Taking and Importing Marine Mammals; U.S. Naval Surface Warfare Center Panama City Division Mission Activities, 3395-3416 [2010-1074]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AW80


Taking and Importing Marine Mammals; U.S. Naval Surface Warfare 
Center Panama City Division Mission Activities

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

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to activities conducted at the Naval Surface Warfare Center 
Panama City Division (NSWC PCD) for the period of January 2010 through 
January 2015. The Navy's activities are considered military readiness 
activities pursuant to the Marine Mammal Protection Act (MMPA), as 
amended by the National Defense Authorization Act for Fiscal Year 2004 
(NDAA). These regulations, which allow for the issuance of ``Letters of 
Authorization'' (LOAs) for the incidental take of marine mammals during 
the described activities and specified timeframes, prescribe the 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on marine mammal species and their habitat, 
as well as requirements pertaining to the monitoring and reporting of 
such taking.

DATES: Effective January 21, 2010, through January 21, 2015.

ADDRESSES: A copy of the Navy's application (which contains a list of 
the references used in this document), NMFS' Record of Decision (ROD), 
and other documents cited herein may be obtained by writing to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact 
listed here (see FOR FURTHER INFORMATION CONTACT). Additionally, the 
Navy's LOA application may be obtained by visiting the Internet at: 
https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 137.

SUPPLEMENTARY INFORMATION: Extensive supplementary information was 
provided in the proposed rule for this activity, which was published in 
the Federal Register on Thursday, April 30, 2009 (74 FR 20156). This 
information will not be reprinted here in its entirety; rather, all 
sections from the proposed rule will be represented herein and will 
contain either a summary of the material presented in the proposed rule 
or a note referencing the page(s) in the proposed rule where the 
information may be found. Any information that has changed since the 
proposed rule was published will be addressed herein. Additionally, 
this final rule contains a section that responds to the comments 
received during the public comment period.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:

    An impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.

    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):

    (i) Any act that injures or has the significant potential to 
injure a marine

[[Page 3396]]

mammal or marine mammal stock in the wild [Level A Harassment]; or 
(ii) any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
behavioral patterns, including, but not limited to, migration, 
surfacing, nursing, breeding, feeding, or sheltering, to a point 
where such behavioral patterns are abandoned or significantly 
altered [Level B Harassment].

Summary of Request

    On April 1, 2008, NMFS received an application, which was 
subsequently amended on February 12, 2009 with additional information, 
from the Navy requesting authorization for the take of 10 species of 
cetaceans incidental to the NSWC PCD's Research, Development, Test and 
Evaluation (RDT&E) mission activities over the course of 5 years. These 
RDT&E activities are classified as military readiness activities. The 
Navy states that these RDT&E activities may cause various impacts to 
marine mammal species in the proposed action area (e.g., mortality, 
Level A and B harassment). The Navy requests an authorization to take 
individuals of these cetacean species by Level B Harassment. Further, 
the Navy requests authorization to take 2 bottlenose dolphins, 2 
Atlantic spotted dolphins, 1 pantropical spotted dolphin, and 1 spinner 
dolphin per year by Level A harassment (injury), as a result of the 
proposed mission activities. Please refer to Tables 6-3, 6-4, 6-6, 6-7, 
6-8, and 6-9 of the Letter of Authorization (LOA) Addendum for detailed 
information of the potential marine mammal exposures from the NSWC PCD 
mission activities per year. However, due to the proposed mitigation 
and monitoring measures, NMFS estimates that the take of marine mammals 
is likely to be lower than the amount requested. Although the Navy 
requests authorization to take marine mammals by mortality, NMFS does 
not expect any animals to be killed, and NMFS is not proposing to 
authorize any mortality (severe lung injury) incidental to the Navy's 
NSWC PCD mission activities.

Background of Navy Request

    The proposed rule contains a description of the Navy's mission, 
their responsibilities pursuant to Title 10 of the United States Code, 
and the specific purpose and need for the activities for which they 
requested incidental take authorization. The description contained in 
the proposed rule has not changed (74 FR 20156; April 30, 2009; pages 
20156-20157).

Description of the Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule describes the nature 
and levels of the RDT&E activities. These RDT&E activities consist of 
surface operations, sonar operations, and ordnance operations. The 
narrative description of the action contained in the proposed rule has 
not changed. Tables 1 and 2 summarize the nature and levels of the 
sonar and ordnance operations. The level of the surface operations 
remains 7,443 hours per year, and is qualitatively described in the 
proposed rule (74 FR 20157; April 30, 2009) with no changes.

  Table 1--Hours of Sonar Operations by Representative System per Year
------------------------------------------------------------------------
                                Annual operating      Annual operating
           System              hours (territorial        hours (non-
                                     water)          territorial water)
------------------------------------------------------------------------
AN/SQS-53/56 Kingfisher.....                   3                     1
Sub-bottom profiler (2-9                      21                     1
 kHz).......................
REMUS SAS-LF................                  12                     0
REMUS Modem.................                  25                    12
Sub-bottom profiler (2-16                     24                     1
 kHz).......................
AN/SQQ-32...................                  30                     1
REMUS-SAS-LF................                  20                     0
SAS-LF......................                  35                    15
AN/WLD-1 RMS-ACL............                  33.5                   5
BPAUV Sidescan..............                  25                    38
TVSS........................                  15                    16.5
F84Y........................                  15                    15
BPAUV Sidescan..............                  25                     0
REMUS-SAS-HF................                  10                    25
SAS-HF......................                  11.5                  15
AN/AQS-20...................                 545                    15
AN/WLD-11 RMS Navigation....                  15                     0
BPAUV Sidescan..............                  30                    25
------------------------------------------------------------------------


[[Page 3397]]

[GRAPHIC] [TIFF OMITTED] TR21JA10.003

Description of Marine Mammals in the Area of the Specified Activities

    There are 30 marine mammal species with possible or confirmed 
occurrence in the NSWC PCD Study Area. As indicated in Table 3, there 
are 29 cetacean species (7 mysticetes and 22 odontocetes) and one 
sirenian species. Table 3 also includes the federal status of these 
marine mammal species. Seven marine mammal species listed as federally 
endangered under the Endangered Species Act (ESA) occur in the study 
area: the humpback whale, North Atlantic right whale, sei whale, fin 
whale, blue whale, sperm whale, and West Indian manatee. Of these 30 
species with occurrence records in the NSWC PCD Study Area, 22 species 
regularly occur here. These 22 species are: Bryde's whale, sperm whale, 
pygmy sperm whale, dwarf sperm whale, Cuvier's beaked whale, Gervais' 
beaked whale, Sowerby's beaked whale, Blainville's beaked whale, killer 
whale, false killer whale, pygmy killer whale, short-finned pilot 
whale, Risso's dolphin, melon-headed whale, rough-toothed dolphin, 
bottlenose dolphin, Atlantic spotted dolphin, pantropical spotted 
dolphin, striped dolphin, spinner dolphin, Clymene dolphin, and 
Fraser's dolphin. The remaining 8 species (i.e., North Atlantic right 
whale, humpback whale, sei whale, fin whale, blue whale, minke whale, 
True's beaked whale, and West Indian manatee) are extralimital and are 
excluded from further consideration of impacts from the NSWC PCD 
testing mission. The Description of Marine Mammals in the Area of the 
Specified Activities section has not changed from what was in the 
proposed rule (74 FR 20156; pages 20160-20161).

                         Table 3--Marine Mammal Species Found in the NSWC PCD Study Area
----------------------------------------------------------------------------------------------------------------
        Family and scientific name                    Common name                       Federal status
----------------------------------------------------------------------------------------------------------------
Order Cetacea
Suborder Mysticeti (baleen whales)
    Eubalaena glacialis..................  North Atlantic right whale.......  Endangered.
    Megaptera novaeangliae...............  Humpback whale...................  Endangered.
    Balaenoptera acutorostrata...........  Minke whale......................
    B. brydei............................  Bryde's whale....................
    B. borealis..........................  Sei whale........................  Endangered.
    B. physalus..........................  Fin whale........................  Endangered.
    B. musculus..........................  Blue whale.......................  Endangered.
Suborder Odontoceti (toothed whales)
    Physeter macrocephalus...............  Sperm whale......................  Endangered.
    Kogia breviceps......................  Pygmy sperm whale................
    K. sima..............................  Dwarf sperm whale................
    Ziphius cavirostris..................  Cuvier's beaked whale............
    Mesoplodon europaeus.................  Gervais' beaked whale............
    M. mirus.............................  True's beaked whale..............
    M. bidens............................  Sowerby's beaked whale...........
    M. densirostris......................  Blainville's beaked whale........

[[Page 3398]]

 
    Steno bredanensis....................  Rough-toothed dolphin............  ..................................
    Tursiops truncatus...................  Bottlenose dolphin...............
    Stenella attenuate...................  Pantropical spotted dolphin......
    S. frontalis.........................  Atlantic spotted dolphin.........
    S. longirostris......................  Spinner dolphin..................
    S. clymene...........................  Clymene dolphin..................
    S. coeruleoalba......................  Striped dolphin..................
    Lagenodephis hosei...................  Fraser's dolphin.................
    Grampus griseus......................  Risso's dolphin..................
    Peponocephala electra................  Melon-headed whale...............
    Feresa attenuate.....................  Pygmy killer whale...............
    Pseudorca crassidens.................  False killer whale...............
    Orcinus orca.........................  Killer whale.....................
    G. macrorhynchus.....................  Short-finned pilot whale.........
Order Sirenia
    Trichechus manatus...................  West Indian manatee..............  Endangered.
----------------------------------------------------------------------------------------------------------------

A Brief Background on Sound

    An understanding of the basic properties of underwater sound is 
necessary to comprehend many of the concepts and analyses presented in 
this document. A detailed description of this topic was provided in the 
proposed rule (74 FR 20156; pages 20161-20162) and is, therefore, not 
repeated herein.

Potential Impacts to Marine Mammal Species

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment (behavioral harassment), Level A Harassment 
(injury), or mortality, including an identification of the number and 
types of take that could occur by Level A or B harassment or mortality) 
and to prescribe other means of effecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (2) 
to determine whether the specified activity will have a negligible 
impact on the affected species or stocks of marine mammals (based on 
the likelihood that the activity will adversely affect the species or 
stock through effects on annual rates of recruitment or survival); (3) 
to determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities in the 
NSWC PCD Study Area); and (4) to prescribe requirements pertaining to 
monitoring and reporting.
    In the Potential Impacts to Marine Mammal Species section of the 
proposed rule, NMFS included a qualitative discussion of the different 
ways that sonar and underwater explosive detonations from ordnance 
operations and projectile firing may potentially affect marine mammals 
(See 74 FR 20156; April 30, 2009; pages 20162-20178). Marine mammals 
may experience direct physiological effects (such as threshold shift), 
acoustic masking, impaired communications, stress responses, and 
behavioral disturbance. The information contained in Potential Impacts 
to Marine Mammal Species section from sonar operations and underwater 
detonation from ordnance operations and projectile firing from the 
proposed rule has not changed.
    Additional analyses on potential impacts to marine mammals from 
vessel movement within the NSWC PCD Study Area are added below.

Vessel Movement

    There are limited data concerning marine mammal behavioral 
responses to vessel traffic and vessel noise, and a lack of consensus 
among scientists with respect to what these responses mean or whether 
they result in short-term or long-term adverse effects. In those cases 
where there is a busy shipping lane or where there is large amount of 
vessel traffic, marine mammals may experience acoustic masking 
(Hildebrand, 2005) if they are present in the area (e.g., killer whales 
in Puget Sound; Foote et al., 2004; Holt et al., 2008). In cases where 
vessels actively approach marine mammals (e.g., whale watching or 
dolphin watching boats), scientists have documented that animals 
exhibit altered behavior such as increased swimming speed, erratic 
movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991; 
Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al., 
2002; Constantine et al., 2003), reduced blow interval (Ritcher et al., 
2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and 
the shift of behavioral activities which may increase energetic costs 
(Constantine et al., 2003; 2004)). A detailed review of marine mammal 
reactions to ships and boats is available in Richardson et al. (1995). 
For each of the marine mammal's taxonomy groups, Richardson et al. 
(1995) provided the following assessment regarding cetacean reactions 
to vessel traffic:
    Toothed whales: ``In summary, toothed whales sometimes show no 
avoidance reaction to vessels, or even approach them. However, 
avoidance can occur, especially in response to vessels of types used to 
chase or hunt the animals. This may cause temporary displacement, but 
we know of no clear evidence that toothed whales have abandoned 
significant parts of their range because of vessel traffic.''
    Baleen whales: ``When baleen whales receive low-level sounds from 
distant or stationary vessels, the sounds often seem to be ignored. 
Some whales approach the sources of these sounds. When vessels approach 
whales slowly and nonaggressively, whales often exhibit slow and 
inconspicuous avoidance maneuvers. In response to strong or rapidly 
changing vessel noise, baleen whales often interrupt their normal 
behavior and swim rapidly away. Avoidance is especially strong when a 
boat heads directly toward the whale.''
    It is important to recognize that behavioral responses to stimuli 
are complex and influenced to varying degrees by a number of factors 
such as species, behavioral contexts, geographical regions, source 
characteristics (moving or stationary, speed, direction, etc.), prior 
experience of the animal, and physical status of the animal. For 
example, studies have shown that beluga whales reacted differently when 
exposed to vessel noise and traffic. In some cases, na[iuml]ve beluga

[[Page 3399]]

whales exhibited rapid swimming from ice-breaking vessels up to 80 km 
away, and showed changes in surfacing, breathing, diving, and group 
composition in the Canadian high Arctic where vessel traffic is rare 
(Finley et al., 1990). In other cases, beluga whales were more tolerant 
of vessels, but differentially responsive by reducing their calling 
rates, to certain vessels and operating characteristics (especially 
older animals) in the St. Lawrence River where vessel traffic is common 
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales 
continued to feed when surrounded by fishing vessels and resisted 
dispersal even when purposefully harassed (Fish and Vania, 1971).
    In reviewing more than 25 years of whale observation data, Watkins 
(1986) concluded that whale reactions to vessel traffic were ``modified 
by their previous experience and current activity: Habituation often 
occurred rapidly, attention to other stimuli or preoccupation with 
other activities sometimes overcame their interest or wariness of 
stimuli.'' Watkins noticed that over the years of exposure to ships in 
the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed 
from frequent positive (such as approaching vessels) interest to 
generally uninterested reactions; finback whales (B. physalus) changed 
from mostly negative (such as avoidance) to uninterested reactions; 
right whales (Eubalaena glacialis) apparently continued the same 
variety of responses (negative, uninterested, and positive responses) 
with little change; and humpbacks (Megaptera novaeangliae) dramatically 
changed from mixed responses that were often negative to often strongly 
positive reactions. Watkins (1986) summarized that ``whales near shore, 
even in regions with low vessel traffic, generally have become less 
wary of boats and their noises, and they have appeared to be less 
easily disturbed than previously. In particular locations with intense 
shipping and repeated approaches by boats (such as the whale-watching 
areas of Stellwagen Bank), more and more whales had P [positive] 
reactions to familiar vessels, and they also occasionally approached 
other boats and yachts in the same ways.''
    In the case of the NSWC PCD Study Area, naval vessel traffic is 
expected to be much lower than in areas where there are large shipping 
lanes and large numbers of fishing vessels and/or recreational vessels. 
Nevertheless, the proposed action area is well traveled by a variety of 
commercial and recreational vessels, so marine mammals in the area are 
expected to be habituated to vessel noise.
    As described in the proposed rule, typical vessel movement 
occurring at the surface includes the deployment or towing of mine 
counter-measure equipment, retrieval of equipment, and clearing and 
monitoring for non-participating vessels. The Navy estimates a total of 
up to 7,443 hours (310 vessel days) of surface operations per year. 
These operations are widely dispersed throughout the NSWC PCD Study 
Area.
    Moreover, naval vessels transiting the study area or engaging in 
RDT&E activities will not actively or intentionally approach a marine 
mammal or change speed drastically.
    The final rule contains additional mitigation measures requiring 
Navy vessels to keep at least 500 yards (460 m) away from any observed 
whale and at least 200 yards (183 m) from marine mammals other than 
whales, and avoid approaching animals head-on. Although the radiated 
sound from the vessels will be audible to marine mammals over a large 
distance, it is unlikely that animals will respond behaviorally to low-
level distant shipping noise as the animals in the area are likely to 
be habituated to such noises (Nowacek et al., 2004). In light of these 
facts, NMFS does not expect the Navy's vessel movements to result in 
Level B harassment.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations 
setting forth the ``permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.'' The NDAA amended the MMPA as it relates to military 
readiness activities and the incidental take authorization process such 
that ``least practicable adverse impact'' shall include consideration 
of personnel safety, practicality of implementation, and impact on the 
effectiveness of the ``military readiness activity.'' The NSWC PCD's 
RDT&E activities are considered military readiness activities.
    NMFS reviewed the Navy's proposed NSWC PCD's RDT&E activities and 
the proposed NSWC PCD's mitigation measures presented in the Navy's 
application to determine whether the activities and mitigation measures 
were capable of achieving the least practicable adverse effect on 
marine mammals.
    Any mitigation measure prescribed by NMFS should be known to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals (2), (3), and (4) may contribute to this 
goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to 
underwater detonations or other activities expected to result in the 
take of marine mammals (this goal may contribute to (1), above, or to 
reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to underwater detonations or other activities expected to result in the 
take of marine mammals (this goal may contribute to (1), above, or to 
reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to underwater 
detonations or other activities expected to result in the take of 
marine mammals (this goal may contribute to (1), above, or to reducing 
the severity of harassment takes only).
    (5) A reduction in adverse effects to marine mammal habitat, paying 
special attention to the food base, activities that block or limit 
passage to or from biologically important areas, permanent destruction 
of habitat, or temporary destruction/disturbance of habitat during a 
biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    NMFS reviewed the Navy's proposed mitigation measures, which 
included a careful balancing of the likely benefit of any particular 
measure to the marine mammals with the likely effect of that measure on 
personnel safety, practicality of implementation, and impact on the 
``military-readiness activity.''
    The Navy's proposed mitigation measures were described in detail in 
the proposed rule (74 FR 20156, pages 20183-20185). The Navy's measures 
address personnel training, lookout and watchstander responsibilities, 
operating procedures for RDT&E activities using sonar and underwater 
detonations of explosives and projectile firing, and

[[Page 3400]]

mitigation related to vessel traffic. No changes have been made to the 
mitigation measures described in the proposed rule except the 
following.
    In the Personnel Training section, bullet number 3 is revised to 
read as:
     Marine Observers shall be trained in marine mammal 
recognition. Marine Observer training shall include completion of the 
Marine Species Awareness Training, instruction on governing laws and 
policies, and overview of the specific Gulf of Mexico species present, 
and observer roles and responsibilities.
    This change is to reflect the NSWC PCD's RDT&E activities that use 
Marine Observers instead of watchstanders and lookouts in the range 
complexes training. In addition, a Personal Qualification Standard 
Program mentioned in the proposed rule (74 FR 20156; April 30, 2009; 
page 20184) does not exist for civilian Marine Observers.
    In response to a comment from the Marine Mammal Commission on the 
Navy's Virginia Capes Range Complex training activities, NMFS will 
require the Navy to suspend its activities immediately if a marine 
mammal is injured or killed as a result of the proposed Navy RDT&E 
activities (e.g., instances in which it is clear that munitions 
explosions caused the injury or death), the Navy shall suspend its 
activities immediately and report such incident to NMFS.
    In addition, a general condition is added to the Operating 
Procedures section to read: ``The Test Director or the Test Director's 
designee shall maintain the logs and records documenting RDT&E 
activities should they be required for event reconstruction purposes. 
Logs and records will be kept for a period of 30 days following 
completion of a RDT&E mission activity.''
    Also, since the term ``Aircraft Control Units'' is a fleet specific 
term and is not used during RDT&E activities, bullet number 7 of the 
Operating Procedures section in the proposed rule (74 FR 20156; April 
30, 2009; page 20184) has been changed to read:
     Marine mammal detections shall be immediately reported to 
the Test Director or the Test Director's designee for further 
dissemination to vessels in the vicinity of the marine species as 
appropriate where it is reasonable to conclude that the course of the 
vessel will likely result in a closing of the distance to the detected 
marine mammal.
    The following conditions under the Operating Procedures section, 
which appeared in the proposed rule (74 FR 20156; April 30, 2009; page 
20184), have been removed because the Navy indicated that sonobuoys and 
helicopter dipping sonar are no longer part of the NSWC PCD RDT&E 
activities.
     Aircraft with deployed sonobuoys will use only the passive 
capability of sonobuoys when marine mammals are detected within 200 
yards of the sonobuoy.
     Helicopters shall observe/survey the vicinity of mission 
activities for 10 minutes before the first deployment of active 
(dipping) sonar in the water.
     Helicopters shall not dip their sonar within 200 yards 
(183 m) of a marine mammal and shall cease pinging if a marine mammal 
closes within 200 yards (183 m) after pinging has begun.
    The section titled ``Proposed Mitigation Measures for Surface 
Operations and Other Activities'' is changed to ``Proposed Mitigation 
Measures for Surface Operations'' to clarify the section (74 FR 20156; 
April 30, 2009; page 20185). One condition under this section, ``(h) 
All vessels will maintain logs and records documenting RDT&E activities 
should they be required for event reconstruction purposes. Logs and 
records shall be kept for a period of 30 days following completion of a 
RDT&E mission activity,'' is deleted as the Navy points out that small 
vessels do not have the capability to maintain records. Instead, RDT&E 
activity records will be maintained by the Test Directors as discussed 
above.
    NMFS has determined that these mitigation measures are adequate 
means of effecting the least practicable adverse impacts on marine 
mammal species or stocks and their habitat while also considering 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Monitoring

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the safety zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below.
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of HFAS/MFAS (or explosives or other 
stimuli) that we associate with specific adverse effects, such as 
behavioral harassment, TTS, or PTS.
    (3) An increase in our understanding of how marine mammals respond 
to HFAS/MFAS (at specific received levels), explosives, or other 
stimuli expected to result in take and how anticipated adverse effects 
on individuals (in different ways and to varying degrees) may impact 
the population, species, or stock (specifically through effects on 
annual rates of recruitment or survival) through any of the following 
methods:
     Behavioral observations in the presence of HFAS/MFAS 
compared to observations in the absence of sonar (need to be able to 
accurately predict received level and report bathymetric conditions, 
distance from source, and other pertinent information).
     Physiological measurements in the presence of HFAS/MFAS 
compared to observations in the absence of sonar (need to be able to 
accurately predict received level and report bathymetric conditions, 
distance from source, and other pertinent information), and/or
     Pre-planned and thorough investigation of stranding events 
that occur coincident to naval activities.
     Distribution and/or abundance comparisons in times or 
areas with concentrated HFAS/MFAS versus times or areas without HFAS/
MFAS.
    (4) An increased knowledge of the affected species.
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.

Monitoring Plan for the NSWC PCD Study Area

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the NSWC 
PCD Monitoring Plan. Additionally, NMFS and the Navy have incorporated 
a suggestion from the public, which recommended the Navy hold a peer 
review workshop to discuss the Navy's Monitoring Plans for the multiple 
range complexes and training exercises in which the Navy would receive 
ITAs (see Monitoring Workshop section). The final NSWC PCD Monitoring 
Plan, which is summarized below, may be viewed at https://
www.nmfs.noaa.gov/

[[Page 3401]]

pr/permits/incidental.htmapplications. The Navy plans to 
implement all of the components of the Monitoring Plan; however, only 
the marine mammal components (not the sea turtle components) will be 
required by the MMPA regulations and associated LOAs.
    A summary of the monitoring methods required for use during RDT&E 
activities in the NSWC PCD Study Area are described below. These 
methods include a combination of individual elements that are designed 
to allow a comprehensive assessment.

Visual Surveys--Vessel, Aerial and Shore-Based

    The Navy shall visually survey a minimum of 2 HFAS/MFAS activities 
and 2 explosive events per year. If the 53C sonar was being operated, 
such activity must be monitored as one of the HFAS/MFAS activities. For 
explosive events, one of the monitoring measures shall be focused on a 
multiple detonation event.
    For underwater detonations, the size of the survey area shall be 
pre-determined based upon the type of explosive event planned and the 
amount of NEW used. As a conservative measure, the largest zone of 
influence (ZOI) associated with the upper limit of each NEW shall be 
surveyed during the RDT&E activities. For example, the Navy would be 
required to observe the following ZOIs and ensure they are clear of 
marine mammals prior to conducting explosive ordnance RDT&E activities: 
2,863 m for NEW between 76-600 lb; 997 m for NEW between 11-75 lb; and 
345 m for NEW less than 11 lb.
    If animal(s) are observed prior to or during an explosion, a focal 
follow of that individual or group shall be conducted to record 
behavioral responses. The Navy will not begin activities if animals are 
observed within these ZOIs of the events listed above.
    The visual survey team shall collect the same data that are 
collected by Navy marine observers, including but not limited to: (1) 
Location of sighting; (2) species; (3) number of individuals; (4) 
number of calves present, if any; (5) duration of sighting; (6) 
behavior of marine animals sighted; (7) direction of travel; (8) 
environmental information associated with sighting event including 
Beaufort sea state, wave height, swell direction, wind direction, wind 
speed, glare, percentage of glare, percentage of cloud cover; and (9) 
when in relation to the Navy RDT&E activities did the sighting occur 
(before, during or after RDT&E activities). Animal sightings and 
relative distance from a particular detonation site shall be used post-
survey to estimate the number of marine mammals exposed to different 
received levels (energy and pressure of discharge based on distance to 
the source, bathymetry, oceanographic conditions and the type and size 
of detonation) and their corresponding behavior. For vessel-based 
surveys a passive acoustic system (hydrophone or towed array) or 
sonobuoys shall be used if operationally feasible to help determine if 
marine mammals are in the area before and after a detonation event.
    Although photo-identification studies are not typically a component 
of Navy exercise monitoring surveys, the Navy supports using the 
contracted platforms to obtain opportunistic data collection. 
Therefore, any digital photographs that are taken of marine mammals 
during visual surveys shall be provided to local researchers for their 
regional research.
1. Aerial Surveys
    During sonar operations, an aerial survey team shall fly transects 
relative to a Navy surface vessel that is transmitting HFA/MFA sonar. 
The aerial survey team shall collect both visual sightings and 
behavioral observations of marine animals. These transect data will 
provide an opportunity to collect data of marine mammals at different 
received levels and their behavioral responses and movement relative to 
the Navy vessel's position. Surveys shall include time with and without 
active sonar in order to compare density, geographical distribution and 
behavioral observations. After declassification, related sonar 
transmissions shall be used to calculate exposure levels.
    Behavioral observation methods shall involve three professionally 
trained marine mammal observers and a pilot. Two observers will observe 
behaviors, one with hand-held binoculars and one with the naked eye. If 
there is more than one whale, each observer shall record respirations 
of different animals, ideally from the same animal he/she is observing. 
In the case of large groups of delphinids, group behavior, speed, 
orientation, etc., shall be recorded. An observer shall use a video 
camera to record behaviors in real time. Two external microphones will 
be used and attached to the video camera to record vocal behavioral 
descriptions on two different channels of the video camera. The 
videotape shall be time-stamped and observers shall also call out 
times. The third observer shall record notes, environmental data, and 
operate a laptop connected to a GPS and the plane's altimeter.
    Detailed behavioral focal observations of cetaceans shall be 
recorded, including the following variables where possible: Species, 
group size and composition (number of calves, etc.), latitude/
longitude, surface and dive durations and times, number and spacing/
times of respirations, conspicuous behaviors (e.g., breach, tail slap, 
etc.), behavioral states, orientation and changes in orientation, 
estimated group travel speed, inter-individual distances, defecations, 
social interactions, aircraft speed, aircraft altitude, distance to 
focal group (using the plane's radar) and any unusual behaviors.
    In addition, to measure whether marine mammals are displaced 
geographically as a result of sonar operations, systematic line-
transect aerial surveys shall be conducted on the two days before and a 
variation of one to five days after a NSWC PCD RDT&E testing activity 
to collect relative density data in the testing area for marine mammals 
in the area. Attempts shall be made to survey during a test event when 
operationally feasible during the NSWC PCD RDT&E activities. One survey 
day following the mission activity event shall be devoted to flying 
coastlines nearest the mission event to look for potential marine 
mammal strandings. If a stranding is observed, an assessment of the 
animal's condition (alive, injured, dead, and/or decayed) shall be 
immediately reported to the Navy for appropriate action and the 
information will be transmitted immediately to NMFS.
2. Vessel Surveys
    As with the aerial surveys, the vessel surveys shall be designed to 
maximize detections of any target species near mission activity events 
for focal follows. Systematic transects shall be used to locate marine 
mammals, and, the survey should deviate from transect protocol to 
collect behavioral data particularly if a Navy vessel is visible on the 
horizon or closer. The team shall go off effort for photo-id and close 
approach `focal animal follows' as feasible, and when marine animal 
encounters occur in proximity to the vessel. While in focal follow 
mode, observers shall gather detailed behavioral data from the animals, 
for as long as the animal allows. Analysis of behavioral observations 
shall be made after the RDT&E event. While the Navy vessels are within 
view, attempts shall be made to position the dedicated survey vessel in 
the best possible way to obtain focal follow data in the presence of 
the NSWC PCD test event. If Navy vessels are not in view, then the 
vessel shall begin a systematic line transect survey within the area to 
assess marine mammal

[[Page 3402]]

occurrence and observe behavior. The goal of this part of the survey is 
to observe marine mammals that may not have been exposed to HFAS/MFAS 
or explosions. Therefore, post-analysis shall focus on how the 
location, speed and vector of the survey vessel and the location and 
direction of the sonar source (e.g. Navy surface vessel) relates to the 
animal. Any other vessels or aircraft observed in the area will also be 
documented.
3. Shore-Based Surveys
    If explosive events are planned to occur adjacent to nearshore 
areas where there are elevated coastal structures (e.g. lookout tower 
at Eglin Air Force Base) or topography, then shore-based monitoring, 
using binoculars or theodolite, may be used to augment other visual 
survey methods.

Passive Acoustic Monitoring

    The Navy shall visually survey a minimum of 2 HFAS/MFAS activities 
and 2 explosive events per year. If the 53C sonar was being operated, 
such activity must be monitored as one of the HFAS/MFAS activities. For 
explosive events, one of the monitoring measures shall be focused on a 
multiple detonation event.
    While conducting passive acoustic monitoring (PAM), the array shall 
be deployed for each of the days the ship is at sea. The array shall be 
able to detect low frequency vocalizations (less than 1,000 Hertz) for 
baleen whales and relatively high frequency vocalizations (up to 30 
kilohertz) for odontocetes such as sperm whales. Since the publishing 
of the proposed rule (74 FR 20156; April 30, 2009; page 20188), the 
Navy stated that it does not have a working bottom set hydrophone array 
to perform the required PAM. Therefore, the language regarding the 
equipment used for PAM is changed to: `The Navy shall use towed or 
over-the-side passive acoustic monitoring device/hydrophone array when 
feasible in the NSWC PCD Study Area for PAM.'

Marine Mammal Observer on Navy Vessels

    Civilian Marine Mammal Observers (MMOs) aboard Navy vessels shall 
be used to research the effectiveness of Navy marine observers, as well 
as for data collection during other monitoring surveys.
    MMOs shall be field-experienced observers who are Navy biologists 
or contracted observers. These civilian MMOs shall be placed alongside 
existing Navy marine observers during a sub-set of NSWC PCD RDT&E 
activities. This can only be done on certain vessels and observers may 
be required to have security clearance. Use of MMOs will verify Navy 
marine observer sighting efficiency, offer an opportunity for more 
detailed species identification, provide an opportunity to bring animal 
protection awareness to the vessels' crew, and provide the opportunity 
for an experienced biologist to collect data on marine mammal behavior. 
Data collected by the MMOs is anticipated to assist the Navy with 
potential improvements to marine observer training as well as providing 
the marine observers with a chance to gain additional knowledge of 
marine mammals.
    Events selected for MMO participation will be an appropriate fit in 
terms of security, safety, logistics, and compatibility with NSWC PCD 
RDT&E activities. The MMOs shall not be part of the Navy's formal 
reporting chain of command during their data collection efforts and 
Navy marine observers shall follow their chain of command in reporting 
marine mammal sightings. Exceptions shall be made if an animal is 
observed by the MMO within the shutdown zone and was not seen by the 
Navy marine observer. The MMO shall inform the marine observer of the 
sighting so that appropriate action may be taken by the chain of 
command. For less biased data, it is recommended that MMOs should 
schedule their daily observations to duplicate the Navy marine 
observers' schedule.
    Civilian MMOs shall be aboard Navy vessels involved in the study. 
As described earlier, MMOs shall meet and adhere to necessary 
qualifications, security clearance, logistics and safety concerns. MMOs 
shall monitor for marine mammals from the same height above water as 
the marine observers and as all visual survey teams, they shall collect 
the same data collected by Navy marine observers, including but not 
limited to: (1) Location of sighting; (2) species (if not possible, 
identification of whale or dolphin); (3) number of individuals; (4) 
number of calves present, if any; (5) duration of sighting; (6) 
behavior of marine animals sighted; (7) direction of travel; (8) 
environmental information associated with sighting event including 
Beaufort sea state, wave height, swell direction, wind direction, wind 
speed, glare, percentage of glare, percentage of cloud cover; and (9) 
when in relation to the Navy RDT&E activities did the sighting occur 
(before, during or after detonations/exercise).

Monitoring Workshop

    During the public comment period on past proposed rules for Navy 
actions (such as the Hawaii Range Complex (HRC) and Southern California 
Range Complex (SOCAL) proposed rules), NMFS received recommendations 
that a workshop or panel be convened to solicit input on the monitoring 
plan from researchers, experts, and other interested parties. The NSWC 
PCD RDT&E proposed rule included an adaptive management component and 
both NMFS and the Navy believe that a workshop would provide a means 
for Navy and NMFS to consider input from participants in determining 
whether (and if so, how) to modify monitoring techniques to more 
effectively accomplish the goals of monitoring set forth earlier in the 
document. NMFS and the Navy believe that this workshop is valuable in 
relation to all of the Range Complexes and major training exercise 
rules and LOAs that NMFS is working on with the Navy at this time, and 
consequently this single Monitoring Workshop will be included as a 
component of all of the rules and LOAs that NMFS will be processing for 
the Navy in the next year or so.
    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from the previous two 
years of monitoring pursuant to the NSWC PCD RDT&E rule as well as 
monitoring results from other Navy rules and LOAs (e.g., AFAST, SOCAL, 
HRC, and other rules). The Monitoring Workshop participants would 
provide their individual recommendations to the Navy and NMFS on the 
monitoring plan(s) after also considering the current science 
(including Navy research and development) and working within the 
framework of available resources and feasibility of implementation. 
NMFS and the Navy would then analyze the input from the Monitoring 
Workshop participants and determine the best way forward from a 
national perspective. Subsequent to the Monitoring Workshop, 
modifications would be applied to monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the site-specific Monitoring Plan for the NSWC PCD 
Study Area, the Navy has completed the Integrated Comprehensive 
Monitoring Program (ICMP) Plan by the end of 2009. The ICMP was 
developed by the Navy, with Chief of Naval Operations Environmental 
Readiness Division (CNO-N45) taken the lead. The program does not 
duplicate the monitoring plans

[[Page 3403]]

for individual areas (e.g. AFAST, HRC, SOCAL); instead it is to provide 
the overarching coordination that will support compilation of data from 
both range-specific monitoring plans as well as Navy funded research 
and development (R&D) studies. The ICMP will coordinate the monitoring 
program's progress towards meeting its goals and developing a data 
management plan. The ICMP will be evaluated annually to provide a 
matrix for progress and goals for the following year, and will make 
recommendations on adaptive management for refinement and analysis of 
the monitoring methods.
    The primary objectives of the ICMP are to:
     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/marine observer data, as well as new information from 
other Navy programs (e.g., R&D), and other appropriate newly published 
information.
    In combination with the 2011 Monitoring Workshop and the adaptive 
management component of the NSWC PCD RDT&E rule and the other planned 
Navy rules (e.g. Virginia Capes Range Complex, Jacksonville Range 
Complex, Cherry Point Range Complex, etc.), the ICMP could potentially 
provide a framework for restructuring the monitoring plans and 
allocating monitoring effort based on the value of particular specific 
monitoring proposals (in terms of the degree to which results would 
likely contribute to stated monitoring goals, as well as the likely 
technical success of the monitoring based on a review of past 
monitoring results) that have been developed through the ICMP 
framework, instead of allocating based on maintaining an equal (or 
commensurate to effects) distribution of monitoring effort across range 
complexes.
    The ICMP will identify:
     A means by which NMFS and the Navy would jointly consider 
prior years' monitoring results and advancing science to determine if 
modifications are needed in mitigation or monitoring measures to better 
effect the goals laid out in the Mitigation and Monitoring sections of 
the NSWC PCD RDT&E rule.
     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 record-keeping system that 
will allow NMFS and the public to see how each range complex/project is 
contributing to all of the ongoing monitoring programs (resources, 
effort, money, etc.).

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy's NSWC PCD RDT&E activities contain an adaptive 
management component. The use of adaptive management will give NMFS the 
ability to consider new data from different sources to determine (in 
coordination with the Navy) on an annual basis if mitigation or 
monitoring measures should be modified or added (or deleted) if new 
data suggests that such modifications are appropriate (or are not 
appropriate) for subsequent annual LOAs.
    The following are some of the possible sources of applicable data:
     Results from the Navy's monitoring from the previous year 
(either from NSWC PCD Study Area 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.
     Results from specific stranding investigations (either 
from NSWC PCD Study Area or other locations)
     Results from general marine mammal and sound research 
(funded by the Navy or otherwise)
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent Letters of Authorization
    Mitigation measures could be modified or added (or deleted) if new 
data suggests that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final rule. The reporting 
requirements associated with this rule are designed to provide NMFS 
with monitoring data from the previous year to allow NMFS to consider 
the data and issue annual LOAs. NMFS and the Navy will meet annually, 
prior to LOA issuance, to discuss the monitoring reports, Navy R&D 
developments, and current science and whether mitigation or monitoring 
modifications are appropriate.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. Effective reporting is 
critical to ensure compliance with the terms and conditions of a LOA, 
and to provide NMFS and the Navy with data of the highest quality based 
on the required monitoring. As NMFS noted in its proposed rule, 
additional detail has been added to the reporting requirements since 
they were outlined in the proposed rule. The updated reporting 
requirements are all included below. A subset of the information 
provided in the monitoring reports may be classified and not releasable 
to the public.

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS (regional stranding 
coordinator) is notified immediately (or as soon as operational 
security allows) if an injured or dead marine mammal is found during or 
shortly after, and in the vicinity of, any Navy RDT&E activities 
utilizing underwater explosive detonations or other activities. The 
Navy will provide NMFS with species or description of the animal(s), 
the condition of the animal(s) (including carcass condition if the 
animal is dead), location, time of first discovery, observed behaviors 
(if alive), and photo or video (if available).

[[Page 3404]]

Annual Report

    The NSWC PCD shall submit a report annually on October 1 describing 
the RDT&E activities conducted and implementation and results of the 
NSWC PCD Monitoring Plan (through August 1 of the same year) and RDT&E 
activities. The report will, at a minimum, include the following 
information:
(1) RDT&E Information
     Date and time test began and ended.
     Location.
     Number and types of active sources used in the test.
     Number and types of vessels, aircraft, etc., participated 
in the test.
     Number and types of underwater detonations.
     Total hours of observation effort (including observation 
time when sonar was not operating).
     Total hours of all active sonar source operation.
     Total hours of each active sonar source.
     Wave height (high, low, and average during the test).
(2) Individual Marine Mammal Sighting Info
     Location of sighting.
     Species.
     Number of individuals.
     Calves observed (y/n).
     Initial detection sensor.
     Indication of specific type of platform observation made 
from.
     Length of time observers maintained visual contact with 
marine mammal(s).
     Wave height (in feet).
     Visibility.
     Sonar source in use (y/n).
     Indication of whether animal is < 200 yd, 200-500 yd, 500-
1,000 yd, 1,000-2,000 yd, or > 2,000 yd from sonar source above.
     Mitigation implementation--Whether operation of sonar 
sensor was delayed, or sonar was powered or shut down, and how long the 
delay was.
     If the active MFAS in use is hull mounted, true bearing of 
animal from ship, true direction of ship's travel, and estimation of 
animal's motion relative to ship (opening, closing, parallel).
     Observed behavior--Marine observers shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming, etc.).
     An evaluation of the effectiveness of mitigation measures 
designed to avoid exposing marine mammals to mid-frequency sonar. This 
evaluation shall identify the specific observations that support any 
conclusions the Navy reaches about the effectiveness of the mitigation.

NSWC PCD 5-Yr Comprehensive Report

    The Navy will submit to NMFS a draft report that analyzes and 
summarizes all of the multi-year marine mammal information gathered 
during HFAS/MFAS and underwater detonation related mission activities 
for which annual reports are required as described above. This report 
will be submitted at the end of the fourth year of the rule (October 
2013), covering activities that have occurred through May 1, 2013. The 
Navy will respond to NMFS comments on the draft comprehensive report if 
submitted within 3 months of receipt. The report will be considered 
final after the Navy has addressed NMFS' comments, or three months 
after the submittal of the draft if NMFS does not comment by then.

Comments and Responses

    On April 30, 2009, NMFS published a proposed rule (74 FR 20156) in 
response to the Navy's request to take marine mammals incidental to 
conducting RDT&E activities in the NSWC PCD Study Area and requested 
comments, information and suggestions concerning the request. During 
the 30-day public comment period, NMFS received comments from 1 private 
citizen and comments from the Marine Mammal Commission (Commission). 
The comments are addressed below.

MMPA Concerns

    Comment 1: The Commission recommends that NMFS require the Navy to 
conduct an external peer review of its marine mammal density estimates, 
including the data upon which those estimates are based and the manner 
in which those are collected and used.
    Response: As discussed in detail in the proposed rule (74 FR 20156, 
April 30, 2009), marine mammal density estimates were based on the data 
gathered in the Marine Resource Assessments (MRAs). The Navy MRA 
Program was implemented by the Commander, Fleet Forces Command, to 
initiate collection of data and information concerning the protected 
and commercial marine resources found in the Navy's Operating Areas 
(OPAREAs). Specifically, the goal of the MRA program is to describe and 
document the marine resources present in each of the Navy's OPAREAs. 
The MRA for the NSWC PCD, which includes Pensacola and Panama City 
OPAREAs, was recently updated in 2007 (DoN, 2008).
    Density estimates for cetaceans were derived in one of three ways, 
in order of preference: (1) Through spatial models using line-transect 
survey data provided by the NMFS (as discussed below); (2) using 
abundance estimates from Mullin and Fulling (2004); or (3) based on the 
cetacean abundance estimates found in the NMFS stock assessment reports 
(SAR; Waring et al., 2007), which can be viewed at https://www.nmfs.noaa.gov/pr/sars/species.htm. For the model-based approach, 
density estimates were calculated for each species within areas 
containing survey effort. A relationship between these density 
estimates and the associated environmental parameters such as depth, 
slope, distance from the shelf break, sea surface temperature, and 
chlorophyll a concentration was formulated using generalized additive 
models. This relationship was then used to generate a two-dimensional 
density surface for the region by predicting densities in areas where 
no survey data exist.
    The analyses for cetaceans were based on sighting data collected 
through shipboard surveys conducted by NMFS Northeast Fisheries Science 
Center (NEFSC) and Southeast Fisheries Science Center (SEFSC) between 
1998 and 2005. Species-specific density estimates derived through 
spatial modeling were compared with abundance estimates found in the 
most current NMFS SAR to ensure consistency. All spatial models and 
density estimates were reviewed by and coordinated with NMFS Science 
Center technical staff and scientists with the University of St. 
Andrews, Scotland, Centre for Environmental and Ecological Modeling 
(CREEM). Draft models and preliminary results were reviewed during a 
joint workshop attended by Navy, NMFS Science Center, and CREEM 
representatives. Subsequent revisions and draft reports were reviewed 
by these same parties. Therefore, NMFS considers that the density 
estimates, including the data upon which those estimates are based and 
the manner in which those are collected and used, has already gone 
through an independent review process.

Monitoring and Mitigation

    Comment 2: The Commission recommends the Navy provide additional 
details concerning its Integrated Comprehensive Monitoring Program, 
including an estimated time frame for its implementation.
    Response: The Navy has developed the ICMP Plan and will distribute 
it to

[[Page 3405]]

the Commission and other interested parties. The components of the ICMP 
Plan that were considered and incorporated into the final rules for the 
NSWC PCD include:
     A requirement to monitor Navy's RDT&E activities, 
particularly those involving sonar and underwater detonations, for 
compliance with the terms and conditions of ESA Section 7 consultations 
or MMPA authorizations;
     A requirement to minimize exposure of protected species 
from sound pressure levels from sonar and underwater detonations that 
result in harassment;
     A requirement to collect data to support estimating the 
number of individual marine mammals exposed to sound levels above 
current regulatory thresholds;
     A requirement to assess the adequacy of the Navy's current 
marine species mitigation;
     A requirement to document trends in species distribution 
and abundance in Navy mission activity areas through monitoring 
efforts;
     A requirement to compile data that would improve the Navy 
and NMFS' knowledge of the potential behavioral and physiological 
effects to marine species from sonar and underwater detonations.
    The ICMP Plan will be used both as: (1) A planning tool to focus 
Navy monitoring priorities (pursuant to ESA/MMPA requirements) across 
Navy range complexes and exercises; and (2) an adaptive manageme