Taking and Importing Marine Mammals; Navy Training Activities Conducted Within the Northwest Training Range Complex, 69296-69326 [2010-27540]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Rules and Regulations]
[Pages 69296-69326]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27540]



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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 218



Taking and Importing Marine Mammals; Navy Training Activities Conducted 
Within the Northwest Training Range Complex; Final Rule

Federal Register / Vol. 75 , No. 217 / Wednesday, November 10, 2010 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 0906101030-0489-03]
RIN 0648-AX88


Taking and Importing Marine Mammals; Navy Training Activities 
Conducted Within the Northwest Training Range Complex

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 in the Northwest Training Range 
Complex (NWTRC), off the coasts of Washington, Oregon, and northern 
California, for the period of October 2010 through October 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 November 9, 2010 through November 9, 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 
Monday, July 13, 2009 (74 FR 33828). 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.

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 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 September 2008, NMFS received an application from the Navy 
requesting authorization for the take of individuals of 26 species of 
marine mammals incidental to upcoming Navy training activities to be 
conducted within the NWTRC, which extends west to 250 nautical miles 
(nm) (463 kilometers [km]) beyond the coast of Northern California, 
Oregon, and Washington and east to Idaho and encompasses 122,400 nm\2\ 
(420,163 km\2\) of surface/subsurface ocean operating areas. 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 NWTRC by exposing them to sound from mid-frequency 
or high-frequency active sonar (MFAS/HFAS) or underwater detonations. 
The Navy requested authorization to take individuals of 26 species of 
marine mammals by Level B Harassment and 13 individuals of 9 species by 
Level A Harassment. The Navy's model, which did not factor in any 
potential benefits of mitigation measures, predicted that 13 individual 
marine mammals would be exposed to levels of sound or pressure that 
would result in injury; thus, NMFS is authorizing the take of 13 
individuals per year by Level A Harassment. However, NMFS and the Navy 
have determined that injury can most likely be avoided through the 
implementation of the required mitigation measures. No mortality of 
marine mammals is authorized incidental to naval exercises in the 
NWTRC.

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 33829).

Overview of the NWTRC

    The proposed rule contains a description of the NWTRC, including 
both the Inshore and Offshore areas. The description contained in the 
proposed rule has not changed (74 FR 33829).

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

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related LOAs. The proposed rule describes the nature and number of 
anti-submarine warfare (ASW) exercises, anti-surface warfare (ASUW) 
exercises, and mine warfare training (MIW) exercises, involving both 
mid- and high-frequency active sonar (MFAS and HFAS), as well as 
explosive detonations. It also describes the sound sources and 
explosive types used (74 FR 33828, pages 33829-33838). The narrative 
description of the action contained in the proposed rule has not 
changed, with one exception and one clarification indicated below. 
Tables 1, 2, and 3 list the types of sonar sources and the estimated 
yearly use, summarize the characteristics of the exercise types, and 
list the explosive types used.
    As a result of their Section 7 consultation with the U.S. Fish and 
Wildlife Service, the Navy agreed to make a small modification to their 
activity. They agreed to not conduct Explosive Ordnance Disposal (EOD) 
underwater demolition training at the Naval Magazine Indian Island site 
(1 event per year was previously included in the proposed rule). 
Instead, that training event will be conducted at the Hood Canal 
training site, so there will now be up to a total of two events per 
year in Hood Canal (instead of 1). The Navy further agreed that EOD 
will utilize charge sizes of 1.5 lbs or less at the Hood Canal site, 
instead of the 2.5 lbs or less identified in the proposed rule.
    The Navy has carefully characterized the training activities 
planned for the NWTRC 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 new 
language in the regulatory text (see Sec.  218.110(c)) which allows for 
flexibility in planned activities, provided it does not affect the take 
estimates and anticipated impacts in a manner that changes our 
analysis.
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Description of Marine Mammals in the Area of the Specified Activities

    Twenty-seven marine mammal species have confirmed or possible 
occurrence within the NWTRC, including six species of baleen whales 
(mysticetes), 16 species of toothed whales (odontocetes), five species 
of seals and sea lions (pinnipeds), and the sea otter (mustelids). Sea 
otters are under the jurisdiction of the Department of the Interior and 
are not considered further.) Table 4 summarizes their abundance, 
Endangered Species Act (ESA) status, population trends, and occurrence 
in the area. Seven of the species are ESA-listed and considered 
depleted under the MMPA: Blue whale; fin whale; humpback whale; sei 
whale; sperm whale; southern resident killer whale; and Steller sea 
lion. The proposed rule contains a discussion of one species that is 
not considered further in the analysis (the North Pacific right whale) 
because of its rarity in the NWTRC. The proposed rule also contains a 
discussion of bottlenose dolphins, but due to their extralimitality, 
the impact analysis concluded that this species will not be taken by 
the Navy's activity. The proposed rule also contains a discussion of 
important areas, including southern resident killer whale and Steller 
sea lion critical habitat, and the gray whale migration corridor. 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 NWTRC. 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 
33828, pages 33838-33842).

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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 33828, pages 33845-33846). 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.

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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 NWTRC, 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 (74 FR 33828, pages 33846-
33862). 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) (74 FR 33828, pages 33855-33860). The information 
contained in Potential Effects of Specified Activities on Marine 
Mammals section from the proposed rule has not changed.
    Later, in the Estimated Take of Marine Mammals Section, NMFS 
relates and quantifies the potential effects to marine mammals from 
MFAS/HFAS and underwater detonation of explosives discussed here to the 
MMPA definitions of Level A and Level B Harassment.

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 NWTRC application are considered 
military readiness activities.
    NMFS reviewed the proposed NWTRC activities and the proposed NWTRC 
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 use of MFAS/HFAS for training in the Inshore 
Area that contains the southern resident killer whale critical habitat.
    To address the concerns above, the Navy clarified for NMFS that no 
training utilizing MFAS/HFAS had occurred in the Inshore Area of NWTRC 
for the last six years, that it is not being conducted now, and that 
there are no plans to utilize MFAS/HFAS for training in the Inshore 
Area (i.e., it is not part of the Navy's specified activity). This 
information has been factored into NMFS' effects analysis. The Navy has 
indicated that should their plans change in the future they will 
request a new LOA, which would likely require new regulations, for the 
additional activities within the NWTRC. The Navy further explained that 
no explosive training occurs in the Inshore Area other than the annual 
detonation of four, up to 1.5-2.5lb charges, which are not anticipated 
to result in the take of marine mammals. For these reasons, no take of 
killer whales is anticipated to result from the Navy's activities in 
the Inshore area and none has been authorized.
    NMFS' proposed rule includes a list of the Navy's proposed 
mitigation measures (74 FR 33828, pages 33863-33867), which have been 
included in the regulatory text of this document. 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 required mitigation measures (including the Adaptive 
Management (see Adaptive Management below) component) are adequate 
means of effecting the least practicable adverse impacts on marine 
mammal species or stocks and their habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, while 
also considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity. The 
proposed rule contains further support for this finding in the 
Mitigation Conclusion section (74 FR 33828, pages 33867-33868). 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

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the agency provided 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 
Navy OPAREA Density Estimates (NODE) reports. Furthermore, research 
cruises by NMFS and by academic institutions have received funding from 
the U.S. Navy.
    The Navy has sponsored several workshops to evaluate the current 
state of knowledge and potential for future acoustic monitoring of 
marine mammals. The workshops brought together acoustic experts and 
marine biologists from the Navy and other research organizations to 
present data and information on current acoustic monitoring research 
efforts and to evaluate the potential for incorporating similar 
technology and methods on instrumented ranges. However, acoustic 
detection, identification, localization, and tracking of individual 
animals still requires a significant amount of research effort to be 
considered a reliable method for marine mammal monitoring. The Navy 
supports research efforts on acoustic monitoring and will continue to 
investigate the feasibility of passive acoustics as a potential 
mitigation and monitoring tool.
    Overall, the Navy will continue to fund ongoing marine mammal 
research, and is planning to coordinate long term monitoring/studies of 
marine mammals on various established ranges and operating areas. The 
Navy will continue to research and contribute to university/external 
research to improve the state of the science regarding marine species 
biology and acoustic effects. These efforts include mitigation and 
monitoring programs; data sharing with NMFS and via the literature for 
research and development efforts; and future research as described 
previously.

Long-Term Prospective Study

    Apart from this final rule, NMFS, with input and assistance from 
the Navy and several other agencies and entities, will perform a 
longitudinal observational study of marine mammal strandings to 
systematically observe for and record the types of any 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 active sonar 
training exercises 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 both the presence and absence of 
anthropogenic activities such as active sonar transmission or other 
sound exposures to evaluate demographics of morbidity and mortality, 
presence of lesions, and cause of death or stranding. Additional data 
that will be collected and analyzed in an effort to control potential 
confounding factors includes 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 no 
seismic); environmental variables may, however, 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 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 NWTRC

    The Navy's final Monitoring Plan for the NWTRC may be viewed at 
NMFS' web site: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Monitoring Plan for NWTRC has been 
designed as a collection of focused ``studies'' (described fully in the 
NWTRC draft Monitoring Plan) to gather data that will allow the Navy to 
address the following questions:
    (a) Are marine mammals exposed to MFAS/HFAS, especially at levels 
associated with adverse effects (i.e., based on NMFS' criteria for 
behavioral

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harassment, TTS, or PTS)? If so, at what levels are they exposed?
    (b) If marine mammals are exposed to MFAS/HFAS in the NWTRC Range 
Complex, do they redistribute geographically as a result of continued 
exposure? If so, how long does the redistribution last?
    (c) If marine mammals are exposed to MFAS/HFAS, what are their 
behavioral responses to various levels?
    (d) What are the behavioral responses of marine mammals that are 
exposed to explosives at specific levels?
    (e) Is the Navy's suite of mitigation measures for MFAS/HFAS (e.g., 
measures agreed to by the Navy through permitting) effective at 
preventing TTS, injury, and mortality of marine mammals?
    The extent of the training utilizing MFAS/HFAS in the NWTRC is 
comparatively less than several of the other training areas utilized by 
the Navy and not every one of these original five study questions will 
be addressed within NWTRC. Rather, data collected from NWTRC monitoring 
will be used to supplement a consolidated range complex marine mammal 
monitoring report incorporating data from the Navy's Hawaii Range 
Complex, Marianas Island Range Complex, NWTRC, and Southern California 
Range Complex. Monitoring methods proposed for the NWTRC include a 
combination of research elements designed to support both Range Complex 
specific monitoring, and contribute information to a larger Navy-wide 
program. These research elements include:

--Deployment of passive acoustic monitoring (PAM) devices, and,
--Marine mammal tagging.

    The monitoring techniques selected for the NWTRC will be primarily 
focused on providing additional data for study questions (b), (c), and 
(d).
    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, 
however, the overall effort over the 5-year period will remain 
approximately equal to that laid out in the monitoring plan.
    This monitoring plan has been designed to gather data on all 
species of marine mammals that are observed in the NWTRC; however, 
where appropriate, priority will be given to beaked whales, ESA-listed 
species, killer whales, and harbor porpoises. The Plan recognizes that 
deep-diving and cryptic species of marine mammals such as beaked whales 
have a low probability of detection (Barlow and Gisiner, 2006). 
Therefore, methods will be utilized to attempt to address this issue 
(e.g., passive acoustic monitoring).
    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 (HRC), 
the Southern California Range (SOCAL), and Atlantic Fleet Active Sonar 
Training (AFAST). 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:
    1. Identifying more specific monitoring sub-goals under the major 
goals that have been identified.
    2. Characterizing Navy Range Complexes and Study Areas within the 
context of the prioritization guidelines described in the ICMP.
    3. 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. 
NMFS plans to solicit public comments on the updated ICMP in January, 
2011 and the input will be used to inform the 2011 Monitoring Workshop, 
the further development of the ICMP, and, potentially, monitoring 
modifications in the Navy's 2012 monitoring plans.

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 the previous 
monitoring pursuant to the NWTRC rule as well as monitoring results 
from other Navy rules and LOAs (e.g., SOCAL, HRC, etc.). 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.

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 in the NWTRC 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 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 NWTRC 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

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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 NWTRC or other locations, and involving coincident MFAS/HFAS or 
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 other agencies or entities).
     Any information that 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 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 33828, pages 33871-33872), 
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 the Navy is responsible for under 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, as the due dates will be 
specified in the annual LOA.

Comments and Responses

    On July 13, 2009 (74 FR 33828), NMFS published a proposed rule in 
response to the Navy's request to take marine mammals incidental to 
military readiness training in the NWTRC and requested comments, 
information and suggestions concerning the proposed rule. During the 
30-day public comment period, NMFS received comments from the Marine 
Mammal Commission, the Washington Department of Fish and Wildlife, the 
Department of the Interior, the Natural Resources Defense Council (on 
behalf of the International Fund for Animal Welfare, the Center for 
Biological Diversity, Cetacean Society International, Friends of the 
San Juans, the Humane Society of the United States, the Ocean Futures 
Society, the Ocean Mammal Institute, People for Puget sound, Davis 
Bain, and Jean-Michel Cousteau), the Orca Network, The Whale Museum, 
Turtle Island Restoration Network (TIRN) and Center for Biological 
Diversity (CBD), as well as over two hundred members of the public. The 
NRDC gained support for their comments from over 54,000 members through 
form letters.

Introduction

    As described elsewhere in this document, 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.'' NMFS' decisions regarding whether or not to require any 
particular mitigation measure must include a careful balancing of the 
likely benefit of any particular measure to marine mammals and the 
likely effectiveness of the measure, with the practicability of the 
measure, which (for military readiness activities) includes 
consideration of the likely effect of that measure on personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
``military-readiness activity.''
    Because some of the comments received reflect an incomplete or 
inaccurate understanding of the nature and scope of the Navy's MFAS 
training exercises, we will summarize and clarify some issues up front 
that will support multiple responses below. For example, one commenter 
begins by stating that the Navy contemplates extensive sonar training. 
This is not the case. In the NWTRC, the annual amount of planned 
operation for the most powerful surface hull-mounted MFAS (which is 
responsible for the vast majority of the takes) is 108 hours annually. 
Comparatively, the annual sonar use in other areas that the Navy uses 
for training is far more extensive: 1670 hrs/yr in Hawaii, 2400 in the 
Mariana Islands, 2470 in SOCAL, and 5110 off the Atlantic Coast. 
Another significant difference is the fact that all of the sonar 
exercises in the NWTRC are approximately 1.5-hr exercises that utilize 
a single surface hull-mounted sonar, versus the major exercises within 
other training areas, which may last for several weeks, and use 
multiple (sometimes 10 or more) surface hull-mounted sonars 
simultaneously.
    Another point that is germane to several of the comments raised is 
the typical way that the MFAS exercises utilizing surface hull-mounted 
sonar (TRACKEXs) are conducted, and the areas in which they are 
typically conducted. Approximately 10 percent of the surface hull-
mounted MFAS is conducted in conjunction with the use of the Portable 
Undersea Training Range (PUTR), while the remaining 90 percent is 
conducted primarily in-transit as the vessel is moving from one point 
to another, most often south through the NWTRC towards the Southern 
California Range Complex. The majority of the in-transit MFAS use in 
the NWTRC has taken place and is projected to continue to take place at 
a distance of 50 nm or greater from shore, with infrequent training 
events occurring between 12 and 50 nm from shore. In-transit MFAS 
training is not anticipated to occur inside of 12 nm.
    The PUTR has been developed to support ASW training in areas where 
the ocean depth is between 300 ft and 12,000 ft and at least 3 nm from 
land. The PUTR will not be utilized within the Olympic Coast National 
Marine Sanctuary (OCNMS).
    In addition, the Navy provided funding to NMFS's Southwest 
Fisheries Science Center (SWFSC) in the fall of

[[Page 69307]]

2009, to update their newest spatial predictive habitat model with 
composite data from 1991 through 2008, the date of the last U.S. West 
Coast marine mammal survey. In the spring of 2010, SWFSC completed this 
analysis which provides finer scale (25-km) density resolution for 12 
of the most commonly sighted species within the U.S. West Coast EEZ 
including NWTRC. Results of this effort will be published in a NMFS 
Technical Report.
    From 2009 through 2010, marine mammal satellite tracking tag 
studies funded by the Navy in Southern California show that static 
plots of marine mammal occurrence do not provide the entire story on 
marine mammal life history. Tagged baleen whales and dolphins within 
Southern California quite frequently move significant distances. As 
part of the Navy's NWTRC Monitoring Plan, presence\absence data will be 
collected via offshore long-term passive acoustic monitoring devices 
from Scripps Institute of Oceanography, as well as marine mammal 
satellite tagging.
    In summary, the Navy, as part of its NWTRC Monitoring Plan will 
continue to contribute valuable scientific data in collaborating with 
regional and national scientific academic partners as to marine mammal 
distributions within the NWTRC.
    Last, for the second year in a row, the Navy is convening a 
workshop in October to which marine mammal experts have been invited. 
The Navy will review its monitoring results from the previous year and 
solicit recommendations on future plans. More formally, the Navy has 
been required by multiple LOAs to hold a Monitoring Workshop in 2011 
that will include both marine mammal experts and non-governmental 
organizations. Here, again, the Navy will provide a review of previous 
monitoring results from multiple range complexes and solicit input. The 
goal of the 2011 workshop, as laid out in the Integrated Comprehensive 
Monitoring Program Plan, is to comprehensively consider the resources 
available in different ranges, the data needs, and the species and 
conditions present in different ranges in order to identify the most 
appropriate monitoring across range complexes that will provide the 
most efficient methodology and best results.

Additional Mitigation Recommendations

    Comment 1: NRDC and other commenters recommended the establishment 
of a panel of marine mammal and oceanographic experts with regional 
expertise on marine mammal distribution, abundance, habitat, or 
population structure and ecology, or habitat suitability modeling to 
identify high-value habitat by reviewing and analyzing the published 
literature, survey data, and predictive models. The use of sonar in 
such habitat would be prohibited or subject to additional operational 
measures to ensure the greatest protection of animals in the area.
    Response: In January 2009, the Administrator of the National 
Oceanic and Atmospheric Administration committed, in a letter to the 
Council on Environmental Quality, to convene a panel to identify 
important marine mammal habitat, as described above. This process has 
begun. Once the results of that effort are available (anticipated in 
2011), NMFS will use them to inform decisions related to geographic 
mitigation requirements, both in upcoming rules, as well as in rules 
that have already been issued, through the adaptive management 
provision (described in the Adaptive Management section above).
    Comment 2: NRDC and several other commenters recommended that NMFS 
establish a protection area for northwest harbor porpoise populations 
landward of the 100-m isobath. Further, they recommended that NMFS 
establish an adjacent buffer zone to ensure that exposure levels do not 
exceed 120dB within the 100-m isobath. NMFS should ask the Navy to 
prepare a nominal propogation analysis for the coast to determine what 
stand-off distances are necessary to reduce exposures below the 120dB 
threshold. The NRDC further notes that the vast majority of the takes 
in the NWTRC are harbor porpoises.
    Response: The Navy conducts about 99 percent of their MFAS 
activities in the W-237 area, which extends out approximately 200 nm 
from the coast of the northern half of Washington state (see page 2-5 
of the Navy's NWTRC FEIS). Within the W-237, the 100-m isobath extends 
out from the coast approximately 40 nm at some points, and up to 80 nm 
in the northern portion near the Strait of Juan de Fuca. As noted above 
in the introduction to this section, the Navy has conducted, and plans 
to conduct, the majority of their in-transit MFAS activities beyond 50 
nm from shore, and has operated MFAS between 12 and 50 nm from shore 
infrequently in the past. As mentioned above, the PUTR (with which 
approximately 10 percent of the MFAS activities are associated) is 
designed to be used in depths of 300-1200 ft, so it is unlikely that it 
will be used within the 100-m isobath. Based on this general 
operational plan, there is only a relatively small area within the 100-
m isobath in which the Navy would potentially operate MFAS, and this is 
only a very small percentage of the entire W-237 area that is available 
and in which the Navy typically operates MFAS. In order to adequately 
train, however, the Navy needs to train within a wide range of 
bathymetric conditions, environmental conditions, and operational 
conditions (i.e., proximity to certain resources such as airfields), so 
it is unlikely that they would completely avoid the 100-m isobath.
    In short, based on their general operating plans, the overall size 
of the area available for training and the fact that they only plan to 
operate 108 hours of surface hull-mounted sonar total annually (but 
need to operate in a variety of conditions, including depths other than 
within the 100-m isobath), it is likely that only a relatively small 
subset of the 108 hours of MFAS will be operated within the 100-m 
isobath, but these hours are needed for operational flexibility.
    Regarding the establishment of an additional buffer to ensure that 
the area within the 100-m isobath is not ensonified above 120 dB, the 
Navy has done a propagation analysis and the distance at which sound 
from a surface hull-mounted sonar attenuates to 120 dB in the NWTRC is 
approximately 70 nm. A buffer of this nature would extend out 
approximately 110-150 nm from shore, rendering about 60-70 percent of 
the available MFAS training area inaccessible and reducing access to 
the vast majority of the bathymetric relief that is necessary for 
effective training. (NMFS notes that 120 dB is the minimum received 
level at which we have estimated that harbor porpoises may be taken by 
behavioral (Level B) harassment, and avoiding exposure above this level 
is akin to avoiding take completely, which would negate the need for an 
incidental take authorization.)
    Last, NRDC notes that the vast majority of the total takes in the 
NWTRC are of harbor porpoises. This is correct; of the approximately 
130,000 total annual authorized takes in the NWTRC, 119,000 are of 
harbor porpoises. This is because harbor porpoises are considered more 
sensitive to sound than many other marine mammals and any exposure 
above a received level of 120 dB is considered a take. However, of the 
total harbor porpoise takes, approximately 85 percent are anticipated 
to occur at a received level between 120 and 140 dB, from which we 
would expect a comparatively less severe response. Additionally, only 
approximately 0.5 percent of these takes

[[Page 69308]]

would result from exposures above a received level of 160 dB, which is 
still far below received levels associated with injurious takes. In 
short, there are more takes of harbor porpoises because they are more 
sensitive to sound. However, because we use a step function to define 
their predicted response, instead of a dose curve as we do for other 
marine mammal species, a large portion of the takes will likely consist 
of the minimum response that we would still consider a take.
    Comment 3: NRDC and several other commenters recommended that NMFS 
provide additional protection for marine mammals from the use of sonar 
within the OCNMS, by specifically prohibiting sonar usage in the OCNMS, 
or at a minimum, limiting the exercises taking place with the OCNMS by 
requiring final approval from the Pacific Fleet command, or using other 
means to minimize sonar use. In support of this recommendation, NRDC 
notes the seasonal use of the area by migrating gray whales, summer 
resident gray whales that use the area for feeding, and Southern 
Resident killer whales (SRKW) that use the area for part of the year.
    Response: The OCNMS is contained within the NWTRC and the 
delineation of the edge of the OCNMS essentially follows the 100-m 
isobath. The Navy will not deploy the PUTR within the OCNMS. Otherwise, 
please see NMFS' response to comment 2, above. Of additional note, 
because of the seasonal nature of the use of the area by some of the 
species that the commenters mention, those species' potential exposure 
to MFAS is likely an even smaller proportion of the total hours, as 
some of the hours of operation will occur in months that they are not 
present.
    Although the comment addressed here mentions only sonar training, 
it is worth noting that the Navy does not do any live bombing in the 
OCNMS waters (i.e., BOMBEX and SINKEXs are conducted outside the limits 
of the OCNMS). Additionally, in their DEIS, the Navy indicated their 
intent to create a small underwater minefield training range. Although 
they did not specify it in the DEIS, they have since clarified the fact 
that this small range will not be in OCNMS waters.
    Comment 4: NRDC and several other commenters recommended that NMFS 
identify the Greater Puget Sound as a protection area (except for 
activities occurring as part of the Keyport EIS) as a condition of the 
proposed rule. They further recommended that if Puget Sound is not 
designated as a protected area, NMFS should make the following 
clarifications in its final rule:
    [cir] That any use of MFA sonar for training or maintenance in the 
Greater Puget Sound would first require the Navy to obtain an 
incidental take permit given the potential for serious injury or 
mortality to marine mammals in the area;
    [cir] That the Navy has agreed to conduct neither sonar training 
nor maintenance activities in the Greater Puget Sound without MMPA 
authorization;
    [cir] That the Navy has internal checks, in addition to the MMPA 
requirement, on non-RDT&E sonar use in the Greater Puget Sound (e.g., 
requiring approval from Fleet Command).
    Response: The Navy's action does not include the use of MFAS for 
training or in-transit maintenance in the Greater Puget Sound area, so 
it is not necessary to designate the Greater Puget Sound area as a 
Protection Area. The Navy does not currently plan to use MFAS for 
training or in-transit maintenance in the Greater Puget Sound area, and 
they have committed to obtaining a separate LOA (which would require a 
new rulemaking) if they plan to conduct those activities in the Greater 
Puget Sound area.
    Additionally, the Navy has in place, and has since June 2003, an 
internal requirement wherein they must obtain permission from the 
Commander Pacific Fleet (CPF) before they may operate MFAS for 
training, maintenance or testing in Puget Sound. Since 2003, it has 
been CPF policy to not approve training, maintenance or testing use of 
sonar systems for vessels underway within Puget Sound. Pierside 
maintenance/testing of sonar systems within Puget Sound still requires 
CPF approval, and may be approved by CPF if it is not practical or 
feasible to conduct alternate maintenance/testing outside of Puget 
Sound. Since this requirement was put into place, every request to use 
MFAS underway for training, maintenance, or testing in Puget Sound has 
been denied, except on the Nanoose Range.
    Separately, pier-side maintenance was not included as part of the 
proposed action, either for the MMPA authorization, or in the Navy's 
EIS. Pierside maintenance and testing of sonars rarely involves 
emission of sound. Most often the source is out of the water and might 
emit only one or a few low amplitude pings. The Navy is currently 
compiling detailed information on all pierside testing activity 
nationwide and that information will be included in the next phase of 
environmental assessments in 2014. At this time the Navy does not 
anticipate that there will be any additional risk to marine mammals 
from pierside testing due to the infrequency of sound emissions and the 
relative rarity of marine mammals in the vicinity of these sites.
    Comment 5: NRDC and several other commenters recommended that NMFS 
establish a seasonal protection area in certain canyons and banks on 
the NWTRC that represent important foraging habitat, particularly for 
humpback whales. NRDC recommends seasonal protection areas for the 
``Prairie,'' Juan de Fuca Canyon, Swiftsure Bank, Barkley and Nitinat 
Canyons, and Heceta Bank, during the main humpback whale feeding season 
from June to October.
    Response: With respect to some of these specific areas, the 
Swiftsure Bank is well within 50 nm of shore, and as described above, 
it is unlikely that the Navy will utilize in-transit MFAS there. 
Additionally, Swiftsure Bank is within the 100-m isobaths, which is not 
where the PUTR is designed to be used, and partially within the OCNMS, 
where the PUTR will not be used. Heceta Bank is located off the shore 
of Oregon, and 99 percent of the Navy's MFAS use in the NWTRC is 
conducted within the W-237 area, which is located off the coast of 
Washington, so MFAS use is not likely to occur there. Additionally, the 
Prairie is an area that is less than 100 m deep, so the PUTR is not 
likely to be deployed there.
    The Navy plans to conduct approximately 108 hours of surface hull-
mounted MFAS use in the NWTRC annually. Allowing for the fact that it 
is not all planned in the months of June-October, and not all planned 
in any one of the specific areas noted in the comment, only a small 
number of hours of sonar is likely to occur in any of the specific 
areas recommended for protection by the commentors.
    Generally speaking, because of the small number of hours that the 
Navy may be conducting MFAS sonar training, the short duration of the 
exercises, the use of only one single hull-mounted sonar vessel, and 
the huge area over which training is conducted, the impracticability of 
designating additional protective areas identified by the commentors 
outweighs the likely benefits. It requires a considerable amount of 
planning, education, and subsequent attention by the Navy to establish 
and implement protective areas. Furthermore, the Navy only anticipates 
taking a small number of the species for which the protected areas 
would be established, by Level B Harassment (15 humpback whales, 14 
killer whales, and 4 gray whales), with the exception of harbor 
porpoises

[[Page 69309]]

(discussed in comment response 2). Considering the density of marine 
mammals and the likelihood of encountering them in any location during 
the course of a 1.5 hour period, we cannot predict with sufficient 
certainty that avoiding these areas would necessarily result in a 
decrease of takes.
    In addition, as mentioned previously, the Navy's NWTRC Monitoring 
Plan entails deploying long-term passive acoustic monitoring devices at 
two locations within the offshore NWTRC. One such Navy funded device 
has been in operation near Quinault Canyon since 2004. This will be 
supplemented with a second device which is currently forecast for 
deployment near the Juan de Fuca Canyon. Information from both passive 
acoustic devices will provide valuable scientific data on marine mammal 
vocalizations and anthropogenic sounds including commercial ship noise 
or transitory MFAS at these two locations. This analytical approach 
continues to be refined based on lessons learned from similar 
deployments and data review in Hawaii and Southern California. Summary 
data from these devices will be provided to NMFS and the public via 
annual Navy monitoring reports.
    Comment 6: The NRDC and several other commenters recommended that 
NMFS require avoidance of, or a reduction of training activity within, 
areas between 500 and 2,000 meters depth with unusual bottom topography 
(such as canyons), to provide additional protection to beaked whales.
    Response: The NRDC notes in their comments that there are no 
particular areas of known concentration for beaked whales in the NWTRC, 
but that most species appear to have a preference for areas of the 
lower continental slope. They may also be found in a wider range of 
conditions, from slopes to abyssal plain. First, NMFS may consider 
requiring a geographic limitation on an activity in a specific area of 
known concentration of particular species of animals, if the 
practicability analysis (which includes consideration of the nature of 
the activity, the likely benefits to the species, and the 
practicability of the measure) suggests that it will accomplish the 
least practicable adverse impact. However, we are less likely to 
recommend the avoidance of all of a type of area that an animal has a 
general preference for, especially in a case like this where the 
activity is comparatively limited, because it is unclear whether 
avoidance of all of the areas of this type will result in the reduction 
of impacts to the animals.
    More specifically, in the case of beaked whales, we are only 
authorizing the Level B take of 38 animals, so there is only a very 
limited potential benefit to making a huge tract of area unavailable 
for training. Further, as noted above, beaked whales may prefer a wider 
variety of areas than previously thought. In summary, only a portion of 
the already few hours of planned MFAS use will occur in this habitat, 
and it is impracticable to completely prohibit the Navy's access to 
this particular depth when they need to train in a wide variety of 
circumstances.
    Comment 7: The MMC recommended that the rule require suspension of 
the Navy's activities if a marine mammal is seriously injured or killed 
and the injury or death could be associated with those activities. The 
injury or death should be investigated to determine the cause, assess 
the full impact of the activity or activities and determine how 
activities should be modified to avoid future injuries or deaths.
    Response: NMFS' regulations 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 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).
    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. All but one of the small number of strandings that have 
occurred around the world associated with MFAS exercises have occurred 
concurrent to exercises that would be considered ``major'', which 
typically involve multiple surface vessels and last for a much longer 
duration than the non-major exercises that occur in the NWTRC (as 
described above in the Introduction to this section). Hence, 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, and therefore Stranding Response 
Plans were developed for all of the areas in which major exercises are 
conducted. Alternatively, for non-major exercises (including all of the 
exercises in the NWTRC), the general notification provisions apply, 
which means that the Navy would contact NMFS as soon as clearance 
procedures allow and we would determine how best to proceed at that 
time.
    Because 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; the exercises 
conducted in the NWTRC are of short duration and involve only one 
surface hull-mounted sonar; and investigations take a long time and are 
not always conclusive, it is not reasonable or practicable to require 
the Navy to shut down every time an injured or dead animal is found in 
the vicinity pending the results of an investigation that could take 
years to conduct.
    Comment 8: One commenter recommended that MFAS not be utilized off 
the coast of California from June through October to protect seasonal 
migration of blue and humpback whales.
    Response: The Navy plans to conduct 99 percent of their MFAS 
operation (which consists of 108 hours of surface hull-mounted sonar) 
within the W-237 area, which is located off the coast of Washington. 
This means that MFAS would be operated for only a few hours annually 
off the coast of California, at most.
    Comment 9: One commenter recommended that the Navy avoid operating 
MFAS within 300 nm of the OCNMS.
    Response: A three hundred mile buffer around the OCNMS would 
entirely encompass the NWTRC, thereby preventing the Navy from 
conducting the proposed activity, which is not a practicable option 
under the MMPA.
    Comment 10: One commenter noted that there is no reference to the 
Navy going to the aid of stranded animals.
    Response: NMFS, as the agency with authority over marine mammal 
health and stranding, does not want Navy personnel or other untrained 
and unpermitted individuals going to the aid of stranded animals. 
Rather, as described in the response to comment 7, above, the Navy is 
required to notify NMFS if they encounter an injured, stranded, or dead 
animal, and NMFS will respond as appropriate.
    Comment 11: One commenter recommended that we correct the

[[Page 69310]]

statement ``Southern resident killer whales spend the majority of their 
time in the Inshore Area from May/June through October/November, 
although they do make multi-day trips to the outer coast,'' to say 
``mid-June through September.'' The commenter further recommended that 
the Navy's sonar activity be limited to the summer period and when 
SRKWs have been located well within the Inshore Area (e.g. greater than 
~30 nautical miles east of Cape Flattery for sonar activities lasting 
less than 6 hours) by the listening network (Salish Sea hydrophone 
network--https://orcasound.net) and/or sighting networks (The Whale 
Museum, whale watch operators, Orca Network, Center for Whale Research, 
etc.).
    Response: The months originally indicated are taken