Taking and Importing Marine Mammals; Military Training Activities Conducted Within the Gulf of Alaska Temporary Maritime Activities Area, 25480-25513 [2011-10440]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 86 (Wednesday, May 4, 2011)]
[Rules and Regulations]
[Pages 25480-25513]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10440]



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Vol. 76

Wednesday,

No. 86

May 4, 2011

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; Military Training Activities 
Conducted Within the Gulf of Alaska Temporary Maritime Activities Area; 
Final Rule

Federal Register / Vol. 76 , No. 86 / Wednesday, May 4, 2011 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 100817363-1137-02]
RIN 0648-BA14


Taking and Importing Marine Mammals; Military Training Activities 
Conducted Within the Gulf of Alaska Temporary Maritime Activities Area

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), issues 
regulations to govern the unintentional taking of marine mammals 
incidental to training activities conducted in the Gulf of Alaska (GoA) 
Temporary Maritime Activities Area (TMAA) for the period April 2011 
through April 2016. 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 May 4, 2011 through May 4, 2016.

ADDRESSES: A copy of the Navy's application (which contains a list of 
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, Brian D. Hopper, or 
Michelle Magliocca, Office of Protected Resources, NMFS, (301) 713-
2289.

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 
Tuesday, October 19, 2010 (75 FR 64508). 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) (Public Law 
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): ``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 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 March 2009, NMFS received an application from the Navy 
requesting authorization to take individuals of 20 species of marine 
mammals (15 cetaceans and 5 pinnipeds) incidental to upcoming training 
activities to be conducted from April 2011 through April 2016 in the 
GoA TMAA, which is a 42,146 square nautical mile (nm\2\) (145,482 
km\2\) polygon roughly the shape of a 300 nm (555.6 km) by 150 nm 
(277.8 km) rectangle oriented northwest to southeast in the long 
direction. NMFS subsequently requested additional information, which 
was provided in November 2009 in the form of a revised application. 
These training activities are classified as military readiness 
activities under the provisions of the NDAA of 2004. These military 
readiness activities may incidentally take marine mammals within the 
TMAA 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 20 species of cetaceans and 
pinnipeds by Level B Harassment. Further, although it is neither 
anticipated to occur, nor does the Navy's model factor in any potential 
benefits from the implementation of mitigation measures, the Navy still 
requested authorization to take, by injury or mortality, up to 15 
individual beaked whales (of any of the following species as a 
conservative (i.e., overestimation) measure: Baird's beaked whale, 
Cuvier's beaked whale, Stejneger's beaked whale) 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 (75 FR 64508). The Navy plans to 
conduct up to two, 21-day training exercises (composed of smaller 
exercise components) per year between the months of April and October 
in the Gulf of Alaska.

Overview of the GoA TMAA

    The proposed rule contains a description of the GoA TMAA. The 
description contained in the proposed rule has not changed (75 FR 
64508). The GoA TMAA is a roughly rectangular area approximately 300 nm 
(555.6 km)

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long by 150 nm (277.8 km) wide (42,146 nm\2\ (145,482 km\2\)), situated 
south of Prince William Sound and east of Kodiak Island.

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) exercises and anti-surface 
warfare (ASUW) 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 (75 FR 64508, 
pages 64509-64518). The narrative description of the action contained 
in the proposed rule has not changed. 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. One acoustic source mentioned in the text of the proposed rule, 
the MK-39 EMATT target, was not included in Table 1 in the proposed 
rule due to an oversight. It has been added to Table 1 in this final 
rule. Also, Table 1 in the proposed rule contained an error in the 
number of AN/SSQ-110A (IEER) sonobuoys. The Navy proposes to use 80 of 
these sonobuoys annually, which has been corrected in Table 1 in this 
final rule.
    The Navy has carefully characterized the training activities 
planned for the GoA TMAA over the 5 years covered by these regulations; 
however, evolving real-world needs necessitate flexibility in both the 
types and amounts of sound sources used in annual activities. In the 
proposed rule, NMFS included regulatory text (see Sec.  218.122(c)) 
allowing for inter-annual flexibility in the amount of use of specific 
sound and explosive sources, provided it does not affect the take 
estimates and anticipated impacts in a manner that changes our 
analysis. However, additional minor changes to the text are needed to 
address flexibility in the types of sources.
    In some cases, the proposed rule identified the most representative 
or highest power source to represent a group of known similar sources. 
Additionally, the Navy regularly modifies or develops new technology, 
often in the way of sound sources that are similar to, but not exactly 
the same as, other sources. In this refinement to the final rule's 
regulatory text (Sec.  218.120 (c)(1) & (2)), we increase flexibility 
by inserting language that will allow for authorization of take 
incidental to the previously identified specified sources or to 
``similar sources,'' provided that the implementation of these changes 
in annual or biennial LOAs does not result in exceeding the incidental 
take analyzed and identified in the final rule.
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Description of Marine Mammals in the Area of the Specified Activities

    Twenty-six marine mammal species or populations/stocks have 
confirmed or possible occurrence within or adjacent to the GoA, 
including seven species of baleen whales (mysticetes), 13 species of 
toothed whales (odontocetes), five species of seals (pinnipeds), and 
the sea otter (mustelid). Nine of these species are ESA-listed and 
considered depleted under the MMPA: blue whale, fin whale, humpback 
whale, sei whale, sperm whale, North Pacific right whale, Cook Inlet 
beluga whale, Steller sea lion, and sea otter. Table 4 summarizes their 
abundance, Endangered Species Act (ESA) status, occurrence, density, 
and likely occurrence in the TMAA during the April to October 
timeframe. The sea otter 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 (Cook Inlet beluga whale, false 
killer whale, northern right whale dolphin, Risso's dolphin, and short-
finned pilot whale) that are not considered further in the analysis 
because of their rarity in the GoA TMAA and therefore are unlikely to 
be impacted by the training. The proposed rule contains a discussion of 
important areas, including North Pacific right whale and Steller sea 
lion critical habitat, and feeding habitats for marine mammals in the 
GoA. The proposed rule also includes a discussion of marine mammal 
vocalizations. Finally, the proposed rule includes a discussion of the 
methods used to estimate marine mammal density in the GoA TMAA. The 
Description of Marine Mammals in the Area of Specified Activities 
section has not changed from what was in the proposed rule (75 FR 
64508, pages 64518-64524).
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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 (75 FR 64508, pages 64524-64526). 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 Level 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; 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

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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 
(75 FR 64508, pages 64526-64542). 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) (75 FR 64508, pages 64535-
64542). The information contained in the 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 detonations 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 GoA TMAA application are 
considered military readiness activities.
    NMFS reviewed the proposed GoA TMAA activities and the proposed GoA 
TMAA 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. This included a careful balancing of the likely 
benefit of any particular measure to the marine mammals against the 
likely effect of that measure on personnel safety, practicality of 
implementation, and impact on the effectiveness of the ``military-
readiness activity.'' NMFS identified the need to further amplify the 
Navy's plan for how to respond in the event of a stranding in the GoA, 
and the Navy and NMFS subsequently coordinated and produced the draft 
Stranding Response Plan for the GoA, which was made available to the 
public at the NMFS' Web site: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    NMFS' proposed rule includes a list of the Navy's proposed 
mitigation measures (75 FR 64508, pages 64542-64548), which have been 
included in the regulatory text of this document.
    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 component, see below) provide adequate means of effecting 
the least practicable adverse impact 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 (75 FR 64508, pages 64546-64548). 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 Comments 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 Fiscal Year 08 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
     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 Assessment. 
Furthermore, research cruises by NMFS and by academic institutions have 
received funding from the U.S. Navy. For example, in April 2009, the 
U.S. Pacific Fleet contributed approximately $250,000 to support a NMFS 
marine mammal density survey of the GoA's offshore waters. The goal of 
this study was to increase the state of awareness on marine mammal 
occurrence, density, and distribution within the GoA. The Navy-funded 
vessel-based line-transect survey conducted from onboard the NOAA ship 
Oscar Dyson determined marine mammal species distribution and abundance 
in the GoA TMAA. The survey cruise employed multiple observation 
techniques, including visual and passive acoustic observations, as well 
as photographic identifications (Rone et al., 2009). In addition to the 
U.S. Pacific Fleet-funded monitoring initiative, the Chief of Naval 
Operations Environmental Readiness Division and the Office of Naval 
Research have developed a coordinated Science & Technology and Research 
& Development program focused on

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marine mammals and sound. Total Investment in this program between 2004 
and 2008 was $100 million. Fiscal Year 09 funding was $22 million and 
continued funding at levels greater than $14 million is foreseen in 
subsequent years (beyond 2010).
    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 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.

Monitoring

    Section 101(a)(5)(A) of the MMPA states that, in order to issue an 
ITA for an activity, 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 GoA TMAA

    The Navy submitted a draft Monitoring Plan for the GoA TMAA which 
may be viewed at NMFS' Web site: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Navy Monitoring Plans are typically designed as a collection of 
focused ``studies'' to gather data that will allow the Navy to address 
one or more of the following questions:
    (a) Are marine mammals exposed to MFAS/HFAS (1-10 kHz), especially 
at levels associated with adverse effects (i.e., based on NMFS' 
criteria for behavioral harassment, TTS, or PTS)? If so, at what levels 
are they exposed?
    (b) If marine mammals are exposed to MFAS/HFAS, 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 and 
explosives (e.g., Protective Measures Assessment Protocol, major 
exercise measures agreed to by the Navy through permitting) effective 
at avoiding TTS, injury, and mortality of marine mammals?
    Given the larger scope of training events within other Navy range 
complexes as compared to the GoA, not all of these original five study 
questions would necessarily be addressed in the final GoA TMAA 
Monitoring Plan. Rather, data collected from the GoA monitoring efforts 
would be used to supplement a consolidated range complex marine mammal 
monitoring report incorporating data from the Hawaii Range Complex, 
Marianas Island Range Complex, Northwest Training Range Complex, and 
Southern California Range Complex.
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists who are experts in their field.
    Monitoring methods proposed for the GoA include use of passive 
acoustic monitoring (PAM) to primarily focus on providing additional 
data for study questions (b) and (c).
    This monitoring plan has been designed to gather data on all 
species of marine mammals that are observed in the GoA TMAA study area; 
however, the Navy will prioritize monitoring efforts for ESA-listed 
species and beaked whale species. The Plan recognizes that deep-diving 
and cryptic species of marine mammals, such as beaked whales and sperm 
whales, may have low probability of visual detection (Barlow and 
Gisiner, 2006). Therefore, methods will be utilized to address this 
issue (e.g., PAM).
    During the comment period on the Notice of Receipt (75 FR 5575, 
February 3, 2010) for the GoA TMAA action, NMFS received multiple 
public comments suggesting that there are inadequate density, 
distribution, and abundance data for marine mammals in the GoA TMAA. As 
mentioned previously, the Navy funded a $250,000 density survey in the 
offshore waters of the GoA TMAA in April, 2009. The Navy developed its 
draft monitoring plan for the GoA TMAA was developed to contribute 
scientific information to the overall NMFS-Navy monitoring goals. It 
selected year-round PAM recorders as the most appropriate long-term 
tool for obtaining more precise marine mammal occurrence data 
(presence/absence) in the GoA TMAA, especially in the offshore waters 
where weather and sea conditions would likely limit the usefulness of 
visual surveys. At other Navy range complexes, results from similar PAM 
recordings have begun to provide better information on species-specific 
occurrence and behavior.
    NMFS believes that we should vigorously target this baseline 
information need with the monitoring plan and, in consideration of the 
public comments that we received on the proposed rule (75 FR 64508, 
October 19, 2010), we worked with the Navy on revising the plan. The 
revised monitoring plan now includes a commitment by the Navy to deploy 
PAM devices in 2011 and 2012 in the GoA TMAA to detect, locate, and 
potentially track vocalizing marine mammals, as well as provide 
seasonal estimates of presence/absence. These devices will be deployed 
year-round, including during Navy training events. Given the potential 
seas states and ocean conditions during both winter and summer, and the 
relatively infrequent Navy presence in the GoA TMAA, PAM represents the 
best long-term monitoring technique to employ within the GoA TMAA. In 
addition to collecting marine mammal vocalization and echolocation data 
before, during, and after any Navy training event, information can be 
inferred as to whether the training event has an effect or no effect on 
observed vocalizations. In 2013 and 2014, the Navy plans to conduct 
further monitoring using either PAM or another survey method. An 
alternate survey technique would ideally be part of a larger focused 
effort during the same time period in coordination with other agencies 
or research organizations working in the area. While the exact extent 
and

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technique to be employed is still undetermined (e.g., including but not 
limited to visual survey), monitoring in 2013 and 2014 is expected to 
receive the same level of fiscal and logistical support as the 2011-
2012 efforts.
    In addition to the Monitoring Plan for the GoA, the Navy has 
established an Integrated Comprehensive Monitoring Program (ICMP). The 
ICMP is a Navy-wide monitoring framework that will provide an 
overarching structure and coordination that will, over time, compile 
data from all Navy range-specific monitoring plans; the GoA TMAA plan 
is just one component of the ICMP. The overall objective of the ICMP is 
to assimilate relevant data collected across Navy range complexes in 
order to answer questions pertaining to the impact of MFAS and 
underwater explosive detonations on marine animals. Top priorities of 
the ICMP include: monitoring Navy training events, particularly those 
involving MFAS and underwater detonations; collecting data to estimate 
the number of individuals exposed to sound levels above current 
regulatory thresholds; assessing the efficacy and practicability of 
monitoring and mitigation tools and techniques and the Navy's current 
mitigation methods; and adding to the overall knowledge base on 
potential behavioral and physiological effects to marine species from 
MFAS and underwater detonations. More information about the ICMP may be 
found in the Monitoring Plan for the GoA.

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 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, NMFS and 
the Navy will apply modifications to monitoring plans as appropriate.

Adaptive Management

    Our understanding of the effects of MFAS 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 Pacific Ocean or within 
the GoA TMAA). NMFS has included an adaptive management component in 
these regulations, which will allow NMFS to consider new information 
from different sources to determine (in coordination with the Navy and 
with input regarding practicability) on an annual or biennial basis if 
mitigation or monitoring measures should be modified (including 
additions or deletions) if new data suggest that such modifications are 
appropriate for subsequent annual or biennial LOAs.
    The following are some of the possible sources of applicable data: 
(1) 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; (2) compiled results of Navy funded 
research and development (R&D) studies (presented pursuant to the ICMP, 
which is discussed elsewhere in this document); (3) results from 
specific stranding investigations (involving coincident MFAS or 
explosives training or not involving coincident use); (4) results from 
general marine mammal and sound research; and (5) any information which 
reveals that marine mammals may have been taken in a manner, extent or 
number not authorized by these regulations or subsequent Letters of 
Authorization.
    Separately, in July, 2010, NMFS and the Navy convened the ``Marine 
Mammals and Sound'' workshop, which brought together science and policy 
experts from the government, the academic community, and non-
governmental organizations with the goals of prioritizing marine mammal 
research needs and opening up a broad discussion of (and potentially 
making recommendations regarding) some of the current management issues 
related to marine mammals and sound. After the information and ideas 
gathered during this workshop are sorted, compiled, and assessed, NMFS 
will use them, as appropriate, to inform our management decisions on 
issues such as appropriate mitigation and monitoring. In addition to 
considering these workshop products in the broader context of all MMPA 
authorizations from the Office of Protected Resources, they will also 
be considered as NMFS and the Navy work through the Adaptive Management 
process outlined for the GOA below.
    Mitigation measures or monitoring requirements could be modified, 
added, or deleted if new information suggests that such modifications 
would have a reasonable likelihood of accomplishing the goals of 
mitigation or monitoring laid out in this final rule and if the 
measures are practicable.

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 (75 FR 64508, pages 64550-64552), 
and these requirements remain unchanged.

Comments and Responses

    On October 19, 2010 (75 FR 64508), NMFS published a proposed rule 
in response to the Navy's request to take marine mammals incidental to 
military readiness training in the GoA TMAA and solicited comments, 
information, and suggestions concerning the proposed rule. NMFS 
received twelve comment letters from environmental non-governmental 
organizations, the Marine Mammal Commission (MMC), and interested 
members of the public. The comments are summarized, sorted into general 
topic areas, and addressed below. Full copies of the comment letters 
may be accessed at https://www.regulations.gov.
    NMFS worked with the Navy to develop MMPA rules and LOAs for the 
GoA TMAA, Atlantic Fleet Active Sonar Training (AFAST) activities, 
Southern California Range Complex (SOCAL), Hawaii Range Complex (HRC), 
Mariana Islands Range Complex (MIRC), and Northwest Training Range 
Complex (NWTRC). Many of the issues raised in the public comments for 
this rule were also raised for these previous rules, and NMFS 
considered many of the broader issues in the context of all of these 
Navy actions when determining how to address the comments on the GoA 
TMAA. Responses to public comments on AFAST, SOCAL, and HRC were

[[Page 25490]]

published in January 2009, and responses to public comments on MIRC and 
NWTRC were published in August and November 2010, respectively. These 
final rules and their responses to public comments may provide the 
public with additional detail, if needed.

Additional Mitigation Recommendations

    Comment 1: One commenter suggests that aerial surveys before 
SINKEXs (75 FR 64508, p. 64546) should be mandatory, especially when 
the Beaufort Sea State is above 3.
    Response: As stated in the proposed rule, in the event of a 
Beaufort Sea State 4 or above, survey efforts shall be increased within 
the 2 nm (3.7 km) zone around the target. This shall be accomplished 
through the use of an additional aircraft, if available, and conducting 
tight search patterns. The exercise shall not be conducted unless the 2 
nm (3.7 km) zone around the target could be adequately monitored 
visually.
    Comment 2: One commenter suggests that over-flights should be 
required for spotting marine mammals before detonation exercises (75 FR 
64508, p. 64552) because the typical sea state in GoA is usually 
greater than 1.
    Response: As stated in the proposed rule, a series of surveillance 
over-flights shall be conducted within the exclusion and the safety 
zones, prior to and during exercises, when feasible.
    Comment 3: One commenter asked whether the training could be done 
during times of the year that would result in the minimal impact to all 
species. Another commenter asked whether there is another location that 
could be used for at least part of the training, where fewer animals 
would be impacted.
    Response: While several species of baleen whales have periods of 
increased prevalence within the TMAA, these times do not always 
overlap; hence, it is not possible for the Navy to avoid every species 
of marine mammal. Furthermore, most species are more prevalent during 
summer months, which is when the Navy needs to do their exercises. 
Training during the winter months is not an option due to human safety 
concerns. Certain specific types of seasonal and geographic 
restrictions or limitations are impracticable for the Navy's activities 
in the TMAA.
    In response to the second part of the comment, the TMAA was chosen 
very carefully in order to meet the Navy's training requirements and 
allow for the safe operation of ships, aircraft, and submarines. Moving 
the training activities to alternative locations would impact the 
effectiveness of the training and has no known benefit. Moreover, 
satisfying this request is beyond NMFS' authority under current laws. 
Furthermore, the existing marine mammal density and distribution 
information does not suggest that there are specific areas within the 
GoA where training would result in fewer impacts to marine mammals.
    Comment 4: One commenter asked if the military could develop and 
substitute computer-simulated training for at least part or most of the 
training.
    Response: As explained in the Navy's EIS, the Navy often employs 
simulators and synthetic training, but live training in a realistic 
environment is vital to success. The Navy relies on realistic combat-
like training to prepare men and women for deployment. Moreover, a 
simulator cannot match the dynamic nature of the environment, either in 
bathymetry, sound propagation properties, or oceanography. In addition, 
coordinated unit level and Strike Group Training activities require 
multiple crews to interact in a variety of acoustic environments that 
cannot be simulated. Finally, it is a training imperative that crews 
actually use the equipment they will be called upon to operate. For 
more information on the simulated training option please refer to the 
Alternatives Eliminated from Further Consideration section of the 
Navy's EIS.
    Comment 5: One commenter refers to the Navy's claims that it does 
not anticipate beaked whale mortality, yet requests Level A take, and 
states that this is not acceptable; beaked whales require additional 
mitigation and protection from Navy sonar.
    Response: As stated in the proposed rule, evidence from five beaked 
whale strandings (all of which have taken place outside the GoA TMAA, 
and have occurred over approximately a decade) suggests that the 
exposure of beaked whales to MFAS in the presence of certain conditions 
(e.g., multiple units using active sonar, steep bathymetry, constricted 
channels, strong surface ducts, etc.) may result in strandings, 
potentially leading to mortality. Although not all five of these 
physical factors believed to have contributed to the likelihood of 
beaked whale strandings are present, in their aggregate, in the GoA 
TMAA, scientific uncertainty exists regarding what other factors, or 
combination of factors, may contribute to beaked whale strandings. 
Accordingly, to allow for scientific uncertainty regarding contributing 
causes of beaked whale strandings and the exact behavioral or 
physiological mechanisms that can lead to the stranding and/or death, 
the Navy has requested authorization for (and NMFS is authorizing) take 
by injury or mortality. Although NMFS is authorizing take by injury or 
mortality of up to 15 beaked whales over the course of the 5-year 
regulations, the Navy's model did not predict injurious takes of beaked 
whales and neither NMFS nor the Navy anticipates that marine mammal 
strandings or mortality will result from the operation of MFAS during 
Navy exercises within the GoA TMAA. NMFS determined that the impact to 
beaked whales from the Navy's activities 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 and, 
therefore, concluded that the activity would have a negligible impact 
for these species.
    Comment 6: One commenter refers to NMFS' mention of the ENP Alaskan 
resident stock and ENP Alaskan transient stock (75 FR 64508, p. 64571) 
of killer whales and asks if this is the depleted Prince William Sound 
stock. If so, according to the commenter, they require special 
consideration.
    Response: The ENP Alaska resident stock includes the Prince William 
Sound pod; however, this stock of killer whales is not listed as 
``depleted'' under the MMPA. In the Gulf of Alaska, Malkin et al. 
(1999) described two genetically distinct communities of transient 
killer whales that do not interact, the so-called Gulf of Alaska 
transients and the AT1 transients. In 2004, the AT1 transient killer 
whale group was determined by NMFS to be depleted under the MMPA. 
Individuals from this stock may be present in the TMAA; however, the 
Navy's activities are not expected to occur in an area/time of specific 
importance for reproduction, feeding, or other known critical 
behaviors. Furthermore, these large-grouped gregarious animals are very 
likely to be detected by Marine Mammal Observers (MMOs) and Navy 
Lookouts. As stated in the proposed rule, NMFS has determined that the 
Navy's specified activities will have a negligible impact on this 
species.
    Comment 7: The MMC recommends that the rule require the 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.

[[Page 25491]]

    Response: NMFS and the Navy have developed a detailed Stranding 
Response Plan for the GoA TMAA 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 an exercise. In addition, NMFS' 
regulations include a provision for ``General notification of injured 
or dead marine mammals,'' that requires Navy personnel to notify NMFS 
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 identifications or descriptions of 
the animal(s), the conditions 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 animal(s) (if 
available).
    It can take months to years to complete the necessary tests and 
analysis 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 with MFAS exercises that would have been considered 
``major,'' which typically involve multiple surface vessels and last 
for a much longer duration than non-major exercises. Therefore, 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 Stranding Response 
Plans were developed for all of the areas in which major exercises are 
conducted. Alternatively, for non-major exercises, the general 
notification provisions apply, under which the Navy would contact NMFS 
as soon as clearance procedures allow and we would determine how best 
to proceed at that time.
    Because: (1) 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; (2) the 
exercises conducted in the GoA TMAA are of short duration and 
seasonally limited (i.e., no more than two 21-day exercises, which may 
only be conducted between the months of April and October); and (3) 
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.
    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 of any stranding or death occurring 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 will develop 
and finalize a Memorandum of Agreement that will streamline and improve 
the way that the Navy assists NMFS during a stranding investigation. 
Finally, the Stranding Response Plan includes a provision for stranding 
debriefs/lessons learned meetings between NMFS and the Navy following a 
stranding response, and the GoA TMAA 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 8: One commenter states that NMFS' assertion regarding blue 
whales most likely feeding during the summer months should lead to NMFS 
prohibiting Navy activities during this time.
    Response: NMFS stated that, ``like most baleen whales, blue whales 
would most likely feed in the north during summer months (potentially 
the GoA) and head southward in the cooler months.'' However, the GoA 
TMAA activities are not expected to occur in an area/time of specific 
importance for breeding, calving, or other known critical behaviors of 
blue whales. Currently, there are no known specific feeding grounds for 
blue whales within the TMAA. Furthermore, the blue whales' large size 
and detectability makes it unlikely that these animals would be exposed 
to the higher levels of sound expected to result in more severe 
effects. Moreover, training during other times of the year is not an 
option due to human safety concerns.
    Comment 9: One commenter requests that NMFS protect feeding grounds 
for humpback whales and migratory routes for gray whales. In addition, 
this commenter and another commenter request that NMFS protect (e.g., 
prohibit MFAS within) high bathymetric relief areas for beaked whales.
    Response: In the proposed rule, NMFS stated that most baleen 
whales, including humpback and gray whales, would most likely feed in 
the north during summer months, potentially the GoA, and head southward 
in the cooler months. However, the GoA TMAA activities are not expected 
to occur in an area/time of specific importance for breeding, calving, 
or other known critical behaviors. Currently, there are no known 
specific feeding grounds for humpback or gray whales within the TMAA. 
Furthermore, their large size and detectability makes it unlikely that 
these animals would be exposed to the higher levels of sound expected 
to result in more severe effects.
    As indicated in the Navy's EIS and referenced in the proposed rule, 
gray whales have a well-defined north-south migratory path that takes 
them through the GoA twice a year. During migration through the GoA, 
gray whales' primary occurrence extends seaward 15 nm (28 km) from the 
shoreline within a narrow margin of the TMAA's northern boundary. The 
April 2009 survey encountered one group of two gray whales within the 
western edge of the TMAA and two groups well outside the TMAA nearshore 
at Kodiak Island (Rone et al., 2009). The potential impacts to gray 
whales from Navy training activities are specifically discussed in the 
Potential Effects of Specified Activities on Marine Mammals section of 
the proposed rule. Given the transient nature of gray whales during 
migration through the GoA, and in light of the Navy's mitigation 
measures, although some gray whales may be behaviorally disturbed, more 
severe responses are not anticipated and NMFS determined that the take 
will have a negligible impact on the stock.
    With respect to high bathymetric relief areas and beaked whales, 
the Navy's training exercises are spread throughout the GoA TMAA (as 
opposed to being focused in an area of known particular importance). 
Furthermore, the Navy's activities in the GoA are only occurring for a 
21-day period once or twice a year.
    Comment 10: One commenter states that NMFS must ensure that SINKEXs 
do not occur in or near critical habitat or breeding/feeding grounds.
    Response: NMFS agrees that protecting important habitat (e.g.,

[[Page 25492]]

critical habitat or areas known for displays of important behaviors 
such as breeding and feeding) can be an effective way to minimize 
impacts to marine mammals; however, SINKEXs will not occur in or near 
critical habitat because designated critical habitats for Steller sea 
lions and North Pacific right whales are outside of the GoA TMAA. 
Furthermore, the commenter has neither suggested particular areas used 
by marine mammals for breeding/feeding nor presented any additional 
evidence that NMFS could consider in identifying such areas within the 
GoA TMAA. Pursuant to the MMPA, NMFS makes mitigation decisions based 
on the biological information pertaining to the potential impacts of an 
activity on marine mammals and their habitat (and the practicability of 
the measure). SINKEXs, in general, require the most comprehensive suite 
of mitigation measures relative to other Navy training exercises and 
the permit issued to the Navy under the Marine Protection, Research and 
Sanctuaries Act requires vessels to be sunk in waters that are at least 
6,000 ft (1,829 m) deep and at least 50 nm (92.6 km) from land. In 
addition, the Navy has agreed not to conduct SINKEXs within Habitat 
Areas of Particular Concern (HAPCs) established in the GoA. NMFS 
believes that the permit conditions and avoidance of HAPCs, in 
conjunction with the Navy's SINKEX mitigation plan, set forth a means 
for effecting the least practicable adverse impact. The rationale 
behind this finding was discussed in the Mitigation Conclusion section 
of the proposed rule (75 FR 64508, pages 64546-64548).
    Comment 11: One commenter states that, with respect to North 
Pacific right whales, the Navy must take all possible precautions, 
including a larger buffer zone around the critical habitat area that 
extends inside the TMAA, and ceasing all activity when whales are 
present. Another similar comment states that NMFS should require 
sufficient buffers between critical habitat and the TMAA. Another 
commenter claims NMFS' proposal to allow Level B takes of North Pacific 
right whales (75 FR 64508, p. 64568), is unacceptable due to their 
critically endangered status.
    Response: NMFS believes that the location of the TMAA relative to 
designated critical habitats is sufficient to avoid diminishing their 
conservation value to species. For example, the nearest boundary of the 
Pacific right whale critical habitat is approximately 16 nm (30 km) 
west of the southwest corner of the TMAA. NMFS believes that this 
distance, coupled with the fact that most exercises will take place 
away from the boundaries of the TMAA, provide an adequate buffer around 
North Pacific right whale critical habitat. In addition, current 
regulations (50 CFR 224.103(c)) require ships to maneuver to maintain 
at least 500 yards (460 m) of separation from any observed right whale 
(consistent with safety of ship). The Navy's model predicted that 
approximately 10 takes of North Pacific right whales would occur within 
the GoA TMAA over the course of five years (and no takes by injury or 
mortality). NMFS believes that by implementing specific mitigation 
measures the Navy has minimized, to the extent practicable, the impacts 
to North Pacific right whales and their critical habitat.
    In addition, the TMAA is located offshore of the main habitat and 
foraging grounds for Steller sea lions. While the Steller sea lions' 
range runs adjacent to the TMAA, their foraging habitat consists 
primarily of shallow, nearshore areas, and continental shelf waters 8 
to 24 km (4.3 to 13 nm) offshore, which are inshore of the TMAA 
boundaries. There is no critical habitat for Steller sea lions within 
the TMAA boundaries. The area designated as critical habitat was based 
on land use patterns, the extent of foraging trips, and the 
availability of prey items, with particular importance given to the 
haul out areas where Stellers rest, pup, nurse, mate, and molt.
    With respect to the additional comment regarding takes of North 
Pacific right whales, as noted in the proposed rule, only Level B takes 
in the form of behavioral disturbances are anticipated. No TTS takes 
are estimated because the North Pacific right whales' large size and 
detectability makes it unlikely that these animals would be exposed to 
the higher levels of sound expected to result in more severe effects.

Mitigation Effectiveness

    Comment 12: According to one commenter, NMFS states that bow riding 
dolphins will not be affected because they are outside the main beam of 
the sonar (75 FR 64508, p. 64547). The commenter then asks about the 
assumption that marine mammals will not approach ships, and whether the 
Navy is supposed to cease MFAS when marine mammals are within 1,000 
yds.
    Response: Dolphins are known to deliberately close in on a ship to 
ride the vessel's bow wave. While in the shallow-wave area of the 
vessel bow, dolphins are out of the main transmission axis of the 
active sonar. As stated in the proposed rule, if after conducting an 
initial maneuver to avoid close quarters with dolphins or porpoises, 
the Officer of the Deck (OOD) concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    Comment 13: One commenter claims that NMFS fails to describe Navy's 
``suite of mitigation measures'' (75 FR 64508, p. 64549).
    Response: NMFS discussed the proposed mitigation measures in detail 
within the proposed rule (75 FR 64542, October 19, 2010). To briefly 
reiterate, they include personnel training, specific operating 
procedures and collision avoidance, shutdowns, buffer zones, and 
Lookouts. This information is also explicitly described in the 
regulatory text of the final rule.
    Comment 14: One commenter asserts that safety zones (1,000 yard 
power-down and 200 yard shut down) around sonar domes are an inadequate 
and ineffective mitigation measure. Similarly, another commenter 
recommended that the 1,000 yard safety zone should be increased to 
2,000 yards.
    Response: The commenter provides no justification for increasing 
the buffer zone to 2,000 yards. The Navy's powerdown and shutdown 
strategy (i.e., the specific distances) is intended to avoid exposure 
of marine mammals to injurious levels of sound (which is thought to 
occur at about 10 m from the source), and to reduce exposing marine 
mammals (to varying degrees, depending on the species and environmental 
conditions) to higher levels of sound that might be associated with 
more severe behavioral responses. As the proposed rule discussed, while 
visual detection of marine mammals is not anticipated to be 100% 
effective, the 1,000 yard safety zone coincides with a Lookout's 
ability to realistically maintain situational awareness over a large 
area of the ocean; including the ability to detect marine mammals 
during less than ideal sea state conditions. The Mitigation Conclusion 
section of the proposed rule describes NMFS' least practicable adverse 
impact analysis (75 FR 64508, pages 64546-64548).
    Comment 15: One commenter expressed concern over the unknown 
impacts of the way sound travels with respect to the large underwater 
canyons in the GoA and states that the Navy does not set forth adequate 
measures to mitigate harmful effects of sonar primarily with 
sensitivity to fin, right, minke, or killer whales.
    Response: In general, environmental parameters--such as 
bathymetry--play an important role in the Navy's analysis of marine 
mammal impacts, and due to the importance that propagation loss

[[Page 25493]]

plays in ASW exercises, the Navy has, over the last four to five 
decades, invested heavily in measuring and modeling environmental 
parameters. Within the GoA TMAA, the Navy has identified six 
bathymetric provinces ranging from 100 m to typical deep-water depths 
(slightly more than 5,000 m). To model how sound from a particular 
source travels through the water column, bathymetric features are 
combined with other environmental parameters, such as sound speed 
profiles and High-Frequency Bottom Loss classes to determine 
propagation loss, and, ultimately, the zone of influence of a 
particular sound source.
    The model used by the Navy to estimate marine mammal exposures to 
sonar, which also considers the density of each species in the area, 
did not predict any Level A exposures (PTS) on fin, North Pacific 
right, minke, or killer whales. With respect to mitigation measures, 
NMFS indicates that Level A Harassment (injury) and Temporary Threshold 
Shift (TTS) (one type of Level B Harassment) are unlikely to occur 
because of: The distance from the source within which an animal would 
need to approach to be exposed to levels associated with injury (~ 10 
m) or TTS (~178-335 m); the fact that Lookouts would detect animals at 
that close distance; the fact that the Navy model (which does not take 
mitigation or avoidance into consideration) predicted that 1 Dall's 
porpoise would be exposed to injurious levels of sound and 931 animals 
would be exposed to levels associated with TTS; and the fact that many 
(not all) animals will avoid sonar at some distance. Although modeling 
predicted that one animal would be exposed to levels of sound that 
would cause injury, Level A takes were not requested by the Navy (and 
NMFS is not authorizing Level A takes) because the implementation of 
mitigation and monitoring procedures will further minimize the 
potential for marine mammal exposures to sonar sources. Additionally, 
the Navy is capable of effectively monitoring a 1,000 m safety zone 
using a variety of techniques, including binoculars, night vision 
goggles, infrared cameras, and passive acoustic monitoring.
    Comment 16: One commenter claims that NMFS assumes marine mammals 
can easily move away during SINKEXs, but asserts that little to nothing 
is known about how marine mammals in the GoA will react to noise.
    Response: The commenter misrepresents this piece of text from the 
proposed rule. Up to two SINKEXs are planned annually for the GoA TMAA. 
These exercises are stationary and conducted in deep, open water where 
few marine mammals would typically be expected to be randomly 
encountered. NMFS does not solely rely on the animal's ability to 
detect the activity and avoid it as a mitigation measure during 
SINKEXs. In fact, SINKEXs have the most rigorous monitoring and 
shutdown protocol of any planned explosive exercise. For a complete 
list of these protocols, please refer to Sec.  218.124(a)(4).

Impact Assessment

    Comment 17: One commenter claims that NMFS refers to models, but 
does not provide a source (75 FR 64508, p. 64548).
    Response: NMFS refers to the model used by the Navy to estimate 
marine mammal takes in the GoA, which is described in detail in 
Appendix B of the LOA application and Appendix D of the EIS.
    Comment 18: One commenter claims that NMFS does not address the 
issue of greenhouse gases from overflights.
    Response: NMFS is not authorizing the Navy's activities; rather, we 
are analyzing and authorizing the take of marine mammals incidental to 
those activities. NMFS does not anticipate that greenhouse gas 
emissions from overflights will result in marine mammal take, and 
therefore, we do not address the issue any further. Please refer to 
section 3.1 of the EIS for a detailed discussion of potential impacts 
to air quality, including emissions from aircraft activities.
    Comment 19: One commenter claims NMFS states that the probability 
of marine mammals approaching the sonar dome is low (75 FR 64508, p. 
64547), but does not cite where that information is from and does not 
take into account deep-diving whales that may be present.
    Response: NMFS actually stated that the probability that a marine 
mammal would approach within the above distances of the sonar dome 
without being seen by the watchstanders is very low. The watchstanders' 
job is to look for marine mammals and activate a shutdown, should they 
approach within 200 yd (183 m).
    Comment 20: One commenter asserts that NMFS claims that animals 
exposed to MFAS would not receive enough exposure to drive bubble 
growth to substantial size (75 FR 64508, p. 64553), and asks what 
studies substantiate this assertion.
    Response: The proposed rule contained a detailed discussion of the 
many hypotheses involving both acoustically-mediated and behaviorally-
mediated bubble growth. NMFS concluded that there is not sufficient 
evidence to definitively say that any of these hypotheses accurately 
describe the exact mechanism that leads from sonar exposure to a 
stranding. Despite the many theories involving bubble formation (both 
as a direct cause of injury and an indirect cause of stranding), 
Southall et al. (2007) summarizes that scientific disagreement or 
complete lack of information exists regarding the following important 
points: (1) Received acoustical exposure conditions for animals 
involved in stranding events; (2) pathological interpretation of 
observed lesions in stranded marine mammals; (3) acoustic exposure 
conditions required to induce such physical trauma directly; (4) 
whether noise exposure may cause behavioral reactions (such as atypical 
diving behavior) that secondarily cause bubble formation and tissue 
damage; and (5) the extent to which the post mortem artifacts 
introduced by decomposition before sampling, handling, freezing, or 
necropsy procedures affect interpretation of observed lesions. Based on 
the best