NARW), along with the Planning Awareness Areas (PAAs), 
additional minimization of impacts in the southeastern NARW critical 
habitat, and the Stranding Response Plan (and when the Adaptive 
Management (see Adaptive Management below) component is taken into 
consideration) are adequate means of effecting the least practicable 
adverse impacts on marine mammal species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance, while also considering personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity. The justification for this conclusion is 
discussed in the Mitigation Conclusion section of the proposed rule (73 
FR 60836, pages 60789-60790). The Mitigation Conclusion Section of the 
proposed rule has not changed.

Research and Conservation Measures for Marine Mammals

    The Navy provides a significant amount of funding and support for 
marine research. The Navy provided $26 million in Fiscal Year 2008 and 
plans for $22 million in Fiscal Year 2009 to universities, research 
institutions, Federal laboratories, private companies, and independent 
researchers around the world to study marine mammals. Over the past 
five years the Navy has funded over $100 million in marine mammal 
research. The 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 AFAST EIS, such as the Marine Resource 
Assessments. Furthermore, research cruises by NMFS and by academic 
institutions have received funding from the U.S. Navy.
    The Navy has sponsored several workshops to evaluate the current 
state of knowledge and potential for future acoustic monitoring of 
marine mammals. The workshops brought together acoustic experts and 
marine biologists from the Navy and other research organizations to 
present data and information on current acoustic monitoring research 
efforts and to evaluate the potential for incorporating similar 
technology and methods on instrumented ranges. However, acoustic 
detection, identification, localization, and tracking of individual 
animals still requires a significant amount of research effort to be 
considered a reliable method for marine mammal monitoring. The Navy 
supports research efforts on acoustic monitoring and will continue to 
investigate the feasibility of passive acoustics as a potential 
mitigation and monitoring tool.
    Overall, the Navy will continue to fund ongoing marine mammal 
research, and is planning to coordinate long term monitoring/studies of 
marine mammals on various established ranges and operating areas. The 
Navy will continue to research and contribute to university/external 
research to improve the state of the science regarding marine species 
biology and acoustic effects. These efforts include mitigation and 
monitoring programs; data sharing with NMFS and via the literature for 
research and development efforts; and future research as described 
previously.

Long-Term Prospective Study

    Apart from this final rule, NMFS, with input and assistance from 
the Navy and several other agencies and entities, will perform a 
longitudinal observational study of marine mammal strandings to 
systematically observe and record the types of pathologies and diseases 
and investigate the relationship with potential causal factors (e.g., 
sonar, seismic, weather). The proposed rule contained an outline of the 
proposed

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study (73 FR 60754, pages 60790-60791). 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 AFAST Study Area

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the 
AFAST 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 AFAST 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 Monitoring Plan for AFAST has been designed as a collection of 
focused ``studies'' (described fully in the AFAST Monitoring Plan) to 
gather data that will allow the Navy to address the following 
questions:
    (a) Are marine mammals 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?
    (b) If marine mammals are exposed to MFAS in the AFAST Study Area, 
do they redistribute geographically as a result of continued exposure? 
If so, how long does the redistribution last?
    (c) If marine mammals are exposed to MFAS, what are their 
behavioral responses to various received levels?
    (d) Is the Navy's suite of mitigation measures for MFAS (e.g., 
measures agreed to by the Navy through permitting) effective at 
avoiding TTS, injury, and mortality of marine mammals?
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists that are experts in their field. 
They will use a combination of the following methods to collect data:
     Contracted vessel and aerial surveys.
     Passive acoustics.
     Marine mammal observers on Navy ships.
    In the four proposed study designs (all of which cover multiple 
years), the above methods will be used separately or in combination to 
monitor marine mammals in different combinations before, during, and 
after training activities utilizing MFAS/HFAS. Table 7 contains a 
summary of the Monitoring effort that is planned for each study in each 
year.
    This monitoring plan has been designed to gather data on all 
species of marine mammals that are observed in the AFAST study area. 
The Plan recognizes that deep-diving and cryptic species of marine 
mammals such as beaked whales have a low probability of detection 
(Barlow and Gisiner, 2006). Therefore, methods will be utilized to 
attempt to address this issue (e.g., passive acoustic monitoring).
    North Atlantic right whales will also be given particular attention 
during monitoring in the AFAST study area, although monitoring methods 
will be the same for all species. Within the AFAST study area, the 
Northwestern Atlantic provides unique breeding and calving habitat for 
NARW, and as a result, critical habitat has been designated for one 
calving ground (off Georgia and northern Florida) and two feeding areas 
(Cape Cod Bay and the Great South Channel). Pursuant to the Monitoring 
Plan, NARWs will be given particular attention in the form of focal 
follows (e.g. collect behavioral data using the Big Eyes binoculars, 
and observe the behavior of any animals that are seen) when observed.
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Monitoring Workshop

    During the public comment period on the AFAST proposed rule (as 
well as the Hawaii Range Complex and Southern California Range Complex 
proposed rules), 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 AFAST 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 AFAST rule as well as monitoring 
results from other Navy rules and LOAs (e.g., the Southern California 
Range Complex (SOCAL), 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

[[Page 4857]]

Workshop, modifications would be applied to monitoring plans as 
appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the Monitoring Plan for AFAST, 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 project-specific monitoring 
plans (e.g., AFAST Monitoring Plan) as well as Navy funded research and 
development (R&D) studies. The ICMP will coordinate the monitoring 
programs progress towards meeting its goals and develop a data 
management plan. The ICMP will be evaluated annually to provide a 
matrix for progress and goals for the following year, and will make 
recommendations on adaptive management for refinement and analysis of 
the monitoring methods.
    The primary objectives of the ICMP are to:
     Monitor and assess the effects of Navy activities on 
protected species;
     Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
     Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
     Add to the overall knowledge-base of marine species and 
the effects of Navy activities on marine species.
    The ICMP will be used both as: (1) A planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information.
    In combination with the 2011 Monitoring Workshop and the adaptive 
management component of the AFAST rule and the other planned Navy rules 
(e.g. SOCAL 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 the likely technical success of the 
monitoring based on a review of past monitoring results) that have been 
developed through the ICMP framework, instead of allocating based on 
maintaining an equal (or commensurate to effects) distribution of 
monitoring effort across Range complexes. For example, if careful 
prioritization and planning through the ICMP (which would include a 
review of both past monitoring results and current scientific 
developments) were to show that a large, intense monitoring effort in 
Hawaii would likely provide extensive, robust and much-needed data that 
could be used to understand the effects of sonar throughout different 
geographical areas, it may be appropriate to have other Range Complexes 
dedicate money, resources, or staff to the specific monitoring proposal 
identified as ``high priority'' by the Navy and NMFS, in lieu of 
focusing on smaller, lower priority projects divided throughout their 
home Range Complexes.
    The ICMP will identify:
     A means by which NMFS and the Navy would jointly consider 
prior years monitoring results and advancing science to determine if 
modifications are needed in mitigation or monitoring measures to better 
effect the goals laid out in the Mitigation and Monitoring sections of 
the AFAST 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 rule), but rather 
focused on priority monitoring projects that are not necessarily tied 
to the geographic area addressed in the rule, the ICMP will be modified 
to include a very clear and unclassified recordkeeping system that will 
allow NMFS and the public to see how each Range Complex/project is 
contributing to all of the ongoing monitoring (resources, effort, 
money, etc.).

Past Monitoring in AFAST

    The proposed rule contained a detailed review of the previous 
marine mammal monitoring conducted in the AFAST Study Area, which was 
conducted in compliance with the terms and conditions of multiple 
biological opinions issued for MFAS training activities (73 FR 60754, 
pages 60791-60798). 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's AFAST exercises contain an adaptive management 
component. Our understanding of the effects of MFAS/HFAS and explosives 
on marine mammals is still in its relative infancy, and yet the science 
in this field continues to improve. These circumstances make the 
inclusion of an adaptive management component both valuable and 
necessary within the context of 5-year regulations for activities that 
have been associated with marine mammal mortality in certain 
circumstances and locations (though not off the Atlantic Coast of the 
U.S.). 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 AFAST 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 AFAST or other locations, and involving coincident MFAS/HFAS of 
explosives training or not involving coincident use).
     Results from the Long Term Prospective Study described 
above.
     Results from general marine mammal and sound research 
(funded by the Navy (described above) or otherwise).
    Mitigation measures could be modified or added (or deleted) if new 
data suggest that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final rule. The reporting 
requirements associated with this rule are designed to provide

[[Page 4858]]

NMFS with monitoring data from the previous year to allow NMFS to 
consider the data and issue annual LOAs. NMFS and the Navy will meet 
annually, prior to LOA issuance, to discuss the monitoring reports, 
Navy R&D developments, and current science and whether mitigation or 
monitoring modifications are appropriate.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. Effective reporting is 
critical to ensure compliance with the terms and conditions of a 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 AFAST 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 
AFAST Monitoring Plan, described above. Data collection methods will be 
standardized across range complexes to allow for comparison in 
different geographic locations. Although additional information will 
also be gathered, the marine mammal observers (MMOs) collecting marine 
mammal data pursuant to the AFAST 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 AFAST Exercise 
Report referenced below.
    The AFAST Monitoring Plan Report may be provided to NMFS within a 
larger report that includes the required Monitoring Plan Reports from 
multiple Range Complexes.

Annual AFAST Exercise Report

    The Navy will submit an Annual AFAST 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 the 
following Coordinated and Strike Group exercises, which for simplicity 
will be referred to as major training exercises for reporting (MTERs): 
Southeastern ASW Integrated Training Initiative (SEASWITI), Integrated 
ASW Course (IAC), Composite Training Unit Exercises (COMPTUEX), and 
Joint Task Force Exercises (JTFEX) conducted in AFAST:
    (a) Exercise Information (for each MTER):
    (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 MTER):
    (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 MTERs) 
of the effectiveness of mitigation measures designed to avoid exposing 
marine mammals to MFAS. 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 MTERs and non-major training exercises:
    (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 MTERs) 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 AFAST Study Area. To the 
extent practicable, this report will also include the total number of 
sonar hours (from helicopter dipping sonar and object detection 
exercises) conducted within the southern NARW critical habitat plus 5 
nm buffer area). The Navy shall include (in the AFAST annual report) a 
brief annual progress update on the

[[Page 4859]]

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.

Improved Extended Echo-Ranging System (IEER)/Advanced Extended Echo-
Ranging System (AEER) Summary

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

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 MTER indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise.

AFAST 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 IEER exercises for which annual reports are required 
(Annual AFAST Exercise Reports and AFAST 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 AFAST, SOCAL, the HRC, the 
Mariana Islands Range Complex, the Northwest Training Range Complex, 
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 AFAST Comprehensive Report, the 
Comprehensive National ASW report, the Annual AFAST Exercise Report, or 
the Annual AFAST Monitoring Plan Report (or the multi-Range Complex 
Annual Monitoring Plan Report, if that is how the Navy chooses to 
submit the information) if submitted within 3 months of receipt. These 
reports will be considered final after the Navy has addressed NMFS' 
comments or provided the requested information, or three months after 
the submittal of the draft if NMFS does not comment by then.

Comments and Responses

    On October 14, 2008 (73 FR 60754), NMFS published a proposed rule 
in response to the Navy's request to take marine mammals incidental to 
military readiness training, maintenance, and RDT&E activities in the 
AFAST Study Area and requested comments, information and suggestions 
concerning the request. During the 30-day public comment period, NMFS 
received comments from 6 private citizens and Senator Benjamin Cardin, 
comments from the Marine Mammal Commission (MMC), comments from the 
Maine Department of Marine Resources and the Georgia Department of 
Natural Resources, and three 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, North Carolinians for Responsible Use of Sonar, League for 
Coastal Protection, and Ocean Futures Society and its founder Jean-
Michel Cousteau), the Cascadia Research Collective (CRC), and the Ocean 
Mammal and Animal Welfare Institutes. The comments are summarized and 
sorted into general topic areas and are addressed below. Full copies of 
the comment letters may be accessed at http://www.regulations.gov.
    NMFS worked with the Navy to develop MMPA rules and LOAs for the 
AFAST activities, SOCAL Range Complex, and HRC Range Complex. Many of 
the issues raised in the public comments for this rule were also raised 
for SOCAL and the HRC and NMFS considered many of the broader issues in 
the context of all three of these Navy actions when determining how to 
address the comments. Responses to public comments on the HRC and SOCAL 
rules (addressing similar issues identified in the AFAST final rule) 
were also published in January 2009 and may provide the public with 
additional detail, if needed.

North Atlantic Right Whales

    Comment 1: Several commenters had the following general comments/
concerns regarding the way that NMFS' rule analyzed the potential 
impacts to right whales from sonar:
    (a) As the only known calving ground, the southern critical habitat 
is very important to the survival of the species and commenters were 
concerned about the level of Navy activity in critical habitat and how 
it will affect right whales. Some suggested that NMFS should restrict 
Navy activity within critical habitat.
    (b) The specific impacts to and responses of newborn right whale 
calves and their mothers are unknown and commenters are concerned about 
the effects of MFAS on this segment of the population. One commenter 
notes that NMFS has previously indicated that the ``loss of even a 
single individual right whale may contribute to the extinction of the 
species,'' and that ``preventing the mortality of one adult female 
alters the projected outcome.'' 69 FR 30858.
    (c) The waters off of Gulf of Maine: Cape Cod Bay, Great South 
Channel, Bay of Fundy, and the Brown's Bank area are primary feeding 
grounds for the North Atlantic right whale (and other large whale 
species) and commenters are concerned about impacts. Some commenters 
recommended minimizing activities in that area.
    (d) One commenter stated that although the Navy's DEIS and NMFS' 
Proposed Rule acknowledge that right whales are expected to occur in 
the AFAST area, the agencies arbitrarily conclude that no right whales 
will be injured by the thousands of hours of sonar training exercises 
per year spanning the entire East Coast and Gulf of Mexico. One 
commenter further asserts that right whales are hard to detect because 
they spend the majority of their time below the surface and are often 
found alone or in pairs, which, combined with rough weather reduces the 
probability of detection. Also, female right whales with young calves 
are less mobile than adult whales without young calves and may not be 
able to avoid sonar sources.
    (e) The commenters requested clarification regarding why NMFS 
believes that ship strikes are unlikely. Commenters further state that 
the Navy has been involved in ship strikes in the past (specifically, a 
female NARW and her near-term calf in the mid-Atlantic in 2004.)
    Response: Following is NMFS' response to the above comments:
    (a) NMFS agrees that the southern critical habitat for the North 
Atlantic right is very important to the survival of the species. The 
Navy intends to limit sonar use to a relatively small amount in the 
southern NARW critical habitat

[[Page 4860]]

(see response to comment (1)(e) below). As described in the proposed 
rule, following are the details of the planned sonar usage in the 
vicinity of the southern critical habitat:
    [ssbox] The Navy anticipates conducting approximately 30 helicopter 
dipping sonar maintenance events (< 1 hr) annually in the NARW critical 
habitat (and approximately 84 helicopter training exercises in the 
vicinity of the critical habitat but in deeper waters at least more 
than 5 nm seaward of the critical habitat boundaries). This means that 
only a subset of those 30 activities will occur in the critical habitat 
between Nov 15 and April 15 (approximately 13 if one assumes they are 
distributed equally throughout the year, for example) and only a subset 
of the 84 helicopter training exercises would occur near the critical 
habitat between Nov 15 and April 15 (approximately 34 if one assumes 
they are distributed equally throughout the year, for example). Note 
that the source level of a helicopter dipping sonar is approximately 18 
dB less than that of a surface sonar source, which means that the 
ensonified area is on the order of 65 times less (if spherical 
spreading is assumed). Additionally, the mitigation measures require 
that the Navy minimize helicopter dipping activities in the critical 
habitat.
    [ssbox] The Navy would conduct approximately 40 ship object 
detection exercises (1-2 hours each) and 57 submarine object detection 
exercises (1-2 hours each) annually while entering/exiting port (within 
approximately 1 mile of shore). This means that only a subset of those 
activities will occur between Nov 15 and April 15, approximately 41 if 
one assumes they are distributed equally throughout the year, for 
example. Additionally, mitigation measures indicate that the Navy shall 
reduce the time spent conducting object detection exercises in the 
critical habitat, contact FACSFACJAX to obtain latest whale sightings 
in vicinity of critical habitat, and (to the extent operationally 
feasible) avoid conducting training in vicinity of recently sighted 
whales. Ships are required to maneuver to maintain at least 500 yds of 
separation from any observed whale (consistent with safety of ship).
    [ssbox] The Navy's model predicted that approximately 20 takes of 
right whales by behavioral harassment would occur within the southern 
NARW critical habitat (and no takes by injury or mortality).
    Time and area restrictions are one of the most effective ways to 
reduce impacts to protected species. By planning the limited sonar 
exercises outlined above and implementing the specific mitigation 
measures listed, the Navy has minimized, to the extent practicable, the 
impacts to right whales in the southern critical habitat. NMFS 
discusses the practicability and benefits of time and area restrictions 
in the Mitigation EA.
    (b) The potential impacts to mother-calf pairs from sonar are 
specifically discussed in Potential Effects of Specified Activities on 
Marine Mammals section of the proposed rule. However, as the commenter 
suggests, the specific effects of MFAS on right whales and their calves 
are not discussed because NMFS does not possess data to draw any 
specific conclusions regarding effects. As the commenter suggests, the 
loss of even one right whale would have serious effects on the 
population; however, as discussed in the proposed rule and above, 20 
instances of right whale harassment are expected to occur within the 
southern right whale critical habitat (over the entire year, not just 
from November to April) and none of these are modeled to be at 
injurious levels. Additionally, this take estimate does not account for 
the mitigation measures discussed in (a) above, which include not 
approaching right whales within closer than 500 yds and not conducting 
training within the vicinity of recently sighted whales, when feasible. 
For these reasons and others (see Negligible Impact section of proposed 
rule), NMFS was able to determine that the Navy's AFAST activities 
would have a negligible impact on the species.
    (c) The Navy does not plan to conduct any major ASW training 
exercises using hull-mounted sonar in the Northeast. All of the 
exercises in the Northeast will consist of smaller scale unit-level 
exercises predominantly utilizing submarine sonar, active sonobuoys, 
and torpedoes (see Table 3). In the Northeast, the submarine object 
detection exercises would occur primarily in the near-shore submarine 
transiting lanes exiting Groton, Connecticut and Norfolk, Virginia 
(neither of which are near the important feeding areas the comment 
refers to). As indicated in the rule, in the Northeast the Navy is 
largely avoiding conducting any training in the NARW critical habitat, 
with one exception: Torpedo exercises (a maximum of 32 MK-48 torpedo 
runs at 15 minutes each or up to 24 lightweight MK-46 or MK-54 
torpedoes) would occur in August through December (when right whales 
are less likely to be present). However, the Navy included extensive 
TORPEX mitigation measures that were worked out in a previous section 7 
consultation with NMFS (see 216.244(a)(1)(xxviii)). Approximately 2000 
sonobuoys (with 12 pings, spaced 30 seconds apart) would be used 
annually. Time and area restrictions are one of the most effective ways 
to reduce impacts to protected species. Based on the limited sonar 
exercises outlined above and because of the specific mitigation 
measures listed, NMFS believes that impacts to right whales and other 
large whales feeding in important areas in the Northeast will be 
minimal. NMFS discusses the practicability and benefits of time and 
area restrictions in the Mitigation EA.
    (d) NMFS' rationale for why right whales will not be injured is not 
arbitrary. Although the Navy is proposing to conduct thousands of hours 
(approximately 5,000 of hull-mounted) of MFAS operation (see Table 1), 
several factors need to be considered. For example, the AFAST Study 
Area comprises over 2,170,175 square nautical miles, the exercises are 
spread out over the course of a year, and there are only approximately 
350 right whales in the population (the number of whales is germane 
because at the most basic level the potential for injury is directly 
based on the likelihood that the ensonified area (above threshold) 
around the MFAS sound sources will overlap with a right whale in space 
and time--the fewer right whales there are, the less likely this is to 
happen.) The model predicts 666 exposures to levels above NMFS' 
acoustic threshold for behavioral harassment, but less than the level 
associated with PTS (or injury). Acknowledging that right whales may be 
somewhat harder to detect than other large whales, the Navy's modeled 
takes, as discussed in the Negligible Impact Analysis section of the 
proposed rule, do not take any mitigation measures or any likely marine 
mammal avoidance into consideration. 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. The response to Comment 2, below, explains 
more specifically why injury is not expected.
    (e) Regarding ship strikes, the Navy's EIS concluded that based on 
the implementation of Navy mitigation measures, especially during times 
of anticipated NARW occurrence, and the relatively low density of Navy 
ships in the Study Area, the likelihood that a vessel strike would 
occur is very low (as NMFS indicated in the above comment, the low 
abundance of NARWs also supports this prediction). In addition to

[[Page 4861]]

the standard operating procedures to reduce the likelihood of 
collisions, which 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, the Navy has issued extensive North Atlantic 
right whale protective measures for all Fleet Forces training 
activities (see 216.244(a)(3)). These measures, which were developed 
with input from NMFS, include additional training requirements, 
designated areas of caution (where caution includes speed or direction 
adjustments and avoidance of known groups of right whales when 
feasible) and additional reporting requirements. NMFS and the Navy 
believe that the required measures will allow the Navy to avoid 
colliding with large whales during their specified activities. The Navy 
neither requested, nor did NMFS grant, authorization for take of right 
whales from ship strikes incidental to the specified activities.
    Regarding the right whale strike in 2004, the commenter is most 
likely referring to an event that took place on November 17, 2004. On 
November 17 at about 10:30 am a Navy amphibious assault ship struck a 
large whale off the Chesapeake Light House. A few hours later, around 
noon, a fisherman contacted the Virginia Aquarium stranding hotline and 
reported a live injured large whale with a fresh wound on the tail 
where the left fluke lobe was missing. On November 24, a dead right 
whale was necropsied at Ocean Sands, NC. The right whale was a pregnant 
female and the cause of death was determined to be blood loss owing to 
a traumatic wound to the left fluke lobe, which was missing, and damage 
to surrounding tissue and bone. The wound was consistent with that 
caused by a ship strike. Neither NMFS, nor the Navy can confirm or deny 
that the dead right whale necropsied on November 24 was the same whale 
struck by the Navy on November 17.
    The USCG and Navy have standing orders to report sightings or 
collisions. Although the NMFS ship strike database reflects a 
disproportionately high number of ship strikes attributable to USCG and 
Navy vessels over the years, this is likely due to the high reporting 
rate by those agencies relative to other mariners and vessels, rather 
than a higher incidence of right whale ship strikes by Federal agency 
vessels. These two Federal agencies are actively involved in large 
whale protection programs and reporting struck or dead whales to NMFS 
is part of their standard operating procedures.
    Comment 2: One commenter stated that they disagree with NMFS' 
conclusion that predicted Level B harassment to right whales will 
likely not occur because ``many animals will likely avoid sonar 
sources'' and ``Navy monitors would detect these animals prior to 
approach and implement sonar power-down or shut-down''
    Response: NMFS did not predict that Level B harassment of right 
whales is not likely to occur. As indicated in the rule, NMFS' LOA may 
authorize up to 666 Level B harassment takes of right whales. NMFS 
indicates that Level A Harassment (injury) and TTS (one type of Level B 
Harassment) are unlikely to occur because of: The distance from the 
source that an animal would need to approach (approximately 10 m for 
injury and 275-500 m for TTS) to be exposed to levels associated with 
injury or TTS; the fact that lookouts would detect them at that close 
distance; the fact that the Navy model (which does not take mitigation 
or avoidance into consideration) predicted that 0 right whales would be 
exposed to injurious levels of sound and 7 right whales would be 
exposed to levels associated with TTS, and; the fact that many (not 
all) animals avoid sonar. Additionally, the Navy is capable of 
effectively monitoring a 1,000-meter safety zone using night vision 
goggles, infrared cameras, and passive acoustic monitoring.

Monitoring and Reporting

    Comment 3: 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 in the AFAST Study Area, 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 recipients of an 
incidental take authorization conduct research. However, NMFS has 
incorporated an adaptive management component into the AFAST rule which 
allows for yearly review of Navy monitoring and current science that 
could influence (allow for the potential modification of) monitoring 
and mitigation measures in subsequent LOAs, if appropriate. NMFS' 
Mitigation EA specifically addresses NMFS' and the Navy's consideration 
of 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).
    Comment 4: 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 
the unclassified portions of these reports will be made available to 
the public through a Federal Register document announcing the issuance 
of subsequent LOAs. The reports will include a description of the 
mitigation measures implemented during major exercises and will also 
include an evaluation of the effectiveness of any mitigation measure 
implemented.
    Comment 5: One commenter stated that sighting information and other 
behavioral data (including records of breeding, feeding, interrupted or 
unusual behavior) obtained by the Navy should be provided to NMFS and 
other interested organizations.
    Response: Both the watchstanders, who are engaged in the Navy 
activities and responsible for detecting marine mammals for mitigation 
implementation, and the marine mammal observers (MMOs) implementing the 
Monitoring Plan, are responsible for recording their behavioral 
observations (the MMOs in greater detail) and then submitting them to 
NMFS in the required annual and comprehensive reports. Upon 
finalization of the reports, NMFS will make them available to the 
public via the NMFS Web site and through the Federal Register.
    Comment 6: Sightings of North Atlantic right whales should be 
reported regardless of the time of year or location to NMFS 
immediately.
    Response: In the southeast Atlantic, the Navy requires that Ships, 
surfaced subs, and aircraft shall report any NARW sightings to Fleet 
Area Control and Surveillance Facility (FACSFACJAX), Jacksonville, by 
the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf). In the northeast Atlantic, 
the Navy requires that Ships, surfaced subs, and aircraft shall report 
any NARW sightings (if the whale is identifiable as a right whale) off 
the northeastern U.S. to Patrol and

[[Page 4862]]

Reconnaissance Wing (COMPATRECONWING). The report shall include the 
time of sighting, lat/long, direction of movement (if apparent) and 
number and description of the whale(s). Both FACSFACJAX and 
COMPATRECONWING then report the information to NMFS. Because there is 
no NARW critical habitat in the mid-Atlantic region (area is not quite 
as critical as northeast and southeast) and the whales are less 
concentrated when migrating through the mid-Atlantic, the Navy does not 
require NARW reporting in the mid-Atlantic.

Mitigation

    Comment 7: One commenter asserts that NMFS' analysis ignores or 
improperly discounts an array of options that have been considered and 
imposed by other active sonar users, including avoidance of coastal 
waters, high-value habitat, and complex topography; the employment of a 
safety zone more protective than the 1000-yard power-down and 200-yard 
shutdown accepted by NMFS; general passive acoustic monitoring for 
whales; special rules for surface ducting and low-visibility 
conditions; monitoring and shutdown procedures for sea turtles and 
large schools of fish; and many others. The commenter further provides 
a detailed list of 31 additional measures that should be considered. 
Other commenters made additional recommendations of mitigation measures 
that should be considered, including, especially, time and area 
closures in right whale calving grounds, feeding grounds, and migration 
corridors.
    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' MMPA decision.
    Comment 8: 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 AFAST 
Study Area, 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 
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. However, foreign sovereign 
immune vessels may not be compelled to adopt such mitigation measures.
    Comment 9: The Marine Mammal Commission recommends that NMFS modify 
the Navy's mitigation measures by requiring the Navy to 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.

[[Page 4863]]

     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).
    Comment 10: The MMC recommends that NMFS work with the Navy to 
validate the performance of Navy lookouts, to conduct similar testing 
to validate passive acoustic monitoring methods, and to complete such 
tests before the Navy proceeds with its AFAST training operations.
    Response: 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 AFAST 
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. NMFS and the Navy have developed 
(since the proposed rule) more rigorous reporting requirements that 
should allow for more meaningful comparisons between Navy lookouts, 
Navy MMOs, and peer-reviewed data, as well as meaningful comparisons 
between both occurrence and behavior of marine mammals in the presence 
and absence of sonar operation. 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. 
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 minimize the exposure of 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.
    The MMOs conducting the Monitoring pursuant to the Monitoring Plan 
are professional marine mammal scientists and NMFS does not believe 
that it is necessary to validate the methods that they use for passive 
acoustic monitoring. Currently, passive acoustics are used by Navy 
operators to increase awareness of nearby marine mammals, but are not 
used to directly trigger mitigation measures. Therefore, NMFS does not 
believe that a validation of those methods is necessary. Additionally, 
any systems used in the detection of marine mammals are the same 
systems used for enemy detection and NMFS is confidant that they are 
fully operational. 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).
    Comment 11: One commenter stated: The Navy's proposed mitigation 
methods are woefully inadequate. If a marine mammal is spotted and 
reported within 1,000 yards of the sonar dome the sonar will not be 
stopped but will be turned down by a mere 6 decibels (from the normal 
operating level of 235 db) to 229 decibels--still over 10 million times 
more intense than the Navy's human diver standard of 145 decibels and 
over a million times more than the noise level received by the animals 
in the Bahamas incident of 2000.
    Response: In order to analyze potential effects to marine mammals 
from sound it is important to understand the difference between source 
level (the sound level about 1 meter from the sound source) and 
received level (the level that an animal hears, which is largely based 
on how far it is from the source). The commenter is comparing source 
levels (235 and 229 dB) to a diver standard that is based on received 
level (as are all of the levels that are referenced by scientists in 
relation to marine mammal responses). Of note, many odontocete species 
vocalizations have been recorded in the field and the source levels 
estimated at above 210 dB, including sperm whales (up to 236 dB), 
Blainville's and Cuvier's beaked whales, bottlenose dolphins and 
pantropical and Atlantic spotted dolphins. The ability of the Navy's 
mitigation measures to avoid injury is discussed in the response to 
comment 2.
    Additionally, the reference to 145 dB is incorrect. The Naval Sea 
Systems Command Instruction (NAVSEAINST) 3150.2, ``Safe Diving 
Distances from Transmitting Sonar,'' is the Navy's governing document 
for human divers in relation to mid-frequency active sonar systems. 
That instruction provides procedures for calculating safe distances 
from active sonars. Such procedures are derived from experimental and 
theoretical research conducted at the Naval Submarine Medical Research 
Laboratory and the Naval Experimental Diving Unit. Inputs to those 
procedures include diver dress, type of sonar, and distance from the 
sonar. The output is represented as a permissible exposure limits 
(i.e., how long the diver can safely stay at that exposure level). For 
example, a diver wearing a wetsuit without a hood has a permissible 
exposure limit of 71 minutes at a distance of 1000 yds from the AN/SQS-
53 sonar. That same instruction advises that if the type of sonar is 
unknown, divers should start 1000 yds from the source and move closer 
(as needed) to the limits of diver comfort. If an interaction did 
occur, it is unlikely the active sonar activity would not be conducted 
close enough to a diver to trigger the permissible exposure limit. 
Assuming spherical spreading, the 1000 yd distance equates to a receive 
level of approximately 175 dB.
    Of note, if spherical spreading is assumed, turning down the sonar 
by 6 dB reduces the radial distance to any particular received level by 
half, which means that the ensonified area is decreased by 
approximately 75 percent.
    Comment 12: One commenter stated: ``According to the Navy's 
proposed mitigation measures, the sonar will only be shut down when an 
animal is spotted within 200 yards of the sonar dome. By the time the 
sonar has traveled that far, it will already have been ensonified for 
many minutes with noise equivalent to that which caused the Bahamas 
whales to strand and die. To shut off the sonar when an animal is 
observed and

[[Page 4864]]

reported at 200 yards will already be too late.''
    Response: The required powerdown and shutdown zones, if properly 
implemented, will avoid exposing marine mammals to levels associated 
with injury and minimize the number of marine mammals exposed to levels 
associated with TTS (see Mitigation conclusion section of proposed 
rule). Sonar is not shutdown until or unless an animal approaches 
within 200 yds, However, if it is sighted at distances greater than 200 
yds, the sound will already have been reduced as a result of either a 
6-dB (1000 yds) or 10-dB (500 yds) powerdown, which will have notably 
reduced the levels an animal is exposed to prior to entering the 200-yd 
safety zone. Separately, as discussed in NMFS' response to comment 
13, there is no way to know the levels that the whales in the 
Bahamas were exposed to that caused them to respond the way that they 
did.
    Comment 13: Several commenters were concerned that visual 
observation by lookouts would not be effective to detect marine mammals 
(especially beaked whales, which are only at surface 8 percent of the 
time and for which the chance of sighting has been calculated at about 
2 percent, and especially in anything but calm weather). They were 
further concerned that, therefore, mitigation would not be effectively 
implemented and the Navy would not be able to avoid injuring marine 
mammals, as asserted by NMFS.
    Response: As explained in the proposed rule, injury of marine 
mammals is unlikely to occur because an animal would need to approach 
to within approximately 10 m of the source to be exposed to levels 
associated with injury (and animals are likely avoiding both vessels 
and sound sources at that close distance) combined with the fact that 
lookouts would likely detect most marine mammals at that close 
distance. NMFS acknowledges that beaked whales are notably more 
difficult to detect: however, the Navy model (which does not take 
mitigation or avoidance into consideration) predicted that 0 beaked 
whales would be exposed to injurious levels of sound.
    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).

Acoustic Thresholds for TTS and PTS

    Comment 14: 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]Pa2s, 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 agree were likely attributable to MFAS. 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 15: 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]Pa2s for harbor seals, 204 dB re 1 
[mu]Pa2s for northern elephant seals, and 206 dB re 
1 FPa2s 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]Pa2s for pinnipeds. 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 FPa2s for harbor seals (and closely 
related species), 204 dB re 1 [mu]Pa2s for northern elephant 
seals (and closely related species), and 206 dB re 1 
[mu]Pa2s for California sea lions (and closely 
related species) (73 FR 60878). The commenter is correct, in the AFAST 
proposed rule, NMFS did not fully explain that all of the pinniped 
species that might be exposed to MFAS are ``closely related'' to harbor 
seals (the thresholds for northern elephant seals and California sea 
lions are not applicable because these species are not present in the 
AFAST Study Area). Therefore, the 183 dB SEL is the pinniped threshold 
applied in AFAST. Accordingly, the AFAST final rule has been amended to 
clarify this issue and be consistent with the SOCAL final rule. The 
same answer applies to the comment about PTS thresholds.
    Comment 16: 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

[[Page 4865]]

should be used as the operative injury criterion.
    Comment 17: 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 13 
through 15.

Behavioral Harassment Threshold

    Comment 18: The NRDC submitted a comprehensive critique of the risk 
function (authored by Dr. David Bain), which NMFS has posted on our Web 
site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications). 
NRDC summarized some general limitations of the risk function and 
included a fairly detailed critique of the specific structure of and 
parameters chosen for use in the model. Following are some of the 
general topics addressed in the letter:
     Factors that Dr. Bain thinks should be addressed by the 
model, such as social interactions and multiple sources.
     Critique of the datasets that NMFS used to populate the 
risk function (described Level B Harasssment--Risk Function section of 
the proposed rule): (1) Controlled Laboratory Experiments with 
Odontocetes (SSC Dataset); (2) Mysticete Field Study (Nowacek et al., 
2004), and (3) Odontocet Field Data (Haro Strait--USS Shoup).
     Consideration of some datasets that were considered by 
NMFS, but not used in the risk function.
     A critique of the parameters (A, B, and K) used in the 
risk function.
     A sensitivity analysis of the parameters (i.e., takes were 
modeled while applying variable values for the A, B, and K values).
    Dr. Bain included a summary of his concerns and an abbreviated 
version is included below. Additionally (and not included in the 
summary), Dr. Bain suggested that the effect of multiple sources may be 
both different and greater than the effects of fewer sources and 
provided supporting examples. (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

[[Page 4866]]

indicative of nearness) may be more relevant acoustic cues of spatial 
relationship than simply exposure level alone. In the AFAST activities, 
an animal exposed to between 120 and 130 dB may be more than 75 nm from 
the sonar source. NMFS is not aware of any data that describe the 
response of any marine mammals to sounds at that distance, much less 
data that indicate that an animal responded in a way we would classify 
as harassment at that distance. Because of this, NMFS does not believe 
it is currently possible or appropriate to modify the model to further 
address uncertainty if doing so results in the model predicting that 
much larger numbers of animals will be taken at great distances from 
the source when we have no data to suggest that that would occur.
     Using many datasets: NMFS has explained both in the rule, 
and then again elsewhere in these comments, why we chose the three 
datasets we did to define the risk function. As Dr. Bain points out, 
there are datasets that report marine mammal responses to lower levels 
of received sound. However, because of the structure of the curve NMFS 
is using and what it predicts (Level B Harassment), we need datasets 
that show a response that we have determined qualifies as harassment 
(in addition to needing a source that is adequately representative of 
MFAS and reliable specific received level information), which many of 
the lower level examples do not.
     50 percent vs. 100 percent response: Dr. Bain asserts that 
two of the three datasets (Nowacek et al., 2004 and Haro Strait--USS 
SHOUP) that NMFS uses to derive the 50 percent response probability in 
the risk function actually report a 100 percent response at the 
indicated received levels. For the Haro Strait dataset, a range of 
estimated received levels at the closest approach to the J Pod were 
estimated. Given that neither the number of individual exposures or 
responses were available, the mean of this range was used as a 
surrogate for the 50 percent response probability in the development of 
the risk function. For the Nowacek data, NMFS used 139.2 dB, which is 
the mean of the received levels at which 5 of 6 animals showed a 
significant response to the signal. However, viewed another way, of 6 
animals, one animal did not respond to the signal and the other five 
responded at received levels of 133 dB, 135 dB, 137 dB, 143 dB, and 148 
dB, which means that 3 of the 6 animals (50 percent) showed a 
significant response at 139.2 dB or less.
     120 dB basement value: When the broad array of data 
reported from exposures across taxa and to varied sources are reviewed, 
NMFS believes that 120 dB is an appropriate B value for a curve 
designed to predict responses that rise to the level of an MMPA 
harassment (not just any response). The available data do not support 
the commenter's assertion that risk may approach 100 percent in the 
range from 120-135 dB for many species. For example, the Southall et 
al. (2007) summary of behavioral response data clearly shows, in almost 
every table (for all sound types), reports of events in which animals 
showed no observable response, or low-level responses NMFS would not 
likely consider harassment, in the 120 to 135-dB range. For the species 
(the harbor porpoise) for which the data do support that assertion, 
which the Southall et al. (2007) paper considers ``particularly 
sensitive'', NMFS has implemented the use of a species-specific step 
function threshold of 120 dB SPL.
     The A value: Please see the second bullet of this response 
for the first part of the answer. NMFS concurs with the commenter that 
species-specific parameters would likely be ideal, however there are 
not currently enough applicable data to support separate curves for 
each species. We note, though, that even with species-specific 
parameters, the context of the exposure will still likely result in a 
substantive variability of behavioral responses to the same received 
level by the same species.
     Recalculation: For the reasons described in the bullets 
above in this response, NMFS disagrees with the commenter's assertion 
that the parameters used in the proposed rule and the EIS are 
unrealistic and that they result in take estimates that are too small 
by two orders of magnitude. We do not believe that a recalculation is 
necessary.
    The science in the field of marine mammals and underwater sound is 
evolving relatively rapidly. NMFS is in the process of revisiting our 
acoustic criteria with the goal of developing a framework (Acoustic 
Guidelines) that allows for the regular and 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 19: 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: As mentioned in comment 18, 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 (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 20: 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 AFAST 
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

[[Page 4867]]

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).
    Comment 21: 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 1000 m of the source.
    Comment 22: 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.
    Comment 23: 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.

Effects Analysis

    Comment 24: 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.
    Comment 25: One commenter states that though the numbers of animals 
that the Navy predicts its proposal will impact are worryingly high, 
they believe them to be gross underestimates of the real numbers of 
animals potentially at risk because of the thresholds the Navy is using 
to predict behavioral disturbance and levels of deafness. The Navy is 
using 215 dB (re 1 [mu]Pa2-s) as the threshold above which 
it says permanent deafness (PTS) will occur and 195 dB (re 1 
[mu]Pa2-s) as the threshold above which it says temporary 
deafness (TTS) will occur. Behavioral impacts are predicted based on a 
dose response function.
    Response: Contrary to what the commenter states, in the Model 
Overestmation section of the proposed rule NMFS clearly explains why 
the authorized take numbers are likely notably higher than the takes 
that will actually occur.

[[Page 4868]]

    To clarify, PTS is not permanent deafness, rather it is permanent 
threshold shift, which means that the hearing sensitivity has been 
permanently reduced by a certain amount, which could be a small amount 
or a larger amount (the longer and higher level the exposure to the 
sound, the more likely PTS will be of a larger amount). Of note, 
reduced hearing sensitivity as a simple function of development and 
aging has been observed in marine mammals, as well as humans and other 
taxa (Southall et al., 2007), so we can infer that strategies exist for 
coping with this condition to some degree, though likely not without 
cost. There is no empirical evidence that exposure to MFAS/HFAS can 
cause PTS in any marine mammals; instead the probability of PTS has 
been inferred from studies of TTS. Similarly, TTS is not temporary 
deafness, rather a temporary reduction in hearing sensitivity.
    Comment 26: NMFS fails to include data from the July 2004 Hanalei 
Bay event, in which 150-200 melon-headed whales were embayed for more 
than 24 hours during the Navy's Rim of the Pacific exercise. According 
to the Navy's analysis, predicted mean received levels (from mid-
frequency sonar) inside and at the mouth of Hanalei Bay ranged from 
137.9 dB to 149.2 dB. NMFS' failure to incorporate these numbers into 
its methodology as another data set is not justifiable.
    Response: NMFS' investigation of the Hanalei event concluded that 
there was insufficient evidence to determine causality. There are a 
number of uncertainties about sonar exposure and other potential 
contributing factors and assumptions inherent to a reconstruction of 
events in which sonar was the causative agent that simply preclude this 
determination. Because of this, NMFS did not use the numbers (137.9-
149.2 dB) in our methodology. Additionally, even if NMFS had concluded 
that MFAS were the causative agent, insufficient evidence exists 
regarding the received level when the animals responded (there is no 
information regarding where they were when they would have first heard 
the sound).
    Comment 27: Two commenters noted that little is known about most 
species of beaked whales and most of that knowledge has come from 
carcasses, as sightings of live animals are generally rare. With few 
exceptions, there is almost nothing known about beaked whale population 
structure, sizes, or trends in the waters off the east coast of the 
U.S, so determining the impact of the loss of a few individuals to the 
population is impossible. Since most species are pelagic, there is also 
no way to know the real number killed in a particular event: not all 
injured animals strand, and not all carcasses find their way to a 
beach. There is even less known about non-lethal impacts, such as 
disruption of mother-calf bonds.
    Response: The commenter is correct that relatively little is known 
about beaked whale population structure, sizes, and trends off the east 
coast of the U.S. However, we do know that the Navy's ASW exercises are 
spread throughout the AFAST Study Area (as opposed to focused in an 
area of known particular importance) and that the Navy is utilizing 
Planning Awareness Areas (in both exercise planning and implementation, 
where practicable) to limit takes of marine mammals (including beaked 
whales) in designated areas of high productivity and steep bathymetric 
contours, which are frequented by deep diving marine mammals like 
beaked whales (see Planning Awareness Areas in proposed rule). Comment 
responses 12 and 36 discuss the likelihood of beaked whales being 
injured by MFAS. Though not all dead or injured animals are expected to 
end up on the shore (some may be eaten or float out to sea), we would 
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 that the Navy has been conducting sonar in the area (30 of 
which, people have actively been collecting stranding data). Of note 
also, the MFAS use covered by this rule is not an increase in the 
amount of sonar conducted off the east coast and in the Gulf of Mexico 
(i.e., the amount of use is consistent with historic effort). Last, the 
potential impacts to cetacean mother-calf pairs from sonar are 
specifically discussed in Potential Effects of Specified Activities on 
Marine Mammals section of the proposed rule. However, as the commenter 
suggests, the specific effects of MFAS on beaked whales and their 
calves are not discussed because specific data do not exist. For the 
reasons listed here and described in the Negligible Impact Analysis 
section of the proposed rule, NMFS has determined that the Navy's 
action will have a negligible impact on beaked whales.
    Comment 28: One commenter noted that the Navy states that it is 
helping to fund (with NMFS) a series of controlled exposure experiments 
on wild whales, the first of which took place in the Bahamas in 2007. 
Yet preliminary results from this experiment support a much lower 
threshold for behavioral impacts than the Navy is using. In the 
experiment, only one successful playback experiment on a beaked whale 
was achieved and in it a tagged Blainville's beaked whale displayed a 
probable behavioral response at a received level of MFA sonar of 145 dB 
re 1[mu]Pa [rms]. The precautionary principle should be applied and the 
Navy should, at a minimum, curb its activities around known areas of 
high marine mammal density and at times when marine animals are 
expected to be present.
    Response: As the commenter notes, the results from the first in the 
series of behavioral response studies conducted by NMFS and other 
scientists did show one beaked whale (Mesoplodon densirostris) 
responding to an MFAS playback. The BRS-07 Cruise report indicates that 
the playback began when the tagged beaked whale was vocalizing at depth 
(at the deepest part of a typical feeding dive), following a previous 
control with no sound exposure. The whale appeared to stop clicking 
significantly earlier than usual, when exposed to mid-frequency signals 
in the 130-140 dB (rms) range. After a few more minutes of the 
playback, when the received level reached a maximum of 140-150 dB, the 
whale ascended on the slow side of normal ascent rates with a longer 
than normal ascent, at which point the exposure was terminated. As the 
commenter noted, the whale displayed a behavioral response: However, 
further consideration by NMFS is necessary to determine if this 
behavioral response qualifies as a behavioral harassment pursuant to 
the MMPA, and if so, how the information should be factored into NMFS' 
analysis.
    The advanced modeling tool that the Navy uses to predict the take 
of marine mammals incidental to any particular activity takes weeks and 
sometimes months to produce the take estimates. NMFS worked at length, 
with input from the Navy and from a panel of marine mammal scientists, 
to develop and finalize the risk continuum for behavioral harassment. 
It took months for NMFS to finalize the risk continuum and months for 
the Navy to calculate the estimated takes based on the current 
continuum. NMFS and the Navy are working together to bring the Navy's 
AFAST activities into compliance under the MMPA in advance of the 
expiration of the MMPA National Defense Exemption, and it was necessary 
for NMFS to continue moving forward (not wait for new data) in the MMPA 
process in order to complete the final rule in the needed timeframe to 
accomplish this. This is not to definitively say that this new 
information will change the way that NMFS quantitatively analyzes

[[Page 4869]]

effects. The interpretation of data presented in the report notes that 
the results are from a single experiment and that a greater sample size 
is needed before robust conclusions can be drawn. Also, the results 
from this study fall under the curve that NMFS is using for behavioral 
effects (though the low end of the curve). That said, NMFS will 
carefully consider these results and subsequent BRS results in future 
analyses.
    This final rule contains an adaptive management component that 
requires a yearly review of monitoring reports and new science and 
allows for the modification of mitigation and monitoring measures, when 
appropriate. As noted in the response to comment 30, the Navy 
currently uses the Planning Awareness Areas (designated based on high 
productivity and steep bathymetric contour areas) to limit marine 
mammal impacts during both exercise planning and implementation. 
Additional detail regarding the potential use of other specific 
mitigation measures can be found in the Mitigation EA.
    Comment 29: NMFS' and the Navy's assessment glosses over stranding 
events associated with active sonar. Although NMFS briefly discusses 
stranding events (73 FR 60776-80), 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 of the more general 
potential effects to marine mammals of MFAS exposure. NMFS analyses 
fully considered the impacts of MFAS use and other naval exercises on 
marine mammals, which allowed us to determine that the total taking 
during the five-year period from the specified activities will have a 
negligible impact on the affected species or stocks.
    Comment 30: 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 31: One commenter stated that NMFS' take estimates do not 
reflect other non-auditory physiological impacts, such as from chronic 
exposure during development, stress, and exposure to toxic chemicals.
    Response: The commenter is correct that the NMFS' estimated take 
numbers do not reflect non-auditory physiological impacts because the 
quantitative data necessary to address those factors in the Navy's 
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 did not expect AFAST activities to result in 
the production of any toxic chemicals that would affect marine mammals, 
although the EIS did analyze the potential impacts from torpedo 
guidance wires, torpedo flex hoses, and parachutes and find that no 
significant impacts to marine mammals were likely to result from those 
expended materials. Therefore, the Navy determined that marine mammals 
would not be taken via the ingestion of toxins or interaction with the 
aforementioned expended materials and they did not request (nor did 
NMFS grant) authorization for take of marine mammals via these methods.
    Comment 32: The MMC recommends that the Service work with the Navy 
to prepare a more thorough analysis of potential cumulative effects, 
the measures that will be taken to avoid or minimize them, and the 
basis for concluding that those effects will be negligible. They 
further note that the DEIS, request for a letter of authorization, and 
proposed rule, do not describe how the effects of the Navy's operations 
and the effects of other human activities (e.g., ship traffic, 
commercial fishing) will be assessed and minimized to the extent 
necessary to avoid an excessive cumulative impact on marine mammals.
    Response: NMFS participated as a cooperating agency in the 
development of the Navy's AFAST EIS and has adopted it to support our 
issuance of incidental take regulations and LOAs. The FEIS contains a 
thorough analysis of potential cumulative effects. Throughout the FEIS, 
within the separate resource sections, the Navy addresses different 
ways that they will minimize adverse effects. As an agency, NMFS 
understands the importance of cumulative effects, and we continually 
look for ways to both better understand and more effectively reduce 
cumulative effects/impacts on marine mammals and other marine resources 
through statute implementation (ESA, NEPA, MSA, CZMA, etc.) and more 
directly through policy and other decisions, such as the implementation 
of the Right Whale Ship Strike Reduction rule or the convening of the 
Potential Application of Vessel-Quieting Technology on Large Commercial 
Vessels meeting in May 2007. However, the MMPA does not require that 
cumulative effects be factored into NMFS' determination whether to 
issue an incidental take authorization under the MMPA. Rather, the MMPA 
states that NMFS ``shall allow * * * the incidental taking * * * if the 
Secretary * * * finds that the total taking [meaning the taking NMFS 
authorizes] during each five-year (or less) period concerned will have 
a negligible impact.''
    Comment 33: One commenter felt that the rule discounts the 
potential impacts on beaked whales from AFAST 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 AFAST Study

[[Page 4870]]

Area)''. 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 the AFAST Study Area, 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 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 an indication that mortalities have not occurred. Rather, we say 
that 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 that the Navy has been conducting sonar in the area (30 of 
which, people have actively been collecting stranding data).
    Comment 34: The MMC recommended that NMFS work with the Navy to 
provide in the final rule and EIS a side-by-side comparison of the 
methods each agency used to generate the sound exposure estimates so 
that reviewers can understand the process by which they were derived 
and the uncertainties associated with that process, and use that 
information to assess the risks to marine mammal species and the 
adequacy of mitigation measures. The MMC also requested an explanation 
of how NMFS ``revised take estimates and proposed take authorization'' 
``depict a more realistic scenario than those adopted directly from the 
Navy's acoustic analysis.'' Last, MMC notes that they have requested in 
the past that the Navy submit its sonar exposure model for peer-review.
    Response: As indicated in the Estimates of Potential Marine Mammal 
Exposures and Takes section of the proposed rule, Appendix F of the 
Navy's AFAST EIS clearly describes the analytical procedures and 
provides the data used to estimate the number of marine mammal 
exposures to NMFS acoustic threshold levels in sufficient detail that 
the reviewers can understand and verify the estimated risks. However, 
reviewers would not be able to reconstruct the process exactly because 
inherent to the overall exposure model is the CASS/GRAB submodel, the 
specific details of which cannot be included in the EIS because the 
model is a Navy owned, restricted distribution model available only to 
U.S. Government Agencies and their contractors. This high fidelity 
acoustic propagation model (CASS/GRAB) used for marine mammal effects 
analysis is the same model used for the operational use of tactical 
sonar, and it is included in the Navy's Oceanographic and Atmospheric 
Master Library (OAML), which has a rigorous acceptance process for all 
databases, models and algorithms prior to being accepted into OAML.
    The Navy provides the numbers of estimated marine mammal exposures 
to NMFS. These numbers (presented in the ``Navy Modeled Exposure 
Estimates'' columns of Table 6) do not take into consideration any 
avoidance of vessels or sound sources by marine mammals or the 
implementation of mitigation measures. As described in the Mitigation 
Conclusion section of the proposed rule, when the distance from the 
sonar source within which an animal would need to approach to be 
exposed to injurious levels (10 m), the small number of modeled 
exposures to injurious levels to a few species (of relatively good 
detectibility: dolphins and pilot whales), the implementation of 
mitigation measures, and the likelihood that most marine mammals would 
avoid approaching the source at this distance are taken into 
consideration, NMFS and the Navy believe that marine mammals will not 
be injured by sonar exposure. Therefore, NMFS has not authorized any 
Level A Harassment, with the exception of the 10 beaked whales (by 
injury or mortality) over the course of the 5-yr regulations, the 
reasons for which are explained in the Mortality section of the 
proposed rule. These are the only quantitative adjustments NMFS has 
made to the authorized takes from the Navy's modeled exposure results. 
NMFS has directly adopted the Navy's Level B Harassment exposures as 
modeled, though we qualitatively explain in the proposed rule why we 
believe these numbers may be an overestimate (see Overestimation 
section). Additionally, although NMFS is not required to identify the 
number of animals that will be taken specifically by TTS versus 
behavioral harassment (Level B Harassment takes include both), we have 
attempted to make more realistic estimates by quantitatively refining 
the Navy's TTS estimates based on the same factors listed above for 
refining the injury estimates (see the Species-specific analysis 
section). The authorized number of Level B harassment takes remains the 
same as the number of exposures estimated by the Navy's model.
    Last, NMFS' Office of Protected Resources has funded a peer-review 
of the Navy's exposure model to be conducted by the Center for 
Independent Experts. The results of this review are scheduled to be 
available at the end of January, 2009.
    Comment 35: 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

[[Page 4871]]

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 36: 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 
reasonable alternatives and mitigation measures. For example, outdated 
stock assessment data are used as the basis for most density estimates. 
It also appears that NMFS and the Navy do not consider other sources of 
published literature. For a number of species, uniform distribution was 
assumed when calculating density and risk. Although the Navy and NMFS 
made repeated assurances that this is a conservative approach, it is 
not. Marine mammals often concentrate in areas with greater density of 
prey or more favorable topography or currents for migration; thus, 
assuming a uniform distribution will overestimate presence in some 
areas and dramatically underestimate it in others.
    Another commenter notes that the Navy's analysis of acoustic 
impacts to marine mammals is through modeling based on abundance 
estimates which were largely determined from aerial surveys, a 
difficult way to count marine mammals, especially relatively small 
animals and those that dive for prolonged periods such as beaked 
whales--the very animals thought to be most susceptible to 
anthropogenic ocean noise.
    Response: The most current stock assessment reports (Waring et al., 
2007) were used to calculate density estimates. As summarized in the 
proposed rule and described more fully in the Navy's FEIS, the Navy 
used the best data and methods available to calculate density, 
including other literature as well as habitat modeling that considered 
bathymetry, distance from shelf break, sea surface temperature, and 
Chlorophyll A concentration. All spatial models and density estimates 
were reviewed by NMFS technical staff. The Navy's model utilizes 
uniform density, but it also divides the east coast into meaningful 
sections, such as on-shelf and off-shelf and the different OPAREAS. 
Using a uniform density is a form of averaging and the commenter has 
provided no support for why the model would ``overestimate'' sometimes 
and ``dramatically underestimate'' in others (all else being equal, a 
uniform distribution should do these two things in equal amounts).
    Beaked whale densities in the SE (and seaward of the shelf break in 
the NE) were derived through the spatial model approach which took 
environmental and habitat parameters into consideration. These models 
were built using only shipboard survey data from 1998 through 2005 
collected and provided by NMFS. For areas in the NE shoreward of the 
shelf break, beaked whale density was actually calculated by Palka 
(Palka, 2005) based on geographic strata provided by Navy. These 
estimates were developed using data from both shipboard and aerial 
surveys conducted by the NEFSC. Density data provided by Palka 
incorporated estimates of g(0) (correction factor that incorporates 
sightability) as discussed in Palka 2005.
    Comment 37: One commenter states 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.

General Opposition and Other

    Comment 38: The Navy should avoid fish spawning grounds and 
important fish habitat. It should also avoid high-value sea turtle 
habitat.
    Response: These concerns are outside of the purview of the MMPA. 
Impacts to fish spawning grounds and habitat are dealt with pursuant to 
the Magnusson Stevens Act (MSA) as it relates to Essential Fish Habitat 
(EFH). The Navy determined that their activities would not adversely 
impact EFH; therefore, the Navy determined that a consultation under 
the MSA was not necessary. 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).
    Comment 39: One commenter suggested that no sonar testing should be 
done in the waters of the Gulf and Atlantic because dead marine life 
from these tests would go ashore and endanger the tourism industry for 
the state.
    Response: NMFS is aware of 5 cases, worldwide, where science 
supports the determination that MFAS was a contributing factor in a 
marine mammal stranding. None of these strandings occurred on the 
Atlantic coast of the U.S. or in the Gulf of Mexico. Separately, 
potential adverse effects to the tourism industry are not required to 
be addressed under the MMPA.
    Comment 40: The NRDC urged NMFS to withdraw its proposed rule on 
AFAST 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 AFAST rule.
    Comment 41: A few commenters expressed general opposition to Navy

[[Page 4872]]

activities and NMFS' issuance of an MMPA authorization, because of the 
danger to marine mammals, and presented several reasons why MFAS was 
not necessary.
    Response: NMFS appreciates the commenters' 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 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's AFAST training activities will have a negligible impact 
on the affected species or stocks and, therefore, we plan to issue the 
requested MMPA authorization.

Estimated Take of Marine Mammals

    As mentioned previously, with respect to the MMPA, NMFS' effects 
assessments serve four 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 the 
AFAST Study Area, so this determination is inapplicable for AFAST); 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, i.e., IEER (discussed in 
the Potential Effects of Specified Activities on Marine Mammals 
section) to the MMPA regulatory definitions of Level A and Level B 
Harassment and quantified (estimated) the effects on marine mammals 
that could result from the specific activities that the Navy intends to 
conduct. The subsections of 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 60754, pages 60800-60801. No changes have been made to the 
discussion contained in this section of the proposed rule.

Acoustic Take Criteria

    In the Acoustic Take Criteria section of the proposed rule, NMFS 
described the development and application of the acoustic criteria for 
both MFAS/HFAS and explosive detonations (73 FR 60754, pages 60801-
60807). No changes have been made to the discussion contained in this 
section of the proposed rule, with the exception of the issue discussed 
below.
    NMFS received one public comment in which the commenter noted that 
the acoustic thresholds for TTS and PTS for pinnipeds presented in 
NMFS' AFAST proposed rule were different from those presented in NMFS' 
Southern California Range Complex proposed rule. As noted in the 
updated summary of acoustic thresholds for TTS and PTS below, NMFS has 
established three separate TTS and PTS thresholds for pinnipeds based 
on which species are being considered. All of the pinnipeds that are 
expected to be exposed to MFAS/HFAS in the AFAST Study Area are more 
closely related to harbor seals (see below) and, therefore, only one of 
the three pinniped criteria is applicable in AFAST.
    In the proposed rule, NMFS only listed the single applicable 
threshold without explaining that two other pinniped TTS and PTS 
thresholds are used for different taxa (that are present in southern 
California, but not in the AFAST Study Area). These paragraphs and the 
summary below serve as a clarification and response to the commenter's 
comment.
    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]Pa\2\-s (based on mid-frequency 
cetaceans--no published data exist on auditory effects of noise in low 
or high frequency cetaceans (Southall et al. (2007))
     Harbor Seals (and closely related species, which include 
all of the species present in the AFAST Study Area)--183 dB re 1 
[mu]Pa\2\-s
     Northern Elephant Seals (and closely related species)--204 
dB re 1 [mu]Pa\2\-s
     California Sea Lions (and closely related species)--206 dB 
re 1 [mu]Pa\2\-s
    NMFS uses the following acoustic criteria for injury (Level A 
Harassment):
     Cetaceans--215 dB re 1 [mu]Pa\2\-s (based on mid-frequency 
cetaceans--no published data exist on auditory effects of noise in low 
or high frequency cetaceans (Southall et al. (2007))
     Harbor Seals (and closely related species)--203 dB re 1 
[mu]Pa\2\-s
     Northern Elephant Seals (and closely related species)--224 
dB re 1 [mu]Pa\2\-s
     California Sea Lions (and closely related species)--226 dB 
re 1 [mu]Pa\2\-s
    For the behavioral harassment criteria (for all species except 
harbor porpoises, below), 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. For harbor porpoises, currently available information suggests a 
lower threshold level of response for both captive and wild animals 
and, therefore, NMFS uses a separate 120 dB re 1 [mu]Pa step function 
to estimate take by behavioral harassment (3 FR 60754, pages 60802-
60806).
    Table 13 in the proposed rule summarizes the acoustic criteria for 
explosive detonations (73 FR 60754, page 60807).

Estimates of Potential Marine Mammal Exposures and Authorized Take

    Information regarding the models used, the assumptions used in the 
models, and the process of estimating take is available in the Navy's 
EIS/OEIS for AFAST. Estimating the take that will

[[Page 4873]]

result from the proposed activities entails the following general 
steps:
    (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 volume of water that will be ensonified to a range of levels of 
pressure and energy (of the metrics used in the criteria) from MFAS/
HFAS and explosive detonations based on several important pieces of 
information, including:
     Characteristics of the sound sources;
     Sonar source characteristics; include: source level (with 
horizontal and vertical directivity corrections), source depth, center 
frequency, source directivity (horizontal/vertical beam width and 
horizontal/vertical steer direction), and ping spacing;
     Explosive source characteristics include: The net 
explosive weight, the type of explosive, and the detonation depth;
     Transmission loss (in 36 representative environmental 
provinces) based on: Seasonal sound speed profiles; seabed 
geoacoustics; wind speed; and acoustics.
    (2) The accumulated energy and maximum received sound pressure 
level within the waters in which the sonar is operating is sampled over 
a two dimensional grid. The zone of influence (ZOI) for a given 
threshold is estimated by summing the areas represented by each grid 
point for which the threshold is exceeded. For behavioral response, the 
percentage of animals likely to respond corresponding to the maximum 
received level is found, and the area of the grid point is multiplied 
by that percentage to find the adjusted area. Those adjusted area are 
summed across all grid points to find the overall ZOI for a particular 
source.
    (3) The densities of each marine mammal species, which are specific 
to certain geographic areas and seasons if data are available, are 
applied to the summed ZOIs for a particular training event to determine 
how many times individuals of each species are exposed to levels that 
exceed the applicable criteria for injury or harassment.
    (4) 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.
    (5) Last, NMFS and the Navy consider the mitigation measures and 
model-calculated estimates may be adjusted based on a post-model 
assessment. For example, in some cases the raw modeled numbers of 
exposures to levels predicted to result in Level A Harassment from 
exposure to sonar might indicate that 1 fin whale would be exposed to 
levels of sonar anticipated to result in PTS--however, a fin whale 
would need to be within approximately 10 m of the source vessel in 
order to be exposed to these levels. Because of the mitigation measures 
(watchstanders and shutdown zone), size of fin whales, and nature of 
fin whale behavior, it is highly unlikely that a fin whale would be 
exposed to those levels, and therefore the Navy would not request 
authorization for Level A Harassment of 1 fin whale. Table 11 contains 
the Navy's estimated take estimates. The ``takes'' reported in the take 
table and proposed to be authorized are based on estimates of marine 
mammal exposures to levels above those indicated in the criteria. Every 
separate take does not necessarily represent a different individual 
because some individual marine mammals may be exposed more than once, 
either within one day and one exercise, or on different days from 
different exercise types.
    (6) 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 1 (by multiplying the 
yearly estimate by 5) by more than 10 percent. NMFS estimates that a 
10-percent increase in sonar hours would result in approximately a 10-
percent increase in the number of takes (described in Table 6), and we 
have considered this possibility and the effect of this additional 
sonar use in our analysis.
    Table 6 remains unchanged from Table 11 in the proposed rule (73 FR 
60753, page 608090) with the exception of minor modifications and one 
correction. The number of estimated and authorized Level B behavioral 
takes of beaked whales increased by a total of 2238 (no increase in 
modeled TTS takes) because the Navy corrected a calculation related to 
submarine maintenance. When submarine sonar is used in exercises, the 
source emits a ping approximately once every 2 hours. However, when 
maintenance is being conducted, the source emits approximately 60 pings 
an hour, which will result in more modeled takes than the sub used in 
an exercise. The Navy originally calculated the submarine sonar takes 
using the number of pings from an exercise--this has since been 
corrected. Of note, all of the indicated take increase will occur 
during sub maintenance, which occurs approximately 50% inshore 
(potentially at a dock) and 50% at sea, but all of which occurs with a 
single submarine, not a group of sonar sources such as in the large 
scale training exercises that have been associated with strandings in 
certain circumstances in approximately 5 cases outside of U.S. waters. 
This change in the take numbers did not change NMFS' conclusions 
regarding the effects of the proposed action.
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Mortality

    Evidence from five beaked whale strandings, all of which have taken 
place outside of the AFAST Study Area, and have occurred over 
approximately a decade, suggests that the exposure of beaked whales to 
MFAS in the presence of certain conditions (e.g., multiple units using 
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 on the 
Atlantic Coast of the U.S. or in the Gulf of Mexico 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 of 10 beaked whales 
over the course of the 5-yr regulations. Neither NMFS nor the Navy 
anticipates that marine mammal strandings or mortality will result from 
the operation of MFAS during Navy exercises within the AFAST Study 
Area.

Effects on Marine Mammal Habitat

    NMFS' AFAST proposed rule included a section that addressed the 
effects of the Navy's activities on Marine Mammal Habitat (73 FR 60754, 
page 60810). The analysis preliminarily concluded that the Navy's 
activities would have minimal effects on marine mammal habitat. No 
changes have been made to the discussion contained in this section of 
the proposed rule.

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 training, 
maintenance, and RDT&E activities utilizing MFAS/HFAS and underwater 
detonations (IEER) will have a negligible impact on the marine mammal 
species and stocks present in the AFAST Study Area. No changes have 
been made to the discussion contained in this section of the proposed 
rule (73 FR 60754, pages 60811-60823).

Subsistence Harvest of Marine Mammals

    NMFS has determined that the issuance of these regulations and 
subsequent LOAs for Navy AFAST exercises 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 six marine mammal species and six sea turtle species 
listed as threatened or endangered under the ESA with confirmed or 
possible occurrence in the study area: Humpback whale, NARW, sei whale, 
fin whale, blue whale, sperm whale, loggerhead sea turtle, the green 
sea turtle, hawksbill sea turtle, leatherback sea turtle, olive ridley 
sea turtle and the Kemp's ridley sea turtle. Pursuant to Section 7 of 
the ESA, the Navy has consulted with NMFS on this action. NMFS has also 
consulted internally on the issuance of regulations under section 
101(a)(5)(A) of the MMPA for this activity. In a Biological Opinion 
(BiOp), NMFS concluded that the Navy's activities in the AFAST Study 
Area 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 
from the takes requested by the applicant (and analyzed for 
authorization by NMFS under the MMPA process), despite the fact that 
the same proposed action (i.e., number of sonar hours and explosive 
detonations) was being analyzed under each statute. When this occurs, 
NMFS staff coordinate to ensure that the most conservative (lowest) 
number of takes is authorized. For the Navy's proposed AFAST training, 
coordination with the Endangered Species Division indicates that they 
will likely allow for a lower level of take of ESA-listed marine 
mammals than was 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.

[[Page 4876]]

    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 AFAST. 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 
AFAST rule and subsequent LOAs. A finding of no significant impact was 
issued for the mitigation EA on January 15, 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 AFAST training exercises utilizing MFAS/HFAS and 
underwater explosives (IEER) over the 5 year period will have a 
negligible impact on the affected species or stocks and will not result 
in an unmitigable adverse impact on the availability of marine mammal 
species or stocks for taking for subsistence uses because no 
subsistence uses exist in the AFAST Study Area. NMFS has issued 
regulations for these exercises that prescribe the means of effecting 
the least practicable adverse impact on marine mammals and their 
habitat and set forth requirements pertaining to the monitoring and 
reporting of that taking.

Classification

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act.
    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this final rule is significant.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
final rule, if adopted, would not have a significant economic impact on 
a substantial number of small entities. The Regulatory Flexibility Act 
requires Federal agencies to prepare an analysis of a rule's impact on 
small entities whenever the agency is required to publish a notice of 
proposed rulemaking. However, a Federal agency may certify, pursuant to 
5 U.S.C. section 605(b), that the action will not have a significant 
economic impact on a substantial number of small entities. The Navy is 
the entity that will be affected by this rulemaking, not a small 
governmental jurisdiction, small organization or small business, as 
defined by the Regulatory Flexibility Act. Any requirements imposed by 
a Letter of Authorization issued pursuant to these regulations, and any 
monitoring or reporting requirements imposed by these regulations, will 
be applicable only to the Navy. Because this action, if adopted, would 
directly affect the Navy and not a small entity, NMFS concludes the 
action would not result in a significant economic impact on a 
substantial number of small entities.
    The Assistant Administrator for Fisheries has determined that there 
is good cause under the Administrative Procedure Act (5 U.S.C. 
553(d)(3)) to waive the 30-day delay in effective date of the measures 
contained in the final rule. Since January 23, 2007, the Navy has been 
conducting military readiness activities employing mid-frequency active 
sonar (MFAS) pursuant to a 2-year MMPA National Defense Exemption 
(NDE). The NDE serves as a bridge to long-term compliance with the MMPA 
while the Navy prepared its Environmental Impact Statement and pursued 
the necessary MMPA incidental take authorization for the AFAST 
exercises. 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 and 
the United States Supreme Court, the AFAST exercises proposed to be 
conducted are of paramount interest to the United States. Any delay in 
the implementation of these measures would raise serious national 
security implications. Therefore, these measures will become effective 
upon filing.

List of Subjects in 50 CFR Part 216

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

    Dated: January 16, 2009.
James Balsiger,
Acting Assistant Administrator for Fisheries, 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 V is added to part 216 to read as follows:

Subpart V--Taking and Importing Marine Mammals; U.S. Navy's 
Atlantic Fleet Active Sonar Training (AFAST)

Sec.
216.240 Specified activity and specified geographical region.
216.241 Effective dates and definitions.
216.242 Permissible methods of taking.
216.243 Prohibitions.
216.244 Mitigation.
216.245 Requirements for monitoring and reporting.
216.246 Applications for Letters of Authorization.
216.247 Letters of Authorization.
216.248 Renewal of Letters of Authorization and Adaptive Management.
216.249 Modifications to Letters of Authorization.

Subpart V--Taking and Importing Marine Mammals; U.S. Navy's 
Atlantic Fleet Active Sonar Training (AFAST)


Sec.  216.240  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

[[Page 4877]]

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 AFAST Study Area, which extends east from the 
Atlantic Coast of the U.S. to 45[deg] W. long. and south from the 
Atlantic and Gulf of Mexico Coasts to approximately 23[deg] N. lat., 
excluding the Bahamas (see Figure 1-1 in the Navy's Application).
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the use of the following mid-frequency active 
sonar (MFAS) sources, high frequency active sonar (HFAS) sources, or 
explosive sonobuoys 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):
    (1) AN/SQS-53 (hull-mounted sonar)--up to 16070 hours over the 
course of 5 years (an average of 3214 hours per year).
    (2) AN/SQS-56 (hull-mounted sonar)--up to 8420 hours over the 
course of 5 years (an average of 1684 hours per year).
    (3) AN/SQS-56 or 53 (hull mounted sonar in object detection mode)--
up to 1080 hours over the course of 5 years (an average of 216 hours 
per year).
    (4) AN/BQQ-10 or 5 (submarine sonar)--up to 49880 pings over the 
course of 5 years (an average of 9976 pings per year) (an average of 1 
ping per two hours during training events, 60 pings per hour for 
maintenance).
    (5) AN/AQS-22 or 13 (helicopter dipping sonar)--up to 14760 dips 
over the course of 5 years (an average of 2952 dips per year--10 pings 
per five-minute dip).
    (6) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS) 
sonobuoys)--up to 29265 sonobuoys over the course of 5 years (an 
average of 5853 sonobuoys per year).
    (7) MK-48 (heavyweight torpedoes)--up to 160 torpedoes over the 
course of 5 years (an average of 32 torpedoes per year).
    (8) MK-46 or 54 (lightweight torpedoes)--up to 120 torpedoes over 
the course of 5 years (an average of 24 torpedoes per year).
    (9) AN/SSQ-110A (IEER explosive sonobuoy) and AN/SSQ-125 (AEER 
sonar sonobuoy)--up to 4360 sonobuoys, between these 2 sources, over 
the course of 5 years (an average of 872 buoys per year).
    (10) AN/SQQ-32 (over the side mine-hunting sonar)--up to 22370 
hours over the course of 5 years (an average of 4474 hours per year).
    (11) AN/SLQ-25 (NIXIE--towed countermeasure)--up to 1660 hours over 
the course of 5 years (an average of 332 hours per year).
    (12) AN/BQS-15 (submarine navigation)--up to 2250 hours over the 
course of 5 years (an average of 450 hours per year).
    (13) MK-1 or 2 or 3 or 4 (Submarine-fired Acoustic Device 
Countermeasure (ADC))--up to 1125 ADCs over the course of 5 years (an 
average of 225 ADCs per year).
    (14) Noise Acoustic Emitters (NAE--Sub-fired countermeasure)--up to 
635 NAEs over the course of 5 years (an average of 127 NAEs per year).


Sec.  216.241  Effective dates and definitions.

    (a) Regulations are effective January 22, 2009 through January 22, 
2014.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place during a major training exercise (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.  
216.241(b)(1)(ii) found dead or live on shore within a 2-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, melon-headed whales, pilot whales, right 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 Sec.  216.241(b)(3).
    (2) Shutdown--The cessation of MFAS/HFAS operation or detonation of 
explosives within 14 nm nm (Atlantic Ocean) or 17 nm (Gulf of Mexico) 
of any live, in the water, animal involved in a USE.


Sec.  216.242  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 216.247, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  216.240(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.  216.240(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.  216.240(c) is limited to the following species, by 
the identified 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) North Atlantic right whale (Eubalaena glacialis)--3330 (an 
average of 666 annually).
    (B) Humpback whale (Megaptera novaeangliae)--21010 (an average of 
4202 annually).
    (C) Minke whale (Balaenoptera acutorostrata)--2075 (an average of 
415 annually).
    (D) Sei whale (Balaenoptera borealis)--5285 (an average of 1057 
annually).
    (E) Fin whale (Balaenoptera physalus)--4410 (an average of 882 
annually).
    (F) Bryde's whale (Balaenoptera edeni)--180 (an average of 36 
annually).
    (G) Blue whale (Balaenoptera musculus)--4005 (an average of 801 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--48790 (an average of 
9758 annually).
    (B) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--
21920 (an average of 4384 annually).
    (C) Beaked Whales (Cuvier's, True's, Gervais', Sowerby's, 
Blainville's, Northern bottlenose whale) (Ziphius cavirostris, 
Mesoplodon mirus, M. europaeus, M. bidens, M. densirostris, Hyperoodon 
ampullatus)--24535 (an average of 4907 annually).
    (D) Rough-toothed dolphin (Steno bredanensis)--13540 (an average of 
2708 annually).
    (E) Bottlenose dolphin (Tursiops truncatus)--3034010 (an average of 
606802 annually).
    (F) Pan-tropical dolphin (Stenella attenuata)--696530 (an average 
of 139306 annually).
    (G) Atlantic spotted dolphin (Stenella frontalis)--1881805 (an 
average of 376361 annually).
    (H) Spinner dolphin (Stenella longirostris)--105775 (an average of 
21155 annually).
    (I) Clymene dolphin (Stenella clymene)--232190 (an average of 46438 
annually).
    (J) Striped dolphin (Stenella coeruleoalba)--873620 (an average of 
174274 annually).
    (K) Common dolphin (Delphinus spp.)--482300 (an average of 96460 
annually).

[[Page 4878]]

    (L) Fraser's dolphin (Lagenodelphis hosei)--1730 (an average of 346 
annually).
    (M) Risso's dolphin (Grampus griseus)--470375 (an average of 94075 
annually).
    (N) Atlantic white-sided dolphin (Lagenorhynchus acutus)--103255 
(an average of 20651 annually).
    (O) White-beaked dophin (Lagenorhynchus albirostris)--17250 (an 
average of 3450 annually).
    (P) Melon-headed whale (Peponocephala electra)--8270 (an average of 
1654 annually).
    (Q) Pygmy killer whale (Feresa attenuata)--1400 (an average of 280 
annually).
    (R) False killer whale (Pseudorca crassidens)--2690 (an average of 
538 annually).
    (S) Killer whale (Orcinus orca)--2515 (an average of 503 annually).
    (T) Pilot whales (Short-finned pilot or long-finned) (Globicephala 
macrorynchus or G. melas)--636965 (an average of 127393 annually).
    (U) Harbor porpoise (Phocoena phocoena)--767405 (an average of 
153481 annually).
    (iii) Pinnipeds:
    (A) Gray seal (Halichoerus grypus)--39295 (an average of 7859 
annually).
    (B) Harbor seal (Phoca vitulina)--63295 (an average of 12659 
annually).
    (C) Hooded seal (Cystophora cristata)--78590 (an average of 15718 
annually).
    (D) Harp seal (Pagophilus groenlandica)--55010 (an average of 11002 
annually).
    (2) Level A Harassment and/or mortality of no more than 10 beaked 
whales (total), of any of the species listed in Sec.  
216.242(c)(1)(ii)(C) over the course of the 5-year regulations.


Sec.  216.243  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.92 and authorized 
by a Letter of Authorization issued under Sec. Sec.  216.106 and 
216.247, no person in connection with the activities described in Sec.  
216.240 may:
    (a) Take any marine mammal not specified in Sec.  216.242(c);
    (b) Take any marine mammal specified in Sec.  216.242(c) other than 
by incidental take as specified in Sec.  216.242(c)(1) and (2);
    (c) Take a marine mammal specified in Sec.  216.242(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 216.247.


Sec.  216.244  Mitigation.

    (a) When conducting training activities identified in Sec.  
216.240(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.247 must be 
implemented. These mitigation measures include, but are not limited to:
    (1) Mitigation Measures for ASW and MIW training:
    (i) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training (MSAT) 
material prior to use of mid-frequency active sonar.
    (ii) All Commanding Officers, Executive Officers, and officers 
standing watch on the Bridge shall review the MSAT material prior to a 
training event employing the use of mid- or high-frequency active 
sonar.
    (iii) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (NAVEDTRA, 12968-D).
    (iv) Lookout training shall include on-the-job instruction under 
the supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, Lookouts 
shall complete the Personal Qualification Standard program, certifying 
that they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (v) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine mammals 
are spotted.
    (vi) 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.
    (vii) All surface ships participating in ASW exercises shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
lookouts.
    (viii) Personnel on lookout and officers on watch on the bridge 
shall have at least one set of binoculars available for each person to 
aid in the detection of marine mammals.
    (ix) On surface vessels equipped with MFAS, pedestal mounted ``Big 
Eye'' (20 x 110) binoculars shall be present and in good working order.
    (x) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout 
Training Handbook (NAVEDTRA 12968-D). Surface lookouts should scan the 
water from the ship to the horizon and be responsible for all contacts 
in their sector. In searching the assigned sector, the lookout should 
always start at the forward part of the sector and search aft (toward 
the back). To search and scan, the lookout should hold the binoculars 
steady so the horizon is in the top third of the field of vision and 
direct the eyes just below the horizon. The lookout should scan for 
approximately five seconds in as many small steps as possible across 
the field seen through the binoculars. They should search the entire 
sector in approximately five-degree steps, pausing between steps for 
approximately five seconds to scan the field of view. At the end of the 
sector search, the glasses should be lowered to allow the eyes to rest 
for a few seconds, and then the lookout should search back across the 
sector with the naked eye.
    (xi) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook. 
At night, lookouts should not sweep the horizon with their eyes because 
this method is not effective when the vessel is moving. Lookouts should 
scan the horizon in a series of movements that should allow their eyes 
to come to periodic rests as they scan the sector. When visually 
searching at night, they should look a little to one side and out of 
the corners of their eyes, paying attention to the things on the outer 
edges of their field of vision.
    (xii) Personnel on lookout shall be responsible for informing the 
Officer of the Deck 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.
    (xiii) Commanding Officers shall make use of marine mammal 
detection cues and information to limit interaction with marine mammals 
to the maximum extent possible consistent with safety of the ship.
    (xiv) 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.
    (xv) Units shall use training lookouts to survey for marine mammals 
prior to commencement and during the use of active sonar.

[[Page 4879]]

    (xvi) During operations involving sonar, personnel shall utilize 
all available sensor and optical systems (such as Night Vision Goggles) 
to aid in the detection of marine mammals.
    (xvii) Navy aircraft participating in exercises at sea shall 
conduct and maintain, when operationally feasible and safe, 
surveillance for marine mammals as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties.
    (xviii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 
yards (182 m) of the sonobuoy.
    (xix) Marine mammal detections shall be reported immediately to 
assigned Aircraft Control Unit (if participating) for further 
dissemination to ships in the vicinity of the marine mammals. This 
action shall occur when it is reasonable to conclude that the course of 
the ship will likely close the distance between the ship and the 
detected marine mammal.
    (xx) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that sonar transmission levels are limited to at least 6 dB below 
normal operating levels if any detected marine mammals are within 1000 
yards (914 m) of the sonar dome (the bow).
    (A) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the marine mammal has 
been seen to leave the area, has not been detected for 30 minutes, or 
the vessel has transited more than 2,000 yards (1828 m) beyond the 
location of the last detection.
    (B) Should a marine mammal be detected within or closing to inside 
457 m (500 yd) 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 marine mammal has been seen to leave the 
area, has not been detected for 30 minutes, or the vessel has transited 
more than 2000 yards (1828 m) beyond the location of the last 
detection.
    (C) Should the marine mammal be detected within or closing to 
inside 183 m (200 yd) of the sonar dome, active sonar transmissions 
shall cease. Sonar shall not resume until the marine mammal has been 
seen to leave the area, has not been detected for 30 minutes, or the 
vessel has transited more than 2,000 yards (1828 m) beyond the location 
of the last detection.
    (D) If the need for power-down should arise as detailed in ``Safety 
Zones'' in paragraph (a)(1)(xx) of this section, Navy shall follow the 
requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down shall be to 229 dB, 
regardless of at what level above 235 sonar was being operated).
    (xxi) Prior to startup or restart of active sonar, operators shall 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (xxii) Sonar levels (generally)--The Navy shall operate sonar at 
the lowest practicable level, not to exceed 235 dB, except as required 
to meet tactical training objectives.
    (xxiii) Helicopters shall observe/survey the vicinity of an ASW 
Operation for 10 minutes before the first deployment of active 
(dipping) sonar in the water.
    (xxiv) Helicopters shall not dip their sonar within 200 yards (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yards of the helicopter dipping sonar (183 m) after pinging 
has begun.
    (xxv) Submarine sonar operators shall review detection indicators 
of close-aboard marine mammals prior to the commencement of ASW 
training activities involving active sonar.
    (xxvi) Night vision devices shall be available to all ships and air 
crews, for use as appropriate.
    (xxvii) Dolphin bowriding--If, after conducting an initial maneuver 
to avoid close quarters with dolphins, the ship concludes that dolphins 
are deliberately closing in on the ship to ride the vessel's bow wave, 
no further mitigation actions would be necessary because dolphins are 
out of the main transmission axis of the active sonar while in the 
shallow-wave area of the vessel bow.
    (xxviii) TORPEXs conducted in the northeast North Atlantic right 
whale critical habitat (as designated in 50 CFR Part 226) shall 
implement the following measures.
    (A) All torpedo-firing operations shall take place during daylight 
hours.
    (B) During the conduct of each test, visual surveys of the test 
area shall be conducted by all vessels and aircraft involved in the 
exercise to detect the presence of marine mammals. Additionally, 
trained observers shall be placed on the submarine, spotter aircraft, 
and the surface support vessel. All participants shall report sightings 
of any marine mammals, including negative reports, prior to torpedo 
firings. Reporting requirements shall be outlined in the test plans and 
procedures written for each individual exercise, and shall be 
emphasized as part of pre-exercise briefings conducted with all 
participants.
    (C) Observers shall receive NMFS-approved training in field 
identification, distribution, and relevant behaviors of marine mammals 
of the western north Atlantic. Observers shall fill out Standard 
Sighting Forms and the data shall be housed at the Naval Undersea 
Warfare Center Division Newport (NUWCDIVNPT). Any sightings of North 
Atlantic right whales shall be immediately communicated to the Sighting 
Advisory System (SAS). All platforms shall have onboard a copy of:
    (1) The Guide to Marine Mammals and Turtles of the U.S. Atlantic 
and Gulf of Mexico (Wynne and Schwartz 1999);
    (2) The NMFS Critical Sightings Program placard;
    (3) Right Whales, Guidelines to Mariners placard.
    (D) In addition to the visual surveillance discussed above, 
dedicated aerial surveys shall be conducted utilizing a fixed-wing 
aircraft. An aircraft with an overhead wing (i.e., Cessna Skymaster or 
similar) shall be used to facilitate a clear view of the test area. Two 
trained observers, in addition to the pilot, shall be embarked on the 
aircraft. Surveys shall be conducted at an approximate altitude of 1000 
ft (305 m) flying parallel track lines at a separation of 1 nmi (1.85 
km), or as necessary to facilitate good visual coverage of the sea 
surface. While conducting surveillance, the aircraft shall maintain an 
approximate speed of 100 knots (185 km/hr). Since factors that affect 
visibility are highly dependent on the specific time of day of the 
survey, the flight operator will have the flexibility to adjust the 
flight pattern to reduce glare and improve visibility. The entire test 
site shall be surveyed initially, but once preparations are being made 
for an actual test launch, survey effort shall be concentrated over the 
vicinity of the individual test location. Further, for approximately 
ten minutes immediately prior to launch, the aircraft shall racetrack 
back and forth between the launch vessel and the target vessel.
    (E) Commencement of an individual torpedo test scenario shall not 
occur until observers from all vessels and aircraft involved in the 
exercise have reported to the Officer in Tactical Command (OTC) and the 
OTC has declared that the range is clear of marine mammals. Should 
marine mammals be present within or seen moving toward the test area, 
the test shall be either delayed or moved as

[[Page 4880]]

required to avoid interference with the animals.
    (F) The TORPEX shall be suspended if the Beaufort Sea State exceeds 
3 or if visibility precludes safe operations.
    (G) Vessel speeds:
    (1) During transit through the northeastern North Atlantic right 
whale critical habitat, surface vessels and submarines shall maintain a 
speed of no more than 10 knots (19 km/hr) while not actively engaged in 
the exercise procedures.
    (2) During TORPEX operations, a firing vessel should, where 
feasible, not exceed 10 knots. When a submarine is used as a target, 
vessel speeds should, where feasible, not exceed 18 knots. However, on 
occasion, when surface vessels are used as targets, the vessel may 
exceed 18 kts in order to fully test the functionality of the 
torpedoes. This increased speed would occur for a short period of time 
(e.g., 10-15 minutes) to evade the torpedo when fired upon.
    (H) In the event of an animal strike, or if an animal is discovered 
that appears to be in distress, the Navy shall immediately report the 
discovery through the appropriate Navy chain of Command.
    (xxix) The Navy shall abide by the following additional measures:
    (A) The Navy shall avoid planning major exercises in the specified 
planning awareness areas (PAAs--as depicted in NMFS' ``Environmental 
Assessment of Mitigation Alternatives for Issuance of Incidental Take 
Regulations to U.S. Navy for Atlantic Fleet Active Sonar Training 
(AFAST)'') where feasible. Should national security require the conduct 
of more than four major exercises (C2X, JTFEX, SEASWITI, or similar 
scale event) in these areas (meaning all or a portion of the exercise) 
per year the Navy shall provide NMFS with prior notification and 
include the information in any associated after-action or monitoring 
reports.
    (B) The Navy shall conduct no more than one of the four above-
mentioned major exercises (COMPTUEX, JTFEX, SEASWITI or similar scale 
event) per year in the Gulf of Mexico to the extent operationally 
feasible. If national security needs require more than one major 
exercise to be conducted in the Gulf of Mexico PAAs, the Navy shall 
provide NMFS with prior notification and include the information in any 
associated after-action or monitoring reports.
    (C) The Navy shall include the PAAs in the Navy's Protective 
Measures Assessment Protocol (PMAP) (implemented by the Navy for use in 
the protection of the marine environment) for unit level situational 
awareness (i.e., exercises other than COMPTUEX, JTFEX, SEASWITI) and 
planning purposes.
    (D) Helicopter Dipping Sonar--Unless otherwise dictated by national 
security needs, the Navy shall minimize helicopter dipping sonar 
activities within the southeastern areas of North Atlantic right whale 
critical habitat (as designated in 50 CFR part 226) from November 15-
April 15.
    (E) Object Detection Exercises--The Navy shall implement the 
following measures regarding object detection activities in the 
southeastern areas of the North Atlantic right whale critical habitat:
    (1) The Navy shall reduce the time spent conducting object 
detection exercises in the NARW critical habitat;
    (2) Prior to conducting surface ship object detection exercises in 
the southeastern areas of the North Atlantic right whale critical 
habitat during the time of November 15-April 15, ships shall contact 
FACSFACJAX to obtain the latest North Atlantic right whale sighting 
information. FACSFACJAX shall advise ships of all reported whale 
sightings in the vicinity of the critical habitat and associated areas 
of concern (which extend 9 km (5 NM) seaward of the designated critical 
habitat boundaries). To the extent operationally feasible, ships shall 
avoid conducting training in the vicinity of recently sighted North 
Atlantic right whales. Ships shall maneuver to maintain at least 500 
yards separation from any observed whale, consistent with the safety of 
the ship.
    (xxx) The Navy shall abide by the letter of the ``Stranding 
Response Plan for Major Navy Training Exercises in the AFAST Study 
Area'' (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), to include the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec.  216.241) occurs during a Major Training Exercise (MTE, 
including SEASWITI, IAC, Group Sails, JTFEX, or COMPTUEX) in the AFAST 
Study Area, the Navy shall implement the procedures described below.
    (1) The Navy shall implement a Shutdown (as defined Sec.  216.241) 
when advised by a NMFS Office of Protected Resources Headquarters 
Senior Official designated in the AFAST 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.
    (2) Any shutdown in a given area shall remain in effect in that 
area until NMFS advises the Navy that the subject(s) of the USE at that 
area die or are euthanized, or that all live animals involved in the 
USE at that area have left the area (either of their own volition or 
herded).
    (3) If the Navy finds an injured or dead animal of any species 
other than North Atlantic right whale 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.
    (4) If the Navy finds an injured (or entangled) North Atlantic 
right whale floating at sea during an MTE, the Navy shall implement 
shutdown procedures (14 or 17 nm, as defined below) around the animal 
immediately (without waiting for notification from NMFS). The Navy 
shall then notify NMFS (pursuant to the AFAST Communication Protocol) 
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). 
Subsequent to the discovery of the injured whale, any Navy platforms in 
the area shall report any North Atlantic right whale sightings to NMFS 
(or to a contact that can alert NMFS as soon as possible). Based on the 
information provided, NMFS may initiate/organize an aerial survey (by 
requesting the Navy's assistance pursuant to the memorandum of 
agreement (MOA) (see (a)(1)(xxx)(C) of this section) or by other 
available means) to see if other North Atlantic right whales are in the 
vicinity. Based on the information provided by the Navy and, if 
necessary, the outcome of the aerial surveys, NMFS shall determine 
whether a continued shutdown is appropriate on a case-by-case basis. 
Though it will be determined on a case-by-case basis after Navy/NMFS 
discussion of the situation, NMFS anticipates that the shutdown will 
continue within 14 or 17 nm of a

[[Page 4881]]

live, injured/entangled North Atlantic right whale until the animal 
dies or has not been seen for at least 3 hours (either by NMFS staff 
attending the injured animal or Navy personnel monitoring the area 
around where the animal was last sighted).
    (5) If the Navy finds a dead North Atlantic right whale floating at 
sea during an MTE, the Navy shall notify NMFS (pursuant to AFAST 
Stranding Communication Protocol) 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). Subsequent to the discovery of the dead whale, if 
the Navy is operating sonar in the area they shall use increased 
vigilance (in looking for North Atlantic right whales) and all 
platforms in the area shall report sightings of North Atlantic right 
whales to NMFS as soon as possible. Based on the information provided, 
NMFS may initiate/organize an aerial survey (by requesting the Navy's 
assistance pursuant to the MOA (see (a)(1)(xxx)(C) of this section) or 
by other available means) to see if other North Atlantic right whales 
are in the vicinity. Based on the information provided by the Navy and, 
if necessary, the outcome of the aerial surveys, NMFS will determine 
whether any additional mitigation measures are necessary on a case-by-
case basis.
    (6) 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 should 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of MFAS/HFAS 
training activities or explosive detonations, though farther than 14 or 
17 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.
    (B) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the 
AFAST 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.
    (C) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop 
a MOA, or other mechanism consistent with Federal fiscal law 
requirements (and all other applicable laws), that will establish a 
framework whereby the Navy can (and provide the Navy examples of how 
they can best) assist NMFS with stranding investigations in certain 
circumstances. This document shall be finalized in 2009 (unless NMFS 
notifies the Navy that a delay is needed).
    (2) Mitigation for IEER/AEER--The following are mitigation measures 
for use with Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER) and Advanced Extended Echo Ranging given an explosive source 
generates the acoustic wave used in this sonobuoy.
    (i) Navy crews shall conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search should be 
conducted below 500 yards (457 m) at a slow speed, if operationally 
feasible and weather conditions permit. In dual aircraft training 
activities, crews are allowed to conduct coordinated area clearances.
    (ii) For IEER (AN/SSQ-110A), Navy crews shall conduct a minimum of 
30 minutes of visual and acoustic monitoring of the search area prior 
to commanding the first post (source/receiver sonobuoy pair) 
detonation. This 30-minute observation period may include pattern 
deployment time.
    (iii) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of 
observed marine mammal activity, deploy the receiver ONLY and monitor 
while conducting a visual search. When marine mammals are no longer 
detected within 1,000 yards (914 m) of the intended post position, co-
locate the explosive source sonobuoy (AN/SSQ-110A) (source) with the 
receiver.
    (iv) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
is to include monitoring of own-aircraft sensors from first sensor 
placement to checking off station and out of communication range of 
these sensors.
    (v) Aural Detection: If the presence of marine mammals is detected 
aurally, then that should cue the aircrew to increase the diligence of 
their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the Navy crew may continue multi-static active 
search.
    (vi) Visual Detection:
    (A) If marine mammals are visually detected within 1,000 yards (914 
m) of the explosive source sonobuoy (AN/SSQ-110A) intended for use, 
then that payload shall not be detonated.
    (B) Navy Aircrews may utilize this post once the marine mammals 
have not been re-sighted for 30 minutes, or are observed to have moved 
outside the 1,000 yards (914 m) safety buffer.
    (C) Navy Aircrews may shift their multi-static active search to 
another post, where marine mammals are outside the 1,000 yards (914 m) 
safety buffer.
    (vii) For IEER (AN/SSQ-110A), Navy 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 shall ensure that a 1,000 
yard (914 m) safety buffer, visually clear of marine mammals, is 
maintained around each post as is done during active search operations.
    (viii) Navy Aircrews shall only leave posts with unexploded charges 
in the event of a sonobuoy malfunction, an aircraft system malfunction, 
or when an aircraft must immediately depart the area due to issues such 
as fuel constraints, inclement weather, and in-flight emergencies. In 
these cases, the sonobuoy will self-scuttle using the secondary or 
tertiary method.
    (ix) The Navy shall ensure all payloads are accounted for. 
Explosive source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall 
be reported as unexploded ordnance via voice communications while 
airborne, then upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (3) Mitigation Measures Related to Vessel Transit and North 
Atlantic Right Whales:
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and 
operate at a slow, safe speed consistent with mission

[[Page 4882]]

and safety during the months indicated below and within a 37 km (20 nm) 
arc (except as noted) of the specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr.
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-
1.93[deg] W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. 
and 32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect 
to avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT 
training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (within this paragraph), the 
``southeast'' encompasses sea space from Charleston, South Carolina, 
southward to Sebastian Inlet, Florida, and from the coast seaward to 
148 km (80 NM) from shore. North Atlantic right whale critical habitat 
is the area from 31-15[deg] N. lat. to 30-15[deg] N. lat. extending 
from the coast out to 28 km (15 NM), and the area from 28-00[deg] N. 
lat. to 30-15[deg] N. lat. from the coast out to 9 km (5 NM). All 
mitigation measures described here that apply to the critical habitat 
apply from November 15-April 15 and also apply to an associated area of 
concern which extends 9 km (5 NM) seaward of the designated critical 
habitat boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting 
and other information needed to make informed decisions regarding safe 
speed and path of intended movement. Subs shall contact Commander, 
Submarine Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the critical habitat and an associated area of concern 
which extends 9 km (5 NM) seaward of the designated critical habitat 
boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a 
slow safe speed. The speed shall be the slowest safe speed that is 
consistent with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less then 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed 
reductions could mean vessel must reduce speed to a minimum at which it 
can safely keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to 
a person, vessel, or aircraft, and to the extent vessels are restricted 
in the ability to maneuver.
    (4) Ships shall not transit through the critical habitat or 
associated area of concern in a North-South direction.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, 
Jacksonville, by the quickest and most practicable means. The sighting 
report shall include the time, latitude/longitude, direction of 
movement and number and description of whale (i.e., adult/calf).
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed. The Great South Channel critical 
habitat is defined by the following coordinates: 41-00[deg] N. lat., 
69-05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] 
N. lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. long. 
The Cape Cod Bay critical habitat is defined by the following 
coordinates: 42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. 
lat., 70-15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-
46.8[deg] N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos were taken. Navy personnel are encouraged to 
take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted 
in the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed so as to be able to avoid collisions with North Atlantic right 
whales and other marine mammals, and stop within a distance appropriate 
to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional 
speed

[[Page 4883]]

reductions as per Rule 6 of International Navigational Rules.


Sec.  216.245  Requirements for monitoring and reporting.

    (a) As outlined in the AFAST Stranding Communication Plan, the Navy 
must notify NMFS immediately (or as soon as clearance procedures allow) 
if the specified activity identified in Sec.  216.240(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.  216.242(c).
    (b) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the AFAST 
Monitoring Plan, which is incorporated herein by reference.
    (c) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be 
convened in 2011 and how and when Navy/NMFS will subsequently utilize 
the findings of the Monitoring Workshop to potentially modify 
subsequent monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for AFAST and 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 AFAST 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 AFAST 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 AFAST Monitoring Plan 
shall, at a minimum, provide the same marine mammal observation data 
required in the data required in Sec.  216.245(f)(1). The AFAST 
Monitoring Plan Report may be provided to NMFS within a larger report 
that includes the required Monitoring Plan Reports from AFAST and 
multiple Range Complexes.
    (f) Annual AFAST Exercise Report--The Navy shall submit an Annual 
AFAST 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 subsections Sec.  216.245(f)(1) through 
(f)(5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for the major training exercises for 
reporting (MTERs), which include the Southeastern ASW Integrated 
Training Initiative (SEASWITI), Integrated ASW Course (IAC), Composite 
Training Unit Exercises (COMPTUEX), and Joint Task Force Exercises 
(JTFEX) conducted in the AFAST Study Area:
    (i) Exercise Information (for each MTER):
    (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 MTER):
    (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 hullmounted, true bearing of animal from ship, true 
direction of ship's travel, and estimation of animal's motion relative 
to ship (opening, closing, parallel);
    (N) Observed behavior--Watchstanders shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the 
MTERs) of the effectiveness of mitigation measures designed to avoid 
exposing marine mammals to MFAS. 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 MTERs and non-major training 
exercises:
    (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 MTERs) 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 AFAST Study Area. To the 
extent practicable, this report will also include the total number of 
sonar hours (from helicopter dipping sonar and object detection 
exercises) conducted within

[[Page 4884]]

the southern NARW critical habitat plus 5 nm buffer area. The Navy 
shall include (in the AFAST 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) IEER/AEER Summary--This section shall include an annual summary 
of the following IEER and AEER information:
    (i) Total number of IEER and AEER events conducted in the AFAST 
Study Area;
    (ii) Total expended/detonated rounds (buoys);
    (iii) Total number of self-scuttled IEER rounds.
    (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 MTER 
indicating:
    (1) Location of the exercise;
    (2) Beginning and end dates of the exercise;
    (3) Type of exercise (e.g., COMPTUEX or SEASWITI).
    (h) AFAST 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, MIW and IEER/AEER 
exercises for which annual reports are required (Annual AFAST Exercise 
Reports and AFAST 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 AFAST, SOCAL, 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 AFAST Comprehensive 
Report, the Comprehensive National ASW report, the Annual AFAST 
Exercise Report, or the Annual AFAST 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.  216.246  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.  216.240(c) (the U.S. Navy) must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec.  216.247 or a renewal under Sec.  216.248.


Sec.  216.247  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.  216.248.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  216.248  Renewal of Letters of Authorization and Adaptive 
Management.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.247 for the activity identified in Sec.  216.240(c) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.246 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.  216.245(c) through (j); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.244 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.247, 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 216.248 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 AFAST or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (section 216.245(l)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  216.245(d))).
    (4) Results from specific stranding investigations (either from the 
AFAST Study Area or other locations, and involving coincident MFAS/HFAS 
or explosives training or not involving coincident use).

[[Page 4885]]

    (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.  216.249  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 216.247 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.  216.248, 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.  216.242(c), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 216.247 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. E9-1706 Filed 1-22-09; 4:15 pm]
BILLING CODE 3510-22-P