Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 20257 

Issued on: April 7, 2011. 

Joseph S. Carra, 

Acting Associate Administrator for 

Rulemaking. 

[FR Doc. 2011–8744 Filed 4–11–11; 8:45 am] 

BILLING CODE 4910–59–C 

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://wwwkeyport.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 


erowe on DSK5CLS3C1PROD with RULES
20258 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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, subbottom profilers, and vessel engines, 

etc.); and testing that involves nonacoustic 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 

§ 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 

§ 218.170(c)(2) that allows for interannual 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 

site DBRC site QUTR site— offshore 

QUTR site— 

surf 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

Source Frequency 

(kHz) 

Max. source level 

(dB re 1 μPa @ 1 

m) 

Keyport site operating hours/yr DBRC site operating hours/yr QUTR site operating hours/yr All sites total operating hours/yr 

Sonar 

General range tracking ........... 10–100 195 (at Keyport 

Site); 203 (at 

DBRC & QUTR 

Sites).

108.90 95.00 300.60 504.50 

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);.

238 (at DBRC & 

QUTR Sites).

1.33 6.67 1.00 9.00 

Special sonars (non-Navy, 

shore/pier static testing, 

diver activities) & Fleet Aircraft (active sonobuoys & 

dipping sonars).

2–2,500 225–235 .............. 105.00 120.00 96.00 321.00 

Side-scan ................................ 100–700 235 ...................... 42.00 100.00 24.00 166.00 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 20259 

TABLE 2—PRIMARY ACOUSTIC SOURCES COMMONLY USED WITHIN THE NAVSEA NUWC KEYPORT RANGE COMPLEX

AND THEIR ANNUAL OPERATING HOURS—Continued 

Source Frequency 

(kHz) 

Max. source level 

(dB re 1 μPa @ 1 

m) 

Keyport site operating hours/yr DBRC site operating hours/yr QUTR site operating hours/yr All sites total operating hours/yr 

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, submarines, torpedoes, and UUV engine 

noise).

0.05—10 170 ...................... 1.33 20.00 2.99 24.33 

TABLE 3—PROPOSED ANNUAL RANGE ACTIVITIES AND OPERATIONS

Range activity Platform/system used 

Proposed number of activities/year* 

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 and localization .................... 5 20 10 

Non-Navy testing ......................................................................... 5 5 5 

Other Testing Systems and Activities.Acoustic & non-acoustic sensors (magnetic array, oxygen) ....... 20 10 5 

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 

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 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 Federallyendangered 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. 


erowe on DSK5CLS3C1PROD with RULES
20260 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

TABLE 4—MARINE MAMMAL KNOWN TO OCCUR OR POTENTIALLY OCCUR WITHIN THE KEYPORT ACTION AREA

Species ESA/MMPA 

status Occurrence in keyport action area 

Density estimate (km3) 

Warm Season Cold Season 

Cetacean 

Mysticetes 

Minke whale ................................................ -/- ....................... Very rare, year round ................................. (a) 0 (a) 0 

Humpback whale ........................................ E/D .................... Very rare, warm season; has never been 

recorded in action area.

(a) 0 (a) 0 

Gray whale .................................................. -/- ....................... Very rare, migrant and summer/fall resident population in primarily northern 

Puget Sound.

(a) 0 (a) 0 

Odontocetes 

Killer whale:.

Transient .............................................. -/- ....................... Very rare, year round; has never been recorded in action area.

(a) 0 (a) 0 

S. Resident .......................................... E, CH/D ............. Very rare, summer/fall season; has never 

been recorded in action area..

(a) 0 (a) 0 

Dall’s porpoise ............................................ -/- ....................... Rare, year round. ....................................... (a) 0 (a) 0 

Pinnipeds 

Harbor seal ................................................. -/- ....................... Common year-round resident ..................... 0 .55 0 .55 

California sea lion ....................................... -/- ....................... Rare, cold season ...................................... (a) 0 (a) 0 

Steller sea lion ............................................ T/D .................... Rare, cold season; has never been recorded in action area.

(a) 0 (a) 0 

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

Species ESA/MMPA 

status Occurrence in keyport action area 

Density estimate (km3) 

Warm Season Cold Season 

Cetacean 

Mysticetes 

Minke whale ............................................... -/- ...................... Very rare, year round; has never been recorded in action area.

(a) 0 ................... (a) 0 

Humpback whale ........................................ E/D .................... Very rare, warm season; has never been 

recorded in action area.

(a) 0 ................... (a) 0 

Gray whale ................................................. -/- ...................... Very rare, spring/fall migrant and summer/ 

fall resident population in primarily 

northern Puget Sound.

(a) 0 ................... (a) 0 

Odontocetes 

Killer whale 

Transient .................................................... -/- ...................... Uncommon, spring/summer ...................... Jan–Jun: 0.038 Jul–Dec: 0 

S. Resident ......................................... E/D .................... Very rare, no recorded occurrence in 

Hood Canal.

(a) 0 ................... (a) 0 

Dall’s porpoise ............................................ -/- ...................... Very rare, year round ................................ 0 ....................... 0 

Pinnipeds 

Harbor seal ................................................. -/- ...................... Common year-round resident .................... 1.31 .................. 1.31 

California sea lion ...................................... -/- ...................... Common resident and seasonal migrant .. (a) 0 ................... 0.052 

Steller sea lion ........................................... T/D .................... Very rare, cold season; has never been 

recorded in action area.

(a) 0 ................... (a) 0 

Notes: D = Depleted, E = Endangered, CH = Critical Habitat, T = Threatened. 

Warm season = May–October, Cold season = November–April. 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 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

Species ESA/MMPA 

status Occurrence in keyport action area 

Density estimate (km 3) 

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 cold season migration.0 NA 

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 except May–July ..... Aug–Apr: 0.283 

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 within the action 

area.

(a) 0 (a) 0 

Notes: D = Depleted, E = Endangered, CH = Critical Habitat, T = Threatened. 

Warm season = May–October, Cold season = November–April. 


erowe on DSK5CLS3C1PROD with RULES
20262 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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. 

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, naı ̈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, 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 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 nonparticipating 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-ofcommand. 

(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 


erowe on DSK5CLS3C1PROD with RULES
20264 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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 level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

(1) An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the analyses 

mentioned below. 

(2) An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of HFAS/ 

MFAS (or explosives or other stimuli) 

that we associate with specific adverse 

effects, such as behavioral harassment, 

TTS, or PTS. 

(3) An increase in our understanding 

of how marine mammals respond to 

HFAS/MFAS (at specific received 

levels), explosives, or other stimuli 

expected to result in take and how 

anticipated adverse effects on 

individuals (in different ways and to 

varying degrees) may impact the 

population, species, or stock 

(specifically through effects on annual 

rates of recruitment or survival) through 

any of the following methods: 

• Behavioral observations in the 

presence of HFAS/MFAS compared to 

observations in the absence of sonar 

(need to be able to accurately predict 

received level and report bathymetric 

conditions, distance from source, and 

other pertinent information). 

• Physiological measurements in the 

presence of HFAS/MFAS compared to 

observations in the absence of sonar 

(need to be able to accurately predict 

received level and report bathymetric 

conditions, distance from source, and 

other pertinent information), and/or 

• Pre-planned and thorough 

investigation of stranding events that 

occur coincident to naval activities. 

• Distribution and/or abundance 

comparisons in times or areas with 

concentrated HFAS/MFAS versus times 

or areas without HFAS/MFAS. 

(4) An increased knowledge of the 

affected species. 

(5) An increase in our understanding 

of the effectiveness of certain mitigation 

and monitoring measures. 

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 rangespecific 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. 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 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 


erowe on DSK5CLS3C1PROD with RULES
20266 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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 wellreasoned, 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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 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 ESAlisted 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, shortbeaked 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-ofcommand. 

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 noninjurious, 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 


erowe on DSK5CLS3C1PROD with RULES
20268 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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 

120 dB 

Source (km) 

level 

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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 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 highfrequency 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 nm2

to 1.7 nm2 (5.1 km2 to 5.9 km2). The 

area in critical habitat is therefore 

approximately 0.2 nm2 (0.8 km2). 

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 shutdown 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 microPa2

(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 

microPa2 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 


erowe on DSK5CLS3C1PROD with RULES
20270 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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

TTS (level B) 

exposures 

Risk function subTTS behavioral 

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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 20271 

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— 

Continued 

TTS (level B) 

exposures 

Risk function subTTS behavioral 

exposures 

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 midfrequency 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, deepdiving species, such as beaked whales 

or Kogia sp.) and some of the nonbiologist 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, 


erowe on DSK5CLS3C1PROD with RULES
20272 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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 midfrequency 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 freeswimming 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). 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 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 summerrun 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. 


erowe on DSK5CLS3C1PROD with RULES
20274 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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 

■ 1. The authority citation for part 218 

continues to read as follows: 

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

■ 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 

§ 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 § 218.171(c): 

Range activity Platform/system used 

Proposed number of activities/year 1

Keyport range 

site DBRC site QUTR site 

Test Vehicle Propulsion ................... Thermal propulsion systems .........................................

Electric/Chemical propulsion systems ..........................

5 

55 

130 

140 

30 

30 

Other Testing Systems and Activities.Submarine testing .........................................................

Inert mine detection, classification and localization .....

0 

5 

45 

20 

15 

10 

Non-Navy testing .......................................................... 5 5 5 

Acoustic & non-acoustic sensors (magnetic array, oxygen).20 10 5 

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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 20275 

Range activity Platform/system used 

Proposed number of activities/year 1

Keyport range 

site DBRC site QUTR site 

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 barges ......................................... 25 75 0 

Fleet vessels 3 ............................................................... 15 20 20 

Aircraft (rotary and fixed wing) ..................................... 0 10 20 

Shore and pier .............................................................. 45 30 30 

1There may be several activities in 1 day. These numbers provide an estimate of types of range activities over the year. 

2Fleet activities in the NAVSEA NUWC Keyport Range Complex do not include the use of surface ship and submarine hull-mounted active sonars. 3As 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. 

§ 218.171 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 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 § 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 

§ 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 § 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). 

§ 218.172 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.171 and 

authorized by a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 218.176, no person in connection 

with the activities described in 

§ 218.170 may: 

(a) Take any marine mammal not 

specified in § 218.171(c); 

(b) Take any marine mammal 

specified in § 218.171(c) other than by 

incidental take as specified in § 218.171 

(c); 

(c) Take a marine mammal specified 

in § 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 § 216.106 of 

this chapter and § 218.176. 

§ 218.173 Mitigation. 

When conducting RDT&E activities 

identified in § 218.170(c), the mitigation 

measures contained in this subpart and 

subsequent Letters of Authorization 

issued under § 216.106 of this chapter 

and § 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 


erowe on DSK5CLS3C1PROD with RULES
20276 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

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-ofcommand. 

(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. 

§ 218.174 Requirements for monitoring 

and reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§ 216.106 of this chapter and § 218.176 

for activities described in § 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 

§ 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 

§ 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 postsurvey 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 § 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 § 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 

§ 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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 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 

§ 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 

§ 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. 

§ 218.175 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations for the 

activities identified in § 218.170(c), the 

U.S. Navy must apply for and obtain 

either an initial Letter of Authorization 

in accordance with § 218.176 or a 

renewal under § 218.177. 

§ 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 § 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). 

§ 218.177 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 218.176 for the 

activity identified in § 218.170(c) will be 

renewed annually upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 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 § 218.174(b); and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.173 and 

the Letter of Authorization issued under 

§§ 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 

§§ 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 (§ 218.174(i)). 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 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. 

§ 218.178 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section and § 218.177(d), no 

substantive modification (including 

withdrawal or suspension) to the Letter 

of Authorization by NMFS, issued 


erowe on DSK5CLS3C1PROD with RULES
20278 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Rules and Regulations 

pursuant to § 216.106 of this chapter 

and § 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 § 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 wellbeing of the species or stocks of marine 

mammals specified in § 218.171(b), a 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and 

§ 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 


erowe on DSK5CLS3C1PROD with RULES