[Federal Register Volume 78, Number 247 (Tuesday, December 24, 2013)]
[Rules and Regulations]
[Pages 78106-78158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30245]



[[Page 78105]]

Vol. 78

Tuesday,

No. 247

December 24, 2013

Part VII





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Parts 216 and 218





Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy 
Training and Testing Activities in the Hawaii-Southern California 
Training and Testing Study Area; Final Rule

  Federal Register / Vol. 78 , No. 247 / Tuesday, December 24, 2013 / 
Rules and Regulations  

[[Page 78106]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 218

[Docket No. 130107014-3969-02]
RIN 0648-BC52-X


Takes of Marine Mammals Incidental to Specified Activities; U.S. 
Navy Training and Testing Activities in the Hawaii-Southern California 
Training and Testing Study Area

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Upon application from the U.S. Navy (Navy), we (the National 
Marine Fisheries Service) are issuing regulations under the Marine 
Mammal Protection Act (MMPA) to govern the unintentional taking of 
marine mammals incidental to training and testing activities conducted 
in the Hawaii-Southern California Training and Testing (HSTT) Study 
Area from December 2013 through December 2018. These regulations allow 
us to issue Letters of Authorization (LOAs) for the incidental take of 
marine mammals during the Navy's specified activities and timeframes, 
set forth the permissible methods of taking, set forth other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, and set forth requirements pertaining to 
the monitoring and reporting of the incidental take.

DATES: Effective December 24, 2013, through December 24, 2018.

ADDRESSES: To obtain an electronic copy of the Navy's application or 
other referenced documents, visit the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents 
cited in this notice may also be viewed, by appointment, during regular 
business hours, at 1315 East-West Highway, SSMC III, Silver Spring, MD 
20912.

FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Availability

    A copy of the Navy's application may be obtained by visiting the 
Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Navy's Final Environmental Impact 
Statement/Overseas Environmental Impact Statement (FEIS/OEIS) for HSTT 
may be viewed at http://www.hstteis.com. Documents cited in this notice 
may also be viewed, by appointment, during regular business hours, at 
the aforementioned address (see ADDRESSES).

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional, taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and regulations are issued. We are required to grant authorization 
for the incidental taking of marine mammals if we find that the total 
taking will have a negligible impact on the species or stock(s) and 
will not have an unmitigable adverse impact on the availability of the 
species or stock(s) for subsistence uses (where relevant). We must also 
set forth the permissible methods of taking and requirements pertaining 
to the mitigation, monitoring, and reporting of such takings. 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) (Pub. L. 108-
136) amended section 101(a)(5)(A) of the MMPA by removing the small 
numbers and specified geographical region provisions and amending the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (section 3(18)(B) of the MMPA): ``(i) Any 
act that injures or has the significant potential to injure a marine 
mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) 
any act that disturbs or is likely to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of natural behavioral 
patterns, including, but not limited to, migration, surfacing, nursing, 
breeding, feeding, or sheltering, to a point where such behavioral 
patterns are abandoned or significantly altered [Level B Harassment].''

Summary of Request

    On April 13, 2012, NMFS received an application from the Navy 
requesting two LOAs for the take of 39 species of marine mammals 
incidental to Navy training and testing activities to be conducted in 
the HSTT Study Area over 5 years. The Navy submitted an addendum on 
September 24, 2012 and NMFS considered the application complete. The 
Navy requests authorization to take marine mammals by Level A and Level 
B harassment and mortality during training and testing activities. The 
Study Area includes three existing range complexes (Southern California 
(SOCAL) Range Complex, Hawaii Range Complex (HRC), and Silver Strand 
Training Complex (SSTC)) plus pierside locations and areas on the high 
seas where maintenance, training, or testing may occur. These 
activities are considered military readiness activities. Marine mammals 
present in the Study Area may be exposed to sound from active sonar, 
underwater detonations, airguns, and/or pile driving and removal. In 
addition, incidental takes of marine mammals may occur from ship 
strikes. The Navy requests authorization to take 39 marine mammal 
species by Level B harassment and 24 marine mammal species by Level A 
harassment or mortality.
    The Navy's application and the HSTT FEIS/OEIS contain acoustic 
thresholds that, in some instances, represent changes from what NMFS 
has used to evaluate the Navy's activities for previous authorizations. 
The revised thresholds, which the Navy developed in coordination with 
NMFS, are based on the evaluation and inclusion of new information from 
recent scientific studies; a detailed explanation of how they were 
derived is provided in the HSTT FEIS/OEIS Criteria and Thresholds 
Technical Report (available at http://www.hstteis.com). The revised 
thresholds are adopted for this rulemaking after providing the public 
with an opportunity for review and comment via the proposed rule for 
this action, which published on January 31, 2013 (78 FR 6978).
    Further, more generally, NMFS is committed to the use of the best 
available science. NMFS uses an adaptive transparent process that 
allows for both timely scientific updates and public input into agency 
decisions regarding the use of acoustic research and thresholds. NMFS 
is currently in the process of re-evaluating acoustic thresholds based 
on the best available science, as well as how these thresholds are 
applied in the application of the MMPA standards for all activity types 
(not just for Navy activities). This re-evaluation could potentially 
result in changes to the acoustic thresholds or their application as 
they apply to future Navy activities. However, it is important to note 
that while changes in acoustic criteria may affect the enumeration of

[[Page 78107]]

``takes,'' they do not necessarily significantly change the evaluation 
of population level effects or the outcome of the negligible impact 
analysis. Further, while acoustic criteria may also inform mitigation 
and monitoring decisions, the Navy has a robust adaptive management 
program that regularly addresses new information and allows for 
modification of mitigation and/or monitoring measures as appropriate.

Description of Specified Activities

    The proposed rule (78 FR 6978, January 31, 2013) and HSTT FEIS/OEIS 
include a complete description of the Navy's specified activities that 
are being authorized in this final rule. Sonar use, underwater 
detonations, airguns, pile driving and removal, and ship strike are the 
stressors most likely to result in impacts on marine mammals that could 
rise to the level of harassment, thus necessitating MMPA authorization. 
Below we summarize the description of the specified activities.

Overview of Training Activities

    Training activities are categorized into eight functional warfare 
areas (anti-air warfare; amphibious warfare; strike warfare; anti-
surface warfare; anti-submarine warfare; electronic warfare; mine 
warfare; and naval special warfare). The Navy determined that the 
following stressors used in these warfare areas are most likely to 
result in impacts on marine mammals:

 Amphibious warfare (underwater detonations, pile driving and 
removal)
 Anti-surface warfare (underwater detonations)
 Anti-submarine warfare (active sonar, underwater detonations)
 Mine warfare (active sonar, underwater detonations, and marine 
mammal systems (see description below))
 Naval special warfare (underwater detonations)

    The Navy's activities in anti-air warfare, strike warfare, and 
electronic warfare do not involve stressors that could result in 
harassment of marine mammals. Therefore, these activities are not 
discussed further.

Overview of Testing Activities

    Testing activities may occur independently of or in conjunction 
with training activities. Many testing activities are conducted 
similarly to Navy training activities and are also categorized under 
one of the primary mission areas. Other testing activities are unique 
and are described within their specific testing categories. The Navy 
determined that stressors used during the following testing activities 
are most likely to result in impacts on marine mammals:

Naval Air Systems Command (NAVAIR) Testing

 Anti-surface warfare testing (underwater detonations)
 Anti-submarine warfare testing (active sonar, underwater 
detonations)
 Mine warfare testing (active sonar, underwater detonations)
 Naval Sea Systems Command (NAVSEA) Testing
 New ship construction (active sonar, underwater detonations)
 Life cycle activities (active sonar, underwater detonations)
 Anti-surface warfare/anti-submarine warfare testing (active 
sonar, underwater detonations)
 Mine warfare testing (active sonar, underwater detonations)
 Ship protection systems and swimmer defense testing (active 
sonar, airguns)
 Unmanned vehicle testing (active sonar)
 Other testing (active sonar)

Space and Naval Warfare Systems Commands (SPAWAR) Testing

 SPAWAR research, development, test, and evaluation (active 
sonar)

Office of Naval Research (ONR) and Naval Research Laboratory (NRL) 
Testing

 ONR/NRL research, development, test, and evaluation (active 
sonar)

    Other Navy testing activities do not involve stressors that could 
result in marine mammal harassment. Therefore, these activities are not 
discussed further.

Classification of Non-Impulsive and Impulsive Sources Analyzed

    In order to better organize and facilitate the analysis of about 
300 sources of underwater non-impulsive sound or impulsive energy, the 
Navy developed a series of source classifications, or source bins. This 
method of analysis provides the following benefits:

 Allows for new sources to be covered under existing 
authorizations, as long as those sources fall within the parameters of 
a ``bin;''
 Simplifies the data collection and reporting requirements 
anticipated under the MMPA;
 Ensures a conservative approach to all impact analysis because 
all sources in a single bin are modeled as the loudest source (e.g., 
lowest frequency, highest source level, longest duty cycle, or largest 
net explosive weight within that bin);
 Allows analysis to be conducted more efficiently, without 
compromising the results;
 Provides a framework to support the reallocation of source 
usage (hours/explosives) between different source bins, as long as the 
total number and severity of marine mammal takes remain within the 
overall analyzed and authorized limits. This flexibility is required to 
support evolving Navy training and testing requirements, which are 
linked to real world events.

    A description of each source classification is provided in Tables 
1, 2, and 3. Non-impulsive sources are grouped into bins based on the 
frequency, source level when warranted, and how the source would be 
used. Impulsive bins are based on the net explosive weight of the 
munitions or explosive devices. The following factors further describe 
how non-impulsive sources are divided:
    Frequency of the non-impulsive source:

 Low-frequency sources operate below 1 kilohertz (kHz)
 Mid-frequency sources operate at or above 1 kHz, up to and 
including 10 kHz
 High-frequency sources operate above 10 kHz, up to and 
including 100 kHz
 Very high-frequency sources operate above 100 kHz, but below 
200 kHz

    Source level of the non-impulsive source:

 Greater than 160 decibels (dB), but less than 180 dB
 Equal to 180 dB and up to 200 dB
 Greater than 200 dB

    How a sensor is used determines how the sensor's acoustic emissions 
are analyzed. Factors to consider include pulse length (time source is 
on); beam pattern (whether sound is emitted as a narrow, focused beam, 
or, as with most explosives, in all directions); and duty cycle (how 
often a transmission occurs in a given time period during an event).
    There are also non-impulsive sources with characteristics that are 
not anticipated to result in takes of marine mammals. These sources 
have low source levels, narrow beam widths, downward directed 
transmission, short pulse lengths, frequencies beyond known hearing 
ranges of marine mammals, or some combination of these factors. These 
sources were not modeled by the Navy, but are qualitatively analyzed in 
Table 1-4 of the LOA application and the HSTT FEIS/OEIS. In addition, 
impulsive sources with explosive weights less than 0.1 lb net explosive 
weight (less than bin E1) were not modeled.

[[Page 78108]]



                         Table 1--Impulsive Training and Testing Source Classes Analyzed
----------------------------------------------------------------------------------------------------------------
        Source class            Representative munitions                 Net explosive weight (lbs)
----------------------------------------------------------------------------------------------------------------
E1.........................  Medium-caliber projectiles...  0.1-0.25 (45.4-113.4 g).
E2.........................  Medium-caliber projectiles...  0.26-0.5 (117.9-226.8 g).
E3.........................  Large-caliber projectiles....  >0.5-2.5 (>226.8 g-1.1 kg).
E4.........................  Improved Extended Echo         >2.5-5.0 (1.1-2.3 kg).
                              Ranging Sonobuoy.
E5.........................  5 in. (12.7 cm) projectiles..  >5-10 (>2.3-4.5 kg).
E6.........................  15 lb. (6.8 kg) shaped charge  >10-20 (>4.5-9.1 kg).
E7.........................  40 lb. (18.1 kg) demo block/   >20-60 (>9.1-27.2 kg).
                              shaped charge.
E8.........................  250 lb. (113.4 kg) bomb......  >60-100 (>27.2-45.4 kg).
E9.........................  500 lb. (226.8 kg) bomb......  >100-250 (>45.4-113.4 kg).
E10........................  1,000 lb. (453.6 kg) bomb....  >250-500 (>113.4-226.8 kg).
E11........................  650 lb. (294.8 kg) mine......  >500-650 (>226.8-294.8 kg).
E12........................  2,000 lb. (907.2 kg) bomb....  >650-1,000 (>294.8-453.6 kg).
E13........................  1,200 lb. (544.3 kg) HBX       >1,000-1,740 (>453.6-789.3 kg).
                              charge.
----------------------------------------------------------------------------------------------------------------


                             Table 2--Non-Impulsive Training Source Classes Analyzed
----------------------------------------------------------------------------------------------------------------
          Source class category                    Source class                        Description
----------------------------------------------------------------------------------------------------------------
Mid-Frequency (MF): Tactical and non-     MF1..........................  Active hull-mounted surface ship sonar
 tactical sources that produce mid-                                       (e.g., AN/SQS-53C and AN/SQS-60).
 frequency (1 to 10 kHz) signals.
                                          MF1K.........................  Kingfisher object avoidance mode
                                                                          associated with MF1 sonar.
                                          MF2..........................  Active hull-mounted surface ship sonar
                                                                          (e.g., AN/SQS-56).
                                          MF2K.........................  Kingfisher mode associated with MF2
                                                                          sonar.
                                          MF3..........................  Active hull-mounted submarine sonar
                                                                          (e.g., AN/BQQ-10).
                                          MF4..........................  Active helicopter-deployed dipping
                                                                          sonar (e.g., AN/AQS-22 and AN/AQS-13).
                                          MF5..........................  Active acoustic sonobuoys (e.g., AN/SSQ-
                                                                          62 DICASS).
                                          MF6..........................  Active underwater sound signal devices
                                                                          (e.g., MK-84).
                                          MF11.........................  Hull-mounted surface ship sonar with an
                                                                          active duty cycle greater than 80%.
                                          MF12.........................  High duty cycle--variable depth sonar.
High-Frequency (HF) and Very High-        HF1..........................  Active hull-mounted submarine sonar
 Frequency (VHF): Tactical and non-                                       (e.g., AN/BQQ-15).
 tactical sources that produce high-
 frequency (greater than 10 kHz but less
 than 200 kHz) signals.
                                          HF4..........................  Active mine detection, classification,
                                                                          and neutralization sonar (e.g., AN/SQS-
                                                                          20).
Anti-Submarine Warfare (ASW): Tactical    ASW1.........................  MF active Deep Water Active Distributed
 sources such as active sonobuoys and                                     System (DWADS).
 acoustic countermeasures systems used
 during ASW training activities.
                                          ASW2.........................  MF active Multistatic Active Coherent
                                                                          (MAC) sonobuoy (e.g., AN/SSQ-125).
                                          ASW3.........................  MF active towed active acoustic
                                                                          countermeasure systems (e.g., AN/SLQ-
                                                                          25 NIXIE).
                                          ASW4.........................  MF active expendable active acoustic
                                                                          device countermeasures (e.g., MK-3).
Torpedoes (TORP): Source classes          TORP1........................  HF active lightweight torpedo sonar
 associated with active acoustic signals                                  (e.g., MK-46, MK-54, or Anti-Torpedo
 produced by torpedoes.                                                   Torpedo).
                                          TORP2........................  HF active heavyweight torpedo sonar
                                                                          (e.g., MK-48).
----------------------------------------------------------------------------------------------------------------


         Table 3--Non-Impulsive Testing Source Classes Analyzed
------------------------------------------------------------------------
    Source class category         Source class           Description
------------------------------------------------------------------------
Low-Frequency (LF): Sources   LF4.................  Low-frequency
 that produce low-frequency                          sources equal to
 (less than 1 kilohertz                              180 dB and up to
 [kHz]) signals \1\.                                 200 dB
                              LF5.................  Low-frequency
                                                     sources less than
                                                     180 dB
                              LF6.................  Low-frequency sonar
                                                     currently in
                                                     development (e.g.,
                                                     anti-submarine
                                                     warfare sonar
                                                     associated with the
                                                     Littoral Combat
                                                     Ship).
Mid-Frequency (MF): Tactical  MF1.................  Hull-mounted surface
 and non-tactical sources                            ship sonar (e.g.,
 that produce mid-frequency                          AN/SQS-53C and AN/
 (1 to 10 kHz) signals.                              SQS-60).
                              MF1K................  Kingfisher mode
                                                     associated with MF1
                                                     sonar (Sound
                                                     Navigation and
                                                     Ranging).
                              MF2.................  Hull-mounted surface
                                                     ship sonar (e.g.,
                                                     AN/SQS-56).
                              MF3.................  Hull-mounted
                                                     submarine sonar
                                                     (e.g., AN/BQQ-10).
                              MF4.................  Helicopter-deployed
                                                     dipping sonar
                                                     (e.g., AN/AQS-22
                                                     and AN/AQS-13).
                              MF5.................  Active acoustic
                                                     sonobuoys (e.g.,
                                                     DICASS).
                              MF6.................  Active underwater
                                                     sound signal
                                                     devices (e.g., MK-
                                                     84).

[[Page 78109]]

 
                              MF8.................  Active sources
                                                     (greater than 200
                                                     dB).
                              MF9.................  Active sources
                                                     (equal to 180 dB
                                                     and up to 200 dB).
                              MF10................  Active sources
                                                     (greater than 160
                                                     dB, but less than
                                                     180 dB) not
                                                     otherwise binned.
                              MF12................  High duty cycle--
                                                     variable depth
                                                     sonar.
High-Frequency (HF) and Very  HF1.................  Hull-mounted
 High-Frequency (VHF):                               submarine sonar
Tactical and non-tactical                            (e.g., AN/BQQ-10).
 sources that produce high-
 frequency (greater than 10
 kHz but less than 200 kHz)
 signals
                              HF3.................  Hull-mounted
                                                     submarine sonar
                                                     (classified).
                              HF4.................  Mine detection,
                                                     classification, and
                                                     neutralization
                                                     sonar (e.g., AN/SQS-
                                                     20).
                              HF5.................  Active sources
                                                     (greater than 200
                                                     dB).
                              HF6.................  Active sources
                                                     (equal to 180 dB
                                                     and up to 200 dB).
Anti-Submarine Warfare        ASW1................  Mid-frequency Deep
 (ASW): Tactical sources                             Water Active
 such as active sonobuoys                            Distributed System
 and acoustic                                        (DWADS).
 countermeasures systems
 used during the conduct of
 anti-submarine warfare
 testing activities.
                              ASW2................  Mid-frequency
                                                     Multistatic Active
                                                     Coherent sonobuoy
                                                     (e.g., AN/SSQ-125)--
                                                     sources analyzed by
                                                     number of items
                                                     (sonobuoys).
                              ASW2................  Mid-frequency
                                                     sonobuoy (e.g.,
                                                     high duty cycle)--
                                                     Sources that are
                                                     analyzed by hours.
                              ASW3................  Mid-frequency towed
                                                     active acoustic
                                                     countermeasure
                                                     systems (e.g., AN/
                                                     SLQ-25).
                              ASW4................  Mid-frequency
                                                     expendable active
                                                     acoustic device
                                                     countermeasures
                                                     (e.g., MK-3).
Torpedoes (TORP): Source      TORP1...............  Lightweight torpedo
 classes associated with the                         (e.g., MK-46, MK-
 active acoustic signals                             54, or Surface Ship
 produced by torpedoes.                              Defense System).
                              TORP2...............  Heavyweight torpedo
                                                     (e.g., MK-48).
Acoustic Modems (M): Systems  M3..................  Mid-frequency
 used to transmit data                               acoustic modems
 acoustically through water.                         (greater than 190
                                                     dB).
Swimmer Detection Sonar       SD1--SD2............  High-frequency
 (SD): Systems used to                               sources with short
 detect divers and submerged                         pulse lengths, used
 swimmers.                                           for the detection
                                                     of swimmers and
                                                     other objects for
                                                     the purpose of port
                                                     security.
Airguns (AG): Underwater      AG..................  Up to 60 cubic inch
 airguns are used during                             airguns (e.g.,
 swimmer defense and diver                           Sercel Mini-G).
 deterrent training and
 testing activities.
Synthetic Aperture Sonar      SAS1................  MF SAS systems.
 (SAS): Sonar in which
 active acoustic signals are
 post-processed to form high-
 resolution images of the
 seafloor.
                              SAS2................  HF SAS systems.
                              SAS3................  VHF SAS systems.
------------------------------------------------------------------------
\1\ This source class category does not include the SURTASS LFA system,
  which is authorized under a separate rulemaking and EIS/OEIS.

Authorized Action

    Training--Table 4 describes the annual number of impulsive source 
detonations during training activities within the HSTT Study Area, and 
Table 5 describes the annual number of hours or items of non-impulsive 
sources used during training within the HSTT Study Area.

          Table 4--Annual Number of Impulsive Source Detonations During Training in the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
                                                                                             Annual  in-water
                Explosive class                        Net explosive weight  (NEW)       detonations  (training)
----------------------------------------------------------------------------------------------------------------
E1.............................................  (0.1 lb.-0.25 lb.)....................                   19,840
E2.............................................  (0.26 lb.-0.5 lb.)....................                    1,044
E3.............................................  (>0.5 lb.-2.5 lb.)....................                    3,020
E4.............................................  (>2.5 lb.-5 lb.)......................                      668
E5.............................................  (>5 lb.-10 lb.).......................                    8,154
E6.............................................  (>10 lb.-20 lb.)......................                      538
E7.............................................  (>20 lb.-60 lb.)......................                      407
E8.............................................  (>60 lb.-100 lb.).....................                       64
E9.............................................  (>100 lb.-250 lb.)....................                       16
E10............................................  (>250 lb.-500 lb.)....................                       19
E11............................................  (>500 lb.-650 lb.)....................                        8
E12............................................  (>650 lb.-1,000 lb.)..................                      224
E13............................................  (>1,000 lb.-1,740 lb.)................                        9
----------------------------------------------------------------------------------------------------------------


[[Page 78110]]


                  Table 5--Annual Hours and Items of Non-Impulsive Sources Used During Training
                                           Within the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
         Source class category                       Source class                         Annual Use
----------------------------------------------------------------------------------------------------------------
Mid-Frequency (MF) Active sources from   MF1................................  11,588 hours.
 1 to 10 kHz.
                                         MF1K...............................  88 hours.
                                         MF2................................  3,060 hours.
                                         MF2K...............................  34 hours.
                                         MF3................................  2,336 hours.
                                         MF4................................  888 hours.
                                         MF5................................  13,718 items.
                                         MF11...............................  1,120 hours.
                                         MF12...............................  1,094 hours.
High-Frequency (HF) and Very High-       HF1................................  1,754 hours
 Frequency (VHF) Tactical and non-       HF4................................  4,848 hours.
 tactical sources that produce signals
 greater than 10kHz but less than
 200kHz.
Anti-Submarine Warfare (ASW)--Active     ASW1...............................  224 hours.
 ASW sources.
                                         ASW2...............................  1,800 items.
                                         ASW3...............................  16,561 hours.
                                         ASW4...............................  1,540 items.
Torpedoes (TORP)--Active torpedo sonar.  TORP1..............................  170 items.
                                         TORP2..............................  400 items.
----------------------------------------------------------------------------------------------------------------

    Testing--Table 6 describes the annual number of impulsive source 
detonations during testing activities within the HSTT Study Area, and 
Table 7 describes the annual number of hours or items of non-impulsive 
sources used during testing within the HSTT Study Area.

  Table 6--Annual Number of Impulsive Source Detonations During Testing
                               Activities
                       Within the HSTT Study Area
------------------------------------------------------------------------
                                                            Annual in-
                                   Net explosive weight        water
        Explosive class                   (NEW)             detonations
                                                             (testing)
------------------------------------------------------------------------
E1.............................  (0.1 lb.-0.25 lb.).....          14,501
E2.............................  (0.26 lb.-0.5 lb.).....               0
E3.............................  (>0.5 lb.-2.5 lb.).....           2,990
E4.............................  (>2.5 lb.-5 lb.).......             753
E5.............................  (>5 lb.-10 lb.)........             202
E6.............................  (>10 lb.-20 lb.).......              37
E7.............................  (>20 lb.-60 lb.).......              21
E8.............................  (>60 lb.-100 lb.)......              12
E9.............................  (>100 lb.-250 lb.).....               0
E10............................  (>250 lb.-500 lb.).....              31
E11............................  (>500 lb.-650 lb.).....              14
E12............................  (>650 lb.-1,000 lb.)...               0
E13............................  (>1,000 lb.-1,740 lb.).               0
------------------------------------------------------------------------


                  Table 7--Annual Hours and Items of Non-Impulsive Sources Used During Testing
                                           Within the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
         Source class category                       Source class                         Annual use
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Sources that produce  LF4................................  52 hours.
 signals less than 1 kHz \1\.
                                         LF5................................  2,160 hours.
                                         LF6................................  192 hours.
Mid-Frequency (MF) Tactical and non-     MF1................................  180 hours.
 tactical sources that produce signals
 from 1 to 10 kHz.
                                         MF1K...............................  18 hours.
                                         MF2................................  84 hours.
                                         MF3................................  392 hours.
                                         MF4................................  693 hours.
                                         MF5................................  5,024 items.
                                         MF6................................  540 items.
                                         MF8................................  2 hours.
                                         MF9................................  3,039 hours.
                                         MF10...............................  35 hours.
                                         MF12...............................  336 hours.
High-Frequency (HF) and Very High-       HF1................................  1,025 hours.
 Frequency (VHF): Tactical and non-
 tactical sources that produce signals
 greater than 10kHz but less than
 200kHz.
                                         HF3................................  273 hours.
                                         HF4................................  1,336 hours.

[[Page 78111]]

 
                                         HF5................................  1,094 hours.
                                         HF6................................  3,460 hours.
Anti-Submarine Warfare (ASW) Tactical    ASW1...............................  224 hours.
 sources used during anti-submarine
 warfare training and testing
 activities.
                                         ASW2...............................  2,260 items.
                                         ASW2...............................  255 hours.
                                         ASW3...............................  1,278 hours.
                                         ASW4...............................  477 items.
Torpedoes (TORP) Source classes          TORP1..............................  701 items.
 associated with active acoustic
 signals produced by torpedoes.
                                         TORP2..............................  732 items.
Acoustic Modems (M) Transmit data        M3.................................  4,995 hours.
 acoustically through the water.
Swimmer Detection Sonar (SD) Used to     SD1................................  38 hours.
 detect divers and submerged swimmers.
Airguns (AG) Used during swimmer         AG.................................  5 uses.
 defense and diver deterrent training
 and testing activities.
Synthetic Aperture Sonar (SAS): Sonar    SAS1...............................  2,700 hours.
 in which active acoustic signals are
 post-processed to form high-resolution
 images of the seafloor.
                                         SAS2...............................  4,956 hours.
                                         SAS3...............................  3,360 hours.
----------------------------------------------------------------------------------------------------------------
\1\ This source class category does not include the SURTASS LFA system, which is authorized under a separate
  rulemaking and EIS/OEIS.

    Vessels--Representative Navy vessel types, lengths, and speeds used 
in both training and testing activities are shown in Table 8. While 
these speeds are representative, some vessels operate outside of these 
speeds due to unique training, testing, or safety requirements for a 
given event. Examples include increased speeds needed for flight 
operations, full speed runs to test engineering equipment, time 
critical positioning needs, etc. Examples of decreased speeds include 
speeds less than 5 knots or completely stopped for launching small 
boats, certain tactical maneuvers, target launch or retrievals, 
unmanned underwater vehicles, etc.

                 Table 8--Typical Navy Boat and Vessel Types With Length Greater Than 18 Meters
                                         Used Within the HSTT Study Area
----------------------------------------------------------------------------------------------------------------
                                           Example(s) (specifications in meters (m)
           Vessel Type (>18 m)            for length, metric tons (mt) for mass, and    Typical operating speed
                                                       knots for speed)                         (knots)
----------------------------------------------------------------------------------------------------------------
Aircraft Carrier........................  Aircraft Carrier (CVN) length: 333 m beam:  10 to 15.
                                           41 m draft: 12 m displacement: 81,284 mt
                                           max. speed: 30+ knots.
Surface Combatants......................  Cruiser (CG) length: 173 m beam: 17 m       10 to 15.
                                           draft: 10 m displacement: 9,754 mt max.
                                           speed: 30+ knots.
                                          Destroyer (DDG) length: 155 m beam: 18 m
                                           draft: 9 m displacement: 9,648 mt max.
                                           speed: 30+ knots.
                                          Frigate (FFG) length: 136 m beam: 14 m
                                           draft: 7 m displacement: 4,166 mt max.
                                           speed: 30+ knots.
                                          Littoral Combat Ship (LCS) length: 115 m
                                           beam: 18 m draft: 4 m displacement: 3,000
                                           mt max. speed: 40+ knots.
Amphibious Warfare Ships................  Amphibious Assault Ship (LHA, LHD) length:  10 to 15.
                                           253 m beam: 32 m draft: 8 m displacement:
                                           42,442 mt max. speed: 20+ knots.
                                          Amphibious Transport Dock (LPD) length:
                                           208 m beam: 32 m draft: 7 m displacement:
                                           25,997 mt max. speed: 20+ knots.
                                          Dock Landing Ship (LSD) length: 186 m
                                           beam: 26 m draft: 6 m displacement:
                                           16,976 mt max. speed: 20+ knots.
Mine Warship Ship.......................  Mine Countermeasures Ship (MCM) length: 68  5 to 8.
                                           m beam: 12 m draft: 4 m displacement:
                                           1,333 max. speed: 14 knots.
Submarines..............................  Attack Submarine (SSN) length: 115 m beam:  8 to 13.
                                           12 m draft: 9 m displacement: 12,353 mt
                                           max. speed: 20+ knots.
                                          Guided Missile Submarine (SSGN) length:
                                           171 m beam: 13 m draft: 12 m
                                           displacement: 19,000 mt max. speed: 20+
                                           knots.
Combat Logistics Force Ships *..........  Fast Combat Support Ship (T-AOE) length:    8 to 12.
                                           230 m beam: 33 m draft: 12 m
                                           displacement: 49,583 max. speed: 25 knots.
                                          Dry Cargo/Ammunition Ship (T-AKE) length:
                                           210 m beam: 32 m draft: 9 m displacement:
                                           41,658 mt max speed: 20 knots.
 Fleet Replenishment Oilers (T-AO)
 length: 206 m beam: 30 m draft: 11
 displacement: 42,674 mt max. speed: 20
 knots
                                          Fleet Ocean Tugs (T-ATF) length: 69 m
                                           beam: 13 m draft: 5 m displacement: 2,297
                                           max. speed: 14 knots.
Support Craft/Other.....................  Landing Craft, Utility (LCU) length: 41m    3 to 5.
                                           beam: 9 m draft: 2 m displacement: 381 mt
                                           max. speed: 11 knots.
                                          Landing Craft, Mechanized (LCM) length: 23
                                           m beam: 6 m draft: 1 m displacement: 107
                                           mt max. speed: 11 knots.

[[Page 78112]]

 
Support Craft/Other Specialized High      MK V Special Operations Craft length: 25 m  Variable.
 Speed.                                    beam: 5 m displacement: 52 mt max. speed:
                                           50 knots.
----------------------------------------------------------------------------------------------------------------
* CLF vessels are not homeported in Pearl Harbor or San Diego, but are frequently used for various fleet support
  and training support events in the HSTT Study Area.

Duration and Location

    The description of the location of authorized activities has not 
changed from what was provided in the proposed rule and HSTT FEIS/OEIS 
(78 FR 6978, January 31, 2013; pages 6987-6988; http://www.hstteis.com). For a complete description, please see those 
documents. Training and testing activities will be conducted in the 
HSTT Study Area from December 2013 through December 2018. The Study 
Area includes three existing range complexes: the Hawaii Range Complex 
(HRC), the Southern California (SOCAL) Range Complex, and the Silver 
Strand Training Complex (SSTC). Each range complex is an organized and 
designated set of specifically bounded geographic areas, which includes 
a water component (above and below the surface), airspace, and 
sometimes a land component. Operating areas (OPAREAs) and special use 
airspace are established within each range complex. In addition to Navy 
range complexes, the Study Area includes other areas where training and 
testing activities occur, including pierside locations in San Diego Bay 
and Pearl Harbor, the transit corridor between SOCAL and Hawaii, and 
throughout the San Diego Bay. The majority of active sonar activities 
occur in SOCAL and the HRC, while the SSTC is used primarily for 
explosive activities and pile driving. However, hull mounted mid-
frequency active sonar during Major Training Events (MTEs) is not 
typically used in the San Diego Arc area or in areas of high humpback 
whale density around Hawaii (with the exception of water adjacent to 
the Pacific Missile Range Facility). Much less sonar activity and no 
explosive activities are conducted within the transit corridors.

Description of Marine Mammals in the Area of the Specified Activities

    Thirty-nine marine mammal species are known to occur in the Study 
Area, including seven mysticetes (baleen whales), 25 odontocetes 
(dolphins and toothed whales), six pinnipeds (seals and sea lions), and 
the Southern sea otter. Among these species, there are 72 stocks 
managed by NMFS or the U.S. Fish and Wildlife Service (USFWS) in the 
U.S. Exclusive Economic Zone (EEZ). To address a public comment on 
population structure, and consistent with NMFS most recent Pacific 
Stock Assessment Report, a single species may include multiple stocks 
recognized for management purposes (e.g., spinner dolphin), while other 
species are grouped into a single stock due to limited species-specific 
information (e.g., beaked whales belonging to the genus Mesoplodon). 
However, when there is sufficient information available, the Navy's 
take estimates and NMFS' negligible impact determination are based on 
stock-specific numbers. Eight of the 39 marine mammal species are 
endangered and one of the 39 marine mammal species are threatened under 
the Endangered Species Act of 1978 (ESA; 16 U.S.C. 1531 et seq.).
    The Description of Marine Mammals in the Area of the Specified 
Activities section has not changed from what was in the proposed rule 
(78 FR 6978, January 31, 2013; pages 6988-6994). Table 9 of the 
proposed rule provided a list of marine mammals with possible or 
confirmed occurrence within the HSTT Study Area, including stock, 
abundance, and status. Since publishing the proposed rule, NMFS 
released new stock assessment reports for some of the marine mammal 
species occurring within the HSTT Study Area. The new species abundance 
estimates were considered in making our final determinations. Table 
3.4-1 of the HSTT FEIS/OEIS includes a table with the revised species 
abundance estimates. Although not repeated in this final rule, we have 
reviewed these data, determined them to be the best available 
scientific information for the purposes of the rulemaking, and consider 
this information part of the administrative record for this action.
    The proposed rule (78 FR 6978, January 31, 2013; pages 6994-6995), 
the Navy's LOA application and the HSTT FEIS/OEIS include a complete 
description of information on the status, distribution, abundance, 
vocalizations, density estimates, and general biology of marine mammal 
species.

Potential Effects of Specified Activities on Marine Mammals

    For the purpose of MMPA authorizations, NMFS' effects assessments 
serve five 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 harassment or mortality), 
(2) to prescribe other means of effecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (3) 
to determine whether the specified activity would have a negligible 
impact on the affected species or stocks of marine mammals (based on 
the likelihood that the activity would adversely affect the species or 
stock through effects on annual rates of recruitment or survival); (4) 
to determine whether the specified activity would have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses; and (5) to prescribe requirements pertaining to 
monitoring and reporting.
    In the Potential Effects of Specified Activities on Marine Mammals 
section of the proposed rule, we included a qualitative discussion of 
the different ways that Navy training and testing activities may 
potentially affect marine mammals without consideration of mitigation 
and monitoring measures (78 FR 6978, January 31, 2013; pages 6997-
7011). Marine mammals may experience direct physiological effects 
(e.g., threshold shift and non-acoustic injury), acoustic masking, 
impaired communication, stress responses, behavioral disturbance, 
stranding, behavioral responses from vessel movement, and injury or 
death from vessel collisions. NMFS made no changes to the information 
contained in that section of the proposed rule, and it adopts that 
discussion for purposes of this final rule.
    NMFS is constantly evaluating new science and how to best 
incorporate it into our decisions. This process involves careful 
consideration of new data and how it is best interpreted

[[Page 78113]]

within the context of a given management framework. Since publication 
of the proposed rule, a few studies have been published regarding 
behavioral responses that are relevant to the proposed activities and 
energy sources: Moore and Barlow, 2013; DeRuiter et al., 2013; and 
Goldbogen et al., 2013, among others. These articles are specifically 
addressed in the Comments and Responses section of this document. Each 
of these articles emphasizes the importance of context (e.g., 
behavioral state of the animals, distance from the sound source, etc.) 
in evaluating behavioral responses of marine mammals to acoustic 
sources. In addition, New et al., 2013, Houser et al., 2013, and 
Claridge, 2013 were recently published.
    New et al. uses energetic models to investigate the survival and 
reproduction of beaked whales. The model suggests that impacts to 
habitat quality may affect adult female beaked whales' ability to 
reproduce; and therefore, a reduction in energy intake over a long 
period of time may have the potential to impact reproduction. However, 
the SOCAL Range Complex continues to support high densities of beaked 
whales and there is no data to suggest a decline in this population.
    Houser et al. performed a controlled exposure study involving 
California sea lions exposed to a simulated mid-frequency sonar signal. 
The purpose of this Navy-sponsored study was to determine the 
probability and magnitude of behavioral responses by California sea 
lions exposed to differing intensities of simulated mid-frequency sonar 
signals. Houser et al.'s findings are consistent with current 
scientific studies and criteria development concerning marine mammal 
reactions to mid-frequency sonar sounds.
    Claridge published her Ph.D. thesis, which investigated the 
potential effects exposure to mid-frequency active sonar could have on 
beaked whale demographics. In summary, Claridge suggested that lower 
reproductive rates observed at the Navy's Atlantic Undersea Test and 
Evaluation Center (AUTEC), when compared to a control site, were due to 
stressors associated with frequent and repeated use of Navy sonar. 
However, the author noted that there may be other unknown differences 
between the sites. It is also important to note that there were some 
relevant shortcomings of this study. For example, all of the re-sighted 
whales during the 5-year study at both sites were female, which 
Claridge acknowledged can lead to a negative bias in the abundance 
estimation. There was also a reduced effort and shorter overall study 
period at the AUTEC site that failed to capture some of the emigration/
immigration trends identified at the control site. Furthermore, 
Claridge assumed that the two sites were identical and therefore should 
have equal potential abundances; when in reality, there were notable 
physical differences. All of the aforementioned studies were considered 
in NMFS' determination to issue regulations and associated LOAs to the 
Navy for their proposed activities in the HSTT Study Area.
    Also, since the publication of the proposed rule, the Independent 
Scientific Review Panel investigating potential contributing factors to 
a 2008 mass stranding of melon-headed whales (Peponocephala electra) in 
Antsohihy, Madagascar released its final report. This report suggests 
that the operation of a commercial high-powered 12 kHz multi-beam 
echosounder during an industry seismic survey was a plausible and 
likely initial trigger that caused a large group of melon-headed whales 
to leave their typical habitat and then ultimately strand as a result 
of secondary factors such as malnourishment and dehydration. The report 
indicates that the risk of this particular convergence of factors and 
ultimate outcome is likely very low, but recommends that the potential 
be considered in environmental planning. Because of the association 
between tactical mid-frequency active sonar use and a small number of 
marine mammal strandings, the Navy and NMFS have been considering and 
addressing the potential for strandings in association with Navy 
activities for years. In addition to a suite of mitigation intended to 
more broadly minimize impacts to marine mammals, the Navy and NMFS have 
a detailed Stranding Response Plan that outlines reporting, 
communication, and response protocols intended both to minimize the 
impacts of, and enhance the analysis of, any potential stranding in 
areas where the Navy operates.

Mitigation

    In order to issue regulations and LOAs 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.'' NMFS' duty under this ``least practicable 
adverse impact'' standard is to prescribe mitigation reasonably 
designed to minimize, to the extent practicable, any adverse 
population-level impacts, as well as habitat impacts. While population-
level impacts can be minimized only by reducing impacts on individual 
marine mammals, not all takes translate to population-level impacts. 
NMFS' objective under the ``least practicable adverse impact'' standard 
is to design mitigation targeting those impacts on individual marine 
mammals that are most likely to lead to adverse population-level 
effects.
    The NDAA of 2004 amended the MMPA as it relates to military 
readiness activities and the Incidental Take Authorization (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 and testing activities described in the Navy's LOA application 
are considered military readiness activities.
    NMFS reviewed the proposed activities and the suite of proposed 
mitigation measures as described in the Navy's LOA application to 
determine if they would result in the least practicable adverse effect 
on marine mammal species and stocks and their habitat, which includes a 
careful balancing of the degree to which the mitigation measures are 
expected to reduce the likelihood and/or magnitude of adverse impacts 
to marine mammal species or stocks and their habitat with the likely 
effect of the measures on personnel safety, practicality of 
implementation, and impact on the effectiveness of the military 
readiness activity. Included below are the mitigation measures the Navy 
proposed in their LOA application.
    NMFS described the Navy's proposed mitigation measures in detail in 
the proposed rule (78 FR 6978, January 31, 2013; pages 7011-7017), and 
they have not changed. NMFS worked with the Navy in the development of 
the Navy's initially proposed measures, and they are informed by years 
of experience and monitoring. As described in the mitigation 
conclusions below and in responses to comments, and in the HSTT EIS, 
additional measures were considered and analyzed, but ultimately not 
chosen for implementation. However, the Navy's low use of mid-frequency 
active sonar in certain areas of particular importance to marine 
mammals has been clarified in the Comments and Responses section of 
this document. Below are the mitigation measures as agreed upon by the 
Navy and NMFS.
     At least one Lookout during training and testing 
activities;

[[Page 78114]]

     Mitigation zones during impulse and non-impulsive sources 
to avoid or reduce the potential for onset of the lowest level of 
injury, PTS, out to the predicted maximum range (Tables 11 and 12);
     Mitigation zones of 500 yards (yd) (457 meters(m)) for 
whales and 200 yd (183 m) for all other marine mammals (except bow 
riding dolphins) during vessel movement;
     A mitigation zone of 250 yd (229 m) for marine mammals 
during use of towed in-water devices being towed from manned platforms;
     A mitigation zone of 200 yd (183 m) around the intended 
impact location during non-explosive gunnery exercises (all calibers) 
and small and medium caliber explosive gunnery exercises;
     A mitigation zone of 600 yd (549 m) around the intended 
impact location during large caliber explosive gunnery exercises;
     A mitigation zone of 1,000 yd (914 m) around the intended 
impact location during non-explosive bombing exercises;
     A mitigation zone of 1.5 miles (mi) (2.3 kilometers (km)) 
for explosive bombing exercises;
     Standard operating procedures to limit the low risk of 
disease transmission during Navy Marine Mammal Program operations; and
     Humpback whale cautionary area requiring high-level 
clearance if training or testing use of mid-frequency active sonar is 
necessary between December 15 and April 15.

                                        Table 11--Predicted Ranges to TTS, PTS, and Recommended Mitigation Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Predicted average
         Activity category             Bin (representative      Predicted average      (longest) range to     Predicted maximum         Recommended
                                            source) *        (longest) range to TTS           PTS                range to PTS         mitigation zone
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Non-Impulsive Sound
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-Frequency and Hull-Mounted Mid-  MF1 (SQS-53 ASW hull-   3,821 yd (3.5 km) for   100 yd (91 m) for one  N/A..................  6 dB power down at
 Frequency Active Sonar \1\.          mounted sonar).         one ping.               ping.                                         1,000 yd. (914 m); 4
                                                                                                                                    dB power down at 500
                                                                                                                                    yd. (457 m); and
                                                                                                                                    shutdown at 200 yd.
                                                                                                                                    (183 m).
High-Frequency and Non-Hull Mounted  MF4 (AQS-22 ASW         230 yd (210 m) for one  20 yd (18 m) for one   N/A..................  200 yd. (183 m).
 Mid-Frequency Active Sonar.          dipping sonar).         ping.                   ping.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Explosive and Impulsive Sound
--------------------------------------------------------------------------------------------------------------------------------------------------------
Improved Extended Echo Ranging       E4 (Explosive           434 yd (397 m)........  156 yd (143 m).......  563 yd (515 m).......  600 yd (549 m).
 Sonobuoys.                           sonobuoy).
Explosive Sonobuoys using 0.5-2.25   E3 (Explosive           290 yd (265 m)........  113 yd (103 m).......  309 yd (283 m).......  350 yd (320 m).
 lb. NEW.                             sonobuoy).
Anti-Swimmer Grenades..............  E2 (Up to 0.5 lb. NEW)  190 yd (174 m)........  83 yd (76 m).........  182 yd (167 m).......  200 yd (183 m).
                                    --------------------------------------------------------------------------------------------------------------------
Mine Countermeasure and                                                          NEW dependent (see Table 12)
 Neutralization Activities Using
 Positive Control Firing Devices.
                                    --------------------------------------------------------------------------------------------------------------------
Mine Neutralization Diver-Placed     E7 (29 lb. NEW only)..  846 yd (774 m)........  286 yd (262 m).......  541 yd (495 m).......  1,000 yd (915 m).
 Mines Using Time-Delay Firing
 Devices.
Gunnery Exercises--Small-and Medium- E2 (40 mm projectile).  190 yd (174 m)........  83 yd (76 m).........  182 yd (167 m).......  200 yd (183 m).
 Caliber (Surface Target).
Gunnery Exercises--Large-Caliber     E5 (5 in. projectiles   453 yd (414 m)........  186 yd (170 m).......  526 yd (481 m).......  600 yd (549 m).
 (Surface Target).                    at the surface ***).
Missile Exercises up to 250 lb. NEW  E9 (Maverick missile).  949 yd (868 m)........  398 yd (364 m).......  699 yd (639 m).......  900 yd (823 m).
 (Surface Target).
Missile Exercises up to 500 lb. NEW  E10 (Harpoon missile).  1,832 yd (1.7 km).....  731 yd (668 m).......  1,883 yd (1.7 k m)...  2,000 yd (1.8 km).
 (Surface Target).
Bombing Exercises..................  E12 (MK-84 2,000 lb.    2,513 yd (2.3 km).....  991 yd (906 m).......  2,474 yd (2.3 km)....  2,500 yd (2.3 km).**
                                      bomb).
Torpedo (Explosive) Testing........  E11 (MK-48 torpedo)...  1,632 yd (1.5 km).....  697 yd (637 m).......  2,021 yd (1.8 km)....  2,100 yd (1.9 km).
Sinking Exercises..................  E12 (Various sources    2,513 yd (2.3 km).....  991 yd (906 m).......  2,474 yd (2.3 km)....  2.5 nm.
                                      up to the MK-84 2,000
                                      lb. bomb).

[[Page 78115]]

 
At-Sea Explosive Testing...........  E5 (Various sources     525 yd (480 m)........  204 yd (187 m).......  649 yd (593 m).......  1,600 yd (1.4 km).**
                                      less than 10 lb. NEW
                                      at various depths
                                      ***).
Elevated Causeway System--Pile       24 in. steel impact     1,094 yd (1 k m)......  51 yd (46 m).........  51 yd (46 m).........  60 yd (55 m).
 Driving.                             hammer.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The predicted average and maximum ranges have been updated for bins MF1 and MF4 since the proposed rules. These distances are consistent with the
  HSTT FEIS and do not change the recommended mitigation zones. ASW: anti-submarine warfare; NEW: net explosive weight; PTS: permanent threshold shift;
  TTS: temporary threshold shift.
\1\ The mitigation zone would be 200 yd for sources not able to be powered down (e.g., LF4 and LF5).
* This table does not provide an inclusive list of source bins; bins presented here represent the source bin with the largest range to effects within
  the given activity category.
** Recommended mitigation zones are larger than the modeled injury zones to account for multiple types of sources or charges being used.
*** The representative source bin E5 has different range to effects depending on the depth of activity occurrence (at the surface or at various depths).


                  Table 12--Predicted Ranges to Effects and Mitigation Zone Radius for Mine Countermeasure and Neutralization Activities Using Positive Control Firing Devices
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
          Charge size                                    General mine countermeasure and                                              Mine countermeasure and neutralization
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Neutralization activities using positive control firing devices *                 Activities using diver placed charges under positive control**
                                ----------------------------------------------------------------------------------------------------------------------------------------------------------------
  Net explosive weight (bins)     Predicted average   Predicted average    Predicted maximum      Recommended      Predicted average   Predicted average   Predicted maximum      Recommended
                                    range to TTS         range to PTS        range to PTS       mitigation zone      range to TTS        range to PTS        range to PTS       mitigation zone
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2.6-5 lb (1.2-2.3 kg) (E4).....  434 yd............  197 yd.............  563 yd............  600 yd............  545 yd............  169 yd............  301 yd............  350 yd.
                                 (397 m)...........  (180 m)............  (515 m)...........  (549 m)...........  (498 m)...........  (155 m)...........  (275 m)...........  (320 m).
6-10 lb (2.7-4.5 kg) (E5)......  525 yd............  204 yd.............  649 yd............  800 yd............  587 yd............  203 yd............  464 yd............  500 yd.
                                 (480 m)...........  (187 m)............  (593 m)...........  (732 m)...........  (537 m)...........  (185 m)...........  (424 m)...........  (457 m).
11-20 lb (5-9.1 kg) (E6).......  766 yd............  288 yd.............  648 yd............  800 yd............  647 yd............  232 yd............  469 yd............  500 yd.
                                 (700 m)...........  (263 m)............  (593 m)...........  (732 m)...........  (592 m)...........  (212 m)...........  (429 m)...........  (457 m).
21-60 lb (9.5-27.2 kg) (E7) ***  1,670 yd..........  581 yd.............  964 yd............  1,200 yd..........  1,532 yd..........  473 yd............  789 yd............  800 yd.
                                 (1.5 km)..........  (531 m)............  (882 m)...........  (1.1 km)..........  (1.4 km)..........  (432 m)...........  (721 m)...........  (732 m).
61-100 lb (27.7-45.4 kg) (E8)    878 yd............  383 yd.............  996 yd............  1,600 yd..........  969 yd............  438 yd............  850 yd............  850 yd.
 ****.
                                 (802 m)...........  (351 m)............  (911 m)...........  (1.4 m)...........  (886 m)...........  (400 m)...........  (777 m)...........  (777 m).
250-500 lb (113.4-226.8 kg)      1,832 yd..........  731 yd.............  1,883 yd..........  2,000 yd..........  ..................  ..................  ..................  700 yd (640
 (E10).                                                                                                                                                                        m).*****
                                 (1,675 m).........  (668 m)............  (1,721 m).........  (1.8 km)..........  ..................  ..................  ..................  *
501-650 lb (227.3-294.8) (E11).  1,632 yd..........  697 yd.............  2,021 yd..........  2,100 yd..........  ..................  ..................  ..................  N/A.
                                 (1,492 m).........  (637 m)............  (1,848 m).........  (1.9 km)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PTS: permanent threshold shift; TTS: temporary threshold shift.
* These mitigation zones are applicable to all mine countermeasure and neutralization activities conducted in all locations that Tables 2.8-1 through 2.8-5 in the HSTT FEIS/OEIS specifies.
** These mitigation zones are only applicable to mine countermeasure and neutralization activities involving the use of diver placed charges. These activities are conducted in shallow-water
  and the mitigation zones are based only on the functional hearing groups with species that occur in these areas (mid-frequency cetaceans and sea turtles).
*** The E7 bin was only modeled in shallow-water locations so there is no difference for the diver placed charges category.
**** The E8 bin was only modeled for surface explosions, so some of the ranges are shorter than for sources modeled in the E7 bin which occur at depth.
***** The mitigation zone for the E10 charge applies only to very shallow water detonations and is based on empirical data as described in section 5.3.2.1.2.4 of the HSTT FEIS/OEIS (Mine
  Countermeasure and Neutralization Activities Using Positive Control Firing Devices).

Time-Delay Firing Devices

    When mine neutralization activities using diver placed charges (up 
to a 29 lb NEW) are conducted with a time-delay firing device, the 
detonation is fused with a specified time-delay by the personnel 
conducting the activity and is not authorized until the area is clear 
at the time the fuse is initiated. During these activities, the 
detonation cannot be terminated once the fuse is initiated due to human 
safety concerns. During activities using up to a 29 lb NEW (bin E7) 
detonation, the Navy will have four Lookouts and two small rigid hull 
inflatable boats (two Lookouts positioned in each of the two boats) 
monitoring a 1,000-yd (915-m) mitigation zone. In addition, when 
aircraft are used, the pilot or member of the aircrew will serve as an 
additional Lookout. The Navy will monitor the mitigation zone for 30 
minutes before, during, and 30 minutes after the activity to ensure 
that the area is clear of marine mammals and time-delay firing device 
events will only be conducted during daylight hours.

Vessel Strike

    Naval vessels will maneuver to keep at least 500 yd (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

[[Page 78116]]

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 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 will 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. Vessels will take all practical steps to alert 
other vessels in the vicinity of a whale.
    If a large whale surfaces within 500 yd (457 m) of a Navy vessel 
(or if a vessel is within this distance of a large whale for any other 
reason), the vessel should exercise caution, increase vigilance, and 
consider slower speed if operationally supportable and does not 
interfere with safety of navigation until the vessel has moved beyond a 
500 yd (457 m) radius of the observed whale, or any subsequently 
observed whales (whales often travel in pairs within several body 
lengths of one another (fin/blue) and humpbacks in feeding 
aggregations).

Cetacean and Sound Mapping

    NMFS Office of Protected Resources routinely considers available 
information about marine mammal habitat use to inform discussions with 
applicants regarding potential spatio-temporal limitations on their 
activities that might help effect the least practicable adverse impact 
on species or stocks and their habitat (e.g., Humpback Whale Cautionary 
Area). Through the Cetacean and Sound Mapping effort 
(cetsound.noaa.gov), NOAA's Cetacean Density and Distribution Mapping 
Working Group (CetMap) is currently involved in a process to compile 
available literature and solicit expert review to identify areas and 
times where species are known to concentrate for specific behaviors 
(e.g., feeding, breeding/calving, or migration) or be range-limited 
(e.g., small resident populations). These areas, called Biologically 
Important Areas (BIAs), are useful tools for planning and impact 
assessments and are being provided to the public via the CetSound Web 
site, along with a summary of the supporting information. While these 
BIAs are useful tools for analysts, any decisions regarding protective 
measures based on these areas must go through the normal MMPA 
evaluation process (or any other statutory process that the BIAs are 
used to inform)--the designation of a BIA does not pre-suppose any 
specific management decision associated with those areas. Additionally, 
the BIA process is iterative and the areas will be updated as new 
information becomes available. Currently, NMFS has published some BIAs 
in Hawaii (which are considered in the Comments and Responses section 
of this document). The BIAs in other regions, such as the Atlantic and 
West Coast of the continental U.S., are preliminary and are being 
prepared for submission to a peer-reviewed journal for review. NMFS and 
the Navy have discussed the draft BIAs, what Navy activities take place 
in these areas (in the context of what their effects on marine mammals 
might be or whether additional mitigation is necessary), and what 
measures could be implemented to reduce impacts in these areas (in the 
context of their potential to reduce marine mammal impacts and their 
practicability). As we learn more about marine mammal density, 
distribution, and habitat use (and the BIAs are updated), NMFS and the 
Navy will continue to reevaluate appropriate time-area measures through 
the Adaptive Management process outlined in these regulations.

Stranding Response Plan

    NMFS and the Navy developed a Stranding Response Plan for the HRC 
and SOCAL Range Complexes in 2009 as part of previous incidental take 
authorizations (ITAs). The Stranding Response Plans are specifically 
intended to outline applicable requirements in the event that a marine 
mammal stranding is reported in the HRC or SOCAL Range Complex during a 
major training exercise. NMFS considers all plausible causes within the 
course of a stranding investigation and these plans in no way presume 
that any strandings in a Navy range complex are related to, or caused 
by, Navy training and testing activities, absent a determination made 
during investigation. The plans are designed to address mitigation, 
monitoring, and compliance. The Navy is currently working with NMFS to 
refine these plans for the new HSTT Study Area (to include regionally 
specific plans that include more logistical detail) and revised plans 
will be made available here: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Modifications to the Stranding Response 
Plan may also be made through the adaptive management process.

Mitigation Conclusions

    NMFS has carefully evaluated the Navy's proposed suite of 
mitigation measures and considered a broad range of other measures 
(including those recommended during the public comment period) in the 
context of ensuring that NMFS prescribes the means of effecting the 
least practicable adverse impact on the affected marine mammal species 
and stocks and their habitat. Our evaluation of potential measures 
included consideration of the following factors in relation to one 
another: the manner in which, and the degree to which, the successful 
implementation of the required mitigation measures is expected to 
reduce the likelihood and/or magnitude of adverse impacts to marine 
mammal species and stocks and their habitat; the proven or likely 
efficacy of the measures; and the practicability of the suite of 
measures for applicant implementation, including consideration of 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    In some cases, additional mitigation measures are required beyond 
those that the applicant proposes. NMFS may consider the practicability 
of implementing a particular mitigation measure if the best available 
science indicates that the measure (either alone or in combination with 
other mitigation measures) has a reasonable likelihood of accomplishing 
or contributing to the accomplishment of one or more of the goals 
listed below, which in turn would be expected to lessen the likelihood 
and/or magnitude of adverse impacts on marine mammal species or stocks 
and their habitat:
    (a) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (b) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of active sonar, underwater detonations, or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to a, above, or to reducing harassment takes only).
    (c) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of active sonar, underwater detonations, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to a, above, or to reducing harassment takes only).

[[Page 78117]]

    (d) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of MFAS/HFAS, underwater detonations, or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to a, above, or to reducing the severity of harassment takes 
only).
    (e) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (f) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    Based on our evaluation of the Navy's proposed measures, as well as 
other measures considered by NMFS or recommended by the public, NMFS 
has determined that the Navy's proposed mitigation measures (especially 
when the adaptive management component is taken into consideration (see 
Adaptive Management, below)), along with the additions detailed in the 
Mitigation section above, are adequate means of effecting the least 
practicable adverse impacts on marine mammals 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.

Monitoring

    Section 101(a)(5)(A) of the MMPA states that in order to issue an 
incidental take authorization 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.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:

 An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
 An increase in our understanding of how many marine mammals 
are likely to be exposed to levels of active sonar (or in-water 
explosives or other stimuli) that we associate with specific adverse 
effects, such as behavioral harassment, TTS, or PTS;
 An increase in our understanding of how marine mammals respond 
to active sonar (at specific received levels), underwater explosives, 
or other stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [cir] Behavioral observations in the presence of active sonar 
compared to observations in the absence of sonar (need to be able to 
accurately predict received level and report bathymetric conditions, 
distance from source, and other pertinent information);
    [cir] Physiological measurements in the presence of active sonar 
compared to observations in the absence of tactical sonar (need to be 
able to accurately predict received level and report bathymetric 
conditions, distance from source, and other pertinent information);
    [cir] Pre-planned and thorough investigation of stranding events 
that occur coincident to naval activities; and
    [cir] Distribution and/or abundance comparisons in times or areas 
with concentrated active sonar versus times or areas without active 
sonar.
 An increased knowledge of the affected species; and
 An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.
    NMFS described an overview of Navy monitoring and research, 
highlighted recent findings, and explained the Navy's new approach to 
monitoring in the proposed rule (78 FR 6978, January 31, 2013; pages 
7017-7020). Below is a summary of the Navy's Integrated Comprehensive 
Monitoring Program (ICMP) and the Navy's Strategic Planning Process for 
Marine Species Monitoring. A summary of the Navy's potential HSTT 
projects in 2014 is included in Response 2 of the Comments and 
Responses section of this document and will be detailed through the 
Navy Marine Species Monitoring web portal (http://www.navymarinespeciesmonitoring.us/ us/).
    Integrated Comprehensive Monitoring Program (ICMP)--The Navy's ICMP 
is intended to coordinate monitoring efforts across all regions and to 
allocate the most appropriate level and type of effort for each range 
complex based on a set of standardized objectives, and in 
acknowledgement of regional expertise and resource availability. The 
ICMP is designed to be flexible, scalable, and adaptable through the 
adaptive management and strategic planning processes to periodically 
assess progress and reevaluate objectives. Although the ICMP does not 
specify actual monitoring field work or projects, it does establish 
top-level goals that have been developed in coordination with NMFS. As 
the ICMP is implemented, detailed and specific studies will be 
developed which support the Navy's top-level monitoring goals. In 
essence, the ICMP directs that monitoring activities relating to the 
effects of Navy training and testing activities on marine species 
should be designed to accomplish one or more top-level goals. 
Monitoring will address the ICMP top-level goals through a collection 
of specific regional and ocean basin studies based on scientific 
objectives. Quantitative metrics of monitoring effort (e.g., 20 days of 
aerial surveys) will not be a specific requirement. The adaptive 
management process and reporting requirements will serve as the basis 
for evaluating performance and compliance, primarily considering the 
quality of the work and results produced, as well as peer review and 
publications, and public dissemination of information, reports and 
data. Details of the current ICMP are available online (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications and at http://www.navymarinespeciesmonitoring.us/ us/).
    Strategic Planning Process for Marine Species Monitoring--The Navy 
also developed the Strategic Planning Process for Marine Species 
Monitoring, which establishes the guidelines and processes necessary to 
develop, evaluate, and fund individual projects based on objective 
scientific study questions. The process uses an underlying framework 
designed around top-level goals, a conceptual framework incorporating a 
progression of knowledge, and in consultation with the Scientific 
Advisory Group and other regional experts. The Strategic Planning 
Process for Marine Species Monitoring

[[Page 78118]]

will be used to set intermediate scientific objectives, identify 
potential species of interest at a regional scale, and evaluate and 
select specific monitoring projects to fund or continue supporting for 
a given fiscal year. This process will also address relative 
investments to different range complexes based on goals across all 
range complexes, and monitoring would leverage multiple techniques for 
data acquisition and analysis whenever possible. The Strategic Planning 
Process for Marine Species Monitoring is also available on our Web site 
(http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications) and 
at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Past and Current Monitoring in the HSTT Study Area

    NMFS has received multiple years' worth of annual exercise and 
monitoring reports addressing active sonar use and explosive 
detonations within the HRC, SOCAL Range Complex, and the SSTC. The data 
and information contained in these reports have been considered in 
developing mitigation and monitoring measures for the training and 
testing activities within the HSTT Study Area. The Navy's annual 
exercise and monitoring reports may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications and http://www.navymarinespeciesmonitoring.us. NMFS' summary of the Navy's 
monitoring reports was included in the proposed rule (78 FR 6978, 
January 31, 2013; pages 7018-7019).

Monitoring for the HSTT Study Area

    2014 will be a transitional year for Navy monitoring so that 
ongoing data collection from the Navy's current HRC and SOCAL 
rulemakings can be completed. Therefore, monitoring in 2014 will be a 
combination of previously funded Fiscal Year 2013 (FY-13) ``carry-
over'' projects and new FY-14 project starts. A more detailed 
description of the Navy's planned projects starting in 2014 (and some 
continuing from previous years) is available on NMFS Web site 
(www.nmfs.noaa.gov/pr/permits/incidental.htm#applications). The Navy 
will update the status of its monitoring program and funded projects 
through their Navy Marine Species Monitoring web portal: http://www.navymarinespeciesmonitoring.us/. Potential HSTT projects for 2014 
are summarized in Response 2 of the Comments and Responses section of 
this document. NMFS will provide one public comment period on the 
Navy's monitoring program during the 5-year regulations. At this time, 
the public will have an opportunity (likely in the second year) to 
comment specifically on the Navy's HSTT monitoring projects and data 
collection to date, as well as planned projects for the remainder of 
the regulations.
    Through the adaptive management process (including annual 
meetings), the Navy will coordinate with NMFS and the Marine Mammal 
Commission (Commission) to review and provide input for projects that 
will meet the scientific objectives that are used to guide development 
of individual monitoring projects. The adaptive management process will 
continue to serve as the primary venue for both NMFS and the Commission 
to provide input on the Navy's monitoring program, including ongoing 
work, future priorities, and potential new projects. The Navy will 
continue to submit annual monitoring reports to NMFS as part of the 
HSTT rulemaking and LOA requirements. Each annual report will contain a 
section describing the adaptive management process and summarize the 
Navy's anticipated monitoring projects for the next reporting year. 
Following annual report submission to NMFS, the final rule language 
mandates a 3-month NMFS review prior to each report being finalized. 
This will provide ample time for NMFS and the Commission to comment on 
the next year's planned projects as well as ongoing regional projects 
or proposed new starts. Comments will be received by the Navy prior to 
the annual adaptive management meeting to facilitate a meaningful and 
productive discussion. NMFS and the Commission will also have the 
opportunity for involvement at the annual monitoring program science 
review meetings and/or regional Scientific Advisory Group meetings. 
This will help NMFS and the Commission stay informed and understand the 
scientific considerations and limitations involved with planning and 
executing various monitoring projects.

Adaptive Management

    Although substantial improvements have been made in our 
understanding of the effects of Navy training and testing activities 
(e.g., sonar, underwater detonations) on marine mammals, 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.
    The reporting requirements associated with this rule are designed 
to provide NMFS with monitoring data from the previous year to allow us 
to consider whether any changes are appropriate. NMFS, the Navy, and 
the Commission will meet to discuss the monitoring reports, Navy R&D 
developments, current science, and whether mitigation or monitoring 
modifications are appropriate. The use of adaptive management allows 
NMFS to consider new information from different sources to determine 
(with input from the Navy regarding practicability) on an annual or 
biennial basis if mitigation or monitoring measures should be modified 
(including additions or deletions). Mitigation measures could be 
modified if new data suggests that such modifications would have a 
reasonable likelihood of reducing adverse effects to marine mammals 
species or stocks and their habitat and if the measures are 
practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring and exercise and testing reports, as required by MMPA 
authorizations; (2) compiled results of Navy funded R&D studies; (3) 
results from specific stranding investigations; (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 LOAs.

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. NMFS described the proposed Navy 
reporting requirements in the proposed rule (78 FR 6978, January 31, 
2013; page 7021). Since then, the Navy has expanded on those reports to 
include specific language for testing activities, which is detailed in 
the regulatory text at the end of this document. Reports from 
individual monitoring events, results of analyses, publications, and 
periodic progress reports for specific monitoring projects will be 
posted to the Navy's Marine Species Monitoring web portal: http://www.navymarinespeciesmonitoring.us and NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. There are 
several different reporting requirements

[[Page 78119]]

that are further detailed in the regulatory text at the end of this 
document and summarized below.

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS (the appropriate Regional 
Stranding Coordinator) is notified immediately (or as soon as clearance 
procedures allow) if an injured or dead marine mammal is found during 
or shortly after, and in the vicinity of, any Navy training or testing 
activities utilizing active sonar or underwater explosive detonations. 
The Navy will provide NMFS with species identification or a description 
of the animal(s), the condition of the animal(s) (including carcass 
condition if the animal is dead), location, time of first discovery, 
observed behaviors (if alive), and photographs or video (if available). 
The HSTT Stranding Response Plan contains further reporting 
requirements for specific circumstances (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications).

Vessel Strike

    Since the proposed rule, NMFS has added the following language to 
address monitoring and reporting measures specific to vessel strike. 
Most of this language comes directly from the Stranding Response Plan. 
This section has also been included in the regulatory text at the end 
of this document. In the event that a Navy vessel strikes a whale, the 
Navy shall do the following:
    Immediately report to NMFS (pursuant to the established 
Communication Protocol) the:
     Species identification (if known);
     Location (latitude/longitude) of the animal (or location 
of the strike if the animal has disappeared);
     Whether the animal is alive or dead (or unknown); and
     The time of the strike.
    As soon as feasible, the Navy shall report to or provide to NMFS, 
the:
     Size, length, and description (critical if species is not 
known) of animal;
     An estimate of the injury status (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared, etc.);
     Description of the behavior of the whale during event, 
immediately after the strike, and following the strike (until the 
report is made or the animal is no longer sighted);
     Vessel class/type and operational status;
     Vessel length;
     Vessel speed and heading; and
     To the best extent possible, obtain a photo or video of 
the struck animal, if the animal is still in view.
    Within 2 weeks of the strike, provide NMFS:
     A detailed description of the specific actions of the 
vessel in the 30-minute timeframe immediately preceding the strike, 
during the event, and immediately after the strike (e.g., the speed and 
changes in speed, the direction and changes in direction, other 
maneuvers, sonar use, etc., if not classified);
     A narrative description of marine mammal sightings during 
the event and immediately after, and any information as to sightings 
prior to the strike, if available; and use established Navy shipboard 
procedures to make a camera available to attempt to capture photographs 
following a ship strike.
    NMFS and the Navy will coordinate to determine the services the 
Navy may provide to assist NMFS with the investigation of the strike. 
The response and support activities to be provided by the Navy are 
dependent on resource availability, must be consistent with military 
security, and must be logistically feasible without compromising Navy 
personnel safety. Assistance requested and provided may vary based on 
distance of strike from shore, the nature of the vessel that hit the 
whale, available nearby Navy resources, operational and installation 
commitments, or other factors.

Annual Monitoring and Exercise and Testing Reports

    As noted above, reports from individual monitoring events, results 
of analyses, publications, and periodic progress reports for specific 
monitoring projects will be posted to the Navy's Marine Species 
Monitoring web portal and NMFS' Web site as they become available. 
Progress and results from all monitoring activity conducted within the 
HSTT Study Area, as well as required Major Training Event exercise and 
testing activity, will be summarized in an annual report.
    In the past, each annual report has summarized data for a single 
year. At the Navy's suggestion, the annual reports under this final 
rule will take a cumulative approach in that each report will compare 
data from that year to all previous years. For example, the third 
annual report will include data from the third year and compare it to 
data from the first and second years. This will provide an ongoing 
cumulative look at the Navy's annual monitoring and exercise and 
testing reports and eliminate the need for a separate comprehensive 
monitoring and exercise summary report (as included in the proposed 
rule) at the end of the 5-year period. A draft of the annual reports 
will be submitted to NMFS for review in April of each year in order to 
cover the entire reporting period for the authorization. NMFS will 
review the reports and provide comments for incorporation within 3 
months.

Comments and Responses

    On January 13, 2013 (78 FR 6978), NMFS published a proposed rule in 
response to the Navy's request to take marine mammals incidental to 
training and testing activities in the HSTT Study Area and requested 
comments, information, and suggestions concerning the request. During 
the 30-day public comment period, NMFS received over 200 comments from 
private citizens, the Marine Mammal Commission (Commission), and 
several non-governmental organizations, including the Natural Resources 
Defense Council (NRDC), the Cascadia Research Collective (CRC), and 
Earthjustice (on behalf of the Center for Biological Diversity and 
Ocean Mammal Institute). Comments specific to section 101(a)(5)(A) of 
the MMPA and NMFS' analysis of impacts to marine mammals are 
summarized, sorted into general topic areas, and addressed below and/or 
throughout the final rule. Comments specific to the FEIS/OEIS, which 
NMFS participated in developing as a cooperating agency and adopted, or 
that were also submitted to the Navy during the DEIS/OEIS public 
comment period are addressed in Appendix E (Public Participation) of 
the FEIS/OEIS. Last, some commenters presented technical comments on 
the general behavioral risk function that are largely identical to 
those posed during the comment period for the HRC proposed rule, one of 
the predecessors to the HSTT rule. The behavioral risk function remains 
unchanged since then, and here we incorporate our responses to those 
initial technical comments (74 FR 1455, Acoustic Threshold for 
Behavioral Harassment section, page 1473). Full copies of the comment 
letters may be accessed at http://www.regulations.gov.

Monitoring and Reporting

    Comment 1: The Commission recommended that we require the Navy to 
use passive and active acoustics to supplement visual monitoring during 
implementation of mitigation measures for all activities that could 
cause Level A harassment or mortality. Specifically, the Commission 
questioned why passive and active acoustic monitoring used during the 
Navy's Surveillance Towed Array Sensory System Low

[[Page 78120]]

Frequency Active (SURTASS LFA) activities is not applied here.
    Response 1: The Navy requested Level A take of marine mammals for 
impulse and non-impulse sources during training and testing based on 
its acoustic analysis. The Navy also requested take of marine mammals 
by mortality for impulse sources, unspecified sources (impulse or non-
impulse), and vessel strike. While it is impractical for the Navy to 
conduct passive acoustic monitoring during all training and testing 
activities, the Navy has engineered the use of passive acoustic 
detection for monitoring purposes, taking into consideration where the 
largest impacts could potentially occur, and the effectiveness and 
practicality of installing or using these devices. The Navy will use 
passive acoustic monitoring to supplement visual observations during 
Improved Extended Echo Ranging (IEER) sonobuoy activities, explosive 
sonobuoys using 0.6-2.5 pound (lb) net explosive weight, torpedo 
(explosive) testing, and sinking exercises, to detect marine mammal 
vocalizations. However, it is important to note that passive acoustic 
detections do not provide range or bearing to detected animals, and 
therefore cannot provide locations of these animals. Passive acoustic 
detections will be reported to Lookouts to increase vigilance of the 
visual surveillance.
    The active sonar system used by SURTASS LFA is unique to the 
platforms that use SURTASS LFA. Moreover, this system requires the 
platforms that carry SURTASS LFA to travel at very slow speeds for the 
system to be effective. For both of these reasons it is not possible 
for the Navy to use this system for the platforms analyzed in the HSTT 
EIS/OEIS.
    NMFS believes that the Navy's suite of mitigation measures (which 
include mitigation zones that exceed or meet the predicted maximum 
distance to PTS) will typically ensure that animals will not be exposed 
to injurious levels of sound. To date, the Navy has conducted and 
submitted 22 post-explosive monitoring reports for the HRC between 2009 
and 2012, none of which show any evidence of injured marine mammals. In 
addition, within the SSTC portion of the HSTT Study Area, the Navy has 
conducted eight post-explosive monitoring events between 2012 and 2013, 
none of which show any evidence of injured marine mammals.
    Comment 2: The Commission recommended that NMFS require the Navy to 
submit a proposed monitoring plan for public review and comment prior 
to issuance of final regulations.
    Response 2: NMFS provided an overview of the Navy's Integrated 
Comprehensive Monitoring Program (ICMP) in the proposed rule (78 FR 
6978, January 31, 2013). While the ICMP does not specify actual 
monitoring field work or projects, it does establish top-level goals 
that have been developed by the Navy and NMFS. As explained in the 
proposed rule, detailed and specific studies will be developed as the 
ICMP is implemented and funding is allocated.
    Since the proposed rule was published, the Navy has provided a more 
detailed short-term plan for the first year of the rule. 2014 will be a 
transitional year with ongoing data collection straddling the shift 
from Phase I (metric-based) to Phase II Compliance Monitoring. 
Therefore, monitoring in 2014 will be a combination of previously 
funded FY-13 ``carry-over'' projects from Phase I and new FY-14 project 
starts under the vision for Phase II monitoring. A more detailed 
description of the Navy's planned projects starting in 2014 (and some 
continuing from previous years) is available on NMFS Web site 
(www.nmfs.noaa.gov/pr/permits/incidental.htm#applications).
    Additionally, NMFS will provide one public comment period on the 
Navy's monitoring program during the 5-year regulations. At this time, 
the public will have an opportunity (likely in the second year) to 
comment specifically on the Navy's HSTT monitoring projects and data 
collection to date, as well as planned projects for the remainder of 
the regulations.
    In summary, HSTT projects in 2014 may include analysis of passive 
acoustic data from Ecological Acoustic Recorders (EARs) around Niihau 
and Kaula Island; an exposure and response study of species exposed to 
mid-frequency active sonar during Naval training events around Kauai; 
post-training event aerial shoreline surveys for stranded marine 
mammals around Niihau and Kauai; post-training event ground-based 
shoreline surveys for stranded marine mammals following a Navy training 
event around Niihau; a pre-training event visual survey, cetacean 
tagging, and passive acoustic monitoring around Kauai and Kaula Island; 
a glider survey of the HRC; the use of marine mammal observers on 
guided missile destroyers and at Puuloa during underwater detonations. 
In addition, two SOCAL projects were already funded in FY-13 and field 
work will continue through 2014. Details of already funded projects are 
available through the Navy Marine Species Monitoring web portal (http://www.navymarinespeciesmonitoring.us/ us/). The Navy will update the status 
of their monitoring projects through this site, which serves as a 
public portal for information regarding all aspects of the Navy's 
monitoring program, including background and guidance documents, access 
to reports and data, and specific information on current monitoring 
projects. The public will also have the opportunity to review the 
Navy's monitoring reports, which will be posted and available for 
download every year form the Navy's Marine Species Monitoring web 
portal (http://www.navymarinespeciesmonitoring.us/ us/).
    Through the adaptive management process (including annual 
meetings), the Navy will coordinate with NMFS and the Commission to 
review and revise, if required, the list of intermediate scientific 
objectives that are used to guide development of individual monitoring 
projects. As described previously in the Monitoring section of this 
document, NMFS and the Commission will also have the opportunity to 
attend monitoring program science review meetings and/or regional 
Scientific Advisory Group meetings.
    The Navy will continue to submit annual monitoring reports to NMFS, 
which will describe the results of the adaptive management process and 
summarize the Navy's anticipated monitoring projects for the next 
reporting year. NMFS will have a 3-month review period to comment on 
the next year's planned projects, ongoing regional projects, and 
proposed new project starts. NMFS' comments will be submitted to the 
Navy prior to the annual adaptive management meeting to facilitate a 
meaningful and productive discussion between NMFS, the Navy, and the 
Commission.
    Comment 3: One commenter recommended the use of remote control 
underwater video cameras to help monitor for marine mammals.
    Response 3: The use of remote control underwater video cameras is 
not a practical means of monitoring during Navy training and testing 
activities due to the inability to observe a large enough range to 
protect marine mammals from acoustic or explosive effects; expansive 
monitoring areas; the lack of personnel and resources available; and 
safety and security concerns.
    Comment 4: One commenter asked about the qualifications, training, 
and time schedules of observers.
    Response 4: The Navy has Lookouts stationed onboard ships whose 
primary duty is to detect objects in the water, estimate the distance 
from the ship, and identify them as any number of

[[Page 78121]]

inanimate or animate objects that are significant to a Navy activity or 
as a marine mammal so that the mitigation measure can be implemented. 
Navy Lookouts undergo extensive training to learn these skills and the 
Navy's Marine Species Awareness Training is used to make them more 
aware of marine mammal species and behaviors. Detailed information on 
the Navy's Marine Species Awareness Training program, which speaks to 
qualifications and training, is also provided in Chapter 5 of the HSTT 
FEIS/OEIS. Lookouts are used continuously, throughout the duration of 
activities that involve the following: active sonar, Improved Extended 
Echo Ranging (IEER) sonobuoys, anti-swimmer grenades, positive control 
firing devices, time-delay firing devices, gunnery exercises (surface 
target), missile exercises (surface target), bombing exercises, torpedo 
(explosive) testing, sinking exercises, at-sea explosives testing, pile 
driving, vessels underway, towed in-water devices, and non-explosive 
practice munitions.
    Comment 5: Several commenters proposed the use of seabed listening 
stations, modification of sonobuoys for passive acoustic detection, or 
other Navy detection devices to enhance marine mammal monitoring.
    Response 5: While there are some established bottom-mounted 
hydrophone arrays in the Pacific Ocean, they cover a very small portion 
of the HSTT Study Area. The Navy has used passive acoustics in the past 
and continues to use arrays such as the Pacific Missile Range Facility 
in Hawaii and the Southern California Anti-Submarine Warfare Range in 
California to study animal movements and behavioral response to Navy 
training activities. Results from these studies are available in the 
Navy's annual monitoring reports through our Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications) or the Navy's 
(http://www.navymarinespeciesmonitoring.us/ us/).
    Passive acoustic monitoring will also be conducted with Navy 
assets, such as sonobuoys, already participating in an activity (e.g., 
sinking exercises, torpedo (explosive) testing, and improved extended 
echo ranging sonobuoys). These assets would only detect vocalizing 
marine mammals within the frequency bands monitored by Navy personnel. 
Passive acoustic detections would not provide range or bearing to 
detected animals, and therefore cannot provide locations of these 
animals. However, passive acoustic detections would be reported to 
Lookouts posted in aircraft to increase vigilance of their visual 
observation. Modifying sonobuoys to increase the bandwidth is 
considered impractical for the Navy because it would require 
significant modification to the sonobuoy receiving equipment at a 
substantial cost and reduce the effectiveness of the sonobuoy system's 
primary purpose--to detect submarines. It is impractical for the Navy 
to construct and maintain additional passive acoustic monitoring 
systems for each training and testing activity.
    Comment 6: One commenter shared concerns about how sequestration 
will affect the Navy's marine mammal monitoring program and research 
efforts.
    Response 6: The Navy is required to comply with the terms of the 
regulations and LOAs regardless of sequestration.
    Comment 7: One commenter suggested that Navy Lookouts should be 
dedicated solely to the observation of marine mammals and turtles.
    Response 7: The Navy has Lookouts stationed onboard ships whose 
primary duty is to detect objects in the water, estimate the distance 
from the ship, and identify them as any number of inanimate or animate 
objects that are significant to a Navy activity or as a marine mammal 
so that the mitigation measure can be implemented. Navy Lookouts 
undergo extensive training to learn these skills and the Navy's Marine 
Species Awareness Training is used to make them more aware of marine 
mammal species and behaviors. However, because Lookouts must be able to 
detect and identify multiple objects in the water to ensure the safety 
of the ship, they are not expected to solely observe for marine mammals 
and sea turtles.
    Comment 8: One commenter suggested that small Rigid Hull Inflatable 
Boats (RHIBs) are not adequate for monitoring 900 or 1,200-meter 
mitigation zones.
    Response 8: The only activity with a mitigation zone of larger than 
900 yd where RHIBs are the primary means of monitoring the mitigation 
zone is for time-delay firing devices (TDFDs), which have a mitigation 
zone of 1,000 yd. All other diver-placed charges, which are the vast 
majority of underwater detonations, have smaller mitigation zones. All 
other activities with mitigation zones larger than 900 yd (i.e., 
missile exercises, bombing exercises, torpedo testing, etc.) use 
aircraft, larger surface craft, or a combination of assets (not just 
RHIBs) for monitoring.
    For the TDFD mitigation zone, the Navy considered 1,000 yd (914 m) 
to be the maximum distance that Lookouts in two small boats can 
effectively and realistically monitor. The Navy considered this 
limitation when proposing mitigation zones and available assets for 
each of their activities. Navy Lookouts are trained to detect objects 
in the water and it is in the Navy's best interest (for safety, 
security, and compliance with the MMPA) to ensure that mitigation zones 
can be properly monitored from each available vessel or boat. RHIBs are 
used during particular nearshore underwater detonation training 
activities. The Navy's RHIBs are agile enough and the boat drivers are 
experienced enough to conduct frequent circular sweeps around a given 
mitigation zone looking for marine mammals. Also, these kinds of 
training activities are not typically conducted if sea state is above a 
level 3.
    Comment 9: NRDC recommended that the Navy use all available range 
assets for marine mammal monitoring.
    Response 9: NMFS has worked with the Navy over the years to help 
develop the most effective mitigation protocols using the platforms and 
assets that are available for monitoring. The required mitigation 
measures in this document represent the maximum level of effort (e.g., 
numbers of Lookouts and passive sonobuoys) that the Navy can commit to 
observing mitigation zones given the number of personnel that will be 
involved and the number and type of assets and resources available. The 
Navy has determined that it is impractical to increase visual and 
passive acoustic observations for the purpose of mitigation.
    The National Defense Authorization Act of 2004 amended the MMPA as 
it relates to military readiness activities (which these Navy 
activities are) and the incidental take authorization process such that 
``least practicable adverse impact'' shall include consideration of 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the ``military readiness activity.'' As explained in 
Chapter 5 of the HSTT FEIS/OEIS, it is impractical for the Navy to 
increase the level of marine mammal monitoring. The Navy has a limited 
number of resources (e.g., personnel and other assets) and the 
monitoring requirements in this rulemaking represent the maximum level 
of effort that the Navy can commit to marine mammal monitoring.
Mitigation
    Comment 10: The Commission requested that NMFS require the Navy to 
cease use of sound sources and not reinitiate them for (1) at least 15

[[Page 78122]]

minutes if small odontocetes or pinnipeds enter the mitigation zone and 
are not observed to leave; and (2) relevant time periods based on the 
maximum dive times of mysticetes or large- or medium-sized odontocetes 
if they enter the mitigation zone and are not observed to leave. Other 
commenters also suggested that activities should not resume until the 
animal is observed to exit the mitigation zone or the target has been 
repositioned more than 400 yd (366 m) away from the last marine mammal 
sighting; and that monitoring the mitigation zone for 30 minutes, 
before, during, and after the activity is insufficient for deep-diving 
species.
    Response 10: Section 5.3.2 of the HSTT FEIS/OEIS details the 
mitigation measures in place for each type of activity. These 
mitigation measures are also provided in the regulatory text at the end 
of this document. In summary, depending on the specific activity type 
and following the shutdown or delay of acoustic activities, the Navy 
may resume activities if any one of the following conditions are met: 
(1) The animal is observed exiting the mitigation zone; (2) the animal 
is thought to have exited the mitigation zone based on a determination 
of its course and speed and the relative motion between the animal and 
the source; (3) the mitigation zone has been clear from any additional 
sightings for a period of 10 or 30 minutes (depending on whether 
aircraft is involved and specific fuel restrictions); (4) the intended 
target location has been repositioned more than 400 yd (366 m) away 
from the location of the last sighting; (5) the ship has transited more 
than 140 yd (128 m) (large-caliber gunnery exercises) or 2,000 yd (1.8 
km) (active sonar) beyond the location of the last sighting; or (6) 
dolphins are bow riding and there are no other marine mammal sightings 
within the mitigation zone.
    The Commission expressed concern regarding the Navy's ability to 
determine the relative position of an animal. Understanding relative 
motion is a critical skill for Navy personnel, who receive training in 
target and contact tracking, target and contact interception, multi-
ship maneuvering drills, etc. While an animal may occasionally act 
unpredictably, it is more likely that the animal will be seen leaving 
the mitigation zone or Navy personnel will be able to track the 
animal's location.
    With regard to maximum dive times, NMFS disagrees that the 
clearance time should be lengthened for deep-diving species for the 
following reasons: (1) Just because an animal can dive for longer than 
30 minutes does not mean that they always do, so a longer delay would 
only potentially add value in instances when animals had remained 
underwater for more than 30 minutes; and (2) The animal would need to 
have stayed in the immediate vicinity of the sound source for more than 
30 minutes. Considering the maximum area that both the vessel and the 
animal could cover in that amount of time, it is improbable that this 
would randomly occur. For example, during a 1-hour dive by a beaked 
whale or sperm whale, a mid-frequency active sonar ship moving at a 
nominal speed of 10 knots could transit up to 10 nautical miles from 
its original location. Additionally, the times when marine mammals are 
diving deep (i.e., the times when they are under the water for longer 
periods of time) are the same times that a large portion of their 
motion is in the vertical direction, which means that they are far less 
likely to keep pace with a horizontally moving vessel. 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 acoustic 
source; (3) Visual observers are not always able to differentiate 
species to the degree that would be necessary to implement this 
measure; and (4) Increasing clearance time is not operationally 
feasible for Navy activities that require aircraft surveillance because 
of fuel limitations. NMFS does not believe that increasing the 
clearance time based on maximum dive times will add to the protection 
of marine mammals in the vast majority of cases, and therefore, we have 
not required it.
    Comment 11: The Commission recommended that NMFS require the Navy 
to either (1) adjust the size of the mitigation zone for mine 
neutralization activities using the average swim speed of the fastest 
swimming marine mammal occurring in the area where time-delay firing 
devices will be used and ensure that the zone is adequately monitored; 
or (2) authorize all model-estimated takes for Level A harassment and 
mortality for mine neutralization activities in which divers use time-
delay firing devices.
    Response 11: The Navy proposed a mitigation zone of 1,000 yards for 
all charge sizes (5, 10, and 29 lb) and for a maximum time-delay of 10 
minutes. This is the maximum distance that Lookouts in two small boats 
can realistically monitor. The use of more than two boats for 
monitoring during time-delay firing device events is impractical due to 
the Navy's limited personnel resources. The Navy's proposed mitigation 
zone covers the potential for mortality up to a 9-minute time delay 
(but not 10-minute). The proposed mitigation zone also covers the 
potential for injury up to a 5-minute time-delay for 10 and 29 lb 
charges, and a 6-minute time-delay for 5 lb charges, but not for time 
delays greater than 6 minutes for any charge size. As a result of the 
mitigation zone restriction and the Commission's recommendation, and 
based on the Navy's modeling results and mitigation effectiveness, the 
Navy has requested seven mortalities and 56 Level A injuries for any 
training or testing event (not just underwater detonations), in case of 
an unavoidable incident.
    Comment 12: A few commenters recommended that the leeward side of 
the island of Hawaii out to a depth of 3,281 yd (3,000 m) should be off 
limits to Navy training and testing activities.
    Response 12: As described in the proposed rule, there is evidence 
suggesting that several resident populations of marine mammals may be 
present off the leeward side of Hawaii. NMFS considers the nature, 
level, and spatial extent of activities expected to co-occur with 
resident populations in both the analysis and in the development of 
mitigation measures. Time-area restrictions may be considered in order 
to help ensure that these small populations, limited to a small area of 
preferred habitat, are not exposed to concentrations of activities 
within their ranges that have the potential to impact a large portion 
of the stock/species over longer amounts of time that could have 
detrimental consequences to the stock/species. Here, NMFS has reviewed 
the Navy's exercise reports and considered/discussed their historical 
level of activity in the area where resident populations of marine 
mammals are concentrated, found that it is very low, and concluded that 
time/area restrictions in this area would not further reduce the 
likelihood or magnitude of adverse impacts on marine mammal species or 
stocks in this location and are not necessary at this point. However, 
if future monitoring and exercise and testing reports suggest that 
increased operations overlap with these resident populations, NMFS will 
revisit the consideration of area limitations around these populations.
    Comment 13: One commenter suggested that an alternate industrial 
shipping route could be created to reduce the risk of vessel strike to 
blue whales if the Navy would allow

[[Page 78123]]

shipping lanes south of the northern Channel Islands.
    Response 13: The U.S. Coast Guard, rather than the Navy, designates 
commercial shipping lanes. The Channel Islands are north of the SOCAL 
Range Complex and are not part of the HSTT Study Area. Furthermore, 
there has not been a Navy ship strike to any marine mammal north of the 
SOCAL Range Complex over the last 10 years.
    However, NOAA National Marine Sanctuaries recently worked with the 
U.S. Coast Guard to modify the International Maritime Organization's 
shipping lane approaches to the Los Angeles, Long Beach, and San 
Francisco Bay ports in order to reduce the co-occurrence of ships and 
whales in the Santa Barbara Channel and the San Francisco Bay area.
    Comment 14: Several commenters suggested that the proposed 
mitigation measures were inadequate because observers do not always 
detect marine mammals and cannot see as far as sound travels.
    Response 14: It is the duty of Navy Lookouts to detect marine 
mammals in the water and estimate the distance from the ship so that 
the mitigation measures (shutdown, powerdown, etc.) can be implemented. 
Navy Lookouts undergo extensive training to learn these skills and the 
Marine Species Awareness Training is used to augment this general 
training with information specific to marine mammals. However, the 
mitigation measures the Navy is implementing are designed primarily to 
avoid and minimize the likelihood of mortality and injury, which are 
associated with acoustic exposures above a certain level, and therefore 
it is not necessary to see as far as sound travels to successfully 
implement the mitigation measures.
    Comment 15: Earthjustice suggested that NMFS did not propose any 
additional mitigation measures beyond what the Navy included in their 
application.
    Response 15: NMFS worked closely with the Navy in the development 
of mitigation for training and testing both in the first 5-year rules 
and for this 2013 proposal. The measures that the Navy proposed reflect 
years of experience and consideration of extensive monitoring results. 
NMFS and the Navy considered a wide array of additional measures, both 
before and after the public comment period. A description of some of 
the additional measures that were considered, and how they were 
analyzed in the context of the ``least practicable adverse impact on 
the species and/or stock'' finding, is included in this document (see 
Comments and Responses and Mitigation sections) as well as the Navy's 
HSTT FEIS/OEIS. As described, NMFS has determined that the Navy's 
proposed mitigation measures (especially when the adaptive management 
component is taken into consideration (see previous Adaptive Management 
discussion)), along with the additions detailed in the Mitigation 
section, are adequate means of effecting the least practicable adverse 
impacts on marine mammal species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, while also considering personnel safety, practicality of 
implementation, and impact on the effectiveness of the military 
readiness activity.
    Comment 16: Earthjustice suggested that Navy training and testing 
activities should be prohibited in the Hawaiian Islands Humpback 
National Marine Sanctuary during critical calving and mating months.
    Response 16: Scientific evidence shows that there are well-known 
areas of high density for humpback whales within the Hawaiian Islands 
Humpback National Marine Sanctuary and in nearshore areas of the Main 
Hawaiian Islands. In recognition of the significance of the Hawaiian 
Islands for humpback whales, the Navy will continue their designation 
of a humpback whale cautionary area in Hawaiian waters. As explained in 
the proposed rule, this area consists of a 5-kilometer (3.1-mile) 
buffer zone having one of the highest concentrations of humpback whales 
during winter months. The Navy has to receive a very high level of 
clearance if training or testing use of mid-frequency active sonar is 
necessary between December 15 and April 15. To date, the Navy has never 
requested approval to conduct training or testing use of mid-frequency 
active sonar in the area during this time period. Additionally, the 
fact that high concentrations of marine mammals make conducting 
training and testing activities difficult and unsafe reduces the 
likelihood that the Navy will conduct training or testing in the higher 
density areas (with the exception of the PMRF Range, an essential 
training and testing asset) unless absolutely necessary.
    The Navy has been collecting hull-mounted mid-frequency active 
sonar usage data in many areas of high-density humpback whale 
concentrations since 2009 and reporting to NMFS since 2010. The Navy 
has verified that, with the exception of the Pacific Missile Range 
Facility, there is limited use of any hull-mounted sonar (from training 
and testing activities) overlapping with humpback whale high-density 
areas around the Main Hawaiian Islands.
    Comment 17: Several commenters recommended that the Navy use more 
than one Lookout during all training and testing activities.
    Response 17: The Navy will have more than one Lookout for several 
higher risk training and testing activities or where the ensonified 
area is larger, such as during mine countermeasure and neutralization 
activities involving time-delay firing devices; for some vessels using 
low-frequency active sonar or hull-mounted mid-frequency active sonar 
associated with ASW activities, depending on the size and status/
location of the vessel; during mine neutralization activities involving 
diver placed charges of up to 100 lb (45 kg) net explosive weight; and 
during sinking exercises. Aircrew and divers may also be used as 
additional observers during mine countermeasure and neutralization 
activities. However, for the reasons stated below, the Navy cannot use 
more than one Lookout for all training and testing activities--however, 
a minimum of one Lookout would always be required.
    The National Defense Authorization Act of 2004 amended the MMPA as 
it relates to military readiness activities (which these Navy 
activities are) and the incidental take authorization process such that 
``least practicable adverse impact'' shall include consideration of 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the ``military readiness activity.'' As explained in 
Chapter 5 of the HSTT FEIS/OEIS, it is impractical for the Navy to 
increase visual observations for the purpose of mitigation beyond the 
amounts that have already been worked out in coordination with NMFS 
here. The Navy has a limited number of resources (e.g., personnel and 
other assets) and the mitigation requirements in this rulemaking 
represent the maximum level of effort that the Navy can commit to 
observing mitigation zones. Also, the use of additional Lookouts in 
association with lower risk activities with smaller ensonified areas 
would not be expected to provide as much of an additional protective 
value as is provided for the activities mentioned above.
    Comment 18: Several commenters suggested that the Navy limit their 
activities to periods of good visibility. More specifically, NRDC 
suggested that all weapons firing in missile, bombing, and sinking 
exercises involving detonations exceeding 20 lb. net explosive weight 
take place during the

[[Page 78124]]

period 1 hour after sunrise to 30 minutes before sunset.
    Response 18: The Navy explained in Chapter 5 of the HSTT FEIS/OEIS 
that avoiding or reducing active sonar at night and during periods of 
low visibility for the purpose of mitigation would result in an 
unacceptable impact on readiness. In summary, the Navy must train and 
test in a variety of conditions (including at night and in low-
visibility) to adequately train for military operations and test 
systems and equipment in all appropriate conditions and ensure that 
systems and equipment operate as intended. However, certain activities, 
such as those involving explosives greater than 20 lb net explosive 
weight, are currently conducted during daylight hours only. The Navy 
does not anticipate impacts to the training or testing programs, as 
long as training or testing requirements do not change; however, the 
Navy needs to retain the ability to conduct these activities at night 
if emergent requirements dictate the need for this capability.
    The Navy will use passive acoustic monitoring to supplement visual 
observations during Improved Extended Echo Ranging (IEER) sonobuoy 
activities, explosive sonouboys using 0.6-2.5 lb net explosive weight, 
torpedo (explosive) testing, and sinking exercises, to detect marine 
mammal vocalizations. However, it is important to note that passive 
acoustic detections do not provide range or bearing to detected 
animals, and therefore cannot provide locations of these animals. 
Passive acoustic detections will be reported to Lookouts to increase 
vigilance of the visual surveillance.
    Comment 19: One commenter suggested that Navy training and testing 
activities could be significantly reduced while still maintaining 
military readiness.
    Response 19: The Navy has identified the level of training and 
testing requirements that are necessary to meet its legally mandated 
requirements. NMFS must decide whether to authorize the take of marine 
mammals incidental to an applicant's proposed action based on the 
factors contained in the MMPA; NMFS does not permit or authorize the 
underlying action itself. In this case, NMFS has determined that the 
Navy's training and testing activities will have a negligible impact on 
the affected species or stocks and has met all other statutory 
requirements, therefore, we plan to issue the requested MMPA 
authorization.
    Comment 20: NRDC and other commenters recommended an expansion of 
the Navy's mitigation zones during the use of mid-frequency active 
sonar to reflect international best practice (4 km) or the standard 
prescribed by the California Coastal Commission (2 km).
    Response 20: The Navy developed mitigation zones to avoid or reduce 
the potential for onset of the lowest level of injury, PTS, out to the 
predicted maximum range. For mid-frequency active sonar, the Navy will 
implement a 6 dB power down at 1,000 yd (914 m), an additional 4 dB 
(total 10 dB) power down at 500 yd (457 m), and shutdown at 200 yd (183 
m). Both powerdown criteria exceed the predicted average and maximum 
ranges to PTS. NMFS believes that these mitigation zone distances will 
help avoid the potential for onset of PTS in marine mammals and reduce 
the potential for TTS. These shutdown zones, combined with other 
mitigation measures, are expected to effect the least practicable 
adverse impact on marine mammal species or stocks and their habitat.
    Furthermore, the Navy's mitigation zones represent the maximum area 
the Navy can observe based on the platform of observation, number of 
personnel that will be involved, and the number and types of assets and 
resources available. Increasing the size of observed mitigation zones 
for the purposes of mitigation would be impractical with regard to 
implementation of military readiness activities and result in an 
unacceptable impact on readiness.
    Comment 21: NRDC recommended that the Navy use sonar and other 
active acoustic sources at the lowest practicable source level.
    Response 21: The Navy utilizes sonar and other active acoustic 
sources to support a variety of missions. Primary uses of sonar include 
detection of and defense against submarines (anti-submarine warfare) 
and mines (mine warfare); safe navigation and effective communications; 
and oceanographic surveys. The source levels must be adequate to 
perform these tasks, but mitigation measures (e.g., powerdown and 
shutdown) will be implemented if marine mammals are within or 
approaching established zones. The Navy will submit annual exercise and 
testing reports to NMFS that summarize major training exercises, 
sinking exercises, and sound sources used. These reports will be made 
available to the public via NMFS' Web site and the U.S. Navy Marine 
Species Monitoring web portal.
    Comment 22: NRDC suggested that the Navy delay or relocate 
activities when beaked whales are detected through passive acoustic 
monitoring, even if potentially occurring beyond the established 
mitigation zone.
    Response 22: This recommendation is impractical for the Navy 
because operators of passive acoustic systems may not be able to 
identify whether a vocalization is from a beaked whale. As stated 
previously, passive acoustic monitoring can neither provide range or 
bearing to detected animals, and therefore cannot provide locations of 
these animals. However, all passive acoustic detections will be 
reported to Lookouts to increase vigilance of the visual surveillance.
    Comment 23: NRDC suggested that the Navy use gliders or other 
platforms for pre-activity monitoring to avoid significant aggregations 
of marine mammals and delay or relocate activities when significant 
aggregations of marine mammals are detected within the vicinity of an 
exercise.
    Response 23: The development of passive acoustic detectors on 
gliders and other platforms is still in the research and development 
stages under funding from the Office of Naval Research and the Navy's 
new Living Marine Resources programs. While promising, many of the 
various technologies are still being tested and not ready for 
transition to compliance monitoring where a higher degree of 
performance is needed. Gliders, even if able to report in real-time, or 
even delayed near real-time, would only be able to document the 
presence of marine mammals, not the marine mammal distance from the 
glider or individual animal movement. In many places where Navy 
activity occurs, there are almost near constant small odontocete 
passive acoustic detections. Finally, gliders would only provide an 
indication that animals are in the area, but these same animals could 
easily move substantial distances over the course of just a few hours. 
In some cases, use of gliders in and around where Navy submarines also 
operate is an underwater safety hazard to the submarine and to the 
glider. Gliders and other passive acoustic platforms, therefore, are 
more appropriate for broad area searches within Navy ranges to document 
marine mammal seasonal occurrence, but are not practical as a 
mitigation tool.
    The Navy will implement mitigation measures for all marine mammals 
regardless of species, if they approach or enter a mitigation zone, 
which were calculated to help avoid the potential for onset of PTS and 
reduce the potential for TTS.
    Comment 24: NRDC suggested that the Navy use simulated geography 
and planning of ship tracks to reduce or

[[Page 78125]]

eliminate chokepoint exercises in near-coastal environments, 
particularly within canyons and channels or other important habitat. 
Similarly, NRDC suggested the use of dedicated aerial monitors during 
chokepoint exercises, major exercises, and near-coastal exercises.
    Response 24: For decades, the Navy has been using simulated 
electronic depictions of land in some of its at-sea exercises. However, 
the types of exercises the commenter refers to are critical to 
realistic and effective training due to the unique sound propagation 
characteristics and they cannot be replicated by simulated geography. 
The Navy will implement mitigation for all training and testing 
activities to minimize any potential effects.
    Specific aerial monitoring is not typically feasible given the 
limited duration of typical monitoring flights (less than 4 hours). In 
addition, there are significant flight safety considerations and 
airspace restrictions during major exercises when larger groups of 
military aircraft are present in high numbers at various altitudes.
    It is important to note that the Navy does have a particular set of 
monitoring measures (intended to help reduce the chance of a stranding) 
that would be applied if circumstances are thought to make a stranding 
more likely (e.g., steep bathymetry, multiple vessels in a single area 
over an extended period of time, constricted channels or embayments). 
However, there are no areas with these features included in the HSTT 
Study Area.
    Comment 25: NRDC stated that the Navy did not account for 
reverberation in its modeling and also suggested the use of additional 
powerdowns when significant surface ducting conditions coincide with 
other conditions that elevate risk (such as during exercises involving 
the use of multiple systems or in beaked whale habitat).
    Response 25: The Navy's propagation model used for all non-
impulsive modeling accommodates surface and bottom boundary 
interactions (including reverberation), but does not account for side 
reflections that would be a factor in a highly reverberant environment, 
such as a depression or canyon, or in a man-made structure, such as a 
dredged harbor. The details of the Navy's propagation models are 
provided in a supporting technical report for the HSTT EIS/OEIS (``The 
Determination of Acoustic Effects on Marine Mammals and Sea Turtles,'' 
http://hstteis.com">hstteis.com).
    Based on the lessons learned from five beaked whale stranding 
events, all of which took place outside of the HSTT Study Area, and 
occurred over approximately a decade, exposure of beaked whales to mid-
frequency active sonar in the presence of certain conditions (e.g., 
multiple units using tactical sonar, steep bathymetry, constricted 
channels, strong surface ducts, etc.) may result in strandings, 
potentially leading to mortality. Although these physical features are 
not present in the HSTT Study Area in aggregate, scientific uncertainty 
exists regarding what other factors, or combination of factors, may 
contribute to beaked whale strandings. To minimize risk to beaked 
whales, several conditions will be considered during exercise planning: 
(1) Areas of at least 1,000 m (1,094 yd) depth near a shoreline where 
there is rapid change in bathymetry on the order of 1,000-6,000 m 
(1,094-6,562 yd) occurring across a relatively short horizontal 
distance (e.g., 5 nm); (2) cases in which multiple ships or submarines 
(>= 3) are operating active sonar in the same area over extended 
periods of time (>= 6 hours) in close proximity (<= 10 nm apart); (3) 
an area surrounded by land masses, separated by less than 35 nm and at 
least 10 nm in length, or an embayment, wherein operations involving 
multiple ships/submarines (>= 3) employing active sonar near land may 
produce sound directed toward the channel or embayment that may cut off 
the lines of egress for marine mammals; and (4) though not as dominant 
a condition as bathymetric features, the historical presence of a 
strong surface duct (i.e., mixed layer of constant water temperature 
extending from the sea surface to 100 or more feet).
    If a major exercise must occur in an area where the above 
conditions exist in the aggregate, these conditions must be fully 
analyzed in environmental planning documentation. The Navy will 
increase vigilance by undertaking the following additional protective 
measure: a dedicated aircraft (Navy asset or contracted aircraft) will 
undertake reconnaissance of the embayment or channel ahead of the 
exercise participants to detect marine mammals that may be in the area 
exposed to active sonar. Where practical, the advance survey should 
occur within about 2 hours prior to sonar use and periodic surveillance 
should continue for the duration of the exercise. Any unusual 
conditions (e.g., presence of marine mammals, groups of species milling 
out of habitat, and any stranded animals) shall be reported to the 
Officer in Tactical Command, who should give consideration to delaying, 
suspending, or altering the activity. All mitigation zone powerdown 
requirements described in the Mitigation section of this document will 
apply. Finally, the post-exercise report must include specific 
reference to any event conducted in areas where the above conditions 
exist, with exact location and time/duration of the event and noting 
results of surveys conducted.
    Comment 26: NRDC suggested the suspension or postponement of 
chokepoint exercises during surface ducting conditions and scheduling 
of such exercises during daylight hours.
    Response 26: See response to Comment 16, 18, 24, and 39.
    Comment 27: NRDC suggested the use of aerial surveys and ship-based 
surveys before, during, and after major exercises.
    Response 27: As proposed, and detailed in the HSTT FEIS/OEIS, the 
Navy will implement pre-exercise aerial or vessel-based observation as 
a mitigation measure for Improved Extended Echo Ranging (IEER) 
sonobuoys and explosive buoys using 0.6-2.5 lb net explosive weight, 
mine countermeasure and neutralization activities using positive 
control firing devices involving explosives in bin E11 (501-650 lb net 
explosive weight), sinking exercises, bombing exercises, gunnery 
exercises, and missile exercises. Monitoring will continue throughout 
the duration of these exercises. This amount of monitoring represents 
the maximum level of effort that the Navy can commit to observing 
mitigation zones given the number of personnel and assets available. 
Surveys before, during, and after major exercises would require an 
inordinate amount of resources that are not available and would have a 
significant impact on readiness.
    In addition to the monitoring required to implement mitigation, the 
Navy is also committed to a robust marine mammal monitoring program 
designed to answer specific questions about the effects of the Navy's 
activities on marine mammals. The Navy uses visual surveys (by trained 
protected species observers; from aircraft and vessels), passive 
acoustic monitoring devices, and tagging as some of the methods to best 
detect and evaluate any effects. See the Navy's monitoring reports at 
http://www.navymarinespeciesmonitoring.us/.
    Comment 28: NRDC suggested the use of NMFS-certified observers for 
marine mammal detection and several commenters requested further 
information on the Navy's Lookout effectiveness study. More 
specifically, NRDC suggested that the Navy complete a Lookout 
effectiveness study comparing the abilities of Navy vessel-based 
Lookouts and third-party protected species observers. If Navy Lookouts 
are significantly less likely to

[[Page 78126]]

detect marine mammals, NRDC recommends the use of NMFS-certified 
Lookouts or other monitoring enhancements.
    Response 28: The Navy has determined that the use of third-party 
observers (e.g., NMFS-certified protected species observers) in air or 
on surface platforms in lieu of or in addition to existing Navy 
Lookouts for the purposes of mitigation is impractical for the 
following reasons: the use of third-party observers would compromise 
security for some activities involving active sonar due to the 
requirement to provide advance notification of specific times and 
locations of Navy platforms; reliance on the availability of third-
party personnel could impact training and testing flexibility; the 
presence of additional aircraft in the vicinity of naval activities 
would raise safety concerns; and there is limited space aboard Navy 
vessels. Furthermore, Navy personnel are extensively trained in 
spotting items on or near the water surface and receive more hours of 
training than many third-party personnel.
    The Navy undertakes monitoring of marine mammals during training 
and testing activities and has mitigation procedures designed to 
minimize risk to these animals. One key component of this monitoring 
and mitigation is the shipboard Lookouts (also known as watchstanders), 
who are part of the standard operating procedure that ships use to 
detect objects (including marine mammals) within a specific area around 
the ship during events. The Lookouts are an element of the Navy's 
monitoring plan, as required by NMFS and specified in the LOAs. The 
goal is to detect marine mammals entering ranges of 200, 500, and 1,000 
yd (183, 457, and 914 m) around the vessel, which correspond to 
distances at which various mitigation actions should be performed. In 
addition to the Lookouts, officers on the bridge search visually and 
sonar operators listen for marine mammal vocalizations. All of these 
observers together are referred to as the observation team.
    In 2010, the Navy initiated a study designed to evaluate the 
effectiveness of the Navy Lookout team. The University of St. Andrews, 
Scotland, under contract to the Navy, developed an initial data 
collection protocol for use during the study. Between 2010 and 2012, 
trained Navy marine mammal observers collected data during nine field 
trials as part of a ``proof of concept'' phase. The goal of the proof 
of concept phase was to develop a statistically valid protocol for 
quantitatively analyzing the effectiveness of Lookouts during Navy 
training exercises. Field trials were conducted in the HRC, SOCAL Range 
Complex, and Jacksonville Range Complex onboard one frigate, one 
cruiser, and seven destroyers. Preliminary analysis of the proof of 
concept data is ongoing. The Navy is also working to finalize the data 
collection process for use during the next phase of the study. While 
data was collected as part of this proof of concept phase, those data 
are not fairly comparable because protocols were being changed and 
assessed, nor are those data statistically significant. Therefore, it 
is improper to use these data to draw any conclusions on the 
effectiveness of Navy Lookouts at this time.
    In addition, given the distance from shore and especially the 
dynamic and moving nature of Major Training Events (MTEs) where sonar 
platforms can be widely dispersed and then move on to another area, 
aerial or ship-based civilian monitoring concurrent to MTEs would not 
be logistically practical or safe. Before and after surveys would only 
duplicate similar marine mammal sightings that have already been 
conducted under the previous HRC and SOCAL rulemakings. During the 
period from 2009 to 2012, the Navy has visually surveyed approximately 
100,000 nm of ocean within HRC and SOCAL with marine mammal sightings 
described in annual monitoring reports as well as posted electronically 
on public online data portals. While contributing to the body of 
science on marine mammal occurrence, these broad area surveys are less 
informative for monitoring of Navy impacts to marine mammals. The 
Navy's revised HSTT monitoring plan consists of more focused objective-
oriented studies to address both species-specific occurrence and 
determine impact or lack of impact from training and testing 
activities.
    Comment 29: NRDC recommended that the Navy comply with underwater 
detonation and gunnery exercise mitigation measures as set forth in 
NMFS' final rule for the SOCAL Range Complex.
    Response 29: The mitigation measures for underwater detonation and 
gunnery exercises in NMFS' final rule for the SOCAL Range Complex have 
been carried over to HSTT (i.e., buffer zones around the intended 
target, monitoring before and during the exercise, avoidance of sighted 
marine mammals). There have been some slight modifications to the TDFD 
mitigation to account for resource limitations in the number of 
available boats and Lookouts.
    Comment 30: NRDC recommended the use of dedicated aerial monitoring 
for all Navy explosive activities using time-delay firing devices and/
or all activities involving explosives greater than 20 lb net explosive 
weight.
    Response 30: Time-delay firing device events can occur over several 
hours and the exact detonation time is dependent on multiple variables 
including, but not limited to, weather, background traffic, training 
requirements, delays for mitigation, etc., that make it impractical and 
unsafe to have aircraft surveys. Time-delay firing device events also 
typically occur near commercial and military airspace that would pose a 
serious risk to the survey and non-survey aircraft.
    Mitigation during explosive events (greater than 20 lb net 
explosive weight) already includes the use of available aircraft for 
mitigation monitoring. However, these activities can occur offshore and 
over several hours duration, making a dedicated aerial survey platform 
unsafe and impractical. The Navy has mitigation zones in place designed 
to minimize potential effects from all explosive activities
    Comment 31: NRDC suggested avoidance and reduction in the use of 
time-delay firing devices in favor of explosives with positive 
controls.
    Response 31: The Navy has explained their use of time-delay firing 
devices in previous documents (LOA application for the Silver Strand 
Training Complex, LOA application for the Hawaii Range Complex, and the 
HSTT FEIS/OEIS). The Navy relies on both time-delay and positive 
control to initiate underwater detonations, depending on the training 
event and objectives. The Navy has cited time-delay firing devices as 
the simplest, safest, least expensive, most operationally acceptable 
method of initiating an underwater detonation. They are preferred due 
to their light weight, low magnetic signature, and reduced risk of 
accidental detonation from nearby radios or other electronics. Time-
delay firing devices allow sufficient time for personnel to swim 
outside of the detonation plume radius and human safety buffer zone 
after the timer is set. The Navy considers it critical that personnel 
qualify annually with necessary time-delay certification, maintain 
proficiency, and train to face real-world scenarios that require the 
use of time-delay firing devices. However, the Navy does strive to use 
positive control detonation whenever feasible depending on the training 
need. Within the SSTC portion of HSTT for instance, during the last 
year of the 86 completed underwater detonations with charge weights 
between 10-20 lb net explosive

[[Page 78127]]

weight, only two TDFDs were used; the remaining 84 detonations used 
positive control.
    Time-delay firing devices raised concern in 2011, when three or 
four long-beaked common dolphins were killed in an explosion during an 
underwater detonation training event. About 5 minutes remained on a 
time-delay fuse when a pod of long-beaked common dolphins was observed, 
but attempts to guide the dolphins away from the area were 
unsuccessful. Following the event, the Navy worked with NMFS to develop 
a more robust monitoring and mitigation plan to ensure that marine 
mammal mortality and injury would not occur during activities that 
involve time-delay firing devices. NMFS incorporated additional 
mitigation and monitoring measures into the appropriate authorizations. 
Those additions are being carried over to the HSTT rule, with some 
modifications to the mitigation zone and number of observers due to the 
impracticality of the initial changes. As detailed in the proposed 
rule, NMFS believes that the Navy's modifications will still reduce the 
potential for injury and mortality because (1) the mitigation zone 
exceeds the predicted ranges to TTS and PTS; (2) the number of Lookouts 
for a 1,000-yd (915-m) mitigation zone would not change; (3) the 
maximum net explosive weight would decrease; (4) monitoring 30 minutes 
before, during, and 30 minutes after the activity would still take 
place; and (5) time-delay firing device activities are only conducted 
during daylight hours.
    Comment 32: NRDC suggested that the Navy should evaluate before 
each major exercise whether reductions in sonar are possible, given the 
readiness status of the strike groups involved.
    Response 32: The Navy only uses active sonar for validated training 
requirements, so this type of pre-exercise evaluation is unnecessary.
    Comment 33: NRDC recommended that the Navy establish a plan and 
timetable for maximizing synthetic training in order to reduce the use 
of active sonar training.
    Response 33: As described in section 2.5.1.4 of the HSTT FEIS/OEIS, 
the Navy currently uses computer simulation for training and testing 
whenever possible. Computer simulation can provide familiarity and 
complement live training and testing; however, it cannot provide the 
fidelity and level of training necessary to prepare naval forces for 
deployment.
    The Navy is required to provide a ready and capable force. In doing 
so, the Navy must operationally test major platforms, systems, and 
components of these platforms and systems in realistic combat 
conditions before full-scale production can occur. Substituting 
simulation for live training and testing fails to meet the Navy's 
statutory requirement to properly prepare forces for national defense.
    Comment 34: NRDC recommended that specific mitigation requirements 
be prescribed for individual classes (or sub-classes) of training and 
testing activities in order to maximize mitigation given varying sets 
of operational needs.
    Response 34: NMFS has already worked with the Navy to develop 
mitigation by activity type to reduce potential impacts on marine 
mammals. The regulatory text of this document details the different 
types of mitigation required for different activities.
    Comment 35: NRDC recommended that the Navy submit timely, regular 
reports to NMFS, state coastal management authorities, and the public 
to describe and verify use of mitigation measures during training and 
testing activities.
    Response 35: The Navy will be required to submit annual reports and 
the unclassified portions of these reports will be made available to 
the public through NMFS' Web site. The reports will include a 
description of the mitigation measures implemented during major 
training exercises and will also include an evaluation of the 
effectiveness of any mitigation measure implemented.
    Comment 36: One commenter suggested that there are sufficient 
resources to identify important areas off California for large whales 
and the potential impacts could be reduced if the Navy avoided using 
these areas.
    Response 36: As addressed in Response 12, while NMFS acknowledges 
that there are important areas for fin and blue whales that overlap 
with the SOCAL Range Complex, these areas are also adjacent to the 
Navy's only west coast underwater instrumented training range. This 
range has been in operation for decades and is considered mission-
critical by the Navy for ASW training and testing. In addition, nearby 
infrastructure supports multiple warfare mission areas used 
concurrently with sonar and explosive use. The Navy has indicated that 
establishment of a time-area closure within this region is not 
practical. However, the Navy has also stated that given the closeness 
to shore, relatively shallow water, and lack of other nearby training 
infrastructure, Major Training Events (MTEs) are not typically planned 
in this vicinity. Additionally, the Navy has further strengthened 
mitigation measures intended to reduce the likelihood of a ship strike 
(adding at least a 500-yd (457-m) exclusion zone for whales during 
vessel movement), which are particularly important in areas where 
greater concentrations of marine mammals may be encountered.
    NMFS has carefully evaluated the Navy's proposed suite of 
mitigation measures and considered a broad range of other measures 
(including those recommended during the public comment period) in the 
context of ensuring that NMFS prescribes the means of effecting the 
least practicable adverse impact on the affected marine mammal species 
and stocks and their habitat. Our evaluation of potential measures 
included consideration of the following factors in relation to one 
another: the manner in which, and the degree to which, the successful 
implementation of the required mitigation measures is expected to 
reduce the likelihood and/or magnitude of adverse impacts to marine 
mammal species and stocks and their habitat; the proven or likely 
efficacy of the measures; and the practicability of the suite of 
measures for applicant implementation, including consideration of 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The Navy's list of monitoring projects for the SOCAL Range Complex 
has been finalized and is available on the Navy's marine species 
monitoring Web site (http://www.navymarinespeciesmonitoring.us/). This 
list of 2013-2014 projects includes studies of blue and fin whale 
vocalizations from numerous passive acoustic devices within the SOCAL 
Range Complex. In addition, long-term satellite tag tracking of fin and 
blue whales will enhance understanding of residence times within the 
SOCAL Range Complex as well as within other areas of their Pacific 
Ocean range. Through this data collection, review of other new science, 
and the Adaptive Management process, NMFS and the Navy will continue to 
regularly evaluate whether there are other appropriate practicable 
measures that could further reduce impacts to marine mammals in 
Southern California.
    Comment 37: Several commenters recommended additional mitigation, 
including exclusion zones and time-area closures, and suggested that 
NMFS did not provide any additional mitigation to the Navy's proposed 
measures in order to reduce impacts on marine mammals.

[[Page 78128]]

    Response 37: Exclusion zones (termed ``mitigation zones'' in the 
proposed rule and this document) are already in place for the Navy's 
training and testing activities. Training and testing activities 
require continuous access to large areas consisting potentially of 
thousands of square miles of ocean and air space to provide naval 
personnel the ability to train with and develop competence and 
confidence in their capabilities and their entire suite of weapons and 
sensors. Exercises may change mid-stream based on evaluators' 
assessment of performance and other conditions including weather or 
mechanical issues. This means that the designation of time-area 
closures is not practicable in some cases, and NMFS and the Navy 
evaluate mitigation of this nature on a case-by-case basis and within 
the context of the Navy's overall suite of mitigation.
    NMFS has been heavily involved in developing the Navy's suite of 
mitigation measures since 2007. Many of the Navy's proposed mitigation 
measures were a result of NMFS' input over the past 5 years. It is also 
important to note that the NDAA of 2004 amended the MMPA to require the 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the ``military readiness activity'' when 
determining the ``least practicable adverse impact.'' Mitigation 
measures that the Navy considered, but could not implement, are 
included in the FEIS/OEIS.
    However, the Navy has designated a Humpback Whale Cautionary Area 
that is effective between December 15 and April 15, which essentially 
restricts certain Navy activities within a certain time and location. 
Conducting exercises with mid-frequency active sonar within the 
Humpback Whale Cautionary Area between December 15 and April 15 
requires approval for the use of hull-mounted mid-frequency active 
sonar from a four-star Admiral, the highest ranking officer in the U.S. 
Pacific Fleet. Since 2009 (when the current rule for the HRC was 
issued), the Navy has never requested this approval.
    The Navy addresses numerous other mitigation measures in section 
5.3 of the HSTT FEIS/OEIS that were considered but eliminated for 
various reasons. We address other areas that were considered off Hawaii 
and Southern California in responses to Comments 12, 16, and 36 above.
    Comment 38: Several commenters suggested that the Navy's activities 
should be moved to pelagic sea depths, away from continental shelves 
and islands to reduce impacts on marine mammals.
    Response 38: As stated in section 5.3 of the HSTT FEIS/OEIS, the 
Navy has eliminated from consideration alternative training and testing 
locations because there are no other potential locations where land 
ranges, operating areas, undersea terrain and ranges, testing ranges, 
and military airspace combine to provide the venues necessary for the 
training and testing realism and effectiveness required to train and 
certify naval forces ready for combat operations. Training and testing 
in shallow water is an essential component to maintaining military 
readiness. Sound propagates differently in shallow water and operators 
must learn to train in this environment. Additionally, submarines have 
become quieter through the use of improved technology and have learned 
to hide in the higher ambient noise levels of shallow coastal waters. 
In real world events, it is likely that sailors would be working in, 
and therefore must train in, and use systems that have been tested in, 
these types of environments.
    However, as described in Response 28 above, in order to reduce 
impacts to humpback whales in the Hawaiian Islands, the Navy has 
designated the Humpback Whale Cautionary area between December 15 and 
April 15, which includes shallow water environments. In addition, 
following the implementation of the rule and issuance of LOAs, the 
adaptive management process will also provide a mechanism for 
considering if modifications to mitigation measures are necessary in 
the future.
    Comment 39: NRDC recommended that the Navy avoid or reduce their 
activities during months with historically significant surface ducting 
conditions.
    Response 39: The Navy's activities must be conducted during all 
months and in a variety of conditions in order for the Navy to meet its 
mission. The Navy's training schedules are driven by deployment 
requirements, which are established by the Department of Defense and 
the President of the United States. These schedules are dynamic, based 
on real-world events, ship availability, and numerous others factors 
that prevent the Navy's activities from being able to limit at sea 
training to only certain months. Similarly, Navy testing schedules are 
driven by Fleet maintenance, repair, and modernization needs; and the 
delivery of Navy ships, aircraft, and systems to support these training 
and deployment requirement, and cannot be limited to certain months. 
Therefore, the Navy's MMPA authorization must support year-round 
training and testing.
    Comment 40: NRDC recommended that the Navy delay activities or 
implement powerdowns during significant surface ducting conditions.
    Response 40: Avoiding or reducing active sonar during strong 
surface ducts for the purpose of mitigation would increase safety risks 
to personnel, be impractical with regard to implementation of military 
readiness activities, and result in unacceptable impacts on readiness 
for the following reasons: The Navy must train in the same manner as it 
will fight. Anti-submarine warfare can require a significant amount of 
time to develop the ``tactical picture,'' or an understanding of the 
battle space (e.g., area searched or unsearched, identifying false 
contacts, and understanding the water conditions). Training in surface 
ducting conditions is a critical component to military readiness 
because sonar operators need to learn how sonar transmissions are 
altered due to surface ducting, how submarines may take advantage of 
them, and how to operate sonar effectively in this environment. 
Furthermore, avoiding surface ducting would be impractical to implement 
because ocean conditions contributing to surface ducting change 
frequently, and surface ducts can be of varying duration. Surface 
ducting can also lack uniformity and may or may not extend over a large 
geographic area, making it difficult to determine where to reduce power 
and for what periods.
    Comment 41: NRDC recommended that the Navy plan their ship tracks 
to avoid embayments and provide escape routes for marine mammals.
    Response 41: As noted in Response 15, the Navy has a particular set 
of monitoring measures (intended to help reduce the chance of a 
stranding) that would be applied if circumstances are thought to make a 
stranding more likely (e.g., steep bathymetry, multiple vessels in a 
single area over an extended period of time, constricted channels or 
embayments). However, there are no areas with these features in 
aggregate included in the HSTT Study Area.
    Comment 42: NRDC recommended that the Navy be required to implement 
mitigation prescribed by state regulators, by the courts, by other 
navies or research centers, or from past Navy actions.
    Response 42: NMFS and the Navy have worked together on developing a 
comprehensive suite of mitigation measures to reduce the impacts from 
Navy training and testing activities on marine mammal species or stocks 
and their habitat. During the process of developing mitigation 
measures, NMFS and the Navy considered all potentially

[[Page 78129]]

applicable mitigation measures. NMFS has determined that the Navy's 
proposed mitigation measures, along with the Planning Awareness Areas, 
Stranding Response Plan, and Adaptive Management are adequate means of 
effecting the least practicable adverse impacts on marine mammal 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, while 
also considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity. The 
justification for this conclusion is discussed in the Mitigation 
Conclusions section of the proposed rule (78 FR 6978, January 31, 2013; 
page 7016).
    Comment 43: One commenter stated that there is no compelling case 
for why Navy activities need to occur in areas of high humpback whale 
concentrations around Hawaii.
    Response 43: Due to the combination of installed MIW targets, range 
instrumentation, and unique shallow water bathymetry, these areas 
represent an important training and testing capability within the HRC 
and must be available to support deploying forces year round. However, 
it is likely that the demonstrated low use of hull-mounted mid-
frequency active sonar within these areas will continue in the 
foreseeable future. See Response 7 of this section.

Acoustic Thresholds

    Comment 44: The Commission recommended that NMFS require the Navy 
to adjust all acoustic and explosive thresholds for low-, mid-, and 
high-frequency cetaceans by the appropriate amplitude factor (e.g., 
16.5 or 19.4 dB), if the Type II weighting functions from Figure 6 of 
Finneran and Jenkins (2012) are to be used.
    Response 44: The acoustic and explosive thresholds were adjusted 
based on weighting the exposures from the original research from which 
the thresholds were derived with the Type II weighing functions. The 
weighted threshold is not derived by a simple amplitude shift.
    The high-frequency cetacean onset TTS threshold is based on the 
onset-TTS threshold derived from data in Lucke et al. (2009) for 
impulsive exposures. This threshold was subsequently adjusted in 
Finneran and Jenkins (2012) to reflect Type II high-frequency cetacean 
weighting. Therefore, a simple 19.4 dB adjustment to the thresholds 
presented in Southall et al. (2007) is not appropriate.
    At the time the acoustic criteria and thresholds were developed, no 
direct measurements of TTS due to non-impulsive sound exposures were 
available for any high-frequency cetacean; therefore, the relationship 
between onset-TTS sound exposure level (SEL)-based thresholds (Type II 
weighted) for mid-frequency cetaceans exposed to impulsive and non-
impulsive sounds (beluga data) was used to derive the onset-TTS 
threshold for high-frequency cetaceans exposed to non-impulsive sounds 
(6-dB difference). The derived high-frequency cetacean non-impulsive 
onset TTS threshold is consistent with data recently published by 
Kastelein, et al. (2012) on TTS measured after exposing a harbor 
porpoise to non-impulsive sounds.
    Comment 45: The Commission requested an explanation of why data 
from Kastak et al. (2005) was used as the basis for explosive 
thresholds in pinnipeds and for the extrapolation process and factors 
used as the basis for associated TTS thresholds.
    Response 45: The same offset between impulsive and non-impulsive 
TTS found for the only species where both types of sound were tested 
(beluga) was used to convert the Kastak et al. (2005) data (which used 
non-impulsive tones) to an impulsive threshold. This method is 
explained in Finneran and Jenkins (2012) and Southall et al. (2007).
    Comment 46: The Commission recommended that NMFS require the Navy 
to provide the predicted average and maximum ranges for all impact 
criteria (behavioral response, TTS, PTS, onset slight lung injury, 
onset slight gastrointestinal injury, and onset mortality), all 
activities, and all functional hearing groups.
    Response 46: The Navy discusses range to effects in sections 
3.4.3.2.1.1 and 3.4.3.2.2.1 of the HSTT FEIS/OEIS. The active acoustic 
tables in section 3.4.3.2.1.1 illustrate the ranges to PTS, TTS, and 
behavioral response. The active acoustic tables for PTS and TTS show 
ranges for all functional hearing groups and the tables for behavioral 
response show ranges for low-, mid-, and high-frequency cetaceans. The 
active acoustic source class bins used to assess range to effects 
represent some of the most powerful sonar sources and are often the 
dominant source in an activity. The explosives table in section 
3.4.3.2.2.2 illustrates the range to effects for onset mortality, onset 
slight lung injury, onset slight gastrointestinal tract injury, PTS, 
TTS, and behavioral response. The explosives table shows ranges for all 
functional hearing groups. The source class bins used for explosives 
range from the smallest to largest amount of net explosive weight. 
These ranges represent conservative estimates (i.e., longer ranges) 
based on assuming all impulses are 1-second in duration. In fact, most 
impulses are much shorter and contain less energy. Therefore, these 
ranges provide realistic maximum distances over which the specific 
effects would be possible.
    NMFS believes that these representative sources provide adequate 
information to analyze potential effects on marine mammals. Because the 
Navy conducts training and testing in a variety of environments having 
variable acoustic propagation conditions, variations in acoustic 
propagation conditions are considered in the Navy's acoustic modeling 
and the quantitative analysis of acoustic impacts. Average ranges to 
effect are provided in the HSTT FEIS/OEIS to show the reader typical 
zones of impact around representative sources.
    Comment 47: One commenter suggested, based on Kastelein et al. 
(2012), that using sound exposure level (SEL) may sometimes 
underestimate the amount of TTS experienced by a marine mammal.
    Response 47: The basic assumption of using the SEL metric with TTS 
thresholds is that the equal energy hypothesis (EEH) holds true in all 
situations (i.e., if the SELs of two sources are similar, a sound from 
a lower level source with a longer exposure duration may have similar 
risks to a sound from a higher level source with a shorter exposure 
duration). It is known from marine mammal and terrestrial mammal data 
that this is not always the case, especially in situations of long 
exposure periods with lower sound pressure levels. However, the EEH 
also does not account for any possible recovery between intermittent 
exposures and that non-impulsive, intermittent sources typically 
require higher SELs to induce TTS compared to continuous exposures of 
the same duration (Mooney et al., 2009; Finneran et al., 2010). 
Additionally, Kastelein et al. (2012b) expose animals to continuous 
durations of 7.5 minutes and longer, which do not necessarily reflect 
exposure durations expected for the majority of Navy sources.
    Comment 48: One commenter claimed that a statement in the proposed 
rule suggested that NMFS believes that data from bottlenose dolphins 
and beluga whales represent the full diversity of mid-frequency 
cetaceans.
    Response 48: The commenter is referring to a paper by Finneran and 
Jenkins (2012) titled ``Criteria and Thresholds for Navy Acoustic 
Effects Analysis.'' The authors do not claim that bottlenose dolphins 
and belugas

[[Page 78130]]

encompass the full diversity of mid-frequency odontocetes. Rather, they 
state that these two species are diverse. Because both species showed 
similar TTS thresholds, and because TTS data has not been collected for 
other mid-frequency cetaceans, the TTS thresholds for bottlenose 
dolphins and belugas were applied to all mid-frequency cetaceans.
    Comment 49: One commenter suggested that low-frequency cetaceans 
should be split into two groups because the blue and fin whales (and 
possibly sei whales) are more low-frequency specialists than others.
    Response 49: NMFS does not plan on splitting low-frequency 
cetaceans into two groups. Although there is some variation among the 
13 species of marine mammals identified in the proposed rule as ``low-
frequency'' cetaceans, these species all fall within the ``low-
frequency'' functional hearing group identified by Southall et al. 
(2007) where functional hearing is estimated to occur between 
approximately 7 Hz and 22 kHz.
    Comment 50: One commenter referred specifically to the criteria and 
thresholds used for TTS as described in a paper by Finneran and Jenkins 
(2012): ``Criteria and Thresholds for Navy Acoustic Effects Analysis 
Technical Report.'' The commenter believes that scientific literature 
is at odds with the conclusions made in the Navy document and referred 
to the following quote on page 18 of the technical report: ``This means 
the (Type I) weighted exposure SEL for harbor seals under water is 183 
dB re 1 [mu]Pa2s.'' However, Kastelein et al. (2012a) note for 
harbor seals that ``[while] TTS onset (6 dB) is predicted to occur at 
183 dB re 1 [mu]Pa2s . . . [i]n the present study, 
statistically significant TTS, at ca. 2.5 dB, began to occur at SELs of 
~170 [136 dB SPL, 60 min.] and 178 dB re 1 [mu]Pa2s [148 dB 
SPL, 15 min.], but actual TTS onset is probably at lower SELs.'' The 
Kastelein et al. (2012a) study used two young (4-5 year old) female 
harbor seals, whereas the 183 dB figure originates from a study (Kastak 
et al. 2005) using one male that was 14 years old. Kastelein et al. 
(2012a) found that even for the same seal, ``thresholds changed 
[hearing became slightly less sensitive (3 dB) for 4 kHz test signals 
and slightly more sensitive (2 dB) for 5.7 kHz test signals] over time 
in the control sessions.'' The commenter claims the authors caution 
that ``[m]odeling TTS from exposure SPLs and duration (as done by 
Finneran et al. 2010) would require more data points, e.g., at lower 
and higher exposure SPLs, to find the SPL and duration thresholds at 
which TTS starts. It would be risky to fit a formula to the 14 SEL data 
points found in the present study because the TTS results of the two 
seals differ, and because this study shows that harbor seals' TTSs may 
reach asymptote after certain exposure durations.'' The highest TTS in 
the Kastelein et al. (2012a) study was 10 dB produced by 148 dB re 1 
[mu]Pa at 120 and 240 minute exposures. The authors also stressed that 
the TTS may have an ecological impact, `` . . . reduc[ing] the 
audibility of ecologically and socially important sounds for seals. For 
example, a TTS of 6 dB would halve the distance at which the seal 
suffering that TTS would be able to detect another seal, a vociferous 
fish, or a predator acoustically. . . ''
    Response 50: There are some distinct differences between the 
Kastelein et al. (2012a) study and the Kastak et al. (2005) study, from 
which the current pinniped TTS onset criterion was derived, including 
differences associated with the sex and age of individuals tested, 
different background noise levels, and differences in experimental 
procedure, as well as different center frequency of exposure stimuli. 
It should be noted that a threshold shift of 6 dB is considered the 
minimum threshold shift clearly larger than any day-to-day or session-
to-session variation in a subject's normal hearing ability (Schlundt et 
al. 2000; Finneran et al. 2000; Finneran et al. 2002). Southall et al. 
(2007) also defined TTS onset as a 6 dB shift in threshold. Similarly, 
for humans, the National Institute for Occupational Safety and Health 
(1998) regards the range of audiometric testing variability to be 
approximately 5 dB. Additionally, despite Kastelein et al. (2012a) 
indicating possible ecological impacts associated with TTS, they also 
say ``Recovery from small TTSs (up to 10 dB), such as those caused by 
the sound exposures in the present study, is very fast (within--60 
min). Reduced hearing for such a short period probably has little 
effect on the total foraging period of a seal, as long as TTS occurs 
infrequently.''
    It should also be noted that the Navy's acoustic analysis indicated 
that predicted TTS in harbor seals was typically caused by higher sound 
pressure levels (greater than 160 dB re 1[micro]Pa) over much shorter 
total durations (on the order of a few seconds) than the exposure 
regime used by Kastelein et al. (2012a). Therefore, the most 
appropriate dataset of Kastelein et al. (2012a) to derive a TTS 
threshold for harbor seals that is relevant to the way Navy sound 
sources are used is the dataset that uses the highest exposure level 
(i.e., 148 dB re 1[micro]Pa). According to Figure 9 of Kastelein et al. 
(2012a) a 6-dB hearing threshold shift (i.e., a reliably detectable 
TTS) would occur at an sound exposure level of approximately 182-183 dB 
re 1[micro]Pa2-s. Therefore, the Kastelein et al. (2012a) results agree 
with the harbor seal TTS-inducing sound levels found by Kastak et al. 
(2005) and the phocid seal TTS thresholds currently used by the Navy in 
its acoustic analysis as described in Finneran and Jenkins (2012).
    Comment 51: One commenter referred specifically to the criteria and 
thresholds used for behavioral effects as described in a paper by 
Finneran and Jenkins (2012) ``Criteria and Thresholds for Navy Acoustic 
Effects Analysis Technical Report.'' The commenter referred to the 
following quote on page 22 of the technical report: ``The BRF 
[Behavioral Response Function] relies on the assumption that sound 
poses a negligible risk to marine mammals if they are exposed to SPL 
below a certain ``basement value.'' The commenter referred to the 
basement value of 120 dB, but claims that the reasoning and literature 
interpretation behind the basement value is weak. The commenter then 
provided NMFS with examples from other studies in support of her 
argument. For example, she referred to a study by Miller et al. (2012) 
involving controlled exposures of naval sonar to killer whales, pilot 
whales, and sperm whales. They scored responses based on behavioral 
severity scores of 1-3 (not likely to influence vital rates; 4-6 (could 
affect vital rates), and 7-9 (likely to influence vital rates). In 83 
percent of LFAS (1-2 kHz) exposure sessions, the response was at a 
maximum severity of 4 or greater (could or likely to affect vital 
rates). Behavioral severity scores of 5, 6, and 7 occurred with 
received levels of 90-99 dB in killer whales. Since many responses 
occurred at received levels below 120 dB, Miller et al. (2012) 
postulate that killer whales may be particularly sensitive ``. . . with 
some groups responding strongly to sonar at received SPLs just loud 
enough to be audible.'' The commenter claims that in sperm whales, 
behavioral severity scores of 4 and 6 happened at received levels of 
120-129 dB. Miller et al. (2012) note that ``. . . there is little 
indication in our results of a dose-response pattern in which higher 
severity changes are less common at lower received levels and more 
common at higher received levels. Instead, we scored behavioral 
responses to have occurred across a wide range of received levels. 
Seven scored responses to sonar started at received SPLs of < 110 dB 
re: 1 [mu]Pa''.

[[Page 78131]]

They add that ``. . . though there was an overall tendency for 
increased risk of a severe behavioral response above 120 to 130 dB re: 
1 [mu]Pa received SPLmax, our results do imply that any signal audible 
to the animal can represent some risk of a behavioral response at any 
severity level between 0 and 7.'' LFAS (1-2 kHz) exposure resulted in 
both a greater number and more severe scored responses than for mid-
frequency active sonar (6-7 kHz), despite the behavioral and 
electrophysiological audiograms of three killer whales showing 10-40 dB 
less sensitivity at 1-2 kHz than 6-7 kHz. Taxonomically similar species 
also didn't react more similarly to naval sonar, leading Miller et al. 
(2012) to caution that ``. . . great care [must be applied] during the 
extrapolation of results from experimental studies on a particular 
species to other closely related species.''
    Response 51: Behavioral responses can be complex and highly 
variable and may be influenced strongly by the context of exposure 
(e.g., sound source within a close proximity of a few kilometers) and 
exposure history of the individual, among several of other factors, 
including distance from the source, as has been discussed by Southall 
et al. (2007), Southall et al. (2012), and Ellison et al. (2011), among 
others. These responses were observed in animals that were being 
followed and approached by multiple ships, including the one with the 
sound source. However, no control was conducted that measured the 
response of animals to the presence of multiple ships without a sonar 
source. Killer whales in particular have demonstrated avoidance 
behavior and other severe behavioral responses to being surrounded by 
multiple vessels (e.g., Erbe 2002, Kruse 1991, and Noren et al. 2009). 
There are several advantages associated with playback studies, like 
Miller et al. (2012) (i.e., highly controlled exposure, baseline 
behavioral data before exposure is available, etc.). However, an 
important consideration is that these situations may not always 
accurately reflect how an individual would behaviorally respond to an 
actual sound source that is often either much further away at 
comparable received levels or whose movement is independent from an 
individual's movement (i.e., not intentionally approaching an 
individual). For example, DeRuiter et al. (2013) recently observed that 
beaked whales (considered a particularly sensitive species) exposed to 
playbacks of U.S. tactical mid-frequency sonar from 89 to 127 dB at 
close distances responded notably (i.e., alter dive patterns), while 
individuals did not behaviorally respond when exposed to the similar 
received levels from actual U.S. tactical mid-frequency sonar operated 
at much further distances. Miller et al. (2012) even points out that 
``the approach of the vessel from a starting distance of 6 to 8 km 
probably led to a more intense exposure than would be typical for 
actual exercises, where the motion of sonar vessels is independent of 
whale location. All of these factors make the experiments a realistic 
though possibly worse than normal scenario for sonar exposures from 
real navy activities.'' Similarly, we addressed Tyack et al. (2011) in 
the proposed rule (78 FR 6978, January 31, 2013), which indicates that 
beaked whales responded to mid-frequency signals at levels below 140 
dB. In summary, a greater sample size is needed before robust and 
definitive conclusions can be drawn.
    Comment 52: One commenter suggested that NMFS is inconsistent in 
applying behavioral response data from a few individuals to all mid-
frequency cetaceans, but not applying behavioral response data from 
harbor porpoises to all high-frequency cetaceans. Another commenter 
further suggested that instead of distinguishing sensitive species and 
identifying separate thresholds, NMFS should instead include the data 
from the more sensitive species into the general threshold, thus 
lowering it. Last, one commenter suggested that the 140-dB threshold 
for beaked whales is not low enough because Tyack et al. (2011) shows 
that some beaked whales are taken below 140 dB.
    Response 52: NMFS approach is consistent and appropriate for 
sensitive species. NMFS believes that the behavioral response data used 
to inform the behavioral response curve is the best data to generally 
predict behavioral response across odontocetes. However, two exceptions 
to the use of the general behavioral response curve, for particularly 
sensitive species, have been established based on the best available 
science. A lower behavioral response threshold of 120 dB SPL is used 
for harbor porpoises because data suggest that this particular species 
is likely sensitive to a wide range of anthropogenic sounds at lower 
received levels than other species, at least for initial exposures. 
There are no data to indicate whether other or all high-frequency 
cetaceans are as sensitive to anthropogenic sound as harbor porpoises 
are and therefore the general odontocete curve is applied to other 
high-frequency species. Similarly, beaked whales are considered 
particularly sensitive both because of their involvement in several 
strandings associated with mid-frequency active sonar exercises in 
certain circumstances, and because of additional newer information 
showing certain behavioral responses at lower levels (Tyack et al., 
2011) and therefore, NMFS and the Navy have utilized a lower behavioral 
response threshold of 140 dB.
    Regarding the suggestion that the data from Tyack et al. (2011) 
support the use of a behavioral threshold below 140 dB, NMFS disagrees. 
While Tyack et al. (2011) does report tagged whales ceasing clicking 
when exposed to levels slightly below 140 dB, they also report that 
some beaked whales exposed above 140 dB did not stop clicking, and 
further assert that ``our results support a similar criterion of about 
140 dB SPL [sound pressure level] for beaked whale exposure to mid-
frequency sounds.'' More importantly, as noted above, DeRuiter et al. 
(2013) recently reported on the importance of context (for example, the 
distance of a sound source from the animal) in predicting behavioral 
responses as supported by observations that beaked whales exposed to 
playbacks of U.S. tactical mid-frequency active sonar (such as those 
used in Tyack et al. (2011)) from 89 to 127 dB at close distances 
responded notably (i.e., altered dive patterns), while individuals did 
not behaviorally respond when exposed to similar received levels from 
actual U.S. tactical mid-frequency active sonar operated at much 
further distances.
    Behavioral responses of species to sound should not be confused 
with a particular functional hearing group's perception of loudness at 
specific frequencies. Behavioral responses can be highly variable and 
depend on a multitude of species-specific factors (including context, 
etc.), while hearing abilities are based on anatomy and physiology, 
which is more likely to be conserved across similar species making 
extrapolations of auditory abilities more appropriate.
    Comment 53: One commenter cited Melcon et al. 2012 to suggest that 
behavioral responses in marine mammals could occur below 120 dB (NMFS' 
acoustic threshold for Level B harassment from non-impulse sources).
    Response 53: First, it is important to note that not all marine 
mammal behavioral responses rise to the level of a ``take'' as 
considered under section 101(a)(5)(A) of the MMPA. NMFS' analysis of 
the Navy's activities does not state that marine mammals will not 
respond behaviorally to sounds below 120 dB; rather, the 120 dB level 
is taken

[[Page 78132]]

as the estimated received level below which the risk of significant 
change in a biologically important behavior approaches zero for the 
risk assessment for sonar and other active acoustic sources.
    As stated in the proposed rule, the studies that inform the 
basement value of 120 dB are from data gathered in the field and 
related to several types of sound sources (of varying similarity to 
active sonar) after applying the behavioral response function. These 
sound sources include: vessel noise, drilling and machinery playback, 
low-frequency M-sequences (sine wave with multiple phase reversals) 
playback, tactical low-frequency active sonar playback, drill ships, 
Acoustic Thermometry of Ocean Climate (ATOC) source, and non-pulse 
playbacks. These studies generally indicate no (or very limited) 
responses to received levels in the 90 to 120 dB range and an 
increasing likelihood of avoidance and other behavioral effects in the 
120 to 160 dB range. It is important to note that contextual variables 
play a very important role in the reported responses and the severity 
of effects are not linear when compared to received level. Melcon et 
al. (2012) also reported that ``probability of D calls given MFA sonar 
decreased significantly with increasing received level'' and decreases 
seemed to start at levels around 120 dB. Additionally, whales were 
found to start vocalizing again once sonar ceased. Melcon et al.'s 
(2012) findings do not necessarily apply to every low-frequency 
cetacean in every scenario and results should be considered merely 
beyond the application to the BRF (i.e., within overall analysis) to 
more accurately determine the potential consequences of decreased 
feeding calls in various scenarios with overlapping Navy MFA exercises 
(e.g., in Melcon et al., 2012 study there was an overlap of 9 percent 
of the total hours analyzed where MFA sonar was detected).
    Comment 54: One commenter pointed out the increases in a beluga 
whale's average heart rate during acoustic playbacks (Lyamina et al., 
2011).
    Response 54: The commenter referenced this paper in the context of 
acoustic criteria and thresholds for behavioral effects. It is 
important to note that this study was done on a beluga whale in 
captivity, captured two months prior to the experiment, and constrained 
to a stretcher. In natural circumstances (i.e., the wild), the animal 
would be able to move away from the sound source. Contextual variables 
such as distance, among numerous other factors, play a large role in 
determining behavioral effects to marine mammals from acoustic sources. 
This study is difficult to directly apply to the anticipated behavioral 
effects of the Navy's impulsive and non-impulsive sound sources on 
marine mammals because there are some distinct differences between the 
sound source used in this study and Navy sources. For one, the 
frequency of the sound source in the Lyamin et al. (2011) study ranged 
from 19 to 108 kHz (trying to test effects in range of best hearing), 
which is outside the frequency range of the majority of Navy sonar 
hours. Additionally, exposures that led to a response in this study 
were of 1-minute continuous duration, which again does not mimic 
exposure durations for the majority of Navy sources.
    Comment 55: One commenter believes that certain studies are at odds 
with the conclusions made by NMFS and the Navy and referred 
specifically to the criteria and thresholds used for behavioral effects 
as described in a paper by Finneran and Jenkins (2012) ``Criteria and 
Thresholds for Navy Acoustic Effects Analysis Technical Report.'' The 
commenter referred to the following quote on page 24 of the technical 
report: ``an (unweighted) SPL of 120 dB re 1[mu]Pa is used for harbor 
porpoises as a threshold to predict behavioral disturbance.'' In 
support of her position, the commenter referred to text from a study by 
Kastelein et al. (2012c), ``[F]or 1-2 kHz sweeps without harmonics, a 
50 percent startle response rate occurred at mean received levels of 
133 dB re 1 [mu]Pa; for 1-2 kHz sweeps with strong harmonics at 99 dB 
re 1 [mu]Pa; for 6-7 kHz sweeps without harmonics at 101 dB re 1 
[mu]Pa.'' Thus, according to the commenter, the presence of harmonics 
in sonar signals increases their detectability by harbor porpoises. 
Moreover, the startle response rate increased with increasing mean 
received level. This study and others show that there is no clear-cut 
relationship between the startle response and hearing threshold. To 
cause no startle response, single emissions (once every 3 minutes) had 
to be below a mean received level of 112 dB for 1-2 kHz sweeps without 
harmonics, below a mean received level of 80 dB for the same sweeps 
with harmonics, and below a mean received level of 83 dB for 6-7 kHz 
sweeps without harmonics (Kastelein et al. 2012c). Harmonics can be 
reduced by lowering sonar signals' source levels. Harmonics can also be 
perceived to be even louder than the fundamental frequencies of sonars 
and therefore could influence harbor porpoise behavior more (Kastelein 
et al. 2012c).
    Response 55: All harbor porpoises exposed to (unweighted) sound 
pressure levels equal to or greater than 120 dB are considered 
behaviorally harassed. Since this metric is unweighted, the entire 
frequency content of the signal (including potential harmonics) are 
considered when comparing the received sound level with the behavioral 
threshold. Behavioral responses can be variable, with a number of 
factors affecting the response, including the harmonics associated with 
a sound source, as demonstrated by Kastelein et al. (2012c). The 
presence of harmonics in the 1-2 kHz sweep had two related effects: (1) 
They increased the frequency range of the tonal (made it more high 
frequency); and therefore (2) they made the overall spectrum more 
broadband, with energy over 90 dB re 1 [micro]Pa from about 1-11 kHz, 
rather than the narrowband energy of the sweeps without harmonics 
(Kastelein et al 2012). However, as Kastelein points out, ``both the 
spectrum and the received level of an underwater noise appear to 
determine the effect the sound has . . .,'' and as harmonics are 
related to the intensity of the sound, in most cases harmonics will not 
be perceived by an animal unless the intensity of the sound is already 
well over background levels. In addition, Kastelein et al. (2012) 
define a startle response as a ``short-latency defensive response that 
protects animals in the brief period (up to a few 100 ms) before 
cognitive evaluation of a situation can take place to allow an adaptive 
response'', and further states ``After about one strong tail movement, 
the animal's behavior returned to normal. The animal did not avoid the 
area near the transducer during sessions any more than usual.'' 
Therefore, this startle response did not indicate a behavioral 
disturbance. Furthermore, these sounds were below true ambient noise 
levels (as would be found outside of an artificially quiet pool) and 
are not likely to be produced at those levels outside of an artificial 
environment (e.g., tonals with harmonics would be at received levels 
far above the conservative 120 dB level used by NMFS and the Navy).
    Southall et al. (2007) indicate a startle response is ``a brief, 
transient event [that] is unlikely to persist long enough to constitute 
significant disturbance.'' The 120 dB (unweighted) behavioral threshold 
used for harbor porpoises is associated with Level B harassment under 
the MMPA. Thus, the mere presence of a startle response, without any 
further information on whether an animal perceives and behaviorally 
responds to a sound as a threat, is not

[[Page 78133]]

considered a behavioral response that rises to the level of behavioral 
harassment.
    Comment 56: One commenter referred specifically to the criteria and 
thresholds used for TTS as described in a paper by Finneran and Jenkins 
(2012) ``Criteria and Thresholds for Navy Acoustic Effects Analysis 
Technical Report.'' The commenter referred to the following quote on 
page 20 of the technical report: ``Since no studies have been designed 
to intentionally induce PTS in marine mammals, onset-PTS levels for 
marine mammals must be estimated using available information . . . Data 
from Ward et al. (1958) reveal a linear relationship between TTS and 
SEL with growth rates of 1.5 to 1.6 dB TTS per dB increase in SEL. This 
value for the TTS growth rate is larger than those experimentally 
measured in a dolphin exposed to 3 and 20 kHz tones (Finneran and 
Schlundt, 2010), and so appears to be a protective value to use for 
cetaceans.'' The commenter then cites the following studies in support 
of her belief that recent literature is at odds with the conclusions 
made by the Navy and NMFS. According to the commenter, Kastak et al. 
(2008) and Reichmuth (2009) found that a harbor seal exposed to a 
maximum received sound pressure of 184 dB re 1 [mu]Pa with a duration 
of 60 seconds (SEL=202 dB re 1 [mu]Pa2s) a second time, showed an 
initial threshold shift in excess of 48 dB at 5.8 kHz, a half-octave 
above the fatiguing tone (4.1 kHz pure tone). This occurred suddenly 
with no warning, after ``a level of no measurable effect,'' following 
progressive gradual increases in noise exposure level, i.e. this was a 
nonlinear response, in contrast to what is written above in the 
``Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects 
Analysis.'' A permanent threshold shift of 7 to 10 dB remained after 
two years (Reichmuth 2009). Reichmuth notes that ``. . . tonal noise 
exposures, not commonly studied in terrestrial models of hearing, may 
be of particular concern with respect to residual auditory effects.''
    Response 56: The commenter cites the TTS growth rate used for 
cetaceans; however, the reported TTS growth rate for a pinniped was 
used to develop the onset PTS threshold for all pinnipeds (including 
harbor seals). The onset PTS threshold used in this analysis is lower 
than the SEL reported in Kastak et al. (2008).
    Comment 57: One commenter suggested that TTS should be considered a 
form of injury.
    Response 57: NMFS developed acoustic criteria that estimate at what 
received level (when exposed to sonar or explosive detonations) TTS 
(Level B harassment) would occur. 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 sound. For example, Ward (1997) suggested that TTS is within 
the normal bounds of physiological variability and tolerance and does 
not represent physical injury. In addition, Southall et al. (2007) 
indicates that although PTS is a tissue injury, TTS is not because the 
reduced hearing sensitivity following exposure to intense sound results 
primarily from fatigue, not loss, of cochlear hair cells and supporting 
structures, and is reversible. Accordingly, NMFS considers TTS to be a 
form of Level B harassment rather than Level A harassment (injury).
    NMFS is aware of recent studies by Kujawa and Liberman (2009) and 
Lin et al. (2011). These studies found that despite completely 
reversible threshold shifts that leave cochlear sensory cells intact, 
large threshold shifts could cause synaptic level changes and delayed 
cochlear nerve degeneration in mice and guinea pigs, respectively. NMFS 
notes that the high level of TTS that led to the synaptic changes shown 
in these studies is in the range of the high degree of TTS that 
Southall et al. (2007) used to calculate PTS levels. It is not known 
whether smaller levels of TTS would lead to similar changes. NMFS, 
however, acknowledges the complexity of noise exposure on the nervous 
system, and will re-examine this issue as more data become available.
    Comment 58: With regards to the development of marine mammal 
auditory weighting functions, one commenter believes that there is 
insufficient recognition that at high enough amplitudes, the curves for 
hearing impairment are quite flat across all frequencies (suggesting 
that audiograms are irrelevant at these levels).
    Response 58: The exposure levels where hearing impairment becomes 
flat across broad auditory frequency ranges are typically associated 
with high risks of permanent hearing loss and where the threshold of 
pain occurs. Auditory weighting functions are being applied to levels 
where the onset of TTS and PTS occur. Additionally, the peak pressure 
metric criteria (part of dual criteria for most sound sources) does not 
take weighting functions into consideration (i.e., this metric is 
unweighted), which offers additional protection from exposure to sounds 
that have the potential to have extremely high amplitudes.

Effects Analysis

    Comment 59: The Commission requested information regarding how the 
Navy determined takes that occur when multiple source types are used 
simultaneously.
    Response 59: The Navy treated events involving multiple source 
types (e.g., acoustic vs. explosive) as separate events and did not sum 
the sound exposure levels. In most cases, explosives and sonar are not 
used during the same activities and therefore are unlikely to affect 
the same animals over the same time period.
    The Navy summed energy for multiple exposures of similar source 
types. For sonar, including use of multiple systems within any 
scenario, energy is accumulated within the following four frequency 
bands: low-frequency, mid-frequency, high-frequency, and very high-
frequency. After the energy has been summed within each frequency band, 
the band with the greatest amount of energy is used to evaluate the 
onset of PTS or TTS. For explosives, including use of multiple 
explosives in a single scenario, energy is summed across the entire 
frequency band. This process is detailed in a technical report titled 
``The Determination of Acoustic Effects on Marine Mammals and Sea 
Turtles'' on the HSTT EIS Web site (http://www.hstteis.com).
    Comment 60: A few commenters recommended that insular stocks of 
bottlenose dolphins in Hawaii be assessed on a stock-by-stock basis to 
estimate take and determine negligible impacts.
    Response 60: Since 2009, multiple stocks of bottlenose dolphin 
(Hawaii pelagic; Kauai and Niihau; Oahu; 4-Island Region; and Hawaii 
Island) have been designated around Hawaii. NMFS' science centers and 
the Navy have been working to evaluate potential methods for estimating 
impacts on a stock-by-stock basis. The Navy, in consultation with NMFS, 
has revised take estimates of the Hawaii bottlenose dolphin. Because 
there is not published NMFS-derived density data for the multiple 
stocks of Hawaii bottlenose dolphins, the Navy could not quantitatively 
model affects to each of the stocks. However, the Navy was able to 
distribute Hawaii bottlenose dolphin takes from its LOA application to 
each of the five stocks based on NMFS' derived estimates of relative 
population size. The breakdown of those takes is included in Tables 18 
and 20 of this document, as well as the regulatory text at the end of 
this document.

[[Page 78134]]

    Comment 61: One commenter suggested that species population 
estimates should be based on minimum population estimates.
    Response 61: NMFS considered the best population estimates when 
assessing impacts to marine mammal populations from Navy activities 
because we believe these provided the most accurate estimate based on 
the best available science.
    Comment 62: One commenter claimed that the Navy's proposed 
activities are likely to result in jeopardy of the continued existence 
of ESA-listed species.
    Response 62: Pursuant to section 7 of the Endangered Species Act, 
the Navy consulted with NMFS on its proposed action and NMFS consulted 
internally on the issuance of LOAs under section 101(a)(5)(A) of the 
MMPA. The purpose of that consultation was to determine whether the 
proposed action is likely to result in jeopardy of the continued 
existence of a species. In the Biological Opinion, NMFS concluded that 
the issuance of the rule and two LOAs are likely to adversely affect, 
but are not likely to jeopardize the continued existence of the 
threatened and endangered species under NMFS' jurisdiction and are not 
likely to result in the destruction or adverse modification of critical 
habitat that has been designated for endangered or threatened species 
in the HSTT Study Area. The Biological Opinion for this action is 
available on NMFS' Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.html#applications).
    Comment 63: One commenter stated that the Navy's proposed 
activities are not just ``incidental,'' but serious and potentially 
catastrophic.
    Response 63: In section 101(a)(5)(A) and (D) of the MMPA, 
incidental is defined as an unintentional, but not unexpected, taking. 
In other words, the Navy's activities are considered incidental because 
they may result in the unintentional taking of marine mammals. The term 
incidental does not refer to the type or level of impacts that an 
activity may have on marine mammals.
    Comment 64: One commenter suggested that the authorized take 
numbers should reflect the Navy's inability to mitigate for onset of 
TTS during every activity.
    Response 64: As discussed in the proposed rule, TTS is a type of 
Level B harassment. In the Estimated Take of Marine Mammal section of 
the proposed rule (78 FR 6978, January 31, 2013; pages 7021-7030), we 
quantify the effects that might occur from the specific training and 
testing activities that the Navy proposes in the HSTT Study Area, which 
includes the number of takes by Level B harassment (behavioral 
harassment, acoustic masking and communication impairment, and TTS). 
Through this rulemaking, NMFS has authorized the Navy to take marine 
mammals by Level B harassment incidental to Navy training and testing 
activities in the HSTT Study Area. In order to issue an incidental take 
authorization, we must set forth the ``permissible methods of taking 
pursuant to such activity, and other means of effecting the least 
practical adverse impact on such species or stock and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.'' We have determined that the mitigation measures 
implemented under this rule reduce the potential impacts to marine 
mammals from training and testing activities.
    The Navy developed activity-specific mitigation zones based on the 
Navy's acoustic propagation model. Each recommended mitigation zone is 
intended to avoid or reduce the potential for onset of the lowest level 
of injury, PTS, out to the predicted maximum range. Mitigating to the 
predicted maximum range to PTS consequently also mitigates to the 
predicted maximum range to onset mortality (1 percent mortality), onset 
slight lung injury, and onset slight gastrointestinal tract injury, 
since the maximum range to effects for these criteria are shorter than 
for PTS. Furthermore, in most cases, the predicted maximum range to PTS 
also covers the predicted average range to TTS. In some instances, the 
Navy recommended mitigation zones that are larger or smaller than the 
predicted maximum range to PTS based on the associated effectiveness 
and operational assessments presented in section 5.3.2 (Mitigation Zone 
Procedural Measures) of the HSTT FEIS/OEIS. NMFS worked closely with 
the Navy in the development of the recommendations and carefully 
considered them prior to adopting them in this final rule. The 
mitigation zones contained in this final rule represent the maximum 
area the Navy can effectively observe based on the platform of 
observation, number of personnel that will be involved, and the number 
and type of assets and resources available. As mitigation zone sizes 
increase, the potential for reducing impacts decreases. For instance, 
if a mitigation zone increases from 1,000 to 4,000 yd. (914 to 3,658 
m), the area that must be observed increases sixteen-fold. The 
mitigation measures contained in this final rule balance the need to 
reduce potential impacts with the Navy's ability to provide effective 
observations throughout a given mitigation zone. Implementation of 
mitigation zones is most effective when the zone is appropriately sized 
to be realistically observed. The Navy does not have the resources to 
maintain the additional Lookouts or observer platforms that would be 
needed to effectively observe mitigation zones of increased size.
    Comment 65: One commenter cited Madsen et al. (2006) to suggest 
that airgun use could cause whales to stop feeding.
    Response 65: NMFS referenced Madsen et al. (2006) in the behavioral 
disturbance (specifically, foraging) section of the proposed rule. 
However, airguns used during Navy testing are small (up to 60 in\3\) 
compared to the airgun arrays used in Madsen et al. (2006), which 
ranged from 1,680 in\3\ to 2,590 in\3\. The results from Madsen et al. 
(2006) cannot be directly tied to the expected impacts from the Navy's 
limited use of small airguns during testing activities. The Navy will 
only use airguns an average of five times per year. Furthermore, airgun 
usage in the Study Area is a component of pierside integration swimmer 
defense activities, which occur pierside in San Diego and do not 
overlap with any major feeding areas.
    Comment 66: One commenter noted that it is not always possible to 
differentiate between marine mammal habituation of a sound and hearing 
impairment.
    Response 66: We do not have a perfect understanding of marine 
mammal behavioral responses, but we have sufficient information (based 
on multiple MFA sonar-specific studies, marine mammal hearing/
physiology/anatomy, and an extensive body of studies that address 
impacts from other anthropogenic sources) to be able to assess 
potential impacts and design mitigation and monitoring measures to 
ensure that the Navy's action will avoid injury and mortality whenever 
possible, have the least practicable adverse impact on marine mammal 
species and stocks and their habitat, and have a negligible impact on 
the affected species and stocks.
    In the Potential Effects of Specified Activities on Marine Mammals 
section of the proposed rule (78 FR 6978, January 31, 2013; pages 6997-
7011), we included a qualitative discussion of the different ways that 
Navy training and testing activities involving active sound sources may 
potentially affect marine mammals, which was based on MFA

[[Page 78135]]

sonar-specific studies and other studies addressing impacts from non-
mid-frequency active sonar anthropogenic sources.
    Comment 67: One commenter noted that the behavioral harassment 
analysis in the proposed rule (78 FR 6978, January 31, 2013; page 7034) 
shows that from 120-138 dB and 174-198 dB, very few low-frequency and 
mid-frequency cetaceans are behaviorally harassed. The commenter 
suggested that this is counter to the literature and requests an 
explanation for why high-frequency cetaceans are not included.
    Response 67: The number of behavioral harassments is determined 
from the behavioral risk function criteria. At the lower received 
levels, the probability is significantly decreased and results in lower 
numbers. The distance to higher received levels is relatively small, 
therefore encompassing a relatively small area. Since only a small area 
is ensonified, there is less chance for exposure. Additionally, it is 
possible that an animal could experience TTS at higher received levels, 
and if the animal has already been counted under TTS it would not be 
reflected in the table. As depicted in Table 3.4-12 of the HSTT FEIS/
OEIS, the behavioral response function table also applies to high-
frequency cetaceans.
    To the commenter's last point, the portion of the table labeled 
``Mid-frequency Cetaceans'' (Table 21) should actually be labeled 
``Mid- and High-frequency Cetaceans.'' There is one single behavioral 
harassment curve applied to both mid- and high-frequency cetaceans and 
Table 21 lists the breakdown of takes for that curve.
    Comment 68: One commenter noted that NMFS should highlight declines 
in beaked whales off California and that Navy sonar impacts are one of 
two leading hypotheses for their decline.
    Response 68: The commenter cited Moore and Barlow (2013) when 
referring to declines in beaked whales off California. Moore and Barlow 
(2013) have noted a decline in beaked whale populations in a broad area 
of the Pacific Ocean out to 300 nautical miles from the coast and 
extending from the Canadian-U.S. border to the tip of Baja Mexico. 
There are scientific caveats and limitations to the data used for that 
analysis, as well as oceanographic and species assemblage changes not 
thoroughly addressed in Moore and Barlow (2013). The authors suggest 
Navy sonar as one possible explanation for the apparent decline in 
beaked whale numbers over that broad area. However, in the small 
portion of the Pacific coast overlapping with the SOCAL Range Complex 
(where the Navy has been intensively training and testing with sonar 
and other systems for decades), long-term residency by individual 
Cuvier's beaked whales and higher densities of beaked whales have been 
documented. While it is possible that a downward trend in beaked whales 
may have gone unnoticed in the SOCAL Range Complex (due to a lack of 
survey precision) or that beaked whale densities may have been higher 
before the Navy began using sonar earlier in the 1900's, there is no 
data to suggest that beaked whale numbers have declined in the SOCAL 
Range Complex and as Moore and Barlow (2013) point out, it remains 
clear that the Navy range in Southern California continues to support 
high densities of beaked whales.
    Comment 69: One commenter pointed out the stable or declining blue 
whale population off California (Calambokidis et al., 2009) and that 
the SOCAL-Behavioral Response Study demonstrates that playback of low 
levels of sonar-like sounds disrupt blue whale feeding behavior during 
deep feeding. However, the reason for this shift is not fully 
understood and the commenter believes that key feeding areas should be 
avoided by the Navy.
    Response 69: Calambokidis et al. (2009) suggest that the blue whale 
population off California has not actually declined; but that the 
whales have shifted away from feeding off California to feeding in 
other areas much farther north and south. It is important to note that 
while 1991-2005 may show a slight decline in detections of blue whales 
from shipboard visual surveys, the corresponding mark-recapture photo 
identification analysis shows a 3 percent increase in blue whales 
(Carretta et al., 2013). The commenter specifically cites Goldbogen et 
al., 2013, which shows blue whale feeding disruption in response to 
pseudo random noise and simulated sonar signals. It is important to 
note that this behavior was observed in response to exposure to pseudo 
random noise and not a simulated sonar signal. Once again, this study 
shows the complexity of behavioral responses to acoustic sources and 
the importance of contextual variables.
    Again, while NMFS agrees that there are important areas for fin and 
blue whales that overlap with the SOCAL Range Complex, these areas are 
also adjacent to the Navy's only west coast underwater instrumented 
training range. This range has been in operation for decades and is 
considered mission-critical by the Navy for ASW training and testing. 
In addition, nearby infrastructure supports multiple warfare mission 
areas used concurrently with sonar and explosive use. The Navy has 
determined that establishment of a time-area closure within this region 
is not practical. However, the Navy has stated that given the closeness 
to shore, relatively shallow water, and lack of other nearby training 
infrastructure, major training events are not typically planned in this 
vicinity.
    As previously stated in Response 36, the Navy had two passive 
acoustic monitoring devices in the water offshore La Jolla and San 
Clemente Island to record blue, fin, and Cuvier's beaked whale 
vocalization rates in the presence of anthropogenic sounds. This 
analysis is continuing through 2015 and results will be posted on the 
Navy's marine species monitoring Web site: http://www.navymarinespeciesmonitoring.us/. Additional monitoring projects are 
planned for the SOCAL Range Complex, but have not yet been finalized.
    Comment 70: Several commenters suggested that the Navy grossly 
underestimates the effects of its activities on the marine environment 
and that NMFS fails to consider longer term effects or conduct a 
population-level analysis.
    Response 70: NMFS disagrees that impacts to marine mammals from the 
Navy's training and testing activities are grossly underestimated. The 
Navy's model uses the best available science to analyze impacts and 
often overestimates the potential effects of their activities by 
considering the worst case scenario (e.g., modeling for the loudest 
sound source within a source bin). The Navy also analyzed the potential 
environmental impacts of their activities, including on marine mammal 
populations, in the HSTT FEIS/OEIS.
    NMFS considers population-level effects under our ``least 
practicable adverse impact'' standard and also when making a negligible 
impact determination. The Analysis and Negligible Impact Determination 
section of this final rule explicitly addresses the effects of the 5-
year activity on populations, considering: when impacts occur in known 
feeding or reproductive areas; the number of mortalities; the status of 
the species; and other factors. Further, NMFS' duty under the ``least 
practicable adverse impact'' standard is to design mitigation targeting 
those impacts on individual marine mammals that are most likely to lead 
to adverse population-level effects. These mitigation measures are 
discussed in detail both in the Mitigation section of this final rule 
and also considered in the Negligible Impact Determination section.

[[Page 78136]]

    Comment 71: Several commenters suggested that NMFS failed to 
analyze the cumulative effects of the Navy's activities.
    Response 71: Section 101(a)(5)(A) of the MMPA requires NMFS to make 
a determination that the harassment incidental to a specified activity 
will have a negligible impact on the affected species or stocks of 
marine mammals, and will not result in an unmitigable adverse impact on 
the availability of marine mammals for taking for subsistence uses. 
Neither the MMPA nor NMFS' implementing regulations specify how to 
consider other activities and their impacts on the same populations. 
However, consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into the 
negligible impact analysis via their impacts on the environmental 
baseline (e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and ambient noise).
    In addition, cumulative effects are addressed in the Chapter 4 of 
the HSTT FEIS/OEIS and NMFS' Biological Opinion for this action. These 
documents provided NMFS with information regarding other activities in 
the action area that affect marine mammals, an analysis of cumulative 
impacts, and other information relevant to the determination made under 
the MMPA.
    Comment 72: One commenter claimed that NMFS' negligible impact 
determination is not accurate because the Navy's activities will result 
in hearing loss for 1,600 marine mammals and mortality of 130 marine 
mammals.
    Response 72: Based on our analysis of the effects of the specified 
activity on marine mammals and their habitat, and dependent on the 
implementation of mitigation and monitoring measures, we have found 
that the total taking from Navy training and testing will have a 
negligible impact on the affected species and stocks. First, the 
negligible impact finding is made for each individual species and the 
numbers the commenter cites are totals for all 39 species, i.e., the 
numbers are not nearly that large for any individual species. Second, 
in some cases, as described throughout the document, the estimated 
takes by mortality and injury are not always expected to occur but 
rather are authorized to ensure that the Navy is in compliance for the 
maximum that could occur. Last, PTS is a reduction in hearing 
sensitivity within a particular frequency band (which often occurs 
naturally as animals age)--NMFS would not expect that complete hearing 
loss would result from exposure to Navy activities, as it would require 
an animal stay in very close proximity to a loud source for an extended 
period of time. As a result, we have promulgated regulations for these 
activities that prescribe the means of effecting the least practicable 
adverse impact on marine mammal species or stocks and their habitat and 
set forth requirements pertaining to the monitoring and reporting of 
that taking.
    Comment 73: One commenter requested a list of unexploded ordnances, 
mitigation measures for unexploded ordnances, and the impacts on marine 
mammals from unexploded ordnances.
    Response 73: The HSTT FEIS/OEIS addresses the potential impacts 
from the introduction of things like unexploded ordnance into the water 
column. As stated in the previous response, the HSTT DEIS/OEIS was made 
available to the public on May 11, 2012 and was referenced in our 
notice of receipt (77 FR 60678, October 4, 2012) and proposed rule (78 
FR 6978, January 31, 2013). In summary, and as included in the Marine 
Mammal Habitat section of the proposed rule, chemical, physical, or 
biological changes in sediment or water quality would not be 
detectable. In the event of an ordnance failure, the energetic 
materials it contained would remain mostly intact. The explosive 
materials in failed ordnance items and metal components from training 
and testing would leach slowly and would quickly disperse in the water 
column. Unexploded ordnances are unlikely to affect marine mammals or 
their habitat.
    Comment 74: One commenter suggested that while no reported cases of 
harmful effects to humpback whales off the Hawaiian Islands have been 
attributed to mid-frequency active sonar, thorough monitoring has not 
taken place and marine mammal strandings and deaths at sea are only 
detected in 2 percent of all cases (Williams et al., 2011).
    Response 74: The Navy has been conducting mid-frequency active 
sonar around Hawaii for decades, and during that time there have been 
no reported cases of negative impacts to humpback whales from Navy 
activities. NMFS believes that the Navy's required mitigation measures 
will result in the least practicable adverse impacts to marine mammal 
species or stocks and their habitat in the area. Williams et al. (2011) 
does not provide a definitive amount of detected marine mammal deaths; 
rather, based on data from the Gulf of Mexico, they suggest that on 
average, carcasses are recovered from 2 percent of cetacean deaths. 
Comment 3 of the Mitigation section also addresses the limited amount 
of Navy activity on the leeward side of the island of Hawaii.
    Comment 75: The Commission recommended that NMFS authorize the 
total number of model-estimated Level A harassment and mortality takes 
rather than reducing the estimated numbers of Level A harassment and 
mortality takes based on the Navy's proposed post-model analysis. 
Specifically, the Commission was concerned that the Navy did not 
provide a basis for the assumption that animals would avoid repeated 
sound exposure (including sensitive species) or that the implementation 
of mitigation would prevent Level A harassment.
    Response 75: The Navy's post-model assessment process was developed 
using the best available science and in coordination with NMFS, and 
appropriately accounts for mitigation and avoidance behavior. Relying 
solely on the output of the Navy Acoustic Effects Model presents an 
overestimate of acoustic impacts for higher order effects such as 
injury or mortality for the following reasons:
    (1) Sensitive species (i.e., beaked whales and harbor porpoises) 
are modeled as if they would remain stationary and tolerate any very 
close anthropogenic encounters, although these species are known to 
avoid anthropogenic activity (see HSTT FEIS/OEIS Section 3.4.3.1.2.6 
Behavioral Reactions).
    (2) Implementation of mitigation is not currently modeled; however, 
the Navy has developed mitigation measures in cooperation with NMFS 
that are considered effective at reducing environmental impacts while 
being operationally feasible (see HSTT FEIS/OEIS Chapter 5, Standard 
Operating Procedures, Mitigation, and Monitoring).
    (3) Animals are assumed to remain horizontally stationary in the 
model and tolerate any disturbing or potentially injurious sound 
exposure, although animals have been observed to avoid sound sources 
with high source levels (see HSTT FEIS/OEIS Section 3.4.3.1.2.5 
Behavioral Reactions).
    (4) The model estimates the potential for mortality based on very 
conservative criteria (see HSTT FEIS/OEIS Section 3.4.3.1.4.8, 
Mortality and Injury from Explosives). With the implementation of 
proven mitigation and decades of historical information from conducting 
training and testing in the Study Area, the likelihood of mortality is 
very low.
    The Navy has required that any ``incident'' (marine mammal 
mortality

[[Page 78137]]

or otherwise) be reported since the 1990s. In that time, only four 
marine mammal mortalities have been reported in the Atlantic Fleet 
Training and Testing (AFTT) and HSTT Study Area from training and 
testing activities. While it is possible that some mortalities may have 
gone undetected, it is highly unlikely that they would reach the high 
level of Level A harassments and mortalities as suggested by the raw 
model results.
    The Navy's quantitative analysis of acoustic impacts is discussed 
in HSTT FEIS/OEIS Section 3.4.3.1.6, Quantitative Analysis, as well as 
in Section 6.3 of the Navy's LOA application. Specifically, post-model 
analysis taking into account sensitive species' avoidance of 
anthropogenic activity is discussed in HSTT FEIS/OEIS Section 
3.4.3.1.7, Marine Mammal Avoidance of Sound Exposures. Background 
information discussing harbor porpoise and beaked whale sensitivity to 
vessels and aircraft is discussed in HSTT FEIS/OEIS Section 
3.4.3.1.2.6, Behavioral Reactions. Reactions due to repeated exposures 
to sound-producing activities are discussed in HSTT FEIS/OEIS Section 
3.4.3.1.2.7, Repeated Exposures.
    The Navy's model-estimated effects (without consideration of 
avoidance or mitigation) are provided in a technical report 
(``Determination of Acoustic Effects on Marine Mammal and Sea 
Turtles'') available at http://www.hstteis.com. In addition to the 
information already contained within the HSTT FEIS/OEIS, and in 
response to public comments, the Navy has prepared a Technical Report 
which describes the process for the post-modeling analysis in further 
detail. The ``Analysis of Animal Avoidance, Behavior, and Mitigation 
Effectiveness Technical Report'' is available at http://www.hstteis.com.
    Comment 77: The Commission raised concerns regarding the Navy's 
approach to adjusting its take estimates based on both mitigation 
effectiveness scores and g(0)--the probability that an animal on a 
vessel's or aircraft's track line will be detected. Specifically, the 
Commission questioned how the Navy determined the appropriate 
adjustment factors because the information needed to judge mitigation 
effectiveness has not been made available. The Commission also stated 
that the Navy did not provide the criteria (i.e., the number and types 
of surveillance platforms, number of Lookouts, and sizes of the 
respective zones) needed to elicit the three mitigation effectiveness 
scores and pointed out that the simple detection of a marine mammal 
does not guarantee that mitigation measures will be effective.
    Response 77: The Navy Acoustic Effects Model currently does not 
have the ability to account for mitigation or horizontal animal 
movement; either as representative animal movements or as avoidance 
behavior (see HSTT FEIS/OEIS Section 3.4.3.1.6.4, Model Assumptions and 
Limitations). While the Navy will continue to incorporate best 
available science and modeling methods into future versions of the Navy 
Acoustic Effects Model, it was appropriate to perform post-model 
analysis to account for mitigation and avoidance behavior not captured 
by the Navy Acoustic Effects Model.
    A summary of the current status of the Navy's Lookout effectiveness 
study and why the data cannot be used in the analysis was added in 
Section 5.3.1.2.4, Effectiveness Assessment for Lookouts, of the HSTT 
FEIS/OEIS. Both NMFS and the Navy believe consideration of marine 
mammal sightability and activity-specific mitigation effectiveness in 
its quantitative analysis is appropriate in order to provide decision 
makers a reasonable assessment of potential impacts under each 
alternative. A comprehensive discussion of the Navy's quantitative 
analysis of acoustic impacts, including the post-model analysis to 
account for mitigation and avoidance, is presented in the Navy's LOA 
application. The assignment of mitigation effectiveness scores and the 
appropriateness of consideration of sightability using detection 
probability, g(0), when assessing the mitigation in the quantitative 
analysis of acoustic impacts is discussed in HSTT FEIS/OEIS Section 
3.4.3.1.8, Implementing Mitigation to Reduce Sound Exposures. 
Additionally, the activity category, mitigation zone size and number of 
Lookouts is provided in HSTT FEIS/OEIS Tables 5.3-2 and 5.4-1. In 
addition to the information already contained within the HSTT FEIS/
OEIS, and in response to public comments, the Navy has prepared a 
Technical Report which describes the process for the post-modeling 
analysis in further detail. The ``Analysis of Animal Avoidance, 
Behavior, and Mitigation Effectiveness Technical Report'' is available 
at http://www.hstteis.com.
    NMFS believes that detection of a marine mammal within the Navy's 
relatively small mitigation zones will help prevent animals from being 
exposed to sound levels that constitute Level A harassment (injury). 
The Navy's relatively small mitigation zones help increase the 
likelihood that an animal will be detected before incurring PTS. During 
the entire reporting period for the Hawaii Range Complex (January 2009 
to August 2012), there were zero instances during Major Training 
Exercises (MTEs) where a ship neglected to mitigate adequately for a 
marine mammal sighted by the watchstander team within 1,000 yd. During 
the same reporting period for the SOCAL Range Complex, adequate 
mitigation was conducted over 98 percent of the time during MTEs for 
marine mammals sighted by the watchstander team within 1,000 yd.
    Details on implementation of mitigation can be found in the annual 
exercise reports provided to NMFS and briefed annually to NMFS and the 
Commission. The annual exercise reports can be found at http://www.navymarinespeciesmonitoring.us/ and at http://www.nmfs.noaa/pr/permits/incidental.htm#applications. For more information on how 
mitigation is implemented see HSTT FEIS/OEIS Chapter 5.
    Comment 78: The Commission further stated that the Navy's post-
model analysis approach is confusing because the Navy is inconsistent 
in its use of the terms ``range to effects zone'' and ``mitigation 
zone,'' which are not the same. More importantly, some of the 
mitigation zones are smaller than the estimated range to effects zones.
    Response 78: The terms ``range to effects zone'' and ``mitigation 
zone'' are used appropriately in the discussion of mitigation in both 
the Navy's LOA application and in HSTT FEIS/OEIS Section 5.3.2 
(Mitigation Zone Procedural Measures). In summary, the range to effects 
zone is the distance over which the specific effects would be expected, 
and the mitigation zone is the distance that the Lookout will be 
implementing mitigation within and is developed based on the range to 
effects distance for injury (i.e. PTS).
    In all cases, the mitigation zones encompass the ranges to PTS for 
the most sensitive marine mammal functional hearing group (see HSTT 
FEIS/OEIS Table 5.3-2), which is usually the high-frequency cetacean 
hearing group. Therefore, the mitigation zones are even more protective 
for the remaining functional hearing groups (i.e., low-frequency 
cetaceans, mid-frequency cetaceans, and pinnipeds), and likely cover a 
larger portion of the potential range to onset of TTS. The Navy 
believes that ranges to effect for PTS that are based on spherical 
spreading best represent the typical range to effects near a sonar 
source; therefore, the ranges to effects for sonar presented in Table 
11-1 of the Navy's LOA application have been revised as

[[Page 78138]]

shown in Table 5.3-2 of the HSTT FEIS/OEIS. The predicted ranges to 
onset of PTS for a single ping are provided for each marine mammal 
functional hearing group in Table 3.4-11 of the HSTT FEIS/OEIS. The 
single ping range to onset of PTS for sonar in Sonar Bin MF1 (i.e., AN/
SQS-53), the most powerful source bin analyzed, is no greater than 109 
yd (100 m) for any marine mammal functional hearing group. Furthermore, 
as discussed in Section 3.4.3.2.1.1 (Range to Effects) of the HSTT 
FEIS/OEIS, there is little overlap of PTS footprints from successive 
pings, indicating that in most cases, an animal predicted to receive 
PTS would do so from a single exposure (i.e., ping). Additional 
discussion regarding consideration of mitigation in the quantitative 
analysis of sonar and other active acoustic sources is provided in HSTT 
FEIS/OEIS Section 3.4.3.2.1.2, Avoidance Behavior and Mitigation 
Measures as Applied to Sonar and Active Acoustic Sources.
    Comment 79: The Commission noted that although the Navy states that 
Lookouts will not always be effective at avoiding impacts to all 
species, it bases its g(0) estimates on seasoned researchers conducting 
the associated surveys, not Navy Lookouts whose observer effectiveness 
has yet to be determined.
    Response 79: A summary of the current status of the Navy's Lookout 
effectiveness study and why the data cannot be used in the analysis has 
been added in Section 5.3.1.2.4, Effectiveness Assessment for Lookouts, 
of the HSTT FEIS/OEIS. NMFS believes that consideration of marine 
mammal sightability and activity-specific mitigation effectiveness in 
the Navy's quantitative analysis is appropriate in order to provide a 
reasonable assessment of potential impacts under each alternative. A 
comprehensive discussion of the Navy's quantitative analysis of 
acoustic impacts, including the post-model analysis to account for 
mitigation and avoidance, is presented in the Navy's LOA application. 
Currently, the g(0) probabilities are the only quantitative measures 
available for estimating mitigation effectiveness.
    However, the differences between Navy training and testing events 
and systematic line-transect marine mammal surveys suggest that the use 
of g(0), as a sightability factor to quantitatively adjust model-
predicted effects based on mitigation, is likely to result in an 
underestimate of the protection afforded by the implementation of 
mitigation. For instance, mitigation zones for Navy training and 
testing events are significantly smaller (typically less than 1,000 yd 
radius) than the area typically searched during line-transect surveys, 
which includes the maximum viewable distance out to the horizon. In 
some cases, Navy events can involve more than one vessel or aircraft 
(or both) operating in proximity to each other or otherwise covering 
the same general area, potentially resulting in more observers looking 
at the mitigation zone than the two primary observers used in marine 
mammal surveys upon which g(0) is based. Furthermore, a systematic 
marine mammal line-transect survey is designed to sample broad areas of 
the ocean, and generally does not retrace the same area during a given 
survey. In contrast, many Navy training and testing activities involve 
area-focused events (e.g., anti-submarine warfare tracking exercise), 
where participants are likely to remain in the same general area during 
an event. In other cases, Navy training and testing activities are 
stationary (i.e., pierside sonar testing or use of dipping sonar), 
which allows Lookouts to focus on the same area throughout the 
activity. Both of these circumstances result in a longer observation 
period of a focused area with more opportunities for detecting marine 
mammals than are offered by a systematic marine mammal line-transect 
survey that only passes through an area once. Additional discussion 
regarding the use of detection probability, g(0), in the consideration 
of mitigation in the quantitative analysis is provided in HSTT FEIS/
OEIS Section 3.4.3.1.8, Implementing Mitigation to Reduce Sound 
Exposures.
    Comment 80: The Commission and others voiced concern that the 
Navy's post-model analysis cannot account for the magnitude of 
adjustment to take estimates from what was originally presented in the 
draft HSTT EIS/OEIS to what was presented in the proposed rule (78 FR 
6978, January 31, 2013) and that the public does not have enough 
information to comment on this issue.
    Response 80: A comprehensive discussion of the Navy's acoustic 
impact analysis, including modeling and post-model analysis, is in 
Section 3.4.3.1.6, Quantitative Analysis, of the HSTT FEIS/OEIS. The 
information presented in the proposed rule and the Navy's LOA 
application was sufficient to notify the public of the post-modeling 
analysis and provide the public an opportunity to comment. However, in 
response to public comments, in addition to the information already 
contained within the HSTT FEIS/OEIS and the Navy's LOA application, the 
Navy also prepared a Technical Report which describes the process for 
the post-modeling analysis in further detail. The ``Analysis of Animal 
Avoidance Behavior and Mitigation Effectiveness Technical Report'' is 
available at http://www.hstteis.com. This report demonstrates that the 
differences in predicted impacts due to the post-modeling analysis and 
the corrections in modeling the proposed action made after publication 
of the HSTT DEIS/OEIS were not substantial changes in the proposed 
action that will significantly affect the environment in a manner not 
already considered in the HSTT DEIS/OEIS.
    Comment 81: One commenter included several criticisms of the 
behavioral threshold used to assess impacts from airguns and pile 
driving, including that it is outdated and uses an inappropriate 
metric.
    Response 81: NMFS is committed to the use of the best available 
science and, as noted in the summary at the beginning of the final 
rule, is in the process of updating and revising our acoustic 
thresholds. As has always been our process, we will solicit public 
input on revised draft thresholds before making any changes in the 
acoustic thresholds that applicants are required to use. The process 
for establishing new acoustic guidance is outlined on our Web site: 
http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. Until revised 
criteria are finalized (after both public and peer review), ensuring 
the inclusion and appropriate interpretation of any newer information, 
applicants should continue to use NMFS' current acoustic thresholds.

Vessel Strikes

    Comment 82: The Commission recommended that NMFS require the Navy 
to use its spatially and temporally dynamic simulation models to 
estimate strike probabilities for specific activities.
    Response 82: The Navy considered using a dynamic simulation model 
to estimate strike probability. However, the Navy determined that the 
use of historical data was a more appropriate way to analyze the 
potential for strike. The Navy's strike probability analysis in the 
HSTT FEIS/OEIS is based on data collected from historical use of 
vessels, in-water devices, and military expended materials, and the 
likelihood that these items may have the potential to strike an animal. 
This data accounts for real-world variables over the course of many 
years and is considered more accurate than model results.
    Comment 83: NRDC recommended the application of ship-speed 
restrictions (10 knots) for Navy support vessels and/or other vessels 
while transiting high-value habitat for baleen

[[Page 78139]]

whales and endangered species, or other areas of biological 
significance and/or shipping lanes (e.g., the Santa Barbara Channel).
    Response 83: The Navy typically chooses to run vessels at slower 
speeds for efficiency and to conserve gas; however, some exercises, 
tests, or military needs require the Navy to exceed 10-15 knots. The 
Santa Barbara Channel, specifically, is not part of the HSTT Study 
Area; rather, it overlaps with the Navy's target and missile launch 
activities at San Nicolas Island, which do not include vessels and were 
analyzed in NMFS' 2009 EA and final rule (74 FR 26580, June 3, 2009).

General Opposition

    Comment 84: Several commenters expressed general opposition to Navy 
activities and NMFS' issuance of an MMPA authorization.
    Response 84: NMFS appreciates the commenters' concern for the 
marine environment. However, the MMPA directs NMFS to issue an 
incidental take authorization if certain findings can be made. NMFS has 
determined that the Navy's training and testing activities will have a 
negligible impact on the affected species or stocks and, therefore, we 
plan to issue the requested MMPA authorization.

Other

    Comment 85: One commenter stated that the Navy's activities can be 
conducted inside and outside of designated ranges and that there is 
essentially no boundary for their activities.
    Response 85: The National Defense Authorization Act of 2004 (NDAA) 
(Pub. L. 108-136) removed the ``specified geographical region'' 
limitation of the MMPA as it applies to a ``military readiness 
activity.'' However, the Navy did designate a Study Area that includes 
three existing range complexes (Southern California (SOCAL) Range 
Complex, Hawaii Range Complex (HRC), and Silver Strand Training Complex 
(SSTC)). In addition, the Study Area includes other areas where 
training and testing activities occur including the pierside locations 
in San Diego Bay and Pearl Harbor, the transit corridor between SOCAL 
and Hawaii, and throughout the San Diego Bay.
    Comment 86: One commenter asked if NMFS would address issues raised 
in Dr. Lubchenco's 2010 letter to the Center for Environmental Quality, 
which noted a lack of knowledge on effects of sonar to marine mammals 
and the difficulties of limiting impacts from sonar where mitigation 
efforts depend on visual sightings.
    Response 86: The Navy's LOA application and the HSTT FEIS/OEIS 
clearly discuss the potential impacts on marine mammals when exposed to 
sonar. The Navy has worked, and will continue to work, as an active 
partner to investigate the extent and severity of the impacts on marine 
mammals and how to reduce them. With respect to monitoring 
effectiveness, neither the Navy nor NMFS have indicated that monitoring 
(and the associated mitigation) will eliminate impacts. The MMPA 
requires that NMFS implement the means of effecting the least 
practicable adverse impacts on marine mammal species or stocks and 
their habitat, and NMFS has determined that required monitoring and 
associated mitigation measures accomplish this.
    Comment 87: One commenter voiced concern about stranding networks 
not being equipped or willing to deal with the influx of marine mammals 
if NMFS' authorizes the Navy's activities.
    Response 87: The National Marine Mammal Stranding Network consists 
of over 120 organizations who partner with NMFS to investigate marine 
mammal strandings. Given the current fiscal environment, NMFS has 
needed to make tough budget choices, including reducing and defunding 
valuable programs. With the reduction in federal funding, response 
resources may be limited in some geographic regions.
    In 2011, NMFS and the Navy signed a National Memorandum of 
Understanding (MOU) that established a framework for the Navy to assist 
NMFS with response to, and investigation of, Uncommon Stranding Events 
(USEs) during major training exercises by providing in-kind services to 
NMFS. The MOU is implemented through Regional Stranding Investigation 
Assistance Plans and outlines the region-specific Navy services that 
are available to assist with USE responses. As resources are available, 
the stranding network has and will continue to respond to marine mammal 
strandings.
    Comment 88: One commenter claimed that Navy activities taking place 
in Hawaii and Southern California must be separated in NMFS' 
regulations.
    Response 88: The Navy designated a Study Area that includes three 
existing range complexes (SOCAL Range Complex, HRC, and SSTC). In 
addition, the Study Area includes other areas where training and 
testing activities occur including the pierside locations in San Diego 
Bay and Pearl Harbor, the transit corridor between SOCAL and Hawaii, 
and throughout the San Diego Bay. Combining the Navy's activities at 
each of these range complexes has no effect on how we analyze the 
impacts of Navy training and testing activities on marine mammals.
    Comment 89: One commenter suggested that the Navy should not be 
allowed to increase their activities while the impacts on marine 
mammals are not fully documented or understood.
    Response 89: It is important to note that, as stated in the Navy's 
LOA application and the proposed rule, the expansion of the HSTT Study 
Area from previous analyses is not an increase in areas where the Navy 
will train and test, but merely an expansion of the area to be included 
in our analysis and resulting authorization. Both NMFS and the Navy 
have a responsibility to use the best available science to support our 
analyses and decisions under the MMPA and NEPA. However, because the 
best available science 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 impacts and incorporate new mitigation or monitoring measures 
when necessary.
    Comment 90: One commenter asked about the effects of missile 
launches on air and water quality; how much aluminum oxide is released 
by rockets and missile launches and the effects on marine life; and the 
effects of hazardous materials discharged from Navy vessels on marine 
life.
    Response 90: The HSTT FEIS/OEIS addresses all potential impacts to 
the human environment, which is available online at http://www.hstteis.com. The HSTT DEIS/OEIS was made available to the public on 
May 11, 2012 and was referenced in our notice of receipt (77 FR 60678, 
October 4, 2012) and the proposed rule (78 FR 6978, January 31, 2013).
    Comment 91: One commenter asked why the Navy does not plan to 
suspend sonar operations during gray whale and fish migration periods.
    Response 91: The Navy will implement mitigation measures for all 
marine mammals, including gray whales, if they approach or enter a 
mitigation zone. NMFS does not think that mitigation specific to gray 
whale migration is necessary because mitigation measures are already in 
place to help avoid the potential for onset of PTS and reduce the 
potential for TTS. Furthermore, suspending sonar operations during 
migration periods of any marine mammal may negatively impact the 
effectiveness of Navy training and testing activities; these activities 
must be conducted during all months of the year and in a variety of 
conditions for the Navy to meet its mission.

[[Page 78140]]

    The concern regarding fish migration is outside the purview of the 
MMPA. Impacts to fish spawning grounds and habitat use are dealt with 
under the Magnuson-Stevens Fishery Conservation and Management Act as 
it relates to Essential Fish Habitat.
    Comment 92: One commenter asked about the impacts of testing new 
electromagnetic weapons systems on marine mammals and what studies have 
been done.
    Response 92: The Navy did not request MMPA authorization for takes 
resulting from electromagnetic stressors. Data regarding the influence 
of magnetic fields and electromagnetic fields on cetaceans is 
inconclusive. Dolman et al. (2003) provides a literature review of the 
influences of marine wind farms on cetaceans. The literature focuses on 
harbor porpoises and dolphin species because of their nearshore 
habitats. Teilmann et al. (2002) evaluated the frequency of harbor 
porpoise presence at wind farm locations around Sweden (the electrical 
current conducted by undersea power cables creates an electromagnetic 
field around those cables). Although electromagnetic field influences 
were not specifically addressed, the presence of cetacean species 
implies that at least those species are not repelled by the presence of 
electromagnetic fields around undersea cables associated with offshore 
wind farms. Based on the available literature, no evidence of 
electrosensitivity in marine mammals was found except recently in the 
Guiana dolphin (Czech-Dama et al., 2011). Based on the available 
literature, no evidence suggests any magnetic sensitivity for polar 
bears, sea otters, sea lions, fur seals, walrus, earless seals, and 
Sirenia (Normandeau et al., 2011). As described in the discussion 
below, some literature suggests that some cetaceans (whales, dolphin, 
and porpoises) may be sensitive to changes in magnetic fields; however, 
NMFS concurred with the Navy that the available data did not support 
the need for MMPA authorization at this time.
    Comment 93: Earthjustice suggested that the Navy's DEIS/OEIS is 
fatally flawed because it fails to consider a ``no action'' 
alternative.
    Response 93: The Council on Environmental Quality regulations 
require that agencies develop and analyze a range of alternatives to 
the proposed action, including a No Action Alternative. The No Action 
Alternative serves as a baseline description from which to compare the 
potential impacts of the proposed action. The Council on Environmental 
Quality provides two interpretations of the No Action Alternative, 
depending on the proposed action. One interpretation would mean the 
proposed action would not take place. For example, this interpretation 
would be used if the proposed action was the construction of a facility 
where a facility did not previously exist. The second interpretation, 
which applies to the HSTT FEIS/OEIS, allows the No Action Alternative 
to be the continuation of the present course of action until that 
action is changed. The purpose of a ``No Action Alternative'' is to 
ensure that agencies compare the potential impacts of the proposed 
action to the potential impacts of maintaining the status quo.
    The HSTT FEIS/OEIS includes a ``No Action Alternative'' where the 
Navy would continue baseline training and testing activities, as 
defined by existing Navy environmental planning documents, including 
the FEISs for the Hawaii Range Complex, the Southern California Range 
Complex, and the Silver Strand Training Complex. The baseline testing 
activities also include those testing events that historically occur in 
the Study Area and have been subject to previous analyses. However, the 
No Action Alternative fails to meet the purpose of and need for the 
Navy's proposed action because it would not allow the Navy to meet 
current and future training and testing requirements necessary to 
achieve and maintain military readiness.
    Comment 94: One commenter suggested that activities in the HSTT 
DEIS/OEIS that were determined to ``not involve stressors that could 
result in harassment of marine mammals'' should be further addressed.
    Response 94: The Navy requested authorization to take marine 
mammals incidental to activities that have the potential to cause 
harassment, injury, or mortality. Other activities are discussed in the 
HSTT FEIS/OEIS and outside the scope of this analysis.
    Comment 95: NRDC recommended that the Navy avoid fish spawning 
grounds and important habitat for fish species potentially vulnerable 
to significant behavioral change, such as wide-scale displacement 
within the water column or changes in breeding behavior.
    Response 95: While NMFS considers impacts to prey species as a 
component of marine mammal habitat, these concerns are mostly outside 
the purview of the MMPA. Impacts to fish spawning grounds and habitat 
use are dealt with under the Magnuson-Stevens Fishery Conservation and 
Management Act (MSFCMA) as it relates to Essential Fish Habitat (EFH). 
The Navy determined that their activities may adversely affect EFH; 
therefore, the Navy concluded that a consultation under the MSFCMA was 
necessary. NMFS Pacific Islands Regional Office determined that adverse 
effects to EFH could be avoided and minimized given that the Navy 
factors the listed sensitive EFH and Habitat Areas of Particular 
Concerns into decisions as areas to avoid when conducting HSTT 
activities that result in more than minimal impact to seafloor. NMFS 
Southwest Regional Office determined that the proposed conservation 
measures are sufficient to avoid, minimize, or offset impacts to EFH 
and had no additional conservation recommendations.
    Comment 96: NRDC recommended that the Navy dedicate research and 
technology development to reduce the impacts of active acoustic sources 
on marine mammals.
    Response 96: As stated in the Ongoing Navy Research section of the 
proposed rule (78 FR 6978, January 31, 2013; pages 7019-7020), the Navy 
provides a significant amount of funding and support to marine 
research. In summary, from 2004 to 2012, the Navy provided over $230 
million for marine species research and currently 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. The 
Navy's research and development efforts have significantly improved our 
understanding of the effects of Navy-generated sound in the marine 
environment. These studies have supported the modification of acoustic 
criteria to more accurately assess behavioral impacts to beaked whales 
and the thresholds for auditory injury for all species, and the 
adjustment of mitigation zones to better avoid injury. In addition, 
Navy scientists work cooperatively with other government researchers 
and scientists, universities, industry, and non-governmental 
conservation organizations in collecting, evaluating, and modeling 
information on marine resources.
    Comment 97: NRDC recommended that the Navy agree to additional 
clean-up and retrieval of the massive amount of discarded debris and 
expended materials associated with its proposed activities.
    Response 97: The Navy conducted a full analysis of the potential 
impacts of military expended materials on marine mammals and will 
implement several mitigation measures to help avoid or reduce those 
impacts. This analysis is contained throughout Chapter 3 (Affected 
Environment and Environmental Consequences) of the HSTT FEIS/OEIS. The 
Navy determined

[[Page 78141]]

that military expended materials related to training exercises under a 
worst-case scenario will not impact more than 0.00009 percent of the 
available soft bottom habitat annually within any of the range 
complexes. The Navy has standard operating procedures in place to 
reduce the amount of military expended materials to the maximum extent 
practical, including recovering targets and associated parachutes.

 Estimated Take of Marine Mammals

    In the Estimated Takes of Marine Mammals section of the proposed 
rule, NMFS described the potential effects to marine mammals from 
active sonar and underwater detonations in relation to the MMPA 
regulatory definitions of Level A and Level B harassment (78 FR 6978, 
January 31, 2013; pages 7021-7030). That information has not changed 
and is not repeated here.
    Tables 13 and 14 provide a summary of non-impulsive and impulsive 
thresholds to TTS and PTS for marine mammals. A detailed explanation of 
how these thresholds were derived is provided in the HSTT DEIS/OEIS 
Criteria and Thresholds Technical Report (http://www.hstteis.com/DocumentsandReferences/HSTTDocuments/SupportingTechnicalDocuments.aspx) 
and summarized in Chapter 6 of the Navy's LOA application (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications).

               Table 13--Onset TTS and PTS Thresholds for Sonar and Other Active Acoustic Sources
----------------------------------------------------------------------------------------------------------------
                Group                          Species                 Onset TTS                Onset PTS
----------------------------------------------------------------------------------------------------------------
Low-Frequency Cetaceans..............  All mysticetes.........  178 dB re 1[mu]Pa2-      198 dB re 1[mu]Pa2-
                                                                 sec(LFII).               sec(LFII).
Mid-Frequency Cetaceans..............  Most delphinids, beaked  178 dB re 1[mu]Pa2-      198 dB re 1[mu]Pa2-
                                        whales, medium and       sec(MFII).               sec(MFII).
                                        large toothed whales.
High-Frequency Cetaceans.............  Porpoises, Kogia spp...  152 dB re 1[mu]Pa2-      172 dB re 1[mu]Pa2-
                                                                 sec(HFII).               secSEL (HFII).
Phocidae In-water....................  Harbor, Hawaiian monk,   183 dB re 1[mu]Pa2-      197 dB re 1[mu]Pa2-
                                        elephant seals.          sec(PWI).                sec(PWI).
Otariidae & Obodenidae In-water......  Sea lions and fur seals  206 dB re 1[mu]Pa2-      220 dB re 1[mu]Pa2-
                                                                 sec(OWI).                sec(OWI).
Mustelidae In-water..................  Sea otters.............
----------------------------------------------------------------------------------------------------------------
LFII, MFII, HFII: New compound Type II weighting functions; PWI, OWI: Original Type I (Southall et al. 2007) for
  pinniped and mustelid in water.


                            Table 14--Impulsive Sound Explosive Criteria and Thresholds for Predicting Physiological Effects
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Behavior                                 Slight Injury
                                                ---------------------------------------------------------------------------------------
            Group                   Species      Behavioral (for                                                                            Mortality
                                                  >=2 pulses/24         TTS              PTS            GI Tract            Lung
                                                      hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......  All mysticetes..  167 dB SEL       172 dB SEL       187 dB SEL       237 dB SPL or     Equation 1......  Equation 2
                                                  (LFII).          (LFII) or 224    (LFII) or 230    104 psi.
                                                                   dB Peak SPL.     dB Peak SPL.
Mid-frequency Cetaceans......  Most delphinids,  167 dB SEL       172 dB SEL       187 dB SEL
                                medium and        (MFII).          (MFII) or 224    (MFII) or 230
                                large toothed                      dB Peak SPL.     dB Peak SPL.
                                whales.
High-frequency Cetaceans.....  Porpoises and     141 dB SEL       146 dB SEL       161 dB SEL
                                Kogia spp..       (HFII).          (HFII) or 195    (HFII) or 201
                                                                   dB Peak SPL.     dB Peak SPL.
Phocidae.....................  Hawaiian monk,    172 dB SEL       177 dB SEL       192 dB SEL
                                elephant, and     (PWI).           (PWI) or 212     (PWI) or 218
                                harbor seal.                       dB Peak SPL.     dB Peak SPL.
Otariidae....................  Sea lions and     195 dB SEL       200 dB SEL       215 dB SEL
                                fur seals.        (OWI).           (OWI)or 212 dB   (OWI) or 218
                                                                   Peak SPL.        dB Peak SPL.
Mustelidae...................  Sea otters......
--------------------------------------------------------------------------------------------------------------------------------------------------------

Equation 1: = 39.1M1/3 (1+[DRm/
10.081])1/2 Pa-sec
Equation 2: = 91.4M1/3 (1+[DRm/
10.081])1/2 Pa-sec
Where:

M = mass of the animals in kg
DRm = depth of the receiver (animal) in meters
[GRAPHIC] [TIFF OMITTED] TR24DE13.028

Where:

R = Risk (0-1.0)
L = Received level (dB re: 1 [mu]Pa)
B = Basement received level = 120 dB re: 1 [mu]Pa
K = Received level increment above B where 50-percent risk = 45 dB 
re: 1 [mu]Pa
A = Risk transition sharpness parameter = 10 (odontocetes and 
pinnipeds) or 8 (mysticetes)

    Existing NMFS criteria was applied to sounds generated by pile 
driving and airguns (Table 16).

[[Page 78142]]



                                Table 16--Thresholds for Pile Driving and Airguns
----------------------------------------------------------------------------------------------------------------
                                     Underwater vibratory pile driving      Underwater impact pile driving and
                                  criteria  (sound pressure level, dB re  airgun criteria (sound pressure level,
                                                 1 [mu]Pa)                            dB re 1 [mu]Pa)
         Species groups          -------------------------------------------------------------------------------
                                                            Level B                                 Level B
                                    Level A injury        disturbance       Level A injury        disturbance
                                       threshold           threshold           threshold           threshold
----------------------------------------------------------------------------------------------------------------
Cetaceans (whales, dolphins,      180 dB rms........  120 dB rms........  180 dB rms........  160 dB rms.
 porpoises).
Pinnipeds (seals)...............  190 dB rms........  120 dB rms........  190 dB rms........  160 dB rms.
----------------------------------------------------------------------------------------------------------------

Take Request

    The HSTT FEIS/OEIS considers all training and testing activities to 
occur in the Study Area that have the potential to result in the MMPA 
defined take of marine mammals. The stressors associated with these 
activities included the following:
     Acoustic (sonar and other active non-impulse sources, 
explosives, pile driving, swimmer defense airguns, weapons firing, 
launch and impact noise, vessel noise, aircraft noise);
     Energy (electromagnetic devices);
     Physical disturbance or strikes (vessels, in-water 
devices, military expended materials, seafloor devices);
     Entanglement (fiber optic cables, guidance wires, 
parachutes);
     Ingestion (munitions, military expended materials other 
than munitions); and
     Indirect stressors (risk to monk seals from Navy 
California sea lions from the transmission of disease or parasites).
    The Navy determined, and NMFS agrees, that three stressors could 
potentially result in the incidental taking of marine mammals from 
training and testing activities within the Study Area: (1) Non-
impulsive stressors (sonar and other active acoustic sources), (2) 
impulsive stressors (explosives, pile driving and removal, and 
airguns), and (3) vessel strikes. Non-impulsive and impulsive stressors 
have the potential to result in incidental takes of marine mammals by 
harassment, injury, or mortality. Vessel strikes have the potential to 
result in incidental take from direct injury and/or mortality. It is 
important to note that the Navy's take estimates represent the number 
of exposures--not the number of individual marine mammals that may be 
affected by training and testing activities. Some individuals may be 
harassed multiple times while other individuals may only be harassed 
once. Multiple exposures are especially likely in areas where resident 
populations overlap with stationary activities.
    Training Activities--Based on the Navy's model and post-model 
analysis (described in detail in Chapter 6 of their LOA application), 
Table 18 summarizes the authorized take for training activities for an 
annual maximum year (a notional 12-month period when all annual and 
non-annual events could occur) and the summation over a 5-year period 
(annual events occurring five times and non-annual events occurring 
three times). Table 19 summarizes the authorized take for training 
activities by species.

          Table 17--Summary of Annual and 5-Year Takes Requested and Authorized for Training Activities
----------------------------------------------------------------------------------------------------------------
                                                                            Training activities
                                                          ------------------------------------------------------
           MMPA Category                    Source            Annual authorization        5-Year authorization
                                                                   sought \1\                  sought \2\
----------------------------------------------------------------------------------------------------------------
Injury or Mortality...............  Impulse..............  7 mortalities applicable    35 mortalities applicable
                                                            to any small odontocete     to any small odontocete
                                                            (i.e., dolphin) or          (i.e., dolphin) or
                                                            pinniped species \3\.       pinniped species over
                                                                                        five years.
                                    Unspecified \4\......  2 mortalities to beaked     10 mortalities to beaked
                                                            whales \4\.                 whales over five years
                                                                                        \4\
                                    Vessel strike........  No more than 4 large whale  No more than 12 large
                                                            injuries or mortalities     whale injuries or
                                                            in any given year \5\.      mortalities over five
                                                                                        years over five years
                                                                                        \5\
Level A...........................  Impulse and Non-       266--Species specific data  1,314--Species specific
                                     Impulse.               shown in Table 19.          data shown in Table 19.
Level B...........................  Impulse and Non-       1,690,698--Species          8,396,806--Species
                                     Impulse.               specific data shown in      specific data shown in
                                                            Table 19.                   Table 19.
----------------------------------------------------------------------------------------------------------------
\1\ These numbers constitute the total for an annual maximum year (a notional 12-month period when all annual
  and non-annual events could occur) in which a RIMPAC exercise and Civilian Port Defense events would occur in
  Hawaii and SOCAL.
\2\ These numbers constitute the summation over a 5-year period with annual events occurring five times and non-
  annual events occurring three times.
\3\ No more than four of any one species. This authorization by mortality does not include Hawaiian monk seals
  or Guadalupe fur seals.
\4\ The Navy's NAEMO model did not quantitatively predict these mortalities. Navy, however, is seeking this
  particular authorization given sensitivities these species may have to anthropogenic activities. Request
  includes two Ziphidae beaked whale annually to include any combination of Cuvier's beaked whale, Baird's
  beaked whale, Longman's beaked whale, and unspecified Mesoplodon spp. (not to exceed 10 beaked whales total
  over the 5-year length of requested authorization).
\5\ The Navy cannot quantifiably predict that proposed takes from training will be of any particular species,
  and therefore seeks take authorization for any combination of large whale species (gray whale, fin whale, blue
  whale, humpback whale, Bryde's whale, sei whale, minke whale, or sperm whale), but of the four takes per year
  no more than two of any one species of blue whale, fin whale, Western North Pacific gray whale, humpback
  whale, sei whale, or sperm whale is requested.


[[Page 78143]]


    Table 18--Species-Specific Take Request and Authorization From Modeling Estimates of Impulsive and Non-Impulsive Source Effects for All Training
                                                                       Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Annually \1\                    Total over 5-Year Rule \2\
                  Species                                Stock             -----------------------------------------------------------------------------
                                                                              Level B      Level A     Mortality     Level B      Level A     Mortality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................................  Eastern North Pacific........        4,145            0            0       20,725            0            0
                                             Central North Pacific........          180            0            0          834            0            0
Fin whale..................................  California, Oregon, &                1,528            0            0        7,640            0            0
                                              Washington.
                                             Hawaiian.....................          191            0            0          891            0            0
Humpback whale.............................  California, Oregon, &                1,081            0            0        5,405            0            0
                                              Washington.
                                             Central North Pacific........        8,192            0            0       40,960            0            0
Sei whale..................................  Eastern North Pacific........          146            0            0          730            0            0
                                             Hawaiian.....................          484            0            0        2,266            0            0
Sperm whale................................  California, Oregon, &                1,958            0            0        9,790            0            0
                                              Washington.
                                             Hawaiian.....................        1,374            0            0        6,130            0            0
Guadalupe fur seal.........................  Mexico.......................        2,603            0            0       13,015            0            0
Hawaiian monk seal.........................  Hawaiian.....................        1,292            0            0        6,334            0            0
Bryde's whale..............................  Eastern Tropical Pacific.....          112            0            0          560            0            0
                                             Hawaiian.....................          137            0            0          637            0            0
Gray whale.................................  Eastern North Pacific........        9,533            2            0       47,665           10            0
                                             Western North Pacific........           10            0            0           50            0            0
Minke whale................................  California, Oregon, &                  359            0            0        1,795            0            0
                                              Washington.
                                             Hawaiian.....................          447            0            0        2,235            0            0
Baird's beaked whale.......................  California, Oregon, &                4,420            0            0       22,100            0            0
                                              Washington.
Blainville's beaked whale..................  Hawaiian.....................       10,316            0            0       48,172            0            0
Bottlenose dolphin.........................  California coastal...........          351            0            0        1,755            0            0
                                             California, Oregon &                26,618            0            0      133,090            0            0
                                              Washington offshore.
                                             Hawaii pelagic...............        3,942            0            0       19,709            0            0
                                             Oahu.........................          728            0            0        3,641            0            0
                                             4-Islands region.............          188            0            0          938            0            0
                                             Kauai and Niihau.............          180            0            0          901            0            0
                                             Hawaii Island................          125            0            0          625            0            0
Cuvier's beaked whale......................  California, Oregon, &               13,353            0            0       66,765            0            0
                                              Washington.
                                             Hawaiian.....................       52,893            0            0      248,025            0            0
Dwarf sperm whale..........................  Hawaiian.....................       22,359           46            0      101,291          214            0
Dall's porpoise............................  California, Oregon, &               36,891           47            0      184,455          235            0
                                              Washington.
False killer whale.........................  Main Hawaiian Islands Insular           49            0            0          220            0            0
                                             Hawaii Pelagic...............          480            0            0        2,116            0            0
                                             Northwestern Hawaiian Islands          177            0            0          776            0            0
Fraser's dolphin...........................  Hawaiian.....................        2,009            0            0        8,809            0            0
Killer whale...............................  Eastern North Pacific                  321            0            0        1,605            0            0
                                              offshore/transient.
                                             Hawaiian.....................          182            0            0          822            0            0
Kogia spp..................................  California...................       12,943           33            0       64,715          165            0
Long-beaked common dolphin.................  California...................       73,088            2            0      365,440           10            0
Longman's beaked whale.....................  Hawaiian.....................        3,666            0            0       17,296            0            0
Melon-headed whale.........................  Hawaiian.....................        1,511            0            0        6,733            0            0
Mesoplodon beaked whales \3\...............  California, Oregon, &                1,994            0            0        9,970            0            0
                                              Washington.
Northern right whale dolphin...............  California, Oregon, &               51,596            1            0      257,980            5            0
                                              Washington.
Pacific white-sided dolphin................  California, Oregon, &               38,451            1            0      192,255            5            0
                                              Washington.
Pantropical spotted dolphin................  Hawaiian.....................       10,887            0            0       48,429            0            0
Pygmy killer whale.........................  Hawaiian.....................          571            0            0        2,603            0            0
Pygmy sperm whale..........................  Hawaiian.....................          229            0            0        1,093            0            0
Risso's dolphin............................  California, Oregon, &               86,504            1            0      432,520            5            0
                                              Washington.
                                             Hawaiian.....................        1,085            0            0        4,887            0            0
Rough-toothed dolphin......................  Hawaiian.....................        5,131            0            0       22,765            0            0
Short-beaked common dolphin................  California, Oregon, &              999,282           70          * 3    4,996,410          350         * 15
                                              Washington.

[[Page 78144]]

 
Short-finned pilot whale...................  California, Oregon, &                  308            0            0        1,540            0            0
                                              Washington.
                                             Hawaiian.....................        9,150            0            0       40,760            0            0
Spinner dolphin \4\........................  Hawaii Stock Complex.........        2,576            0            0       11,060            0            0
Striped dolphin............................  California, Oregon, &                3,545            0            0       17,725            0            0
                                              Washington.
                                             Hawaiian.....................        3,498            0            0       15,422            0            0
California sea lion........................  U.S. Stock...................      126,841           25          * 4      634,205          125         * 20
Northern fur seal..........................  San Miguel Island............       20,083            5            0      100,415           25            0
Harbor seal................................  California...................        5,899           11            0       29,495           55            0
Northern elephant seal.....................  California Breeding..........       22,516           22            0      112,580          110            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ These numbers constitute the total for an annual maximum year (a notional 12-month period when all annual and non-annual events could occur) in
  which a RIMPAC exercise and Civilian Port Defense events would occur in Hawaii and SOCAL.
\2\ These numbers constitute the summation over a 5-year period with annual events occurring five times and non-annual events occurring three times.
\3\ Mesoplodon spp. in SOCAL for the undifferentiated occurrence of five Mesoplodon species (M. carlhubbsi, M. ginkgodens, M. perrini, M. peruvianus, M.
  stejnegeri but does not include Blainville's beaked whale listed separately above.
* These mortalities are considered in Table 18 as an unspecified ``any small odontocete and pinniped species.''
\4\ No more than 1,166 of Hawaii Island stock, 887 of Kauai/Niihau stock, and 524 of Oahu/4-Islands stock may be taken during training activities.

    Testing Activities--Table 19 summarizes the Navy's take request and 
NMFS' authorization for testing activities and Table 20 specifies the 
Navy's take request and NMFS authorization for testing activities by 
species from the modeling estimates.

          Table 19--Summary of Annual and 5-Year Takes Requested and Authorized for Testing Activities
----------------------------------------------------------------------------------------------------------------
                                                                             Testing activities
                                                          ------------------------------------------------------
           MMPA category                    Source            Annual authorization        5-Year authorization
                                                                     sought                      sought
----------------------------------------------------------------------------------------------------------------
Injury or Mortality...............  Impulse..............  19 mortalities applicable   95 mortalities applicable
                                                            to any small odontocete     to any small odontocete
                                                            (i.e., dolphin) or          (i.e., dolphin) or
                                                            pinniped species \1\.       pinniped species over
                                                                                        five years.\2\
                                    Vessel strike........  No more than 2 large whale  No more than 3 large
                                                            injuries or mortalities     whale injuries or
                                                            in any given year \3\.      mortalities over five
                                                                                        years.\3\
Level A...........................  Impulse and Non-       145--Species specific data  725--Species specific
                                     Impulse.               shown in Table 21.          data shown in Table 21.
Level B...........................  Impulse and Non-       238,886--Species specific   1,194,430--Species
                                     Impulse.               data shown in Table 20      specific data shown in
                                                            \4\.                        Table 20.\4\
----------------------------------------------------------------------------------------------------------------
\1\ No more than four of any one of the following stocks/species: Hawaii Stock Complex of bottlenose dolphins,
  Fraser's dolphin, Pantropical spotted dolphin, Hawaiian stock of Risso's dolphin, rough-toothed dolphin,
  spinner dolphin, Hawaiian stock of striped dolphin. No more than 13 of any of the following stocks/species: CA/
  OR/WA offshore stock of bottlenose dolphin, Dall's porpoise, long-beaked common dolphin, northern right whale
  dolphin, Pacific white-sided dolphin, CA/OR/WA stock of Risso's dolphin, CA/OR/WA stock of short-beaked common
  dolphin, CA/OR/WA stock of striped dolphin, California sea lion, northern fur seal, harbor seal, and northern
  elephant seal.
\2\ This authorization by mortality does not include Hawaiian monk seals or Guadalupe fur seals.
\3\ Navy cannot quantifiably predict that the proposed takes from testing (a total of two in a given year or
  over the course of 5-years) will be of any particular species, and therefore seeks take authorization for any
  combination of large whale species (gray whale, fin whale, blue whale, humpback whale, Bryde's whale, sei
  whale, minke whale, or sperm whale), but of the two takes in any given year, no more than one of each species
  of blue whale, fin whale, Western North Pacific gray whale, humpback whale, sei whale, or sperm whale is
  requested.
\4\ Following publication of the proposed rule, the Navy identified an addition error in non-impulsive source
  takes for testing activities. The error resulted in too few Level B harassment takes of central North Pacific
  humpback whales. Table 20 and the regulatory text of this document have been revised accordingly (six takes
  added annually, 30 over the 5-year period).


     Table 20--Species-Specific Takes Requested and Authorized From Modeling Estimates of Impulsive and Non-Impulsive Source Effects for All Testing
                                                                       Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Annually                        Total over 5-year rule
                  Species                                Stock             -----------------------------------------------------------------------------
                                                                              Level B      Level A     Mortality     Level B      Level A     Mortality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................................  Eastern North Pacific........          413            0            0        2,065            0            0
                                             Central North Pacific........           15            0            0           75            0            0
Fin whale..................................  California, Oregon, &                  202            0            0        1,010            0            0
                                              Washington.
                                             Hawaiian.....................           23            0            0          115            0            0
Humpback whale.............................  California, Oregon, &                  101            0            0          505            0            0
                                              Washington.

[[Page 78145]]

 
                                             Central North Pacific........          826            0            0        4,130            0            0
Sei whale..................................  Eastern North Pacific........           21            0            0          105            0            0
                                             Hawaiian.....................           30            0            0          150            0            0
Sperm whale................................  California, Oregon, &                  146            0            0          730            0            0
                                              Washington.
                                             Hawaiian.....................          117            0            0          585            0            0
Guadalupe fur seal.........................  Mexico.......................          269            0            0        1,345            0            0
Hawaiian monk seal.........................  Hawaiian.....................          358            0            0        1,790            0            0
Bryde's whale..............................  Eastern Tropical Pacific.....            5            0            0           25            0            0
                                             Hawaiian.....................           13            0            0           65            0            0
Gray whale.................................  Eastern North Pacific........        2,570            1            0       12,850            5            0
                                             Western North Pacific........            2            0            0           10            0            0
Minke whale................................  California, Oregon, &                   49            0            0          245            0            0
                                              Washington.
                                             Hawaiian.....................           30            0            0          150            0            0
Baird's beaked whale.......................  California, Oregon, &                1,045            0            0        5,225            0            0
                                              Washington.
Blainville's beaked whale..................  Hawaiian.....................          960            0            0        4,800            0            0
Bottlenose dolphin.........................  California coastal...........          769            0            0        3,845            0            0
                                             California, Oregon &                 2,407            0            0       12,035            0            0
                                              Washington offshore.
                                             Hawaii pelagic...............          257            0            0        1,286            0            0
                                             Oahu.........................           48            0            0          238            0            0
                                             4-islands region.............           12            0            0           61            0            0
                                             Kauai and Niihau.............           12            0            0           59            0            0
                                             Hawaii Island................            8            0            0           41            0            0
Cuvier's beaked whale......................  California, Oregon, &                2,319            0            0       11,595            0            0
                                              Washington.
                                             Hawaiian.....................        4,549            0            0       22,745            0            0
Dwarf sperm whale..........................  Hawaiian.....................        2,376           28            0       11,880          140            0
Dall's porpoise............................  California, Oregon, &                5,215           32            0       26,075          160            0
                                              Washington.
False killer whale.........................  Hawaii Insular...............            4            0            0           20            0            0
                                             Hawaii Pelagic...............           37            0            0          185            0            0
False killer whale.........................  Northwest Hawaiian Islands...           14            0            0           70            0            0
Fraser's dolphin...........................  Hawaiian.....................           45            0            0          225            0            0
Killer whale...............................  Eastern North Pacific                   53            0            0          265            0            0
                                              offshore/transient.
                                             Hawaiian.....................           14            0            0           70            0            0
Kogia spp..................................  California...................        1,232            6            0        6,160           30            0
Long-beaked common dolphin.................  California...................       47,851            2            0      239,255           10            0
Longman's beaked whale.....................  Hawaiian.....................          436            0            0        2,180            0            0
Melon-headed whale.........................  Hawaiian.....................          124            0            0          620            0            0
Mesoplodon beaked whales \1\...............  California, Oregon, &                  345            0            0        1,725            0            0
                                              Washington.
Northern right whale dolphin...............  California, Oregon, &                5,729            1            0       28,645            5            0
                                              Washington.
Pacific white-sided dolphin................  California, Oregon, &                4,924            1            0       24,620            5            0
                                              Washington.
Pantropical spotted dolphin................  Hawaiian.....................          685            2            0        3,425           10            0
Pygmy killer whale.........................  Hawaiian.....................           61            0            0          305            0            0
Pygmy sperm whale..........................  Hawaiian.....................          117            1            0          585            5            0
Risso's dolphin............................  California, Oregon, &                8,739            1            0       43,695            5            0
                                              Washington.
                                             Hawaiian.....................          113            0            0          565            0            0
Rough-toothed dolphin......................  Hawaiian.....................          410            0            0        2,050            0            0
Short-beaked common dolphin................  California, Oregon, &              122,748           40         * 13      613,740          200         * 65
                                              Washington.
Short-finned pilot whale...................  California, Oregon, &                   79            0            0          395            0            0
                                              Washington.
                                             Hawaiian.....................          797            0            0        3,985            0            0
Spinner dolphin \2\........................  Hawaii Stock Complex.........          167            1            0          835            5            0
Striped dolphin............................  California, Oregon, &                  998            0            0        4,990            0            0
                                              Washington.
                                             Hawaiian.....................          269            1            0        1,345            5            0
California sea lion........................  U.S. Stock...................       13,038           17          * 6       65,190           85         * 30

[[Page 78146]]

 
Northern fur seal..........................  San Miguel Island............        1,088            3            0        5,440           15            0
Harbor seal................................  California...................          892            3            0        4,460           15            0
Northern elephant seal.....................  California Breeding..........        2,712            5            0       13,560           25            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Mesoplodon spp. in SOCAL for the undifferentiated occurrence of five Mesoplodon species (M. carlhubbsi, M. ginkgodens, M. perrini, M. peruvianus, M.
  stejnegeri) but does not include Blainville's beaked whale listed separately above.
\2\ No more than 76 of Hawaii Island stock, 57 of Kauai/Niihau stock, and 34 of Oahu/4-Islands stock may be taken during testing activities.
* These mortalities are considered in Table 19 as an unspecified ``any small odontocete (i.e., dolphin) and pinniped species.''

    Of note, in the regulatory text, NMFS quantifies take by presenting 
the 5-year totals for each species for harassment (combined Level A and 
Level B for training and testing) and for mortality (training and 
testing combined). The specific types of harassment expected annually, 
and whether they will occur during training or testing, will continue 
to be specified in the LOAs as described in the preamble. This less 
specific language in the regulations will provide potential flexibility 
in the event that a change in activities or our analysis of impacts 
results in changes in the anticipated types, numbers, or distribution 
of take. If such a change were to occur, NMFS would conduct an analysis 
to determine whether the changes fall within the scope of impacts 
contemplated by the rule and also whether they still result in a 
negligible impact. If the changes are expected to result in impacts 
that fall within the scope of the rule and if we still anticipate a 
negligible impact to result, NMFS would propose the issuance of a 
revised LOA and publish a Federal Register notice announcing our 
findings and requesting public comments. If not, the changes would need 
to be addressed through a new or amended rulemaking.

 Marine Mammal Habitat

    The Navy's training and testing activities could potentially affect 
marine mammal habitat through the introduction of sound into the water 
column, impacts to the prey species of marine mammals, bottom 
disturbance, or changes in water quality. Each of these components was 
considered in the HSTT FEIS/OEIS. Based on the information in the 
Marine Mammal Habitat section of the proposed rule (78 FR 6978, January 
31, 2013; pages 7030-7033) and the supporting information included in 
the HSTT FEIS/OEIS, NMFS has determined that training and testing 
activities would not have adverse or long-term impacts on marine mammal 
habitat. Important marine mammal habitat areas are also addressed in 
the Comments and Responses section and the Cetacean and Sound Mapping 
section of this document. In summary, expected effects to marine mammal 
habitat will include elevated levels of anthropogenic sound in the 
water column; short-term physical alteration of the water column or 
bottom topography; brief disturbances to marine invertebrates; 
localized and infrequent disturbance to fish; a limited number of fish 
mortalities; and temporary marine mammal avoidance.

Analysis and Negligible Impact Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the 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. For example, New et 
al. (2013) developed a model to assess the link between feeding 
energetics of beaked whales (family Ziphiidae) and their requirements 
for survival and reproduction.
    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.
    The Navy's specified activities have been described based on best 
estimates of the maximum amount of sonar and other acoustic source use 
or detonations that the Navy will conduct. There may be some 
flexibility in that the exact number of hours, items, or detonations 
may vary from year to year, but take totals are not authorized to 
exceed the 5-year totals indicated in Tables 19 and 21. Furthermore the 
Navy's take request is based on their model and post-model analysis. 
The requested number of Level B takes does not equate to the number of 
individual animals the Navy expects to harass (which is lower), but 
rather to the instances of take (i.e., exposures above the Level B 
harassment threshold) that will occur. Depending on the location, 
duration, and frequency of activities, along with the distribution and 
movement of marine mammals, individual animals may be exposed multiple 
times to impulse or non-impulse sounds at or above the Level B 
harassment threshold. However, the Navy is currently unable to estimate 
the number of individuals that may be taken during training and testing 
activities. The model results estimate the total number of takes that 
may occur to a smaller number of individuals. While the model shows 
that an increased number of exposures may take place (compared to the 
2009 rulemakings for HRC and the SOCAL Range Complex), the types and 
severity of individual responses to training and testing activities are 
not expected to change.

[[Page 78147]]

    Taking the above into account, considering the Analysis and 
Negligible Impact Determination section of the proposed rule (78 FR 
6978, January 13, 2013; pages 7033-7040), and dependent upon the 
implementation of mitigation measures, NMFS has determined that the 
Navy's training and testing activities will have a negligible impact on 
the marine mammal species and stocks present in the Study Area.

Species-Specific Analysis

    In the discussions below, the ``acoustic analysis'' refers to the 
Navy's model results and post-model analysis. Using the best available 
information, including marine mammal density estimates, marine mammal 
depth occurrence distributions, oceanographic and environmental data, 
marine mammal hearing data, and criteria and thresholds for levels of 
potential effects, and in coordination with NMFS, the Navy performed a 
quantitative analysis to estimate the number of marine mammals that 
could be harassed by acoustic sources or explosives used during Navy 
training and testing activities. Marine mammal densities used in the 
model may overestimate actual densities when species data is limited 
and for species with seasonal migrations (e.g., humpbacks, blue whales, 
Hawaiian stock of fin whales, sei whales, gray whales). The 
quantitative analysis consists of computer modeled estimates and a 
post-model analysis to determine the number of potential mortalities 
and harassments. The model calculates sound energy propagation from 
sonars, other active acoustic sources, and explosives during naval 
activities; the sound or impulse received by animat dosimeters 
representing marine mammals distributed in the area around the modeled 
activity; and whether the sound or impulse received by a marine mammal 
exceeds the thresholds for effects. It is important to note that the 
Navy's take estimates represent the total number of takes and not the 
number of individuals taken, as a single individual may be taken 
multiple times over the course of a year.
    Although this more complex computer modeling approach accounts for 
various environmental factors affecting acoustic propagation, the 
current software tools do not consider the likelihood that a marine 
mammal would attempt to avoid repeated exposures to a sound or avoid an 
area of intense activity where a training or testing event may be 
focused. Additionally, the software tools do not consider the 
implementation of mitigation (e.g., stopping sonar transmissions when a 
marine mammal is within a certain distance of a ship or range clearance 
prior to detonations). In both of these situations, naval activities 
are modeled as though an activity would occur regardless of proximity 
to marine mammals and without any horizontal movement by the animal 
away from the sound source or human activities (e.g., without 
accounting for likely animal avoidance). The initial model results 
overestimate the number of takes (as described previously). The final 
step of the quantitative analysis of acoustic effects is to consider 
the implementation of mitigation and the possibility that marine 
mammals would avoid continued or repeated sound exposures. Mitigation 
and marine mammal avoidance primarily reduce impacts by reducing Level 
A harassment to Level B harassment. NMFS provided input to the Navy on 
this process and the Navy's qualitative analysis is described in detail 
in section 6.3 of their LOA application (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications). A detailed explanation of this 
analysis is also provided in the technical report Analysis of Animal 
Avoidance Behavior and Mitigation Effectiveness Technical Report 
(http://hstteis.com/DocumentsandReferences/HSTTDocuments/SupportingTechnicalDocuments.aspx).
    Mysticetes--The Navy's acoustic analysis indicates that numerous 
exposures of mysticete species to sound levels likely to result in 
Level B harassment may occur, mostly from sonar and other active 
acoustic stressors associated with mostly training and some testing 
activities in the HSTT Study Area. Of these species, humpback, blue, 
Western North Pacific gray, fin, and sei whales are listed as 
endangered under the ESA. Level B takes are anticipated to be in the 
form of behavioral harassment and no injurious takes of humpback, blue, 
Western North Pacific gray, fin, or sei whales from sonar, or other 
active acoustic stressors are expected. The majority of acoustic 
effects to mysticetes from sonar and other active sound sources during 
training activities would be primarily from anti-submarine warfare 
events involving surface ships and hull-mounted mid-frequency active 
sonar. Most Level B harassments to mysticetes from sonar would result 
from received levels between 144 and 162 SPL. High-frequency systems 
are not within mysticetes' ideal hearing range and it is unlikely that 
they would cause a significant behavioral reaction. The only mysticete 
species that may be exposed to sound or energy from explosions 
resulting in the possibility of PTS is the Eastern North Pacific stock 
of gray whale. Exposures would occur in the SOCAL Range Complex during 
the cool season. However, nearly all of the Navy's proposed mitigation 
zones for explosive activities extend beyond the predicted maximum 
range to PTS. The only exception is in the case of 61-100 lb (27.7-45.4 
kg; E8) net explosive weight charges for mine countermeasure and 
neutralization activities using positive control; the mitigation zone 
for these activities extend to the predicted maximum range to PTS. The 
implementation of mitigation and the sightability of mysticetes (due to 
their large size) reduce the potential for a significant behavioral 
reaction or a threshold shift to occur. Furthermore, gray whales in 
particular should be easier to sight because they will be migrating 
through the HSTT Study Area and there is often more than one whale in 
an area at the same time.
    In addition to Level B takes, the Navy is requesting no more than 
12 large whale injuries or mortalities over 5 years (no more than four 
large whale mortalities in a given year) due to vessel strike during 
training activities and no more than three large whale injuries or 
mortalities over 5 years (no more than two large whale injuries or 
mortalities in any given year) due to vessel strike during testing 
activities. However, no more than three injuries or mortalities of any 
of the following species would be authorized to occur in a given year 
between both training and testing activities (two injuries or 
mortalities from training and one injury or mortality from testing): 
blue whale, fin whale, humpback whale, sei whale, and sperm whale. The 
Navy provided a detailed analysis of strike data in section 6.3.4 of 
their LOA application. Marine mammal mortalities were not previously 
authorized by NMFS in the 2009 rulemakings for HRC and the SOCAL Range 
Complex. However, over a period of 20 years (1991 to 2010), there have 
been 16 Navy vessel strikes in the SOCAL Range Complex and five Navy 
vessel strikes in HRC. No single 5-year period exceeded ten whales 
struck within SOCAL and HRC. The number of injuries or mortalities from 
vessel strike is not expected to be an increase over the past decade, 
but rather NMFS is authorizing these takes for the first time.
    Areas of high humpback whale density in the HRC were discussed 
earlier in this document. Since humpback whales migrate to the north in 
the summer, impacts are predicted only for the cool season in the HSTT 
Study Area. While the humpback

[[Page 78148]]

breeding areas around Hawaii are important, NMFS has determined that 
mid-frequency active sonar training in these areas is rare and 
infrequent during the cool season and any resulting impacts to 
individuals are not expected to affect annual rates of recruitment or 
survival. As discussed in the Mitigation section of this document, the 
Navy has agreed that training exercises utilizing mid-frequency active 
sonar in the designated Humpback Whale Cautionary Area from December 15 
to April 15 would require a much higher level of approval than is 
normal practice in planning and conducting mid-frequency active sonar 
training. To date, the Navy has never requested approval to conduct 
training or testing use of mid-frequency active sonar in the area 
during this time period. Furthermore, no reported cases of harmful 
effects to humpback whales attributed to mid-frequency active sonar use 
have occurred during the Navy's 40-plus years of training in the waters 
off the Hawaiian Islands and Coincident with this use of mid-frequency 
active sonar, abundance estimates reflect an annual increase in the 
humpback whale stock (Mobley 2001a, 2004). A recent long-term study of 
humpback whales in Hawaiian waters shows long-term fidelity to the 
Hawaiian winter grounds, with many showing sighting spans ranging from 
10 to 32 years (Herman et al., 2011). The overall abundance of humpback 
whales in the north Pacific has continued to increase and is now 
greater than some pre-whaling abundance estimates (Barlow et al., 
2011). The California, Oregon, Washington stock of humpback whales uses 
the waters within the Southern California portion of the HSTT Study 
Area as a summer feeding ground.
    There are also important feeding areas for fin and blue whales that 
overlap with the SOCAL Range Complex, adjacent to and in the vicinity 
of the Navy's only west coast underwater instrumented training range. 
However, the Navy has stated that given the closeness to shore, 
relatively shallow water, and lack of other nearby training 
infrastructure, major training events are not typically planned in this 
vicinity. The implementation of mitigation and sightability of these 
large whales is expected to reduce the potential for harassment.
    Sperm Whales--The Navy's acoustic analysis indicates that 3,595 
annual exposures of sperm whales to sound levels likely to result in 
Level B harassment may occur in the HSTT Study Area from sonar or other 
active acoustic stressors during training and testing activities. No 
modeled effects are expected from explosives. Level B takes are 
anticipated to be in the form of behavioral harassment and no injurious 
takes of sperm whales from sonar, other active acoustic stressors, or 
explosives are requested or proposed for authorization. Sperm whales 
have shown resilience to acoustic and human disturbance, although they 
may react to sound sources and activities within a few kilometers. 
Sperm whales that are exposed to activities that involve the use of 
sonar and other active acoustic sources may alert, ignore the stimulus, 
avoid the area by swimming away or diving, or display aggressive 
behavior. Some (but not all) sperm whale vocalizations might overlap 
with the frequency range for the onset of TTS from active sonar, which 
could temporarily decrease an animal's sensitivity to the calls of 
conspecifics or returning echolocation signals. However, as noted 
previously, NMFS does not anticipate TTS of a long duration or severe 
degree to occur as a result of exposure to MFAS/HFAS. The majority of 
Level B takes are expected to be in the form of mild responses. There 
are no modeled effects expected on sperm whales from explosives. No 
areas of specific importance for reproduction or feeding for sperm 
whales have been identified in the HSTT Study Area.
    Pygmy and Dwarf Sperm Whales--The Navy's acoustic analysis 
indicates that 25,081 exposures of pygmy and dwarf sperm whales to 
sound levels likely to result in Level B harassment may occur from 
sonar and other active acoustic stressors and explosives associated 
with training and testing activities in the HRC. In SOCAL, the two 
Kogia species are managed as a single stock and management unit and up 
to 14,175 exposures to sound levels likely to result in Level B 
harassment may occur from sonar and other active acoustic stressors and 
explosives associated with training and testing activities. The Navy's 
acoustic analysis also indicates that 74 exposures of dwarf sperm whale 
and one exposure of pygmy sperm whale to sound levels likely to result 
in Level A harassment may occur from active acoustic stressors and 
explosions in HRC and 39 exposures of Kogia to sound levels likely to 
result in Level A harassment may occur from active acoustic stressors 
or explosions in SOCAL. Behavioral responses can range from a mild 
orienting response, or a shifting of attention, to flight and panic. 
These species tend to avoid human activity and presumably anthropogenic 
sounds. Pygmy and dwarf sperm whales may startle and leave the 
immediate area of activity, reducing the potential impacts. Significant 
behavioral reactions seem more likely than with most other odontocetes; 
however, it is unlikely that animals would receive multiple exposures 
over a short period of time, allowing animals to recover lost resources 
(e.g., food) or opportunities (e.g., mating). Therefore, long-term 
consequences for individual Kogia or their respective populations are 
not expected. Furthermore, many explosions actually occur upon impact 
with above-water targets. However, sources such as these were modeled 
as exploding at 1 meter depth, which overestimates the potential 
effects.
    Data from several sources, which are summarized and cited on NOAA's 
Cetacean and Sound Mapping Web site (cetsound.noaa.gov) indicate that 
there are likely resident populations of dwarf sperm whales (among 
other species) off the western side of the Big Island of Hawaii. As 
discussed earlier, we highlight the potential presence of resident 
populations in the interest of helping to support decisions that ensure 
that these small populations, limited to a small area of preferred 
habitat, are not exposed to concentrations of activities within their 
ranges that have the potential to impact a large portion of the stock/
species over longer amounts of time that could have detrimental 
consequences to the stock/species. However, NMFS has reviewed the 
Navy's exercise reports and considered/discussed their historical level 
of activity in the area where these resident populations are 
concentrated, which is very low, and concluded that time/area 
restrictions would not afford much reduction of impacts in this 
location and are not necessary at this point. If future monitoring and 
exercise and testing reports suggest that increased operations are 
overlapping more significantly with these resident populations, NMFS 
would revisit the consideration of temporal limitations around these 
populations through the adaptive management process.
    Dall's Porpoise--The Navy's acoustic analysis indicates that 42,106 
exposures of Dall's porpoise to sound levels likely to result in Level 
B harassment may occur from sonar and other active acoustic stressors 
and explosives associated with training and testing activities in the 
SOCAL Range Complex. The analysis also indicates that 79 exposures to 
sound levels likely to result in Level A harassment may occur from 
sonar and other active acoustic stressors.
    Predicted impacts to odontocetes from activities from sonar and 
other active

[[Page 78149]]

acoustic sources are mostly from anti-submarine warfare events 
involving surface ships and hull mounted sonar. For high-frequency 
cetaceans, such as Dall's porpoise, ranges to TTS for multiple pings 
can, under certain conditions, reach over 10 km from a source. 
Activities involving ASW training often involve multiple participants 
and activities associated with the event. Dall's porpoise may avoid the 
area for the duration of the event and then return, allowing the animal 
to recover from any energy expenditure or missed resources. However, 
the Navy's proposed mitigation has a provision that allows the Navy to 
continue operation of mid-frequency active sonar if the animals are 
clearly bow-riding even after the Navy has initially maneuvered to try 
and avoid closing with the animals. Since these animals sometimes bow-
ride, they could potentially be exposed to levels associated with TTS. 
Some dolphin vocalizations might overlap with the frequency range for 
the onset of TTS from active sonar (2-20 kHz), which could potentially 
temporarily decrease an animal's sensitivity to the calls of 
conspecifics or returning echolocation signals. However, for the 
reasons described in the beginning of this section, NMFS does not 
anticipate TTS of a long duration or severe degree to occur as a result 
of exposure to MFA/HFAS.
    Ranges to PTS are on average about 855 meters from the largest 
explosive (Bin E12) for a high-frequency cetacean such as Dall's 
porpoise, which is less than the proposed mitigation zone for most 
explosive source bins. The metrics used to estimate PTS from explosives 
are based on the animal's mass; the smaller an animal, the more 
susceptible that individual is to these effects. In the Navy's 
analysis, all individuals of a given species were assigned the weight 
of that species' newborn calf. Since many individual Dall's porpoise 
are obviously larger than a newborn calf, this assumption causes the 
acoustic model to overestimate the potential effects. Threshold shifts 
do not necessarily affect all hearing frequencies equally, so some 
threshold shifts may not interfere with an animal hearing biologically 
relevant sound. Odontocetes, such as Dall's porpoise, may further 
minimize sound exposure during avoidance due to directional hearing. No 
areas of specific importance for reproduction or feeding for Dall's 
porpoise have been identified in the HSTT Study Area.
    Beaked Whales--The Navy's acoustic analysis indicates that numerous 
exposures of beaked whale species to sound levels likely to result in 
Level B harassment may occur from sonar and other active acoustic 
stressors associated with training and testing activities. Research and 
observations show that if beaked whales are exposed to sonar or other 
active acoustic sources they may startle, break off feeding dives, and 
avoid the area of the sound source to levels of 157 dB (McCarthy et 
al., 2011). Furthermore, in research done at the Navy's instrumented 
tracking range in the Bahamas, animals leave the immediate area of the 
anti-submarine warfare training exercise, but return within a few days 
after the event ends. At the Bahamas range and at Navy instrumented 
ranges in the HSTT Study Area that have been operating for decades (in 
Hawaii north of Kauai and in SOCAL west of San Clemente Island), 
populations of beaked whales appear to be stable. The analysis also 
indicates that no exposures to sound levels likely to result in Level A 
harassment would occur. However, while the Navy's model did not 
quantitatively predict any mortalities of beaked whales, the Navy is 
requesting a limited number of takes by mortality given the 
sensitivities these species may have to anthropogenic activities. 
Almost 40 years of conducting similar exercises in the HSTT Study Area 
without observed incident indicates that injury or mortality are not 
expected to occur as a result of Navy activities.
    As noted in the Comments and Responses section, a recent paper by 
Moore and Barlow (2013) reported a decline in beaked whale populations 
in a broad area of the Pacific Ocean. In summary, there is no data to 
suggest that beaked whale numbers have declined in the SOCAL Range 
Complex and as Moore and Barlow (2013) point out, it remains clear that 
the Navy range in Southern California continues to support high 
densities of beaked whales.
    Some beaked whale vocalizations might overlap with the frequency 
range for the onset of TTS from active sonar (2-20 kHz), which could 
potentially temporarily decrease an animal's sensitivity to the calls 
of conspecifics or returning echolocation signals. However, NMFS does 
not anticipate TTS of a long duration or severe degree to occur as a 
result of exposure to active sonar. No beaked whales are predicted to 
be exposed to active sonar sound levels associated with PTS or injury. 
No areas of specific importance for reproduction or feeding for beaked 
whales have been identified in the HSTT Study Area.
    As discussed previously, scientific uncertainty exists regarding 
the potential contributing causes of beaked whale strandings and the 
exact behavioral or physiological mechanisms that can potentially lead 
to the ultimate physical effects (stranding and/or death) that have 
been documented in a few cases. Although NMFS does not expect injury or 
mortality of any of these species to occur as a result of the active 
sonar training exercises, there remains the potential for the operation 
of mid-frequency active sonar to contribute to the mortality of beaked 
whales. Consequently, NMFS intends to authorize mortality and we 
consider the 10 potential mortalities from across the seven species 
potentially effected over the course of 5 years in our negligible 
impact determination (NMFS only intends to authorize a total of 10 
beaked whale mortality takes, but since they could be of any of the 
species, we consider the effects of 10 mortalities of any of the seven 
species).
    False Killer Whale--The Navy's acoustic analysis indicates that 761 
exposures of false killer whales (53 exposures to the Main Hawaiian 
Islands insular stock) to sound levels likely to result in Level B 
harassment may occur from sonar or other active acoustic stressors 
associated with training and testing activities in the HRC. False 
killer whales are not expected to be present within the SOCAL Range 
Complex. These takes are anticipated to be in the form of behavioral 
harassment and no injurious takes of false killer whales from active 
acoustic stressors or explosives are requested or proposed for 
authorization. Behavioral responses can range from a mild orienting 
response, or a shifting of attention, to flight and panic.
    No areas of specific importance for reproduction or feeding for 
false killer whales have been identified in the HSTT Study Area.
    Short-beaked Common Dolphin--The Navy's acoustic analysis indicates 
that 1,122,030 exposures of short-beaked common dolphins to sound 
levels likely to result in Level B harassment may occur from sonar and 
other active acoustic stressors associated with training and testing 
activities and sound or energy from explosions. Analysis also indicates 
that 110 exposures to sound levels likely to result in Level A 
harassment may occur from active acoustic stressors and sound or energy 
from explosions. Up to 17 short-beaked common dolphin mortalities are 
also requested as part of an unspecified ``any small odontocete (i.e., 
dolphin) and pinniped species'' take from training and testing 
activities. However, this species generally travels in large pods and 
should be visible from a distance in

[[Page 78150]]

order to implement mitigation measures and reduce potential impacts. 
Short-beaked common dolphins are one of the most abundant dolphin 
species in SOCAL. Behavioral responses can range from alerting, to 
changing their behavior or vocalizations, to avoiding the sound source 
by swimming away or diving. The high take numbers are due in part to an 
increase in expended materials.
    No areas of specific importance for reproduction or feeding for 
short-beaked common dolphins have been identified in the HSTT Study 
Area.
    California Sea Lion--The Navy's acoustic analysis indicates that 
139,999 exposures of California sea lions to sound levels likely to 
result in Level B harassment may occur from sonar and other active 
acoustic stressors associated with training and testing activities and 
sound or energy from explosions. Analysis also indicates that 42 
exposures to sound levels likely to result in Level A harassment may 
occur from active acoustic stressors and sound or energy from 
explosions. Up to 17 California sea lion mortalities are also requested 
as part of an unspecified ``any small odontocete (i.e., dolphin) and 
pinniped species'' take from training and testing activities. 
California sea lions are the most abundant pinniped species along the 
California coast. Research and observations show that pinnipeds in the 
water are tolerant of anthropogenic noise and activity. California sea 
lions may not react at all until the sound source is approaching within 
a few hundred meters and then may alert, ignore the stimulus, change 
their behavior, or avoid the immediate area by swimming away or diving. 
Significant behavioral reactions are not expected, based on previous 
observations. The high take numbers are due in part to the explosive 
criteria being based on newborn calf weights. Assuming that the 
majority of the population is larger than a newborn calf, the model 
overestimates the effects to California sea lions. The criteria for 
slight lung injury are also very conservative and may over-predict the 
effects. Research and observations show that pinnipeds in the water are 
tolerant of anthropogenic noise and activity. They may react in a 
number of ways depending on their experience with the sound source and 
what activity they are engaged in at the time of the exposure.
    Northern Fur Seal--The Navy's acoustic analysis indicates that 
21,171 exposures of northern fur seals to sound levels likely to result 
in Level B harassment may occur from sonar and other active acoustic 
stressors associated with training and testing activities in the SOCAL 
Range Complex and sound or energy from explosions. Analysis also 
indicates that eight exposures to sound levels likely to result in 
Level A harassment may occur from active acoustic stressors and sound 
or energy from explosions. Northern fur seals are common in SOCAL. 
Behavioral responses can range from a mild orienting response, or a 
shifting of attention, to flight and panic. Research and observations 
show that pinnipeds in the water are tolerant of anthropogenic noise 
and activity. They may react in a number of ways depending on their 
experience with the sound source and what activity they are engaged in 
at the time of the exposure.
    A small population breeds on San Miguel Island, outside of the 
SOCAL Range Complex.
    Northern Elephant Seal--The Navy's acoustic analysis indicates that 
25,228 exposures of northern elephant seals to sound levels likely to 
result in Level B harassment may occur from sonar and other active 
acoustic stressors associated with training and testing activities in 
the SOCAL Range Complex and sound or energy from explosions. Analysis 
also indicates that 27 exposures to sound levels likely to result in 
Level A harassment may occur from active acoustic stressors and sound 
or energy from explosions. The majority of predicted effects would be 
from anti-submarine warfare events involving surface ships, submarines, 
and hull mounted sonar, while a small percentage of effects would be 
from mine countermeasure events. Northern elephant seals are common in 
SOCAL and the proposed take is less than 21 percent of the California 
breeding population. Behavioral responses can range from a mild 
orienting response, or a shifting of attention, to flight and panic. 
Research and observations show that pinnipeds in the water are tolerant 
of anthropogenic noise and activity. They may react in a number of ways 
depending on their experience with the sound source and what activity 
they are engaged in at the time of the exposure.
    Different age classes of northern elephant seals haul out on the 
Channel Islands within SOCAL and spend 8-10 months at sea each year.
    Hawaiian Monk Seal--The Navy's acoustic analysis indicates that 
1,650 exposures (not necessarily number of individuals) of Hawaiian 
monk seals (listed as endangered under the ESA) to sound levels likely 
to result in Level B harassment may occur from sonar or other active 
acoustic stressors associated with training and testing activities in 
HRC. No exposures to sound levels likely to result in Level A 
harassment are expected to occur and takes from injury or mortality are 
not requested or proposed for authorization. The majority of exposures 
from testing have ranges to TTS less than 55 yd (50 m). Behavioral 
effects are not expected to be significant because (1) significant 
behavioral effects are more likely at higher received levels within a 
few kilometers of the source, (2) Hawaiian monk seals may avoid the 
activity area; and (3) mitigation measures would be implemented. 
Hawaiian monk seals predominantly occur in the Northwestern Hawaiian 
Islands and the Papahanaumokuakea National Marine Monument, which is 
mostly outside of the main Hawaii Operating Area. Navy activity within 
the Northwest Hawaiian Islands and the Papahanaumokuakea National 
Marine Monument is rare. Ranges to TTS for hull mounted sonars can be 
on the order of several kilometers for monk seals, and some behavioral 
impacts could take place at distances exceeding 173 km, although 
significant behavioral effects are much more likely at higher received 
levels within a few kilometers of the sound source and therefore, the 
majority of behavioral effects are not expected to be significant. 
Activities involving sound or energy from sonar and other active 
acoustic sources would not occur on shore in designated Hawaiian monk 
seal critical habitat where haul out and resting behavior occurs and 
would have no effect on critical habitat at sea.

Final Determination

    Based on the analysis contained herein 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 and testing activities 
in the HSTT Study Area will have a negligible impact on the affected 
species or stocks. NMFS has issued regulations for these activities 
that prescribe the means of effecting the least practicable adverse 
impact on marine mammal species or stocks 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 and testing activities in the HSTT 
Study Area will not have an unmitigable adverse impact on the 
availability of the affected species or stocks for subsistence use, 
since there are no such uses in the specified area.

[[Page 78151]]

ESA

    There are nine marine mammal species under NMFS jurisdiction that 
are listed as endangered or threatened under the ESA with confirmed or 
possible occurrence in the Study Area: blue whale, humpback whale, 
Western North Pacific gray whale, fin whale, sei whale, sperm whale, 
the Main Hawaiian Islands insular false killer whale, Guadalupe fur 
seal, and Hawaiian monk seal. The Navy consulted with NMFS pursuant to 
section 7 of the ESA, and NMFS also consulted internally on the 
issuance of LOAs under section 101(a)(5)(A) of the MMPA for HSTT 
activities. NMFS issued a Biological Opinion concluding that the 
issuance of the rule and two LOAs are likely to adversely affect, but 
are not likely to jeopardize, the continued existence of the threatened 
and endangered species (and species proposed for listing) under NMFS' 
jurisdiction and are not likely to result in the destruction or adverse 
modification of critical habitat that has been designated for 
threatened and endangered species in the HSTT Study Area. The 
Biological Opinion for this action is available on NMFS' Web site 
(http://www.nmfs.noaa.gov/pr/permits/incidental.html#applications).

National Marine Sanctuaries Act (NMSA)

    Federal agency actions that are likely to injure sanctuary 
resources are subject to consultation with the Office of National 
Marine Sanctuaries (ONMFS) under section 304(d) of the National Marine 
Sanctuaries Act. The Navy analyzed potential impacts to sanctuary 
resources and has provided the analysis in the Navy's HSTT FEIS/OEIS to 
ONMS. Navy HSTT activities will occur within three sites in the 
National Marine Sanctuary System--the Papahanaumokuakea Marine National 
Monument and the Channel Islands and Hawaiian Islands Humpback Whale 
national marine sanctuaries. The Navy did not propose new, modified, or 
an increased frequency of activities in these areas. ONMS has therefore 
determined that consultation under the NMSA is not required for HSTT at 
this time.

National Environmental Policy Act (NEPA)

    NMFS participated as a cooperating agency on the HSTT FEIS/OEIS, 
which was published on August 30, 2013 and is available on the Navy's 
Web site: http://hstteis.com. NMFS determined that the HSTT FEIS/OEIS 
is adequate and appropriate to meet our responsibilities under NEPA for 
the issuance of regulations and LOAs. NMFS adopted the Navy's HSTT 
FEIS/OEIS, on December 5, 2013.

Classification

    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 has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
proposed rule, if adopted, would 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. The Navy is the sole entity 
that would be affected by this rulemaking, and the Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Any requirements imposed by an LOA issued pursuant 
to these regulations, and any monitoring or reporting requirements 
imposed by these regulations, would 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, if adopted, would directly affect the 
Navy and not a small entity, the Chief Counsel for Regulation concluded 
that the action would not result in a significant economic impact on a 
substantial number of small entities. No comments were received 
regarding the economic impact of this final rule. As a result, a final 
regulatory flexibility analysis was not prepared.
    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 the effective date of the 
measures contained in the final rule. The Navy is the only entity 
subject to the regulations and it has informed NMFS that it requests 
that this final rule take effect on the day of publication in the 
Federal Register. The existing regulations for the SOCAL and Hawaii 
Range Complexes expire starting in early January 2014. Any suspension 
or interruption of the Navy's ability to train or conduct testing, for 
even a small number of days, disrupts vital sequential training and 
certification processes essential to national security. Therefore, a 
waiver of the 30-day delay of the effective date of the final rule will 
allow the Navy to finalize operational procedures to ensure compliance 
with required mitigation, monitoring, and reporting requirements, and 
have MMPA authorization in place prior to expiration of the existing 
regulations to support unit level training and testing activities 
events scheduled for January 2014. Any delay of enacting the final rule 
would result in the Navy's procedural non-compliance with the MMPA 
(should the Navy conduct training or testing without an LOA), thereby 
resulting in the potential for unauthorized takes of marine mammals. 
Moreover, the Navy is ready to implement the rule immediately. For 
these reasons, the Assistant Administrator finds good cause to waive 
the 30-day delay in the effective date.

List of Subjects in 50 CFR Parts 216 and 218

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

    Dated: December 13, 2014.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For reasons set forth in the preamble, 50 CFR parts 216 and 218 are 
amended as follows:

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

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

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

Subpart P--[Removed and Reserved]

0
2. Remove and reserve, subpart P, consisting of Sec. Sec.  216.170 
through 216.179.

Subpart X--[Removed and Reserved]

0
3. Remove and reserve, subpart X, consisting of Sec. Sec.  216.270 
through 216.279.

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

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

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


[[Page 78152]]



0
5. Subpart H is added to part 218 to read as follows:
Subpart H--Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
Southern California Training and Testing (HSTT)
Sec.
218.70 Specified activity and specified geographical region.
218.71 Effective dates and definitions.
218.72 Permissible methods of taking.
218.73 Prohibitions.
218.74 Mitigation.
218.75 Requirements for monitoring and reporting.
218.76 Applications for Letters of Authorization.
218.77 Letters of Authorization.
218.78 Renewals and modifications of Letters of Authorization and 
Adaptive Management.

Subpart H--Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
Southern California Training and Testing (HSTT)


Sec.  218.70  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(b) of this section and that occurs incidental to the activities 
described in paragraph (c) of this section.
    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the HSTT Study Area, which is comprised of established 
operating and warning areas across the north-central Pacific Ocean, 
from Southern California west to Hawaii and the International Date Line 
(see Figure 1-1 in the Navy's application). The Study Area includes 
three existing range complexes: the Southern California (SOCAL) Range 
Complex, Hawaii Range Complex (HRC), and Silver Strand Training Complex 
(SSTC). In addition, the Study Area includes other areas where training 
and testing activities occur, including the pierside locations in San 
Diego Bay and Pearl Harbor, the transit corridor between SOCAL and 
Hawaii, and throughout the San Diego Bay.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) Non-impulsive Sources Used During Training:
    (i) Mid-frequency (MF) Source Classes:
    (A) MF1--an average of 11,588 hours per year.
    (B) MF1K--an average of 88 hours per year.
    (C) MF2--an average of 3,060 hours per year.
    (D) MF2K--an average of 34 hours per year.
    (E) MF3--an average of 2,336 hours per year.
    (F) MF4--an average of 888 hours per year.
    (G) MF5--an average of 13,718 items per year.
    (H) MF11--an average of 1,120 hours per year.
    (I) MF12--an average of 1,094 hours per year.
    (ii) High-frequency (HF) and Very High-frequency (VHF) Source 
Classes:
    (A) HF1--an average of 1,754 hours per year.
    (B) HF4--an average of 4,848 hours per year.
    (iii) Anti-Submarine Warfare (ASW) Source Classes:
    (A) ASW1--an average of 224 hours per year.
    (B) ASW2--an average of 1,800 items per year.
    (C) ASW3--an average of 16,561 hours per year.
    (D) ASW4--an average of 1,540 items per year.
    (iv) Torpedoes (TORP) Source Classes:
    (A) TORP1--an average of 170 items per year.
    (B) TORP2--an average of 400 items per year.
    (2) Non-impulsive Sources Used During Testing:
    (i) Low-frequency (LF) Source Classes:
    (A) LF4--an average of 52 hours per year.
    (B) LF5--an average of 2,160 hours per year.
    (C) LF6--an average of 192 hours per year.
    (ii) Mid-frequency (MF):
    (A) MF1--an average of 180 hours per year.
    (B) MF1K--an average of 18 hours per year.
    (C) MF2--an average of 84 hours per year.
    (D) MF3--an average of 392 hours per year.
    (E) MF4--an average of 693 hours per year.
    (F) MF5--an average of 5,024 items per year.
    (G) MF6--an average of 540 items per year.
    (H) MF8--an average of 2 hours per year.
    (I) MF9--an average of 3,039 hours per year.
    (J) MF10--an average of 35 hours per year.
    (K) MF12--an average of 336 hours per year.
    (iii) High-frequency (HF) and Very High-frequency (VHF):
    (A) HF1--an average of 1,025 hours per year.
    (B) HF3--an average of 273 hours per year.
    (C) HF4--an average of 1,336 hours per year.
    (D) HF5--an average of 1,094 hours per year.
    (E) HF6--an average of 3,460 hours per year.
    (iv) ASW:
    (A) ASW1--an average of 224 hours per year.
    (B) ASW2--an average of 2,260 items per year.
    (C) ASW2--an average of 255 hours per year.
    (D) ASW3--an average of 1,278 hours per year.
    (E) ASW4--an average of 477 items per year.
    (v) TORP:
    (A) TORP1--an average of 701 items per year.
    (B) TORP2--an average of 732 items per year.
    (vi) Acoustic Modems (M):
    (A) M3--an average of 4,995 hours per year.
    (B) [Reserved]
    (vii) Swimmer Detection Sonar (SD):
    (A) SD1--an average of 38 hours per year.
    (B) [Reserved]
    (viii) Airguns (AG):
    (A) AG--an average of 5 airgun uses per year.
    (B) [Reserved]
    (ix) Synthetic Aperture Sonar (SAS):
    (A) SAS1--an average of 2,700 hours per year.
    (B) SAS2--an average of 4,956 hours per year.
    (C) SAS3--an average of 3,360 hours per year.
    (3) Annual Number of Impulsive Source Detonations During Training:
    (i) Explosive Classes:
    (A) E1 (0.1 lb to 0.25 lb NEW)--an average of 19,840 detonations 
per year.
    (B) E2 (1.26 lb to 0.5 lb NEW)--an average of 1,044 detonations per 
year.
    (C) E3 (>0.5 lb to 2.5 lb NEW)--an average of 3,020 detonations per 
year.
    (D) E4 (>2.5 lb to 5 lb NEW)--an average of 668 detonations per 
year.
    (E) E5 (>5 lb to 10 lb NEW)--an average of 8,154 detonations per 
year.
    (F) E6 (>10 lb to 20 lb NEW)--an average of 538 detonations per 
year.
    (G) E7 (>20 lb to 60 lb NEW)--an average of 407 detonations per 
year.
    (H) E8 (>60 lb to 100 lb NEW)--an average of 64 detonations per 
year.
    (I) E9 (>100 lb to 250 lb NEW)--an average of 16 detonations per 
year.
    (J) E10 (>250 lb to 500 lb NEW)--an average of 19 detonations per 
year.
    (K) E11 (>500 lb to 650 lb NEW)--an average of 8 detonations per 
year.
    (L) E12 (>650 lb to 1,000 lb NEW)--an average of 224 detonations 
per year.
    (M) E13 (>1,000 lb to 1,740 lb NEW)--an average of 9 detonations 
per year.

[[Page 78153]]

    (ii) [Reserved]
    (4) Impulsive Source Detonations During Testing:
    (i) Explosive Classes:
    (A) E1 (0.1 lb to 0.25 lb NEW)--an average of 14,501 detonations 
per year.
    (B) E2 (0.26 lb to 0.5 lb NEW)--an average of 0 detonations per 
year.
    (C) E3 (>0.5 lb to 2.5 lb NEW)--an average of 2,990 detonations per 
year.
    (D) E4 (>2.5 lb to 5 lb NEW)--an average of 753 detonations per 
year.
    (E) E5 (>5 lb to 10 lb NEW)--an average of 202 detonations per 
year.
    (F) E6 (>10 lb to 20 lb NEW)--an average of 37 detonations per 
year.
    (G) E7 (>20 lb to 60 lb NEW)--an average of 21 detonations per 
year.
    (H) E8 (>60 lb to 100 lb NEW)--an average of 12 detonations per 
year.
    (I) E9 (>100 lb to 250 lb NEW)--an average of 0 detonations per 
year.
    (J) E10 (>250 lb to 500 lb NEW)--an average of 31 detonations per 
year.
    (K) E11 (>500 lb to 650 lb NEW)--an average of 14 detonations per 
year.
    (L) E12 (>650 lb to 1,000 lb NEW)--an average of 0 detonations per 
year.
    (M) E13 (>1,000 lb to 1,740 lb NEW)--an average of 0 detonations 
per year.
    (ii) Pile Driving: No more than four events per year.


Sec.  218.71  Effective dates and definitions.

    (a) The regulations in this subpart are effective December 24, 
2013, through December 24, 2018.
    (b) The following definitions are utilized in this subpart:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place within an OPAREA where a Major Training Event (MTE) occurs and 
involves any one of the following:
    (i) Two or more individuals of any cetacean species (not including 
mother/calf pairs), unless of species of concern listed in paragraph 
(b)(1)(ii) of this section found dead or live on shore within a 2-day 
period and occurring within 30 miles of one another.
    (ii) A single individual or mother/calf pair of any of the 
following marine mammals of concern: beaked whale of any species, Kogia 
spp., Risso's dolphin, melon-headed whale, pilot whale, humpback whale, 
sperm whale, blue whale, fin whale, sei whale, or monk seal.
    (iii) A group of two or more cetaceans of any species exhibiting 
indicators of distress.
    (2) Shutdown--The cessation of active sonar operation or detonation 
of explosives within 14 nautical miles of any live, in the water, 
animal involved in a USE.


Sec.  218.72  Permissible methods of taking.

    (a) Under Letters of Authorization (LOAs) issued pursuant to Sec.  
218.77, the Holder of the Letter of Authorization may incidentally, but 
not intentionally, take marine mammals within the area described in 
Sec.  218.70, provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  218.70(c) is limited to the following species, by 
the identified method of take:
    (1) Harassment (Level A and Level B) for all Training and Testing 
Activities:
    (i) Mysticetes:
    (A) Blue whale (Balaenoptera musculus)--23,699.
    (B) Bryde's whale (Balaenoptera edeni)--1,287.
    (C) Fin whale (Balaenoptera physalus)--9,656.
    (D) Gray whale (Eschrichtius robustus), Eastern North Pacific--
60,590.
    (E) Gray whale (Eschrichtius robustus), Western North Pacific--60.
    (F) Humpback whale (Megaptera novaeangliae)--51,000.
    (G) Minke whale (Balaenoptera acutorostrata)--4,425.
    (H) Sei whale (Balaenoptera borealis)--3,251.
    (ii) Odontocetes:
    (A) Baird's beaked whale (Berardius bairdii)--27,325.
    (B) Blainville's beaked whale (Mesoplodon densirostris)--52,972.
    (C) Bottlenose dolphin (Tursiops truncatus), California Coastal--
5,600.
    (D) Bottlenose dolphin (Tursiops truncatus), CA/OR/WA--145,125.
    (E) Bottlenose dolphin (Tursiops truncatus), Hawaii pelagic--
20,995.
    (F) Bottlenose dolphin (Tursiops truncatus), Oahu--3,879.
    (G) Bottlenose dolphin (Tursiops truncatus), 4-Islands region--999.
    (H) Bottlenose dolphin (Tursiops truncatus), Kauai and Niihau--960.
    (I) Bottlenose dolphin (Tursiops truncatus), Hawaii Island--666.
    (J) Cuvier's beaked whale (Ziphius cavirostris)--349,130.
    (K) Dwarf sperm whale (Kogia sima)--113,525.
    (L) Dall's porpoise (Phocoenoidea dalli)--210,925.
    (M) False killer whale (Pseudorca crassidens), Main Hawaiian 
Islands insular--240.
    (N) False killer whale (Pseudorca crassidens)--3,147.
    (O) Fraser's dolphin (Lagenodelphis hosei)--9,034.
    (P) Killer whale (Orcinus orca)--2,762.
    (Q) Kogia spp.--71,070.
    (R) Long-beaked common dolphin (Delphinus capensis)--604,715.
    (S) Longman's beaked whale (Indopacetus pacificus)--19,476.
    (T) Melon-headed whale (Peponocephala electra)--7,353.
    (U) Mesoplodon beaked whales--11,695.
    (V) Northern right whale dolphin (Lissodelphis borealis)--286,635.
    (W) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--
216,885.
    (X) Pantropical spotted dolphin (Stenella attenuata)--51,864.
    (Y) Pygmy killer whale (Feresa attenuata)--2,908.
    (Z) Pygmy sperm whale (Kogia breviceps)--1,683.
    (AA) Risso's dolphin (Grampus griseus)--481,677.
    (BB) Rough-toothed dolphin (Steno bredanensis)--24,815.
    (CC) Short-beaked common dolphin (Delphinus delphis)--5,610,700.
    (DD) Short-finned pilot whale (Globicephala macrorhynchus)--46,680.
    (EE) Sperm whale (Physeter macrocephalus)--17,235.
    (FF) Spinner dolphin (Stenella longirostris)--11,900.
    (GG) Striped dolphin (Stenella coerulealba)--39,487.
    (iii) Pinnipeds:
    (A) California sea lion (Zalophus californianus)--699,605.
    (B) Guadalupe fur seal (Arctocephalus townsendi)--14,360.
    (C) Harbor seal (Phoca vitulina)--34,025.
    (D) Hawaiian monk seal (Monachus schauinslandi)--8,124.
    (E) Northern elephant seal (Mirounga angustirostris)--126,275.
    (F) Northern fur seal (Callorhinus ursinus)--105,895.
    (3) Mortality (or lesser Level A injury) for all Training and 
Testing Activities:
    (i) No more than 130 mortalities applicable to any small odontocete 
(i.e., dolphin) or pinniped (with the exception of Hawaiian monk seal) 
species from an impulse source.
    (ii) No more than 10 beaked whale mortalities.
    (iii) No more than 15 large whale injuries or mortalities or 
serious injuries from vessel strike.


Sec.  218.73  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.72 and authorized 
by an LOA issued under Sec. Sec.  216.106 and 218.77 of this chapter, 
no person in connection with the activities described in Sec.  218.70 
may:
    (a) Take any marine mammal not specified in Sec.  218.72(c);

[[Page 78154]]

    (b) Take any marine mammal specified in Sec.  218.72(c) other than 
by incidental take as specified in Sec.  218.72(c);
    (c) Take a marine mammal specified in Sec.  218.72(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 an LOA issued under Sec. Sec.  
216.106 and 218.77.


Sec.  218.74  Mitigation.

    (a) When conducting training and testing activities, as identified 
in Sec.  218.70, the mitigation measures contained in the LOA issued 
under Sec. Sec.  216.106 and 218.77 of this chapter must be 
implemented. These mitigation measures include, but are not limited to:
    (1) Lookouts--The following are protective measures concerning the 
use of Lookouts.
    (i) Lookouts positioned on ships will be dedicated solely to 
diligent observation of the air and surface of the water. Their 
observation objectives will include, but are not limited to, detecting 
the presence of biological resources and recreational or fishing boats, 
observing mitigation zones, and monitoring for vessel and personnel 
safety concerns.
    (ii) Lookouts positioned in aircraft or on small boats will, to the 
maximum extent practicable and consistent with aircraft and boat safety 
and training and testing requirements, comply with the observation 
objectives described above in Sec.  218.74 (a)(1)(i).
    (iii) Lookout measures for non-impulsive sound:
    (A) With the exception of ships less than 65 ft (20 m) in length 
and ships which are minimally manned, ships using low-frequency or 
hull-mounted mid-frequency active sonar sources associated with anti-
submarine warfare and mine warfare activities at sea will have two 
Lookouts at the forward position of the ship. For the purposes of this 
rule, low-frequency active sonar does not include surveillance towed 
array sensor system low-frequency active sonar.
    (B) While using low-frequency or hull-mounted mid-frequency active 
sonar sources associated with anti-submarine warfare and mine warfare 
activities at sea, vessels less than 65 ft (20 m) in length and ships 
which are minimally manned will have one Lookout at the forward 
position of the vessel due to space and manning restrictions.
    (C) Ships conducting active sonar activities while moored or at 
anchor (including pierside testing or maintenance) will maintain one 
Lookout.
    (D) Surface ships or aircraft conducting high-frequency or non-
hull-mounted mid-frequency active sonar activities associated with 
anti-submarine warfare and mine warfare activities at sea will have one 
Lookout.
    (iv) Lookout measures for explosives and impulsive sound:
    (A) Aircraft conducting IEER sonobuoy activities will have one 
Lookout.
    (B) Explosive sonobuoys with 0.6 to 2.5 lb net explosive weight 
will have one Lookout.
    (C) Surface vessels conducting anti-swimmer grenade activities will 
have one Lookout.
    (D) During general mine countermeasure and neutralization 
activities using up to a 500-lb net explosive weight detonation (bin 
E10 and below), vessels greater than 200 ft will have two Lookouts, 
while vessels less than 200 ft or aircraft will have one Lookout.
    (E) General mine countermeasure and neutralization activities using 
a 501 to 650-lb net explosive weight detonation (bin E11), will have 
two Lookouts. One Lookout will be positioned in an aircraft and one in 
a support vessel.
    (F) During activities involving diver-placed mines under positive 
control, activities using up to a 500 lb net explosive weight (bin E10) 
detonation will have a total of two Lookouts (one Lookout positioned on 
two small boats, or one small boat in combination with either a 
helicopter or shore-based. The shore-based observer would be stationed 
at an elevated on-shore position and would only be used during 
activities conducted in very shallow waters.
    (G) When mine neutralization activities using diver-placed charges 
with up to a 29-lb net explosive weight detonation (bin E7) are 
conducted with a time-delay firing device, four Lookouts will be used. 
Two Lookouts will be positioned in each of two small rigid hull 
inflatable boats or on one boat. In addition, when aircraft are used, 
the pilot or member of the aircrew will serve as an additional Lookout. 
The divers placing the charges on mines will report all marine mammal 
sightings to their dive support vessel or Range Safety Officer.
    (H) Surface vessels or aircraft conducting small- and medium-
caliber gunnery exercises against a surface target will have one 
Lookout.
    (I) Surface vessels conducting large-caliber gunnery exercises 
against a surface target will have one Lookout.
    (J) Aircraft conducting missile exercises (including rockets) 
against surface targets will have one Lookout.
    (K) Aircraft conducting bombing exercises will have one Lookout.
    (L) During explosive torpedo testing, one Lookout will be used and 
positioned in an aircraft.
    (M) During sinking exercises, two Lookouts will be used. One 
Lookout will be positioned in an aircraft and one on a surface vessel.
    (N) Each surface vessel supporting at-sea explosive testing will 
have at least one Lookout.
    (O) During pile driving, one Lookout will be used and positioned on 
the platform that will maximize the potential for marine mammal 
sightings (e.g., the shore, an elevated causeway, or on a small boat).
    (P) Surface vessels conducting explosive and non-explosive large-
caliber gunnery exercises will have one Lookout. This may be the same 
Lookout used during large-caliber gunnery exercises with a surface 
target.
    (v) Lookout measures for physical strike and disturbance:
    (A) While underway, surface ships will have at least one Lookout.
    (B) During activities using towed in-water devices, when towed from 
a manned platform, one Lookout will be used.
    (C) Activities involving non-explosive practice munitions (e.g., 
small-, medium-, and large-caliber gunnery exercises) using a surface 
target will have one Lookout.
    (D) During activities involving non-explosive bombing exercises, 
one Lookout positioned in an aircraft will be used.
    (E) During activities involving non-explosive missile exercises 
(including rockets) using a surface target, one Lookout will be used.
    (2) Mitigation Zones--The following are protective measures 
concerning the implementation of mitigation zones.
    (i) Mitigation zones will be measured as the radius from a source 
and represent a distance to be monitored.
    (ii) Visual detections of marine mammals within a mitigation zone 
will be communicated immediately to a watch station for information 
dissemination and appropriate action.
    (iii) Mitigation zones for non-impulsive sound: \1\
---------------------------------------------------------------------------

    \1\ The mitigation zone would be 200 yd (183 m) for low-
frequency non-hull mounted sources in bins LF4 and LF5.
---------------------------------------------------------------------------

    (A) When marine mammals are visually detected, the Navy shall 
ensure that low-frequency and hull-mounted mid-frequency active sonar 
transmission

[[Page 78155]]

levels are limited to at least 6 dB below normal operating levels, for 
sources that can be powered down, if any detected marine mammals are 
within 1,000 yd (914 m) of the sonar dome (the bow).
    (B) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are limited to at least 10 dB 
below the equipment's normal operating level, for sources that can be 
powered down, if any detected marine mammals are within 500 yd (457 m) 
of the sonar dome.
    (C) The Navy shall ensure that low-frequency sonar and hull-mounted 
mid-frequency active sonar transmissions are ceased, for sources that 
can be turned off during the activity, if any visually detected marine 
mammals are within 200 yd (183 m) of the sonar dome. Transmissions will 
not resume until one of the following conditions is met: the animal is 
observed exiting the mitigation zone; the animal is thought to have 
exited the mitigation zone based on a determination of its course and 
speed and the relative motion between the animal and the source; the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes; the ship has transited more than 2,000 yd (1.8 
km) beyond the location of the last sighting; or the ship concludes 
that dolphins are deliberately closing in on the ship to ride the 
ship's bow wave (and there are no other marine mammal sightings within 
the mitigation zone). Active transmission may resume when dolphins are 
bow riding because they are out of the main transmission axis of the 
active sonar while in the shallow-wave area of the bow.
    (D) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are ceased for sources that cannot 
be powered down during the activity, if any visually detected marine 
mammals are within 200 yd (183 m) of the source. Transmissions will not 
resume until one of the following conditions is met: the animal is 
observed exiting the mitigation zone; the animal is thought to have 
exited the mitigation zone based on a determination of its course and 
speed and the relative motion between the animal and the source; the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes; the ship has transited more than 400 yd (366 m) 
beyond the location of the last sighting.
    (E) When marine mammals are visually detected, the Navy shall 
ensure that high-frequency and non-hull-mounted mid-frequency active 
sonar transmission levels are ceased if any visually detected marine 
mammals are within 200 yd (183 m) of the source. Transmissions will not 
resume until one of the following conditions is met: the animals is 
observed exiting the mitigation zone; the animal is thought to have 
exited the mitigation zone based on a determination of its course and 
speed and the relative motion between the animal and the source; the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes for an aircraft-deployed source; the mitigation 
zone has been clear from any additional sightings for a period of 30 
minutes for a vessel-deployed source; the vessel or aircraft has 
repositioned itself more than 400 yd (366 m) away from the location of 
the last sighting; or the vessel concludes that dolphins are 
deliberately closing to ride the vessel's bow wave (and there are no 
other marine mammal sightings within the mitigation zone).
    (iv) Mitigation zones for explosive and impulsive sound:
    (A) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for IEER sonobuoys (bin E4).
    (B) A mitigation zone with a radius of 350 yd (320 m) shall be 
established for explosive sonobuoys using 0.6 to 2.5 lb net explosive 
weight (bin E3).
    (C) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for anti-swimmer grenades (bin E2).
    (D) A mitigation zone ranging from 600 yd (549 m) to 2,100 yd (1.9 
km), dependent on charge size, shall be established for general mine 
countermeasure and neutralization activities using positive control 
firing devices. Mitigation zone distances are specified for charge size 
in Table 11-2 of the Navy's application.
    (E) A mitigation zone ranging from 350 yd (320 m) to 850 yd (777 
m), dependent on charge size, shall be established for mine 
countermeasure and neutralization activities using diver-placed 
positive control firing devices. Mitigation zone distances are 
specified for charge size in Table 11-2 of the Navy's application.
    (F) A mitigation zone with a radius of 1,000 yd (914 m) shall be 
established for mine neutralization diver placed mines using time-delay 
firing devices (bin E7).
    (G) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for small- and medium-caliber gunnery exercises with a 
surface target (bin E2).
    (H) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for large-caliber gunnery exercises with a surface target 
(bin E5).
    (I) A mitigation zone with a radius of 900 yd (823 m) shall be 
established for missile exercises (including rockets) with up to 250 lb 
net explosive weight and a surface target (up to bin E9).
    (J) A mitigation zone with a radius of 2,000 yd (1.8 km) shall be 
established for missile exercises with 251 to 500 lb net explosive 
weight and a surface target (E10).
    (K) A mitigation zone with a radius of 2,500 yd (2.3 km) shall be 
established for bombing exercises (up to bin E12).
    (L) A mitigation zone with a radius of 2,100 yd (1.9 km) shall be 
established for torpedo (explosive) testing (up to bin E11).
    (M) A mitigation zone with a radius of 2.5 nautical miles shall be 
established for sinking exercises (up to bin E12).
    (N) A mitigation zone with a radius of 1,600 yd (1.4 km) shall be 
established for at-sea explosive testing (up to bin E5).
    (O) A mitigation zone with a radius of 60 yd (55 m) shall be 
established for elevated causeway system pile driving.
    (P) A mitigation zone with a radius of 70 yd (64 m) within 30 
degrees on either side of the gun target line on the firing side of the 
vessel for explosive and non-explosive large-caliber gunnery exercises.
    (v) Mitigation zones for vessels and in-water devices:
    (A) A mitigation zone of 500 yd (457 m) for observed whales and 200 
yd (183 m) for all other marine mammals (except bow riding dolphins) 
shall be established for all vessel movement, providing it is safe to 
do so.
    (B) A mitigation zone of 250 yd (229 m) for any observed marine 
mammal shall be established for all towed in-water devices that are 
towed from a manned platform, providing it is safe to do so.
    (vi) Mitigation zones for non-explosive practice munitions:
    (A) A mitigation zone of 200 yd (183 m) shall be established for 
small, medium, and large caliber gunnery exercises using a surface 
target with non-explosive practice munitions.
    (B) A mitigation zone of 1,000 yd (914 m) shall be established for 
bombing exercises with non-explosive practice munitions.
    (C) A mitigation zone of 900 yd (823 m) shall be established for 
missile exercises (including rockets) using a surface target.
    (vii) Mitigation zones for the use of Navy sea lions:
    (A) If a monk seal is seen approaching or within 100 m of a Navy 
sea lion, the handler will hold the Navy sea lion in the boat or recall 
the Navy sea lion immediately if it has already been released.
    (3) Humpback Whale Cautionary Area:

[[Page 78156]]

    (i) The Navy will maintain a 5-km (3.1-mi) buffer zone between 
December 15 and April 15 where conducting mid-frequency active sonar 
exercises will require authorization by the Commander, U.S. Pacific 
Fleet (CPF).
    (ii) If authorized, the CPF will provide specific direction on 
required mitigation prior to operational units transiting to and 
training in the area.
    (iii) The Navy will provide NMFS with advance notification of any 
mid-frequency active sonar training and testing activities in the 
humpback whale cautionary area between December 15 and April 15.
    (4) Stranding Response Plan:
    (i) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the HSTT Study Area,'' to 
include the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec.  218.71 (b)(1)) occurs during a Major Training Exercise 
(MTE) in the HSTT Study Area, the Navy shall implement the procedures 
described below.
    (1) The Navy shall implement a shutdown (as defined Sec.  218.71 
(b)(2)) when advised by a NMFS Office of Protected Resources 
Headquarters Senior Official designated in the HSTT Study Area 
Stranding Communication Protocol that a USE involving live animals has 
been identified and that at least one live animal is located in the 
water. NMFS and the Navy will maintain a dialogue, as needed, regarding 
the identification of the USE and the potential need to implement 
shutdown procedures.
    (2) Any shutdown in a given area shall remain in effect in that 
area until NMFS advises the Navy that the subject(s) of the USE at that 
area die or are euthanized, or that all live animals involved in the 
USE at that area have left the area (either of their own volition or 
herded).
    (3) If the Navy finds an injured or dead animal floating at sea 
during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s), including carcass condition if the animal(s) is/are dead, 
location, time of first discovery, observed behavior (if alive), and 
photo or video (if available). Based on the information provided, NFMS 
will determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.
    (4) In the event, following a USE, that qualified individuals are 
attempting to herd animals back out to the open ocean and animals are 
not willing to leave, or animals are seen repeatedly heading for the 
open ocean but turning back to shore, NMFS and the Navy shall 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of mid-frequency 
active sonar training activities or explosive detonations, though 
farther than 14 nautical miles from the distressed animal(s), is likely 
contributing to the animals' refusal to return to the open water. If 
so, NMFS and the Navy will further coordinate to determine what 
measures are necessary to improve the probability that the animals will 
return to open water and implement those measures as appropriate.
    (B) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the HSTT 
Study Area Communication Protocol) regarding the location, number and 
types of acoustic/explosive sources, direction and speed of units using 
mid-frequency active sonar, and marine mammal sightings information 
associated with training activities occurring within 80 nautical miles 
(148 km) and 72 hours prior to the USE event. Information not initially 
available regarding the 80-nautical miles (148-km), 72-hour period 
prior to the event will be provided as soon as it becomes available. 
The Navy will provide NMFS investigative teams with additional relevant 
unclassified information as requested, if available.
    (b) [Reserved]


Sec.  218.75  Requirements for monitoring and reporting.

    (a) As outlined in the HSTT Study Area Stranding Communication 
Plan, the Holder of the Authorization must notify NMFS immediately (or 
as soon as operational security considerations allow) if the specified 
activity identified in Sec.  218.70 is thought to have resulted in the 
mortality or injury of any marine mammals, or in any take of marine 
mammals not identified in Sec.  218.71.
    (b) The Holder of the LOA must conduct all monitoring and required 
reporting under the LOA, including abiding by the HSTT Monitoring Plan.
    (c) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as operational security considerations 
allow) if an injured or dead marine mammal is found during or shortly 
after, and in the vicinity of, an Navy training or testing activity 
utilizing mid- or high-frequency active sonar, or underwater explosive 
detonations. The Navy shall provide NMFS with species or description of 
the animal(s), the condition of the animal(s) (including carcass 
condition if the animal is dead), location, time of first discovery, 
observed behaviors (if alive), and photo or video (if available). The 
Navy shall consult the Stranding Response Plan to obtain more specific 
reporting requirements for specific circumstances.
    (d) Vessel Strike--In the event that a Navy vessel strikes a whale, 
the Navy shall do the following:
    (1) Immediately report to NMFS (pursuant to the established 
Communication Protocol) the:
    (i) Species identification if known;
    (ii) Location (latitude/longitude) of the animal (or location of 
the strike if the animal has disappeared);
    (iii) Whether the animal is alive or dead (or unknown); and
    (iv) The time of the strike.
    (2) As soon as feasible, the Navy shall report to or provide to 
NMFS, the:
    (i) Size, length, and description (critical if species is not 
known) of animal;
    (ii) An estimate of the injury status (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared, etc.);
    (iii) Description of the behavior of the whale during event, 
immediately after the strike, and following the strike (until the 
report is made or the animal is no long sighted);
    (iv) Vessel class/type and operation status;
    (v) Vessel length
    (vi) Vessel speed and heading; and
    (vii) To the best extent possible, obtain
    (3) Within 2 weeks of the strike, provide NMFS:
    (i) A detailed description of the specific actions of the vessel in 
the 30-minute timeframe immediately preceding the strike, during the 
event, and immediately after the strike (e.g., the speed and changes in 
speed, the direction and changes in the direction, other maneuvers, 
sonar use, etc., if not classified); and
    (ii) A narrative description of marine mammal sightings during the 
event and immediately after, and any information as to sightings prior 
to the strike, if available; and
    (iii) Use established Navy shipboard procedures to make a camera 
available to attempt to capture photographs following a ship strike.
    (e) Annual HSTT Monitoring Plan Report--(1) The Navy shall submit 
an annual report for the HSTT Monitoring

[[Page 78157]]

Plan in April of each year, describing the implementation and results 
from the previous calendar year. Data collection methods will be 
standardized across range complexes and study areas to allow for 
comparison in different geographic locations. Although additional 
information will be gathered, the protected species observers 
collecting marine mammal data pursuant to the HSTT Monitoring Plan 
shall, at a minimum, provide the same marine mammal observation data 
required in Sec.  218.75. (2) As an alternative, the Navy may submit a 
multi-Range Complex annual Monitoring Plan report to fulfill this 
requirement. Such a report would describe progress of knowledge made 
with respect to monitoring plan study questions across all Navy ranges 
associated with the ICMP. Similar study questions shall be treated 
together so that progress on each topic shall be summarized across all 
Navy ranges. The report need not include analyses and content that does 
not provide direct assessment of cumulative progress on the monitoring 
plan study questions.
    (f) Annual HSTT Exercise and Testing Reports--The Navy shall submit 
preliminary reports detailing the status of authorized sound sources 
within 21 days after the end of the annual authorization cycle. The 
Navy shall submit detailed reports 3 months after the anniversary of 
the date of issuance of the LOA. The detailed annual reports shall 
contain information on Major Training Exercises (MTE), Sinking Exercise 
(SINKEX) events, and a summary of sound sources used, as described 
below. The analysis in the detailed reports will be based on the 
accumulation of data from the current year's report and data collected 
from previous reports. The detailed reports shall contain information 
identified in paragraphs (e)(1) through (e)(5) of this section.
    (1) Major Training Exercises/SINKEX:
    (i) This section shall contain the reporting requirements for 
Coordinated and Strike Group exercises and SINKEX. Coordinated and 
Strike Group Major Training Exercises include:
    (A) Sustainment Exercise (SUSTAINEX).
    (B) Integrated ASW Course (IAC).
    (C) Composite Training Unit Exercises (COMPTUEX).
    (D) Joint Task Force Exercises (JTFEX).
    (E) Undersea Warfare Exercise (USWEX).
    (ii) Exercise information for each MTE:
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location (operating area).
    (D) Number of items or hours (per the LOA) of each sound source bin 
(impulsive and non-impulsive) used in the exercise.
    (E) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (F) Individual marine mammal sighting info for each sighting for 
each MTE:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin/
pinniped).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was 
made from (including, for example, what type of surface vessel or 
testing platform).
    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.
    (8) Visibility.
    (9) Sound source in use at the time of sighting.
    (10) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or >2,000 yd from sound source.
    (11) Mitigation implementation--whether operation of sonar sensor 
was delayed, or sonar was powered or shut down, and how long the delay 
was; or whether navigation was changed or delayed.
    (12) If source in use is a hull-mounted sonar, relative bearing of 
animal from ship and estimation of anima's motion relative to ship 
(opening, closing, parallel).
    (13) Observed behavior--watchstanders shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animal(s) (such as closing to bow ride, paralleling 
course/speed, floating on surface and not swimming, etc.), and if any 
calves present.
    (G) An evaluation (based on data gathered during all of the MTEs) 
of the effectiveness of mitigation measures designed to minimize the 
received level to which marine mammals may be exposed. This evaluation 
shall identify the specific observations that support any conclusions 
the Navy reaches about the effectiveness of the mitigation.
    (iii) Exercise information for each SINKEX:
    (A) List of the vessels and aircraft involved in the SINKEX.
    (B) Location (operating area).
    (C) Chronological list of events with times, including time of 
sunrise and sunset, start and stop time of all marine species surveys 
that occur before, during, and after the SINKEX, and ordnance used.
    (D) Visibility and/or weather conditions, wind speed, cloud cover, 
etc. throughout exercise if it changes.
    (E) Aircraft used in the surveys, flight altitude, and flight speed 
and the area covered by each of the surveys, given in coordinates, map, 
or square miles.
    (F) Passive acoustic monitoring details (number of sonobuoys, area 
and depth that was heard, detections of biologic activity, etc.).
    (G) Individual marine mammal sighting info for each sighting that 
required mitigation to be implemented:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin/
pinniped).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was 
made from (including, for example what type of surface vessel or 
platform).
    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.
    (8) Visibility.
    (9) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or >2,000 yd from the target.
    (10) Mitigation implementation--whether the SINKEX was stopped or 
delayed and length of delay.
    (11) 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.), 
and if any calves present.
    (H) List of the ordnance used throughout the SINKEX and net 
explosive weight (NEW) of each weapon and the combined ordnance NEW.
    (2) Summary of Sources Used.
    (i) This section shall include the following information summarized 
from the authorized sound sources used in all training and testing 
events:
    (A) Total annual hours or quantity (per the LOA) of each bin of 
sonar or other non-impulsive source;
    (B) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive bin;
    (C) Total annual airgun use; and
    (D) Improved Extended Echo-Ranging System (IEER)/sonobuoy summary, 
including:
    (1) Total expended/detonated rounds (buoys).
    (2) Total number of self-scuttled IEER rounds.

[[Page 78158]]

    (3) Sonar Exercise Notification--The Navy shall submit to NMFS 
(specific contact information to be provided in LOA) either an 
electronic (preferably) or verbal report within fifteen calendar days 
after the completion of any major exercise (RIMPAC, USWEX, or Multi 
Strike Group) indicating:
    (i) Location of the exercise.
    (ii) Beginning and end dates of the exercise.
    (iii) Type of exercise (e.g., RIMPAC, USWEX, or Multi Strike 
Group).
    (4) Geographic Information Presentation--The reports shall present 
an annual (and seasonal, where practical) depiction of training 
exercises and testing bin usage geographically across the Study Area.
    (5) Special Reporting Requirements--To the extent practicable, and 
as it applies to the specific Study Area, these reports will also 
include:
    (i) The total hours (from 15 December through 15 April) of hull-
mounted active sonar operation occurring in the dense humpback areas 
generally shown on the Mobley map (73 FR 35510, 35520) plus a 5-km 
buffer, but not including the Pacific Missile Range Facility (as 
illustrated in the HSTT FEIS/OEIS).
    (ii) The total estimated annual hours of hull-mounted active sonar 
operation conducted in the Humpback Whale Cautionary Area between 15 
December and 15 April.
    (6) 5-year Close-out Exercise and Testing Report--This report will 
be included as part of the 2019 annual exercise or testing report. This 
report will provide the annual totals for each sound source bin with a 
comparison to the annual allowance and the 5-year total for each sound 
source bin with a comparison to the 5-year allowance. Additionally, if 
there were any changes to the sound source allowance, this report will 
include a discussion of why the change was made and include the 
analysis to support how the change did or did not result in a change in 
the FEIS and final rule determinations. The report will be submitted 3 
months after the expiration of the rule. NMFS will submit comments on 
the draft close-out report, if any, within 3 months of receipt. The 
report will be considered final after the Navy has addressed NMFS' 
comments, or 3 months after the submittal of the draft if NMFS does not 
provide comments.


Sec.  218.76  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec.  216.106) conducting 
the activity identified in Sec.  218.70(c) (the U.S. Navy) must apply 
for and obtain either an initial LOA in accordance with Sec.  218.77 or 
a renewal under Sec.  218.78.


Sec.  218.77  Letters of Authorization.

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


Sec.  218.78  Renewals and modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
218.77 for the activity identified in Sec.  218.70(c) will be renewed 
or modified upon request of the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision of this chapter), 
and;
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision of this chapter) that do not change the findings made for the 
regulations or result in no more than a minor change in the total 
estimated number of takes (or distribution by species or years), NMFS 
may publish a notice of proposed LOA in the Federal Register, including 
the associated analysis illustrating the change, and solicit public 
comment before issuing the LOA.
    (c) A LOA issued under Sec.  216.106 and Sec.  218.77 of this 
chapter for the activity identified in Sec.  218.70(c) of this chapter 
may be modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting 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 the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, and reporting measures in an LOA:
    (A) Results from Navy's monitoring form the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS 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.  218.72(c) of this chapter, an LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 days of the 
action.
[FR Doc. 2013-30245 Filed 12-23-13; 8:45 am]
BILLING CODE 3510-22-P