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DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

[Docket No. 0906101030–0489–03] 

RIN 0648–AX88 

Taking and Importing Marine 

Mammals; Navy Training Activities 

Conducted Within the Northwest 

Training Range Complex 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the U.S. Navy (Navy), is issuing 

regulations to govern the unintentional 

taking of marine mammals incidental to 

activities conducted in the Northwest 

Training Range Complex (NWTRC), off 

the coasts of Washington, Oregon, and 

northern California, for the period of 

October 2010 through October 2015. 

The Navy’s activities are considered 

military readiness activities pursuant to 

the Marine Mammal Protection Act 

(MMPA), as amended by the National 

Defense Authorization Act for Fiscal 

Year 2004 (NDAA). These regulations, 

which allow for the issuance of ‘‘Letters 

of Authorization’’ (LOAs) for the 

incidental take of marine mammals 

during the described activities and 

specified timeframes, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species or stocks and their habitat, as 

well as requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective November 9, 2010 

through November 9, 2015. 

ADDRESSES: A copy of the Navy’s 

application (which contains a list of the 

references used in this document), 

NMFS’ Record of Decision (ROD), and 

other documents cited herein may be 

obtained by writing to Michael Payne, 

Chief, Permits, Conservation and 

Education Division, Office of Protected 

Resources, National Marine Fisheries 

Service, 1315 East-West Highway, Silver 

Spring, MD 20910–3225 or by telephone 

via the contact listed here (see FOR

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: Jolie 

Harrison, Office of Protected Resources, 

NMFS, (301) 713–2289, ext. 166. 

SUPPLEMENTARY INFORMATION: 

Availability of Supporting Information 

Extensive Supplementary Information 

was provided in the proposed rule for 

this activity, which was published in 

the Federal Register on Monday, July 

13, 2009 (74 FR 33828). 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. 

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 National Defense Authorization 

Act of 2004 (NDAA) (Pub. L. 108–136) 

modified the MMPA by removing the 

‘‘small numbers’’ and ‘‘specified 

geographical region’’ limitations and 

amended the definition of ‘‘harassment’’ 

as it applies to a ‘‘military readiness 

activity’’ to read as follows (Section 

3(18)(B) of the MMPA): 

(i) any act that injures or has the significant 

potential to injure a marine mammal or 

marine mammal stock in the wild [Level A 

Harassment]; or 

(ii) any act that disturbs or is likely to 

disturb a marine mammal or marine mammal 

stock in the wild by causing disruption of 

natural behavioral patterns, including, but 

not limited to, migration, surfacing, nursing, 

breeding, feeding, or sheltering, to a point 

where such behavioral patterns are 

abandoned or significantly altered [Level B 

Harassment]. 

Summary of Request 

In September 2008, NMFS received an 

application from the Navy requesting 

authorization for the take of individuals 

of 26 species of marine mammals 

incidental to upcoming Navy training 

activities to be conducted within the 

NWTRC, which extends west to 250 

nautical miles (nm) (463 kilometers 

[km]) beyond the coast of Northern 

California, Oregon, and Washington and 

east to Idaho and encompasses 122,400 

nm2 (420,163 km2) of surface/subsurface 

ocean operating areas. These training 

activities are military readiness 

activities under the provisions of the 

NDAA. The Navy states, and NMFS 

concurs, that these military readiness 

activities may incidentally take marine 

mammals present within the NWTRC by 

exposing them to sound from midfrequency or high-frequency active 

sonar (MFAS/HFAS) or underwater 

detonations. The Navy requested 

authorization to take individuals of 26 

species of marine mammals by Level B 

Harassment and 13 individuals of 9 

species by Level A Harassment. The 

Navy’s model, which did not factor in 

any potential benefits of mitigation 

measures, predicted that 13 individual 

marine mammals would be exposed to 

levels of sound or pressure that would 

result in injury; thus, NMFS is 

authorizing the take of 13 individuals 

per year by Level A Harassment. 

However, NMFS and the Navy have 

determined that injury can most likely 

be avoided through the implementation 

of the required mitigation measures. No 

mortality of marine mammals is 

authorized incidental to naval exercises 

in the NWTRC. 

Background of Request 

The proposed rule contains a 

description of the Navy’s mission, their 

responsibilities pursuant to Title 10 of 

the United States Code, and the specific 

purpose and need for the activities for 

which they requested incidental take 

authorization. The description 

contained in the proposed rule has not 

changed (74 FR 33829). 

Overview of the NWTRC 

The proposed rule contains a 

description of the NWTRC, including 

both the Inshore and Offshore areas. The 

description contained in the proposed 

rule has not changed (74 FR 33829). 

Description of Specified Activities 

The proposed rule contains a 

complete description of the Navy’s 

specified activities that are covered by 

these final regulations, and for which 

the associated incidental take of marine 

mammals will be authorized in the 


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related LOAs. The proposed rule 

describes the nature and number of antisubmarine warfare (ASW) exercises, 

anti-surface warfare (ASUW) exercises, 

and mine warfare training (MIW) 

exercises, involving both mid- and highfrequency active sonar (MFAS and 

HFAS), as well as explosive 

detonations. It also describes the sound 

sources and explosive types used (74 FR 

33828, pages 33829–33838). The 

narrative description of the action 

contained in the proposed rule has not 

changed, with one exception and one 

clarification indicated below. Tables 1, 

2, and 3 list the types of sonar sources 

and the estimated yearly use, 

summarize the characteristics of the 

exercise types, and list the explosive 

types used. 

As a result of their Section 7 

consultation with the U.S. Fish and 

Wildlife Service, the Navy agreed to 

make a small modification to their 

activity. They agreed to not conduct 

Explosive Ordnance Disposal (EOD) 

underwater demolition training at the 

Naval Magazine Indian Island site (1 

event per year was previously included 

in the proposed rule). Instead, that 

training event will be conducted at the 

Hood Canal training site, so there will 

now be up to a total of two events per 

year in Hood Canal (instead of 1). The 

Navy further agreed that EOD will 

utilize charge sizes of 1.5 lbs or less at 

the Hood Canal site, instead of the 2.5 

lbs or less identified in the proposed 

rule. 

The Navy has carefully characterized 

the training activities planned for the 

NWTRC over the 5 years covered by 

these regulations; however, evolving 

real-world needs necessitate flexibility 

in annual activities. NMFS has 

attempted to bound this flexibility with 

new language in the regulatory text (see 

§ 218.110(c)) which allows for flexibility 

in planned activities, provided it does 

not affect the take estimates and 

anticipated impacts in a manner that 

changes our analysis. 

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Description of Marine Mammals in the 

Area of the Specified Activities 

Twenty-seven marine mammal 

species have confirmed or possible 

occurrence within the NWTRC, 

including six species of baleen whales 

(mysticetes), 16 species of toothed 

whales (odontocetes), five species of 

seals and sea lions (pinnipeds), and the 

sea otter (mustelids). Sea otters are 

under the jurisdiction of the Department 

of the Interior and are not considered 

further.) Table 4 summarizes their 

abundance, Endangered Species Act 

(ESA) status, population trends, and 

occurrence in the area. Seven of the 

species are ESA-listed and considered 

depleted under the MMPA: Blue whale; 

fin whale; humpback whale; sei whale; 

sperm whale; southern resident killer 

whale; and Steller sea lion. The 

proposed rule contains a discussion of 

one species that is not considered 

further in the analysis (the North Pacific 

right whale) because of its rarity in the 

NWTRC. The proposed rule also 

contains a discussion of bottlenose 

dolphins, but due to their 

extralimitality, the impact analysis 

concluded that this species will not be 

taken by the Navy’s activity. The 

proposed rule also contains a discussion 

of important areas, including southern 

resident killer whale and Steller sea lion 

critical habitat, and the gray whale 

migration corridor. The proposed rule 

also includes a discussion of marine 

mammal vocalizations. Last, the 

proposed rule includes a discussion of 

the methods used to estimate marine 

mammal density in the NWTRC. 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 33828, pages 

33838–33842). 


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BILLING CODE 3510–22–C 

Brief Background on Sound 

The proposed rule contains a section 

that provides a brief background on the 

principles of sound that are frequently 

referred to in this rulemaking (74 FR 

33828, pages 33845–33846). This 

section also includes a discussion of the 

functional hearing ranges of the 

different groups of marine mammals (by 

frequency) as well as a discussion of the 

two main sound metrics used in NMFS 

analysis (sound pressure level (SPL) and 

sound energy level (SEL)). The 

information contained in the proposed 

rule has not changed. 


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Potential Effects of Specified Activities 

on Marine Mammals 

With respect to the MMPA, NMFS’ 

effects assessment serves four primary 

purposes: (1) To prescribe the 

permissible methods of taking (i.e., 

Level B Harassment (behavioral 

harassment), Level A Harassment 

(injury), or mortality, including an 

identification of the number and types 

of take that could occur by Level A or 

B Harassment or mortality) and to 

prescribe other means of effecting the 

least practicable adverse impact on such 

species or stock and its habitat (i.e., 

mitigation); (2) to determine whether 

the specified activity will have a 

negligible impact on the affected species 

or stocks of marine mammals (based on 

the likelihood that the activity will 

adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival); (3) to 

determine whether the specified activity 

will have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (however, 

there are no subsistence communities 

that would be affected in the NWTRC, 

so this determination is inapplicable for 

this rulemaking); and (4) to prescribe 

requirements pertaining to monitoring 

and reporting. 

In the Potential Effects of Specified 

Activities on Marine Mammals section 

of the proposed rule NMFS included a 

qualitative discussion of the different 

ways that MFAS/HFAS and underwater 

explosive detonations may potentially 

affect marine mammals (some of which 

NMFS would not classify as 

harassment), as well as a discussion of 

the potential effects of vessel movement 

and collision (74 FR 33828, pages 

33846–33862). Marine mammals may 

experience direct physiological effects 

(such as threshold shift), acoustic 

masking, impaired communications, 

stress responses, and behavioral 

disturbance. This section also included 

a discussion of some of the suggested 

explanations for the association between 

the use of MFAS and marine mammal 

strandings (such as behaviorallymediated bubble growth) that have been 

observed a limited number of times in 

certain circumstances (the specific 

events are also described) (74 FR 33828, 

pages 33855–33860). The information 

contained in Potential Effects of 

Specified Activities on Marine 

Mammals section from the proposed 

rule has not changed. 

Later, in the Estimated Take of Marine 

Mammals Section, NMFS relates and 

quantifies the potential effects to marine 

mammals from MFAS/HFAS and 

underwater detonation of explosives 

discussed here to the MMPA definitions 

of Level A and Level B Harassment. 

Mitigation 

In order to issue an incidental take 

authorization (ITA) under Section 

101(a)(5)(A) of the MMPA, NMFS must 

set forth the ‘‘permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance.’’ The NDAA of 2004 

amended the MMPA as it relates to 

military-readiness activities and the ITA 

process such that ‘‘least practicable 

adverse impact’’ shall include 

consideration of personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

‘‘military readiness activity.’’ The 

training activities described in the 

NWTRC application are considered 

military readiness activities. 

NMFS reviewed the proposed 

NWTRC activities and the proposed 

NWTRC mitigation measures as 

described in the Navy’s LOA 

application to determine if they would 

result in the least practicable adverse 

effect on marine mammals, which 

includes a careful balancing of the likely 

benefit of any particular measure to the 

marine mammals with the likely effect 

of that measure on personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

‘‘military-readiness activity.’’ NMFS 

determined that further discussion was 

necessary regarding the use of MFAS/ 

HFAS for training in the Inshore Area 

that contains the southern resident 

killer whale critical habitat. 

To address the concerns above, the 

Navy clarified for NMFS that no training 

utilizing MFAS/HFAS had occurred in 

the Inshore Area of NWTRC for the last 

six years, that it is not being conducted 

now, and that there are no plans to 

utilize MFAS/HFAS for training in the 

Inshore Area (i.e., it is not part of the 

Navy’s specified activity). This 

information has been factored into 

NMFS’ effects analysis. The Navy has 

indicated that should their plans change 

in the future they will request a new 

LOA, which would likely require new 

regulations, for the additional activities 

within the NWTRC. The Navy further 

explained that no explosive training 

occurs in the Inshore Area other than 

the annual detonation of four, up to 1.5– 

2.5lb charges, which are not anticipated 

to result in the take of marine mammals. 

For these reasons, no take of killer 

whales is anticipated to result from the 

Navy’s activities in the Inshore area and 

none has been authorized. 

NMFS’ proposed rule includes a list 

of the Navy’s proposed mitigation 

measures (74 FR 33828, pages 33863– 

33867), which have been included in 

the regulatory text of this document. 

The following mitigation measure has 

been added since the publication of the 

proposed rule: 

‘‘Naval vessels will maneuver to keep 

at least 1,500 ft (500 yds) away from any 

observed whale in the vessel’s path and 

avoid approaching whales head-on. 

These requirements do not apply if a 

vessel’s safety is threatened, such as 

when change of course will create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in their ability to 

maneuver. Restricted maneuverability 

includes, but is not limited to, situations 

when vessels are engaged in dredging, 

submerged activities, launching and 

recovering aircraft or landing craft, 

minesweeping activities, replenishment 

while underway and towing activities 

that severely restrict a vessel’s ability to 

deviate course. Vessels will take 

reasonable steps to alert other vessels in 

the vicinity of the whale. Given rapid 

swimming speeds and maneuverability 

of many dolphin species, naval vessels 

would maintain normal course and 

speed on sighting dolphins unless some 

condition indicated a need for the vessel 

to maneuver.’’ 

Based on our evaluation of the 

proposed measures and other measures 

considered by NMFS or recommended 

by the public, NMFS has determined 

that the required mitigation measures 

(including the Adaptive Management 

(see Adaptive Management below) 

component) are adequate means of 

effecting the least practicable adverse 

impacts on marine mammal species or 

stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, while also considering 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. The proposed rule contains 

further support for this finding in the 

Mitigation Conclusion section (74 FR 

33828, pages 33867–33868). During the 

public comment period, a few 

mitigation measures not previously 

considered were recommended and 

NMFS’ analysis of these measures is 

included in the Response to Public 

Comment section. 

Research 

The Navy provides a significant 

amount of funding and support to 

marine research. In the past five years 


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the agency provided over $100 million 

($26 million in FY08 alone) to 

universities, research institutions, 

federal laboratories, private companies, 

and independent researchers around the 

world to study marine mammals. The 

U.S. Navy sponsors 70 percent of all 

U.S. research concerning the effects of 

human-generated sound on marine 

mammals and 50 percent of such 

research conducted worldwide. Major 

topics of Navy-supported research 

include the following: 

• Better understanding of marine 

species distribution and important 

habitat areas, 

• Developing methods to detect and 

monitor marine species before and 

during training, 

• Understanding the effects of sound 

on marine mammals, sea turtles, fish, 

and birds, and 

• Developing tools to model and 

estimate potential effects of sound. 

This research is directly applicable to 

Fleet training activities, particularly 

with respect to the investigations of the 

potential effects of underwater noise 

sources on marine mammals and other 

protected species. Proposed training 

activities employ active sonar and 

underwater explosives, which introduce 

sound into the marine environment. 

The Marine Life Sciences Division of 

the Office of Naval Research currently 

coordinates six programs that examine 

the marine environment and are 

devoted solely to studying the effects of 

noise and/or the implementation of 

technology tools that will assist the 

Navy in studying and tracking marine 

mammals. The six programs are as 

follows: 

• Environmental Consequences of 

Underwater Sound, 

• Non-Auditory Biological Effects of 

Sound on Marine Mammals, 

• Effects of Sound on the Marine 

Environment, 

• Sensors and Models for Marine 

Environmental Monitoring, 

• Effects of Sound on Hearing of 

Marine Animals, and 

• Passive Acoustic Detection, 

Classification, and Tracking of Marine 

Mammals. 

The Navy has also developed the 

technical reports referenced within this 

document, which include the Marine 

Resource Assessments and the Navy 

OPAREA Density Estimates (NODE) 

reports. Furthermore, research cruises 

by NMFS and by academic institutions 

have received funding from the U.S. 

Navy. 

The Navy has sponsored several 

workshops to evaluate the current state 

of knowledge and potential for future 

acoustic monitoring of marine 

mammals. The workshops brought 

together acoustic experts and marine 

biologists from the Navy and other 

research organizations to present data 

and information on current acoustic 

monitoring research efforts and to 

evaluate the potential for incorporating 

similar technology and methods on 

instrumented ranges. However, acoustic 

detection, identification, localization, 

and tracking of individual animals still 

requires a significant amount of research 

effort to be considered a reliable method 

for marine mammal monitoring. The 

Navy supports research efforts on 

acoustic monitoring and will continue 

to investigate the feasibility of passive 

acoustics as a potential mitigation and 

monitoring tool. 

Overall, the Navy will continue to 

fund ongoing marine mammal research, 

and is planning to coordinate long term 

monitoring/studies of marine mammals 

on various established ranges and 

operating areas. The Navy will continue 

to research and contribute to university/ 

external research to improve the state of 

the science regarding marine species 

biology and acoustic effects. These 

efforts include mitigation and 

monitoring programs; data sharing with 

NMFS and via the literature for research 

and development efforts; and future 

research as described previously. 

Long-Term Prospective Study 

Apart from this final rule, NMFS, 

with input and assistance from the Navy 

and several other agencies and entities, 

will perform a longitudinal 

observational study of marine mammal 

strandings to systematically observe for 

and record the types of any pathologies 

and diseases and investigate the 

relationship with potential causal 

factors (e.g., active sonar, seismic, 

weather). The study will not be a true 

‘‘cohort’’ study, because NMFS will be 

unable to quantify or estimate specific 

active sonar or other sound exposures 

for individual animals that strand. 

However, a cross-sectional or 

correlational analyses, a method of 

descriptive rather than analytical 

epidemiology, can be conducted to 

compare population characteristics, e.g., 

frequency of strandings and types of 

specific pathologies between general 

periods of various anthropogenic 

activities and non-activities within a 

prescribed geographic space. In the 

long-term study, NMFS will more fully 

and consistently collect and analyze 

data on the demographics of strandings 

in specific locations and consider 

anthropogenic activities and physical, 

chemical, and biological environmental 

parameters. This approach in 

conjunction with true cohort studies 

(tagging animals, measuring received 

sounds, and evaluating behavior or 

injuries) in the presence of activities 

and non-activities will provide critical 

information needed to further define the 

impacts of active sonar training 

exercises and other anthropogenic and 

non-anthropogenic stressors. In 

coordination with the Navy and other 

Federal and non-federal partners, the 

comparative study will be designed and 

conducted for specific sites during 

intervals of both the presence and 

absence of anthropogenic activities such 

as active sonar transmission or other 

sound exposures to evaluate 

demographics of morbidity and 

mortality, presence of lesions, and cause 

of death or stranding. Additional data 

that will be collected and analyzed in an 

effort to control potential confounding 

factors includes factors such as average 

sea temperature (or just season), 

meteorological or other environmental 

variables (e.g., seismic activity), fishing 

activities, etc. All efforts will be made 

to include appropriate controls (i.e., no 

active sonar or no seismic); 

environmental variables may, however, 

complicate the interpretation of 

‘‘control’’ measurements. The Navy and 

NMFS along with other partners are 

evaluating mechanisms for funding this 

study. 

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. 

Proposed Monitoring Plan for the 

NWTRC 

The Navy’s final Monitoring Plan for 

the NWTRC may be viewed at NMFS’ 

web site: http://www.nmfs.noaa.gov/pr/ 

permits/incidental.htm#applications. 

The Monitoring Plan for NWTRC has 

been designed as a collection of focused 

‘‘studies’’ (described fully in the NWTRC 

draft Monitoring Plan) to gather data 

that will allow the Navy to address the 

following questions: 

(a) Are marine mammals exposed to 

MFAS/HFAS, especially at levels 

associated with adverse effects (i.e., 

based on NMFS’ criteria for behavioral 


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harassment, TTS, or PTS)? If so, at what 

levels are they exposed? 

(b) If marine mammals are exposed to 

MFAS/HFAS in the NWTRC Range 

Complex, do they redistribute 

geographically as a result of continued 

exposure? If so, how long does the 

redistribution last? 

(c) If marine mammals are exposed to 

MFAS/HFAS, what are their behavioral 

responses to various levels? 

(d) What are the behavioral responses 

of marine mammals that are exposed to 

explosives at specific levels? 

(e) Is the Navy’s suite of mitigation 

measures for MFAS/HFAS (e.g., 

measures agreed to by the Navy through 

permitting) effective at preventing TTS, 

injury, and mortality of marine 

mammals? 

The extent of the training utilizing 

MFAS/HFAS in the NWTRC is 

comparatively less than several of the 

other training areas utilized by the Navy 

and not every one of these original five 

study questions will be addressed 

within NWTRC. Rather, data collected 

from NWTRC monitoring will be used to 

supplement a consolidated range 

complex marine mammal monitoring 

report incorporating data from the 

Navy’s Hawaii Range Complex, 

Marianas Island Range Complex, 

NWTRC, and Southern California Range 

Complex. Monitoring methods proposed 

for the NWTRC include a combination 

of research elements designed to 

support both Range Complex specific 

monitoring, and contribute information 

to a larger Navy-wide program. These 

research elements include: 

—Deployment of passive acoustic 

monitoring (PAM) devices, and, 

—Marine mammal tagging. 

The monitoring techniques selected 

for the NWTRC will be primarily 

focused on providing additional data for 

study questions (b), (c), and (d). 

The amount of each type of 

monitoring may vary from the summary 

table or Monitoring Plan based on 

annual discussions between NMFS and 

the Navy regarding previous monitoring 

results and effectiveness and in 

accordance with the Adaptive 

Management component of this rule, 

however, the overall effort over the 5- 

year period will remain approximately 

equal to that laid out in the monitoring 

plan. 

This monitoring plan has been 

designed to gather data on all species of 

marine mammals that are observed in 

the NWTRC; however, where 

appropriate, priority will be given to 

beaked whales, ESA-listed species, 

killer whales, and harbor porpoises. The 

Plan recognizes that deep-diving and 

cryptic species of marine mammals such 

as beaked whales have a low probability 

of detection (Barlow and Gisiner, 2006). 

Therefore, methods will be utilized to 

attempt to address this issue (e.g., 

passive acoustic monitoring). 

In addition to the Monitoring Plan for 

MIRC, the Navy has completed an 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan. 

The ICMP will be used both as: (1) A 

planning tool to focus Navy monitoring 

priorities (pursuant to ESA/MMPA 

requirements) across Navy Range 

Complexes and Exercises; and (2) an 

adaptive management tool, through the 

consolidation and analysis of the Navy’s 

monitoring and watchstander data, as 

well as new information from other 

Navy programs (e.g., R&D), and other 

appropriate newly published 

information. The Navy finalized a 2009 

ICMP Plan outlining the program on 

December 22, 2009, as required by the 

2009 LOAs for the Hawaii Range 

Complex (HRC), the Southern California 

Range (SOCAL), and Atlantic Fleet 

Active Sonar Training (AFAST). The 

ICMP may be viewed at: http:// 

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

incidental.htm. 

The ICMP is a developing program 

that will be in place for the length of 

this rule, and beyond, and NMFS and 

Navy will evaluate it annually to 

determine if it needs to be updated in 

order to keep pace with advances in 

science and technology and the 

collection of new data. In the 2009 

ICMP Plan, the Navy outlines three 

areas of targeted development for 2010, 

including: 

1. Identifying more specific 

monitoring sub-goals under the major 

goals that have been identified. 

2. Characterizing Navy Range 

Complexes and Study Areas within the 

context of the prioritization guidelines 

described in the ICMP. 

3. Continuing to Develop Data 

Management, Organization and Access 

Procedures. 

The Navy shall comply with the 2009 

ICMP Plan and continue to improve the 

program in consultation with NMFS. 

Changes and improvements to the 

program made during 2010 (as 

prescribed in the 2009 ICMP and 

otherwise deemed appropriate by the 

Navy and NMFS) will be described in 

an updated 2010 ICMP and submitted to 

NMFS by October 31, 2010 for review. 

An updated 2010 ICMP will be finalized 

by December 31, 2010. NMFS plans to 

solicit public comments on the updated 

ICMP in January, 2011 and the input 

will be used to inform the 2011 

Monitoring Workshop, the further 

development of the ICMP, and, 

potentially, monitoring modifications in 

the Navy’s 2012 monitoring plans. 

Monitoring Workshop 

The Navy, with guidance and support 

from NMFS, will convene a Monitoring 

Workshop, including marine mammal 

and acoustic experts as well as other 

interested parties, in 2011. The 

Monitoring Workshop participants will 

review the monitoring results from the 

previous monitoring pursuant to the 

NWTRC rule as well as monitoring 

results from other Navy rules and LOAs 

(e.g., SOCAL, HRC, etc.). 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. 

Adaptive Management 

Our understanding of the effects of 

MFAS/HFAS and explosives on marine 

mammals is still in its relative infancy, 

and yet the science in this field is 

evolving fairly quickly. These 

circumstances make the inclusion of an 

adaptive management component both 

valuable and necessary within the 

context of 5-year regulations for 

activities that have been associated with 

marine mammal mortality in certain 

circumstances and locations (though not 

in the NWTRC in the Navy’s over 60 

years of use of the area for testing and 

training). NMFS has included an 

adaptive management component in the 

regulations, which will allow NMFS to 

consider new data from different 

sources to determine (in coordination 

with the Navy) on an annual basis if 

mitigation or monitoring measures 

should be modified or added (or 

deleted) if new data suggests that such 

modifications are appropriate (or are not 

appropriate) for subsequent annual 

LOAs. 

The following are some of the 

possible sources of applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from 

NWTRC or other locations). 

• Findings of the Workshop that the 

Navy will convene in 2011 to analyze 

monitoring results to date, review 

current science, and recommend 


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modifications, as appropriate to the 

monitoring protocols to increase 

monitoring effectiveness. 

• Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP, which 

is discussed elsewhere in this 

document). 

• Results from specific stranding 

investigations (either from NWTRC or 

other locations, and involving 

coincident MFAS/HFAS or explosives 

training or not involving coincident 

use). 

• Results from the Long Term 

Prospective Study described above. 

• Results from general marine 

mammal and sound research (funded by 

the Navy (described above) or other 

agencies or entities). 

• Any information that 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 final rule are designed to 

provide NMFS with monitoring data 

from the previous year to allow NMFS 

to consider the data and issue annual 

LOAs. NMFS and the Navy will meet 

annually, prior to LOA issuance, to 

discuss the monitoring reports, Navy 

R&D developments, and current science 

and whether mitigation or monitoring 

modifications are appropriate. 

Reporting 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ Effective reporting is critical 

both to compliance as well as ensuring 

that the most value is obtained from the 

required monitoring. The proposed rule 

contains the reporting requirements for 

the Navy (74 FR 33828, pages 33871– 

33872), and these requirements remain 

unchanged with the following 

exception. The requirements as written 

in the proposed rule include specific 

due dates for each of the reports. NMFS 

and the Navy are coordinating a 

workload plan to determine the best 

times during every year to submit all of 

the reports that the Navy is responsible 

for under final rules for multiple Range 

Complexes and training exercises. 

Although the reports described will 

always be submitted every year at a time 

that allows for adequate analysis by 

NMFS prior to the issuance of the 

subsequent LOA, we want to allow 

flexibility to change those dates yearly. 

Therefore, the regulatory text below will 

not specify the specific dates that the 

reports are due, as the due dates will be 

specified in the annual LOA. 

Comments and Responses 

On July 13, 2009 (74 FR 33828), 

NMFS published a proposed rule in 

response to the Navy’s request to take 

marine mammals incidental to military 

readiness training in the NWTRC and 

requested comments, information and 

suggestions concerning the proposed 

rule. During the 30-day public comment 

period, NMFS received comments from 

the Marine Mammal Commission, the 

Washington Department of Fish and 

Wildlife, the Department of the Interior, 

the Natural Resources Defense Council 

(on behalf of the International Fund for 

Animal Welfare, the Center for 

Biological Diversity, Cetacean Society 

International, Friends of the San Juans, 

the Humane Society of the United 

States, the Ocean Futures Society, the 

Ocean Mammal Institute, People for 

Puget sound, Davis Bain, and JeanMichel Cousteau), the Orca Network, 

The Whale Museum, Turtle Island 

Restoration Network (TIRN) and Center 

for Biological Diversity (CBD), as well as 

over two hundred members of the 

public. The NRDC gained support for 

their comments from over 54,000 

members through form letters. 

Introduction 

As described elsewhere in this 

document, in order to issue an 

incidental take authorization (ITA) 

under Section 101(a)(5)(A) of the 

MMPA, NMFS must set forth the 

‘‘permissible methods of taking pursuant 

to such activity, and other means of 

effecting the least practicable adverse 

impact on such species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance.’’ NMFS’ decisions 

regarding whether or not to require any 

particular mitigation measure must 

include a careful balancing of the likely 

benefit of any particular measure to 

marine mammals and the likely 

effectiveness of the measure, with the 

practicability of the measure, which (for 

military readiness activities) includes 

consideration of the likely effect of that 

measure on personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

‘‘military-readiness activity.’’ 

Because some of the comments 

received reflect an incomplete or 

inaccurate understanding of the nature 

and scope of the Navy’s MFAS training 

exercises, we will summarize and 

clarify some issues up front that will 

support multiple responses below. For 

example, one commenter begins by 

stating that the Navy contemplates 

extensive sonar training. This is not the 

case. In the NWTRC, the annual amount 

of planned operation for the most 

powerful surface hull-mounted MFAS 

(which is responsible for the vast 

majority of the takes) is 108 hours 

annually. Comparatively, the annual 

sonar use in other areas that the Navy 

uses for training is far more extensive: 

1670 hrs/yr in Hawaii, 2400 in the 

Mariana Islands, 2470 in SOCAL, and 

5110 off the Atlantic Coast. Another 

significant difference is the fact that all 

of the sonar exercises in the NWTRC are 

approximately 1.5-hr exercises that 

utilize a single surface hull-mounted 

sonar, versus the major exercises within 

other training areas, which may last for 

several weeks, and use multiple 

(sometimes 10 or more) surface hullmounted sonars simultaneously. 

Another point that is germane to 

several of the comments raised is the 

typical way that the MFAS exercises 

utilizing surface hull-mounted sonar 

(TRACKEXs) are conducted, and the 

areas in which they are typically 

conducted. Approximately 10 percent of 

the surface hull-mounted MFAS is 

conducted in conjunction with the use 

of the Portable Undersea Training Range 

(PUTR), while the remaining 90 percent 

is conducted primarily in-transit as the 

vessel is moving from one point to 

another, most often south through the 

NWTRC towards the Southern 

California Range Complex. The majority 

of the in-transit MFAS use in the 

NWTRC has taken place and is 

projected to continue to take place at a 

distance of 50 nm or greater from shore, 

with infrequent training events 

occurring between 12 and 50 nm from 

shore. In-transit MFAS training is not 

anticipated to occur inside of 12 nm. 

The PUTR has been developed to 

support ASW training in areas where 

the ocean depth is between 300 ft and 

12,000 ft and at least 3 nm from land. 

The PUTR will not be utilized within 

the Olympic Coast National Marine 

Sanctuary (OCNMS). 

In addition, the Navy provided 

funding to NMFS’s Southwest Fisheries 

Science Center (SWFSC) in the fall of 


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2009, to update their newest spatial 

predictive habitat model with composite 

data from 1991 through 2008, the date 

of the last U.S. West Coast marine 

mammal survey. In the spring of 2010, 

SWFSC completed this analysis which 

provides finer scale (25-km) density 

resolution for 12 of the most commonly 

sighted species within the U.S. West 

Coast EEZ including NWTRC. Results of 

this effort will be published in a NMFS 

Technical Report. 

From 2009 through 2010, marine 

mammal satellite tracking tag studies 

funded by the Navy in Southern 

California show that static plots of 

marine mammal occurrence do not 

provide the entire story on marine 

mammal life history. Tagged baleen 

whales and dolphins within Southern 

California quite frequently move 

significant distances. As part of the 

Navy’s NWTRC Monitoring Plan, 

presence\absence data will be collected 

via offshore long-term passive acoustic 

monitoring devices from Scripps 

Institute of Oceanography, as well as 

marine mammal satellite tagging. 

In summary, the Navy, as part of its 

NWTRC Monitoring Plan will continue 

to contribute valuable scientific data in 

collaborating with regional and national 

scientific academic partners as to 

marine mammal distributions within 

the NWTRC. 

Last, for the second year in a row, the 

Navy is convening a workshop in 

October to which marine mammal 

experts have been invited. The Navy 

will review its monitoring results from 

the previous year and solicit 

recommendations on future plans. More 

formally, the Navy has been required by 

multiple LOAs to hold a Monitoring 

Workshop in 2011 that will include 

both marine mammal experts and nongovernmental organizations. Here, 

again, the Navy will provide a review of 

previous monitoring results from 

multiple range complexes and solicit 

input. The goal of the 2011 workshop, 

as laid out in the Integrated 

Comprehensive Monitoring Program 

Plan, is to comprehensively consider the 

resources available in different ranges, 

the data needs, and the species and 

conditions present in different ranges in 

order to identify the most appropriate 

monitoring across range complexes that 

will provide the most efficient 

methodology and best results. 

Additional Mitigation 

Recommendations 

Comment 1: NRDC and other 

commenters recommended the 

establishment of a panel of marine 

mammal and oceanographic experts 

with regional expertise on marine 

mammal distribution, abundance, 

habitat, or population structure and 

ecology, or habitat suitability modeling 

to identify high-value habitat by 

reviewing and analyzing the published 

literature, survey data, and predictive 

models. The use of sonar in such habitat 

would be prohibited or subject to 

additional operational measures to 

ensure the greatest protection of animals 

in the area. 

Response: In January 2009, the 

Administrator of the National Oceanic 

and Atmospheric Administration 

committed, in a letter to the Council on 

Environmental Quality, to convene a 

panel to identify important marine 

mammal habitat, as described above. 

This process has begun. Once the results 

of that effort are available (anticipated 

in 2011), NMFS will use them to inform 

decisions related to geographic 

mitigation requirements, both in 

upcoming rules, as well as in rules that 

have already been issued, through the 

adaptive management provision 

(described in the Adaptive Management 

section above). 

Comment 2: NRDC and several other 

commenters recommended that NMFS 

establish a protection area for northwest 

harbor porpoise populations landward 

of the 100-m isobath. Further, they 

recommended that NMFS establish an 

adjacent buffer zone to ensure that 

exposure levels do not exceed 120dB 

within the 100-m isobath. NMFS should 

ask the Navy to prepare a nominal 

propogation analysis for the coast to 

determine what stand-off distances are 

necessary to reduce exposures below the 

120dB threshold. The NRDC further 

notes that the vast majority of the takes 

in the NWTRC are harbor porpoises. 

Response: The Navy conducts about 

99 percent of their MFAS activities in 

the W–237 area, which extends out 

approximately 200 nm from the coast of 

the northern half of Washington state 

(see page 2–5 of the Navy’s NWTRC 

FEIS). Within the W–237, the 100-m 

isobath extends out from the coast 

approximately 40 nm at some points, 

and up to 80 nm in the northern portion 

near the Strait of Juan de Fuca. As noted 

above in the introduction to this section, 

the Navy has conducted, and plans to 

conduct, the majority of their in-transit 

MFAS activities beyond 50 nm from 

shore, and has operated MFAS between 

12 and 50 nm from shore infrequently 

in the past. As mentioned above, the 

PUTR (with which approximately 10 

percent of the MFAS activities are 

associated) is designed to be used in 

depths of 300–1200 ft, so it is unlikely 

that it will be used within the 100-m 

isobath. Based on this general 

operational plan, there is only a 

relatively small area within the 100-m 

isobath in which the Navy would 

potentially operate MFAS, and this is 

only a very small percentage of the 

entire W–237 area that is available and 

in which the Navy typically operates 

MFAS. In order to adequately train, 

however, the Navy needs to train within 

a wide range of bathymetric conditions, 

environmental conditions, and 

operational conditions (i.e., proximity to 

certain resources such as airfields), so it 

is unlikely that they would completely 

avoid the 100-m isobath. 

In short, based on their general 

operating plans, the overall size of the 

area available for training and the fact 

that they only plan to operate 108 hours 

of surface hull-mounted sonar total 

annually (but need to operate in a 

variety of conditions, including depths 

other than within the 100-m isobath), it 

is likely that only a relatively small 

subset of the 108 hours of MFAS will be 

operated within the 100-m isobath, but 

these hours are needed for operational 

flexibility. 

Regarding the establishment of an 

additional buffer to ensure that the area 

within the 100-m isobath is not 

ensonified above 120 dB, the Navy has 

done a propagation analysis and the 

distance at which sound from a surface 

hull-mounted sonar attenuates to 120 

dB in the NWTRC is approximately 70 

nm. A buffer of this nature would 

extend out approximately 110–150 nm 

from shore, rendering about 60–70 

percent of the available MFAS training 

area inaccessible and reducing access to 

the vast majority of the bathymetric 

relief that is necessary for effective 

training. (NMFS notes that 120 dB is the 

minimum received level at which we 

have estimated that harbor porpoises 

may be taken by behavioral (Level B) 

harassment, and avoiding exposure 

above this level is akin to avoiding take 

completely, which would negate the 

need for an incidental take 

authorization.) 

Last, NRDC notes that the vast 

majority of the total takes in the NWTRC 

are of harbor porpoises. This is correct; 

of the approximately 130,000 total 

annual authorized takes in the NWTRC, 

119,000 are of harbor porpoises. This is 

because harbor porpoises are considered 

more sensitive to sound than many 

other marine mammals and any 

exposure above a received level of 120 

dB is considered a take. However, of the 

total harbor porpoise takes, 

approximately 85 percent are 

anticipated to occur at a received level 

between 120 and 140 dB, from which 

we would expect a comparatively less 

severe response. Additionally, only 

approximately 0.5 percent of these takes 


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would result from exposures above a 

received level of 160 dB, which is still 

far below received levels associated 

with injurious takes. In short, there are 

more takes of harbor porpoises because 

they are more sensitive to sound. 

However, because we use a step 

function to define their predicted 

response, instead of a dose curve as we 

do for other marine mammal species, a 

large portion of the takes will likely 

consist of the minimum response that 

we would still consider a take. 

Comment 3: NRDC and several other 

commenters recommended that NMFS 

provide additional protection for marine 

mammals from the use of sonar within 

the OCNMS, by specifically prohibiting 

sonar usage in the OCNMS, or at a 

minimum, limiting the exercises taking 

place with the OCNMS by requiring 

final approval from the Pacific Fleet 

command, or using other means to 

minimize sonar use. In support of this 

recommendation, NRDC notes the 

seasonal use of the area by migrating 

gray whales, summer resident gray 

whales that use the area for feeding, and 

Southern Resident killer whales (SRKW) 

that use the area for part of the year. 

Response: The OCNMS is contained 

within the NWTRC and the delineation 

of the edge of the OCNMS essentially 

follows the 100-m isobath. The Navy 

will not deploy the PUTR within the 

OCNMS. Otherwise, please see NMFS’ 

response to comment 2, above. Of 

additional note, because of the seasonal 

nature of the use of the area by some of 

the species that the commenters 

mention, those species’ potential 

exposure to MFAS is likely an even 

smaller proportion of the total hours, as 

some of the hours of operation will 

occur in months that they are not 

present. 

Although the comment addressed 

here mentions only sonar training, it is 

worth noting that the Navy does not do 

any live bombing in the OCNMS waters 

(i.e., BOMBEX and SINKEXs are 

conducted outside the limits of the 

OCNMS). Additionally, in their DEIS, 

the Navy indicated their intent to create 

a small underwater minefield training 

range. Although they did not specify it 

in the DEIS, they have since clarified 

the fact that this small range will not be 

in OCNMS waters. 

Comment 4: NRDC and several other 

commenters recommended that NMFS 

identify the Greater Puget Sound as a 

protection area (except for activities 

occurring as part of the Keyport EIS) as 

a condition of the proposed rule. They 

further recommended that if Puget 

Sound is not designated as a protected 

area, NMFS should make the following 

clarifications in its final rule: 

Æ That any use of MFA sonar for 

training or maintenance in the Greater 

Puget Sound would first require the 

Navy to obtain an incidental take permit 

given the potential for serious injury or 

mortality to marine mammals in the 

area; 

Æ That the Navy has agreed to 

conduct neither sonar training nor 

maintenance activities in the Greater 

Puget Sound without MMPA 

authorization; 

Æ That the Navy has internal checks, 

in addition to the MMPA requirement, 

on non-RDT&E sonar use in the Greater 

Puget Sound (e.g., requiring approval 

from Fleet Command). 

Response: The Navy’s action does not 

include the use of MFAS for training or 

in-transit maintenance in the Greater 

Puget Sound area, so it is not necessary 

to designate the Greater Puget Sound 

area as a Protection Area. The Navy 

does not currently plan to use MFAS for 

training or in-transit maintenance in the 

Greater Puget Sound area, and they have 

committed to obtaining a separate LOA 

(which would require a new 

rulemaking) if they plan to conduct 

those activities in the Greater Puget 

Sound area. 

Additionally, the Navy has in place, 

and has since June 2003, an internal 

requirement wherein they must obtain 

permission from the Commander Pacific 

Fleet (CPF) before they may operate 

MFAS for training, maintenance or 

testing in Puget Sound. Since 2003, it 

has been CPF policy to not approve 

training, maintenance or testing use of 

sonar systems for vessels underway 

within Puget Sound. Pierside 

maintenance/testing of sonar systems 

within Puget Sound still requires CPF 

approval, and may be approved by CPF 

if it is not practical or feasible to 

conduct alternate maintenance/testing 

outside of Puget Sound. Since this 

requirement was put into place, every 

request to use MFAS underway for 

training, maintenance, or testing in 

Puget Sound has been denied, except on 

the Nanoose Range. 

Separately, pier-side maintenance was 

not included as part of the proposed 

action, either for the MMPA 

authorization, or in the Navy’s EIS. 

Pierside maintenance and testing of 

sonars rarely involves emission of 

sound. Most often the source is out of 

the water and might emit only one or a 

few low amplitude pings. The Navy is 

currently compiling detailed 

information on all pierside testing 

activity nationwide and that 

information will be included in the next 

phase of environmental assessments in 

2014. At this time the Navy does not 

anticipate that there will be any 

additional risk to marine mammals from 

pierside testing due to the infrequency 

of sound emissions and the relative 

rarity of marine mammals in the vicinity 

of these sites. 

Comment 5: NRDC and several other 

commenters recommended that NMFS 

establish a seasonal protection area in 

certain canyons and banks on the 

NWTRC that represent important 

foraging habitat, particularly for 

humpback whales. NRDC recommends 

seasonal protection areas for the 

‘‘Prairie,’’ Juan de Fuca Canyon, 

Swiftsure Bank, Barkley and Nitinat 

Canyons, and Heceta Bank, during the 

main humpback whale feeding season 

from June to October. 

Response: With respect to some of 

these specific areas, the Swiftsure Bank 

is well within 50 nm of shore, and as 

described above, it is unlikely that the 

Navy will utilize in-transit MFAS there. 

Additionally, Swiftsure Bank is within 

the 100-m isobaths, which is not where 

the PUTR is designed to be used, and 

partially within the OCNMS, where the 

PUTR will not be used. Heceta Bank is 

located off the shore of Oregon, and 99 

percent of the Navy’s MFAS use in the 

NWTRC is conducted within the W–237 

area, which is located off the coast of 

Washington, so MFAS use is not likely 

to occur there. Additionally, the Prairie 

is an area that is less than 100 m deep, 

so the PUTR is not likely to be deployed 

there. 

The Navy plans to conduct 

approximately 108 hours of surface 

hull-mounted MFAS use in the NWTRC 

annually. Allowing for the fact that it is 

not all planned in the months of JuneOctober, and not all planned in any one 

of the specific areas noted in the 

comment, only a small number of hours 

of sonar is likely to occur in any of the 

specific areas recommended for 

protection by the commentors. 

Generally speaking, because of the 

small number of hours that the Navy 

may be conducting MFAS sonar 

training, the short duration of the 

exercises, the use of only one single 

hull-mounted sonar vessel, and the huge 

area over which training is conducted, 

the impracticability of designating 

additional protective areas identified by 

the commentors outweighs the likely 

benefits. It requires a considerable 

amount of planning, education, and 

subsequent attention by the Navy to 

establish and implement protective 

areas. Furthermore, the Navy only 

anticipates taking a small number of the 

species for which the protected areas 

would be established, by Level B 

Harassment (15 humpback whales, 14 

killer whales, and 4 gray whales), with 

the exception of harbor porpoises 


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(discussed in comment response 2). 

Considering the density of marine 

mammals and the likelihood of 

encountering them in any location 

during the course of a 1.5 hour period, 

we cannot predict with sufficient 

certainty that avoiding these areas 

would necessarily result in a decrease of 

takes. 

In addition, as mentioned previously, 

the Navy’s NWTRC Monitoring Plan 

entails deploying long-term passive 

acoustic monitoring devices at two 

locations within the offshore NWTRC. 

One such Navy funded device has been 

in operation near Quinault Canyon 

since 2004. This will be supplemented 

with a second device which is currently 

forecast for deployment near the Juan de 

Fuca Canyon. Information from both 

passive acoustic devices will provide 

valuable scientific data on marine 

mammal vocalizations and 

anthropogenic sounds including 

commercial ship noise or transitory 

MFAS at these two locations. This 

analytical approach continues to be 

refined based on lessons learned from 

similar deployments and data review in 

Hawaii and Southern California. 

Summary data from these devices will 

be provided to NMFS and the public via 

annual Navy monitoring reports. 

Comment 6: The NRDC and several 

other commenters recommended that 

NMFS require avoidance of, or a 

reduction of training activity within, 

areas between 500 and 2,000 meters 

depth with unusual bottom topography 

(such as canyons), to provide additional 

protection to beaked whales. 

Response: The NRDC notes in their 

comments that there are no particular 

areas of known concentration for beaked 

whales in the NWTRC, but that most 

species appear to have a preference for 

areas of the lower continental slope. 

They may also be found in a wider 

range of conditions, from slopes to 

abyssal plain. First, NMFS may consider 

requiring a geographic limitation on an 

activity in a specific area of known 

concentration of particular species of 

animals, if the practicability analysis 

(which includes consideration of the 

nature of the activity, the likely benefits 

to the species, and the practicability of 

the measure) suggests that it will 

accomplish the least practicable adverse 

impact. However, we are less likely to 

recommend the avoidance of all of a 

type of area that an animal has a general 

preference for, especially in a case like 

this where the activity is comparatively 

limited, because it is unclear whether 

avoidance of all of the areas of this type 

will result in the reduction of impacts 

to the animals. 

More specifically, in the case of 

beaked whales, we are only authorizing 

the Level B take of 38 animals, so there 

is only a very limited potential benefit 

to making a huge tract of area 

unavailable for training. Further, as 

noted above, beaked whales may prefer 

a wider variety of areas than previously 

thought. In summary, only a portion of 

the already few hours of planned MFAS 

use will occur in this habitat, and it is 

impracticable to completely prohibit the 

Navy’s access to this particular depth 

when they need to train in a wide 

variety of circumstances. 

Comment 7: The MMC recommended 

that the rule require suspension of the 

Navy’s activities if a marine mammal is 

seriously injured or killed and the 

injury or death could be associated with 

those activities. The injury or death 

should be investigated to determine the 

cause, assess the full impact of the 

activity or activities and determine how 

activities should be modified to avoid 

future injuries or deaths. 

Response: NMFS’ regulations include 

a provision for ‘‘General notification of 

injured or dead marine mammals,’’ 

under which Navy personnel shall 

ensure that NMFS is notified 

immediately (or as soon as clearance 

procedures allow) if an injured, 

stranded, or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing MFAS, HFAS, or underwater 

explosive detonations. The provision 

further requires the Navy to provide 

NMFS with species or description of the 

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

(including carcass condition if the 

animal is dead), location, time of first 

discovery, observed behaviors (if alive), 

and photo or video of the animals (if 

available). 

It can take months to years to 

complete the necessary tests and 

analyses required to determine, with a 

reasonable amount of certainty, the 

cause of a marine mammal death—and 

sometimes it is not possible to 

determine it. All but one of the small 

number of strandings that have occurred 

around the world associated with MFAS 

exercises have occurred concurrent to 

exercises that would be considered 

‘‘major’’, which typically involve 

multiple surface vessels and last for a 

much longer duration than the nonmajor exercises that occur in the 

NWTRC (as described above in the 

Introduction to this section). Hence, 

NMFS (with input from the Navy) 

determined that it was beneficial and 

practicable to preemptively outline an 

explicit plan (that includes a shutdown 

requirement in certain circumstances) 

for how to deal with a stranding that 

occurs during a major exercise, and 

therefore Stranding Response Plans 

were developed for all of the areas in 

which major exercises are conducted. 

Alternatively, for non-major exercises 

(including all of the exercises in the 

NWTRC), the general notification 

provisions apply, which means that the 

Navy would contact NMFS as soon as 

clearance procedures allow and we 

would determine how best to proceed at 

that time. 

Because so few strandings have been 

definitively associated with MFAS 

training in the 60+ years that the U.S. 

and other countries that share 

information have been conducting 

MFAS training; the exercises conducted 

in the NWTRC are of short duration and 

involve only one surface hull-mounted 

sonar; and investigations take a long 

time and are not always conclusive, it 

is not reasonable or practicable to 

require the Navy to shut down every 

time an injured or dead animal is found 

in the vicinity pending the results of an 

investigation that could take years to 

conduct. 

Comment 8: One commenter 

recommended that MFAS not be 

utilized off the coast of California from 

June through October to protect seasonal 

migration of blue and humpback 

whales. 

Response: The Navy plans to conduct 

99 percent of their MFAS operation 

(which consists of 108 hours of surface 

hull-mounted sonar) within the W–237 

area, which is located off the coast of 

Washington. This means that MFAS 

would be operated for only a few hours 

annually off the coast of California, at 

most. 

Comment 9: One commenter 

recommended that the Navy avoid 

operating MFAS within 300 nm of the 

OCNMS. 

Response: A three hundred mile 

buffer around the OCNMS would 

entirely encompass the NWTRC, thereby 

preventing the Navy from conducting 

the proposed activity, which is not a 

practicable option under the MMPA. 

Comment 10: One commenter noted 

that there is no reference to the Navy 

going to the aid of stranded animals. 

Response: NMFS, as the agency with 

authority over marine mammal health 

and stranding, does not want Navy 

personnel or other untrained and 

unpermitted individuals going to the aid 

of stranded animals. Rather, as 

described in the response to comment 7, 

above, the Navy is required to notify 

NMFS if they encounter an injured, 

stranded, or dead animal, and NMFS 

will respond as appropriate. 

Comment 11: One commenter 

recommended that we correct the 


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statement ‘‘Southern resident killer 

whales spend the majority of their time 

in the Inshore Area from May/June 

through October/November, although 

they do make multi-day trips to the 

outer coast,’’ to say ‘‘mid-June through 

September.’’ The commenter further 

recommended that the Navy’s sonar 

activity be limited to the summer period 

and when SRKWs have been located 

well within the Inshore Area (e.g. 

greater than ∼30 nautical miles east of 

Cape Flattery for sonar activities lasting 

less than 6 hours) by the listening 

network (Salish Sea hydrophone 

network—http://orcasound.net) and/or 

sighting networks (The Whale Museum, 

whale watch operators, Orca Network, 

Center for Whale Research, etc.). 

Response: The months originally 

indicated are taken from NMFS’ 

Southern Resident Killer Whale 

Recovery Plan. The commenter did not 

offer a citation to support the alternate 

months suggested and, therefore, NMFS 

declines to make the suggested change. 

Killer whales are rarely seen outside of 

Puget Sound, and the Navy’s model 

predicts that only 14 whales will be 

taken by Level B Harassment annually. 

Further, killer whales have a 

comparatively high probability of 

detection (Barlow, 2003a; Forney et al., 

1995) and there is little doubt that they 

will be detected and MFAS shutdown 

before they can be exposed to received 

levels that might be associated with 

more severe behavioral responses or 

hearing sensitivity loss. 

Considering the low likelihood of 

impacts to killer whales from sonar in 

the absence of the additional limitations 

recommended by the commenter, 

combined with the resources and effort 

that would be necessary to maintain a 

running knowledge of the location of 

the killer whale pods, NMFS is not 

requiring that the Navy implement the 

recommended measure. 

Comment 12: One commenter 

believes that the Navy should restrict its 

training operations to instrumented 

ranges with acoustic systems that allow 

real-time monitoring and mitigation for 

marine mammals, such as the one it 

operates off southern California. 

Acoustic ranges apparently work well 

for detecting baleen whales and may be 

the only effective way to detect and 

monitor beaked whales, but may not be 

as effective for species (e.g., some 

porpoises) that vocalize at very high 

frequencies. The Navy should consider 

developing such a range in the Pacific 

Northwest. 

Response: The Navy has several 

instrumented ranges (Bahamas, 

Southern California, and Hawaii) and 

plans to install another off of 

Jacksonville, Florida. These ranges are 

used regularly in Navy marine mammal 

research and monitoring, and have 

greatly contributed to marine mammal 

distribution and abundance data in 

these areas, as well as our 

understanding of behavioral responses 

to MFAS. However, they are not used 

for real-time implementation of 

mitigation (see Navy DEIS at 5–29). 

Because of the need to train in a 

variety of operational situations (i.e., 

proximity to different Navy resources) 

and bathymetric/oceanographic 

conditions, as well as the need to 

conduct a large volume of training, the 

Navy cannot limit its training to areas 

with instrumented ranges. Additionally, 

the conservation value of such a 

limitation is unclear, as it would focus 

a greater volume of MFAS use in areas 

that also have high densities of marine 

mammals and in some cases near areas 

considered particularly important to 

marine mammals. 

Last, MFAS training occurs in 

relatively low amounts annually in the 

NWTRC and an instrumented range is 

not currently needed or being 

considered. 

Comment 13: One commenter 

questioned why dolphins or porpoises 

that ‘‘deliberately’’ ride Navy ships’ bow 

waves are not entitled to any 

protections. 

Response: The mitigation measure 

indicates that ‘‘[i]f, after conducting an 

initial maneuver to avoid close quarters 

with dolphins or porpoises, the OOD 

concludes that dolphins or porpoises 

are deliberately closing to ride the 

vessel’s bow wave, no further mitigation 

actions are necessary while the dolphins 

or porpoises continue to exhibit bow 

wave riding behavior.’’ Navy personnel 

first try and avoid the bow-riding 

dolphins, and if that does not work, 

they may continue without further 

mitigation. Bow-riding is a common 

occurrence with certain species, and 

shutting down MFAS as frequently as 

these animals are encountered would 

seriously impact the Navy’s mission 

effectiveness. The proposed rule 

described the potential impacts from 

this difference in mitigation (74 FR 

33868), which is primarily that a 

temporary loss of hearing sensitivity is 

more likely to be incurred by these 

species than others, but still of a 

relatively brief and mild nature, and 

NMFS was still able to make its 

negligible impact determination for 

these species. 

Comment 14: One commenter 

recommended that NOAA ensure that as 

noise levels are ramped up, cetaceans 

are not herded by the noise into 

progressively shallower and shallower 

water where they may strand as beaked 

whales did in the Bahamas (2000) 

during Navy exercises. 

Response: Although the Navy does 

not utilize a ramp-up strategy for their 

sound sources, there is no scenario in 

the Navy’s action under which animals 

would be herded into shallower water. 

The Navy is not conducting any MFAS 

training within the Greater Puget Sound 

area and MFAS use of the Washington 

Coast is primarily farther than 50 nm 

from shore, with infrequent occurrences 

between 12 and 50 nm from shore. 

Mitigation Effectiveness 

Comment 15: The MMC and several 

other commenters recommended that 

NMFS require the Navy to develop and 

implement a plan to validate the 

effectiveness of monitoring and 

mitigation measures before beginning, 

or in conjunction with, the proposed 

military readiness training operations. 

The MMC further notes that NMFS 

appears to have concurred with the 

Navy that the Navy’s mitigation efforts 

will reduce Level A takes to 0 and that 

the proposed mitigation measures are 

sufficient. 

Response: First, in response to the 

second sentence above, the Navy has 

estimated, through their modeling 

efforts, the numbers of animals that will 

be exposed to levels of sound or 

pressure that would be thought to result 

in Level A take (either through a 

permanent loss of hearing sensitivity 

from noise exposure, or tissue damage 

from exposure to explosives) in the 

absence of any mitigation. Those are the 

numbers of Level A takes that they have 

requested and NMFS is authorizing. 

Hence, although NMFS believes that the 

Navy’s mitigation will most likely be 

effective at avoiding exposure to these 

levels (which, in the case of MFAS 

occur within 10m of the vessel), and 

that many animals will avoid noises at 

the levels necessary to incur a 

permanent hearing sensitivity loss, we 

are still authorizing the Level A take of 

13 individuals of 9 species. 

Marine mammal researchers have 

developed detection probabilities that 

estimate the likelihood of detecting 

individuals of different species of 

marine mammals from different 

platforms, in different environmental 

conditions, and at different distances. 

As part of their Monitoring Plans in 

other areas where training occurs, the 

Navy has developed studies to 

determine how well their watchstanders 

detect marine mammals as compared to 

experienced marine mammal observers. 

Four of these comparison studies have 

been conducted by the Navy this year 

pursuant to the requirements of their 


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LOAs for HRC, SOCAL, and AFAST and 

when the results of these studies have 

been fully analyzed, they will be 

included in NMFS analysis of the 

likelihood of Level A takes occurring. In 

the meantime, we have conservatively 

assumed that the mitigation is not 

effective and that animals will be taken 

by Level A Harassment as predicted by 

the model, which assumes that animals 

do not move away from a strong sound 

source and that exposure at a high level 

will never be avoided through detection 

and implementation of a shutdown (or 

non-startup). 

If there are other studies that the 

MMC has in mind to quantify mitigation 

and monitoring effectiveness, we would 

welcome specific recommendations. 

Additionally, the Navy is required to 

hold a Monitoring Workshop in 2011 (at 

which MMC representatives will 

hopefully be present) and the 

discussions at that workshop are 

intended to inform potential 

modifications to the Navy’s existing 

monitoring plans, if appropriate, as they 

pursue a more comprehensive plan that 

best utilizes the resources in each area 

to gather the data that is most needed 

and can most effectively be gathered in 

a particular geographic area. 

Comment 16: Several commenters 

suggested that the Navy’s primary 

method of reducing harm to marine 

mammals, powering down or securing 

sonar, is not effective. They indicated 

that it is hard to sight whales on fastmoving ships, especially beaked whales, 

and especially in certain conditions). 

They further suggested that time/area 

closures are a more effective form of 

mitigation. 

Response: While few mitigation 

measures are 100 percent effective, the 

Navy’s powerdown and shutdown 

strategy is likely effective at avoiding 

exposure to injurious levels of sound, 

and does succeed in reducing exposures 

of marine mammals (to varying degrees, 

depending on the species and 

environmental conditions) to higher 

levels of sound that might be associated 

with more severe behavioral responses. 

The Mitigation Conclusion section of 

the proposed rule describes our least 

practicable adverse impact analysis (74 

FR 33867). 

NMFS agrees that geographic 

mitigation can be an effective tool for 

reducing impacts to marine mammals in 

certain circumstances. However, we 

have evaluated the potential areas 

recommended for marine mammal 

protection in the NWTRC and the 

impracticability of the recommended 

measures outweighed the likely benefit 

to the species. 

Comment 17: To protect the Southern 

Residents, NOAA should insist that the 

Navy not operate SONARs or set off 

explosions for any purposes short of 

war, unless they know that orcas are not 

within a distance where they would be 

killed, injured or caused to panic. 

Response: The Navy is currently 

required to implement MFAS and 

explosive powerdown and shutdown 

requirements, which, considering the 

high probability of detection of killer 

whales, should ensure that killer whales 

do not approach within a distance 

where they would be injured or killed. 

It is hard to know exactly what might 

cause a killer whale to panic, but the 

circumstances in which this behavior 

has previously been observed in killer 

whales in response to MFAS in this area 

are no longer likely to occur in the 

NWTRC, as no MFAS is operated within 

the Greater Puget Sound area and sonar 

is predominantly operated over 50 nm 

off-shore. 

Comment 18: NOAA should initiate 

studies independent of the Navy in 

order to determine if mitigation 

measures in other range complexes are 

working. If the measures are not 

working no future permits should be 

allowed until such time as alternative 

mitigation measures are proposed and 

tested. NOAA should also prepare to 

conduct studies, independent of Navy 

influence, in all Navy range complexes 

prior to issuing a permit for NWTRC. 

Response: NOAA has a duty to use 

the best available data to conduct our 

analyses and make our determinations. 

To assess the likely success of 

monitoring and mitigation measures, we 

consider available literature and 

examples of previous mitigation 

implementation and monitoring reports. 

We also require that the Navy submit 

multiple monitoring and reporting 

results annually for each range complex 

and that the Navy compile this 

information in a comprehensive manner 

for an annual adaptive management 

meeting. This meeting is used in 

coordination with the adaptive 

management components of the Navy 

rules, which provide a mechanism for 

mitigation or monitoring measures to be 

modified, as appropriate, based on new 

information. 

The MMPA does not require that 

NOAA initiate independent studies to 

determine if different mitigation 

measures are effective, nor do we 

always have the resources to do so, and 

nor is it necessary when information is 

available through other means. 

However, NOAA supports these efforts 

when feasible, and as noted in the 

introduction, in January 2009, NOAA 

committed to convene a workshop to 

identify cetacean hotspots and the 

information generated from that 

workshop will be used to inform 

management decisions, such as the 

development of geographic mitigation 

measures. 

Finally, most of the Navy funded 

range complex monitoring is conducted 

by qualified academic and scientific 

organizations. Information from these 

researchers is presented to NMFS and 

the public in annual monitoring reports, 

and these researchers have a long 

history of unbiased, successful scientific 

publication based on these studies. This 

kind of peer-review presentation of 

scientific results will continue based on 

monitoring efforts in the NWTRC and 

other Navy range complexes. 

Impact Assessment 

Comment 19: The MMC 

recommended that NMFS require the 

Navy to conduct an external peer review 

of its marine mammal density estimates, 

the data upon which those estimates are 

based, and the manner in which those 

data are being used. 

Response: Both NMFS and the Navy 

use peer-reviewed science whenever it 

is available and applicable, and NMFS 

has encouraged the Navy to get the 

models they use and data they gather 

peer-reviewed. However, neither the 

NEPA, the MMPA, nor the ESA require 

that data or calculations used in the 

analyses pursuant to these statutes be 

peer-reviewed prior to making a 

decision. Rather, NMFS and the Navy 

are required to use the best available 

science to inform our analyses. 

In the context of the Navy’s NWTRC 

EIS/OEIS and LOA application, the 

marine mammal densities used in the 

Navy’s impact analysis were derived 

from estimates directly provided by 

NMFS’s Southwest Fisheries Science 

Center (SWFSC). As mentioned in a 

previous comment response, SWFWC 

continues to refine and improve this 

density estimation process. 

Also, while it is not the same as a peer 

review, both the NEPA and MMPA 

processes include a comment period in 

which the public can specifically 

recommend better ways to use the data 

to estimate density, and which the Navy 

and NMFS would need to address. 

Further, the Navy is developing a new 

systematic framework (that includes a 

hierarchy of preferred methodologies 

based on the data available in an area) 

to estimate density in the analyses for 

the rule renewals that will follow the 

expiration of the MMPA rules for Navy 

training issued in 2009, 2010, and 2011 

(i.e., rules that would, if appropriate, be 

issued in 2014 and later). The Navy has 

indicated that they may pursue a peer 


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review of this framework and NMFS has 

encouraged them to do so. 

Comment 20: NRDC included a copy 

of their comments on the Navy’s EIS 

and suggested that some of those 

comments also pertained to the MMPA 

authorization. Other commenters 

mirrored several of the 

recommendations that NRDC made in 

these comments. 

Response: NMFS has addressed the 

issues that apply to our issuance of the 

MMPA authorization below: 

(1) Additional Mitigation—NRDC 

recommends a suite of additional 

mitigation measures for the Navy to 

consider to protect various resources, 

including marine mammals. NMFS and 

the Navy have previously discussed 

either the specific measures listed in 

NRDC’s comments on the Navy’s EIS, or 

the general class of mitigation 

contemplated and have developed a 

section for the EIS that discusses the 

benefits of the proposed measure to 

marine mammals, the likely 

effectiveness of the measure, and the 

practicability of the measure for Navy 

implementation. Section 5.2.1.5 (begin 

page 5–23) of the NWTRC EIS, entitled 

Alternative Mitigation Measures 

Considered But Eliminated, explains 

why these measures are not included in 

NMFS MMPA regulations and NMFS 

refers readers to that document. 

(2) Dr. Bain’s Critique of Risk 

Function—NRDC includes a 

comprehensive critique of the risk 

function that the Navy (and NMFS) uses 

to calculate takes. NMFS responded to 

Dr. Bain’s comments in the Atlantic 

Fleet Active Sonar Training final rule 

(74 FR 4865) and refers readers to that 

document. 

Comment 21: One commenter 

suggests that it would be premature for 

NMFS to issue a take permit to the Navy 

until NOAA conducts an independent 

review of the adequacy of the Navy’s 

proposed mitigation for the use of sonar. 

Response: Pursuant to Section 

101(a)(5)(A) of the MMPA, NMFS has 

the responsibility of ensuring that any 

incidental take authorization regulations 

set forth the means of effecting the least 

practicable impact, which requires a 

review of the proposed mitigation 

measures in the context of the benefit to 

the species, the likely effectiveness of 

the measure, and the practicability of 

the measure for implementation. The 

rationale behind our finding of least 

practicable adverse impact was spelled 

out in the Mitigation Conclusion section 

of the proposed rule (74 FR 33868). The 

MMPA does not require that NOAA 

conduct an independent review. 

However, NMFS continues to monitor 

the Navy’s mitigation and monitoring 

effectiveness by reviewing annual 

reports and using the adaptive 

management mechanism in the rule to 

inform decisions regarding whether 

mitigation or monitoring should be 

modified to increase their effectiveness. 

Comment 22: One commenter 

questioned why the Navy was not 

required to have incidental take 

authorization for explosive ordinance 

activities in the in-shore region. 

Response: As described in the 

proposed rule, (74 FR 33837), because of 

the more easily monitored inland 

location of the explosive ordnance 

disposal (EOD) ranges, the very limited 

use of explosives (4 individual 

explosions between 1.5 and 2.5 pounds) 

proposed annually for these Mine 

Countermeasure exercises, and the 

likely effectiveness of the mitigation 

(e.g., marine mammal take would only 

be expected if a marine mammal were 

exposed within less than 200 m of the 

detonation, and the Navy does not 

detonate explosives if a marine mammal 

is seen within 700 m), take of marine 

mammals is not anticipated or 

authorized. 

Comment 23: A few commenters 

noted that NMFS should conduct 

additional analysis and provide stronger 

protection for marine mammals from 

Navy training vessel operations 

including collisions, discharges of 

wastewater and garbage, and emissions 

of air pollution and greenhouse gases. 

Some commenters also objected to the 

Navy’s use of depleted uranium in some 

of their ordnance. 

Response: NMFS did analyze (74 FR 

33862) the potential impacts from vessel 

strike in the proposed rule and added a 

mitigation measure in the final rule to 

minimize the likelihood of a strike (see 

§ 218.114(a)(1)(ii)(I). Because of the 

relatively low density of Navy traffic in 

the NWTRC and the mitigation 

measures (and the fact that the Navy has 

not struck a whale there previously), 

NMFS does not believe that the vessel 

strike of a marine mammal is likely in 

the NWTRC. 

The Effects on Marine Mammal 

Habitat section of the proposed rule 

considered the impacts of expendable 

materials and some of the chemicals 

associated with Navy training activities 

on marine mammal habitat (74 FR 

33885) and determined that there would 

be no significant impacts to marine 

mammal habitat. Additionally, NMFS’ 

Biological Opinion (page 192–195) 

covering the Navy’s training activities in 

the NWTRC, as well as NMFS’ issuance 

of an MMPA authorization, analyzed the 

effects of the chemicals expended by the 

Navy’s ordnance and projectiles and 

found they were unlikely to adversely 

impact ESA-listed marine mammals. 

The Navy’s NWTRC EIS addresses 

discharges and emissions resulting from 

the Navy’s training activities. The Navy 

complies with all state and Federal 

requirements related to water and air 

quality. Based on the Navy’s analysis, 

NMFS does not believe that wastewater 

or garbage discharge or emissions will 

result in the take of marine mammals or 

significantly impact marine mammal 

habitat adversely. 

Separately, none of the surface 

combatant ships stationed in the Pacific 

Northwest, which are the ships that do 

the preponderance of training at sea in 

the Pacific Northwest, have depleted 

uranium rounds onboard. Subsequent to 

public release of the Draft EIS/OEIS, 

Commander Pacific Fleet directed that 

all Pacific Fleet ships offload all 

depleted uranium rounds at the earliest 

opportunity. This change is reflected in 

the Final EIS/OEIS in Section 2.4.1.1, 

which indicates that depleted uranium 

use is no longer included in the Navy’s 

Proposed Action. 

Comment 24: One commenter 

suggested that the mitigation measures 

with regard to Navy vessels operating at 

‘‘safe speeds’’ to avoid collisions with 

marine mammals are unrealistic. There 

is no such thing as a safe speed due to 

the fact that Navy vessels do not stop, 

turn or slow down like small speed 

boats or automobiles. Thus, avoiding a 

collision would be impossible because it 

takes thousands of yards to turn a vessel 

or slow it down. Marine mammals 

surface to breathe sporadically and are 

not seen on the surface often enough to 

give enough warning time to avoid 

collisions. 

Response: Avoiding collisions is 

difficult for large ships. However, some 

Navy vessels are fairly maneuverable, 

even at speed, and the more vigilant the 

watchstanders are (i.e., the earlier a 

whale is sighted), the more likely a 

collision can be avoided. Mitigation 

measures are intended to reduce the 

likelihood of ship strikes to the lowest 

level possible. In the case of the 

NWTRC, which has comparatively low 

Navy traffic and in which a Navy vessel 

has not previously struck a whale, 

NMFS believes that vessel strike is 

unlikely. 

Comment 25: One commenter 

suggests that the Navy’s assumption of 

a ‘‘uniform and stationary distribution of 

marine mammals,’’ would result in gross 

underestimation of potential exposures 

in all areas, seasons, or circumstances 

involving aggregations of animals 

engaged in mating, birthing, feeding, 

migrating, and other common activities 


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that often concentrate large numbers of 

animals in one area. 

Response: This statement is incorrect. 

Given the same total number of animals 

in an area (and the Navy used the best 

available survey information to inform 

their density estimates), over a long 

amount of time, you would encounter 

the same number of animals if they were 

evenly distributed as if they were 

clumped (unless you were selectively 

going to the places that they were 

clumped, which will not occur here). 

With a uniform distribution you would 

encounter marine mammals more often, 

but only one at a time, whereas with a 

clumped distribution, you would 

encounter them far less frequently, but 

in higher numbers at one time. Given a 

short amount of time (for example, the 

short duration of the MFAS activities in 

the NWTRC), a uniform distribution 

might be more likely to overestimate 

takes, because with a clumped 

distribution, you are far less likely to 

encounter groups of animals during the 

short duration of the actual exercises. 

Comment 26: One commenter states 

that the proposed rule assumes that 

because effects were not detected over 

the last 60 years, they never occurred, 

while at the same time, the proposed 

rule acknowledges that no monitoring 

has occurred during this period. 

Response: NMFS does not make this 

assumption (see 74 FR 33887–33888). 

The Navy has been conducting MFAS/ 

HFAS training exercises in the NWTRC 

Range Complex for over 60 years. 

Although the Navy has not conducted 

monitoring specifically in conjunction 

with training exercises in the past, 

people have been collecting stranding 

data in the NWTRC Range Complex for 

approximately 30 years. We further state 

that although not all dead or injured 

animals are expected to end up on the 

shore (some may be eaten or float out to 

sea), one might expect that if marine 

mammals were being harmed by the 

Navy training exercises with any 

regularity, more evidence would have 

been detected over the 30-yr period. 

Comment 27: If the whales do not 

reach Alaska because they are all 

disoriented from sonar, bombings, etc., 

does this not affect the traditional 

Alaskan Native hunting grounds? 

Response: None of the species (or 

populations) of whales that Alaska 

natives currently hunt are present in the 

NWTRC (bowhead or beluga whales). 

Comment 28: One commenter had the 

following comment: Mooney, et al. 

(2009) have just demonstrated hearing 

loss in porpoises exposed to U.S. Navy 

MFA sonar ping recordings. Loss of 

auditory sensitivity could be as 

catastrophic for SRKWs (porpoises) as 

stranding. Because Navy underwater 

noise pollution could—in a worst case 

scenario—exacerbate difficulties the 

SRKWs may already be experiencing 

hearing the echolocation reflections 

from their rare salmonid prey (Au, 2004) 

due to vessel noise, the commenter has 

serious concerns about the proposed 

rule, and particularly the Killer Whale 

section on page 33890. 

Response: The proposed rule 

discusses both the likelihood of TTS 

occurring as a result of MFAS exposure 

(unlikely due to how close an animal 

would need to be to the source, the 

tendency of many marine mammals to 

avoid loud sounds at some distance, and 

the likely success of mitigation 

measures, especially for highly visible 

killer whales) and the likely overall 

impact of TTS if it should occur in these 

circumstances (minimal, short in 

duration and severity because of the 

short duration that an animal would 

likely be able to remain in close 

proximity to the source given the 

moving vessel and the continued 

likelihood of mitigation detection). 

Additionally, the Navy estimated that 

only 14 killer whales would be exposed 

to levels associated with Level B 

Harassment and that 0 would be 

exposed to levels associated with TTS, 

assuming no mitigation. In short, 

because of the low hours of total MFAS 

use, the short duration of each exercise, 

the fact that it is far from shore and does 

not take place in Puget Sound (where 

killer whales are known to concentrate 

in certain parts of the year, and where 

there are bathymetric conditions that 

have been associated with more severe 

responses to MFAS), killer whales are 

highly unlikely to incur TTS from the 

MFAS exercises in the NWTRC. 

Comment 29: One commenter 

suggested that NMFS made an incorrect 

statement in the proposed rule: 

‘‘Southern resident killer whales are 

very vocal, making calls during all types 

of behavioral states.’’ They indicated 

that, on the contrary, it is well known 

that entire pods of SRKWs remain 

completely silent during the resting 

behavioral state. 

Response: This is a valid correction. 

NMFS did not mean to imply that killer 

whales vocalized while they are resting. 

A corrected sentence would read 

‘‘Southern resident killer whales are 

very vocal, making calls during almost 

all types of behavioral states.’’ 

Comment 30: Several comments made 

comments related to the analysis of 

cumulative impacts. One commenter 

specifically suggested that NMFS 

consider the cumulative impacts of 

several specific military activities that 

would likely occur in the area of the 

NWTRC (e.g., the Keyport expansion, 

and the explosives handling wharf at 

Naval Base Kitsap Bangor). Other 

commenters suggested that the Navy 

fails to consider the cumulative impacts 

of toxic chemicals on marine mammals. 

Another commenter suggested that the 

Navy has not considered the cumulative 

and synergistic impacts of ‘‘taking’’ 

marine mammals by exposure to MFAS 

from all of the Navy’s range complexes. 

Another commenter suggests that NMFS 

and the Navy assume that the entire 

batch of proposed Navy actions will 

take place in a pristine environment and 

do not take into account their 

contributions to or exacerbation of 

existing conditions such as global 

climate change, acidification of the 

oceans, rising ocean levels, global ocean 

and atmospheric pollution, warming 

ocean waters, increased storm activities, 

global extinctions, and other disasters. 

Response: NMFS participated as a 

cooperating agency in the development 

of the Navy’s NWTRC EIS and has 

adopted it to support our issuance of 

incidental take regulations and LOAs. 

NMFS discussed with the Navy the 

specific examples the commenter raised 

of activities that should be included in 

the cumulative impact analysis and they 

are included, as appropriate (i.e., 

considering the location of the activity 

and the anticipated impacts) in the 

FEIS. The FEIS contains a thorough 

analysis of potential cumulative effects, 

including pollutants and toxic 

chemicals. Throughout the FEIS, within 

the separate resource sections, the Navy 

addresses different ways that they will 

minimize adverse effects. As an agency, 

NMFS understands the importance of 

cumulative effects, and we continually 

look for ways to both better understand 

and more effectively reduce cumulative 

effects/impacts on marine mammals and 

other marine resources through 

implementation of our statutory 

authorities (Endangered Species Act 

(ESA), NEPA, Magnuson-Stevens 

Fishery Conservation and Management 

Act, Coastal Zone Management Act, etc.) 

and more directly through policy and 

other actions, such as the 

implementation of the Right Whale Ship 

Strike Reduction rule or the convening 

of the Potential Application of VesselQuieting Technology on Large 

Commercial Vessels meeting in May 

2007. 

Regarding the consideration of the 

cumulative or synergistic effects of 

sonar conducted in all of the Navy’s 

major range complexes the Navy has 

considered the cumulative impacts of 

sonar from different range complexes if 

they are adjacent or nearby. However, 

generally speaking (on the West Coast 


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especially), Navy range complexes are 

not in close proximity to one another 

and therefore the Navy has not 

considered the cumulative impacts of 

sonar use. Additionally, the vast 

majority of the impacts to marine 

mammals expected from sonar exposure 

are behavioral in nature, comparatively 

short in duration, and not of the type or 

severity that would be expected to be 

additive for the portion of marine 

mammals that might travel between 

range complexes. 

Last, NMFS and the Navy have 

considered how the Navy’s action 

interacts with global conditions, such as 

climate change. The NWTRC FEIS notes 

that recent observed changes due to 

global warming include shrinking 

glaciers, thawing permafrost, a 

lengthened growing season, and shifts 

in plant and animal ranges 

(Intergovernmental Panel on Climate 

Change 2007). Also, predictions of longterm environmental impacts due to 

global warming include sea level rise, 

changing weather patterns with 

increases in the severity of storms and 

droughts, changes to local and regional 

ecosystems including the potential loss 

of species, and a significant reduction in 

winter snow pack. The Cumulative 

Impacts chapter of the NWTRC FEIS 

includes a discussion of climate change, 

greenhouse gases and other pollutants, 

and how the Navy’s action will 

contribute to these global issues. The 

FEIS also highlights several goals that 

the Secretary of the Navy has 

established for reducing the Navy’s 

consumption of fossil fuels, including: 

• Mandate that energy usage, 

efficiency, life-cycle costs and other 

such factors be part of the Navy’s 

decision when acquiring new 

equipment or systems, as well as 

vendors’ efficiency or energy policies. 

• Cut petroleum use by half in the 

Navy’s fleet of commercial vehicles by 

2015, by phasing in new hybrid trucks 

to replace older ones. 

• Procure half the power at Navy 

shore installations from alternative 

energy sources—including wind or 

solar—by 2020, and where possible, 

supply energy back to the grid, as the 

Navy does today at Naval Air Weapons 

Station China Lake, California. 

• Reach the point that half the energy 

used throughout the Navy Department, 

including in ships, aircraft, vehicles and 

shore stations, comes from alternative 

fuel or alternative sources by 2020. 

Today that percentage is about 17 

percent. 

Monitoring and Reporting 

Comment 31: One commenter 

suggested that it would be premature for 

NMFS to issue a take permit to the Navy 

until the public has had a chance to 

review the Monitoring Plan proposed 

for the NWTRC. 

Response: NMFS made the draft 

Monitoring Plan available on its 

webpage for the public to review during 

the public comment period. 

Comment 32: One commenter 

suggests that the Navy should assist in 

extending underwater monitoring for 

marine mammal sounds to the outer 

coast of Washington state. 

Response: The Navy’s Monitoring 

Plan (http://www.nmfs.noaa.gov/pr/ 

permits/incidental.htm#applications) 

includes the deployment, and 

subsequent monitoring, of two passive 

acoustic devises on the outer coast of 

Washington. 

Comment 33: One commenter 

suggested that the Navy training DVD is 

inadequate for Navy observers. 

Response: The primary duty of the 

watchstanders on Navy vessels is to 

detect objects in the water, estimate 

their distance from the ship, and 

identify them as any of a number of 

inanimate or animate objects that are 

significant to a Navy exercise or as a 

marine mammal so that the mitigation 

can be implemented. Navy 

watchstanders go through extensive 

training to learn these skills, and the 

Marine Species Awareness Training is 

used to augment it with some marine 

mammal specific information that will 

make them aware of some cues that they 

may not otherwise have learned and 

may contribute to their collection of 

slightly more accurate and descriptive 

information in their reports. However, 

watchstanders are not expected to 

identify marine mammals to species and 

they are not expected to provide indepth behavioral or status information 

on marine mammals. 

Alternatively, for the Monitoring 

Plans that the Navy develops and 

implements, professional biologists and 

scientists, with extensive marine 

mammal field experience, develop and 

conduct the data collection, and do the 

subsequent analysis. 

Comment 34: NMFS has prioritized 

beaked whales in the Navy’s proposed 

Monitoring Plan for the area (74 FR 

33870). This prioritization should 

include a firm, multi-year commitment 

to sponsor fine-scale surveys with the 

aim of identifying important beaked 

whale habitat for avoidance. 

Response: The Navy’s current 

monitoring commitment includes the 

deployment of passive acoustic 

monitoring hydrophones off shore of 

Washington as well as tagging studies, 

both of which allow for a focus on 

beaked whales and will likely collect 

valuable information. In 2011, the Navy 

will hold a Monitoring Workshop, in 

which (with expert and public input) 

they will be comprehensively reevaluating their monitoring priorities 

and plans (see Introduction to 

Monitoring section, above), and may 

modify this plan, as appropriate. 

Comments 35: We recommend that 

NMFS increase its reporting 

requirements for the Navy to provide 

information on (1) its use of midfrequency sonar (e.g., times, locations), 

which would greatly assist in analyzing 

and understanding the impacts of this 

sonar on marine mammals, and (2) the 

locations of southern resident killer 

whales and other marine mammals 

detected during its various monitoring 

efforts along the west coast. 

Response: For major MFAS training 

exercises (which do not occur in the 

NWTRC), the Navy is required to 

provide the times and locations of their 

MFAS use and the locations of the 

individual animals detected by their 

watchstanders. For non-major MFAS 

exercises (like those in the NWTRC), the 

Navy watchstanders implement the 

mitigation measures, but are not 

required to keep a written record of each 

animal seen because it is logistically 

difficult given the existing resources. 

Also for non-major exercises, the Navy 

is required to, to the extent practicable, 

develop and implement a method of 

annually reporting non-major training 

utilizing hull-mounted sonar that 

presents an annual (and seasonal, where 

practicable) depiction of non-major 

training exercises geographically across 

NWTRC. 

The Navy also has a monitoring plan 

that includes the use of hydrophones to 

detect whale calls, and which will also 

utilize animal tagging. The results of the 

Navy’s monitoring plan will be made 

available annually. 

Other 

Comment 36: Multiple commenters 

requested an extension on the 30-day 

public comment period on the MMPA 

proposed rule for the NWTRC. Another 

commenter suggested that in the future, 

NMFS allow 60 days for public 

comment on Navy training rules. 

Response: NMFS extended the public 

comment period by 7 days. Of note, the 

public comment period for the Navy’s 

NWTRC DEIS was extended three times 

and the total comment period was 105 

days. NMFS is currently working with 

the Navy to develop scheduling plans 

for the next round of training activities 

for which the Navy plans to request 

incidental take authorization. NMFS 

intends to include 60 days for public 

comment on these proposed rules. 


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Comment 37: NMFS should hold back 

on approving marine mammal takes 

under the proposed MMPA rule for the 

NWTRC until the Presidential Ocean 

Policy Task Force process is complete. 

Response: NOAA is committed to the 

goals of the Ocean Policy Task Force. 

However, the intent is not to cease 

conducting our required regulatory 

actions while the details of 

implementation are being worked out. 

Additionally, the Ocean Policy Task 

Force strategy does not yet contain a 

level of detailed information that could 

be applied to this specific action. The 

MMPA mandates that NOAA ‘‘shall 

issue’’ the incidental take authorization 

if we are able to make the necessary 

findings. When the Task Force has 

produced a plan containing a level of 

detail that is applicable to MMPA 

authorizations under 101(a)(5)(A), it 

will be applied to this program. In the 

interim, NOAA will continue to comply 

with the MMPA requirements in a 

timely manner. 

Comment 38: Many commenters 

expressed general opposition to Navy 

activities and NMFS’ issuance of an 

MMPA authorization, citing general 

concerns about the health and welfare of 

marine mammals. 

Response: NMFS appreciates the 

commenters’ concern for the marine 

mammals that live in the area of the 

Navy’s training activities. The MMPA 

directs NMFS to issue an incidental take 

authorization if certain findings can be 

made. NMFS has determined that the 

Navy’s NWTRC training activities will 

have a negligible impact on the affected 

species or stocks. Additionally, NMFS 

has worked with the Navy to develop 

mitigation measures that help minimize 

the impacts to marine mammals and a 

monitoring plan that will increase our 

understanding of the marine mammals 

in the area and their responses in the 

presence of marine mammals. 

Therefore, we are issuing the necessary 

governing regulations and plan to issue 

the requested MMPA authorization. 

Comment 39: Several commenters 

recommended that the Navy share more 

of the information that they have access 

to with the public, for example: 

• The Navy could make a significant 

contribution to the public’s 

understanding of the whereabouts of 

killer whales by providing sighting data 

from their bases and ships as well as 

including hydrophones on the 

oceanographic buoys and tidal energy 

projects they are employing in the 

Sound. 

• The Navy could utilize their 

existing infrastructure to provide the 

public (or at least independent 

scientists) with the ability to listen to 

the underwater soundscape on the outer 

coast of Washington. 

• The Navy could share information 

about the locations of orcas with 

civilian agencies and organizations that 

seek to track the location of the orcas. 

Response: Following are responses to 

the specific bullets above: 

• The reporting of killer whale 

sightings from transitory Navy ships 

would be of little value, given the vast 

tracts of ocean traversed in which 

sightings would not be obtained, the 

logistic difficulties of getting such 

reports in a useable and timely manner 

from the ships to outside Navy 

organizations, and the lack of useable 

scientific detail in a generic report of 

‘‘killer whale’’ (no way to know if 

inshore or other killer whale stock). The 

shore based infrastructure is not part the 

Navy’s LOA authorization for the 

NWTRC, nor is the Navy seeking MMPA 

authorization within inshore 

Washington State waters. The Navy’s 

offshore monitoring program which 

includes passive acoustic monitoring 

will provide more scientifically robust 

information as to specific killer whale 

stocks detected and the periodicity of 

those detections, a far stronger and more 

useful approach than individual ship 

sightings. 

• The Navy has no real-time 

infrastructure in-place for offshore 

passive acoustic ‘‘listening’’. Under the 

NWTRC Monitoring Plan, the Navy is 

proposing to deploy two of Scripps 

Institute of Oceanography Highfrequency acoustic recording packages 

(HARP) within this area (http:// 

cetus.ucsd.edu/). Given the distance 

from shore, depths of deployment (800– 

1000 m), and current technology 

limitations, there is no real-time 

listening available. Scripps services 

these devices approximately every 4–5 

months to retrieve hard drives. New 

hard drives are inserted and the HARP 

re-deployed back into the ocean. The 

retrieved hard drive is then returned to 

the laboratory for analysis which can 

take some time to complete. Results 

from these deployments will however 

be provided to the NMFS and the public 

in the Navy’s annual monitoring report 

for the NWTRC. 

• All of the Navy monitoring results 

and summaries for the NWTRC will be 

made available to the NMFS and the 

public via annual monitoring reports. If 

detected, presence/absence 

vocalizations from offshore stocks and 

inshore resident stocks of killer whales 

will be reported. As described in the 

Navy’s draft Monitoring Plan for the 

NWTRC, some results from the Quinault 

HARP do contain killer whale 

detections (see Oleson, E.M., J. 

Calambokidis, Erin Falcone, and Greg 

Schorr and J.A. Hildebrand. 2009. 

Acoustic and visual monitoring for 

cetaceans along the outer Washington 

coast-Technical Report, July 2004– 

September 2008. Prepared for U.S. 

Navy. Naval Postgraduate School, 

Monterey, CA. NPS–OC–09–001. 45 pp.) 

Comment 40: In considering the U.S. 

Navy’s plans to use loud sonars and to 

set off underwater explosions, it is 

imperative that NOAA be just as careful 

with the Navy with its fleets of 

generators of potentially lethal noises as 

NOAA is being with respect to whale 

watch boats and kayaks. 

Response: The Navy requested 

(pursuant to the MMPA) authorization 

to take marine mammals during their 

training exercises, which utilize sonar 

and explosives. In order to issue the 

authorization and comply with section 

101(a)(5)(A) of the MMPA, NOAA must 

make certain findings and set forth 

appropriate mitigation and monitoring 

measures, which we have done. 

Additionally, where ESA-listed species 

are affected, and where NOAA proposes 

to authorize take, NOAA must evaluate 

those impacts pursuant to the ESA in a 

formal consultation, make certain 

findings, and issue an incidental take 

statement, which we have done. 

Alternately, in the case of whale 

watching boats and kayaks, those 

entities have not engaged in formal 

consultation under the ESA, nor do they 

have authorization under the MMPA to 

take marine mammals. Rather, NOAA 

has developed regional guidance 

regarding avoidance distances that are 

intended to completely avoid the take of 

killer whales. Consequently (and 

because the activities are completely 

different), the protective measures are 

different—the Navy is allowed to take 

marine mammals, but still has 

minimizing measures, whereas 

whalewatchers and kayakers have 

required measures to ensure that they 

do not take killer whales at all. 

Comment 41: Some comments 

addressed the protection of resources 

other than marine mammals (e.g., 

turtles) or addressed activities other 

than the take authorization (e.g., the 

designation of critical habitat). Some 

comments misrepresented the 

information contained in the proposed 

rule (e.g., ‘‘NMFS should not allow the 

death of millions of marine mammals’’). 

Response: NMFS considered these 

types of comments inapplicable and 

does not address them further here. 

Estimated Take of Marine Mammals 

As mentioned previously, one of the 

main purposes of NMFS’ effects 

assessments is to identify the 


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permissible methods of taking, meaning: 

The nature of the take (e.g., resulting 

from anthropogenic noise vs. from ship 

strike, etc.); the regulatory level of take 

(i.e., mortality vs. Level A or Level B 

Harassment) and the amount of take. In 

the Potential Effects of Exposure of 

Marine Mammals to MFAS/HFAS and 

Underwater Detonations section, NMFS 

identified the lethal responses, physical 

trauma, sensory impairment (permanent 

and temporary threshold shifts and 

acoustic masking), physiological 

responses (particular stress responses), 

and behavioral responses that could 

potentially result from exposure to 

MFAS/HFAS or underwater explosive 

detonations. In this section, we will 

relate the potential effects to marine 

mammals from MFAS/HFAS and 

underwater detonation of explosives to 

the MMPA statutory definitions of Level 

A and Level B Harassment and attempt 

to quantify the effects that might occur 

from the specific training activities that 

the Navy is proposing in the NWTRC. 

In the Estimated Take of Marine 

Mammals section of the proposed rule, 

NMFS relates the potential effects to 

marine mammals from MFAS/HFAS 

and underwater detonations (discussed 

in the Potential Effects of Specified 

Activities on Marine Mammals Section) 

to the MMPA regulatory definitions of 

Level A and Level B Harassment and 

quantified (estimated) the effects on 

marine mammals that could result from 

the specific activities that the Navy 

intends to conduct. The subsections of 

that analysis are discussed individually 

below. 

Definition of Harassment 

The Definition of Harassment section 

of the proposed rule contains the 

definitions of Level A and Level B 

Harassment, and a discussion of which 

of the previously discussed potential 

effects of MFAS/HFAS or explosive 

detonations fall into the categories of 

Level A Harassment (permanent 

threshold shift (PTS), acoustically 

mediated bubble growth, behaviorally 

mediated bubble growth, and physical 

disruption of tissues resulting from 

explosive shock wave) or Level B 

Harassment (temporary threshold shift 

(TTS), acoustic masking and 

communication impairment, and 

behavioral disturbance rising to the 

level of harassment). See 74 FR 33828, 

pages 33872–33873. No changes have 

been made to the discussion contained 

in this section of the proposed rule. 

Acoustic Take Criteria 

In the Acoustic Take Criteria section 

of the proposed rule, NMFS described 

the development and application of the 

acoustic criteria for both MFAS/HFAS 

and explosive detonations (74 FR 33828, 

pages 33873–33880). No changes have 

been made to the discussion contained 

in this section of the proposed rule. 

Estimates of Potential Marine Mammal 

Exposure 

The proposed rule describes in detail 

how the Navy estimated the take that 

will result from their proposed activities 

(74 FR 33828, pages 33880–33881), 

which entails the following three 

general steps: (1) A propagation model 

estimates animals exposed to sources at 

different levels; (2) further modeling 

determines the number of exposures to 

levels indicated in criteria above (i.e., 

number of takes); and (3) post-modeling 

corrections refine estimates to make 

them more accurate. More information 

regarding the models used, the 

assumptions used in the models, and 

the process of estimating take is 

available in Appendix D of the Navy’s 

DEIS for NWTRC. 

Table 5, which is identical to the 

Table 8 in the proposed rule with a few 

minor corrections (including the 

reduction from 1 to 0 of Level A 

Harassment takes of blue whales and 

Steller sea lions), indicates the number 

of takes that were modeled and that are 

being authorized yearly incidental to the 

Navy’s activities, with the following 

allowances. The Navy has carefully 

characterized the training activities 

planned for the NWTRC over the 5 years 

covered by these regulations; however, 

evolving real-world needs necessitate 

flexibility in annual activities, which in 

turn is reflected in annual variation in 

the potential take of marine mammals. 

Where it was mentioned more generally 

in the proposed rule, NMFS has now 

included language bounding this 

flexibility in the regulatory text (see 

§ 218.112(c)). These potential annual 

variations were considered in the 

negligible impact analysis and the 

analysis in the proposed rule remains 

applicable. The new language indicates 

that after-action modeled annual takes 

(i.e., based on the activities that were 

actually conducted and which must be 

provided with annual LOA 

applications) of any individual species 

may vary but will not ultimately exceed 

the indicated 5-year total for that 

species by more than 10 percent and 

will not exceed the indicated annual 

total by more than 25 percent in any 

given year; and that modeled total 

yearly take of all species combined may 

vary but may not exceed the combined 

amount indicated below in any given 

year by more than 10 percent. 

BILLING CODE 3510–22–P 


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BILLING CODE 3510–22–C 

Mortality 

Evidence from five beaked whale 

strandings, all of which have taken 

place outside the NWTRC and occurred 

over approximately a decade, suggests 

that the exposure of beaked whales to 

MFAS in the presence of certain 

conditions (e.g., multiple units using 

active sonar, steep bathymetry, 

constricted channels, strong surface 

ducts, etc.) may result in strandings, 

potentially leading to mortality. 

Although these physical factors believed 

to have contributed to the likelihood of 

beaked whale strandings are not 

present, in their aggregate, in the 

NWTRC, scientific uncertainty exists 

regarding what other factors, or 

combination of factors, may contribute 

to beaked whale strandings. However, 

because none of the MFAS/HFAS ASW 

exercises conducted in the NWTRC are 

major exercises employing multiple 

surface vessels, the exercises last 1.5 

hours or less, and only 65 exercises are 

planned (for a total of about 100 hours 

of surface vessel sonar operation), 

NMFS and the Navy believe it is highly 

unlikely that marine mammals would 

respond to these exercises in a manner 

that would result in a stranding. 

Therefore, NMFS is not authorizing 

mortality. 

Effects on Marine Mammal Habitat 

NMFS’ proposed rule includes a 

section that addresses the effects of the 

Navy’s activities on Marine Mammal 

Habitat (74 FR 33828, pages 33883– 

33884). The analysis preliminarily 

concluded that the Navy’s activities 

would have minimal effects on marine 

mammal habitat. No changes have been 

made to the discussion contained in this 

section of the proposed rule and NMFS 

has concluded there would be minimal 

effects on marine mammal habitat. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

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 affected species or stock. Level B 

(behavioral) Harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects (for example: 

Pink-footed geese (Anser 

brachyrhynchus) in undisturbed habitat 

gained body mass and had about a 46- 

percent reproductive success compared 

with geese in disturbed habitat (being 

consistently scared off the fields on 

which they were foraging) which did 

not gain mass and had a 17-percent 

reproductive success). A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

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

of Level B Harassment takes, alone, is 

not enough information on which to 

base an impact determination. In 

addition to considering estimates of the 

number of marine mammals that might 

be ‘‘taken’’ through behavioral 

harassment, NMFS must consider other 

factors, such as the likely nature of any 

responses (their intensity, duration, 

etc.), the context of any responses 

(critical reproductive time or location, 

migration, etc.), as well as the number 

and nature of estimated Level A takes, 

the number of estimated mortalities, and 

effects on habitat. Generally speaking, 

and especially with other factors being 


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equal, the Navy and NMFS anticipate 

more severe effects from takes resulting 

from exposure to higher received levels 

(though this is in no way a strictly linear 

relationship throughout species, 

individuals, or circumstances) and less 

severe effects from takes resulting from 

exposure to lower received levels. 

In the Analysis and Negligible Impact 

Determination section of the proposed 

rule, NMFS addressed the issues 

identified in the preceding paragraph in 

combination with additional detailed 

analysis regarding the severity of the 

anticipated effects, and including 

species (or group)-specific discussions, 

to preliminarily determine that Navy 

training will have a negligible impact on 

the marine mammal species and stocks 

present in NWTRC. No changes have 

been made to the discussion contained 

in this section of the proposed rule (74 

FR 33828, pages 33884–33892), with the 

following exception. 

As mentioned previously in the 

Estimated Take section, NMFS has 

added language bounding the flexibility 

in annual variation of potential take of 

individual marine mammal species into 

the regulatory text (see § 218.112(c)). 

The new language indicates that 

modeled annual takes (which must be 

provided with the annual LOA 

application) of any individual species 

may vary but will not ultimately exceed 

the indicated 5-year total for that 

species (indicated by Table 6) by more 

than 10 percent and will not exceed the 

indicated annual total by more than 25 

percent in any given year; and that 

modeled total yearly take of all species 

combined may vary but may not exceed 

the combined amount indicated below 

in any given year by more than 10 

percent. NMFS has considered these 

limitations in our negligible impact 

determination and the findings 

described in the proposed rule remain 

applicable. 

Determination 

Negligible Impact 

Based on the analysis contained here 

and in the proposed rule (and other 

related documents) of the likely effects 

of the specified activity on marine 

mammals and their habitat and 

dependent upon the implementation of 

the mitigation and monitoring measures, 

NMFS finds that the total taking from 

Navy training exercises utilizing MFAS/ 

HFAS and underwater explosives in the 

NWTRC will have a negligible impact 

on the affected species or stocks. NMFS 

is issuing regulations for these exercises 

that prescribe the means of effecting the 

least practicable adverse impact on 

marine mammals and their habitat and 

set forth requirements pertaining to the 

monitoring and reporting of that taking. 

Subsistence Harvest of Marine 

Mammals 

NMFS has determined that the 

issuance of 5-year regulations and 

subsequent LOAs for Navy training 

exercises in the NWTRC would not have 

an unmitigable adverse impact on the 

availability of the affected species or 

stocks for subsistence use for any Alaska 

Natives or tribal member in the 

Northwest (e.g., Oregon, Washington, 

and northern California). Specifically, 

the Navy’s exercises would not affect 

any Alaskan Native because the 

activities will be limited to waters off 

the coast of Washington, Oregon, and 

northern California, areas outside of 

traditional Alaskan Native hunting 

grounds. Moreover, there are no 

cooperative agreements in force under 

the MMPA or Whaling Convention Act 

that would allow for the subsistence 

harvest of marine mammals in waters 

off the Northwest coast. Consequently, 

this action would not result in an 

unmitigable adverse impact on the 

availability of the affected species or 

stocks for taking for subsistence uses in 

the Northwest. 

ESA 

There are seven marine mammal 

species and one sea turtle species that 

are listed as endangered under the ESA 

with confirmed or possible occurrence 

in the study area: Humpback whale, sei 

whale, fin whale, blue whale, sperm 

whale, southern resident killer whale, 

Steller sea lion, and the leatherback sea 

turtle. Pursuant to Section 7 of the ESA, 

the Navy has consulted with NMFS on 

this action. NMFS has also consulted 

internally on the issuance of regulations 

under section 101(a)(5)(A) of the MMPA 

for this activity. In a Biological Opinion 

(BiOp) issued on June 15, 2010, NMFS 

concluded that the Navy’s activities in 

the NWTRC and NMFS’ issuance of 

these regulations are not likely to 

jeopardize the continued existence of 

threatened or endangered species or 

destroy or adversely modify any 

designated critical habitat. 

NMFS (the Endangered Species 

Division) will also issue BiOps and 

associated incidental take statements 

(ITSs) to NMFS (the Permits, 

Conservation, and Recreation Division) 

to exempt the take (under the ESA) that 

NMFS authorizes in annual LOAs under 

the MMPA. Because of the difference 

between the statutes, it is possible that 

ESA analysis of the applicant’s action 

could produce a take estimate that is 

different than the takes requested by the 

applicant (and analyzed for 

authorization by NMFS under the 

MMPA process), despite the fact that the 

same proposed action (i.e. number of 

sonar hours and explosive detonations) 

was being analyzed under each statute. 

When this occurs, NMFS staff 

coordinate to ensure that the 

appropriate number of takes are 

authorized. For the Navy’s proposed 

NWTRC training, coordination with the 

Endangered Species Division indicates 

that they will likely allow for a lower 

level of take of ESA-listed marine 

mammals than were requested by the 

applicant (because NMFS’ ESA analysis 

indicates that fewer will be taken than 

estimated by the applicant). Therefore, 

the number of authorized takes in 

NMFS’ LOA(s) will reflect the lower 

take numbers from the ESA 

consultation, though the specified 

activities (i.e., number of sonar hours, 

etc.) will remain the same. Alternately, 

these regulations indicate the maximum 

number of takes that may be authorized 

under the MMPA. The ITS(s) issued for 

each LOA will contain implementing 

terms and conditions to minimize the 

effect of the marine mammal take 

authorized through the 2010 LOA (and 

subsequent LOAs in 2011, 2012, 2013, 

and 2014). With respect to listed marine 

mammals, the terms and conditions of 

the ITSs will be incorporated into the 

LOAs. 

NEPA 

NMFS has participated as a 

cooperating agency on the Navy’s Draft 

Environmental Impact Statement (DEIS) 

for the NWTRC, which was published 

on December 29, 2008. A Notice of 

Availability for the FEIS was published 

on September 10, 2010. NMFS 

subsequently adopted the Navy’s EIS for 

the purpose of complying with the 

MMPA. 

Classification 

This action does not contain any 

collection of information requirements 

for purposes of the Paperwork 

Reduction Act. 

The Office of Management and Budget 

has determined that this final rule is not 

significant for purposes of Executive 

Order 12866. 

Pursuant to the Regulatory Flexibility 

Act, the Chief Counsel for Regulation of 

the Department of Commerce has 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that this final rule, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The 

Regulatory Flexibility Act requires 

Federal agencies to prepare an analysis 

of a rule’s impact on small entities 


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whenever the agency is required to 

publish a notice of proposed 

rulemaking. However, a Federal agency 

may certify, pursuant to 5 U.S.C. 605 

(b), that the action will not have a 

significant economic impact on a 

substantial number of small entities. 

The Navy is the sole entity that will be 

affected by this rulemaking, not a small 

governmental jurisdiction, small 

organization or small business, as 

defined by the Regulatory Flexibility 

Act (RFA). Any requirements imposed 

by a Letter of Authorization issued 

pursuant to these regulations, and any 

monitoring or reporting requirements 

imposed by these regulations, will be 

applicable only to the Navy. NMFS does 

not expect the issuance of these 

regulations or the associated LOAs to 

result in any impacts to small entities 

pursuant to the RFA. Because this 

action, if adopted, would directly affect 

the Navy and not a small entity, this 

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. Navy, as the authorized entity, has 

informed NMFS that any delay of 

enacting the final rule would result in 

either: (1) A suspension of ongoing or 

planned naval training, which would 

disrupt vital training essential to 

national security; or (2) the Navy’s 

procedural non-compliance with the 

MMPA (should the Navy conduct 

training without an LOA), thereby 

resulting in the potential for 

unauthorized takes of marine mammals. 

Moreover, the Navy is ready to 

implement the rule immediately. 

Therefore, these measures will become 

effective upon publication. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Navy, Penalties, Reporting 

and recordkeeping requirements, 

Seafood, Sonar, Transportation. 

Dated: October 25, 2010. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ For reasons set forth in the preamble, 

50 CFR part 218 is amended as follows: 

PART 218—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 218 

continues to read as follows: 

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

■ 2. Subpart M is added to part 218 to 

read as follows: 

Subpart M—Taking and Importing Marine 

Mammals; U.S. Navy’s Northwest Training 

Range Complex (NWTRC) 

Sec. 

218.110 Specified activity and specified 

geographical area. 

218.111 Effective dates. 

218.112 Permissible methods of taking. 

218.113 Prohibitions. 

218.114 Mitigation. 

218.115 Requirements for monitoring and 

reporting. 

218.116 Applications for Letters of 

Authorization. 

218.117 Letters of Authorization. 

218.118 Renewal of Letters of 

Authorization and adaptive 

management. 

218.119 Modifications to Letters of 

Authorization. 

Subpart M—Taking and Importing 

Marine Mammals; U.S. Navy’s 

Northwest Training Range Complex 

(NWTRC) 

§ 218.110 Specified activity and specified 

geographical area. 

(a) Regulations in this subpart apply 

only to the U.S. Navy for the taking of 

marine mammals that occurs in the area 

outlined in paragraph (b) of this section 

and that occur incidental to the 

activities described in paragraph (c) of 

this section. 

(b) The taking of marine mammals by 

the Navy is only authorized if it occurs 

within the Offshore area of the 

Northwest Training Range Complex 

(NWTRC) (as depicted in Figure ES–1 in 

the Navy’s Draft Environmental Impact 

Statement for NWTRC), which is 

bounded by 48°30′ N. lat.; 130°00′ W. 

long.; 40°00′ N. lat.; and on the east by 

124°00′ W. long or by the shoreline 

where the shoreline extends west of 

124°00′ W. long (excluding the Strait of 

Juan de Fuca (east of 124°40′ W. long), 

which is not included in the Offshore 

area). 

(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 midfrequency active sonar (MFAS) sources, 

high frequency active sonar (HFAS) 

sources for U.S. Navy anti-submarine 

warfare (ASW) and mine warfare (MIW) 

training, in the amounts indicated 

below: 

(i) AN/SQS–53 (hull-mounted active 

sonar)—up to 215 hours over the course 

of 5 years (an average of 43 hours per 

year); 

(ii) AN/SQS–56 (hull-mounted active 

sonar)—up to 325 hours over the course 

of 5 years (an average of 65 hours per 

year); 

(iii) SSQ–62 (Directional Command 

Activated Sonobuoy System (DICASS) 

sonobuoys)—up to 4430 sonobuoys over 

the course of 5 years (an average of 886 

sonobuoys per year) 

(iv) MK–48 (heavyweight 

torpedoes)—up to 10 torpedoes over the 

course of 5 years (an average of 2 

torpedoes per year); 

(v) AN/BQS–15 (mine detection and 

submarine navigational sonar)—up to 

210 hours over the course of 5 years (an 

average of 42 hours per year); 

(vi) AN/SSQ–125 (AEER)—up to 745 

buoys deployed over the course of 5 

years (total combined with the AN/ 

SSQ–110A (IEER)) (an average of 149 

per year); 

(vii) Range Pingers—up to 900 hours 

over the course of 5 years (an average of 

180 hours per year); and 

(viii) PUTR Uplink—up to 750 hours 

over the course of 5 years (an average of 

150 hours per year). 

(2) The detonation of the underwater 

explosives indicated in paragraph 

(c)(2)(i) conducted as part of the training 

events indicated in paragraph (c)(2)(ii): 

(i) Underwater Explosives: 

(A) 5′′ Naval Gunfire (9.5 lbs); 

(B) 76 mm rounds (1.6 lbs); 

(C) Maverick (78.5 lbs); 

(D) Harpoon (448 lbs); 

(E) MK–82 (238 lbs); 

(F) MK–48 (851 lbs); 

(G) Demolition Charges (2.5 lbs); 

(H) AN/SSQ–110A (IEER explosive 

sonobuoy—5 lbs); 

(I) HARM; 

(J) Hellfire; 

(K) SLAM; and 

(L) GBU 10, 12, and 16. 

(ii) Training Events: 

(A) Surface-to-surface Gunnery 

Exercises (S–S GUNEX)—up to 1700 

exercises over the course of 5 years (an 

average of 340 per year). 

(B) Bombing Exercises (BOMBEX)— 

up to 150 exercises over the course of 

5 years (an average of 30 per year). 

(C) Sinking Exercises (SINKEX)—up 

to 10 exercises over the course of 5 years 

(an average of 2 per year). 

(D) Extended Echo Ranging and 

Improved Extended Echo Ranging (EER/ 

IEER) Systems—up to 60 exercises (total 

combined with the AN/SSQ–125A 

(AEER)) over the course of 5 years (an 

average of 12 per year). 

(3) The taking of marine mammals 

may also be authorized in an LOA for 


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the activities and sources listed in 

§ 218.110(c)(1) should the amounts (i.e., 

hours, dips, number of exercises) vary 

from those estimated in § 218.110(c)(2), 

provided that the variation does not 

result in exceeding the amount of take 

indicated in § 218.112(c). 

§ 218.111 Effective dates. 

Regulations are effective November 9, 

2010 through November 9, 2015. 

§ 218.112 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 and 

218.117 of this chapter, the Holder of 

the Letter of Authorization (hereinafter 

‘‘Navy’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in 

§ 218.110(b), provided the activity is in 

compliance with all terms, conditions, 

and requirements of these regulations 

and the appropriate Letter of 

Authorization. 

(b) [Reserved] 

(c) The incidental take of marine 

mammals under the activities identified 

in § 218.110(c) is limited to the species 

listed in paragraphs (c)(4) and (5) of this 

section by the indicated method of take 

and the indicated number of times 

(estimated based on the authorized 

amounts of sound source operation), but 

with the following allowances for 

annual variation in sonar activities: 

(1) In any given year, annual take, by 

harassment, of any species of marine 

mammal may not exceed the amount 

indentified in paragraph (c)(4) and (5) of 

this section, for that species by more 

than 25 percent (a post-calculation/ 

estimation of which must be provided 

in the annual LOA application); 

(2) In any given year, annual take by 

harassment of all marine mammal 

species combined may not exceed the 

estimated total of all species combined, 

indicated in paragraphs (c)(4) and (5), 

by more than 10 percent; and 

(3) Over the course of the effective 

period of this subpart, total take, by 

harassment, of any species may not 

exceed the 5-year amounts indicated in 

paragraphs (c)(4) and (5) by more than 

10 percent. A running calculation/ 

estimation of takes of each species over 

the course of the years covered by the 

rule must be maintained. 

(4) Level B Harassment: 

(i) Mysticetes: 

(A) Humpback whale (Megaptera 

novaeangliae)—75 (an average of 15 

annually); 

(B) Fin whale (Balaenoptera 

physalus)—720 (an average of 144 

annually); 

(C) Blue whale (Balaenoptera 

musculus)—95 (an average of 19 

annually); 

(D) Sei whale (Balaenoptera 

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

(E) Minke whale (Balaenoptera 

acutorostrata)—45 (an average of 9 

annually); and 

(F) Gray whale (Eschrichtius 

robustus)—20 (an average of 4 

annually). 

(ii) Odontocetes: 

(A) Sperm whales (Physeter 

macrocephalus)—635 (an average of 127 

annually); 

(B) Killer whale (Orcinus orca)—70 

(an average of 14 annually); 

(C) Pygmy or dwarf sperm whales 

(Kogia breviceps or Kogia sima)—20 (an 

average of 4 annually); 

(D) Mesoplodont beaked whales—75 

(an average of 15 annually); 

(E) Cuvier’s beaked whales (Ziphius 

cavirostris)—70 (an average of 14 

annually); 

(F) Baird’s beaked whales (Berardius 

bairdii)—65 (an average of 13 annually); 

(G) Short-finned pilot whale 

(Globicephala macrorynchus)—10 (an 

average of 2 annually); 

(H) Striped dolphin (Stenella 

coeruleoalba)—200 (an average of 40 

annually); 

(I) Short-beaked common dolphin 

(Globicephala macrorhynchus)—6280 

(an average of 1256 annually); 

(J) Risso’s dolphin (Grampus 

griseus)—500 (an average of 100 

annually); 

(K) Northern right whale dolphin 

(Lissodelphis borealis)—3705 (an 

average of 741 annually); 

(L) Pacific white-sided dolphin 

(Lagenorhynchus obliquidens)—2855 

(an average of 571 annually); 

(M) Dall’s porpoise (Phocoenoides 

dalli)—23760 (an average of 4752 

annually); and 

(N) Harbor Porpoise (Phocoena 

phocoena)—596370 (an average of 

119274 annually). 

(ii) Pinnipeds: 

(A) Northern elephant seal (Mirounga 

angustirostris)—1890 (an average of 378 

annually); 

(B) Pacific harbor seal (Phoca 

vitulina)—2930 (an average of 586 

annually); 

(C) California sea lion (Zalophus 

californianus)—1430 (an average of 286 

annually); 

(D) Northern fur seal (Callorhinus 

ursinus)—6825 (an average of 1365 

annually); and 

(E) Steller sea lion (Eumetopias 

jubatus)—600 (an average of 120 

annually). 

(5) Level A Harassment: 

(i) Fin whale—5 (an average of 1 

annually); 

(ii) Sperm whale—5 (an average of 1 

annually); 

(iii) Dall’s Porpoise—15 (an average of 

3 annually); 

(iv) Harbor Porpoise—5 (an average of 

1 annually); 

(v) Northern right whale dolphin—5 

(an average of 1 annually); 

(vi) Short-beaked common dolphin— 

10 (an average of 2 annually); 

(vii) Northern elephant seal—10 (an 

average of 2 annually); 

(viii) Pacific harbor seal—5 (an 

average of 1 annually); and 

(ix) Northern fur seal—5 (an average 

of 1 annually). 

§ 218.113 Prohibitions. 

No person in connection with the 

activities described in § 218.110 may: 

(a) Take any marine mammal not 

specified in § 218.112(c); 

(b) Take any marine mammal 

specified in § 218.112(c) other than by 

incidental take as specified in 

§§ 218.112(c)(1) and (c)(2); 

(c) Take a marine mammal specified 

in § 218.112(c) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 

(d) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

these regulations or a Letter of 

Authorization issued under §§ 216.106 

and 218.117 of this chapter. 

§ 218.114 Mitigation. 

(a) When conducting training and 

utilizing the sound sources or 

explosives identified in § 218.110(c), the 

mitigation measures contained in the 

Letter of Authorization issued under 

§§ 216.106 and 218.117 of this chapter 

must be implemented. These mitigation 

measures include, but are not limited to: 

(1) Navy’s General Maritime Measures 

for All Training at Sea: 

(i) Personnel Training (for all Training 

Types): 

(A) All commanding officers (COs), 

executive officers (XOs), lookouts, 

Officers of the Deck (OODs), junior 

OODs (JOODs), maritime patrol aircraft 

aircrews, and Anti-submarine Warfare 

(ASW)/Mine Warfare (MIW) helicopter 

crews shall complete the NMFSapproved Marine Species Awareness 

Training (MSAT) by viewing the U.S. 

Navy MSAT digital versatile disk (DVD). 

All bridge lookouts shall complete both 

parts one and two of the MSAT; part 

two is optional for other personnel. 

(B) Navy lookouts shall undertake 

extensive training in order to qualify as 

a watchstander in accordance with the 

Lookout Training Handbook (Naval 

Education and Training Command 

[NAVEDTRA] 12968–D) available at 

https://portal.navfac.navy.mil/go/

navytraining-env-docs. 


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(C) Lookout training shall include onthe-job instruction under the 

supervision of a qualified, experienced 

lookout. Following successful 

completion of this supervised training 

period, lookouts shall complete the 

Personal Qualification Standard 

Program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). Personnel being 

trained as lookouts can be counted 

among required lookouts as long as 

supervisors monitor their progress and 

performance. 

(D) Lookouts shall be trained in the 

most effective means to ensure quick 

and effective communication within the 

command structure in order to facilitate 

implementation of protective measures 

if marine species are spotted. 

(ii) Operating Procedures and 

Collision Avoidance: 

(A) Prior to major exercises, a Letter 

of Instruction, Mitigation Measures 

Message or Environmental Annex to the 

Operational Order shall be issued to 

further disseminate the personnel 

training requirement and general marine 

species protective measures. 

(B) COs 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 ship. 

(C) While underway, surface vessels 

shall have at least two lookouts with 

binoculars; surfaced submarines shall 

have at least one lookout with 

binoculars. Lookouts already posted for 

safety of navigation and man-overboard 

precautions may be used to fill this 

requirement. As part of their regular 

duties, lookouts will watch for and 

report to the OOD the presence of 

marine mammals. 

(D) On surface vessels equipped with 

a multi-function active sensor, pedestal 

mounted ‘‘Big Eye’’ (20x110) binoculars 

shall be properly installed and in good 

working order to assist in the detection 

of marine mammals in the vicinity of 

the vessel. 

(E) Personnel on lookout shall employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(F) After sunset and prior to sunrise, 

lookouts shall employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook. 

(NAVEDTRA 12968–D). 

(G) While in transit, naval vessels 

shall be alert at all times, use extreme 

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

(H) When marine mammals have been 

sighted in the area, Navy vessels shall 

increase vigilance and take reasonable 

and practicable actions to avoid 

collisions and activities that might 

result in close interaction of naval assets 

and marine mammals. Actions may 

include changing speed and/or direction 

and are dictated by environmental and 

other conditions (e.g., safety, weather). 

(I) Naval vessels shall maneuver to 

keep at least 1,500 ft (500 yds) away 

from any observed whale in the vessel’s 

path and avoid approaching whales 

head-on. These requirements do not 

apply if a vessel’s safety is threatened, 

such as when change of course will 

create an imminent and serious threat to 

a person, vessel, or aircraft, and to the 

extent vessels are restricted in their 

ability to maneuver. Restricted 

maneuverability includes, but is not 

limited to, situations when vessels are 

engaged in dredging, submerged 

activities, launching and recovering 

aircraft or landing craft, minesweeping 

activities, replenishment while 

underway and towing activities that 

severely restrict a vessel’s ability to 

deviate course. Vessels will take 

reasonable steps to alert other vessels in 

the vicinity of the whale. Given rapid 

swimming speeds and maneuverability 

of many dolphin species, naval vessels 

would maintain normal course and 

speed on sighting dolphins unless some 

condition indicated a need for the vessel 

to maneuver. 

(J) Navy aircraft participating in 

exercises at sea shall conduct and 

maintain, when operationally feasible 

and safe, surveillance for marine 

mammals as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties. Marine mammal detections shall 

be immediately reported to assigned 

Aircraft Control Unit for further 

dissemination to ships in the vicinity of 

the marine species as appropriate when 

it is reasonable to conclude that the 

course of the ship will likely result in 

a closing of the distance to the detected 

marine mammal. 

(K) All vessels shall maintain logs and 

records documenting training 

operations should they be required for 

event reconstruction purposes. Logs and 

records will be kept for a period of 30 

days following completion of a major 

training exercise. 

(2) Navy’s Measures for MFAS 

Operations: 

(i) Personnel Training (for MFAS 

Operations): 

(A) All lookouts onboard platforms 

involved in ASW training events shall 

review the NMFS-approved Marine 

Species Awareness Training material 

prior to use of mid-frequency active 

sonar. 

(B) All COs, XOs, and officers 

standing watch on the bridge shall have 

reviewed the Marine Species Awareness 

Training material prior to a training 

event employing the use of midfrequency active sonar. 

(C) Navy lookouts shall undertake 

extensive training in order to qualify as 

a watchstander in accordance with the 

Lookout Training Handbook (Naval 

Educational Training [NAVEDTRA], 

12968–D). 

(D) Lookout training shall include onthe-job instruction under the 

supervision of a qualified, experienced 

watchstander. Following successful 

completion of this supervised training 

period, lookouts shall complete the 

Personal Qualification Standard 

program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). This does not forbid 

personnel being trained as lookouts 

from being counted as those listed in 

previous measures so long as 

supervisors monitor their progress and 

performance. 

(E) Lookouts shall be trained in the 

most effective means to ensure quick 

and effective communication within the 

command structure in order to facilitate 

implementation of mitigation measures 

if marine species are spotted. 

(ii) Lookout and Watchstander 

Responsibilities: 

(A) On the bridge of surface ships, 

there shall always be at least three 

people on watch whose duties include 

observing the water surface around the 

vessel. 

(B) All surface ships participating in 

ASW training events shall, in addition 

to the three personnel on watch noted 

previously, have at all times during the 

exercise at least two additional 

personnel on watch as marine mammal 

lookouts. 

(C) Personnel on lookout and officers 

on watch on the bridge shall have at 

least one set of binoculars available for 

each person to aid in the detection of 

marine mammals. 

(D) On surface vessels equipped with 

mid-frequency active sonar, pedestal 

mounted ‘‘Big Eye’’ (20x110) binoculars 

shall be present and in good working 

order to assist in the detection of marine 

mammals in the vicinity of the vessel. 

(E) Personnel on lookout shall employ 

visual search procedures employing a 

scanning methodology in accordance 


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69322 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(F) After sunset and prior to sunrise, 

lookouts shall employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook. 

(G) Personnel on lookout shall be 

responsible for reporting all objects or 

anomalies sighted in the water 

(regardless of the distance from the 

vessel) to the Officer of the Deck, since 

any object or disturbance (e.g., trash, 

periscope, surface disturbance, 

discoloration) in the water may be 

indicative of a threat to the vessel and 

its crew or indicative of a marine 

species that may need to be avoided as 

warranted. 

(iii) Operating Procedures (for MFAS 

Operations): 

(A) Navy will distribute final 

mitigation measures contained in the 

LOA and the Incidental take statement 

of NMFS’ biological opinion to the 

Fleet. 

(B) COs 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 ship. 

(C) All personnel engaged in passive 

acoustic sonar operation (including 

aircraft, surface ships, or submarines) 

shall monitor for marine mammal 

vocalizations and report the detection of 

any marine mammal to the appropriate 

watch station for dissemination and 

appropriate action. 

(D) During mid-frequency active sonar 

operations, personnel shall utilize all 

available sensor and optical systems 

(such as night vision goggles) to aid in 

the detection of marine mammals. 

(E) Navy aircraft participating in 

exercises at sea shall conduct and 

maintain, when operationally feasible 

and safe, surveillance for marine species 

of concern as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties. 

(F) Aircraft with deployed sonobuoys 

shall use only the passive capability of 

sonobuoys when marine mammals are 

detected within 200 yds (183 m) of the 

sonobuoy. 

(G) Marine mammal detections shall 

be immediately reported to assigned 

Aircraft Control Unit for further 

dissemination to ships in the vicinity of 

the marine species as appropriate where 

it is reasonable to conclude that the 

course of the ship will likely result in 

a closing of the distance to the detected 

marine mammal. 

(H) Safety Zones—When marine 

mammals are detected by any means 

(aircraft, shipboard lookout, or 

acoustically) the Navy shall ensure that 

sonar transmission levels are limited to 

at least 6 dB below normal operating 

levels if any detected marine mammals 

are within 1,000 yards (914 m) of the 

sonar dome (the bow). 

(1) Ships and submarines shall 

continue to limit maximum 

transmission levels by this 6-dB factor 

until the animal has been seen to leave 

the 1,000-yd safety zone, has not been 

detected for 30 minutes, or the vessel 

has transited more than 2,000 yds (1829 

m) beyond the location of the last 

detection. 

(2). When marine mammals are 

detected by any means (aircraft, 

shipboard lookout, or acoustically) the 

Navy shall ensure that sonar 

transmission levels are limited to at 

least 10 dB below normal operating 

levels if any detected marine mammals 

are within 500 yards (497 m) of the 

sonar dome (the bow). Ships and 

submarines shall continue to limit 

maximum ping levels by this 10-dB 

factor until the animal has been seen to 

leave the 500-yd safety zone, has not 

been detected for 30 minutes, or the 

vessel has transited more than 2,000 yds 

(1829 m) beyond the location of the last 

detection. 

(3). When marine mammals are 

detected by any means (aircraft, 

shipboard lookout, or acoustically) the 

Navy shall ensure that sonar 

transmission ceases if any detected 

marine mammals are within 200 yards 

(183 m) of the sonar dome (the bow). 

Sonar shall not resume until the animal 

has been seen to leave the the 200-yd 

safety zone, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yds (1829 m) beyond 

the location of the last detection. 

(4) Special conditions applicable for 

dolphins and porpoises only: If, after 

conducting an initial maneuver to avoid 

close quarters with dolphins or 

porpoises, the OOD concludes that 

dolphins or porpoises are deliberately 

closing to ride the vessel’s bow wave, no 

further mitigation actions are necessary 

while the dolphins or porpoises 

continue to exhibit bow wave riding 

behavior. 

(5) If the need for power-down should 

arise as detailed in ‘‘Safety Zones’’ 

above, the Navy shall follow the 

requirements as though they were 

operating at 235 dB—the normal 

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

what level above 235 dB active sonar 

was being operated). 

(I) 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. 

(J) Active sonar levels (generally)— 

Navy shall operate active sonar at the 

lowest practicable level, not to exceed 

235 dB, except as required to meet 

tactical training objectives. 

(K) Helicopters shall observe/survey 

the vicinity of an ASW training event 

for 10 minutes before the first 

deployment of active (dipping) sonar in 

the water. 

(L) Helicopters shall not dip their 

active sonar within 200 yds (183 m) of 

a marine mammal and shall cease 

pinging if a marine mammal closes 

within 200 yds of the sound source (183 

m) after pinging has begun. 

(M) Submarine sonar operators shall 

review detection indicators of closeaboard marine mammals prior to the 

commencement of ASW training events 

involving active mid-frequency sonar. 

(N) Night vision goggles shall be 

available to all ships and air crews, for 

use as appropriate. 

(3) Navy’s Measures for Underwater 

Detonations: 

(i) Surface-to-Surface Gunnery (nonexplosive rounds) 

(A) A 200-yd (183 m) radius buffer 

zone shall be established around the 

intended target. 

(B) From the intended firing position, 

trained lookouts shall survey the buffer 

zone for marine mammals prior to 

commencement and during the exercise 

as long as practicable. 

(C) If applicable, target towing vessels 

shall maintain a lookout. If a marine 

mammal is sighted in the vicinity of the 

exercise, the tow vessel shall 

immediately notify the firing vessel in 

order to secure gunnery firing until the 

area is clear. 

(D) The exercise shall be conducted 

only when the buffer zone is visible and 

marine mammals are not detected 

within the target area and the buffer 

zone. 

(ii) Surface-to-Air Gunnery (explosive 

and non-explosive rounds) 

(A) Vessels shall orient the geometry 

of gunnery exercises in order to prevent 

debris from falling in the area of sighted 

marine mammals. 

(B) Vessels will attempt to recover any 

parachute deploying aerial targets to the 

extent practicable (and their parachutes 

if feasible) to reduce the potential for 

entanglement of marine mammals. 

(C) For exercises using targets towed 

by a vessel or aircraft, target towing 

vessel/aircraft shall maintain a lookout. 

If a marine mammal is sighted in the 

vicinity of the exercise, the tow aircraft 

shall immediately notify the firing 

vessel in order to secure gunnery firing 

until the area is clear. 

(iii) Air-to-Surface At-sea Bombing 

Exercises (explosive and non-explosive): 


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(A) If surface vessels are involved, 

trained lookouts shall survey for floating 

kelp and marine mammals. Ordnance 

shall not be targeted to impact within 

1,000 yds (914 m) of known or observed 

floating kelp or marine mammals. 

(B) A 1,000 yd (914 m) radius buffer 

zone shall be established around the 

intended target. 

(C) Aircraft shall visually survey the 

target and buffer zone for marine 

mammals prior to and during the 

exercise. The survey of the impact area 

shall be made by flying at 1,500 ft (457 

m) or lower, if safe to do so, and at the 

slowest safe speed. Release of ordnance 

through cloud cover is prohibited: 

aircraft must be able to actually see 

ordnance impact areas. Survey aircraft 

should employ most effective search 

tactics and capabilities. 

(D) The exercise will be conducted 

only if marine mammals are not visible 

within the buffer zone. 

(iv) Air-to-Surface Missile Exercises 

(explosive and non-explosive): 

(A) Ordnance shall not be targeted to 

impact within 1,800 yds (1646 m) of 

known or observed floating kelp. 

(B) Aircraft shall visually survey the 

target area for marine mammals. Visual 

inspection of the target area shall be 

made by flying at 1,500 ft (457 m) or 

lower, if safe to do so, and at slowest 

safe speed. Firing or range clearance 

aircraft must be able to actually see 

ordnance impact areas. Explosive 

ordnance shall not be targeted to impact 

within 1,800 yds (1646 m) of sighted 

marine mammals. 

(v) Demolitions, Mine Warfare, and 

Mine Countermeasures (up to a 2.5-lb 

charge): 

(A) Exclusion Zones—All Mine 

Warfare and Mine Countermeasures 

Operations involving the use of 

explosive charges must include 

exclusion zones for marine mammals to 

prevent physical and/or acoustic effects 

to those species. These exclusion zones 

shall extend in a 700-yard arc radius 

around the detonation site. 

(B) Pre-Exercise Surveys—For 

Demolition and Ship Mine 

Countermeasures Operations, preexercise surveys shall be conducted 

within 30 minutes prior to the 

commencement of the scheduled 

explosive event. The survey may be 

conducted from the surface, by divers, 

and/or from the air, and personnel shall 

be alert to the presence of any marine 

mammal. Should such an animal be 

present within the survey area, the 

explosive event shall not be started until 

the animal voluntarily leaves the area. 

The Navy will ensure the area is clear 

of marine mammals for a full 30 

minutes prior to initiating the explosive 

event. Personnel will record any marine 

mammal observations during the 

exercise as well as measures taken if 

species are detected within the 

exclusion zone. 

(C) Post-Exercise Surveys—Surveys 

within the same radius shall also be 

conducted within 30 minutes after the 

completion of the explosive event. 

(D) Reporting—If there is evidence 

that a marine mammal may have been 

stranded, injured or killed by the action, 

Navy training activities shall be 

immediately suspended and the 

situation immediately reported by the 

participating unit to the Officer in 

Charge of the Exercise (OCE), who will 

follow Navy procedures for reporting 

the incident to Commander, Pacific 

Fleet, Commander, Navy Region 

Northwest, Environmental Director, and 

the chain-of-command. The situation 

shall also be reported to NMFS (see 

Stranding Plan for details). 

(vi) Sink Exercise: 

(A) All weapons firing shall be 

conducted during the period 1 hour 

after official sunrise to 30 minutes 

before official sunset. 

(B) An exclusion zone with a radius 

of 1.5 nm shall be established around 

each target. This 1.5 nm zone includes 

a buffer of 0.5 nm to account for errors, 

target drift, and animal movement. In 

addition to the 1.5 nm exclusion zone, 

a further safety zone, which extends 

from the exclusion zone at 1.5 nm out 

an additional 0.5 nm, shall be surveyed. 

Together, the zones extend out 2 nm 

(3.7 km) from the target. 

(C) A series of surveillance overflights shall be conducted within the 2- 

nm zone around the target, prior to and 

during the exercise, when feasible. 

Survey protocol shall be as follows: 

(1) Overflights within the 2-nm zone 

around the target shall be conducted in 

a manner that optimizes the surface area 

of the water observed. This may be 

accomplished through the use of the 

Navy’s Search and Rescue Tactical Aid, 

which provides the best search altitude, 

ground speed, and track spacing for the 

discovery of small, possibly dark objects 

in the water based on the environmental 

conditions of the day. These 

environmental conditions include the 

angle of sun inclination, amount of 

daylight, cloud cover, visibility, and sea 

state. 

(2) All visual surveillance activities 

shall be conducted by Navy personnel 

trained in visual surveillance. At least 

one member of the mitigation team is 

required to have completed the Navy’s 

marine mammal training program for 

lookouts. 

(3) In addition to the overflights, the 

2-nm zone around the target shall be 

monitored by passive acoustic means, 

when assets are available. This passive 

acoustic monitoring would be 

maintained throughout the exercise. 

Potential assets include sonobuoys, 

which can be utilized to detect any 

vocalizing marine mammals 

(particularly sperm whales) in the 

vicinity of the exercise. The sonobuoys 

shall be re-seeded as necessary 

throughout the exercise. Additionally, if 

submarines are present, passive sonar 

onboard shall be utilized to detect any 

vocalizing marine mammals in the area. 

The OCE would be informed of any 

aural detection of marine mammals and 

would include this information in the 

determination of when it is safe to 

commence the exercise. 

(4) On each day of the exercise, aerial 

surveillance of the 2-nm zone around 

the target shall commence 2 hours prior 

to the first firing. 

(5) The results of all visual, aerial, and 

acoustic searches shall be reported 

immediately to the OCE. No weapons 

launches or firing may commence until 

the OCE declares the 2-nm zone around 

the target free of marine mammals. 

(6) If a marine mammal observed 

within the 2-nm zone around the target 

is diving, firing would be delayed until 

the animal is re-sighted outside the 

2-nm zone around the target, or 30 

minutes have elapsed. After 30 minutes, 

if the animal has not been re-sighted it 

would be assumed to have left the 

exclusion zone. The OCE would 

determine if the identified marine 

mammal is in danger of being adversely 

affected by commencement of the 

exercise. 

(7) During breaks in the exercise of 30 

minutes or more, the 2-nm zone around 

the target shall again be surveyed for 

any marine mammal. If marine 

mammals are sighted within 2-nm zone 

around the target, the OCE shall be 

notified, and the procedure described in 

(vi)(c)(1)–(6) would be followed. 

(8) Upon sinking of the vessel, a final 

surveillance of the 2-nm zone around 

the target shall be monitored for 2 

hours, or until sunset, to verify that no 

marine mammals were injured. 

(D) Aerial surveillance shall be 

conducted using helicopters or other 

aircraft based on necessity and 

availability. 

(E) Where practicable, the Navy shall 

conduct the exercise in sea states that 

are ideal for marine mammal sighting, 

i.e., Beaufort Sea State 3 or less. In the 

event of a Beaufort Sea State 4 or above, 

survey efforts shall be increased within 

the 2-nm zone around the target. This 

shall be accomplished through the use 

of an additional aircraft, if available, 

and conducting tight search patterns. 


jlentini on DSKJ8SOYB1PROD with RULES2
69324 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 

(F) The sink exercise shall not be 

conducted unless the 2-nm zone around 

the target could be adequately 

monitored visually. 

(G) In the event that any marine 

mammals are observed to be harmed in 

the area, NMFS shall be notified as soon 

as feasible following the stranding 

communication protocol. A detailed 

description of the animal shall be taken, 

the location noted, and if possible, 

photos taken. This information shall be 

provided to NMFS as soon as 

practicable via the Navy’s regional 

environmental coordinator for purposes 

of identification. 

(H) An after action report detailing the 

exercise’s time line, the time the surveys 

commenced and terminated, amount, 

and types of all ordnance expended, and 

the results of survey efforts for each 

event shall be submitted to NMFS. 

(vii) Extended Echo Ranging/ 

Improved Extended Echo Ranging (EER/ 

IEER): 

(A) Crews shall conduct visual 

reconnaissance of the drop area prior to 

laying their intended sonobuoy pattern. 

This search shall be conducted at an 

altitude below 457 m (500 yd) at a slow 

speed, if operationally feasible and 

weather conditions permit. In dual 

aircraft operations, crews are allowed to 

conduct area clearances utilizing more 

than one aircraft. 

(B) For IEER (AN/SSQ–110A), crews 

shall conduct a minimum of 30 minutes 

of visual and aural monitoring of the 

search area prior to commanding the 

first post detonation. This 30-minute 

observation period may include pattern 

deployment time. 

(C) For any part of the intended 

sonobuoy pattern where a post (source/ 

receiver sonobuoy pair) will be 

deployed within 914 m (1,000 yd) of 

observed marine mammal activity, the 

Navy shall deploy the receiver ONLY 

(i.e., not the source) and monitor while 

conducting a visual search. When 

marine mammals are no longer detected 

within 914 m (1,000 yd) of the intended 

post position, the source sonobuoy (AN/ 

SSQ–110A/SSQ–125) will be co-located 

with the receiver. 

(D) When operationally feasible, Navy 

crews shall conduct continuous visual 

and aural monitoring of marine mammal 

activity. This shall include monitoring 

of aircraft sensors from the time of the 

first sensor placement until the aircraft 

have left the area and are out of RF 

range of these sensors. 

(E) Aural Detection—If the presence 

of marine mammals is detected aurally, 

then that shall cue the Navy aircrew to 

increase the vigilance of their visual 

surveillance. Subsequently, if no marine 

mammals are visually detected, then the 

crew may continue multi-static active 

search. 

(F) Visual Detection—If marine 

mammals are visually detected within 

914 m (1,000 yd) of the explosive source 

sonobuoy (AN/SSQ–110A) intended for 

use, then that payload shall not be 

detonated. Aircrews may utilize this 

post once the marine mammals have not 

been re-sighted for 30 minutes, or are 

observed to have moved outside the 914 

m (1,000 yd) safety buffer. Aircrews may 

shift their multi-static active search to 

another post, where marine mammals 

are outside the 914 m (1,000 yd) safety 

buffer. 

(G) For IEER (AN/SSQ–110A), 

aircrews shall make every attempt to 

manually detonate the unexploded 

charges at each post in the pattern prior 

to departing the operations area by 

using the ‘‘Payload 1 Release’’ command 

followed by the ‘‘Payload 2 Release’’ 

command. Aircrews shall refrain from 

using the ‘‘Scuttle’’ command when two 

payloads remain at a given post. 

Aircrews will ensure that a 914 m (1,000 

yd) safety buffer, visually clear of 

marine mammals, is maintained around 

each post as is done during active 

search operations. 

(H) Aircrews shall only leave posts 

with unexploded charges in the event of 

a sonobuoy malfunction, an aircraft 

system malfunction, or when an aircraft 

must immediately depart the area due to 

issues such as fuel constraints, 

inclement weather, or in-flight 

emergencies. In these cases, the 

sonobuoy will self-scuttle using the 

secondary or tertiary method. 

(I) The Navy shall ensure all payloads 

are accounted for. Explosive source 

sonobuoys (AN/SSQ–110A) that cannot 

be scuttled shall be reported as 

unexploded ordnance via voice 

communications while airborne, then 

upon landing via naval message. 

(J) Mammal monitoring shall continue 

until out of own-aircraft sensor range. 

(b) [Reserved] 

§ 218.115 Requirements for monitoring 

and reporting. 

(a) General Notification of Injured or 

Dead Marine Mammals—Navy 

personnel shall ensure that NMFS is 

notified immediately ((see 

Communication Plan) or as soon as 

clearance procedures allow) if an 

injured, stranded, or dead marine 

mammal is found during or shortly 

after, and in the vicinity of, any Navy 

training exercise utilizing MFAS, HFAS, 

or underwater explosive detonations. 

The Navy will provide NMFS with the 

name of species or description of the 

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

(including carcass condition if the 

animal is dead), location, time of first 

discovery, observed behaviors (if alive), 

and photo or video (if available). In the 

event that an injured, stranded, or dead 

marine mammal is found by the Navy 

that is not in the vicinity of, or during 

or shortly after, MFAS, HFAS, or 

underwater explosive detonations, the 

Navy will report the same information 

as listed above as soon as operationally 

feasible and clearance procedures allow. 

(b) General Notification of Ship 

Strike—In the event of a ship strike by 

any Navy vessel, at any time or place, 

the Navy shall do the following: 

(1) Immediately report to NMFS the 

species identification (if known), 

location (lat/long) of the animal (or the 

strike if the animal has disappeared), 

and whether the animal is alive or dead 

(or unknown). 

(2) Report to NMFS as soon as 

operationally feasible the size and 

length of animal, an estimate of the 

injury status (ex., dead, injured but 

alive, injured and moving, unknown, 

etc.), vessel class/type and operational 

status. 

(3) Report to NMFS the vessel length, 

speed, and heading as soon as feasible. 

(4) Provide NMFS a photo or video, if 

equipment is available. 

(c) Event Communication Plan—The 

Navy shall develop a communication 

plan that will include all of the 

communication protocols (phone trees, 

etc.) and associated contact information 

required for NMFS and the Navy to 

carry out the necessary expeditious 

communication required in the event of 

a stranding or ship strike, including as 

described in the proposed notification 

measures above. 

(d) The Navy must conduct all 

monitoring and/or research required 

under the Letter of Authorization, 

including abiding by the annual 

NWTRC Monitoring Plan. (http:// 

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

incidental.htm#applications) 

(e) The Navy shall comply with the 

2009 Integrated Comprehensive 

Monitoring Program (ICMP) Plan and 

continue to improve the program in 

consultation with NMFS. Changes and 

improvements to the program made 

during 2010 (as prescribed in the 2009 

ICMP and otherwise deemed 

appropriate by the Navy and NMFS) 

will be described in an updated 2010 

ICMP and submitted to NMFS by 

October 31, 2010 for review. An 

updated 2010 ICMP will be finalized by 

December 31, 2010. 

(f) Report on Monitoring required in 

paragraph (e) of this section—The Navy 

shall submit a report annually 

describing the implementation and 

results of the monitoring required in 


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Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 69325 

paragraph (d) of this section. The 

required submission date will be 

identified each year in the LOA. The 

Navy will standardize data collection 

methods across ranges to allow for 

comparison in different geographic 

locations. 

(g) Annual NWTRC Report—The Navy 

will submit an Annual NWTRC Report 

every year. The required submission 

date will be identified each year in the 

LOA. This report shall contain the 

subsections and information indicated 

below. 

(1) ASW Summary—This section 

shall include the following information 

as summarized from non-major training 

exercises (unit-level exercises, such as 

TRACKEXs and MIW): 

(i) Total Hours—Total annual hours of 

each type of sonar source (along with 

explanation of how hours are calculated 

for sources typically quantified in 

alternate way (buoys, torpedoes, etc.)) 

(ii) Cumulative Impacts—To the 

extent practicable, the Navy, in 

coordination with NMFS, shall develop 

and implement a method of annually 

reporting non-major training (i.e., ULT) 

utilizing hull-mounted sonar. The report 

shall present an annual (and seasonal, 

where practicable) depiction of nonmajor training exercises geographically 

across NWTRC. The Navy shall include 

(in the NWTRC annual report) a brief 

annual progress update on the status of 

the development of an effective and 

unclassified method to report this 

information until an agreed-upon (with 

NMFS) method has been developed and 

implemented. 

(2) [Reserved] 

(h) Sinking Exercises (SINKEXs)— 

This section shall include the following 

information for each SINKEX completed 

that year: 

(1) Exercise Info: 

(i) Location; 

(ii) Date and time exercise began and 

ended; 

(iii) Total hours of observation by 

watchstanders before, during, and after 

exercise; 

(iv) Total number and types of rounds 

expended/explosives detonated; 

(v) Number and types of passive 

acoustic sources used in exercise; 

(vi) Total hours of passive acoustic 

search time; 

(vii) Number and types of vessels, 

aircraft, etc., participating in exercise; 

(viii) Wave height in feet (high, low 

and average during exercise); and 

(ix) Narrative description of sensors 

and platforms utilized for marine 

mammal detection and timeline 

illustrating how marine mammal 

detection was conducted. 

(2) Individual marine mammal 

observation during SINKEX (by Navy 

lookouts) information: 

(i) Location of sighting; 

(ii) Species (if not possible— 

indication of whale/dolphin/pinniped); 

(iii) Number of individuals; 

(iv) Calves observed (y/n); 

(v) Initial detection sensor; 

(vi) Length of time observers 

maintained visual contact with marine 

mammal; 

(vii) Wave height; 

(viii) Visibility; 

(ix) Whether sighting was before, 

during, or after detonations/exercise, 

and how many minutes before or after; 

(x) Distance of marine mammal from 

actual detonations (or target spot if not 

yet detonated)—use four categories to 

define distance: 

(A) the modeled injury threshold 

radius for the largest explosive used in 

that exercise type in that OPAREA (662 

m for SINKEX in NWTRC); 

(B) the required exclusion zone (1 nm 

for SINKEX in NWTRC); 

(C) the required observation distance 

(if different than the exclusion zone (2 

nm for SINKEX in NWTRC)); and 

(D) greater than the required observed 

distance. For example, in this case, the 

observer would indicate if < 662 m, from 

738 m–1 nm, from 1 nm–2 nm, and 

> 2 nm. 

(xi) Observed behavior— 

Watchstanders will 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.), including speed and 

direction. 

(xii) Resulting mitigation 

implementation—Indicate whether 

explosive detonations were delayed, 

ceased, modified, or not modified due to 

marine mammal presence and for how 

long. 

(xiii) If observation occurs while 

explosives are detonating in the water, 

indicate munitions type in use at time 

of marine mammal detection. 

(i) Improved Extended Echo-Ranging 

System (IEER) Summary 

(1) Total number of IEER events 

conducted in NWTRC; 

(2) Total expended/detonated rounds 

(buoys); and 

(3) Total number of self-scuttled IEER 

rounds. 

(j) Explosives Summary—The Navy is 

in the process of improving the methods 

used to track explosive use to provide 

increased granularity. To the extent 

practicable, the Navy shall provide the 

information described below for all of 

their explosive exercises. Until the Navy 

is able to report in full the information 

below, they will provide an annual 

update on the Navy’s explosive tracking 

methods, including improvements from 

the previous year. 

(k) Total annual number of each type 

of explosive exercise (of those identified 

as part of the ‘‘specified activity’’ in this 

final rule) conducted in NWTRC; and 

(2) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

(l) NWTRC 5-Yr Comprehensive 

Report—The Navy shall submit to 

NMFS a draft report that analyzes and 

summarizes all of the multi-year marine 

mammal information gathered during 

ASW and explosive exercises for which 

annual reports are required (Annual 

NWTRC Exercise Reports and NWTRC 

Monitoring Plan Reports). This report 

will be submitted at the end of the 

fourth year of the rule (July 2014), 

covering activities that have occurred 

through February 1, 2014. 

(m) Comprehensive National ASW 

Report—By June, 2014, the Navy shall 

submit a draft National Report that 

analyzes, compares, and summarizes the 

active sonar data gathered (through 

January 1, 2014) from the watchstanders 

and pursuant to the implementation of 

the Monitoring Plans for the Northwest 

Training Range Complex, the Southern 

California Range Complex, the Atlantic 

Fleet Active Sonar Training, the Hawaii 

Range Complex, the Marianas Islands 

Range Complex, and the Gulf of Alaska. 

(n) The Navy shall respond to NMFS 

comments and requests for additional 

information or clarification on the 

NWTRC Comprehensive Report, the 

Comprehensive National ASW report, 

the Annual NWTRC Exercise Report, or 

the Annual NWTRC Monitoring Plan 

Report (or the multi-Range Complex 

Annual Monitoring Plan Report, if that 

is how the Navy chooses to submit the 

information) if submitted within 3 

months of receipt. These reports 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. 

(o) 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. 


jlentini on DSKJ8SOYB1PROD with RULES2
69326 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 

§ 218.116 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations, the U.S. 

Citizen (as defined by § 216.103) 

conducting the activity identified in 

§ 218.110(c) (i.e., the Navy) must apply 

for and obtain either an initial Letter of 

Authorization in accordance with 

§ 218.117 or a renewal under § 218.118. 

§ 218.117 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 218.118. 

(b) Each Letter of Authorization shall 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

subsistence uses (i.e., mitigation); and 

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization shall be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 218.118 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 218.117 of this 

chapter for the activity identified in 

§ 218.110(c) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.116 will be 

undertaken and that there will not be a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming 12 months; 

(2) Receipt of the monitoring reports 

and notifications within the timeframes 

indicated in the previous LOA; and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.114 and 

the Letter of Authorization issued under 

§§ 216.106 and 218.117 of this chapter, 

were undertaken and will be undertaken 

during the upcoming annual period of 

validity of a renewed Letter of 

Authorization. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 216.118 indicates that a 

substantial modification, as determined 

by NMFS, 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. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) Adaptive Management—NMFS 

may modify or augment the existing 

mitigation or monitoring measures (after 

consulting with the Navy regarding the 

practicability of the modifications) if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goals of mitigation and monitoring set 

forth in the preamble of these 

regulations. Below are some of the 

possible sources of new data that could 

contribute to the decision to modify the 

mitigation or monitoring measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from the NWTRC Study Area or 

other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011. 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the Integrated 

Comprehensive Monitoring Plan). 

(4) Results from specific stranding 

investigations (either from the NWTRC 

Study Area or other locations, and 

involving coincident MFAS/HFAS or 

explosives training or not involving 

coincident use). 

(5) Results from the Long Term 

Prospective Study described in the 

preamble to these regulations. 

(6) Results from general marine 

mammal and sound research (funded by 

the Navy or otherwise). 

(7) Any information which reveals 

that marine mammals may have been 

taken in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

§ 218.119 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS, issued 

pursuant to §§ 216.106 and 218.117 of 

this chapter and subject to the 

provisions of this subpart, shall be made 

until after notification and an 

opportunity for public comment has 

been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 218.118, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the wellbeing of the species or stocks of marine 

mammals specified in § 218.112(c), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 218.117 of this 

chapter may be substantively modified 

without prior notification and an 

opportunity for public comment. 

Notification will be published in the 

Federal Register within 30 days 

subsequent to the action. 

[FR Doc. 2010–27540 Filed 11–9–10; 8:45 am] 

BILLING CODE 3510–22–P 


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