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DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 080724897–81621–02] 

RIN 0648–AW90 

Taking and Importing Marine 

Mammals; U.S. Navy’s Atlantic Fleet 

Active Sonar Training (AFAST) 

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 off the U.S. 

Atlantic Coast and in the Gulf of Mexico 

for the period of January 2009 through 

January 2014. 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 affecting the least practicable 

adverse impact on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective January 22, 2009 

through January 22, 2014. 

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: Extensive 

Supplementary Information was 

provided in the proposed rule for this 

activity, which was published in the 

Federal Register on Tuesday, October 

14, 2008 (73 FR 60754). This 

information will not be reprinted here 

in its entirety; rather, all sections from 

the proposed rule will be represented 

herein and will contain either a 

summary of the material presented in 

the proposed rule or a note referencing 

the page(s) in the proposed rule where 

the information may be found. Any 

information that has changed since the 

proposed rule was published will be 

addressed herein. Additionally, this 

final rule contains a section that 

responds to the comments received 

during the public comment period. 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce (Secretary) 

to allow, upon request, the incidental, 

but not intentional taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) during periods of 

not more than five consecutive years 

each if certain findings are made and 

regulations are issued or, if the taking is 

limited to harassment and of no more 

than 1 year, the Secretary shall issue a 

notice of proposed authorization for 

public review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and if the permissible methods of taking 

and requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. 

NMFS has defined ‘‘negligible 

impact’’ in 50 CFR 216.103 as: 

An impact resulting from the specified 

activity that cannot be reasonably expected 

to, and is not reasonably likely to, adversely 

affect the species or stock through effects on 

annual rates of recruitment or survival. 

The NDAA (Pub. L. 108–136) 

removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations and amended the definition 

of ‘‘harassment’’ as it applies to a 

‘‘military readiness activity’’ to read as 

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

(i) Any act that injures or has the 

significant potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A Harassment]; or 

(ii) Any act that disturbs or is likely to 

disturb a marine mammal or marine mammal 

stock in the wild by causing disruption of 

natural behavioral patterns, including, but 

not limited to, migration, surfacing, nursing, 

breeding, feeding, or sheltering, to a point 

where such behavioral patterns are 

abandoned or significantly altered [Level B 

Harassment]. 

Summary of Request 

On February 4, 2008, NMFS received 

an application from the Navy requesting 

authorization for the take of individuals 

of 40 species of marine mammals 

incidental to upcoming Navy training 

activities, maintenance, and research, 

development, testing, and evaluation 

(RDT&E) activities to be conducted 

within the Atlantic Fleet Active Sonar 

Training (AFAST) Study Area, which 

extends east from the Atlantic Coast of 

the U.S. to 45° W. long. and south from 

the Atlantic and Gulf of Mexico Coasts 

to approximately 23° N. lat., but not 

encompassing the Bahamas (see Figure 

1–1 in the Navy’s Application), over the 

course of 5 years. These 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 AFAST Study Area 

by exposing them to sound from midfrequency or high frequency active 

sonar (MFAS/HFAS) or to employment 

of the improved extended echo ranging 

(IEER) system. The IEER consists of an 

explosive source sonobuoy (AN/SSQ– 

110A) and an air deployable active 

receiver (ADAR) sonobuoy (AN/SSQ– 

101). The Navy requested authorization 

to take individuals of 40 species of 

marine mammals by Level B 

Harassment. Further, though they do not 

anticipate it to occur, the Navy requests 

authorization to take, by injury or 

mortality, up to 10 beaked whales over 

the course of the 5-yr regulations. 

Background of Navy Request 

The proposed rule contains a 

description of the Navy’s mission, their 

responsibilities pursuant to Title 10 of 

the United States Code, and the specific 

purpose and need for the activities for 

which they requested incidental take 

authorization. The description 

contained in the proposed rule has not 

changed (73 FR 60754). 

Description of the Specified Activities 

The proposed rule contains a 

complete description of the Navy’s 

specified activities that are covered by 

these final regulations, and for which 

the associated incidental take of marine 

mammals will be authorized in the 

related LOAs. The proposed rule 

describes the nature and number of both 

the anti-submarine warfare (ASW) and 

mine warfare training (MIW) exercises 

involving both mid- and high-frequency 

active sonar (MFAS and HFAS), as well 

as the IEER exercises involving small 

explosive detonations. It also describes 

the sound sources used (73 FR 60754, 

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pages 60755–60762). The narrative 

description of the action contained in 

the proposed rule has not changed, with 

the exception of the change from IEER 

to the Advanced Extended Echo 

Ranging (AEER) discussed below. 

Tables 1 and 2 summarize the sonar and 

IEER exercise types used in these 

training exercises and the hours of 

sonar. 

Navy is developing the AEER system 

as a replacement to the IEER system. 

AEER would use a new active sonobuoy 

(AN/SSQ–125) that utilizes a tonal (or a 

ping) vice impulsive (or explosive) 

sound source as a replacement for the 

AN/SSQ–110A. AEER will still use the 

ADAR sonobuoy as the systems receiver 

and will be deployed by Maritime Patrol 

Aircraft. As AEER is introduced for 

Fleet use, IEER will be removed. The 

same total number of buoys will be 

deployed as were presented in the 

proposed rule, but a subset of them will 

be AEER instead of IEER. The small 

difference in the number of anticipated 

marine mammal takes that will result 

from this change is indicated in the take 

table (Table 6), along with other minor 

modifications. This small change in the 

take numbers did not affect NMFS’ 

analysis of and conclusions regarding 

the proposed action. 

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AFAST Study Area 

The AFAST proposed rule contains a 

description of the AFAST Study Area 

along with a description of the areas in 

which certain types of activities will 

occur. Table 3, included here, 

summarizes the areas in which certain 

exercise types will occur. This section 

also contains a description of the North 

Atlantic right whale (NARW) critical 

habitat and the National Marine 

Sanctuaries (NMS) within the AFAST 

Study Area. The description of the 

AFAST Study Area in the proposed rule 

has not changed, with the exception of 

the paragraph relating to the NMSs, 

below (73 FR 60754, pages 60762– 

60764). 

The paragraph related to NMSs in the 

proposed rule should be replaced with 

the following paragraph: 

The Navy will not conduct active 

sonar activities within the Stellwagen 

Bank, Monitor, Gray’s Reef, Flower 

Garden Banks, and Florida Keys 

National Marine Sanctuaries and will 

avoid these sanctuaries by observing a 

5-km (2.7-NM) buffer. At all times, the 

Navy will conduct AFAST activities in 

a manner that avoids to the maximum 

extent practicable any adverse impacts 

on sanctuary resources. In the event the 

Navy determines AFAST activities, due 

to operational requirements, are likely 

to destroy, cause the loss of, or injure 

any sanctuary resource (for Stellwagen 

Bank National Marine Sanctuary, the 

threshold is ‘‘may’’ destroy, cause the 

loss of, or injure), the Navy would first 

consult with the Director, Office of 

National Marine Sanctuaries in 

accordance with 16 U.S.C. 1434(d). 

Although activities in the Sanctuaries 

are not planned or anticipated, NMFS’ 

analysis, for purposes of the MMPA 

considers the effects on marine 

mammals of the Navy’s conducting 

activities in the biologically important 

areas that occur in or near Sanctuaries. 

Description of Marine Mammals in the 

Area of the Specified Activities 

There are 43 marine mammal species 

with possible or confirmed occurrence 

in the AFAST Study Area. As indicated 

in Table 4, there are 36 cetacean species 

(7 mysticetes and 29 odontocetes), six 

pinnipeds, and one sirenian (manatee). 

Six marine mammal species listed as 

federally endangered under the 

Endangered Species Act (ESA) and 

under the jurisdiction of NMFS occur in 

the AFAST Study Area: The NARW, 

humpback whale, sei whale, fin whale, 

blue whale, and sperm whale. Manatees 

are managed by the U.S. Fish and 

Wildlife Service and will not be 

addressed further here. The proposed 

rule contains a discussion of two 

species that are not considered further 

in the analysis (beluga whales and 

ringed seals) because of their rarity in 

the AFAST Study Area. The proposed 

rule also contains a discussion of 

important areas, including NARW 

critical habitat, humpback whale 

feeding grounds in the northeast, and 

sperm whale calving and nursing 

grounds in the Mississippi Delta area. 

Last, the proposed rule includes a 

discussion of the methods used to 

estimate marine mammal density in the 

AFAST Study Area. The Description of 

Marine Mammals in the Area of the 

Specified Activities section has not 

changed from what was in the proposed 

rule (73 FR 60754, pages 60766–60767). 


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A 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 (73 FR 

60754, pages 60767–60769). 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. 

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 affecting 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 AFAST 

Study Area, 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 (IEER) may 

potentially affect marine mammals 

(some of which NMFS would not 

classify as harassment). See 73 FR 

60754, pages 60769–60781. 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 

behaviorally mediated bubble growth) 

that has been observed a limited number 

of times in certain circumstances (the 

specific events are also described). See 

73 FR 60754, pages 60777–60781. The 

information contained in Potential 

Effects of Specified Activities on Marine 

Mammals section from the proposed 

rule has not changed, with the 

exception of the following sentence. On 

page 60779, NMFS said ‘‘Other species 

(Stenella coeruleoalba, Kogia breviceps 

and Balaenoptera acutorostrata) have 

stranded, but in much lower numbers 

and less consistently than beaked 

whales.’’ As a member of the public 

pointed out, and as NMFS has 

previously stated, there was no likely 

association between the minke whale 

and spotted dolphin strandings referred 

to here and the operation of MFAS. 

Therefore, the sentence should read 

‘‘Other species, such as Kogia breviceps, 

have stranded in association with the 

operation of MFAS, but in much lower 

numbers and less consistently than 

beaked whales.’’ 

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. 

NMFS has also considered the effects of 

mortality on these species. 

Mitigation 

In order to issue an incidental take 

authorization (ITA) under Section 

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

prescribe regulations setting forth the 

‘‘permissible methods of taking 

pursuant to such activity, and other 

means of affecting 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 

National Defense Authorization Act 

(NDAA) of 2004 amended the MMPA as 

it relates to military readiness activities 

and the incidental take authorization 

process such that ‘‘least practicable 

adverse impact’’ shall include 

consideration of personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

‘‘military readiness activity’’. The 

AFAST activities described in the 

proposed rule are considered military 

readiness activities. 

NMFS reviewed the Navy’s proposed 

AFAST activities and the proposed 

AFAST mitigation measures (which the 

Navy refers to as Protective Measures) 

presented in the Navy’s application to 

determine whether the activities and 

mitigation measures were capable of 

achieving the least practicable adverse 

effect on marine mammals. NMFS 

determined that further discussion was 

necessary regarding: (1) General 

minimization of marine mammal 

impacts; (2) minimization of impacts 

within the southeastern NARW critical 

habitat; and (3) the potential 

relationship between the operation of 

MFAS/HFAS and marine mammal 

strandings. 

Any mitigation measure prescribed by 

NMFS should be known to accomplish, 

have a reasonable likelihood of 

accomplishing (based on current 

science), or contribute to the 

accomplishment of one or more of the 

general goals listed below: 

(a) Avoidance or minimization of 

injury or death of marine mammals 

wherever possible (goals b, c, and d may 

contribute to this goal). 

(b) A reduction in the numbers of 

marine mammals (total number or 

number at biologically important time 

or location) exposed to received levels 

of MFAS/HFAS, underwater 

detonations, or other activities expected 

to result in the take of marine mammals 

(this goal may contribute to a, above, or 

to reducing harassment takes only). 

(c) A reduction in the number of times 

(total number or number at biologically 

important time or location) individuals 

would be exposed to received levels of 

MFAS/HFAS, underwater detonations, 

or other activities expected to result in 

the take of marine mammals (this goal 

may contribute to a, above, or to 

reducing harassment takes only). 

(d) A reduction in the intensity of 

exposures (either total number or 

number at biologically important time 

or location) to received levels of MFAS/ 

HFAS, underwater detonations, or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing the 

severity of harassment takes only). 

(e) A reduction in adverse effects to 

marine mammal habitat, paying special 

attention to the food base, activities that 

block or limit passage to or from 

biologically important areas, permanent 

destruction of habitat, or temporary 

destruction/disturbance of habitat 

during a biologically important time. 

(f) For monitoring directly related to 

mitigation—an increase in the 

probability of detecting marine 

mammals, thus allowing for more 

effective implementation of the 

mitigation (shut-down zone, etc.). 

NMFS worked with the Navy to 

identify potential additional practicable 

and effective mitigation measures, 

which included a careful balancing of 

the likely benefit of any particular 

measure to the marine mammals with 

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the likely effect of that measure on 

personnel safety, practicality of 

implementation, and impact on the 

‘‘military-readiness activity.’’ NMFS and 

the Navy developed additional 

mitigation measures that address the 

concerns mentioned above, including 

the development of Planning Awareness 

Areas (PAAs), additional minimization 

of impacts in the southeastern NARW 

critical habitat, and a Stranding 

Response Plan. 

The Navy’s proposed mitigation 

measures, as well as the Planning 

Awareness Areas (PAAs), additional 

minimization of impacts in the 

southeastern NARW critical habitat, and 

Stranding Response Plan, which are 

required under these regulations, were 

described in detail in the proposed rule 

(73 FR 60754, pages 60781–60789). The 

Navy’s measures address personnel 

training, lookout and watchstander 

responsibilities, operating procedures 

for training activities using both MFAS/ 

HFAS and IEER, additional measures for 

TORPEXs in the northeastern NARW 

critical habitat, and mitigation related to 

vessel traffic and the NARW. No 

changes have been made to the 

mitigation measures described in the 

proposed rule, with the exception of 

adding that night vision devices shall be 

available to all ship crews and air crews 

for use as appropriate and making the 

IEER mitigation applicable to the newly 

described AEER system as well. 

Additionally, the definition for 

‘‘Exhibiting Indicators of Distress’’, 

which was originally included in the 

codified text of the proposed rule, has 

been removed in the final rule. The 

definition, which may be found in the 

AFAST Stranding Response Plan, was 

not included in the codified text 

because it could potentially be modified 

(pursuant to the adaptive management 

component of the rule) based on new 

data. 

The final AFAST Stranding Response 

Plan, which includes a shutdown 

protocol, a stranding investigation plan, 

and a requirement for Navy and NMFS 

to implement a memorandum of 

agreement (MOA) that will establish a 

framework whereby the Navy can (and 

provide the Navy examples of how they 

can best) assist NMFS with stranding 

investigations in certain circumstances, 

may be viewed at: http:// 

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

incidental.htm#applications. 

Additionally, the mitigation measures 

are included in full in the codified text 

of the regulations. 

NMFS has determined that the Navy’s 

proposed mitigation measures (which 

include a suite of measures that 

specifically address vessel transit and 

the NARW), along with the Planning 

Awareness Areas (PAAs), additional 

minimization of impacts in the 

southeastern NARW critical habitat, and 

the Stranding Response Plan (and when 

the Adaptive Management (see Adaptive 

Management below) component is taken 

into consideration) 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 justification for this 

conclusion is discussed in the 

Mitigation Conclusion section of the 

proposed rule (73 FR 60836, pages 

60789–60790). The Mitigation 

Conclusion Section of the proposed rule 

has not changed. 

Research and Conservation Measures 

for Marine Mammals 

The Navy provides a significant 

amount of funding and support for 

marine research. The Navy provided 

$26 million in Fiscal Year 2008 and 

plans for $22 million in Fiscal Year 

2009 to universities, research 

institutions, Federal laboratories, 

private companies, and independent 

researchers around the world to study 

marine mammals. Over the past five 

years the Navy has funded over $100 

million in marine mammal research. 

The Navy sponsors seventy 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. 

The Navy’s 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 and the AFAST EIS, such as 

the Marine Resource Assessments. 

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 and 

record the types of pathologies and 

diseases and investigate the relationship 

with potential causal factors (e.g., sonar, 

seismic, weather). The proposed rule 

contained an outline of the proposed 

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study (73 FR 60754, pages 60790– 

60791). No changes have been made to 

the longitudinal study as described in 

the proposed rule. 

Monitoring 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking’’. The MMPA implementing 

regulations at 50 CFR 216.104(a)(13) 

indicate that requests for LOAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

(a) An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the effects 

analyses. 

(b) An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of MFAS/ 

HFAS (or explosives or other stimuli) 

that we associate with specific adverse 

effects, such as behavioral harassment, 

TTS, or PTS. 

(c) An increase in our understanding 

of how marine mammals respond 

(behaviorally or physiologically) to 

MFAS/HFAS (at specific received 

levels), explosives, or other stimuli 

expected to result in take and how 

anticipated adverse effects on 

individuals (in different ways and to 

varying degrees) may impact the 

population, species, or stock 

(specifically through effects on annual 

rates of recruitment or survival). 

(d) An increased knowledge of the 

affected species. 

(e) An increase in our understanding 

of the effectiveness of certain mitigation 

and monitoring measures. 

(f) A better understanding and record 

of the manner in which the authorized 

entity complies with the incidental take 

authorization. 

Proposed Monitoring Plan for AFAST 

Study Area 

As NMFS indicated in the proposed 

rule, the Navy has (with input from 

NMFS) fleshed out the details of and 

made improvements to the AFAST 

Monitoring Plan. Additionally, NMFS 

and the Navy have incorporated a 

recommendation from the public, which 

recommended the Navy hold a 

workshop to discuss the Navy’s 

Monitoring Plan (see Monitoring 

Workshop section). The final AFAST 

Monitoring Plan, which is summarized 

below, may be viewed at http:// 

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

incidental.htm#applications. The Navy 

plans to implement all of the 

components of the Monitoring Plan: 

however, only the marine mammal 

components (not the sea turtle 

components) will be required by the 

MMPA regulations and associated 

LOAs. 

The Monitoring Plan for AFAST has 

been designed as a collection of focused 

‘‘studies’’ (described fully in the AFAST 

Monitoring Plan) to gather data that will 

allow the Navy to address the following 

questions: 

(a) Are marine mammals exposed to 

MFAS, especially at levels associated 

with adverse effects (i.e., based on 

NMFS’criteria for behavioral 

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

levels are they exposed? 

(b) If marine mammals are exposed to 

MFAS in the AFAST Study Area, 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, what are their behavioral 

responses to various received levels? 

(d) Is the Navy’s suite of mitigation 

measures for MFAS (e.g., measures 

agreed to by the Navy through 

permitting) effective at avoiding TTS, 

injury, and mortality of marine 

mammals? 

Data gathered in these studies will be 

collected by qualified, professional 

marine mammal biologists that are 

experts in their field. They will use a 

combination of the following methods 

to collect data: 

• Contracted vessel and aerial 

surveys. 

• Passive acoustics. 

• Marine mammal observers on Navy 

ships. 

In the four proposed study designs 

(all of which cover multiple years), the 

above methods will be used separately 

or in combination to monitor marine 

mammals in different combinations 

before, during, and after training 

activities utilizing MFAS/HFAS. Table 7 

contains a summary of the Monitoring 

effort that is planned for each study in 

each year. 

This monitoring plan has been 

designed to gather data on all species of 

marine mammals that are observed in 

the AFAST study area. 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). 

North Atlantic right whales will also 

be given particular attention during 

monitoring in the AFAST study area, 

although monitoring methods will be 

the same for all species. Within the 

AFAST study area, the Northwestern 

Atlantic provides unique breeding and 

calving habitat for NARW, and as a 

result, critical habitat has been 

designated for one calving ground (off 

Georgia and northern Florida) and two 

feeding areas (Cape Cod Bay and the 

Great South Channel). Pursuant to the 

Monitoring Plan, NARWs will be given 

particular attention in the form of focal 

follows (e.g. collect behavioral data 

using the Big Eyes binoculars, and 

observe the behavior of any animals that 

are seen) when observed. 

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BILLING CODE 3510–22–C 

Monitoring Workshop 

During the public comment period on 

the AFAST proposed rule (as well as the 

Hawaii Range Complex and Southern 

California Range Complex proposed 

rules), NMFS received a comment 

which, in consultation with the Navy, 

we have chosen to incorporate into the 

final rule (in a modified form). One 

commenter recommended that a 

workshop or panel be convened to 

solicit input on the monitoring plan 

from researchers, experts, and other 

interested parties. The AFAST proposed 

rule included an adaptive management 

component and both NMFS and the 

Navy believe that a workshop would 

provide a means for Navy and NMFS to 

consider input from participants in 

determining whether or how to modify 

monitoring techniques to more 

effectively accomplish the goals of 

monitoring set forth earlier in the 

document. NMFS and the Navy believe 

that this workshop concept is valuable 

in relation to all of the Range Complexes 

and major training exercise rules and 

LOAs that NMFS is working on with the 

Navy at this time, and consequently this 

single Monitoring Workshop will be 

included as a component of all of the 

rules and LOAs that NMFS will be 

processing for the Navy in the next year 

or so. 

The Navy, with guidance and support 

from NMFS, will convene a Monitoring 

Workshop, including marine mammal 

and acoustic experts as well as other 

interested parties, in 2011. The 

Monitoring Workshop participants will 

review the monitoring results from the 

previous two years of monitoring 

pursuant to the AFAST rule as well as 

monitoring results from other Navy 

rules and LOAs (e.g., the Southern 

California Range Complex (SOCAL), 

Hawaii Range Complex (HRC), and 

other rules). The Monitoring Workshop 

participants would provide their 

individual recommendations to the 

Navy and NMFS on the monitoring 

plan(s) after also considering the current 

science (including Navy research and 

development) and working within the 

framework of available resources and 

feasibility of implementation. NMFS 

and the Navy would then analyze the 

input from the Monitoring Workshop 

participants and determine the best way 

forward from a national perspective. 

Subsequent to the Monitoring 


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Workshop, modifications would be 

applied to monitoring plans as 

appropriate. 

Integrated Comprehensive Monitoring 

Program 

In addition to the Monitoring Plan for 

AFAST, the Navy will complete the 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan by the end of 

2009. The ICMP will provide the 

overarching coordination that will 

support compilation of data from 

project-specific monitoring plans (e.g., 

AFAST Monitoring Plan) as well as 

Navy funded research and development 

(R&D) studies. The ICMP will 

coordinate the monitoring programs 

progress towards meeting its goals and 

develop a data management plan. The 

ICMP will be evaluated annually to 

provide a matrix for progress and goals 

for the following year, and will make 

recommendations on adaptive 

management for refinement and analysis 

of the monitoring methods. 

The primary objectives of the ICMP 

are to: 

• Monitor and assess the effects of 

Navy activities on protected species; 

• Ensure that data collected at 

multiple locations is collected in a 

manner that allows comparison between 

and among different geographic 

locations; 

• Assess the efficacy and practicality 

of the monitoring and mitigation 

techniques; 

• Add to the overall knowledge-base 

of marine species and the effects of 

Navy activities on marine species. 

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

planning tool to focus Navy monitoring 

priorities (pursuant to ESA/MMPA 

requirements) across Navy Range 

Complexes and Exercises; and (2) an 

adaptive management tool, through the 

consolidation and analysis of the Navy’s 

monitoring and watchstander data, as 

well as new information from other 

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

appropriate newly published 

information. 

In combination with the 2011 

Monitoring Workshop and the adaptive 

management component of the AFAST 

rule and the other planned Navy rules 

(e.g. SOCAL and HRC), the ICMP could 

potentially provide a framework for 

restructuring the monitoring plans and 

allocating monitoring effort based on the 

value of particular specific monitoring 

proposals (in terms of the degree to 

which results would likely contribute to 

stated monitoring goals, as well the 

likely technical success of the 

monitoring based on a review of past 

monitoring results) that have been 

developed through the ICMP 

framework, instead of allocating based 

on maintaining an equal (or 

commensurate to effects) distribution of 

monitoring effort across Range 

complexes. For example, if careful 

prioritization and planning through the 

ICMP (which would include a review of 

both past monitoring results and current 

scientific developments) were to show 

that a large, intense monitoring effort in 

Hawaii would likely provide extensive, 

robust and much-needed data that could 

be used to understand the effects of 

sonar throughout different geographical 

areas, it may be appropriate to have 

other Range Complexes dedicate money, 

resources, or staff to the specific 

monitoring proposal identified as ‘‘high 

priority’’ by the Navy and NMFS, in lieu 

of focusing on smaller, lower priority 

projects divided throughout their home 

Range Complexes. 

The ICMP will identify: 

• A means by which NMFS and the 

Navy would jointly consider prior years 

monitoring results and advancing 

science to determine if modifications 

are needed in mitigation or monitoring 

measures to better effect the goals laid 

out in the Mitigation and Monitoring 

sections of the AFAST rule. 

• Guidelines for prioritizing 

monitoring projects. 

• If, as a result of the workshop and 

similar to the example described in the 

paragraph above, the Navy and NMFS 

decide it is appropriate to restructure 

the monitoring plans for multiple ranges 

such that they are no longer evenly 

allocated (by rule), but rather focused on 

priority monitoring projects that are not 

necessarily tied to the geographic area 

addressed in the rule, the ICMP will be 

modified to include a very clear and 

unclassified recordkeeping system that 

will allow NMFS and the public to see 

how each Range Complex/project is 

contributing to all of the ongoing 

monitoring (resources, effort, money, 

etc.). 

Past Monitoring in AFAST 

The proposed rule contained a 

detailed review of the previous marine 

mammal monitoring conducted in the 

AFAST Study Area, which was 

conducted in compliance with the terms 

and conditions of multiple biological 

opinions issued for MFAS training 

activities (73 FR 60754, pages 60791– 

60798). No changes have been made to 

the discussion contained in the 

proposed rule. 

Adaptive Management 

The final regulations governing the 

take of marine mammals incidental to 

Navy’s AFAST exercises contain an 

adaptive management component. 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 

continues to improve. 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 

off the Atlantic Coast of the U.S.). The 

use of adaptive management will give 

NMFS the ability to consider new data 

from different sources to determine (in 

coordination with the Navy) on an 

annual basis if mitigation or monitoring 

measures should be modified or added 

(or deleted) if new data suggests that 

such modifications are appropriate (or 

are not appropriate) for subsequent 

annual LOAs. 

Following are some of the possible 

sources of applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from 

AFAST or other locations). 

• Findings of the Workshop that the 

Navy will convene in 2011 to analyze 

monitoring results to date, review 

current science, and recommend 

modifications, as appropriate to the 

monitoring protocols to increase 

monitoring effectiveness. 

• Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP, which 

is discussed elsewhere in this 

document). 

• Results from specific stranding 

investigations (either from AFAST or 

other locations, and involving 

coincident MFAS/HFAS of 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 

otherwise). 

Mitigation measures could be 

modified or added (or deleted) if new 

data suggest that such modifications 

would have (or do not have) a 

reasonable likelihood of accomplishing 

the goals of mitigation laid out in this 

final rule and if the measures are 

practicable. NMFS would also 

coordinate with the Navy to modify or 

add to (or delete) the existing 

monitoring requirements if the new data 

suggest that the addition of (or deletion 

of) a particular measure would more 

effectively accomplish the goals of 

monitoring laid out in this final rule. 

The reporting requirements associated 

with this rule are designed to provide 

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NMFS with monitoring data from the 

previous year to allow NMFS to 

consider the data and issue annual 

LOAs. NMFS and the Navy will meet 

annually, prior to LOA issuance, to 

discuss the monitoring reports, Navy 

R&D developments, and current science 

and whether mitigation or monitoring 

modifications are appropriate. 

Reporting 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking’’. Effective reporting is critical to 

ensure compliance with the terms and 

conditions of a LOA, and to provide 

NMFS and the Navy with data of the 

highest quality based on the required 

monitoring. 

As NMFS noted in its proposed rule, 

additional detail has been added to the 

reporting requirements since they were 

outlined in the proposed rule. The 

updated reporting requirements are all 

included below. A subset of the 

information provided in the monitoring 

reports may be classified and not 

releasable to the public. 

NMFS will work with the Navy to 

develop tables that allow for efficient 

submission of the information required 

below. 

General Notification of Injured or Dead 

Marine Mammals 

Navy personnel will ensure that 

NMFS (regional stranding coordinator) 

is notified immediately (or as soon as 

operational security allows) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing MFAS, HFAS, or underwater 

explosive detonations. The Navy will 

provide NMFS with species or 

description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal is dead), 

location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). The Stranding 

Response Plan contains more specific 

reporting requirements for specific 

circumstances. 

Annual AFAST Monitoring Plan Report 

The Navy shall submit a report 

annually on October 1 describing the 

implementation and results (through 

August 1 of the same year) of the 

AFAST Monitoring Plan, described 

above. Data collection methods will be 

standardized across range complexes to 

allow for comparison in different 

geographic locations. Although 

additional information will also be 

gathered, the marine mammal observers 

(MMOs) collecting marine mammal data 

pursuant to the AFAST Monitoring Plan 

shall, at a minimum, provide the same 

marine mammal observation data 

required in the MFAS/HFAS major 

Training Exercises section of the Annual 

AFAST Exercise Report referenced 

below. 

The AFAST Monitoring Plan Report 

may be provided to NMFS within a 

larger report that includes the required 

Monitoring Plan Reports from multiple 

Range Complexes. 

Annual AFAST Exercise Report 

The Navy will submit an Annual 

AFAST Exercise Report on October 1 of 

every year (covering data gathered 

through August 1). This report shall 

contain the subsections and information 

indicated below. 

MFAS/HFAS Major Training Exercises 

This section shall contain the 

following information for the following 

Coordinated and Strike Group exercises, 

which for simplicity will be referred to 

as major training exercises for reporting 

(MTERs): Southeastern ASW Integrated 

Training Initiative (SEASWITI), 

Integrated ASW Course (IAC), 

Composite Training Unit Exercises 

(COMPTUEX), and Joint Task Force 

Exercises (JTFEX) conducted in AFAST: 

(a) Exercise Information (for each 

MTER): 

(i) Exercise designator. 

(ii) Date that exercise began and 

ended. 

(iii) Location. 

(iv) Number and types of active 

sources used in the exercise. 

(v) Number and types of passive 

acoustic sources used in exercise. 

(vi) Number and types of vessels, 

aircraft, etc., participating in exercise. 

(vii) Total hours of observation by 

watchstanders. 

(viii) Total hours of all active sonar 

source operation. 

(ix) Total hours of each active sonar 

source (along with explanation of how 

hours are calculated for sources 

typically quantified in alternate way 

(buoys, torpedoes, etc.)). 

(x) Wave height (high, low, and 

average during exercise). 

(b) Individual marine mammal 

sighting info (for each sighting in each 

MTER): 

(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) Indication of specific type of 

platform observation made from 

(including, for example, what type of 

surface vessel, i.e., FFG, DDG, or CG). 

(vii) Length of time observers 

maintained visual contact with marine 

mammal(s). 

(viii) Wave height (in feet). 

(ix) Visibility. 

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

(xi) Indication of whether animal is 

<200yd, 200–500yd, 500–1000yd, 1000– 

2000yd, or >2000yd from sonar source 

in (x) above. 

(xiii) Mitigation Implementation— 

Whether operation of sonar sensor was 

delayed, or sonar was powered or shut 

down, and how long the delay was. 

(xiv) If source in use (x) is 

hullmounted, true bearing of animal 

from ship, true direction of ship’s travel, 

and estimation of animal’s motion 

relative to ship (opening, closing, 

parallel) 

(xv) Observed behavior— 

Watchstanders shall report, in plain 

language and without trying to 

categorize in any way, the observed 

behavior of the animals (such as animal 

closing to bow ride, paralleling course/ 

speed, floating on surface and not 

swimming, etc.) 

(c) An evaluation (based on data 

gathered during all of the MTERs) of the 

effectiveness of mitigation measures 

designed to avoid exposing marine 

mammals to MFAS. This evaluation 

shall identify the specific observations 

that support any conclusions the Navy 

reaches about the effectiveness of the 

mitigation. 

ASW Summary 

This section shall include the 

following information as summarized 

from both MTERs and non-major 

training exercises: 

(i) 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.)) 

(iv) Cumulative Impact Report—To 

the extent practicable, the Navy, in 

coordination with NMFS, shall develop 

and implement a method of annually 

reporting non-major (i.e., other than 

MTERs) training exercises utilizing hullmounted sonar. The report shall present 

an annual (and seasonal, where 

practicable) depiction of non-major 

training exercises geographically across 

the AFAST Study Area. To the extent 

practicable, this report will also include 

the total number of sonar hours (from 

helicopter dipping sonar and object 

detection exercises) conducted within 

the southern NARW critical habitat plus 

5 nm buffer area). The Navy shall 

include (in the AFAST annual report) a 

brief annual progress update on the 

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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. 

Improved Extended Echo-Ranging 

System (IEER)/Advanced Extended 

Echo-Ranging System (AEER) Summary 

This section shall include an annual 

summary of the following IEER and 

AEER information: 

(i) Total number of IEER and AEER 

events conducted in AFAST Study Area 

(ii) Total expended/detonated rounds 

(buoys). 

(iii) Total number of self-scuttled 

IEER rounds. 

Sonar Exercise Notification 

The Navy shall submit to the NMFS 

Office of Protected Resources (specific 

contact information to be provided in 

LOA) either an electronic (preferably) or 

verbal report within fifteen calendar 

days after the completion of any MTER 

indicating: 

(1) Location of the exercise. 

(2) Beginning and end dates of the 

exercise. 

(3) Type of exercise. 

AFAST 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 IEER exercises for which 

annual reports are required (Annual 

AFAST Exercise Reports and AFAST 

Monitoring Plan Reports). This report 

will be submitted at the end of the 

fourth year of the rule (November 2012), 

covering activities that have occurred 

through June 1, 2012. 

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 AFAST, SOCAL, 

the HRC, the Mariana Islands Range 

Complex, the Northwest Training Range 

Complex, the Gulf of Alaska, and the 

East Coast Undersea Warfare Training 

Range. 

The Navy shall respond to NMFS 

comments and requests for additional 

information or clarification on the 

AFAST Comprehensive Report, the 

Comprehensive National ASW report, 

the Annual AFAST Exercise Report, or 

the Annual AFAST 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. 

Comments and Responses 

On October 14, 2008 (73 FR 60754), 

NMFS published a proposed rule in 

response to the Navy’s request to take 

marine mammals incidental to military 

readiness training, maintenance, and 

RDT&E activities in the AFAST Study 

Area and requested comments, 

information and suggestions concerning 

the request. During the 30-day public 

comment period, NMFS received 

comments from 6 private citizens and 

Senator Benjamin Cardin, comments 

from the Marine Mammal Commission 

(MMC), comments from the Maine 

Department of Marine Resources and 

the Georgia Department of Natural 

Resources, and three sets of comments 

from non-governmental organizations, 

including, the Natural Resources 

Defense Council (NRDC) (which 

commented on behalf of The Humane 

Society of the United States, the 

International Fund for Animal Welfare, 

Whale and Dolphin Conservation 

Society, Cetacean Society International, 

Pamlico Tar River Foundation, North 

Carolinians for Responsible Use of 

Sonar, League for Coastal Protection, 

and Ocean Futures Society and its 

founder Jean-Michel Cousteau), the 

Cascadia Research Collective (CRC), and 

the Ocean Mammal and Animal Welfare 

Institutes. The comments are 

summarized and sorted into general 

topic areas and are addressed below. 

Full copies of the comment letters may 

be accessed at http:// 

www.regulations.gov. 

NMFS worked with the Navy to 

develop MMPA rules and LOAs for the 

AFAST activities, SOCAL Range 

Complex, and HRC Range Complex. 

Many of the issues raised in the public 

comments for this rule were also raised 

for SOCAL and the HRC and NMFS 

considered many of the broader issues 

in the context of all three of these Navy 

actions when determining how to 

address the comments. Responses to 

public comments on the HRC and 

SOCAL rules (addressing similar issues 

identified in the AFAST final rule) were 

also published in January 2009 and may 

provide the public with additional 

detail, if needed. 

North Atlantic Right Whales 

Comment 1: Several commenters had 

the following general comments/ 

concerns regarding the way that NMFS’ 

rule analyzed the potential impacts to 

right whales from sonar: 

(a) As the only known calving ground, 

the southern critical habitat is very 

important to the survival of the species 

and commenters were concerned about 

the level of Navy activity in critical 

habitat and how it will affect right 

whales. Some suggested that NMFS 

should restrict Navy activity within 

critical habitat. 

(b) The specific impacts to and 

responses of newborn right whale calves 

and their mothers are unknown and 

commenters are concerned about the 

effects of MFAS on this segment of the 

population. One commenter notes that 

NMFS has previously indicated that the 

‘‘loss of even a single individual right 

whale may contribute to the extinction 

of the species,’’ and that ‘‘preventing the 

mortality of one adult female alters the 

projected outcome.’’ 69 FR 30858. 

(c) The waters off of Gulf of Maine: 

Cape Cod Bay, Great South Channel, 

Bay of Fundy, and the Brown’s Bank 

area are primary feeding grounds for the 

North Atlantic right whale (and other 

large whale species) and commenters 

are concerned about impacts. Some 

commenters recommended minimizing 

activities in that area. 

(d) One commenter stated that 

although the Navy’s DEIS and NMFS’ 

Proposed Rule acknowledge that right 

whales are expected to occur in the 

AFAST area, the agencies arbitrarily 

conclude that no right whales will be 

injured by the thousands of hours of 

sonar training exercises per year 

spanning the entire East Coast and Gulf 

of Mexico. One commenter further 

asserts that right whales are hard to 

detect because they spend the majority 

of their time below the surface and are 

often found alone or in pairs, which, 

combined with rough weather reduces 

the probability of detection. Also, 

female right whales with young calves 

are less mobile than adult whales 

without young calves and may not be 

able to avoid sonar sources. 

(e) The commenters requested 

clarification regarding why NMFS 

believes that ship strikes are unlikely. 

Commenters further state that the Navy 

has been involved in ship strikes in the 

past (specifically, a female NARW and 

her near-term calf in the mid-Atlantic in 

2004.) 

Response: Following is NMFS’ 

response to the above comments: 

(a) NMFS agrees that the southern 

critical habitat for the North Atlantic 

right is very important to the survival of 

the species. The Navy intends to limit 

sonar use to a relatively small amount 

in the southern NARW critical habitat 

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(see response to comment (1)(e) below). 

As described in the proposed rule, 

following are the details of the planned 

sonar usage in the vicinity of the 

southern critical habitat: 

■ The Navy anticipates conducting 

approximately 30 helicopter dipping 

sonar maintenance events (< 1 hr) 

annually in the NARW critical habitat 

(and approximately 84 helicopter 

training exercises in the vicinity of the 

critical habitat but in deeper waters at 

least more than 5 nm seaward of the 

critical habitat boundaries). This means 

that only a subset of those 30 activities 

will occur in the critical habitat between 

Nov 15 and April 15 (approximately 13 

if one assumes they are distributed 

equally throughout the year, for 

example) and only a subset of the 84 

helicopter training exercises would 

occur near the critical habitat between 

Nov 15 and April 15 (approximately 34 

if one assumes they are distributed 

equally throughout the year, for 

example). Note that the source level of 

a helicopter dipping sonar is 

approximately 18 dB less than that of a 

surface sonar source, which means that 

the ensonified area is on the order of 65 

times less (if spherical spreading is 

assumed). Additionally, the mitigation 

measures require that the Navy 

minimize helicopter dipping activities 

in the critical habitat. 

■ The Navy would conduct 

approximately 40 ship object detection 

exercises (1–2 hours each) and 57 

submarine object detection exercises (1– 

2 hours each) annually while entering/ 

exiting port (within approximately 1 

mile of shore). This means that only a 

subset of those activities will occur 

between Nov 15 and April 15, 

approximately 41 if one assumes they 

are distributed equally throughout the 

year, for example. Additionally, 

mitigation measures indicate that the 

Navy shall reduce the time spent 

conducting object detection exercises in 

the critical habitat, contact 

FACSFACJAX to obtain latest whale 

sightings in vicinity of critical habitat, 

and (to the extent operationally feasible) 

avoid conducting training in vicinity of 

recently sighted whales. Ships are 

required to maneuver to maintain at 

least 500 yds of separation from any 

observed whale (consistent with safety 

of ship). 

■ The Navy’s model predicted that 

approximately 20 takes of right whales 

by behavioral harassment would occur 

within the southern NARW critical 

habitat (and no takes by injury or 

mortality). 

Time and area restrictions are one of 

the most effective ways to reduce 

impacts to protected species. By 

planning the limited sonar exercises 

outlined above and implementing the 

specific mitigation measures listed, the 

Navy has minimized, to the extent 

practicable, the impacts to right whales 

in the southern critical habitat. NMFS 

discusses the practicability and benefits 

of time and area restrictions in the 

Mitigation EA. 

(b) The potential impacts to mothercalf pairs from sonar are specifically 

discussed in Potential Effects of 

Specified Activities on Marine 

Mammals section of the proposed rule. 

However, as the commenter suggests, 

the specific effects of MFAS on right 

whales and their calves are not 

discussed because NMFS does not 

possess data to draw any specific 

conclusions regarding effects. As the 

commenter suggests, the loss of even 

one right whale would have serious 

effects on the population; however, as 

discussed in the proposed rule and 

above, 20 instances of right whale 

harassment are expected to occur within 

the southern right whale critical habitat 

(over the entire year, not just from 

November to April) and none of these 

are modeled to be at injurious levels. 

Additionally, this take estimate does not 

account for the mitigation measures 

discussed in (a) above, which include 

not approaching right whales within 

closer than 500 yds and not conducting 

training within the vicinity of recently 

sighted whales, when feasible. For these 

reasons and others (see Negligible 

Impact section of proposed rule), NMFS 

was able to determine that the Navy’s 

AFAST activities would have a 

negligible impact on the species. 

(c) The Navy does not plan to conduct 

any major ASW training exercises using 

hull-mounted sonar in the Northeast. 

All of the exercises in the Northeast will 

consist of smaller scale unit-level 

exercises predominantly utilizing 

submarine sonar, active sonobuoys, and 

torpedoes (see Table 3). In the 

Northeast, the submarine object 

detection exercises would occur 

primarily in the near-shore submarine 

transiting lanes exiting Groton, 

Connecticut and Norfolk, Virginia 

(neither of which are near the important 

feeding areas the comment refers to). As 

indicated in the rule, in the Northeast 

the Navy is largely avoiding conducting 

any training in the NARW critical 

habitat, with one exception: Torpedo 

exercises (a maximum of 32 MK–48 

torpedo runs at 15 minutes each or up 

to 24 lightweight MK–46 or MK–54 

torpedoes) would occur in August 

through December (when right whales 

are less likely to be present). However, 

the Navy included extensive TORPEX 

mitigation measures that were worked 

out in a previous section 7 consultation 

with NMFS (see 216.244(a)(1)(xxviii)). 

Approximately 2000 sonobuoys (with 

12 pings, spaced 30 seconds apart) 

would be used annually. Time and area 

restrictions are one of the most effective 

ways to reduce impacts to protected 

species. Based on the limited sonar 

exercises outlined above and because of 

the specific mitigation measures listed, 

NMFS believes that impacts to right 

whales and other large whales feeding 

in important areas in the Northeast will 

be minimal. NMFS discusses the 

practicability and benefits of time and 

area restrictions in the Mitigation EA. 

(d) NMFS’ rationale for why right 

whales will not be injured is not 

arbitrary. Although the Navy is 

proposing to conduct thousands of 

hours (approximately 5,000 of hullmounted) of MFAS operation (see Table 

1), several factors need to be considered. 

For example, the AFAST Study Area 

comprises over 2,170,175 square 

nautical miles, the exercises are spread 

out over the course of a year, and there 

are only approximately 350 right whales 

in the population (the number of whales 

is germane because at the most basic 

level the potential for injury is directly 

based on the likelihood that the 

ensonified area (above threshold) 

around the MFAS sound sources will 

overlap with a right whale in space and 

time—the fewer right whales there are, 

the less likely this is to happen.) The 

model predicts 666 exposures to levels 

above NMFS’ acoustic threshold for 

behavioral harassment, but less than the 

level associated with PTS (or injury). 

Acknowledging that right whales may 

be somewhat harder to detect than other 

large whales, the Navy’s modeled takes, 

as discussed in the Negligible Impact 

Analysis section of the proposed rule, 

do not take any mitigation measures or 

any likely marine mammal avoidance 

into consideration. Navy lookouts are 

specifically trained to detect anomalies 

in the water around the ship and both 

the safety of Navy personnel and 

success in the training exercise depend 

on the lookout being able to detect 

objects (or marine mammals) effectively 

around the ship. The response to 

Comment 2, below, explains more 

specifically why injury is not expected. 

(e) Regarding ship strikes, the Navy’s 

EIS concluded that based on the 

implementation of Navy mitigation 

measures, especially during times of 

anticipated NARW occurrence, and the 

relatively low density of Navy ships in 

the Study Area, the likelihood that a 

vessel strike would occur is very low (as 

NMFS indicated in the above comment, 

the low abundance of NARWs also 

supports this prediction). In addition to 

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the standard operating procedures to 

reduce the likelihood of collisions, 

which include: (1) Use of lookouts 

trained to detect all objects on the 

surface of the water (including marine 

mammals); (2) reasonable and prudent 

actions to avoid the close interactions of 

Navy assets and marine mammals; and 

(3) maneuvering to keep away from any 

observed marine mammal, the Navy has 

issued extensive North Atlantic right 

whale protective measures for all Fleet 

Forces training activities (see 

216.244(a)(3)). These measures, which 

were developed with input from NMFS, 

include additional training 

requirements, designated areas of 

caution (where caution includes speed 

or direction adjustments and avoidance 

of known groups of right whales when 

feasible) and additional reporting 

requirements. NMFS and the Navy 

believe that the required measures will 

allow the Navy to avoid colliding with 

large whales during their specified 

activities. The Navy neither requested, 

nor did NMFS grant, authorization for 

take of right whales from ship strikes 

incidental to the specified activities. 

Regarding the right whale strike in 

2004, the commenter is most likely 

referring to an event that took place on 

November 17, 2004. On November 17 at 

about 10:30 am a Navy amphibious 

assault ship struck a large whale off the 

Chesapeake Light House. A few hours 

later, around noon, a fisherman 

contacted the Virginia Aquarium 

stranding hotline and reported a live 

injured large whale with a fresh wound 

on the tail where the left fluke lobe was 

missing. On November 24, a dead right 

whale was necropsied at Ocean Sands, 

NC. The right whale was a pregnant 

female and the cause of death was 

determined to be blood loss owing to a 

traumatic wound to the left fluke lobe, 

which was missing, and damage to 

surrounding tissue and bone. The 

wound was consistent with that caused 

by a ship strike. Neither NMFS, nor the 

Navy can confirm or deny that the dead 

right whale necropsied on November 24 

was the same whale struck by the Navy 

on November 17. 

The USCG and Navy have standing 

orders to report sightings or collisions. 

Although the NMFS ship strike database 

reflects a disproportionately high 

number of ship strikes attributable to 

USCG and Navy vessels over the years, 

this is likely due to the high reporting 

rate by those agencies relative to other 

mariners and vessels, rather than a 

higher incidence of right whale ship 

strikes by Federal agency vessels. These 

two Federal agencies are actively 

involved in large whale protection 

programs and reporting struck or dead 

whales to NMFS is part of their standard 

operating procedures. 

Comment 2: One commenter stated 

that they disagree with NMFS’ 

conclusion that predicted Level B 

harassment to right whales will likely 

not occur because ‘‘many animals will 

likely avoid sonar sources’’ and ‘‘Navy 

monitors would detect these animals 

prior to approach and implement sonar 

power-down or shut-down’’ 

Response: NMFS did not predict that 

Level B harassment of right whales is 

not likely to occur. As indicated in the 

rule, NMFS’ LOA may authorize up to 

666 Level B harassment takes of right 

whales. NMFS indicates that Level A 

Harassment (injury) and TTS (one type 

of Level B Harassment) are unlikely to 

occur because of: The distance from the 

source that an animal would need to 

approach (approximately 10 m for 

injury and 275–500 m for TTS) to be 

exposed to levels associated with injury 

or TTS; the fact that lookouts would 

detect them at that close distance; the 

fact that the Navy model (which does 

not take mitigation or avoidance into 

consideration) predicted that 0 right 

whales would be exposed to injurious 

levels of sound and 7 right whales 

would be exposed to levels associated 

with TTS, and; the fact that many (not 

all) animals avoid sonar. Additionally, 

the Navy is capable of effectively 

monitoring a 1,000-meter safety zone 

using night vision goggles, infrared 

cameras, and passive acoustic 

monitoring. 

Monitoring and Reporting 

Comment 3: One commenter stated: 

‘‘The Navy should establish a long-term 

research program, perhaps conducted by 

NMFS or by an independent agent, on 

the distribution, abundance, and 

population structuring of protected 

species in the AFAST Study Area, with 

the goal of supporting adaptive 

geographic avoidance of high-value 

habitat.’’ Another commenter suggests 

that the Navy should conduct research 

and development of technologies to 

reduce the impacts of active acoustic 

sources on marine mammals. 

Response: The MMPA does not 

require that recipients of an incidental 

take authorization conduct research. 

However, NMFS has incorporated an 

adaptive management component into 

the AFAST rule which allows for yearly 

review of Navy monitoring and current 

science that could influence (allow for 

the potential modification of) 

monitoring and mitigation measures in 

subsequent LOAs, if appropriate. NMFS’ 

Mitigation EA specifically addresses 

NMFS’ and the Navy’s consideration of 

geographic avoidance of high-value 

habitat. Separately, the Navy has 

voluntarily developed and funded a 

number of research plans that are 

designed to address technologies to 

reduce the impacts of active acoustic 

sources on marine mammals (see 

Research section). 

Comment 4: One commenter states 

that the Navy should engage in timely 

and regular reporting to NOAA, state 

coastal management authorities, and the 

public to describe and verify use of 

mitigation measures during testing and 

training activities. 

Response: The Navy will be required 

to submit annual reports and the 

unclassified portions of these reports 

will be made available to the public 

through a Federal Register document 

announcing the issuance of subsequent 

LOAs. The reports will include a 

description of the mitigation measures 

implemented during major exercises 

and will also include an evaluation of 

the effectiveness of any mitigation 

measure implemented. 

Comment 5: One commenter stated 

that sighting information and other 

behavioral data (including records of 

breeding, feeding, interrupted or 

unusual behavior) obtained by the Navy 

should be provided to NMFS and other 

interested organizations. 

Response: Both the watchstanders, 

who are engaged in the Navy activities 

and responsible for detecting marine 

mammals for mitigation 

implementation, and the marine 

mammal observers (MMOs) 

implementing the Monitoring Plan, are 

responsible for recording their 

behavioral observations (the MMOs in 

greater detail) and then submitting them 

to NMFS in the required annual and 

comprehensive reports. Upon 

finalization of the reports, NMFS will 

make them available to the public via 

the NMFS Web site and through the 

Federal Register. 

Comment 6: Sightings of North 

Atlantic right whales should be reported 

regardless of the time of year or location 

to NMFS immediately. 

Response: In the southeast Atlantic, 

the Navy requires that Ships, surfaced 

subs, and aircraft shall report any 

NARW sightings to Fleet Area Control 

and Surveillance Facility 

(FACSFACJAX), Jacksonville, by the 

quickest and most practicable means. 

The sighting report shall include the 

time, latitude/longitude, direction of 

movement and number and description 

of whale (i.e., adult/calf). In the 

northeast Atlantic, the Navy requires 

that Ships, surfaced subs, and aircraft 

shall report any NARW sightings (if the 

whale is identifiable as a right whale) 

off the northeastern U.S. to Patrol and 

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Reconnaissance Wing 

(COMPATRECONWING). The report 

shall include the time of sighting, lat/ 

long, direction of movement (if 

apparent) and number and description 

of the whale(s). Both FACSFACJAX and 

COMPATRECONWING then report the 

information to NMFS. Because there is 

no NARW critical habitat in the midAtlantic region (area is not quite as 

critical as northeast and southeast) and 

the whales are less concentrated when 

migrating through the mid-Atlantic, the 

Navy does not require NARW reporting 

in the mid-Atlantic. 

Mitigation 

Comment 7: One commenter asserts 

that NMFS’ analysis ignores or 

improperly discounts an array of 

options that have been considered and 

imposed by other active sonar users, 

including avoidance of coastal waters, 

high-value habitat, and complex 

topography; the employment of a safety 

zone more protective than the 1000-yard 

power-down and 200-yard shutdown 

accepted by NMFS; general passive 

acoustic monitoring for whales; special 

rules for surface ducting and lowvisibility conditions; monitoring and 

shutdown procedures for sea turtles and 

large schools of fish; and many others. 

The commenter further provides a 

detailed list of 31 additional measures 

that should be considered. Other 

commenters made additional 

recommendations of mitigation 

measures that should be considered, 

including, especially, time and area 

closures in right whale calving grounds, 

feeding grounds, and migration 

corridors. 

Response: NMFS considered a wide 

range of mitigation options in our 

analysis, including those listed by the 

commenters. 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 affecting 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 

National Defense Authorization Act 

(NDAA) of 2004 amended the MMPA as 

it relates to military-readiness activities 

(which these Navy activities are) and 

the incidental take authorization 

process such that ‘‘least practicable 

adverse impact’’ shall include 

consideration of personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

‘‘military readiness activity’’. NMFS 

worked with the Navy to identify 

practicable and effective mitigation 

measures, which included a careful 

balancing of the likely benefit of any 

particular measure to the marine 

mammals with the likely effect of that 

measure on personnel safety, 

practicality of implementation, and 

impact on the ‘‘military-readiness 

activity’’. NMFS developed an 

Environmental Assessment (EA) that 

analyzes a suite of possible mitigation 

measures in regard to potential benefits 

for marine mammals (see goals of 

mitigation in the Mitigation section of 

this proposed rule) and practicability for 

the Navy. That EA, which considered all 

of the measures recommended by these 

public comments, is currently available 

on the NMFS Web site (http:// 

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

incidental.htm#applications) and has 

been relied upon to inform NMFS’ 

MMPA decision. 

Comment 8: NRDC recommends 

prescription of specific mitigation 

requirements for individual categories 

(or sub-categories) of testing and 

training activities, in order to maximize 

mitigation given varying sets of 

operational needs. Also, the Navy 

should require that other nations abide 

by U.S. mitigation measures when 

training in the AFAST Study Area, 

except where their own measures are 

more stringent. 

Response: The Navy’s standard 

protective measures include measures 

that are specific to certain categories of 

activities. For example, different 

exclusion zones are utilized for hullmounted sonar and dipping sonar, and 

different range clearance procedures are 

used for IEER sonobuoy exercises. 

Pursuant to the Navy’s 2000 Policy for 

Environmental Compliance at Sea, the 

commander or officer in charge of a 

major exercise shall provide 

participating foreign units with a 

description of the measures to protect 

the environment required of similar U.S. 

units as early as reasonable in the 

exercise planning process and shall 

encourage them to comply. However, 

foreign sovereign immune vessels may 

not be compelled to adopt such 

mitigation measures. 

Comment 9: The Marine Mammal 

Commission recommends that NMFS 

modify the Navy’s mitigation measures 

by requiring the Navy to delay 

resumption of full operational sonar use 

following a power-down or shutdown 

for 30 minutes if the sighted animal can 

be identified to the species level and the 

species is not deep diving and 60 

minutes if it cannot be identified or is 

known to be a member of a deep-diving 

species such as sperm and beaked 

whales. They further recommend that 

NMFS allow resumption of full 

operations before the end of the 30- 

minute period (when the species can be 

identified and is not a deep diver) or 60- 

minute period (the species cannot be 

determined or can be determined but is 

a deep diver) only when the Navy has 

good evidence that the marine mammal 

seen outside the safety zone is the same 

animal originally sighted within the 

zone. 

Response: NMFS does not concur 

with the MMC that we should expand 

the delay (until sonar can be restarted 

after a shutdown due to a marine 

mammal sighting) to 60 minutes for 

deep-diving species for the following 

reasons: 

• The ability of an animal to dive 

longer than 30 minutes does not mean 

that it will always do so. Therefore, the 

60-minute delay would only potentially 

add value in instances when animals 

had remained under water for more than 

30 minutes. 

• Navy vessels typically move at 10– 

12 knots (5–6 m/sec) when operating 

active sonar and potentially much faster 

when not. Fish et al. (2006) measured 

speeds of 7 species of odontocetes and 

found that they ranged from 1.4–7.30 m/ 

sec. Even if a vessel was moving at the 

slower typical speed associated with 

active sonar use, an animal would need 

to be swimming near sustained 

maximum speed for an hour in the 

direction of the vessel’s course to stay 

within the safety zone of the vessel. 

Increasing the typical speed associated 

with active sonar use would further 

narrow the circumstances in which the 

60-minute delay would add value. 

• Additionally, the times when 

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

the times when they are under the water 

for longer periods of time) are the same 

times that a large portion of their motion 

is in the vertical direction, which means 

that they are far less likely to keep pace 

with a horizontally moving vessel. 

• Given that, the animal would need 

to have stayed in the immediate vicinity 

of the sound source for an hour and 

considering the maximum area that both 

the vessel and the animal could cover in 

an hour, it is improbable that this would 

randomly occur. Moreover, considering 

that many animals have been shown to 

avoid both acoustic sources and ships 

without acoustic sources, it is 

improbable that a deep-diving cetacean 

(as opposed to a dolphin that might bow 

ride) would choose to remain in the 

immediate vicinity of the source. NMFS 

believes that it is unlikely that a single 

cetacean would remain in the safety 

zone of a Navy sound source for more 

than 30 minutes. 

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• Last, in many cases, the lookouts 

are not able to differentiate species to 

the degree that would be necessary to 

implement this measure. Plus, Navy 

operators have indicated that increasing 

the number of mitigation decisions that 

need to be made based on biological 

information is more difficult for the 

lookouts (because it is not their area of 

expertise). 

Comment 10: The MMC recommends 

that NMFS work with the Navy to 

validate the performance of Navy 

lookouts, to conduct similar testing to 

validate passive acoustic monitoring 

methods, and to complete such tests 

before the Navy proceeds with its 

AFAST training operations. 

Response: Navy lookouts are 

specifically trained to detect anomalies 

in the water around the ship and both 

the safety of Navy personnel and 

success in the training exercise depend 

on the lookout being able to detect 

objects (or marine mammals) effectively 

around the ship. NMFS has reviewed 

the Navy’s After Action Reports from 

previous exercises and they show that 

lookouts are detecting marine mammals, 

and implementing sonar shutdowns as 

required. That said, the AFAST 

Monitoring Plan contains a study in 

which Navy lookouts will be on watch 

simultaneously with non-Navy marine 

mammal observers and their detection 

rates will be compared. NMFS and the 

Navy have developed (since the 

proposed rule) more rigorous reporting 

requirements that should allow for more 

meaningful comparisons between Navy 

lookouts, Navy MMOs, and peerreviewed data, as well as meaningful 

comparisons between both occurrence 

and behavior of marine mammals in the 

presence and absence of sonar 

operation. NMFS agrees that the review 

of post-exercise reports is critical, and 

through the implementation of the more 

rigorous reporting requirements that 

have been laid out in the final rule 

(versus the proposed rule) we should be 

able to reach well-supported 

conclusions regarding the effects of 

MFAS on marine mammals. 

Additionally, the regulations and 

subsequent authorization would require 

the Navy to provide ‘‘an evaluation 

(based on data gathered during all of the 

major training exercises) of the 

effectiveness of mitigation measures 

designed to minimize the exposure of 

marine mammals to mid-frequency 

sonar. This evaluation shall identify the 

specific observations that support any 

conclusions the Navy reaches about the 

effectiveness of the mitigation included 

in the authorization.’’ Last, the rule 

contains an adaptive management 

component that specifies that NMFS 

and the Navy will meet on an annual 

basis to evaluate the Navy Reports (on 

both Navy lookout observations as well 

as Monitoring Plan reporting) and other 

new information (such as Navy R & D 

developments or new science) to 

ascertain whether mitigation or 

monitoring modifications are 

appropriate. 

The MMOs conducting the 

Monitoring pursuant to the Monitoring 

Plan are professional marine mammal 

scientists and NMFS does not believe 

that it is necessary to validate the 

methods that they use for passive 

acoustic monitoring. Currently, passive 

acoustics are used by Navy operators to 

increase awareness of nearby marine 

mammals, but are not used to directly 

trigger mitigation measures. Therefore, 

NMFS does not believe that a validation 

of those methods is necessary. 

Additionally, any systems used in the 

detection of marine mammals are the 

same systems used for enemy detection 

and NMFS is confidant that they are 

fully operational. NMFS acknowledges 

the opportunity for improvement via the 

use of dedicated passive or active sonar 

to detect marine mammals for 

mitigation implementation. However, 

current technology does not allow the 

Navy to detect, identify, and localize 

marine mammals and transmit this 

information to operators real-time while 

also not substantially reducing the 

effectiveness of the fast-paced and 

complicated exercises that the Navy 

must conduct. The Navy is committed, 

however, to technological development 

in the area of marine mammal 

protection and is currently funding 

multiple research projects towards this 

goal (see Research section). 

Comment 11: One commenter stated: 

The Navy’s proposed mitigation 

methods are woefully inadequate. If a 

marine mammal is spotted and reported 

within 1,000 yards of the sonar dome 

the sonar will not be stopped but will 

be turned down by a mere 6 decibels 

(from the normal operating level of 235 

db) to 229 decibels—still over 10 

million times more intense than the 

Navy’s human diver standard of 145 

decibels and over a million times more 

than the noise level received by the 

animals in the Bahamas incident of 

2000. 

Response: In order to analyze 

potential effects to marine mammals 

from sound it is important to 

understand the difference between 

source level (the sound level about 1 

meter from the sound source) and 

received level (the level that an animal 

hears, which is largely based on how far 

it is from the source). The commenter is 

comparing source levels (235 and 229 

dB) to a diver standard that is based on 

received level (as are all of the levels 

that are referenced by scientists in 

relation to marine mammal responses). 

Of note, many odontocete species 

vocalizations have been recorded in the 

field and the source levels estimated at 

above 210 dB, including sperm whales 

(up to 236 dB), Blainville’s and Cuvier’s 

beaked whales, bottlenose dolphins and 

pantropical and Atlantic spotted 

dolphins. The ability of the Navy’s 

mitigation measures to avoid injury is 

discussed in the response to comment 

#2. 

Additionally, the reference to 145 dB 

is incorrect. The Naval Sea Systems 

Command Instruction (NAVSEAINST) 

3150.2, ‘‘Safe Diving Distances from 

Transmitting Sonar,’’ is the Navy’s 

governing document for human divers 

in relation to mid-frequency active 

sonar systems. That instruction provides 

procedures for calculating safe distances 

from active sonars. Such procedures are 

derived from experimental and 

theoretical research conducted at the 

Naval Submarine Medical Research 

Laboratory and the Naval Experimental 

Diving Unit. Inputs to those procedures 

include diver dress, type of sonar, and 

distance from the sonar. The output is 

represented as a permissible exposure 

limits (i.e., how long the diver can safely 

stay at that exposure level). For 

example, a diver wearing a wetsuit 

without a hood has a permissible 

exposure limit of 71 minutes at a 

distance of 1000 yds from the AN/SQS– 

53 sonar. That same instruction advises 

that if the type of sonar is unknown, 

divers should start 1000 yds from the 

source and move closer (as needed) to 

the limits of diver comfort. If an 

interaction did occur, it is unlikely the 

active sonar activity would not be 

conducted close enough to a diver to 

trigger the permissible exposure limit. 

Assuming spherical spreading, the 1000 

yd distance equates to a receive level of 

approximately 175 dB. 

Of note, if spherical spreading is 

assumed, turning down the sonar by 6 

dB reduces the radial distance to any 

particular received level by half, which 

means that the ensonified area is 

decreased by approximately 75 percent. 

Comment 12: One commenter stated: 

‘‘According to the Navy’s proposed 

mitigation measures, the sonar will only 

be shut down when an animal is spotted 

within 200 yards of the sonar dome. By 

the time the sonar has traveled that far, 

it will already have been ensonified for 

many minutes with noise equivalent to 

that which caused the Bahamas whales 

to strand and die. To shut off the sonar 

when an animal is observed and 

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reported at 200 yards will already be too 

late.’’ 

Response: The required powerdown 

and shutdown zones, if properly 

implemented, will avoid exposing 

marine mammals to levels associated 

with injury and minimize the number of 

marine mammals exposed to levels 

associated with TTS (see Mitigation 

conclusion section of proposed rule). 

Sonar is not shutdown until or unless 

an animal approaches within 200 yds, 

However, if it is sighted at distances 

greater than 200 yds, the sound will 

already have been reduced as a result of 

either a 6-dB (1000 yds) or 10-dB (500 

yds) powerdown, which will have 

notably reduced the levels an animal is 

exposed to prior to entering the 200-yd 

safety zone. Separately, as discussed in 

NMFS’ response to comment #13, there 

is no way to know the levels that the 

whales in the Bahamas were exposed to 

that caused them to respond the way 

that they did. 

Comment 13: Several commenters 

were concerned that visual observation 

by lookouts would not be effective to 

detect marine mammals (especially 

beaked whales, which are only at 

surface 8 percent of the time and for 

which the chance of sighting has been 

calculated at about 2 percent, and 

especially in anything but calm 

weather). They were further concerned 

that, therefore, mitigation would not be 

effectively implemented and the Navy 

would not be able to avoid injuring 

marine mammals, as asserted by NMFS. 

Response: As explained in the 

proposed rule, injury of marine 

mammals is unlikely to occur because 

an animal would need to approach to 

within approximately 10 m of the 

source to be exposed to levels associated 

with injury (and animals are likely 

avoiding both vessels and sound sources 

at that close distance) combined with 

the fact that lookouts would likely 

detect most marine mammals at that 

close distance. NMFS acknowledges 

that beaked whales are notably more 

difficult to detect: however, the Navy 

model (which does not take mitigation 

or avoidance into consideration) 

predicted that 0 beaked whales would 

be exposed to injurious levels of sound. 

Nonetheless, NMFS acknowledges the 

opportunity for improvement via the 

use of dedicated passive or active sonar 

to detect marine mammals for 

mitigation implementation. However, 

current technology does not allow the 

Navy to detect, identify, and localize 

marine mammals and transmit this 

information to operators real-time while 

also not substantially reducing the 

effectiveness of the fast-paced and 

complicated exercises that the Navy 

must conduct. The Navy is committed, 

however, to technological development 

in the area of marine mammal 

protection and is currently funding 

multiple research projects towards this 

goal (see Research section). 

Acoustic Thresholds for TTS and PTS 

Comment 14: One commenter asserts 

that NMFS disregards data gained from 

actual whale mortalities. The 

commenter cites to peer-reviewed 

literature that indicates that sound 

levels at the most likely locations of 

beaked whales beached in the Bahamas 

strandings run far lower than the Navy’s 

threshold for injury here: approximately 

150–160 dB re 1 μPa for 50–150 

seconds, over the course of the transit. 

A further modeling effort, undertaken in 

part by the Office of Naval Research, the 

commenter states, suggests that the 

mean exposure level of beaked whales, 

given their likely distribution in the 

Bahamas’ Providence Channels and 

averaging results from various 

assumptions, may have been lower than 

140 dB re 1 μPa. Last the commenter 

suggests that when duration is factored 

in, evidence would support a maximum 

energy level (‘‘EL’’) threshold for serious 

injury on the order of 182 dB re 1 

μPa2•s, at least for beaked whales. 

Response: No one knows where the 

beaked whales were when they were 

first exposed to MFAS in the Bahamas 

or the duration of exposure for 

individuals (in regards to maximum EL) 

and, therefore, we cannot accurately 

estimate the received level that triggered 

the response that ultimately led to the 

stranding. Therefore, NMFS is unable to 

quantitatively utilize any data from this 

event in the mathematical model 

utilized to estimate the number of 

animals that will be ‘‘taken’’ incidental 

to the Navy’s proposed action. However, 

NMFS does not disregard the data. The 

proposed rule includes a qualitative 

discussion of the Bahamas stranding 

and four other strandings that NMFS 

and the Navy agree were likely 

attributable to MFAS. These data 

illustrate a ‘‘worst case scenario’’ of the 

range of potential effects from sonar and 

the analysis of these strandings supports 

the Navy’s request for authorization to 

take 10 individuals of several species by 

mortality over the 5-yr period. 

Comment 15: One commenter notes 

that in the SOCAL proposed rule, NMFS 

sets its threshold for temporary hearing 

loss and behavioral effects, or 

‘‘temporary threshold shift’’ (‘‘TTS’’), at 

183 dB re 1 μPa2•s for harbor seals, 204 

dB re 1 μPa2•s for northern elephant 

seals, and 206 dB re 1 FPa2•s for 

California sea lions (73 FR. 60878). 

However, the commenter notes, in the 

proposed rule for AFAST, NMFS 

indicates that the TTS threshold for 

pinnipeds is 183 dB re 1 μPa2•s for 

pinnipeds. NMFS does not explain the 

difference in thresholds. The 

commenter makes the same comment 

for the PTS thresholds (which are 20 dB 

higher than the TTS thresholds). 

Response: As noted in the SOCAL 

proposed rule, the TTS thresholds are 

183 dB re 1 FPa2•s for harbor seals (and 

closely related species), 204 dB re 1 

μPa2•s for northern elephant seals (and 

closely related species), and 206 dB re 

1 μPa2•s for California sea lions (and 

closely related species) (73 FR 60878). 

The commenter is correct, in the AFAST 

proposed rule, NMFS did not fully 

explain that all of the pinniped species 

that might be exposed to MFAS are 

‘‘closely related’’ to harbor seals (the 

thresholds for northern elephant seals 

and California sea lions are not 

applicable because these species are not 

present in the AFAST Study Area). 

Therefore, the 183 dB SEL is the 

pinniped threshold applied in AFAST. 

Accordingly, the AFAST final rule has 

been amended to clarify this issue and 

be consistent with the SOCAL final rule. 

The same answer applies to the 

comment about PTS thresholds. 

Comment 16: The Navy’s exclusive 

reliance on energy flux density as its 

unit of analysis does not take other 

potentially relevant acoustic 

characteristics into account. Reflecting 

this uncertainty, the Navy should 

establish a dual threshold for marine 

mammal injury. 

Response: NMFS currently uses the 

injury threshold recommended by 

Southall et al. (2007) for MFAS. 

Specifically, NMFS uses the 215-dB SEL 

sound exposure level threshold (the 

commenter refers to it as energy flux 

density level). Southall et al. (2007) 

presents a dual threshold for injury, 

which also includes a 230-dB peak 

pressure level threshold. NMFS 

discussed this issue with the Navy early 

in the MMPA process and determined 

that the 215-dB SEL injury threshold 

was the more conservative of the two 

thresholds (i.e., the 230-dB peak 

pressure threshold occurs much closer 

to the source than the 215-dB SEL 

threshold) and therefore it was not 

necessary to consider the 230-dB peak 

pressure threshold further. For example, 

an animal will be within the 215-dB 

SEL threshold and counted as a take 

before it is exposed to the 230-dB 

threshold. NMFS concurs with Southall 

et al. (2007), which asserts that for an 

exposed individual, whichever criterion 

is exceeded first, the more 

precautionary of the two measures 

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should be used as the operative injury 

criterion. 

Comment 17: One commenter states 

that the calculation of PTS (which is 

equated to the onset on injury) is based 

on studies of TTS that, as discussed 

below, are significantly limited. 

Response: NMFS addressed this issue 

in response to comments 13 through 15. 

Behavioral Harassment Threshold 

Comment 18: The NRDC submitted a 

comprehensive critique of the risk 

function (authored by Dr. David Bain), 

which NMFS has posted on our Web 

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

permits/incidental.htm#applications). 

NRDC summarized some general 

limitations of the risk function and 

included a fairly detailed critique of the 

specific structure of and parameters 

chosen for use in the model. Following 

are some of the general topics addressed 

in the letter: 

• Factors that Dr. Bain thinks should 

be addressed by the model, such as 

social interactions and multiple sources. 

• Critique of the datasets that NMFS 

used to populate the risk function 

(described Level B Harasssment—Risk 

Function section of the proposed rule): 

(1) Controlled Laboratory Experiments 

with Odontocetes (SSC Dataset); (2) 

Mysticete Field Study (Nowacek et al., 

2004), and (3) Odontocet Field Data 

(Haro Strait—USS Shoup). 

• Consideration of some datasets that 

were considered by NMFS, but not used 

in the risk function. 

• A critique of the parameters (A, B, 

and K) used in the risk function. 

• A sensitivity analysis of the 

parameters (i.e., takes were modeled 

while applying variable values for the 

A, B, and K values). 

Dr. Bain included a summary of his 

concerns and an abbreviated version is 

included below. Additionally (and not 

included in the summary), Dr. Bain 

suggested that the effect of multiple 

sources may be both different and 

greater than the effects of fewer sources 

and provided supporting examples. 

(comments that were in Dr. Bain’s 

summary, but have been addressed 

elsewhere in this Comment Response 

section are not included below): 

• In summary, development of a 

function that recognizes individual 

variation is a step in the right direction. 

• The selected equation is likely to 

produce underestimates of takes due to 

asymmetries in the number of 

individuals affected if parameters are 

either underestimated or overestimated 

due to uncertainty. Thus it will be 

important to use the risk function in a 

precautionary manner. 

• The sensitivity analysis reveals the 

importance of using as many datasets as 

possible. First, for historical reasons, 

there has been an emphasis on high 

energy noise sources and the species 

tolerant enough of noise to be observed 

near them. Exclusion of the rarer 

datasets demonstrating responses to low 

levels of noise biases the average 

parameter values, and hence 

underestimates effects on sensitive 

species. 

• A similar mistake was made with 

the right whale data. The level at which 

100 percent of individuals responded 

was used as the value at which 50 

percent of individuals responded (B+K). 

Likewise, the level at which 100 percent 

of killer whales responded to midfrequency sonar is less than the value 

derived for B+K in the HRC SDEIS 

(Dept. Navy 2008b). 

• It is likely that biological B values 

should be in the range from just 

detectable above ambient noise to 120 

dB re 1 μPa. The resulting mathematical 

B value could be tens of dB lower, not 

the 120 dB re 1 μPa proposed. For many 

species, risk may approach 100 percent 

in the range from 120–135 dB re 1 μPa, 

putting K in the 15–45 dB range. 

• The A values do not seem well 

supported by the data, and in any case, 

are likely to be misleading in social 

species as the risk function is likely to 

be asymmetrical with a disproportionate 

number of individuals responding at 

low noise levels. Rather than one 

equation fitting all species well, 

parameters are likely to be species 

typical. 

• As realistic parameter values are 

lower than those employed in the HRC 

SDEIS (Dept. Navy 2008b), AFAST DEIS 

(Dept. Navy 2008a) and related DEIS’s, 

take numbers should be recalculated to 

reflect the larger numbers of individuals 

likely to be taken. The difference 

between the parameter values estimated 

here and those used in the SDEIS 

suggests takes were underestimated by 

two orders of magnitude. 

Response: Many of the limitations 

outlined in Dr. Bain’s document were 

raised by other commenters and are 

addressed elsewhere in this Comment 

and Response Section and will not be 

addressed again here. Below, NMFS 

responds to the specific points 

summarized above. 

• The effects of multiple sources: 

Mathematically, the Navy’s exposure 

model has already accounted for takes 

of animals exposed to multiple sources 

in the number of estimated takes. NMFS 

concurs with the commenter, however, 

in noting that the severity of responses 

of the small subset of animals that are 

actually exposed to multiple sources 

simultaneously could potentially be 

greater than animals exposed to a single 

source due to the fact that received 

level, both SPL and SEL, would be 

slightly higher and because contextually 

it could be perceived as more 

threatening to an animal to receive 

multiple stimuli coming from 

potentially multiple directions at once 

(for example, marine mammals have 

been shown to respond more severely to 

sources coming directly towards them, 

vs. obliquely (Wartzok, 2004)). 

However, it is also worth noting that 

according to information provided by 

the Navy, surface vessels do not 

typically operate closer than 10–20 

miles from another surface vessel (and 

greater distance is ideal), and other 

sonar sources, such as dipping sonar 

and sonobuoys, are almost always used 

20 or more miles away from the surface 

vessel. This means that if the two most 

powerful sources were operating at the 

closest distance they are likely to (10 

miles), in the worst case scenario, 

animals that would have been exposed 

to 150 dB SPL or less (taken from table 

16 of the proposed rule) may be exposed 

to slightly higher levels or to similar 

levels or less coming from multiple 

directions. 

• Underestimates of takes due to 

asymmetries in the number of 

individuals affected when parameters 

are underestimated and overestimated 

due to uncertainty: The commenter’s 

point is acknowledged. When a 

sensitivity analysis is conducted and 

parameters are varied (both higher and 

lower values used)—the degree of 

difference in take estimates is much 

greater when the parameter is adjusted 

in one direction than in the other, 

which suggests the way that this 

generalized model incorporates 

uncertainty may not be conservative. 

However, in all cases when the 

adjustment of the parameter in a certain 

direction results in a disproportionately 

(as compared to an adjustment in the 

other direction) large increase in the 

number of takes, it is because the model 

is now estimating that a larger 

percentage of animals will be taken at 

greater distances from the source. This 

risk function is based completely on the 

received level of sound. As discussed in 

the proposed rule, there are other 

contextual variables that are very 

important to the way that an animal 

responds to a sound, such as nearness 

of the source, relative movement 

(approaching or retreating), or the 

animals familiarity with the source. 

Southall et al. (2007) indicates that the 

presence of high-frequency components 

and a lack of reverberation (which are 

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indicative of nearness) may be more 

relevant acoustic cues of spatial 

relationship than simply exposure level 

alone. In the AFAST activities, an 

animal exposed to between 120 and 130 

dB may be more than 75 nm from the 

sonar source. NMFS is not aware of any 

data that describe the response of any 

marine mammals to sounds at that 

distance, much less data that indicate 

that an animal responded in a way we 

would classify as harassment at that 

distance. Because of this, NMFS does 

not believe it is currently possible or 

appropriate to modify the model to 

further address uncertainty if doing so 

results in the model predicting that 

much larger numbers of animals will be 

taken at great distances from the source 

when we have no data to suggest that 

that would occur. 

• Using many datasets: NMFS has 

explained both in the rule, and then 

again elsewhere in these comments, 

why we chose the three datasets we did 

to define the risk function. As Dr. Bain 

points out, there are datasets that report 

marine mammal responses to lower 

levels of received sound. However, 

because of the structure of the curve 

NMFS is using and what it predicts 

(Level B Harassment), we need datasets 

that show a response that we have 

determined qualifies as harassment (in 

addition to needing a source that is 

adequately representative of MFAS and 

reliable specific received level 

information), which many of the lower 

level examples do not. 

• 50 percent vs. 100 percent response: 

Dr. Bain asserts that two of the three 

datasets (Nowacek et al., 2004 and Haro 

Strait—USS SHOUP) that NMFS uses to 

derive the 50 percent response 

probability in the risk function actually 

report a 100 percent response at the 

indicated received levels. For the Haro 

Strait dataset, a range of estimated 

received levels at the closest approach 

to the J Pod were estimated. Given that 

neither the number of individual 

exposures or responses were available, 

the mean of this range was used as a 

surrogate for the 50 percent response 

probability in the development of the 

risk function. For the Nowacek data, 

NMFS used 139.2 dB, which is the 

mean of the received levels at which 5 

of 6 animals showed a significant 

response to the signal. However, viewed 

another way, of 6 animals, one animal 

did not respond to the signal and the 

other five responded at received levels 

of 133 dB, 135 dB, 137 dB, 143 dB, and 

148 dB, which means that 3 of the 6 

animals (50 percent) showed a 

significant response at 139.2 dB or less. 

• 120 dB basement value: When the 

broad array of data reported from 

exposures across taxa and to varied 

sources are reviewed, NMFS believes 

that 120 dB is an appropriate B value for 

a curve designed to predict responses 

that rise to the level of an MMPA 

harassment (not just any response). The 

available data do not support the 

commenter’s assertion that risk may 

approach 100 percent in the range from 

120–135 dB for many species. For 

example, the Southall et al. (2007) 

summary of behavioral response data 

clearly shows, in almost every table (for 

all sound types), reports of events in 

which animals showed no observable 

response, or low-level responses NMFS 

would not likely consider harassment, 

in the 120 to 135-dB range. For the 

species (the harbor porpoise) for which 

the data do support that assertion, 

which the Southall et al. (2007) paper 

considers ‘‘particularly sensitive’’, 

NMFS has implemented the use of a 

species-specific step function threshold 

of 120 dB SPL. 

• The A value: Please see the second 

bullet of this response for the first part 

of the answer. NMFS concurs with the 

commenter that species-specific 

parameters would likely be ideal, 

however there are not currently enough 

applicable data to support separate 

curves for each species. We note, 

though, that even with species-specific 

parameters, the context of the exposure 

will still likely result in a substantive 

variability of behavioral responses to the 

same received level by the same species. 

• Recalculation: For the reasons 

described in the bullets above in this 

response, NMFS disagrees with the 

commenter’s assertion that the 

parameters used in the proposed rule 

and the EIS are unrealistic and that they 

result in take estimates that are too 

small by two orders of magnitude. We 

do not believe that a recalculation is 

necessary. 

The science in the field of marine 

mammals and underwater sound is 

evolving relatively rapidly. NMFS is in 

the process of revisiting our acoustic 

criteria with the goal of developing a 

framework (Acoustic Guidelines) that 

allows for the regular and scientifically 

valid incorporation of new data into our 

acoustic criteria. We acknowledge that 

this model has limitations, however, the 

limitations are primarily based on the 

lack of applicable quantitative data. We 

believe that the best available science 

has been used in the development of the 

criteria used in this and other 

concurrent Navy rules and that this 

behavioral harassment threshold far 

more accurately represents the number 

of marine mammals that will be taken 

than the criteria used in the RIMPAC 

2006 authorization. We appreciate the 

input from the public and intend to 

consider it further as we move forward 

and develop the Acoustic Guidelines. 

Comment 19: One commenter 

expressed the concern that NMFS 

blindly relies on TTS studies conducted 

on 7 captive animals of two species (to 

the exclusion of copious data on 

animals in the wild) as a primary source 

of data for the behavioral harassment 

threshold. The commenter further 

asserts that these studies (on highly 

trained animals that do not represent a 

normal range of variation within their 

own species, as they have been housed 

in a noisy bay for most of their lives) 

have major deficiencies, which NMFS 

ignores by using the data. 

Response: As mentioned in comment 

#18, the SSC Dataset (Controlled 

Laboratory Experiments with 

Odontocetes) is not the primary source 

of data for the behavioral harassment 

threshold; rather, it is one of three 

datasets (other two datasets are from 

wild species exposed to noise in the 

field) treated equally in the 

determination of the K value (equates to 

midpoint) of the behavioral risk 

function. NMFS recognizes that certain 

limitations may exist when one 

develops and applies a risk function to 

animals in the field based on captive 

animal behavioral data. However, we 

note that for the SSC Dataset: (1) 

Researchers had superior control over 

and ability to quantify noise exposure 

conditions; (2) behavioral patterns of 

exposed marine mammals were readily 

observable and definable; and, (3) 

fatiguing noise consisted of tonal noise 

exposures with frequencies contained in 

the tactical mid-frequency sonar 

bandwidth. NMFS does not ignore the 

deficiencies of these data, rather we 

weighed them against the value of the 

data and compared the dataset to the 

other available datasets and decided 

that the SSC dataset was one of the three 

appropriate datasets to use in the 

development of the risk function. 

Comment 20: One commenter stated 

‘‘NMFS excludes a substantial body of 

research on wild animals (and some 

research on other experimental animals 

as well, within a behavioral 

experimental protocol). Perhaps most 

glaringly, while the related DEIS 

prepared for the Navy’s AFAST 

activities appears to acknowledge the 

strong sensitivity of harbor porpoises by 

setting an absolute take threshold of 120 

dB (SPL)—a sensitivity that, as NMFS 

has noted, is reflected in numerous wild 

and captive animal studies—the 

agencies improperly fail to include any 

of these studies in their data set. The 

result is clear bias, for even if one 

assumes (for argument’s sake) that the 

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SPAWAR data has value, NMFS has 

included a relatively insensitive species 

in setting its general standard for marine 

mammals while excluding a relatively 

sensitive one.’’ 

Response: As explained in the Level 

B Harassment (Risk Function) section of 

the proposed rule the risk function is 

based primarily on three datasets (SSC 

dataset, Nowacek et al. (2004), and Haro 

Strait—USS SHOUP) in which marine 

mammals exposed to mid-frequency 

sound sources were reported to respond 

in a manner that NMFS would classify 

as Level B Harassment. NMFS 

considered the ‘‘substantial body of 

research’’ that the commenter refers to 

but was unable to find other datasets 

that were suitable in terms of all of the 

following: The equivalency of the sound 

source to MFAS, a reported behavioral 

response that NMFS would definitively 

consider Level B Harassment, and a 

received level reported with high 

confidence. The SSC dataset is only one 

of three used and, in fact, the other 2 

datasets (which are from wild animals— 

killer whales and North Atlantic right 

whales) both report behavioral 

responses at substantively lower levels 

(i.e., the ‘‘relatively insensitive’’ species 

is not driving the values in the 

function). 

Comment 21: The risk function must 

take into account the social ecology of 

some marine mammal species. For 

species that travel in tight-knit groups, 

an effect on certain individuals can 

adversely influence the behavior of the 

whole. Should those individuals fall on 

the more sensitive end of the spectrum, 

the entire group or pod can suffer 

significant harm at levels below what 

the Navy would use as the mean. In 

developing its ‘‘K’’ parameter, NMFS 

must take into account the potential for 

indirect effects. 

Response: The risk function is 

intended to define the received level of 

MFAS at which exposed marine 

mammals will experience behavioral 

harassment. The issue the commenter 

raises is related to the Navy’s exposure 

model—not the risk function. However, 

because of a lack of related data there 

is no way to numerically address this 

issue in the model. Although the point 

the commenter raises could potentially 

apply, one could also assert that if 

certain animals in a tight knit group 

were less sensitive it would have the 

opposite effect on the group. 

Additionally, the modeling is based on 

uniform marine mammal density 

(distributed evenly over the entire area 

of potential effect), which does not 

consider the fact that marine mammals 

appearing in pods will be easier to 

detect and therefore the Navy will be 

more likely to implement mitigation 

measures that avoid exposing the 

animals to the higher levels received 

within 1000 m of the source. 

Comment 22: One commenter stated 

‘‘NMFS appears to have misused data 

garnered from the Haro Strait incident— 

one of only three data sets it considers— 

by including only those levels of sound 

received by the ‘‘J’’ pod of killer whales 

when the USS Shoup was at its closest 

approach. These numbers represent the 

maximum level at which the pod was 

harassed; in fact, the whales were 

reported to have broken off their 

foraging and to have engaged in 

significant avoidance behavior at far 

greater distances from the ship, where 

received levels would have been orders 

of magnitude lower. We must insist that 

NMFS provide the public with the 

Navy’s propagation analysis for the Haro 

Strait event, which it used in preparing 

its 2005 Assessment of the incident.’’ 

Response: For the specific application 

in the risk function for behavioral 

harassment, NMFS used the levels of 

sound received by the ‘‘J’’ pod when the 

USS Shoup was at its closest approach 

because a review of the videotapes and 

other materials by NMFS detailing the 

behavior of the animals in relation to 

the location of the Navy vessels showed 

that it was after the closest approach of 

the vessel that the whales were observed 

responding in a manner that NMFS 

would classify as ‘‘harassed’’. Though 

animals were observed potentially 

responding to the source at greater 

distances, NMFS scientists believed that 

the responses observed at greater 

distances were notably less severe and 

would not rise to the level of MMPA 

harassment. Though the received levels 

observed in relation to the lesser 

responses could be used in some types 

of analytical tools, the risk continuum 

specifically requires that we use 

received sound levels that are 

representative of when MMPA 

harassment likely occurred. The Navy’s 

report may be viewed at: http:// 

www.acousticecology.org/docs/ 

SHOUPNavyReport0204.pdf. 

Comment 23: One commenter asserts 

that NMFS’ threshold is applied in such 

a way as to preclude any assessment of 

long-term behavioral impacts on marine 

mammals. It does not account, to any 

degree, for the problem of repetition: the 

way that apparently insignificant 

impacts, such as subtle changes in dive 

times or vocalization patterns, can 

become significant if experienced 

repeatedly or over time. 

Response: NMFS’ threshold does not 

preclude any assessment of long-term 

behavioral impacts on marine mammals. 

The threshold is a quantitative tool that 

NMFS uses to estimate individual 

behavioral harassment events. 

Quantitative data relating to long-term 

behavioral impacts are limited, and 

therefore NMFS’ assessment of longterm behavioral impacts is qualitative in 

nature (see Diel Cycle section in 

Negligible Impact Analysis section). 

NMFS’ analysis discusses the potential 

significance of impacts that continue 

more than 24 hours and/or are repeated 

on subsequent days and, though it does 

not quantify those impacts, further 

indicates that these types of impacts are 

not likely to occur because of the nature 

of the Navy’s training activities and the 

large area over which they are 

conducted. 

Effects Analysis 

Comment 24: One commenter stated: 

‘‘NMFS does not properly account for 

reasonably foreseeable reverberation 

effects (as in the Haro Strait incident), 

giving no indication that its modeling 

sufficiently represents areas in which 

the risk of reverberation is greatest.’’ 

Response: The model does indirectly 

incorporate surface-ducting (surface 

reverberation), as conditions in the 

model are based on nominal conditions 

calculated from a generalized digitalized 

monthly average. Though the model 

does not directly consider 

reverberations, these effects are 

generally at received levels many orders 

of magnitude below those of direct 

exposures (as demonstrated in the Haro 

Strait analysis associated with bottom 

reverberation) and thus contribute 

essentially nothing to the cumulative 

SEL exposure and would not result in 

the exposure of an animal to a higher 

SPL than the direct exposure, which is 

already considered by the model. 

Comment 25: One commenter states 

that though the numbers of animals that 

the Navy predicts its proposal will 

impact are worryingly high, they believe 

them to be gross underestimates of the 

real numbers of animals potentially at 

risk because of the thresholds the Navy 

is using to predict behavioral 

disturbance and levels of deafness. The 

Navy is using 215 dB (re 1 μPa2-s) as the 

threshold above which it says 

permanent deafness (PTS) will occur 

and 195 dB (re 1 μPa2-s) as the threshold 

above which it says temporary deafness 

(TTS) will occur. Behavioral impacts are 

predicted based on a dose response 

function. 

Response: Contrary to what the 

commenter states, in the Model 

Overestmation section of the proposed 

rule NMFS clearly explains why the 

authorized take numbers are likely 

notably higher than the takes that will 

actually occur. 

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To clarify, PTS is not permanent 

deafness, rather it is permanent 

threshold shift, which means that the 

hearing sensitivity has been 

permanently reduced by a certain 

amount, which could be a small amount 

or a larger amount (the longer and 

higher level the exposure to the sound, 

the more likely PTS will be of a larger 

amount). Of note, reduced hearing 

sensitivity as a simple function of 

development and aging has been 

observed in marine mammals, as well as 

humans and other taxa (Southall et al., 

2007), so we can infer that strategies 

exist for coping with this condition to 

some degree, though likely not without 

cost. There is no empirical evidence that 

exposure to MFAS/HFAS can cause PTS 

in any marine mammals; instead the 

probability of PTS has been inferred 

from studies of TTS. Similarly, TTS is 

not temporary deafness, rather a 

temporary reduction in hearing 

sensitivity. 

Comment 26: NMFS fails to include 

data from the July 2004 Hanalei Bay 

event, in which 150–200 melon-headed 

whales were embayed for more than 24 

hours during the Navy’s Rim of the 

Pacific exercise. According to the 

Navy’s analysis, predicted mean 

received levels (from mid-frequency 

sonar) inside and at the mouth of 

Hanalei Bay ranged from 137.9 dB to 

149.2 dB. NMFS’ failure to incorporate 

these numbers into its methodology as 

another data set is not justifiable. 

Response: NMFS’ investigation of the 

Hanalei event concluded that there was 

insufficient evidence to determine 

causality. There are a number of 

uncertainties about sonar exposure and 

other potential contributing factors and 

assumptions inherent to a 

reconstruction of events in which sonar 

was the causative agent that simply 

preclude this determination. Because of 

this, NMFS did not use the numbers 

(137.9–149.2 dB) in our methodology. 

Additionally, even if NMFS had 

concluded that MFAS were the 

causative agent, insufficient evidence 

exists regarding the received level when 

the animals responded (there is no 

information regarding where they were 

when they would have first heard the 

sound). 

Comment 27: Two commenters noted 

that little is known about most species 

of beaked whales and most of that 

knowledge has come from carcasses, as 

sightings of live animals are generally 

rare. With few exceptions, there is 

almost nothing known about beaked 

whale population structure, sizes, or 

trends in the waters off the east coast of 

the U.S, so determining the impact of 

the loss of a few individuals to the 

population is impossible. Since most 

species are pelagic, there is also no way 

to know the real number killed in a 

particular event: not all injured animals 

strand, and not all carcasses find their 

way to a beach. There is even less 

known about non-lethal impacts, such 

as disruption of mother-calf bonds. 

Response: The commenter is correct 

that relatively little is known about 

beaked whale population structure, 

sizes, and trends off the east coast of the 

U.S. However, we do know that the 

Navy’s ASW exercises are spread 

throughout the AFAST Study Area (as 

opposed to focused in an area of known 

particular importance) and that the 

Navy is utilizing Planning Awareness 

Areas (in both exercise planning and 

implementation, where practicable) to 

limit takes of marine mammals 

(including beaked whales) in designated 

areas of high productivity and steep 

bathymetric contours, which are 

frequented by deep diving marine 

mammals like beaked whales (see 

Planning Awareness Areas in proposed 

rule). Comment responses 12 and 36 

discuss the likelihood of beaked whales 

being injured by MFAS. Though not all 

dead or injured animals are expected to 

end up on the shore (some may be eaten 

or float out to sea), we would expect 

that if marine mammals were being 

harmed by active sonar with any 

regularity, more evidence would have 

been detected over the 40-yr period that 

the Navy has been conducting sonar in 

the area (30 of which, people have 

actively been collecting stranding data). 

Of note also, the MFAS use covered by 

this rule is not an increase in the 

amount of sonar conducted off the east 

coast and in the Gulf of Mexico (i.e., the 

amount of use is consistent with historic 

effort). Last, the potential impacts to 

cetacean mother-calf pairs from sonar 

are specifically discussed in Potential 

Effects of Specified Activities on Marine 

Mammals section of the proposed rule. 

However, as the commenter suggests, 

the specific effects of MFAS on beaked 

whales and their calves are not 

discussed because specific data do not 

exist. For the reasons listed here and 

described in the Negligible Impact 

Analysis section of the proposed rule, 

NMFS has determined that the Navy’s 

action will have a negligible impact on 

beaked whales. 

Comment 28: One commenter noted 

that the Navy states that it is helping to 

fund (with NMFS) a series of controlled 

exposure experiments on wild whales, 

the first of which took place in the 

Bahamas in 2007. Yet preliminary 

results from this experiment support a 

much lower threshold for behavioral 

impacts than the Navy is using. In the 

experiment, only one successful 

playback experiment on a beaked whale 

was achieved and in it a tagged 

Blainville’s beaked whale displayed a 

probable behavioral response at a 

received level of MFA sonar of 145 dB 

re 1μPa [rms]. The precautionary 

principle should be applied and the 

Navy should, at a minimum, curb its 

activities around known areas of high 

marine mammal density and at times 

when marine animals are expected to be 

present. 

Response: As the commenter notes, 

the results from the first in the series of 

behavioral response studies conducted 

by NMFS and other scientists did show 

one beaked whale (Mesoplodon 

densirostris) responding to an MFAS 

playback. The BRS–07 Cruise report 

indicates that the playback began when 

the tagged beaked whale was vocalizing 

at depth (at the deepest part of a typical 

feeding dive), following a previous 

control with no sound exposure. The 

whale appeared to stop clicking 

significantly earlier than usual, when 

exposed to mid-frequency signals in the 

130–140 dB (rms) range. After a few 

more minutes of the playback, when the 

received level reached a maximum of 

140–150 dB, the whale ascended on the 

slow side of normal ascent rates with a 

longer than normal ascent, at which 

point the exposure was terminated. As 

the commenter noted, the whale 

displayed a behavioral response: 

However, further consideration by 

NMFS is necessary to determine if this 

behavioral response qualifies as a 

behavioral harassment pursuant to the 

MMPA, and if so, how the information 

should be factored into NMFS’ analysis. 

The advanced modeling tool that the 

Navy uses to predict the take of marine 

mammals incidental to any particular 

activity takes weeks and sometimes 

months to produce the take estimates. 

NMFS worked at length, with input 

from the Navy and from a panel of 

marine mammal scientists, to develop 

and finalize the risk continuum for 

behavioral harassment. It took months 

for NMFS to finalize the risk continuum 

and months for the Navy to calculate the 

estimated takes based on the current 

continuum. NMFS and the Navy are 

working together to bring the Navy’s 

AFAST activities into compliance under 

the MMPA in advance of the expiration 

of the MMPA National Defense 

Exemption, and it was necessary for 

NMFS to continue moving forward (not 

wait for new data) in the MMPA process 

in order to complete the final rule in the 

needed timeframe to accomplish this. 

This is not to definitively say that this 

new information will change the way 

that NMFS quantitatively analyzes 

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effects. The interpretation of data 

presented in the report notes that the 

results are from a single experiment and 

that a greater sample size is needed 

before robust conclusions can be drawn. 

Also, the results from this study fall 

under the curve that NMFS is using for 

behavioral effects (though the low end 

of the curve). That said, NMFS will 

carefully consider these results and 

subsequent BRS results in future 

analyses. 

This final rule contains an adaptive 

management component that requires a 

yearly review of monitoring reports and 

new science and allows for the 

modification of mitigation and 

monitoring measures, when appropriate. 

As noted in the response to comment 

#30, the Navy currently uses the 

Planning Awareness Areas (designated 

based on high productivity and steep 

bathymetric contour areas) to limit 

marine mammal impacts during both 

exercise planning and implementation. 

Additional detail regarding the potential 

use of other specific mitigation 

measures can be found in the Mitigation 

EA. 

Comment 29: NMFS’ and the Navy’s 

assessment glosses over stranding 

events associated with active sonar. 

Although NMFS briefly discusses 

stranding events (73 FR 60776–80), the 

Marine Mammal Protection Act requires 

NMFS to fully consider the impacts of 

sonar on marine mammals to determine 

there is no more than a negligible 

impact before issuing an incidental take 

authorization. 

Response: NMFS disagrees. The 

proposed rule contains a detailed 

discussion of stranding events (those 

that were merely coincident with MFAS 

use, as well as those for which the 

evidence suggests that MFAS exposure 

was a contributing factor), a detailed 

discussion of the multiple hypotheses 

that describe how acoustically-mediated 

or behaviorally-mediated bubble growth 

can lead to marine mammal strandings, 

as well as a comprehensive discussion 

of the more general potential effects to 

marine mammals of MFAS exposure. 

NMFS analyses fully considered the 

impacts of MFAS use and other naval 

exercises on marine mammals, which 

allowed us to determine that the total 

taking during the five-year period from 

the specified activities will have a 

negligible impact on the affected species 

or stocks. 

Comment 30: One commenter states: 

‘‘NMFS fails to take proper account of 

published research on bubble growth in 

marine mammals, which separately 

indicates the potential for injury and 

death at lower [received sound] levels. 

According to the best available scientific 

evidence, gas bubble growth is the 

causal mechanism most consistent with 

the observed injuries. NMFS’ argument 

to the contrary simply misrepresents the 

available literature.’’ 

Response: The proposed rule 

contained a detailed discussion of the 

many hypotheses involving both 

acoustically-mediated and behaviorallymediated bubble growth. NMFS 

concluded that there is not sufficient 

evidence to definitively say that any of 

these hypotheses accurately describe the 

exact mechanism that leads from sonar 

exposure to a stranding. Despite the 

many theories involving bubble 

formation (both as a direct cause of 

injury and an indirect cause of 

stranding), Southall et al., (2007) 

summarizes that scientific disagreement 

or complete lack of information exists 

regarding the following important 

points: (1) Received acoustical exposure 

conditions for animals involved in 

stranding events; (2) pathological 

interpretation of observed lesions in 

stranded marine mammals; (3) acoustic 

exposure conditions required to induce 

such physical trauma directly; (4) 

whether noise exposure may cause 

behavioral reactions (such as atypical 

diving behavior) that secondarily cause 

bubble formation and tissue damage; 

and (5) the extent the post mortem 

artifacts introduced by decomposition 

before sampling, handling, freezing, or 

necropsy procedures affect 

interpretation of observed lesions. 

Comment 31: One commenter stated 

that NMFS’ take estimates do not reflect 

other non-auditory physiological 

impacts, such as from chronic exposure 

during development, stress, and 

exposure to toxic chemicals. 

Response: The commenter is correct 

that the NMFS’ estimated take numbers 

do not reflect non-auditory 

physiological impacts because the 

quantitative data necessary to address 

those factors in the Navy’s exposure 

model do not exist. However, NMFS 

acknowledges that a subset of the 

animals that are taken by harassment 

will also likely experience non-auditory 

physiological effects (stress, etc.) and 

these effects are addressed in the 

proposed rule (see Stress Responses 

section). Regarding toxins, the Navy did 

not expect AFAST activities to result in 

the production of any toxic chemicals 

that would affect marine mammals, 

although the EIS did analyze the 

potential impacts from torpedo 

guidance wires, torpedo flex hoses, and 

parachutes and find that no significant 

impacts to marine mammals were likely 

to result from those expended materials. 

Therefore, the Navy determined that 

marine mammals would not be taken 

via the ingestion of toxins or interaction 

with the aforementioned expended 

materials and they did not request (nor 

did NMFS grant) authorization for take 

of marine mammals via these methods. 

Comment 32: The MMC recommends 

that the Service work with the Navy to 

prepare a more thorough analysis of 

potential cumulative effects, the 

measures that will be taken to avoid or 

minimize them, and the basis for 

concluding that those effects will be 

negligible. They further note that the 

DEIS, request for a letter of 

authorization, and proposed rule, do not 

describe how the effects of the Navy’s 

operations and the effects of other 

human activities (e.g., ship traffic, 

commercial fishing) will be assessed 

and minimized to the extent necessary 

to avoid an excessive cumulative impact 

on marine mammals. 

Response: NMFS participated as a 

cooperating agency in the development 

of the Navy’s AFAST EIS and has 

adopted it to support our issuance of 

incidental take regulations and LOAs. 

The FEIS contains a thorough analysis 

of potential cumulative effects. 

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 statute 

implementation (ESA, NEPA, MSA, 

CZMA, etc.) and more directly through 

policy and other decisions, 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. However, the MMPA does not 

require that cumulative effects be 

factored into NMFS’ determination 

whether to issue an incidental take 

authorization under the MMPA. Rather, 

the MMPA states that NMFS ‘‘shall 

allow * * * the incidental taking * * * 

if the Secretary * * * finds that the 

total taking [meaning the taking NMFS 

authorizes] during each five-year (or 

less) period concerned will have a 

negligible impact.’’ 

Comment 33: One commenter felt that 

the rule discounts the potential impacts 

on beaked whales from AFAST based on 

assumptions that are unfounded. The 

first is that strandings are unlikely to 

occur because events are not planned 

‘‘in a location having a constricted 

channel less than 35 miles wide or with 

limited egress similar to the Bahamas 

(because none exist in the AFAST Study 

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Area)’’. The commenter notes that 

sonar-associated beaked whale 

mortalities have occurred in other areas 

(e.g. the Canary Islands in 2002 and 

2004) where such bathymetry was not 

present, suggesting this as not a 

requisite characteristic for sonarinfluenced strandings. The second is the 

observation that unusual strandings 

have not been recorded to date in the 

region is not an indication that 

mortalities have not occurred. Given 

that most species of cetaceans sink upon 

death, and that most beaked whales 

occur in very deep water which would 

prevent decomposing carcasses from 

eventually refloating, it is highly 

unlikely that whales suffering mortal 

injury at sea would have been detected. 

This is especially true in offshore/island 

regions, where there is limited shoreline 

throughout much of the operational 

area, and much of it is steep or rocky 

and not conducive to holding moribund 

individuals or carcasses. 

Response: The rule does not discount 

the potential impacts on beaked whales 

from sonar. NMFS specifically 

addresses the potential impacts to 

beaked whales in the ‘‘Acoustically 

Mediated Bubble Growth’’, 

‘‘Behaviorally Mediated Responses to 

MFAS That May Lead to Stranding’’, 

‘‘Stranding and Mortality’’, and 

‘‘Association Between Mass Stranding 

Events and Exposure to MFAS’’ sections 

of the proposed rule. Specifically, in 

recognition of potential impacts to 

beaked whales and the scientific 

uncertainty surrounding the exact 

mechanisms that lead to strandings, the 

Navy requested, and NMFS has 

authorized, the mortality of 10 beaked 

whales over the course of 5 years in the 

unlikely event that a stranding occurs as 

a result of Navy training exercises. 

Additionally, the commenter is 

misrepresenting a piece of text from the 

proposed rule—though NMFS points 

out that the five factors that contributed 

to the stranding in the Bahamas are not 

all present in the AFAST Study Area, 

we do not say that that alone means 

strandings are unlikely to occur. We 

also further suggest that caution is 

recommended when any of the three 

environmental factors are present 

(constricted channels, steep bathymetry, 

or surface ducts) in the presence of 

MFAS and beaked whales. Also, NMFS 

does not ever say that the fact that 

strandings have not been recorded to 

date in the region is an indication that 

mortalities have not occurred. Rather, 

we say that though 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 

active sonar with any regularity, more 

evidence would have been detected over 

the 40-yr period that the Navy has been 

conducting sonar in the area (30 of 

which, people have actively been 

collecting stranding data). 

Comment 34: The MMC 

recommended that NMFS work with the 

Navy to provide in the final rule and EIS 

a side-by-side comparison of the 

methods each agency used to generate 

the sound exposure estimates so that 

reviewers can understand the process by 

which they were derived and the 

uncertainties associated with that 

process, and use that information to 

assess the risks to marine mammal 

species and the adequacy of mitigation 

measures. The MMC also requested an 

explanation of how NMFS ‘‘revised take 

estimates and proposed take 

authorization’’ ‘‘depict a more realistic 

scenario than those adopted directly 

from the Navy’s acoustic analysis.’’ Last, 

MMC notes that they have requested in 

the past that the Navy submit its sonar 

exposure model for peer-review. 

Response: As indicated in the 

Estimates of Potential Marine Mammal 

Exposures and Takes section of the 

proposed rule, Appendix F of the 

Navy’s AFAST EIS clearly describes the 

analytical procedures and provides the 

data used to estimate the number of 

marine mammal exposures to NMFS 

acoustic threshold levels in sufficient 

detail that the reviewers can understand 

and verify the estimated risks. However, 

reviewers would not be able to 

reconstruct the process exactly because 

inherent to the overall exposure model 

is the CASS/GRAB submodel, the 

specific details of which cannot be 

included in the EIS because the model 

is a Navy owned, restricted distribution 

model available only to U.S. 

Government Agencies and their 

contractors. This high fidelity acoustic 

propagation model (CASS/GRAB) used 

for marine mammal effects analysis is 

the same model used for the operational 

use of tactical sonar, and it is included 

in the Navy’s Oceanographic and 

Atmospheric Master Library (OAML), 

which has a rigorous acceptance process 

for all databases, models and algorithms 

prior to being accepted into OAML. 

The Navy provides the numbers of 

estimated marine mammal exposures to 

NMFS. These numbers (presented in the 

‘‘Navy Modeled Exposure Estimates’’ 

columns of Table 6) do not take into 

consideration any avoidance of vessels 

or sound sources by marine mammals or 

the implementation of mitigation 

measures. As described in the 

Mitigation Conclusion section of the 

proposed rule, when the distance from 

the sonar source within which an 

animal would need to approach to be 

exposed to injurious levels (10 m), the 

small number of modeled exposures to 

injurious levels to a few species (of 

relatively good detectibility: dolphins 

and pilot whales), the implementation 

of mitigation measures, and the 

likelihood that most marine mammals 

would avoid approaching the source at 

this distance are taken into 

consideration, NMFS and the Navy 

believe that marine mammals will not 

be injured by sonar exposure. Therefore, 

NMFS has not authorized any Level A 

Harassment, with the exception of the 

10 beaked whales (by injury or 

mortality) over the course of the 5-yr 

regulations, the reasons for which are 

explained in the Mortality section of the 

proposed rule. These are the only 

quantitative adjustments NMFS has 

made to the authorized takes from the 

Navy’s modeled exposure results. NMFS 

has directly adopted the Navy’s Level B 

Harassment exposures as modeled, 

though we qualitatively explain in the 

proposed rule why we believe these 

numbers may be an overestimate (see 

Overestimation section). Additionally, 

although NMFS is not required to 

identify the number of animals that will 

be taken specifically by TTS versus 

behavioral harassment (Level B 

Harassment takes include both), we 

have attempted to make more realistic 

estimates by quantitatively refining the 

Navy’s TTS estimates based on the same 

factors listed above for refining the 

injury estimates (see the Speciesspecific analysis section). The 

authorized number of Level B 

harassment takes remains the same as 

the number of exposures estimated by 

the Navy’s model. 

Last, NMFS’ Office of Protected 

Resources has funded a peer-review of 

the Navy’s exposure model to be 

conducted by the Center for 

Independent Experts. The results of this 

review are scheduled to be available at 

the end of January, 2009. 

Comment 35: One commenter asserts 

that the Navy’s exposure model fails to 

consider the following important points: 

• Possible synergistic effects of using 

multiple sources in the same exercise, 

or the combined effects of multiple 

exercises. 

• Indirect effects, such as the 

potential for mother-calf separation, that 

can result from short-term disturbance. 

• In assuming animals are evenly 

distributed—the magnifying effects of 

social structure, whereby impacts on a 

single animal within a pod, herd, or 

other unit may affect the entire group. 

• In assuming that every whale 

encountered during subsequent 

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exercises is essentially a new whale— 

the cumulative impacts on the breeding, 

feeding, and other activities of species 

and stocks. 

Response: Though the Navy’s model 

does not quantitatively consider the 

points listed above (because the 

quantitative data necessary to include 

those concepts in a mathematical model 

do not currently exist), NMFS and the 

Navy have qualitatively addressed those 

concerns in their effects analyses in the 

rule and in the Navy’s EIS. 

Comment 36: NMFS’ (and the Navy’s) 

analysis of marine mammal distribution, 

habitat abundance, population structure 

and ecology contains false, misleading 

or outdated assumptions that tend to 

both underestimate impacts on species 

and to impede consideration of 

reasonable alternatives and mitigation 

measures. For example, outdated stock 

assessment data are used as the basis for 

most density estimates. It also appears 

that NMFS and the Navy do not 

consider other sources of published 

literature. For a number of species, 

uniform distribution was assumed when 

calculating density and risk. Although 

the Navy and NMFS made repeated 

assurances that this is a conservative 

approach, it is not. Marine mammals 

often concentrate in areas with greater 

density of prey or more favorable 

topography or currents for migration; 

thus, assuming a uniform distribution 

will overestimate presence in some 

areas and dramatically underestimate it 

in others. 

Another commenter notes that the 

Navy’s analysis of acoustic impacts to 

marine mammals is through modeling 

based on abundance estimates which 

were largely determined from aerial 

surveys, a difficult way to count marine 

mammals, especially relatively small 

animals and those that dive for 

prolonged periods such as beaked 

whales—the very animals thought to be 

most susceptible to anthropogenic ocean 

noise. 

Response: The most current stock 

assessment reports (Waring et al., 2007) 

were used to calculate density 

estimates. As summarized in the 

proposed rule and described more fully 

in the Navy’s FEIS, the Navy used the 

best data and methods available to 

calculate density, including other 

literature as well as habitat modeling 

that considered bathymetry, distance 

from shelf break, sea surface 

temperature, and Chlorophyll A 

concentration. All spatial models and 

density estimates were reviewed by 

NMFS technical staff. The Navy’s model 

utilizes uniform density, but it also 

divides the east coast into meaningful 

sections, such as on-shelf and off-shelf 

and the different OPAREAS. Using a 

uniform density is a form of averaging 

and the commenter has provided no 

support for why the model would 

‘‘overestimate’’ sometimes and 

‘‘dramatically underestimate’’ in others 

(all else being equal, a uniform 

distribution should do these two things 

in equal amounts). 

Beaked whale densities in the SE (and 

seaward of the shelf break in the NE) 

were derived through the spatial model 

approach which took environmental 

and habitat parameters into 

consideration. These models were built 

using only shipboard survey data from 

1998 through 2005 collected and 

provided by NMFS. For areas in the NE 

shoreward of the shelf break, beaked 

whale density was actually calculated 

by Palka (Palka, 2005) based on 

geographic strata provided by Navy. 

These estimates were developed using 

data from both shipboard and aerial 

surveys conducted by the NEFSC. 

Density data provided by Palka 

incorporated estimates of g(0) 

(correction factor that incorporates 

sightability) as discussed in Palka 2005. 

Comment 37: One commenter states 

that NMFS does not consider the 

potential for acute synergistic [indirect] 

effects from sonar training. For example, 

the agency does not consider the greater 

susceptibility to vessel strike of animals 

that have been temporarily harassed or 

disoriented. The absence of analysis is 

particularly glaring in light of the 2004 

Nowacek et al. study, which indicates 

that mid-frequency sources provoke 

surfacing and other behavior in North 

Atlantic right whales that increases the 

risk of vessel strike. 

Response: In the proposed rule, 

NMFS refers the reader to a conceptual 

framework that illustrates the variety of 

avenues of effects that can result from 

sonar exposure, to include ‘‘risk prone 

behavior’’ resulting somewhat indirectly 

from attempting to avoid certain 

received levels. Though we consider the 

potential for this type of interaction, 

NMFS does not include detailed 

analysis of potential indirect effects that 

have not been empirically 

demonstrated. Though Nowacek 

showed that right whales responded to 

a signal with mid-frequency 

components (not an actual MFAS 

signal) in a way that appeared likely to 

put them at greater risk for ship strike, 

we do not have evidence that the 

hypothesized sequence of behaviors has 

actually led to a ship strike. 

Additionally, in general and if affected, 

marine mammals may be affected by (or 

respond to) sonar in more than one 

single way when exposed. However, 

when analyzing impacts, NMFS 

‘‘counts’’ the most severe response. In 

the example given by the commenter, 

NMFS considers the overall possibility 

of ship strikes resulting from Navy 

activities, regardless of whether or not 

they would be preceded by a lesser 

response. 

General Opposition and Other 

Comment 38: The Navy should avoid 

fish spawning grounds and important 

fish habitat. It should also avoid highvalue sea turtle habitat. 

Response: These concerns are outside 

of the purview of the MMPA. Impacts to 

fish spawning grounds and habitat are 

dealt with pursuant to the Magnusson 

Stevens Act (MSA) as it relates to 

Essential Fish Habitat (EFH). The Navy 

determined that their activities would 

not adversely impact EFH; therefore, the 

Navy determined that a consultation 

under the MSA was not necessary. 

Measures to reduce impacts to sea 

turtles are included in the terms and 

conditions of the biological opinion that 

NMFS issued to the Navy (view at: 

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

incidental.htm#applications). 

Comment 39: One commenter 

suggested that no sonar testing should 

be done in the waters of the Gulf and 

Atlantic because dead marine life from 

these tests would go ashore and 

endanger the tourism industry for the 

state. 

Response: NMFS is aware of 5 cases, 

worldwide, where science supports the 

determination that MFAS was a 

contributing factor in a marine mammal 

stranding. None of these strandings 

occurred on the Atlantic coast of the 

U.S. or in the Gulf of Mexico. 

Separately, potential adverse effects to 

the tourism industry are not required to 

be addressed under the MMPA. 

Comment 40: The NRDC urged NMFS 

to withdraw its proposed rule on 

AFAST and to revise the document 

prior to its recirculation for public 

comment. They suggested NMFS revisit 

its profoundly flawed analysis of 

environmental impacts and prescribe 

mitigation measures that truly result in 

the least practicable adverse impact on 

marine species. 

Response: NMFS has addressed 

specific comments related to the effects 

analysis here and the mitigation 

measures in the Mitigation 

Environmental Assessment. We do not 

believe that the analysis is flawed and 

we believe that the prescribed measures 

will result in the least practicable 

adverse impacts on the affected species 

or stock. Therefore, NMFS does not 

intend to withdraw its AFAST rule. 

Comment 41: A few commenters 

expressed general opposition to Navy 

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activities and NMFS’ issuance of an 

MMPA authorization, because of the 

danger to marine mammals, and 

presented several reasons why MFAS 

was not necessary. 

Response: NMFS appreciates the 

commenters’ concern for the marine 

mammals that live in the area of the 

proposed activities. However, the 

MMPA directs NMFS to issue an 

incidental take authorization if certain 

findings can be made. Under the 

MMPA, NMFS must make the decision 

of whether or not to issue an 

authorization based on the proposed 

action that the applicant submits—the 

MMPA does not contain a mechanism 

for NMFS to question the need for the 

action that the applicant has proposed 

(unless the action is illegal). Similarly, 

any U.S. citizen (including the Navy) 

can request and receive an MMPA 

authorization as long as all of the 

necessary findings can be made. NMFS 

has determined that the Navy’s AFAST 

training activities will have a negligible 

impact on the affected species or stocks 

and, therefore, we plan to issue the 

requested MMPA authorization. 

Estimated Take of Marine Mammals 

As mentioned previously, with 

respect to the MMPA, NMFS’ effects 

assessments serve four primary 

purposes: (1) To put forth 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 AFAST 

Study Area, so this determination is 

inapplicable for AFAST); and (4) to 

prescribe requirements pertaining to 

monitoring and reporting. 

In the Estimated Take of Marine 

Mammals section of the proposed rule, 

NMFS related the potential effects to 

marine mammals from MFAS/HFAS 

and underwater detonation of 

explosives, i.e., IEER (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 this 

analysis are discussed individually 

below. 

Definition of Harassment 

The Definition of Harassment section 

of the proposed rule contained the 

definitions of Level A and Level B 

Harassments, 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 73 FR 60754, 

pages 60800–60801. 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 (73 FR 60754, 

pages 60801–60807). No changes have 

been made to the discussion contained 

in this section of the proposed rule, 

with the exception of the issue 

discussed below. 

NMFS received one public comment 

in which the commenter noted that the 

acoustic thresholds for TTS and PTS for 

pinnipeds presented in NMFS’ AFAST 

proposed rule were different from those 

presented in NMFS’ Southern California 

Range Complex proposed rule. As noted 

in the updated summary of acoustic 

thresholds for TTS and PTS below, 

NMFS has established three separate 

TTS and PTS thresholds for pinnipeds 

based on which species are being 

considered. All of the pinnipeds that are 

expected to be exposed to MFAS/HFAS 

in the AFAST Study Area are more 

closely related to harbor seals (see 

below) and, therefore, only one of the 

three pinniped criteria is applicable in 

AFAST. 

In the proposed rule, NMFS only 

listed the single applicable threshold 

without explaining that two other 

pinniped TTS and PTS thresholds are 

used for different taxa (that are present 

in southern California, but not in the 

AFAST Study Area). These paragraphs 

and the summary below serve as a 

clarification and response to the 

commenter’s comment. 

NMFS’ TTS criteria (which indicate 

the received level at which onset TTS 

(>6dB) is induced) for MFAS/HFAS are 

as follows: 

• Cetaceans—195 dB re 1 μPa2-s 

(based on mid-frequency cetaceans—no 

published data exist on auditory effects 

of noise in low or high frequency 

cetaceans (Southall et al. (2007)) 

• Harbor Seals (and closely related 

species, which include all of the species 

present in the AFAST Study Area)—183 

dB re 1 μPa2-s 

• Northern Elephant Seals (and 

closely related species)—204 dB re 

1 μPa2-s 

• California Sea Lions (and closely 

related species)—206 dB re 1 μPa2-s 

NMFS uses the following acoustic 

criteria for injury (Level A Harassment): 

• Cetaceans—215 dB re 1 μPa2-s 

(based on mid-frequency cetaceans—no 

published data exist on auditory effects 

of noise in low or high frequency 

cetaceans (Southall et al. (2007)) 

• Harbor Seals (and closely related 

species)—203 dB re 1 μPa2-s 

• Northern Elephant Seals (and 

closely related species)—224 dB re 1 

μPa2-s 

• California Sea Lions (and closely 

related species)—226 dB re 1 μPa2-s 

For the behavioral harassment criteria 

(for all species except harbor porpoises, 

below), NMFS uses acoustic risk 

functions developed by NMFS, with 

input from the Navy, to estimate the 

probability of behavioral responses to 

MFAS/HFAS (interpreted as the 

percentage of the exposed population) 

that NMFS would classify as harassment 

for the purposes of the MMPA given 

exposure to specific received levels of 

MFA sonar. For harbor porpoises, 

currently available information suggests 

a lower threshold level of response for 

both captive and wild animals and, 

therefore, NMFS uses a separate 120 dB 

re 1 μPa step function to estimate take 

by behavioral harassment (3 FR 60754, 

pages 60802–60806). 

Table 13 in the proposed rule 

summarizes the acoustic criteria for 

explosive detonations (73 FR 60754, 

page 60807). 

Estimates of Potential Marine Mammal 

Exposures and Authorized Take 

Information regarding the models 

used, the assumptions used in the 

models, and the process of estimating 

take is available in the Navy’s EIS/OEIS 

for AFAST. Estimating the take that will 

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result from the proposed activities 

entails the following general steps: 

(1) In order to quantify the types of 

take described in previous sections that 

are predicted to result from the Navy’s 

specified activities, the Navy first uses 

a sound propagation model that predicts 

the volume of water that will be 

ensonified to a range of levels of 

pressure and energy (of the metrics used 

in the criteria) from MFAS/HFAS and 

explosive detonations based on several 

important pieces of information, 

including: 

• Characteristics of the sound 

sources; 

• Sonar source characteristics; 

include: source level (with horizontal 

and vertical directivity corrections), 

source depth, center frequency, source 

directivity (horizontal/vertical beam 

width and horizontal/vertical steer 

direction), and ping spacing; 

• Explosive source characteristics 

include: The net explosive weight, the 

type of explosive, and the detonation 

depth; 

• Transmission loss (in 36 

representative environmental provinces) 

based on: Seasonal sound speed 

profiles; seabed geoacoustics; wind 

speed; and acoustics. 

(2) The accumulated energy and 

maximum received sound pressure level 

within the waters in which the sonar is 

operating is sampled over a two 

dimensional grid. The zone of influence 

(ZOI) for a given threshold is estimated 

by summing the areas represented by 

each grid point for which the threshold 

is exceeded. For behavioral response, 

the percentage of animals likely to 

respond corresponding to the maximum 

received level is found, and the area of 

the grid point is multiplied by that 

percentage to find the adjusted area. 

Those adjusted area are summed across 

all grid points to find the overall ZOI for 

a particular source. 

(3) The densities of each marine 

mammal species, which are specific to 

certain geographic areas and seasons if 

data are available, are applied to the 

summed ZOIs for a particular training 

event to determine how many times 

individuals of each species are exposed 

to levels that exceed the applicable 

criteria for injury or harassment. 

(4) Next, the criteria discussed in the 

previous section are applied to the 

estimated exposures to predict the 

number of exposures that exceed the 

criteria, i.e., the number of takes by 

Level B Harassment, Level A 

Harassment, and mortality. 

(5) Last, NMFS and the Navy consider 

the mitigation measures and modelcalculated estimates may be adjusted 

based on a post-model assessment. For 

example, in some cases the raw 

modeled numbers of exposures to levels 

predicted to result in Level A 

Harassment from exposure to sonar 

might indicate that 1 fin whale would 

be exposed to levels of sonar anticipated 

to result in PTS—however, a fin whale 

would need to be within approximately 

10 m of the source vessel in order to be 

exposed to these levels. Because of the 

mitigation measures (watchstanders and 

shutdown zone), size of fin whales, and 

nature of fin whale behavior, it is highly 

unlikely that a fin whale would be 

exposed to those levels, and therefore 

the Navy would not request 

authorization for Level A Harassment of 

1 fin whale. Table 11 contains the 

Navy’s estimated take estimates. The 

‘‘takes’’ reported in the take table and 

proposed to be authorized are based on 

estimates of marine mammal exposures 

to levels above those indicated in the 

criteria. Every separate take does not 

necessarily represent a different 

individual because some individual 

marine mammals may be exposed more 

than once, either within one day and 

one exercise, or on different days from 

different exercise types. 

(6) Last, the Navy’s specified activities 

have been described based on best 

estimates of the number of MFAS/HFAS 

hours that the Navy will conduct. The 

exact number of hours may vary from 

year to year, but will not exceed the 5- 

year total indicated in Table 1 (by 

multiplying the yearly estimate by 5) by 

more than 10 percent. NMFS estimates 

that a 10-percent increase in sonar hours 

would result in approximately a 10- 

percent increase in the number of takes 

(described in Table 6), and we have 

considered this possibility and the effect 

of this additional sonar use in our 

analysis. 

Table 6 remains unchanged from 

Table 11 in the proposed rule (73 FR 

60753, page 608090) with the exception 

of minor modifications and one 

correction. The number of estimated 

and authorized Level B behavioral takes 

of beaked whales increased by a total of 

2238 (no increase in modeled TTS 

takes) because the Navy corrected a 

calculation related to submarine 

maintenance. When submarine sonar is 

used in exercises, the source emits a 

ping approximately once every 2 hours. 

However, when maintenance is being 

conducted, the source emits 

approximately 60 pings an hour, which 

will result in more modeled takes than 

the sub used in an exercise. The Navy 

originally calculated the submarine 

sonar takes using the number of pings 

from an exercise—this has since been 

corrected. Of note, all of the indicated 

take increase will occur during sub 

maintenance, which occurs 

approximately 50% inshore (potentially 

at a dock) and 50% at sea, but all of 

which occurs with a single submarine, 

not a group of sonar sources such as in 

the large scale training exercises that 

have been associated with strandings in 

certain circumstances in approximately 

5 cases outside of U.S. waters. This 

change in the take numbers did not 

change NMFS’ conclusions regarding 

the effects of the proposed action. 

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Mortality 

Evidence from five beaked whale 

strandings, all of which have taken 

place outside of the AFAST Study Area, 

and have 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 tactical sonar, steep 

bathymetry, constricted channels, strong 

surface ducts, etc.) may result in 

strandings, potentially leading to 

mortality. Although these physical 

factors believed to contribute to the 

likelihood of beaked whale strandings 

are not present on the Atlantic Coast of 

the U.S. or in the Gulf of Mexico in the 

aggregate, scientific uncertainty exists 

regarding what other factors, or 

combination of factors, may contribute 

to beaked whale strandings. 

Accordingly, to allow for scientific 

uncertainty regarding contributing 

causes of beaked whale strandings and 

the exact behavioral or physiological 

mechanisms that can lead to the 

ultimate physical effects (stranding and/ 

or death), the Navy has requested 

authorization for (and NMFS is 

authorizing) take, by injury or mortality 

of 10 beaked whales over the course of 

the 5-yr regulations. Neither NMFS nor 

the Navy anticipates that marine 

mammal strandings or mortality will 

result from the operation of MFAS 

during Navy exercises within the 

AFAST Study Area. 

Effects on Marine Mammal Habitat 

NMFS’ AFAST proposed rule 

included a section that addressed the 

effects of the Navy’s activities on Marine 

Mammal Habitat (73 FR 60754, page 

60810). 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. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects (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.), or any of the other 

variables mentioned in the first 

paragraph (if known), 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 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 determine that Navy training, 

maintenance, and RDT&E activities 

utilizing MFAS/HFAS and underwater 

detonations (IEER) will have a negligible 

impact on the marine mammal species 

and stocks present in the AFAST Study 

Area. No changes have been made to the 

discussion contained in this section of 

the proposed rule (73 FR 60754, pages 

60811–60823). 

Subsistence Harvest of Marine 

Mammals 

NMFS has determined that the 

issuance of these regulations and 

subsequent LOAs for Navy AFAST 

exercises would not have an 

unmitigable adverse impact on the 

availability of the affected species or 

stocks for taking for subsistence uses, 

since there are no such uses in the 

specified area. 

ESA 

There are six marine mammal species 

and six sea turtle species listed as 

threatened or endangered under the 

ESA with confirmed or possible 

occurrence in the study area: Humpback 

whale, NARW, sei whale, fin whale, 

blue whale, sperm whale, loggerhead 

sea turtle, the green sea turtle, hawksbill 

sea turtle, leatherback sea turtle, olive 

ridley sea turtle and the Kemp’s ridley 

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), NMFS 

concluded that the Navy’s activities in 

the AFAST Study Area 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 the 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 from 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 most 

conservative (lowest) number of takes is 

authorized. For the Navy’s proposed 

AFAST 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 was requested by the 

applicant (because their 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. 

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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 2009 LOA (and subsequent 

LOAs in 2010, 2011, 2012, and 2013). 

With respect to listed marine mammals, 

the terms and conditions of the ITSs 

will be incorporated into the LOAs. 

NEPA 

NMFS participated as a cooperating 

agency on the Navy’s Final 

Environmental Impact Statement (FEIS) 

for AFAST. NMFS subsequently 

adopted the Navy’s EIS for the purpose 

of complying with the MMPA. 

Additionally, NMFS prepared an 

Environmental Assessment (EA) that 

tiered off the Navy’s FEIS. The EA 

analyzed the environmental effects of 

several different mitigation alternatives 

for the issuance of the AFAST rule and 

subsequent LOAs. A finding of no 

significant impact was issued for the 

mitigation EA on January 15, 2009. 

Determination 

Based on the analysis contained 

herein and in the proposed rule (and 

other related documents) of the likely 

effects of the specified activity on 

marine mammals and their habitat and 

dependent upon the implementation of 

the mitigation measures, NMFS finds 

that the total taking from Navy AFAST 

training exercises utilizing MFAS/HFAS 

and underwater explosives (IEER) over 

the 5 year period will have a negligible 

impact on the affected species or stocks 

and will not result in an unmitigable 

adverse impact on the availability of 

marine mammal species or stocks for 

taking for subsistence uses because no 

subsistence uses exist in the AFAST 

Study Area. NMFS has issued 

regulations for these exercises that 

prescribe the means of effecting the least 

practicable adverse impact on marine 

mammals and their habitat and set forth 

requirements pertaining to the 

monitoring and reporting of that taking. 

Classification 

This action does not contain a 

collection of information requirement 

for purposes of the Paperwork 

Reduction Act. 

Pursuant to the procedures 

established to implement section 6 of 

Executive Order 12866, the Office of 

Management and Budget has 

determined that this final rule is 

significant. 

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 

whenever the agency is required to 

publish a notice of proposed 

rulemaking. However, a Federal agency 

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

605(b), that the action will not have a 

significant economic impact on a 

substantial number of small entities. 

The Navy is the entity that will be 

affected by this rulemaking, not a small 

governmental jurisdiction, small 

organization or small business, as 

defined by the Regulatory Flexibility 

Act. Any requirements imposed by a 

Letter of Authorization issued pursuant 

to these regulations, and any monitoring 

or reporting requirements imposed by 

these regulations, will be applicable 

only to the Navy. Because this action, if 

adopted, would directly affect the Navy 

and not a small entity, NMFS concludes 

the action would not result in a 

significant economic impact on a 

substantial number of small entities. 

The Assistant Administrator for 

Fisheries has determined that there is 

good cause under the Administrative 

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

waive the 30-day delay in effective date 

of the measures contained in the final 

rule. Since January 23, 2007, the Navy 

has been conducting military readiness 

activities employing mid-frequency 

active sonar (MFAS) pursuant to a 2- 

year MMPA National Defense 

Exemption (NDE). The NDE serves as a 

bridge to long-term compliance with the 

MMPA while the Navy prepared its 

Environmental Impact Statement and 

pursued the necessary MMPA 

incidental take authorization for the 

AFAST exercises. The NDE will expire 

on January 23, 2009, by which time it 

is imperative that the regulations and 

the measures identified in a subsequent 

LOA become effective. Any delay of 

these measures would result in either: 

(1) A suspension of ongoing or planned 

naval exercises, which would disrupt 

vital sequential training and 

certification processes essential to 

national security; or (2) the Navy’s noncompliance with the MMPA (should the 

Navy conduct exercises without an 

LOA), thereby resulting in the potential 

for unauthorized takes of marine 

mammals upon expiration of the NDE. 

National security and NMFS’ and 

Navy’s preference that the Navy be in 

compliance with the MMPA after 

January 23, 2009, dictate that these 

measures go into effect immediately. 

The Navy is the entity subject to the 

regulations and has informed NMFS 

that it is imperative that these measures 

be effective on or before January 23, 

2009. Finally, as recognized by the 

President and the United States 

Supreme Court, the AFAST exercises 

proposed to be conducted are of 

paramount interest to the United States. 

Any delay in the implementation of 

these measures would raise serious 

national security implications. 

Therefore, these measures will become 

effective upon filing. 

List of Subjects in 50 CFR Part 216 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Navy, Penalties, Reporting 

and recordkeeping requirements, 

Seafood, Sonar, Transportation. 

Dated: January 16, 2009. 

James Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For reasons set forth in the preamble, 

50 CFR Part 216 is amended as follows: 

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 216 

continues to read as follows: 

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

■ 2. Subpart V is added to part 216 to 

read as follows: 

Subpart V—Taking and Importing 

Marine Mammals; U.S. Navy’s Atlantic 

Fleet Active Sonar Training (AFAST) 

Sec. 

216.240 Specified activity and specified 

geographical region. 

216.241 Effective dates and definitions. 

216.242 Permissible methods of taking. 

216.243 Prohibitions. 

216.244 Mitigation. 

216.245 Requirements for monitoring and 

reporting. 

216.246 Applications for Letters of 

Authorization. 

216.247 Letters of Authorization. 

216.248 Renewal of Letters of Authorization 

and Adaptive Management. 

216.249 Modifications to Letters of 

Authorization. 

Subpart V—Taking and Importing 

Marine Mammals; U.S. Navy’s Atlantic 

Fleet Active Sonar Training (AFAST) 

§ 216.240 Specified activity and specified 

geographical region. 

(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 occurs incidental to the 

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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 AFAST Study Area, which 

extends east from the Atlantic Coast of 

the U.S. to 45° W. long. and south from 

the Atlantic and Gulf of Mexico Coasts 

to approximately 23° N. lat., excluding 

the Bahamas (see Figure 1–1 in the 

Navy’s Application). 

(c) The taking of marine mammals by 

the Navy is only authorized if it occurs 

incidental to the use of the following 

mid-frequency active sonar (MFAS) 

sources, high frequency active sonar 

(HFAS) sources, or explosive sonobuoys 

for U.S. Navy anti-submarine warfare 

(ASW), mine warfare (MIW) training, 

maintenance, or research, development, 

testing, and evaluation (RDT&E) in the 

amounts indicated below (+/¥10 

percent): 

(1) AN/SQS–53 (hull-mounted 

sonar)—up to 16070 hours over the 

course of 5 years (an average of 3214 

hours per year). 

(2) AN/SQS–56 (hull-mounted 

sonar)—up to 8420 hours over the 

course of 5 years (an average of 1684 

hours per year). 

(3) AN/SQS–56 or 53 (hull mounted 

sonar in object detection mode)—up to 

1080 hours over the course of 5 years 

(an average of 216 hours per year). 

(4) AN/BQQ–10 or 5 (submarine 

sonar)—up to 49880 pings over the 

course of 5 years (an average of 9976 

pings per year) (an average of 1 ping per 

two hours during training events, 60 

pings per hour for maintenance). 

(5) AN/AQS–22 or 13 (helicopter 

dipping sonar)—up to 14760 dips over 

the course of 5 years (an average of 2952 

dips per year—10 pings per five-minute 

dip). 

(6) SSQ–62 (Directional Command 

Activated Sonobuoy System (DICASS) 

sonobuoys)—up to 29265 sonobuoys 

over the course of 5 years (an average of 

5853 sonobuoys per year). 

(7) MK–48 (heavyweight torpedoes)— 

up to 160 torpedoes over the course of 

5 years (an average of 32 torpedoes per 

year). 

(8) MK–46 or 54 (lightweight 

torpedoes)—up to 120 torpedoes over 

the course of 5 years (an average of 24 

torpedoes per year). 

(9) AN/SSQ–110A (IEER explosive 

sonobuoy) and AN/SSQ–125 (AEER 

sonar sonobuoy)—up to 4360 

sonobuoys, between these 2 sources, 

over the course of 5 years (an average of 

872 buoys per year). 

(10) AN/SQQ–32 (over the side minehunting sonar)—up to 22370 hours over 

the course of 5 years (an average of 4474 

hours per year). 

(11) AN/SLQ–25 (NIXIE—towed 

countermeasure)—up to 1660 hours 

over the course of 5 years (an average of 

332 hours per year). 

(12) AN/BQS–15 (submarine 

navigation)—up to 2250 hours over the 

course of 5 years (an average of 450 

hours per year). 

(13) MK–1 or 2 or 3 or 4 (Submarinefired Acoustic Device Countermeasure 

(ADC))—up to 1125 ADCs over the 

course of 5 years (an average of 225 

ADCs per year). 

(14) Noise Acoustic Emitters (NAE— 

Sub-fired countermeasure)—up to 635 

NAEs over the course of 5 years (an 

average of 127 NAEs per year). 

§ 216.241 Effective dates and definitions. 

(a) Regulations are effective January 

22, 2009 through January 22, 2014. 

(b) The following definitions are 

utilized in these regulations: 

(1) Uncommon Stranding Event 

(USE)—A stranding event that takes 

place during a major training exercise 

(MTE) and involves any one of the 

following: 

(i) Two or more individuals of any 

cetacean species (not including mother/ 

calf pairs), unless of species of concern 

listed in § 216.241(b)(1)(ii) found dead 

or live on shore within a 2-day period 

and occurring within 30 miles of one 

another. 

(ii) A single individual or mother/calf 

pair of any of the following marine 

mammals of concern: beaked whale of 

any species, dwarf or pygmy sperm 

whales, melon-headed whales, pilot 

whales, right whales, humpback whales, 

sperm whales, blue whales, fin whales, 

or sei whales. 

(iii) A group of 2 or more cetaceans 

of any species exhibiting indicators of 

distress as defined in § 216.241(b)(3). 

(2) Shutdown—The cessation of 

MFAS/HFAS operation or detonation of 

explosives within 14 nm nm (Atlantic 

Ocean) or 17 nm (Gulf of Mexico) of any 

live, in the water, animal involved in a 

USE. 

§ 216.242 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 and 

216.247, the Holder of the Letter of 

Authorization may incidentally, but not 

intentionally, take marine mammals 

within the area described in 

§ 216.240(b), provided the activity is in 

compliance with all terms, conditions, 

and requirements of these regulations 

and the appropriate Letter of 

Authorization. 

(b) The activities identified in 

§ 216.240(c) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, any adverse impacts 

on marine mammals and their habitat. 

(c) The incidental take of marine 

mammals under the activities identified 

in § 216.240(c) is limited to the 

following species, by the identified 

method of take and the indicated 

number of times: 

(1) Level B Harassment (+/¥10 

percent of the number of takes indicated 

below): 

(i) Mysticetes: 

(A) North Atlantic right whale 

(Eubalaena glacialis)—3330 (an average 

of 666 annually). 

(B) Humpback whale (Megaptera 

novaeangliae)—21010 (an average of 

4202 annually). 

(C) Minke whale (Balaenoptera 

acutorostrata)—2075 (an average of 415 

annually). 

(D) Sei whale (Balaenoptera 

borealis)—5285 (an average of 1057 

annually). 

(E) Fin whale (Balaenoptera 

physalus)—4410 (an average of 882 

annually). 

(F) Bryde’s whale (Balaenoptera 

edeni)—180 (an average of 36 annually). 

(G) Blue whale (Balaenoptera 

musculus)—4005 (an average of 801 

annually). 

(ii) Odontocetes: 

(A) Sperm whales (Physeter 

macrocephalus)—48790 (an average of 

9758 annually). 

(B) Pygmy or dwarf sperm whales 

(Kogia breviceps or Kogia sima)—21920 

(an average of 4384 annually). 

(C) Beaked Whales (Cuvier’s, True’s, 

Gervais’, Sowerby’s, Blainville’s, 

Northern bottlenose whale) (Ziphius 

cavirostris, Mesoplodon mirus, M. 

europaeus, M. bidens, M. densirostris, 

Hyperoodon ampullatus)—24535 (an 

average of 4907 annually). 

(D) Rough-toothed dolphin (Steno 

bredanensis)—13540 (an average of 

2708 annually). 

(E) Bottlenose dolphin (Tursiops 

truncatus)—3034010 (an average of 

606802 annually). 

(F) Pan-tropical dolphin (Stenella 

attenuata)—696530 (an average of 

139306 annually). 

(G) Atlantic spotted dolphin (Stenella 

frontalis)—1881805 (an average of 

376361 annually). 

(H) Spinner dolphin (Stenella 

longirostris)—105775 (an average of 

21155 annually). 

(I) Clymene dolphin (Stenella 

clymene)—232190 (an average of 46438 

annually). 

(J) Striped dolphin (Stenella 

coeruleoalba)—873620 (an average of 

174274 annually). 

(K) Common dolphin (Delphinus 

spp.)—482300 (an average of 96460 

annually). 

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4878 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

(L) Fraser’s dolphin (Lagenodelphis 

hosei)—1730 (an average of 346 

annually). 

(M) Risso’s dolphin (Grampus 

griseus)—470375 (an average of 94075 

annually). 

(N) Atlantic white-sided dolphin 

(Lagenorhynchus acutus)—103255 (an 

average of 20651 annually). 

(O) White-beaked dophin 

(Lagenorhynchus albirostris)—17250 (an 

average of 3450 annually). 

(P) Melon-headed whale 

(Peponocephala electra)—8270 (an 

average of 1654 annually). 

(Q) Pygmy killer whale (Feresa 

attenuata)—1400 (an average of 280 

annually). 

(R) False killer whale (Pseudorca 

crassidens)—2690 (an average of 538 

annually). 

(S) Killer whale (Orcinus orca)—2515 

(an average of 503 annually). 

(T) Pilot whales (Short-finned pilot or 

long-finned) (Globicephala 

macrorynchus or G. melas)—636965 (an 

average of 127393 annually). 

(U) Harbor porpoise (Phocoena 

phocoena)—767405 (an average of 

153481 annually). 

(iii) Pinnipeds: 

(A) Gray seal (Halichoerus grypus)— 

39295 (an average of 7859 annually). 

(B) Harbor seal (Phoca vitulina)— 

63295 (an average of 12659 annually). 

(C) Hooded seal (Cystophora 

cristata)—78590 (an average of 15718 

annually). 

(D) Harp seal (Pagophilus 

groenlandica)—55010 (an average of 

11002 annually). 

(2) Level A Harassment and/or 

mortality of no more than 10 beaked 

whales (total), of any of the species 

listed in § 216.242(c)(1)(ii)(C) over the 

course of the 5-year regulations. 

§ 216.243 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.92 and 

authorized by a Letter of Authorization 

issued under §§ 216.106 and 216.247, 

no person in connection with the 

activities described in § 216.240 may: 

(a) Take any marine mammal not 

specified in § 216.242(c); 

(b) Take any marine mammal 

specified in § 216.242(c) other than by 

incidental take as specified in 

§ 216.242(c)(1) and (2); 

(c) Take a marine mammal specified 

in § 216.242(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 216.247. 

§ 216.244 Mitigation. 

(a) When conducting training 

activities identified in § 216.240(c), the 

mitigation measures contained in the 

Letter of Authorization issued under 

§§ 216.106 and 216.247 must be 

implemented. These mitigation 

measures include, but are not limited to: 

(1) Mitigation Measures for ASW and 

MIW training: 

(i) All lookouts onboard platforms 

involved in ASW training events shall 

review the NMFS-approved Marine 

Species Awareness Training (MSAT) 

material prior to use of mid-frequency 

active sonar. 

(ii) All Commanding Officers, 

Executive Officers, and officers standing 

watch on the Bridge shall review the 

MSAT material prior to a training event 

employing the use of mid- or highfrequency active sonar. 

(iii) Navy lookouts shall undertake 

extensive training in order to qualify as 

a watchstander in accordance with the 

Lookout Training Handbook 

(NAVEDTRA, 12968–D). 

(iv) 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). 

(v) 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 mammals are spotted. 

(vi) 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. 

(vii) All surface ships participating in 

ASW exercises 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 lookouts. 

(viii) 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. 

(ix) On surface vessels equipped with 

MFAS, pedestal mounted ‘‘Big Eye’’ (20 

× 110) binoculars shall be present and 

in good working order. 

(x) Personnel on lookout shall employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). Surface 

lookouts should scan the water from the 

ship to the horizon and be responsible 

for all contacts in their sector. In 

searching the assigned sector, the 

lookout should always start at the 

forward part of the sector and search aft 

(toward the back). To search and scan, 

the lookout should hold the binoculars 

steady so the horizon is in the top third 

of the field of vision and direct the eyes 

just below the horizon. The lookout 

should scan for approximately five 

seconds in as many small steps as 

possible across the field seen through 

the binoculars. They should search the 

entire sector in approximately fivedegree steps, pausing between steps for 

approximately five seconds to scan the 

field of view. At the end of the sector 

search, the glasses should be lowered to 

allow the eyes to rest for a few seconds, 

and then the lookout should search back 

across the sector with the naked eye. 

(xi) After sunset and prior to sunrise, 

lookouts shall employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook. At night, 

lookouts should not sweep the horizon 

with their eyes because this method is 

not effective when the vessel is moving. 

Lookouts should scan the horizon in a 

series of movements that should allow 

their eyes to come to periodic rests as 

they scan the sector. When visually 

searching at night, they should look a 

little to one side and out of the corners 

of their eyes, paying attention to the 

things on the outer edges of their field 

of vision. 

(xii) Personnel on lookout shall be 

responsible for informing the Officer of 

the Deck 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. 

(xiii) Commanding Officers shall 

make use of marine mammal detection 

cues and information to limit 

interaction with marine mammals to the 

maximum extent possible consistent 

with safety of the ship. 

(xiv) 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. 

(xv) Units shall use training lookouts 

to survey for marine mammals prior to 

commencement and during the use of 

active sonar. 

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(xvi) During operations involving 

sonar, personnel shall utilize all 

available sensor and optical systems 

(such as Night Vision Goggles) to aid in 

the detection of marine mammals. 

(xvii) 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. 

(xviii) Aircraft with deployed 

sonobuoys shall use only the passive 

capability of sonobuoys when marine 

mammals are detected within 200 yards 

(182 m) of the sonobuoy. 

(xix) Marine mammal detections shall 

be reported immediately to assigned 

Aircraft Control Unit (if participating) 

for further dissemination to ships in the 

vicinity of the marine mammals. This 

action shall occur when it is reasonable 

to conclude that the course of the ship 

will likely close the distance between 

the ship and the detected marine 

mammal. 

(xx) 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 1000 yards (914 m) of the 

sonar dome (the bow). 

(A) Ships and submarines shall 

continue to limit maximum 

transmission levels by this 6-dB factor 

until the marine mammal has been seen 

to leave the area, has not been detected 

for 30 minutes, or the vessel has 

transited more than 2,000 yards (1828 

m) beyond the location of the last 

detection. 

(B) Should a marine mammal be 

detected within or closing to inside 457 

m (500 yd) of the sonar dome, active 

sonar transmissions shall be limited to 

at least 10 dB below the equipment’s 

normal operating level. Ships and 

submarines shall continue to limit 

maximum ping levels by this 10-dB 

factor until the marine mammal has 

been seen to leave the area, has not been 

detected for 30 minutes, or the vessel 

has transited more than 2000 yards 

(1828 m) beyond the location of the last 

detection. 

(C) Should the marine mammal be 

detected within or closing to inside 183 

m (200 yd) of the sonar dome, active 

sonar transmissions shall cease. Sonar 

shall not resume until the marine 

mammal has been seen to leave the area, 

has not been detected for 30 minutes, or 

the vessel has transited more than 2,000 

yards (1828 m) beyond the location of 

the last detection. 

(D) If the need for power-down should 

arise as detailed in ‘‘Safety Zones’’ in 

paragraph (a)(1)(xx) of this section, 

Navy shall follow the requirements as 

though they were operating at 235 dB— 

the normal operating level (i.e., the first 

power-down shall be to 229 dB, 

regardless of at what level above 235 

sonar was being operated). 

(xxi) Prior to startup or restart of 

active sonar, operators shall check that 

the Safety Zone radius around the 

sound source is clear of marine 

mammals. 

(xxii) Sonar levels (generally)—The 

Navy shall operate sonar at the lowest 

practicable level, not to exceed 235 dB, 

except as required to meet tactical 

training objectives. 

(xxiii) Helicopters shall observe/ 

survey the vicinity of an ASW 

Operation for 10 minutes before the first 

deployment of active (dipping) sonar in 

the water. 

(xxiv) Helicopters shall not dip their 

sonar within 200 yards (183 m) of a 

marine mammal and shall cease pinging 

if a marine mammal closes within 200 

yards of the helicopter dipping sonar 

(183 m) after pinging has begun. 

(xxv) Submarine sonar operators shall 

review detection indicators of closeaboard marine mammals prior to the 

commencement of ASW training 

activities involving active sonar. 

(xxvi) Night vision devices shall be 

available to all ships and air crews, for 

use as appropriate. 

(xxvii) Dolphin bowriding—If, after 

conducting an initial maneuver to avoid 

close quarters with dolphins, the ship 

concludes that dolphins are deliberately 

closing in on the ship to ride the 

vessel’s bow wave, no further mitigation 

actions would be necessary because 

dolphins are out of the main 

transmission axis of the active sonar 

while in the shallow-wave area of the 

vessel bow. 

(xxviii) TORPEXs conducted in the 

northeast North Atlantic right whale 

critical habitat (as designated in 50 CFR 

Part 226) shall implement the following 

measures. 

(A) All torpedo-firing operations shall 

take place during daylight hours. 

(B) During the conduct of each test, 

visual surveys of the test area shall be 

conducted by all vessels and aircraft 

involved in the exercise to detect the 

presence of marine mammals. 

Additionally, trained observers shall be 

placed on the submarine, spotter 

aircraft, and the surface support vessel. 

All participants shall report sightings of 

any marine mammals, including 

negative reports, prior to torpedo firings. 

Reporting requirements shall be 

outlined in the test plans and 

procedures written for each individual 

exercise, and shall be emphasized as 

part of pre-exercise briefings conducted 

with all participants. 

(C) Observers shall receive NMFSapproved training in field identification, 

distribution, and relevant behaviors of 

marine mammals of the western north 

Atlantic. Observers shall fill out 

Standard Sighting Forms and the data 

shall be housed at the Naval Undersea 

Warfare Center Division Newport 

(NUWCDIVNPT). Any sightings of 

North Atlantic right whales shall be 

immediately communicated to the 

Sighting Advisory System (SAS). All 

platforms shall have onboard a copy of: 

(1) The Guide to Marine Mammals 

and Turtles of the U.S. Atlantic and Gulf 

of Mexico (Wynne and Schwartz 1999); 

(2) The NMFS Critical Sightings 

Program placard; 

(3) Right Whales, Guidelines to 

Mariners placard. 

(D) In addition to the visual 

surveillance discussed above, dedicated 

aerial surveys shall be conducted 

utilizing a fixed-wing aircraft. An 

aircraft with an overhead wing (i.e., 

Cessna Skymaster or similar) shall be 

used to facilitate a clear view of the test 

area. Two trained observers, in addition 

to the pilot, shall be embarked on the 

aircraft. Surveys shall be conducted at 

an approximate altitude of 1000 ft (305 

m) flying parallel track lines at a 

separation of 1 nmi (1.85 km), or as 

necessary to facilitate good visual 

coverage of the sea surface. While 

conducting surveillance, the aircraft 

shall maintain an approximate speed of 

100 knots (185 km/hr). Since factors that 

affect visibility are highly dependent on 

the specific time of day of the survey, 

the flight operator will have the 

flexibility to adjust the flight pattern to 

reduce glare and improve visibility. The 

entire test site shall be surveyed 

initially, but once preparations are being 

made for an actual test launch, survey 

effort shall be concentrated over the 

vicinity of the individual test location. 

Further, for approximately ten minutes 

immediately prior to launch, the aircraft 

shall racetrack back and forth between 

the launch vessel and the target vessel. 

(E) Commencement of an individual 

torpedo test scenario shall not occur 

until observers from all vessels and 

aircraft involved in the exercise have 

reported to the Officer in Tactical 

Command (OTC) and the OTC has 

declared that the range is clear of 

marine mammals. Should marine 

mammals be present within or seen 

moving toward the test area, the test 

shall be either delayed or moved as 

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4880 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

required to avoid interference with the 

animals. 

(F) The TORPEX shall be suspended 

if the Beaufort Sea State exceeds 3 or if 

visibility precludes safe operations. 

(G) Vessel speeds: 

(1) During transit through the 

northeastern North Atlantic right whale 

critical habitat, surface vessels and 

submarines shall maintain a speed of no 

more than 10 knots (19 km/hr) while not 

actively engaged in the exercise 

procedures. 

(2) During TORPEX operations, a 

firing vessel should, where feasible, not 

exceed 10 knots. When a submarine is 

used as a target, vessel speeds should, 

where feasible, not exceed 18 knots. 

However, on occasion, when surface 

vessels are used as targets, the vessel 

may exceed 18 kts in order to fully test 

the functionality of the torpedoes. This 

increased speed would occur for a short 

period of time (e.g., 10–15 minutes) to 

evade the torpedo when fired upon. 

(H) In the event of an animal strike, 

or if an animal is discovered that 

appears to be in distress, the Navy shall 

immediately report the discovery 

through the appropriate Navy chain of 

Command. 

(xxix) The Navy shall abide by the 

following additional measures: 

(A) The Navy shall avoid planning 

major exercises in the specified 

planning awareness areas (PAAs—as 

depicted in NMFS’ ‘‘Environmental 

Assessment of Mitigation Alternatives 

for Issuance of Incidental Take 

Regulations to U.S. Navy for Atlantic 

Fleet Active Sonar Training (AFAST)’’) 

where feasible. Should national security 

require the conduct of more than four 

major exercises (C2X, JTFEX, 

SEASWITI, or similar scale event) in 

these areas (meaning all or a portion of 

the exercise) per year the Navy shall 

provide NMFS with prior notification 

and include the information in any 

associated after-action or monitoring 

reports. 

(B) The Navy shall conduct no more 

than one of the four above-mentioned 

major exercises (COMPTUEX, JTFEX, 

SEASWITI or similar scale event) per 

year in the Gulf of Mexico to the extent 

operationally feasible. If national 

security needs require more than one 

major exercise to be conducted in the 

Gulf of Mexico PAAs, the Navy shall 

provide NMFS with prior notification 

and include the information in any 

associated after-action or monitoring 

reports. 

(C) The Navy shall include the PAAs 

in the Navy’s Protective Measures 

Assessment Protocol (PMAP) 

(implemented by the Navy for use in the 

protection of the marine environment) 

for unit level situational awareness (i.e., 

exercises other than COMPTUEX, 

JTFEX, SEASWITI) and planning 

purposes. 

(D) Helicopter Dipping Sonar—Unless 

otherwise dictated by national security 

needs, the Navy shall minimize 

helicopter dipping sonar activities 

within the southeastern areas of North 

Atlantic right whale critical habitat (as 

designated in 50 CFR part 226) from 

November 15–April 15. 

(E) Object Detection Exercises—The 

Navy shall implement the following 

measures regarding object detection 

activities in the southeastern areas of 

the North Atlantic right whale critical 

habitat: 

(1) The Navy shall reduce the time 

spent conducting object detection 

exercises in the NARW critical habitat; 

(2) Prior to conducting surface ship 

object detection exercises in the 

southeastern areas of the North Atlantic 

right whale critical habitat during the 

time of November 15–April 15, ships 

shall contact FACSFACJAX to obtain 

the latest North Atlantic right whale 

sighting information. FACSFACJAX 

shall advise ships of all reported whale 

sightings in the vicinity of the critical 

habitat and associated areas of concern 

(which extend 9 km (5 NM) seaward of 

the designated critical habitat 

boundaries). To the extent operationally 

feasible, ships shall avoid conducting 

training in the vicinity of recently 

sighted North Atlantic right whales. 

Ships shall maneuver to maintain at 

least 500 yards separation from any 

observed whale, consistent with the 

safety of the ship. 

(xxx) The Navy shall abide by the 

letter of the ‘‘Stranding Response Plan 

for Major Navy Training Exercises in the 

AFAST Study Area’’ (available at: 

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

incidental.htm), to include the 

following measures: 

(A) Shutdown Procedures—When an 

Uncommon Stranding Event (USE— 

defined in § 216.241) occurs during a 

Major Training Exercise (MTE, 

including SEASWITI, IAC, Group Sails, 

JTFEX, or COMPTUEX) in the AFAST 

Study Area, the Navy shall implement 

the procedures described below. 

(1) The Navy shall implement a 

Shutdown (as defined § 216.241) when 

advised by a NMFS Office of Protected 

Resources Headquarters Senior Official 

designated in the AFAST Stranding 

Communication Protocol that a USE 

involving live animals has been 

identified and that at least one live 

animal is located in the water. NMFS 

and Navy shall communicate, as 

needed, regarding the identification of 

the USE and the potential need to 

implement shutdown procedures. 

(2) Any shutdown in a given area 

shall remain in effect in that area until 

NMFS advises the Navy that the 

subject(s) of the USE at that area die or 

are euthanized, or that all live animals 

involved in the USE at that area have 

left the area (either of their own volition 

or herded). 

(3) If the Navy finds an injured or 

dead animal of any species other than 

North Atlantic right whale floating at 

sea during an MTE, the Navy shall 

notify NMFS immediately or as soon as 

operational security considerations 

allow. The Navy shall provide NMFS 

with species or description of the 

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

including carcass condition (if the 

animal(s) is/are dead), location, time of 

first discovery, observed behaviors (if 

alive), and photo or video (if available). 

Based on the information provided, 

NMFS shall determine if, and advise the 

Navy whether a modified shutdown is 

appropriate on a case-by-case basis. 

(4) If the Navy finds an injured (or 

entangled) North Atlantic right whale 

floating at sea during an MTE, the Navy 

shall implement shutdown procedures 

(14 or 17 nm, as defined below) around 

the animal immediately (without 

waiting for notification from NMFS). 

The Navy shall then notify NMFS 

(pursuant to the AFAST 

Communication Protocol) immediately 

or as soon as operational security 

considerations allow. The Navy shall 

provide NMFS with species or 

description of the animal(s), the 

condition of the animal(s) including 

carcass condition (if the animal(s) is/are 

dead), location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). Subsequent to the 

discovery of the injured whale, any 

Navy platforms in the area shall report 

any North Atlantic right whale sightings 

to NMFS (or to a contact that can alert 

NMFS as soon as possible). Based on the 

information provided, NMFS may 

initiate/organize an aerial survey (by 

requesting the Navy’s assistance 

pursuant to the memorandum of 

agreement (MOA) (see (a)(1)(xxx)(C) of 

this section) or by other available 

means) to see if other North Atlantic 

right whales are in the vicinity. Based 

on the information provided by the 

Navy and, if necessary, the outcome of 

the aerial surveys, NMFS shall 

determine whether a continued 

shutdown is appropriate on a case-bycase basis. Though it will be determined 

on a case-by-case basis after Navy/ 

NMFS discussion of the situation, 

NMFS anticipates that the shutdown 

will continue within 14 or 17 nm of a 

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live, injured/entangled North Atlantic 

right whale until the animal dies or has 

not been seen for at least 3 hours (either 

by NMFS staff attending the injured 

animal or Navy personnel monitoring 

the area around where the animal was 

last sighted). 

(5) If the Navy finds a dead North 

Atlantic right whale floating at sea 

during an MTE, the Navy shall notify 

NMFS (pursuant to AFAST Stranding 

Communication Protocol) immediately 

or as soon as operational security 

considerations allow. The Navy shall 

provide NMFS with species or 

description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal(s) is/are 

dead), location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). Subsequent to the 

discovery of the dead whale, if the Navy 

is operating sonar in the area they shall 

use increased vigilance (in looking for 

North Atlantic right whales) and all 

platforms in the area shall report 

sightings of North Atlantic right whales 

to NMFS as soon as possible. Based on 

the information provided, NMFS may 

initiate/organize an aerial survey (by 

requesting the Navy’s assistance 

pursuant to the MOA (see (a)(1)(xxx)(C) 

of this section) or by other available 

means) to see if other North Atlantic 

right whales are in the vicinity. Based 

on the information provided by the 

Navy and, if necessary, the outcome of 

the aerial surveys, NMFS will determine 

whether any additional mitigation 

measures are necessary on a case-bycase basis. 

(6) In the event, following a USE, that: 

(a) Qualified individuals are attempting 

to herd animals back out to the open 

ocean and animals are not willing to 

leave, or (b) animals are seen repeatedly 

heading for the open ocean but turning 

back to shore, NMFS and the Navy 

should coordinate (including an 

investigation of other potential 

anthropogenic stressors in the area) to 

determine if the proximity of MFAS/ 

HFAS training activities or explosive 

detonations, though farther than 14 or 

17 nm from the distressed animal(s), is 

likely decreasing the likelihood that the 

animals return to the open water. If so, 

NMFS and the Navy shall further 

coordinate to determine what measures 

are necessary to further minimize that 

likelihood and implement those 

measures as appropriate. 

(B) Within 72 hours of NMFS 

notifying the Navy of the presence of a 

USE, the Navy shall provide available 

information to NMFS (per the AFAST 

Communication Protocol) regarding the 

location, number and types of acoustic/ 

explosive sources, direction and speed 

of units using MFAS/HFAS, and marine 

mammal sightings information 

associated with training activities 

occurring within 80 nm (148 km) and 72 

hours prior to the USE event. 

Information not initially available 

regarding the 80 nm (148 km), 72 hours, 

period prior to the event shall be 

provided as soon as it becomes 

available. The Navy shall provide NMFS 

investigative teams with additional 

relevant unclassified information as 

requested, if available. 

(C) Memorandum of Agreement 

(MOA)—The Navy and NMFS shall 

develop a MOA, or other mechanism 

consistent with Federal fiscal law 

requirements (and all other applicable 

laws), that will establish a framework 

whereby the Navy can (and provide the 

Navy examples of how they can best) 

assist NMFS with stranding 

investigations in certain circumstances. 

This document shall be finalized in 

2009 (unless NMFS notifies the Navy 

that a delay is needed). 

(2) Mitigation for IEER/AEER—The 

following are mitigation measures for 

use with Extended Echo Ranging/ 

Improved Extended Echo Ranging (EER/ 

IEER) and Advanced Extended Echo 

Ranging given an explosive source 

generates the acoustic wave used in this 

sonobuoy. 

(i) Navy crews shall conduct visual 

reconnaissance of the drop area prior to 

laying their intended sonobuoy pattern. 

This search should be conducted below 

500 yards (457 m) at a slow speed, if 

operationally feasible and weather 

conditions permit. In dual aircraft 

training activities, crews are allowed to 

conduct coordinated area clearances. 

(ii) For IEER (AN/SSQ–110A), Navy 

crews shall conduct a minimum of 30 

minutes of visual and acoustic 

monitoring of the search area prior to 

commanding the first post (source/ 

receiver sonobuoy pair) detonation. This 

30-minute observation period may 

include pattern deployment time. 

(iii) For any part of the briefed pattern 

where a post (source/receiver sonobuoy 

pair) will be deployed within 1,000 

yards (914 m) of observed marine 

mammal activity, deploy the receiver 

ONLY and monitor while conducting a 

visual search. When marine mammals 

are no longer detected within 1,000 

yards (914 m) of the intended post 

position, co-locate the explosive source 

sonobuoy (AN/SSQ–110A) (source) with 

the receiver. 

(iv) When operationally feasible, Navy 

crews shall conduct continuous visual 

and aural monitoring of marine mammal 

activity. This is to include monitoring of 

own-aircraft sensors from first sensor 

placement to checking off station and 

out of communication range of these 

sensors. 

(v) Aural Detection: If the presence of 

marine mammals is detected aurally, 

then that should cue the aircrew to 

increase the diligence of their visual 

surveillance. Subsequently, if no marine 

mammals are visually detected, then the 

Navy crew may continue multi-static 

active search. 

(vi) Visual Detection: 

(A) If marine mammals are visually 

detected within 1,000 yards (914 m) of 

the explosive source sonobuoy (AN/ 

SSQ–110A) intended for use, then that 

payload shall not be detonated. 

(B) Navy 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 

1,000 yards (914 m) safety buffer. 

(C) Navy Aircrews may shift their 

multi-static active search to another 

post, where marine mammals are 

outside the 1,000 yards (914 m) safety 

buffer. 

(vii) For IEER (AN/SSQ–110A), Navy 

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 shall ensure that a 1,000 yard 

(914 m) safety buffer, visually clear of 

marine mammals, is maintained around 

each post as is done during active 

search operations. 

(viii) Navy 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, and inflight emergencies. In these cases, the 

sonobuoy will self-scuttle using the 

secondary or tertiary method. 

(ix) 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. 

(x) Marine mammal monitoring shall 

continue until out of own-aircraft sensor 

range. 

(3) Mitigation Measures Related to 

Vessel Transit and North Atlantic Right 

Whales: 

(i) Mid-Atlantic, Offshore of the 

Eastern United States: 

(A) All Navy vessels are required to 

use extreme caution and operate at a 

slow, safe speed consistent with mission 

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4882 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

and safety during the months indicated 

below and within a 37 km (20 nm) arc 

(except as noted) of the specified 

associated reference points: 

(1) South and East of Block Island (37 

km (20 NM) seaward of line between 

41–4.49° N. lat. 071–51.15° W. long. and 

41–18.58° N. lat. 070–50.23° W. long): 

Sept–Oct and Mar–Apr. 

(2) New York/New Jersey (40–30.64° 

N. lat. 073–57.76° W. long.): Sep–Oct 

and Feb–Apr. 

(3) Delaware Bay (Philadelphia) (38– 

52.13° N. lat. 075–1.93° W. long.): Oct– 

Dec and Feb–Mar. 

(4) Chesapeake Bay (Hampton Roads 

and Baltimore) (37–1.11° N. lat. 075– 

57.56° W. long.): Nov–Dec and Feb–Apr. 

(5) North Carolina (34–41.54° N. lat. 

076–40.20° W. long.): Dec–Apr. 

(6) South Carolina (33–11.84° N. lat. 

079–8.99° W. long. and 32–43.39° N. lat. 

079–48.72° W. long.): Oct–Apr. 

(B) During the months indicated in 

paragraph (a)(3)(i)(A) of this section, 

Navy vessels shall practice increased 

vigilance with respect to avoidance of 

vessel-whale interactions along the midAtlantic coast, including transits to and 

from any mid-Atlantic ports not 

specifically identified in paragraph 

(a)(3)(i)(A) of this section. 

(C) All surface units transiting within 

56 km (30 NM) of the coast in the midAtlantic shall ensure at least two 

watchstanders are posted, including at 

least one lookout who has completed 

required MSAT training. 

(D) Navy vessels shall not knowingly 

approach any whale head on and shall 

maneuver to keep at least 457 m (1,500 

ft) away from any observed whale, 

consistent with vessel safety. 

(ii) Southeast Atlantic, Offshore of the 

Eastern United States—for the purposes 

of the measures below (within this 

paragraph), the ‘‘southeast’’ 

encompasses sea space from Charleston, 

South Carolina, southward to Sebastian 

Inlet, Florida, and from the coast 

seaward to 148 km (80 NM) from shore. 

North Atlantic right whale critical 

habitat is the area from 31–15° N. lat. to 

30–15° N. lat. extending from the coast 

out to 28 km (15 NM), and the area from 

28–00° N. lat. to 30–15° N. lat. from the 

coast out to 9 km (5 NM). All mitigation 

measures described here that apply to 

the critical habitat apply from 

November 15–April 15 and also apply to 

an associated area of concern which 

extends 9 km (5 NM) seaward of the 

designated critical habitat boundaries. 

(A) Prior to transiting or training in 

the critical habitat or associated area of 

concern, ships shall contact Fleet Area 

Control and Surveillance Facility, 

Jacksonville, to obtain latest whale 

sighting and other information needed 

to make informed decisions regarding 

safe speed and path of intended 

movement. Subs shall contact 

Commander, Submarine Group Ten for 

similar information. 

(B) The following specific mitigation 

measures apply to activities occurring 

within the critical habitat and an 

associated area of concern which 

extends 9 km (5 NM) seaward of the 

designated critical habitat boundaries: 

(1) When transiting within the critical 

habitat or associated area of concern, 

vessels shall exercise extreme caution 

and proceed at a slow safe speed. The 

speed shall be the slowest safe speed 

that is consistent with mission, training 

and operations. 

(2) Speed reductions (adjustments) are 

required when a whale is sighted by a 

vessel or when the vessel is within 9 km 

(5 NM) of a reported new sighting less 

then 12 hours old. Circumstances could 

arise where, in order to avoid North 

Atlantic right whale(s), speed 

reductions could mean vessel must 

reduce speed to a minimum at which it 

can safely keep on course or vessels 

could come to an all stop. 

(3) Vessels shall avoid head-on 

approaches to North Atlantic right 

whale(s) and shall maneuver to 

maintain at least 457 m (500 yd) of 

separation from any observed whale if 

deemed safe to do so. These 

requirements do not apply if a vessel’s 

safety is threatened, such as when a 

change of course would create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in the ability to 

maneuver. 

(4) Ships shall not transit through the 

critical habitat or associated area of 

concern in a North-South direction. 

(5) Ships, surfaced subs, and aircraft 

shall report any whale sightings to Fleet 

Area Control and Surveillance Facility, 

Jacksonville, by the quickest and most 

practicable means. The sighting report 

shall include the time, latitude/ 

longitude, direction of movement and 

number and description of whale (i.e., 

adult/calf). 

(iii) Northeast Atlantic, Offshore of 

the Eastern United States: 

(A) Prior to transiting the Great South 

Channel or Cape Cod Bay critical habitat 

areas, ships shall obtain the latest North 

Atlantic right whale sightings and other 

information needed to make informed 

decisions regarding safe speed. The 

Great South Channel critical habitat is 

defined by the following coordinates: 

41–00° N. lat., 69–05° W. long.; 41–45° 

N. lat, 69–45° W. long; 42–10° N. lat., 

68–31° W. long.; 41–38° N. lat., 68–13° 

W. long. The Cape Cod Bay critical 

habitat is defined by the following 

coordinates: 42–04.8° N. lat., 70–10° W. 

long.; 42–12° N. lat., 70–15° W. long.; 

42–12° N. lat., 70–30° W. long.; 41–46.8° 

N. lat., 70–30° W. long. 

(B) Ships, surfaced subs, and aircraft 

shall report any North Atlantic right 

whale sightings (if the whale is 

identifiable as a right whale) off the 

northeastern U.S. to Patrol and 

Reconnaissance Wing 

(COMPATRECONWING). The report 

shall include the time of sighting, lat/ 

long, direction of movement (if 

apparent) and number and description 

of the whale(s). 

(C) Vessels or aircraft that observe 

whale carcasses shall record the 

location and time of the sighting and 

report this information as soon as 

possible to the cognizant regional 

environmental coordinator. All whale 

strikes must be reported. This report 

shall include the date, time, and 

location of the strike; vessel course and 

speed; operations being conducted by 

the vessel; weather conditions, 

visibility, and sea state; description of 

the whale; narrative of incident; and 

indication of whether photos/videos 

were taken. Navy personnel are 

encouraged to take photos whenever 

possible. 

(D) Specific mitigation measures 

related to activities occurring within the 

critical habitat include the following: 

(1) Vessels shall avoid head-on 

approaches to North Atlantic right 

whale(s) and shall maneuver to 

maintain at least 457 m (500 yd) of 

separation from any observed whale if 

deemed safe to do so. These 

requirements do not apply if a vessel’s 

safety is threatened, such as when 

change of course would create an 

imminent and serious threat to person, 

vessel, or aircraft, and to the extent 

vessels are restricted in the ability to 

maneuver. 

(2) When transiting within the critical 

habitat or associated area of concern, 

vessels shall use extreme caution and 

operate at a safe speed so as to be able 

to avoid collisions with North Atlantic 

right whales and other marine 

mammals, and stop within a distance 

appropriate to the circumstances and 

conditions. 

(3) Speed reductions (adjustments) are 

required when a whale is sighted by a 

vessel or when the vessel is within 9 km 

(5 NM) of a reported new sighting less 

than one week old. 

(4) Ships transiting in the Cape Cod 

Bay and Great South Channel critical 

habitats shall obtain information on 

recent whale sightings in the vicinity of 

the critical habitat. Any vessel operating 

in the vicinity of a North Atlantic right 

whale shall consider additional speed 

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Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4883 

reductions as per Rule 6 of International 

Navigational Rules. 

§ 216.245 Requirements for monitoring 

and reporting. 

(a) As outlined in the AFAST 

Stranding Communication Plan, the 

Navy must notify NMFS immediately 

(or as soon as clearance procedures 

allow) if the specified activity identified 

in § 216.240(c) is thought to have 

resulted in the mortality or injury of any 

marine mammals, or in any take of 

marine mammals not identified in 

§ 216.242(c). 

(b) The Navy must conduct all 

monitoring and required reporting 

under the Letter of Authorization, 

including abiding by the AFAST 

Monitoring Plan, which is incorporated 

herein by reference. 

(c) The Navy shall complete an 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan in 2009. This 

planning and adaptive management tool 

shall include: 

(1) A method for prioritizing 

monitoring projects that clearly 

describes the characteristics of a 

proposal that factor into its priority. 

(2) A method for annually reviewing, 

with NMFS, monitoring results, Navy 

R&D, and current science to use for 

potential modification of mitigation or 

monitoring methods. 

(3) A detailed description of the 

Monitoring Workshop to be convened in 

2011 and how and when Navy/NMFS 

will subsequently utilize the findings of 

the Monitoring Workshop to potentially 

modify subsequent monitoring and 

mitigation. 

(4) An adaptive management plan. 

(5) A method for standardizing data 

collection for AFAST and across Range 

Complexes 

(d) General Notification of Injured or 

Dead Marine Mammals—Navy 

personnel shall ensure that NMFS 

(regional stranding coordinator) is 

notified immediately (or as soon as 

clearance procedures allow) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing MFAS, HFAS, or underwater 

explosive detonations. The Navy shall 

provide NMFS with species or 

description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal is dead), 

location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). The Navy shall 

consult the Stranding Response Plan to 

obtain more specific reporting 

requirements for specific circumstances. 

(e) Annual AFAST Monitoring Plan 

Report—The Navy shall submit a report 

annually on October 1 describing the 

implementation and results (through 

August 1 of the same year) of the 

AFAST Monitoring Plan. Data collection 

methods will be standardized across 

range complexes to allow for 

comparison in different geographic 

locations. Although additional 

information will also be gathered, the 

marine mammal observers (MMOs) 

collecting marine mammal data 

pursuant to the AFAST Monitoring Plan 

shall, at a minimum, provide the same 

marine mammal observation data 

required in the data required in 

§ 216.245(f)(1). The AFAST Monitoring 

Plan Report may be provided to NMFS 

within a larger report that includes the 

required Monitoring Plan Reports from 

AFAST and multiple Range Complexes. 

(f) Annual AFAST Exercise Report— 

The Navy shall submit an Annual 

AFAST Exercise Report on October 1 of 

every year (covering data gathered 

through August 1 of the same year). This 

report shall contain information 

identified in subsections § 216.245(f)(1) 

through (f)(5). 

(1) MFAS/HFAS Major Training 

Exercises—This section shall contain 

the following information for the major 

training exercises for reporting (MTERs), 

which include the Southeastern ASW 

Integrated Training Initiative 

(SEASWITI), Integrated ASW Course 

(IAC), Composite Training Unit 

Exercises (COMPTUEX), and Joint Task 

Force Exercises (JTFEX) conducted in 

the AFAST Study Area: 

(i) Exercise Information (for each 

MTER): 

(A) Exercise designator; 

(B) Date that exercise began and 

ended; 

(C) Location; 

(D) Number and types of active 

sources used in the exercise; 

(E) Number and types of passive 

acoustic sources used in exercise; 

(F) Number and types of vessels, 

aircraft, etc., participating in exercise; 

(G) Total hours of observation by 

watchstanders; 

(H) Total hours of all active sonar 

source operation; 

(I) Total hours of each active sonar 

source (along with explanation of how 

hours are calculated for sources 

typically quantified in alternate way 

(buoys, torpedoes, etc.)); 

(J) Wave height (high, low, and 

average during exercise). 

(ii) Individual marine mammal 

sighting info (for each sighting in each 

MTER): 

(A) Location of sighting; 

(B) Species (if not possible— 

indication of whale/dolphin/pinniped); 

(C) Number of individuals; 

(D) Calves observed (y/n); 

(E) Initial Detection Sensor; 

(F) Indication of specific type of 

platform observation made from 

(including, for example, what type of 

surface vessel, i.e., FFG, DDG, or CG); 

(G) Length of time observers 

maintained visual contact with marine 

mammal; 

(H) Wave height (in feet); 

(I) Visibility; 

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

(K) Indication of whether animal is < 

200 yd, 200–500 yd, 500–1000 yd, 

1000–2000 yd, or > 2000 yd from sonar 

source in paragraph (f)(1)(ii)(J) of this 

section; 

(L) Mitigation Implementation— 

Whether operation of sonar sensor was 

delayed, or sonar was powered or shut 

down, and how long the delay was; 

(M) If source in use (i.e., in paragraph 

(f)(1)(ii)(J) of this section) is 

hullmounted, true bearing of animal 

from ship, true direction of ship’s travel, 

and estimation of animal’s motion 

relative to ship (opening, closing, 

parallel); 

(N) Observed behavior— 

Watchstanders shall report, in plain 

language and without trying to 

categorize in any way, the observed 

behavior of the animals (such as animal 

closing to bow ride, paralleling course/ 

speed, floating on surface and not 

swimming, etc.). 

(iii) An evaluation (based on data 

gathered during all of the MTERs) of the 

effectiveness of mitigation measures 

designed to avoid exposing marine 

mammals to MFAS. This evaluation 

shall identify the specific observations 

that support any conclusions the Navy 

reaches about the effectiveness of the 

mitigation. 

(2) ASW Summary—This section 

shall include the following information 

as summarized from both MTERs and 

non-major training exercises: 

(i) 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 Impact Report—To the 

extent practicable, the Navy, in 

coordination with NMFS, shall develop 

and implement a method of annually 

reporting non-major (i.e., other than 

MTERs) training exercises utilizing hullmounted sonar. The report shall present 

an annual (and seasonal, where 

practicable) depiction of non-major 

training exercises geographically across 

the AFAST Study Area. To the extent 

practicable, this report will also include 

the total number of sonar hours (from 

helicopter dipping sonar and object 

detection exercises) conducted within 

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4884 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

the southern NARW critical habitat plus 

5 nm buffer area. The Navy shall 

include (in the AFAST 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. 

(3) IEER/AEER Summary—This 

section shall include an annual 

summary of the following IEER and 

AEER information: 

(i) Total number of IEER and AEER 

events conducted in the AFAST Study 

Area; 

(ii) Total expended/detonated rounds 

(buoys); 

(iii) Total number of self-scuttled 

IEER rounds. 

(g) Sonar Exercise Notification—The 

Navy shall submit to the NMFS Office 

of Protected Resources (specific contact 

information to be provided in LOA) 

either an electronic (preferably) or 

verbal report within fifteen calendar 

days after the completion of any MTER 

indicating: 

(1) Location of the exercise; 

(2) Beginning and end dates of the 

exercise; 

(3) Type of exercise (e.g., COMPTUEX 

or SEASWITI). 

(h) AFAST 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, MIW and IEER/AEER exercises 

for which annual reports are required 

(Annual AFAST Exercise Reports and 

AFAST Monitoring Plan Reports). This 

report will be submitted at the end of 

the fourth year of the rule (November 

2012), covering activities that have 

occurred through June 1, 2012. 

(i) 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 AFAST, 

SOCAL, the HRC, the Marianas Range 

Complex, the Northwest Training 

Range, the Gulf of Alaska, and the East 

Coast Undersea Warfare Training Range. 

(j) The Navy shall respond to NMFS 

comments and requests for additional 

information or clarification on the 

AFAST Comprehensive Report, the 

Comprehensive National ASW report, 

the Annual AFAST Exercise Report, or 

the Annual AFAST 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. 

(k) 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. 

§ 216.246 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to the regulations in this 

subpart, the U.S. citizen (as defined by 

§ 216.103) conducting the activity 

identified in § 216.240(c) (the U.S. 

Navy) must apply for and obtain either 

an initial Letter of Authorization in 

accordance with § 216.247 or a renewal 

under § 216.248. 

§ 216.247 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 § 216.248. 

(b) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

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

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization will be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 216.248 Renewal of Letters of 

Authorization and Adaptive Management. 

(a) A Letter of Authorization issued 

under §§ 216.106 and 216.247 for the 

activity identified in § 216.240(c) will be 

renewed annually upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 216.246 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) Timely receipt (by the dates 

indicated in these regulations) of the 

monitoring reports required under 

§ 216.245(c) through (j); and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 216.244 and 

the Letter of Authorization issued under 

§§ 216.106 and 216.247, 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 216.248 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. Review and 

comment on renewals of Letters of 

Authorization are restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) NMFS, in response to new 

information and in consultation with 

the Navy, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation 

and monitoring set forth in the preamble 

of these regulations. Below are some of 

the possible sources of new data that 

could contribute to the decision to 

modify the mitigation or monitoring 

measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from AFAST or other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (section 216.245(l)). 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 216.245(d))). 

(4) Results from specific stranding 

investigations (either from the AFAST 

Study Area or other locations, and 

involving coincident MFAS/HFAS or 

explosives training or not involving 

coincident use). 

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Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4885 

(5) Results from the Long Term 

Prospective Study described in the 

preamble to these regulations. 

(6) Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

§ 216.249 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 216.247 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 § 216.248, 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 § 216.242(c), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 216.247 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. E9–1706 Filed 1–22–09; 4:15 pm] 

BILLING CODE 3510–22–P 

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