Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet Active Sonar Training (AFAST), 4844-4885 [E9-1706]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 16 (Tuesday, January 27, 2009)]
[Rules and Regulations]
[Pages 4844-4885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1706]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 216



Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet Active 
Sonar Training (AFAST); Final Rule

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

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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.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to activities conducted 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[deg] W. long. and south from the Atlantic and Gulf of 
Mexico Coasts to approximately 23[deg] 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 mid-frequency 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.
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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: 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.
    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 https://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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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

[[Page 4857]]

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

[[Page 4858]]

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 hull-mounted 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

[[Page 4859]]

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 https://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

[[Page 4860]]

(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:
    [ssbox] 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.
    [ssbox] 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).
    [ssbox] 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 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 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 hull-mounted) 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

[[Page 4861]]

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,