Federal Register, Volume 75 Issue 148 (Tuesday, August 3, 2010)

[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Rules and Regulations]
[Pages 45527-45556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18222]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 0907281180-0269-02]
RIN 0648-AX90

Taking and Importing Marine Mammals; Military Training Activities
and Research, Development, Testing and Evaluation Conducted Within the
Mariana Islands Range Complex

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

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy) on behalf of
the Department of Defense (including the Navy, the U.S. Air Force
(USAF), and the U.S. Marine Corps (USMC)), is issuing regulations to
govern the unintentional taking of marine mammals incidental to
activities conducted in the Mariana Islands Range Complex (MIRC) study
area for the period of July 2010 through July 2015. The Navy's
activities are considered military readiness activities pursuant to the
Marine Mammal Protection Act (MMPA), as amended by the National Defense
Authorization Act for Fiscal Year 2004 (NDAA). These regulations, which
allow for the issuance of ``Letters of Authorization'' (LOAs) for the
incidental take of marine mammals during the described activities and
specified timeframes, prescribe the permissible methods of taking and
other means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking.

DATES: Effective August 3, 2010 through August 3, 2015.

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

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected
Resources, NMFS, (301) 713-2289, ext. 166.

SUPPLEMENTARY INFORMATION:

Availability of Supporting Information

Extensive Supplementary Information was provided in the proposed
rule for this activity, which was published in the Federal Register on
October 20, 2009 (74 FR 53796). This information will not be reprinted
here in its entirety; rather, all sections from the proposed rule will
be represented herein and will contain either a summary of the material
presented in the proposed rule or a note referencing the page(s) in the
proposed rule where the information may be found. Any information that
has changed since the proposed rule was published will be addressed
herein. Additionally, this final rule responds to the comments received
during the public comment period.

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional taking of marine

[[Page 45528]]

mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) during periods of not more than five consecutive
years each if certain findings are made and regulations are issued or,
if the taking is limited to harassment, notice of a proposed
authorization is provided to the public for review.
Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and if the permissible methods of taking
and requirements pertaining to the mitigation, monitoring and reporting
of such taking are set forth. NMFS has defined ``negligible impact'' in
50 CFR 216.103 as:

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

The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) modified the MMPA by removing the ``small numbers'' and
``specified geographical region'' limitations and amended the
definition of ``harassment'' as it applies to a ``military readiness
activity'' to read as follows (Section 3(18)(B) of the MMPA):

(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

In August 2008, NMFS received an application from the Navy
requesting authorization for the take of individuals of 26 species of
marine mammals incidental to upcoming Department of Defense (including
Navy, USMC, and USAF) training and research, development, testing, and
evaluation (RDT&E) activities to be conducted from June 2010 through
June 2015 within the MIRC study area, which encompasses a 501,873-
square-nautical mile (nm\2\) area around the islands, including Guam,
Tinian, Saipan, Rota, Farallon de Medinilla, and also includes ocean
areas in both the Pacific Ocean and the Philippine Sea. These training
activities are military readiness activities under the provisions of
the NDAA. The Navy states, and NMFS concurs, that these military
readiness activities may incidentally take marine mammals present
within the MIRC study area by exposing them to sound from mid-frequency
or high frequency active sonar (MFAS/HFAS) or underwater detonations.
After submitting supplemental applications, the Navy requested
authorization to take individuals of 26 species of marine mammals by
Level B Harassment, 2 individuals of 2 species by Level A Harassment
annually, and 10 individual beaked whales by mortality over the course
of the 5-year regulations. The Navy's model, which did not factor in
any potential benefits of mitigation measures, predicted that 2
individual marine mammals would be exposed to levels of sound or
pressure that would result in injury; thus, NMFS is authorizing the
take, by Level A Harassment of 2 individuals per year. However, NMFS
and the Navy have determined that injury can most likely be avoided
through the implementation of the Navy's proposed mitigation measures.
Further, although it does not anticipate that it will occur, the Navy
requested, and NMFS is authorizing the take, by injury or mortality, up
to 10 beaked whales over the course of the 5-year regulations.

Background of Request

The proposed rule contains a description of the Navy's mission,
their responsibilities pursuant to Title 10 of the United States Code,
and the specific purpose and need for the activities for which they
requested incidental take authorization. The description contained in
the proposed rule has not changed (74 FR 53795, pages 53796-53797).

Overview of the MIRC Study Area

The proposed rule contains a description of the MIRC study area. It
also includes a discussion of the Marianas Trench Marine National
Monument (MTMNM), where the MTMNM overlaps with the MIRC study area,
and protected resources within the MTMNM. These descriptions have not
changed (74 FR 53795, pages 53797-53798).

Description of Specified Activities

The proposed rule contains a complete description of the Navy's
specified activities that are covered by these final regulations, and
for which the associated incidental take of marine mammals will be
authorized in the related LOAs. The proposed rule describes the nature
and number of anti-submarine warfare (ASW) training exercises and RDT&E
activities, involving both mid- and high-frequency active sonar (MFAS
and HFAS), explosive detonations, and vessel movement. It also
describes the sound sources and explosive types used (74 FR 53795,
pages 53798-53807). It also briefly describes the limited use of low
frequency active (LFA) sonar in conjunction with the MIRC training,
which has also been analyzed in a separate MMPA rule and EIS. The
narrative description of the action contained in the proposed rule has
not changed, with the exception of a few clarifications, which have
been indicated in italics in tables 1 and 2, which list the types of
sonar sources and the estimated yearly use and summarize the
characteristics of the exercise types. Of note, the Navy indicated in
the proposed rule that they will conduct one multi-strike group type
exercise in the summer each calendar year. This fact remains true,
however, if NMFS' annual LOAs for this action are issued in July (as
currently planned), it is possible that 2 multi-strike group exercises
could occur within the coverage period of one LOA (for example if a
multi-strike group exercise occurred in early August one year and late
June the next). The Navy would still not conduct more than 5 of these
multi-strike group exercises within the life of the 5-year regulations,
however, and this clerical issue does not impact our analyses of the
effects on marine mammals.
The Navy has carefully characterized the training activities
planned for the MIRC over the 5 years covered by these regulations;
however, evolving real-world needs necessitate flexibility in annual
activities. NMFS has attempted to bound this flexibility with updated
language in the regulatory text (see Sec. 218.100(d) and Sec.
218.102(c)). This language allows for flexibility in activities, as
long as the resulting impacts to marine mammals do not vary beyond
those contemplated in the effects analysis, which has been also been
updated accordingly in this document.
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Description of Marine Mammals in the Area of the Specified Activities

Thirty-two marine mammal species or populations/stocks have
confirmed or possible occurrence within the MIRC, including seven
species of baleen whales (mysticetes), 22 species of toothed whales
(odontocetes), two species of seals and sea lions (pinnipeds), and the
dugong (sirenian). Table 3 summarizes their abundance, Endangered
Species Act (ESA) status, population trends, and occurrence in the
area. Eight of the species are ESA-listed and considered depleted under

[[Page 45531]]

the MMPA: Blue whale; fin whale; humpback whale; sei whale; sperm
whale; North Pacific right whale; Hawaiian monk seal; and dugong. The
dugong is managed by the U.S. Fish and Wildlife Service and will not be
addressed further here. The proposed rule contains a discussion of five
species that are not considered further in the analysis because of
their rarity in the MIRC (North Pacific right whale, Hawaiian monk
seal, Hubb's beaked whale, Indo-Pacific bottlenose dolphin, and
northern elephant seal). The proposed rule also contains a discussion
of important spinner dolphin resting areas. The proposed rule also
includes a discussion of marine mammal vocalizations. Last, the
proposed rule includes a discussion of the methods used to estimate
marine mammal density in the MIRC. The Description of Marine Mammals in
the Area of the Specified Activities section has not changed from what
was in the proposed rule (74 FR 53795, pages 53807-53813).

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Brief Background on Sound

The proposed rule contains a section that provides a brief
background on the principles of sound that are frequently referred to
in this rulemaking (74 FR 53795, pages 53813-53814). This section also
includes a discussion of the functional hearing ranges of the different
groups of marine mammals (by frequency) as well as a discussion of the
two main sound metrics used in NMFS analysis (sound pressure level
(SPL) and sound energy level (SEL)). The information contained in the
proposed rule has not changed.

Potential Effects of Specified Activities on Marine Mammals

With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A Harassment
(injury), or mortality, including an identification of the number and
types of take that could occur by Level A or B harassment or mortality)
and to prescribe other means of effecting the least practicable adverse
impact on such species or stock and its habitat (i.e., mitigation); (2)
to determine whether the specified activity will have a negligible
impact on the affected species or stocks of marine mammals (based on
the likelihood that the activity will adversely affect the species or
stock through effects on annual rates of recruitment or survival); (3)
to determine whether the specified activity will have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses (however, there are no subsistence communities that
would be affected in the MIRC, so this determination is inapplicable
for this rulemaking); and (4) to prescribe requirements pertaining to
monitoring and reporting.
In the Potential Effects of Specified Activities on Marine Mammals
section of the proposed rule NMFS included a qualitative discussion of
the different ways that MFAS/HFAS and underwater explosive detonations
may potentially affect marine mammals (some of which NMFS would not
classify as harassment), as well as a discussion of the potential
effects of vessel movement and collision. It also briefly describes the
anticipated impacts of limited use of low frequency active (LFA) sonar
in conjunction with the MIRC training, which has also been analyzed in
a separate MMPA rule and EIS. Marine mammals may experience direct
physiological effects (such as threshold shift), acoustic masking,
impaired communications, stress responses, and behavioral disturbance.
This section also included a discussion of some of the suggested
explanations for the association between the use of MFAS and marine
mammal strandings (such as behaviorally-mediated bubble growth) that
have been observed a limited number of times in certain circumstances
(the specific events are also described). The information contained in
Potential Effects of Specified Activities on Marine Mammals section
from the proposed rule has not changed. See 74 FR 53795, pages 53814-
53831.
Later, in the Estimated Take of Marine Mammals Section of this
final rule, NMFS relates and quantifies the potential effects to marine
mammals from MFAS/HFAS and underwater detonation of explosives
discussed here to the MMPA definition of take, which includes Level A
and Level B Harassment, as well as mortality.

Mitigation

In order to issue an incidental take authorization (ITA) under
Section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible
methods of taking pursuant to such activity, and other means of
effecting the least practicable adverse impact on such species or stock
and its habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance.'' The NDAA of 2004 amended
the MMPA as it relates to military-readiness activities and the ITA
process such that ``least practicable adverse impact'' shall include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the ``military readiness activity.'' The
training activities described in the MIRC application are considered
military readiness activities.
NMFS reviewed the proposed MIRC activities and the proposed MIRC
mitigation measures as described in the Navy's LOA application to
determine if they would result in the least practicable adverse effect
on marine mammals, which includes a careful balancing of the likely
benefit of any particular measure to the marine mammals with the likely
effect of that measure on personnel safety, practicality of
implementation, and impact on the effectiveness of the ``military-
readiness activity.'' NMFS determined that further discussion was
necessary regarding the potential relationship between the operation of
MFAS/HFAS and marine mammal strandings.
NMFS worked with the Navy to identify potential additional
practicable and effective mitigation measures, which included a careful
balancing of the likely benefit of any particular measure to the marine
mammals with the likely effect of that measure on personnel safety,
practicality of implementation, and impact on the ``military-readiness
activity.'' NMFS and the Navy developed a Stranding Response Plan to
address the concern listed above.
NMFS' proposed rule includes a list of the Navy's proposed
mitigation measures (74 FR 53795, pages 53831-53836), which have been
included in the regulatory text of this document. Some of the measures
have been refined for increased clarity, but without a change in
substance. Additionally, in the interest of further minimizing the
likelihood of vessel collision, the following mitigation measure has
been added since the publication of the proposed rule:

Naval vessels will maneuver to keep at least 1,500 ft (500 yds)
away from any observed whale in the vessel's path and avoid
approaching whales head-on. These requirements do not apply if a
vessel's safety is threatened, such as when change of course will
create an imminent and serious threat to a person, vessel, or
aircraft, and to the extent vessels are restricted in their ability
to maneuver. Restricted maneuverability includes, but is not limited
to, situations when 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.

Based on our evaluation of the proposed measures and other measures
considered by NMFS or recommended by the public, NMFS has determined
that the Navy's proposed mitigation measures, including the Adaptive
Management component (see Adaptive Management below), 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. The proposed rule contains further support for this
finding in the

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Mitigation Conclusion section (74 FR 53795, pages 53836-53837). During
the public comment period, a few mitigation measures not previously
considered were recommended and NMFS' analysis of these measures is
included in the Response to Public Comment section.

Research

The Navy provides a significant amount of funding and support to
marine research. In the past five years the agency funded over $100
million ($26 million in FY08 alone) to universities, research
institutions, federal laboratories, private companies, and independent
researchers around the world to study marine mammals. The U.S. Navy
sponsors 70 percent of all U.S. research concerning the effects of
human-generated sound on marine mammals and 50 percent of such research
conducted worldwide. Major topics of Navy-supported research include
the following:
Better understanding of marine species distribution and
important habitat areas,
Developing methods to detect and monitor marine species
before and during training,
Understanding the effects of sound on marine mammals, sea
turtles, fish, and birds, and
Developing tools to model and estimate potential effects
of sound.
This research is directly applicable to Fleet training activities,
particularly with respect to the investigations of the potential
effects of underwater noise sources on marine mammals and other
protected species. Proposed training activities employ active sonar and
underwater explosives, which introduce sound into the marine
environment.
The Marine Life Sciences Division of the Office of Naval Research
currently coordinates six programs that examine the marine environment
and are devoted solely to studying the effects of noise and/or the
implementation of technology tools that will assist the Navy in
studying and tracking marine mammals. The six programs are as follows:
Environmental Consequences of Underwater Sound,
Non-Auditory Biological Effects of Sound on Marine
Mammals,
Effects of Sound on the Marine Environment,
Sensors and Models for Marine Environmental Monitoring,
Effects of Sound on Hearing of Marine Animals, and
Passive Acoustic Detection, Classification, and Tracking
of Marine Mammals.
The Navy has also developed the technical reports referenced within
this document, which include the Marine Resource Assessments and the
Mariana Islands Sea Turtle and Cetacean Survey density report.
Furthermore, research cruises by NMFS and by academic institutions have
received funding from the U.S. Navy.
The Navy has sponsored several workshops to evaluate the current
state of knowledge and potential for future acoustic monitoring of
marine mammals. The workshops brought together acoustic experts and
marine biologists from the Navy and other research organizations to
present data and information on current acoustic monitoring research
efforts and to evaluate the potential for incorporating similar
technology and methods on instrumented ranges. However, acoustic
detection, identification, localization, and tracking of individual
animals still requires a significant amount of research effort to be
considered a reliable method for marine mammal monitoring. The Navy
supports research efforts on acoustic monitoring and will continue to
investigate the feasibility of passive acoustics as a potential
mitigation and monitoring tool.
Overall, the Navy will continue to request funding for ongoing
marine mammal research, and is implementing long term monitoring/
studies of marine mammals on various established ranges and operating
areas. The Navy will continue to request funding for research and
contribute to university/external research to improve the state of the
science regarding marine species biology and acoustic effects. These
efforts include mitigation and monitoring programs; data sharing with
NMFS and via the literature for research and development efforts; and
future research as described previously.

Memorandum of Agreement (MOA) for Navy Assistance With Stranding
Investigations

The Navy and NMFS are currently developing a nationwide Memorandum
of Understanding (MOU) (or other mechanism consistent with Federal
fiscal law requirements and all other applicable laws), that will
establish a framework whereby the Navy can assist NMFS with stranding
investigations in certain circumstances.

Long-Term Prospective Study

Apart from this final rule, NMFS, with input and assistance from
the Navy and several other agencies and entities, will perform a
longitudinal observational study of marine mammal strandings to
systematically observe for and record the types of pathologies and
diseases and investigate the relationship with potential causal factors
(e.g., active sonar, seismic, weather). The study will not be a true
``cohort'' study, because NMFS will be unable to quantify or estimate
specific active sonar or other sound exposures for individual animals
that strand. However, a cross-sectional or correlational analyses, a
method of descriptive rather than analytical epidemiology, can be
conducted to compare population characteristics, e.g., frequency of
strandings and types of specific pathologies between general periods of
various anthropogenic activities and non-activities within a prescribed
geographic space. In the long-term study, NMFS will more fully and
consistently collect and analyze data on the demographics of strandings
in specific locations and consider anthropogenic activities and
physical, chemical, and biological environmental parameters. This
approach in conjunction with true cohort studies (tagging animals,
measuring received sounds, and evaluating behavior or injuries) in the
presence of activities and non-activities will provide critical
information needed to further define the impacts of major training
exercises (MTEs) and other anthropogenic and non-anthropogenic
stressors. In coordination with the Navy and other Federal and non-
Federal partners, the comparative study will be designed and conducted
for specific sites during intervals of the presence of anthropogenic
activities such as active sonar transmission or other sound exposures
and absence to evaluate demographics of morbidity and mortality,
lesions found, and cause of death or stranding. Additional data that
will be collected and analyzed in an effort to control potential
confounding factors include factors such as average sea temperature (or
just season), meteorological or other environmental variables (e.g.,
seismic activity), fishing activities, etc. All efforts will be made to
include appropriate controls (i.e., no active sonar or seismic sounds);
environmental variables may complicate the interpretation of
``control'' measurements. The Navy and NMFS along with other partners
are evaluating mechanisms for funding this study.

Monitoring

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include the suggested means of accomplishing the necessary monitoring
and reporting that will result in increased knowledge of the species
and of the level of taking or impacts on populations of marine mammals
that are expected to be present.

Proposed Monitoring Plan for the MIRC

The Navy's final Monitoring Plan for the MIRC may be viewed at
NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Based on input received during the public
comment period, the Navy has refined the goals of the monitoring plan
to include more effort put towards obtaining better density and
distribution information for the marine mammals present in the MIRC
study area. Primarily, the Navy plans to conduct summer and winter
visual surveys using a small boat and/or plane with Marine Mammal
Observers (MMOs) around Guam, Tinian, and Saipan in cooperation with
NMFS' Pacific Islands Fisheries Science Center or Guam's Division of
Aquatic Wildlife and Resources (DAWR). Visual surveys would integrate
methods such as photographic ID to provide additional data to be used
for distribution and abundance estimates.
The research elements in the modified plan include:

--Passive acoustic monitoring (PAM) including both the deployment of 4
new PAM devices as well as the analysis of an existing dataset that was
collected during the 2007 MISTCS survey.
--Visual monitoring utilizing marine mammal observers (MMOs) in small
boats and/or planes.

Table 5 contains a general summary of the Monitoring effort planned
for each year and has been refined since the draft Monitoring Plan. The
amount of each type of monitoring may vary from the summary table or
Monitoring Plan based on annual discussions between NMFS and the Navy
regarding previous monitoring results and effectiveness and in
accordance with the Adaptive Management component of this rule, but,
the overall effort over the 5-year period will remain approximately
equal to that laid out in the table and monitoring plan.
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In addition to the Monitoring Plan for MIRC, the Navy has completed an
Integrated Comprehensive Monitoring Program (ICMP) Plan.
The ICMP will be used both as: (1) A planning tool to focus Navy
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy
Range Complexes and Exercises; and (2) an adaptive management tool,
through the consolidation and analysis of the Navy's monitoring and
watchstander data, as well as new information from other Navy programs
(e.g., R&D), and other appropriate newly published information. The
Navy finalized a 2009 ICMP Plan outlining the program on December 22,
2009, as required by the 2009 LOAs for the Hawaii Range Complex, the
Southern California

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Range, and Atlantic Fleet Active Sonar Training. The ICMP may be viewed
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
The ICMP is a developing program that will be in place for the
length of this rule, and beyond, and NMFS and Navy will evaluate it
annually to determine if it needs to be updated in order to keep pace
with advances in science and technology and the collection of new data.
In the 2009 ICMP Plan, the Navy outlines three areas of targeted
development for 2010, including:
Identifying more specific monitoring sub-goals under the
major goals that have been identified.
Characterizing Navy Range Complexes and Study Areas within
the context of the prioritization guidelines described here.
Continuing to Develop Data Management, Organization and
Access Procedures.
The Navy shall comply with the 2009 ICMP Plan and continue to
improve the program in consultation with NMFS. Changes and improvements
to the program made during 2010 (as prescribed in the 2009 ICMP and
otherwise deemed appropriate by the Navy and NMFS) will be described in
an updated 2010 ICMP and submitted to NMFS by October 31, 2010, for
review. An updated 2010 ICMP will be finalized by December 31, 2010.

Monitoring Workshop

The Navy, with guidance and support from NMFS, will convene a
Monitoring Workshop, including marine mammal and acoustic experts as
well as other interested parties, in 2011. The Monitoring Workshop
participants will review the monitoring results from previous
monitoring pursuant to the MIRC rule as well as monitoring results from
other Navy rules and LOAs (e.g., the Southern California Range Complex
(SOCAL), Hawaii Range Complex (HRC), etc.). The Monitoring Workshop
participants will provide their individual recommendations to the Navy
and NMFS on the monitoring plan(s) after also considering the current
science (including Navy research and development) and working within
the framework of available resources and feasibility of implementation.
NMFS and the Navy will then analyze the input from the Monitoring
Workshop participants and determine the best way forward from a
national perspective. Subsequent to the Monitoring Workshop,
modifications would be applied to monitoring plans as appropriate.

Adaptive Management

Our understanding of the effects of MFAS/HFAS and explosives on
marine mammals is still in its relative infancy, and yet the science in
this field is evolving fairly quickly. These circumstances make the
inclusion of an adaptive management component both valuable and
necessary within the context of 5-year regulations for activities that
have been associated with marine mammal mortality in certain
circumstances and locations (though not the MIRC in the Navy's over 60
years of use of the area for testing and training). NMFS has included
an adaptive management component in the regulations, which will allow
NMFS to consider new data from different sources to determine (in
coordination with the Navy) on an annual basis if mitigation or
monitoring measures should be modified or added (or deleted) if new
data suggest that such modifications are appropriate (or are not
appropriate) for subsequent annual LOAs.
Following are some of the possible sources of new data:
Results from the Navy's monitoring from the previous year
(either from MIRC or other locations).
Findings of the Workshop that the Navy will convene in
2011 to analyze monitoring results to date, review current science, and
recommend modifications, as appropriate to the monitoring protocols to
increase monitoring effectiveness.
Compiled results of Navy funded research and development
(R&D) studies (presented pursuant to the ICMP, which is discussed
elsewhere in this document).
Results from specific stranding investigations (either
from MIRC or other locations, and involving coincident MFAS/HFAS of
explosives training or not involving coincident use).
Results from the Long Term Prospective Study described
above.
Results from general marine mammal and sound research
(funded by the Navy (described above) or otherwise).
Any information which reveals that marine mammals may have
been taken in a manner, extent or number not anticipated by these
regulations or subsequent Letters of Authorization.
Mitigation measures could be modified or added (or deleted) if new
data suggest that such measures would have (or do not have) a
reasonable likelihood of accomplishing the goals of mitigation laid out
in this final rule and if the measures are practicable. NMFS would also
coordinate with the Navy to modify or add to (or delete) the existing
monitoring requirements if the new data suggest that the addition of
(or deletion of) a particular measure would more effectively accomplish
the goals of monitoring laid out in this final rule. The reporting
requirements associated with this final rule are designed to provide
NMFS with monitoring data from the previous year to allow NMFS to
consider the data and issue annual LOAs. NMFS and the Navy will meet
annually, prior to LOA issuance, to discuss the monitoring reports,
Navy R&D developments, and current science and whether mitigation or
monitoring modifications are appropriate.

Reporting

In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' Effective reporting is
critical both to compliance as well as ensuring that the most value is
obtained from the required monitoring. The proposed rule contains the
reporting requirements for the Navy (74 FR 53795, pages 53843-53845),
and these requirements remain unchanged with the following exception.
The requirements as written in the proposed rule include specific due
dates for each of the reports. NMFS and the Navy are coordinating a
workload plan to determine the best times during every year to submit
all of the reports that Navy is responsible for under multiple final
rules for multiple Range Complexes and training exercises. Although the
reports described will always be submitted every year at a time that
allows for adequate analysis by NMFS prior to the issuance of the
subsequent LOA, we want to allow flexibility to change those dates
yearly. Therefore, the regulatory text below will not specify the
specific dates that the reports are due, but each annual LOA will.

Comments and Responses

On October 20, 2009 (74 FR 53795), NMFS published a proposed rule
in response to the Navy's request to take marine mammals incidental to
military readiness training, maintenance, and RDT&E activities in the
MIRC and requested comments, information and suggestions concerning the
request. During the 30-day public comment period, NMFS received
comments from 4 private individuals, the Marine Mammal Commission (MMC)
and the Natural Resources Defense Council (NRDC). NMFS has responded to
those comments below.

[[Page 45538]]

Comment 1: The MMC recommended that the MIRC final rule and any
Letter of Authorization issued under that rule include all marine
mammal species that may be taken as a result of the proposed
activities. Specifically, the MMC suggested that NMFS and/or the Navy
should consult with the U.S. Fish and Wildlife Service (USFWS) to
determine if authorization also is needed to take dugongs, which,
according to the proposed rule, could occur within the Mariana Islands
Range Complex.
Response: The Navy has consulted on the MIRC action under Section 7
of the ESA with the USFWS, which has jurisdiction over dugongs. The
Navy and the USFWS coordinated regarding the list of species, and
dugongs were not included. Dugongs have not been observed in the action
area since 1985. Palau, over 1000 miles away, is the closest location
that they have been seen recently.
Comment 2: The MMC notes that the Navy, in its applications and
related documents, generally has done a commendable job of reviewing
the existing literature on marine mammal density, distribution,
behavior, and habitat use for the areas under consideration, but
expressed concern that the manner in which the Navy is using that
information to form conclusions about density, distribution, behavior,
and habitat use has not been subjected to the normal scientific review
process. The MMC recommends that NMFS require the Navy to conduct an
external peer review of its marine mammal density estimates, the data
upon which those estimates are based, and the manner in which those
data are being used.
Response: Both NMFS and the Navy use peer-reviewed science whenever
it is available and applicable, and NMFS has encouraged the Navy to get
the models they use and data they gather peer-reviewed. However,
neither the NEPA, the MMPA, nor the ESA require that data or
calculations used in the analyses pursuant to these statutes be peer-
reviewed prior to making a decision. Rather, NMFS and the Navy are
required to use the best available science to inform our analyses.
The Navy proactively funded a baseline survey for the Mariana
Islands in 2007 (the ``Mariana Islands Sea Turtle and Cetacean Survey''
or MISTCS) to gather data on the distribution and density of marine
mammals and sea turtles. This survey is the first and only systematic
survey to be conducted in the region and not only generated density
estimates but added sei whales to the confirmed species in the area.
Because it is the only data of this kind collected specifically around
the Mariana Islands, it is considered the best available science. The
Navy primarily used that data to derive their density estimates, and
laid out a systematic approach for using other existing Pacific data
when there was not enough MISTCS data to calculate a density for a
particular species. Most of the densities estimated in the MIRC are not
notably different than those estimated in Hawaii or the Eastern
Tropical Pacific.
Also, while it is not the same as a peer review, both the NEPA and
MMPA processes include a comment period in which the public can
specifically recommend better ways to use the data to estimate density,
and which the Navy and NMFS would need to address.
While it will not be published until after this final rule is
complete, the Navy is preparing for publication an article presenting
the MISTCS data that was used to inform their density estimates, and it
will be peer-reviewed. Additionally, the Navy is developing a new
systematic framework (that includes a hierarchy of preferred
methodologies based on the data available in an area) to estimate
density in the analyses for the rule renewals that will follow the
expiration of the rules issued in 2009, 2010, and 2011 (i.e., rules
that would, if appropriate, be issued in 2014 and later). The Navy has
indicated that they may pursue a peer review of this framework and NMFS
has encouraged them to do so.
Comment 3: The MMC recommends that NMFS require that a sufficient
level of monitoring be conducted during all training activities to
ensure that marine mammals are not being taken in unanticipated ways
and numbers. They further note that, according to the Navy's monitoring
plan, ``major exercises may undergo significant schedule changes in
reaction to higher-priority commitments and such changes may limit
monitoring opportunities * * * [or] extreme weather precludes effective
sampling.'' The plan further states that, in case of such monitoring
delay(s), ``monitoring will be re-scheduled to the next available
opportunity * * * [and] * * * may have to be made up in the subsequent
year.'' The MMC further states that they assume that, although it is
not clear in either the monitoring plan or the proposed rule, if
monitoring associated with the focused studies cannot take place during
a major training exercise, other standard types of monitoring will be
conducted for mitigation and documentation purposes.
Response: The Commission's assumption is correct. There are two
different types of monitoring required pursuant to the MIRC training
exercises. One type is the monitoring outlined in the Monitoring Plan
(which has been modified since the proposed rule, see Comment 10
below), which consists of different study methods designed to collect
density and distribution data and is conducted by MMOs. This monitoring
includes systematic sampling conducted at a different time and place
than the training exercises. The Navy feels this monitoring may need to
be rescheduled as appropriate. This is the monitoring that the Navy may
need to reschedule.
Separately, monitoring is routinely conducted by watchstanders on
surface vessels (and opportunistically by personnel on other
platforms). This monitoring is used to detect animals so the necessary
mitigation can be implemented. Behavioral data which allow for a
general assessment of impacts are collected with other information
(such as the status of sonar sources) that help verify the Navy's
mitigation implementation. This data-gathering requirement is described
in Sec. 218.105 Requirements for monitoring and reporting.
Comment 4: The MMC requested that NMFS require that, upon its
completion, the plan for the Navy's Integrated Comprehensive Monitoring
Program (ICMP) be made available for Commission review and comment.
Response: The 2009 ICMP was completed and is posted on NMFS' Web
site at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The ICMP is an iterative outline of an
ongoing program, and NMFS and the Navy will evaluate the potential need
to update it annually. NMFS made some specific recommendations on how
to improve the 2009 ICMP, which are outlined in Section 6 of that
document. Pursuant to the AFAST, HRC and SOCAL 2010 LOAs, the Navy will
submit an updated version addressing those recommended improvements and
any others, as appropriate, to NMFS at the end of 2010. NMFS has
provided the MMC with a copy of the 2009 ICMP and notified them that
NMFS and the Navy will consider any comments provided by August 15,
2010 in the development of the 2010 ICMP.
Comment 5: The MMC recommends that NMFS advise the Navy and specify
in the final rule and Letter of Authorization that any and all data
that the Navy collects as part of monitoring and reporting requirements
are essential for documenting compliance with the requirements of the
Marine Mammal Protection Act, the incidental take regulations, and the
terms and conditions of the Letter of Authorization

[[Page 45539]]

and, unless subject to national security restrictions, should be
considered as public information. The MMC further notes that the draft
Monitoring Plan indicated that ``[a]ll data will be considered ``pre-
decisional'' and proprietary and will be shared among the Navy and NMFS
(at a minimum) during the five-year period of the LOA.''
Response: NMFS concurs with the MMC and clarified this point with
the Navy. The language the MMC cited has been removed in the Final
Monitoring Plan. As specified in the final regulations (and in the
LOAs), the Navy includes all of the information specified as part of
the monitoring and reporting requirements in their annual reports
(which are posted on NMFS Web site) unless the information is
classified or the analysis has not been completed (i.e., passive
acoustic data).
Comment 6: The MMC recommends that NMFS require that, in the event
of the death or serious injury of a marine mammal during activities
associated with any of the training exercises or other activities
covered by this authorization, those activities be suspended, pending
an investigation and determination that further serious injuries or
deaths are unlikely or until authorization for such taking has been
obtained. The MMC specifically notes that there is no shutdown measure
in place for non-major sonar activities. The MMC further recommends
that NMFS require that the Navy, in conjunction with the NMFS,
investigate any injury or death of a marine mammal to determine the
cause, assess the full impact of the activity or activities (e.g., the
total number of animals involved), and determine how activities should
be modified to avoid future injuries or deaths. If the death or serious
injury involves a marine mammal not included in the authorization for
such takes, NMFS should allow the activity to proceed only if it has
reviewed the circumstances and determined that additional serious
injuries or deaths are unlikely or the Navy has obtained authorization
for such taking. Lastly, the MMC recommends that prior to issuing the
final regulations, NMFS ensure that it can provide oversight of and
response to an uncommon stranding event in the Mariana Islands Range
Complex Study Area sufficient to meet in full the monitoring and
reporting requirements of the Marine Mammal Protection Act.
Response: NMFS and the Navy have developed a detailed Stranding
Response Plan for MIRC that outlines protocols for, and describes the
underlying rationale for, shutdown (in very specific circumstances) and
investigation in the event that dead or stranded animals are found in
the vicinity of major sonar exercises. The regulations also include a
provision for ``General notification of injured or dead marine
mammals,'' under which Navy personnel shall ensure that NMFS is
notified immediately (or as soon as clearance procedures allow) if an
injured, stranded, or dead marine mammal is found during or shortly
after, and in the vicinity of, any Navy training exercise (including
non-major ones) utilizing MFAS, HFAS, or underwater explosive
detonations. The provision further requires the Navy to 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 of the animals (if available).
All but one of the small number of strandings that have been
associated with MFAS exercises occurred concurrent to exercises that
would be considered ``major'', which typically involve multiple surface
vessels and last for a much longer duration than non-major exercises.
It can take months to years to complete the necessary tests and
analyses required to determine, with a reasonable amount of certainty,
the cause of a marine mammal death--and sometimes it is not possible to
determine it. In consideration of these facts, NMFS (with input from
the Navy) determined that it was beneficial and practicable to
preemptively outline an explicit plan (that includes a shutdown
requirement in certain circumstances) for how to deal with a stranding
that occurs during a major exercise. Alternatively, for non-major
exercises, the general stranding provisions apply, which means that the
Navy would contact NMFS as soon as clearance procedures allow and we
would determine how best to proceed then. In light of the fact that so
few strandings have been definitively associated with MFAS training in
the 60+ years that the U.S. and other countries that share information
have been conducting MFAS training, it is not reasonable or practicable
to require the Navy to shut down pending the results of an
investigation that could take years to conduct.
However, NMFS and the Navy will implement the Stranding Response
Plan as written and, as in the past, will work together on a case-by-
case basis within the constraints of our available resources to
investigate the causes should a stranding or death occur during a non-
major exercise. Once investigations are completed and determinations
made (as feasible), NMFS would use the available information to help
reduce the likelihood that a similar event would recur and would work
with the Navy on the necessary steps to ensure compliance by the Navy
with the MMPA. NMFS and the Navy are near finalizing an MOU that will
streamline and improve the way that the Navy is able to assist NMFS
during a stranding investigation. Lastly, the Stranding Response Plan
includes a provision for stranding debriefs/lessons learned meetings
between NMFS and the Navy following a stranding response, and the MIRC
rule includes an adaptive management provision that allows for the
modification of mitigation or monitoring measures based on new
information (like that which might be gathered during a stranding
response/investigation), as appropriate.
Comment 7: The MMC recommended that NMFS work with the Navy to
analyze the cumulative effects of adding LFA sonar to the other
activities planned for the Mariana Islands Range Complex before using
LFA sonar as a component of the proposed training exercises and, if
appropriate, add authorization for the use of LFA to the final rule and
Letter of Authorization. The NRDC had similar concerns, including the
fact that the mitigation used with LFA sonar was not discussed.
Response: As noted, the impacts of LFA sonar (alone) have been
analyzed in the Navy's SURTASS LFA Sonar EISs and take of marine
mammals incidental to that activity has been authorized in LOAs
pursuant to NMFS' Final Rule for LFA Sonar, both of which include
required mitigation measures. As described in the proposed rule, the
military intends to conduct three exercises (multi-strike group
exercises) during the five-year duration of the rule that may include
both SURTASS LFA and MFA sonar sources. The expected duration of these
combined exercises is approximately 14 days. Based on an exercise of
this length, an LFA sonar system would be active (i.e., actually
transmitting) for no more than approximately 25 hours. Tactical and
technical considerations dictate that the LFA sonar ship would
typically be tens of miles from the MFA sonar ship when using active
sonar. It is unlikely, but possible, that both LFA and MFA sonar would
be active at exactly the same time during a major exercise. In the
unlikely event that both systems were operating simultaneously, the
likelihood of more than a relatively small number of individual marine
mammals being physically present at a time, location, and depth to be
able to receive both LFA and MFA sonar signals at levels of

[[Page 45540]]

concern at the same time is even smaller as the sound from both signals
would have attenuated when they reached the marine mammal in question,
so even a simultaneous exposure would not be at the full signal of
either system. Additionally, few species have maximum sensitivity to
both the low and middle frequencies.
That said, pursuant to this rule, NMFS worked with the Navy to more
specifically analyze impacts that might result from animals being
exposed to both the LFAS and the MFAS at the same time. The Navy
developed a model to evaluate the likelihood of an animal being exposed
to both sources based on the operational parameters of the two systems
and the propagation characteristics of the two sound sources. Assuming
an LFA and MFA sonar source transmitting at the same time over a 25-
hour period and based on the fact that the two sources transmit at very
different duty cycles, the overlap of the actual signals would be
approximately 3.2%, or 0.8 hours (assuming that there is only one MFA
sonar ship transmitting). But the possibility of even that overlap must
consider the other factors discussed above.
Based on the fact that an LFA sonar ship would be tens of miles
away from an MFA ship when using active sonar and that the overlap of
the signals would only be about 50 minutes at attenuated levels, as
well as the other information discussed above, the exposure of marine
mammals simultaneously to both MFA and LFA sonars would be limited, and
the impacts would not be expected to result in a detectable increase in
the number or severity of the takes already analyzed and estimated in
this rule.
Comment 8: The MMC recommended that NMFS limit the authorization to
avoid Navy operations within the Marianas Trench Marine National
Monument (MTMNM) to the extent possible. Further, if the Navy must
conduct activities within the Monument, the Service should include in
the final rule and Letter of Authorization a description of the
measures that the Navy will adopt to minimize adverse impacts and to
comply with the intent of the presidential proclamation establishing
the Monument.
Response: The MTMNM was established to protect the submerged lands
and waters of the Mariana Archipelago and was designated with the
purpose of protecting the submerged volcanic areas of the Mariana Ridge
(which include chemosynthetic features and hydrothermal vents), the
coral reef ecosystem of the waters of surrounding islands, and the
Marianas Trench. The Monument includes the submerged lands of the
``Volcano Unit'' and the water column and submerged lands within the
``Island Unit''. The MTMNM contains no areas specifically designated as
important to marine mammal protection in the MTMNM. The presidential
proclamation establishing the Monument indicates that the prohibitions
required by the proclamation shall not apply to activities and
exercises of the Armed Forces, but also indicates the Armed Forces
shall ensure, by the adoption of appropriate measures not impairing
operations or operational capabilities, that its vessels and aircraft
act in a manner consistent, so far as is reasonable and practicable,
with the proclamation.
Pursuant to the MMPA, NMFS makes decisions regarding required
mitigation based on biological information pertaining to the potential
impacts of an activity on marine mammals and their habitat (and the
practicability of the measure), not management designations intended
for the broad protection of various other marine resources. A portion
of the MTMNM overlaps with the MIRC Study Area; however, there are no
areas within this area of special importance to marine mammals for
which restricting sonar use would afford a notable benefit. If training
or exercises occur in this area, the Navy would be required to follow
the general mitigation protocols established in the final rule and LOA.
For example, powering or shutting down sonar when marine mammals are
detected within ranges where the received sound level is likely to
result in temporary threshold shift (TTS) or injury and using exclusion
zones that avoid exposing marine mammals to levels of explosives likely
to result in injury or death of marine mammals. NMFS expects the
mitigation measures employed in the MTMNM will reduce the number of
marine mammals exposed to levels of sound expected to result in TTS or
more severe behavioral responses in these areas.
Comment 9: The NRDC suggests that NMFS should not issue an MMPA
authorization because the information on species densities and
distributions of marine mammals in the Marianas region is inadequate
for NMFS to be able to effectively analyze the environmental impacts,
and that the Navy should have obtained the information before
requesting an MMPA authorization. They further suggest that because of
this lack of information, the NEPA analysis is inadequate both for the
Navy and for NMFS to adopt. They note that there has only been one
comprehensive survey conducted in the area (during one single season)
and that the sea states were high during this survey (making detection
difficult), which, combined with the detection probabilities used,
likely resulted in an underestimate of the density of animals in the
area. They further noted that off-shore data were used to estimate
density across both the inshore and offshore areas, even though there
are often density differences across inshore and offshore areas (some
species are more dense inshore).
Response: Both NMFS and the Navy have a responsibility to use the
best available science to support our analysis and decisions under both
NEPA and the MMPA. In 2007, the Navy funded a baseline survey for the
Mariana Islands (the ``Mariana Islands Sea Turtle and Cetacean Survey''
or MISTCS) to gather data on the distribution and density of marine
mammals and sea turtles. This survey is the first and only systematic
survey to be conducted in the region and not only generated density
estimates, but also added sei whales to the confirmed species in the
area. In this case, the Navy has generated the best available science
and both NMFS and the Navy are using it. The limitations of the data
were acknowledged by the Navy in the MISTCS report, and the Navy plans
to improve upon this information moving forward as more data are
gathered. The sea states in the MIRC are comparatively higher than in
other areas, so scientists will continue to deal with this challenge.
As more surveys are conducted, data will be collected across more
seasons and areas (inshore and offshore), which will allow for the
calculation of more spatially and temporally explicit density
estimates. The collection of additional data will allow scientists to
determine whether the development of MIRC-specific detection
probabilities is appropriate. In the meantime, the density estimates
from the MISTCS surveys are not unexpected and are similar to those for
the Hawaii offshore areas and the eastern tropical Pacific and will
allow NMFS to make reasonable predictions regarding the number of
marine mammals that might be exposed to particular levels of sound.
Regarding the comment that take estimates are likely
underestimates, for comparison we use data collected in Hawaii, where
surveys are more robust. For naval exercises in Hawaii, there are more
survey data, across different seasons, incorporating both inshore and
offshore data, and using specific detection probability factors. The
Navy estimated approximately 28,000 Level B harassment takes for a
total of about 1670 hours of hull-mounted MFAS (the

[[Page 45541]]

most powerful source, which accounts for the vast majority of takes).
In MIRC, the Navy estimated approximately 80,000 Level B harassment
takes to result from the operation of approximately 2320 hours of hull-
mounted MFAS. At a broad level, these estimates (the ratio of the two)
do not suggest the Navy is likely underestimating take in MIRC.
Similarly, below is an overview of the watchstander data collected
during major exercises in Hawaii and MIRC, which, while not a
systematic comparison, broadly suggests the number of animals
encountered in the vicinity of an exercise in MIRC is not much
different than the numbers encountered in Hawaii.
[GRAPHIC] [TIFF OMITTED] TR03AU10.953

Lastly, the animals that watchstanders have detected during
exercises have not exhibited any observable behavioral effects. In
summary, using the density estimates generated from the Navy's survey
and the take estimates modeled by the Navy, NMFS has considered the
best available science. Additionally, taking into consideration other
data/literature related to the likely impacts of MFAS exposure on
marine mammals (see proposed rule) combined with data from the Navy
regarding the number of marine mammal detections and observed behaviors
that have been recorded during other Navy exercises, NMFS has
sufficient information to make the findings required under the MMPA.
Comment 10: The NRDC recommends that to meet its responsibilities
under the MMPA and NEPA, NMFS should require the Navy, as a condition
of any future permit, to sponsor a multiyear survey effort within the
Marianas Islands Range Complex that can serve as a reasonable basis of
both geographic mitigation and improved environmental assessment. NRDC
recommends (1) that NOAA scientists participate in the survey design,
including the design of tracklines and the determination of detection
probabilities; (2) that surveys are conducted consistently and across
multiple seasons, given the presence of migratory species, and for more
than 1 year, given the potential for interannual variability and the
typically high sea states around the Marianas; and (3) that surveys are
designed, at least in part, to aid in identifying areas of importance
to marine mammals (e.g., gathering oceanographic data relevant to
marine mammal distribution). Finally, (4) the survey results should be
integrated into habitat suitability models available for other regions,
such as Hawaii or the Eastern Tropical Pacific (NMFS interprets this to
mean that habitat suitability models from these other areas should be
used in conjunction with MIRC data to predict density in the MIRC).
Response: NMFS agrees with NRDC regarding the importance of
gathering more density, distribution, and abundance data in the MIRC
and has recommended the Navy refocus their Monitoring Plan. In response
to this recommendation, the Navy has modified their draft Monitoring
Plan to focus completely on gathering density and distribution data
that can be used to better inform our analyses of the impacts of the
action as well as to inform decisions regarding the development of
areas of special protection and, further, the Navy has increased the
amount of survey effort that they had committed to in the draft
Monitoring Plan. The Navy has now committed to conduct 45 days of
visual surveys annually (over the 5 years of the rule) using a small
boat and/or airplane around Guam, Tinian, Rota and Saipan. These
surveys will be conducted over both summer and winter and will be
developed in coordination with NMFS scientists and conducted in
cooperation with NMFS and/or DAWR. Visual surveys will integrate
methods such as photo ID which provide data that can be used for
estimating distribution and abundance. Additionally, as already
discussed in the proposed rule, the Navy will deploy four passive
acoustic devices to collect data throughout the years. Lastly, the Navy
has also committed to additional analysis of acoustic data gathered
during the 2007 MISTCS survey that have not yet been analyzed.
Earlier this year, NMFS's Pacific Islands Fisheries Science Center
(PIFSC) and the Navy collaborated to conduct cetacean observations in
conjunction with an oceanographic survey aboard NOAA Research Vessel
Oscar Elton Sette. Coverage was between Honolulu and Guam and within
the Exclusive Economic Zones (EEZs) of Guam and the Commonwealth of the
Northern Marianas between January and May 2010. The goal was to monitor
the presence and distribution of cetaceans on the high seas and within
the Guam/Commonwealth of the Northern Mariana Islands EEZs. PIFSC
performed four data collection projects during the outward bound and
early arrival portion of the survey:
(1) Cetacean visual and acoustic observations during daylight hours
on the high seas survey between Honolulu and Guam, 20 January-4
February.
(2) Cetacean visual and acoustic observations conducted from small
boats chartered in Guam, Rota, Tinian, and/or Saipan, 10 February-4
March.
(3) Cetacean visual observations during daylight hours during an
oceanography survey around Guam and southern CNMI, 18 March-14 April.
(4) Cetacean visual and acoustic observations during daylight hours
on the high seas survey between Guam and Honolulu, 18 April-4 May.
The goal of the vessel-based visual surveys was to monitor cetacean
presence, distribution and diversity in Hawaii, Marianas and the high
seas. These surveys were conducted by experienced marine mammal
observers aboard a capable vessel using established NMFS PIFSC
protocols for conducting and recording sighting data. The observers
recorded marine mammal sightings as well as environmental data
(Beaufort Sea sea state, wind speed/direction, swell height/direction,
visibility, etc.). Digital photographs were taken to assist in species

[[Page 45542]]

identification. In addition to visual sightings, a towed acoustic array
was used to detect animal calls. Using both visual and acoustic methods
provides a more complete assessment for the presence of marine mammals
in the survey area.
The MIRC rule has an adaptive management provision that requires
the Navy and NMFS to review new information (such as monitoring
results) on an annual basis and allows that mitigation or monitoring
measures could be modified, if appropriate. NMFS and the Navy will
consider the results of any required monitoring, as well as the
voluntary 2010 monitoring, in our annual assessment of mitigation and
monitoring measures. Additionally, NOAA has committed to convene a
workshop of marine mammal experts in 2010/2011 to identify cetacean
hotspots (areas of specifically important use or high density) using
both field data and habitat modeling, as appropriate. The data that the
Navy gathers this year in MIRC pursuant to their modified monitoring
plan (see above) will inform the cetacean hotspot workshop. The
workshop results, in turn, could potentially support the need to
designate protected areas in which Navy activities could potentially be
limited, depending on NMFS' analysis of the benefit to the species of
limiting activities in the area, the likely effectiveness of the
measure, and the practicability of implementation. The adaptive
management provisions would allow for the application of these
protected areas, if appropriate.
With respect to using habitat suitability models from other regions
in conjunction with the MIRC data to inform density estimates, while
habitat suitability models can be helpful in predicting marine mammal
presence/density in an area, the less actual information that is
available to inform a model, the less robust the model is likely to
be--especially if one extrapolates from one region to another where
there is not necessarily a basic understanding of the regional
ecological processes in play (e.g., sea surface temperature or salinity
can mean completely different things in different areas). Additionally,
it is very difficult to validate a model in areas with little
information. In short, a model would not necessarily increase the
accuracy of the density estimates in the MIRC area, given the amount of
data that is currently available in the MIRC. That said, the Navy is
exploring (and NMFS supports this exploration) incorporating habitat
modeling into their density estimates, as appropriate, as they develop
the environmental analysis for their training actions moving forward.
Comment 11: NRDC states that within the scientific community, there
is general consensus that protecting important habitat represents the
most effective means currently available to reduce the impacts of mid-
frequency sonar on marine mammals. They further state that
``Nonetheless, no portion of this vast 501,000 nm\2\ range was excluded
by the Pacific Fleet from sonar training, and neither the Navy's DEIS
nor its take application--nor NMFS' Proposed Rule--considers
establishing any protection areas in which sonar training would be
limited or excluded.'' NRDC then recommends that certain protection
areas, in which sonar training should not be conducted, should be
established. Those areas include:
(1) Waters surrounding Saipan and Tinian Islands to the 1000m
isobath (particularly but not exclusively the northwest coast of
Saipan)--for humpback whales.
NRDC notes that the Navy's MISTCS identified waters around Saipan
and Tinian Islands as ``probable'' humpback whale breeding grounds,
based on both acoustic and sighting data. Singing males were detected
acoustically, and social interactions between individuals were detected
visually. Concentrations were especially high around the northwest
coast of Saipan.
They further note that the MISTCS report indicates that whaling
data from the 1700s and 1800s indicate concentrations of humpback
whales around the Northern Mariana Islands and it is likely that the
area around Saipan and Tinian represents a formerly important breeding
ground now being recolonized as the population slowly recovers from
whaling.
(2) West Mariana Ridge--for False killer whale; Short-finned pilot
whales; Mesoplodon spp.; Bryde's whale.
NRDC notes that a chain of conical seamounts (extinct volcanoes)
comprises the West Mariana Ridge, on the far side of the Mariana Basin.
Some seamounts (including the Pathfinder, Arakane, and Suruga Seamounts
between 142[deg]-143[deg]E) rise to summits less than 50m below sea
level (Miller et al. 2008). These seamounts support a rich diversity of
coral reef and continental slope species, and previous surveys have
shown dense concentrations of biological productivity (high planktonic
production, large schools of small and predatory fishes including
skipjack and other species of tuna) (Miller et al. 2008; Tsukomoto
2006). Consistent with this, multiple sightings of several cetacean
species known to prefer high bathymetric relief were made by the MISTCS
on or near the West Mariana Ridge, including two of the survey's three
beaked whale sightings.
(3) Western edge of the Mariana Trench with high bathymetric relief
(roughly 4000-8000m)--for Sei and Bryde's whale; minke whale, and
(4) Western side of the main Mariana Islands to 5000m--for Sperm
whales.
NRDC indicates that the potential for concentrations of species
exists in these areas (3 and 4), but also that systematic analysis is
needed.
Response: NMFS acknowledges protecting important habitat (i.e.,
areas where there is robust evidence animals are predictably gathering
in higher densities, or are known to display important behaviors such
as breeding and calving and could potentially be disrupted by the
proximity of MFAS activities), can be one of the more effective ways to
minimize impacts (both in number and severity) to marine mammals.
The first paragraph of NRDC's comment seems to express surprise
that, despite the importance of habitat protection, no protective areas
have been established in MIRC. Before discussing the specific areas
that NRDC has recommended, NMFS must explain that we do not begin with
the assumption that any particular area contains areas that warrant
special protection for marine mammals. Rather, we analyze the existing
data to determine whether there is suitable evidence indicating that
conditions exist in which the limitation of activity in an area would
afford a notable reduction (either in quantity or potential severity)
in the take of marine mammals. If there is suitable evidence indicating
that a protective measure of this nature is, in fact, warranted, then
we must review the measure in the context of personnel safety,
practicality of implementation, and impact on the effectiveness of the
``military readiness activity'' to determine whether it would result in
the ``least practicable adverse impact.''
Unfortunately, the supporting data do not support the
recommendations that NRDC proposes, specifically:
(1) Waters surrounding Saipan and Tinian Islands to the 1000m
isobaths--During the MISTCS survey, over the course of approximately 2
months, the survey had 11 acoustic detections of singing humpback
whales (primarily to the north and west of Saipan) and sighted one
group of approximately 8 animals. The acoustic detections were of
singing males and the visually detected group was exhibiting behaviors
consistent with a group of males

[[Page 45543]]

competing for females. Although the detected behaviors were consistent
with breeding behaviors, the number of animals observed is too small to
draw a robust conclusion, and also does not seem indicative of the high
density of humpbacks seen in other known breeding/calving areas. By
contrast, in Hawaii (where a protective area was designated for the
Navy), humpback whales and calves concentrate in densities up to 3.6
animals/mile\2\.
(2) West Mariana Ridge--While these sea mounts may be generally
associated with higher productivity, there is not enough evidence to
suggest the area will predictably have a higher density of marine
mammals, or that it is a specifically important feeding area, such that
it is appropriate to limit activities in the area. During MISTCS, only
one false killer whale, 3 short-finned pilot whales, 2 beaked whales,
and 4 Brydes whales were sighted on the Western Mariana Ridge.
For (3) Western Edge of Mariana Trench and (4) Western Side of Main
Mariana Islands, NRDC acknowledges that systematic analysis is needed
before recommending these areas as protected areas, and NMFS concurs
that there is not enough information to support protected areas in
these spots. That said, as noted in NMFS' response to Comment 10, the
Navy has modified their monitoring plan to collect exactly the sort of
density and distribution data that we have noted above is limited in
MIRC. Further, as noted above, the adaptive management provision in
this rule will allow NMFS to use this new information (or other
information, such as that generated from the cetacean hotspot workshop)
to inform modifications to mitigation or monitoring measures, as
appropriate.
Comment 12: NRDC included a copy of their comments on the Navy's
EIS and suggested that some of those comments also pertained to the
MMPA authorization.
Response: NMFS has addressed the issues that apply to our issuance
of the MMPA authorization below:
(1) Additional Mitigation--NRDC recommends a suite of additional
mitigation measures for the Navy to consider to protect various
resources, including marine mammals. NMFS and the Navy have previously
discussed either the specific measures listed in NRDC's comments on the
Navy's EIS, or the general class of mitigation contemplated and have
developed a section for the EIS that discusses the benefits of the
proposed measure to marine mammals, the likely effectiveness of the
measure, and the practicability of the measure for Navy implementation.
Section 5.1.8 (begin page 5-18) of the MIRC EIS, entitled Alternative
Mitigation Measures Considered But Eliminated, explains why these
measures are not included in NMFS MMPA regulations and is hereby
incorporated by reference.
(2) Dr. Bain's Critique of Risk Function--NRDC includes a
comprehensive critique of the risk function that the Navy (and NMFS)
uses to calculate takes. NMFS responded to Dr. Bain's comments in the
Atlantic Fleet Active Sonar Training final rule (74 FR 4865) and hereby
incorporates those comments by reference.
Comment 13: A few commenters expressed general opposition to Navy
activities and NMFS' issuance of an MMPA authorization, because of the
danger to marine mammals, and one suggested a proposed alternative to
MFAS that would be less impactful and involved replacing the current
technology with the use of a transponder.
Response: NMFS appreciates the commenters' concern for the marine
mammals that live in the area of the proposed activities. The MMPA
directs NMFS to issue an incidental take authorization if certain
findings can be made. Under the MMPA, NMFS must make the decision of
whether or not to issue an authorization based on the specified
activity that the applicant submits; the MMPA does not contain a
mechanism for NMFS to question the need for the action that the
applicant has proposed. Similarly, any U.S. citizen (including the
Navy) can request and receive a MMPA authorization as long as all of
the necessary findings can be made. NMFS has determined that the Navy's
MIRC training activities will have a negligible impact on the affected
species or stocks and, therefore, we are issuing the necessary
governing regulations and plan to issue the requested MMPA
authorization.

Estimated Take of Marine Mammals

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

Definition of Harassment

The Definition of Harassment section of the proposed rule contains
the definitions of Level A and Level B Harassment, and a discussion of
which of the previously discussed potential effects of MFAS/HFAS or
explosive detonations fall into the categories of Level A Harassment
(permanent threshold shift (PTS), acoustically mediated bubble growth,
behaviorally mediated bubble growth, and physical disruption of tissues
resulting from explosive shock wave) or Level B Harassment (temporary
threshold shift (TTS), acoustic masking and communication impairment,
and behavioral disturbance rising to the level of harassment). See (74
FR 53795, page 53846). No changes have been made to the discussion
contained in this section of the proposed rule.

Acoustic Take Criteria

In the Acoustic Take Criteria section of the proposed rule, NMFS
described the development and application of the acoustic criteria for
both MFAS/HFAS and explosive detonations (74 FR 53795, pages 53846-
53852). No changes have been made to the discussion contained in this
section of the proposed rule.

Estimates of Potential Marine Mammal Exposure

The proposed rule describes in detail how the Navy estimated the
take that will result from their proposed activities (74 FR 53795,
pages 53836-53837), which entails the following three

[[Page 45544]]

general steps: (1) A propagation model using marine mammal densities
estimates animals exposed to sources at different levels; (2) further
modeling determines number of exposures to levels indicated in criteria
above (i.e., number of takes); and (3) post-modeling corrections refine
estimates to make them more accurate. More information regarding the
models used, the assumptions used in the models, and the process of
estimating take is available in Appendix F of the Navy's DEIS for MIRC.
Table 4 which is identical to the take table (Table 8) in the
proposed rule with a few minor corrections (indicated in italics--
differences of less than 7 Level B harassment, non-TTS, takes in all
cases), indicates the number of takes that were modeled and that are
being authorized yearly incidental to the Navy's activities, with the
following allowances. The Navy has carefully characterized the training
activities planned for the MIRC study area over the 5 years covered by
these regulations; however, evolving real-world needs necessitate
flexibility in annual activities, which in turn is reflected in annual
variation in the potential take of marine mammals. Where it was
mentioned more generally in the proposed rule, NMFS has now included
language bounding this flexibility in the regulatory text (see Sec.
218.102(c)). These potential annual variations were considered in the
negligible impact analysis and the analysis in the proposed rule
remains applicable. The new language indicates the following:
That modeled annual takes (which must be provided with
annual LOA applications) of any individual species may not exceed the
annual amount indicated in the rule (i.e., in Table 4, below) by more
than 25% in any year;
That modeled takes over the course of 5 years will not
ultimately exceed the indicated 5-year total for that species indicated
by the rule (Table 4) by more than 10%; and
That modeled total annual take of all species combined may
vary but will not exceed the combined amount for all species indicated
in the rule (Table 4) by more than 10%.
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Mortality

Evidence from five beaked whale strandings, all of which have taken
place outside the MIRC study area, and have occurred over approximately
a decade, suggests that the exposure of beaked whales to MFAS in the
presence of certain conditions (e.g., multiple units using active
sonar, steep bathymetry, constricted channels, strong surface ducts,
etc.) may result in strandings, potentially leading to mortality.
Although these physical factors believed to have contributed to the
likelihood of beaked whale strandings are not present, in the
aggregate, in the MIRC study area, scientific uncertainty exists
regarding what other factors, or combination of factors, may contribute
to beaked whale strandings. Accordingly, to allow for scientific
uncertainty regarding contributing causes of beaked whale strandings
and the exact behavioral or physiological mechanisms that can lead to
the ultimate physical effects (stranding and/or death), NMFS is
authorizing take, by injury or mortality, of 10 beaked whales over the
course of the 5-year regulations. Although the Navy has requested take
by injury or mortality, the Navy's model did not predict injurious
takes of beaked whales and neither NMFS nor the Navy anticipates that
marine mammal strandings or mortality will result from the operation of
MFAS during Navy exercises within the MIRC study area.

Effects on Marine Mammal Habitat

NMFS' proposed rule includes a section that addresses the effects
of the Navy's activities on Marine Mammal Habitat (74 FR 53795, pages
53855-53857). The analysis preliminarily concluded that the Navy's
activities would have minimal effects on marine mammal habitat. No
changes have been made to the discussion contained in this section of
the proposed rule and NMFS has concluded there would be minimal effects
on marine mammal habitat.

Analysis and Negligible Impact Determination

Pursuant to NMFS' regulations implementing the MMPA, an applicant
is required to estimate the number of animals that will be ``taken'' by
the specified activities (i.e., takes by Level B harassment only, Level
A harassment, 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: pink-
footed geese (Anser brachyrhynchus) in undisturbed habitat gained body
mass and had about a 46-percent reproductive success compared with
geese in disturbed habitat (being consistently scared off the fields on
which they were foraging), which did not gain mass and had 17-percent
reproductive success). A negligible impact finding is based on the lack
of likely adverse effects on annual rates of recruitment or survival
(i.e., population-level effects). An estimate of the number of Level B
harassment takes, alone, is not enough information on which to base an
impact determination. In addition to considering estimates of the
number of marine mammals that might be ``taken'' through behavioral
harassment, NMFS must consider other factors, such as the likely nature
of any responses (their intensity, duration, etc.), the context of any
responses (critical reproductive time or location, migration, etc.), as
well as the number and nature of estimated Level A harassment takes,
the number of estimated mortalities, and effects on habitat. Generally
speaking, and especially with other factors being equal, the Navy and
NMFS anticipate more severe effects from takes resulting from exposure
to higher received levels (though this is in no way a strictly linear
relationship throughout species, individuals, or circumstances) and
less severe effects from takes resulting from exposure to lower
received levels.
In the Analysis and Negligible Impact Determination section of the
proposed rule, NMFS addressed the issues identified in the preceding
paragraph in combination with additional detailed analysis regarding
the severity of the anticipated effects, and including species (or
group)-specific discussions, to determine that Navy training will have
a negligible impact on the marine mammal species and stocks present in
MIRC study area. No changes have been made to the discussion contained
in this section of the proposed rule (74 FR 33828, pages 33884-33892),
with the following exception.
As mentioned previously in the Estimated Take section, to allow for
more flexibility in operations, NMFS has added language bounding the
flexibility in annual variation of potential take of individual marine
mammal species into the regulatory text (see Sec. 218.102(c)). The new
language indicates that modeled annual takes (which must be provided
with annual LOA application) of any individual species may vary but
will not ultimately exceed the indicated 5-year total for that species
(indicated by Table 6) by more than 10% and will not exceed the
indicated annual total by more than 25% in any given year; and that
modeled total yearly take of all species combined may vary but will not
exceed the combined amount indicated below in any given year by more
than 10%. NMFS has considered these limitations in our negligible
impact determination and the findings described in the proposed rule
remain applicable.

Determination

Negligible Impact

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

Subsistence Harvest of Marine Mammals

There is no subsistence harvest of marine mammals in the Mariana
Islands and, therefore, NMFS has determined that the issuance of 5-year
regulations and subsequent LOAs for Navy training exercises in the MIRC
would not have an unmitigable adverse impact on the availability of the
affected species or stocks for subsistence use.

ESA

There are five marine mammal species and two sea turtle species
that are listed as endangered under the ESA with confirmed or possible
occurrence in the study area: Humpback whale, sei whale, fin whale,
blue whale, sperm whale, hawksbill sea turtle and leatherback sea
turtle. An additional three species of sea turtles are also listed as
threatened under the ESA: green sea turtle, loggerhead sea turtle, and
olive ridley sea turtle.
Pursuant to Section 7 of the ESA, the Navy has consulted with NMFS
on this action. NMFS has also consulted internally on the issuance of
regulations

[[Page 45547]]

under section 101(a)(5)(A) of the MMPA for this activity. In a
Biological Opinion (BiOp), NMFS concluded that the Navy's activities in
the MIRC and NMFS' issuance of these regulations are not likely to
jeopardize the continued existence of threatened or endangered species
or destroy or adversely modify any designated critical habitat.
Because of the difference between the statutes, it is possible that
ESA analysis of the applicant's action could produce a take estimate
that is different than the takes requested by the applicant (and
analyzed for authorization by NMFS under the MMPA process), despite the
fact that the same proposed action (i.e. number of sonar hours and
explosive detonations) was being analyzed under each statute. When this
occurs, NMFS staff coordinate to ensure that the most appropriate
number of takes are authorized. For the Navy's proposed MIRC training,
coordination with the Endangered Species Division indicates that they
will likely allow for a lower level of take of ESA-listed marine
mammals than were requested by the applicant (because their analysis
indicates that fewer will be taken than estimated by the applicant).
Therefore, the number of authorized takes in NMFS' LOA(s) will reflect
the lower take numbers from the ESA consultation, though the specified
activities (i.e., number of sonar hours, etc.) will remain the same.
Alternately, these regulations indicate the maximum number of takes
that may be authorized under the MMPA.
The ITS(s) issued for each LOA will contain implementing terms and
conditions to minimize the effect of the marine mammal take authorized
through the 2010 LOA (and subsequent LOAs in 2011, 2012, 2013, and
2014). With respect to listed marine mammals, the terms and conditions
of the ITSs will be incorporated into the LOAs.

NEPA

NMFS has participated as a cooperating agency on the Navy's Draft
Environmental Impact Statement (DEIS) for MIRC, which was published on
January 30, 2009. NMFS subsequently adopted the Navy's EIS for the
purpose of complying with the MMPA.

Classification

This action does not contain any collection of information
requirements for purposes of the Paperwork Reduction Act.
The Office of Management and Budget has determined that this final
rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
final rule, if adopted, would not have a significant economic impact on
a substantial number of small entities. The Regulatory Flexibility Act
requires Federal agencies to prepare an analysis of a rule's impact on
small entities whenever the agency is required to publish a notice of
proposed rulemaking. However, a Federal agency may certify, pursuant to
5 U.S.C. 605 (b), that the action will not have a significant economic
impact on a substantial number of small entities. Because the action
described in this rule involves the tactical use of mid-frequency
active sonar sources and explosives on Navy ranges, and the Navy is the
sole entity that may conduct these activities on the MIRC, only the
Navy will be directly affected by this rulemaking, not small
governmental jurisdictions, small organizations, or small businesses,
as defined by the Regulatory Flexibility Act (RFA). Any requirements
imposed by a Letter of Authorization issued pursuant to these
regulations, and any monitoring or reporting requirements imposed by
these regulations, will be applicable only to the Navy. NMFS does not
expect the issuance of these regulations or the associated LOAs to
result in any impacts to small entities pursuant to the RFA. Because
this action, if adopted, would directly affect the Navy and not a small
entity, NMFS concludes the action would not result in a significant
economic impact on a substantial number of small entities.
The Assistant Administrator for Fisheries has determined that there
is good cause under the Administrative Procedure Act (5 U.S.C.
553(d)(3)) to waive the 30-day delay in the effective date of the
measures contained in the final rule. Navy, as the permittee, has
informed NMFS that any delay of enacting the final rule would result in
either: (1) A suspension of ongoing or planned naval training
(including a major exercise currently scheduled for 2010 within the
MIRC), which would disrupt vital training essential to national
security; or (2) the Navy's procedural non-compliance with the MMPA
(should the Navy conduct training/exercises without an LOA), thereby
resulting in the potential for unauthorized takes of marine mammals.
Moreover, the Navy is ready to implement the rule immediately.
Accordingly, these measures will become effective upon publication.

List of Subjects in 50 CFR Part 218

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

Dated: July 20, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

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

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

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

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

Subparts D through K [Reserved]

0
2. Add and reserve Subparts D through K to part 218.
0
3. Subpart L is added to part 218 to read as follows:
Subpart L--Taking and Importing Marine Mammals; U.S. Navy's Mariana
Islands Range Complex (MIRC)
Sec.
218.100 Specified activity and geographical area.
218.101 Effective dates.
218.102 Permissible methods of taking.
218.103 Prohibitions.
218.104 Mitigation.
218.105 Requirements for monitoring and reporting.
218.106 Applications for Letters of Authorization.
218.107 Letters of Authorization.
218.108 Renewal of Letters of Authorization and adaptive management.
218.109 Modifications to Letters of Authorization.

Subpart L--Taking and Importing Marine Mammals; U.S. Navy's Mariana
Islands Training Range Complex (MIRC)

Sec. 218.100 Specified activity and specified geographical area.

(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occur incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy may be authorized in a
Letter of Authorization (LOA) if it occurs within the Mariana Islands
Range Complex (MIRC) Study Area (as

[[Page 45548]]

depicted in Figure 1-1 in the Navy's application for MIRC), which is
bounded by a pentagon with the following five corners:
16[deg]46'29.3376'' N. lat., 138[deg]00'59.835'' E. long.;
20[deg]02'24.8094'' N. lat., 140[deg]10'13.8642'' E. long.;
20[deg]3'27.5538'' N. lat., 149[deg]17'41.0388'' E. long.;
7[deg]0'30.0702'' N. lat., 149[deg]16'14.8542'' E. long; and
6[deg]59'24.633'' N. lat, 138[deg]1'29.7228'' E. long.
(c) The taking of marine mammals by the Navy may be authorized in
an LOA if it occurs incidental to the following activities within the
designated amounts of use:
(1) The use of the following mid-frequency active sonar (MFAS) and
high frequency active sonar (HFAS) sources for U.S. Navy anti-submarine
warfare (ASW) training, maintenance, and research, development, testing
and evaluation (RDT&E):
(i) AN/SQS-53 (hull-mounted active sonar)--up to 10865 hours over
the course of 5 years (an average of 2173 hours per year);
(ii) AN/SQS-56 (hull-mounted active sonar)-up to 705 hours over the
course of 5 years (an average of 141 hours per year);
(iii) AN/SSQ-62 (Directional Command Activated Sonobuoy System
(DICASS) sonobuoys)-up to 8270 sonobuoys over the course of 5 years (an
average of 1654 sonobuoys per year);
(iv) AN/AQS-22 (helicopter dipping sonar)--up to 2,960 dips over
the course of 5 years (an average of 592 dips per year);
(v) AN/BQQ-10 (submarine hull-mounted sonar)--up to 60 hours over
the course of 5 years (an average of 12 hours per year);
(vi) MK-48, MK-46, or MK-54 (torpedoes)--up to 200 torpedoes over
the course of 5 years (an average of 40 torpedoes per year);
(vii) AN/SSQ-110 (IEER)--up to 530 buoys deployed over the course
of 5 years (an average of 106 per year);
(viii) AN/SSQ-125 (AEER)--up to 530 buoys deployed over the course
of 5 years (an average of 106 per year);
(ix) Range Pingers--up to 1,400 hours over the course of 5 years
(an average of 280 hours per year); and
(x) PUTR Transponder--up to 1,400 hours over the course of 5 years
(an average of 280 hours per year).
(2) The detonation of the underwater explosives indicated in this
paragraph (c)(2)(i) conducted as part of the training events indicated
in this paragraph (c)(2)(ii):
(i) Underwater Explosives (Net Explosive Weight (NEW)):
(A) 5'' Naval Gunfire (9.5 lbs NEW);
(B) 76 mm rounds (1.6 lbs NEW);
(C) Maverick (78.5 lbs NEW);
(D) Harpoon (448 lbs NEW);
(E) MK-82 (238 lbs NEW);
(F) MK-83 (574 lbs NEW);
(G) MK-84 (945 lbs NEW);
(H) MK-48 (851 lbs NEW);
(I) Demolition Charges (10 lbs NEW);
(J) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs NEW);
(K) Hellfire (16.5 lbs NEW);
(L) GBU 38/32/31.
(ii) Training Events:
(A) Gunnery Exercises (S-S GUNEX)--up to 60 exercises over the
course of 5 years (an average of 12 per year);
(B) Bombing Exercises (BOMBEX)--up to 20 exercises over the course
of 5 years (an average of 4 per year);
(C) Sinking Exercises (SINKEX)--up to 10 exercises over the course
of 5 years (an average of 2 per year);
(D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 530 deployments over the course of 5 years (an
average of 106 per year);
(E) Demolitions--up to 250 over the course of 5 years (an average
of 50 per year); and
(F) Missile exercises (A-S MISSILEX)--up to 10 exercises over the
course of 5 years (an average of 2 per year).
(d) The taking of marine mammals may also be authorized in an LOA
for the activities and sources listed in Sec. 218.100(c) should the
amounts (i.e., hours, dips, number of exercises) vary from those
estimated in Sec. 218.100(c), provided that the variation does not
result in exceeding the amount of take indicated in Sec. 218.102.

Sec. 218.101 Effective dates.

Regulations are effective August 3, 2010 through August 3, 2015.

Sec. 218.102 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 218.107 of this chapter, the Holder of the Letter of
Authorization (hereinafter ``Navy'') may incidentally, but not
intentionally, take marine mammals within the area described in Sec.
218.100(b), provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
Letter of Authorization.
(b) The activities identified in Sec. 218.100(c) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 218.100(c) is limited to the species listed in this
paragraph (4), (5), and (6) of this section (c) by the indicated method
of take and the indicated number of times (estimated based on the
authorized amounts of sound source operation), but with the following
allowances for annual variation in activities:
(1) In any given year, annual take, by harassment, of any species
of marine mammal may not exceed the amount identified in paragraphs
(b)(4) and (b)(5) of this section, for that species by more than 25% (a
post-calculation/estimation of which must be provided in the annual LOA
application);
(2) In any given year, annual take by harassment of all marine
mammal species combined may not exceed the estimated total of all
species combined, indicated in paragraphs (b)(4) and (b)(5) of this
section, by more than 10%; and
(3) Over the course of the effective period of this subpart, total
take, by harassment, of any species may not exceed the 5-year amounts
indicated in paragraphs (b)(4) and (b)(5) of this section by more than
10%. A running calculation/estimation of takes of each species over the
course of the years covered by the rule must be maintained.
(4) Level B Harassment:
(i) Mysticetes:
(A) Humpback whale (Megaptera novaeangliae)--4,025 (an average of
805 annually);
(B) Fin whale (Balaenoptera physalus)--910 (an average of 182
annually);
(C) Blue whale (Balaenoptera musculus)--650 (an average of 130
annually);
(D) Sei whale (Balaenoptera borealis)--1,625 (an average of 325
annually);
(E) Minke whale (Balaenoptera acutorostrata)--2,225 (an average of
445 annually);
(F) Bryde's whale (Balaenoptera edeni)--2,285 (an average of 457
annually); and
(G) Unidentified Baleanopterid whales--360 (an average of 72
annually).
(ii) Odontocetes:
(A) Sperm whales (Physeter macrocephalus)--4,120 (an average of 824
annually);
(B) Killer whale (Orcinus orca)- 1,150 (an average of 230
annually);
(C) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--
33,530 (an average of 6,706 annually);
(D) Blainville's beaked whales (Mesoplodon densirostris);--3,850
(an average of 770 annually);
(E) Cuvier's beaked whales (Ziphius cavirostris)--18,140 (an
average of 3,628 annually);

[[Page 45549]]

(F) Ginkgo-toothed beaked whales (Mesoplodon ginkgodens)--2,150 (an
average of 430 annually);
(G) Longman's beaked whale (Indopacetus pacificus)--1,030 (an
average of 206 annually);
(H) Short-finned pilot whale (Globicephala macrorynchus)--11,370
(an average of 2,274 annually);
(I) Melon-headed whale (Peponocephala electra)--14,315 (an average
of 2,863 annually);
(J) Pygmy killer whale (Feresa attenuata)--800 (an average of 160
annually);
(K) False killer whale (Pseudorca crassidens)--6,445 (an average of
1,289 annually);
(L) Striped dolphin (Stenella coeruleoalba)--44,290 (an average of
8,858 annually);
(M) Short-beaked common dolphin (Delphinus delphis)--4,715 (an
average of 943 annually);
(N) Risso's dolphin (Grampus griseus)--33,865 (an average of 6,773
annually);
(O) Bottlenose dolphin (Tursiops truncates)--855 (an average of 171
annually);
(P) Fraser's dolphin (Lagenodelphis hosei)--23,075 (an average of
4,615 annually);
(Q) Pantropical spotted dolphin (Stenella attenuata)--162,495 (an
average of 32,499 annually);
(R) Rough-toothed dolphin (Steno bredanensis)--1,205 (an average of
241 annually);
(S) Spinner dolphin (Stenella longirostris)--10,720 (an average of
2,144 annually); and
(T) Unidentified delphinid--7,690 (an average of 1,538 annually).
(5) Level A Harassment:
(i) Sperm whale--5 (an average of 1 annually);
(ii) Pantropical spotted dolphin--5 (an average of 1 annually);
(6) Level A Harassment and/or mortality of no more than 10 beaked
whales (total), of any of the species listed in Sec.
218.102(c)(4)(ii)(D) through (G) over the course of the 5-year
regulations.

Sec. 218.103 Prohibitions.

No person in connection with the activities described in Sec.
218.100 may:
(a) Take any marine mammal not specified in Sec. 218.102(c);
(b) Take any marine mammal specified in Sec. 218.102(c) other than
by incidental take as specified in Sec. Sec. 218.102(c)(1) and (c)(2);
(c) Take a marine mammal specified in Sec. 218.102(c) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. Sec. 216.106 and 218.107 of this chapter.

Sec. 218.104 Mitigation.

(a) When conducting training and utilizing the sound sources or
explosives identified in Sec. 218.100(c), the mitigation measures
contained in a Letter of Authorization issued under Sec. Sec. 216.106
and 218.107 of this chapter must be implemented. These mitigation
measures include, but are not limited to:
(1) Personnel Training:
(i) All commanding officers (COs), executive officers (XOs),
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare
(MIW) helicopter crews shall complete the NMFS-approved Marine Species
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital
versatile disk (DVD). All bridge lookouts shall complete both parts one
and two of the MSAT; part two is optional for other personnel.
(ii) Navy lookouts shall undertake extensive training in order to
qualify as a watchstander in accordance with the Lookout Training
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
(iii) Lookout training shall include on-the-job instruction under
the supervision of a qualified, experienced lookout. Following
successful completion of this supervised training period, lookouts
shall complete the Personal Qualification Standard Program, certifying
that they have demonstrated the necessary skills (such as detection and
reporting of partially submerged objects). Personnel being trained as
lookouts can be counted among required lookouts as long as supervisors
monitor their progress and performance.
(iv) Lookouts shall be trained in the most effective means to
ensure quick and effective communication within the command structure
in order to facilitate implementation of protective measures if marine
species are spotted.
(v) All lookouts onboard platforms involved in ASW training events
will review the NMFS-approved Marine Species Awareness Training
material prior to use of MFAS.
(vi) All COs, XOs, and officers standing watch on the bridge will
review the Marine Species Awareness Training material prior to a
training event employing the use of MFAS/HFAS.
(2) General Operating Procedures (for all training types):
(i) Prior to major exercises, a Letter of Instruction, Mitigation
Measures Message or Environmental Annex to the Operational Order shall
be issued to further disseminate the personnel training requirement and
general marine species protective measures.
(ii) COs shall make use of marine species detection cues and
information to limit interaction with marine mammals to the maximum
extent possible consistent with safety of the ship.
(iii) While underway, surface vessels shall have at least two
lookouts with binoculars; surfaced submarines shall have at least one
lookout with binoculars. Lookouts already posted for safety of
navigation and man-overboard precautions may be used to fill this
requirement. As part of their regular duties, lookouts will watch for
and report to the OOD the presence of marine mammals.
(iv) On surface vessels equipped with a multi-function active
sensor, pedestal mounted ``Big Eye'' (20x110) binoculars shall be
properly installed and in good working order to assist in the detection
of marine mammals in the vicinity of the vessel.
(v) Personnel on lookout shall employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
(vi) After sunset and prior to sunrise, lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook
(NAVEDTRA 12968-D).
(vii) While in transit, naval vessels shall be alert at all times,
use extreme caution, and proceed at a ``safe speed'', which means the
speed at which the CO can maintain crew safety and effectiveness of
current operational directives, so that the vessel can take action to
avoid a collision with any marine mammal.
(viii) When marine mammals have been sighted in the area, Navy
vessels shall increase vigilance and take all reasonable actions to
avoid collisions and close interaction of naval assets and marine
mammals. Such action may include changing speed and/or direction and
are dictated by environmental and other conditions (e.g., safety,
weather).
(ix) Navy aircraft participating in exercises at-sea shall conduct
and maintain surveillance for marine mammals as long as it does not
violate safety constraints or interfere with the accomplishment of
primary operational duties.
(x) All marine mammal detections shall be immediately reported to
assigned Aircraft Control Unit for

[[Page 45550]]

further dissemination to ships in the vicinity of the marine species as
appropriate when it is reasonable to conclude that the course of the
ship will likely result in a closing of the distance to the detected
marine mammal.
(xi) Naval vessels will maneuver to keep at least 1,500 ft (500
yds) away from any observed whale in the vessel's path and avoid
approaching whales head-on. These requirements do not apply if a
vessel's safety is threatened, such as when change of course will
create an imminent and serious threat to a person, vessel, or aircraft,
and to the extent vessels are restricted in their ability to maneuver.
Restricted maneuverability includes, but is not limited to, situations
when 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.
(3) Operating Procedures (for Anti-submarine Warfare (ASW)
Operations):
(i) On the bridge of surface ships, there shall always be at least
three people on watch whose duties include observing the water surface
around the vessel.
(ii) All surface ships participating in ASW training events shall
have, in addition to the three personnel on watch noted in (i), at
least two additional personnel on watch as lookouts at all times during
the exercise.
(iii) Personnel on lookout and officers on watch on the bridge will
have at least one set of binoculars available for each person to aid in
the detection of marine mammals.
(iv) Personnel on lookout shall be responsible for reporting all
objects or anomalies sighted in the water (regardless of the distance
from the vessel) to the Officer of the Deck, since any object or
disturbance (e.g., trash, periscope, surface disturbance,
discoloration) in the water may be indicative of a threat to the vessel
and its crew or indicative of a marine mammal that may need to be
avoided.
(v) All personnel engaged in passive acoustic sonar operation
(including aircraft, surface ships, or submarines) shall monitor for
marine mammal vocalizations and report the detection of any marine
mammal to the appropriate watch station for dissemination and
appropriate action.
(vi) During MFAS operations, personnel shall utilize all available
sensor and optical systems (such as night vision goggles) to aid in the
detection of marine mammals.
(vii) Aircraft with deployed sonobuoys shall use only the passive
capability of sonobuoys when marine mammals are detected within 200 yds
(183 m) of the sonobuoy.
(viii) Helicopters shall observe/survey the vicinity of an ASW
exercise for 10 minutes before the first deployment of active (dipping)
sonar in the water.
(ix) Helicopters shall not dip their sonar within 200 yards of a
marine mammal and shall cease pinging if a marine mammal closes within
200 yards after pinging has begun.
(x)(A) Safety Zones--When marine mammals are detected by any means
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure
that sonar transmission levels are limited to at least 6 dB below
normal operating levels if any detected marine mammals are within 1000
yards (914 m) of the sonar dome (the bow) (i.e., limit to at most 229
dB for AN/SQS-53 and 219 dB for AN/SQS-56, etc.). Ships and submarines
shall continue to limit maximum transmission levels by this 6-dB factor
until the animal has been seen to leave the 1000-yd safety zone, has
not been detected for 30 minutes, or the vessel has transited more than
2,000 yds (1829 m) beyond the location of the last detection.
(B) When marine mammals are detected by any means (aircraft,
shipboard lookout, or acoustically) the Navy shall ensure that sonar
transmission levels are limited to at least 10 dB below normal
operating levels if any detected marine mammals are within 500 yards
(457 m) of the sonar dome (the bow). Ships and submarines shall
continue to limit maximum ping levels by this 10-dB factor until the
animal has been seen to leave the 500-yd safety zone, has not been
detected for 30 minutes, or the vessel has transited more than 2,000
yds (1829 m) beyond the location of the last detection.
(C) When marine mammals are detected by any means (aircraft,
shipboard lookout, or acoustically) the Navy shall ensure that sonar
transmission ceases if any detected marine mammals are within 200 yards
(183 m) of the sonar dome (the bow). Sonar shall not resume until the
animal has been seen to leave the 200-yd safety zone, has not been
detected for 30 minutes, or the vessel has transited more than 2,000
yds (457 m) beyond the location of the last detection.
(D) Special conditions applicable for dolphins and porpoises only:
If, after conducting an initial maneuver to avoid close quarters with
dolphins or porpoises, the OOD concludes that dolphins or porpoises are
deliberately closing to ride the vessel's bow wave, no further
mitigation actions are necessary while the dolphins or porpoises
continue to exhibit bow wave riding behavior.
(xi) Prior to start up or restart of active sonar, operators will
check that the 1000-m Safety Zone radius around the sound source is
clear of marine mammals.
(xii) Active sonar levels (generally)--Navy shall operate active
sonar at the lowest practicable level, not to exceed 235 dB, except as
required to meet tactical training objectives.
(xiii) Submarine sonar operators will review detection indicators
of close-aboard marine mammals prior to the commencement of ASW
training events involving MFAS.
(E) If the need for power-down should arise (as detailed in
218.114(a)(3)(x)) when the Navy is operating a hull-mounted or sub-
mounted source above 235 dB (infrequent), the Navy shall follow the
requirements as though they were operating at 235 dB--the normal
operating level (i.e., the first power-down will be to 229 dB,
regardless of at what level above 235 dB active sonar was being
operated).
(4) Operating Procedures for Underwater Detonations (up to 10-lb
charges):
(i) Exclusion Zones--All demolitions and ship mine countermeasures
training exercises involving the use of explosive charges must include
exclusion zones for marine mammals to prevent physical and/or acoustic
effects to those species. These exclusion zones shall extend in a 700-
yard arc radius around the detonation site. Should a marine mammal be
present within the the surveillance area, the explosive event shall not
be started until the animal leaves the area.
(ii) Pre-Exercise Surveys--For Demolition and Ship Mine
Countermeasures Operations, pre-exercise surveys shall be conducted for
30 minutes prior to the commencement of the scheduled explosive event.
The survey may be conducted from the surface, by divers, and/or from
the air, and personnel shall be alert to the presence of any marine
mammal. Should such an animal be present within the survey area, the
explosive event shall not be started until the animal voluntarily
leaves the area. The

[[Page 45551]]

Navy will ensure the area is clear of marine mammals for a full 30
minutes prior to initiating the explosive event. Personnel will record
any marine mammal observations during the exercise as well as measures
taken if species are detected within the exclusion zone.
(iii) Post-Exercise Surveys--Surveys within the same exclusion zone
radius shall also be conducted within 30 minutes after the completion
of the explosive event.
(iv) Reporting--If there is evidence that a marine mammal may have
been stranded, injured or killed by the action, Navy training
activities shall be immediately suspended and the situation immediately
reported by the participating unit to the Officer in Charge of the
Exercise (OCE), who will follow Navy procedures for reporting the
incident to Commander, Pacific Fleet, Commander, Navy Region Marianas,
Environmental Director, and the chain-of-command. The situation shall
also be reported to NMFS (see Stranding Plan for details).
(5) Sinking Exercise:
(i) All weapons firing shall be conducted during the period 1 hour
after official sunrise to 30 minutes before official sunset.
(ii) An exclusion zone with a radius of 1.0 nm (1.9 km) will be
established around each target. An additional buffer of 0.5 nm (0.9 km)
will be added to account for errors, target drift, and animal
movements. Additionally, a safety zone, which will extend beyond the
buffer zone by an additional 0.5 nm (0.9 km), shall be surveyed.
Together, the zone extends out 2 nm (3.7 km) from the target.
(iii) A series of surveillance over-flights shall be conducted
within the 2-nm zone around the target, prior to and during the
exercise, when feasible. Survey protocol shall be as follows:
(A) Overflights within the 2-nm zone around the target shall be
conducted in a manner that optimizes the surface area of the water
observed. This may be accomplished through the use of the Navy's Search
and Rescue Tactical Aid, which provides the best search altitude,
ground speed, and track spacing for the discovery of small, possibly
dark objects in the water based on the environmental conditions of the
day. These environmental conditions include the angle of sun
inclination, amount of daylight, cloud cover, visibility, and sea
state.
(B) All visual surveillance activities shall be conducted by Navy
personnel trained in visual surveillance. At least one member of the
mitigation team will have completed the Navy's marine mammal training
program for lookouts.
(C) In addition to the overflights, the 2-nm zone around the target
shall be monitored by passive acoustic means, when assets are
available. This passive acoustic monitoring would be maintained
throughout the exercise. Additionally, passive sonar onboard submarines
may be utilized to detect any vocalizing marine mammals in the area.
The OCE will be informed of any aural detection of marine mammals and
will include this information in the determination of when it is safe
to commence the exercise.
(D) On each day of the exercise, aerial surveillance of the 2-nm
zone around the target shall commence 2 hours prior to the first
firing.
(E) The results of all visual, aerial, and acoustic searches shall
be reported immediately to the OCE. No weapons launches or firing may
commence until the OCE declares this 2-nm zone around the target is
free of marine mammals.
(F) If a marine mammal is observed within the 2-nm zone around the
target, firing will be delayed until the animal is re-sighted outside
the 2-nm zone around the target, or 30 minutes have elapsed. After 30
minutes, if the animal has not been re-sighted it can be assumed to
have left the 2-nm zone around the target. The OCE will determine if
the marine mammal is in danger of being adversely affected by
commencement of the exercise.
(G) During breaks in the exercise of 30 minutes or more, the 2-nm
zone around the target shall again be surveyed for any marine mammal.
If marine mammals are sighted within the 2-nm zone around the target,
the OCE shall be notified, and the procedures described in this section
shall be followed.
(H) Upon sinking of the vessel, a final surveillance of the 2-nm
zone around the target shall be monitored for 2 hours, or until sunset,
to verify that no marine mammals were harmed.
(iv) Aerial surveillance shall be conducted using helicopters or
other aircraft based on necessity and availability. The Navy has
several types of aircraft capable of performing this task; however, not
all types are available for every exercise. For each exercise, the
available asset best suited for identifying objects on and near the
surface of the ocean shall be used. These aircraft shall be capable of
flying at the slow safe speeds necessary to enable viewing of marine
vertebrates with unobstructed, or minimally obstructed, downward and
outward visibility. The exclusion and safety zone surveys may be
cancelled in the event that a mechanical problem, emergency search and
rescue, or other similar and unexpected event preempts the use of one
of the aircraft onsite for the exercise.
(v) Every attempt shall be made to conduct the exercise in sea
states that are ideal for marine mammal sighting, Beaufort Sea State 3
or less. In the event of a 4 or above, survey efforts shall be
increased within the 2-nm zone around the target. This shall be
accomplished through the use of an additional aircraft, if available,
and conducting tight search patterns.
(vi) The exercise shall not be conducted unless the 2-nm zone
around the target could be adequately monitored visually. Should low
cloud cover or surface visibility prevent adequate visual monitoring as
described previously, the exercise would be delayed until conditions
improved, and all of the above monitoring criteria could be met.
(vii) In the event that any marine mammals are observed to be
harmed in the area, a detailed description of the animal shall be
taken, the location noted, and if possible, photos taken of the marine
mammal. This information shall be provided to NMFS via the Navy's
regional environmental coordinator for purposes of identification (see
the Stranding Plan for detail).
(viii) An after action report detailing the exercise's time line,
the time the surveys commenced and terminated, amount, and types of all
ordnance expended, and the results of survey efforts for each event
shall be submitted to NMFS.
(6) Surface-to-Surface Gunnery (up to 5-inch Explosive Rounds):
(i) For exercises using targets towed by a vessel, target-towing
vessels shall maintain a trained lookout for marine mammals when
feasible. If a marine mammal is sighted in the vicinity, the tow vessel
will immediately notify the firing vessel, which will suspend the
exercise until the area is clear.
(ii) A 600 yard (585 m) radius buffer zone will be established
around the intended target.
(iii) From the intended firing position, trained lookouts will
survey the buffer zone for marine mammals prior to commencement and
during the exercise as long as practicable. Due to the distance between
the firing position and the buffer zone, lookouts are only expected to
visually detect breaching whales, whale blows, and large pods of
dolphins and porpoises.
(iv) The exercise will be conducted only when the buffer zone is
visible and marine mammals are not detected within it.

[[Page 45552]]

(7) Surface-to-Surface Gunnery (non-explosive rounds):
(i) A 200-yd (183 m) radius buffer zone shall be established around
the intended target.
(ii) From the intended firing position, trained lookouts shall
survey the buffer zone for marine mammals prior to commencement and
during the exercise as long as practicable.
(iii) If available, target towing vessels shall maintain a lookout
(unmanned towing vessels will not have a lookout available). If a
marine mammal is sighted in the vicinity of the exercise, the tow
vessel shall immediately notify the firing vessel in order to secure
gunnery firing until the area is clear.
(iv) The exercise shall be conducted only when the buffer zone is
visible and marine mammals are not detected within the target area and
the buffer zone.
(8) Surface-to-Air Gunnery (Explosive and Non-explosive Rounds):
(i) Vessels will orient the geometry of gunnery exercises in order
to prevent debris from falling in the area of sighted marine mammals.
(ii) Vessels will attempt to recover any parachute deploying aerial
targets to the extent practicable (and their parachutes if feasible) to
reduce the potential for entanglement of marine mammals.
(iii) Target towing aircraft shall maintain a lookout if feasible.
If a marine mammal is sighted in the vicinity of the exercise, the tow
aircraft will immediately notify the firing vessel in order to secure
gunnery firing until the area is clear.
(9) Air-to-Surface Gunnery (Explosive and Non-explosive Rounds):
(i) A 200 yard (183 m) radius buffer zone will be established
around the intended target.
(ii) If surface vessels are involved, lookout(s) will visually
survey the buffer zone for marine mammals to and during the exercise.
(iii) Aerial surveillance of the buffer zone for marine mammals
will be conducted prior to commencement of the exercise. Aerial
surveillance altitude of 500 feet to 1,500 feet (152-456 m) is optimum.
Aircraft crew/pilot will maintain visual watch during exercises.
Release of ordnance through cloud cover is prohibited; aircraft must be
able to actually see ordnance impact areas.
(iv) The exercise will be conducted only if marine mammals are not
visible within the buffer zone.
(10) Small Arms Training (Grenades, Explosive and Non-explosive
Rounds)--Lookouts will visually survey for marine mammals. Weapons will
not be fired in the direction of known or observed marine mammals.
(11) Air-to-Surface At-sea Bombing Exercises (explosive bombs and
rockets):
(i) If surface vessels are involved, trained lookouts shall survey
for marine mammals. Ordnance shall not be targeted to impact within
1,000 yds (914 m) of known or observed marine mammals.
(ii) A 1,000 yd (914 m) radius buffer zone shall be established
around the intended target.
(iii) Aircraft shall visually survey the target and buffer zone for
marine mammals prior to and during the exercise. The survey of the
impact area shall be made by flying at 1,500 ft (152 m) or lower, if
safe to do so, and at the slowest safe speed. When safety or other
considerations require the release of weapons without the releasing
pilot having visual sight of the target area, a second aircraft, the
``wingman,'' will clear the target area and perform the clearance and
observation functions required before the dropping plane may release
its weapons. Both planes must have direct communication to assure
immediate notification to the dropping plane that the target area may
have been fouled by encroaching animals or people. The clearing
aircraft will assure it has visual site of the target area at a maximum
height of 1500 ft. The clearing plane will remain within visual sight
of the target until required to clear the area for safety reasons.
Survey aircraft shall employ most effective search tactics and
capabilities.
(iv) The exercise will be conducted only if marine mammals are not
visible within the buffer zone.
(12) Air-to-Surface At-Sea Bombing Exercises (Non-explosive Bombs
and Rockets):
(i) If surface vessels are involved, trained lookouts will survey
for marine mammals. Ordnance shall not be targeted to impact within
1,000 yards (914 m) of known or observed or marine mammals.
(ii) A 1,000 yard (914 m) radius buffer zone will be established
around the intended target.
(iii) Aircraft will visually survey the target and buffer zone for
marine mammals prior to and during the exercise. The survey of the
impact area will be made by flying at 1,500 feet (456 m) or lower, if
safe to do so, and at the slowest safe speed. When safety or other
considerations require the release of weapons without the releasing
pilot having visual sight of the target area, a second aircraft, the
``wingman,'' will clear the target area and perform the clearance and
observation functions required before the dropping plane may release
its weapons. Both planes must have direct communication to assure
immediate notification to the dropping plane that the target area may
have been fouled by encroaching animals or people. The clearing
aircraft will assure it has visual site of the target area at a maximum
height of 1500 ft. The clearing plane will remain within visual sight
of the target until required to clear the area for safety reasons.
Survey aircraft shall employ most effective search tactics and
capabilities.
(iv) The exercise will be conducted only if marine mammals and are
not visible within the buffer zone.
(13) Air-to-Surface Missile Exercises (explosive and non-
explosive):
(i) Aircraft will visually survey the target area for marine
mammals. Visual inspection of the target area will be made by flying at
1,500 (457 m) feet or lower, if safe to do so, and at slowest safe
speed. Firing or range clearance aircraft must be able to actually see
ordnance impact areas.
(ii) Explosive ordnance shall not be targeted to impact within
1,800 yds (1646 m) of sighted marine mammals.
(14) Aircraft Training Activities Involving Non-Explosive Devices:
An exclusion zone of 200 yds around the target location, therefore,
shall be clear of marine mammals. Pre- and post-surveillance and
reporting requirements outlined for underwater detonations shall be
implemented during Mining Training Activities.
(15) Extended Echo Ranging/Improved Extended Echo Ranging and
Advanced Extended Echo-ranging (EER/IEER/AEER)--The following
mitigation measures shall be used with the employment of IEER/AEER
sonobuoys:
(i) Crews shall conduct visual reconnaissance of the drop area
prior to laying their intended sonobuoy pattern. This search shall be
conducted at an altitude below 500 yd (457 m) at a slow speed, if
operationally feasible and weather conditions permit. In dual aircraft
operations, crews are allowed to conduct coordinated area clearances.
(ii) For IEER (AN/SSQ-110A), crews shall conduct a minimum of 30
minutes of visual and aural monitoring of the search area prior to
commanding the first post detonation. This 30-minute observation period
may include pattern deployment time.
(iii) For any part of the intended sonobuoy pattern where a post
(source/receiver sonobuoy pair) will be deployed within 1,000 yd (914
m) of observed marine mammal activity, the Navy shall deploy the
receiver ONLY (i.e., not the source) and monitor while conducting a
visual search. When marine mammals are no longer detected within 1,000
yd (914 m) of the intended

[[Page 45553]]

post position, the source sonobuoy (AN/SSQ-110A/SSQ-125) will be co-
located with the receiver.
(iv) When operationally feasible, Navy crews shall conduct
continuous visual and aural monitoring of marine mammal activity. This
shall include monitoring of own-aircraft sensors from the time of the
first sensor placement until the aircraft have left the area and are
out of RF range of these sensors.
(v) Aural Detection. If the presence of marine mammals is detected
aurally, then that shall cue the Navy aircrew to increase the diligence
of their visual surveillance. Subsequently, if no marine mammals are
visually detected, then the crew may continue multi-static active
search.
(vi) Visual Detection. If marine mammals are visually detected
within 1,000 yd (914 m) of the explosive source sonobuoy (AN/SSQ-110A/
SSQ-125) intended for use, then that payload shall not be activated.
Aircrews may utilize this post once the marine mammals have not been
re-sighted for 30 minutes, or are observed to have moved outside the
1,000 yd (914 m) safety buffer. Aircrews may shift their multi-static
active search to another post, where marine mammals are outside the
1,000 yd (914 m) safety buffer.
(vii) For IEER (AN/SSQ-110A), aircrews shall make every attempt to
manually detonate the unexploded charges at each post in the pattern
prior to departing the operations area by using the ``Payload 1
Release'' command followed by the ``Payload 2 Release'' command.
Aircrews shall refrain from using the ``Scuttle'' command when two
payloads remain at a given post. Aircrews shall ensure that a 1,000 yd
(914 m) safety buffer, visually clear of marine mammals, is maintained
around each post as is done during active search operations.
(viii) Aircrews shall only leave posts with unexploded charges in
the event of a sonobuoy malfunction, an aircraft system malfunction, or
when an aircraft must immediately depart the area due to issues such as
fuel constraints, inclement weather, and in-flight emergencies. In
these cases, the sonobuoy will self-scuttle using the secondary or
tertiary method.
(ix) The Navy shall ensure all payloads are accounted for.
Explosive source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall
be reported as unexploded ordnance via voice communications while
airborne, then upon landing via naval message.
(x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
(16) The Navy shall implement the ``Stranding Response Plan for
Major Navy Training Exercises in the MIRC'' (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), which is incorporated
herein by reference, including the following measures:
(i) Shutdown Procedures. When an Uncommon Stranding Event (USE--
defined in Sec. 216.271) occurs during a Major Training Exercise (MTE)
(as defined in the Stranding Plan, meaning including Multi-strike group
exercises, Joint Expeditionary exercises, and Marine Air Ground Task
Force exercises in the MIRC), the Navy shall implement the procedures
described in this section.
(A) The Navy shall implement a Shutdown (as defined in the
Stranding Response Plan for MIRC) when advised by a NMFS Office of
Protected Resources Headquarters Senior Official designated in the MIRC
Stranding Communication Protocol that a USE (as defined in the
Stranding Response Plan for MIRC) involving live animals has been
identified and that at least one live animal is located in the water.
NMFS and Navy shall communicate, as needed, regarding the
identification of the USE and the potential need to implement shutdown
procedures.
(B) Any shutdown in a given area shall remain in effect in that
area until NMFS advises the Navy that the subject(s) of the USE at that
area die or are euthanized, or that all live animals involved in the
USE at that area have left the area (either of their own volition or
herded).
(C) If the Navy finds an injured or dead marine mammal floating at
sea during an MTE, the Navy shall notify NMFS immediately or as soon as
operational security considerations allow. The Navy shall provide NMFS
with species or description of the animal(s), the condition of the
animal(s) including carcass condition if the animal(s) is/are dead,
location, time of first discovery, observed behaviors (if alive), and
photo or video of the animals (if available). Based on the information
provided, NMFS shall determine if, and advise the Navy whether, a
modified shutdown is appropriate on a case-by-case basis.
(D) In the event, following a USE, that: (a) Qualified individuals
are attempting to herd animals back out to the open ocean and animals
are not willing to leave, or (b) animals are seen repeatedly heading
for the open ocean but turning back to shore, NMFS and the Navy shall
coordinate (including an investigation of other potential anthropogenic
stressors in the area) to determine if the proximity of MFAS/HFAS
activities or explosive detonations, though farther than 14 nm from the
distressed animal(s), is likely decreasing the likelihood that the
animals return to the open water. If so, NMFS and the Navy shall
further coordinate to determine what measures are necessary to further
minimize that likelihood and implement those measures as appropriate.
(ii) Within 72 hours of NMFS notifying the Navy of the presence of
a USE, the Navy shall provide available information to NMFS (per the
MIRC Communication Protocol) regarding the location, number and types
of acoustic/explosive sources, direction and speed of units using MFAS/
HFAS, and marine mammal sightings information associated with training
activities occurring within 80 nm (148 km) and 72 hours prior to the
USE event. Information not initially available regarding the 80 nm (148
km), 72 hours, period prior to the event shall be provided as soon as
it becomes available. The Navy shall provide NMFS investigative teams
with additional relevant unclassified information as requested, if
available.
(b) [Reserved]

Sec. 218.105 Requirements for monitoring and reporting.

(a) General Notification of Injured or Dead Marine Mammals. Navy
personnel shall ensure that NMFS is notified immediately ((see
Communication Plan) or as soon as clearance procedures allow) if an
injured, stranded, or dead marine mammal is found during or shortly
after, and in the vicinity of, any Navy training exercise utilizing
MFAS, HFAS, or underwater explosive detonations. The Navy will provide
NMFS with the name of 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 of the animal(s) (if available). In the
event that an injured, stranded, or dead marine mammal is found by the
Navy that is not in the vicinity of, or during or shortly after, MFAS,
HFAS, or underwater explosive detonations, the Navy will report the
same information as listed above as soon as operationally feasible and
clearance procedures allow.
(b) General Notification of Ship Strike. In the event of a ship
strike by any Navy vessel, at any time or place, the Navy shall do the
following:
(1) Immediately report to NMFS the species identification (if
known), location (lat/long) of the animal (or the strike if the animal
has disappeared),

[[Page 45554]]

and whether the animal is alive or dead, or whether its status is
unknown.
(2) Report to NMFS as soon as operationally feasible the size and
length of animal, an estimate of the injury status (ex., dead, injured
but alive, injured and moving, unknown, etc.), vessel class/type and
operational status.
(3) Report to NMFS the vessel length, speed, and heading as soon as
feasible.
(4) Provide NMFS a photo or video of the animal(s), if equipment is
available.
(c) The Navy must conduct all monitoring and/or research required
under the Letter of Authorization, including abiding by the annual MIRC
Monitoring Plan. (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications)
(d) Report on Monitoring required in paragraph (c) of this section.
The Navy shall submit a report annually describing the implementation
and results of the monitoring required in paragraph (c) of this
section. Required submission date will be identified each year in the
LOA. Navy will standardize data collection methods across ranges to
allow for comparison in different geographic locations.
(e) Sonar Exercise Notification. The Navy shall submit to the NMFS
Office of Protected Resources (specific contact information to be
provided in LOA) either an electronic (preferably) or verbal report
within fifteen calendar days after the completion of any Major Training
Exercise for Reporting (MTER) indicating:
(1) Location of the exercise;
(2) Beginning and end dates of the exercise; and
(3) Type of exercise.
(f) Annual MIRC Report. The Navy will submit an Annual Exercise
MIRC Report every year. This report shall contain the subsections and
information indicated below.
(1) MFAS/HFAS Major Training Exercises--This section shall contain
the following information for the following Coordinated and Strike
Group exercises, which for simplicity will be referred to as MTERs:
Joint Multi-strike Group Exercises; Joint Expeditionary Exercises; and
Marine Air Ground Task Force MIRC:
(i) Exercise Information (for each MTER):
(A) Exercise designator;
(B) Date that exercise began and ended;
(C) Location;
(D) Number and types of active sources used in the exercise;
(E) Number and types of passive acoustic sources used in exercise;
(F) Number and types of vessels, aircraft, etc., participating in
exercise;
(G) Total hours of observation by watchstanders;
(H) Total hours of all active sonar source operation;
(I) Total hours of each active sonar source (along with explanation
of how hours are calculated for sources typically quantified in
alternate way (buoys, torpedoes, etc.)); and
(J) Wave height (high, low, and average during exercise).
(ii) Individual marine mammal sighting info (for each sighting in
each MTER):
(A) Location of sighting;
(B) Species (if not possible--indication of whale/dolphin/
pinniped);
(C) Number of individuals;
(D) Calves observed (y/n);
(E) Initial Detection Sensor;
(F) Indication of specific type of platform observation made from
(including, for example, what type of surface vessel, i.e., FFG, DDG,
or CG);
(G) Length of time observers maintained visual contact with marine
mammal(s);
(H) Wave height (in feet);
(I) Visibility;
(J) Sonar source in use (y/n);
(K) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000
yd, 1,000-2,000 yd, or >2,000 yd from sonar source in paragraph
(f)(1)(i)(J) of this section;
(L) Mitigation Implementation. Whether operation of sonar sensor
was delayed, or sonar was powered or shut down, and how long the delay
was;
(M) If source in use in paragraph (f)(1)(i)(J) is hullmounted, true
bearing of animal from ship, true direction of ship's travel, and
estimation of animal's motion relative to ship (opening, closing,
parallel); and
(N) Observed behavior. Watchstanders shall describe, in plain
language and without trying to categorize in any way, the observed
behavior of the animals (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming, etc.).
(iii) An evaluation (based on data gathered during all of the
MTERs) of the effectiveness of mitigation measures designed to avoid
exposing marine mammals to MFAS. This evaluation shall identify the
specific observations that support any conclusions the Navy reaches
about the effectiveness of the mitigation.
(2) ASW Summary. This section shall include the following
information as summarized from non-major training exercises (unit-level
exercises, such as TRACKEXs):
(i) Total Hours. Total annual hours of each type of sonar source
(along with explanation of how hours are calculated for sources
typically quantified in alternate way (buoys, torpedoes, etc.));
(ii) Cumulative Impacts. To the extent practicable, the Navy, in
coordination with NMFS, shall develop and implement a method of
annually reporting non-major training (i.e., ULT) utilizing hull-
mounted sonar. The report shall present an annual (and seasonal, where
practicable) depiction of non-major training exercises geographically
across MIRC. The Navy shall include (in the MIRC annual report) a brief
annual progress update on the status of the development of an effective
and unclassified method to report this information until an agreed-upon
(with NMFS) method has been developed and implemented.
(3) Sinking Exercises (SINKEXs). This section shall include the
following information for each SINKEX completed that year:
(i) Exercise info:
(A) Location;
(B) Date and time exercise began and ended;
(C) Total hours of observation by watchstanders before, during, and
after exercise;
(D) Total number and types of rounds expended/explosives detonated;
(E) Number and types of passive acoustic sources used in exercise;
(F) Total hours of passive acoustic search time;
(G) Number and types of vessels, aircraft, etc., participating in
exercise;
(H) Wave height in feet (high, low and average during exercise);
and
(I) Narrative description of sensors and platforms utilized for
marine mammal detection and timeline illustrating how marine mammal
detection was conducted.
(ii) Individual marine mammal observation during SINKEX (by Navy
lookouts) information:
(A) Location of sighting;
(B) Species (if not possible--indication of whale/dolphin/
pinniped);
(C) Number of individuals;
(D) Calves observed (y/n);
(E) Initial detection sensor;
(F) Length of time observers maintained visual contact with marine
mammal;
(G) Wave height;
(H) Visibility;
(I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
(J) Distance of marine mammal from actual detonations (or target
spot if not yet detonated)--use four categories to define distance:
(1) The modeled injury threshold radius for the largest explosive
used in that exercise type in that OPAREA (TBD m for SINKEX in MIRC);

[[Page 45555]]

(2) The required exclusion zone (1 nm for SINKEX in MIRC);
(3) The required observation distance (if different than the
exclusion zone (2 nm for SINKEX in MIRC); and
(4) Greater than the required observed distance. For example, in
this case, the observer shall indicate if < TBD m, from 426 m-1 nm,
from 1 nm-2 nm, and >2 nm.
(K) Observed behavior--Watchstanders will describe, in plain
language and without trying to categorize in any way, the observed
behavior of the animals (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming etc.),
including speed and direction.
(L) Resulting mitigation implementation--Indicate whether explosive
detonations were delayed, ceased, modified, or not modified due to
marine mammal presence and for how long.
(M) If observation occurs while explosives are detonating in the
water, indicate munitions type in use at time of marine mammal
detection.
(4) Improved Extended Echo-Ranging System (IEER)/Advanced Extended
Echo-Ranging (AEER) Summary:
(i) Total number of IEER and AEER events conducted in MIRC;
(ii) Total expended/detonated rounds (buoys); and
(iii) Total number of self-scuttled IEER rounds.
(5) Explosives Summary. The Navy is in the process of improving the
methods used to track explosive use to provide increased granularity.
To the extent practicable, the Navy shall provide the information
described below for all of their explosive exercises. Until the Navy is
able to report in full the information below, they will provide an
annual update on the Navy's explosive tracking methods, including
improvements from the previous year.
(i) Total annual number of each type of explosive exercise (of
those identified as part of the ``activity'' in this Subpart) conducted
in MIRC; and
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.)
for each explosive type.
(g) MIRC 5-year Comprehensive Report. The Navy shall submit to NMFS
a draft report that analyzes and summarizes all of the multi-year
marine mammal information gathered during ASW and explosive exercises
for which annual reports are required (Annual MIRC Exercise Reports and
MIRC Monitoring Plan Reports). This report will be submitted at the end
of the fourth year of the rule (November 2014), covering activities
that have occurred through July 15, 2014.
(h) Comprehensive National ASW Report. By June, 2014, the Navy
shall submit a draft National Report that analyzes, compares, and
summarizes the active sonar data gathered (through January 1, 2014)
from the watchstanders and pursuant to the implementation of the
Monitoring Plans for the Northwest Training Range Complex, the Southern
California Range Complex, the Atlantic Fleet Active Sonar Training, the
Hawaii Range Complex, the Mariana Islands Range Complex, and the Gulf
of Alaska.
(i) The Navy shall comply with the 2009 Integrated Comprehensive
Monitoring Program (ICMP) Plan and continue to improve the program in
consultation with NMFS. Changes and improvements to the program made
during 2010 (as prescribed in the 2009 ICMP and deemed appropriate by
the Navy and NMFS) will be described in an updated 2010 ICMP and
submitted to NMFS by October 31, 2010, for review. An updated 2010 ICMP
will be finalized by December 31, 2010.

Sec. 218.106 Applications for Letters of Authorization.

To incidentally take marine mammals pursuant to these regulations,
the U.S. Citizen (as defined by Sec. 216.103) conducting the activity
identified in Sec. 218.100(c) (i.e., the Navy) must apply for and
obtain either an initial Letter of Authorization in accordance with
Sec. 218.107 or a renewal under Sec. 218.108.

Sec. 218.107 Letters of Authorization.

(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 218.108.
(b) Each Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization shall be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).

Sec. 218.108 Renewal of Letters of Authorization and adaptive
management.

(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
218.107 of this chapter for the activity identified in Sec. 218.100(c)
will be renewed annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 218.206 will be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12 months;
(2) Receipt of the monitoring reports and notifications within the
timeframes indicated in the previous LOA; and
(3) A determination by NMFS that the mitigation, monitoring and
reporting measures required under Sec. 218.104 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 218.107 of this
chapter, were undertaken and will be undertaken during the upcoming
annual period of validity of a renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 218.208 indicates that a substantial
modification, as determined by NMFS, to the described work, mitigation
or monitoring undertaken during the upcoming season will occur, NMFS
will provide the public a period of 30 days for review and comment on
the request.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
(d) Adaptive Management. NMFS may modify or augment the existing
mitigation or monitoring measures (after consulting with the Navy
regarding the practicability of the modifications) if doing so creates
a reasonable likelihood of more effectively accomplishing the goals of
mitigation and monitoring set forth in the preamble of these
regulations. Below are some of the possible sources of new data that
could contribute to the decision to modify the mitigation or monitoring
measures:
(1) Results from the Navy's monitoring from the previous year
(either from the MIRC Study Area or other locations).
(2) Findings of the Monitoring Workshop that the Navy will convene
in 2011.
(3) Compiled results of Navy funded research and development (R&D)
studies (presented pursuant to the Integrated Comprehensive Monitoring
Plan).
(4) Results from specific stranding investigations (either from the
MIRC Study Area or other locations, and involving coincident MFAS/HFAS
or explosives training or not involving coincident use).

[[Page 45556]]

(5) Results from the Long Term Prospective Study described in the
preamble to these regulations.
(6) Results from general marine mammal and sound research.
(7) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not anticipated by these
regulations or subsequent Letters of Authorization.

Sec. 218.109 Modifications to Letters of Authorization.

(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106
and 218.107 of this chapter and subject to the provisions of this
subpart, shall be made until after notification and an opportunity for
public comment has been provided. For purposes of this paragraph, a
renewal of a Letter of Authorization under Sec. 218.108 without
modification (except for the period of validity) is not considered a
substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 218.100(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 218.107 of this
chapter may be substantively modified without prior notification and an
opportunity for public comment. Notification will be published in the
Federal Register within 30 days subsequent to the action.

[FR Doc. 2010-18222 Filed 8-2-10; 8:45 am]
BILLING CODE 3510-22-P