Taking and Importing Marine Mammals; Military Training Activities and Research, Development, Testing and Evaluation Conducted Within the Mariana Islands Range Complex, 45527-45556 [2010-18222]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Rules and Regulations]
[Pages 45527-45556]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18222]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 0907281180-0269-02]
RIN 0648-AX90


Taking and Importing Marine Mammals; Military Training Activities 
and Research, Development, Testing and Evaluation Conducted Within the 
Mariana Islands Range Complex

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

ACTION: Final rule.

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

SUMMARY: NMFS, upon application from the U.S. Navy (Navy) on behalf of 
the Department of Defense (including the Navy, the U.S. Air Force 
(USAF), and the U.S. Marine Corps (USMC)), is issuing regulations to 
govern the unintentional taking of marine mammals incidental to 
activities conducted in the Mariana Islands Range Complex (MIRC) study 
area for the period of July 2010 through July 2015. The Navy's 
activities are considered military readiness activities pursuant to the 
Marine Mammal Protection Act (MMPA), as amended by the National Defense 
Authorization Act for Fiscal Year 2004 (NDAA). These regulations, which 
allow for the issuance of ``Letters of Authorization'' (LOAs) for the 
incidental take of marine mammals during the described activities and 
specified timeframes, prescribe the permissible methods of taking and 
other means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, as well as requirements 
pertaining to the monitoring and reporting of such taking.

DATES: Effective August 3, 2010 through August 3, 2015.

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

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 166.

SUPPLEMENTARY INFORMATION:

Availability of Supporting Information

    Extensive Supplementary Information was provided in the proposed 
rule for this activity, which was published in the Federal Register on 
October 20, 2009 (74 FR 53796). 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 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

[[Page 45528]]

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

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

    The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) modified the MMPA by removing the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):

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

Summary of Request

    In August 2008, NMFS received an application from the Navy 
requesting authorization for the take of individuals of 26 species of 
marine mammals incidental to upcoming Department of Defense (including 
Navy, USMC, and USAF) training and research, development, testing, and 
evaluation (RDT&E) activities to be conducted from June 2010 through 
June 2015 within the MIRC study area, which encompasses a 501,873-
square-nautical mile (nm\2\) area around the islands, including Guam, 
Tinian, Saipan, Rota, Farallon de Medinilla, and also includes ocean 
areas in both the Pacific Ocean and the Philippine Sea. These training 
activities are military readiness activities under the provisions of 
the NDAA. The Navy states, and NMFS concurs, that these military 
readiness activities may incidentally take marine mammals present 
within the MIRC study area by exposing them to sound from mid-frequency 
or high frequency active sonar (MFAS/HFAS) or underwater detonations. 
After submitting supplemental applications, the Navy requested 
authorization to take individuals of 26 species of marine mammals by 
Level B Harassment, 2 individuals of 2 species by Level A Harassment 
annually, and 10 individual beaked whales by mortality over the course 
of the 5-year regulations. The Navy's model, which did not factor in 
any potential benefits of mitigation measures, predicted that 2 
individual marine mammals would be exposed to levels of sound or 
pressure that would result in injury; thus, NMFS is authorizing the 
take, by Level A Harassment of 2 individuals per year. However, NMFS 
and the Navy have determined that injury can most likely be avoided 
through the implementation of the Navy's proposed mitigation measures. 
Further, although it does not anticipate that it will occur, the Navy 
requested, and NMFS is authorizing the take, by injury or mortality, up 
to 10 beaked whales over the course of the 5-year regulations.

Background of Request

    The proposed rule contains a description of the Navy's mission, 
their responsibilities pursuant to Title 10 of the United States Code, 
and the specific purpose and need for the activities for which they 
requested incidental take authorization. The description contained in 
the proposed rule has not changed (74 FR 53795, pages 53796-53797).

Overview of the MIRC Study Area

    The proposed rule contains a description of the MIRC study area. It 
also includes a discussion of the Marianas Trench Marine National 
Monument (MTMNM), where the MTMNM overlaps with the MIRC study area, 
and protected resources within the MTMNM. These descriptions have not 
changed (74 FR 53795, pages 53797-53798).

Description of Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule describes the nature 
and number of anti-submarine warfare (ASW) training exercises and RDT&E 
activities, involving both mid- and high-frequency active sonar (MFAS 
and HFAS), explosive detonations, and vessel movement. It also 
describes the sound sources and explosive types used (74 FR 53795, 
pages 53798-53807). It also briefly describes the limited use of low 
frequency active (LFA) sonar in conjunction with the MIRC training, 
which has also been analyzed in a separate MMPA rule and EIS. The 
narrative description of the action contained in the proposed rule has 
not changed, with the exception of a few clarifications, which have 
been indicated in italics in tables 1 and 2, which list the types of 
sonar sources and the estimated yearly use and summarize the 
characteristics of the exercise types. Of note, the Navy indicated in 
the proposed rule that they will conduct one multi-strike group type 
exercise in the summer each calendar year. This fact remains true, 
however, if NMFS' annual LOAs for this action are issued in July (as 
currently planned), it is possible that 2 multi-strike group exercises 
could occur within the coverage period of one LOA (for example if a 
multi-strike group exercise occurred in early August one year and late 
June the next). The Navy would still not conduct more than 5 of these 
multi-strike group exercises within the life of the 5-year regulations, 
however, and this clerical issue does not impact our analyses of the 
effects on marine mammals.
    The Navy has carefully characterized the training activities 
planned for the MIRC over the 5 years covered by these regulations; 
however, evolving real-world needs necessitate flexibility in annual 
activities. NMFS has attempted to bound this flexibility with updated 
language in the regulatory text (see Sec.  218.100(d) and Sec.  
218.102(c)). This language allows for flexibility in activities, as 
long as the resulting impacts to marine mammals do not vary beyond 
those contemplated in the effects analysis, which has been also been 
updated accordingly in this document.
BILLING CODE 3510-22-P

[[Page 45529]]

[GRAPHIC] [TIFF OMITTED] TR03AU10.949


[[Page 45530]]


[GRAPHIC] [TIFF OMITTED] TR03AU10.950

Description of Marine Mammals in the Area of the Specified Activities

    Thirty-two marine mammal species or populations/stocks have 
confirmed or possible occurrence within the MIRC, including seven 
species of baleen whales (mysticetes), 22 species of toothed whales 
(odontocetes), two species of seals and sea lions (pinnipeds), and the 
dugong (sirenian). Table 3 summarizes their abundance, Endangered 
Species Act (ESA) status, population trends, and occurrence in the 
area. Eight of the species are ESA-listed and considered depleted under

[[Page 45531]]

the MMPA: Blue whale; fin whale; humpback whale; sei whale; sperm 
whale; North Pacific right whale; Hawaiian monk seal; and dugong. The 
dugong is managed by the U.S. Fish and Wildlife Service and will not be 
addressed further here. The proposed rule contains a discussion of five 
species that are not considered further in the analysis because of 
their rarity in the MIRC (North Pacific right whale, Hawaiian monk 
seal, Hubb's beaked whale, Indo-Pacific bottlenose dolphin, and 
northern elephant seal). The proposed rule also contains a discussion 
of important spinner dolphin resting areas. The proposed rule also 
includes a discussion of marine mammal vocalizations. Last, the 
proposed rule includes a discussion of the methods used to estimate 
marine mammal density in the MIRC. 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 53795, pages 53807-53813).

[[Page 45532]]

[GRAPHIC] [TIFF OMITTED] TR03AU10.951


[[Page 45533]]


BILLING CODE 3510-22-C

Brief Background on Sound

    The proposed rule contains a section that provides a brief 
background on the principles of sound that are frequently referred to 
in this rulemaking (74 FR 53795, pages 53813-53814). 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 effecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (2) 
to determine whether the specified activity will have a negligible 
impact on the affected species or stocks of marine mammals (based on 
the likelihood that the activity will adversely affect the species or 
stock through effects on annual rates of recruitment or survival); (3) 
to determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities that 
would be affected in the MIRC, so this determination is inapplicable 
for this rulemaking); and (4) to prescribe requirements pertaining to 
monitoring and reporting.
    In the Potential Effects of Specified Activities on Marine Mammals 
section of the proposed rule NMFS included a qualitative discussion of 
the different ways that MFAS/HFAS and underwater explosive detonations 
may potentially affect marine mammals (some of which NMFS would not 
classify as harassment), as well as a discussion of the potential 
effects of vessel movement and collision. It also briefly describes the 
anticipated impacts of limited use of low frequency active (LFA) sonar 
in conjunction with the MIRC training, which has also been analyzed in 
a separate MMPA rule and EIS. Marine mammals may experience direct 
physiological effects (such as threshold shift), acoustic masking, 
impaired communications, stress responses, and behavioral disturbance. 
This section also included a discussion of some of the suggested 
explanations for the association between the use of MFAS and marine 
mammal strandings (such as behaviorally-mediated bubble growth) that 
have been observed a limited number of times in certain circumstances 
(the specific events are also described). The information contained in 
Potential Effects of Specified Activities on Marine Mammals section 
from the proposed rule has not changed. See 74 FR 53795, pages 53814-
53831.
    Later, in the Estimated Take of Marine Mammals Section of this 
final rule, NMFS relates and quantifies the potential effects to marine 
mammals from MFAS/HFAS and underwater detonation of explosives 
discussed here to the MMPA definition of take, which includes Level A 
and Level B Harassment, as well as mortality.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.'' The NDAA of 2004 amended 
the MMPA as it relates to military-readiness activities and the ITA 
process such that ``least practicable adverse impact'' shall include 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the ``military readiness activity.'' The 
training activities described in the MIRC application are considered 
military readiness activities.
    NMFS reviewed the proposed MIRC activities and the proposed MIRC 
mitigation measures as described in the Navy's LOA application to 
determine if they would result in the least practicable adverse effect 
on marine mammals, which includes a careful balancing of the likely 
benefit of any particular measure to the marine mammals with the likely 
effect of that measure on personnel safety, practicality of 
implementation, and impact on the effectiveness of the ``military-
readiness activity.'' NMFS determined that further discussion was 
necessary regarding the potential relationship between the operation of 
MFAS/HFAS and marine mammal strandings.
    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 the likely effect of that measure on personnel safety, 
practicality of implementation, and impact on the ``military-readiness 
activity.'' NMFS and the Navy developed a Stranding Response Plan to 
address the concern listed above.
    NMFS' proposed rule includes a list of the Navy's proposed 
mitigation measures (74 FR 53795, pages 53831-53836), which have been 
included in the regulatory text of this document. Some of the measures 
have been refined for increased clarity, but without a change in 
substance. Additionally, in the interest of further minimizing the 
likelihood of vessel collision, the following mitigation measure has 
been added since the publication of the proposed rule:

    Naval vessels will maneuver to keep at least 1,500 ft (500 yds) 
away from any observed whale in the vessel's path and avoid 
approaching whales head-on. These requirements do not apply if a 
vessel's safety is threatened, such as when change of course will 
create an imminent and serious threat to a person, vessel, or 
aircraft, and to the extent vessels are restricted in their ability 
to maneuver. Restricted maneuverability includes, but is not limited 
to, situations when vessels are engaged in dredging, submerged 
activities, launching and recovering aircraft or landing craft, 
minesweeping activities, replenishment while underway and towing 
activities that severely restrict a vessel's ability to deviate 
course. Vessels will take reasonable steps to alert other vessels in 
the vicinity of the whale. Given rapid swimming speeds and 
maneuverability of many dolphin species, naval vessels would 
maintain normal course and speed on sighting dolphins unless some 
condition indicated a need for the vessel to maneuver.

    Based on our evaluation of the proposed measures and other measures 
considered by NMFS or recommended by the public, NMFS has determined 
that the Navy's proposed mitigation measures, including the Adaptive 
Management component (see Adaptive Management below), are adequate 
means of effecting the least practicable adverse impacts on marine 
mammals species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, while also considering personnel safety, practicality of 
implementation, and impact on the effectiveness of the military 
readiness activity. The proposed rule contains further support for this 
finding in the

[[Page 45534]]

Mitigation Conclusion section (74 FR 53795, pages 53836-53837). During 
the public comment period, a few mitigation measures not previously 
considered were recommended and NMFS' analysis of these measures is 
included in the Response to Public Comment section.

Research

    The Navy provides a significant amount of funding and support to 
marine research. In the past five years the agency funded over $100 
million ($26 million in FY08 alone) to universities, research 
institutions, federal laboratories, private companies, and independent 
researchers around the world to study marine mammals. The U.S. Navy 
sponsors 70 percent of all U.S. research concerning the effects of 
human-generated sound on marine mammals and 50 percent of such research 
conducted worldwide. Major topics of Navy-supported research include 
the following:
     Better understanding of marine species distribution and 
important habitat areas,
     Developing methods to detect and monitor marine species 
before and during training,
     Understanding the effects of sound on marine mammals, sea 
turtles, fish, and birds, and
     Developing tools to model and estimate potential effects 
of sound.
    This research is directly applicable to Fleet training activities, 
particularly with respect to the investigations of the potential 
effects of underwater noise sources on marine mammals and other 
protected species. Proposed training activities employ active sonar and 
underwater explosives, which introduce sound into the marine 
environment.
    The Marine Life Sciences Division of the Office of Naval Research 
currently coordinates six programs that examine the marine environment 
and are devoted solely to studying the effects of noise and/or the 
implementation of technology tools that will assist the Navy in 
studying and tracking marine mammals. The six programs are as follows:
     Environmental Consequences of Underwater Sound,
     Non-Auditory Biological Effects of Sound on Marine 
Mammals,
     Effects of Sound on the Marine Environment,
     Sensors and Models for Marine Environmental Monitoring,
     Effects of Sound on Hearing of Marine Animals, and
     Passive Acoustic Detection, Classification, and Tracking 
of Marine Mammals.
    The Navy has also developed the technical reports referenced within 
this document, which include the Marine Resource Assessments and the 
Mariana Islands Sea Turtle and Cetacean Survey density report. 
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 request funding for ongoing 
marine mammal research, and is implementing long term monitoring/
studies of marine mammals on various established ranges and operating 
areas. The Navy will continue to request funding for 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.

Memorandum of Agreement (MOA) for Navy Assistance With Stranding 
Investigations

    The Navy and NMFS are currently developing a nationwide Memorandum 
of Understanding (MOU) (or other mechanism consistent with Federal 
fiscal law requirements and all other applicable laws), that will 
establish a framework whereby the Navy can assist NMFS with stranding 
investigations in certain circumstances.

Long-Term Prospective Study

    Apart from this final rule, NMFS, with input and assistance from 
the Navy and several other agencies and entities, will perform a 
longitudinal observational study of marine mammal strandings to 
systematically observe for and record the types of pathologies and 
diseases and investigate the relationship with potential causal factors 
(e.g., active sonar, seismic, weather). The study will not be a true 
``cohort'' study, because NMFS will be unable to quantify or estimate 
specific active sonar or other sound exposures for individual animals 
that strand. However, a cross-sectional or correlational analyses, a 
method of descriptive rather than analytical epidemiology, can be 
conducted to compare population characteristics, e.g., frequency of 
strandings and types of specific pathologies between general periods of 
various anthropogenic activities and non-activities within a prescribed 
geographic space. In the long-term study, NMFS will more fully and 
consistently collect and analyze data on the demographics of strandings 
in specific locations and consider anthropogenic activities and 
physical, chemical, and biological environmental parameters. This 
approach in conjunction with true cohort studies (tagging animals, 
measuring received sounds, and evaluating behavior or injuries) in the 
presence of activities and non-activities will provide critical 
information needed to further define the impacts of major training 
exercises (MTEs) and other anthropogenic and non-anthropogenic 
stressors. In coordination with the Navy and other Federal and non-
Federal partners, the comparative study will be designed and conducted 
for specific sites during intervals of the presence of anthropogenic 
activities such as active sonar transmission or other sound exposures 
and absence to evaluate demographics of morbidity and mortality, 
lesions found, and cause of death or stranding. Additional data that 
will be collected and analyzed in an effort to control potential 
confounding factors include factors such as average sea temperature (or 
just season), meteorological or other environmental variables (e.g., 
seismic activity), fishing activities, etc. All efforts will be made to 
include appropriate controls (i.e., no active sonar or seismic sounds); 
environmental variables may complicate the interpretation of 
``control'' measurements. The Navy and NMFS along with other partners 
are evaluating mechanisms for funding this study.

Monitoring

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs 
must

[[Page 45535]]

include the suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species 
and of the level of taking or impacts on populations of marine mammals 
that are expected to be present.

Proposed Monitoring Plan for the MIRC

    The Navy's final Monitoring Plan for the MIRC may be viewed at 
NMFS' Web site: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Based on input received during the public 
comment period, the Navy has refined the goals of the monitoring plan 
to include more effort put towards obtaining better density and 
distribution information for the marine mammals present in the MIRC 
study area. Primarily, the Navy plans to conduct summer and winter 
visual surveys using a small boat and/or plane with Marine Mammal 
Observers (MMOs) around Guam, Tinian, and Saipan in cooperation with 
NMFS' Pacific Islands Fisheries Science Center or Guam's Division of 
Aquatic Wildlife and Resources (DAWR). Visual surveys would integrate 
methods such as photographic ID to provide additional data to be used 
for distribution and abundance estimates.
    The research elements in the modified plan include:

--Passive acoustic monitoring (PAM) including both the deployment of 4 
new PAM devices as well as the analysis of an existing dataset that was 
collected during the 2007 MISTCS survey.
--Visual monitoring utilizing marine mammal observers (MMOs) in small 
boats and/or planes.

    Table 5 contains a general summary of the Monitoring effort planned 
for each year and has been refined since the draft Monitoring Plan. The 
amount of each type of monitoring may vary from the summary table or 
Monitoring Plan based on annual discussions between NMFS and the Navy 
regarding previous monitoring results and effectiveness and in 
accordance with the Adaptive Management component of this rule, but, 
the overall effort over the 5-year period will remain approximately 
equal to that laid out in the table and monitoring plan.
BILLING CODE 3510-22-P

[[Page 45536]]

[GRAPHIC] [TIFF OMITTED] TR03AU10.952

BILLING CODE 3510-22-C
In addition to the Monitoring Plan for MIRC, the Navy has completed an 
Integrated Comprehensive Monitoring Program (ICMP) Plan.
    The ICMP will be used both as: (1) A planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information. The 
Navy finalized a 2009 ICMP Plan outlining the program on December 22, 
2009, as required by the 2009 LOAs for the Hawaii Range Complex, the 
Southern California

[[Page 45537]]

Range, and Atlantic Fleet Active Sonar Training. The ICMP may be viewed 
at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    The ICMP is a developing program that will be in place for the 
length of this rule, and beyond, and NMFS and Navy will evaluate it 
annually to determine if it needs to be updated in order to keep pace 
with advances in science and technology and the collection of new data. 
In the 2009 ICMP Plan, the Navy outlines three areas of targeted 
development for 2010, including:
     Identifying more specific monitoring sub-goals under the 
major goals that have been identified.
     Characterizing Navy Range Complexes and Study Areas within 
the context of the prioritization guidelines described here.
     Continuing to Develop Data Management, Organization and 
Access Procedures.
    The Navy shall comply with the 2009 ICMP Plan and continue to 
improve the program in consultation with NMFS. Changes and improvements 
to the program made during 2010 (as prescribed in the 2009 ICMP and 
otherwise deemed appropriate by the Navy and NMFS) will be described in 
an updated 2010 ICMP and submitted to NMFS by October 31, 2010, for 
review. An updated 2010 ICMP will be finalized by December 31, 2010.

Monitoring Workshop

    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from previous 
monitoring pursuant to the MIRC rule as well as monitoring results from 
other Navy rules and LOAs (e.g., the Southern California Range Complex 
(SOCAL), Hawaii Range Complex (HRC), etc.). The Monitoring Workshop 
participants will 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 will then analyze the input from the Monitoring 
Workshop participants and determine the best way forward from a 
national perspective. Subsequent to the Monitoring Workshop, 
modifications would be applied to monitoring plans as appropriate.

Adaptive Management

    Our understanding of the effects of MFAS/HFAS and explosives on 
marine mammals is still in its relative infancy, and yet the science in 
this field is evolving fairly quickly. These circumstances make the 
inclusion of an adaptive management component both valuable and 
necessary within the context of 5-year regulations for activities that 
have been associated with marine mammal mortality in certain 
circumstances and locations (though not the MIRC in the Navy's over 60 
years of use of the area for testing and training). NMFS has included 
an adaptive management component in the regulations, which will allow 
NMFS to consider new data from different sources to determine (in 
coordination with the Navy) on an annual basis if mitigation or 
monitoring measures should be modified or added (or deleted) if new 
data suggest that such modifications are appropriate (or are not 
appropriate) for subsequent annual LOAs.
    Following are some of the possible sources of new data:
     Results from the Navy's monitoring from the previous year 
(either from MIRC 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 MIRC 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).
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not anticipated by these 
regulations or subsequent Letters of Authorization.
    Mitigation measures could be modified or added (or deleted) if new 
data suggest that such measures would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final rule. The reporting 
requirements associated with this final rule are designed to provide 
NMFS with monitoring data from the previous year to allow NMFS to 
consider the data and issue annual LOAs. NMFS and the Navy will meet 
annually, prior to LOA issuance, to discuss the monitoring reports, 
Navy R&D developments, and current science and whether mitigation or 
monitoring modifications are appropriate.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' Effective reporting is 
critical both to compliance as well as ensuring that the most value is 
obtained from the required monitoring. The proposed rule contains the 
reporting requirements for the Navy (74 FR 53795, pages 53843-53845), 
and these requirements remain unchanged with the following exception. 
The requirements as written in the proposed rule include specific due 
dates for each of the reports. NMFS and the Navy are coordinating a 
workload plan to determine the best times during every year to submit 
all of the reports that Navy is responsible for under multiple final 
rules for multiple Range Complexes and training exercises. Although the 
reports described will always be submitted every year at a time that 
allows for adequate analysis by NMFS prior to the issuance of the 
subsequent LOA, we want to allow flexibility to change those dates 
yearly. Therefore, the regulatory text below will not specify the 
specific dates that the reports are due, but each annual LOA will.

Comments and Responses

    On October 20, 2009 (74 FR 53795), 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 
MIRC and requested comments, information and suggestions concerning the 
request. During the 30-day public comment period, NMFS received 
comments from 4 private individuals, the Marine Mammal Commission (MMC) 
and the Natural Resources Defense Council (NRDC). NMFS has responded to 
those comments below.

[[Page 45538]]

    Comment 1: The MMC recommended that the MIRC final rule and any 
Letter of Authorization issued under that rule include all marine 
mammal species that may be taken as a result of the proposed 
activities. Specifically, the MMC suggested that NMFS and/or the Navy 
should consult with the U.S. Fish and Wildlife Service (USFWS) to 
determine if authorization also is needed to take dugongs, which, 
according to the proposed rule, could occur within the Mariana Islands 
Range Complex.
    Response: The Navy has consulted on the MIRC action under Section 7 
of the ESA with the USFWS, which has jurisdiction over dugongs. The 
Navy and the USFWS coordinated regarding the list of species, and 
dugongs were not included. Dugongs have not been observed in the action 
area since 1985. Palau, over 1000 miles away, is the closest location 
that they have been seen recently.
    Comment 2: The MMC notes that the Navy, in its applications and 
related documents, generally has done a commendable job of reviewing 
the existing literature on marine mammal density, distribution, 
behavior, and habitat use for the areas under consideration, but 
expressed concern that the manner in which the Navy is using that 
information to form conclusions about density, distribution, behavior, 
and habitat use has not been subjected to the normal scientific review 
process. The MMC recommends that NMFS require the Navy to conduct an 
external peer review of its marine mammal density estimates, the data 
upon which those estimates are based, and the manner in which those 
data are being used.
    Response: Both NMFS and the Navy use peer-reviewed science whenever 
it is available and applicable, and NMFS has encouraged the Navy to get 
the models they use and data they gather peer-reviewed. However, 
neither the NEPA, the MMPA, nor the ESA require that data or 
calculations used in the analyses pursuant to these statutes be peer-
reviewed prior to making a decision. Rather, NMFS and the Navy are 
required to use the best available science to inform our analyses.
    The Navy proactively funded a baseline survey for the Mariana 
Islands in 2007 (the ``Mariana Islands Sea Turtle and Cetacean Survey'' 
or MISTCS) to gather data on the distribution and density of marine 
mammals and sea turtles. This survey is the first and only systematic 
survey to be conducted in the region and not only generated density 
estimates but added sei whales to the confirmed species in the area. 
Because it is the only data of this kind collected specifically around 
the Mariana Islands, it is considered the best available science. The 
Navy primarily used that data to derive their density estimates, and 
laid out a systematic approach for using other existing Pacific data 
when there was not enough MISTCS data to calculate a density for a 
particular species. Most of the densities estimated in the MIRC are not 
notably different than those estimated in Hawaii or the Eastern 
Tropical Pacific.
    Also, while it is not the same as a peer review, both the NEPA and 
MMPA processes include a comment period in which the public can 
specifically recommend better ways to use the data to estimate density, 
and which the Navy and NMFS would need to address.
    While it will not be published until after this final rule is 
complete, the Navy is preparing for publication an article presenting 
the MISTCS data that was used to inform their density estimates, and it 
will be peer-reviewed. Additionally, the Navy is developing a new 
systematic framework (that includes a hierarchy of preferred 
methodologies based on the data available in an area) to estimate 
density in the analyses for the rule renewals that will follow the 
expiration of the rules issued in 2009, 2010, and 2011 (i.e., rules 
that would, if appropriate, be issued in 2014 and later). The Navy has 
indicated that they may pursue a peer review of this framework and NMFS 
has encouraged them to do so.
    Comment 3: The MMC recommends that NMFS require that a sufficient 
level of monitoring be conducted during all training activities to 
ensure that marine mammals are not being taken in unanticipated ways 
and numbers. They further note that, according to the Navy's monitoring 
plan, ``major exercises may undergo significant schedule changes in 
reaction to higher-priority commitments and such changes may limit 
monitoring opportunities * * * [or] extreme weather precludes effective 
sampling.'' The plan further states that, in case of such monitoring 
delay(s), ``monitoring will be re-scheduled to the next available 
opportunity * * * [and] * * * may have to be made up in the subsequent 
year.'' The MMC further states that they assume that, although it is 
not clear in either the monitoring plan or the proposed rule, if 
monitoring associated with the focused studies cannot take place during 
a major training exercise, other standard types of monitoring will be 
conducted for mitigation and documentation purposes.
    Response: The Commission's assumption is correct. There are two 
different types of monitoring required pursuant to the MIRC training 
exercises. One type is the monitoring outlined in the Monitoring Plan 
(which has been modified since the proposed rule, see Comment 10 
below), which consists of different study methods designed to collect 
density and distribution data and is conducted by MMOs. This monitoring 
includes systematic sampling conducted at a different time and place 
than the training exercises. The Navy feels this monitoring may need to 
be rescheduled as appropriate. This is the monitoring that the Navy may 
need to reschedule.
    Separately, monitoring is routinely conducted by watchstanders on 
surface vessels (and opportunistically by personnel on other 
platforms). This monitoring is used to detect animals so the necessary 
mitigation can be implemented. Behavioral data which allow for a 
general assessment of impacts are collected with other information 
(such as the status of sonar sources) that help verify the Navy's 
mitigation implementation. This data-gathering requirement is described 
in Sec.  218.105 Requirements for monitoring and reporting.
    Comment 4: The MMC requested that NMFS require that, upon its 
completion, the plan for the Navy's Integrated Comprehensive Monitoring 
Program (ICMP) be made available for Commission review and comment.
    Response: The 2009 ICMP was completed and is posted on NMFS' Web 
site at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The ICMP is an iterative outline of an 
ongoing program, and NMFS and the Navy will evaluate the potential need 
to update it annually. NMFS made some specific recommendations on how 
to improve the 2009 ICMP, which are outlined in Section 6 of that 
document. Pursuant to the AFAST, HRC and SOCAL 2010 LOAs, the Navy will 
submit an updated version addressing those recommended improvements and 
any others, as appropriate, to NMFS at the end of 2010. NMFS has 
provided the MMC with a copy of the 2009 ICMP and notified them that 
NMFS and the Navy will consider any comments provided by August 15, 
2010 in the development of the 2010 ICMP.
    Comment 5: The MMC recommends that NMFS advise the Navy and specify 
in the final rule and Letter of Authorization that any and all data 
that the Navy collects as part of monitoring and reporting requirements 
are essential for documenting compliance with the requirements of the 
Marine Mammal Protection Act, the incidental take regulations, and the 
terms and conditions of the Letter of Authorization

[[Page 45539]]

and, unless subject to national security restrictions, should be 
considered as public information. The MMC further notes that the draft 
Monitoring Plan indicated that ``[a]ll data will be considered ``pre-
decisional'' and proprietary and will be shared among the Navy and NMFS 
(at a minimum) during the five-year period of the LOA.''
    Response: NMFS concurs with the MMC and clarified this point with 
the Navy. The language the MMC cited has been removed in the Final 
Monitoring Plan. As specified in the final regulations (and in the 
LOAs), the Navy includes all of the information specified as part of 
the monitoring and reporting requirements in their annual reports 
(which are posted on NMFS Web site) unless the information is 
classified or the analysis has not been completed (i.e., passive 
acoustic data).
    Comment 6: The MMC recommends that NMFS require that, in the event 
of the death or serious injury of a marine mammal during activities 
associated with any of the training exercises or other activities 
covered by this authorization, those activities be suspended, pending 
an investigation and determination that further serious injuries or 
deaths are unlikely or until authorization for such taking has been 
obtained. The MMC specifically notes that there is no shutdown measure 
in place for non-major sonar activities. The MMC further recommends 
that NMFS require that the Navy, in conjunction with the NMFS, 
investigate any injury or death of a marine mammal to determine the 
cause, assess the full impact of the activity or activities (e.g., the 
total number of animals involved), and determine how activities should 
be modified to avoid future injuries or deaths. If the death or serious 
injury involves a marine mammal not included in the authorization for 
such takes, NMFS should allow the activity to proceed only if it has 
reviewed the circumstances and determined that additional serious 
injuries or deaths are unlikely or the Navy has obtained authorization 
for such taking. Lastly, the MMC recommends that prior to issuing the 
final regulations, NMFS ensure that it can provide oversight of and 
response to an uncommon stranding event in the Mariana Islands Range 
Complex Study Area sufficient to meet in full the monitoring and 
reporting requirements of the Marine Mammal Protection Act.
    Response: NMFS and the Navy have developed a detailed Stranding 
Response Plan for MIRC that outlines protocols for, and describes the 
underlying rationale for, shutdown (in very specific circumstances) and 
investigation in the event that dead or stranded animals are found in 
the vicinity of major sonar exercises. The regulations also include a 
provision for ``General notification of injured or dead marine 
mammals,'' under which Navy personnel shall ensure that NMFS is 
notified immediately (or as soon as clearance procedures allow) if an 
injured, stranded, or dead marine mammal is found during or shortly 
after, and in the vicinity of, any Navy training exercise (including 
non-major ones) utilizing MFAS, HFAS, or underwater explosive 
detonations. The provision further requires the Navy to provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s) (including carcass condition if the animal is dead), 
location, time of first discovery, observed behaviors (if alive), and 
photo or video of the animals (if available).
    All but one of the small number of strandings that have been 
associated with MFAS exercises occurred concurrent to exercises that 
would be considered ``major'', which typically involve multiple surface 
vessels and last for a much longer duration than non-major exercises. 
It can take months to years to complete the necessary tests and 
analyses required to determine, with a reasonable amount of certainty, 
the cause of a marine mammal death--and sometimes it is not possible to 
determine it. In consideration of these facts, NMFS (with input from 
the Navy) determined that it was beneficial and practicable to 
preemptively outline an explicit plan (that includes a shutdown 
requirement in certain circumstances) for how to deal with a stranding 
that occurs during a major exercise. Alternatively, for non-major 
exercises, the general stranding provisions apply, which means that the 
Navy would contact NMFS as soon as clearance procedures allow and we 
would determine how best to proceed then. In light of the fact that so 
few strandings have been definitively associated with MFAS training in 
the 60+ years that the U.S. and other countries that share information 
have been conducting MFAS training, it is not reasonable or practicable 
to require the Navy to shut down pending the results of an 
investigation that could take years to conduct.
    However, NMFS and the Navy will implement the Stranding Response 
Plan as written and, as in the past, will work together on a case-by-
case basis within the constraints of our available resources to 
investigate the causes should a stranding or death occur during a non-
major exercise. Once investigations are completed and determinations 
made (as feasible), NMFS would use the available information to help 
reduce the likelihood that a similar event would recur and would work 
with the Navy on the necessary steps to ensure compliance by the Navy 
with the MMPA. NMFS and the Navy are near finalizing an MOU that will 
streamline and improve the way that the Navy is able to assist NMFS 
during a stranding investigation. Lastly, the Stranding Response Plan 
includes a provision for stranding debriefs/lessons learned meetings 
between NMFS and the Navy following a stranding response, and the MIRC 
rule includes an adaptive management provision that allows for the 
modification of mitigation or monitoring measures based on new 
information (like that which might be gathered during a stranding 
response/investigation), as appropriate.
    Comment 7: The MMC recommended that NMFS work with the Navy to 
analyze the cumulative effects of adding LFA sonar to the other 
activities planned for the Mariana Islands Range Complex before using 
LFA sonar as a component of the proposed training exercises and, if 
appropriate, add authorization for the use of LFA to the final rule and 
Letter of Authorization. The NRDC had similar concerns, including the 
fact that the mitigation used with LFA sonar was not discussed.
    Response: As noted, the impacts of LFA sonar (alone) have been 
analyzed in the Navy's SURTASS LFA Sonar EISs and take of marine 
mammals incidental to that activity has been authorized in LOAs 
pursuant to NMFS' Final Rule for LFA Sonar, both of which include 
required mitigation measures. As described in the proposed rule, the 
military intends to conduct three exercises (multi-strike group 
exercises) during the five-year duration of the rule that may include 
both SURTASS LFA and MFA sonar sources. The expected duration of these 
combined exercises is approximately 14 days. Based on an exercise of 
this length, an LFA sonar system would be active (i.e., actually 
transmitting) for no more than approximately 25 hours. Tactical and 
technical considerations dictate that the LFA sonar ship would 
typically be tens of miles from the MFA sonar ship when using active 
sonar. It is unlikely, but possible, that both LFA and MFA sonar would 
be active at exactly the same time during a major exercise. In the 
unlikely event that both systems were operating simultaneously, the 
likelihood of more than a relatively small number of individual marine 
mammals being physically present at a time, location, and depth to be 
able to receive both LFA and MFA sonar signals at levels of

[[Page 45540]]

concern at the same time is even smaller as the sound from both signals 
would have attenuated when they reached the marine mammal in question, 
so even a simultaneous exposure would not be at the full signal of 
either system. Additionally, few species have maximum sensitivity to 
both the low and middle frequencies.
    That said, pursuant to this rule, NMFS worked with the Navy to more 
specifically analyze impacts that might result from animals being 
exposed to both the LFAS and the MFAS at the same time. The Navy 
developed a model to evaluate the likelihood of an animal being exposed 
to both sources based on the operational parameters of the two systems 
and the propagation characteristics of the two sound sources. Assuming 
an LFA and MFA sonar source transmitting at the same time over a 25-
hour period and based on the fact that the two sources transmit at very 
different duty cycles, the overlap of the actual signals would be 
approximately 3.2%, or 0.8 hours (assuming that there is only one MFA 
sonar ship transmitting). But the possibility of even that overlap must 
consider the other factors discussed above.
    Based on the fact that an LFA sonar ship would be tens of miles 
away from an MFA ship when using active sonar and that the overlap of 
the signals would only be about 50 minutes at attenuated levels, as 
well as the other information discussed above, the exposure of marine 
mammals simultaneously to both MFA and LFA sonars would be limited, and 
the impacts would not be expected to result in a detectable increase in 
the number or severity of the takes already analyzed and estimated in 
this rule.
    Comment 8: The MMC recommended that NMFS limit the authorization to 
avoid Navy operations within the Marianas Trench Marine National 
Monument (MTMNM) to the extent possible. Further, if the Navy must 
conduct activities within the Monument, the Service should include in 
the final rule and Letter of Authorization a description of the 
measures that the Navy will adopt to minimize adverse impacts and to 
comply with the intent of the presidential proclamation establishing 
the Monument.
    Response: The MTMNM was established to protect the submerged lands 
and waters of the Mariana Archipelago and was designated with the 
purpose of protecting the submerged volcanic areas of the Mariana Ridge 
(which include chemosynthetic features and hydrothermal vents), the 
coral reef ecosystem of the waters of surrounding islands, and the 
Marianas Trench. The Monument includes the submerged lands of the 
``Volcano Unit'' and the water column and submerged lands within the 
``Island Unit''. The MTMNM contains no areas specifically designated as 
important to marine mammal protection in the MTMNM. The presidential 
proclamation establishing the Monument indicates that the prohibitions 
required by the proclamation shall not apply to activities and 
exercises of the Armed Forces, but also indicates the Armed Forces 
shall ensure, by the adoption of appropriate measures not impairing 
operations or operational capabilities, that its vessels and aircraft 
act in a manner consistent, so far as is reasonable and practicable, 
with the proclamation.
    Pursuant to the MMPA, NMFS makes decisions regarding required 
mitigation based on biological information pertaining to the potential 
impacts of an activity on marine mammals and their habitat (and the 
practicability of the measure), not management designations intended 
for the broad protection of various other marine resources. A portion 
of the MTMNM overlaps with the MIRC Study Area; however, there are no 
areas within this area of special importance to marine mammals for 
which restricting sonar use would afford a notable benefit. If training 
or exercises occur in this area, the Navy would be required to follow 
the general mitigation protocols established in the final rule and LOA. 
For example, powering or shutting down sonar when marine mammals are 
detected within ranges where the received sound level is likely to 
result in temporary threshold shift (TTS) or injury and using exclusion 
zones that avoid exposing marine mammals to levels of explosives likely 
to result in injury or death of marine mammals. NMFS expects the 
mitigation measures employed in the MTMNM will reduce the number of 
marine mammals exposed to levels of sound expected to result in TTS or 
more severe behavioral responses in these areas.
    Comment 9: The NRDC suggests that NMFS should not issue an MMPA 
authorization because the information on species densities and 
distributions of marine mammals in the Marianas region is inadequate 
for NMFS to be able to effectively analyze the environmental impacts, 
and that the Navy should have obtained the information before 
requesting an MMPA authorization. They further suggest that because of 
this lack of information, the NEPA analysis is inadequate both for the 
Navy and for NMFS to adopt. They note that there has only been one 
comprehensive survey conducted in the area (during one single season) 
and that the sea states were high during this survey (making detection 
difficult), which, combined with the detection probabilities used, 
likely resulted in an underestimate of the density of animals in the 
area. They further noted that off-shore data were used to estimate 
density across both the inshore and offshore areas, even though there 
are often density differences across inshore and offshore areas (some 
species are more dense inshore).
    Response: Both NMFS and the Navy have a responsibility to use the 
best available science to support our analysis and decisions under both 
NEPA and the MMPA. In 2007, the Navy funded a baseline survey for the 
Mariana Islands (the ``Mariana Islands Sea Turtle and Cetacean Survey'' 
or MISTCS) to gather data on the distribution and density of marine 
mammals and sea turtles. This survey is the first and only systematic 
survey to be conducted in the region and not only generated density 
estimates, but also added sei whales to the confirmed species in the 
area. In this case, the Navy has generated the best available science 
and both NMFS and the Navy are using it. The limitations of the data 
were acknowledged by the Navy in the MISTCS report, and the Navy plans 
to improve upon this information moving forward as more data are 
gathered. The sea states in the MIRC are comparatively higher than in 
other areas, so scientists will continue to deal with this challenge. 
As more surveys are conducted, data will be collected across more 
seasons and areas (inshore and offshore), which will allow for the 
calculation of more spatially and temporally explicit density 
estimates. The collection of additional data will allow scientists to 
determine whether the development of MIRC-specific detection 
probabilities is appropriate. In the meantime, the density estimates 
from the MISTCS surveys are not unexpected and are similar to those for 
the Hawaii offshore areas and the eastern tropical Pacific and will 
allow NMFS to make reasonable predictions regarding the number of 
marine mammals that might be exposed to particular levels of sound.
    Regarding the comment that take estimates are likely 
underestimates, for comparison we use data collected in Hawaii, where 
surveys are more robust. For naval exercises in Hawaii, there are more 
survey data, across different seasons, incorporating both inshore and 
offshore data, and using specific detection probability factors. The 
Navy estimated approximately 28,000 Level B harassment takes for a 
total of about 1670 hours of hull-mounted MFAS (the

[[Page 45541]]

most powerful source, which accounts for the vast majority of takes). 
In MIRC, the Navy estimated approximately 80,000 Level B harassment 
takes to result from the operation of approximately 2320 hours of hull-
mounted MFAS. At a broad level, these estimates (the ratio of the two) 
do not suggest the Navy is likely underestimating take in MIRC. 
Similarly, below is an overview of the watchstander data collected 
during major exercises in Hawaii and MIRC, which, while not a 
systematic comparison, broadly suggests the number of animals 
encountered in the vicinity of an exercise in MIRC is not much 
different than the numbers encountered in Hawaii.
[GRAPHIC] [TIFF OMITTED] TR03AU10.953

    Lastly, the animals that watchstanders have detected during 
exercises have not exhibited any observable behavioral effects. In 
summary, using the density estimates generated from the Navy's survey 
and the take estimates modeled by the Navy, NMFS has considered the 
best available science. Additionally, taking into consideration other 
data/literature related to the likely impacts of MFAS exposure on 
marine mammals (see proposed rule) combined with data from the Navy 
regarding the number of marine mammal detections and observed behaviors 
that have been recorded during other Navy exercises, NMFS has 
sufficient information to make the findings required under the MMPA.
    Comment 10: The NRDC recommends that to meet its responsibilities 
under the MMPA and NEPA, NMFS should require the Navy, as a condition 
of any future permit, to sponsor a multiyear survey effort within the 
Marianas Islands Range Complex that can serve as a reasonable basis of 
both geographic mitigation and improved environmental assessment. NRDC 
recommends (1) that NOAA scientists participate in the survey design, 
including the design of tracklines and the determination of detection 
probabilities; (2) that surveys are conducted consistently and across 
multiple seasons, given the presence of migratory species, and for more 
than 1 year, given the potential for interannual variability and the 
typically high sea states around the Marianas; and (3) that surveys are 
designed, at least in part, to aid in identifying areas of importance 
to marine mammals (e.g., gathering oceanographic data relevant to 
marine mammal distribution). Finally, (4) the survey results should be 
integrated into habitat suitability models available for other regions, 
such as Hawaii or the Eastern Tropical Pacific (NMFS interprets this to 
mean that habitat suitability models from these other areas should be 
used in conjunction with MIRC data to predict density in the MIRC).
    Response: NMFS agrees with NRDC regarding the importance of 
gathering more density, distribution, and abundance data in the MIRC 
and has recommended the Navy refocus their Monitoring Plan. In response 
to this recommendation, the Navy has modified their draft Monitoring 
Plan to focus completely on gathering density and distribution data 
that can be used to better inform our analyses of the impacts of the 
action as well as to inform decisions regarding the development of 
areas of special protection and, further, the Navy has increased the 
amount of survey effort that they had committed to in the draft 
Monitoring Plan. The Navy has now committed to conduct 45 days of 
visual surveys annually (over the 5 years of the rule) using a small 
boat and/or airplane around Guam, Tinian, Rota and Saipan. These 
surveys will be conducted over both summer and winter and will be 
developed in coordination with NMFS scientists and conducted in 
cooperation with NMFS and/or DAWR. Visual surveys will integrate 
methods such as photo ID which provide data that can be used for 
estimating distribution and abundance. Additionally, as already 
discussed in the proposed rule, the Navy will deploy four passive 
acoustic devices to collect data throughout the years. Lastly, the Navy 
has also committed to additional analysis of acoustic data gathered 
during the 2007 MISTCS survey that have not yet been analyzed.
    Earlier this year, NMFS's Pacific Islands Fisheries Science Center 
(PIFSC) and the Navy collaborated to conduct cetacean observations in 
conjunction with an oceanographic survey aboard NOAA Research Vessel 
Oscar Elton Sette. Coverage was between Honolulu and Guam and within 
the Exclusive Economic Zones (EEZs) of Guam and the Commonwealth of the 
Northern Marianas between January and May 2010. The goal was to monitor 
the presence and distribution of cetaceans on the high seas and within 
the Guam/Commonwealth of the Northern Mariana Islands EEZs. PIFSC 
performed four data collection projects during the outward bound and 
early arrival portion of the survey:
    (1) Cetacean visual and acoustic observations during daylight hours 
on the high seas survey between Honolulu and Guam, 20 January-4 
February.
    (2) Cetacean visual and acoustic observations conducted from small 
boats chartered in Guam, Rota, Tinian, and/or Saipan, 10 February-4 
March.
    (3) Cetacean visual observations during daylight hours during