Federal Register, Volume 76 Issue 70 (Tuesday, April 12, 2011)

[Federal Register Volume 76, Number 70 (Tuesday, April 12, 2011)]
[Rules and Regulations]
[Pages 20257-20278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8573]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AX11

Taking and Importing Marine Mammals; U.S. Navy's Research,
Development, Test, and Evaluation Activities Within the Naval Sea
Systems Command Naval Undersea Warfare Center Keyport Range Complex

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

ACTION: Final rule.

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

SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing
regulations to govern the unintentional taking of marine mammals
incidental to activities conducted at the Naval Sea Systems Command
(NAVSEA) Naval Undersea Warfare Center (NUWC) Keyport Range Complex for
the period of April 2011 through April 2016. The Navy's activities are
considered military readiness activities pursuant to the Marine Mammal
Protection Act (MMPA), as amended by the National Defense Authorization
Act for Fiscal Year 2004 (NDAA). These regulations, which allow for the
issuance of ``Letters of Authorization'' (LOAs) for the incidental take
of marine mammals during the described activities and specified
timeframes, prescribe the permissible methods of taking and other means
of effecting the least practicable adverse impact on marine mammal
species and their habitat, as well as requirements pertaining to the
monitoring and reporting of such taking.

DATES: Effective April 11, 2011 through April 11, 2016.

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

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

SUPPLEMENTARY INFORMATION: Extensive Supplementary Information was
provided in the proposed rule for this activity, which was published in
the Federal Register on Tuesday, July 7, 2009 (74 FR 32264). This
information will not be reprinted here in its entirety; rather, all
sections from the proposed rule will be represented herein and will
contain either a summary of the material presented in the proposed rule
or a note referencing the page(s) in the proposed rule where the
information may be found. Any information that has changed since the
proposed rule was published will be addressed herein. Additionally,
this final rule contains a section that responds to the comments
received during the public comment period.

Background

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

Summary of Request

On May 15, 2008, NMFS received an application from the Navy
requesting authorization for the take of 5 species of marine mammals
incidental to the RDT&E activities within the NAVSEA NUWC Keyport Range
Complex Extension over the course of 5 years. These RDT&E activities
are classified as military readiness activities. On April 29, 2009,
NMFS received additional information and clarification on the Navy's
proposed NAVSEA NUWC Keyport Range Complex Extension RDT&E activities.
The Navy states that these RDT&E activities may cause various impacts
to marine mammal species in the proposed action area. The Navy requests
an authorization to take individuals of these marine mammals by Level B
Harassment. Please refer to Tables 6-23, 6-24, 6-25, and 6-26 of the
Navy's Letter of Authorization (LOA) application for detailed
information of the potential marine mammal exposures from the RDT&E
activities in the Keyport Range Complex Extension per year. However,
due to the proposed mitigation and monitoring measures and standard
range operating procedures in place, NMFS estimates that the take of
marine mammals is likely to be lower than the amount requested. NMFS
does not expect any marine mammals to be killed or injured as a result
of the Navy's proposed activities, and NMFS is not proposing to
authorize any injury or mortality incidental to the Navy's proposed
RDT&E activities within the Keyport Range Complex Extension.

Background of Navy Request

The proposed rule contains a description of the Navy's mission,
their responsibilities pursuant to Title 10 of the United States Code,
and the specific purpose and need for the activities for which they
requested incidental take authorization. The description

[[Page 20258]]

contained in the proposed rule has not changed (74 FR 32264; July 7,
2009; pages 32264-32265).

Description of the Specified Activities

The proposed rule contains a complete description of the Navy's
specified activities that are covered by these final regulations, and
for which the associated incidental take of marine mammals will be
authorized in the related LOAs. The proposed rule describes the nature
and levels of the RDT&E activities and the proposed range extension.
These RDT&E activities consist of testing that involves active acoustic
devices such as general range tracking, unmanned undersea vehicle (UUV)
tracking systems, torpedo sonars, range targets and special tests,
special sonars, sonobuoys and helicopter dipping sonar, side scan
sonar, and other acoustic sources (acoustic modem, target simulators,
navigation aids, sub-bottom profilers, and vessel engines, etc.); and
testing that involves non-acoustic activities such as magnetic,
oceanographic sensor, laser imaging detection and ranging, and inert
mine hunting and inert mine clearing exercises. Since NMFS does not
believe that those range activities involving non-acoustic testing will
have adverse impacts to marine mammals, they were not analyzed further
and will not be covered under this rule.
The proposed regulations were drafted in such a way that the Navy's
specified actions were strictly defined by the amounts of each type of
sound source utilized (e.g., hours of source use) over the course of
the 5-year regulations. Following the issuance of the proposed rule,
the Navy realized that their evolving RDT&E programs necessitate
greater flexibility in both the types and amounts of sound sources that
they use.
The Navy regularly modifies or develops new technology, often in
the way of sound sources that are similar to, but not exactly the same
as, other sources. In this final rule, we increase flexibility by
inserting language into Sec. 218.170(c) that will allow for
authorization of take incidental to the previously identified specified
activities and sources or to ``similar activities and sources,''
provided that the implementation of these changes in annual LOAs does
not result in exceeding the incidental take analyzed and identified in
the final rules.
Regarding amounts of sound source use, the proposed regulations
only allowed for the authorization of take incidental to a 5-yr maximum
amount of use for each specific sound source, even though in most cases
our effects analyses do not differentiate the impacts from the majority
of the different types of sources. Specifically, although some sonar
sources are louder or put more acoustic energy into the water in a
given amount of time, which results in more marine mammal takes, we do
not differentiate between the individual takes that result from one
source versus another. In this final rule, we increase flexibility by
including language in Sec. 218.170(c)(2) that allows for inter-annual
variability in the amount of source use identified in each annual LOA
(i.e., one year the Navy could use a lot of one source, and little of
another, and the next year those amounts could be reversed), provided
it does not result in exceeding the incidental take analyzed and
identified in the final rules. These technical regulatory modifications
do not change the analyses conducted in the proposed rule.
No other changes have been made in this section from the proposed
rule (74 FR 32264; July 7, 2009; pages 32265-32268). Tables 1 through 4
summarize the projected days of use by range site, primary acoustic
sources commonly used within the NAVSEA NUWC Keyport Range Complex and
their operating hours, and the proposed annual range activities and
operations, respectively.

Table 1--Projected Annual Days of Use by Range Site
----------------------------------------------------------------------------------------------------------------
Keyport range QUTR site-- QUTR site-- surf
site DBRC site offshore zone
----------------------------------------------------------------------------------------------------------------
Current................................. 55 200 14 0
Proposed................................ 60 200 16 30
----------------------------------------------------------------------------------------------------------------

Table 2--Primary Acoustic Sources Commonly Used Within the NAVSEA NUWC Keyport Range Complex and Their Annual Operating Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Keyport site DBRC site QUTR site All sites total
Source Frequency Max. source level (dB re 1 operating hours/ operating hours/ operating hours/ operating hours/
(kHz) [mu]Pa @ 1 m) yr yr yr yr
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sonar
--------------------------------------------------------------------------------------------------------------------------------------------------------
General range tracking................. 10-100 195 (at Keyport Site); 203 108.90 95.00 300.60 504.50
(at DBRC & QUTR Sites).
UUV Payloads........................... 10-100 195....................... 42.00 100.00 24.00 166.00
Torpedoes.............................. 10-100 233....................... 1.00 17.50 2.50 21.00
Range targets and special tests........ 5-100 195 (at Keyport Site);.... 1.33 6.67 1.00 9.00
238 (at DBRC & QUTR Sites)
Special sonars (non-Navy, shore/pier 2-2,500 225-235................... 105.00 120.00 96.00 321.00
static testing, diver activities) &
Fleet Aircraft (active sonobuoys &
dipping sonars).
Side-scan.............................. 100-700 235....................... 42.00 100.00 24.00 166.00

[[Page 20259]]

Other Acoustic Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acoustic modems........................ 10-300 210....................... 41.00 100.00 24.00 166.00
Sub-bottom profiler.................... 2-7 210....................... 80.00 80.00 32.00 192.00
35-45 220....................... ................ ................ ................ ................
Target simulator (surface vessels, 0.05--10 170....................... 1.33 20.00 2.99 24.33
submarines, torpedoes, and UUV engine
noise).
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 3--Proposed Annual Range Activities and Operations
----------------------------------------------------------------------------------------------------------------
Proposed number of activities/year*
--------------------------------------
Range activity Platform/system used Keyport
range site DBRC site QUTR site
----------------------------------------------------------------------------------------------------------------
Test Vehicle Propulsion............ Thermal propulsion systems.......... 5 130 30
Electric/Chemical propulsion systems 55 140 30
----------------------------------------------------------------------------------------------------------------
Submarine testing................... 0 45 15
Inert mine detection, classification 5 20 10
and localization.
Non-Navy testing.................... 5 5 5
Other Testing Systems and Acoustic & non-acoustic sensors 20 10 5
Activities. (magnetic array, oxygen).
Countermeasure test................. 5 50 5
Impact testing...................... 0 10 5
Static in-water testing............. 10 10 6
UUV test............................ 45 120 40
Unmanned Aerial System (UAS) test... 0 2 2
----------------------------------------------------------------------------------------------------------------
Fleet Activities** (excluding Surface Ship activities............. 1 10 10
RDT&E).
Aircraft activities................. 0 10 10
Submarine activities................ 0 30 30
Diver activities.................... 45 5 15
----------------------------------------------------------------------------------------------------------------
Deployment Systems (RDT&E)......... Range support vessels: ........... ........... ...........
Surface launch craft............... 35 180 30
Special purpose barges............. 25 75 0
Fleet vessels***.................... 15 20 20
Aircraft (rotary and fixed wing).... 0 10 20
Shore and pier...................... 45 30 30
----------------------------------------------------------------------------------------------------------------
* There may be several activities in 1 day. These numbers provide an estimate of types of range activities over
the year.
** Fleet activities in the NAVSEA NUWC Keyport Range Complex do not include the use of surface ship and
submarine hull-mounted active sonars.
*** As previously noted, Fleet vessels can include very small craft such as SEAL Delivery Vehicles.

Description of Marine Mammals in the Area of the Specified Activities

The information on marine mammals and their distribution and
density are based on data gathered from NMFS, United States Fish and
Wildlife Service (USFWS) and recent references, literature searches of
search engines, peer review journals, and other technical reports, to
provide a regional context for each species. The data were compiled
from available sighting records, literature, satellite tracking, and
stranding and by-catch data.
A total of 24 cetacean species and subspecies and 4 pinniped
species are known to occur in Washington State waters; however, several
are seen only rarely. Seven of these marine mammal species are listed
as Federally-endangered under the Endangered Species Act (ESA) occur or
have the potential to occur in the proposed action area: Blue whale
(Balaenoptera musculus), fin whale (B. physalus), Sei whale (B.
borealis), humpback whale (Megaptera novaengliae), north Pacific right
whale (Eubalaena japonica), sperm whale (Physeter macrocephalus), and
the southern resident population of killer whales (Orcinus orca). The
species, Steller sea lion (Eumetopias jubatus), is listed as threatened
under the ESA. 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 32264; July 7, 2009; pages 32268-32273). Lists of
marine mammal species known to occur or potentially occur within the
Keyport, DBRC, and QUTR sites are shown in Tables 4, 5, and 6,
respectively.

[[Page 20260]]

Table 4--Marine Mammal Known To Occur or Potentially Occur Within the Keyport Action Area
----------------------------------------------------------------------------------------------------------------
Density estimate (km\3\)
Species ESA/MMPA status Occurrence in keyport -------------------------------
action area Warm Season Cold Season
----------------------------------------------------------------------------------------------------------------
Cetacean
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
Minke whale...................... -/-................ Very rare, year round... \(a)\ 0 \(a)\ 0
Humpback whale................... E/D................ Very rare, warm season; \(a)\ 0 \(a)\ 0
has never been recorded
in action area.
Gray whale....................... -/-................ Very rare, migrant and \(a)\ 0 \(a)\ 0
summer/fall resident
population in primarily
northern Puget Sound.
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Killer whale:....................
Transient.................... -/-................ Very rare, year round; \(a)\ 0 \(a)\ 0
has never been recorded
in action area.
S. Resident.................. E, CH/D............ Very rare, summer/fall \(a)\ 0 \(a)\ 0
season; has never been
recorded in action
area..
Dall's porpoise.................. -/-................ Rare, year round........ \(a)\ 0 \(a)\ 0
----------------------------------------------------------------------------------------------------------------
Pinnipeds
----------------------------------------------------------------------------------------------------------------
Harbor seal...................... -/-................ Common year-round 0.55 0.55
resident.
California sea lion.............. -/-................ Rare, cold season....... \(a)\ 0 \(a)\ 0
Steller sea lion................. T/D................ Rare, cold season; has \(a)\ 0 \(a)\ 0
never been recorded in
action area.
----------------------------------------------------------------------------------------------------------------
Notes: D = Depleted, E = Endangered, CH = Critical Habitat, T = Threatened.
Warm season = May-October, Cold season = November-April.
abundant = the species is expected to be encountered during a single visit to the area and the number of
individuals encountered during an average visit may be as many as hundreds or more; common = the species is
expected to be encountered once or more during 2-3 visits to the area and the number of individuals
encountered during an average visit is unlikely to be more than a few 10s; uncommon = the species is expected
to be encountered at most a few times a year; rare = the species is not expected to be encountered more than
once in several years; very rare = not expected to be encountered more than once in 10 years.
\(a)\ Density estimates for these species were calculated for Puget Sound as a whole, but these species have
never been recorded or observed in the action area. Thus the densities for the action area are shown as ``0''
to reflect this.

Table 5--Marine Mammal Known To Occur or Potentially Occur Within the DBRC Action Area
----------------------------------------------------------------------------------------------------------------
Density estimate (km\3\)
Species ESA/MMPA status Occurrence in -------------------------------------------
keyport action area Warm Season Cold Season
----------------------------------------------------------------------------------------------------------------
Cetacean
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
Minke whale.................. -/-............ Very rare, year \(a)\ 0............. \(a)\ 0
round; has never
been recorded in
action area.
Humpback whale............... E/D............ Very rare, warm \(a)\ 0............. \(a)\ 0
season; has never
been recorded in
action area.
Gray whale................... -/-............ Very rare, spring/ \(a)\ 0............. \(a)\ 0
fall migrant and
summer/fall
resident population
in primarily
northern Puget
Sound.
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Killer whale
Transient.................... -/-............ Uncommon, spring/ Jan-Jun: 0.038...... Jul-Dec: 0
summer.
S. Resident.............. E/D............ Very rare, no \(a)\ 0............. \(a)\ 0
recorded occurrence
in Hood Canal.
Dall's porpoise.............. -/-............ Very rare, year 0................... 0
round.
----------------------------------------------------------------------------------------------------------------
Pinnipeds
----------------------------------------------------------------------------------------------------------------
Harbor seal.................. -/-............ Common year-round 1.31................ 1.31
resident.
California sea lion.......... -/-............ Common resident and \(a)\ 0............. 0.052
seasonal migrant.
Steller sea lion............. T/D............ Very rare, cold \(a)\ 0............. \(a)\ 0
season; has never
been recorded in
action area.
----------------------------------------------------------------------------------------------------------------
Notes: D = Depleted, E = Endangered, CH = Critical Habitat, T = Threatened.
Warm season = May-October, Cold season = November-April.

[[Page 20261]]

abundant = the species is expected to be encountered during a single visit to the area and the number of
individuals encountered during an average visit may be as many as hundreds or more; common = the species is
expected to be encountered once or more during 2-3 visits to the area and the number of individuals
encountered during an average visit is unlikely to be more than a few 10s; uncommon = the species is expected
to be encountered at most a few times a year; rare = the species is not expected to be encountered more than
once in several years; very rare = not expected to be encountered more than once in 10 years.
\(a)\ These species have never been recorded or observed in the action area. Thus the densities for the action
area are shown as ``0'' to reflect this.

Table 6--Marine Mammal Known To Occur or Potentially Occur Within the QUTR Action Area
----------------------------------------------------------------------------------------------------------------
Density estimate (km \3\)
Species ESA/MMPA status Occurrence in keyport -------------------------------
action area Warm season Cold season
----------------------------------------------------------------------------------------------------------------
Cetacean
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
Blue whale....................... E/D................ Rare, warm season....... 0.0003 0
Fin whale........................ E/D................ Rare, year-round........ 0.0012 0.0012
Gray whale:
Resident..................... -/-................ Uncommon, year-round.... 0.003 0.003
Migratory.................... -/-................ Abundant briefly during 0 NA
cold season migration.
Humpback whale................... E/D................ Uncommon, warm season... 0.0237 0
Minke whale...................... -/-................ Rare, year-round........ 0.0004 0.0004
North Pacific right whale........ E/D................ Very rare, warm season.. \(a)\ 0 \(a)\ 0
Sei whale........................ E/D................ Very rare, year-round... 0.0002 0.0002
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Baird's beaked whale............. -/-................ Uncommon, year-round.... 0.0027 0.0027
Hubb's & Stejneger's beaked whale -/-................ Uncommon, year-round.... 0.0027 0.0027
Dall's porpoise.................. -/-................ Abundant, year-round.... 0.1718 0.1718
Harbor porpoise.................. -/-................ Abundant, year-round.... 2.86 2.86
Northern right whale dolphin..... -/-................ Common, year-round...... 0.0419 0.0419
Pacific white-sided dolphin...... -/-................ Abundant, warm season... 0.1929 0
Risso's dolphin.................. -/-................ Uncommon, year-round.... 0.002 0.002
Short-beaked common dolphin...... -/-................ Uncommon, warm season... 0.0012 0
Striped dolphin.................. -/-................ Very rare, year-round... 0.0002 0
Dwarf & pygmy sperm whales....... -/-................ Uncommon, warm season... 0.0015 0
Sperm whale...................... E/D................ Uncommon, warm season... 0.0011 0.0011
Killer whale:
N. Resident.................. -/-................ Rare, year-round........ 0.0028 0.0028
S. Resident.................. E/D................ Rare, year-round........ .............. ..............
Offshore..................... -/-................ Uncommon, year-round.... .............. ..............
----------------------------------------------------------------------------------------------------------------
Transient.................... -/-................ Uncommon, cold season... .............. ..............
----------------------------------------------------------------------------------------------------------------
Pinnipeds
----------------------------------------------------------------------------------------------------------------
Phocids
----------------------------------------------------------------------------------------------------------------
Harbor seal...................... -/-................ Abundant, year-round.... 0.44 0.44
-------------------------------
Northern elephant seal........... -/-................ Uncommon, year-round.... Dec-Feb: 0.019
Mar-Apr: 0.026
May-Jul: 0.038
Aug-Nov: 0.047
----------------------------------------------------------------------------------------------------------------
Otariids
----------------------------------------------------------------------------------------------------------------
California sea lion.............. -/-................ Common, year-round Aug-Apr: 0.283
except May-July.
May-Jul: 0
----------------------------------------------------------------------------------------------------------------
Northern fur seal................ -/D................ Common, year-round...... 0.091 0.117
Steller sea lion................. T/D................ Uncommon, year-round.... 0.0096 0.0096
----------------------------------------------------------------------------------------------------------------
Mustelids
----------------------------------------------------------------------------------------------------------------
Sea otter........................ -/-................ Does not presently occur \(a)\ 0 \(a)\ 0
within the action area.
----------------------------------------------------------------------------------------------------------------
Notes: D = Depleted, E = Endangered, CH = Critical Habitat, T = Threatened.
Warm season = May-October, Cold season = November-April.

[[Page 20262]]

A Brief Background on Sound

An understanding of the basic properties of underwater sound is
necessary to comprehend many of the concepts and analyses presented in
this document. A detailed description of this topic was provided in the
proposed rule (74 FR 32264; July 7, 2009; pages 32273-32274) and is not
repeated herein.

Potential Impacts to Marine Mammal Species

With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A Harassment
(injury), or mortality, including an identification of the number and
types of take that could occur by Level A or B harassment or mortality)
and to prescribe other means of effecting the least practicable adverse
impact on such species or stock and its habitat (i.e., mitigation); (2)
to determine whether the specified activity will have a negligible
impact on the affected species or stocks of marine mammals (based on
the likelihood that the activity will adversely affect the species or
stock through effects on annual rates of recruitment or survival); (3)
to determine whether the specified activity will have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses; and (4) to prescribe requirements pertaining to
monitoring and reporting.
In the Potential Impacts to Marine Mammal Species section of the
proposed rule, NMFS included a qualitative discussion of the different
ways that sonar operations may potentially affect marine mammals. See
74 FR 32264; July 7, 2009; pages 32274-42281. Marine mammals may
experience direct physiological effects (such as threshold shift),
acoustic masking, impaired communications, stress responses, and
behavioral disturbance. The information contained in Potential Impacts
to Marine Mammal Species from sonar operations section from the
proposed rule has not changed.
Additional analyses on potential impacts to marine mammals from
vessel movement within the NAVSEA NUWC Keyport Range Complex Study Area
are added below.

Vessel Movement

There are limited data concerning marine mammal behavioral
responses to vessel traffic and vessel noise, and a lack of consensus
among scientists with respect to what these responses mean or whether
they result in short-term or long-term adverse effects. In those cases
where there is a busy shipping lane or where there is large amount of
vessel traffic, marine mammals may experience acoustic masking
(Hildebrand, 2005) if they are present in the area (e.g., killer whales
in Puget Sound; Foote et al., 2004; Holt et al., 2008). In cases where
vessels actively approach marine mammals (e.g., whale watching or
dolphin watching boats), scientists have documented that animals
exhibit altered behavior such as increased swimming speed, erratic
movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991;
Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al.,
2002; Constantine et al., 2003), reduced blow interval (Ritcher et al.,
2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and
the shift of behavioral activities which may increase energetic costs
(Constantine et al., 2003; 2004)). A detailed review of marine mammal
reactions to ships and boats is available in Richardson et al. (1995).
For each of the marine mammal's taxonomy groups, Richardson et al.
(1995) provided the following assessment regarding marine mammal
reactions to vessel traffic:
Toothed whales: ``In summary, toothed whales sometimes show no
avoidance reaction to vessels, or even approach them. However,
avoidance can occur, especially in response to vessels of types used to
chase or hunt the animals. This may cause temporary displacement, but
we know of no clear evidence that toothed whales have abandoned
significant parts of their range because of vessel traffic.''
Baleen whales: ``When baleen whales receive low-level sounds from
distant or stationary vessels, the sounds often seem to be ignored.
Some whales approach the sources of these sounds. When vessels approach
whales slowly and nonaggressively, whales often exhibit slow and
inconspicuous avoidance maneuvers. In response to strong or rapidly
changing vessel noise, baleen whales often interrupt their normal
behavior and swim rapidly away. Avoidance is especially strong when a
boat heads directly toward the whale.''
Pinnipeds: ``In general, evidence about reactions of seals to
vessels is meager. The limited data, plus the responses of seals to
other noisy human activities, suggest that seals often show
considerable tolerance of vessels. It is not known whether these
animals are truly unaffected or are subject to stress. This uncertainty
applies to many human activities and all marine mammals.'' In
addressing walruses, Richardson et al. (1995) states, ``walrus
reactions to ships include waking up, head-raises, and entering the
water. Females with young seem more wary than adult males. Walruses in
open water are less responsive than those on ice pans, usually showing
little reaction unless the ship is about to run over them.''
It is important to recognize that behavioral responses to stimuli
are complex and influenced to varying degrees by a number of factors
such as species, behavioral contexts, geographical regions, source
characteristics (moving or stationary, speed, direction, etc.), prior
experience of the animal, and physical status of the animal. For
example, studies have shown that beluga whales reacted differently when
exposed to vessel noise and traffic. In some cases, na[iuml]ve beluga
whales exhibited rapid swimming from ice-breaking vessels up to 80 km
away, and showed changes in surfacing, breathing, diving, and group
composition in the Canadian high Arctic where vessel traffic is rare
(Finley et al., 1990). In other cases, beluga whales were more tolerant
of vessels, but differentially responsive by reducing their calling
rates, to certain vessels and operating characteristics (especially
older animals) in the St. Lawrence River where vessel traffic is common
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales
continued to feed when surrounded by fishing vessels and resisted
dispersal even when purposefully harassed (Fish and Vania, 1971).
In reviewing more than 25 years of whale observation data, Watkins
(1986) concluded that whale reactions to vessel traffic were ``modified
by their previous experience and current activity: Habituation often
occurred rapidly,

[[Page 20263]]

attention to other stimuli or preoccupation with other activities
sometimes overcame their interest or wariness of stimuli.'' Watkins
noticed that over the years of exposure to ships in the Cape Cod area,
minke whales (Balaenoptera acutorostrata) changed from frequent
positive (such as approaching vessels) interest to generally
uninterested reactions; finback whales (B. physalus) changed from
mostly negative (such as avoidance) to uninterested reactions; right
whales (Eubalaena glacialis) apparently continued the same variety of
responses (negative, uninterested, and positive responses) with little
change; and humpbacks (Megaptera novaeangliae) dramatically changed
from mixed responses that were often negative to often strongly
positive reactions. Watkins (1986) summarized that ``whales near shore,
even in regions with low vessel traffic, generally have become less
wary of boats and their noises, and they have appeared to be less
easily disturbed than previously. In particular locations with intense
shipping and repeated approaches by boats (such as the whale-watching
areas of Stellwagen Bank), more and more whales had P [positive]
reactions to familiar vessels, and they also occasionally approached
other boats and yachts in the same ways.''
In the case of the NAVSEA NUWC Keyport Range Complex Study Area,
naval vessel traffic is expected to be much lower than in areas where
there are large shipping lanes and large numbers of fishing vessels
and/or recreational vessels. Nevertheless, the proposed action area is
well traveled by a variety of commercial and recreational vessels, so
marine mammals in the area are expected to be habituated to vessel
noise.
As described in the proposed rule, typical vessel movement
occurring at the surface includes the deployment or towing of mine
counter-measure equipment, retrieval of equipment, and clearing and
monitoring for non-participating vessels. As shown in Table 1, the
projected annual days of range use amount to a total of 306 days for
all range sites (60 days for Keyport Range Site, 200 days for DBRC
Site, 16 days for offshore QUTR Site, and 30 days for surf zone QUTR
Site).
Moreover, naval vessels transiting the study area or engaging in
RDT&E activities will not actively or intentionally approach a marine
mammal or change speed drastically. In addition, range craft would not
be permitted to approach within 100 yards (91 m) of marine mammals, to
the extent practicable considering human and vessel safety priorities.
This includes marine mammals ``hauled-out'' on islands, rocks, and
other areas such as buoys.

Mitigation

In order to issue an incidental take authorization (ITA) under
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations
setting forth the ``permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable adverse
impact on such species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.'' The NDAA amended the MMPA as it relates to military
readiness activities and the incidental take authorization process such
that ``least practicable adverse impact'' shall include consideration
of personnel safety, practicality of implementation, and impact on the
effectiveness of the ``military readiness activity.'' The NUWC Keyport
Range Complex's RDT&E activities are considered military readiness
activities.
NMFS reviewed the Navy's proposed NUWC Keyport Range Complex's
RDT&E activities and the proposed NUWC Keyport Range Complex's
mitigation measures presented in the Navy's application to determine
whether the activities and mitigation measures were capable of
achieving the least practicable adverse effect on marine mammals.
Any mitigation measure prescribed by NMFS should be known to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals (2), (3), and (4) may contribute to this
goal).
(2) A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to
underwater detonations or other activities expected to result in the
take of marine mammals (this goal may contribute to (1), above, or to
reducing harassment takes only).
(3) A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to underwater detonations or other activities expected to result in the
take of marine mammals (this goal may contribute to (1), above, or to
reducing harassment takes only).
(4) A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to underwater
detonations or other activities expected to result in the take of
marine mammals (this goal may contribute to (1), above, or to reducing
the severity of harassment takes only).
(5) A reduction in adverse effects to marine mammal habitat, paying
special attention to the food base, activities that block or limit
passage to or from biologically important areas, permanent destruction
of habitat, or temporary destruction/disturbance of habitat during a
biologically important time.
(6) For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation (shut-down zone, etc.).
NMFS reviewed the Navy's proposed mitigation measures, which
included a careful balancing of the likely benefit of any particular
measure to the marine mammals with the likely effect of that measure on
personnel safety, practicality of implementation, and impact on the
``military-readiness activity.''
The Navy's proposed mitigation measures were described in detail in
the proposed rule (74 FR 32264, pages 32293-32294). The Navy's measures
address personnel training, marine observer responsibilities, operating
procedures for RDT&E activities using sonar, and mitigation related to
vessel traffic. The following additional requirements were added based
on comments from the Marine Mammal Commission, Natural Resources
Defense Council, and NMFS scientists:
(i) If there is clear evidence that a marine mammal is injured or
killed as a result of the proposed Navy RDT&E activities, the Naval
activities shall be immediately suspended and the situation immediately
reported by personnel involved in the activity to the Range Officer,
who will follow Navy procedures for reporting the incident to NMFS
through the Navy's chain-of-command.
(j) For nighttime RDT&E activities of active acoustic transmissions
in the Keyport Range proposed extension area, the Navy shall conduct
passive acoustic monitoring within the Agate Pass and south of
University Point in southern Port Orchard Reach. If Southern Resident
killer whales are detected in the vicinity of the Keyport Range Site,
the Range Office shall be notified immediately and the active acoustic
sources must be shutdown if killer whales are confirmed to approach at
1,000 yards from the source.
In addition, in response to information provided by the Navy, the

[[Page 20264]]

requirement for general passive acoustic monitoring was modified to
reflect the feasibility and practicability of PAM when used as a
mitigation measure for the proposed RDT&E activities. The Navy
indicated, and NMFS agreed, that the blanket requirement for PAM
contained in the proposed rule will not be practicable due to
limitation of assets at the Keyport Range Complex. Further, NMFS
believes that the revised PAM would not change the results of the
analysis on the effects of the proposed Keyport RDT&E activities on
marine mammals. Therefore, the proposed mitigation measure concerning
PAM has been modified as follows:
(g) Passive acoustic monitoring for cetaceans will be implemented
throughout the NUWC Keyport Range Complex during RDT&E testing
activities involving active sonar transmissions and when passive
acoustic monitoring capabilities are being operated during the testing
activity.
No other changes have been made to the mitigation measures
described in the proposed rule.

Monitoring

In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the vel of taking or impacts on populations of marine
mammals that are expected to be present.
Monitoring measures prescribed by NMFS should accomplish one or
more of the following general goals:
(1) An increase in the probability of detecting marine mammals,
both within the safety zone (thus allowing for more effective
implementation of the mitigation) and in general to generate more data
to contribute to the analyses mentioned below.
(2) An increase in our understanding of how many marine mammals are
likely to be exposed to levels of HFAS/MFAS (or explosives or other
stimuli) that we associate with specific adverse effects, such as
behavioral harassment, TTS, or PTS.
(3) An increase in our understanding of how marine mammals respond
to HFAS/MFAS (at specific received levels), explosives, or other
stimuli expected to result in take and how anticipated adverse effects
on individuals (in different ways and to varying degrees) may impact
the population, species, or stock (specifically through effects on
annual rates of recruitment or survival) through any of the following
methods:
Behavioral observations in the presence of HFAS/MFAS
compared to observations in the absence of sonar (need to be able to
accurately predict received level and report bathymetric conditions,
distance from source, and other pertinent information).
Physiological measurements in the presence of HFAS/MFAS
compared to observations in the absence of sonar (need to be able to
accurately predict received level and report bathymetric conditions,
distance from source, and other pertinent information), and/or
Pre-planned and thorough investigation of stranding events
that occur coincident to naval activities.
Distribution and/or abundance comparisons in times or
areas with concentrated HFAS/MFAS versus times or areas without HFAS/
MFAS.
(4) An increased knowledge of the affected species.
(5) An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.
A detailed description of monitoring measures is provided in the
proposed rule (74 FR 32264, pages 32294-32297). The monitoring
procedures require the Navy to conduct visual surveys (including shore-
based and vessel surveys), passive acoustic monitoring, and marine
mammal observers on Navy vessels.

Monitoring Workshop

During the public comment period on past proposed rules for Navy
actions (such as the Hawaii Range Complex (HRC), and Southern
California Range Complex (SOCAL) proposed rules), NMFS received a
recommendation that a workshop or panel be convened to solicit input on
the monitoring plan from researchers, experts, and other interested
parties. The NAVSEA NUWC Keyport Range Complex RDT&E proposed rule
included an adaptive management component and both NMFS and the Navy
believe that a workshop would provide a means for Navy and NMFS to
consider input from participants in determining whether (and if so,
how) to modify monitoring techniques to more effectively accomplish the
goals of monitoring set forth earlier in the document. NMFS and the
Navy believe that this workshop is valuable in relation to all of the
Range Complexes and major training exercise rules and LOAs that NMFS is
working on with the Navy at this time, and consequently this single
Monitoring Workshop will be included as a component of all of the rules
and LOAs that NMFS will be processing for the Navy in the next year or
so.
The Navy, with guidance and support from NMFS, will convene a
Monitoring Workshop, including marine mammal and acoustic experts as
well as other interested parties, in 2011. The Monitoring Workshop
participants will review the monitoring results from the previous two
years of monitoring pursuant to the NAVSEA NUWC Keyport Range Complex
RDT&E rule as well as monitoring results from other Navy rules and LOAs
(e.g., AFAST, SOCAL, HRC, and other rules). The Monitoring Workshop
participants would provide their individual recommendations to the Navy
and NMFS on the monitoring plan(s) after also considering the current
science (including Navy research and development) and working within
the framework of available resources and feasibility of implementation.
NMFS and the Navy would then analyze the input from the Monitoring
Workshop participants and determine the best way forward from a
national perspective. Subsequent to the Monitoring Workshop,
modifications would be applied to monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

In addition to the site-specific Monitoring Plan for the NAVSEA
NUWC Keyport Range Complex Study Area, the Navy will complete the
Integrated Comprehensive Monitoring Program (ICMP) Plan by the end of
2009. The ICMP is currently in development by the Navy, with the Chief
of Naval Operations Environmental Readiness Division (CNO-N45) having
the lead. The program does not duplicate the monitoring plans for
individual areas (e.g., AFAST, HRC, SOCAL); instead it is intended to
provide the overarching coordination that will support compilation of
data from both range-specific monitoring plans as well as Navy funded
research and development (R&D) studies. The ICMP will coordinate the
monitoring program's progress towards meeting its goals and developing
a data management plan. A program review board is also being considered
to provide additional guidance. The ICMP will be evaluated annually to
provide a matrix for progress and goals for the following year, and
will make recommendations on adaptive management for refinement and
analysis of the monitoring methods.

[[Page 20265]]

The primary objectives of the ICMP are to:
Monitor and assess the effects of Navy activities on
protected species;
Ensure that data collected at multiple locations is
collected in a manner that allows comparison between and among
different geographic locations;
Assess the efficacy and practicality of the monitoring and
mitigation techniques;
Add to the overall knowledge-base of marine species and
the effects of Navy activities on marine species.
The ICMP will be used both as: (1) A planning tool to focus Navy
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy
Range Complexes and Exercises; and (2) an adaptive management tool,
through the consolidation and analysis of the Navy's monitoring and
watchstander/marine observer data, as well as new information from
other Navy programs (e.g., R&D), and other appropriate newly published
information.
In combination with the 2011 Monitoring Workshop and the adaptive
management component of the NAVSEA NUWC Keyport Range Complex RDT&E
rule and the other planned Navy rules (e.g., Virginia Capes Range
Complex, Jacksonville Range Complex, Cherry Point Range Complex, etc.),
the ICMP could potentially provide a framework for restructuring the
monitoring plans and allocating monitoring effort based on the value of
particular specific monitoring proposals (in terms of the degree to
which results would likely contribute to stated monitoring goals, as
well as the likely technical success of the monitoring based on a
review of past monitoring results) that have been developed through the
ICMP framework, instead of allocating based on maintaining an equal (or
commensurate to effects) distribution of monitoring effort across range
complexes. For example, if careful prioritization and planning through
the ICMP (which would include a review of both past monitoring results
and current scientific developments) were to show that a large, intense
monitoring effort in Hawaii would likely provide extensive, robust and
much-needed data that could be used to understand the effects of sonar
throughout different geographical areas, it may be appropriate to have
other range complexes dedicate money, resources, or staff to the
specific monitoring proposal identified as ``high priority'' by the
Navy and NMFS, in lieu of focusing on smaller, lower priority projects
divided throughout their home range complexes.
The ICMP will identify:
A means by which NMFS and the Navy would jointly consider
prior years' monitoring results and advancing science to determine if
modifications are needed in mitigation or monitoring measures to better
effect the goals laid out in the Mitigation and Monitoring sections of
the NAVSEA NUWC Keyport Range Complex RDT&E rule.
Guidelines for prioritizing monitoring projects.
If, as a result of the workshop and similar to the example
described in the paragraph above, the Navy and NMFS decide it is
appropriate to restructure the monitoring plans for multiple ranges
such that they are no longer evenly allocated (by rule), but rather
focused on priority monitoring projects that are not necessarily tied
to the geographic area addressed in the rule, the ICMP will be modified
to include a very clear and unclassified record-keeping system that
will allow NMFS and the public to see how each range complex/project is
contributing to all of the ongoing monitoring programs (resources,
effort, money, etc.).

Adaptive Management

The final regulations governing the take of marine mammals
incidental to Navy's NAVSEA NUWC Keyport Range Complex RDT&E activities
contain an adaptive management component. The use of adaptive
management will give NMFS the ability to consider new data from
different sources to determine (in coordination with the Navy) on an
annual basis if mitigation or monitoring measures should be modified or
added (or deleted) if new data suggests that such modifications are
appropriate (or are not appropriate) for subsequent annual LOAs.
The following are some of the possible sources of applicable data:
Results from the Navy's monitoring from the previous year
(either from NAVSEA NUWC Keyport Range Complex Study Area or other
locations)
Findings of the Workshop that the Navy will convene in
2011 to analyze monitoring results to date, review current science, and
recommend modifications, as appropriate to the monitoring protocols to
increase monitoring effectiveness
Compiled results of Navy-funded research and development
(R&D) studies (presented pursuant to the ICMP, which is discussed
elsewhere in this document)
Results from specific stranding investigations (either
from NAVSEA NUWC Keyport Range Complex Study Area or other locations)
Results from general marine mammal and sound research
(funded by the Navy or otherwise)
Any information which reveals that marine mammals may have
been taken in a manner, extent or number not authorized by these
regulations or subsequent Letters of Authorization
Mitigation measures could be modified or added (or deleted) if new
data suggest that such modifications would have (or do not have) a
reasonable likelihood of accomplishing the goals of mitigation laid out
in this final rule and if the measures are practicable. NMFS would also
coordinate with the Navy to modify or add to (or delete) the existing
monitoring requirements if the new data suggest that the addition of
(or deletion of) a particular measure would more effectively accomplish
the goals of monitoring laid out in this final rule. The reporting
requirements associated with this rule are designed to provide 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, current science and whether mitigation or monitoring
modifications are appropriate.

Reporting

In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' Effective reporting is
critical to ensure compliance with the terms and conditions of a LOA,
and to provide NMFS and the Navy with data of the highest quality based
on the required monitoring. As NMFS noted in its proposed rule,
additional detail has been added to the reporting requirements since
they were outlined in the proposed rule. The updated reporting
requirements are all included below. A subset of the information
provided in the monitoring reports may be classified and not releasable
to the public.

General Notification of Injured or Dead Marine Mammals

Navy personnel will ensure that NMFS (regional stranding
coordinator) is notified immediately (or as soon as operational
security allows) if an injured or dead marine mammal is found during or
shortly after, and in the vicinity of, any Navy RDT&E activities. The
Navy will provide NMFS with species or description of the animal(s),
the condition of the animal(s) (including

[[Page 20266]]

carcass condition if the animal is dead), location, time of first
discovery, observed behaviors (if alive), and photo or video (if
available).

Annual Report

The NAVSEA NUWC Keyport Range Complex shall submit a report
annually on October 1 describing the RDT&E activities conducted and
implementation and results of the NAVSEA NUWC Keyport Range Complex
Monitoring Plan (through June 1 of the same year) and RDT&E activities.
The report will, at a minimum, include the following information:
(1) RDT&E Information:
Date and time test began and ended
Location
Number and types of active sources used in the test
Number and types of vessels, aircraft, etc., participated
in the test
Total hours of observation effort (including observation
time when sonar was not operating)
Total hours of all active sonar source operation
Total hours of each active sonar source
Wave height (high, low, and average during the test)
(2) Individual Marine Mammal Sighting Info
Location of sighting
Species
Number of individuals
Calves observed (y/n)
Initial detection sensor
Indication of specific type of platform observation made
from
Length of time observers maintained visual contact with
marine mammal(s)
Wave height (in feet)
Visibility
Sonar source in use (y/n)
Indication of whether animal is <200 yd, 200-500 yd, 500-
1,000 yd, 1,000-2,000 yd, or >2,000 yd from sonar source above
Mitigation implementation--Whether operation of sonar
sensor was delayed, or sonar was powered or shut down, and how long the
delay was
Observed behavior--Marine observers shall report, in plain
language and without trying to categorize in any way, the observed
behavior of the animals (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming, etc.)
An evaluation of the effectiveness of mitigation measures
designed to avoid exposing marine mammals to mid-frequency sonar. This
evaluation shall identify the specific observations that support any
conclusions the Navy reaches about the effectiveness of the mitigation.

NAVSEA NUWC Keyport Range Complex 5-yr Comprehensive Report

The Navy will submit to NMFS a draft report that analyzes and
summarizes all of the multi-year marine mammal information gathered
during HFAS/MFAS activities for which annual reports are required as
described above. This report will be submitted at the end of the fourth
year of the rule (December 2014), covering activities that have
occurred through July 1, 2014. The Navy will respond to NMFS comments
on the draft comprehensive report if submitted within 3 months of
receipt. The report will be considered final after the Navy has
addressed NMFS' comments, or three months after the submittal of the
draft if NMFS does not comment by then.

Comments and Responses

On July 7, 2009, NMFS published a proposed rule (74 FR 32264) in
response to the Navy's request to take marine mammals incidental to
conducting RDT&E activities in the NAVSEA NUWC Keyport Range Complex
Study Area and requested comments, information and suggestions
concerning the request. During the 30-day public comment period, NMFS
received comments from the Marine Mammal Commission (Commission), the
Natural Resources Defense Council (NRDC), Friends of the Earth, and two
private citizens. The comments are addressed below.

MMPA Concerns

Comment 1: Citing that most North American marine mammal biologists
are in the field and that the general public is engaged in recreational
activities during the period when the proposed rule was published for
public comments, the Friends of the Earth requests NMFS to extend the
comment period for a minimum of 30 days for the proposed rule.
Response: There is no prescribed minimum timeframe for public
comment on proposed rules in the Administrative Procedure Act (APA) or
section 101(a)(5)(A) of MMPA. NMFS routinely strives to ensure that the
public is afforded at least a 30-day public comment period on all MMPA
rules and believes that such a duration is reasonable for this
particular rule making.
Whenever NMFS develops proposed regulations under the MMPA, the
agency is required to first publish a notice of receipt of a request
for the implementation of regulations and LOAs governing the incidental
taking. This process typically affords the public up to 30 days to
comment on a requester's application and provide NMFS with information
and suggestions that will be considered in developing MMPA regulations.
See 50 CFR 216.104. On July 3, 2008, NMFS published its ``Notice;
receipt of application for a Letter of Authorization (LOA); request for
comments and information'' for the Navy's NAVSEA NUWC Keyport Range
Complex and solicited input for 30 days (See 73 FR 38183).
The public was also afforded 30 days to comment on the Keyport
Range Complex proposed rule. For the proposed MMPA rulemaking for the
Navy training and RDT&E activities, thirty days was appropriate in this
instance because of: (1) The tight deadline of the scheduled RDT&E or
training activities identified in the Navy's schedule; and (2) the fact
that NMFS anticipated only low impacts to marine mammals with the
implementation of mitigation and monitoring measures. Therefore, NMFS
does not believe an additional 30-day comment period is warranted.
Comment 2: The Commission recommends that NMFS: (1) Work with the
Navy to ensure that the final rule and any LOA issued under that rule
provide authorization for the taking of all marine mammal species that
could occur in the study area (including those listed under the
Endangered Species Act) and that may be exposed to Level A or Level B
harassment as a result of the proposed activities; and (2) either
reconsider its decision to exclude endangered and threatened species
from the authorization or provide a well-reasoned, science-based
explanation for its apparent belief that the proposed mitigation
measures will be much more effective for listed species than for
unlisted species.
Response: First, NMFS worked with the Navy to ensure that the rule
provides authorization for animals that are likely to be taken in the
area, but NMFS does not agree with the Commission's recommendation that
NMFS' final rule and LOAs should authorize takes of all marine mammal
species that are known to occur in the Keyport Range Complex Study
Area, regardless of how infrequently they occur. Second, to clarify,
NMFS does not believe that the proposed mitigation measures will be
much more effective for listed species than for unlisted species,
rather, all of the listed species fell into a larger group of marine
mammals that occur rarely and infrequently in Keyport and are unlikely
to be exposed to the Navy sound sources

[[Page 20267]]

at all and, therefore, unlikely to be taken.
As described in the proposed rule (74 FR 32264; July 7, 2009), the
annual estimated number of exposures from acoustic sources are given
for each species, based on the abundance, distribution, and density of
these species. NMFS is not authorizing the take of every marine mammal
species that could potentially occur in the Keyport Range Complex Study
Area, since many of these species (all ESA-listed species and some non-
listed) occur rarely (e.g., blue whale, fin whale, sei whale, North
Pacific right whale, minke whale, killer whale, and striped dolphin) or
occur infrequently (e.g., humpback whale, Baird's beaked whale, Hubb's
beaked whale, Stejneger's beaked whale, Risso's dolphin, short-beaked
common dolphin, sperm whale, dwarf sperm whale, pygmy sperm whale,
northern elephant seal, and Steller sea lion). In fact, none of the
ESA-listed species are commonly found in the Keyport Range Complex
Study Area, and NMFS' Biological Opinion for Keyport and NWTRC also
indicates that these species will not be taken by the Keyport
activities.
The estimates of 11,283 takes of harbor porpoises, 44 takes of
northern fur seal, 114 takes of California sea lions, and 5,569 takes
of harbor seals by Level B harassment as a result of the proposed
Keyport Range Complex RDT&E activities are based on scientific modeling
for acoustic sources using the risk function methodology, coupled with
the analysis of the abundance, distribution, and density of marine
mammal species in the action area.
Comment 3: The Commission requests NMFS describe the ``specified
events'' that would involve or require special surveys at the Dabob Bay
Range site (74 FR 32264; July 7, 2009; page 32295).
Response: According to the Navy, a ``specified event'' is a test or
run plan well suited for monitoring because certain operational and
environmental parameters are in place (e.g., high level of activity,
bottom mounted hydrophone in place, controlled environment, etc.; see
74 FR 32264; July 7, 2009; page 32295). As an RDT&E facility, it is
important to maintain an open perspective of what kind of mid and high
frequency events may be best for a special survey. Examples of the
types of scenarios that would be considered for monitoring scenarios
are those utilizing the high frequency systems that were modeled such
as sources S6, S7, or S8 described in the proposed rule (74 FR 32264;
July 7, 2009; page 32288). These may include a test unit and a launch
and recovery craft and associated tracking sonar. For monitoring an
activity with a mid frequency source, a range target operating at the
lower end of its frequency range (5-100 kHz) at source level of 238
microPa @ 1 m or a countermeasure under test with an output frequency
between 1 and 10 kHz may be the appropriate type of test to use for
monitoring.

Mitigation

Comment 4: The Commission requests NMFS require the Navy to suspend
an activity if a marine mammal is killed or seriously injured and the
death or injury could be associated with the Navy's activities, and
resumption of the activity should be contingent upon a review by NMFS
of the circumstances of the death or injury and the Navy's plans for
avoiding additional mortalities. If, upon review, those plans are
deemed inadequate, then the Navy should be required to halt its
operations until it has obtained the necessary authorization.
Response: Without detailed examination by an expert, it is usually
not feasible to determine the cause of injury or mortality in the
field. Therefore, NMFS has required in its final rule that if there is
clear evidence that a marine mammal is injured or killed as a result of
the proposed Navy RDT&E activities, the Naval activities shall be
immediately suspended and the situation immediately reported by
personnel involved in the activity to the Range Officer, who will
follow Navy procedures for reporting the incident to NMFS through the
Navy's chain-of-command.
For any other sighting of injured or dead marine mammals in the
vicinity of any Navy RDT&E activities utilizing underwater active
acoustic sources for which the cause of injury or mortality cannot be
immediately determined, the Navy personnel will ensure that NMFS
(regional stranding coordinator) is notified immediately (or as soon as
operational security allows). The Navy will provide NMFS with species
or description of the animal(s), the condition of the animal(s)
(including carcass condition if the animal is dead), location, time of
first discovery, observed behaviors (if alive), and photo or video (if
available).
If NMFS determines that further investigation is appropriate, once
investigations are completed and determinations made, NMFS would use
the resulting information, if appropriate, to help reduce the
likelihood that a similar event would happen in the future and to move
forward with necessary steps to ensure environmental compliance for the
Navy under the MMPA.
Comment 5: Stating that waters out to at least the 100-meter
isobath represent vital habitat for a discrete population of harbor
porpoises, the Oregon/Washington Coast stock, that the species has
acute sensitivity to acoustic sources, and that the offshore population
of approximately 37,745 would be exposed over 11,000 times,
representing nearly 99 percent of all take authorized for QUTR under
the proposed rule, the NRDC recommends establishing a protection area
within waters landward of the 100-meter isobath. In addition, the NRDC
recommends a buffer zone reflecting the sensitivity of the species
should be applied beyond the 100-meter isobath, optimally ensuring that
exposure levels within the 100-meter isobath do not exceed 120 dB. The
NRDC recommends that NMFS ask the Navy to prepare a nominal propagation
analysis for the coast to determine what stand-off distances are
necessary to reduce exposure levels below this threshold.
Response: In order to determine the appropriate mitigation measures
for a particular activity, NMFS must balance the benefit of the measure
to the species, the likely effectiveness of a given measure, and the
practicability of the measure for applicant implementation.
First, the estimated incidental takes of harbor porpoises are
expected to be non-injurious, short-term Level B harassment. It is
reasonable to expect high numbers of takes due to multiple takes of one
individual in a year (not every estimated take represents a different
individual). Given the nature of the activity, it is more likely that a
percentage of the population (as opposed to the entire population)
would be taken with each event, and that over time multiple repetitions
of exposure to these short-term exercises would occur.
Regarding NRDC's recommendation, a buffer zone applied beyond the
100-meter isobaths is not practicable for this activity and would
seriously affect the Navy's proposed RDT&E activities. While it is true
that most Oregon/Washington Coast stock harbor porpoises occur in
waters shallower than 100-m, excluding these regions would not be
practicable, as it would mean that large regions of the Keyport Range
Complex Study Area would be off limits for the proposed RDT&E
activities. For example, the 100-m isobaths in the W237A Area of the
QUTR Range Site extend off shore for more than 7 miles. With such large
areas and all of the area of that specific depth range off limits to
the proposed RDT&E activities, the Navy would not be able to

[[Page 20268]]

fulfill its mission activities. It is also not practicable to recommend
a ``do not exceed 120 dB'' level within the 100-m isobath, as some of
the active sources have received levels reaching 120 dB at ranges over
66 km (Table 7).
The majority of the harbor seals take numbers include exposures
close to this 120-dB threshold level (rather than at a higher exposure
level), due to the large Level B harassment isopleths. The effects of
exposures to this lower level are expected to be comparatively less
severe. Also, none of these exposures are expected to affect the stock
through effects on annual rates of survival and reproduction.

Table 7--Source Levels and Distances at 120 dB Received Level From Eight
Active Sources
------------------------------------------------------------------------
Source comparison
-------------------------------------------------------------- Range to
Source 120 dB
level (km)
------------------------------------------------------------------------
S1................................................ 207 2.12
S2................................................ 205 6.32
S3................................................ 186 1.76
S4................................................ 220 0.93
S5................................................ 233 66.03
S6................................................ 233 13.82
S7................................................ 230 9.12
S8................................................ 233 7.41
------------------------------------------------------------------------

As stated in this document, exposures to marine mammals are
expected to be limited to Level B harassment, and the seemingly large
takes of harbor porpoise do not represent the individual animals that
would be taken, instead, some individuals may be taken multiple times.
Among these multiple takes, only 1 animal is expected to be exposed
once to received levels that could cause minor TTS. Further, the NRDC's
proposed mitigation of limiting the RDT&E activities to water deeper
than 100-m isobaths would compromise the Navy's ability to accomplish
their mission with limited added benefit to the species. Mitigation and
monitoring measures, such as establishing and monitoring exclusion
zones and shutdown measures, are expected to achieve the least
practicable adverse impacts to marine mammals in the vicinity of the
proposed project area.
Separately, 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 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 in the Keyport rule
would allow for the application of these protected areas, as
appropriate.
Comment 6: The NRDC requests NMFS provide additional protection
from the use of mid- and high-frequency acoustic sources within the
Olympic Coast National Marine Sanctuary (NMS). Specifically, for those
activities that do not require QUTR's instrumentation, NMFS should
include measures to prohibit such activities from taking place in
sanctuary waters. If this proves impracticable, the NRDC urges NMFS to
substantially limit the number of RDT&E activities taking place by
requiring prior approval from Pacific Fleet Command or other means to
minimize sonar use in the area.
Response: NMFS has been working with the Navy throughout the
rulemaking process to develop a series of strict mitigation and
monitoring measures regarding the use of active acoustic sources in the
Keyport Range Complex, which overlaps with the Olympic Coast NMS. These
measures include the use of trained Navy marine observers who will
conduct marine mammal monitoring to avoid collisions with marine
mammals and the use of exclusion zones that avoid exposing marine
mammals to levels of sound likely to result in temporary hearing loss,
injury or death of marine mammals. However, prohibition of RDT&E
activities and/or substantially limiting the number of RDT&E activities
within the Olympic Coast NMS would compromise the Navy's mission and is
impracticable for the proposed activities. The area and the number of
the RDT&E events that were proposed to be carried out were carefully
planned to have the least practicable adverse impacts to marine mammals
while still meeting the Navy's RDT&E mission activity. In addition, the
level and number of RDT&E events authorized are the maximum activities
allowed within the five-year rule period; the actual number of events
could be fewer than proposed.
Comment 7: The NRDC recommends that NMFS establish a seasonal
protection area in certain canyons and banks on QUTR that represent
important foraging habitat particularly for humpback whales. Citing
Calambokidis et al. (2004), the NRDC states that humpback whales occur
mostly in the northern part of the area, in a region informally known
as the ``Prairie.'' The NRDC further states that sonar impacts on
beaked whales are also a concern in QUTR because these species have a
general preference for waters of the lower continental slope. The NRDC
requests NMFS to advocate avoidance, or a reduction of RDT&E
activities, within areas between 500 and 2,000 meters depth with
unusual bottom topography (such as canyons).
Response: There are no canyons or banks in the currently
instrumented test range within the QUTR range site and its associated
depth is limited to 91 meters. The proposed extension of the QUTR range
site would expand the range boundaries to the full extent of range area
W-237A, which does include canyons and banks and the varied topography.
W-237A was determined to be a vital asset by the Navy to perform its
RDT&E mission, and the proposed extension of the existing QUTR range
site into the entire W-237A area is critical to fulfill the Navy's
RDT&E mission activity. In addition, seasonal variability of oceanic
conditions was also considered an important component of the Navy's
RDT&E mission, and activities must be able to occur year round.
Therefore, a restriction on seasonal use of the canyon and banks and
making the areas between 500 and 2,000 meters off-limits to the
proposed Keyport RDT&E operations would severely limit the Navy's
mission activities, and will not be a practicable measure.
Although NMFS recognizes that the extended QUTR range site would
include known feeding habitat for certain species of marine mammals
including humpback whales, and the undersea canyon and banks of the
type that are known to be used by beaked whales for feeding, the
proposed RDT&E activities to be conducted within the extended QUTR
range site would only take 16 days per year at its offshore area, with
total operation time for all active acoustic sources adding up to
approximately 507 hours, and the range tests would be comprised of low
intensity mid- and high-frequency active acoustic sources (see
Description of Specific Activities section above). In addition,
humpback whales and beaked whales are rare within the proposed Keyport
Range Complex. Scientific modeling on take calculations shows that the
take of these species, even by Level B behavioral harassment, is very
unlikely.
Lastly, as mentioned above, NMFS has been working with the Navy
throughout the rulemaking process to develop a series of mitigation and
monitoring measures so that adverse impact to marine mammals and their

[[Page 20269]]

habitat will be the least that is practicable. These measures include
the use of trained Navy marine observers who will conduct marine mammal
monitoring to avoid collisions with marine mammals and the use of
exclusion zones that avoid exposing marine mammals to levels of sound
likely to result in injury or death of marine mammals. The
determination of appropriate mitigation measures includes consideration
of benefit of the proposed measure to marine mammals, the likely
effectiveness of the measure, and the practicability of the measure for
applicant implementation. NMFS believes that the measures required of
the Navy will result in the least practicable adverse impact.
Comment 8: The NRDC requests NMFS bar the use of mid- and high-
frequency acoustic sources in those portions of the Keyport Range that
extend into designated critical habitat for Southern Resident killer
whales because these waters in Puget Sound are one of the most
important habitats for the Southern Resident community of killer whales
(and their near-exclusive habitat in summer/autumn months).
Response: The occurrence of Southern Resident killer whales (SRKW)
in waters in the vicinity of the Keyport Range Site is rare (NMFS,
2006). The Navy conducted a density estimate of killer whales in inland
waters of the Keyport Range Complex and concluded that density is zero
for the Keyport Range Site (Navy, 2008). No take of SRKWs is expected
or authorized. Therefore, NMFS does not agree with NRDC's
recommendation.
The Keyport Range Complex has been at this site since 1914, and the
existing Keyport Range Site was excluded from NMFS' 2006 critical
habitat designation after a balancing of conservation benefits against
national security considerations. The proposed Keyport Range Site
extension would expand the existing range into the Southern Resident
killer whale critical habitat. The extension would increase the area of
the Keyport Range Site from 1.5 nm\2\ to 1.7 nm\2\ (5.1 km\2\ to 5.9
km\2\). The area in critical habitat is therefore approximately 0.2
nm\2\ (0.8 km\2\).
The Navy is required to shut down any active acoustic sources when
any whale or dolphin is detected within 1,000 yards of the source.
Modeling of three of the most powerful sources at the Keyport Range
Site indicates that the received level at 1,000 yards drops down to 145
dB re 1 microPa, which is the level at which the risk function
indicates a very small percentage of exposed animals would be harassed.
Therefore, NMFS does not believe that the proposed RDT&E activities in
the vicinity of SRKW critical habitat would result in the take this
species if the shut-down mitigation measure is implemented.
Killer whales are mid-sized cetacean species with distinctive large
dorsal fins and can be detected from a large distance, which allows
mitigation and monitoring measures to be effectively carried out.
However, to account for nighttime activities, NMFS has included an
additional measure that will provide further assurance that no SRKW
would be taken in the vicinity of the Keyport Range site. This
additional measure requires the Navy to place a passive acoustic
monitoring system at the northern and southern approaches to Port
Orchard Reach and to conduct passive acoustic monitoring within the
Agate Pass and south of University Point in southern Port Orchard Reach
for nighttime RDT&E activities conducted in the Keyport Range Site
Extension. If Southern Resident killer whales are detected in the
vicinity of the Keyport Range Site, the Range Office shall be notified
immediately and, in accordance with the required mitigation for all
cetaceans, the active acoustic sources must be shutdown if killer
whales are confirmed to approach at 1,000 yards from the source. NMFS
considers passive acoustic monitoring for SRKW to be an effective way
to supplement detection of this population in low light conditions,
given that they are known to be more vocal compared to transient killer
whales (Deecke et al., 2005).
Comment 9: Citing that the exclusion zone for cetaceans is 1,000
yards and the exclusion zone for pinnipeds is 100 yards, the NRDC
states that NMFS fails to explain why pinnipeds should be afforded less
protection than cetaceans, especially as it notes that harbor seals
will experience TTS onset at 183 dB, while cetaceans generally will
experience TTS onset at 195 dB. The NRDC requests NMFS require a 1,000
yard exclusion zone for all marine mammals.
Response: Pinnipeds are abundant in the Keyport and Dabob current
and proposed extensions. Given the limited operating area, close shore
proximity and abundance of animals residing at the ranges, a greater
standoff for pinnipeds would result in a large majority of activities
interrupted, postponed or cancelled. As a result, the Keyport Range
Complex would not meet its mission requirements, making such a measure
impracticable. On the other hand, cetaceans are not as numerous as
pinnipeds, and they are more easily detected at larger distances,
allowing for the practicable implementation of a larger standoff
distance.
The range to 183 dB re 1 microPa\2\ (onset of TTS for harbor seal)
for the mid frequency active acoustic source S5, which has a source
level at 233 dB re 1 microPa @ 1 m (the highest of all active acoustic
sources being used at Keyport Range Complex) is approximately 464 m.
The total operation time for range target, which is under the S5 source
type designation, is 9 hours per year for the entire Keyport Range
Complex. All other active acoustic sources have lower source levels and
thus the ranges to 183 dB 1 microPa\2\ are expected to be much shorter.
Although it is estimated that more than 2,000 harbor seals would incur
Level B harassment which could cause TTS, the TTS is expected to be
short-term in duration and of a low level (due to the modeled received
levels, see Keyport Range Complex FEIS/OEIS, Navy, 2009). Even if TTS
occurs in harbor seals, it is expected in the much higher frequency in
their communication range. Additionally, no takes by Level A harassment
are anticipated, based on the modeling results.
Sonar operations within the Keyport Range Complex have been ongoing
for over 50 years and evidence shows that the pinniped populations
remain abundant.

Monitoring

Comment 10: The NRDC request that NMFS require long-term monitoring
of local populations on all ranges to see if any populations reflect
habitat displacement or exhibit other negative impacts.
Response: NMFS agrees with the NRDC's suggestion. The Keyport Range
Complex maintains a database of marine mammal sighting since 2003. NMFS
is working and will continue to work with the Navy to develop and
implement monitoring plans to help better understand the impacts of all
Naval RDT&E and training activities that have the potential to
adversely affect marine mammal species and their habitat. For the
proposed Keyport Range Complex RDT&E activities, various monitoring
measures will be implemented and are described in the Monitoring
section of this document.
Comment 11: The Commission requests that NMFS require the Navy to
develop and implement a detailed plan to verify the performance of the
visual monitoring, passive acoustic monitoring, and other monitoring
and mitigation measures being proposed to enable the Navy, NMFS, and
other

[[Page 20270]]

interested parties to evaluate their effectiveness.
Response: NMFS has worked with the Navy throughout the rulemaking
process to develop a series of mitigation, monitoring, and reporting
protocols that will effect the least practicable adverse impact and
increase our understanding of the impact of these activities on marine
mammals. These monitoring and reporting measures include, but are not
limited to: (1) The use of trained Navy marine observers who will
conduct marine mammal monitoring to avoid collisions with marine
mammals; (2) the use of exclusion zones that avoid exposing marine
mammals to levels of sound likely to result in injury or death of
marine mammals; (3) the use of MMOs/Navy marine observers to conduct
vessel and shore-based surveys; and (4) annual monitoring reports and
comprehensive reports to provide insights regarding impacts to marine
mammals.
NMFS will evaluate the effectiveness of these measures through
review and analyses of the Navy's annual monitoring reports, the annual
adaptive management meetings required by the final 5-year rule, as well
as a required Monitoring workshop that will be convened in 2011 to
solicit detailed input from experts regarding the effectiveness of the
Navy's monitoring. NMFS will, through this established adaptive
management process, work with the Navy to determine whether additional
mitigation and monitoring measures are necessary. In addition, with the
ICMP, which is a comprehensive monitoring planning and prioritization
tool, and the planned Monitoring Workshop in 2011, NMFS will work with
the Navy and other interested parties to further improve its monitoring
and mitigation plans for its future activities.

Miscellaneous Issues

Comment 12: Two individuals expressed general opposition to Navy
testing and bombing activities and NMFS' issuance of an MMPA
authorization because of the danger of killing marine life.
Response: NMFS appreciates the commenters' concern for the marine
mammals that live in the area of the proposed activities. However, the
proposed Keyport Range Complex activities do not include bombing or any
explosive detonations. The proposed activities, as described in detail
in the Proposed Rule (74 FR 32264; July 7, 2009), include the use of
active acoustic sources to conduct the Navy's RDT&E activities. In
addition, the MMPA allows individuals to take marine mammals incidental
to specified activities if NMFS can make the necessary findings
required by law (i.e., negligible impact, unmitigable adverse impact on
subsistence users, etc.). As explained throughout this rulemaking, NMFS
has made the necessary findings under 16 U.S.C. 1371(a)(5)(A) to
support issuance of the final rule.

Estimated Take of Marine Mammals

As mentioned previously, with respect to the MMPA, NMFS' effects
assessments serve four primary purposes: (1) To prescribe the
permissible methods of taking (i.e., Level B Harassment (behavioral
harassment), Level A Harassment (injury), or mortality, including an
identification of the number and types of take that could occur by
Level A or B harassment or mortality) and to prescribe other means of
effecting the least practicable adverse impact on such species or stock
and its habitat (i.e., mitigation); (2) to determine whether the
specified activity will have a negligible impact on the affected
species or stocks of marine mammals (based on the likelihood that the
activity will adversely affect the species or stock through effects on
annual rates of recruitment or survival); (3) to determine whether the
specified activity will have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (however,
there are no subsistence communities in the NAVSEA NUWC Keyport Range
Complex Study Area; thus, there would be no effect to any subsistence
user); and (4) to prescribe requirements pertaining to monitoring and
reporting.
In the Estimated Take of Marine Mammals section of the proposed
rule, NMFS related the potential effects to marine mammals from sonar
operations to the MMPA regulatory definitions of Level A and Level B
Harassment and assessed the effects to marine mammals that could result
from the specific activities that the Navy intends to conduct. The
subsections of this analysis are discussed in the proposed rule (74 FR
32264; July 7, 2009; pages 32281-32290).
In the Estimated Exposures of Marine Mammals section of the
proposed rule, NMFS described in detail how the take estimates were
calculated through modeling (74 FR 32264; July 7, 2009; pages 32290-
32292). A summary of potential exposures from active acoustic sources
(per year) for marine mammals in the NAVSEA NUWC Keyport Range Complex
Study Area is listed in Table 8. No change has been made to the final
rule.

Table 8--Combined Estimated Annual MMPA Level B Exposures (TTS and
Behavior) for Proposed Annual RDT&E Activities Operations at All Sites
After Implementation of Proposed Mitigation Measures
------------------------------------------------------------------------
Risk function sub-
TTS (level B) TTS behavioral
exposures exposures
------------------------------------------------------------------------
Endangered & Threatened Species
------------------------------------------------------------------------
Blue whale........................ 0 0
Fin whale......................... 0 0
Humpback whale.................... 0 0
Sei whale......................... 0 0
Sperm whale....................... 0 0
Killer whale...................... 0 0
Steller sea lion.................. 0 0
------------------------------------------------------------------------
Non-ESA Listed Species
------------------------------------------------------------------------
Minke whale....................... 0 0
Gray whale........................ 0 0
Dwarf and pygmy sperm whale....... 0 0
Baird's beaked whale.............. 0 0
Mesoplodons....................... 0 0

[[Page 20271]]

Risso's dolphin................... 0 0
Pacific white-sided dolphin....... 0 0
Short-beaked common dolphin....... 0 0
Striped dolphin................... 0 0
Northern right whale dolphin...... 0 0
Dall's porpoise................... 0 0
Harbor porpoise *................. 1 11,282
Northern fur seal................. 0 44
California sea lion............... 0 114
Northern elephant seal............ 0 14
Harbor seal....................... 2,062 3,507
------------------------------------------------------------------------
* For harbor porpoises, the model results represent the step function
criteria where 100% of the population exposed to 120 dB SPL are
listed. This is not a risk function calculation.

Effects on Marine Mammal Habitat

NMFS' NAVSEA NUWC Keyport Range Complex proposed rule included a
section that addressed the effects of the Navy's activities on Marine
Mammal habitat (74 FR 32264; July 7, 2009; pages 32292-32293). NMFS
concluded that the Navy's activities would have minimal effects on
marine mammal habitat. No changes have been made to the discussion
contained in this section of the proposed rule.

Analysis and Negligible Impact Determination

NMFS' NAVSEA NUWC Keyport Range Complex proposed rule included a
section that addressed the analysis and negligible impact determination
of the Navy's activities on the affected species or stocks (74 FR
32264; July 7, 2009; pages 32298-32300).
The Navy's specified activities have been described based on best
estimates of the planned RDT&E activities the Navy would conduct within
the proposed NAVSEA NUWC Keyport Range Complex Extension. The acoustic
sources proposed to be used in the NAVSEA NUWC Keyport Range Complex
Extension are low intensity and total proposed sonar operation hours
are under 1,570 hours. Taking the above into account, along with the
fact that NMFS anticipates no mortalities and injuries to result from
the action, the fact that there are no specific areas of reproductive
importance for marine mammals recognized within the Keyport Range
Complex Extension study area, the sections discussed below, and
dependent upon the implementation of the proposed mitigation measures,
NMFS has determined that Navy RDT&E activities utilizing underwater
acoustic sources will have a negligible impact on the affected marine
mammal species and stocks present in the proposed action area.

Behavioral Harassment

As discussed in the Potential Effects of Exposure of Marine Mammals
to HFAS/MFAS and illustrated in the conceptual framework, marine
mammals can respond to HFAS/MFAS in many different ways, a subset of
which qualifies as harassment. One thing that the take estimates do not
take into account is the fact that most marine mammals will likely
avoid strong sound sources to some extent. Although an animal that
avoids the sound source will likely still be taken in some instances
(such as if the avoidance results in a missed opportunity to feed,
interruption of reproductive behaviors, etc.) in other cases avoidance
may result in fewer instances of take than were estimated or in the
takes resulting from exposure to a lower received level than was
estimated, which could result in a less severe response. The Keyport
Range Complex application involves mid-frequency and high frequency
active sonar operations shown in Table 2, and none of the tests would
involve powerful tactical sonar such as the 53C series MFAS. Therefore,
any disturbance to marine mammals resulting from MFAS and HFAS in the
proposed Keyport Range Complex RDT&E activities is expected to be
significantly less in terms of severity when compared to major sonar
exercises (e.g., AFAST, HRC, SOCAL). In addition, high frequency
signals tend to have more attenuation in the water column and are more
prone to lose their energy during propagation. Therefore, their zones
of influence are much smaller, thereby making it easier to detect
marine mammals and prevent adverse effects from occurring.
There is limited information available concerning marine mammal
reactions to MFAS/HFAS. The Navy has only been conducting monitoring
activities since 2006. From the four major training exercises (MTEs) of
HFAS/MFAS in the SOCAL Study Area for which NMFS has received training
and monitoring reports, no instances of obvious behavioral disturbance
were observed by the Navy watchstanders. The proposed activities in the
Keyport Range Complex are RDT&E activities, which are much smaller in
scale when compared with major training events in SOCAL. One cannot
conclude from these results that marine mammals were not harassed from
HFAS/MFAS, as a portion of animals within the area of concern may not
have been seen (especially those more cryptic, deep-diving species,
such as beaked whales or Kogia sp.) and some of the non-biologist
watchstanders might not have had the expertise to characterize
behaviors. However, the data demonstrate that the animals that were
observed did not respond in any of the obviously more severe ways, such
as panic, aggression, or anti-predator response.
In addition to the monitoring that will be required pursuant to
these regulations and subsequent LOAs, which is specifically designed
to help us better understand how marine mammals respond to sound, the
Navy and NMFS have developed, funded, and begun conducting a controlled
exposure experiment with beaked whales in the Bahamas.

Diel Cycle

As noted previously, many animals perform vital functions, such as
feeding,

[[Page 20272]]

resting, traveling, and socializing on a diel cycle (24-hr cycle).
Substantive behavioral reactions to noise exposure (such as disruption
of critical life functions, displacement, or avoidance of important
habitat) are more likely to be significant if they last more than one
diel cycle or recur on subsequent days (Southall et al., 2007).
Consequently, a behavioral response lasting less than one day and not
recurring on subsequent days is not considered particularly severe
unless it could directly affect reproduction or survival (Southall et
al., 2007).
In the previous section, we discussed the fact that potential
behavioral responses to HFAS/MFAS that fall into the category of
harassment could range in severity. By definition, the takes by Level B
behavioral harassment involve the disturbance of a marine mammal or
marine mammal stock in the wild by causing disruption of natural
behavioral patterns (such as migration, surfacing, nursing, breeding,
feeding, or sheltering) to a point where such behavioral patterns are
abandoned or significantly altered. These reactions would, however, be
more of a concern if they were expected to last over 24 hours or be
repeated in subsequent days. Different sonar testing may not occur
simultaneously. Some of the marine mammals in the Keyport Range Complex
Study Area are residents and others would not likely remain in the same
area for successive days, it is unlikely that animals would be exposed
to HFAS/MFAS at levels or for a duration likely to result in a
substantive response that would then be carried on for more than one
day or on successive days.

TTS

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

Acoustic Masking or Communication Impairment

As discussed above, it is also possible that anthropogenic sound
could result in masking of marine mammal communication and navigation
signals. However, masking only occurs during the time of the signal
(and potential secondary arrivals of indirect rays), versus TTS, which
occurs continuously for its duration. Masking effects from HFAS/MFAS
are expected to be minimal. If masking or communication impairment were
to occur briefly, it would be in the frequency range of MFAS, which
overlaps with some marine mammal vocalizations; however, it would
likely not mask the entirety of any particular vocalization or
communication series because the pulse length, frequency, and duty
cycle of the HFAS/MFAS signal does not perfectly mimic the
characteristics of any marine mammal's vocalizations.

PTS, Injury, or Mortality

The Navy's model estimated that no marine mammal would be taken by
Level A harassment (injury, PTS included) or mortality due to the low
intensity of the active sound sources being used.
Based on the aforementioned assessment, NMFS determines that there
would be the following number of takes: 11,283 harbor porpoises, 44
northern fur seals, 114 California sea lions, 14 northern elephant
seals, and 5,569 harbor seals (5,468 Washington Inland Waters stock and
101 Oregon/Washington Coastal stock) by Level B harassment (TTS and
sub-TTS) as a result of the proposed Keyport Range Complex RDT&E sonar
testing activities. These numbers very likely do not represent the
number of individuals that would be taken, since it's most likely that
many individual marine mammals would be taken multiple times. However,
if each take represents a different animal, these take numbers
represent approximately 29.89%, 0.01%, 0.05%, 0.01%, 37.42%, and 0.41%
of the Oregon/Washington Coastal stock harbor porpoises, Eastern
Pacific stock northern fur seals, U.S. stock California sea lions,
California breeding stock northern elephant seals, Washington Inland
Waters stock harbor seals, and Oregon/Washington Coastal stock harbor
seals, respectively, in the vicinity of the proposed Keyport Range
Complex Study Area (calculation based on NMFS 2007 U.S. Pacific Marine
Mammal Stock Assessments and 2007 U.S. Alaska Marine Mammal Stock
Assessments).

[[Page 20273]]

No Level A take (injury, PTS included) or mortality would occur as
the result of the proposed RDT&E and range extension activities for the
Keyport Range Complex.
Based on these analyses, NMFS has determined that the total taking
over the 5-year period of the regulations and subsequent LOAs from the
Navy's NAVSEA NUWCX Keyport Range Complex RDT&E and range extension
activities will have a negligible impact on the marine mammal species
and stocks present in the Keyport Range Complex Study Area. No changes
have been made to the discussion contained in this section of the
proposed rule.

Subsistence Harvest of Marine Mammals

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

ESA

There are eight marine mammal species/stocks, one sea turtle
species, and four fish species over which NMFS has jurisdiction that
are listed as endangered or threatened under the ESA that could occur
in the NAVSEA NUWC Keyport Range Complex study area: Blue whale, fin
whale, sei whale, humpback whale, North Pacific right whale, sperm
whale, Southern Resident killer whale, Steller sea lions, leatherback
sea turtle, Puget Sound Chinook salmon, Hood Canal summer-run chum
salmon, Puget Sound Steelhead trout, and Coastal-Puget Sound bull
trout.
Pursuant to Section 7 of the ESA, the Navy has consulted with NMFS
on this action. NMFS has also consulted internally on the issuance of
regulations under section 101(a)(5)(A) of the MMPA for this activity.
NMFS' Biological Opinion concludes that the proposed RDT&E activities
are not likely to jeopardize the continued existence of the threatened
and endangered species listed under the ESA under NMFS jurisdiction.

NEPA

NMFS participated as a cooperating agency on the Navy's Final
Environmental Impact Statement (FEIS) for the NAVSEA NUWC Keyport Range
Complex, published on May 12, 2010. NMFS has adopted the Navy's EIS/
OEIS in connection with this MMPA rulemaking and has prepared a record
of decision.

Determination

Based on the analysis contained herein and in the proposed rule
(and other related documents) of the likely effects of the specified
activity on marine mammals and their habitat and dependent upon the
implementation of the mitigation and monitoring measures, NMFS finds
that the total taking from the NAVSEA NUWC Keyport Range Complex's
RDT&E activities utilizing active acoustic sources (including MFAS/
HFAS) over the 5 year period will have a negligible impact on the
affected species or stocks and will not result in an unmitigable
adverse impact on the availability of marine mammal species or stocks
for taking for subsistence uses. NMFS has issued regulations for these
exercises that prescribe the means of effecting the least practicable
adverse impact on marine mammals and their habitat and set forth
requirements pertaining to the monitoring and reporting of that taking.

Classification

This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act.
This proposed rule has been determined by the Office of Management
and Budget to be not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce certified to the Chief Counsel
for Advocacy of the Small Business Administration at the proposed rule
stage that this rule, if adopted, would not have a significant economic
impact on a substantial number of small entities, and published such
certification in the Federal Register notice of proposed rulemaking. No
changes have been made that affect that certification. Accordingly, no
final regulatory flexibility analysis is required, and none has been
prepared.
The Assistant Administrator for Fisheries has determined that there
is good cause under the Administrative Procedure Act (5 U.S.C.
553(d)(3)) to waive the 30-day delay in effective date of the measures
contained in the final rule. The Navy has a compelling national policy
reason to continue military readiness activities without interruption
in the Keyport Range Complex. As discussed below, suspension/
interruption of the Navy's ability to conduct RDT&E activities disrupts
adequate and realistic testing of military equipment, vehicles,
weapons, and sensors for proper operation and suitability for combat
essential to our national security.
In order to meet its national security objectives, the Navy must
continually maintain its ability to operate in a challenging at-sea
environment, conduct military operations, control strategic maritime
transit routes and international straits, and protect sea lines of
communications that support international commerce. To meet these
objectives, the Navy must identify, develop, and procure defense
systems by continually integrating test and evaluation support
throughout the defense acquisition process and providing essential
information to decision-makers. Such testing and evaluation is critical
in determining that a defense system performs as expected and whether
these systems are operationally effective, suitable, survivable, and
safe for their intended use.
In order to effectively fulfill its national security mission, the
Navy has a need to conduct RDT&E activities covered by this final rule
as soon as possible. The defense acquisition process is structured to
be responsive and acquire quality products that satisfy user needs with
measurable improvements on mission capability and operational support
in a timely manner. Test and evaluation confirms performance of
platforms and systems against documented capability needs and adversary
capabilities. Delays in acquisition test and evaluation affect the
Navy's need to meet its statutory mission to deploy worldwide naval
forces equipped to meet existing and emergent threats. The Navy has and
will be unable to plan to conduct activities covered by this final rule
in the immediate future due to the uncertainties in the planning
process and the fiscal and other consequences of planning for,
preparing for, and then cancelling a major testing event. A 30-day
delay furthers the amount of time the Navy is unable to plan for and
execute an activity covered by this rule. Further, should an immediate
national security requirement to use the range complex arise, the 30
day delay would prevent the Navy from meeting its mission. This would
have adverse national security consequences.
Waiver of the 30-day delay of the effective date of the final rule
will allow the Navy to continue to integrate RDT&E activities into the
defense acquisition process to meet test and evaluation requirements,
and to put capability into the hands of U.S. Sailors and Marines
quickly.

[[Page 20274]]

List of Subjects in 50 CFR Part 218

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

Dated: April 4, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 218 is amended
as follows.

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

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

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

0
2. Subpart R is added to part 218 to read as follows:
Subpart R--Taking Marine Mammals Incidental to U.S. Navy Research,
Development, Test, and Evaluation Activities in the Naval Sea System
Command (NAVSEA) Naval Undersea Warfare Center Keyport Range Complex
and the Associated Proposed Extensions Study Area
Sec.
218.170 Specified activity and specified geographical area and
effective dates.
218.171 Permissible methods of taking.
218.172 Prohibitions.
218.173 Mitigation.
218.174 Requirements for monitoring and reporting.
218.175 Applications for Letters of Authorization.
218.176 Letters of Authorization.
218.177 Renewal of Letters of Authorization and adaptive management.
218.178 Modifications to Letters of Authorization.

Subpart R--Taking Marine Mammals Incidental to U.S. Navy Research,
Development, Test, and Evaluation Activities in the Naval Sea
System Command (NAVSEA) Naval Undersea Warfare Center (NUWC)
Keyport Range Complex and the Associated Proposed Extensions Study
Area

Sec. 218.170 Specified activity and specified geographical area and
effective dates.

(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occur 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) These regulations apply only to the taking of marine mammals by
the Navy that occurs within the Keyport Range Complex Action Area,
which includes the extended Keyport Range Site, the extended Dabob Bay
Range Complex (DBRC) Site, and the extended Quinault Underwater
Tracking Range (QUTR) Site, as presented in the Navy's LOA application.
The NAVSEA NUWC Keyport Range Complex is divided into open ocean/
offshore areas and in-shore areas:
(1) Open Ocean Area--air, surface, and subsurface areas of the
NAVSEA NUWC Keyport Range Complex Extension that lie outside of 12
nautical miles (nm) from land.
(2) Offshore Area--air, surface, and subsurface ocean areas within
12 nm of the Pacific Coast.
(3) In-shore--air, surface, and subsurface areas within the Puget
Sound, Port Orchard Reach, Hood Canal, and Dabob Bay.
(c) These regulations apply only to the taking of marine mammals by
the Navy if it occurs incidental to the following activities, or
similar activities and sources (estimated amounts of use below):
(1) Range Activities Using Active Acoustic Devices:
(i) General range tracking: Narrow frequency output between 10 to
100 kHz with source levels (SL) between 195-203 dB re 1 microPa @ 1 m--
up to 504.5 hours per year.
(ii) UUV Payloads: Operating frequency of 10 to 100 kHz with SLs
less than 195 dB re 1 microPa @ 1 m at all range sites--up to 166 hours
per year.
(iii) Torpedo Sonars: Operating frequency from 10 to 100 kHz with
SL under 233 dB re 1 microPa @ 1 m--up to 21 hours per year.
(iv) Range Targets and Special Test Systems: 5 to 100 kHz frequency
range with a SL less than 195 dB re 1 microPa @ 1 m at the Keyport
Range Site and SL less than 238 dB re microPa @ 1 m at the DBRC and
QUTR sites--up to 9 hours per year.
(v) Special Sonars (non-Navy, shore/pire static testing, diver
activities) and Fleet Aircraft (active sonobuoys and dipping sonars):
Frequencies vary from 100 to 2,500 kHz with SL less than 235 dB re 1
microPa @ 1 m--up to 321 hours per year.
(vi) Side Scan Sonar: Multiple frequencies typically at 100 to 700
kHz with SLs less than 235 dB re 1 microPa @ 1 m--up to 166 hours per
year.
(vii) Other Acoustic Sources:
(A) Acoustic Modems: Emit pulses at frequencies from 10 to 300 kHz
with SLs less than 210 dB re 1 microPa @ 1 m--up to 166 hours per year.
(B) Sub-bottom Profilers: Operate at 2 to 7 kHz at SLs less than
210 dB re 1 microPa @ 1 m, and 35 to 45 kHz at SLs less than 220 dB re
1 microPa @ 1 m--up to 192 hours per year.
(C) Target simulator (surface vessels, submarines, torpedoes, and
UUV engine noise): Acoustic energy from engines usually from 50 Hz to
10 kHz at SLs less than 170 dB re 1 microPa @ 1 m--up to 24.5 hours per
year.
(2) Increased Tempo and Activities due to Range Extension:
Estimates of annual range activities and operations are listed in the
following table, but may vary provided that the variation does not
result in exceeding the amount of take indicated in Sec. 218.171(c):

----------------------------------------------------------------------------------------------------------------
Proposed number of activities/year \1\
-----------------------------------------------
Range activity Platform/system used Keyport range
site DBRC site QUTR site
----------------------------------------------------------------------------------------------------------------
Test Vehicle Propulsion............... Thermal propulsion 5 130 30
systems. 55 140 30
Electric/Chemical
propulsion systems.
Other Testing Systems and Activities.. Submarine testing....... 0 45 15
Inert mine detection, 5 20 10
classification and
localization.
Non-Navy testing........ 5 5 5
Acoustic & non-acoustic 20 10 5
sensors (magnetic
array, oxygen).
Countermeasure test..... 5 50 5
Impact testing.......... 0 10 5
Static in-water testing. 10 10 6
UUV test................ 45 120 40
Unmanned Aerial System 0 2 2
(UAS) test.

[[Page 20275]]

Fleet Activities \2\ (excluding RDT&E) Surface Ship activities. 1 10 10
Aircraft activities..... 0 10 10
Submarine activities.... 0 30 30
Diver activities........ 45 5 15
Deployment Systems (RDT&E)............ Range support vessels:.. .............. .............. ..............
Surface launch craft. 35 180 30
Special purpose 25 75 0
barges.
Fleet vessels \3\....... 15 20 20
Aircraft (rotary and 0 10 20
fixed wing).
Shore and pier.......... 45 30 30
----------------------------------------------------------------------------------------------------------------
\1\ There may be several activities in 1 day. These numbers provide an estimate of types of range activities
over the year.
\2\ Fleet activities in the NAVSEA NUWC Keyport Range Complex do not include the use of surface ship and
submarine hull-mounted active sonars.
\3\ As previously noted, Fleet vessels can include very small craft such as SEAL Delivery Vehicles.

(d) Regulations in this subpart are effective April 11, 2011
through April 11, 2016.

Sec. 218.171 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 218.176 of this chapter, the Holder of the Letter of
Authorization may incidentally, but not intentionally, take marine
mammals within the area described in Sec. 218.170(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. 218.170(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. 218.170(c) is limited to the following species, by
Level B harassment only and the indicated number of times:
(1) Harbor porpoise (Phocoena phocoena)--56,415 (an average of
11,283 annually);
(2) Northern fur seal (Callorhinus ursinus)--220 (an average of 44
annually);
(3) California sea lion (Zalophus californianus)--570 (an average
of 114 annually);
(4) Northern elephant seal (Mirounga angustirostris)--70 (an
average of 14 annually);
(5) Harbor seal (Phoca vitulina richardsi) (Washington Inland
Waters stock)--27,340 (an average of 5,468 annually); and
(6) Harbor seal (P. v. richardsi) (Oregon/Washington Coastal
stock)--505 (an average of 101 annually).

Sec. 218.172 Prohibitions.

Notwithstanding takings contemplated in Sec. 218.171 and
authorized by a Letter of Authorization issued under Sec. 216.106 of
this chapter and Sec. 218.176, no person in connection with the
activities described in Sec. 218.170 may:
(a) Take any marine mammal not specified in Sec. 218.171(c);
(b) Take any marine mammal specified in Sec. 218.171(c) other than
by incidental take as specified in Sec. 218.171 (c);
(c) Take a marine mammal specified in Sec. 218.171(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. 216.106 of this chapter and Sec. 218.176.

Sec. 218.173 Mitigation.

When conducting RDT&E activities identified in Sec. 218.170(c),
the mitigation measures contained in this subpart and subsequent
Letters of Authorization issued under Sec. 216.106 of this chapter and
Sec. 218.176 must be implemented. These mitigation measures include,
but are not limited to:
(a) Marine mammal observers training:
(1) All range personnel shall be trained in marine mammal
recognition.
(2) Marine mammal observer training shall be conducted by qualified
organizations approved by NMFS.
(b) Lookouts onboard vessels:
(1) Vessels on a range shall use lookouts during all hours of range
activities.
(2) Lookout duties include looking for marine mammals.
(3) All sightings of marine mammals shall be reported to the Range
Officer in charge of overseeing the activity.
(c) Visual surveillance shall be conducted just prior to all in-
water exercises.
(1) Surveillance shall include, as a minimum, monitoring from all
participating surface craft and, where available, adjacent shore sites.
(2) When cetaceans have been sighted in the vicinity of the
operation, all range participants increase vigilance and take
reasonable and practicable actions to avoid collisions and activities
that may result in close interaction of naval assets and marine
mammals.
(3) Actions may include changing speed and/or direction, subject to
environmental and other conditions (e.g., safety, weather).
(d) An ``exclusion zone'' shall be established and surveillance
will be conducted to ensure that there are no marine mammals within
this exclusion zone prior to the commencement of each in-water
exercise.
(1) For cetaceans, the exclusion zone shall extend out 1,000 yards
(914.4 m) from the intended track of the test unit.
(2) For pinnipeds, the exclusion zone shall extend out 100 yards
(91 m) from the intended track of the test unit.
(e) Range craft shall not approach within 100 yards (91 m) of
marine mammals, to the extent practicable considering human and vessel
safety priorities. This includes marine mammals ``hauled-out'' on
islands, rocks, and other areas such as buoys.
(f) In the event of a collision between a Navy vessel and a marine
mammal, NUWC Keyport activities shall notify immediately the Navy chain
of Command, which shall notify NMFS immediately.
(g) Passive acoustic monitoring for cetaceans will be implemented
throughout the NUWC Keyport Range Complex during RDT&E testing
activities involving active sonar transmissions when passive acoustic
monitoring capabilities are being operated during the testing activity.
(h) Procedures for reporting marine mammal sightings on the NAVSEA

[[Page 20276]]

NUWC Keyport Range Complex shall be promulgated, and sightings shall be
entered into the Range Operating System and forwarded to NOAA/NMML
Platforms of Opportunity Program.
(i) If there is clear evidence that a marine mammal is injured or
killed as a result of the proposed Navy RDT&E activities, the Naval
activities shall be immediately suspended and the situation immediately
reported by personnel involved in the activity to the Ranger Officer,
who will follow Navy procedures for reporting the incident to NMFS
through the Navy's chain-of-command.
(j) For nighttime RDT&E activities of active acoustic transmissions
in the Keyport Range proposed extension area, the Navy shall conduct
passive acoustic monitoring within the Agate Pass and south of
University Point in southern Port Orchard Reach. If Southern Resident
killer whales are detected in the vicinity of the Keyport Range Site,
the Range Office shall be notified immediately and the active acoustic
sources must be shutdown if killer whales are confirmed to approach at
1,000 yards from the source.

Sec. 218.174 Requirements for monitoring and reporting.

(a) The Holder of the Letter of Authorization issued pursuant to
Sec. 216.106 of this chapter and Sec. 218.176 for activities
described in Sec. 218.170(c) is required to cooperate with the NMFS
when monitoring the impacts of the activity on marine mammals.
(b) The Holder of the Authorization must notify NMFS immediately
(or as soon as clearance procedures allow) if the specified activity
identified in Sec. 218.170(c) is thought to have resulted in the
mortality or injury of any marine mammals, or in any take of marine
mammals not identified or authorized in Sec. 218.171(c).
(c) The Navy must conduct all monitoring and required reporting
under the Letter of Authorization, including abiding by the NAVSEA NUWC
Keyport Range Complex Monitoring Plan, which is incorporated herein by
reference, and which requires the Navy to implement, at a minimum, the
monitoring activities summarized below:
(1) Visual Surveys:
(i) The Holder of this Authorization shall conduct a minimum of 2
special visual surveys per year to monitor HFAS and MFAS respectively
at the DBRC Range site.
(ii) For specified events, shore-based and vessel surveys shall be
used 1 day prior to and 1-2 days post activity.
(A) Shore-based Surveys:
(1) Shore-based monitors shall observe test events that are planned
in advance to occur adjacent to near shore areas where there are
elevated topography or coastal structures, and shall use binoculars or
theodolite to augment other visual survey methods.
(2) Shore-based surveys of the test area and nearby beaches shall
be conducted for stranded marine animals following nearshore events. If
any distressed, injured or stranded animals are observed, an assessment
of the animal's condition (alive, injured, dead, or degree of
decomposition) shall be reported immediately to the Navy and the
information shall be transmitted immediately to NMFS through the
appropriate chain of command.
(B) Vessel-based Surveys:
(1) Vessel-based surveys shall be designed to maximize detections
of marine mammals near mission activity event.
(2) Post-analysis shall focus on how the location, speed and vector
of the range craft and the location and direction of the sonar source
(e.g. Navy surface vessel) relates to the animal.
(3) Any other vessels or aircraft observed in the area shall also
be documented.
(iii) Surveys shall include the range site with special emphasis
given to the particular path of the test run. When conducting a
particular survey, the survey team shall collect the following
information.
(A) Species identification and group size;
(B) Location and relative distance from the acoustic source(s);
(C) The behavior of marine mammals including standard environmental
and oceanographic parameters;
(D) Date, time and visual conditions associated with each
observation;
(E) Direction of travel relative to the active acoustic source; and
(F) Duration of the observation.
(iv) Animal sightings and relative distance from a particular
active acoustic source shall be used post-survey to determine potential
received energy (dB re 1 micro Pa-sec). This data shall be used, post-
survey, to estimate the number of marine mammals exposed to different
received levels (energy based on distance to the source, bathymetry,
oceanographic conditions and the type and power of the acoustic source)
and their corresponding behavior.
(2) Passive Acoustic Monitoring (PAM):
(i) The Navy shall deploy a hydrophone array in the Keyport Range
Complex Study Area for PAM.
(ii) The array shall be utilized during the two special monitoring
surveys in DBRC as described in Sec. 218.174(c)(1)(i).
(iii) The array shall have the capability of detecting low
frequency vocalizations (<1,000 Hz) for baleen whales and relatively
high frequency (up to 30 kHz) for odontocetes.
(iv) Acoustic data collected from the PAM shall be used to detect
acoustically active marine mammals as appropriate.
(3) Marine Mammal Observers on range craft or Navy vessels:
(i) Navy Marine mammal observers (NMMOs) may be placed on a range
craft or Navy platform during the event being monitored.
(ii) The NMMO must possess expertise in species identification of
regional marine mammal species and experience collecting behavioral
data.
(iii) NMMOs may be placed alongside existing lookouts during the
two specified monitoring events as described in Sec. 218.174(c)(1)(i).
(iv) NMMOs shall inform the lookouts of any marine mammal sighting
so that appropriate action may be taken by the chain of command. NMMOs
shall schedule their daily observations to duplicate the lookouts'
schedule.
(v) NMMOs shall observe from the same height above water as the
lookouts, and they shall collect the same data collected by lookouts
listed in Sec. 218.174(c)(1)(iii).
(d) The Navy shall complete an Integrated Comprehensive Monitoring
Program (ICMP) Plan in 2009. This planning and adaptive management tool
shall include:
(1) A method for prioritizing monitoring projects that clearly
describes the characteristics of a proposal that factor into its
priority.
(2) A method for annually reviewing, with NMFS, monitoring results,
Navy R&D, and current science to use for potential modification of
mitigation or monitoring methods.
(3) A detailed description of the Monitoring Workshop to be
convened in 2011 and how and when Navy/NMFS will subsequently utilize
the findings of the Monitoring Workshop to potentially modify
subsequent monitoring and mitigation.
(4) An adaptive management plan.
(5) A method for standardizing data collection for NAVSEA NUWC
Keyport Range Complex Extension and across range complexes.
(e) Notification of Injured or Dead Marine Mammals--Navy personnel
shall ensure that NMFS (regional stranding coordinator) is notified
immediately (or as soon as clearance procedures allow) if an injured or
dead marine mammal is found during or

[[Page 20277]]

shortly after, and in the vicinity of, any Navy activities utilizing
sonar. The Navy shall provide NMFS with species or description of the
animal(s), the condition of the animal(s) (including carcass condition
if the animal is dead), location, time of first discovery, observed
behaviors (if alive), and photo or video (if available).
(f) Annual Keyport Range Complex Monitoring Plan Report--The Navy
shall submit a report annually by December 1 describing the
implementation and results (through September 1 of the same year) of
the Keyport Range Complex Monitoring Plan. Data collection methods will
be standardized across range complexes to allow for comparison in
different geographic locations. Although additional information will
also be gathered, the NMMOs collecting marine mammal data pursuant to
the Keyport Range Complex Monitoring Plan shall, at a minimum, provide
the same marine mammal observation data required in Sec. 218.174(c).
The Keyport Range Complex Monitoring Plan Report may be provided to
NMFS within a larger report that includes the required Monitoring Plan
Reports from Keyport Range Complex and multiple range complexes.
(g) Keyport Range Complex 5-yr Comprehensive Report--The Navy shall
submit to NMFS a draft comprehensive report that analyzes and
summarizes all of the multi-year marine mammal information gathered
during tests involving active acoustic sources for which individual
reports are required in Sec. 218.174 (d)-(f). This report will be
submitted at the end of the fourth year of the rule (June 2013),
covering activities that have occurred through September 1, 2013.
(h) The Navy shall respond to NMFS comments and requests for
additional information or clarification on the Keyport Range Complex
Extension Comprehensive Report, the Annual Keyport Range Complex
Monitoring Plan Report (or the multi-Range Complex Annual Monitoring
Report, it that is how the Navy chooses to submit the information) if
submitted within 3 months of receipt. The report will be considered
final after the Navy has addressed NMFS' comments, or three months
after the submittal of the draft if NMFS does not comment by then.
(i) In 2011, the Navy shall convene a Monitoring Workshop in which
the Monitoring Workshop participants will be asked to review the Navy's
Monitoring Plans and monitoring results and make individual
recommendations (to the Navy and NMFS) of ways of improving the
Monitoring Plans. The recommendations shall be reviewed by the Navy, in
consultation with NMFS, and modifications to the Monitoring Plan shall
be made, as appropriate.

Sec. 218.175 Applications for Letters of Authorization.

To incidentally take marine mammals pursuant to these regulations
for the activities identified in Sec. 218.170(c), the U.S. Navy must
apply for and obtain either an initial Letter of Authorization in
accordance with Sec. 218.176 or a renewal under Sec. 218.177.

Sec. 218.176 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. 218.177.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization will be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).

Sec. 218.177 Renewal of Letters of Authorization and adaptive
management.

(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
218.176 for the activity identified in Sec. 218.170(c) will be renewed
annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 218.175 shall be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12 months;
(2) Timely receipt of the monitoring reports required under Sec.
218.174(b); and
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 218.173 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 218.176, 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 218.177 indicates that a substantial
modification to the described work, mitigation or monitoring undertaken
during the upcoming season will occur, the NMFS will provide the public
a period of 30 days for review and comment on the request. Public
comment on renewals of Letters of Authorization are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
(d) NMFS, in response to new information and in consultation with
the Navy, may modify the mitigation or monitoring measures in
subsequent LOAs if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of mitigation and monitoring set
forth in the preamble of these regulations. Below are some of the
possible sources of new data that could contribute to the decision to
modify the mitigation or monitoring measures:
(1) Results from the Navy's monitoring from the previous year
(either from Keyport Range Complex Study Area or other locations).
(2) Findings of the Monitoring Workshop that the Navy will convene
in 2011 (Sec. 218.174(i)).
(3) Compiled results of Navy funded research and development (R&D)
studies (presented pursuant to the ICMP (Sec. 218.174(d)).
(4) Results from specific stranding investigations (either from the
Keyport Range Complex Study Area or other locations).
(5) Results from the Long Term Prospective Study described in the
preamble to these regulations.
(6) Results from general marine mammal and sound research (funded
by the Navy (described below) or otherwise).
(7) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not authorized by these regulations
or subsequent Letters of Authorization.

Sec. 218.178 Modifications to Letters of Authorization.

(a) Except as provided in paragraph (b) of this section and Sec.
218.177(d), no substantive modification (including withdrawal or
suspension) to the Letter of Authorization by NMFS, issued

[[Page 20278]]

pursuant to Sec. 216.106 of this chapter and Sec. 218.176 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. 218.177, 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. 218.171(b), a Letter of
Authorization issued pursuant to Sec. 216.106 of this chapter and
Sec. 218.176 may be substantively modified without prior notification
and an opportunity for public comment. Notification will be published
in the Federal Register within 30 days subsequent to the action.

[FR Doc. 2011-8573 Filed 4-11-11; 8:45 am]
BILLING CODE 3510-22-P