Taking and Importing Marine Mammals; U.S. Navy Training in the Hawaii Range Complex, 1456-1491 [E9-37]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 7 (Monday, January 12, 2009)]
[Rules and Regulations]
[Pages 1456-1491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-37]



[[Page 1455]]

-----------------------------------------------------------------------

Part III





Department of Commerce





-----------------------------------------------------------------------



National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



50 CFR Part 216



Taking and Importing Marine Mammals; U.S. Navy Training in the Hawaii 
Range Complex; Final Rule

Federal Register / Vol. 74, No. 7 / Monday, January 12, 2009 / Rules 
and Regulations

[[Page 1456]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 080519680-81530-02]
RIN 0648-AW86


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Hawaii Range Complex

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to training activities conducted within the Hawaii Range 
Complex (HRC) for the period of January 2009 through January 2014. The 
Navy's training activities are considered military readiness activities 
pursuant to the Marine Mammal Protection Act (MMPA), as amended by the 
National Defense Authorization Act of 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 5, 2009 through January 5, 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.

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 Monday, June 23, 2008 (73 FR 35510). 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 June 25, 2007, NMFS received an application from the Navy 
requesting authorization for the take of 24 species of marine mammals 
incidental to upcoming Navy training activities to be conducted within 
the HRC, which covers 235,000 nm\2\ around the Main Hawaiian Islands 
(see map on page 17 of the application), over the course of 5 years. 
These training activities are classified as military readiness 
activities. These training activities may incidentally take marine 
mammals present within the HRC by exposing them to sound from mid-
frequency or high frequency active sonar (MFAS/HFAS) or to underwater 
detonations at levels that NMFS associates with the take of marine 
mammals. The Navy requested authorization to take individuals of 24 
species of marine mammals by Level B Harassment. Further, though they 
do not anticipate it to occur, the Navy requested authorization to 
take, by injury or mortality, up to 10 individuals each of 10 species 
over the course of the 5-year period (bottlenose dolphin, Kogia spp., 
melon-headed whale, pantropical spotted dolphin, pygmy killer whale, 
short-finned pilot whale, striped dolphin, and Cuvier's, Longman's, and 
Blainville's beaked whale).

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 35510).

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 
of the training exercises involving both mid- and high-frequency active 
sonar (MFAS and HFAS) and explosive detonations, as well as the MFAS 
and HFAS sound sources and explosive types. See 73 FR 35510, page 
35512. The narrative description of the action contained in the 
proposed rule has not changed except for two corrections and one 
clarification, noted in the paragraph below. Tables 1-3 summarize and 
quantify the sonar exercise types, sonar sources, and explosive 
exercise types

[[Page 1457]]

used in these training exercises and contain minor corrections (from 
the proposed rule) that did not affect NMFS' analysis of the proposed 
action.
    The last paragraph of the Mine Neutralization section of the 
proposed rule contained an error. For the final rule, the sentence 
beginning ``Standard practices for tethered mines * * *'' should be 
replaced with the following sentence: ``Standard practice for tethered 
mines is to tie off the explosive counter charge as closely as possible 
to the mine case.'' In the proposed rule, Table 5 (which is Table 3 in 
this final rule) mistakenly indicated that IEER exercises would only 
occur in the summer months. In fact, IEER use in the winter months is 
typically rare and infrequent due to the required mitigation measures, 
but exercises may be planned for winter and NMFS and the Navy's 
analyses accounted for this fact. Table 3 includes the correction here. 
These two modifications are non-substantive and do not affect NMFS' 
determinations.
    Last, Table 1 (in this final rule) indicates that RIMPAC exercises 
only occur in the summer (when humpback whales are not present) of 
every other year, which is accurate. Table 2 shows that the Navy plans 
to conduct the same number of sonar hours in each year. The needed 
clarification (to ensure no unanticipated humpback whale take occurs) 
follows: In the years without RIMPAC, the sonar hours conducted will be 
seasonally and spatially distributed such that no additional exposures 
of humpback whales to MFAS/HFAS would occur beyond those used to 
estimate take in the years with a RIMPAC. In a simple example, in a 
non-RIMPAC year, the Navy could choose to conduct the RIMPAC-sized lump 
of sonar hours either in the summer when humpbacks are not present, or 
in the winter but farther out to sea where their activities would not 
expose humpbacks to MFAS/HFAS, or some combination of those two. This 
clarification does not affect NMFS' determinations.
[GRAPHIC] [TIFF OMITTED] TR12JA09.038

[GRAPHIC] [TIFF OMITTED] TR12JA09.039


[[Page 1458]]


[GRAPHIC] [TIFF OMITTED] TR12JA09.040

Description of Marine Mammals in the Area of the Specified Activities

    There are 27 marine mammal species with possible or confirmed 
occurrence in the HRC. Seven marine mammal species listed as federally 
endangered under the Endangered Species Act (ESA) occur in the HRC: The 
humpback whale, North Pacific right whale, sei whale, fin whale, blue 
whale, sperm whale, and Hawaiian monk seal. The most abundant marine 
mammals appear to be dwarf sperm whales, striped dolphins, and Fraser's 
dolphins. The most abundant large whales are sperm whales. Table 4 
provides the estimated abundance, estimated group size, and estimated 
probability of detection (based on Barlow 2006) of the marine mammal 
species that occur in the HRC.
BILLING CODE 3510-22-P

[[Page 1459]]

[GRAPHIC] [TIFF OMITTED] TR12JA09.041

BILLING CODE 3510-22-C
    The Navy has compiled information on the abundance, behavior, 
status and distribution, and vocalizations of marine mammal species in 
the Hawaiian waters from peer reviewed literature, the Navy Marine 
Resource Assessment, NMFS Stock Assessment Reports, and marine mammal 
surveys using acoustics or visual observations from aircraft or ships. 
This information may be viewed in the Navy's LOA application and/or the 
Navy's FEIS for the HRC (see FOR FURTHER INFORMATION). Additional 
information is available in NMFS Stock Assessment Reports, which may be 
viewed at: https://www.nmfs.noaa.gov/pr/sars/species.htm. As indicated 
in the proposed rule, based on their rare occurrence in the HRC, the 
Navy and NMFS do not anticipate any effects to Blue whales, North 
Pacific right whales, or Northern elephant seals and, therefore, they 
are not addressed further in this document.
    Because the consideration of areas where marine mammals are known 
to selectively breed or calve are important to both the negligible 
impact finding necessary for the issuance of an MMPA

[[Page 1460]]

authorization and the need for NMFS to put forth the means of affecting 
the least practicable adverse impact paying particular attention to 
rookeries, mating grounds, and other areas of similar significance, the 
proposed rule contains a description of important reproductive areas, 
with a special focus on humpback whales (73 FR 35510, page 35519). That 
section includes a figure that generally illustrates humpback whale 
survey data collected between 1993 and 2003 and indicates areas of high 
and low density. The description contained in the proposed rule has not 
changed.

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 35510, pages 35521-35522). 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 HRC, so this determination is inapplicable for 
the HRC); and (4) to prescribe requirements pertaining to monitoring 
and reporting.
    In the Potential Effects of Specified Activities on Marine Mammals 
Section of the proposed rule NMFS included a qualitative discussion of 
the different ways that MFAS/HFAS and underwater explosive detonations 
may potentially affect marine mammals (some of which NMFS would not 
classify as harassment); 73 FR 35510, pages 35522-35534. 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 have been observed a limited number of times in certain 
circumstances (the specific events are also described); 73 FR 35510, 
pages 35529-35534. The information contained in Potential Effects of 
Specified Activities on Marine Mammals Section from the proposed rule 
has not changed, except for one correction noted below.
    The proposed rule contained an error in the Potential Effects of 
Specified Activities on Marine Mammals Section (73 FR 35510, page 
35534). The statement ``A surface duct may be present * * *'' should be 
replaced with the following statement: ``Surface ducts are present 
approximately 53 percent of the time.'' Note that the Navy's model for 
estimating effects on marine mammals incorporates the likelihood of 
strong surface ducts in the HRC (pers. comm. J. Hibbard to J. Harrison, 
2007) and the exposure estimates it produces reflect this.
    Later, in the Estimated Take of Marine Mammals Section, NMFS 
relates the potential effects to marine mammals from MFAS/HFAS and 
underwater detonation of explosives discussed here to the MMPA 
regulatory definitions of Level A and Level B Harassment, and 
mortality, and quantifies those effects.

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 HRC training activities described 
in the proposed rule are considered military readiness activities.
    NMFS reviewed the Navy's proposed HRC activities and the proposed 
HRC 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) Humpback whales 
congregating in the winter in the shallow areas of the HRC in high 
densities to calve and breed; and (2) 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.

[[Page 1461]]

    (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 additional 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 
and the Navy developed two additional mitigation measures that address 
the concerns mentioned above, including a humpback whale cautionary 
area and a Stranding Response Plan.
    The Navy's proposed mitigation measures, as well as the humpback 
whale cautionary area and the Stranding Response Plan, both of which 
are required under these regulations, were described in detail in the 
proposed rule (73 FR 35510, pages 35535-35541). The Navy's measures 
address personnel training, lookout and watchstander responsibilities, 
and operating procedures for training activities using both MFAS/HFAS 
and explosive detonations. No changes have been made to the mitigation 
measures described in the proposed rule, with one correction and one 
addition, addressed in the next paragraph. The final HRC Stranding 
Response Plan, which includes a shutdown protocol, a stranding 
investigation plan, and a requirement for Navy and NMFS to implement an 
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: https://
www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Additionally, 
the mitigation measures are included in full in the codified text of 
the regulations.
    The proposed rule contained a measure in which the Navy indicated 
that ``prior to conducting the exercise, remotely sensed sea surface 
temperature maps would be reviewed. SINKEX and air to surface missile 
(ASM) Training activities would not be conducted within areas where 
strong temperature discontinuities are present, thereby indicating the 
existence of oceanographic fronts'' (73 FR 35510, page 35537). The Navy 
included this measure in the LOA application in error. The removal of 
the measure does not change NMFS' analysis and therefore the measure is 
not included in the final rule. Additionally, the following measure has 
been added to the regulations: Night vision goggles shall be available 
to all ships and air crews for use as appropriate.
    NMFS has determined that the Navy's proposed mitigation measures 
(from the LOA application), along with the Humpback Whale Cautionary 
Area 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 35510, 
pages 35540-35541). 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 U.S. 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 HRC 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

[[Page 1462]]

diseases and investigate the relationship with potential causal factors 
(e.g., sonar, seismic, weather). The proposed rule contained an outline 
of the proposed study (73 FR 35510, pages 35541-35542). 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 the HRC

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the HRC 
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 HRC Monitoring Plan, which is summarized below, may 
be viewed at https://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications.
    The draft Monitoring Plan for the HRC has been designed as a 
collection of focused ``studies'' (described fully in the HRC 
Monitoring Plan) to gather data that will allow the Navy to address the 
following questions:
    (a) Are marine mammals exposed to mid-frequency active sonar 
(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 HRC, do they 
redistribute geographically within the HRC 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 levels?
    (d) What are the behavioral responses of marine mammals that are 
exposed to explosives at specific levels?
    (e) Is the Navy's suite of mitigation measures for MFAS and 
explosives (e.g., PMAP, major exercise 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:
     Visual Surveys--Vessel, Aerial and Shore-based.
     Passive Acoustic Monitoring (PAM).
     Marine Mammal observers (MMOs) on Navy Vessels.
     Marine Mammal Tagging.
    In the five 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 or explosive detonations. 
Table 5 contains a summary of the Monitoring effort that is planned for 
each study in each year (effort may vary slightly between years or 
study type, but overall effort will remain constant). The HRC 
Monitoring Plan is designed to collect data on all marine mammals and 
sea turtles encountered during monitoring studies. However, priority 
will be given to ESA-listed species and taxa in which MFAS exposure and 
strandings have been linked under certain circumstances. Because of the 
important reproductive area and the fact that humpback whales are 
present in very high densities in certain areas of the HRC, the Navy 
plans to dedicate a designated subset of their monitoring effort 
specifically to these high-density areas.
BILLING CODE 3510-22-P

[[Page 1463]]

[GRAPHIC] [TIFF OMITTED] TR12JA09.042

BILLING CODE 3510-22-C

Monitoring Workshop

    During the public comment period on the proposed rule for the HRC, 
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 HRC 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 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 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 HRC rule as well as monitoring 
results from other Navy rules issued after HRC (e.g., the Atlantic

[[Page 1464]]

Fleet Active Sonar Training, Southern California Range Complex, 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 R&D 
developments) and working within the framework of available resources 
and feasibility of implementation. NMFS and the Navy would then analyze 
the input from the Monitoring Workshop participants and determine the 
best way forward from a national perspective. Subsequent to the 
Monitoring Workshop, modifications would be applied to monitoring plans 
as appropriate.

Integrated Comprehensive Monitoring Plan

    In addition to the Monitoring Plan for the HRC, the Navy will 
complete an 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 range-specific monitoring 
plans (e.g., HRC Range Complex 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 HRC rule and the other planned Navy rules 
(e.g. AFAST and SOCAL), the ICMP could potentially provide a framework 
for restructuring the monitoring plans and allocating monitoring effort 
based on the value of particular specific monitoring proposals (in 
terms of the degree to which results would likely contribute to stated 
monitoring goals, as well as the likely technical success of the 
monitoring based on a review of past monitoring results) that have been 
developed through the ICMP framework, instead of allocating based on 
maintaining an equal (or commensurate to effects) distribution of 
monitoring effort across Range complexes. For example, if careful 
prioritization and planning through the ICMP (which would include a 
review of both past monitoring results and current scientific 
developments) were to show that a large, intense monitoring effort in 
Hawaii would likely provide extensive, robust and much-needed data that 
could be used to understand the effects of sonar throughout different 
geographical areas, it may be appropriate to have other Range Complexes 
dedicate money, resources, or staff to the specific monitoring proposal 
identified as ``high priority'' by the Navy and NMFS, in lieu of 
focusing on smaller, lower priority projects divided throughout their 
home Range Complexes.
    The ICMP will identify:
     A means by which NMFS and the Navy would jointly consider 
prior years' monitoring results and advancing science to determine if 
modifications are needed in mitigation or monitoring measures to better 
effect the goals laid out in the Mitigation and Monitoring sections of 
the HRC 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 Range Complex), 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 the HRC

    The proposed rule contained a detailed review of the previous 
marine mammal monitoring conducted in the HRC, which was conducted in 
compliance with the terms and conditions of multiple biological 
opinions issued for MFAS training activities (73 FR 35510, pages 35544-
35548). 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 training exercises in the HRC will 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 the HRC). 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 the HRC 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 the HRC or other locations, and involving coincident MFAS/HFAS or 
explosives training or not involving coincident use).
     Results from the Long Term Prospective Study described 
below.
     Results from general marine mammal and sound research 
(funded by

[[Page 1465]]

the Navy (described below) 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 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 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 an 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 HRC 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 
HRC 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 HRC 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 HRC Exercise Report 
referenced below.
    The HRC Monitoring Plan Report may be provided to NMFS within a 
larger report that includes the required Monitoring Plan Reports from 
multiple Range Complexes.

Annual HRC Exercise Report

    The Navy will submit an Annual HRC Exercise Report on October 1 of 
every year (covering data gathered through August 1 (or completion of 
RIMPAC if later than Aug 1)). This report shall contain the subsections 
and information indicated below.

MFAS/HFAS Major Training Exercises

    This section shall contain the following information for Major 
Training Exercises (MTEs, which include RIMPAC, USWEX, and Multi Strike 
Group) conducted in the HRC:
    (a) Exercise Information (for each MTE):
    (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 MTE).
    (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 MTEs) 
of the effectiveness of mitigation measures designed to avoid exposing 
marine mammals to mid-frequency sonar. This evaluation shall identify 
the specific observations that support any conclusions the Navy reaches 
about the effectiveness of the mitigation.

ASW Summary

    This section shall include the following information as summarized 
from both MTEs and non-major training exercises (unit-level exercises, 
such as TRACKEXs):
    (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) Total hours (from December 15 through April 15) of hullmounted 
active sonar operation occurring in the dense humpback areas generally 
shown on the Mobley map (73 FR 35510, page 35520)

[[Page 1466]]

plus a 5-km buffer, but not including the Pacific Missile Range 
Facility. NMFS and the Navy will work together to develop the exact 
boundaries of this area.
    (iii) Total estimated annual hours of hull-mounted active sonar 
operation conducted in Humpback Whale Cautionary area between December 
15 and April 15.
    (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 RIMPAC, USWEX, or Multi-
Strike Group Exercises) training exercises utilizing hull-mounted 
sonar. The report shall present an annual (and seasonal, where 
practicable) depiction of non-major training exercises geographically 
across the HRC. The Navy shall include (in the HRC 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.

SINKEXs

    This section shall include the following information for each 
SINKEX completed that year:
    (a) Exercise info:
    (i) Location.
    (ii) Date and time exercise began and ended.
    (iii) Total hours of observation by watchstanders before, during, 
and after exercise.
    (iv) Total number and types of rounds expended/explosives 
detonated.
    (v) Number and types of passive acoustic sources used in exercise.
    (vi) Total hours of passive acoustic search time.
    (vii) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (viii) Wave height in feet (high, low and average during exercise).
    (ix) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (b) Individual marine mammal observation (by Navy lookouts) info.
    (i) Location of sighting.
    (ii) Species (if not possible--indication of whale/dolphin/
pinniped).
    (iii) Number of individuals.
    (iv) Calves observed (y/n).
    (v) Initial detection sensor.
    (vi) Length of time observers maintained visual contact with marine 
mammal.
    (vii) Wave height.
    (viii) Visibility.
    (ix) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
    (x) Distance of marine mammal from actual detonations--or target 
spot if not yet detonated)--use four categories to define distance: (1) 
The modeled injury threshold radius for the largest explosive used in 
that exercise type in that OPAREA (91 m for SINKEX in HRC); (2) the 
required exclusion zone (1 nm for SINKEX in HRC); (3) the required 
observation distance (if different than the exclusion zone (2 nm for 
SINKEX in HRC); and (4) greater than the required observed distance. 
For example, in this case, the observer would indicate if < 91 m, from 
91 m--1 nm, from 1 nm--2 nm, and > 2 nm.
    (xi) Observed behavior--Watchstanders will report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming etc.), 
including speed and direction.
    (xii) Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long.
    (xiii) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal 
detection.

Improved Extended Echo-Ranging System (IEER) Summary

    This section shall include an annual summary of the following IEER 
information:
    (i) Total number of IEER events conducted in the HRC.
    (ii) Total expended/detonated rounds (buoys).
    (iii) Total number of self-scuttled IEER rounds.

Explosives Summary

    The Navy is in the process of improving the methods used to track 
explosive use to provide increased granularity. To the extent 
practicable, the Navy will provide the information described below for 
all of their explosive exercises. Until the Navy is able to report in 
full the information below, they will provide an annual update on the 
Navy's explosive tracking methods, including improvements from the 
previous year.
    (i) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the HRC.
    (iii) Total annual expended/detonated rounds (missiles, bombs, 
etc.) for each explosive type.

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 major exercise (RIMPAC, USWEX, or Multi 
Strike Group) indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise (i.e., RIMPAC, USWEX, or Multi Strike Group).

HRC 5-yr Comprehensive Report

    The Navy shall submit to NMFS a draft report that analyzes and 
summarizes all of the multi-year marine mammal information gathered 
during ASW and explosive exercises for which annual reports are 
required (Annual HRC Exercise Reports and HRC 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 the HRC, the Atlantic Fleet 
Active Sonar Training, the Southern California (SOCAL) Range Complex, 
the Marianas Range Complex, the Northwest Training Range, 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 HRC Comprehensive Report, the 
Comprehensive National ASW report, the Annual HRC Exercise Report, or 
the Annual HRC 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 June 23, 2008 (73 FR 35510), NMFS published a proposed rule in

[[Page 1467]]

response to the Navy's request to take marine mammals incidental to 
military readiness training exercises in the HRC and requested 
comments, information and suggestions concerning the request. During 
the 30-day public comment period, NMFS received 8 comments from private 
citizens, comments from the Marine Mammal Commission (MMC) and the 
Office of Hawaiian Affairs, and several 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, Cetacean 
Society International, Ocean Mammal Institute, the International Ocean 
Noise Coalition, Seaflow, and the Ocean Futures Society and its founder 
Jean-Michel Cousteau), the Cascadia Research Collective (CRC), Ziphius 
EcoServices, and Smultea Environmental Sciences, LLC. The comments are 
summarized and sorted into general topic areas and are addressed below. 
Full copies of the comment letters may be accessed at https://
www.regulations.gov.

Monitoring and Reporting

    Comment 1: One commenter stated that ``It is advisable to hold a 
multi-day workshop to discuss controversial issues related to the 
problem.'' The commenter further indicated that the workshop should 
include representatives from the Navy, NMFS, relevant marine mammal 
researchers, NGOs (e.g., NRDC), and invited experts on certain topics 
of interest. The goal of the workshop should be to move towards 
consensus on a way forward for the monitoring plan.
    Response: NMFS believes that a workshop consisting of the Navy, 
NMFS, researchers, invited experts, and other interested parties, in 
combination with an adaptive management plan that allows for 
modification to the monitoring plan, would provide a means for the Navy 
to potentially make changes to the Monitoring Plan that would more 
effectively accomplish some of the goals of monitoring set forth 
earlier in the Monitoring section. NMFS and the Navy have coordinated 
on this point and the Navy will convene a workshop in 2011. The 
workshop and how it will interact with the adaptive management 
component are discussed in the Monitoring Workshop section of this 
final rule. The Monitoring Workshop participants will be asked to 
submit individual recommendations to the Navy and NMFS, and both 
agencies will work together to determine whether modifications to the 
HRC monitoring are necessary based on the recommendations. As 
necessary, NMFS would incorporate any changes into future LOAs and 
future rules. However, we disagree with the commenter's suggestion that 
the workshop participants seek to achieve consensus on a way forward 
for the monitoring plan. NMFS has statutory responsibility to prescribe 
regulations pertaining to monitoring and reporting, and will, in 
coordination with the Navy, develop the most effective and appropriate 
monitoring and reporting protocols for future authorizations.
    Comment 2: Two commenters made several recommendations regarding 
the formatting and understandability of the monitoring plan.
    Response: NMFS incorporated these recommendations where 
appropriate. For example, a map of the area that the ICMP covers was 
added to the plan, a list of the animals in the HRC was added, and 
bulleted lists will replace long paragraphs in some places. However, we 
did not incorporate the commenters recommendations in all cases, for 
example, the commenter recommended that a lot of the analysis contained 
in the proposed rule be included in the Monitoring plan, such as a 
summary of Southall et al., 2007, or the regulatory definitions of 
Level A and Level B harassment, which NMFS believes would needlessly 
lengthen and complicate the Plan and generally be duplicative.
    Comment 3: Two commenters asked for more detail, and associated 
references, in several areas of the methods sections.
    Response: NMFS has provided additional detail (including citations) 
concerning the survey methods used in the monitoring plan in the final 
rule.
    Comment 4: One commenter stated: ``The Navy improperly assumes that 
they have no impact on the marine mammals. It is clear that the draft 
plan begins with the assumption that the Navy has no impact on marine 
mammals, or that the current mitigation is adequate to eliminate 
impacts. This is not supported by facts, and it invalidates the entire 
purpose of the plan. The Navy must acknowledge that sonar testing may 
indeed impact marine mammals and provide references, and must be 
willing to work as an active partner in a plan to investigate the 
extent and severity of such impacts, and how to reduce them to 
insignificant levels. Otherwise, this entire exercise is just `window 
dressing' and will be a major waste of taxpayer dollars.''
    Response: NMFS disagrees with this commenter's assertion. It is 
possible that the commenter mistook the fact that the Navy phrased some 
of their goals as null hypotheses (``If marine mammals and sea turtles 
are exposed to MFAS, what are their behavioral responses? Are they 
different at various levels?'') to mean that they think there are no 
effects. The Navy's LOA application and EIS clearly discuss the 
potential adverse effects that marine mammals may experience when 
exposed to MFAS. The Navy has worked and will continue to work as an 
active partner to investigate the extent and severity of the impacts 
and how to reduce them (see Navy Research section of this final rule).
    Comment 5: A few commenters asked why the Navy did not consider 
additional survey methods, or modifications to the existing methods, 
beyond those currently included in the plan, such as: Specified focal 
follows of one animal before, during, and after sonar; photo-
identification of marine mammals to look at residency patterns; having 
a helicopter on board, on call to opportunistically observe marine 
mammals around sonar transmissions; or doing biopsy sampling to assess 
stress hormones.
    Response: There are a lot of different methods available with which 
to monitor marine mammals and the Navy considered a wide range of 
methods in the development of their plan. NMFS considered all of the 
public comments (including the recommended additional survey methods) 
received during this rulemaking. Some of the methods suggested by the 
public, such as the photo-identification method, would likely be 
feasible and provide useful information, while other methods, such as 
having a helicopter on standby, would be difficult both financially and 
operationally. Nevertheless, the Navy must work within the framework of 
the available resources and the operational constraints associated with 
doing work in the vicinity of a complex military exercise. NMFS 
provided input during the development of the plan and believes that 
results from the required monitoring will provide valuable information 
regarding the effects of MFAS on marine mammals. Additionally, by 
including the Monitoring Plan as a requirement of the LOA, NMFS is 
compliant with the MMPA requirement to prescribe regulations setting 
forth the requirements pertaining to the monitoring and reporting of 
taking. That being said, the Navy and NMFS understand the importance of 
marine mammal monitoring to determine the effects of MFAS, which is why 
the Navy agreed to conduct the Workshop referred to in Comment 1 during 
which the workshop participants will review

[[Page 1468]]

and assess the monitoring results (from this Monitoring Plan and others 
from other Range complexes and areas) and make informed recommendations 
for how to move forward with the best Monitoring strategy.
    Comment 6: The Marine Mammal Commission was supportive of the use 
of Adaptive Management, but wanted a more detailed implementation plan.
    Response: NMFS has included additional detail regarding how 
adaptive management will be implemented. Please see the Adaptive 
Management, Monitoring Workshop, and Integrated Comprehensive 
Monitoring Plan sections of the final rule.
    Comment 7: Multiple commenters questioned whether the Marine Mammal 
Observers identified in the Monitoring Plan are independent scientists 
or Navy employees? Some commenters questioned the objectivity of Navy 
scientists.
    Response: Independent scientists will be conducting the vast 
majority of the observations pursuant to the Monitoring Plan. Navy 
scientists will be involved in a small portion of the field work and 
some of the post-monitoring analysis. The Navy is responsible for both 
the funding and implementation of a substantial amount of marine mammal 
and acoustic research and NMFS has no concerns regarding the 
objectivity of the reported results from either these research projects 
or the monitoring required pursuant to the MMPA authorization.
    Comment 8: During aerial surveys, information on headings/
orientation of animals should be collected as these data can later be 
examined to assess movement/response of animals relative to locations 
and received sound levels of MFAS and underwater detonations.
    Response: As NMFS noted in the proposed rule, additional detail has 
been added to the Reporting Requirements section of the final rule. A 
requirement that Navy lookouts report the relative directions of both 
the marine mammals and the sonar source has been included. NMFS also 
included a requirement that the MMOs collecting data for the Monitoring 
Plan collect, at a minimum, the same data outlined in the Reporting 
Requirements section for the Navy lookouts.
    Comment 9: One commenter was concerned that the Navy would not 
begin collecting data until mid-late 2009 when the ICMP was finalized.
    Response: The ICMP is an overarching framework for all of the 
Navy's Range-specific MMPA Monitoring Plans and does not include a 
field-work component (rather it addresses prioritization, 
standardization, and summarization of actual data-gathering). The Navy 
actually began doing some of the data collection in 2007 outside of the 
commitments made through the HRC EIS process, and they will begin 
collecting field data pursuant to the HRC-specific Monitoring Plan 
shortly after the authorized exercises begin in early 2009.
    Comment 10: Two commenters questioned whether the Navy had 
considered whether a statistically sound sample size had been developed 
to answer the questions that the monitoring is trying to answer. One 
commenter stated: ``To determine the sample sizes required to assess 
impacts and the validity of this monitoring effort, the statistical 
power should be es