[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Rules and Regulations]
[Pages 3395-3416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1074]


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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.

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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

[[Page 3396]]

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
------------------------------------------------------------------------
                                Annual operating      Annual operating
           System              hours (territorial        hours (non-
                                     water)          territorial water)
------------------------------------------------------------------------
AN/SQS-53/56 Kingfisher.....                   3                     1
Sub-bottom profiler (2-9                      21                     1
 kHz).......................
REMUS SAS-LF................                  12                     0
REMUS Modem.................                  25                    12
Sub-bottom profiler (2-16                     24                     1
 kHz).......................
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
------------------------------------------------------------------------


[[Page 3397]]

[GRAPHIC] [TIFF OMITTED] TR21JA10.003

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, rough-toothed 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........

[[Page 3398]]

 
    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, na[iuml]ve beluga

[[Page 3399]]

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 non-participating 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

[[Page 3400]]

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:
    <bullet> 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:
    <bullet> 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.
    <bullet> Aircraft with deployed sonobuoys will use only the passive 
capability of sonobuoys when marine mammals are detected within 200 
yards of the sonobuoy.
    <bullet> Helicopters shall observe/survey the vicinity of mission 
activities for 10 minutes before the first deployment of active 
(dipping) sonar in the water.
    <bullet> 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:
    <bullet> 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).
    <bullet> 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
    <bullet> Pre-planned and thorough investigation of stranding events 
that occur coincident to naval activities.
    <bullet> 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/

[[Page 3401]]

pr/permits/incidental.htm<greek-i>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 
pre-determined 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 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. 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

[[Page 3402]]

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

[[Page 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:
    <bullet> Monitor and assess the effects of Navy activities on 
protected species;
    <bullet> Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
    <bullet> Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
    <bullet> 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:
    <bullet> 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.
    <bullet> Guidelines for prioritizing monitoring projects
    <bullet> 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:
    <bullet> Results from the Navy's monitoring from the previous year 
(either from NSWC PCD Study Area or other locations)
    <bullet> 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
    <bullet> Compiled results of Navy funded research and development 
(R&D) studies.
    <bullet> Results from specific stranding investigations (either 
from NSWC PCD Study Area or other locations)
    <bullet> Results from general marine mammal and sound research 
(funded by the Navy or otherwise)
    <bullet> 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).

[[Page 3404]]

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
    <bullet> Date and time test began and ended.
    <bullet> Location.
    <bullet> Number and types of active sources used in the test.
    <bullet> Number and types of vessels, aircraft, etc., participated 
in the test.
    <bullet> Number and types of underwater detonations.
    <bullet> Total hours of observation effort (including observation 
time when sonar was not operating).
    <bullet> Total hours of all active sonar source operation.
    <bullet> Total hours of each active sonar source.
    <bullet> Wave height (high, low, and average during the test).
(2) Individual Marine Mammal Sighting Info
    <bullet> Location of sighting.
    <bullet> Species.
    <bullet> Number of individuals.
    <bullet> Calves observed (y/n).
    <bullet> Initial detection sensor.
    <bullet> Indication of specific type of platform observation made 
from.
    <bullet> Length of time observers maintained visual contact with 
marine mammal(s).
    <bullet> Wave height (in feet).
    <bullet> Visibility.
    <bullet> Sonar source in use (y/n).
    <bullet> 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.
    <bullet> Mitigation implementation--Whether operation of sonar 
sensor was delayed, or sonar was powered or shut down, and how long the 
delay was.
    <bullet> 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).
    <bullet> 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.).
    <bullet> 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

[[Page 3405]]

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:
    <bullet> 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;
    <bullet> A requirement to minimize exposure of protected species 
from sound pressure levels from sonar and underwater detonations that 
result in harassment;
    <bullet> A requirement to collect data to support estimating the 
number of individual marine mammals exposed to sound levels above 
current regulatory thresholds;
    <bullet> A requirement to assess the adequacy of the Navy's current 
marine species mitigation;
    <bullet> A requirement to document trends in species distribution 
and abundance in Navy mission activity areas through monitoring 
efforts;
    <bullet> 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 deep-diving 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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

[[Page 3406]]

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-of-command.
    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

[[Page 3407]]

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
----------------------------------------------------------------------------------------------------------------
                                                         Mortality (severe   Level A (slight     Level B (non-
                 Marine mammal species                      lung injury)       lung injury)         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., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination.
    In addition to considering estimates of the number of marine 
mammals that might be ``taken'' through behavioral harassment, NMFS 
must consider other factors, such as the likely nature of any responses 
(their intensity, duration, etc.), the context of any responses 
(critical reproductive time or location, migration, etc.), as well as 
the number and nature of estimated Level A 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

[[Page 3408]]

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, deep-diving species, such as beaked whales or Kogia sp.) and 
some of the non-biologist watchstanders might not have had the 
expertise to characterize behaviors. However, the data demonstrate that 
the animals that were observed did not respond in any of the obviously 
more severe ways, such as panic, aggression, or anti-predator response.
    In addition to the monitoring that will be required pursuant to 
these regulations and subsequent LOAs, which is specifically designed 
to help us better understand how marine mammals respond to sound, the 
Navy and NMFS have developed, funded, and begun conducting a controlled 
exposure experiment with beaked whales in the Bahamas.

Diel Cycle

    As noted 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 non-territorial 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:
    <bullet> Frequency--Available data (of mid-frequency hearing 
specialists exposed to mid to high frequency sounds--Southall et al., 
2007) suggest that most TTS occurs in the frequency range of the source 
up to one octave higher than the source (with the maximum TTS at \1/2\; 
octave above).
    <bullet> 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 
microPa\2\-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.
    <bullet> 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 
free-swimming marine mammals in the field are likely to be exposed 
during HFAS/MFAS testing activities, it is unlikely that marine mammals 
would sustain a TTS from MFAS that alters their sensitivity by more 
than 20 dB for more than a few days (and the majority would be far less 
severe). Also, for the same reasons discussed in the Diel Cycle 
section, and because of the short distance within which animals would 
need to approach the sound source, it is unlikely that animals would be 
exposed to the levels necessary to induce TTS in subsequent time 
periods such that their recovery were impeded. Additionally, though the 
frequency range of TTS that marine mammals might sustain would overlap 
with some of the frequency ranges of their vocalization types, the 
frequency range of TTS from MFAS (the source from which TTS would more 
likely be sustained because the higher source level and slower 
attenuation make it more likely that an animal would be exposed to a 
higher level) would not usually span the entire frequency range of one 
vocalization type, much less span all types of vocalizations.
    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

[[Page 3409]]

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 hull-mounted 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 
pre-testing 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, rough-toothed 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.

[[Page 3410]]

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.

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

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

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

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


0
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


Sec.  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

[[Page 3411]]

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 
mid-frequency 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 
mid-frequency 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 non-territorial 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.


Sec.  218.181  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
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 Sec.  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 Sec.  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);

[[Page 3412]]

    (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).


Sec.  218.182  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.181 and 
authorized by a Letter of Authorization issued under Sec.  216.106 of 
this chapter and Sec.  218.186, no person in connection with the 
activities described in Sec.  218.180 may:
    (a) Take any marine mammal not specified in Sec.  218.181(b);
    (b) Take any marine mammal specified in Sec.  218.181(b) other than 
by incidental take as specified in Sec.  218.181(b)(1) and (2);
    (c) Take a marine mammal specified in Sec.  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 Sec.  216.106 of this chapter and Sec.  218.186.


Sec.  218.183  Mitigation.

    When conducting RDT&E activities identified in Sec.  218.180(c), 
the mitigation measures contained in this subpart and subsequent 
Letters of Authorization issued under Sec. Sec.  216.106 of this 
chapter and Sec.  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 five-degree 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.

[[Page 3413]]

    (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 power-
down 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 Sec.  218.183(b)(6)(i) through (iii) shall be conducted in 
accordance with Sec.  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.


Sec.  218.184  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 218.186 for activities described in Sec.  
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 Sec.  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 Sec.  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

[[Page 3414]]

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 over-the-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

[[Page 3415]]

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-of-command.
    (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 Sec.  
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.


Sec.  218.185  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec.  216.103 of this chapter) 
conducting the activity identified in Sec.  218.180(c) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance with Sec.  218.186 or a renewal under Sec.  218.187.


Sec.  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 Sec.  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

[[Page 3416]]

determination that the total number of marine mammals taken by the 
activity as a whole will have no more than a negligible impact on the 
affected species or stock of marine mammal(s).


Sec.  218.187  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.186 for the activity identified in Sec.  
218.180(c) will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  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 Sec.  
218.184(b); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.183 and the Letter of 
Authorization issued under Sec. Sec.  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 Sec. Sec.  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 (Sec.  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.


Sec.  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 Sec.  216.106 of 
this chapter and Sec.  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 Sec.  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 well-being of the species 
or stocks of marine mammals specified in Sec.  218.181(b), a Letter of 
Authorization issued pursuant to Sec.  216.106 of this chapter and 
Sec.  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