Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3395 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Parts 21 and 22 

[FWS–R9–MB–2009–0002; 91200–1231– 

9BPP] 

RIN 1018–AW44 

Migratory Bird Permits; Changes in the 

Regulations Governing Falconry 

Correction 

In rule document 2010–12 beginning 

on page 927 in the issue of Thursday, 

January 7, 2010, make the following 

corrections: 

1. On page 929, in the first column, 

under the Revisions to the Falconry 

Regulations heading, in the third line, 

‘‘(d)(1)(ii)(A)(4)’’ should read 

‘‘(d)(1)(ii)(A)(4)’’. 

2. On the same page, in the second 

column, in paragraph (5), in the second 

line, ‘‘§21.29(d)(1)(ii)(A)(4)’’ should read 

‘‘§21.29(d)(1)(ii)(A)(4)’’. 

§21.29 [Corrected] 

3. On page 931, in §21.29, in the first 

column, in amendatory instruction 3., in 

paragraph a., in the third line, 

‘‘(c)(3)(i)(C)(1), (2), and (3)’’ should read 

‘‘(c)(3)(i)(C)(1), (2), and (3)’’. 

4. On the same page, in the same 

section, in the same column, in 

amendatory instruction 3., in paragraph 

e., in the third line, ‘‘(c)(3)(iv)(A)(1) and 

(2)’’ should read ‘‘(c)(3)(iv)(A)(1) and 

(2)’’. 

5. On the same page, in the same 

section, in the same column, in 

amendatory instruction 3., in paragraph 

f., in the second line, ‘‘(c)(3)(iv)(A)(2)’’ 

should read ‘‘(c)(3)(iv)(A)(2)’’. 

6. On the same page, in the same 

section, in the same column, in 

amendatory instruction 3., in paragraph 

k., in the third and fourth lines, 

‘‘(d)(1)(ii)(A)(1), (2), (3), and (4)’’ should 

read ‘‘(d)(1)(ii)(A)(1), (2), (3), and (4)’’. 

7. On the same page, in the same 

section, in the same column, in 

amendatory instruction 3., in paragraph 

m., in the third line, ‘‘(d)(1)(ii)(B)(1) and 

(2)’’ should read ‘‘(d)(1)(ii)(B)(1) and (2)’’. 

8. On the same page, in the same 

section, in the same column, in 

amendatory instruction 3., in paragraph 

m., in the fifth line, ‘‘(d)(1)(ii)(D)(1), (2), 

and (3)’’ should read ‘‘(d)(1)(ii)(D)(1), (2), 

and (3)’’. 

9. On the same page, in the same 

section, in the second column, in 

paragraph s., in the third line, 

‘‘(e)(3)(vi)(C)(1) and (2)’’ should read 

‘‘(e)(3)(vi)(C)(1) and (2)’’. 

10. On the same page, in the same 

section, in the third column, in 

paragraph (4), in the first line, ‘‘(4)’’ 

should read ‘‘(4)’’. 

[FR Doc. C1–2010–12 Filed 1–20–10; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AW80 

Taking and Importing Marine 

Mammals; U.S. Naval Surface Warfare 

Center Panama City Division Mission 

Activities 

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 

Surface Warfare Center Panama City 

Division (NSWC PCD) for the period of 

January 2010 through January 2015. The 

Navy’s activities are considered military 

readiness activities pursuant to the 

Marine Mammal Protection Act 

(MMPA), as amended by the National 

Defense Authorization Act for Fiscal 

Year 2004 (NDAA). These regulations, 

which allow for the issuance of ‘‘Letters 

of Authorization’’ (LOAs) for the 

incidental take of marine mammals 

during the described activities and 

specified timeframes, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective January 21, 2010, 

through January 21, 2015. 

ADDRESSES: A copy of the Navy’s 

application (which contains a list of the 

references used in this document), 

NMFS’ Record of Decision (ROD), and 

other documents cited herein may be 

obtained by writing to Michael Payne, 

Chief, Permits, Conservation and 

Education Division, Office of Protected 

Resources, National Marine Fisheries 

Service, 1315 East-West Highway, Silver 

Spring, MD 20910–3225 or by telephone 

via the contact listed here (see FOR

FURTHER INFORMATION CONTACT). 

Additionally, the Navy’s LOA 

application may be obtained by visiting 

the Internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm#applications. 

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 Thursday, April 30, 

2009 (74 FR 20156). 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): 

(i) Any act that injures or has the 

significant potential to injure a marine 


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mammal or marine mammal stock in the wild 

[Level A Harassment]; or (ii) any act that 

disturbs or is likely to disturb a marine 

mammal or marine mammal stock in the wild 

by causing disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where such 

behavioral patterns are abandoned or 

significantly altered [Level B Harassment]. 

Summary of Request 

On April 1, 2008, NMFS received an 

application, which was subsequently 

amended on February 12, 2009 with 

additional information, from the Navy 

requesting authorization for the take of 

10 species of cetaceans incidental to the 

NSWC PCD’s Research, Development, 

Test and Evaluation (RDT&E) mission 

activities over the course of 5 years. 

These RDT&E activities are classified as 

military readiness activities. The Navy 

states that these RDT&E activities may 

cause various impacts to marine 

mammal species in the proposed action 

area (e.g., mortality, Level A and B 

harassment). The Navy requests an 

authorization to take individuals of 

these cetacean species by Level B 

Harassment. Further, the Navy requests 

authorization to take 2 bottlenose 

dolphins, 2 Atlantic spotted dolphins, 1 

pantropical spotted dolphin, and 1 

spinner dolphin per year by Level A 

harassment (injury), as a result of the 

proposed mission activities. Please refer 

to Tables 6–3, 6–4, 6–6, 6–7, 6–8, and 

6–9 of the Letter of Authorization (LOA) 

Addendum for detailed information of 

the potential marine mammal exposures 

from the NSWC PCD mission activities 

per year. However, due to the proposed 

mitigation and monitoring measures, 

NMFS estimates that the take of marine 

mammals is likely to be lower than the 

amount requested. Although the Navy 

requests authorization to take marine 

mammals by mortality, NMFS does not 

expect any animals to be killed, and 

NMFS is not proposing to authorize any 

mortality (severe lung injury) incidental 

to the Navy’s NSWC PCD mission 

activities. 

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 

contained in the proposed rule has not 

changed (74 FR 20156; April 30, 2009; 

pages 20156–20157). 

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. These RDT&E 

activities consist of surface operations, 

sonar operations, and ordnance 

operations. The narrative description of 

the action contained in the proposed 

rule has not changed. Tables 1 and 2 

summarize the nature and levels of the 

sonar and ordnance operations. The 

level of the surface operations remains 

7,443 hours per year, and is 

qualitatively described in the proposed 

rule (74 FR 20157; April 30, 2009) with 

no changes. 

TABLE 1—HOURS OF SONAR OPERATIONS BY REPRESENTATIVE SYSTEM PER YEAR

System 

Annual operating 

hours 

(territorial water) 

Annual operating 

hours 

(non-territorial water) 

AN/SQS–53/56 Kingfisher ............................................................................................................... 3 1 

Sub-bottom profiler (2–9 kHz) ......................................................................................................... 21 1 

REMUS SAS–LF ............................................................................................................................. 12 0 

REMUS Modem ............................................................................................................................... 25 12 

Sub-bottom profiler (2–16 kHz) ....................................................................................................... 24 1 

AN/SQQ–32 ..................................................................................................................................... 30 1 

REMUS–SAS–LF ............................................................................................................................. 20 0 

SAS–LF ............................................................................................................................................ 35 15 

AN/WLD–1 RMS–ACL ..................................................................................................................... 33 .5 5 

BPAUV Sidescan ............................................................................................................................. 25 38 

TVSS ................................................................................................................................................ 15 16 .5 

F84Y ................................................................................................................................................ 15 15 

BPAUV Sidescan ............................................................................................................................. 25 0 

REMUS–SAS–HF ............................................................................................................................ 10 25 

SAS–HF ........................................................................................................................................... 11 .5 15 

AN/AQS–20 ..................................................................................................................................... 545 15 

AN/WLD–11 RMS Navigation .......................................................................................................... 15 0 

BPAUV Sidescan ............................................................................................................................. 30 25 


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Description of Marine Mammals in the 

Area of the Specified Activities 

There are 30 marine mammal species 

with possible or confirmed occurrence 

in the NSWC PCD Study Area. As 

indicated in Table 3, there are 29 

cetacean species (7 mysticetes and 22 

odontocetes) and one sirenian species. 

Table 3 also includes the federal status 

of these marine mammal species. Seven 

marine mammal species listed as 

federally endangered under the 

Endangered Species Act (ESA) occur in 

the study area: the humpback whale, 

North Atlantic right whale, sei whale, 

fin whale, blue whale, sperm whale, and 

West Indian manatee. Of these 30 

species with occurrence records in the 

NSWC PCD Study Area, 22 species 

regularly occur here. These 22 species 

are: Bryde’s whale, sperm whale, pygmy 

sperm whale, dwarf sperm whale, 

Cuvier’s beaked whale, Gervais’ beaked 

whale, Sowerby’s beaked whale, 

Blainville’s beaked whale, killer whale, 

false killer whale, pygmy killer whale, 

short-finned pilot whale, Risso’s 

dolphin, melon-headed whale, roughtoothed dolphin, bottlenose dolphin, 

Atlantic spotted dolphin, pantropical 

spotted dolphin, striped dolphin, 

spinner dolphin, Clymene dolphin, and 

Fraser’s dolphin. The remaining 8 

species (i.e., North Atlantic right whale, 

humpback whale, sei whale, fin whale, 

blue whale, minke whale, True’s beaked 

whale, and West Indian manatee) are 

extralimital and are excluded from 

further consideration of impacts from 

the NSWC PCD testing mission. 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 20156; pages 

20160–20161). 

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE NSWC PCD STUDY AREA

Family and scientific name Common name Federal status 

Order Cetacea 

Suborder Mysticeti (baleen whales) 

Eubalaena glacialis ............................................................ North Atlantic right whale ........................................................ Endangered. 

Megaptera novaeangliae ................................................... Humpback whale ..................................................................... Endangered. 

Balaenoptera acutorostrata ............................................... Minke whale.

B. brydei ............................................................................. Bryde’s whale.

B. borealis .......................................................................... Sei whale ................................................................................. Endangered. 

B. physalus ........................................................................ Fin whale ................................................................................. Endangered. 

B. musculus ....................................................................... Blue whale ............................................................................... Endangered. 

Suborder Odontoceti (toothed whales) 

Physeter macrocephalus ................................................... Sperm whale ........................................................................... Endangered. 

Kogia breviceps ................................................................. Pygmy sperm whale.

K. sima ............................................................................... Dwarf sperm whale.

Ziphius cavirostris .............................................................. Cuvier’s beaked whale.

Mesoplodon europaeus ..................................................... Gervais’ beaked whale.

M. mirus ............................................................................. True’s beaked whale.

M. bidens ........................................................................... Sowerby’s beaked whale.

M. densirostris ................................................................... Blainville’s beaked whale.


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TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE NSWC PCD STUDY AREA—Continued 

Family and scientific name Common name Federal status 

Steno bredanensis ............................................................. Rough-toothed dolphin ............................................................

Tursiops truncatus ............................................................. Bottlenose dolphin.

Stenella attenuate .............................................................. Pantropical spotted dolphin.

S. frontalis .......................................................................... Atlantic spotted dolphin.

S. longirostris ..................................................................... Spinner dolphin.

S. clymene ......................................................................... Clymene dolphin.

S. coeruleoalba .................................................................. Striped dolphin.

Lagenodephis hosei ........................................................... Fraser’s dolphin.

Grampus griseus ............................................................... Risso’s dolphin.

Peponocephala electra ...................................................... Melon-headed whale.

Feresa attenuate ................................................................ Pygmy killer whale.

Pseudorca crassidens ....................................................... False killer whale.

Orcinus orca ...................................................................... Killer whale.

G. macrorhynchus ............................................................. Short-finned pilot whale.

Order Sirenia 

Trichechus manatus .......................................................... West Indian manatee .............................................................. Endangered. 

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 20156; pages 20161–20162) and 

is, therefore, 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 (however, 

there are no subsistence communities in 

the NSWC PCD Study Area); 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 and underwater 

explosive detonations from ordnance 

operations and projectile firing may 

potentially affect marine mammals (See 

74 FR 20156; April 30, 2009; pages 

20162–20178). 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 section from sonar operations 

and underwater detonation from 

ordnance operations and projectile 

firing from the proposed rule has not 

changed. 

Additional analyses on potential 

impacts to marine mammals from vessel 

movement within the NSWC PCD 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 cetacean 

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.’’ 

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 


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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, 

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 NSWC PCD 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. The Navy 

estimates a total of up to 7,443 hours 

(310 vessel days) of surface operations 

per year. These operations are widely 

dispersed throughout the NSWC PCD 

Study Area. 

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. 

The final rule contains additional 

mitigation measures requiring Navy 

vessels to keep at least 500 yards (460 

m) away from any observed whale and 

at least 200 yards (183 m) from marine 

mammals other than whales, and avoid 

approaching animals head-on. Although 

the radiated sound from the vessels will 

be audible to marine mammals over a 

large distance, it is unlikely that animals 

will respond behaviorally to low-level 

distant shipping noise as the animals in 

the area are likely to be habituated to 

such noises (Nowacek et al., 2004). In 

light of these facts, NMFS does not 

expect the Navy’s vessel movements to 

result in Level B harassment. 

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 NSWC PCD’s RDT&E 

activities are considered military 

readiness activities. 

NMFS reviewed the Navy’s proposed 

NSWC PCD’s RDT&E activities and the 

proposed NSWC PCD’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 20156, pages 

20183–20185). The Navy’s measures 

address personnel training, lookout and 

watchstander responsibilities, operating 

procedures for RDT&E activities using 

sonar and underwater detonations of 

explosives and projectile firing, and 


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3400 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

mitigation related to vessel traffic. No 

changes have been made to the 

mitigation measures described in the 

proposed rule except the following. 

In the Personnel Training section, 

bullet number 3 is revised to read as: 

• Marine Observers shall be trained 

in marine mammal recognition. Marine 

Observer training shall include 

completion of the Marine Species 

Awareness Training, instruction on 

governing laws and policies, and 

overview of the specific Gulf of Mexico 

species present, and observer roles and 

responsibilities. 

This change is to reflect the NSWC 

PCD’s RDT&E activities that use Marine 

Observers instead of watchstanders and 

lookouts in the range complexes 

training. In addition, a Personal 

Qualification Standard Program 

mentioned in the proposed rule (74 FR 

20156; April 30, 2009; page 20184) does 

not exist for civilian Marine Observers. 

In response to a comment from the 

Marine Mammal Commission on the 

Navy’s Virginia Capes Range Complex 

training activities, NMFS will require 

the Navy to suspend its activities 

immediately if a marine mammal is 

injured or killed as a result of the 

proposed Navy RDT&E activities (e.g., 

instances in which it is clear that 

munitions explosions caused the injury 

or death), the Navy shall suspend its 

activities immediately and report such 

incident to NMFS. 

In addition, a general condition is 

added to the Operating Procedures 

section to read: ‘‘The Test Director or the 

Test Director’s designee shall maintain 

the logs and records documenting 

RDT&E activities should they be 

required for event reconstruction 

purposes. Logs and records will be kept 

for a period of 30 days following 

completion of a RDT&E mission 

activity.’’ 

Also, since the term ‘‘Aircraft Control 

Units’’ is a fleet specific term and is not 

used during RDT&E activities, bullet 

number 7 of the Operating Procedures 

section in the proposed rule (74 FR 

20156; April 30, 2009; page 20184) has 

been changed to read: 

• Marine mammal detections shall be 

immediately reported to the Test 

Director or the Test Director’s designee 

for further dissemination to vessels in 

the vicinity of the marine species as 

appropriate where it is reasonable to 

conclude that the course of the vessel 

will likely result in a closing of the 

distance to the detected marine 

mammal. 

The following conditions under the 

Operating Procedures section, which 

appeared in the proposed rule (74 FR 

20156; April 30, 2009; page 20184), 

have been removed because the Navy 

indicated that sonobuoys and helicopter 

dipping sonar are no longer part of the 

NSWC PCD RDT&E activities. 

• Aircraft with deployed sonobuoys 

will use only the passive capability of 

sonobuoys when marine mammals are 

detected within 200 yards of the 

sonobuoy. 

• Helicopters shall observe/survey 

the vicinity of mission activities for 10 

minutes before the first deployment of 

active (dipping) sonar in the water. 

• Helicopters shall not dip their sonar 

within 200 yards (183 m) of a marine 

mammal and shall cease pinging if a 

marine mammal closes within 200 yards 

(183 m) after pinging has begun. 

The section titled ‘‘Proposed 

Mitigation Measures for Surface 

Operations and Other Activities’’ is 

changed to ‘‘Proposed Mitigation 

Measures for Surface Operations’’ to 

clarify the section (74 FR 20156; April 

30, 2009; page 20185). One condition 

under this section, ‘‘(h) All vessels will 

maintain logs and records documenting 

RDT&E activities should they be 

required for event reconstruction 

purposes. Logs and records shall be kept 

for a period of 30 days following 

completion of a RDT&E mission 

activity,’’ is deleted as the Navy points 

out that small vessels do not have the 

capability to maintain records. Instead, 

RDT&E activity records will be 

maintained by the Test Directors as 

discussed above. 

NMFS has determined that these 

mitigation measures are adequate means 

of effecting the least practicable adverse 

impacts on marine mammal species or 

stocks and their habitat while also 

considering personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

military readiness activity. 

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. 

Monitoring Plan for the NSWC PCD 

Study Area 

As NMFS indicated in the proposed 

rule, the Navy has (with input from 

NMFS) fleshed out the details of and 

made improvements to the NSWC PCD 

Monitoring Plan. Additionally, NMFS 

and the Navy have incorporated a 

suggestion from the public, which 

recommended the Navy hold a peer 

review workshop to discuss the Navy’s 

Monitoring Plans for the multiple range 

complexes and training exercises in 

which the Navy would receive ITAs (see 

Monitoring Workshop section). The 

final NSWC PCD Monitoring Plan, 

which is summarized below, may be 

viewed at http://www.nmfs.noaa.gov/ 


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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3401 

pr/permits/incidental.htm#applications. 

The Navy plans to implement all of the 

components of the Monitoring Plan; 

however, only the marine mammal 

components (not the sea turtle 

components) will be required by the 

MMPA regulations and associated 

LOAs. 

A summary of the monitoring 

methods required for use during RDT&E 

activities in the NSWC PCD Study Area 

are described below. These methods 

include a combination of individual 

elements that are designed to allow a 

comprehensive assessment. 

Visual Surveys—Vessel, Aerial and 

Shore-Based 

The Navy shall visually survey a 

minimum of 2 HFAS/MFAS activities 

and 2 explosive events per year. If the 

53C sonar was being operated, such 

activity must be monitored as one of the 

HFAS/MFAS activities. For explosive 

events, one of the monitoring measures 

shall be focused on a multiple 

detonation event. 

For underwater detonations, the size 

of the survey area shall be predetermined based upon the type of 

explosive event planned and the 

amount of NEW used. As a conservative 

measure, the largest zone of influence 

(ZOI) associated with the upper limit of 

each NEW shall be surveyed during the 

RDT&E activities. For example, the 

Navy would be required to observe the 

following ZOIs and ensure they are clear 

of marine mammals prior to conducting 

explosive ordnance RDT&E activities: 

2,863 m for NEW between 76–600 lb; 

997 m for NEW between 11–75 lb; and 

345 m for NEW less than 11 lb. 

If animal(s) are observed prior to or 

during an explosion, a focal follow of 

that individual or group shall be 

conducted to record behavioral 

responses. The Navy will not begin 

activities if animals are observed within 

these ZOIs of the events listed above. 

The visual survey team shall collect 

the same data that are collected by Navy 

marine observers, including but not 

limited to: (1) Location of sighting; (2) 

species; (3) number of individuals; (4) 

number of calves present, if any; (5) 

duration of sighting; (6) behavior of 

marine animals sighted; (7) direction of 

travel; (8) environmental information 

associated with sighting event including 

Beaufort sea state, wave height, swell 

direction, wind direction, wind speed, 

glare, percentage of glare, percentage of 

cloud cover; and (9) when in relation to 

the Navy RDT&E activities did the 

sighting occur (before, during or after 

RDT&E activities). Animal sightings and 

relative distance from a particular 

detonation site shall be used postsurvey to estimate the number of marine 

mammals exposed to different received 

levels (energy and pressure of discharge 

based on distance to the source, 

bathymetry, oceanographic conditions 

and the type and size of detonation) and 

their corresponding behavior. For 

vessel-based surveys a passive acoustic 

system (hydrophone or towed array) or 

sonobuoys shall be used if operationally 

feasible to help determine if marine 

mammals are in the area before and after 

a detonation event. 

Although photo-identification studies 

are not typically a component of Navy 

exercise monitoring surveys, the Navy 

supports using the contracted platforms 

to obtain opportunistic data collection. 

Therefore, any digital photographs that 

are taken of marine mammals during 

visual surveys shall be provided to local 

researchers for their regional research. 

1. Aerial Surveys 

During sonar operations, an aerial 

survey team shall fly transects relative 

to a Navy surface vessel that is 

transmitting HFA/MFA sonar. The 

aerial survey team shall collect both 

visual sightings and behavioral 

observations of marine animals. These 

transect data will provide an 

opportunity to collect data of marine 

mammals at different received levels 

and their behavioral responses and 

movement relative to the Navy vessel’s 

position. Surveys shall include time 

with and without active sonar in order 

to compare density, geographical 

distribution and behavioral 

observations. After declassification, 

related sonar transmissions shall be 

used to calculate exposure levels. 

Behavioral observation methods shall 

involve three professionally trained 

marine mammal observers and a pilot. 

Two observers will observe behaviors, 

one with hand-held binoculars and one 

with the naked eye. If there is more than 

one whale, each observer shall record 

respirations of different animals, ideally 

from the same animal he/she is 

observing. In the case of large groups of 

delphinids, group behavior, speed, 

orientation, etc., shall be recorded. An 

observer shall use a video camera to 

record behaviors in real time. Two 

external microphones will be used and 

attached to the video camera to record 

vocal behavioral descriptions on two 

different channels of the video camera. 

The videotape shall be time-stamped 

and observers shall also call out times. 

The third observer shall record notes, 

environmental data, and operate a 

laptop connected to a GPS and the 

plane’s altimeter. 

Detailed behavioral focal observations 

of cetaceans shall be recorded, 

including the following variables where 

possible: Species, group size and 

composition (number of calves, etc.), 

latitude/longitude, surface and dive 

durations and times, number and 

spacing/times of respirations, 

conspicuous behaviors (e.g., breach, tail 

slap, etc.), behavioral states, orientation 

and changes in orientation, estimated 

group travel speed, inter-individual 

distances, defecations, social 

interactions, aircraft speed, aircraft 

altitude, distance to focal group (using 

the plane’s radar) and any unusual 

behaviors. 

In addition, to measure whether 

marine mammals are displaced 

geographically as a result of sonar 

operations, systematic line-transect 

aerial surveys shall be conducted on the 

two days before and a variation of one 

to five days after a NSWC PCD RDT&E 

testing activity to collect relative density 

data in the testing area for marine 

mammals in the area. Attempts shall be 

made to survey during a test event when 

operationally feasible during the NSWC 

PCD RDT&E activities. One survey day 

following the mission activity event 

shall be devoted to flying coastlines 

nearest the mission event to look for 

potential marine mammal strandings. If 

a stranding is observed, an assessment 

of the animal’s condition (alive, injured, 

dead, and/or decayed) shall be 

immediately reported to the Navy for 

appropriate action and the information 

will be transmitted immediately to 

NMFS. 

2. Vessel Surveys 

As with the aerial surveys, the vessel 

surveys shall be designed to maximize 

detections of any target species near 

mission activity events for focal follows. 

Systematic transects shall be used to 

locate marine mammals, and, the survey 

should deviate from transect protocol to 

collect behavioral data particularly if a 

Navy vessel is visible on the horizon or 

closer. The team shall go off effort for 

photo-id and close approach ‘focal 

animal follows’ as feasible, and when 

marine animal encounters occur in 

proximity to the vessel. While in focal 

follow mode, observers shall gather 

detailed behavioral data from the 

animals, for as long as the animal 

allows. Analysis of behavioral 

observations shall be made after the 

RDT&E event. While the Navy vessels 

are within view, attempts shall be made 

to position the dedicated survey vessel 

in the best possible way to obtain focal 

follow data in the presence of the NSWC 

PCD test event. If Navy vessels are not 

in view, then the vessel shall begin a 

systematic line transect survey within 

the area to assess marine mammal 


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occurrence and observe behavior. The 

goal of this part of the survey is to 

observe marine mammals that may not 

have been exposed to HFAS/MFAS or 

explosions. Therefore, post-analysis 

shall focus on how the location, speed 

and vector of the survey vessel and the 

location and direction of the sonar 

source (e.g. Navy surface vessel) relates 

to the animal. Any other vessels or 

aircraft observed in the area will also be 

documented. 

3. Shore-Based Surveys 

If explosive events are planned to 

occur adjacent to nearshore areas where 

there are elevated coastal structures (e.g. 

lookout tower at Eglin Air Force Base) 

or topography, then shore-based 

monitoring, using binoculars or 

theodolite, may be used to augment 

other visual survey methods. 

Passive Acoustic Monitoring 

The Navy shall visually survey a 

minimum of 2 HFAS/MFAS activities 

and 2 explosive events per year. If the 

53C sonar was being operated, such 

activity must be monitored as one of the 

HFAS/MFAS activities. For explosive 

events, one of the monitoring measures 

shall be focused on a multiple 

detonation event. 

While conducting passive acoustic 

monitoring (PAM), the array shall be 

deployed for each of the days the ship 

is at sea. The array shall be able to 

detect low frequency vocalizations (less 

than 1,000 Hertz) for baleen whales and 

relatively high frequency vocalizations 

(up to 30 kilohertz) for odontocetes such 

as sperm whales. Since the publishing 

of the proposed rule (74 FR 20156; April 

30, 2009; page 20188), the Navy stated 

that it does not have a working bottom 

set hydrophone array to perform the 

required PAM. Therefore, the language 

regarding the equipment used for PAM 

is changed to: ‘The Navy shall use 

towed or over-the-side passive acoustic 

monitoring device/hydrophone array 

when feasible in the NSWC PCD Study 

Area for PAM.’ 

Marine Mammal Observer on Navy 

Vessels 

Civilian Marine Mammal Observers 

(MMOs) aboard Navy vessels shall be 

used to research the effectiveness of 

Navy marine observers, as well as for 

data collection during other monitoring 

surveys. 

MMOs shall be field-experienced 

observers who are Navy biologists or 

contracted observers. These civilian 

MMOs shall be placed alongside 

existing Navy marine observers during a 

sub-set of NSWC PCD RDT&E activities. 

This can only be done on certain vessels 

and observers may be required to have 

security clearance. Use of MMOs will 

verify Navy marine observer sighting 

efficiency, offer an opportunity for more 

detailed species identification, provide 

an opportunity to bring animal 

protection awareness to the vessels’ 

crew, and provide the opportunity for 

an experienced biologist to collect data 

on marine mammal behavior. Data 

collected by the MMOs is anticipated to 

assist the Navy with potential 

improvements to marine observer 

training as well as providing the marine 

observers with a chance to gain 

additional knowledge of marine 

mammals. 

Events selected for MMO 

participation will be an appropriate fit 

in terms of security, safety, logistics, 

and compatibility with NSWC PCD 

RDT&E activities. The MMOs shall not 

be part of the Navy’s formal reporting 

chain of command during their data 

collection efforts and Navy marine 

observers shall follow their chain of 

command in reporting marine mammal 

sightings. Exceptions shall be made if an 

animal is observed by the MMO within 

the shutdown zone and was not seen by 

the Navy marine observer. The MMO 

shall inform the marine observer of the 

sighting so that appropriate action may 

be taken by the chain of command. For 

less biased data, it is recommended that 

MMOs should schedule their daily 

observations to duplicate the Navy 

marine observers’ schedule. 

Civilian MMOs shall be aboard Navy 

vessels involved in the study. As 

described earlier, MMOs shall meet and 

adhere to necessary qualifications, 

security clearance, logistics and safety 

concerns. MMOs shall monitor for 

marine mammals from the same height 

above water as the marine observers and 

as all visual survey teams, they shall 

collect the same data collected by Navy 

marine observers, including but not 

limited to: (1) Location of sighting; (2) 

species (if not possible, identification of 

whale or dolphin); (3) number of 

individuals; (4) number of calves 

present, if any; (5) duration of sighting; 

(6) behavior of marine animals sighted; 

(7) direction of travel; (8) environmental 

information associated with sighting 

event including Beaufort sea state, wave 

height, swell direction, wind direction, 

wind speed, glare, percentage of glare, 

percentage of cloud cover; and (9) when 

in relation to the Navy RDT&E activities 

did the sighting occur (before, during or 

after detonations/exercise). 

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 recommendations that a 

workshop or panel be convened to 

solicit input on the monitoring plan 

from researchers, experts, and other 

interested parties. The NSWC PCD 

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 NSWC PCD 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 NSWC PCD 

Study Area, the Navy has completed the 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan by the end of 

2009. The ICMP was developed by the 

Navy, with Chief of Naval Operations 

Environmental Readiness Division 

(CNO–N45) taken the lead. The program 

does not duplicate the monitoring plans 


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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3403 

for individual areas (e.g. AFAST, HRC, 

SOCAL); instead it is to provide the 

overarching coordination that will 

support compilation of data from both 

range-specific monitoring plans as well 

as Navy funded research and 

development (R&D) studies. The ICMP 

will coordinate the monitoring 

program’s progress towards meeting its 

goals and developing a data 

management plan. 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. 

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 NSWC 

PCD 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. 

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 NSWC PCD 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 NSWC PCD 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 

NSWC PCD 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. 

• Results from specific stranding 

investigations (either from NSWC PCD 

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 suggests 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, and current science 

and whether mitigation or monitoring 

modifications are appropriate. 

Reporting 

In order to issue an ITA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking’’. Effective reporting is critical 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 

utilizing underwater explosive 

detonations or other activities. 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). 


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3404 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

Annual Report 

The NSWC PCD shall submit a report 

annually on October 1 describing the 

RDT&E activities conducted and 

implementation and results of the 

NSWC PCD Monitoring Plan (through 

August 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. 

• Number and types of underwater 

detonations. 

• 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. 

• If the active MFAS in use is hull 

mounted, true bearing of animal from 

ship, true direction of ship’s travel, and 

estimation of animal’s motion relative to 

ship (opening, closing, parallel). 

• 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. 

NSWC PCD 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 and underwater detonation 

related mission 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 

(October 2013), covering activities that 

have occurred through May 1, 2013. 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 April 30, 2009, NMFS published 

a proposed rule (74 FR 20156) in 

response to the Navy’s request to take 

marine mammals incidental to 

conducting RDT&E activities in the 

NSWC PCD Study Area and requested 

comments, information and suggestions 

concerning the request. During the 30- 

day public comment period, NMFS 

received comments from 1 private 

citizen and comments from the Marine 

Mammal Commission (Commission). 

The comments are addressed below. 

MMPA Concerns 

Comment 1: The Commission 

recommends that NMFS require the 

Navy to conduct an external peer review 

of its marine mammal density estimates, 

including the data upon which those 

estimates are based and the manner in 

which those are collected and used. 

Response: As discussed in detail in 

the proposed rule (74 FR 20156, April 

30, 2009), marine mammal density 

estimates were based on the data 

gathered in the Marine Resource 

Assessments (MRAs). The Navy MRA 

Program was implemented by the 

Commander, Fleet Forces Command, to 

initiate collection of data and 

information concerning the protected 

and commercial marine resources found 

in the Navy’s Operating Areas 

(OPAREAs). Specifically, the goal of the 

MRA program is to describe and 

document the marine resources present 

in each of the Navy’s OPAREAs. The 

MRA for the NSWC PCD, which 

includes Pensacola and Panama City 

OPAREAs, was recently updated in 

2007 (DoN, 2008). 

Density estimates for cetaceans were 

derived in one of three ways, in order 

of preference: (1) Through spatial 

models using line-transect survey data 

provided by the NMFS (as discussed 

below); (2) using abundance estimates 

from Mullin and Fulling (2004); or (3) 

based on the cetacean abundance 

estimates found in the NMFS stock 

assessment reports (SAR; Waring et al., 

2007), which can be viewed at http:// 

www.nmfs.noaa.gov/pr/sars/ 

species.htm. For the model-based 

approach, density estimates were 

calculated for each species within areas 

containing survey effort. A relationship 

between these density estimates and the 

associated environmental parameters 

such as depth, slope, distance from the 

shelf break, sea surface temperature, and 

chlorophyll a concentration was 

formulated using generalized additive 

models. This relationship was then used 

to generate a two-dimensional density 

surface for the region by predicting 

densities in areas where no survey data 

exist. 

The analyses for cetaceans were based 

on sighting data collected through 

shipboard surveys conducted by NMFS 

Northeast Fisheries Science Center 

(NEFSC) and Southeast Fisheries 

Science Center (SEFSC) between 1998 

and 2005. Species-specific density 

estimates derived through spatial 

modeling were compared with 

abundance estimates found in the most 

current NMFS SAR to ensure 

consistency. All spatial models and 

density estimates were reviewed by and 

coordinated with NMFS Science Center 

technical staff and scientists with the 

University of St. Andrews, Scotland, 

Centre for Environmental and Ecological 

Modeling (CREEM). Draft models and 

preliminary results were reviewed 

during a joint workshop attended by 

Navy, NMFS Science Center, and 

CREEM representatives. Subsequent 

revisions and draft reports were 

reviewed by these same parties. 

Therefore, NMFS considers that the 

density estimates, including the data 

upon which those estimates are based 

and the manner in which those are 

collected and used, has already gone 

through an independent review process. 

Monitoring and Mitigation 

Comment 2: The Commission 

recommends the Navy provide 

additional details concerning its 

Integrated Comprehensive Monitoring 

Program, including an estimated time 

frame for its implementation. 

Response: The Navy has developed 

the ICMP Plan and will distribute it to 


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the Commission and other interested 

parties. The components of the ICMP 

Plan that were considered and 

incorporated into the final rules for the 

NSWC PCD include: 

• A requirement to monitor Navy’s 

RDT&E activities, particularly those 

involving sonar and underwater 

detonations, for compliance with the 

terms and conditions of ESA Section 7 

consultations or MMPA authorizations; 

• A requirement to minimize 

exposure of protected species from 

sound pressure levels from sonar and 

underwater detonations that result in 

harassment; 

• A requirement to collect data to 

support estimating the number of 

individual marine mammals exposed to 

sound levels above current regulatory 

thresholds; 

• A requirement to assess the 

adequacy of the Navy’s current marine 

species mitigation; 

• A requirement to document trends 

in species distribution and abundance 

in Navy mission activity areas through 

monitoring efforts; 

• A requirement to compile data that 

would improve the Navy and NMFS’ 

knowledge of the potential behavioral 

and physiological effects to marine 

species from sonar and underwater 

detonations. 

The ICMP Plan 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 (lookout) 

data, as well as new information from 

other Navy programs (e.g., research and 

development), and newly published 

non-Navy information. The ICMP Plan 

is described in the Navy’s EIS and LOA 

application. 

Comment 3: The Commission 

recommends that NMFS require the 

Navy to develop and implement a plan 

to evaluate the effectiveness of 

monitoring and mitigation measures 

before beginning or in conjunction with 

operations covered by the proposed 

incidental take authorization. 

Response: NMFS has been working 

with the Navy throughout the 

rulemaking process to develop a series 

of mitigation, monitoring, and reporting 

protocols. These mitigation, 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 aerial, vessel, and shore-based 

surveys; and (4) annual monitoring 

reports and comprehensive reports to 

provide insights of impacts to marine 

mammals. 

NMFS has evaluated the effectiveness 

of the measures and has concluded they 

will achieve the least practicable 

adverse impact on the affected marine 

mammal species or stocks and their 

habitat. For example, operations will be 

suspended if trained Navy marine 

observers and/or MMOs detect marine 

mammals within the vicinity of the 

RDT&E activities, thereby preventing 

marine mammal injury or mortality (use 

of specified exclusion zones). In 

addition, prior to conducting RDT&E 

activities involving sonar or underwater 

explosive detonation, the Navy will be 

required to carry out monitoring to 

make sure that the safety zones are clear 

of marine mammals, and then during 

the test activity when feasible. These 

monitoring and mitigation measures 

will decrease the number of marine 

mammals exposed to underwater 

explosions and exposure to intense 

sounds from the detonations. 

Over the course of the 5-year rule, 

NMFS will evaluate the Navy’s RDT&E 

activities annually to validate the 

effectiveness of the measures. NMFS 

will, through the established adaptive 

management process, work with the 

Navy to determine whether additional 

mitigation and monitoring measures are 

necessary. In addition, with the 

implementation of the ICMP Plan by the 

end of 2009, and the planned 

Monitoring Workshop in 2011, NMFS 

will work with the Navy to further 

improve its monitoring and mitigation 

plans for its future activities. 

Comment 4: The Commission 

recommends that NMFS implement a 

60-minute waiting period when deepdiving species such as sperm and 

beaked whales or species that cannot be 

identified by watchstanders are 

observed within or are about to enter a 

safety zone. 

Response: NMFS does not concur 

with the Commission’s recommendation 

for the following reasons: 

• The ability of an animal to dive 

longer than 30 minutes does not mean 

that it will always do so. Therefore, the 

60-minute delay would only potentially 

add value in instances when animals 

had remained under water for more than 

30 minutes. 

• Navy vessels typically move at 10– 

12 knots (5–6 m/sec) when operating 

active sonar and potentially much faster 

when not. Fish et al. (2006) measured 

speeds of 7 species of odontocetes and 

found that they ranged from 1.4–7.30 m/ 

sec. Even if a vessel was moving at the 

slower typical speed associated with 

active sonar use, an animal would need 

to be swimming near sustained 

maximum speed for an hour in the 

direction of the vessel’s course to stay 

within the safety zone of the vessel. 

Increasing the typical speed associated 

with active sonar use would further 

narrow the circumstances in which the 

60-minute delay would add value. 

• Additionally, the times when 

marine mammals are deep-diving (i.e., 

the times when they are under the water 

for longer periods of time) are the same 

times that a large portion of their motion 

is in the vertical direction, which means 

that they are far less likely to keep pace 

with a horizontally moving vessel. 

• Given that, the animal would need 

to have stayed in the immediate vicinity 

of the sound source for an hour and 

considering the maximum area that both 

the vessel and the animal could cover in 

an hour, it is improbable that this would 

randomly occur. Moreover, considering 

that many animals have been shown to 

avoid both acoustic sources and ships 

without acoustic sources, it is 

improbable that a deep-diving cetacean 

(as opposed to a dolphin that might bow 

ride) would choose to remain in the 

immediate vicinity of the source. NMFS 

believes that it is unlikely that a single 

cetacean would remain in the safety 

zone of a Navy sound source for more 

than 30 minutes. 

• Last, in many cases, the marine 

observers are not able to differentiate 

species to the degree that would be 

necessary to implement this measure. 

Plus, Navy operators have indicated that 

increasing the number of mitigation 

decisions that need to be made based on 

biological information is more difficult 

for the lookouts (because it is not their 

area of expertise). 

Comment 5: The Commission 

recommends that NMFS require the 

Navy to suspend an activity if a marine 

mammal is seriously injured or killed 

and the injury or death could be 

associated with the activity. 

Subsequently, the injury or death 

should be investigated to determine the 

cause, assess the full impact of the 

activity potentially implicated (e.g., the 

total of animals involved), and 

determine how the activity should be 

modified to avoid future injuries or 

deaths. 

Response: Though NMFS largely 

agrees with the Commission, it should 

be noted that without detailed 

examination by an expert, it is usually 

not feasible to determine the cause of 

injury or mortality when an injured or 

dead marine mammal is sighted in the 


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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 (e.g., 

instances in which it is clear that 

munitions explosions caused the injury 

or death) the Naval activities shall be 

immediately suspended and the 

situation immediately reported by 

personnel involved in the activity to the 

Test Director or the Test Director’s 

designee, 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’s RDT&E activities utilizing 

underwater explosive detonations 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). 

Comment 6: The Commission 

recommends NMFS require the Navy to, 

in those cases where authorization is 

sought to take marine mammals by 

injury, consult with NMFS to consider 

whether the requested take levels are 

realistic and adequately take into 

account the schooling behavior of 

dolphins. 

Response: As discussed in the Navy’s 

LOA application and in the Proposed 

Rule (74 FR 20156: April 30, 2009), take 

of marine mammals by Level A 

harassment (injury) could occur as a 

result of the underwater detonation 

exposures in the range of 76–272 lb 

NEW (34–272 kg) in non-territorial 

waters. However, as noted by the 

Commission, due to the schooling 

behavior of some dolphin species, there 

is the question of whether the requested 

take levels are realistic. Although NMFS 

shares the Commission’s view to some 

degree that schooling dolphins are not 

evenly distributed, due to the changing 

oceanographic regime and the large area 

being considered, NMFS considers that 

the Navy’s modeling and analysis on the 

requested take levels are the best 

approximations. In addition, NMFS 

believes that the Navy’s take estimates 

are conservative, and that with the 

implementation of aforementioned 

mitigation and monitoring measures, 

many of the Level A harassments 

(injury) can be prevented. 

Reporting 

Comment 7: The Commission 

recommends NMFS require the Navy to 

submit annual reports that document in 

full the methods, results, and 

interpretation of all monitoring tasks. 

Response: NMFS agrees with the 

Commission’s recommendation. As 

described above, NMFS will require the 

Navy to submit a report annually on 

August 1 describing the RDT&E 

activities conducted and 

implementation and results of the 

NSWC PCD Monitoring Plan (through 

June 1 of the same year). A detailed 

description of report contents is 

provided above. 

Comment 8: The Commission 

recommends that NMFS work with the 

Navy to develop a database for storing 

original records of Navy interactions 

with marine mammals, which will 

provide a basis for evaluating such 

interactions over long periods of time 

and across large areas. 

Response: The Navy is required to 

document all marine mammal sightings 

through aerial, vessel, and shore-based 

survey by MMOs or Navy marine 

observers. Those records will be used to 

determine potential Navy interactions 

with marine mammals and to assess the 

impacts on marine mammals that may 

have resulted from the Navy’s RDT&E 

activities. Currently there is no plan to 

develop a database for storing original 

records of Navy interactions with 

marine mammals due to limited 

resources. Nevertheless, NMFS will 

consider the Commission’s 

recommendation when adequate 

resources are available to undertake 

such efforts. 

Miscellaneous Issues 

Comment 9: One private citizen 

expressed general opposition to Navy 

activities and NMFS’ issuance of an 

MMPA authorization because of the 

danger of killing marine life. 

Response: NMFS appreciates the 

commenter’s concern for the marine 

mammals that live in the area of the 

proposed activities. However, 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 

our 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 NSWC PCD 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 

and underwater detonation of 

explosives 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 20156; April 30, 

2009). The only change in this section 

is that the sentence in the proposed rule 

(74 FR 20156; April 30, 2009; page 

20179), ‘‘NSWC PCD RDT&E activities 

involve mid-frequency sonar operation 

for only 6 percent of operational hours,’’ 

is changed to ‘‘NSWC PCD RDT&E 

activities involve mid-frequency sonar 

operation for only 7 percent of 

operational hours.’’ The change is to fix 

the calculation error in the proposed 

rule. 

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 20156; pages 20178– 

20182; April 30, 2009). The following 

changes in this section have been made: 

(1) The first paragraph under Marine 

Mammal Sonar Exposures in Territorial 

Waters section of the proposed rule (74 

FR 20156; April 30, 2009; page 20179), 

‘‘rough-toothed dolphin’’ and one 

duplicated ‘‘Atlantic bottlenose 

dolphin’’ are deleted; and (2) the first 

paragraph under Marine Mammal 


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Ordnance Exposures in Non-Territorial 

Waters section (74 FR 20156; April 30, 

2009; page 20181), ‘‘rough-toothed 

dolphin’’ and ‘‘striped dolphin’’ are 

deleted. The deletion is to clarify that 

no rough-toothed dolphin or striped 

dolphin would be affected by these 

activities. In addition, Fraser’s dolphin 

is added to Tables 11, 12, and 13 in the 

final rule (74 FR 20156; April 30, 2009; 

pages 20181–20182), with zero 

exposures. No other change has been 

made to the final rule. 

A summary of potential exposures 

from sonar operations and ordnance 

(per year) for marine mammals in the 

NSWC PCD Study Area is listed in 

Table 4 (these exposure estimates are 

the same as those presented in the 

proposed rule, with the exception as 

noted above). 

TABLE 4—ESTIMATES OF TOTAL MARINE MAMMAL EXPOSURES FROM THE NSWC PCD MISSION ACTIVITIES PER YEAR

Marine mammal species 

Mortality 

(severe lung 

injury) 

Level A (slight 

lung injury) 

Level B 

(non-injury) 

Bryde’s whale ............................................................................................................ .............................. .............................. ..............................

Sperm whale .............................................................................................................. .............................. .............................. 2 

Dwarf/Pygmy sperm whale ........................................................................................ .............................. .............................. ..............................

All beaked whales ...................................................................................................... .............................. .............................. ..............................

Killer whale ................................................................................................................ .............................. .............................. ..............................

False killer whale ....................................................................................................... .............................. .............................. ..............................

Pygmy killer whale ..................................................................................................... .............................. .............................. ..............................

Melon-headed whale ................................................................................................. .............................. .............................. 2 

Short-finned pilot whale ............................................................................................. .............................. .............................. 1 

Risso’s dolphin ........................................................................................................... .............................. .............................. 2 

Rough-toothed dolphin .............................................................................................. .............................. .............................. ..............................

Bottlenose dolphin ..................................................................................................... 0 2 614 

Atlantic spotted dolphin ............................................................................................. 0 2 471 

Pantropical spotted dolphin ....................................................................................... .............................. 1 23 

Striped dolphin ........................................................................................................... .............................. .............................. 5 

Spinner dolphin .......................................................................................................... .............................. 1 23 

Clymene dolphin ........................................................................................................ .............................. .............................. 5 

Fraser’s dolphin ......................................................................................................... .............................. .............................. ..............................

Effects on Marine Mammal Habitat 

NMFS’ NSWC PCD proposed rule 

included a section that addressed the 

effects of the Navy’s activities on Marine 

Mammal Habitat (74 FR 20156; pages 

20182–20183; April 30, 2009). NMFS 

concluded preliminarily 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 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects. A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of Level B harassment takes alone is not 

enough information on which to base an 

impact determination. 

In addition to considering estimates of 

the number of marine mammals that 

might be ‘‘taken’’ through behavioral 

harassment, NMFS must consider other 

factors, such as the likely nature of any 

responses (their intensity, duration, 

etc.), the context of any responses 

(critical reproductive time or location, 

migration, etc.), as well as the number 

and nature of estimated Level A takes, 

the number of estimated mortalities, and 

effects on habitat. 

The Navy’s specified activities have 

been described based on best estimates 

of the number of HFAS/MFAS hours 

that the Navy will conduct and the 

planned detonation events. Taking the 

above into account, considering the 

sections discussed below, and 

dependent upon the implementation of 

the proposed mitigation measures, 

NMFS has determined that Navy’s 

RDT&E activities utilizing HFAS/MFAS 

and underwater detonations will have a 

negligible impact on the marine 

mammal species and stocks present in 

the NSWC PCD Study Area. 

Behavioral Harassment 

As discussed in the Potential Effects 

of Exposure of Marine Mammals to 

HFAS/MFAS in the proposed rule (74 

FR 20156; April 30, 2009) and 

illustrated in the conceptual framework, 

marine mammals can respond to HFAS/ 

MFAS in many different ways, a subset 

of which qualifies as harassment. The 

take estimates do not take into account 

the fact that most marine mammals will 

likely avoid strong sound sources to one 

extent or another. 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 Navy proposes 

only 77 hours of mid-frequency sonar 

operations per year (Table 2) in the 

NSWC PCD Study Area, and the use of 

the most powerful 53C series sonar will 

be limited to just 4 hours per year. 

Therefore, any disturbance to marine 

mammals resulting from 53C and other 

MFAS is expected to be significantly 

less in terms of severity and duration 

when compared to major sonar exercises 

(e.g., AFAST, HRC, SOCAL). As for the 

HFAS, source levels of those HFAS are 

not as high as the 53C series MFAS. In 

addition, high frequency signals tend to 

have more attenuation in the water 


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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 little information available 

concerning marine mammal reactions to 

MFAS/HFAS. The Navy has only been 

conducting monitoring activities since 

2006 and has not compiled enough data 

to date to provide a meaningful picture 

of effects of HFAS/MFAS on marine 

mammals, particularly in the NSWC 

PCD Study Area. From the four major 

training exercises (MTEs) of HFAS/ 

MFAS in the AFAST Study Area for 

which NMFS has received a monitoring 

report, no instances of obvious 

behavioral disturbance were observed 

by the Navy watchstanders in the 700+ 

hours of effort in which 79 sightings of 

marine mammals were made (10 during 

active sonar operation). 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 were not 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 in the proposed rule (74 FR 

20156; April 30, 2009), many animals 

perform vital functions, such as feeding, 

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 proposed rule (74 FR 20156; 

April 30, 2009), NMFS discussed the 

fact that potential behavioral responses 

to HFAS/MFAS and underwater 

detonations that fall into the category of 

harassment could range in severity. By 

definition, takes by 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. For hull-mounted sonar 53C series 

sonar (the highest power source), the 

total time of operation is only 4 hours 

per year, with 3 hours planned in 

territorial waters and 1 hour in nonterritorial waters. Different sonar testing 

and underwater detonation activities 

will not occur simultaneously. When 

this is combined with the fact that the 

majority of the cetaceans in the NSWC 

PCD Study Area would not likely 

remain in the same area for successive 

days, it is unlikely that animals would 

be exposed to HFAS/MFAS and 

underwater detonations 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 and/or 

underwater detonation. 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 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). The threshold for the onset of 

TTS for detonations is a dual criteria: 

182 dB re 1 microPa2-sec or 23 psi, 

which might be received at distances 

from 345–2,863 m from the centers of 

detonation based on the types of NEW 

involved. 

• 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 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. 

For underwater detonations, due to its 

brief impulse of sounds, animals have to 

be at distances from 345–2,863 m from 

the center of detonation, based on the 


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types of NEW involved to receive the 

SEL that causes TTS compared to 

similar source level with longer 

durations (such as sonar signals). 

Acoustic Masking or Communication 

Impairment 

As discussed in the proposed rule (74 

FR 20156; April 30, 2009), 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. Standard 

HFAS/MFAS sonar pings last on 

average one second and occur about 

once every 24–30 seconds for hullmounted sources. When hull-mounted 

sonar is used in the Kingfisher mode, 

pulse length is shorter, but pings are 

much closer together (both in time and 

space, since the vessel goes slower 

when operating in this mode). For the 

sources for which we know the pulse 

length, most are significantly shorter 

than hull-mounted sonar, on the order 

of several microseconds to 10s of micro 

seconds. For hull-mounted sonar, 

though some of the vocalizations that 

marine mammals make are less than one 

second long, there is only a 1 in 24 

chance that they would occur exactly 

when the ping was received, and when 

vocalizations are longer than one 

second, only parts of them are masked. 

Alternately, when the pulses are only 

several microseconds long, the majority 

of most animals’ vocalizations would 

not be masked. Masking effects from 

HFAS/MFAS are expected to be 

minimal. Likewise, the masking effects 

from underwater detonation are also 

considered to be unlikely due to the 

much shorter impulsive signals from 

explosions. 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 1 

individual of bottlenose dolphin and 1 

individual of Atlantic spotted dolphin 

could experience severe lung injury 

(i.e., mortality) from explosive ordnance 

activities; and 1 individual each of 

bottlenose, Atlantic spotted, pantropical 

spotted, and spinner dolphins from 

slight lung injury (Level A harassment) 

as a result of the underwater detonation 

exposures in the range of 76–272 lb 

NEW (34–272 kg) in non-territorial 

waters per year. However, these 

estimates do not take into consideration 

the proposed mitigation measures. For 

sonar operations, NMFS believes that 

many marine mammals would 

deliberately avoid exposing themselves 

to the received levels necessary to 

induce injury (i.e., approaching to 

within approximately 10 m (10.9 yd) of 

the source). Animals would likely move 

away from or at least modify their path 

to avoid a close approach. Additionally, 

in the unlikely event that an animal 

approaches the sonar vessel at a close 

distance, NMFS believes that the 

mitigation measures (i.e., shutdown/ 

power-down zones for HFAS/MFAS) 

further ensure that animals would not 

be exposed to injurious levels of sound. 

As for underwater detonations, the 

animals have to be within the 203 m 

ZOI to experience severe lung injury or 

mortality. NMFS believes it is unlikely 

that Navy observers will fail to detect an 

animal in such a small area during pretesting surveys. As discussed 

previously, the Navy plans to utilize 

aerial (when available) in addition to 

marine observers on vessels to detect 

marine mammals for mitigation 

implementation and indicated that they 

are capable of effectively monitoring 

safety zones. When these points are 

considered, NMFS does not believe that 

any marine mammals will experience 

severe lung injury or mortality from 

exposure to HFAS/MFAS or underwater 

detonation. Instead, based on proposed 

mitigation and monitoring measures, 

NMFS preliminary determined that 2 

individuals of bottlenose and Atlantic 

spotted dolphins, and 1 individual of 

pantropical spotted and spinner 

dolphins would receive slight lung 

injury (Level A harassment) as a result 

of underwater detonation exposures in 

the range of 76–272 lb NEW (34–272 kg) 

in non-territorial waters per year. 

Based on the aforementioned 

assessment, NMFS determined that 

approximately 2 sperm whales, 2 

melon-headed whales, 1 short-finned 

pilot whale, 2 Risso’s dolphins, 614 

bottlenose dolphins, 471 Atlantic 

spotted dolphins, 23 pantropical spotted 

dolphins, 5 striped dolphins, 23 spinner 

dolphins, and 5 Clymene dolphins 

would experience Level B harassment 

(TTS and sub-TTS) as a result of the 

proposed NSWC PCD RDT&E sonar and 

underwater detonation testing activities. 

These numbers represent approximately 

0.12%, 0.08%, 0.14%, 0.07%, 2.85%, 

1.25%, 0.07%, 0.08%, 1.16%, and 

0.08% of sperm whales, melon-headed 

whales, short-finned pilot whale, roughtoothed dolphins, bottlenose dolphins, 

Atlantic spotted dolphins, pantropical 

spotted dolphins, striped dolphins, 

spinner dolphins, and Clymene 

dolphins, respectively in the vicinity of 

the proposed NSWC PCD Study Area 

(calculation based on NMFS 2007 US 

Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessment). 

In addition, the Level A takes of 2 

bottlenose, 2 Atlantic spotted, 1 

pantropical spotted, and 1 spinner 

dolphins represent 0.009%, 0.005%, 

0.003%, and 0.050% of these species in 

the vicinity of the proposed NSWC PCD 

Study Area (calculation based on NMFS 

2007 US Atlantic and Gulf of Mexico 

Marine Mammal Stock Assessment). 

Given these very small percentages, 

NMFS does not expect there to be any 

long-term adverse effect on the 

populations of the aforementioned 

dolphin species. No marine mammals 

are expected to be killed as a result of 

these activities. 

Based on the supporting analyses, 

which suggest that that no marine 

mammals will be killed as a result of 

these activities, only 6 individuals of 

dolphins (2 bottlenose, 2 Atlantic 

spotted, 1 pantropical spotted, and 1 

spinner dolphins) would experience 

injury (Level A harassment), and no 

more than a small percentage of the 

individuals of any affected species will 

be taken in the form of short-term Level 

B harassment per year. 

Additionally, the aforementioned take 

estimates do not account for the 

implementation of mitigation measures. 

With the implementation of mitigation 

and monitoring measures, NMFS 

expects that the takes would be reduced 

further. Coupled with the fact that these 

impacts will likely not occur in areas 

and times critical to reproduction, 

NMFS has determined that the total 

taking over the 5-year period of the 

regulations and subsequent LOAs from 

the Navy’s NSWC PCD RDT&E mission 

activities will have a negligible impact 

on the marine mammal species and 

stocks present in the NSWC PCD Study 

Area. 

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 NSWC PCD 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. 


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ESA 

There are six marine mammal species 

of which NMFS has jurisdiction that are 

listed as endangered under the ESA that 

could occur in the NSWC PCD Study 

Area: humpback whale, North Atlantic 

right whale, blue whale, fin whale, sei 

whale, and sperm whale. 

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. The Biological Opinion 

was issued on September 15, 2009, and 

concludes that the proposed RDT&E 

activities are likely to adversely affect 

but are not likely to jeopardize the 

continued existence of these threatened 

and endangered species under NMFS 

jurisdiction. 

NEPA 

NMFS participated as a cooperating 

agency on the Navy’s Final 

Environmental Impact Statement (FEIS) 

for the NSWC PCD. NMFS subsequently 

adopted the Navy’s EIS/OEIS for the 

purpose of complying with the MMPA. 

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 measures, NMFS finds 

that the total taking from the NSWC 

PCD’s RDT&E activities utilizing MFAS/ 

HFAS and underwater explosives 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 because no 

subsistence uses exist in the NSWC PCD 

Study Area. 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. 

The Office of Management and Budget 

has determined that this rule is not 

significant for purposes of Executive 

Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified at 

the proposed rule stage that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. The Navy is the entity that will 

be affected by this rulemaking, not a 

small governmental jurisdiction, small 

organization or small business, as 

defined by the RFA. This rulemaking 

authorizes the take of marine mammals 

incidental to a specified activity. The 

specified activity defined in the final 

rule includes the use of underwater 

detonations, which are only used by the 

U.S. military, during RDT&E activities 

that are only conducted by the U.S. 

Navy. Additionally, any requirements 

imposed by a Letter of Authorization 

issued pursuant to these regulations, 

and any monitoring or reporting 

requirements imposed by these 

regulations, will be applicable only to 

the Navy. Because this action, if 

adopted, would directly affect the Navy 

and not a small entity, NMFS concludes 

the action would not result in a 

significant economic impact on a 

substantial number of small entities. 

The Assistant Administrator for 

Fisheries has determined that there is 

good cause under the Administrative 

Procedure Act (5 U.S.C. 553(d)(3)) to 

waive the 30-day delay in effective date 

of the measures contained in the final 

rule. The U.S Navy has a compelling 

national policy reason to continue 

military readiness activities without 

interruption in its Gulf of Mexico 

Operating Areas, i.e., the NSWC PCD 

Study Area. As discussed below, 

suspension/interruption of the Navy’s 

ability to train, for even a small number 

of days, disrupts vital sequential RDT&E 

activities and certification processes 

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 continually 

conduct RDT&E activities. These 

activities are critical because individual 

Navy units and Strike Groups/ 

Amphibious Readiness Groups (ARG) 

currently operate in, or need to utilize 

highly advantaged technologies to 

support mission activities. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Navy, Penalties, Reporting 

and recordkeeping requirements, 

Seafood, Transportation. 

Dated: January 13, 2010. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, 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 S is added to part 218 to 

read as follows: 

Subpart S—Taking Marine Mammals 

Incidental to U.S. Naval Surface Warfare 

Center Panama City Division Mission 

Activities 

Sec. 

218.180 Specified activity and specified 

geographical area and effective dates. 

218.181 Permissible methods of taking. 

218.182 Prohibitions. 

218.183 Mitigation. 

218.184 Requirements for monitoring and 

reporting. 

218.185 Applications for Letters of 

Authorization. 

218.186 Letters of Authorization. 

218.187 Renewal of Letters of Authorization 

and adaptive management. 

218.188 Modifications to Letters of 

Authorization. 

Subpart S—Taking Marine Mammals 

Incidental to U.S. Navy Mission 

Activities in the Naval Surface Warfare 

Center Panama City Division 

§ 218.180 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 occurs in the area 

outlined in paragraph (b) of this section 

and that occur incidental to the 

activities described in paragraph (c) of 

this section. 

(b) The taking of marine mammals by 

the Navy is only authorized if it occurs 

within the NSWC PCD Study Area, 

which includes St. Andrew Bay (SAB) 

and military warning areas (areas within 

the GOM subject to military operations) 

W–151 (includes Panama City Operating 

Area), W–155 (includes Pensacola 

Operating Area), and W–470, as 

described in Figures 2–1 and 2–2 of the 

Navy’s application for the Letter of 

Authorization (LOA). The NSWC PCD 

Study Area includes a Coastal Test 

Area, a Very Shallow Water Test Area, 

and Target and Operational Test Fields. 

The NSWC PCD Research, 

Development, Test, and Evaluation 

(RDT&E) activities may be conducted 

anywhere within the existing military 


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operating areas and SAB from the mean 

high water line (average high tide mark) 

out to 222 km (120 nm) offshore. The 

locations and environments include: 

(1) Test area control sites adjacent to 

NSWC PCD. 

(2) Wide coastal shelf 97 km (52 nm) 

distance offshore to 183 m (600 ft), 

including bays and harbors. 

(c) The taking of marine mammals by 

the Navy is only authorized if it occurs 

incidental to the following activities 

within the designated amounts of use: 

(1) The use of the following high 

frequency active sonar (HFAS) and midfrequency active sonar (MFAS) or 

similar sources for U.S. Navy mission 

activities in territorial waters in the 

amounts indicated below: 

(i) AN/SQS–53/56 Kingfisher—up to 

15 hours over the course of 5 years (an 

average of 3 hours per year); 

(ii) Sub-bottom profiler (2–9 kHz)—up 

to 105 hours over the course of 5 years 

(an average of 21 hours per year); 

(iii) REMUS SAS–LF (center 

frequency 15 kHz)—up to 60 hours over 

the course of 5 years (an average of 12 

hours per year); 

(iv) REMUS Modem—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year); 

(v) Sub-bottom profiler (2–16 kHz)— 

up to 120 hours over the course of 5 

years (an average of 24 hours per year); 

(vi) AN/SQQ–32—up to 150 hours 

over the course of 5 years (an average of 

30 hours per year); 

(vii) REMUS–SAS–LF (center 

frequency 20 kHz)—up to 100 hours 

over the course of 5 years (an average of 

20 hours per year); 

(viii) SAS–LF—up to 175 hours over 

the course of 5 years (an average of 35 

hours per year); 

(ix) AN/WLD–1 RMS–ACL—up to 168 

hours over the course of 5 years (an 

average of 33.5 hours per year); 

(x) BPAUV Sidescan (center 

frequency 75 kHz)—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year); 

(xi) TVSS—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(xii) F84Y—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(xiii) BPAUV Sidescan (center 

frequency 102.5 kHz)—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year); 

(xiv) REMUS–SAS–HF—up to 50 

hours over the course of 5 years (an 

average of 10 hours per year); 

(xv) SAS–HF—up to 58 hours over the 

course of 5 years (an average of 11.5 

hours per year); 

(xvi) AN/SQS–20—up to 2725 hours 

over the course of 5 years (an average of 

545 hours per year); 

(xvii) AN/WLD–11 RMS Navigation— 

up to 75 hours over the course of 5 years 

(an average of 15 hours per year); and 

(xviii) BPAUV Sidescan (center 

frequency 120 kHz)—up to 150 hours 

over the course of 5 years (an average of 

30 hours per year). 

(2) The use of the following high 

frequency active sonar (HFAS) and midfrequency active sonar (MFAS) or 

similar sources for U.S. Navy mission 

activities in non-territorial waters in the 

amounts indicated below: 

(i) AN/SQS–53/56 Kingfisher—up to 5 

hours over the course of 5 years (an 

average of 1 hour per year); 

(ii) Sub-bottom profiler (2–9 kHz)—up 

to 5 hours over the course of 5 years (an 

average of 1 hour per year); 

(iii) REMUS Modem—up to 60 hours 

over the course of 5 years (an average of 

12 hours per year); 

(iv) Sub-bottom profiler (2–16 kHz)— 

up to 5 hours over the course of 5 years 

(an average of 1 hour per year); 

(v) AN/SQQ–32—up to 5 hours over 

the course of 5 years (an average of 1 

hour per year); 

(vi) SAS–LF—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(vii) AN/WLD–1 RMS–ACL—up to 25 

hours over the course of 5 years (an 

average of 5 hours per year); 

(viii) BPAUV Sidescan (center 

frequency 75 kHz)—up to 190 hours 

over the course of 5 years (an average of 

38 hours per year); 

(ix) TVSS—up to 83 hours over the 

course of 5 years (an average of 16.5 

hours per year); 

(x) F84Y—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(xi) REMUS–SAS–HF—up to 125 

hours over the course of 5 years (an 

average of 25 hours per year); 

(xii) SAS–HF—up to 75 hours over 

the course of 5 years (an average of 15 

hours per year); 

(xiii) AN/AQS–20—up to 75 hours 

over the course of 5 years (an average of 

15 hours per year); and 

(xiv) BPAUV Sidescan (center 

frequency 120 kHz)—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year). 

(3) Ordnance operations for U.S. Navy 

mission activities in territorial waters in 

the amounts indicated below: 

(i) Range 1 (0–10 lb)—up to 255 

detonations over the course of 5 years 

(an average of 51 detonations per year); 

(ii) Range 2 (11–75 lb)—up to 15 

detonations over the course of 5 years 

(an average of 3 detonations per year); 

and 

(iii) Line charges—up to 15 

detonations over the course of 5 years 

(an average of 3 detonations per year). 

(4) Ordnance operations for U.S. Navy 

mission activities in non-territorial 

waters in the amounts indicated below: 

(i) Range 3 (76–600 lb)—up to 80 

detonations over the course of 5 years 

(an average of 16 detonations per year). 

(ii) Reserved. 

(5) Projectile firing operations for U.S. 

Navy mission activities in nonterritorial waters in the amounts 

indicated below: 

(i) 5 in. Naval gunfire—up to 300 

rounds over the course of 5 years (an 

average of 60 rounds per year); 

(ii) 40 mm rounds—up to 2,400 

rounds over the course of 5 years (an 

average of 480 rounds per year); 

(iii) 30 mm rounds—up to 3,000 

rounds over the course of 5 years (an 

average of 600 rounds per year); 

(iv) 20 mm rounds—up to 14,835 

rounds over the course of 5 years (an 

average of 2,967 rounds per year); 

(v) 76 mm rounds—up to 1,200 

rounds over the course of 5 years (an 

average of 240 rounds per year); 

(vi) 25 mm rounds—up to 2,625 

rounds over the course of 5 years (an 

average of 525 rounds per year); and 

(vii) Small arms—up to 30,000 rounds 

over the course of 5 years (an average of 

6,000 rounds per year). 

(d) Regulations are effective January 

21, 2010, through January 21, 2015. 

§ 218.181 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 and 

218.186 of this chapter, the Holder of 

the Letter of Authorization may 

incidentally, but not intentionally, take 

marine mammals within the area 

described in § 218.180(b), provided the 

activity is in compliance with all terms, 

conditions, and requirements of these 

regulations and the appropriate Letter of 

Authorization. 

(b) The incidental take of marine 

mammals under the activities identified 

in § 218.180(c) is limited to the 

following species, by the indicated 

method of take and the indicated 

number of times: 

(1) Level B Harassment: 

(i) Sperm whale (Physeter 

macrocephalus)—10 (an average of 2 

annually), 

(ii) Risso’s dolphin (Grampus 

griseus)—10 (an average of 2 annually); 

(iii) Bottlenose dolphin (Tursiops 

truncatus)—3,070 (an average of 614 

annually); 

(iv) Atlantic spotted dolphin (Stenella 

frontalis)—2,355 (an average of 471 

annually); 


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(v) Pantropical spotted dolphin (S. 

attenuata)—115 (an average of 23 

annually); 

(vi) Striped dolphin (S. 

coeruleoalba)—25 (an average of 5 

annually); 

(vii) Spinner dolphin (S. 

longirostris)—115 (an average of 23 

annually); 

(viii) Melon-headed whale 

(Peponocephala electra)—10 (an 

average of 2 annually); 

(ix) Short-finned pilot whale 

(Globicephala macrorhynchus)—5 (an 

average of 1 annually); 

(x) Clymene dolphin (S. clymene)—25 

(an average of 5 annually); 

(2) Level A Harassment: 

(i) Bottlenose dolphin (Tursiops 

truncatus)—10 (an average of 2 

annually); 

(ii) Atlantic spotted dolphin (Stenella 

frontalis)—10 (an average of 2 annually); 

(iii) Pantropical spotted dolphin (S. 

attenuata)—5 (an average of 1 annually); 

(ix) Spinner dolphin (S. 

longirostris)—5 (an average of 1 

annually). 

§ 218.182 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.181 and 

authorized by a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 218.186, no person in connection 

with the activities described in 

§ 218.180 may: 

(a) Take any marine mammal not 

specified in § 218.181(b); 

(b) Take any marine mammal 

specified in § 218.181(b) other than by 

incidental take as specified in 

§ 218.181(b)(1) and (2); 

(c) Take a marine mammal specified 

in § 218.181(b) 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 § 218.186. 

§ 218.183 Mitigation. 

When conducting RDT&E activities 

identified in § 218.180(c), the mitigation 

measures contained in this subpart and 

subsequent Letters of Authorization 

issued under §§ 216.106 of this chapter 

and § 218.186 must be implemented. 

These mitigation measures include, but 

are not limited to: 

(a) Mitigation Measures for HFAS/ 

MFAS Operations: (1) Personnel 

Training: (i) All marine observers 

onboard platforms involved in NSWC 

PCD RDT&E activities shall complete 

Marine Species Awareness Training 

(MSAT). 

(ii) Marine observers shall be trained 

in the most effective means to ensure 

quick and effective communication 

within the command structure in order 

to facilitate implementation of 

mitigation measures if marine species 

are spotted. 

(2) Marine Observer Responsibilities: 

(i) On the bridge of surface vessels, 

there shall always be at least one to 

three marine species awareness trained 

observer(s) on watch whose duties 

include observing the water surface 

around the vessel. 

(A) For vessels with length under 65 

ft (20 m), there shall always be at least 

one marine observer on watch. 

(B) For vessels with length between 

65–200 ft (20–61 m), there shall always 

be at least two marine observers on 

watch. 

(C) For vessels with length above 200 

ft (61 m), there shall always be at least 

three marine observers on watch. 

(ii) Each marine observer shall have at 

their disposal at least one set of 

binoculars available to aid in the 

detection of marine mammals. 

(iii) On surface vessels equipped with 

AN/SQQ–53C/56, pedestal mounted 

‘‘Big Eye’’ (20 x 110) binoculars shall be 

present and in good working order to 

assist in the detection of marine 

mammals in the vicinity of the vessel. 

(iv) Marine observers shall employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(v) Marine observers shall scan the 

water from the vessel to the horizon and 

be responsible for ensuring that all 

contacts in their sector follow the below 

protocols: 

(A) In searching the assigned sector, 

the marine observer shall always start at 

the forward part of the sector and search 

aft (toward the back). 

(B) To search and scan, the marine 

observer shall hold the binoculars 

steady so the horizon is in the top third 

of the field of vision and direct the eyes 

just below the horizon. 

(C) The marine observer shall scan for 

approximately five seconds in as many 

small steps as possible across the field 

seen through the binoculars. 

(D) The marine observer shall search 

the entire sector in approximately fivedegree steps, pausing between steps for 

approximately five seconds to scan the 

field of view. 

(E) At the end of the sector search, the 

glasses would be lowered to allow the 

eyes to rest for a few seconds, and then 

the marine observer shall search back 

across the sector with the naked eye. 

(vi) After sunset and prior to sunrise, 

marine observers shall employ Night 

Lookout Techniques in accordance with 

the Lookout Training Handbook. 

(vii) At night, marine observers shall 

scan the horizon in a series of 

movements that would allow their eyes 

to come to periodic rests as they scan 

the sector. When visually searching at 

night, marine observers shall look a 

little to one side and out of the corners 

of their eyes, paying attention to the 

things on the outer edges of their field 

of vision. 

(viii) Marine observers shall be 

responsible for reporting all objects or 

anomalies sighted in the water 

(regardless of the distance from the 

vessel) to the Test Director or the Test 

Director’s designee. 

(3) Operating Procedures: 

(i) The Test Director or the Test 

Director’s designee shall maintain the 

logs and records documenting RDT&E 

activities should they be required for 

event reconstruction purposes. Logs and 

records will be kept for a period of 30 

days following completion of a RDT&E 

mission activity. 

(ii) A Record of Environmental 

Consideration shall be included in the 

Test Plan prior to the test event to 

further disseminate the personnel 

testing requirement and general marine 

mammal mitigation measures. 

(iii) Test Directors shall make use of 

marine species detection cues and 

information to limit interaction with 

marine species to the maximum extent 

possible consistent with safety of the 

vessel. 

(iv) All personnel engaged in passive 

acoustic sonar operation (including 

aircraft or surface vessels) shall monitor 

for marine mammal vocalizations and 

report the detection of any marine 

mammal to the Test Director or the Test 

Director’s designee for dissemination 

and appropriate action. 

(v) During HFAS/MFAS mission 

activities, personnel shall utilize all 

available sensor and optical systems 

(such as Night Vision Goggles) to aid in 

the detection of marine mammals. 

(vi) Navy aircraft participating in 

RDT&E activities at sea shall conduct 

and maintain surveillance for marine 

species of concern as long as it does not 

violate safety constraints or interfere 

with the accomplishment of primary 

operational duties. 

(vii) Marine mammal detections shall 

be immediately reported to the Test 

Director or the Test Director’s designee 

for further dissemination to vessels in 

the vicinity of the marine species as 

appropriate where it is reasonable to 

conclude that the course of the vessel 

will likely result in a closing of the 

distance to the detected marine 

mammal. 


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(viii) Safety Zones—When marine 

mammals are detected by any means 

(aircraft, shipboard marine observer, or 

acoustically) the Navy will ensure that 

HFAS/MFAS transmission levels are 

limited to at least 6 dB below normal 

operating levels if any detected marine 

mammals are within 1,000 yards (914 

m) of the sonar source (the bow). 

(A) Vessels shall continue to limit 

maximum HFAS/MFAS transmission 

levels by this 6-dB factor until the 

marine mammal has been seen to leave 

the area, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yards (1,828 m) beyond 

the location of the last detection. 

(B) The Navy shall ensure that HFAS/ 

MFAS transmissions will be limited to 

at least 10 dB below the equipment’s 

normal operating level if any detected 

animals are within 500 yards (457 m) of 

the sonar source. Vessels will continue 

to limit maximum ping levels by this 

10-dB factor until the marine mammal 

has been seen to leave the area, has not 

been detected for 30 minutes, or the 

vessel has transited more than 2,000 

yards (1,828 m) beyond the location of 

the last detection. 

(C) The Navy shall ensure that HFAS/ 

MFAS transmissions are ceased if any 

detected marine mammals are within 

200 yards (183 m) of the sonar source. 

HFAS/MFAS will not resume until the 

marine mammal has been seen to leave 

the area, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yards (1,828 m) beyond 

the location of the last detection. 

(D) Special conditions applicable for 

dolphins only: If, after conducting an 

initial maneuver to avoid close quarters 

with dolphins, the Officer of the Deck 

concludes that dolphins are deliberately 

closing to ride the vessel’s bow wave, no 

further mitigation actions are necessary 

while the dolphins continue to exhibit 

bow wave riding behavior. 

(E) If the need for power-down should 

arise as detailed in ‘‘Safety Zones’’ 

above, Navy shall follow the 

requirements as though they were 

operating at 235 dB—the normal 

operating level (i.e., the first powerdown will be to 229 dB, regardless of at 

what level above 235 sonar was being 

operated). 

(ix) Prior to start up or restart of active 

sonar, operators will check that the 

Safety Zone radius around the sound 

source is clear of marine mammals. 

(x) Sonar levels (generally)—Navy 

shall operate sonar at the lowest 

practicable level, not to exceed 235 dB, 

except as required to meet RDT&E 

objectives. 

(b) Mitigation Measures for Ordnance 

and Projectile Firing: (1) No detonations 

over 34 kg (75 lb) shall be conducted in 

territorial waters, except the line charge 

detonation, which is a 107 m (350 ft). 

(2) The number of live mine 

detonations shall be minimized and the 

smallest amount of explosive material 

possible to achieve test objectives will 

be used. 

(3) Activities shall be coordinated 

through the Environmental Help Desk to 

allow potential concentrations of 

detonations in a particular area over a 

short time to be identified and avoided. 

(4) Visual surveys and aerial surveys 

of the clearance zones specified in 

§ 218.183(b)(6)(i) through (iii) shall be 

conducted in accordance with 

§ 218.184(c) for all test operations that 

involve detonation events with large net 

explosive weight (NEW). Any protected 

species sighted will be reported. 

(5) Line charge tests shall not be 

conducted during the nighttime. 

(6) Additional mitigation measures 

shall be determined through the NSWC 

PCD’s Environmental Review Process 

based on test activities including the 

size of detonations, test platforms, and 

environmental effects documented in 

the Navy’s EIS/OEIS. Clearance zones 

must be determined based on the upper 

limit of different ranges of net explosive 

weight (NEW) used in the tests, as listed 

below: 

(i) NEW between 76–600 lb: clearance 

zone is 2,863 m (9,393 ft); 

(ii) NEW between 11–75 lb: clearance 

zone is 997 m (2,865 ft); and 

(iii) NEW less than 11 lb—clearance 

zone is 345 m (1,132 ft). 

(c) Mitigation Measures for Surface 

Operations: (1) While underway, vessels 

shall have at least one to three marine 

species awareness trained observers 

(based on vessel length) with 

binoculars. As part of their regular 

duties, marine observers shall watch for 

and report to the Test Director or Test 

Director’s designee the presence of 

marine mammals. 

(i) For vessels with length under 65 ft 

(20 m), there shall always be at least one 

marine observer on watch. 

(ii) For vessels with length between 

65–200 ft (20–61 m), there shall always 

be at least two marine observers on 

watch. 

(iii) For vessels with length above 200 

ft (61 m), there shall always be at least 

three marine observers on watch. 

(2) Marine observers shall employ 

visual search procedures employing a 

scanning method in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(3) While in transit, naval vessels 

shall be alert at all times, use extreme 

caution, and proceed at a ‘‘safe speed’’ 

(the minimum speed at which mission 

goals or safety will not be compromised) 

so that the vessel can take proper and 

effective action to avoid a collision with 

any marine animal and can be stopped 

within a distance appropriate to the 

prevailing circumstances and 

conditions. 

(4) When marine mammals have been 

sighted in the area, Navy vessels shall 

increase vigilance and shall implement 

measures to avoid collisions with 

marine mammals and avoid activities 

that might result in close interaction of 

naval assets and marine mammals. 

Actions shall include changing speed 

and/or direction and are dictated by 

environmental and other conditions 

(e.g., safety, weather). 

(5) Naval vessels shall maneuver to 

keep at least 500 yd (460 m) away from 

any observed whale and avoid 

approaching whales head-on. This 

requirement does not apply if a vessel’s 

safety is threatened, such as when 

change of course will create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in their ability to 

maneuver. Vessels shall take reasonable 

steps to alert other Navy vessels in the 

vicinity of the whale. 

(6) Where operationally feasible and 

safe, vessels shall avoid closing to 

within 200-yd (183 m) of marine 

mammals other than whales. 

§ 218.184 Requirements for monitoring 

and reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§§ 216.106 and 218.186 for activities 

described in § 218.180(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 

§ 218.180(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 

§ 218.181(b). 

(c) The Holder of the Letter of 

Authorization must conduct all 

monitoring and required reporting 

under the Letter of Authorization, 

including abiding by the NSWC PCD 

Study Area 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—Vessel, Aerial 

and Shore-based: The Holder of this 

Authorization shall visually survey a 

minimum of 2 HFAS/MFAS activities 


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and 2 explosive events per year. If the 

53C sonar was being operated, such 

activity must be monitored as one of the 

HFAS/MFAS activities. For explosive 

events, one of the monitoring measures 

shall be focused on a multiple 

detonation event. 

(i) In accordance with all safety 

considerations, observations shall be 

maximized by working from all 

available platforms: Vessels, aircraft, 

land and/or in combination. 

(ii) Vessel and aerial surveys shall be 

conducted two days before, during, and 

one to five days after the NSWC PCD 

mission activities on commercial vessels 

and aircraft. 

(iii) Visual surveys shall be conducted 

during Navy mission activities that have 

been identified to provide the highest 

likelihood of success. 

(iv) The visual survey team shall 

collect the same data that are collected 

by Navy marine observers, including but 

not limited to: 

(A) Location of sighting; 

(B) Species (or to the lowest taxa 

possible); 

(C) Number of individuals; 

(D) Number of calves present, if any; 

(E) Duration of sighting; 

(F) Behavior of marine animals 

sighted; 

(G) Direction of travel; 

(H) Environmental information 

associated with sighting event including 

Beaufort sea state, wave height, swell 

direction, wind direction, wind speed, 

glare, percentage of glare, percentage of 

cloud cover; and 

(I) When in relation to Navy exercises 

did the sighting occur (before, during or 

after detonations/exercise). 

(v) Animal sightings and relative 

distance from a particular activity site 

shall be used post survey to estimate the 

number of marine mammals exposed to 

different received levels (energy and 

pressure of discharge based on distance 

to the source, bathymetry, 

oceanographic conditions and the type 

and size of detonation) and their 

corresponding behavior. 

(vi) Any digital photographs that are 

taken of marine mammals during visual 

surveys shall be provided to local 

researchers for their regional research. 

(vii) The Holder of the Letter of 

Authorization shall, when conducting 

RDT&E activities in the NSWC PCD 

Study Area, implement the following 

monitoring methods: 

(A) Aerial surveys: 

(1) During NSWC PCD sonar related 

mission activities, an aerial survey team 

shall fly transects relative to a Navy 

surface vessel that is conducting the 

mission activities. 

(2) The aerial survey team shall 

collect both visual sightings and 

behavioral observations of marine 

animals. 

(3) These transect data shall provide 

an opportunity to collect data of marine 

mammals at different received levels 

and their behavioral responses and 

movement relative to the Navy vessel’s 

position. 

(4) Aerial surveys shall include time 

with and without test events in order to 

compare density, geographical 

distribution and behavioral 

observations. 

(5) Behavioral observation methods 

shall involve three professionally 

trained marine mammal observers and a 

pilot. Two observers shall observe 

behaviors, one with hand-held 

binoculars and one with the naked eye. 

(6) Detailed behavioral focal 

observations of cetaceans shall be 

recorded including the following 

variables where possible: species (or to 

the lowest taxa possible), group size and 

composition (number of calves, etc.), 

latitude/longitude, surface and dive 

durations and times, number and 

spacing/times of respirations, 

conspicuous behaviors (e.g., breach, tail 

slap, etc.), behavioral states, orientation 

and changes in orientation, estimated 

group travel speed, inter-individual 

distances, defecation, social 

interactions, aircraft speed, aircraft 

altitude, distance to focal group (using 

the plane’s radar) and any unusual 

behaviors or apparent reactions. 

(B) Vessel Surveys: 

(1) Vessel surveys shall be designed to 

maximize detections of any target 

species near mission activity event for 

focal follows. 

(2) Systematic transects shall be used 

to locate marine mammals. In the course 

of conducting these surveys, the 

vessel(s) shall deviate from transect 

protocol to collect behavioral data 

particularly if a Navy vessel is visible on 

the horizon or closer. 

(3) While the Navy vessels are within 

view, attempts shall be made to position 

the dedicated survey vessel in the best 

possible way to obtain focal follow data 

in the presence of the Navy mission 

activities. If Navy vessels are not in 

view, then the vessel shall begin a 

systematic line transect surveys within 

the area to assess marine mammal 

occurrence and observe behavior. 

(4) Post-analysis shall focus on how 

the location, speed and vector of the 

survey vessel and the location and 

direction of the sonar source (e.g. Navy 

surface vessel) relates to the animal. 

(5) Any other vessels or aircraft 

observed in the area shall also be 

documented. 

(C) Shore-based Surveys: 

(1) Shore-based monitors shall 

observe explosive events that are 

planned in advance to occur adjacent to 

nearshore areas where there are elevated 

coastal structures (e.g. lookout tower at 

Eglin Air Force Base) or topography, 

and shall use binoculars or theodolite to 

augment other visual survey methods. 

(2) Shore-based surveys of the 

detonation 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 for 

appropriate action and the information 

shall be transmitted immediately to 

NMFS. 

(3) If animals are observed prior to or 

during an explosion, a focal follow of 

that individual or group shall be 

conducted to record behavioral 

responses. 

(2) Passive Acoustic Monitoring 

(PAM): The Holder of this Authorization 

shall visually survey a minimum of 2 

HFAS/MFAS activities and 2 explosive 

events per year. If the 53C sonar was 

being operated, such activity must be 

monitored as one of the HFAS/MFAS 

activities. For explosive events, one of 

the monitoring measures shall be 

focused on a multiple detonation event. 

(i) The Navy shall use towed or overthe-side passive acoustic monitoring 

device/hydrophone array when feasible 

in the NSWC PCD Study Area for PAM. 

(ii) The array shall be deployed for 

each of the days the ship is at sea. 

(iii) The array shall be able to detect 

low frequency vocalizations (less than 

1,000 Hz) for baleen whales and 

relatively high frequency vocalizations 

(up to 30 kHz) for odontocetes. 

(iv) These buoys shall be left in place 

for a long enough duration (e.g. months) 

that data are collected before, during 

and outside of mission activities. 

(v) Acoustic data collected from the 

buoys shall be used in order to detect, 

locate, and potentially track calling 

whales/dolphins. 

(3) Marine Mammal Observers 

(MMOs) on Navy vessels: 

(i) Civilian MMOs aboard Navy 

vessels shall be used to research the 

effectiveness of Navy marine observers, 

as well as for data collection during 

other monitoring surveys. 

(ii) MMOs shall be field-experienced 

observers that are Navy biologists or 

contracted observers. 

(iii) MMOs shall be placed alongside 

existing Navy marine observers during a 

sub-set of RDT&E events. 

(iv) MMOs shall inform the Navy 

marine observer of any marine mammal 


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sighting so that appropriate action may 

be taken by the chain of command. For 

less biased data, it is recommended that 

MMOs schedule their daily observations 

to duplicate the marine observers’ 

schedule. 

(v) MMOs shall monitor for marine 

mammals from the same height above 

water as the Navy marine observers (e.g. 

bridge wings) and as all visual survey 

teams, and they shall collect the same 

data collected by Navy marine 

observers, including but not limited to: 

(A) Location of sighting; 

(B) Species; 

(C) Number of individuals; 

(D) Number of calves present, if any; 

(E) Duration of sighting; 

(F) Behavior of marine animals 

sighted; 

(G) Direction of travel; 

(H) Environmental information 

associated with sighting event including 

Beaufort sea state, wave height, swell 

direction, wind direction, wind speed, 

glare, percentage of glare, percentage of 

cloud cover; and 

(I) When in relation to Navy RDT&E 

activities did the sighting occur (before, 

during or after detonations/exercise). 

(d) General 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 shortly after, and in the 

vicinity of, any Navy’s RDT&E activities 

utilizing underwater explosive 

detonations. The Navy shall provide 

NMFS with species or description of the 

animal(s), the condition of the animal(s) 

(including carcass condition if the 

animal is dead), location, time of first 

discovery, observed behaviors (if alive), 

and photo or video (if available). 

(e) If there is clear evidence that a 

marine mammal is injured or killed as 

a result of the proposed Navy RDT&E 

activities (e.g., instances in which it is 

clear that munitions explosions caused 

the injury or death) the Naval activities 

shall be immediately suspended and the 

situation immediately reported by 

personnel involved in the activity to the 

Test Director or the Test Director’s 

designee, who will follow Navy 

procedures for reporting the incident to 

NMFS through the Navy’s chain-ofcommand. 

(f) Annual NSWC PCD Report—The 

Navy shall submit a report annually on 

October 1 describing the RDT&E 

activities conducted and 

implementation and results of the 

NSWC PCD Monitoring Plan (through 

August 1 of the same year) and RDT&E 

activities. Although additional 

information will also be gathered, the 

MMOs collecting marine mammal data 

pursuant to the NSWC PCD Monitoring 

Plan shall, at a minimum, provide the 

same marine mammal observation data 

listed below. 

(1) RDT&E Information: 

(i) Date and time test began and 

ended; 

(ii) Location; 

(iii) Number and types of active 

sources used in the test; 

(iv) Number and types of vessels, 

aircraft, etc., participated in the test; 

(v) Number and types of underwater 

detonations; 

(vi) Total hours of observation effort 

(including observation time when sonar 

was not operating). 

(vii) Total hours of all active sonar 

source operation; 

(viii) Total hours of each active sonar 

source; and 

(ix) Wave height (high, low, and 

average during the test) in feet. 

(2) Individual Marine Mammal 

Sighting Info: 

(i) Location of sighting; 

(ii) Species; 

(iii) Number of individuals; 

(iv) Calves observed (y/n); 

(v) Initial detection sensor; 

(vi) Indication of specific type of 

platform observation made from; 

(vii) Length of time observers 

maintained visual contact with marine 

mammal(s); 

(viii) Wave height (in feet); 

(ix) Visibility; 

(x) Sonar source in use (y/n); 

(xi) 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; 

(xii) Mitigation implementation— 

Whether operation of sonar sensor was 

delayed, or sonar was powered or shut 

down, and how long the delay was; 

(xiii) If the active MFAS in use is 

hullmounted, true bearing of animal 

from ship, true direction of ship’s travel, 

and estimation of animal’s motion 

relative to ship (opening, closing, 

parallel); 

(xiv) 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.); and 

(xv) An evaluation of the effectiveness 

of mitigation measures designed to 

avoid exposing marine mammals to 

HFAS/MFAS. This evaluation shall 

identify the specific observations that 

support any conclusions the Navy 

reaches about the effectiveness of the 

mitigation. 

(g) NSWC PCD Comprehensive 

Report—The Navy shall submit to 

NMFS a draft report that analyzes and 

summarizes all of the multi-year marine 

mammal information gathered during 

sonar operations and underwater 

explosive events for which individual 

reports are required in § 218.184 (d-f). 

This report will be submitted at the end 

of the fourth year of the rule (December 

2013), covering activities that have 

occurred through July 1, 2013. 

(h) The Navy shall respond to NMFS 

comments and requests for additional 

information or clarification on the 

NSWC PCD Comprehensive Report and 

the Annual NSWC PCD Report if 

submitted within 3 months of receipt. 

The report will be considered final after 

the Navy has addressed NMFS’ 

comments or provided the requested 

information, 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. 

§ 218.185 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations, the U.S. 

citizen (as defined by § 216.103 of this 

chapter) conducting the activity 

identified in § 218.180(c) (the U.S. 

Navy) must apply for and obtain either 

an initial Letter of Authorization in 

accordance with § 218.186 or a renewal 

under § 218.187. 

§ 218.186 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 § 218.187. 

(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 


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3416 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

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). 

§ 218.187 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 of this chapter and 

§ 218.186 for the activity identified in 

§ 218.180(c) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.185 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 § 218.184(b); and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.183 and 

the Letter of Authorization issued under 

§§ 216.106 of this chapter and 218.186, 

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 of this chapter and 218.187 

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. Review and comment on 

renewals of Letters of Authorization are 

restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) 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 NSWC PCD Study Area or 

other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (§ 218.184(i)). 

(3) Compiled results of Navy-funded 

research and development (R&D) 

studies. 

(4) Results from specific stranding 

investigations (either from the NSWC 

PCD Study Area or other locations). 

(5) Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

(6) 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. 

§ 218.188 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS, issued 

pursuant to § 216.106 of this chapter 

and § 218.186 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 § 218.187, 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 § 218.181(b), a 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and 

§ 218.186 may be substantively 

modified without prior notification and 

an opportunity for public comment. 

Notification will be published in the 

Federal Register within 30 days 

subsequent to the action. 

[FR Doc. 2010–1074 Filed 1–20–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

[Docket No. 090218199–91223–02] 

RIN 0648–AX38 

Fisheries in the Western Pacific; 

Pelagic Fisheries; Vessel Identification 

Requirements 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule revises 

identification requirements for U.S. 

vessels that fish for pelagic management 

unit species in the western and central 

Pacific Ocean. Each vessel is required to 

display its International 

Telecommunication Union Radio Call 

Sign (IRCS) or, if an IRCS has not been 

assigned, its official number preceded 

by the characters ‘‘USA ’’. This rule 

makes Federal vessel identification 

requirements consistent with 

international requirements. 

DATES: This final rule is effective 

February 22, 2010. 

ADDRESSES: Written comments 

regarding the burden-hour estimates or 

other aspects of the collection-ofinformation requirements contained in 

this final rule may be submitted to 

William L. Robinson, NMFS, 1601 

Kapiolani Blvd. 1110, Honolulu, HI 

96814, e-mailed to 

DavidlRostker@omb.eop.gov, or faxed 

to 202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Jarad Makaiau, Sustainable Fisheries, 

NMFS PIR, 808–944–2108. 

SUPPLEMENTARY INFORMATION: This 

Federal Register document is also 

accessible at www.gpoaccess.gov/fr/. 

This final rule revises the vessel 

identification requirements at 50 CFR 

§ 665 to make them consistent with 

international requirements. Currently, 

each fishing vessel is required to display 

its official number (United States Coast 

Guard documentation or other 

registration number) on the port and 

starboard sides of the deckhouse or hull, 

and on an appropriate weather deck, so 

as to be visible from enforcement 

vessels and aircraft. 

New international rules require each 

vessel that fishes on the high seas in the 

Area of the Convention on the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 


srobinson on DSKHWCL6B1PROD with RULES