Federal Register, Volume 75 Issue 13 (Thursday, January 21, 2010)

[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Rules and Regulations]
[Pages 3395-3416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1074]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AW80

Taking and Importing Marine Mammals; U.S. Naval Surface Warfare
Center Panama City Division Mission Activities

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 at the Naval Surface Warfare Center
Panama City Division (NSWC PCD) for the period of January 2010 through
January 2015. The Navy's activities are considered military readiness
activities pursuant to the Marine Mammal Protection Act (MMPA), as
amended by the National Defense Authorization Act for Fiscal Year 2004
(NDAA). These regulations, which allow for the issuance of ``Letters of
Authorization'' (LOAs) for the incidental take of marine mammals during
the described activities and specified timeframes, prescribe the
permissible methods of taking and other means of effecting the least
practicable adverse impact on marine mammal species and their habitat,
as well as requirements pertaining to the monitoring and reporting of
such taking.

DATES: Effective January 21, 2010, through January 21, 2015.

ADDRESSES: A copy of the Navy's application (which contains a list of
the references used in this document), NMFS' Record of Decision (ROD),
and other documents cited herein may be obtained by writing to Michael
Payne, Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact
listed here (see FOR FURTHER INFORMATION CONTACT). Additionally, the
Navy's LOA application may be obtained by visiting the Internet at:
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 713-2289, ext. 137.

SUPPLEMENTARY INFORMATION: Extensive supplementary information was
provided in the proposed rule for this activity, which was published in
the Federal Register on Thursday, April 30, 2009 (74 FR 20156). 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, notice of a proposed authorization is
provided to the public for review.
Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and if the permissible methods of taking
and requirements pertaining to the mitigation, monitoring and reporting
of such taking are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:

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

The 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

[[Page 3396]]

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

Summary of Request

On April 1, 2008, NMFS received an application, which was
subsequently amended on February 12, 2009 with additional information,
from the Navy requesting authorization for the take of 10 species of
cetaceans incidental to the NSWC PCD's Research, Development, Test and
Evaluation (RDT&E) mission activities over the course of 5 years. These
RDT&E activities are classified as military readiness activities. The
Navy states that these RDT&E activities may cause various impacts to
marine mammal species in the proposed action area (e.g., mortality,
Level A and B harassment). The Navy requests an authorization to take
individuals of these cetacean species by Level B Harassment. Further,
the Navy requests authorization to take 2 bottlenose dolphins, 2
Atlantic spotted dolphins, 1 pantropical spotted dolphin, and 1 spinner
dolphin per year by Level A harassment (injury), as a result of the
proposed mission activities. Please refer to Tables 6-3, 6-4, 6-6, 6-7,
6-8, and 6-9 of the Letter of Authorization (LOA) Addendum for detailed
information of the potential marine mammal exposures from the NSWC PCD
mission activities per year. However, due to the proposed mitigation
and monitoring measures, NMFS estimates that the take of marine mammals
is likely to be lower than the amount requested. Although the Navy
requests authorization to take marine mammals by mortality, NMFS does
not expect any animals to be killed, and NMFS is not proposing to
authorize any mortality (severe lung injury) incidental to the Navy's
NSWC PCD mission activities.

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 (74 FR 20156; April 30, 2009; pages
20156-20157).

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 levels of the RDT&E activities. These RDT&E activities consist of
surface operations, sonar operations, and ordnance operations. The
narrative description of the action contained in the proposed rule has
not changed. Tables 1 and 2 summarize the nature and levels of the
sonar and ordnance operations. The level of the surface operations
remains 7,443 hours per year, and is qualitatively described in the
proposed rule (74 FR 20157; April 30, 2009) with no changes.

Table 1--Hours of Sonar Operations by Representative System per Year
------------------------------------------------------------------------
Annual operating Annual operating
System hours (territorial hours (non-
water) territorial water)
------------------------------------------------------------------------
AN/SQS-53/56 Kingfisher..... 3 1
Sub-bottom profiler (2-9 21 1
kHz).......................
REMUS SAS-LF................ 12 0
REMUS Modem................. 25 12
Sub-bottom profiler (2-16 24 1
kHz).......................
AN/SQQ-32................... 30 1
REMUS-SAS-LF................ 20 0
SAS-LF...................... 35 15
AN/WLD-1 RMS-ACL............ 33.5 5
BPAUV Sidescan.............. 25 38
TVSS........................ 15 16.5
F84Y........................ 15 15
BPAUV Sidescan.............. 25 0
REMUS-SAS-HF................ 10 25
SAS-HF...................... 11.5 15
AN/AQS-20................... 545 15
AN/WLD-11 RMS Navigation.... 15 0
BPAUV Sidescan.............. 30 25
------------------------------------------------------------------------

[[Page 3397]]

[GRAPHIC] [TIFF OMITTED] TR21JA10.003

Description of Marine Mammals in the Area of the Specified Activities

There are 30 marine mammal species with possible or confirmed
occurrence in the NSWC PCD Study Area. As indicated in Table 3, there
are 29 cetacean species (7 mysticetes and 22 odontocetes) and one
sirenian species. Table 3 also includes the federal status of these
marine mammal species. Seven marine mammal species listed as federally
endangered under the Endangered Species Act (ESA) occur in the study
area: the humpback whale, North Atlantic right whale, sei whale, fin
whale, blue whale, sperm whale, and West Indian manatee. Of these 30
species with occurrence records in the NSWC PCD Study Area, 22 species
regularly occur here. These 22 species are: Bryde's whale, sperm whale,
pygmy sperm whale, dwarf sperm whale, Cuvier's beaked whale, Gervais'
beaked whale, Sowerby's beaked whale, Blainville's beaked whale, killer
whale, false killer whale, pygmy killer whale, short-finned pilot
whale, Risso's dolphin, melon-headed whale, rough-toothed dolphin,
bottlenose dolphin, Atlantic spotted dolphin, pantropical spotted
dolphin, striped dolphin, spinner dolphin, Clymene dolphin, and
Fraser's dolphin. The remaining 8 species (i.e., North Atlantic right
whale, humpback whale, sei whale, fin whale, blue whale, minke whale,
True's beaked whale, and West Indian manatee) are extralimital and are
excluded from further consideration of impacts from the NSWC PCD
testing mission. The Description of Marine Mammals in the Area of the
Specified Activities section has not changed from what was in the
proposed rule (74 FR 20156; pages 20160-20161).

Table 3--Marine Mammal Species Found in the NSWC PCD Study Area
----------------------------------------------------------------------------------------------------------------
Family and scientific name Common name Federal status
----------------------------------------------------------------------------------------------------------------
Order Cetacea
Suborder Mysticeti (baleen whales)
Eubalaena glacialis.................. North Atlantic right whale....... Endangered.
Megaptera novaeangliae............... Humpback whale................... Endangered.
Balaenoptera acutorostrata........... Minke whale......................
B. brydei............................ Bryde's whale....................
B. borealis.......................... Sei whale........................ Endangered.
B. physalus.......................... Fin whale........................ Endangered.
B. musculus.......................... Blue whale....................... Endangered.
Suborder Odontoceti (toothed whales)
Physeter macrocephalus............... Sperm whale...................... Endangered.
Kogia breviceps...................... Pygmy sperm whale................
K. sima.............................. Dwarf sperm whale................
Ziphius cavirostris.................. Cuvier's beaked whale............
Mesoplodon europaeus................. Gervais' beaked whale............
M. mirus............................. True's beaked whale..............
M. bidens............................ Sowerby's beaked whale...........
M. densirostris...................... Blainville's beaked whale........

[[Page 3398]]

Steno bredanensis.................... Rough-toothed dolphin............ ..................................
Tursiops truncatus................... Bottlenose dolphin...............
Stenella attenuate................... Pantropical spotted dolphin......
S. frontalis......................... Atlantic spotted dolphin.........
S. longirostris...................... Spinner dolphin..................
S. clymene........................... Clymene dolphin..................
S. coeruleoalba...................... Striped dolphin..................
Lagenodephis hosei................... Fraser's dolphin.................
Grampus griseus...................... Risso's dolphin..................
Peponocephala electra................ Melon-headed whale...............
Feresa attenuate..................... Pygmy killer whale...............
Pseudorca crassidens................. False killer whale...............
Orcinus orca......................... Killer whale.....................
G. macrorhynchus..................... Short-finned pilot whale.........
Order Sirenia
Trichechus manatus................... West Indian manatee.............. Endangered.
----------------------------------------------------------------------------------------------------------------

A Brief Background on Sound

An understanding of the basic properties of underwater sound is
necessary to comprehend many of the concepts and analyses presented in
this document. A detailed description of this topic was provided in the
proposed rule (74 FR 20156; pages 20161-20162) and is, therefore, not
repeated herein.

Potential Impacts to Marine Mammal Species

With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A Harassment
(injury), or mortality, including an identification of the number and
types of take that could occur by Level A or B harassment or mortality)
and to prescribe other means of effecting the least practicable adverse
impact on such species or stock and its habitat (i.e., mitigation); (2)
to determine whether the specified activity will have a negligible
impact on the affected species or stocks of marine mammals (based on
the likelihood that the activity will adversely affect the species or
stock through effects on annual rates of recruitment or survival); (3)
to determine whether the specified activity will have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses (however, there are no subsistence communities in the
NSWC PCD Study Area); and (4) to prescribe requirements pertaining to
monitoring and reporting.
In the Potential Impacts to Marine Mammal Species section of the
proposed rule, NMFS included a qualitative discussion of the different
ways that sonar and underwater explosive detonations from ordnance
operations and projectile firing may potentially affect marine mammals
(See 74 FR 20156; April 30, 2009; pages 20162-20178). Marine mammals
may experience direct physiological effects (such as threshold shift),
acoustic masking, impaired communications, stress responses, and
behavioral disturbance. The information contained in Potential Impacts
to Marine Mammal Species section from sonar operations and underwater
detonation from ordnance operations and projectile firing from the
proposed rule has not changed.
Additional analyses on potential impacts to marine mammals from
vessel movement within the NSWC PCD Study Area are added below.

Vessel Movement

There are limited data concerning marine mammal behavioral
responses to vessel traffic and vessel noise, and a lack of consensus
among scientists with respect to what these responses mean or whether
they result in short-term or long-term adverse effects. In those cases
where there is a busy shipping lane or where there is large amount of
vessel traffic, marine mammals may experience acoustic masking
(Hildebrand, 2005) if they are present in the area (e.g., killer whales
in Puget Sound; Foote et al., 2004; Holt et al., 2008). In cases where
vessels actively approach marine mammals (e.g., whale watching or
dolphin watching boats), scientists have documented that animals
exhibit altered behavior such as increased swimming speed, erratic
movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991;
Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al.,
2002; Constantine et al., 2003), reduced blow interval (Ritcher et al.,
2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and
the shift of behavioral activities which may increase energetic costs
(Constantine et al., 2003; 2004)). A detailed review of marine mammal
reactions to ships and boats is available in Richardson et al. (1995).
For each of the marine mammal's taxonomy groups, Richardson et al.
(1995) provided the following assessment regarding cetacean reactions
to vessel traffic:
Toothed whales: ``In summary, toothed whales sometimes show no
avoidance reaction to vessels, or even approach them. However,
avoidance can occur, especially in response to vessels of types used to
chase or hunt the animals. This may cause temporary displacement, but
we know of no clear evidence that toothed whales have abandoned
significant parts of their range because of vessel traffic.''
Baleen whales: ``When baleen whales receive low-level sounds from
distant or stationary vessels, the sounds often seem to be ignored.
Some whales approach the sources of these sounds. When vessels approach
whales slowly and nonaggressively, whales often exhibit slow and
inconspicuous avoidance maneuvers. In response to strong or rapidly
changing vessel noise, baleen whales often interrupt their normal
behavior and swim rapidly away. Avoidance is especially strong when a
boat heads directly toward the whale.''
It is important to recognize that behavioral responses to stimuli
are complex and influenced to varying degrees by a number of factors
such as species, behavioral contexts, geographical regions, source
characteristics (moving or stationary, speed, direction, etc.), prior
experience of the animal, and physical status of the animal. For
example, studies have shown that beluga whales reacted differently when
exposed to vessel noise and traffic. In some cases, na[iuml]ve beluga

[[Page 3399]]

whales exhibited rapid swimming from ice-breaking vessels up to 80 km
away, and showed changes in surfacing, breathing, diving, and group
composition in the Canadian high Arctic where vessel traffic is rare
(Finley et al., 1990). In other cases, beluga whales were more tolerant
of vessels, but differentially responsive by reducing their calling
rates, to certain vessels and operating characteristics (especially
older animals) in the St. Lawrence River where vessel traffic is common
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales
continued to feed when surrounded by fishing vessels and resisted
dispersal even when purposefully harassed (Fish and Vania, 1971).
In reviewing more than 25 years of whale observation data, Watkins
(1986) concluded that whale reactions to vessel traffic were ``modified
by their previous experience and current activity: Habituation often
occurred rapidly, attention to other stimuli or preoccupation with
other activities sometimes overcame their interest or wariness of
stimuli.'' Watkins noticed that over the years of exposure to ships in
the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed
from frequent positive (such as approaching vessels) interest to
generally uninterested reactions; finback whales (B. physalus) changed
from mostly negative (such as avoidance) to uninterested reactions;
right whales (Eubalaena glacialis) apparently continued the same
variety of responses (negative, uninterested, and positive responses)
with little change; and humpbacks (Megaptera novaeangliae) dramatically
changed from mixed responses that were often negative to often strongly
positive reactions. Watkins (1986) summarized that ``whales near shore,
even in regions with low vessel traffic, generally have become less
wary of boats and their noises, and they have appeared to be less
easily disturbed than previously. In particular locations with intense
shipping and repeated approaches by boats (such as the whale-watching
areas of Stellwagen Bank), more and more whales had P [positive]
reactions to familiar vessels, and they also occasionally approached
other boats and yachts in the same ways.''
In the case of the NSWC PCD Study Area, naval vessel traffic is
expected to be much lower than in areas where there are large shipping
lanes and large numbers of fishing vessels and/or recreational vessels.
Nevertheless, the proposed action area is well traveled by a variety of
commercial and recreational vessels, so marine mammals in the area are
expected to be habituated to vessel noise.
As described in the proposed rule, typical vessel movement
occurring at the surface includes the deployment or towing of mine
counter-measure equipment, retrieval of equipment, and clearing and
monitoring for non-participating vessels. The Navy estimates a total of
up to 7,443 hours (310 vessel days) of surface operations per year.
These operations are widely dispersed throughout the NSWC PCD Study
Area.
Moreover, naval vessels transiting the study area or engaging in
RDT&E activities will not actively or intentionally approach a marine
mammal or change speed drastically.
The final rule contains additional mitigation measures requiring
Navy vessels to keep at least 500 yards (460 m) away from any observed
whale and at least 200 yards (183 m) from marine mammals other than
whales, and avoid approaching animals head-on. Although the radiated
sound from the vessels will be audible to marine mammals over a large
distance, it is unlikely that animals will respond behaviorally to low-
level distant shipping noise as the animals in the area are likely to
be habituated to such noises (Nowacek et al., 2004). In light of these
facts, NMFS does not expect the Navy's vessel movements to result in
Level B harassment.

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 effecting the least practicable adverse
impact on such species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.'' The NDAA 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 NSWC PCD's
RDT&E activities are considered military readiness activities.
NMFS reviewed the Navy's proposed NSWC PCD's RDT&E activities and
the proposed NSWC PCD's mitigation 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.
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:
(1) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals (2), (3), and (4) may contribute to this
goal).
(2) A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to
underwater detonations or other activities expected to result in the
take of marine mammals (this goal may contribute to (1), above, or to
reducing harassment takes only).
(3) A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to underwater detonations or other activities expected to result in the
take of marine mammals (this goal may contribute to (1), above, or to
reducing harassment takes only).
(4) A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to underwater
detonations or other activities expected to result in the take of
marine mammals (this goal may contribute to (1), above, or to reducing
the severity of harassment takes only).
(5) 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.
(6) 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 reviewed the Navy's proposed 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.''
The Navy's proposed mitigation measures were described in detail in
the proposed rule (74 FR 20156, pages 20183-20185). The Navy's measures
address personnel training, lookout and watchstander responsibilities,
operating procedures for RDT&E activities using sonar and underwater
detonations of explosives and projectile firing, and

[[Page 3400]]

mitigation related to vessel traffic. No changes have been made to the
mitigation measures described in the proposed rule except the
following.
In the Personnel Training section, bullet number 3 is revised to
read as:
Marine Observers shall be trained in marine mammal
recognition. Marine Observer training shall include completion of the
Marine Species Awareness Training, instruction on governing laws and
policies, and overview of the specific Gulf of Mexico species present,
and observer roles and responsibilities.
This change is to reflect the NSWC PCD's RDT&E activities that use
Marine Observers instead of watchstanders and lookouts in the range
complexes training. In addition, a Personal Qualification Standard
Program mentioned in the proposed rule (74 FR 20156; April 30, 2009;
page 20184) does not exist for civilian Marine Observers.
In response to a comment from the Marine Mammal Commission on the
Navy's Virginia Capes Range Complex training activities, NMFS will
require the Navy to suspend its activities immediately if a marine
mammal is injured or killed as a result of the proposed Navy RDT&E
activities (e.g., instances in which it is clear that munitions
explosions caused the injury or death), the Navy shall suspend its
activities immediately and report such incident to NMFS.
In addition, a general condition is added to the Operating
Procedures section to read: ``The Test Director or the Test Director's
designee shall maintain the logs and records documenting RDT&E
activities should they be required for event reconstruction purposes.
Logs and records will be kept for a period of 30 days following
completion of a RDT&E mission activity.''
Also, since the term ``Aircraft Control Units'' is a fleet specific
term and is not used during RDT&E activities, bullet number 7 of the
Operating Procedures section in the proposed rule (74 FR 20156; April
30, 2009; page 20184) has been changed to read:
Marine mammal detections shall be immediately reported to
the Test Director or the Test Director's designee for further
dissemination to vessels in the vicinity of the marine species as
appropriate where it is reasonable to conclude that the course of the
vessel will likely result in a closing of the distance to the detected
marine mammal.
The following conditions under the Operating Procedures section,
which appeared in the proposed rule (74 FR 20156; April 30, 2009; page
20184), have been removed because the Navy indicated that sonobuoys and
helicopter dipping sonar are no longer part of the NSWC PCD RDT&E
activities.
Aircraft with deployed sonobuoys will use only the passive
capability of sonobuoys when marine mammals are detected within 200
yards of the sonobuoy.
Helicopters shall observe/survey the vicinity of mission
activities for 10 minutes before the first deployment of active
(dipping) sonar in the water.
Helicopters shall not dip their sonar within 200 yards
(183 m) of a marine mammal and shall cease pinging if a marine mammal
closes within 200 yards (183 m) after pinging has begun.
The section titled ``Proposed Mitigation Measures for Surface
Operations and Other Activities'' is changed to ``Proposed Mitigation
Measures for Surface Operations'' to clarify the section (74 FR 20156;
April 30, 2009; page 20185). One condition under this section, ``(h)
All vessels will maintain logs and records documenting RDT&E activities
should they be required for event reconstruction purposes. Logs and
records shall be kept for a period of 30 days following completion of a
RDT&E mission activity,'' is deleted as the Navy points out that small
vessels do not have the capability to maintain records. Instead, RDT&E
activity records will be maintained by the Test Directors as discussed
above.
NMFS has determined that these mitigation measures are adequate
means of effecting the least practicable adverse impacts on marine
mammal species or stocks and their habitat while also considering
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.

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:
(1) 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 analyses mentioned below.
(2) An increase in our understanding of how many marine mammals are
likely to be exposed to levels of HFAS/MFAS (or explosives or other
stimuli) that we associate with specific adverse effects, such as
behavioral harassment, TTS, or PTS.
(3) An increase in our understanding of how marine mammals respond
to HFAS/MFAS (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) through any of the following
methods:
Behavioral observations in the presence of HFAS/MFAS
compared to observations in the absence of sonar (need to be able to
accurately predict received level and report bathymetric conditions,
distance from source, and other pertinent information).
Physiological measurements in the presence of HFAS/MFAS
compared to observations in the absence of sonar (need to be able to
accurately predict received level and report bathymetric conditions,
distance from source, and other pertinent information), and/or
Pre-planned and thorough investigation of stranding events
that occur coincident to naval activities.
Distribution and/or abundance comparisons in times or
areas with concentrated HFAS/MFAS versus times or areas without HFAS/
MFAS.
(4) An increased knowledge of the affected species.
(5) An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.

Monitoring Plan for the NSWC PCD 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 NSWC
PCD Monitoring Plan. Additionally, NMFS and the Navy have incorporated
a suggestion from the public, which recommended the Navy hold a peer
review workshop to discuss the Navy's Monitoring Plans for the multiple
range complexes and training exercises in which the Navy would receive
ITAs (see Monitoring Workshop section). The final NSWC PCD Monitoring
Plan, which is summarized below, may be viewed at http://
www.nmfs.noaa.gov/

[[Page 3401]]

pr/permits/incidental.htmapplications. 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.
A summary of the monitoring methods required for use during RDT&E
activities in the NSWC PCD Study Area are described below. These
methods include a combination of individual elements that are designed
to allow a comprehensive assessment.

Visual Surveys--Vessel, Aerial and Shore-Based

The Navy shall visually survey a minimum of 2 HFAS/MFAS activities
and 2 explosive events per year. If the 53C sonar was being operated,
such activity must be monitored as one of the HFAS/MFAS activities. For
explosive events, one of the monitoring measures shall be focused on a
multiple detonation event.
For underwater detonations, the size of the survey area shall be
pre-determined based upon the type of explosive event planned and the
amount of NEW used. As a conservative measure, the largest zone of
influence (ZOI) associated with the upper limit of each NEW shall be
surveyed during the RDT&E activities. For example, the Navy would be
required to observe the following ZOIs and ensure they are clear of
marine mammals prior to conducting explosive ordnance RDT&E activities:
2,863 m for NEW between 76-600 lb; 997 m for NEW between 11-75 lb; and
345 m for NEW less than 11 lb.
If animal(s) are observed prior to or during an explosion, a focal
follow of that individual or group shall be conducted to record
behavioral responses. The Navy will not begin activities if animals are
observed within these ZOIs of the events listed above.
The visual survey team shall collect the same data that are
collected by Navy marine observers, including but not limited to: (1)
Location of sighting; (2) species; (3) number of individuals; (4)
number of calves present, if any; (5) duration of sighting; (6)
behavior of marine animals sighted; (7) direction of travel; (8)
environmental information associated with sighting event including
Beaufort sea state, wave height, swell direction, wind direction, wind
speed, glare, percentage of glare, percentage of cloud cover; and (9)
when in relation to the Navy RDT&E activities did the sighting occur
(before, during or after RDT&E activities). Animal sightings and
relative distance from a particular detonation site shall be used post-
survey to estimate the number of marine mammals exposed to different
received levels (energy and pressure of discharge based on distance to
the source, bathymetry, oceanographic conditions and the type and size
of detonation) and their corresponding behavior. For vessel-based
surveys a passive acoustic system (hydrophone or towed array) or
sonobuoys shall be used if operationally feasible to help determine if
marine mammals are in the area before and after a detonation event.
Although photo-identification studies are not typically a component
of Navy exercise monitoring surveys, the Navy supports using the
contracted platforms to obtain opportunistic data collection.
Therefore, any digital photographs that are taken of marine mammals
during visual surveys shall be provided to local researchers for their
regional research.
1. Aerial Surveys
During sonar operations, an aerial survey team shall fly transects
relative to a Navy surface vessel that is transmitting HFA/MFA sonar.
The aerial survey team shall collect both visual sightings and
behavioral observations of marine animals. These transect data will
provide an opportunity to collect data of marine mammals at different
received levels and their behavioral responses and movement relative to
the Navy vessel's position. Surveys shall include time with and without
active sonar in order to compare density, geographical distribution and
behavioral observations. After declassification, related sonar
transmissions shall be used to calculate exposure levels.
Behavioral observation methods shall involve three professionally
trained marine mammal observers and a pilot. Two observers will observe
behaviors, one with hand-held binoculars and one with the naked eye. If
there is more than one whale, each observer shall record respirations
of different animals, ideally from the same animal he/she is observing.
In the case of large groups of delphinids, group behavior, speed,
orientation, etc., shall be recorded. An observer shall use a video
camera to record behaviors in real time. Two external microphones will
be used and attached to the video camera to record vocal behavioral
descriptions on two different channels of the video camera. The
videotape shall be time-stamped and observers shall also call out
times. The third observer shall record notes, environmental data, and
operate a laptop connected to a GPS and the plane's altimeter.
Detailed behavioral focal observations of cetaceans shall be
recorded, including the following variables where possible: Species,
group size and composition (number of calves, etc.), latitude/
longitude, surface and dive durations and times, number and spacing/
times of respirations, conspicuous behaviors (e.g., breach, tail slap,
etc.), behavioral states, orientation and changes in orientation,
estimated group travel speed, inter-individual distances, defecations,
social interactions, aircraft speed, aircraft altitude, distance to
focal group (using the plane's radar) and any unusual behaviors.
In addition, to measure whether marine mammals are displaced
geographically as a result of sonar operations, systematic line-
transect aerial surveys shall be conducted on the two days before and a
variation of one to five days after a NSWC PCD RDT&E testing activity
to collect relative density data in the testing area for marine mammals
in the area. Attempts shall be made to survey during a test event when
operationally feasible during the NSWC PCD RDT&E activities. One survey
day following the mission activity event shall be devoted to flying
coastlines nearest the mission event to look for potential marine
mammal strandings. If a stranding is observed, an assessment of the
animal's condition (alive, injured, dead, and/or decayed) shall be
immediately reported to the Navy for appropriate action and the
information will be transmitted immediately to NMFS.
2. Vessel Surveys
As with the aerial surveys, the vessel surveys shall be designed to
maximize detections of any target species near mission activity events
for focal follows. Systematic transects shall be used to locate marine
mammals, and, the survey should deviate from transect protocol to
collect behavioral data particularly if a Navy vessel is visible on the
horizon or closer. The team shall go off effort for photo-id and close
approach `focal animal follows' as feasible, and when marine animal
encounters occur in proximity to the vessel. While in focal follow
mode, observers shall gather detailed behavioral data from the animals,
for as long as the animal allows. Analysis of behavioral observations
shall be made after the RDT&E event. While the Navy vessels are within
view, attempts shall be made to position the dedicated survey vessel in
the best possible way to obtain focal follow data in the presence of
the NSWC PCD test event. If Navy vessels are not in view, then the
vessel shall begin a systematic line transect survey within the area to
assess marine mammal

[[Page 3402]]

occurrence and observe behavior. The goal of this part of the survey is
to observe marine mammals that may not have been exposed to HFAS/MFAS
or explosions. Therefore, post-analysis shall focus on how the
location, speed and vector of the survey vessel and the location and
direction of the sonar source (e.g. Navy surface vessel) relates to the
animal. Any other vessels or aircraft observed in the area will also be
documented.
3. Shore-Based Surveys
If explosive events are planned to occur adjacent to nearshore
areas where there are elevated coastal structures (e.g. lookout tower
at Eglin Air Force Base) or topography, then shore-based monitoring,
using binoculars or theodolite, may be used to augment other visual
survey methods.

Passive Acoustic Monitoring

Marine Mammal Observer on Navy Vessels

Civilian Marine Mammal Observers (MMOs) aboard Navy vessels shall
be used to research the effectiveness of Navy marine observers, as well
as for data collection during other monitoring surveys.
MMOs shall be field-experienced observers who are Navy biologists
or contracted observers. These civilian MMOs shall be placed alongside
existing Navy marine observers during a sub-set of NSWC PCD RDT&E
activities. This can only be done on certain vessels and observers may
be required to have security clearance. Use of MMOs will verify Navy
marine observer sighting efficiency, offer an opportunity for more
detailed species identification, provide an opportunity to bring animal
protection awareness to the vessels' crew, and provide the opportunity
for an experienced biologist to collect data on marine mammal behavior.
Data collected by the MMOs is anticipated to assist the Navy with
potential improvements to marine observer training as well as providing
the marine observers with a chance to gain additional knowledge of
marine mammals.
Events selected for MMO participation will be an appropriate fit in
terms of security, safety, logistics, and compatibility with NSWC PCD
RDT&E activities. The MMOs shall not be part of the Navy's formal
reporting chain of command during their data collection efforts and
Navy marine observers shall follow their chain of command in reporting
marine mammal sightings. Exceptions shall be made if an animal is
observed by the MMO within the shutdown zone and was not seen by the
Navy marine observer. The MMO shall inform the marine observer of the
sighting so that appropriate action may be taken by the chain of
command. For less biased data, it is recommended that MMOs should
schedule their daily observations to duplicate the Navy marine
observers' schedule.
Civilian MMOs shall be aboard Navy vessels involved in the study.
As described earlier, MMOs shall meet and adhere to necessary
qualifications, security clearance, logistics and safety concerns. MMOs
shall monitor for marine mammals from the same height above water as
the marine observers and as all visual survey teams, they shall collect
the same data collected by Navy marine observers, including but not
limited to: (1) Location of sighting; (2) species (if not possible,
identification of whale or dolphin); (3) number of individuals; (4)
number of calves present, if any; (5) duration of sighting; (6)
behavior of marine animals sighted; (7) direction of travel; (8)
environmental information associated with sighting event including
Beaufort sea state, wave height, swell direction, wind direction, wind
speed, glare, percentage of glare, percentage of cloud cover; and (9)
when in relation to the Navy RDT&E activities did the sighting occur
(before, during or after detonations/exercise).

Monitoring Workshop

During the public comment period on past proposed rules for Navy
actions (such as the Hawaii Range Complex (HRC) and Southern California
Range Complex (SOCAL) proposed rules), NMFS received recommendations
that a workshop or panel be convened to solicit input on the monitoring
plan from researchers, experts, and other interested parties. The NSWC
PCD RDT&E 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 (and if so, 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 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 NSWC PCD RDT&E rule as well as
monitoring results from other Navy rules and LOAs (e.g., AFAST, SOCAL,
HRC, and other rules). The Monitoring Workshop participants would
provide their individual recommendations to the Navy and NMFS on the
monitoring plan(s) after also considering the current science
(including Navy research and development) and working within the
framework of available resources and feasibility of implementation.
NMFS and the Navy would then analyze the input from the Monitoring
Workshop participants and determine the best way forward from a
national perspective. Subsequent to the Monitoring Workshop,
modifications would be applied to monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

In addition to the site-specific Monitoring Plan for the NSWC PCD
Study Area, the Navy has completed the Integrated Comprehensive
Monitoring Program (ICMP) Plan by the end of 2009. The ICMP was
developed by the Navy, with Chief of Naval Operations Environmental
Readiness Division (CNO-N45) taken the lead. The program does not
duplicate the monitoring plans

[[Page 3403]]

for individual areas (e.g. AFAST, HRC, SOCAL); instead it is to provide
the overarching coordination that will support compilation of data from
both range-specific monitoring plans as well as Navy funded research
and development (R&D) studies. The ICMP will coordinate the monitoring
program's progress towards meeting its goals and developing 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/marine observer 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 NSWC PCD RDT&E rule and the other planned
Navy rules (e.g. Virginia Capes Range Complex, Jacksonville Range
Complex, Cherry Point Range Complex, etc.), the ICMP could potentially
provide a framework for restructuring the monitoring plans and
allocating monitoring effort based on the value of particular specific
monitoring proposals (in terms of the degree to which results would
likely contribute to stated monitoring goals, as well as the likely
technical success of the monitoring based on a review of past
monitoring results) that have been developed through the ICMP
framework, instead of allocating based on maintaining an equal (or
commensurate to effects) distribution of monitoring effort across range
complexes.
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 NSWC PCD RDT&E 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 record-keeping system that
will allow NMFS and the public to see how each range complex/project is
contributing to all of the ongoing monitoring programs (resources,
effort, money, etc.).

Adaptive Management

The final regulations governing the take of marine mammals
incidental to Navy's NSWC PCD RDT&E activities contain an adaptive
management component. 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.
The following are some of the possible sources of applicable data:
Results from the Navy's monitoring from the previous year
(either from NSWC PCD Study Area 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.
Results from specific stranding investigations (either
from NSWC PCD Study Area or other locations)
Results from general marine mammal and sound research
(funded by the Navy or otherwise)
Any information which reveals that marine mammals may have
been taken in a manner, extent or number not authorized by these
regulations or subsequent Letters of Authorization
Mitigation measures could be modified or added (or deleted) if new
data suggests that such modifications would have (or do not have) a
reasonable likelihood of accomplishing the goals of mitigation laid out
in this final rule and if the measures are practicable. NMFS would also
coordinate with the Navy to modify or add to (or delete) the existing
monitoring requirements if the new data suggest that the addition of
(or deletion of) a particular measure would more effectively accomplish
the goals of monitoring laid out in this final rule. The reporting
requirements associated with this rule are designed to provide NMFS
with monitoring data from the previous year to allow NMFS to consider
the data and issue annual LOAs. NMFS and the Navy will meet annually,
prior to LOA issuance, 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.

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 RDT&E activities
utilizing underwater explosive detonations or other activities. 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).

[[Page 3404]]

Annual Report

The NSWC PCD shall submit a report annually on October 1 describing
the RDT&E activities conducted and implementation and results of the
NSWC PCD Monitoring Plan (through August 1 of the same year) and RDT&E
activities. The report will, at a minimum, include the following
information:
(1) RDT&E Information
Date and time test began and ended.
Location.
Number and types of active sources used in the test.
Number and types of vessels, aircraft, etc., participated
in the test.
Number and types of underwater detonations.
Total hours of observation effort (including observation
time when sonar was not operating).
Total hours of all active sonar source operation.
Total hours of each active sonar source.
Wave height (high, low, and average during the test).
(2) Individual Marine Mammal Sighting Info
Location of sighting.
Species.
Number of individuals.
Calves observed (y/n).
Initial detection sensor.
Indication of specific type of platform observation made
from.
Length of time observers maintained visual contact with
marine mammal(s).
Wave height (in feet).
Visibility.
Sonar source in use (y/n).
Indication of whether animal is < 200 yd, 200-500 yd, 500-
1,000 yd, 1,000-2,000 yd, or > 2,000 yd from sonar source above.
Mitigation implementation--Whether operation of sonar
sensor was delayed, or sonar was powered or shut down, and how long the
delay was.
If the active MFAS in use is hull mounted, true bearing of
animal from ship, true direction of ship's travel, and estimation of
animal's motion relative to ship (opening, closing, parallel).
Observed behavior--Marine observers 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.).
An evaluation of the effectiveness of mitigation measures
designed to avoid exposing marine mammals to mid-frequency sonar. This
evaluation shall identify the specific observations that support any
conclusions the Navy reaches about the effectiveness of the mitigation.

NSWC PCD 5-Yr Comprehensive Report

The Navy will submit to NMFS a draft report that analyzes and
summarizes all of the multi-year marine mammal information gathered
during HFAS/MFAS and underwater detonation related mission activities
for which annual reports are required as described above. This report
will be submitted at the end of the fourth year of the rule (October
2013), covering activities that have occurred through May 1, 2013. The
Navy will respond to NMFS comments on the draft comprehensive report if
submitted within 3 months of receipt. The report will be considered
final after the Navy has addressed NMFS' comments, or three months
after the submittal of the draft if NMFS does not comment by then.

Comments and Responses

On April 30, 2009, NMFS published a proposed rule (74 FR 20156) in
response to the Navy's request to take marine mammals incidental to
conducting RDT&E activities in the NSWC PCD Study Area and requested
comments, information and suggestions concerning the request. During
the 30-day public comment period, NMFS received comments from 1 private
citizen and comments from the Marine Mammal Commission (Commission).
The comments are addressed below.

MMPA Concerns

Comment 1: The Commission recommends that NMFS require the Navy to
conduct an external peer review of its marine mammal density estimates,
including the data upon which those estimates are based and the manner
in which those are collected and used.
Response: As discussed in detail in the proposed rule (74 FR 20156,
April 30, 2009), marine mammal density estimates were based on the data
gathered in the Marine Resource Assessments (MRAs). The Navy MRA
Program was implemented by the Commander, Fleet Forces Command, to
initiate collection of data and information concerning the protected
and commercial marine resources found in the Navy's Operating Areas
(OPAREAs). Specifically, the goal of the MRA program is to describe and
document the marine resources present in each of the Navy's OPAREAs.
The MRA for the NSWC PCD, which includes Pensacola and Panama City
OPAREAs, was recently updated in 2007 (DoN, 2008).
Density estimates for cetaceans were derived in one of three ways,
in order of preference: (1) Through spatial models using line-transect
survey data provided by the NMFS (as discussed below); (2) using
abundance estimates from Mullin and Fulling (2004); or (3) based on the
cetacean abundance estimates found in the NMFS stock assessment reports
(SAR; Waring et al., 2007), which can be viewed at http://www.nmfs.noaa.gov/pr/sars/species.htm. For the model-based approach,
density estimates were calculated for each species within areas
containing survey effort. A relationship between these density
estimates and the associated environmental parameters such as depth,
slope, distance from the shelf break, sea surface temperature, and
chlorophyll a concentration was formulated using generalized additive
models. This relationship was then used to generate a two-dimensional
density surface for the region by predicting densities in areas where
no survey data exist.
The analyses for cetaceans were based on sighting data collected
through shipboard surveys conducted by NMFS Northeast Fisheries Science
Center (NEFSC) and Southeast Fisheries Science Center (SEFSC) between
1998 and 2005. Species-specific density estimates derived through
spatial modeling were compared with abundance estimates found in the
most current NMFS SAR to ensure consistency. All spatial models and
density estimates were reviewed by and coordinated with NMFS Science
Center technical staff and scientists with the University of St.
Andrews, Scotland, Centre for Environmental and Ecological Modeling
(CREEM). Draft models and preliminary results were reviewed during a
joint workshop attended by Navy, NMFS Science Center, and CREEM
representatives. Subsequent revisions and draft reports were reviewed
by these same parties. Therefore, NMFS considers that the density
estimates, including the data upon which those estimates are based and
the manner in which those are collected and used, has already gone
through an independent review process.

Monitoring and Mitigation

Comment 2: The Commission recommends the Navy provide additional
details concerning its Integrated Comprehensive Monitoring Program,
including an estimated time frame for its implementation.
Response: The Navy has developed the ICMP Plan and will distribute
it to

[[Page 3405]]

the Commission and other interested parties. The components of the ICMP
Plan that were considered and incorporated into the final rules for the
NSWC PCD include:
A requirement to monitor Navy's RDT&E activities,
particularly those involving sonar and underwater detonations, for
compliance with the terms and conditions of ESA Section 7 consultations
or MMPA authorizations;
A requirement to minimize exposure of protected species
from sound pressure levels from sonar and underwater detonations that
result in harassment;
A requirement to collect data to support estimating the
number of individual marine mammals exposed to sound levels above
current regulatory thresholds;
A requirement to assess the adequacy of the Navy's current
marine species mitigation;
A requirement to document trends in species distribution
and abundance in Navy mission activity areas through monitoring
efforts;
A requirement to compile data that would improve the Navy
and NMFS' knowledge of the potential behavioral and physiological
effects to marine species from sonar and underwater detonations.
The ICMP Plan 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 (lookout) data, as well as new information from other
Navy programs (e.g., research and development), and newly published
non-Navy information. The ICMP Plan is described in the Navy's EIS and
LOA application.
Comment 3: The Commission recommends that NMFS require the Navy to
develop and implement a plan to evaluate the effectiveness of
monitoring and mitigation measures before beginning or in conjunction
with operations covered by the proposed incidental take authorization.
Response: NMFS has been working with the Navy throughout the
rulemaking process to develop a series of mitigation, monitoring, and
reporting protocols. These mitigation, monitoring and reporting
measures include, but are not limited to: (1) The use of trained Navy
marine observers who will conduct marine mammal monitoring to avoid
collisions with marine mammals; (2) the use of exclusion zones that
avoid exposing marine mammals to levels of sound likely to result in
injury or death of marine mammals; (3) the use of MMOs/Navy marine
observers to conduct aerial, vessel, and shore-based surveys; and (4)
annual monitoring reports and comprehensive reports to provide insights
of impacts to marine mammals.
NMFS has evaluated the effectiveness of the measures and has
concluded they will achieve the least practicable adverse impact on the
affected marine mammal species or stocks and their habitat. For
example, operations will be suspended if trained Navy marine observers
and/or MMOs detect marine mammals within the vicinity of the RDT&E
activities, thereby preventing marine mammal injury or mortality (use
of specified exclusion zones). In addition, prior to conducting RDT&E
activities involving sonar or underwater explosive detonation, the Navy
will be required to carry out monitoring to make sure that the safety
zones are clear of marine mammals, and then during the test activity
when feasible. These monitoring and mitigation measures will decrease
the number of marine mammals exposed to underwater explosions and
exposure to intense sounds from the detonations.
Over the course of the 5-year rule, NMFS will evaluate the Navy's
RDT&E activities annually to validate the effectiveness of the
measures. NMFS will, through the established adaptive management
process, work with the Navy to determine whether additional mitigation
and monitoring measures are necessary. In addition, with the
implementation of the ICMP Plan by the end of 2009, and the planned
Monitoring Workshop in 2011, NMFS will work with the Navy to further
improve its monitoring and mitigation plans for its future activities.
Comment 4: The Commission recommends that NMFS implement a 60-
minute waiting period when deep-diving species such as sperm and beaked
whales or species that cannot be identified by watchstanders are
observed within or are about to enter a safety zone.
Response: NMFS does not concur with the Commission's recommendation
for the following reasons:
The ability of an animal to dive longer than 30 minutes
does not mean that it will always do so. Therefore, the 60-minute delay
would only potentially add value in instances when animals had remained
under water for more than 30 minutes.
Navy vessels typically move at 10-12 knots (5-6 m/sec)
when operating active sonar and potentially much faster when not. Fish
et al. (2006) measured speeds of 7 species of odontocetes and found
that they ranged from 1.4-7.30 m/sec. Even if a vessel was moving at
the slower typical speed associated with active sonar use, an animal
would need to be swimming near sustained maximum speed for an hour in
the direction of the vessel's course to stay within the safety zone of
the vessel. Increasing the typical speed associated with active sonar
use would further narrow the circumstances in which the 60-minute delay
would add value.
Additionally, the times when marine mammals are deep-
diving (i.e., the times when they are under the water for longer
periods of time) are the same times that a large portion of their
motion is in the vertical direction, which means that they are far less
likely to keep pace with a horizontally moving vessel.
Given that, the animal would need to have stayed in the
immediate vicinity of the sound source for an hour and considering the
maximum area that both the vessel and the animal could cover in an
hour, it is improbable that this would randomly occur. Moreover,
considering that many animals have been shown to avoid both acoustic
sources and ships without acoustic sources, it is improbable that a
deep-diving cetacean (as opposed to a dolphin that might bow ride)
would choose to remain in the immediate vicinity of the source. NMFS
believes that it is unlikely that a single cetacean would remain in the
safety zone of a Navy sound source for more than 30 minutes.
Last, in many cases, the marine observers 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 5: The Commission recommends that NMFS require the Navy to
suspend an activity if a marine mammal is seriously injured or killed
and the injury or death could be associated with the activity.
Subsequently, the injury or death should be investigated to determine
the cause, assess the full impact of the activity potentially
implicated (e.g., the total of animals involved), and determine how the
activity should be modified to avoid future injuries or deaths.
Response: Though NMFS largely agrees with the Commission, it should
be noted that without detailed examination by an expert, it is usually
not feasible to determine the cause of injury or mortality when an
injured or dead marine mammal is sighted in the

[[Page 3406]]

field. Therefore, NMFS has required in its final rule that if there is
clear evidence that a marine mammal is injured or killed as a result of
the proposed Navy RDT&E activities (e.g., instances in which it is
clear that munitions explosions caused the injury or death) the Naval
activities shall be immediately suspended and the situation immediately
reported by personnel involved in the activity to the Test Director or
the Test Director's designee, who will follow Navy procedures for
reporting the incident to NMFS through the Navy's chain-of-command.
For any other sighting of injured or dead marine mammals in the
vicinity of any Navy's RDT&E activities utilizing underwater explosive
detonations for which the cause of injury or mortality cannot be
immediately determined, the Navy personnel will ensure that NMFS
(regional stranding coordinator) is notified immediately (or as soon as
operational security allows). 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).
Comment 6: The Commission recommends NMFS require the Navy to, in
those cases where authorization is sought to take marine mammals by
injury, consult with NMFS to consider whether the requested take levels
are realistic and adequately take into account the schooling behavior
of dolphins.
Response: As discussed in the Navy's LOA application and in the
Proposed Rule (74 FR 20156: April 30, 2009), take of marine mammals by
Level A harassment (injury) could occur as a result of the underwater
detonation exposures in the range of 76-272 lb NEW (34-272 kg) in non-
territorial waters. However, as noted by the Commission, due to the
schooling behavior of some dolphin species, there is the question of
whether the requested take levels are realistic. Although NMFS shares
the Commission's view to some degree that schooling dolphins are not
evenly distributed, due to the changing oceanographic regime and the
large area being considered, NMFS considers that the Navy's modeling
and analysis on the requested take levels are the best approximations.
In addition, NMFS believes that the Navy's take estimates are
conservative, and that with the implementation of aforementioned
mitigation and monitoring measures, many of the Level A harassments
(injury) can be prevented.

Reporting

Comment 7: The Commission recommends NMFS require the Navy to
submit annual reports that document in full the methods, results, and
interpretation of all monitoring tasks.
Response: NMFS agrees with the Commission's recommendation. As
described above, NMFS will require the Navy to submit a report annually
on August 1 describing the RDT&E activities conducted and
implementation and results of the NSWC PCD Monitoring Plan (through
June 1 of the same year). A detailed description of report contents is
provided above.
Comment 8: The Commission recommends that NMFS work with the Navy
to develop a database for storing original records of Navy interactions
with marine mammals, which will provide a basis for evaluating such
interactions over long periods of time and across large areas.
Response: The Navy is required to document all marine mammal
sightings through aerial, vessel, and shore-based survey by MMOs or
Navy marine observers. Those records will be used to determine
potential Navy interactions with marine mammals and to assess the
impacts on marine mammals that may have resulted from the Navy's RDT&E
activities. Currently there is no plan to develop a database for
storing original records of Navy interactions with marine mammals due
to limited resources. Nevertheless, NMFS will consider the Commission's
recommendation when adequate resources are available to undertake such
efforts.

Miscellaneous Issues

Comment 9: One private citizen expressed general opposition to Navy
activities and NMFS' issuance of an MMPA authorization because of the
danger of killing marine life.
Response: NMFS appreciates the commenter's concern for the marine
mammals that live in the area of the proposed activities. However, the
MMPA allows individuals to take marine mammals incidental to specified
activities if NMFS can make the necessary findings required by law
(i.e., negligible impact, unmitigable adverse impact on subsistence
users, etc.). As explained throughout this rulemaking, NMFS has made
the necessary findings under 16 U.S.C. 1371(a)(5)(A) to support our
issuance of the final rule.

Estimated Take of Marine Mammals

As mentioned previously, with respect to the MMPA, NMFS' effects
assessments serve four primary purposes: (1) To prescribe the
permissible methods of taking (i.e., Level B Harassment (behavioral
harassment), Level A Harassment (injury), or mortality, including an
identification of the number and types of take that could occur by
Level A or B harassment or mortality) and to prescribe other means of
effecting the least practicable adverse impact on such species or stock
and its habitat (i.e., mitigation); (2) to determine whether the
specified activity will have a negligible impact on the affected
species or stocks of marine mammals (based on the likelihood that the
activity will adversely affect the species or stock through effects on
annual rates of recruitment or survival); (3) to determine whether the
specified activity will have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (however,
there are no subsistence communities in the NSWC PCD Study Area; thus,
there would be no effect to any subsistence user); 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 sonar
operations and underwater detonation of explosives to the MMPA
regulatory definitions of Level A and Level B Harassment and assessed
the effects to marine mammals that could result from the specific
activities that the Navy intends to conduct. The subsections of this
analysis are discussed in the proposed rule (74 FR 20156; April 30,
2009). The only change in this section is that the sentence in the
proposed rule (74 FR 20156; April 30, 2009; page 20179), ``NSWC PCD
RDT&E activities involve mid-frequency sonar operation for only 6
percent of operational hours,'' is changed to ``NSWC PCD RDT&E
activities involve mid-frequency sonar operation for only 7 percent of
operational hours.'' The change is to fix the calculation error in the
proposed rule.
In the Estimated Exposures of Marine Mammals section of the
proposed rule, NMFS described in detail how the take estimates were
calculated through modeling (74 FR 20156; pages 20178-20182; April 30,
2009). The following changes in this section have been made: (1) The
first paragraph under Marine Mammal Sonar Exposures in Territorial
Waters section of the proposed rule (74 FR 20156; April 30, 2009; page
20179), ``rough-toothed dolphin'' and one duplicated ``Atlantic
bottlenose dolphin'' are deleted; and (2) the first paragraph under
Marine Mammal

[[Page 3407]]

Ordnance Exposures in Non-Territorial Waters section (74 FR 20156;
April 30, 2009; page 20181), ``rough-toothed dolphin'' and ``striped
dolphin'' are deleted. The deletion is to clarify that no rough-toothed
dolphin or striped dolphin would be affected by these activities. In
addition, Fraser's dolphin is added to Tables 11, 12, and 13 in the
final rule (74 FR 20156; April 30, 2009; pages 20181-20182), with zero
exposures. No other change has been made to the final rule.
A summary of potential exposures from sonar operations and ordnance
(per year) for marine mammals in the NSWC PCD Study Area is listed in
Table 4 (these exposure estimates are the same as those presented in
the proposed rule, with the exception as noted above).

Table 4--Estimates of Total Marine Mammal Exposures From the NSWC PCD Mission Activities per Year
----------------------------------------------------------------------------------------------------------------
Mortality (severe Level A (slight Level B (non-
Marine mammal species lung injury) lung injury) injury)
----------------------------------------------------------------------------------------------------------------
Bryde's whale.......................................... ................. ................. .................
Sperm whale............................................ ................. ................. 2
Dwarf/Pygmy sperm whale................................ ................. ................. .................
All beaked whales...................................... ................. ................. .................
Killer whale........................................... ................. ................. .................
False killer whale..................................... ................. ................. .................
Pygmy killer whale..................................... ................. ................. .................
Melon-headed whale..................................... ................. ................. 2
Short-finned pilot whale............................... ................. ................. 1
Risso's dolphin........................................ ................. ................. 2
Rough-toothed dolphin.................................. ................. ................. .................
Bottlenose dolphin..................................... 0 2 614
Atlantic spotted dolphin............................... 0 2 471
Pantropical spotted dolphin............................ ................. 1 23
Striped dolphin........................................ ................. ................. 5
Spinner dolphin........................................ ................. 1 23
Clymene dolphin........................................ ................. ................. 5
Fraser's dolphin....................................... ................. ................. .................
----------------------------------------------------------------------------------------------------------------

Effects on Marine Mammal Habitat

NMFS' NSWC PCD proposed rule included a section that addressed the
effects of the Navy's activities on Marine Mammal Habitat (74 FR 20156;
pages 20182-20183; April 30, 2009). NMFS concluded preliminarily 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. A negligible impact finding is based on
the lack of likely adverse effects on annual rates of recruitment or
survival (i.e., population-level effects). An estimate of the number of
Level B harassment takes alone is not enough information on which to
base an impact determination.
In addition to considering estimates of the number of marine
mammals that might be ``taken'' through behavioral harassment, NMFS
must consider other factors, such as the likely nature of any responses
(their intensity, duration, etc.), the context of any responses
(critical reproductive time or location, migration, etc.), as well as
the number and nature of estimated Level A takes, the number of
estimated mortalities, and effects on habitat.
The Navy's specified activities have been described based on best
estimates of the number of HFAS/MFAS hours that the Navy will conduct
and the planned detonation events. Taking the above into account,
considering the sections discussed below, and dependent upon the
implementation of the proposed mitigation measures, NMFS has determined
that Navy's RDT&E activities utilizing HFAS/MFAS and underwater
detonations will have a negligible impact on the marine mammal species
and stocks present in the NSWC PCD Study Area.

Behavioral Harassment

As discussed in the Potential Effects of Exposure of Marine Mammals
to HFAS/MFAS in the proposed rule (74 FR 20156; April 30, 2009) and
illustrated in the conceptual framework, marine mammals can respond to
HFAS/MFAS in many different ways, a subset of which qualifies as
harassment. The take estimates do not take into account the fact that
most marine mammals will likely avoid strong sound sources to one
extent or another. Although an animal that avoids the sound source will
likely still be taken in some instances (such as if the avoidance
results in a missed opportunity to feed, interruption of reproductive
behaviors, etc.) in other cases avoidance may result in fewer instances
of take than were estimated or in the takes resulting from exposure to
a lower received level than was estimated, which could result in a less
severe response. The Navy proposes only 77 hours of mid-frequency sonar
operations per year (Table 2) in the NSWC PCD Study Area, and the use
of the most powerful 53C series sonar will be limited to just 4 hours
per year. Therefore, any disturbance to marine mammals resulting from
53C and other MFAS is expected to be significantly less in terms of
severity and duration when compared to major sonar exercises (e.g.,
AFAST, HRC, SOCAL). As for the HFAS, source levels of those HFAS are
not as high as the 53C series MFAS. In addition, high frequency signals
tend to have more attenuation in the water

[[Page 3408]]

column and are more prone to lose their energy during propagation.
Therefore, their zones of influence are much smaller, thereby making it
easier to detect marine mammals and prevent adverse effects from
occurring.
There is little information available concerning marine mammal
reactions to MFAS/HFAS. The Navy has only been conducting monitoring
activities since 2006 and has not compiled enough data to date to
provide a meaningful picture of effects of HFAS/MFAS on marine mammals,
particularly in the NSWC PCD Study Area. From the four major training
exercises (MTEs) of HFAS/MFAS in the AFAST Study Area for which NMFS
has received a monitoring report, no instances of obvious behavioral
disturbance were observed by the Navy watchstanders in the 700+ hours
of effort in which 79 sightings of marine mammals were made (10 during
active sonar operation). One cannot conclude from these results that
marine mammals were not harassed from HFAS/MFAS, as a portion of
animals within the area of concern were not seen (especially those more
cryptic, deep-diving species, such as beaked whales or Kogia sp.) and
some of the non-biologist watchstanders might not have had the
expertise to characterize behaviors. However, the data demonstrate that
the animals that were observed did not respond in any of the obviously
more severe ways, such as panic, aggression, or anti-predator response.
In addition to the monitoring that will be required pursuant to
these regulations and subsequent LOAs, which is specifically designed
to help us better understand how marine mammals respond to sound, the
Navy and NMFS have developed, funded, and begun conducting a controlled
exposure experiment with beaked whales in the Bahamas.

Diel Cycle

As noted in the proposed rule (74 FR 20156; April 30, 2009), many
animals perform vital functions, such as feeding, resting, traveling,
and socializing on a diel cycle (24-hr cycle). Substantive behavioral
reactions to noise exposure (such as disruption of critical life
functions, displacement, or avoidance of important habitat) are more
likely to be significant if they last more than one diel cycle or recur
on subsequent days (Southall et al., 2007). Consequently, a behavioral
response lasting less than one day and not recurring on subsequent days
is not considered particularly severe unless it could directly affect
reproduction or survival (Southall et al., 2007).
In the proposed rule (74 FR 20156; April 30, 2009), NMFS discussed
the fact that potential behavioral responses to HFAS/MFAS and
underwater detonations that fall into the category of harassment could
range in severity. By definition, takes by behavioral harassment
involve the disturbance of a marine mammal or marine mammal stock in
the wild by causing disruption of natural behavioral patterns (such as
migration, surfacing, nursing, breeding, feeding, or sheltering) to a
point where such behavioral patterns are abandoned or significantly
altered. These reactions would, however, be more of a concern if they
were expected to last over 24 hours or be repeated in subsequent days.
For hull-mounted sonar 53C series sonar (the highest power source), the
total time of operation is only 4 hours per year, with 3 hours planned
in territorial waters and 1 hour in non-territorial waters. Different
sonar testing and underwater detonation activities will not occur
simultaneously. When this is combined with the fact that the majority
of the cetaceans in the NSWC PCD Study Area would not likely remain in
the same area for successive days, it is unlikely that animals would be
exposed to HFAS/MFAS and underwater detonations at levels or for a
duration likely to result in a substantive response that would then be
carried on for more than one day or on successive days.

TTS

NMFS and the Navy have estimated that individuals of some species
of marine mammals may sustain some level of TTS from HFAS/MFAS and/or
underwater detonation. As mentioned previously, TTS can last from a few
minutes to days, be of varying degree, and occur across various
frequency bandwidths. The TTS sustained by an animal is primarily
classified by three characteristics:
Frequency--Available data (of mid-frequency hearing
specialists exposed to mid to high frequency sounds--Southall et al.,
2007) suggest that most TTS occurs in the frequency range of the source
up to one octave higher than the source (with the maximum TTS at \1/2\;
octave above).
Degree of the shift (i.e., how many dB is the sensitivity
of the hearing reduced by)--generally, both the degree of TTS and the
duration of TTS will be greater if the marine mammal is exposed to a
higher level of energy (which would occur when the peak dB level is
higher or the duration is longer). The threshold for the onset of TTS
(>6 dB) for Navy sonars is 195 dB (SEL), which might be received at
distances of up to 275-500 m from the most powerful MFAS source, the
AN/SQS-53 (the maximum ranges to TTS from other sources would be less).
An animal would have to approach closer to the source or remain in the
vicinity of the sound source appreciably longer to increase the
received SEL, which would be difficult considering the marine observers
and the nominal speed of a sonar vessel (10-12 knots). Of all TTS
studies, some using exposures of almost an hour in duration or up to
217 SEL, most of the TTS induced was 15 dB or less, though Finneran et
al. (2007) induced 43 dB of TTS with a 64-sec exposure to a 20 kHz
source (MFAS emits a 1-s ping 2 times/minute). The threshold for the
onset of TTS for detonations is a dual criteria: 182 dB re 1
microPa\2\-sec or 23 psi, which might be received at distances from
345-2,863 m from the centers of detonation based on the types of NEW
involved.
Duration of TTS (Recovery time)--see above. Of all TTS
laboratory studies, some using exposures of almost an hour in duration
or up to 217 SEL, almost all recovered within 1 day (or less, often in
minutes), though in one study (Finneran et al., 2007), recovery took 4
days.
Based on the range of degree and duration of TTS reportedly induced
by exposures to non-pulse sounds of energy higher than that to which
free-swimming marine mammals in the field are likely to be exposed
during HFAS/MFAS testing activities, it is unlikely that marine mammals
would sustain a TTS from MFAS that alters their sensitivity by more
than 20 dB for more than a few days (and the majority would be far less
severe). Also, for the same reasons discussed in the Diel Cycle
section, and because of the short distance within which animals would
need to approach the sound source, it is unlikely that animals would be
exposed to the levels necessary to induce TTS in subsequent time
periods such that their recovery were impeded. Additionally, though the
frequency range of TTS that marine mammals might sustain would overlap
with some of the frequency ranges of their vocalization types, the
frequency range of TTS from MFAS (the source from which TTS would more
likely be sustained because the higher source level and slower
attenuation make it more likely that an animal would be exposed to a
higher level) would not usually span the entire frequency range of one
vocalization type, much less span all types of vocalizations.
For underwater detonations, due to its brief impulse of sounds,
animals have to be at distances from 345-2,863 m from the center of
detonation, based on the

[[Page 3409]]

types of NEW involved to receive the SEL that causes TTS compared to
similar source level with longer durations (such as sonar signals).

Acoustic Masking or Communication Impairment

As discussed in the proposed rule (74 FR 20156; April 30, 2009), it
is also possible that anthropogenic sound could result in masking of
marine mammal communication and navigation signals. However, masking
only occurs during the time of the signal (and potential secondary
arrivals of indirect rays), versus TTS, which occurs continuously for
its duration. Standard HFAS/MFAS sonar pings last on average one second
and occur about once every 24-30 seconds for hull-mounted sources. When
hull-mounted sonar is used in the Kingfisher mode, pulse length is
shorter, but pings are much closer together (both in time and space,
since the vessel goes slower when operating in this mode). For the
sources for which we know the pulse length, most are significantly
shorter than hull-mounted sonar, on the order of several microseconds
to 10s of micro seconds. For hull-mounted sonar, though some of the
vocalizations that marine mammals make are less than one second long,
there is only a 1 in 24 chance that they would occur exactly when the
ping was received, and when vocalizations are longer than one second,
only parts of them are masked. Alternately, when the pulses are only
several microseconds long, the majority of most animals' vocalizations
would not be masked. Masking effects from HFAS/MFAS are expected to be
minimal. Likewise, the masking effects from underwater detonation are
also considered to be unlikely due to the much shorter impulsive
signals from explosions. If masking or communication impairment were to
occur briefly, it would be in the frequency range of MFAS, which
overlaps with some marine mammal vocalizations; however, it would
likely not mask the entirety of any particular vocalization or
communication series because the pulse length, frequency, and duty
cycle of the HFAS/MFAS signal does not perfectly mimic the
characteristics of any marine mammal's vocalizations.

PTS, Injury, or Mortality

The Navy's model estimated that 1 individual of bottlenose dolphin
and 1 individual of Atlantic spotted dolphin could experience severe
lung injury (i.e., mortality) from explosive ordnance activities; and 1
individual each of bottlenose, Atlantic spotted, pantropical spotted,
and spinner dolphins from slight lung injury (Level A harassment) as a
result of the underwater detonation exposures in the range of 76-272 lb
NEW (34-272 kg) in non-territorial waters per year. However, these
estimates do not take into consideration the proposed mitigation
measures. For sonar operations, NMFS believes that many marine mammals
would deliberately avoid exposing themselves to the received levels
necessary to induce injury (i.e., approaching to within approximately
10 m (10.9 yd) of the source). Animals would likely move away from or
at least modify their path to avoid a close approach. Additionally, in
the unlikely event that an animal approaches the sonar vessel at a
close distance, NMFS believes that the mitigation measures (i.e.,
shutdown/power-down zones for HFAS/MFAS) further ensure that animals
would not be exposed to injurious levels of sound. As for underwater
detonations, the animals have to be within the 203 m ZOI to experience
severe lung injury or mortality. NMFS believes it is unlikely that Navy
observers will fail to detect an animal in such a small area during
pre-testing surveys. As discussed previously, the Navy plans to utilize
aerial (when available) in addition to marine observers on vessels to
detect marine mammals for mitigation implementation and indicated that
they are capable of effectively monitoring safety zones. When these
points are considered, NMFS does not believe that any marine mammals
will experience severe lung injury or mortality from exposure to HFAS/
MFAS or underwater detonation. Instead, based on proposed mitigation
and monitoring measures, NMFS preliminary determined that 2 individuals
of bottlenose and Atlantic spotted dolphins, and 1 individual of
pantropical spotted and spinner dolphins would receive slight lung
injury (Level A harassment) as a result of underwater detonation
exposures in the range of 76-272 lb NEW (34-272 kg) in non-territorial
waters per year.
Based on the aforementioned assessment, NMFS determined that
approximately 2 sperm whales, 2 melon-headed whales, 1 short-finned
pilot whale, 2 Risso's dolphins, 614 bottlenose dolphins, 471 Atlantic
spotted dolphins, 23 pantropical spotted dolphins, 5 striped dolphins,
23 spinner dolphins, and 5 Clymene dolphins would experience Level B
harassment (TTS and sub-TTS) as a result of the proposed NSWC PCD RDT&E
sonar and underwater detonation testing activities. These numbers
represent approximately 0.12%, 0.08%, 0.14%, 0.07%, 2.85%, 1.25%,
0.07%, 0.08%, 1.16%, and 0.08% of sperm whales, melon-headed whales,
short-finned pilot whale, rough-toothed dolphins, bottlenose dolphins,
Atlantic spotted dolphins, pantropical spotted dolphins, striped
dolphins, spinner dolphins, and Clymene dolphins, respectively in the
vicinity of the proposed NSWC PCD Study Area (calculation based on NMFS
2007 US Atlantic and Gulf of Mexico Marine Mammal Stock Assessment).
In addition, the Level A takes of 2 bottlenose, 2 Atlantic spotted,
1 pantropical spotted, and 1 spinner dolphins represent 0.009%, 0.005%,
0.003%, and 0.050% of these species in the vicinity of the proposed
NSWC PCD Study Area (calculation based on NMFS 2007 US Atlantic and
Gulf of Mexico Marine Mammal Stock Assessment). Given these very small
percentages, NMFS does not expect there to be any long-term adverse
effect on the populations of the aforementioned dolphin species. No
marine mammals are expected to be killed as a result of these
activities.
Based on the supporting analyses, which suggest that that no marine
mammals will be killed as a result of these activities, only 6
individuals of dolphins (2 bottlenose, 2 Atlantic spotted, 1
pantropical spotted, and 1 spinner dolphins) would experience injury
(Level A harassment), and no more than a small percentage of the
individuals of any affected species will be taken in the form of short-
term Level B harassment per year.
Additionally, the aforementioned take estimates do not account for
the implementation of mitigation measures. With the implementation of
mitigation and monitoring measures, NMFS expects that the takes would
be reduced further. Coupled with the fact that these impacts will
likely not occur in areas and times critical to reproduction, NMFS has
determined that the total taking over the 5-year period of the
regulations and subsequent LOAs from the Navy's NSWC PCD RDT&E mission
activities will have a negligible impact on the marine mammal species
and stocks present in the NSWC PCD Study Area.

Subsistence Harvest of Marine Mammals

NMFS has determined that the total taking of marine mammal species
or stocks from the Navy's mission activities in the NSWC PCD study area
would not have an unmitigable adverse impact on the availability of the
affected species or stocks for subsistence uses, since there are no
such uses in the specified area.

[[Page 3410]]

ESA

There are six marine mammal species of which NMFS has jurisdiction
that are listed as endangered under the ESA that could occur in the
NSWC PCD Study Area: humpback whale, North Atlantic right whale, blue
whale, fin whale, sei whale, and sperm whale.
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.
The Biological Opinion was issued on September 15, 2009, and concludes
that the proposed RDT&E activities are likely to adversely affect but
are not likely to jeopardize the continued existence of these
threatened and endangered species under NMFS jurisdiction.

NEPA

NMFS participated as a cooperating agency on the Navy's Final
Environmental Impact Statement (FEIS) for the NSWC PCD. NMFS
subsequently adopted the Navy's EIS/OEIS for the purpose of complying
with the MMPA.

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 the NSWC PCD's RDT&E activities utilizing MFAS/HFAS and
underwater explosives 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 NSWC PCD 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.
The Office of Management and Budget has determined that this rule
is not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified at the proposed rule stage that this 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 RFA. This rulemaking authorizes the take of marine
mammals incidental to a specified activity. The specified activity
defined in the final rule includes the use of underwater detonations,
which are only used by the U.S. military, during RDT&E activities that
are only conducted by the U.S. Navy. Additionally, 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. The U.S Navy has a compelling national
policy reason to continue military readiness activities without
interruption in its Gulf of Mexico Operating Areas, i.e., the NSWC PCD
Study Area. As discussed below, suspension/interruption of the Navy's
ability to train, for even a small number of days, disrupts vital
sequential RDT&E activities and certification processes essential to
our national security.
In order to meet its national security objectives, the Navy must
continually maintain its ability to operate in a challenging at-sea
environment, conduct military operations, control strategic maritime
transit routes and international straits, and protect sea lines of
communications that support international commerce. To meet these
objectives, the Navy must continually conduct RDT&E activities. These
activities are critical because individual Navy units and Strike
Groups/Amphibious Readiness Groups (ARG) currently operate in, or need
to utilize highly advantaged technologies to support mission
activities.

List of Subjects in 50 CFR Part 218

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

Dated: January 13, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.

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

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

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

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

0
2. Subpart S is added to part 218 to read as follows:
Subpart S--Taking Marine Mammals Incidental to U.S. Naval Surface
Warfare Center Panama City Division Mission Activities
Sec.
218.180 Specified activity and specified geographical area and
effective dates.
218.181 Permissible methods of taking.
218.182 Prohibitions.
218.183 Mitigation.
218.184 Requirements for monitoring and reporting.
218.185 Applications for Letters of Authorization.
218.186 Letters of Authorization.
218.187 Renewal of Letters of Authorization and adaptive management.
218.188 Modifications to Letters of Authorization.

Subpart S--Taking Marine Mammals Incidental to U.S. Navy Mission
Activities in the Naval Surface Warfare Center Panama City Division

Sec. 218.180 Specified activity and specified geographical area and
effective dates.

(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occur incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs within the NSWC PCD Study Area, which includes St. Andrew Bay
(SAB) and military warning areas (areas within the GOM subject to
military operations) W-151 (includes Panama City Operating Area), W-155
(includes Pensacola Operating Area), and W-470, as described in Figures
2-1 and 2-2 of the Navy's application for the Letter of Authorization
(LOA). The NSWC PCD Study Area includes a Coastal Test Area, a Very
Shallow Water Test Area, and Target and Operational Test Fields. The
NSWC PCD Research, Development, Test, and Evaluation (RDT&E) activities
may be conducted anywhere within the existing military

[[Page 3411]]

operating areas and SAB from the mean high water line (average high
tide mark) out to 222 km (120 nm) offshore. The locations and
environments include:
(1) Test area control sites adjacent to NSWC PCD.
(2) Wide coastal shelf 97 km (52 nm) distance offshore to 183 m
(600 ft), including bays and harbors.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities within the designated
amounts of use:
(1) The use of the following high frequency active sonar (HFAS) and
mid-frequency active sonar (MFAS) or similar sources for U.S. Navy
mission activities in territorial waters in the amounts indicated
below:
(i) AN/SQS-53/56 Kingfisher--up to 15 hours over the course of 5
years (an average of 3 hours per year);
(ii) Sub-bottom profiler (2-9 kHz)--up to 105 hours over the course
of 5 years (an average of 21 hours per year);
(iii) REMUS SAS-LF (center frequency 15 kHz)--up to 60 hours over
the course of 5 years (an average of 12 hours per year);
(iv) REMUS Modem--up to 125 hours over the course of 5 years (an
average of 25 hours per year);
(v) Sub-bottom profiler (2-16 kHz)--up to 120 hours over the course
of 5 years (an average of 24 hours per year);
(vi) AN/SQQ-32--up to 150 hours over the course of 5 years (an
average of 30 hours per year);
(vii) REMUS-SAS-LF (center frequency 20 kHz)--up to 100 hours over
the course of 5 years (an average of 20 hours per year);
(viii) SAS-LF--up to 175 hours over the course of 5 years (an
average of 35 hours per year);
(ix) AN/WLD-1 RMS-ACL--up to 168 hours over the course of 5 years
(an average of 33.5 hours per year);
(x) BPAUV Sidescan (center frequency 75 kHz)--up to 125 hours over
the course of 5 years (an average of 25 hours per year);
(xi) TVSS--up to 75 hours over the course of 5 years (an average of
15 hours per year);
(xii) F84Y--up to 75 hours over the course of 5 years (an average
of 15 hours per year);
(xiii) BPAUV Sidescan (center frequency 102.5 kHz)--up to 125 hours
over the course of 5 years (an average of 25 hours per year);
(xiv) REMUS-SAS-HF--up to 50 hours over the course of 5 years (an
average of 10 hours per year);
(xv) SAS-HF--up to 58 hours over the course of 5 years (an average
of 11.5 hours per year);
(xvi) AN/SQS-20--up to 2725 hours over the course of 5 years (an
average of 545 hours per year);
(xvii) AN/WLD-11 RMS Navigation--up to 75 hours over the course of
5 years (an average of 15 hours per year); and
(xviii) BPAUV Sidescan (center frequency 120 kHz)--up to 150 hours
over the course of 5 years (an average of 30 hours per year).
(2) The use of the following high frequency active sonar (HFAS) and
mid-frequency active sonar (MFAS) or similar sources for U.S. Navy
mission activities in non-territorial waters in the amounts indicated
below:
(i) AN/SQS-53/56 Kingfisher--up to 5 hours over the course of 5
years (an average of 1 hour per year);
(ii) Sub-bottom profiler (2-9 kHz)--up to 5 hours over the course
of 5 years (an average of 1 hour per year);
(iii) REMUS Modem--up to 60 hours over the course of 5 years (an
average of 12 hours per year);
(iv) Sub-bottom profiler (2-16 kHz)--up to 5 hours over the course
of 5 years (an average of 1 hour per year);
(v) AN/SQQ-32--up to 5 hours over the course of 5 years (an average
of 1 hour per year);
(vi) SAS-LF--up to 75 hours over the course of 5 years (an average
of 15 hours per year);
(vii) AN/WLD-1 RMS-ACL--up to 25 hours over the course of 5 years
(an average of 5 hours per year);
(viii) BPAUV Sidescan (center frequency 75 kHz)--up to 190 hours
over the course of 5 years (an average of 38 hours per year);
(ix) TVSS--up to 83 hours over the course of 5 years (an average of
16.5 hours per year);
(x) F84Y--up to 75 hours over the course of 5 years (an average of
15 hours per year);
(xi) REMUS-SAS-HF--up to 125 hours over the course of 5 years (an
average of 25 hours per year);
(xii) SAS-HF--up to 75 hours over the course of 5 years (an average
of 15 hours per year);
(xiii) AN/AQS-20--up to 75 hours over the course of 5 years (an
average of 15 hours per year); and
(xiv) BPAUV Sidescan (center frequency 120 kHz)--up to 125 hours
over the course of 5 years (an average of 25 hours per year).
(3) Ordnance operations for U.S. Navy mission activities in
territorial waters in the amounts indicated below:
(i) Range 1 (0-10 lb)--up to 255 detonations over the course of 5
years (an average of 51 detonations per year);
(ii) Range 2 (11-75 lb)--up to 15 detonations over the course of 5
years (an average of 3 detonations per year); and
(iii) Line charges--up to 15 detonations over the course of 5 years
(an average of 3 detonations per year).
(4) Ordnance operations for U.S. Navy mission activities in non-
territorial waters in the amounts indicated below:
(i) Range 3 (76-600 lb)--up to 80 detonations over the course of 5
years (an average of 16 detonations per year).
(ii) Reserved.
(5) Projectile firing operations for U.S. Navy mission activities
in non-territorial waters in the amounts indicated below:
(i) 5 in. Naval gunfire--up to 300 rounds over the course of 5
years (an average of 60 rounds per year);
(ii) 40 mm rounds--up to 2,400 rounds over the course of 5 years
(an average of 480 rounds per year);
(iii) 30 mm rounds--up to 3,000 rounds over the course of 5 years
(an average of 600 rounds per year);
(iv) 20 mm rounds--up to 14,835 rounds over the course of 5 years
(an average of 2,967 rounds per year);
(v) 76 mm rounds--up to 1,200 rounds over the course of 5 years (an
average of 240 rounds per year);
(vi) 25 mm rounds--up to 2,625 rounds over the course of 5 years
(an average of 525 rounds per year); and
(vii) Small arms--up to 30,000 rounds over the course of 5 years
(an average of 6,000 rounds per year).
(d) Regulations are effective January 21, 2010, through January 21,
2015.

Sec. 218.181 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 218.186 of this chapter, the Holder of the Letter of
Authorization may incidentally, but not intentionally, take marine
mammals within the area described in Sec. 218.180(b), provided the
activity is in compliance with all terms, conditions, and requirements
of these regulations and the appropriate Letter of Authorization.
(b) The incidental take of marine mammals under the activities
identified in Sec. 218.180(c) is limited to the following species, by
the indicated method of take and the indicated number of times:
(1) Level B Harassment:
(i) Sperm whale (Physeter macrocephalus)--10 (an average of 2
annually),
(ii) Risso's dolphin (Grampus griseus)--10 (an average of 2
annually);
(iii) Bottlenose dolphin (Tursiops truncatus)--3,070 (an average of
614 annually);
(iv) Atlantic spotted dolphin (Stenella frontalis)--2,355 (an
average of 471 annually);

[[Page 3412]]

(v) Pantropical spotted dolphin (S. attenuata)--115 (an average of
23 annually);
(vi) Striped dolphin (S. coeruleoalba)--25 (an average of 5
annually);
(vii) Spinner dolphin (S. longirostris)--115 (an average of 23
annually);
(viii) Melon-headed whale (Peponocephala electra)--10 (an average
of 2 annually);
(ix) Short-finned pilot whale (Globicephala macrorhynchus)--5 (an
average of 1 annually);
(x) Clymene dolphin (S. clymene)--25 (an average of 5 annually);
(2) Level A Harassment:
(i) Bottlenose dolphin (Tursiops truncatus)--10 (an average of 2
annually);
(ii) Atlantic spotted dolphin (Stenella frontalis)--10 (an average
of 2 annually);
(iii) Pantropical spotted dolphin (S. attenuata)--5 (an average of
1 annually);
(ix) Spinner dolphin (S. longirostris)--5 (an average of 1
annually).

Sec. 218.182 Prohibitions.

Notwithstanding takings contemplated in Sec. 218.181 and
authorized by a Letter of Authorization issued under Sec. 216.106 of
this chapter and Sec. 218.186, no person in connection with the
activities described in Sec. 218.180 may:
(a) Take any marine mammal not specified in Sec. 218.181(b);
(b) Take any marine mammal specified in Sec. 218.181(b) other than
by incidental take as specified in Sec. 218.181(b)(1) and (2);
(c) Take a marine mammal specified in Sec. 218.181(b) 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. 216.106 of this chapter and Sec. 218.186.

Sec. 218.183 Mitigation.

When conducting RDT&E activities identified in Sec. 218.180(c),
the mitigation measures contained in this subpart and subsequent
Letters of Authorization issued under Sec. Sec. 216.106 of this
chapter and Sec. 218.186 must be implemented. These mitigation
measures include, but are not limited to:
(a) Mitigation Measures for HFAS/MFAS Operations: (1) Personnel
Training: (i) All marine observers onboard platforms involved in NSWC
PCD RDT&E activities shall complete Marine Species Awareness Training
(MSAT).
(ii) Marine observers shall be trained in the most effective means
to ensure quick and effective communication within the command
structure in order to facilitate implementation of mitigation measures
if marine species are spotted.
(2) Marine Observer Responsibilities:
(i) On the bridge of surface vessels, there shall always be at
least one to three marine species awareness trained observer(s) on
watch whose duties include observing the water surface around the
vessel.
(A) For vessels with length under 65 ft (20 m), there shall always
be at least one marine observer on watch.
(B) For vessels with length between 65-200 ft (20-61 m), there
shall always be at least two marine observers on watch.
(C) For vessels with length above 200 ft (61 m), there shall always
be at least three marine observers on watch.
(ii) Each marine observer shall have at their disposal at least one
set of binoculars available to aid in the detection of marine mammals.
(iii) On surface vessels equipped with AN/SQQ-53C/56, pedestal
mounted ``Big Eye'' (20 x 110) binoculars shall be present and in good
working order to assist in the detection of marine mammals in the
vicinity of the vessel.
(iv) Marine observers shall employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
(v) Marine observers shall scan the water from the vessel to the
horizon and be responsible for ensuring that all contacts in their
sector follow the below protocols:
(A) In searching the assigned sector, the marine observer shall
always start at the forward part of the sector and search aft (toward
the back).
(B) To search and scan, the marine observer shall 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.
(C) The marine observer shall scan for approximately five seconds
in as many small steps as possible across the field seen through the
binoculars.
(D) The marine observer shall search the entire sector in
approximately five-degree steps, pausing between steps for
approximately five seconds to scan the field of view.
(E) At the end of the sector search, the glasses would be lowered
to allow the eyes to rest for a few seconds, and then the marine
observer shall search back across the sector with the naked eye.
(vi) After sunset and prior to sunrise, marine observers shall
employ Night Lookout Techniques in accordance with the Lookout Training
Handbook.
(vii) At night, marine observers shall scan the horizon in a series
of movements that would allow their eyes to come to periodic rests as
they scan the sector. When visually searching at night, marine
observers shall 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.
(viii) Marine observers shall be responsible for reporting all
objects or anomalies sighted in the water (regardless of the distance
from the vessel) to the Test Director or the Test Director's designee.
(3) Operating Procedures:
(i) The Test Director or the Test Director's designee shall
maintain the logs and records documenting RDT&E activities should they
be required for event reconstruction purposes. Logs and records will be
kept for a period of 30 days following completion of a RDT&E mission
activity.
(ii) A Record of Environmental Consideration shall be included in
the Test Plan prior to the test event to further disseminate the
personnel testing requirement and general marine mammal mitigation
measures.
(iii) Test Directors shall make use of marine species detection
cues and information to limit interaction with marine species to the
maximum extent possible consistent with safety of the vessel.
(iv) All personnel engaged in passive acoustic sonar operation
(including aircraft or surface vessels) shall monitor for marine mammal
vocalizations and report the detection of any marine mammal to the Test
Director or the Test Director's designee for dissemination and
appropriate action.
(v) During HFAS/MFAS mission activities, personnel shall utilize
all available sensor and optical systems (such as Night Vision Goggles)
to aid in the detection of marine mammals.
(vi) Navy aircraft participating in RDT&E activities at sea shall
conduct and maintain surveillance for marine species of concern as long
as it does not violate safety constraints or interfere with the
accomplishment of primary operational duties.
(vii) Marine mammal detections shall be immediately reported to the
Test Director or the Test Director's designee for further dissemination
to vessels in the vicinity of the marine species as appropriate where
it is reasonable to conclude that the course of the vessel will likely
result in a closing of the distance to the detected marine mammal.

[[Page 3413]]

(viii) Safety Zones--When marine mammals are detected by any means
(aircraft, shipboard marine observer, or acoustically) the Navy will
ensure that HFAS/MFAS transmission levels are limited to at least 6 dB
below normal operating levels if any detected marine mammals are within
1,000 yards (914 m) of the sonar source (the bow).
(A) Vessels shall continue to limit maximum HFAS/MFAS transmission
levels by this 6-dB factor until the marine mammal has been seen to
leave the area, has not been detected for 30 minutes, or the vessel has
transited more than 2,000 yards (1,828 m) beyond the location of the
last detection.
(B) The Navy shall ensure that HFAS/MFAS transmissions will be
limited to at least 10 dB below the equipment's normal operating level
if any detected animals are within 500 yards (457 m) of the sonar
source. Vessels will 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
2,000 yards (1,828 m) beyond the location of the last detection.
(C) The Navy shall ensure that HFAS/MFAS transmissions are ceased
if any detected marine mammals are within 200 yards (183 m) of the
sonar source. HFAS/MFAS will not resume until the marine mammal has
been seen to leave the area, has not been detected for 30 minutes, or
the vessel has transited more than 2,000 yards (1,828 m) beyond the
location of the last detection.
(D) Special conditions applicable for dolphins only: If, after
conducting an initial maneuver to avoid close quarters with dolphins,
the Officer of the Deck concludes that dolphins are deliberately
closing to ride the vessel's bow wave, no further mitigation actions
are necessary while the dolphins continue to exhibit bow wave riding
behavior.
(E) If the need for power-down should arise as detailed in ``Safety
Zones'' above, Navy shall follow the requirements as though they were
operating at 235 dB--the normal operating level (i.e., the first power-
down will be to 229 dB, regardless of at what level above 235 sonar was
being operated).
(ix) Prior to start up or restart of active sonar, operators will
check that the Safety Zone radius around the sound source is clear of
marine mammals.
(x) Sonar levels (generally)--Navy shall operate sonar at the
lowest practicable level, not to exceed 235 dB, except as required to
meet RDT&E objectives.
(b) Mitigation Measures for Ordnance and Projectile Firing: (1) No
detonations over 34 kg (75 lb) shall be conducted in territorial
waters, except the line charge detonation, which is a 107 m (350 ft).
(2) The number of live mine detonations shall be minimized and the
smallest amount of explosive material possible to achieve test
objectives will be used.
(3) Activities shall be coordinated through the Environmental Help
Desk to allow potential concentrations of detonations in a particular
area over a short time to be identified and avoided.
(4) Visual surveys and aerial surveys of the clearance zones
specified in Sec. 218.183(b)(6)(i) through (iii) shall be conducted in
accordance with Sec. 218.184(c) for all test operations that involve
detonation events with large net explosive weight (NEW). Any protected
species sighted will be reported.
(5) Line charge tests shall not be conducted during the nighttime.
(6) Additional mitigation measures shall be determined through the
NSWC PCD's Environmental Review Process based on test activities
including the size of detonations, test platforms, and environmental
effects documented in the Navy's EIS/OEIS. Clearance zones must be
determined based on the upper limit of different ranges of net
explosive weight (NEW) used in the tests, as listed below:
(i) NEW between 76-600 lb: clearance zone is 2,863 m (9,393 ft);
(ii) NEW between 11-75 lb: clearance zone is 997 m (2,865 ft); and
(iii) NEW less than 11 lb--clearance zone is 345 m (1,132 ft).
(c) Mitigation Measures for Surface Operations: (1) While underway,
vessels shall have at least one to three marine species awareness
trained observers (based on vessel length) with binoculars. As part of
their regular duties, marine observers shall watch for and report to
the Test Director or Test Director's designee the presence of marine
mammals.
(i) For vessels with length under 65 ft (20 m), there shall always
be at least one marine observer on watch.
(ii) For vessels with length between 65-200 ft (20-61 m), there
shall always be at least two marine observers on watch.
(iii) For vessels with length above 200 ft (61 m), there shall
always be at least three marine observers on watch.
(2) Marine observers shall employ visual search procedures
employing a scanning method in accordance with the Lookout Training
Handbook (NAVEDTRA 12968-D).
(3) While in transit, naval vessels shall be alert at all times,
use extreme caution, and proceed at a ``safe speed'' (the minimum speed
at which mission goals or safety will not be compromised) so that the
vessel can take proper and effective action to avoid a collision with
any marine animal and can be stopped within a distance appropriate to
the prevailing circumstances and conditions.
(4) When marine mammals have been sighted in the area, Navy vessels
shall increase vigilance and shall implement measures to avoid
collisions with marine mammals and avoid activities that might result
in close interaction of naval assets and marine mammals. Actions shall
include changing speed and/or direction and are dictated by
environmental and other conditions (e.g., safety, weather).
(5) Naval vessels shall maneuver to keep at least 500 yd (460 m)
away from any observed whale and avoid approaching whales head-on. This
requirement does not apply if a vessel's safety is threatened, such as
when change of course will create an imminent and serious threat to a
person, vessel, or aircraft, and to the extent vessels are restricted
in their ability to maneuver. Vessels shall take reasonable steps to
alert other Navy vessels in the vicinity of the whale.
(6) Where operationally feasible and safe, vessels shall avoid
closing to within 200-yd (183 m) of marine mammals other than whales.

Sec. 218.184 Requirements for monitoring and reporting.

(a) The Holder of the Letter of Authorization issued pursuant to
Sec. Sec. 216.106 and 218.186 for activities described in Sec.
218.180(c) is required to cooperate with the NMFS when monitoring the
impacts of the activity on marine mammals.
(b) The Holder of the Authorization must notify NMFS immediately
(or as soon as clearance procedures allow) if the specified activity
identified in Sec. 218.180(c) is thought to have resulted in the
mortality or injury of any marine mammals, or in any take of marine
mammals not identified or authorized in Sec. 218.181(b).
(c) The Holder of the Letter of Authorization must conduct all
monitoring and required reporting under the Letter of Authorization,
including abiding by the NSWC PCD Study Area Complex Monitoring Plan,
which is incorporated herein by reference, and which requires the Navy
to implement, at a minimum, the monitoring activities summarized below.
(1) Visual Surveys--Vessel, Aerial and Shore-based: The Holder of
this Authorization shall visually survey a minimum of 2 HFAS/MFAS
activities

[[Page 3414]]

and 2 explosive events per year. If the 53C sonar was being operated,
such activity must be monitored as one of the HFAS/MFAS activities. For
explosive events, one of the monitoring measures shall be focused on a
multiple detonation event.
(i) In accordance with all safety considerations, observations
shall be maximized by working from all available platforms: Vessels,
aircraft, land and/or in combination.
(ii) Vessel and aerial surveys shall be conducted two days before,
during, and one to five days after the NSWC PCD mission activities on
commercial vessels and aircraft.
(iii) Visual surveys shall be conducted during Navy mission
activities that have been identified to provide the highest likelihood
of success.
(iv) The visual survey team shall collect the same data that are
collected by Navy marine observers, including but not limited to:
(A) Location of sighting;
(B) Species (or to the lowest taxa possible);
(C) Number of individuals;
(D) Number of calves present, if any;
(E) Duration of sighting;
(F) Behavior of marine animals sighted;
(G) Direction of travel;
(H) Environmental information associated with sighting event
including Beaufort sea state, wave height, swell direction, wind
direction, wind speed, glare, percentage of glare, percentage of cloud
cover; and
(I) When in relation to Navy exercises did the sighting occur
(before, during or after detonations/exercise).
(v) Animal sightings and relative distance from a particular
activity site shall be used post survey to estimate the number of
marine mammals exposed to different received levels (energy and
pressure of discharge based on distance to the source, bathymetry,
oceanographic conditions and the type and size of detonation) and their
corresponding behavior.
(vi) Any digital photographs that are taken of marine mammals
during visual surveys shall be provided to local researchers for their
regional research.
(vii) The Holder of the Letter of Authorization shall, when
conducting RDT&E activities in the NSWC PCD Study Area, implement the
following monitoring methods:
(A) Aerial surveys:
(1) During NSWC PCD sonar related mission activities, an aerial
survey team shall fly transects relative to a Navy surface vessel that
is conducting the mission activities.
(2) The aerial survey team shall collect both visual sightings and
behavioral observations of marine animals.
(3) These transect data shall provide an opportunity to collect
data of marine mammals at different received levels and their
behavioral responses and movement relative to the Navy vessel's
position.
(4) Aerial surveys shall include time with and without test events
in order to compare density, geographical distribution and behavioral
observations.
(5) Behavioral observation methods shall involve three
professionally trained marine mammal observers and a pilot. Two
observers shall observe behaviors, one with hand-held binoculars and
one with the naked eye.
(6) Detailed behavioral focal observations of cetaceans shall be
recorded including the following variables where possible: species (or
to the lowest taxa possible), group size and composition (number of
calves, etc.), latitude/longitude, surface and dive durations and
times, number and spacing/times of respirations, conspicuous behaviors
(e.g., breach, tail slap, etc.), behavioral states, orientation and
changes in orientation, estimated group travel speed, inter-individual
distances, defecation, social interactions, aircraft speed, aircraft
altitude, distance to focal group (using the plane's radar) and any
unusual behaviors or apparent reactions.
(B) Vessel Surveys:
(1) Vessel surveys shall be designed to maximize detections of any
target species near mission activity event for focal follows.
(2) Systematic transects shall be used to locate marine mammals. In
the course of conducting these surveys, the vessel(s) shall deviate
from transect protocol to collect behavioral data particularly if a
Navy vessel is visible on the horizon or closer.
(3) While the Navy vessels are within view, attempts shall be made
to position the dedicated survey vessel in the best possible way to
obtain focal follow data in the presence of the Navy mission
activities. If Navy vessels are not in view, then the vessel shall
begin a systematic line transect surveys within the area to assess
marine mammal occurrence and observe behavior.
(4) Post-analysis shall focus on how the location, speed and vector
of the survey vessel and the location and direction of the sonar source
(e.g. Navy surface vessel) relates to the animal.
(5) Any other vessels or aircraft observed in the area shall also
be documented.
(C) Shore-based Surveys:
(1) Shore-based monitors shall observe explosive events that are
planned in advance to occur adjacent to nearshore areas where there are
elevated coastal structures (e.g. lookout tower at Eglin Air Force
Base) or topography, and shall use binoculars or theodolite to augment
other visual survey methods.
(2) Shore-based surveys of the detonation area and nearby beaches
shall be conducted for stranded marine animals following nearshore
events. If any distressed, injured or stranded animals are observed, an
assessment of the animal's condition (alive, injured, dead, or degree
of decomposition) shall be reported immediately to the Navy for
appropriate action and the information shall be transmitted immediately
to NMFS.
(3) If animals are observed prior to or during an explosion, a
focal follow of that individual or group shall be conducted to record
behavioral responses.
(2) Passive Acoustic Monitoring (PAM): The Holder of this
Authorization shall visually survey a minimum of 2 HFAS/MFAS activities
and 2 explosive events per year. If the 53C sonar was being operated,
such activity must be monitored as one of the HFAS/MFAS activities. For
explosive events, one of the monitoring measures shall be focused on a
multiple detonation event.
(i) The Navy shall use towed or over-the-side passive acoustic
monitoring device/hydrophone array when feasible in the NSWC PCD Study
Area for PAM.
(ii) The array shall be deployed for each of the days the ship is
at sea.
(iii) The array shall be able to detect low frequency vocalizations
(less than 1,000 Hz) for baleen whales and relatively high frequency
vocalizations (up to 30 kHz) for odontocetes.
(iv) These buoys shall be left in place for a long enough duration
(e.g. months) that data are collected before, during and outside of
mission activities.
(v) Acoustic data collected from the buoys shall be used in order
to detect, locate, and potentially track calling whales/dolphins.
(3) Marine Mammal Observers (MMOs) on Navy vessels:
(i) Civilian MMOs aboard Navy vessels shall be used to research the
effectiveness of Navy marine observers, as well as for data collection
during other monitoring surveys.
(ii) MMOs shall be field-experienced observers that are Navy
biologists or contracted observers.
(iii) MMOs shall be placed alongside existing Navy marine observers
during a sub-set of RDT&E events.
(iv) MMOs shall inform the Navy marine observer of any marine
mammal

[[Page 3415]]

sighting so that appropriate action may be taken by the chain of
command. For less biased data, it is recommended that MMOs schedule
their daily observations to duplicate the marine observers' schedule.
(v) MMOs shall monitor for marine mammals from the same height
above water as the Navy marine observers (e.g. bridge wings) and as all
visual survey teams, and they shall collect the same data collected by
Navy marine observers, including but not limited to:
(A) Location of sighting;
(B) Species;
(C) Number of individuals;
(D) Number of calves present, if any;
(E) Duration of sighting;
(F) Behavior of marine animals sighted;
(G) Direction of travel;
(H) Environmental information associated with sighting event
including Beaufort sea state, wave height, swell direction, wind
direction, wind speed, glare, percentage of glare, percentage of cloud
cover; and
(I) When in relation to Navy RDT&E activities did the sighting
occur (before, during or after detonations/exercise).
(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's RDT&E activities utilizing 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).
(e) If there is clear evidence that a marine mammal is injured or
killed as a result of the proposed Navy RDT&E activities (e.g.,
instances in which it is clear that munitions explosions caused the
injury or death) the Naval activities shall be immediately suspended
and the situation immediately reported by personnel involved in the
activity to the Test Director or the Test Director's designee, who will
follow Navy procedures for reporting the incident to NMFS through the
Navy's chain-of-command.
(f) Annual NSWC PCD Report--The Navy shall submit a report annually
on October 1 describing the RDT&E activities conducted and
implementation and results of the NSWC PCD Monitoring Plan (through
August 1 of the same year) and RDT&E activities. Although additional
information will also be gathered, the MMOs collecting marine mammal
data pursuant to the NSWC PCD Monitoring Plan shall, at a minimum,
provide the same marine mammal observation data listed below.
(1) RDT&E Information:
(i) Date and time test began and ended;
(ii) Location;
(iii) Number and types of active sources used in the test;
(iv) Number and types of vessels, aircraft, etc., participated in
the test;
(v) Number and types of underwater detonations;
(vi) Total hours of observation effort (including observation time
when sonar was not operating).
(vii) Total hours of all active sonar source operation;
(viii) Total hours of each active sonar source; and
(ix) Wave height (high, low, and average during the test) in feet.
(2) Individual Marine Mammal Sighting Info:
(i) Location of sighting;
(ii) Species;
(iii) Number of individuals;
(iv) Calves observed (y/n);
(v) Initial detection sensor;
(vi) Indication of specific type of platform observation made from;
(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 <200 yd, 200-500 yd, 500-1,000
yd, 1,000-2,000 yd, or >2,000 yd from sonar source above;
(xii) Mitigation implementation--Whether operation of sonar sensor
was delayed, or sonar was powered or shut down, and how long the delay
was;
(xiii) If the active MFAS in use 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);
(xiv) Observed behavior--Marine observers 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.);
and
(xv) An evaluation of the effectiveness of mitigation measures
designed to avoid exposing marine mammals to HFAS/MFAS. This evaluation
shall identify the specific observations that support any conclusions
the Navy reaches about the effectiveness of the mitigation.
(g) NSWC PCD 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 sonar operations and underwater
explosive events for which individual reports are required in Sec.
218.184 (d-f). This report will be submitted at the end of the fourth
year of the rule (December 2013), covering activities that have
occurred through July 1, 2013.
(h) The Navy shall respond to NMFS comments and requests for
additional information or clarification on the NSWC PCD Comprehensive
Report and the Annual NSWC PCD Report if submitted within 3 months of
receipt. The report 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.
(i) 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. 218.185 Applications for Letters of Authorization.

To incidentally take marine mammals pursuant to these regulations,
the U.S. citizen (as defined by Sec. 216.103 of this chapter)
conducting the activity identified in Sec. 218.180(c) (the U.S. Navy)
must apply for and obtain either an initial Letter of Authorization in
accordance with Sec. 218.186 or a renewal under Sec. 218.187.

Sec. 218.186 Letters of Authorization.

(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 218.187.
(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

[[Page 3416]]

determination that the total number of marine mammals taken by the
activity as a whole will have no more than a negligible impact on the
affected species or stock of marine mammal(s).

Sec. 218.187 Renewal of Letters of Authorization and adaptive
management.

(a) A Letter of Authorization issued under Sec. 216.106 of this
chapter and Sec. 218.186 for the activity identified in Sec.
218.180(c) will be renewed annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 218.185 shall 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 of the monitoring reports required under Sec.
218.184(b); and
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 218.183 and the Letter of
Authorization issued under Sec. Sec. 216.106 of this chapter and
218.186, 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 of this chapter and 218.187 indicates that a
substantial modification 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 NSWC PCD Study Area or other locations).
(2) Findings of the Monitoring Workshop that the Navy will convene
in 2011 (Sec. 218.184(i)).
(3) Compiled results of Navy-funded research and development (R&D)
studies.
(4) Results from specific stranding investigations (either from the
NSWC PCD Study Area or other locations).
(5) Results from general marine mammal and sound research (funded
by the Navy (described below) or otherwise).
(6) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not authorized by these regulations
or subsequent Letters of Authorization.

Sec. 218.188 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. 216.106 of
this chapter and Sec. 218.186 and subject to the provisions of this
subpart shall be made until after notification and an opportunity for
public comment has been provided. For purposes of this paragraph, a
renewal of a Letter of Authorization under Sec. 218.187, without
modification (except for the period of validity), is not considered a
substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 218.181(b), a Letter of
Authorization issued pursuant to Sec. 216.106 of this chapter and
Sec. 218.186 may be substantively modified without prior notification
and an opportunity for public comment. Notification will be published
in the Federal Register within 30 days subsequent to the action.

[FR Doc. 2010-1074 Filed 1-20-10; 8:45 am]
BILLING CODE 3510-22-P