[Federal Register Volume 76, Number 86 (Wednesday, May 4, 2011)]
[Rules and Regulations]
[Pages 25480-25513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10440]



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Vol. 76

Wednesday,

No. 86

May 4, 2011

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 218



Taking and Importing Marine Mammals; Military Training Activities 
Conducted Within the Gulf of Alaska Temporary Maritime Activities Area; 
Final Rule

  Federal Register / Vol. 76 , No. 86 / Wednesday, May 4, 2011 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 100817363-1137-02]
RIN 0648-BA14


Taking and Importing Marine Mammals; Military Training Activities 
Conducted Within the Gulf of Alaska Temporary Maritime Activities Area

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), issues 
regulations to govern the unintentional taking of marine mammals 
incidental to training activities conducted in the Gulf of Alaska (GoA) 
Temporary Maritime Activities Area (TMAA) for the period April 2011 
through April 2016. The Navy's activities are considered military 
readiness activities pursuant to the Marine Mammal Protection Act 
(MMPA), as amended by the National Defense Authorization Act for Fiscal 
Year 2004 (NDAA). These regulations, which allow for the issuance of 
``Letters of Authorization'' (LOAs) for the incidental take of marine 
mammals during the described activities and specified timeframes, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, as well as requirements pertaining to the 
monitoring and reporting of such taking.

DATES: Effective May 4, 2011 through May 4, 2016.

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

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Brian D. Hopper, or 
Michelle Magliocca, Office of Protected Resources, NMFS, (301) 713-
2289.

SUPPLEMENTARY INFORMATION:

Availability of Supporting Information

    Extensive SUPPLEMENTARY INFORMATION was provided in the proposed 
rule for this activity, which was published in the Federal Register on 
Tuesday, October 19, 2010 (75 FR 64508). This information will not be 
reprinted here in its entirety; rather, all sections from the proposed 
rule will be represented herein and will contain either a summary of 
the material presented in the proposed rule or a note referencing the 
page(s) in the proposed rule where the information may be found.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as: ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    The National Defense Authorization Act of 2004 (NDAA) (Public Law 
108-136) modified the MMPA by removing the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA): ``any act 
that injures or has the significant potential to injure a marine mammal 
or marine mammal stock in the wild [Level A Harassment]; or any act 
that disturbs or is likely to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of natural behavioral patterns, 
including, but not limited to, migration, surfacing, nursing, breeding, 
feeding, or sheltering, to a point where such behavioral patterns are 
abandoned or significantly altered [Level B Harassment].

Summary of Request

    In March 2009, NMFS received an application from the Navy 
requesting authorization to take individuals of 20 species of marine 
mammals (15 cetaceans and 5 pinnipeds) incidental to upcoming training 
activities to be conducted from April 2011 through April 2016 in the 
GoA TMAA, which is a 42,146 square nautical mile (nm\2\) (145,482 
km\2\) polygon roughly the shape of a 300 nm (555.6 km) by 150 nm 
(277.8 km) rectangle oriented northwest to southeast in the long 
direction. NMFS subsequently requested additional information, which 
was provided in November 2009 in the form of a revised application. 
These training activities are classified as military readiness 
activities under the provisions of the NDAA of 2004. These military 
readiness activities may incidentally take marine mammals within the 
TMAA by exposing them to sound from mid-frequency or high-frequency 
active sonar (MFAS/HFAS) or underwater detonations. The Navy requested 
authorization to take individuals of 20 species of cetaceans and 
pinnipeds by Level B Harassment. Further, although it is neither 
anticipated to occur, nor does the Navy's model factor in any potential 
benefits from the implementation of mitigation measures, the Navy still 
requested authorization to take, by injury or mortality, up to 15 
individual beaked whales (of any of the following species as a 
conservative (i.e., overestimation) measure: Baird's beaked whale, 
Cuvier's beaked whale, Stejneger's beaked whale) over the course of the 
5-year regulations.

Background of Request

    The proposed rule contains a description of the Navy's mission, 
their responsibilities pursuant to Title 10 of the United States Code, 
and the specific purpose and need for the activities for which they 
requested incidental take authorization. The description contained in 
the proposed rule has not changed (75 FR 64508). The Navy plans to 
conduct up to two, 21-day training exercises (composed of smaller 
exercise components) per year between the months of April and October 
in the Gulf of Alaska.

Overview of the GoA TMAA

    The proposed rule contains a description of the GoA TMAA. The 
description contained in the proposed rule has not changed (75 FR 
64508). The GoA TMAA is a roughly rectangular area approximately 300 nm 
(555.6 km)

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long by 150 nm (277.8 km) wide (42,146 nm\2\ (145,482 km\2\)), situated 
south of Prince William Sound and east of Kodiak Island.

Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule describes the nature 
and number of anti-submarine warfare (ASW) exercises and anti-surface 
warfare (ASUW) exercises involving both mid- and high-frequency active 
sonar (MFAS and HFAS), as well as explosive detonations. It also 
describes the sound sources and explosive types used (75 FR 64508, 
pages 64509-64518). The narrative description of the action contained 
in the proposed rule has not changed. Tables 1, 2, and 3 list the types 
of sonar sources and the estimated yearly use, summarize the 
characteristics of the exercise types, and list the explosive types 
used. One acoustic source mentioned in the text of the proposed rule, 
the MK-39 EMATT target, was not included in Table 1 in the proposed 
rule due to an oversight. It has been added to Table 1 in this final 
rule. Also, Table 1 in the proposed rule contained an error in the 
number of AN/SSQ-110A (IEER) sonobuoys. The Navy proposes to use 80 of 
these sonobuoys annually, which has been corrected in Table 1 in this 
final rule.
    The Navy has carefully characterized the training activities 
planned for the GoA TMAA over the 5 years covered by these regulations; 
however, evolving real-world needs necessitate flexibility in both the 
types and amounts of sound sources used in annual activities. In the 
proposed rule, NMFS included regulatory text (see Sec.  218.122(c)) 
allowing for inter-annual flexibility in the amount of use of specific 
sound and explosive sources, provided it does not affect the take 
estimates and anticipated impacts in a manner that changes our 
analysis. However, additional minor changes to the text are needed to 
address flexibility in the types of sources.
    In some cases, the proposed rule identified the most representative 
or highest power source to represent a group of known similar sources. 
Additionally, the Navy regularly modifies or develops new technology, 
often in the way of sound sources that are similar to, but not exactly 
the same as, other sources. In this refinement to the final rule's 
regulatory text (Sec.  218.120 (c)(1) & (2)), we increase flexibility 
by inserting language that will allow for authorization of take 
incidental to the previously identified specified sources or to 
``similar sources,'' provided that the implementation of these changes 
in annual or biennial LOAs does not result in exceeding the incidental 
take analyzed and identified in the final rule.
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Description of Marine Mammals in the Area of the Specified Activities

    Twenty-six marine mammal species or populations/stocks have 
confirmed or possible occurrence within or adjacent to the GoA, 
including seven species of baleen whales (mysticetes), 13 species of 
toothed whales (odontocetes), five species of seals (pinnipeds), and 
the sea otter (mustelid). Nine of these species are ESA-listed and 
considered depleted under the MMPA: blue whale, fin whale, humpback 
whale, sei whale, sperm whale, North Pacific right whale, Cook Inlet 
beluga whale, Steller sea lion, and sea otter. Table 4 summarizes their 
abundance, Endangered Species Act (ESA) status, occurrence, density, 
and likely occurrence in the TMAA during the April to October 
timeframe. The sea otter is managed by the U.S. Fish and Wildlife 
Service and will not be addressed further here. The proposed rule 
contains a discussion of five species (Cook Inlet beluga whale, false 
killer whale, northern right whale dolphin, Risso's dolphin, and short-
finned pilot whale) that are not considered further in the analysis 
because of their rarity in the GoA TMAA and therefore are unlikely to 
be impacted by the training. The proposed rule contains a discussion of 
important areas, including North Pacific right whale and Steller sea 
lion critical habitat, and feeding habitats for marine mammals in the 
GoA. The proposed rule also includes a discussion of marine mammal 
vocalizations. Finally, the proposed rule includes a discussion of the 
methods used to estimate marine mammal density in the GoA TMAA. The 
Description of Marine Mammals in the Area of Specified Activities 
section has not changed from what was in the proposed rule (75 FR 
64508, pages 64518-64524).
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Brief Background on Sound

    The proposed rule contains a section that provides a brief 
background on the principles of sound that are frequently referred to 
in this rulemaking (75 FR 64508, pages 64524-64526). This section also 
includes a discussion of the functional hearing ranges of the different 
groups of marine mammals (by frequency) as well as a discussion of the 
two main sound metrics used in NMFS' analysis (sound pressure level 
(SPL) and sound energy level (SEL)). The information contained in the 
proposed rule has not changed.

Potential Effects of Specified Activities on Marine Mammals

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment (behavioral harassment), Level A Harassment 
(injury), or mortality, including an identification of the number and 
types of take that could occur by Level A or Level 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; and (4) to prescribe 
requirements pertaining to monitoring and reporting.
    In the Potential Effects of Specified Activities on Marine Mammals 
section of the proposed rule, NMFS included a

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qualitative discussion of the different ways that MFAS/HFAS and 
underwater explosive detonations may potentially affect marine mammals 
(some of which NMFS would not classify as harassment), as well as a 
discussion of the potential effects of vessel movement and collision 
(75 FR 64508, pages 64526-64542). Marine mammals may experience direct 
physiological effects (such as threshold shift), acoustic masking, 
impaired communications, stress responses, and behavioral disturbance. 
This section also included a discussion of some of the suggested 
explanations for the association between the use of MFAS and marine 
mammal strandings (such as behaviorally-mediated bubble growth) that 
have been observed a limited number of times in certain circumstances 
(the specific events are also described) (75 FR 64508, pages 64535-
64542). The information contained in the Potential Effects of Specified 
Activities on Marine Mammals section from the proposed rule has not 
changed.
    Later, in the Estimated Take of Marine Mammals section, NMFS 
relates and quantifies the potential effects to marine mammals from 
MFAS/HFAS and underwater detonations of explosives discussed here to 
the MMPA definitions of Level A and Level B Harassment.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.'' The NDAA of 2004 amended 
the MMPA as it relates to military-readiness activities and the ITA 
process such that ``least practicable adverse impact'' shall include 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the ``military readiness activity.'' The 
training activities described in the GoA TMAA application are 
considered military readiness activities.
    NMFS reviewed the proposed GoA TMAA activities and the proposed GoA 
TMAA mitigation measures as described in the Navy's LOA application to 
determine if they would result in the least practicable adverse effect 
on marine mammals. This included a careful balancing of the likely 
benefit of any particular measure to the marine mammals against the 
likely effect of that measure on personnel safety, practicality of 
implementation, and impact on the effectiveness of the ``military-
readiness activity.'' NMFS identified the need to further amplify the 
Navy's plan for how to respond in the event of a stranding in the GoA, 
and the Navy and NMFS subsequently coordinated and produced the draft 
Stranding Response Plan for the GoA, which was made available to the 
public at the NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    NMFS' proposed rule includes a list of the Navy's proposed 
mitigation measures (75 FR 64508, pages 64542-64548), which have been 
included in the regulatory text of this document.
    Based on our evaluation of the proposed measures and other measures 
considered by NMFS or recommended by the public, NMFS has determined 
that the required mitigation measures (including the Adaptive 
Management component, see below) provide adequate means of effecting 
the least practicable adverse impact on marine mammal species or stocks 
and their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, while also considering 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity. The proposed rule 
contains further support for this finding in the Mitigation Conclusion 
section (75 FR 64508, pages 64546-64548). During the public comment 
period, a few mitigation measures not previously considered were 
recommended, and NMFS' analysis of these measures is included in the 
Response to Public Comments section.

Research

    The Navy provides a significant amount of funding and support to 
marine research. In the past five years, the agency funded over $100 
million ($26 million in Fiscal Year 08 alone) to universities, research 
institutions, Federal laboratories, private companies, and independent 
researchers around the world to study marine mammals. The U.S. Navy 
sponsors 70 percent of all U.S. research concerning the effects of 
human-generated sound on marine mammals and 50 percent of such research 
conducted worldwide. Major topics of Navy-supported research include 
the following:
     Better understanding of marine species distribution and 
important habitat areas;
     Developing methods to detect and monitor marine species 
before and during training;
     Understanding the effects of sound on marine mammals, sea 
turtles, fish, and birds; and
     Developing tools to model and estimate potential effects 
of sound.
    This research is directly applicable to fleet training activities, 
particularly with respect to the investigations of the potential 
effects of underwater noise sources on marine mammals and other 
protected species. Proposed training activities employ active sonar and 
underwater explosives, which introduce sound into the marine 
environment.
    The Marine Life Sciences Division of the Office of Naval Research 
currently coordinates six programs that examine the marine environment 
and are devoted solely to studying the effects of noise and/or the 
implementation of technology tools that will assist the Navy in 
studying and tracking marine mammals. The six programs are as follows:
     Environmental Consequences of Underwater Sound
     Non-Auditory Biological Effects of Sound on Marine Mammals
     Effects of Sound on the Marine Environment
     Sensors and Models for Marine Environmental Monitoring
     Effects of Sound on Hearing of Marine Animals
     Passive Acoustic Detection, Classification, and Tracking 
of Marine Mammals
    The Navy has also developed the technical reports referenced within 
this document, which include the Marine Resource Assessment. 
Furthermore, research cruises by NMFS and by academic institutions have 
received funding from the U.S. Navy. For example, in April 2009, the 
U.S. Pacific Fleet contributed approximately $250,000 to support a NMFS 
marine mammal density survey of the GoA's offshore waters. The goal of 
this study was to increase the state of awareness on marine mammal 
occurrence, density, and distribution within the GoA. The Navy-funded 
vessel-based line-transect survey conducted from onboard the NOAA ship 
Oscar Dyson determined marine mammal species distribution and abundance 
in the GoA TMAA. The survey cruise employed multiple observation 
techniques, including visual and passive acoustic observations, as well 
as photographic identifications (Rone et al., 2009). In addition to the 
U.S. Pacific Fleet-funded monitoring initiative, the Chief of Naval 
Operations Environmental Readiness Division and the Office of Naval 
Research have developed a coordinated Science & Technology and Research 
& Development program focused on

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marine mammals and sound. Total Investment in this program between 2004 
and 2008 was $100 million. Fiscal Year 09 funding was $22 million and 
continued funding at levels greater than $14 million is foreseen in 
subsequent years (beyond 2010).
    The Navy has sponsored several workshops to evaluate the current 
state of knowledge and potential for future acoustic monitoring of 
marine mammals. The workshops brought together acoustic experts and 
marine biologists from the Navy and other research organizations to 
present data and information on current acoustic monitoring research 
efforts, and to evaluate the potential for incorporating similar 
technology and methods on instrumented ranges. However, acoustic 
detection, identification, localization, and tracking of individual 
animals still requires a significant amount of research effort to be 
considered a reliable method for marine mammal monitoring. The Navy 
supports research efforts on acoustic monitoring and will continue to 
investigate the feasibility of passive acoustics as a potential 
mitigation and monitoring tool.
    Overall, the Navy will continue to fund marine mammal research, and 
is planning to coordinate long-term monitoring/studies of marine 
mammals on various established ranges and operating areas. The Navy 
will continue to research and contribute to university/external 
research to improve the state of the science regarding marine species 
biology and acoustic effects. These efforts include mitigation and 
monitoring programs; data sharing with NMFS and via the literature for 
research and development efforts; and future research as described 
previously.

Monitoring

    Section 101(a)(5)(A) of the MMPA states that, in order to issue an 
ITA for an activity, NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.

Proposed Monitoring Plan for the GoA TMAA

    The Navy submitted a draft Monitoring Plan for the GoA TMAA which 
may be viewed at NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Navy Monitoring Plans are typically designed as a collection of 
focused ``studies'' to gather data that will allow the Navy to address 
one or more of the following questions:
    (a) Are marine mammals exposed to MFAS/HFAS (1-10 kHz), especially 
at levels associated with adverse effects (i.e., based on NMFS' 
criteria for behavioral harassment, TTS, or PTS)? If so, at what levels 
are they exposed?
    (b) If marine mammals are exposed to MFAS/HFAS, do they 
redistribute geographically as a result of continued exposure? If so, 
how long does the redistribution last?
    (c) If marine mammals are exposed to MFAS/HFAS, what are their 
behavioral responses to various levels?
    (d) What are the behavioral responses of marine mammals that are 
exposed to explosives at specific levels?
    (e) Is the Navy's suite of mitigation measures for MFAS/HFAS and 
explosives (e.g., Protective Measures Assessment Protocol, major 
exercise measures agreed to by the Navy through permitting) effective 
at avoiding TTS, injury, and mortality of marine mammals?
    Given the larger scope of training events within other Navy range 
complexes as compared to the GoA, not all of these original five study 
questions would necessarily be addressed in the final GoA TMAA 
Monitoring Plan. Rather, data collected from the GoA monitoring efforts 
would be used to supplement a consolidated range complex marine mammal 
monitoring report incorporating data from the Hawaii Range Complex, 
Marianas Island Range Complex, Northwest Training Range Complex, and 
Southern California Range Complex.
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists who are experts in their field.
    Monitoring methods proposed for the GoA include use of passive 
acoustic monitoring (PAM) to primarily focus on providing additional 
data for study questions (b) and (c).
    This monitoring plan has been designed to gather data on all 
species of marine mammals that are observed in the GoA TMAA study area; 
however, the Navy will prioritize monitoring efforts for ESA-listed 
species and beaked whale species. The Plan recognizes that deep-diving 
and cryptic species of marine mammals, such as beaked whales and sperm 
whales, may have low probability of visual detection (Barlow and 
Gisiner, 2006). Therefore, methods will be utilized to address this 
issue (e.g., PAM).
    During the comment period on the Notice of Receipt (75 FR 5575, 
February 3, 2010) for the GoA TMAA action, NMFS received multiple 
public comments suggesting that there are inadequate density, 
distribution, and abundance data for marine mammals in the GoA TMAA. As 
mentioned previously, the Navy funded a $250,000 density survey in the 
offshore waters of the GoA TMAA in April, 2009. The Navy developed its 
draft monitoring plan for the GoA TMAA was developed to contribute 
scientific information to the overall NMFS-Navy monitoring goals. It 
selected year-round PAM recorders as the most appropriate long-term 
tool for obtaining more precise marine mammal occurrence data 
(presence/absence) in the GoA TMAA, especially in the offshore waters 
where weather and sea conditions would likely limit the usefulness of 
visual surveys. At other Navy range complexes, results from similar PAM 
recordings have begun to provide better information on species-specific 
occurrence and behavior.
    NMFS believes that we should vigorously target this baseline 
information need with the monitoring plan and, in consideration of the 
public comments that we received on the proposed rule (75 FR 64508, 
October 19, 2010), we worked with the Navy on revising the plan. The 
revised monitoring plan now includes a commitment by the Navy to deploy 
PAM devices in 2011 and 2012 in the GoA TMAA to detect, locate, and 
potentially track vocalizing marine mammals, as well as provide 
seasonal estimates of presence/absence. These devices will be deployed 
year-round, including during Navy training events. Given the potential 
seas states and ocean conditions during both winter and summer, and the 
relatively infrequent Navy presence in the GoA TMAA, PAM represents the 
best long-term monitoring technique to employ within the GoA TMAA. In 
addition to collecting marine mammal vocalization and echolocation data 
before, during, and after any Navy training event, information can be 
inferred as to whether the training event has an effect or no effect on 
observed vocalizations. In 2013 and 2014, the Navy plans to conduct 
further monitoring using either PAM or another survey method. An 
alternate survey technique would ideally be part of a larger focused 
effort during the same time period in coordination with other agencies 
or research organizations working in the area. While the exact extent 
and

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technique to be employed is still undetermined (e.g., including but not 
limited to visual survey), monitoring in 2013 and 2014 is expected to 
receive the same level of fiscal and logistical support as the 2011-
2012 efforts.
    In addition to the Monitoring Plan for the GoA, the Navy has 
established an Integrated Comprehensive Monitoring Program (ICMP). The 
ICMP is a Navy-wide monitoring framework that will provide an 
overarching structure and coordination that will, over time, compile 
data from all Navy range-specific monitoring plans; the GoA TMAA plan 
is just one component of the ICMP. The overall objective of the ICMP is 
to assimilate relevant data collected across Navy range complexes in 
order to answer questions pertaining to the impact of MFAS and 
underwater explosive detonations on marine animals. Top priorities of 
the ICMP include: monitoring Navy training events, particularly those 
involving MFAS and underwater detonations; collecting data to estimate 
the number of individuals exposed to sound levels above current 
regulatory thresholds; assessing the efficacy and practicability of 
monitoring and mitigation tools and techniques and the Navy's current 
mitigation methods; and adding to the overall knowledge base on 
potential behavioral and physiological effects to marine species from 
MFAS and underwater detonations. More information about the ICMP may be 
found in the Monitoring Plan for the GoA.

Monitoring Workshop

    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from other Navy rules 
and LOAs (e.g., the Southern California Range Complex (SOCAL), Hawaii 
Range Complex (HRC), etc.). The Monitoring Workshop participants will 
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 will then analyze the input from the Monitoring 
Workshop participants and determine the best way forward from a 
national perspective. Subsequent to the Monitoring Workshop, NMFS and 
the Navy will apply modifications to monitoring plans as appropriate.

Adaptive Management

    Our understanding of the effects of MFAS and explosives on marine 
mammals is still in its relative infancy, and yet the science in this 
field is evolving fairly quickly. These circumstances make the 
inclusion of an adaptive management component both valuable and 
necessary within the context of 5-year regulations for activities that 
have been associated with marine mammal mortality in certain 
circumstances and locations (though not in the Pacific Ocean or within 
the GoA TMAA). NMFS has included an adaptive management component in 
these regulations, which will allow NMFS to consider new information 
from different sources to determine (in coordination with the Navy and 
with input regarding practicability) on an annual or biennial basis if 
mitigation or monitoring measures should be modified (including 
additions or deletions) if new data suggest that such modifications are 
appropriate for subsequent annual or biennial LOAs.
    The following are some of the possible sources of applicable data: 
(1) 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; (2) compiled results of Navy funded 
research and development (R&D) studies (presented pursuant to the ICMP, 
which is discussed elsewhere in this document); (3) results from 
specific stranding investigations (involving coincident MFAS or 
explosives training or not involving coincident use); (4) results from 
general marine mammal and sound research; and (5) 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.
    Separately, in July, 2010, NMFS and the Navy convened the ``Marine 
Mammals and Sound'' workshop, which brought together science and policy 
experts from the government, the academic community, and non-
governmental organizations with the goals of prioritizing marine mammal 
research needs and opening up a broad discussion of (and potentially 
making recommendations regarding) some of the current management issues 
related to marine mammals and sound. After the information and ideas 
gathered during this workshop are sorted, compiled, and assessed, NMFS 
will use them, as appropriate, to inform our management decisions on 
issues such as appropriate mitigation and monitoring. In addition to 
considering these workshop products in the broader context of all MMPA 
authorizations from the Office of Protected Resources, they will also 
be considered as NMFS and the Navy work through the Adaptive Management 
process outlined for the GOA below.
    Mitigation measures or monitoring requirements could be modified, 
added, or deleted if new information suggests that such modifications 
would have a reasonable likelihood of accomplishing the goals of 
mitigation or monitoring laid out in this final rule and if the 
measures are practicable.

Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' Effective reporting is 
critical both to compliance as well as ensuring that the most value is 
obtained from the required monitoring. The proposed rule contains the 
reporting requirements for the Navy (75 FR 64508, pages 64550-64552), 
and these requirements remain unchanged.

Comments and Responses

    On October 19, 2010 (75 FR 64508), NMFS published a proposed rule 
in response to the Navy's request to take marine mammals incidental to 
military readiness training in the GoA TMAA and solicited comments, 
information, and suggestions concerning the proposed rule. NMFS 
received twelve comment letters from environmental non-governmental 
organizations, the Marine Mammal Commission (MMC), and interested 
members of the public. The comments are summarized, sorted into general 
topic areas, and addressed below. Full copies of the comment letters 
may be accessed at http://www.regulations.gov.
    NMFS worked with the Navy to develop MMPA rules and LOAs for the 
GoA TMAA, Atlantic Fleet Active Sonar Training (AFAST) activities, 
Southern California Range Complex (SOCAL), Hawaii Range Complex (HRC), 
Mariana Islands Range Complex (MIRC), and Northwest Training Range 
Complex (NWTRC). Many of the issues raised in the public comments for 
this rule were also raised for these previous rules, and NMFS 
considered many of the broader issues in the context of all of these 
Navy actions when determining how to address the comments on the GoA 
TMAA. Responses to public comments on AFAST, SOCAL, and HRC were

[[Page 25490]]

published in January 2009, and responses to public comments on MIRC and 
NWTRC were published in August and November 2010, respectively. These 
final rules and their responses to public comments may provide the 
public with additional detail, if needed.

Additional Mitigation Recommendations

    Comment 1: One commenter suggests that aerial surveys before 
SINKEXs (75 FR 64508, p. 64546) should be mandatory, especially when 
the Beaufort Sea State is above 3.
    Response: As stated in the proposed rule, in the event of a 
Beaufort Sea State 4 or above, survey efforts shall be increased within 
the 2 nm (3.7 km) zone around the target. This shall be accomplished 
through the use of an additional aircraft, if available, and conducting 
tight search patterns. The exercise shall not be conducted unless the 2 
nm (3.7 km) zone around the target could be adequately monitored 
visually.
    Comment 2: One commenter suggests that over-flights should be 
required for spotting marine mammals before detonation exercises (75 FR 
64508, p. 64552) because the typical sea state in GoA is usually 
greater than 1.
    Response: As stated in the proposed rule, a series of surveillance 
over-flights shall be conducted within the exclusion and the safety 
zones, prior to and during exercises, when feasible.
    Comment 3: One commenter asked whether the training could be done 
during times of the year that would result in the minimal impact to all 
species. Another commenter asked whether there is another location that 
could be used for at least part of the training, where fewer animals 
would be impacted.
    Response: While several species of baleen whales have periods of 
increased prevalence within the TMAA, these times do not always 
overlap; hence, it is not possible for the Navy to avoid every species 
of marine mammal. Furthermore, most species are more prevalent during 
summer months, which is when the Navy needs to do their exercises. 
Training during the winter months is not an option due to human safety 
concerns. Certain specific types of seasonal and geographic 
restrictions or limitations are impracticable for the Navy's activities 
in the TMAA.
    In response to the second part of the comment, the TMAA was chosen 
very carefully in order to meet the Navy's training requirements and 
allow for the safe operation of ships, aircraft, and submarines. Moving 
the training activities to alternative locations would impact the 
effectiveness of the training and has no known benefit. Moreover, 
satisfying this request is beyond NMFS' authority under current laws. 
Furthermore, the existing marine mammal density and distribution 
information does not suggest that there are specific areas within the 
GoA where training would result in fewer impacts to marine mammals.
    Comment 4: One commenter asked if the military could develop and 
substitute computer-simulated training for at least part or most of the 
training.
    Response: As explained in the Navy's EIS, the Navy often employs 
simulators and synthetic training, but live training in a realistic 
environment is vital to success. The Navy relies on realistic combat-
like training to prepare men and women for deployment. Moreover, a 
simulator cannot match the dynamic nature of the environment, either in 
bathymetry, sound propagation properties, or oceanography. In addition, 
coordinated unit level and Strike Group Training activities require 
multiple crews to interact in a variety of acoustic environments that 
cannot be simulated. Finally, it is a training imperative that crews 
actually use the equipment they will be called upon to operate. For 
more information on the simulated training option please refer to the 
Alternatives Eliminated from Further Consideration section of the 
Navy's EIS.
    Comment 5: One commenter refers to the Navy's claims that it does 
not anticipate beaked whale mortality, yet requests Level A take, and 
states that this is not acceptable; beaked whales require additional 
mitigation and protection from Navy sonar.
    Response: As stated in the proposed rule, evidence from five beaked 
whale strandings (all of which have taken place outside the GoA TMAA, 
and have occurred over approximately a decade) suggests that the 
exposure of beaked whales to MFAS in the presence of certain conditions 
(e.g., multiple units using active sonar, steep bathymetry, constricted 
channels, strong surface ducts, etc.) may result in strandings, 
potentially leading to mortality. Although not all five of these 
physical factors believed to have contributed to the likelihood of 
beaked whale strandings are present, in their aggregate, in the GoA 
TMAA, scientific uncertainty exists regarding what other factors, or 
combination of factors, may contribute to beaked whale strandings. 
Accordingly, to allow for scientific uncertainty regarding contributing 
causes of beaked whale strandings and the exact behavioral or 
physiological mechanisms that can lead to the stranding and/or death, 
the Navy has requested authorization for (and NMFS is authorizing) take 
by injury or mortality. Although NMFS is authorizing take by injury or 
mortality of up to 15 beaked whales over the course of the 5-year 
regulations, the Navy's model did not predict injurious takes of beaked 
whales and neither NMFS nor the Navy anticipates that marine mammal 
strandings or mortality will result from the operation of MFAS during 
Navy exercises within the GoA TMAA. NMFS determined that the impact to 
beaked whales from the Navy's activities 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 and, 
therefore, concluded that the activity would have a negligible impact 
for these species.
    Comment 6: One commenter refers to NMFS' mention of the ENP Alaskan 
resident stock and ENP Alaskan transient stock (75 FR 64508, p. 64571) 
of killer whales and asks if this is the depleted Prince William Sound 
stock. If so, according to the commenter, they require special 
consideration.
    Response: The ENP Alaska resident stock includes the Prince William 
Sound pod; however, this stock of killer whales is not listed as 
``depleted'' under the MMPA. In the Gulf of Alaska, Malkin et al. 
(1999) described two genetically distinct communities of transient 
killer whales that do not interact, the so-called Gulf of Alaska 
transients and the AT1 transients. In 2004, the AT1 transient killer 
whale group was determined by NMFS to be depleted under the MMPA. 
Individuals from this stock may be present in the TMAA; however, the 
Navy's activities are not expected to occur in an area/time of specific 
importance for reproduction, feeding, or other known critical 
behaviors. Furthermore, these large-grouped gregarious animals are very 
likely to be detected by Marine Mammal Observers (MMOs) and Navy 
Lookouts. As stated in the proposed rule, NMFS has determined that the 
Navy's specified activities will have a negligible impact on this 
species.
    Comment 7: The MMC recommends that the rule require the suspension 
of the Navy's activities if a marine mammal is seriously injured or 
killed and the injury or death could be associated with those 
activities. The injury or death should be investigated to determine the 
cause, assess the full impact of the activity or activities and 
determine how activities should be modified to avoid future injuries or 
deaths.

[[Page 25491]]

    Response: NMFS and the Navy have developed a detailed Stranding 
Response Plan for the GoA TMAA that outlines protocols for, and 
describes the underlying rationale for shutdown (in very specific 
circumstances) and investigation in the event that dead or stranded 
animals are found in the vicinity of an exercise. In addition, NMFS' 
regulations include a provision for ``General notification of injured 
or dead marine mammals,'' that requires Navy personnel to notify NMFS 
immediately (or as soon as clearance procedures allow) if an injured, 
stranded, or dead marine mammal is found during or shortly after, and 
in the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or 
underwater explosive detonations. The provision further requires the 
Navy to provide NMFS with species identifications or descriptions of 
the animal(s), the conditions of the animal(s) (including carcass 
condition if the animal is dead), location, time of first discovery, 
observed behaviors (if alive), and photo or video of the animal(s) (if 
available).
    It can take months to years to complete the necessary tests and 
analysis required to determine, with a reasonable amount of certainty, 
the cause of a marine mammal death--and sometimes it is not possible to 
determine it. All but one of the small number of strandings that have 
occurred around the world associated with MFAS exercises have occurred 
concurrent with MFAS exercises that would have been considered 
``major,'' which typically involve multiple surface vessels and last 
for a much longer duration than non-major exercises. Therefore, NMFS 
(with input from the Navy) determined that it was beneficial and 
practicable to preemptively outline an explicit plan (that includes a 
shutdown requirement in certain circumstances) for how to deal with a 
stranding that occurs during a major exercise, and Stranding Response 
Plans were developed for all of the areas in which major exercises are 
conducted. Alternatively, for non-major exercises, the general 
notification provisions apply, under which the Navy would contact NMFS 
as soon as clearance procedures allow and we would determine how best 
to proceed at that time.
    Because: (1) So few strandings have been definitively associated 
with MFAS training in the 60+ years that the U.S. and other countries 
that share information have been conducting MFAS training; (2) the 
exercises conducted in the GoA TMAA are of short duration and 
seasonally limited (i.e., no more than two 21-day exercises, which may 
only be conducted between the months of April and October); and (3) 
investigations take a long time and are not always conclusive, it is 
not reasonable or practicable to require the Navy to shut down every 
time an injured or dead animal is found in the vicinity pending the 
results of an investigation that could take years to conduct.
    However, NMFS and the Navy will implement the Stranding Response 
Plan as written and, as in the past, will work together on a case-by-
case basis within the constraints of our available resources to 
investigate the causes of any stranding or death occurring during a 
non-major exercise. Once investigations are completed and 
determinations made (as feasible), NMFS would use the available 
information to help reduce the likelihood that a similar event would 
recur and would work with the Navy on the necessary steps to ensure 
compliance by the Navy with the MMPA. NMFS and the Navy will develop 
and finalize a Memorandum of Agreement that will streamline and improve 
the way that the Navy assists NMFS during a stranding investigation. 
Finally, the Stranding Response Plan includes a provision for stranding 
debriefs/lessons learned meetings between NMFS and the Navy following a 
stranding response, and the GoA TMAA rule includes an adaptive 
management provision that allows for the modification of mitigation or 
monitoring measures based on new information (like that which might be 
gathered during a stranding response/investigation), as appropriate.
    Comment 8: One commenter states that NMFS' assertion regarding blue 
whales most likely feeding during the summer months should lead to NMFS 
prohibiting Navy activities during this time.
    Response: NMFS stated that, ``like most baleen whales, blue whales 
would most likely feed in the north during summer months (potentially 
the GoA) and head southward in the cooler months.'' However, the GoA 
TMAA activities are not expected to occur in an area/time of specific 
importance for breeding, calving, or other known critical behaviors of 
blue whales. Currently, there are no known specific feeding grounds for 
blue whales within the TMAA. Furthermore, the blue whales' large size 
and detectability makes it unlikely that these animals would be exposed 
to the higher levels of sound expected to result in more severe 
effects. Moreover, training during other times of the year is not an 
option due to human safety concerns.
    Comment 9: One commenter requests that NMFS protect feeding grounds 
for humpback whales and migratory routes for gray whales. In addition, 
this commenter and another commenter request that NMFS protect (e.g., 
prohibit MFAS within) high bathymetric relief areas for beaked whales.
    Response: In the proposed rule, NMFS stated that most baleen 
whales, including humpback and gray whales, would most likely feed in 
the north during summer months, potentially the GoA, and head southward 
in the cooler months. However, the GoA TMAA activities are not expected 
to occur in an area/time of specific importance for breeding, calving, 
or other known critical behaviors. Currently, there are no known 
specific feeding grounds for humpback or gray whales within the TMAA. 
Furthermore, their large size and detectability makes it unlikely that 
these animals would be exposed to the higher levels of sound expected 
to result in more severe effects.
    As indicated in the Navy's EIS and referenced in the proposed rule, 
gray whales have a well-defined north-south migratory path that takes 
them through the GoA twice a year. During migration through the GoA, 
gray whales' primary occurrence extends seaward 15 nm (28 km) from the 
shoreline within a narrow margin of the TMAA's northern boundary. The 
April 2009 survey encountered one group of two gray whales within the 
western edge of the TMAA and two groups well outside the TMAA nearshore 
at Kodiak Island (Rone et al., 2009). The potential impacts to gray 
whales from Navy training activities are specifically discussed in the 
Potential Effects of Specified Activities on Marine Mammals section of 
the proposed rule. Given the transient nature of gray whales during 
migration through the GoA, and in light of the Navy's mitigation 
measures, although some gray whales may be behaviorally disturbed, more 
severe responses are not anticipated and NMFS determined that the take 
will have a negligible impact on the stock.
    With respect to high bathymetric relief areas and beaked whales, 
the Navy's training exercises are spread throughout the GoA TMAA (as 
opposed to being focused in an area of known particular importance). 
Furthermore, the Navy's activities in the GoA are only occurring for a 
21-day period once or twice a year.
    Comment 10: One commenter states that NMFS must ensure that SINKEXs 
do not occur in or near critical habitat or breeding/feeding grounds.
    Response: NMFS agrees that protecting important habitat (e.g.,

[[Page 25492]]

critical habitat or areas known for displays of important behaviors 
such as breeding and feeding) can be an effective way to minimize 
impacts to marine mammals; however, SINKEXs will not occur in or near 
critical habitat because designated critical habitats for Steller sea 
lions and North Pacific right whales are outside of the GoA TMAA. 
Furthermore, the commenter has neither suggested particular areas used 
by marine mammals for breeding/feeding nor presented any additional 
evidence that NMFS could consider in identifying such areas within the 
GoA TMAA. Pursuant to the MMPA, NMFS makes mitigation decisions based 
on the biological information pertaining to the potential impacts of an 
activity on marine mammals and their habitat (and the practicability of 
the measure). SINKEXs, in general, require the most comprehensive suite 
of mitigation measures relative to other Navy training exercises and 
the permit issued to the Navy under the Marine Protection, Research and 
Sanctuaries Act requires vessels to be sunk in waters that are at least 
6,000 ft (1,829 m) deep and at least 50 nm (92.6 km) from land. In 
addition, the Navy has agreed not to conduct SINKEXs within Habitat 
Areas of Particular Concern (HAPCs) established in the GoA. NMFS 
believes that the permit conditions and avoidance of HAPCs, in 
conjunction with the Navy's SINKEX mitigation plan, set forth a means 
for effecting the least practicable adverse impact. The rationale 
behind this finding was discussed in the Mitigation Conclusion section 
of the proposed rule (75 FR 64508, pages 64546-64548).
    Comment 11: One commenter states that, with respect to North 
Pacific right whales, the Navy must take all possible precautions, 
including a larger buffer zone around the critical habitat area that 
extends inside the TMAA, and ceasing all activity when whales are 
present. Another similar comment states that NMFS should require 
sufficient buffers between critical habitat and the TMAA. Another 
commenter claims NMFS' proposal to allow Level B takes of North Pacific 
right whales (75 FR 64508, p. 64568), is unacceptable due to their 
critically endangered status.
    Response: NMFS believes that the location of the TMAA relative to 
designated critical habitats is sufficient to avoid diminishing their 
conservation value to species. For example, the nearest boundary of the 
Pacific right whale critical habitat is approximately 16 nm (30 km) 
west of the southwest corner of the TMAA. NMFS believes that this 
distance, coupled with the fact that most exercises will take place 
away from the boundaries of the TMAA, provide an adequate buffer around 
North Pacific right whale critical habitat. In addition, current 
regulations (50 CFR 224.103(c)) require ships to maneuver to maintain 
at least 500 yards (460 m) of separation from any observed right whale 
(consistent with safety of ship). The Navy's model predicted that 
approximately 10 takes of North Pacific right whales would occur within 
the GoA TMAA over the course of five years (and no takes by injury or 
mortality). NMFS believes that by implementing specific mitigation 
measures the Navy has minimized, to the extent practicable, the impacts 
to North Pacific right whales and their critical habitat.
    In addition, the TMAA is located offshore of the main habitat and 
foraging grounds for Steller sea lions. While the Steller sea lions' 
range runs adjacent to the TMAA, their foraging habitat consists 
primarily of shallow, nearshore areas, and continental shelf waters 8 
to 24 km (4.3 to 13 nm) offshore, which are inshore of the TMAA 
boundaries. There is no critical habitat for Steller sea lions within 
the TMAA boundaries. The area designated as critical habitat was based 
on land use patterns, the extent of foraging trips, and the 
availability of prey items, with particular importance given to the 
haul out areas where Stellers rest, pup, nurse, mate, and molt.
    With respect to the additional comment regarding takes of North 
Pacific right whales, as noted in the proposed rule, only Level B takes 
in the form of behavioral disturbances are anticipated. No TTS takes 
are estimated because the North Pacific right whales' large size and 
detectability makes it unlikely that these animals would be exposed to 
the higher levels of sound expected to result in more severe effects.

Mitigation Effectiveness

    Comment 12: According to one commenter, NMFS states that bow riding 
dolphins will not be affected because they are outside the main beam of 
the sonar (75 FR 64508, p. 64547). The commenter then asks about the 
assumption that marine mammals will not approach ships, and whether the 
Navy is supposed to cease MFAS when marine mammals are within 1,000 
yds.
    Response: Dolphins are known to deliberately close in on a ship to 
ride the vessel's bow wave. While in the shallow-wave area of the 
vessel bow, dolphins are out of the main transmission axis of the 
active sonar. As stated in the proposed rule, if after conducting an 
initial maneuver to avoid close quarters with dolphins or porpoises, 
the Officer of the Deck (OOD) concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    Comment 13: One commenter claims that NMFS fails to describe Navy's 
``suite of mitigation measures'' (75 FR 64508, p. 64549).
    Response: NMFS discussed the proposed mitigation measures in detail 
within the proposed rule (75 FR 64542, October 19, 2010). To briefly 
reiterate, they include personnel training, specific operating 
procedures and collision avoidance, shutdowns, buffer zones, and 
Lookouts. This information is also explicitly described in the 
regulatory text of the final rule.
    Comment 14: One commenter asserts that safety zones (1,000 yard 
power-down and 200 yard shut down) around sonar domes are an inadequate 
and ineffective mitigation measure. Similarly, another commenter 
recommended that the 1,000 yard safety zone should be increased to 
2,000 yards.
    Response: The commenter provides no justification for increasing 
the buffer zone to 2,000 yards. The Navy's powerdown and shutdown 
strategy (i.e., the specific distances) is intended to avoid exposure 
of marine mammals to injurious levels of sound (which is thought to 
occur at about 10 m from the source), and to reduce exposing marine 
mammals (to varying degrees, depending on the species and environmental 
conditions) to higher levels of sound that might be associated with 
more severe behavioral responses. As the proposed rule discussed, while 
visual detection of marine mammals is not anticipated to be 100% 
effective, the 1,000 yard safety zone coincides with a Lookout's 
ability to realistically maintain situational awareness over a large 
area of the ocean; including the ability to detect marine mammals 
during less than ideal sea state conditions. The Mitigation Conclusion 
section of the proposed rule describes NMFS' least practicable adverse 
impact analysis (75 FR 64508, pages 64546-64548).
    Comment 15: One commenter expressed concern over the unknown 
impacts of the way sound travels with respect to the large underwater 
canyons in the GoA and states that the Navy does not set forth adequate 
measures to mitigate harmful effects of sonar primarily with 
sensitivity to fin, right, minke, or killer whales.
    Response: In general, environmental parameters--such as 
bathymetry--play an important role in the Navy's analysis of marine 
mammal impacts, and due to the importance that propagation loss

[[Page 25493]]

plays in ASW exercises, the Navy has, over the last four to five 
decades, invested heavily in measuring and modeling environmental 
parameters. Within the GoA TMAA, the Navy has identified six 
bathymetric provinces ranging from 100 m to typical deep-water depths 
(slightly more than 5,000 m). To model how sound from a particular 
source travels through the water column, bathymetric features are 
combined with other environmental parameters, such as sound speed 
profiles and High-Frequency Bottom Loss classes to determine 
propagation loss, and, ultimately, the zone of influence of a 
particular sound source.
    The model used by the Navy to estimate marine mammal exposures to 
sonar, which also considers the density of each species in the area, 
did not predict any Level A exposures (PTS) on fin, North Pacific 
right, minke, or killer whales. With respect to mitigation measures, 
NMFS indicates that Level A Harassment (injury) and Temporary Threshold 
Shift (TTS) (one type of Level B Harassment) are unlikely to occur 
because of: The distance from the source within which an animal would 
need to approach to be exposed to levels associated with injury (~ 10 
m) or TTS (~178-335 m); the fact that Lookouts would detect animals at 
that close distance; the fact that the Navy model (which does not take 
mitigation or avoidance into consideration) predicted that 1 Dall's 
porpoise would be exposed to injurious levels of sound and 931 animals 
would be exposed to levels associated with TTS; and the fact that many 
(not all) animals will avoid sonar at some distance. Although modeling 
predicted that one animal would be exposed to levels of sound that 
would cause injury, Level A takes were not requested by the Navy (and 
NMFS is not authorizing Level A takes) because the implementation of 
mitigation and monitoring procedures will further minimize the 
potential for marine mammal exposures to sonar sources. Additionally, 
the Navy is capable of effectively monitoring a 1,000 m safety zone 
using a variety of techniques, including binoculars, night vision 
goggles, infrared cameras, and passive acoustic monitoring.
    Comment 16: One commenter claims that NMFS assumes marine mammals 
can easily move away during SINKEXs, but asserts that little to nothing 
is known about how marine mammals in the GoA will react to noise.
    Response: The commenter misrepresents this piece of text from the 
proposed rule. Up to two SINKEXs are planned annually for the GoA TMAA. 
These exercises are stationary and conducted in deep, open water where 
few marine mammals would typically be expected to be randomly 
encountered. NMFS does not solely rely on the animal's ability to 
detect the activity and avoid it as a mitigation measure during 
SINKEXs. In fact, SINKEXs have the most rigorous monitoring and 
shutdown protocol of any planned explosive exercise. For a complete 
list of these protocols, please refer to Sec.  218.124(a)(4).

Impact Assessment

    Comment 17: One commenter claims that NMFS refers to models, but 
does not provide a source (75 FR 64508, p. 64548).
    Response: NMFS refers to the model used by the Navy to estimate 
marine mammal takes in the GoA, which is described in detail in 
Appendix B of the LOA application and Appendix D of the EIS.
    Comment 18: One commenter claims that NMFS does not address the 
issue of greenhouse gases from overflights.
    Response: NMFS is not authorizing the Navy's activities; rather, we 
are analyzing and authorizing the take of marine mammals incidental to 
those activities. NMFS does not anticipate that greenhouse gas 
emissions from overflights will result in marine mammal take, and 
therefore, we do not address the issue any further. Please refer to 
section 3.1 of the EIS for a detailed discussion of potential impacts 
to air quality, including emissions from aircraft activities.
    Comment 19: One commenter claims NMFS states that the probability 
of marine mammals approaching the sonar dome is low (75 FR 64508, p. 
64547), but does not cite where that information is from and does not 
take into account deep-diving whales that may be present.
    Response: NMFS actually stated that the probability that a marine 
mammal would approach within the above distances of the sonar dome 
without being seen by the watchstanders is very low. The watchstanders' 
job is to look for marine mammals and activate a shutdown, should they 
approach within 200 yd (183 m).
    Comment 20: One commenter asserts that NMFS claims that animals 
exposed to MFAS would not receive enough exposure to drive bubble 
growth to substantial size (75 FR 64508, p. 64553), and asks what 
studies substantiate this assertion.
    Response: The proposed rule contained a detailed discussion of the 
many hypotheses involving both acoustically-mediated and behaviorally-
mediated bubble growth. NMFS concluded that there is not sufficient 
evidence to definitively say that any of these hypotheses accurately 
describe the exact mechanism that leads from sonar exposure to a 
stranding. Despite the many theories involving bubble formation (both 
as a direct cause of injury and an indirect cause of stranding), 
Southall et al. (2007) summarizes that scientific disagreement or 
complete lack of information exists regarding the following important 
points: (1) Received acoustical exposure conditions for animals 
involved in stranding events; (2) pathological interpretation of 
observed lesions in stranded marine mammals; (3) acoustic exposure 
conditions required to induce such physical trauma directly; (4) 
whether noise exposure may cause behavioral reactions (such as atypical 
diving behavior) that secondarily cause bubble formation and tissue 
damage; and (5) the extent to which the post mortem artifacts 
introduced by decomposition before sampling, handling, freezing, or 
necropsy procedures affect interpretation of observed lesions. Based on 
the best available science, NMFS stated that a short duration of active 
sonar pings (such as that which an animal exposed to MFAS would be most 
likely to encounter) would not likely be long enough to drive bubble 
growth to any substantial size (75 FR 64553, October 19, 2010). The 
Navy's mitigation and monitoring measures are in place to prevent 
prolonged exposure of marine mammals to MFAS.
    Comment 21: One commenter refers to NMFS' use of a risk function 
based on studies on four species and limited science (75 FR 64508, p. 
64558) and asks if this is a risk model that will be used in the GoA. 
If so, the commenter asserts, it needs to integrate cumulative, long-
term, synergistic stressors. The commenter claims that if there is no 
data to allow for this integration, then NMFS should not be using this 
risk function to estimate and authorize takes.
    Response: NMFS has explained in the proposed rule why we chose the 
three datasets we used to define the risk function. These three 
datasets represent the only known data that specifically relate altered 
behavior responses (that NMFS would consider Level B Harassment) to 
exposure--at specific received levels--to MFAS and sources within or 
having components within the range of MFAS (1-10 kHz). As commenters 
have pointed out in previous rules, there are datasets that report 
marine mammal responses to lower levels of received sound; however, 
because of the structure of the curve NMFS uses and what it predicts 
(Level B Harassment), we need datasets

[[Page 25494]]

that show a response that we have determined qualifies as harassment 
(in addition to needing a source that is adequately representative of 
MFAS and includes reliable specific received level information), which 
many of the lower level examples do not.
    Comment 22: One commenter claims that the hours of MFAS over a 5-
year period are not readily apparent in Table 8.
    Response: Table 8 (Table 5 in this final rule) is not intended to 
depict the hours of MFAS over a 5-year period. Rather, the table shows 
the Navy's estimated amount of take and NMFS' proposed annual take 
authorization. The hours of sonar sources authorized over a 5-year 
period are included in Subpart N of Part 218--Regulations Governing the 
Taking and Importing of Marine Mammals.
    Comment 23: One commenter asks if sonar has been shown to affect 
the successful reproduction of any marine mammal species or their prey.
    Response: In the Species Specific Analysis section of the proposed 
rule, NMFS discusses potential effects on marine mammals in the GoA 
TMAA, including population level effects. The GoA TMAA activities are 
not expected to occur in an area/time of specific importance for 
breeding, calving or other known critical behaviors. In addition, the 
size of many large whale species and group size of smaller ododocetes 
improves detectability and makes it unlikely that these animals would 
be exposed to higher levels of sound that would be expected to result 
in more severe effects. Therefore, the activities are not expected to 
adversely impact rates of recruitment and survival of these marine 
mammals species or stocks and NMFS has determined that the Navy's 
activities will have a negligible impact on the affected species or 
stocks. With respect to marine mammal prey, in the Effects on Marine 
Mammal Habitat section, NMFS discusses the effects on marine mammal 
food resources, including fish and invertebrates. Potential impacts to 
marine mammal food resources within the GoA TMAA are negligible given 
both the lack of hearing sensitivity to mid-frequency sonar, the very 
limited spatial and temporal scope of most Navy activities at sea 
including underwater detonations, and the high biological productivity 
of these resources. NMFS concludes that no short- or long-term effects 
to marine mammal food resources from Navy activities are anticipated 
within the GoA TMAA.
    Comment 24: One commenter asserts that plastic, heavy metals, and 
nylon materials from sonobuoys will undoubtedly wash up along the GoA, 
degrading the marine environment and posing a potential risk to marine 
mammals, and believes that NMFS does not appropriately address the 
issue of flotsam from expended materials.
    Response: The effects from expended materials are considered 
insignificant and discountable, as addressed in the Navy's EIS. The 
probability of a marine mammal ingesting any material is extremely low 
based on the size of the TMAA, the limited duration of the training 
exercises, and the low concentration of certain materials being used. 
Other materials are expected to sink beyond the known depth of marine 
mammals or are considered large enough to prohibit ingestion.
    Comment 25: The MMC recommended that NMFS advise the Navy to 
consult with the U.S. Fish and Wildlife Service to determine if the 
Navy also needs authorization to take sea otters.
    Response: The Navy has consulted on the GoA TMAA action under 
section 7 of the ESA with the USFWS, which has jurisdiction over sea 
otters. The Navy and the USFWS coordinated regarding the list of 
species, and sea otters were not included. Sea otters are considered to 
be extralimital to the GoA TMAA and none were encountered within the 
TMAA during the April 2009 GOALS survey (Rone et al., 2009). The MMC 
concurred that sea otters were unlikely to enter the Navy training 
range area due to the distance from shore in their comment letter on 
the DEIS dated January 27, 2010.
    Comment 26: The MMC recommended that NMFS require the Navy to 
conduct an external peer review of its marine mammal density estimates 
for the GoA, the data upon which those estimates are based, and the 
manner in which those data are being used.
    Response: Both NMFS and the Navy use peer-reviewed science whenever 
it is available and applicable, and NMFS has encouraged the Navy to get 
the models they use and data they gather peer-reviewed. In 2008, the 
impacts analysis model used for the GoA TMAA (and the previous Navy 
EISs and final rules) underwent the NMFS peer review process using the 
Center for Independent Experts (CIE) and was deemed adequate and 
sufficient for the purpose for which it was being used. Recommendations 
made by the CIE for improvements were incorporated into the next 
generation model upgrades.
    In the context of the Navy's GoA TMAA EIS/OEIS and LOA application, 
the marine mammal densities used in the Navy's impact analysis were 
derived from several sources, which are summarized in Table B-16 of the 
Navy's LOA application. The sources the Navy relied upon to derive 
density estimates for marine mammal species in the GoA are all from 
peer-reviewed journals. In addition, due to the lack of new survey data 
for marine mammals in the GoA, the Navy funded the Gulf of Alaska Line-
Transect Survey (GOALS), which was conducted in April 2009. During this 
survey, line-transect visual data and acoustic data were collected over 
a 10-day period, from which densities were derived for fin and humpback 
whales for inshore and offshore strata.
    Also, while it is not the same as peer review, both the NEPA and 
MMPA processes include a comment period during which the public can 
specifically recommend better ways to use the data to estimate density, 
which the Navy and NMFS take into account. For example, the proposed 
rule for the GoA TMAA (75 FR 64508, October 19, 2010) encouraged the 
public to recommend effective, regionally specific methods for 
augmenting existing marine mammal density, distribution, and abundance 
information in the GoA TMAA and to prioritize the specific density and 
distribution data needs in the area.
    Further, a new systematic framework (that includes a hierarchy of 
preferred methodologies based on the data available in an area) is 
being developed by the Navy to estimate density in the analyses for the 
rule renewals that will follow the expiration of the MMPA rules for 
Navy training in 2009, 2010, and 2011 (i.e., rules that would, if 
appropriate, be issued in 2014 and later). The Navy has indicated that 
they may pursue a peer review of this framework and NMFS has encouraged 
them to do so.
    Comment 27: The MMC recommended that NMFS require the Navy to 
estimate marine mammal takes using season- and location-specific 
environmental parameters (including sound speed profiles and wind 
speed) and marine mammal densities before issuing the final rule; if 
the Navy plans to conduct training exercises in April or May, but does 
not provide more realistic take estimates for these months, NMFS should 
limit the final rule to exercises that occur during the period from 
June to October.
    Response: The Navy did consider densities during April-May, but 
elected to use the higher summer densities as a conservative measure 
(i.e., over prediction of potential exposures). The multi-day Northern 
Edge (NE) exercise is the main modeling driver for exposures, and these 
event-based exposures are what are summed in the ``annual'' exposures. 
Highest densities

[[Page 25495]]

from the summer were used to model two NE events; the sum of all 
current exposures likely overestimates exposure to all species 
(mitigation is not factored into these exposure values either), and re-
modeling/re-assessing for April-May for two species of pinnipeds would 
not significantly change species specific or total exposures. The 
modeling was not done for an entire period of time (June-October) of 
continuous activity. This is different from other range complexes like 
SOCAL where there is year round unit level training. The only Navy 
ships in the GOA will likely be there in association with NE exercises.
    Comment 28: Ocean Conservation Research (OCR) included a copy of 
their comments on the Navy's EIS and suggested that some of those 
comments also pertained to the MMPA authorization. Other commenters 
mirrored several of the recommendations that OCR made in these 
comments.
    Response: OCR and others assert that the chemical, toxic, and 
``inert'' pollution models used in the GoA DEIS are over simplistic and 
do not take into account the current state of knowledge about 
accumulation and concentrations of chemical, toxic, and ``inert'' 
pollutant behavior throughout the entire ocean, and up and down the 
entire food chain--including humans. The Navy did not expect GoA TMAA 
exercises to result in the production of any toxic chemicals that would 
affect marine mammals. The EIS did analyze the potential impacts from 
PUTR material, ordnance and target-related materials, chaff, sunken 
hulks (i.e., SINKEXs), and expended sonobuoys, and found that no 
significant impacts to marine mammals were likely to result from those 
expended materials. Therefore, the Navy determined that marine mammals 
would not be taken via ingestion of toxins or interaction with the 
aforementioned expended materials and they did not request (nor did 
NMFS grant) authorization for take of marine mammals via these methods.
    Comment 29: One commenter claims that, due to insufficient data 
provided on the sonar characteristics and source levels, assessments of 
potential impacts are incomplete.
    Response: NMFS does not agree with the commenter's claim that 
insufficient data were provided on the sonar characteristics and source 
levels used in the GoA TMAA. To the extent permissible (i.e., not 
classified), the Navy provided detailed source descriptions in Table B-
4 of the Navy's LOA application. The same information was provided in 
Table D-4 of the Navy's EIS. If unclassified, these tables include 
source depth, center frequency, source level, emission spacing, 
vertical directivity, and horizontal directivity for the active sonar 
sources used in the TMAA. The Navy then used the characteristics of 
these sources to model the potential impacts on marine mammals.
    Comment 30: One commenter claims that the bio-acoustic impact 
models used in the DEIS are overly simplistic and do not represent wild 
animal impacts or behaviors and do not account for agonistic qualities 
and characteristics of the various signals that would be introduced 
into the environment.
    Response: NMFS does not agree with the commenter's claim that the 
impact models used in the DEIS are overly simplistic and 
unrepresentative. NMFS has responded to similar comments regarding the 
Navy's risk function analysis provided by Dr. David Bain in the 
Atlantic Fleet Active Sonar Training final rule (74 FR 4865) and refers 
readers to those comments and responses.
    Comment 31: One commenter asserts that mid- and high-frequency 
sonar acoustic impact data on fish is lacking and does not justify the 
conclusion that impacts are ``negligible or non-existent.''
    Response: Limited data exists on the effects of sound on fish, both 
in terms of number of well controlled studies and species tested. 
However, the vast majority of fish species studied to date are hearing 
generalists and cannot hear sounds above 500 to 1,500 Hz (0.5 to 1.5 
kHz), depending on the species. Therefore, most fish are not likely to 
experience behavioral effects as a result of exposure to sonar because 
they cannot hear in that frequency range. Even for species that are 
capable of hearing above 1,500 Hz (1.5 kHz), their hearing in this 
range is poor compared to their sensitivity at lower frequencies. 
Moreover, even if a fish detects a mid- or high-frequency sound, 
masking of biologically relevant sounds is unlikely to occur since the 
vast majority of biologically relevant sounds for fish are below 1,000 
Hz (1 kHz).
    Comment 32: One commenter claims that the mortality ``risk 
continuum'' for fish due to explosives is inadequate and suspiciously 
biased to appear much more benign than it actually is. The conclusion 
in the DEIS section on fish admits that very little is known about 
impact of sonar, yet contradicts the summary table statement that 
``sonar used in Navy exercises would result in minimal harm to fish or 
EFH.''
    Response: The commenter refers to the Navy's analysis of potential 
impacts to fish and Essential Fish Habitat contained in the EIS. It is 
important to note that the analysis referred to was conducted in the 
context of the Magnuson-Stevens Fishery Conservation and Management 
Act, the ESA, and Executive Order 12114. The factors used to assess the 
significance of effects vary under these Acts, and are also different 
from those applied to the MMPA's effects analysis. The purpose of this 
comment period was for the public to provide comments on the proposed 
rule, which is being promulgated under the authority of the MMPA. In 
the Effects on Marine Mammal Habitat section of the proposed rule, NMFS 
discusses the effects on marine mammal food resources, including fish 
and invertebrates. Potential impacts to marine mammal food resources 
within the GoA TMAA are negligible given both the lack of hearing 
sensitivity to mid-frequency sonar, the very limited spatial and 
temporal scope of most Navy activities at sea including underwater 
detonations, and the high biological productivity of these resources. 
NMFS concludes that no short- or long-term effects to marine mammal 
food resources from Navy activities are anticipated within the GoA 
TMAA.
    Comment 33: One commenter claims that the exposure risk models of 
marine mammals appear to contain many examples of ``statistical 
manipulations of convenience'' which erodes both the credibility of the 
models and the integrity of the entire DEIS.
    Response: NMFS disagrees with the commenter's assertions. For 
example, the commenter takes issue with the density of species being 
presented in animals per km\2\, which results in 0.0019 humpback whales 
per km\2\, because there is no such thing as 0.0019 of a humpback 
whale. While the commenter is correct that there is no such thing as 
0.0019 of a humpback whale, density is typically measured in terms of 
the number of animals per unit of area, which is usually per square 
kilometer or mile. In addition, the commenter asks whether setting the 
cutoff extent of the integral to 120 dB is based on either excluding 
the harbor porpoise from the marine mammal response data set or 
modifying the harbor porpoise risk function to a ``heaviside step 
function.'' Harbor porpoise are found in coastal regions of northern 
temperate and subarctic waters (Reeves et al., 2002). Generally, harbor 
porpoise are not found in water deeper than 100 m, and decline linearly 
as depth increases (Carretta et al., 2001, Barlow 1988, Angliss and 
Allen 2009). A survey conducted in the GoA in June 2003 yielded a 
single sighting of two

[[Page 25496]]

individual harbor porpoises (Waite, 2003). The vessel survey conducted 
in April 2009 yielded 30 sightings of 89 harbor porpoise (Rone et al., 
2009). Based on their coastal distribution and limitation to shallower 
depths, it is unlikely that harbor porpoises would occur within the 
TMAA; therefore, there is no empirical density information for this 
species. The Navy used stock assessment information indicating an area 
for the GoA harbor porpoise stock of approximately 69,829 nm\2\ 
(239,597 km\2\) with an abundance of 41,854 animals. Assuming an even 
distribution of harbor porpoises in the GoA stock, there would be 2,719 
harbor porpoises within the TMAA. While this figure is likely an 
overestimate, the Navy assumes for analysis purposes that 2,719 harbor 
porpoises will be exposed to Level B behavioral harassment.
    Comment 34: One commenter claims that the model of bio-acoustic 
impact of explosives on marine mammals is overly simplistic because it 
models the animals as ``linear input devices'' and does not account for 
synergistic effects of stress on the animal or destruction of habitat 
and food sources.
    Response: Although the Navy's model does not quantitatively 
consider the points raised by the commenter (because the quantitative 
data necessary to include those concepts in a mathematical model do not 
currently exist), NMFS and the Navy have qualitatively addressed these 
concerns in the effects analysis contained in the rule and EIS.
    Comment 35: One commenter claims that NMFS dismisses effects of 
MFAS on fish because the Navy will be operating beyond the frequency 
that fish can hear, but does not take into account the effects of 
pressure from sound waves. The commenter further claims that NMFS cites 
one study on one species and references the lack of data on fish and 
exposure to sound, but goes on to make a broad assumption that no long-
term negative effects will occur (75 FR 64508, p. 64562).
    Response: In the Effects on Marine Mammal Habitat section, after 
some discussion, NMFS concludes that there ``will be few, and more 
likely no, impacts on the behavior of fish from active sonar.'' NMFS 
also discusses the potential for both threshold shift and mortality to 
fish from MFAS, though we conclude that these impacts would be short-
term (threshold shift) and insignificant to the population as a whole 
in light of natural daily mortality rates. As stated in the proposed 
rule, there are currently no well-established thresholds for estimating 
effects to fish from explosives other than mortality models. Fish that 
are located in the water column, in proximity to the source of 
detonation could be injured, killed, or disturbed by the impulsive 
sound and possibly leave the area. The huge variations in the fish 
population, including numbers, species, sizes, and orientation and 
range from the detonation point, make it very difficult to accurately 
predict mortalities at any specific site of detonation. Most fish 
species experience a large number of natural mortalities, especially 
during early life stages, and any small level of mortality caused by 
training exercises in the GoA TMAA involving explosives will likely be 
insignificant to the population as a whole.
    Comment 36: One commenter claims NMFS cites an incident of damage 
to squid following airgun activity, but supports the position that the 
activity was ``totally circumstantial'' (75 FR 64508, p. 64563), thus 
participating in a Type II error. The commenter asserts that bias for 
the Navy on the part of NMFS is apparent.
    Response: As stated in the proposed rule, the data presented 
showing damage to squid tissue is highly questionable since there was 
no way to differentiate between damage due to some external cause 
(e.g., the seismic airgun) and normal tissue degradation that takes 
place after death, or due to poor fixation and preparation of tissue. 
To date, this work has not been published in peer reviewed literature, 
and detailed images of the reportedly damaged tissue are also not 
available.
    Comment 37: One commenter expressed concern that NMFS did not 
account for non-Navy ships that may strike whales as they surface due 
to MFAS. This commenter further asserts that non-Navy ship traffic 
should not be excluded from consideration because they too pose a risk 
to marine mammals.
    Response: NMFS appreciates the commenter's concern regarding the 
potential impacts of non-Navy vessel activity in the GoA; however, the 
non-Navy shipping traffic in the area falls outside of the scope of the 
proposed action that NMFS and the Navy analyzed as part of the proposed 
and final rulemaking process. For more information on non-Navy vessel 
activity, please refer to section 3.3 and section 4 of the Navy's EIS.
    Under section 101(a)(5)(A) of the MMPA, NMFS prescribes regulations 
setting forth the permissible methods of taking pursuant to an activity 
upon request (emphasis added) by citizens of the United States. In this 
case, the Navy requested authorization from NMFS to permit the taking 
of marine mammals incidental to training activities in the GoA and 
NMFS, after determining that the total take during the 5-year period 
will have a negligible impact on marine mammals, has responded by 
prescribing regulations setting forth the permissible methods of taking 
pursuant to Navy training activities, and other means of effecting the 
least practicable adverse impact on marine mammals and their habitat.
    Separately, non-Navy vessels are prohibited from taking marine 
mammals under section 101(a) of the MMPA. In addition, NMFS has 
regulations in effect that prohibit approaching within 100 yards (91.4 
m) of a humpback whale in waters within 200 nm (370.4 km) of Alaska (50 
CFR 224.103(b)). These regulations also require vessels to operate at a 
``slow safe speed'' within proximity to a humpback whale. For other 
species or marine mammals in Alaskan waters, NMFS has guidelines that 
advise vessels to remain at least 100 yards (91.4 m) from marine 
mammals. The guidelines are available on the following Web site: http://www.fakr.noaa.gov/protectedresources/mmv/guide.htm. Guidelines and 
regulations are designed to prevent vessels from violating Federal law 
and to reduce the potential for inadvertently harming whales, dolphins, 
porpoises, seals and sea lions.
    Comment 38: One commenter expressed concern that the speeds at 
which Navy ships travel (10-14 knots) increase the likelihood of ship 
strikes because NMFS has previously stated that speeds in excess of 10 
knots cause fatalities in ship strike events.
    Response: NMFS has analyzed the potential impacts from ship strikes 
in the proposed rule (75 FR 64508, pages 64540-64542) and includes 
mitigation measures to minimize the likelihood of ship strikes in the 
final rule (see Sec.  218.124(a)(2)). Because of the relatively low 
density of Navy traffic in the GoA TMAA, the limited number of days 
that the Navy plans to conduct training activities in the GoA TMAA, the 
fact that there are no reports of Navy vessels striking a whale in the 
GoA, and the mitigation measures required under this final rule, NMFS 
does not believe that a vessel strike of a marine mammal is likely in 
the GoA TMAA.
    Comment 39: One commenter claims that NMFS' authorization of lethal 
take of up to 15 beaked whales over the course of 5 years is 
unacceptable in the absence of scientific data about these animals in 
the GoA.
    Response: NMFS appreciates the commenter's concern, but the MMPA 
directs NMFS to issue an incidental take authorization if certain 
findings can be made. Under the MMPA, NMFS must

[[Page 25497]]

make the decision of whether or not to issue an authorization based on 
the proposed action that the applicant submits. Any U.S. citizen 
(including the Navy) can request and receive an MMPA authorization as 
long as all of the necessary findings can be made. Both NMFS and the 
Navy have a responsibility to use the best available science to support 
our analyses and decisions under both the MMPA and NEPA. For example, 
in 2009, the Navy funded a baseline survey of the GoA to gather data on 
the distribution and density of marine mammals. The results from this 
survey, as well as other relevant literature presented in the LOA 
application and EIS, represent the best available science generated by 
the Navy and used by NMFS. As more surveys are conducted, data will be 
collected across additional months and areas (such as seamounts that 
are associated with the presence of beaked whales), which will allow 
for the calculation of more spatially and temporally explicit density 
estimates. In the meantime, the density estimates from the 2009 survey 
and other sources allow NMFS to make reasonable predictions regarding 
the number of marine mammals that might be exposed to particular levels 
of sound. In this case, NMFS has determined that the Navy's GoA TMAA 
exercises will have a negligible impact on the affected species or 
stock (including beaked whales) and, therefore, we plan to issue the 
requested MMPA authorization.
    Comment 40: One commenter asks how NMFS can justify estimating 
takes using criteria that were developed based on assumptions about 
received levels of MFAS.
    Response: The commenter misrepresents this discussion in the 
proposed rule. As discussed in the Acoustic Take Criteria section of 
the proposed rule, NMFS developed acoustic criteria that estimate at 
what received level (when exposed to MFAS/HFAS or explosive 
detonations) Level B Harassment, Level A Harassment, and mortality (for 
explosives) would occur. NMFS utilizes three acoustic criteria to 
assess impacts from MFAS/HFAS: PTS (injury--Level A Harassment), TTS 
(Level B Harassment), and behavioral harassment (Level B Harassment). A 
number of investigators have measured TTS in marine mammals. These 
studies measured hearing thresholds in trained marine mammals before 
and after exposure to intense sounds. Because PTS data do not currently 
exist for marine mammals (and are unlikely to be obtained due to 
ethical concerns), these levels are estimated using TTS data from 
marine mammals and relationships between TTS and PTS have been 
discovered through the study of terrestrial mammals. For behavioral 
harassment, NMFS uses acoustic risk continuum functions, which allow 
for probability of a response that NMFS would classify as harassment to 
occur over a range of possible received levels and assume that the 
probability of a response depends first on the ``dose'' (in this case, 
the received level of sound) and that the probability of a response 
increases as the ``dose'' increases. The Navy and NMFS have previously 
used acoustic risk functions to estimate the probable response of 
marine mammals to acoustic exposures for other training and research 
programs.
    Comment 41: One commenter refers to NMFS' statement in the proposed 
rule that marine mammals that incur PTS due to approaching sonar 
sources may compensate, ``although this may include energetic costs'' 
and asserts that energetic costs can contribute to the decline of an 
animal's state of health, and that it is reasonable to assume that such 
costs could potentially lead to an animal's death.
    Response: The commenter takes the statement quoted from the 
proposed rule out of context. First, in order to incur PTS a marine 
mammal would have to be within 10m of the sonar dome and NMFS believes 
that many animals would deliberately avoid exposing themselves to the 
received levels of active sonar necessary to induce injury by either 
moving away from the source or at least modifying their course to avoid 
a close approach. Second, in the unlikely event that an animal 
approaches the sonar vessel at close distance, NMFS believes that the 
mitigation measures (i.e., shutdown/powerdown zones for MFAS/HFAS) 
would typically ensure that animals would not be exposed to injurious 
levels of sound. Third, if a marine mammal is able to approach a 
surface vessel within the distance necessary to incur PTS, the likely 
speed of the vessel (typically 10-12 knots) would make it very 
difficult for the animal to remain in range long enough to accumulate 
enough energy to result in more than a mild case of PTS. Fourth, 
although the Navy's modeling predicted that one Dall's porpoise would 
incur PTS from exposure to MFAS/HFAS, the Navy and NMFS believe this 
result is very unlikely to occur; therefore, the Navy has not requested 
authorization for takes by Level A Harassment and NMFS is not 
authorizing takes by Level A Harassment. Finally, although NMFS states 
that marine mammals may compensate for PTS, which may incur energetic 
costs, this would represent a worst case scenario that is unlikely to 
occur in the GoA TMAA because of the mitigation measures implemented to 
prevent animals from being exposed to injurious levels of sound. 
Therefore, NMFS determined that the impact to marine mammals from the 
Navy's activities 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 and concluded that 
the activity would have a negligible impact.
    Comment 42: One commenter claims that NMFS' assertion that marine 
mammals will deliberately avoid exposing themselves to received levels 
of active sonar necessary to induce injury is not supported by 
available data and asks whether NMFS really believes this.
    Response: See response to Comment 41 above.
    Comment 43: One commenter claims NMFS assumes that marine mammals 
will not be exposed to sounds long enough to induce TTS, yet nothing is 
known about how marine mammals will respond to sound in the GoA. The 
commenter further claims that NMFS makes assumptions based on 
experiments, but the public does not know whether these experiments 
involved control, the number of test subjects, and other important 
information.
    Response: The impacts of the Navy's training activities in the GoA 
have been analyzed in the Navy's DEIS and LOA application. A detailed 
description of the Navy's approach to analyzing the impacts on marine 
mammals is provided in Appendix D of the EIS and Appendix B of the LOA 
application. In the proposed rule, NMFS discusses the potential effects 
of Navy training activities, including active sonar, on marine mammals 
and refers to a number of studies that have measured TTS in marine 
mammals. These studies measured hearing thresholds in trained marine 
mammals before and after exposure to intense sounds. A detailed 
description of how the TTS criterion was derived from the results of 
these studies may be found in Chapter 3 of Southall et al. (2007), as 
well as the Navy's GoA TMAA LOA application.
    Comment 44: One commenter expressed concern regarding NMFS' 
conclusion that the Navy activities would not be expected to occur in 
areas of reproduction, feeding, or other critical behaviors of beaked 
whales in light of lack of available information regarding these 
species in the GoA. This commenter expressed additional concern that 
NMFS mentions oceanic seamounts and submarine escarpments,

[[Page 25498]]

but fails to mention the effect of reverberating sound on beaked 
whales.
    Response: The rule does not discount the potential impacts on 
beaked whales. NMFS specifically addresses the potential impacts to 
beaked whales in the following sections of the proposed rule: 
``Acoustically Mediated Bubble Growth;'' ``Behaviorally Mediated 
Responses to MFAS That May Lead to Stranding;'' ``Stranding and 
Mortality;'' and ``Association Between Mass Stranding Events and 
Exposure to MFAS.'' Specifically, in recognition of potential impacts 
to beaked whales and the scientific uncertainty surrounding their 
presence in the GoA and the exact mechanisms that lead to strandings, 
NMFS has authorized the mortality of 15 beaked whales over the course 
of 5 years in the unlikely event that a stranding occurs as a result of 
Navy training exercises. In addition, the commenter is misrepresenting 
a piece of the text from the proposed rule--although NMFS points out 
that the five factors that contributed to the stranding in the Bahamas 
are not all present in the GoA TMAA, we do not say that fact alone 
means strandings are unlikely to occur.
    Comment 45: One commenter asks how NMFS can issue permits based on 
the best available data if NMFS admits that data does not exist on 
marine mammal behavioral response as a result of factors other than 
received levels of MFAS?
    Response: NMFS relies on the best available date for analyzing the 
effects on marine mammals. However, because the best available data is 
constantly changing and our current knowledge of marine mammal 
behavioral response is limited, NMFS utilizes an adaptive management 
approach. In so doing, we are able to continuously assess behavioral 
effects and incorporate new mitigation or monitoring measures when 
necessary. NMFS never stated that data on factors other than received 
level is non-existent; but rather, that quantitative data on marine 
mammal behavioral response to factors other than received level does 
not exist. The proposed rule included a qualitative discussion of how 
factors other than received level (e.g., speed, angle of approach) may 
impact a marine mammal's response to a sound source.
    Comment 46: One commenter states that the proposed rule assumes 
that because stranding events have been low during 60 years of 
conducting MFAS/HFAS training exercises, they are not likely to occur, 
but unreported strandings and mortalities cannot be minimized since 
there was little to no oversight, mitigation, or reporting requirements 
during this period. Another commenter claims that, with respect to 
marine mammal injury/mortality stats, NMFS fails to account for whales 
that may sink to the bottom.
    Response: The Navy has been conducting MFAS/HFAS training exercises 
throughout the world's oceans for over 60 years. Although the Navy has 
not conducted monitoring specifically in conjunction with training 
exercises in the past, people have been collecting data from stranded 
animals for approximately 30 years. In addition, although not all dead 
or injured animals are expected to end up on the shore (some may be 
eaten or float out to sea), one would expect that if marine mammals 
were being harmed by Navy training exercises with some regularity, more 
evidence would have been detected over the 30-year period.
    Comment 47: One commenter states that NMFS' assumption that marine 
mammals will habituate to noise by comparing GoA to a different region 
is not a valid.
    Response: In the proposed rule, NMFS stated that, ``although the 
radiated sound from Navy vessels will be audible to marine mammals over 
a large distance, it is unlikely that animals will respond behaviorally 
(in a manner that NMFS would consider MMPA harassment) to low-level 
distant shipping noise as the animals in the area are likely to be 
habituated to such noises (Nowacek et al., 2004).'' Although Nowacek's 
study does not take place in the GoA, that does not change the fact 
that shipping currently occurs in the TMAA and the noise from Navy 
vessels should not cause a different reaction.
    Comment 48: One commenter states that the studies NMFS cites on 
marine mammals in captivity to justify the assumption that marine 
mammals will avoid sound sources lack an adequate sample size, and asks 
if NMFS believes that these studies translate into the field with so 
many unknown variables, including lack of information about marine 
mammal behaviors in the GoA.
    Response: The SSC Dataset (Controlled Laboratory Experiments with 
Odotocetes) is not the primary source of data for the behavioral 
harassment threshold; rather, it is one of three datasets (two of which 
are from wild species exposed to noise in the field) treated equally in 
the determination of the K value (equates to midpoint) of the 
behavioral risk function. NMFS recognizes that certain limitations may 
exist when one develops and applies a risk function to animals in the 
field based on captive animal behavioral data. However, we note that 
for the SSC Dataset: (1) Researchers had superior control over and 
ability to quantify noise exposure conditions; (2) behavioral patterns 
of exposed marine mammals were readily observable and definable; and 
(3) fatiguing noise consisted of tonal noise exposures with frequencies 
contained in the tactical MFAS bandwidth. NMFS does not ignore the 
deficiencies of these data, rather we weighed them against the value of 
the data and compared the dataset to the other available, applicable, 
and validated datasets and decided that the SSC dataset was one of the 
three appropriate datasets to use in the development of the risk 
function.

Monitoring and Reporting

    Comment 49: One commenter claims that NMFS fails to define ``Marine 
Species Awareness Training,'' and assumes that Navy personnel will be 
able to spot whales from the bridge, but does not include the sea state 
in their assertion. In addition, a similar comment claims that NMFS 
does not mention sea state when discussing the probability that 
watchstanders will likely observe whales.
    Response: MSAT is a training course, intended for Navy Lookouts, 
designed to introduce marine mammal cues that may assist in avoiding 
potential collisions with whales during Navy activities. While NMFS 
does expect observers to see whales, we do not assume that observers 
will see every whale. NMFS recognizes that sea state affects 
visibility, which is why the Navy will increase survey efforts in the 
event of a Beaufort Sea State of 4 or above.
    In response to the second part, the Navy's activities within the 
TMAA will occur during summer months, when Beaufort Sea State 
conditions are lower and visibility is better for monitoring. In 
addition to watchstanders, aerial surveys and passive acoustic 
monitoring (PAM) will also be used to observe for marine mammals. 
During sinking exercises (SINKEX), every attempt shall be made to 
conduct the exercise in sea states that are ideal for marine mammal 
sighting, Beaufort Sea State 3 or less. In the event of a 4 or above, 
survey efforts shall be increased within the 2 nm (3.7 km) zone around 
the target. This shall be accomplished through the use of an additional 
aircraft, if available, and by conducting tight search patterns.
    Comment 50: One commenter states that NMFS fails to define ``highly 
qualified and experienced observers of the marine environment'' (75 FR 
64508, p. 64543) and who will train them.
    Response: NMFS explained in the proposed rule that Navy Lookouts, 
also referred to as ``watchstanders,'' are highly qualified and 
experienced

[[Page 25499]]

observers of the marine environment. All Lookouts take part in Marine 
Species Awareness Training so that they are better prepared to spot 
marine mammals. Their duties also require that they report all objects 
sighted in the water, not just marine mammals, that may be indicative 
of a threat to the vessel and its crew. Lookouts are stationed day and 
night whenever a ship or surfaced submarine is moving through the 
water.
    Comment 51: One commenter states that NMFS fails to define ``most 
effective means to ensure quick and effective communication within the 
command structure in order to facilitate implementation of protective 
measures if marine species are spotted'' (75 FR 64508, p. 64543).
    Response: As previously stated, all Navy Lookouts undergo Marine 
Species Awareness Training. The Navy is responsible for deciding the 
most effective means of communicating information within the command 
structure. This is the same ``quick communication'' that Lookouts rely 
on to notify the captain that there is something in the vessel's path. 
NMFS does not define this means of rapid communication, because it is 
different for each vessel and best determined by Navy operators.
    Comment 52: One commenter claims that NMFS fails to fully describe 
how they and the Navy plan to integrate results from monitoring data 
for the public and other interested entities.
    Response: The Navy's annual monitoring reports will be available 
for public viewing on NFMS' Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm). The Navy is in the process of making some of 
their data available through an on-line database.
    Comment 53: One commenter asks if marine mammal observers will be 
aboard to watch for adverse effects. The commenter further asks whether 
sonar training is halted if observers note negative impacts from the 
training?
    Response: As stated in the proposed rule, marine mammal observers 
and Navy Lookouts will be used to monitor for marine mammals before, 
during, and after training events. Should a marine mammal enter an 
exclusion zone, mitigation measures will be implemented. For example, 
the Navy will powerdown and shutdown sonar emitting devices when marine 
mammals are detected within ranges where the received sound level is 
likely to result in temporary threshold shift (TTS) or injury. In 
addition, the Navy and NMFS have a stranding response plan for the GoA 
that will be implemented in the event of a marine mammals stranding, 
which includes a shutdown requirement in the event of a live stranding. 
Furthermore, the rule includes an adaptive management component that 
allows for timely modification of mitigation or monitoring measures 
based on new information, when appropriate.
    Comment 54: One commenter states that NMFS asserts that little is 
known about how marine mammals will react to sonar in the GoA, but 
mentions the Navy's claim that no marine mammals have been harassed in 
other training ranges, which the commenter believes should be a red 
flag that the Navy's monitoring system is not effective and asks what 
is the probability that zero marine mammals will be harassed during 
training exercises that occur year round?
    Response: The Navy's LOA application and EIS clearly discuss the 
potential adverse effects (harassment) that marine mammals may 
experience when exposed to MFAS/HFAS and explosive detonations. The 
Navy has and will continue to work as an active partner to investigate 
the extent and severity of the impacts and how to reduce them (see 
Research section of this final rule). Regarding the issue of monitoring 
being effective, nowhere does either the Navy or NMFS indicate that the 
current monitoring (and associated mitigation) will eliminate impacts. 
The MMPA requires that NMFS put forth the means of effecting the least 
practicable adverse impacts, and NMFS has determined that the required 
mitigation and associated monitoring (meaning specifically the 
mitigation monitoring) measures accomplish this. If it were possible to 
eliminate impacts to marine mammals, an MMPA authorization would not be 
necessary.
    Comment 55: The MMC and other commenters recommend that NMFS 
require the Navy to conduct seasonal, systematic vessel or aerial line-
transect surveys supplemented with passive acoustic monitoring and 
satellite tracking to provide the data needed to describe marine mammal 
density, distribution, and habitat use during the seasons and in the 
regions when and where the Navy plans to conduct its exercises.
    Response: NMFS agrees and has recommended that the Navy refocus 
their Monitoring Plan for the GoA TMAA. In 2011 and 2012, the Navy 
plans to deploy two PAM devices in the GoA TMAA to detect, locate, and 
potentially track vocalizing marine mammals, as well as provide 
seasonal estimates of presence/absence. These devices will be deployed 
year-round, including during Navy training events. Given the potential 
sea states and ocean conditions during both winter and summer, and the 
relatively infrequent Navy presence in the GoA TMAA, PAM represents the 
best long-term monitoring technique to employ within the GoA TMAA. In 
addition to collecting marine mammal vocalization and echolocation data 
before, during, and after any Navy training event, information from 
which NMFS can infer to whether the training event has an effect or no 
effect on observed vocalizations.
    In response to public comment, the Navy has modified their 
monitoring plan such that in either 2013 or 2014, instead of deploying 
the PAM devices as originally planned, the Navy will conduct a survey 
using a visual method (most likely vessel survey), which will augment 
the data gathered by the PAM devices. The PAM devices will be deployed 
in whichever year (2013 or 2014) the visual survey is not conducted. An 
alternate survey technique would ideally be part of a larger focused 
effort during the same time period, in coordination with other agencies 
or research organizations working in the area. While the exact extent 
and technique to be employed is still to be determined (e.g., including 
but not limited to visual surveys), monitoring in 2013 and 2014 is 
expected to receive the same level of fiscal and logistical support as 
the 2011-2012 efforts.
    Comment 56: The MMC recommended that NMFS extend the required 
monitoring period to at least one hour before the resumption of 
training exercises when an animal has been sighted within the safety 
zone and after power-down and shut-down of active sonar sources.
    Response: NMFS does not concur with the MMC that we should expand 
the delay (until sonar can be restarted after a shutdown due to a 
marine mammal sighting) to one hour for the following reasons:
     The ability of an animal to dive for extended periods 
(i.e., greater than 30 minutes) does not mean that it will always do 
so. Therefore, the one hour delay would only potentially add value in 
instances when animals have remained under water for more than 30 
minutes.
     Navy vessels typically move at speeds of 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 moves at 
the slower of the typical speeds associated with active sonar use,

[[Page 25500]]

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 one hour 
delay would add value.
     Additionally, the times when animals are underwater for 
longer periods of time (i.e., deep-diving) 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 vessel moving 
horizontally across the surface.
     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 up to one hour.
    Comment 57: The MMC recommended that NMFS require all members of 
the Navy's mitigation teams to complete the marine mammal training 
program (i.e., the NMFS-approved Marine Species Awareness Training) 
before they participate in any training activities.
    Response: The Navy has Lookouts stationed onboard ships whose 
primary duty is to detect objects in the water, estimate their distance 
from the ship, and identify them as any of a number of inanimate or 
animate objects that are significant to a Navy exercise or as a marine 
mammal so that the mitigation measure can be implemented. Navy Lookouts 
undergo extensive training to learn these skills and the Marine Species 
Awareness Training is used to augment it with some information specific 
to marine mammals that will make them aware of some of the cues that 
they may not otherwise have learned and may contribute to their 
collection of slightly more accurate and descriptive information in 
their reports. However, Lookouts are not expected to identify marine 
mammals to species and they are not expected to provide in-depth 
behavioral or status information on marine mammals.
    Comment 58: The MMC recommended that NMFS require the Navy to use a 
sufficient level of monitoring during all training activities to ensure 
that marine mammals are not being taken in unanticipated ways or 
numbers.
    Response: There are two different types of monitoring required 
pursuant to the GoA TMAA. One type is outlined in the Monitoring Plan, 
which consists of different monitoring methods designed to address a 
series of focused study questions and is conducted by Marine Mammal 
Observers (MMOs).
    The second type of monitoring is routinely conducted by Navy 
Lookouts on surface vessels (and opportunistically by personnel on 
other platforms). This monitoring is used to detect animals so the 
necessary mitigation measure can be implemented. Behavioral data that 
allow for a general assessment of the impacts are collected with other 
information (such as the status of sonar sources), which help verify 
the Navy's implementation of the appropriate mitigation measure. This 
data-gathering requirement is described in more detail in Sec.  218.125 
of the regulatory text entitled ``Requirements for monitoring and 
reporting.''
    Comment 59: One commenter asked if there are plans for any long-
term monitoring (1-2 years) of marine mammals after the training 
activities take place.
    Response: In 2011 and 2012, the Navy plans to deploy two passive 
acoustic monitoring (PAM) devices in the GoA TMAA to detect, locate, 
and potentially track vocalizing marine mammals, as well as provide 
seasonal estimates of presence/absence. These devices will be deployed 
year-round, including during Navy training events. Given the potential 
sea states and ocean conditions during both winter and summer, and the 
relatively infrequent Navy presence in the GoA TMAA, PAM represents the 
best long-term monitoring technique to employ within the GoA TMAA. In 
addition to collecting marine mammal vocalization and echolocation data 
before, during, and after any Navy training event, information can be 
inferred as to whether the training event has an effect or no effect on 
observed vocalizations.
    In response to public comment, the Navy has modified their 
mitigation plan such that in either 2013 or 2014, instead of deploying 
the PAM devices as originally planned, the Navy will conduct a survey 
using a visual method (most likely, vessel survey), which will augment 
the data gathered by the PAM devices. The PAM devices will be deployed 
in whichever year (2013 or 2014) the visual survey is not conducted. An 
alternate survey technique would ideally be part of a larger focused 
effort during the same time period in coordination with other agencies 
or research organizations working in the area. While the exact extent 
and technique to be employed is still to be determined (e.g., including 
but not limited to visual surveys), monitoring in 2013 and 2014 is 
expected to receive the same level of fiscal and logistic support as 
the 2011-2012 efforts.
    Comment 60: One commenter expressed concern over marine mammals 
potentially leaving Alaskan waters to avoid the exposure to sound and 
asks if marine mammals will be tagged/tracked to see how the Navy's 
activities will affect them.
    Response: Currently, there are no plans to conduct tagging/tracking 
studies in the GoA TMAA. At this point, NMFS feels it is more important 
to improve our understanding of the presence, density, and abundance of 
marine mammal species in the area. Therefore, the focus will be on 
deploying PAM devices--two long-term deployments in 2011 and 2012--and 
either additional visual surveys or long-term deployments of PAMs in 
2013 and 2014. A monitoring study for 2015 will be determined after 
adaptive management review, which NMFS has incorporated into the GoA 
TMAA rule and that allows for yearly review of Navy monitoring and 
current science that could influence (allow for the potential 
modification of) monitoring and mitigation measures in subsequent LOAs, 
if appropriate. Separately, the Navy has voluntarily developed and 
funded a number of research plans that are designed to address 
technologies to reduce the impacts of active acoustic sources on marine 
mammals (see Research section).

Subsistence Harvest of Marine Mammals

    Comment 61: One commenter claims that even if Alutiiq, Eyak, and 
Tlingnit Tribes do not use the GoA TMAA for subsistence use, the 
animals used by these Tribes for traditional subsistence do. This 
commenter further requested that NMFS make public the letters that the 
consulted Tribes provided on the Navy's GoA TMAA DEIS.
    Response: NMFS agrees that marine mammals that occur within the GoA 
TMAA are those that may be taken for subsistence use; however, the 
activities in the TMAA do not overlap in space or time with any 
subsistence hunts and should not directly impact any subsistence hunts 
through: Causing abandonment of locations where

[[Page 25501]]

subsistence use takes place; displacing subsistence users; or placing 
physical barriers between marine mammals and hunters. Any effects on 
marine mammals within the TMAA are likely to be behavioral in nature 
and temporary in duration and NMFS' negligible impact determination 
further supports the finding that the Navy training activities will not 
have an unmitigable adverse impact on the availability of marine mammal 
species or stocks for taking for subsistence uses.
    With respect to the second point, pursuant to the Navy's American 
Indian/Alaskan Native policy, letters were sent to 12 local Tribes. 
These letters provided the Navy's preliminary determination that 
potential protected Tribal resources may be affected, but not adversely 
affected by Navy training activities in the GoA TMAA. The Navy asked 
whether the training activities would significantly affect any Tribal 
rights or protected Tribal resources, requested a reply, and invited 
consultation on a Government-to-Government basis. These letters and the 
written responses, if any, will be provided in Navy's Final EIS.
    Comment 62: One commenter took issue with NMFS' claim that no 
Tribes around the GoA had concerns with the Navy's DEIS and assert that 
their Tribe (Tlingit) protested the Navy's plans to conduct training 
exercises in an area where their subsistence animals are known to 
migrate, feed, reproduce, etc.
    Response: NMFS was unaware that the Tlingit protested the Navy's 
plans to conduct training in the GoA TMAA. Under the MMPA, in order to 
issue regulations authorizing the taking of marine mammals incidental 
to the Navy's training activities, NMFS must find that the total taking 
during the 5-year period will have a negligible impact on the affected 
marine mammal species or stocks and will not have an unmitigable 
adverse impact on the availability of such species or stock for taking 
for subsistence use. NMFS has made this determination and prescribed 
regulations setting forth the permissible method of taking, and other 
means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, and on the availability of 
such species or stocks for subsistence use.
    With respect to the EIS process, on April 18, 2008, the Navy sent a 
letter to the Yakutat Tlingit Tribe, asking if the proposed EIS would 
have a significant impact on any of the Tribal rights or resources, and 
therefore require formal Government-to-Government consultation. On June 
4, 2008, via phone call, the Alaska Command (ALCOM) Native Liaison 
confirmed that the Yakutat Tlingit Tribe did not want to initiate 
formal Government-to-Government consultation with the Navy on the Gulf 
of Alaska Navy Training Activities EIS and the proposal would not have 
any significant impact on a Tribal right or resource. The Tribe was 
also sent a letter by Commander, U.S. Pacific Fleet on December 7, 2009 
with a full hard copy of the Draft EIS, asking for their input and 
comments. No comments from the Tribe were received by the Navy on the 
Draft EIS.

Other

    Comment 63: One commenter states that the Navy has recently 
expanded ASW training areas in multiple range complexes, and claims 
that adding the GoA is not justified by any scarcity of other training 
areas.
    Response: As stated in the Navy's EIS, the location, oceanographic 
conditions, and area of training space make the TMAA (and Alaska 
Training Area components) a unique and strategically important training 
venue for the Navy. Furthermore, the GoA is not a recent expansion; the 
Navy has been training in this area for over 30 years.
    Comment 64: Several commenters claim that there was a lack of 
alternatives analysis and establishment of protection areas in Navy's 
DEIS.
    Response: Several comments were received that relate to the Navy's 
DEIS. The purpose of this comment period was for the public to provide 
comments on NMFS' proposed rule. Responses were not provided to 
comments on the EIS if their bearing on the MMPA authorization was not 
clear.
    Comment 65: One commenter states that NMFS mentions a Memorandum of 
Understanding between NMFS and the Navy, but the document is apparently 
not ready, and asks how NMFS can make a determination on this request 
to take marine mammals when all of the documents are not in place for 
public review.
    Response: NMFS and the Navy are still working on this document, but 
it is not intended for public review because it is an internal, 
interagency letter that pertains to coordination and cooperation 
between the two agencies.
    Comment 66: Multiple commenters expressed general opposition to 
Navy activities and NMFS' issuance of an MMPA authorization, citing 
general concerns about the health and welfare of marine mammals.
    Response: NMFS appreciates the commenters' concern for the marine 
mammals that live in the area of the Navy's training activities. The 
MMPA directs NMFS to issue an incidental take authorization if certain 
findings can be made. NMFS has determined that the Navy's GoA TMAA 
exercises will have a negligible impact on the affected species or 
stocks. Additionally, NMFS has worked with the Navy to develop 
mitigation measures that help minimize the impacts to marine mammals 
and a monitoring plan that will increase our understanding of the 
marine mammals in the area and guide their responses in the presence of 
marine mammals. Therefore, NMFS issues the necessary governing 
regulations and plans to issue the requested MMPA authorization.

Estimated Take of Marine Mammals

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

Definition of Harassment

    The Definition of Harassment section of the proposed rule contains 
the definitions of Level A and Level B Harassment, and a discussion of 
which of the previously discussed potential effects of MFAS/HFAS or 
explosive detonations fall into the categories of

[[Page 25502]]

Level A Harassment (permanent threshold shift (PTS), acoustically 
mediated bubble growth, behaviorally mediated bubble growth, and 
physical disruption of tissues resulting from explosive shock waves) or 
Level B Harassment (temporary threshold shift (TTS), acoustic masking 
and communication impairment, and behavioral disturbance rising to the 
level of harassment). See 75 FR 64508, pages 64552-64554. No changes 
have been made to the discussion contained in this section of the 
proposed rule.

Acoustic Take Criteria

    In the Acoustic Take Criteria section of the proposed rule, NMFS 
described the development and application of the acoustic criteria for 
both MFAS/HFAS and explosive detonations (75 FR 64508, pages 64554-
64562). No changes have been made to the discussion contained in this 
section of the proposed rule.

Estimates of Potential Marine Mammal Exposure

    The proposed rule describes in detail how the Navy estimated the 
take that will result from their proposed activities (75 FR 64508, 
pages 64559-64560), which entails the following three general steps: 
(1) A propagation model estimates animals exposed to sources at 
different levels; (2) further modeling determines the number of 
exposures to levels indicated in criteria above (i.e., number of 
takes); and (3) post-modeling corrections refine estimates to make them 
more accurate. More information regarding the models used, the 
assumptions used in the models, and the process of estimating take is 
available in Appendix B of the Navy's application or Appendix D of the 
Navy's DEIS for the GoA TMAA.
    Table 5, which is identical to Table 8 in the proposed rule with a 
few minor corrections, indicates the number of takes that were modeled 
and that are being authorized annually or biennially incidental to the 
Navy's activities, with the following allowances. The Navy has 
carefully characterized the training activities planned for the GoA 
TMAA over the 5 years covered by these regulations; however, evolving 
real-world needs necessitate flexibility in annual activities, which in 
turn is reflected in the annual variation in the potential take of 
marine mammals. NMFS has included language bounding this flexibility in 
the regulatory text (see Sec.  218.122(c)). These potential annual 
variations were considered in the negligible impact analysis and the 
analysis in the proposed rule remains applicable. This language 
indicates that after-action modeled annual takes (i.e., based on the 
activities that were actually conducted and which must be provided with 
the LOA application) of any individual species may vary, but will not 
ultimately exceed the indicated 5 year total for that species by more 
than 10 percent and will not exceed the indicated annual total by more 
than 25 percent in any given year; and that modeled total yearly take 
of all species combined may vary, but may not exceed the combined 
amount indicated below in any given year by more than 10 percent.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TR04MY11.004


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BILLING CODE 3510-22-C

Mortality

    Evidence from five beaked whale strandings, all of which have taken 
place outside the GoA TMAA, and have occurred over approximately a 
decade, suggests that the exposure of beaked whales to MFAS in the 
presence of certain conditions (e.g., multiple units using active 
sonar, steep bathymetry, constricted channels, strong surface ducts, 
etc.) may result in strandings, potentially leading to mortality. 
Although not all five of these physical factors believed to have 
contributed to the likelihood of beaked whale strandings are present, 
in their aggregate, in the GoA TMAA, scientific uncertainty exists 
regarding what other factors, or combination of factors, may contribute 
to beaked whale strandings. Accordingly, to allow for scientific 
uncertainty regarding contributing causes of beaked whale strandings 
and the exact behavioral or physiological mechanisms that can lead to 
the ultimate physical effects (stranding and/or death), the Navy has 
requested authorization for (and NMFS authorizes) take of beaked 
whales, by injury or mortality. Although NMFS authorizes take by injury 
or mortality of up to 15 beaked whales over the course of the 5-year 
regulations, the Navy's model did not predict any injurious takes of 
beaked whales would occur and neither NMFS nor the Navy anticipates 
that marine mammal strandings or mortality will result from the 
operation of MFAS during Navy exercises within the GoA TMAA.

Effects on Marine Mammal Habitat

    NMFS' proposed rule includes a section that addresses the effects 
of the Navy's activities on Marine Mammal Habitat (75 FR 64508, pages 
64562-64564). The analysis preliminarily concluded that the Navy's 
activities would have minimal effects on marine mammal habitat. No 
changes have been made to the discussion contained in this section of 
the proposed rule and NMFS has concluded there would be minimal effects 
on marine mammal habitat.

Analysis and Negligible Impact Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
for an LOA is required to estimate the number of animals that will be 
``taken'' by the specified activities (i.e., takes by harassment only, 
or takes by harassment, injury, and/or death). This estimate informs 
the analysis that NMFS must perform to determine whether the activity 
will have a ``negligible impact'' on the affected species or stock. 
Level B (behavioral) harassment occurs at the level of the 
individual(s) and does not assume any resulting population-level 
consequences, though there are known avenues through which behavioral 
disturbance of individuals can result in population-level effects 
(e.g., pink-footed geese (Anser brachyrhynchus) in undisturbed habitat 
gained body mass and had about a 46-percent reproductive success 
compared with geese in disturbed habitat (being consistently scared off 
the fields on which they were foraging) which did not gain mass and has 
a 17-percent reproductive success). A negligible impact finding is 
based on the lack of likely adverse effects on annual rates of 
recruitment or survival (i.e., population-level effects). An estimate 
of the number of Level B harassment takes, alone, is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through behavioral harassment, NMFS must consider other 
factors, such as the likely nature of any responses (their intensity, 
duration, etc.), the context of any responses (critical reproductive 
time or location, migration, etc.), as well as the number and nature of 
estimated Level A Harassment takes, the number of estimated 
mortalities, and effects on habitat. Generally speaking, and especially 
with other factors being equal, the Navy and NMFS anticipate more 
severe effects from takes resulting from exposure to higher received 
levels (though this is in no way a strictly linear relationship 
throughout species, individuals, or circumstances) and less severe 
effects from takes resulting from exposure to lower received levels.
    In the Analysis and Negligible Impact Determination section of the 
proposed rule, NMFS addressed the issues identified in the preceding 
paragraph in combination with additional detailed analysis regarding 
the severity of the anticipated effects, and including species (or 
group)-specific discussions, to preliminarily determine that Navy 
training will have a negligible impact on the marine mammal species and 
stocks present in the GoA TMAA. No changes have been made to the 
discussion contained in the proposed rule (75 FR 64508, pages 64564-
64574).

Determinations

Negligible Impact

    Based on the analysis contained here and in the proposed rule (and 
other related documents) of the likely effects of the specified 
activity on marine mammals and their habitat and dependent upon the 
implementation of the mitigation and monitoring measures, NMFS finds 
that the total taking from Navy training exercises utilizing MFAS/HFAS 
and underwater explosives in the GoA TMAA will have a negligible impact 
on the affected species or stocks. NMFS issues regulations for these 
exercises that prescribe the means of effecting the least practicable 
adverse impact on marine mammals and their habitat and set forth 
requirements pertaining to the monitoring and reporting of that taking.

Subsistence Harvest of Marine Mammals

    NMFS has determined that the issuance of 5-year regulations and 
subsequent LOAs for Navy training exercises in the GoA TMAA would not 
have an unmitigable adverse impact on the availability of the affected 
species or stocks for subsistence use. The Tribes nearest the GoA TMAA 
include the Alutiiq, Eyak, and Tlingit groups; however, these Tribes do 
not use the TMAA for subsistence. In March 2008, the Navy sent letters 
to 12 Tribes, including those listed above, with the assistance of the 
Alaskan Command's Tribal liaison, requesting Government-to-Government 
consultation pursuant to Executive Order 13175. None of the 12 Tribes 
indicated that they desired consultation on the proposed action. All 12 
Tribes were also provided a copy of the GoA TMAA DEIS for review and 
comment. Comments on the DEIS were received from the Eyak, Afognak, and 
Shoonaq' Tribes. The Navy will continue to keep the Tribes informed of 
the timeframes of future joint training exercises.

ESA

    There are eight marine mammal species under NMFS' jurisdiction that 
are listed as endangered or threatened under the ESA with confirmed or 
possible occurrence in the TMAA: Cook Inlet beluga whale, North Pacific 
right whale, humpback whale, sei whale, fin whale, blue whale, sperm 
whale, and Steller sea lion. Typically, the Cook Inlet beluga whale 
does not leave Cook Inlet, which is approximately 70 nm (129.6 km) from 
the nearest edge of the TMAA. Based on this information, Cook Inlet 
beluga whales are considered extralimital to the TMAA, were not 
considered further for analysis under the MMPA and the Navy concluded 
that their activities will have no effect on Cook Inlet beluga whales. 
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

[[Page 25505]]

section 101(a)(5)(A) of the MMPA for this activity. The Biological 
Opinion concludes that the Navy's activities in the GoA TMAA and NMFS' 
issuance of these regulations are not likely to jeopardize the 
continued existence of threatened or endangered species under NMFS 
jurisdiction or destroy or adversely modify any designated critical 
habitat.

NEPA

    NMFS participated as a cooperating agency on the Navy's Final 
Environmental Impact Statement (FEIS) for the GoA TMAA. NMFS 
subsequently adopted the Navy's FEIS for the purpose of complying with 
the MMPA.

Classification

    This action does not contain any collection of information 
requirements for purposes of the Paperwork Reduction Act.
    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel 
for Regulation of the Department of Commerce certified at the proposed 
rule stage to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule will not have a significant economic 
impact on a substantial number of small entities. The RFA requires 
Federal agencies to prepare an analysis of a rule's impact on small 
entities whenever the agency is required to publish a notice of 
proposed rulemaking. However, a Federal agency may certify, pursuant to 
5 U.S.C. 605 (b), that the action will not have a significant economic 
impact on a substantial number of small entities. During the public 
comment period, NMFS did not receive any comments related to this 
certification. The Navy is the sole entity that will be affected by 
this rulemaking, not a small governmental jurisdiction, small 
organization, or small business, as defined by the RFA. Any 
requirements imposed by a Letter of Authorization issued pursuant to 
these regulations, and any monitoring or reporting requirements imposed 
by these regulations, will be applicable only to the Navy. NMFS does 
not expect the issuance of these regulations or the associated LOAs to 
result in any impacts to small entities pursuant to the RFA. Because 
this action will directly affect the Navy and not a small entity, NMFS 
concludes the action will 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 Navy is the entity subject to the 
regulations and has informed NMFS that, due to unforeseen delays in 
publishing the Final EIS and in the interest of national security and 
homeland defense, it is imperative that these measures go into effect 
upon publication so that the LOA can be issued on or before June 1, 
2011. The Navy has a compelling reason to conduct military readiness 
activities in the GoA TMAA without suspension or interruption. As 
discussed below, suspension/interruption of the Navy's ability to 
conduct training activities disrupts adequate and realistic testing of 
military equipment, vehicles, weapons, and sensors for proper operation 
and suitability for combat 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 develop and maintain proficiency with current 
and emerging defense systems by establishing and executing training 
programs, including at-sea training and exercises, and ensuring naval 
forces have access to the ranges, operating areas, and airspace needed 
to develop and maintain the skills for conducting naval activities. 
Such training is critical to achieving the level of certification, 
proficiency, and readiness needed to ensure that naval forces are 
combat-ready.
    The training requirements are designed to provide the experience 
and familiarity needed to properly prepare U.S. Sailors and Marines for 
operational success. The Navy has identified and scheduled training in 
the Gulf of Alaska for the purpose of acquiring combat-ready 
certification for the fleet forces assigned to the GoA TMAA. Delays in 
training and evaluation affects the Navy's ability to meet its 
statutory mission to deploy worldwide naval forces equipped to meet 
existing and emergent threats. Although a 30-day delay may not affect 
specific training events, it will delay the effective date of the final 
rule, and thus could affect planning for future needs and emergent 
training which cannot be anticipated.
    Waiver of the 30-day delay of the effective date of the final rule 
is in the public interest because it will allow the Navy to conduct 
training activities essential to homeland defense and national 
security, and to put capability into the hands of U.S. Sailors and 
Marines quickly.

List of Subjects in 50 CFR Part 218

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

    Dated: April 25, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    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 N is added to part 218 to read as follows:
Subpart N--Taking and Importing Marine Mammals; Gulf of Alaska 
Temporary Maritime Activities Area (GoA TMAA)
Sec.
218.120 Specified activity and geographical area.
218.121 Effective dates.
218.122 Permissible methods of taking.
218.123 Prohibitions.
218.124 Mitigation.
218.125 Requirements for monitoring and reporting.
218.126 Applications for Letters of Authorization.
218.127 Letters of Authorization.
218.128 Renewal of Letters of Authorization and adaptive management.
218.129 Modifications to Letters of Authorization.

Subpart N--Taking and Importing Marine Mammals; Gulf of Alaska 
Temporary Maritime Activities Area (GoA TMAA)


Sec.  218.120  Specified activity and geographical area.

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

[[Page 25506]]

Maritime Activities Area (GoA TMAA) (as depicted in Figure 1-1 in the 
Navy's application for GoA TMAA), which is bounded by a hexagon with 
the following six corners: 57[deg]30' N. lat., 141[deg]30' W. long.; 
59[deg]36' N. lat., 148[deg]10' W. long.; 58[deg]57' N. lat., 
150[deg]04' W. long.; 58[deg]20' N. lat., 151[deg]00' W. long.; 
57[deg]16' N. lat., 151[deg]00' W. long.; and 55[deg]30' N. lat., 
142[deg]00' W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) 
sources, high-frequency active sonar (HFAS) sources, or similar sources 
for Navy training activities (estimated amounts below):
    (i) AN/SQS-53 (hull-mounted active sonar)--up to 2,890 hours over 
the course of 5 years (an average of 578 hours per year);
    (ii) AN/SQS-56 (hull-mounted active sonar)--up to 260 hours over 
the course of 5 years (an average of 52 hours per year);
    (iii) AN/SSQ-62 (Directional Command Activated Sonobuoy System 
(DICASS) sonobuoys)--up to 1,330 sonobuoys over the course of 5 years 
(an average of 266 sonobuoys per year);
    (iv) AN/AQS-22 (helicopter dipping sonar)--up to 960 ``dips'' over 
the course of 5 years (an average of 192 ``dips'' per year);
    (v) AN/BQQ-10 (submarine hull-mounted sonar)--up to 240 hours over 
the course of 5 years (an average of 48 hours per year);
    (vi) MK-48 (torpedo)--up to 10 torpedoes over the course of 5 years 
(a maximum of 2 torpedoes per year);
    (vii) AN/SSQ-110A (IEER)--up to 400 buoys deployed over the course 
of 5 years (an average of 80 per year maximum combined use of AN/SSQ-
110A or AN/SSQ-125);
    (viii) AN/SSQ-125 (MAC)--up to 400 buoys deployed over the course 
of 5 years (an average of 80 per year maximum combined use of AN/SSQ-
110A or AN/SSQ-125);
    (ix) Range Pingers--up to 400 hours over the course of 5 years (an 
average of 80 hours per year);
    (x) SUS MK-84--up to 120 devices over the course of 5 years (an 
average of 24 per year);
    (xi) PUTR Transponder--up to 400 hours over the course of 5 years 
(an average of 80 hours per year); and
    (xii) MK-39 EMATT Targets--up to 60 devices over the course of 5 
years (an average of 12 per year).
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted 
as part of the training exercises indicated in paragraph (c)(2)(ii) of 
this section:
    (i) Underwater Explosives (Net Explosive Weight (NEW)):
    (A) 5'' Naval Gunfire (9.5 lbs NEW);
    (B) 76 mm rounds (1.6 lbs NEW);
    (C) Maverick (78.5 lbs NEW);
    (D) MK-82 (238 lbs NEW);
    (E) MK-83 (238 lbs NEW);
    (F) MK-83 (574 lbs NEW);
    (G) MK-84 (945 lbs NEW);
    (H) MK-48 (851 lbs NEW);
    (I) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs NEW);
    (ii) Training Events:
    (A) Gunnery Exercises (S-S GUNEX)--up to 60 exercises over the 
course of 5 years (an average of 12 per year);
    (B) Bombing Exercises (BOMBEX)--up to 180 exercises over the course 
of 5 years (an average of 36 per year);
    (C) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (a maximum of 2 per year);
    (D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 400 deployments over the course of 5 years (an 
average of 80 per year);
    (E) Missile exercises (A-S MISSILEX)--up to 20 exercises over the 
course of 5 years (an average of 4 per year).
    (d) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  218.120(c) should the 
amounts (i.e., hours, dips, number of exercises) vary from those 
estimated in Sec.  218.120(c), provided that the variation does not 
result in exceeding the amount of take indicated in Sec.  218.122(c).


Sec.  218.121  Effective dates.

    Regulations in this subpart are effective from May 4, 2011, through 
May 4, 2016.


Sec.  218.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 218.127 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``Navy'') may incidentally, but not 
intentionally, take marine mammals within the area described in Sec.  
218.120(b), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The activities identified in Sec.  218.120(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.120(c) is limited to the species listed below 
in paragraphs (c)(4) and (5) of this section by the indicated method of 
take and the indicated number of times (estimated based on the 
authorized amounts of sound source operation), but with the following 
allowances for annual variation in activities:
    (1) In any given year, annual take, by harassment, of any species 
of marine mammal may not exceed the amount identified in paragraphs 
(c)(4) and (5) of this section, for that species by more than 25 
percent (a post-calculation/estimation of which must be provided in the 
annual LOA application);
    (2) In any given year, annual take by harassment of all marine 
mammal species combined may not exceed the estimated total of all 
species combined, indicated in paragraphs (c)(4) and (5) of this 
section, by more than 10 percent; and
    (3) Over the course of the effective period of this subpart, total 
take, by harassment, of any species may not exceed the 5-year amounts 
indicated in paragraphs (c)(4) and (5) of this section by more than 10 
percent. A running calculation/estimation of takes of each species over 
the course of the years covered by the rule must be maintained.
    (4) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--6,975 (an average of 
1,395 annually);
    (B) Fin whale (Balaenoptera physalus)--55185 (an average of 11,037 
annually);
    (C) Blue whale (Balaenoptera musculus)--10 (an average of 2 
annually);
    (D) Sei whale (Balaenoptera borealis)--40 (an average of 8 
annually);
    (E) Minke whale (Balaenoptera acutorostrata)--3,405 (an average of 
681 annually);
    (F) Gray whale (Eschrichtius robustus)--1,940 (an average of 388 
annually); and
    (G) North Pacific right whale (Eubalaena japonica)--10 (an average 
of 2 annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--1,645 (an average of 329 
annually);
    (B) Killer whale (Orcinus orca)--53,245 (an average of 10,649 
annually);
    (C) Harbor porpoise (Phocoena phocoena)--27,200 (an average of 
5,440 annually);
    (D) Baird's beaked whales (Berardius bairdii)--2,435 (an average of 
487 annually);
    (E) Cuvier's beaked whales (Ziphius cavirostris)--11,560 (an 
average of 2,312 annually);

[[Page 25507]]

    (F) Stejneger's beaked whales (Mesoplodon stejnegeri)--11,565 (an 
average of 2,313 annually);
    (G) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--
84,955 (an average of 16,991 annually); and
    (H) Dall's porpoise (Phocoenoides dalli)--1,031,870 (an average of 
206,374 annually).
    (iii) Pinnipeds:
    (A) Steller sea lion (Eumetopias jubatus)--55,540 (an average of 
11,108 annually)
    (B) California sea lion (Zalophus californianus)--10 (an average of 
2 annually);
    (C) Harbor seal (Phoca vitulina richardsi)--10 (an average of 2 
annually);
    (D) Northern elephant seal (Mirounga angustirostris)--10,345 (an 
average of 2,069 annually); and
    (E) Northern fur seal (Callorhinus ursinus)--771,010 (an average of 
154,202 annually).
    (5) Level A Harassment and/or mortality of no more than 15 beaked 
whales (total), of any of the species listed in Sec.  
218.122(c)(1)(ii)(D) through (F) over the course of the 5-year 
regulations.


Sec.  218.123  Prohibitions.

    No person in connection with the activities described in Sec.  
218.120 may:
    (a) Take any marine mammal not specified in Sec.  218.122(c);
    (b) Take any marine mammal specified in Sec.  218.122(c) other than 
by incidental take as specified in Sec. Sec.  218.122(c)(1), (c)(2), 
and (c)(3);
    (c) Take a marine mammal specified in Sec.  218.122(c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec.  216.106 and 218.127 of this chapter.


Sec.  218.124  Mitigation.

    (a) When conducting training and utilizing the sound sources or 
explosives identified in Sec.  218.120(c), the mitigation measures 
contained in a Letter of Authorization issued under Sec. Sec.  216.106 
and 218.127 of this chapter must be implemented. These mitigation 
measures include, but are not limited to:
    (1) Personnel Training (for all Training Types):
    (i) All commanding officers (COs), executive officers (XOs), 
Lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-Submarine Warfare (ASW) helicopter 
crews shall complete the NMFS-approved Marine Species Awareness 
Training (MSAT) by viewing the U.S. Navy MSAT digital versatile disk 
(DVD). All bridge Lookouts shall complete both parts one and two of the 
MSAT; part two is optional for other personnel.
    (ii) Navy Lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    (iii) Lookout training shall include on-the-job instruction under 
the supervision of a qualified, experienced Lookout. Following 
successful completion of this supervised training period, Lookouts 
shall complete the Personal Qualification Standard Program, certifying 
that they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). Personnel being trained as 
Lookouts can be counted among required Lookouts as long as supervisors 
monitor their progress and performance.
    (iv) Lookouts shall be trained in the most effective means to 
ensure quick and effective communication within the command structure 
in order to facilitate implementation of protective measures if marine 
species are spotted.
    (v) All Lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (vi) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of MFAS/HFAS.
    (2) General Operating Procedures (for all Training Types):
    (i) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species protective measures.
    (ii) COs shall make use of marine species detection cues and 
information to limit interaction with marine mammals to the maximum 
extent possible consistent with safety of the ship.
    (iii) While underway, surface vessels shall have at least two 
Lookouts with binoculars; surfaced submarines shall have at least one 
Lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, Lookouts shall watch for 
and report to the OOD the presence of marine mammals.
    (iv) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be properly 
installed and in good working order to assist in the detection of 
marine mammals in the vicinity of the vessel.
    (v) Personnel on Lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout 
Training Handbook (NAVEDTRA 12968-D).
    (vi) After sunset and prior to sunrise, Lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (vii) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed,'' which means the 
speed at which the CO can maintain crew safety and effectiveness of 
current operational directives, so that the vessel can take action to 
avoid a collision with any marine mammal.
    (viii) When marine mammals have been sighted in the area, Navy 
vessels shall increase vigilance and take all reasonable and 
practicable actions to avoid collisions and activities that might 
result in close interaction of naval assets and marine mammals. Such 
action may include changing speed and/or direction and are dictated by 
environmental and other conditions (e.g., safety, weather).
    (ix) Navy aircraft participating in exercises at sea shall conduct 
and maintain surveillance for marine mammals as long as it does not 
violate safety constraints or interfere with the accomplishment of 
primary operational duties.
    (x) All marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate when it is reasonable 
to conclude that the course of the ship will likely result in a closing 
of the distance to the detected marine mammal.
    (xi) Naval vessels shall maneuver to keep at least 1,500 ft (500 yd 
or 457 m) away from any observed whale in the vessel's path and avoid 
approaching whales head-on. These requirements do not apply if a 
vessel's safety is threatened, such as when change of course will 
create an imminent and serious threat to a person, vessel, or aircraft, 
and to the extent vessels are restricted in their ability to maneuver. 
Restricted maneuverability includes, but is not limited to, situations 
when

[[Page 25508]]

vessels are engaged in dredging, submerged activities, launching and 
recovering aircraft or landing craft, minesweeping activities, 
replenishment while underway and towing activities that severely 
restrict a vessel's ability to deviate course. Vessels shall take 
reasonable steps to alert other vessels in the vicinity of the whale. 
Given rapid swimming speeds and maneuverability of many dolphin 
species, naval vessels would maintain normal course and speed on 
sighting dolphins unless some condition indicated a need for the vessel 
to maneuver.
    (3) Operating Procedures (for Anti-submarine Warfare (ASW) 
Operations):
    (i) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (ii) All surface ships participating in ASW training events shall 
have, in addition to the three personnel on watch noted in paragraph 
(i), at least two additional personnel on watch as Lookouts at all 
times during the exercise.
    (iii) Personnel on Lookout and officers on watch on the bridge 
shall have at least one set of binoculars available for each person to 
aid in the detection of marine mammals.
    (iv) Personnel on Lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, 
discoloration) in the water may be indicative of a threat to the vessel 
and its crew or indicative of a marine mammal that may need to be 
avoided as warranted.
    (v) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (vi) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (vii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yd 
(183 m) of the sonobuoy.
    (viii) Helicopters shall observe/survey the vicinity of an ASW 
exercise for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (ix) Helicopters shall not dip their sonar within 200 yd (183 m) of 
a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yd (183 m) of the sound source after pinging has begun.
    (x) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard Lookout, or acoustically) within 1,000 yd (914 m) 
of the sonar dome (the bow), the ship or submarine shall limit active 
transmission levels to at least 6 decibels (dB) below normal operating 
levels for that source (i.e., limit to at most 229 dB for AN/SQS-53 and 
219 for AN/SQS-56, etc.).
    (A) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the 1,000-yd (914 m) exclusion zone, has not been detected for 
30 minutes, or the vessel has transited more than 2,000 yds (1,829 m) 
beyond the location of the last detection.
    (B) Should a marine mammal be detected within 500 yd (457 m) of the 
sonar dome, active sonar transmissions shall be limited to at least 10 
dB below the equipment's normal operating level (i.e., limit to at most 
225 dB for AN/SQS-53 and 215 for AN/SQS-56, etc.). Ships and submarines 
shall continue to limit maximum ping levels by this 10-dB factor until 
the animal has been seen to leave the 500-yd (457 m) safety zone (at 
which point the 6-dB powerdown applies until the animal leaves the 
1,000-yd (914 m) safety zone), has not been detected for 30 minutes, or 
the vessel has transited more than 2,000 yd (1,829 m) beyond the 
location of the last detection.
    (C) Should the marine mammal be detected within 200 yd (183 m) of 
the sonar dome, active sonar transmissions shall cease. Sonar shall not 
resume until the animal has been seen to leave the 200-yd (183 m) 
safety zone (at which point the 10-dB or 6-dB powerdowns apply until 
the animal leaves the 500-yd (457 m) or 1,000-yd (914 m) safety zone, 
respectively), has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yd (1,829 m) beyond the location of the last 
detection.
    (D) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (xi) Prior to start up or restart of active sonar, operators shall 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (xii) Active sonar levels (generally)--Navy shall operate active 
sonar at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    (xiii) Submarine sonar operators shall review detection indicators 
of close-aboard marine mammals prior to the commencement of ASW 
training events involving MFAS.

    Note to paragraph (a)(3): If the need for power-down should 
arise (as detailed in 218.114(a)(3)(x)) when the Navy is operating a 
hull-mounted or sub-mounted source above 235 db (infrequent), the 
Navy shall follow the requirements as though they were operating at 
235 dB--the normal operating level (i.e., the first power-down will 
be to 229 dB, regardless of at what level above 235 dB active sonar 
was being operated).

    (4) Sinking Exercise:
    (i) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (ii) An exclusion zone with a radius of 1.0 nm (1.9 km) shall be 
established around each target. An additional buffer of 0.5 nm (0.9 km) 
will be added to account for errors, target drift, and animal 
movements. Additionally, a safety zone, which will extend beyond the 
buffer zone by an additional 0.5 nm (0.9 km), shall be surveyed. 
Together, the zones extend out 2 nm (3.7 km) from the target.
    (iii) A series of surveillance over-flights shall be conducted 
within the exclusion and the safety zones, prior to and during the 
exercise, when feasible. Survey protocol shall be as follows:
    (A) Overflights within the exclusion zone shall be conducted in a 
manner that optimizes the surface area of the water observed. This may 
be accomplished through the use of the Navy's Search and Rescue 
Tactical Aid, which provides the best search altitude, ground speed, 
and track spacing for the discovery of small, possibly dark objects in 
the water based on the environmental conditions of the day. These 
environmental conditions include the angle of sun inclination, amount 
of daylight, cloud cover, visibility, and sea state.
    (B) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team shall have completed the Navy's marine mammal training 
program for Lookouts.
    (C) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are

[[Page 25509]]

available. This passive acoustic monitoring shall be maintained 
throughout the exercise. Potential assets include sonobuoys, which can 
be utilized to detect any vocalizing marine mammals (particularly sperm 
whales) in the vicinity of the exercise. The sonobuoys shall be re-
seeded as necessary throughout the exercise. Additionally, if 
submarines are present, passive sonar onboard submarines may be 
utilized to detect any vocalizing marine mammals in the area. The OCE 
shall be informed of any aural detection of marine mammals and shall 
include this information in the determination of when it is safe to 
commence the exercise.
    (D) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence 2 hours prior to the first 
firing.
    (E) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares the safety and exclusion zones free of 
marine mammals.
    (F) If a marine mammal is observed within the exclusion zone, 
firing shall be delayed until the animal is re-sighted outside the 
exclusion zone, or 30 minutes have elapsed. After 30 minutes, if the 
animal has not been re-sighted it can be assumed to have left the 
exclusion zone. The OCE shall determine if the marine mammal is in 
danger of being adversely affected by commencement of the exercise.
    (G) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any marine mammal. If marine 
mammals are sighted within the exclusion zone or buffer zone, the OCE 
shall be notified, and the procedure described above shall be followed.
    (H) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for 2 hours, or until sunset, to 
verify that no marine mammals were harmed.
    (iv) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability.
    (v) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, Beaufort Sea State 3 
or less. In the event of a Beaufort Sea State 4 or above, survey 
efforts shall be increased within the zones. This shall be accomplished 
through the use of an additional aircraft, if available, and conducting 
tight search patterns.
    (vi) The exercise shall not be conducted unless the exclusion zone 
can be adequately monitored visually.
    (vii) In the event that any marine mammals are observed to be 
harmed in the area, NMFS shall be notified as soon as feasible 
following the stranding communication protocol. A detailed description 
of the animal shall be taken, the location noted, and if possible, 
photos taken of the marine mammal. This information shall be provided 
to NMFS via the Navy's regional environmental coordinator for purposes 
of identification (see the draft Stranding Plan for detail).
    (viii) An after action report detailing the exercise's time line, 
the time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (5) Surface-to-Surface Gunnery (up to 5-inch Explosive Rounds):
    (i) For exercises using targets towed by a vessel, target-towing 
vessels shall maintain a trained Lookout for marine mammals when 
feasible. If a marine mammal is sighted in the vicinity, the tow vessel 
shall immediately notify the firing vessel, which shall suspend the 
exercise until the area is clear.
    (ii) A 600-yd (585 m) radius buffer zone shall be established 
around the intended target.
    (iii) From the intended firing position, trained Lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable. Due to the distance between 
the firing position and the buffer zone, Lookouts are only expected to 
visually detect breaching whales, whale blows, and large pods of 
dolphins and porpoises.
    (iv) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within it.
    (6) Surface-to-Surface Gunnery (non-explosive rounds):
    (i) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (ii) From the intended firing position, trained Lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
    (iii) If available, target-towing vessels shall maintain a Lookout 
(unmanned towing vessels will not have a Lookout available). If a 
marine mammal is sighted in the vicinity of the exercise, the tow 
vessel shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (iv) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
    (7) Surface-to-Air Gunnery (Explosive and Non-explosive Rounds):
    (i) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (ii) Vessels shall expedite the attempt to recover any parachute 
deploying aerial targets to reduce the potential for entanglement of 
marine mammals.
    (iii) Target-towing aircraft shall maintain a Lookout if feasible. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
aircraft shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (8) Air-to-Surface Gunnery (Explosive and Non-explosive Rounds):
    (i) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (ii) If surface vessels are involved, Lookout(s) shall visually 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise.
    (iii) Aerial surveillance of the buffer zone for marine mammals 
shall be conducted prior to commencement of the exercise. Aerial 
surveillance altitude of 500 ft to 1,500 ft (152-456 m) is optimum. 
Aircraft crew/pilot shall maintain visual watch during exercises. 
Release of ordnance through cloud cover is prohibited; aircraft must be 
able to actually see ordnance impact areas.
    (iv) The exercise shall be conducted only if marine mammals are not 
visible within the buffer zone.
    (9) Small Arms Training (Grenades, Explosive and Non-explosive 
Rounds)--Lookouts shall visually survey for marine mammals. Weapons 
shall not be fired in the direction of known or observed marine 
mammals.
    (10) Air-to-Surface At-sea Bombing Exercises (explosive bombs and 
rockets):
    (i) If surface vessels are involved, trained Lookouts shall survey 
for marine mammals. Ordnance shall not be targeted to impact within 
1,000 yd (914 m) of known or observed marine mammals.
    (ii) A 1,000-yd (914 m) radius buffer zone shall be established 
around the intended target.
    (iii) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordinance

[[Page 25510]]

through cloud cover is prohibited: Aircraft must be able to see 
ordnance impact areas. Survey aircraft shall employ most effective 
search tactics and capabilities.
    (iv) The exercise shall be conducted only if marine mammals are not 
visible within the buffer zone.
    (11) Air-to-Surface At-Sea Bombing Exercises (Non-explosive Bombs 
and Rockets):
    (i) If surface vessels are involved, trained Lookouts shall survey 
for marine mammals. Ordnance shall not be targeted to impact within 
1,000 yd (914 m) of known or observed marine mammals.
    (ii) A 1,000-yd (914 m) radius buffer zone shall be established 
around the intended target.
    (iii) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: Aircraft must be able to actually 
see ordnance impact areas. Survey aircraft shall employ most effective 
search tactics and capabilities.
    (iv) The exercise shall be conducted only if marine mammals and are 
not visible within the buffer zone.
    (12) Air-to-Surface Missile Exercises (explosive and non-
explosive):
    (i) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying 
at 1,500 ft (457 m) or lower, if safe to do so, and at the slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas.
    (ii) Explosive ordnance shall not be targeted to impact within 
1,800 yd (1646 m) of sighted marine mammals.
    (13) Aircraft Training Activities Involving Non-Explosive Devices:
    (i) Non-explosive devices such as some sonobuoys and inert bombs 
involve aerial drops of devices that have the potential to hit marine 
mammals if they are in the immediate vicinity of a floating target. The 
exclusion zone (200 yd), therefore, shall be clear of marine mammals 
and around the target location.
    (ii) [Reserved]
    (14) Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER):
    (i) Crews shall conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 500 yd (457 m) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct coordinated area clearances.
    (ii) Crews shall conduct a minimum of 30 minutes of visual and 
aural monitoring of the search area prior to commanding the first post 
detonation. This 30-minute observation period may include pattern 
deployment time.
    (iii) For any part of the intended sonobuoy pattern where a post 
(source/receiver sonobuoy pair) shall be deployed within 1,000 yd (914 
m) of observed marine mammal activity, the Navy shall deploy the 
receiver ONLY and monitor while conducting a visual search. When marine 
mammals are no longer detected within 1,000 yd (914 m) of the intended 
post position, the Navy shall co-locate the explosive source sonobuoy 
(AN/SSQ-110A) (source) with the receiver.
    (iv) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
is to include monitoring of own-aircraft sensors from first sensor 
placement to checking off station and out of RF range of these sensors.
    (v) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the diligence 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (vi) Visual Detection--If marine mammals are visually detected 
within 1,000 yd (914 m) of the explosive source sonobuoy (AN/SSQ-110A) 
intended for use, then that payload shall not be detonated. Aircrews 
may utilize this post once the marine mammals have not been re-sighted 
for 30 minutes, or are observed to have moved outside the 1,000-yd (914 
m) safety buffer. Aircrews may shift their multi-static active search 
to another post, where marine mammals are outside the 1,000-yd (914 m) 
safety buffer.
    (vii) Aircrews shall make every attempt to manually detonate the 
unexploded charges at each post in the pattern prior to departing the 
operations area by using the ``Payload 1 Release'' command followed by 
the ``Payload 2 Release'' command. Aircrews shall refrain from using 
the ``Scuttle'' command when two payloads remain at a given post. 
Aircrews shall ensure that a 1,000-yd (914 m) safety buffer, visually 
clear of marine mammals, is maintained around each post as is done 
during active search operations.
    (viii) Aircrews shall only leave posts with unexploded charges in 
the event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In 
these cases, the sonobuoy shall self-scuttle using the secondary or 
tertiary method.
    (ix) The Navy shall ensure all payloads are accounted for. 
Explosive source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall 
be reported as unexploded ordnance via voice communications while 
airborne, then upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (15) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the GoA TMAA'' (available at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm), which is 
incorporated herein by reference, to include the following measures:
    (i) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec.  216.271) occurs during a Major Training Exercise (MTE) 
(as defined in the Stranding Plan, meaning including Multi-strike group 
exercises, Joint Expeditionary exercises, and Marine Air Ground Task 
Force exercises in the GoA TMAA), the Navy shall implement the 
procedures described below.
    (A) The Navy shall implement a Shutdown (as defined in the 
Stranding Response Plan for GoA TMAA) when advised by a NMFS Office of 
Protected Resources Headquarters Senior Official designated in the GoA 
TMAA Stranding Communication Protocol that a USE (as defined in the 
Stranding Response Plan for the GoA TMAA) involving live animals has 
been identified and that at least one live animal is located in the 
water. NMFS and Navy shall communicate, as needed, regarding the 
identification of the USE and the potential need to implement shutdown 
procedures.
    (B) Any shutdown in a given area shall remain in effect in that 
area until NMFS advises the Navy that the subject(s) of the USE at that 
area die or are euthanized, or that all live animals involved in the 
USE at that area have left the area (either of their own volition or 
herded).
    (C) If the Navy finds an injured or dead marine mammal floating at 
sea during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with the species or description of the animal(s), the condition of the 
animal(s) including carcass condition if the animal(s) is/are dead), 
location, time of

[[Page 25511]]

first discovery, observed behavior(s) (if alive), and photo or video of 
the animal(s) (if available). Based on the information provided, NMFS 
shall determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.
    (D) In the event, following a USE, that: Qualified individuals are 
attempting to herd animals back out to the open ocean and animals are 
not willing to leave, or animals are seen repeatedly heading for the 
open ocean but turning back to shore, NMFS and the Navy shall 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of MFAS/HFAS 
activities or explosive detonations, though farther than 14 nm from the 
distressed animal(s), is likely decreasing the likelihood that the 
animals return to the open water. If so, NMFS and the Navy shall 
further coordinate to determine what measures are necessary to further 
minimize that likelihood and implement those measures as appropriate.
    (ii) Within 72 hrs of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the GoA 
TMAA Communication Protocol) regarding the location, number and types 
of acoustic/explosive sources, direction and speed of units using MFAS/
HFAS, and marine mammal sightings information associated with training 
activities occurring within 80 nm (148 km) and 72 hrs prior to the USE 
event. Information not initially available regarding the 80 nm (148 km) 
and 72 hrs prior to the event shall be provided as soon as it becomes 
available. The Navy shall provide NMFS investigative teams with 
additional relevant unclassified information as requested, if 
available.
    (iii) Memorandum of Agreement (MOA)--The Navy and NMFS shall 
develop a MOA, or other mechanism, that will establish a framework 
whereby the Navy can (and provide the Navy examples of how they can 
best) assist NMFS with stranding investigations in certain 
circumstances.
    (b) [Reserved]


Sec.  218.125  Requirements for monitoring and reporting.

    (a) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS is notified immediately ((see 
Communication Plan) or as soon as clearance procedures allow) if an 
injured, stranded, or dead marine mammal is found during or shortly 
after, and in the vicinity of, any Navy training exercise utilizing 
MFAS, HFAS, or underwater explosive detonations. The Navy shall provide 
NMFS with the 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 behavior(s) (if alive), and 
photo or video of the animal(s) (if available). In the event that an 
injured, stranded, or dead marine mammal is found by the Navy that is 
not in the vicinity of, or during or shortly after, MFAS, HFAS, or 
underwater explosive detonations, the Navy shall report the same 
information as listed above as soon as operationally feasible and 
clearance procedures allow.
    (b) General Notification of Ship Strike--In the event of a ship 
strike by any Navy vessel, at any time or place, the Navy shall do the 
following:
    (1) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead, or whether 
its status is unknown.
    (2) Report to NMFS as soon as operationally feasible the size and 
length of animal, an estimate of the injury status (e.g., dead, injured 
but alive, injured and moving, unknown, etc)., vessel class/type and 
operational status.
    (3) Report to NMFS the vessel length, speed, and heading as soon as 
feasible.
    (4) Provide NMFS a photo or video of the animal(s), if equipment is 
available.
    (c) The Navy must conduct all monitoring and/or research required 
under the Letter of Authorization including abiding by the GoA TMAA 
Monitoring Plan. (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications)
    (d) Report on Monitoring required in paragraph (c) of this 
section--The Navy shall submit a report annually on December 15 
describing the implementation and results (through October of the same 
year) of the monitoring required in paragraph (c) of this section. The 
Navy shall standardize data collection methods across ranges to allow 
for comparison in different geographic locations.
    (e) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within 15 calendar days after the completion of any MTER indicating:
    (1) Location of the exercise;
    (2) Beginning and end dates of the exercise; and
    (3) Type of exercise.
    (f) Annual GoA TMAA Report--The Navy shall submit an Annual 
Exercise GoA TMAA Report on December 15 of every year (covering data 
gathered through October). This report shall contain the subsections 
and information indicated below.
    (1) MFAS/HFAS Training Exercises--This section shall contain the 
following information for the following Coordinated and Strike Group 
exercises: Joint Multi-strike Group Exercises; Joint Expeditionary 
Exercises; and Marine Air Ground Task Force GoA TMAA:
    (i) Exercise Information (for each exercise):
    (A) Exercise designator;
    (B) Date that exercise began and ended;
    (C) Location;
    (D) Number and types of active sources used in the exercise;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (G) Total hours of observation by watchstanders;
    (H) Total hours of all active sonar source operation;
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.)); and
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting info (for each sighting in 
each exercise):
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/
pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial Detection Sensor;
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel; i.e., FFG, DDG, 
or CG);
    (G) Length of time observers maintained visual contact with marine 
mammal(s);
    (H) Wave height (ft);
    (I) Visibility;
    (J) Sonar source in use (y/n);
    (K) 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 in (x) above;
    (L) Mitigation Implementation--Whether operation of sonar sensor 
was delayed, or sonar was powered or shut down, and how long the delay 
was;
    (M) If source in use (x) 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); and

[[Page 25512]]

    (N) Observed behavior--Watchstanders shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the 
exercises) of the effectiveness of mitigation measures designed to 
avoid exposing marine mammals to MFAS. This evaluation shall identify 
the specific observations that support any conclusions the Navy reaches 
about the effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information as summarized from non-major training exercises (unit-level 
exercises, such as TRACKEXs):
    (i) Total Hours--Total annual hours of each type of sonar source 
(along with explanation of how hours are calculated for sources 
typically quantified in alternate way (buoys, torpedoes, etc.)).
    (ii) Cumulative Impacts--To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of 
annually reporting other training (i.e., Unit Level Training (ULT)) 
utilizing hull-mounted sonar. The report shall present an annual (and 
seasonal, where practicable) depiction of non-major training exercises 
geographically across the GoA TMAA. The Navy shall include (in the GoA 
TMAA annual report) a brief annual progress update on the status of the 
development of an effective and unclassified method to report this 
information until an agreed-upon (with NMFS) method has been developed 
and implemented.
    (3) Sinking Exercises (SINKEXs)--This section shall include the 
following information for each SINKEX completed that year:
    (i) Exercise info:
    (A) Location;
    (B) Date and time exercise began and ended;
    (C) Total hours of observation by watchstanders before, during, and 
after exercise;
    (D) Total number and types of rounds expended/explosives detonated;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Total hours of passive acoustic search time;
    (G) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (H) Wave height in feet (high, low, and average during exercise); 
and
    (I) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (ii) Individual marine mammal observation during SINKEX (by Navy 
Lookouts) information:
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/
pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height (ft);
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (1) The modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (762 m for SINKEX in the GoA 
TMAA);
    (2) The required exclusion zone (1 nm for SINKEX in the GoA TMAA);
    (3) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in the GoA TMAA); and
    (4) Greater than the required observed distance. For example, in 
this case, the observer shall indicate if < 762 m, from 762 m-1 nm, 
from 1 nm-2 nm, and > 2 nm.
    (K) Observed behavior--Watchstanders shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming etc.), 
including speed and direction.
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
    (M) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (4) Improved Extended Echo-Ranging System (IEER) Summary:
    (i) Total number of IEER events conducted in the GoA TMAA;
    (ii) Total expended/detonated rounds (buoys); and
    (iii) Total number of self-scuttled IEER rounds.
    (5) Explosives Summary--The Navy is in the process of improving the 
methods used to track explosive use to provide increased granularity. 
To the extent practicable, the Navy shall provide the information 
described below for all of their explosive exercises. Until the Navy is 
able to report in full the information below, they shall provide an 
annual update on the Navy's explosive tracking methods, including 
improvements from the previous year.
    (i) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the GoA TMAA; and
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (g) GoA TMAA 5-Yr Comprehensive Report--The Navy shall submit to 
NMFS a draft report that analyzes and summarizes all of the multi-year 
marine mammal information gathered during ASW and explosive exercises 
for which annual reports are required (Annual GoA TMAA Exercise Reports 
and GoA TMAA Monitoring Plan Reports). This report shall be submitted 
at the end of the fourth year of the rule (December 2014), covering 
activities that have occurred through October 2014.
    (h) Comprehensive National ASW Report--By June, 2014, the Navy 
shall submit a draft National Report that analyzes, compares, and 
summarizes the active sonar data gathered (through January 1, 2014) 
from the watchstanders and pursuant to the implementation of the 
Monitoring Plans for the Northwest Training Range Complex, the Southern 
California Range Complex, the Atlantic Fleet Active Sonar Training, the 
Hawaii Range Complex, the Mariana Islands Range Complex, and the Gulf 
of Alaska.
    (i) The Navy shall comply with the Integrated Comprehensive 
Monitoring Program (ICMP) Plan and continue to improve the program in 
consultation with NMFS.


Sec.  218.126  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.  218.120(c) (i.e., the Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance with Sec.  218.127 or a renewal under Sec.  218.128.


Sec.  218.127  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 or biennially subject to renewal 
conditions in Sec.  218.128.
    (b) Each Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;

[[Page 25513]]

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


Sec.  218.128  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
218.127 of this chapter or the activity identified in Sec.  218.120(c) 
shall be renewed annually or biennially upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.126 shall be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12-24 months;
    (2) Receipt of the monitoring reports and notifications within the 
indicated timeframes required under Sec.  218.125(b through j); and
    (3) A determination by NMFS that the mitigation, monitoring, and 
reporting measures required under Sec.  218.124 and the Letter of 
Authorization issued under Sec. Sec.  216.126 and 218.127 of this 
chapter were undertaken and will be undertaken during the upcoming 
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.  216.126 and 216.128 indicates that a substantial 
modification, as determined by NMFS, to the described work, mitigation 
or monitoring undertaken during the upcoming season will occur, 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) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with the Navy 
regarding the practicability of the modifications) if doing so creates 
a reasonable likelihood of more effectively accomplishing the goals of 
mitigation and monitoring set forth in the preamble of these 
regulations. Below are some of the possible sources of new data that 
could contribute to the decision to modify the mitigation or monitoring 
measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from the GoA TMAA or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011.
    (3) Compiled results of Navy-funded research and development (R&D) 
studies (presented pursuant to the Integrated Comprehensive Monitoring 
Plan).
    (4) Results from specific stranding investigations (either from the 
GoA TMAA or other locations, and involving coincident MFAS/HFAS or 
explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded 
by the Navy (described below) or otherwise).


Sec.  218.129  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec.  216.126 
and 218.127 of this chapter and subject to the provisions of this 
subpart, shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec.  218.128, 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.  218.120(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.126 and 218.127 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

[FR Doc. 2011-10440 Filed 5-3-11; 8:45 am]
BILLING CODE 3510-22-P