Federal Register, Volume 73 Issue 199 (Tuesday, October 14, 2008)

[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Proposed Rules]
[Pages 60754-60833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23617]

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Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 216

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

Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 /
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 0080724897-8900-01]
RIN 0648-AW90

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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for
authorization to take marine mammals incidental to training activities
conducted off the U.S. Atlantic Coast and in the Gulf of Mexico for the
period of January 2009 through January 2014. Pursuant to the Marine
Mammal Protection Act (MMPA), NMFS is proposing regulations to govern
that take and requesting information, suggestions, and comments on
these proposed regulations.

DATES: Comments and information must be received no later than November
13, 2008.

ADDRESSES: You may submit comments, identified by 0648-AW90, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http://www.regulations.gov.
Hand delivery or mailing of paper, disk, or CD-ROM
comments should be addressed 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.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments Enter N/A in the required
fields, if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Availability

A copy of the Navy's application may be obtained by writing to the
address specified above (See ADDRESSES), telephoning the contact listed
above (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The Navy's
Draft Environmental Impact Statement (DEIS) for AFAST was published on
February 15, 2008, and may be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. NMFS is participating in the development of the
Navy's EIS as a cooperating agency under NEPA.

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

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

Summary of Request

On February 4, 2008, NMFS received an application from the Navy
requesting authorization for the take of individuals of 40 species of
marine mammals incidental to upcoming Navy training activities,
maintenance, and research, development, testing, and evaluation (RDT&E)
activities to be conducted within the AFAST Study Area, which extends
east from the Atlantic Coast of the U.S. to 45[deg] W. long. and south
from the Atlantic and Gulf of Mexico Coasts to approximately 23[deg] N.
lat., but not encompassing the Bahamas (see Figure 1-1 in the Navy's
Application), over the course of 5 years. These training activities are
classified as military readiness activities. The Navy states, and NMFS
concurs, that these training activities may incidentally take marine
mammals present within the AFAST Study Area by exposing them to sound
from mid-frequency or high frequency active sonar (MFAS/HFAS) or to
employment of the improved extended echo ranging (IEER) system. The
IEER consists of an explosive source sonobuoy (AN/SSQ-110A) and an air
deployable active receiver (ADAR) sonobuoy (AN/SSQ-101). The Navy
requests authorization to take individuals of 40 species of marine
mammals by Level B Harassment. Further, though they do not anticipate
it to occur, the Navy requests authorization to take, by injury or
mortality, up to 10 beaked whales over the course of the 5-yr
regulations.

Background of Navy Request

The purpose of the Navy's proposed action is to provide mid- and
high-frequency active sonar and IEER system training for U.S. Navy
Atlantic Fleet ship, submarine, and aircraft crews, as well as to
conduct RDT&E activities to support the requirements of the Fleet
Readiness Training Plan (FRTP) and stay proficient in anti-submarine
warfare (ASW) and mine warfare (MIW) skills. The FRTP is the Navy's
training cycle that requires naval forces to build up in preparation
for operational deployment and to maintain a high level of proficiency
and readiness while deployed. All phases of the FRTP training cycle are
needed to meet Title 10 requirements.

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The Navy's need for training and RDT&E is found in Title 10 of the
United States Code (U.S.C.), Section 5062 (10 U.S.C. 5062). Title 10
U.S.C. 5062 requires the Navy to be ``organized, trained, and equipped
primarily for prompt and sustained combat incident to operations at
sea.'' The current and emerging training and RDT&E activities addressed
in the AFAST Environmental Impact Statement (EIS)/Overseas
Environmental Impact Statement (OEIS) are conducted in fulfillment of
this legal requirement.
The RDT&E activities addressed in the AFAST EIS/OEIS are those
RDT&E activities that are substantially similar to training, involving
existing systems or systems with similar operating parameters.

Description of Specified Activities

Anti-Submarine Warfare (ASW) Training

The Navy explains that potential adversary nations are investing
heavily in submarine technology, including designs for nuclear attack
submarines, strategic ballistic missile submarines, and modern diesel
electric submarines. In addition, the modern diesel electric submarine
is the most cost-effective platform for the delivery of several types
of weapons, including torpedoes, long-range antiship cruise missiles,
land attack missiles, and a variety of antiship mines. Since submarines
are inherently covert and can operate independently of escort vessels,
submarines can be used to conduct intrusive operations in sensitive
areas and can be inserted early in the mission without being detected.
The inability to detect a hostile submarine before it can launch a
missile or a torpedo is a critical vulnerability that puts U.S. forces
and merchant mariners at risk and, ultimately, threatens U.S. national
security.
Because Navy personnel ultimately fight as trained, a training
environment that matches the conditions of actual combat is necessary.
Sailors must also train using the combat tools (e.g., active sonar)
that would be used during a conflict. A complicating factor facing the
Navy today is the nature of the littoral waters where submarines can
operate. These littoral regions are frequently confined, congested
water and air space, which makes identification of allies, adversaries,
and neutral parties more challenging than in deeper waters. Since an
adversary equipped with modern, quiet submarines has the potential to
deny all Department of Defense (DoD) forces access to strategic areas
of the world, the value of active sonar training has broad effects for
all DoD forces.

Mine Warfare (MIW) Training

The use of naval mines is one of the simplest ways for enemies to
damage ships and disrupt shipping lanes. Over the past 60 years, at
least 14 U.S. ships, including two in the last decade alone, have been
damaged or sunk by mines as a result of relatively small-scale mine
laying operations. Furthermore, since more than 90 percent of military
equipment used in international operations travels by sea, mines have
the potential to either delay land and sea military operations by
denying access to shallow-water areas, or prevent the delivery of
military equipment altogether.
Today, the Navy can expect to encounter a wide spectrum of naval
mines, from traditional, low technology mines, to technologically
advanced systems. For instance, mines can have irregular shapes, sound-
absorbent coatings, and nonmagnetic material composition, which
increase their resistance to countermeasures and reduce their
maintenance requirements. This means that mines can stay active in the
water longer, are harder to find and are more difficult to neutralize
(disarm with the use of countermeasures). More advanced mines are
designed with remote controls, improved sensors, and counter
countermeasures that further complicate efforts to identify, classify,
and neutralize them. In addition to improved mine technology, the
underwater acoustic conditions often present in shallow waters require
the use of specialized technology to successfully detect, avoid, and
neutralize mines (DON, 2006a).
Training on MIW sonar is crucial because mines are a proven and
cost-effective technology that is continually improving to make them
more lethal, reliable, and difficult to detect. Because mines do not
emit sound, active sonar technology, rather than passive, provides the
warfighter with the capability to quickly and accurately detect,
classify, and neutralize mines in small, crowded, shallow-water
environments. These MIW capabilities are essential to ensuring the
U.S.'s maritime dominance and protecting the Navy's ability to operate
on both land and sea, including delivery of military equipment.
As indicated above, the Navy has requested MMPA authorization to
take marine mammals incidental to training activities in the AFAST
Study Area that would generate sound in the water at or above levels
that NMFS has determined will likely result in take (see Acoustic Take
Criteria Section), either through the use of MFAS/HFAS or the
employment of the IEER system, which includes explosive sonobuoys.
Below we discuss the types of sound sources the Navy would utilize and
the specific exercise types they would use them in.

Acoustic Sources Used for ASW and MIW Exercises in AFAST

There are two types of sonars, passive and active:
Passive sonars only listen to incoming sounds and, since
they do not emit sound energy in the water, lack the potential to
acoustically affect the environment.
Active sonars generate and emit acoustic energy
specifically for the purpose of obtaining information concerning a
distant object from the received and processed reflected sound energy.
Modern sonar technology includes a multitude of sonar sensor and
processing systems. In concept, the simplest active sonars emit omni-
directional pulses (``pings'') and time the arrival of the reflected
echoes from the target object to determine range. More sophisticated
active sonar can emit an omni-directional ping and then rapidly scan a
steered receiving beam to provide directional, as well as range,
information. Even more advanced sonars transmit multiple preformed
beams and listen to echoes from several directions simultaneously to
provide efficient detection of both direction and range.
The tactical sonars to be deployed during testing and training in
the AFAST Study Area are designed to detect submarines and mines in
tactical training scenarios. These tasks require the use of the sonar
mid-frequency range (1 kilohertz [kHz] to 10 kHz) predominantly, as
well as a few sources in the high frequency range (above 10 kHz). For
this document we will refer to the collective high and mid-frequency
sonar sources as MFAS/HFAS. A narrative description of the types of
acoustic sources used in ASW and MIW training exercises is included
below. Table 1 (below) summarizes the nominal characteristics of the
acoustic sources used in the modeling to predict take of marine mammals
as well as the estimated annual operation time. Acoustic systems that
typically operate at frequencies above 200kHz were not analyzed because
they are outside the upper hearing limits of almost all marine mammals
and attenuate rapidly due to their extremely high frequencies.
In addition, systems that were found to have similar acoustic
output

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parameters (i.e., frequency, power, deflection angles) were compared.
The system with the largest acoustic footprint was modeled as
representative of those similar systems that have a smaller acoustic
footprint. An example of this representative modeling is the AN/AQS-22
for the AN/AQS-13.
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Surface Ship Sonars--A variety of surface ships operate the AN/SQS-
53 and AN/SQS-56 hull-mounted MFAS during ASW sonar training exercises,
currently including 10 guided missile cruisers (CG) (AN/SQS-53), 26
guided missile destroyers (DDG) (AN/SQS-53), and 18 fast frigates (FFG)
(AN/SQS 56) on the east coast.
About half of the U.S. Navy ships do not have any onboard tactical
sonar systems. Within the AFAST Study Area, these two types of hull-
mounted sonar sources account for the majority of the estimated impacts
to marine mammals. The AN/SQS-53 hull-mounted sonar, which has a
nominal source level of 235 decibels (dB) re 1 [mu]Pa and transmits at
a center frequency 3.5 kHz, is the Navy's most powerful sonar source
used in ASW exercises in the AFAST Study Area.
Hull-mounted sonars occasionally operate in a mode called
``Kingfisher'', which is designed to better detect smaller objects. The
Kingfisher mode uses the same source level and frequency as normal
search modes, however, it uses a different waveform (designed for small
objects), a shorter pulse length (< 1 sec), a higher pulse repetition
rate (due to the short ranges),

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and the ping is not omnidirectional, but directed forward.
Submarine Sonars--Tactical submarines (i.e., 29 nuclear powered
attack submarines (SSN) on the east coast) equipped with BQQ-5 or BQQ-
10 hull-mounted MFA sonars, are used to detect and target enemy
submarines and surface ships. A submarine's mission revolves around its
stealth; therefore, MFAS are used very infrequently since the pinging
of the MFAS also identifies the location of the submarine. Note that
the BQQ-10 is the more predominant system, and that the system is
identified throughout the remainder of this document with the
understanding that the BQQ-5 and BQQ-10 are similar in those
operational parameters with a potential to affect marine mammals. In
addition, Seawolf Class attack submarines, Virginia Class attack
submarines, Los Angeles Class attack submarines, and Ohio Class nuclear
guided missile submarines also have the AN/BQS-15, a sonar that uses
both mid- and high-frequency for under-ice navigation and mine-hunting.
Aircraft Sonar Systems--Aircraft sonar systems that would operate
in the AFAST Study Area include sonobuoys (AN/SSQ-62 and AN/SSQ-110A)
and dipping sonar (AN/AQS-13 or AN/AQS-22).
Sonobuoys, deployed by both helicopter and fixed-wing
Maritime Patrol aircraft (MPA), are expendable devices that are either
tonal (active), impulsive (explosive), or listening (passive). The Navy
uses a tonal sonobuoy called a Directional Command-Activated sonobuoy
System (DICASS AN/SQQ-62) and a sonobuoy system called an IEER system,
which consists of an explosive source sonobuoy (AN/SSQ-110A) and a
passive receiver sonobuoy (AN/SSQ-101). The Navy also uses a passive
sonobuoy called a Directional Frequency Analysis and Recording (DIFAR).
Passive listening sonobuoys such as DIFAR (AN/SSQ-53) are deployed from
helicopters or maritime patrol aircraft and do not emit active sonar.
These systems are used for the detection and tracking of submarine
threats.
Dipping active/passive sonars, present on helicopters, are
recoverable devices that are lowered via a cable to detect or maintain
contact with underwater targets. The Navy uses the AN/AQS-13 and AN/
AQS-22 dipping sonars. Helicopters can be based ashore or aboard a
ship.
Torpedoes--Torpedoes are the primary ASW weapons used by surface
ships, aircraft, and submarines. The guidance systems of these weapons
can be autonomous or electronically controlled from the launching
platform through an attached wire. The autonomous guidance systems are
acoustically based. They operate either passively by listening for
sound generated by the target, or actively by pinging the target and
using the echoes for guidance. All torpedoes to be used during ASW
activities are recoverable and nonexplosive. The majority of torpedo
firings occurring during AFAST activities are air slugs (dry fire) or
shapes (i.e., solid masses resembling the weight and shape of a
torpedo).
Acoustic Device Countermeasures (ADC)--Several types of
countermeasure devices could be deployed during Fleet training
exercises, including the Acoustic Device Countermeasure MK-1, MK-2, MK-
3, MK-4, and the AN/SLQ-25A (NIXIE). Countermeasure devices act as
decoys to avert localization and torpedo attacks. Countermeasures may
be towed or free floating sources.
Training Targets--ASW training targets are used to simulate target
submarines. They are equipped with one or more of the following
devices: (1) Acoustic projectors emanating sounds to simulate submarine
acoustic signatures, (2) echo repeaters to simulate the characteristics
of the echo of a particular sonar signal reflected from a specific type
of submarine, and (3) magnetic sources to trigger magnetic detectors.
The Navy uses the Expendable Mobile Acoustic Training Target (EMATT)
and the MK-30 acoustic training targets (recovered) during ASW sonar
training exercises.

Types of ASW and MIW Exercises in the AFAST Study Area

ASW and MIW training is conducted to meet deployment certification
requirements as directed in the FRTP. The U.S. Navy Atlantic Fleet
meets these requirements by conducting training activities prior to
deployment of forces. The FRTP requires Basic Unit Level Training
(ULT), Intermediate, and Sustainment Training. The Navy meets these
requirements during Independent ULT, Coordinated ULT, and Strike Group
Training. At the beginning of the cycle, basic combat skills are
learned and practiced during basic Independent ULT activities, which
include training and sonar maintenance activities that each individual
unit is required to accomplish in order to become certified prior to
deploying or to maintain proficiency. Basic skills are then refined
during Coordinated ULT activities, which concentrate on warfare team
training and initial multiunit operations. During this phase, vessels
and aircraft begin to develop warfare skills in coordination with other
units while continuing to maintain unit proficiency. Strike Group
Training continues to develop and refine warfare skills and command and
control procedures using progressively more difficult, complex, and
large scale exercises conducted at an increasing tempo. This training
provides the warfighter with the skills necessary to function as part
of a coordinated fighting force in a hostile environment with the
capacity to accomplish multiple missions.
Additionally, RDT&E activities are conducted to develop new
technologies and to ensure their effectiveness prior to implementation.
Maintenance activities are conducted pier side and during transit to
training exercise locations. Active sonar maintenance is required to
ensure the sonar system is operating properly before engaging in the
training exercise or when the sonar systems are suspected of performing
below optimal levels.
Because the Navy conducts many different types of Independent ULT,
Coordinated ULT, Strike Group training, maintenance, and RDT&E active
sonar events, the Navy grouped similar events to form representative
scenarios. Note that specific training event names and other details do
occasionally change as required to meet the current operational needs.
Table 2 lists the types of ASW, MIW, and maintenance exercises and
indicates: The nature of the exercise, the areas the exercises are
conducted in and the area they span, the average duration of an
exercise, the average number of exercises/per year, and the sound
sources that are used in the exercises.
Table 1 indicates the total number of hours for each source type
anticipated for each year for each exercise type.
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The Navy's AFAST EIS and LOA application were designed specifically
to cover active sonar training because the need for operational
flexibility, a variety of training scenarios, as well as proximity to
multiple ports, airfields, and bases along the eastern seaboard in
these exercises has long necessitated that the exercises be conducted
outside of the boundaries of any one Operating Areas (OPAREA).
Alternately, exercises utilizing explosive detonations are typically
conducted within a particular OPAREA, and as such are being addressed
separately within EISs and LOA requests for the various applicable
OPAREAs. With the exception of the Extended Echo Ranging and Improved
Extended Echo Ranging (IEER) system, the AFAST proposed authorization
does not contain any explosive sources, only MFAS and HFAS. The IEER is
included in AFAST because it is most often used in ASW exercises. The
IEER Systems are air-launched ASW systems used in conducting ``large
area'' searches for submarines. These systems are made up of airborne
avionics ASW acoustic processing and sonobuoy types that are deployed
in pairs. The IEER System's active sonobuoy component, the AN/SSQ-110A
Sonobuoy, would generate a ``ping'' (small detonation, as opposed to a
sonar signal) and the passive AN/SSQ-101 ADAR Sonobuoy would ``listen''
for the return echo of the ping that has been bounced off the surface
of a submarine. These sonobuoys are designed to provide underwater
acoustic data necessary for naval aircrews to quickly and accurately
detect submerged submarines. The expendable and commandable sonobuoy
pairs are dropped from a fixed-wing aircraft into the ocean in a
predetermined pattern (array) with a few buoys covering a very large
area. Upon command from the aircraft, the bottom payload is released to
sink to a designated operating depth. A second command is required from
the aircraft to cause the second payload to release and detonate
generating a ``ping''. There is only one detonation in the pattern of
buoys at a time.
Additional information on the Navy's proposed activities may be
found in the LOA Application and the Navy's AFAST DEIS.

AFAST Study Area

Figure 1-1 in the Navy's application, which may be viewed at:
http://www.nmfs.noaa.gov/pr/permits/incidental.htm, depicts the AFAST
Study Area, which extends east from the Atlantic Coast of the U.S. to
45[deg] W. long. and south from the Atlantic and Gulf of Mexico Coasts
to approximately 23[deg] N. lat., but not encompassing the Bahamas (see
Figure 1-1 in the Navy's Application). The Navy's Atlantic Fleet trains
in a series of OPAREAs along the U.S. East Coast and in the Gulf of
Mexico. Due to the size of the battle space needed for effective
conduct of activities, training and testing also occur seaward of these
OPAREAs. The OPAREAs include the Northeast OPAREA, the Virginia Capes
(VACAPES) OPAREA, the Cherry Point (CHPT) OPAREA, the Jacksonville/
Charleston (JAX/CHASN) OPAREA, and the Gulf of Mexico (GOMEX) OPAREA.
The locations of the OPAREAs and the shoreward/seaward boundary of the
Study Area are depicted in Figure 1-1 of the Navy's application. Note
that the Northeast and Gulf of Mexico OPAREAs encompass a series of
OPAREAs. The Northeast OPAREA includes the Boston, Atlantic City, and
Narragansett Bay OPAREAs. The GOMEX OPAREAs includes the Pensacola,
Panama City, Corpus Christi, New Orleans, and Key West OPAREAs. For the
purposes of this document, an OPAREA includes the existing OPAREA, as
well as adjacent shoreward and seaward areas. Table 3 summarizes the
typical number of events per year by OPAREA.

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For the purposes of the proposed action that is the subject of this
Letter of Authorization (LOA) request, active sonar activities would
occur year-round throughout the Study Area. Active sonar activities
would occur in locations that maximize active sonar opportunities and
meet applicable operational requirements associated with a specific
active sonar activity. Below we provide additional detail (beyond
Tables 2 and 3), where available (i.e., the advance detail is available
and the information is not classified), regarding where certain active
sonar training, research, development, test, and evaluation (RDT&E),
and maintenance activities would occur.
ASW Training Areas
ASW activities for all platforms could occur within and adjacent to
existing East Coast OPAREAS beyond 22.2 km (12 NM) with the exception
of sonar dipping activities. However, most ASW training involving
submarines or submarine targets would occur in waters greater than 183
m (600 ft) deep due to safety concerns about running aground at
shallower depths. ASW active sonar activities occurring in specific
locations are discussed below.
Helicopter ASW ULT Areas--This activity would be conducted in the
waters of the East Coast OPAREAs typically near fleet concentration
areas while embarked on a surface ship. Helicopter ASW ULT events are
also conducted by helicopters deployed from shore-based Jacksonville,
Florida, units. These helicopter units use established sonar dipping
areas offshore Mayport (Jacksonville), Florida, which are located in
territorial waters and within the southeast North Atlantic right whale
(NARW) critical habitat. This is the only area where helicopter ASW ULT
could occur within 22 km (12 NM) of shore.
Southeastern Anti-Submarine Warfare Integrated Training (SEASWITI)
Areas--This training exercise generally occurs in deep water off the
coast of Jacksonville, Florida.
Group Sail Areas--These events typically take place within and
seaward of the VACAPES, CHPT, and JAX/CHASN OPAREAs.
Submarine Command Course (SCC) Operations Areas--This training
exercise typically occurs in the JAX/CHASN and Northeast OPAREAs in
deep ocean areas.
Strike Group Training Areas--These events typically take place
within and seaward of the VACAPES, CHPT, and JAX/CHASN OPAREAs,
although an event could occasionally be conducted in the GOMEX OPAREA.
Torpedo Exercise (TORPEX) Areas--TORPEXs can occur anywhere within
and adjacent to East Coast and GOMEX OPAREAs. The exception is in the
Northeast OPAREA where the North Atlantic right whale critical habitat
is located. TORPEX areas that meet current operational requirements for
proximity to torpedo and target recovery

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support facilities in the Northeast were established during previous
consultations. Therefore, TORPEX activities in the northeast North
Atlantic right whale critical habitat are limited to these established
areas. Most torpedo activities would occur near torpedo recovery
support facilities in the Northeast or GOMEX OPAREAs.
MIW Training Areas
MIW Training could occur in territorial or non-territorial waters.
Independent and Coordinated MIW ULT activities would be conducted
within and adjacent to the Pensacola and Panama City OPAREAs in the
northern Gulf of Mexico and off the east coast of Texas in the Corpus
Christi OPAREA. The Squadron Exercise (RONEX) or GOMEX Exercise would
be conducted in both deep and shallow water training areas.
Object Detection/Navigational Training Areas--Surface Ship training
would be conducted primarily in the shallow water port entrance and
exit lanes for Norfolk, Virginia, and Mayport, Florida. The transit
lane servicing Mayport, Florida crosses through the southeast North
Atlantic right whale critical habitat. Submarine training would occur
primarily in the established submarine transit lanes entering/exiting
Groton, Connecticut; Norfolk, Virginia; and Kings Bay, Georgia. The
transit lane servicing Kings Bay, Georgia crosses through the southeast
North Atlantic right whale critical habitat.

Maintenance Areas

Maintenance activities could occur in homeports located in
territorial waters, or in the open ocean during transit in non-
territorial waters.

RDT&E Areas

For RDT&E activities included in this analysis, active sonar
activities occur in similar locations as representative training
events.

National Marine Sanctuaries

At present, the Navy does not conduct active sonar activities in
the Stellwagen Bank, USS Monitor, Gray's Reef, Flower Garden Banks, and
Florida Keys National Marine Sanctuaries. The Navy would, as
appropriate, comply with the National Marine Sanctuaries Act and any
applicable regulations if it is determined that an active sonar
activity may occur in or near these sanctuaries, and would ensure that
naval activities be carried out in a manner that avoids to the maximum
extent practicable any adverse impacts on sanctuary resources and
qualities. Although activities in the Sanctuaries are not planned or
anticipated, NMFS' analysis, for purposes of the MMPA considers the
effects on marine mammals of the Navy's conducting activities in the
biologically important areas that occur in or near Sanctuaries.

North Atlantic Right Whale (NARW) Critical Habitat

NMFS designated three areas in June 1994 as critical habitat for
the western North Atlantic population of the North Atlantic right
whale. They include the following:
1. Coastal Florida and Georgia (Sebastian Inlet, FL to the Altamaha
River, GA),
2. Great South Channel (east of Cape Cod), and
3. Massachusetts Bay and Cape Cod Bay.
The Navy proposes to conduct two types of activities in the NARW
critical habitat. Approximately 84 of the 115 helicopter dipping sonar
exercises (2-4 hours each) conducted annually in the CHASN/JAX OPAREA
would occur in the designated near-shore training area, which fans out
approximately 10 miles from Mayport. Part of the near-shore shore
training area overlaps the NARW critical habitat. However,
historically, only maintenance of helicopter dipping sonars occured
(approximately 30 events) in the portion of the training area that
overlaps with NARW critical habitat. Tactical training with helicopter
dipping sonar does not typically occur in the NARW critical habitat
area at any time of the year. The critical habitat area is used on
occasion for post maintenance operational checks and equipment testing
due to its proximity to shore. In addition, the Navy would conduct
approximately 40 ship object detection/navigational sonar training
exercises (1-2 hours each) and 57 submarine object detection/
navigational sonar training exercises (1-2 hours each) annually while
entering/exiting port at Mayport, FL and Kings Bay, GA, respectively
(within approximately 1 mile of the shore). These two activities could
occur year round. No other active sonar activities would occur in the
southeast critical habitat.
In the northeastern critical habitat, the Navy would conduct TORPEX
activities. These activities would be conducted in August, September,
and October as prescribed in a prior Endangered Species Act (ESA)
Section 7 consultation with NMFS. Water depths in this area are less
than the optimal depth for most ASW activities.
In summary, currently active sonar training does not occur in North
Atlantic right whale critical habitat with the exception of object
detection and navigation off shore Mayport, Florida and Kings Bay,
Georgia; helicopter Anti-Submarine Warfare (ASW) offshore Mayport,
Florida; and torpedo exercises (TORPEXs) in the northeast critical
habitat during August, September, and October.

Description of Marine Mammals in the Area of the Specified Activities

There are 43 marine mammal species with possible or confirmed
occurrence in the AFAST Study Area. As indicated in Table 4, there are
36 cetacean species (7 mysticetes and 29 odontocetes), six pinnipeds,
and one sirenian (manatee). Six marine mammal species listed as
federally endangered under the Endangered Species Act (ESA) and under
the jurisdiction of NMFS occur in the AFAST Study Area: The North
Atlantic right whale, humpback whale, sei whale, fin whale, blue whale,
and sperm whale. Manatees are managed by the U.S. Fish and Wildlife
Service and will not be addressed further here.
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The Navy has compiled information on the abundance, behavior,
status and distribution, and vocalizations of marine mammal species in
the AFAST Study Area waters from peer reviewed literature, the Navy
Marine Resource Assessments, NMFS Stock Assessment Reports, and marine
mammal surveys using acoustics or visual observations from aircraft or
ships. This information may be viewed in the Navy's LOA application
and/or the Navy's EIS for AFAST (see Availability). Additional
information is available in NMFS Stock Assessment Reports, which may be
viewed at: http://www.nmfs.noaa.gov/pr/sars/species.htm.
Neither the beluga whale nor ringed seals have stocks designated in
the Northwest Atlantic Ocean or the Gulf of Mexico. The St. Lawrence
estuary is at the southern limit of the distribution of the beluga
whale (Lesage and Kingsley, 1998). Beluga distribution does not include
the Gulf of Mexico or the southeastern Atlantic Coast and they are
considered extralimital in the Northeast. The ringed seal has a
circumpolar distribution throughout the Arctic Ocean, Hudson Bay, and
Baltic and Bering seas (Reeves et al., 2002b) and is expected only as
far south as Newfoundland (Frost and Lowry, 1981). Based on their rare
occurrence in the AFAST study area, the Navy and NMFS do not anticipate
any take of ringed seals or beluga whales, and, therefore, they are not
addressed further in this document.

Important Areas

Because the consideration of areas where marine mammals are known
to selectively breed or calve/pup are important to both the negligible
impact finding necessary for the issuance of an MMPA authorization and
the need for NMFS to put forth the means of effecting the least
practicable adverse impact paying particular attention to rookeries,
mating grounds, and other areas of similar significance, we are
emphasizing known important reproductive and feeding areas within this
section.
Little is known about the breeding and calving behaviors of many of
the marine mammals that occur in the AFAST Study Area. For rorquals
(humpback whale, minke whale, Bryde's whale, sei whale, fin whale, and
blue whale) and sperm whales, mating is generally thought to occur in
tropical and sub-tropical waters between mid-winter and mid-summer in
deep off-shore waters. Delphinids (Melon-headed Whale, Killer Whale,
Pygmy Killer Whale, False Killer Whale, Pilot Whale, Common Dolphin,
Atlantic Spotted Dolphin, Clymene Dolphin, Pantropical Spotted Dolphin,
Spinner Dolphin, Striped Dolphin, Rough-toothed Dolphin, Common
Bottlenose Dolphin, Risso's Dolphin, Fraser's Dolphin, Atlantic White-
sided Dolphin, White-beaked Dolphin) may mate within any area of their
distribution throughout the year. For pinnipeds, mating and pupping
typically occurs in coastal waters near northeast rookeries. With one
notable exception, no specific breeding or calving/pupping areas have
been identified in the AFAST Study Area for the species that occur
there. However, critical habitat has been designated, pursuant to the
Endangered Species Act (ESA), for the North Atlantic right whale.

North Atlantic Right Whale

Most North Atlantic right whale sightings follow a well-defined
seasonal migratory pattern through several consistently utilized
habitats (Winn et al., 1986). It should be noted, however, that some
individuals may be sighted in these habitats outside the typical time
of year and that migration routes are poorly known (there may be a
regular offshore component). The population migrates as two separate
components, although some whales may remain in the feeding grounds
throughout the winter (Winn et al., 1986; Kenney et al., 2001).
Pregnant females and some juveniles migrate from the feeding grounds to
the calving grounds off the southeastern United States in late fall to
winter. The cow-calf pairs return northward in late winter to early
spring. The majority of the right whale population leaves the feeding
grounds for unknown habitats in the winter but returns to the feeding
grounds coinciding with the return of the cow-calf pairs. Some
individuals as well as cow-calf pairs can be seen through the fall and
winter on the feeding grounds with feeding being observed (e.g., Sardi
et al., 2005).
During the spring through early summer, North Atlantic right whales
are found on feeding grounds off the northeastern United States and
Canada. Individuals may be found in Cape Cod Bay in February through
April (Winn et al., 1986; Hamilton and Mayo, 1990) and in the Great
South Channel east of Cape Cod in April through June (Winn et al.,
1986; Kenney et al., 1995). Right whales are found throughout the
remainder of summer and into fall (June through November) on two
feeding grounds in Canadian waters (Gaskin, 1987 and 1991), with peak
abundance in August, September, and early October. The majority of
summer/fall sightings of mother/calf pairs occur east of Grand Manan
Island (Bay of Fundy), although some pairs might move to other unknown
locations (Schaeff et al., 1993). Jeffreys Ledge appears to be
important habitat for right whales, with extended whale residences;
this area appears to be an important fall feeding area for right whales
and an important nursery area during summer (Weinrich et al., 2000).
The second feeding area is off the southern tip of Nova Scotia in the
Roseway Basin between Browns, Baccaro, and Roseway banks (Mitchell et
al., 1986; Gaskin, 1987; Stone et al., 1988; Gaskin, 1991). The Cape
Cod Bay and Great South Channel feeding grounds are formally designated
as critical habitats under the ESA (Silber and Clapham, 2001).
During the winter (as early as November and through March), North
Atlantic right whales may be found in coastal waters off North
Carolina, Georgia, and northern Florida (Winn et al., 1986). The waters
off Georgia and northern Florida are the only known calving ground for
western North Atlantic right whales; it is formally designated as a
critical habitat under the ESA. Calving occurs from December through
March (Silber and Clapham, 2001). On 1 January 2005, the first observed
birth on the calving grounds was reported (Zani et al., 2005). The
majority of the population is not accounted for on the calving grounds,
and not all reproductively active females return to this area each year
(Kraus et al., 1986a).
The coastal waters of the Carolinas are suggested to be a migratory
corridor for the right whale (Winn et al., 1986). The Southeast U.S.
Coast Ground, consisting of coastal waters between North Carolina and
northern Florida, was mainly a winter and early spring (January-March)
right whaling ground during the late 1800s (Reeves and Mitchell, 1986).
The whaling ground was centered along the coasts of South Carolina and
Georgia (Reeves and Mitchell, 1986). An examination of sighting records
from all sources between 1950 and 1992 found that wintering right
whales were observed widely along the coast from Cape Hatteras, North
Carolina, to Miami, Florida (Kraus et al., 1993). Sightings off the
Carolinas were comprised of single individuals that appeared to be
transients (Kraus et al., 1993). These observations are consistent with
the hypothesis that the coastal waters of the Carolinas are part of a
migratory corridor for the right whale (Winn et al., 1986). Knowlton et
al. (2002) analyzed sightings data collected in the mid-Atlantic from
northern Georgia to southern New England and found that

[[Page 60767]]

the majority of right whale sightings occurred within approximately 56
km (30 NM) from shore. Until better information is available on the
right whale's migratory corridor, it has been recommended that
management considerations are needed for the coastal areas along the
mid-Atlantic migratory corridor within 65 km (35 NM) from shore
(Knowlton, 1997).
Critical habitat for the North Atlantic population of the North
Atlantic right whale exists in portions of the JAX/CHASN and Northeast
OPAREAs (Figures 4-1 and 4-2 of the Navy's Application). The following
three areas occur in U.S. waters and were designated by NMFS as
critical habitat in June 1994 (NMFS, 2005):
Coastal Florida and Georgia (Sebastian Inlet, Florida, to
the Altamaha River, Georgia),
The Great South Channel, east of Cape Cod, and
Cape Cod and Massachusetts Bays.
The northern critical habitat areas serve as feeding and nursery
grounds, while the southern area from the mid-Georgia coast extending
southward along Florida serves as calving grounds. The waters off
Georgia and northern Florida are the only known calving ground for
western North Atlantic right whales. A large portion of this habitat
lies within the coastal waters of the JAX/CHASN OPAREA. The physical
features correlated with the distribution of right whales in the
southern critical habitat area provide an optimum environment for
calving. For example, the bathymetry of the inner and nearshore middle
shelf area minimizes the effect of strong winds and offshore waves,
limiting the formation of large waves and rough water. The average
temperature of critical habitat waters is cooler during the time right
whales are present due to a lack of influence by the Gulf Stream and
cool freshwater runoff from coastal areas. The water temperatures may
provide an optimal balance between offshore waters that are too warm
for nursing mothers to tolerate, yet not too cool for calves that may
only have minimal fatty insulation. On the calving grounds, the
reproductive females and calves are expected to be concentrated near
the critical habitat in the JAX/CHASN OPAREA from December through
April.

Humpback Whale

In the North Atlantic Ocean, humpbacks are found from spring
through fall on feeding grounds that are located from south of New
England to northern Norway (NMFS, 1991). The Gulf of Maine is one of
the principal summer feeding grounds for humpback whales in the North
Atlantic. The largest numbers of humpback whales are present from mid-
April to mid-November. Feeding locations off the northeastern United
States include Stellwagen Bank, Jeffreys Ledge, the Great South
Channel, the edges and shoals of Georges Bank, Cashes Ledge, Grand
Manan Banks, the banks on the Scotian Shelf, the Gulf of St. Lawrence,
and the Newfoundland Grand Banks (CETAP, 1982; Whitehead, 1982; Kenney
and Winn, 1986; Weinrich et al., 1997). Distribution in this region has
been largely correlated to prey species and abundance, although
behavior and bottom topography are factors in foraging strategy (Payne
et al., 1986; Payne et al., 1990b). Humpbacks typically return to the
same feeding areas each year. Feeding most often occurs in relatively
shallow waters over the inner continental shelf and sometimes in deeper
waters. Large multi-species feeding aggregations (including humpback
whales) have been observed over the shelf break on the southern edge of
Georges Bank (CETAP, 1982; Kenney and Winn, 1987) and in shelf break
waters off the U.S. mid-Atlantic coast (Smith et al., 1996).

Sperm Whale

The region of the Mississippi River Delta (Desoto Canyon) has been
recognized for high densities of sperm whales and appears to represent
an important calving and nursery area for these animals (Townsend,
1935; Collum and Fritts, 1985; Mullin et al., 1994a; Wursig et al.,
2000; Baumgartner et al., 2001; Davis et al., 2002; Mullin et al.,
2004; Jochens et al., 2006). Sperm whales typically exhibit a strong
affinity for deep waters beyond the continental shelf, though in the
area of the Mississippi Delta they also occur on the outer continental
shelf break.

Marine Mammal Density Estimates

Density estimates for cetaceans were either modeled for each region
(Northeast, Southeast, and GOMEX) using available line-transect survey
data or derived in order of preference: (1) Through spatial models
using line-transect survey data provided by NMFS; (2) using abundance
estimates from Mullin and Fulling (2003), Fulling et al. (2003), and/or
Mullin and Fulling (2004); (3) or based on the cetacean abundance
estimates found in the most current NOAA stock assessment report (SAR)
(Waring et al., 2007). The Navy derived the densities the following way
for each area:
Northeast OPAREAs: The traditional line-transect methods
used in the preliminary Northeast NODE (DON, 2006c) and abundance
estimates from the North Atlantic Right Whale Consortium (NARWC, 2006).
Density estimates for pinnipeds in these OPAREAs were derived from
abundance estimates found in the NOAA stock assessment report (Waring
et al., 2007) or from the scientific literature (Barlas, 1999).
Southeast OPAREAs: Abundance estimates found in the NOAA
stock assessment report (Waring et al., 2007) or in Mullin and Fulling
(2003).
Gulf of Mexico OPAREAs: Abundance estimates found in the
NOAA stock assessment report (Waring et al., 2007) based on Mullin and
Fulling (2004).
Using the indicated data, the Navy was able to estimate densities
for most species, by OPAREA (and sometimes in greater detail--like for
the area around Mayport) and by season.
The detailed density estimate methods and results may be viewed in
the Navy OPAREA Density Estimates (NODE) for the Northeast OPAREAS
report (DON, 2007e), the NODE for the Southeast OPAREAS report (DON,
2007f), and the NODE for the GOMEX OPAREA report (DON, 2007g), which
are available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
NMFS has also posted a summary of the density estimates on our Web
site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Brief Background on Sound

An understanding of the basic properties of underwater sound is
necessary to comprehend many of the concepts and analyses presented in
this document. A summary is included below.
Sound is a wave of pressure variations propagating through a medium
(for the sonar considered in this proposed rule, the medium is marine
water). Pressure variations are created by compressing and relaxing the
medium. Sound measurements can be expressed in two forms: intensity and
pressure. Acoustic intensity is the average rate of energy transmitted
through a unit area in a specified direction and is expressed in watts
per square meter (W/m\2\). Acoustic intensity is rarely measured
directly, it is derived from ratios of pressures; the standard
reference pressure for underwater sound is 1 microPascal ([mu]Pa); for
airborne sound, the standard reference pressure is 20 [mu]Pa
(Richardson et al., 1995).
Acousticians have adopted a logarithmic scale for sound
intensities, which is denoted in decibels (dB). Decibel measurements
represent the ratio between a measured pressure value

[[Page 60768]]

and a reference pressure value (in this case 1 [mu]Pa or, for airborne
sound, 20 [mu]Pa.). The logarithmic nature of the scale means that each
10 dB increase is a ten-fold increase in power (e.g., 20 dB is a 100-
fold increase, 30 dB is a 1,000-fold increase). Humans perceive a 10-dB
increase in noise as a doubling of sound level, or a 10 dB decrease in
noise as a halving of sound level. The term ``sound pressure level''
implies a decibel measure and a reference pressure that is used as the
denominator of the ratio. Throughout this document, NMFS uses 1
microPascal (denoted re: 1[mu]Pa) as a standard reference pressure
unless noted otherwise.
It is important to note that decibels underwater and decibels in
air are not the same and cannot be directly compared. To estimate a
comparison between sound in air and underwater, because of the
different densities of air and water and the different decibel
standards (i.e., reference pressures) in water and air, a sound with
the same intensity (i.e., power) in air and in water would be
approximately 63 dB quieter in air. Thus a sound that is 160 dB loud
underwater would have the same approximate effective intensity as a
sound that is 97 dB loud in air.
Sound frequency is measured in cycles per second, or Hertz
(abbreviated Hz), and is analogous to musical pitch; high-pitched
sounds contain high frequencies and low-pitched sounds contain low
frequencies. Natural sounds in the ocean span a huge range of
frequencies: from earthquake noise at 5 Hz to harbor porpoise clicks at
150,000 Hz (150 kHz). These sounds are so low or so high in pitch that
humans cannot even hear them; acousticians call these infrasonic
(typically below 20 Hz) and ultrasonic (typically above 20,000 Hz)
sounds, respectively. A single sound may be made up of many different
frequencies together. Sounds made up of only a small range of
frequencies are called ``narrowband'', and sounds with a broad range of
frequencies are called ``broadband''; explosives are an example of a
broadband sound source and tactical sonars are an example of a
narrowband sound source.
When considering the influence of various kinds of sound on the
marine environment, it is necessary to understand that different kinds
of marine life are sensitive to different frequencies of sound. Based
on available behavioral data, audiograms derived using auditory evoked
potential (AEP) techniques, anatomical modeling, and other data,
Southall et al. (2007) designate ``functional hearing groups'' for
marine mammals and estimate the lower and upper frequencies of
functional hearing of the groups. Further, the frequency range in which
each groups hearing is estimated as being most sensitive is represented
in the flat part of the M-weighting functions developed for each group.
More specific data is available for certain species (Table 13a and b).
The functional groups and the associated frequencies are indicated
below:
Low frequency cetaceans (13 species of mysticetes):
functional hearing is estimated to occur between approximately 7 Hz and
22 kHz;
Mid-frequency cetaceans (32 species of dolphins, six
species of larger toothed whales, and 19 species of beaked and
bottlenose whales): functional hearing is estimated to occur between
approximately 150 Hz and 160 kHz;
High frequency cetaceans (eight species of true porpoises,
six species of river dolphins, Kogia, the franciscana, and four species
of cephalorhynchids): functional hearing is estimated to occur between
approximately 200 Hz and 180 kHz;
Pinnipeds in Water: functional hearing is estimated to
occur between approximately 75 Hz and 75 kHz, with the greatest
sensitivity between approximately 700 Hz and 20 kHz.
Because ears adapted to function underwater are physiologically
different from human ears, comparisons using decibel measurements in
air would still not be adequate to describe the effects of a sound on a
whale. When sound travels away from its source, its loudness decreases
as the distance traveled (propagates) by the sound increases. Thus, the
loudness of a sound at its source is higher than the loudness of that
same sound a kilometer distant. Acousticians often refer to the
loudness of a sound at its source (typically measured one meter from
the source) as the source level and the loudness of sound elsewhere as
the received level. For example, a humpback whale three kilometers from
an airgun that has a source level of 230 dB may only be exposed to
sound that is 160 dB loud, depending on how the sound propagates (in
this example, it is spherical spreading). As a result, it is important
not to confuse source levels and received levels when discussing the
loudness of sound in the ocean or its impacts on the marine
environment.
As sound travels from a source, its propagation in water is
influenced by various physical characteristics, including water
temperature, depth, salinity, and surface and bottom properties that
cause refraction, reflection, absorption, and scattering of sound
waves. Oceans are not homogeneous and the contribution of each of these
individual factors is extremely complex and interrelated. The physical
characteristics that determine the sound's speed through the water will
change with depth, season, geographic location, and with time of day
(as a result, in actual sonar operations, crews will measure oceanic
conditions, such as sea water temperature and depth, to calibrate
models that determine the path the sonar signal will take as it travels
through the ocean and how strong the sound signal will be at a given
range along a particular transmission path). As sound travels through
the ocean, the intensity associated with the wavefront diminishes, or
attenuates. This decrease in intensity is referred to as propagation
loss, also commonly called transmission loss.

Metrics Used in This Document

This section includes a brief explanation of the two sound
measurements (sound pressure level (SPL) and sound exposure level
(SEL)) frequently used in the discussions of acoustic effects in this
document.

SPL

Sound pressure is the sound force per unit area, and is usually
measured in micropascals ([mu]Pa), where 1 Pa is the pressure resulting
from a force of one newton exerted over an area of one square meter.
SPL is expressed as the ratio of a measured sound pressure and a
reference level. The commonly used reference pressure level in
underwater acoustics is 1 [mu]Pa, and the units for SPLs are dB re: 1
[mu]Pa.
SPL (in dB) = 20 log (pressure / reference pressure)
SPL is an instantaneous measurement and can be expressed as the
peak, the peak-peak, or the root mean square (rms). Root mean square,
which is the square root of the arithmetic average of the squared
instantaneous pressure values, is typically used in discussions of the
effects of sounds on vertebrates and all references to SPL in this
document refer to the root mean square. SPL does not take the duration
of a sound into account. SPL is the applicable metric used in the risk
continuum, which is used to estimate behavioral harassment takes (see
Level B Harassment Risk Function (Behavioral Harassment) Section).

SEL

SEL is an energy metric that integrates the squared instantaneous
sound pressure over a stated time interval. The units for SEL are dB
re: 1 [mu]Pa\2\-s.

[[Page 60769]]

SEL = SPL + 10 log (duration in seconds)
As applied to tactical sonar, the SEL includes both the SPL of a
sonar ping and the total duration. Longer duration pings and/or pings
with higher SPLs will have a higher SEL. If an animal is exposed to
multiple pings, the SEL in each individual ping is summed to calculate
the total SEL. The total SEL depends on the SPL, duration, and number
of pings received. The thresholds that NMFS uses to indicate at what
received level the onset of temporary threshold shift (TTS) and
permanent threshold shift (PTS) in hearing are likely to occur are
expressed in SEL.

Potential Effects of Specified Activities on Marine Mammals

Exposure to MFAS/HFAS

The Navy has requested authorization for the take of marine mammals
that may occur incidental to training activities in the AFAST Study
Area utilizing MFAS/HFAS or the IEER system, which includes an
explosive sonobuoy. The Navy has analyzed the potential impacts to
marine mammals from AFAST, including ship strike, entanglement in or
direct strike by expended materials, ship noise, and others, and in
consultation with NMFS as a cooperating agency for the AFAST EIS, has
determined that take of marine mammals incidental to these non-acoustic
components of AFAST is unlikely (see the Navy's LOA application and
March addendum to the application) and, therefore, has not requested
authorization for take of marine mammals that might occur incidental to
these non-acoustic components. In this document, NMFS analyzes the
potential effects on marine mammals from exposure to MFAS/HFAS and
underwater detonations from the IEER.
For the purpose of MMPA authorizations, NMFS' effects assessments
serve three primary purposes: (1) To put forth the permissible methods
of taking within the context of MMPA Level B Harassment (behavioral
harassment), Level A Harassment (injury), and mortality (i.e., identify
the number and types of take that will occur); (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); and (3) to determine whether
the specified activity will have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (however,
there are no subsistence communities that would be affected in the
AFAST Study Area, so this determination is inapplicable for AFAST).
More specifically, for activities involving active tactical sonar
or underwater detonations, NMFS' analysis will identify the probability
of lethal responses, physical trauma, sensory impairment (permanent and
temporary threshold shifts and acoustic masking), physiological
responses (particular stress responses), behavioral disturbance (that
rises to the level of harassment), and social responses that would be
classified as behavioral harassment or injury and/or would be likely to
adversely affect the species or stock through effects on annual rates
of recruitment or survival. In this section, we will focus
qualitatively on the different ways that MFAS/HFAS and underwater
explosive detonations (IEER) may affect marine mammals (some of which
NMFS would not classify as harassment). Then, in the Estimated Take of
Marine Mammals Section, NMFS will relate the potential effects to
marine mammals from MFAS/HFAS and underwater detonation of explosives
to the MMPA regulatory definitions of Level A and Level B Harassment
and attempt to quantify those effects.
In its April 14, 2008, Biological Opinion of the U.S. Navy's
proposal to conduct four training exercises in the Cherry Point,
Virginia Capes, and Jacksonville Range Complexes NMFS presented a
conceptual model of the potential responses of endangered and
threatened species upon being exposed to active sonar and the pathways
by which those responses might affect the fitness of individual animals
that have been exposed, which may then affect the reproduction and/or
survival of those individuals. Literature supporting the framework,
with examples drawn from many taxa (both aquatic and terrestrial) was
included in the ``Application of this Approach'' and ``Response
Analyses'' sections of that document (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm). This conceptual framework
may also be used to describe the responses and pathways for non-
endangered and non-threatened species and is included in the Biological
Opinion of the U.S. Navy's proposal to conduct four training exercises
in the Cherry Point, Virginia Capes, and Jacksonville Range Complexes.

Direct Physiological Effects

Based on the literature, there are two basic ways that MFAS/HFAS
might directly result in physical trauma or damage: noise-induced loss
of hearing sensitivity (more commonly-called ``threshold shift'') and
acoustically mediated bubble growth. Separately, an animal's behavioral
reaction to an acoustic exposure might lead to physiological effects
that might ultimately lead to injury or death, which is discussed later
in the Stranding section.

Threshold Shift (Noise-Induced Loss of Hearing)

When animals exhibit reduced hearing sensitivity (i.e., sounds must
be louder for an animal to recognize them) following exposure to a
sufficiently intense sound, it is referred to as a noise-induced
threshold shift (TS). An animal can experience temporary threshold
shift (TTS) or permanent threshold shift (PTS). TTS can last from
minutes or hours to days (i.e., there is recovery), occurs in specific
frequency ranges (i.e., an animal might only have a temporary loss of
hearing sensitivity between the frequencies of 1 and 10 kHz), and can
be of varying amounts (for example, an animal's hearing sensitivity
might be reduced by only 6 dB or reduced by 30 dB). PTS is permanent
(i.e., there is no recovery), but also occurs in a specific frequency
range and amount as mentioned above for TTS.
The following physiological mechanisms are thought to play a role
in inducing auditory TSs: Effects to sensory hair cells in the inner
ear that reduce their sensitivity, modification of the chemical
environment within the sensory cells, residual muscular activity in the
middle ear, displacement of certain inner ear membranes, increased
blood flow, and post-stimulatory reduction in both efferent and sensory
neural output (Southall et al., 2007). The amplitude, duration,
frequency, temporal pattern, and energy distribution of sound exposure
all affect the amount of associated TS and the frequency range in which
it occurs. As amplitude and duration of sound exposure increase, so,
generally, does the amount of TS, along with the recovery time. For
continuous sounds, exposures of equal energy (the same SEL) will lead
to approximately equal effects. For intermittent sounds, less TS will
occur than from a continuous exposure with the same energy (some
recovery will occur between intermittent exposures) (Kryter et al.,
1966; Ward, 1997). For example, one short but loud (higher SPL) sound

[[Page 60770]]

exposure may induce the same impairment as one longer but softer sound,
which in turn may cause more impairment than a series of several
intermittent softer sounds with the same total energy (Ward, 1997).
Additionally, though TTS is temporary, very prolonged exposure to sound
strong enough to elicit TTS, or shorter-term exposure to sound levels
well above the TTS threshold, can cause PTS, at least in terrestrial
mammals (Kryter, 1985) (although in the case of MFAS/HFAS, animals are
not expected to be exposed to levels high enough or durations long
enough to result in PTS).
PTS is considered auditory injury (Southall et al., 2007).
Irreparable damage to the inner or outer cochlear hair cells may cause
PTS, however, other mechanisms are also involved, such as exceeding the
elastic limits of certain tissues and membranes in the middle and inner
ears and resultant changes in the chemical composition of the inner ear
fluids (Southall et al., 2007).
Although the published body of scientific literature contains
numerous theoretical studies and discussion papers on hearing
impairments that can occur with exposure to a loud sound, only a few
studies provide empirical information on the levels at which noise-
induced loss in hearing sensitivity occurs in nonhuman animals. For
cetaceans, published data are limited to the captive bottlenose dolphin
and beluga (Finneran et al., 2000, 2002b, 2005a; Schlundt et al., 2000;
Nachtigall et al., 2003, 2004). For pinnipeds in water, data are
limited to Kastak et al.'s measurement of TTS in one harbor seal, one
elephant seal, and one California sea lion.
Marine mammal hearing plays a critical role in communication with
conspecifics, and interpretation of environmental cues for purposes
such as predator avoidance and prey capture. Depending on the degree
(elevation of threshold in dB), duration (i.e., recovery time), and
frequency range of TTS, and the context in which it is experienced, TTS
can have effects on marine mammals ranging from discountable to serious
(similar to those discussed in auditory masking, below). For example, a
marine mammal may be able to readily compensate for a brief, relatively
small amount of TTS in a non-critical frequency range that takes place
during a time when the animal is traveling through the open ocean,
where ambient noise is lower and there are not as many competing sounds
present. Alternatively, a larger amount and longer duration of TTS
sustained during time when communication is critical for successful
mother/calf interactions could have more serious impacts. Also,
depending on the degree and frequency range, the effects of PTS on an
animal could range in severity, although it is considered generally
more serious because it is a permanent condition. Of note, reduced
hearing sensitivity as a simple function of development and aging has
been observed in marine mammals, as well as humans and other taxa
(Southall et al., 2007), so we can infer that strategies exist for
coping with this condition to some degree, though likely not without
cost. There is no empirical evidence that exposure to MFAS/HFAS can
cause PTS in any marine mammals; instead the probability of PTS has
been inferred from studies of TTS (see Richardson et al., 1995).

Acoustically Mediated Bubble Growth

One theoretical cause of injury to marine mammals is rectified
diffusion (Crum and Mao, 1996), the process of increasing the size of a
bubble by exposing it to a sound field. This process could be
facilitated if the environment in which the ensonified bubbles exist is
supersaturated with gas. Repetitive diving by marine mammals can cause
the blood and some tissues to accumulate gas to a greater degree than
is supported by the surrounding environmental pressure (Ridgway and
Howard, 1979). The deeper and longer dives of some marine mammals (for
example, beaked whales) are theoretically predicted to induce greater
supersaturation (Houser et al., 2001b). If rectified diffusion were
possible in marine mammals exposed to high-level sound, conditions of
tissue supersaturation could theoretically speed the rate and increase
the size of bubble growth. Subsequent effects due to tissue trauma and
emboli would presumably mirror those observed in humans suffering from
decompression sickness.
It is unlikely that the short duration of sonar pings would be long
enough to drive bubble growth to any substantial size, if such a
phenomenon occurs. However, an alternative but related hypothesis has
also been suggested: Stable bubbles could be destabilized by high-level
sound exposures such that bubble growth then occurs through static
diffusion of gas out of the tissues. In such a scenario the marine
mammal would need to be in a gas-supersaturated state for a long enough
period of time for bubbles to become of a problematic size.
Yet another hypothesis (decompression sickness) has speculated that
rapid ascent to the surface following exposure to a startling sound
might produce tissue gas saturation sufficient for the evolution of
nitrogen bubbles (Jepson et al., 2003; Fernandez et al., 2005). In this
scenario, the rate of ascent would need to be sufficiently rapid to
compromise behavioral or physiological protections against nitrogen
bubble formation. Collectively, these hypotheses can be referred to as
``hypotheses of acoustically mediated bubble growth.''
Although theoretical predictions suggest the possibility for
acoustically mediated bubble growth, there is considerable disagreement
among scientists as to its likelihood (Piantadosi and Thalmann, 2004;
Evans and Miller, 2003). Crum and Mao (1996) hypothesized that received
levels would have to exceed 190 dB in order for there to be the
possibility of significant bubble growth due to supersaturation of
gases in the blood (i.e., rectified diffusion). More recent work
conducted by Crum et al. (2005) demonstrated the possibility of
rectified diffusion for short duration signals, but at SELs and tissue
saturation levels that are highly improbable to occur in diving marine
mammals. To date, Energy Levels (ELs) predicted to cause in vivo bubble
formation within diving cetaceans have not been evaluated (NOAA,
2002b). Although it has been argued that traumas from some recent
beaked whale strandings are consistent with gas emboli and bubble-
induced tissue separations (Jepson et al., 2003), there is no
conclusive evidence of this. However, Jepson et al. (2003, 2005) and
Fernandez et al. (2004, 2005) concluded that in vivo bubble formation,
which may be exacerbated by deep, long-duration, repetitive dives may
explain why beaked whales appear to be particularly vulnerable to sonar
exposures. Further investigation is needed to further assess the
potential validity of these hypotheses. More information regarding
hypotheses that attempt to explain how behavioral responses to MFAS/
HFAS can lead to strandings is included in the Behaviorally Mediated
Bubble Growth Section, after the summary of strandings.

Acoustic Masking

Marine mammals use acoustic signals for a variety of purposes,
which differ among species, but include communication between
individuals, navigation, foraging, reproduction, and learning about
their environment (Erbe and Farmer, 2000, Tyack, 2000). Masking, or
auditory interference, generally occurs when sounds in the environment
are louder than and of a

[[Page 60771]]

similar frequency to, auditory signals an animal is trying to receive.
Masking is a phenomenon that affects animals that are trying to receive
acoustic information about their environment, including sounds from
other members of their species, predators, prey, and sounds that allow
them to orient in their environment. Masking these acoustic signals can
disturb the behavior of individual animals, groups of animals, or
entire populations.
The extent of the masking interference depends on the spectral,
temporal, and spatial relationships between the signals an animal is
trying to receive and the masking noise, in addition to other factors.
In humans, significant masking of tonal signals occurs as a result of
exposure to noise in a narrow band of similar frequencies. As the sound
level increases, though, the detection of frequencies above those of
the masking stimulus decreases also. This principle is expected to
apply to marine mammals as well because of common biomechanical
cochlear properties across taxa.
Richardson et al. (1995b) argued that the maximum radius of
influence of an industrial noise (including broadband low frequency
sound transmission) on a marine mammal is the distance from the source
to the point at which the noise can barely be heard. This range is
determined by either the hearing sensitivity of the animal or the
background noise level present. Industrial masking is most likely to
affect some species' ability to detect communication calls and natural
sounds (i.e., surf noise, prey noise, etc.; Richardson et al., 1995).
The echolocation calls of toothed whales are subject to masking by
high frequency sound. Human data indicate low-frequency sound can mask
high-frequency sounds (i.e., upward masking). Studies on captive
odontocetes by Au et al. (1974, 1985, 1993) indicate that some species
may use various processes to reduce masking effects (e.g., adjustments
in echolocation call intensity or frequency as a function of background
noise conditions). There is also evidence that the directional hearing
abilities of odontocetes are useful in reducing masking at the high-
frequencies these cetaceans use to echolocate, but not at the low-to-
moderate frequencies they use to communicate (Zaitseva et al., 1980).
As mentioned previously, the functional hearing ranges of
mysticetes, odontocetes, and pinnipeds underwater all encompass the
frequencies of the sonar sources used in the Navy's MFAS/HFAS training
exercises. Additionally, in almost all species, vocal repertoires span
across the frequencies of these sonar sources used by the Navy. The
closer the characteristics of the masking signal to the signal of
interest, the more likely masking is to occur. For hull-mounted sonar--
which accounts for the largest part of the takes of marine mammals
(because of the source strength and number of hours it's conducted),
the pulse length and duty cycle of the MFAS/HFAS signal (~ 1 second
pulse twice a minute) makes it less likely that masking will occur as a
result.

Impaired Communication

In addition to making it more difficult for animals to perceive
acoustic cues in their environment, anthropogenic sound presents
separate challenges for animals that are vocalizing. When they
vocalize, animals are aware of environmental conditions that affect the
``active space'' of their vocalizations, which is the maximum area
within which their vocalizations can be detected before it drops to the
level of ambient noise (Brenowitz, 2004; Brumm et al., 2004; Lohr et
al., 2003). Animals are also aware of environment conditions that
affect whether listeners can discriminate and recognize their
vocalizations from other sounds, which is more important than simply
detecting that a vocalization is occurring (Brenowitz, 1982; Brumm et
al., 2004; Dooling, 2004, Marten and Marler, 1977; Patricelli et al.,
2006). Most animals that vocalize have evolved with an ability to make
adjustments to their vocalizations to increase the signal-to-noise
ratio, active space, and recognizability/distinguishability of their
vocalizations in the face of temporary changes in background noise
(Brumm et al., 2004; Patricelli et al., 2006). Vocalizing animals can
make one or more of the following adjustments to their vocalizations:
Adjust the frequency structure; adjust the amplitude; adjust temporal
structure; or adjust temporal delivery (see Biological Opinion).
Many animals will combine several of these strategies to compensate
for high levels of background noise. Anthropogenic sounds that reduce
the signal-to-noise ratio of animal vocalizations, increase the masked
auditory thresholds of animals listening for such vocalizations, or
reduce the active space of an animal's vocalizations impair
communication between animals. Most animals that vocalize have evolved
strategies to compensate for the effects of short-term or temporary
increases in background or ambient noise on their songs or calls.
Although the fitness consequences of these vocal adjustments remain
unknown, like most other trade-offs animals must make, some of these
strategies probably come at a cost (Patricelli et al., 2006). For
example, vocalizing more loudly in noisy environments may have
energetic costs that decrease the net benefits of vocal adjustment and
alter a bird's energy budget (Brumm, 2004; Wood and Yezerinac, 2006).
Shifting songs and calls to higher frequencies may also impose
energetic costs (Lambrechts, 1996).

Stress Responses

Classic stress responses begin when an animal's central nervous
system perceives a potential threat to its homeostasis. That perception
triggers stress responses regardless of whether a stimulus actually
threatens the animal; the mere perception of a threat is sufficient to
trigger a stress response (Moberg, 2000; Sapolsky et al., 2005; Seyle,
1950). Once an animal's central nervous system perceives a threat, it
mounts a biological response or defense that consists of a combination
of the four general biological defense responses: Behavioral responses,
autonomic nervous system responses, neuroendocrine responses, or immune
response.
In the case of many stressors, an animal's first and most
economical (in terms of biotic costs) response is behavioral avoidance
of the potential stressor or avoidance of continued exposure to a
stressor. An animal's second line of defense to stressors involves the
sympathetic part of the autonomic nervous system and the classical
``fight or flight'' response which includes the cardiovascular system,
the gastrointestinal system, the exocrine glands, and the adrenal
medulla to produce changes in heart rate, blood pressure, and
gastrointestinal activity that humans commonly associate with
``stress.'' These responses have a relatively short duration and may or
may not have significant long-term effect on an animal's welfare.
An animal's third line of defense to stressors involves its
neuroendocrine or sympathetic nervous systems; the system that has
received the most study has been the hypothalmus-pituitary-adrenal
system (also known as the HPA axis in mammals or the hypothalamus-
pituitary-interrenal axis in fish and some reptiles). Unlike stress
responses associated with the autonomic nervous system, virtually all
neuro-endocrine functions that are affected by stress--including immune
competence, reproduction, metabolism, and behavior--are regulated by
pituitary hormones. Stress-induced changes in the secretion of
pituitary hormones have

[[Page 60772]]

been implicated in failed reproduction (Moberg, 1987; Rivier, 1995) and
altered metabolism (Elasser et al., 2000), reduced immune competence
(Blecha, 2000) and behavioral disturbance. Increases in the circulation
of glucocorticosteroids (cortisol, corticosterone, and aldosterone in
marine mammals; see Romano et al., 2004) have been equated with stress
for many years.
The primary distinction between stress (which is adaptive and does
not normally place an animal at risk) and distress is the biotic cost
of the response. During a stress response, an animal uses glycogen
stores that can be quickly replenished once the stress is alleviated.
In such circumstances, the cost of the stress response would not pose a
risk to the animal's welfare. However, when an animal does not have
sufficient energy reserves to satisfy the energetic costs of a stress
response, energy resources must be diverted from other biotic function,
which impairs those functions that experience the diversion. For
example, when mounting a stress response diverts energy away from
growth in young animals, those animals may experience stunted growth.
When mounting a stress response diverts energy from a fetus, an
animal's reproductive success and its fitness will suffer. In these
cases, the animals will have entered a pre-pathological or pathological
state which is called ``distress'' (sensu Seyle 1950) or ``allostatic
loading'' (sensu McEwen and Wingfield, 2003). This pathological state
will last until the animal replenishes its biotic reserves sufficient
to restore normal function.
Relationships between these physiological mechanisms, animal
behavior, and the costs of stress responses have also been documented
fairly well through controlled experiment; because this physiology
exists in every vertebrate that has been studied, it is not surprising
that stress responses and their costs have been documented in both
laboratory and free-living animals (for examples see, Holberton et al.,
1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004;
Lankford et al., 2005; Reneerkens et al., 2002; Thompson and Hamer,
2000). Although no information has been collected on the physiological
responses of marine mammals to exposure to anthropogenic sounds,
studies of other marine animals and terrestrial animals would lead us
to expect some marine mammals to experience physiological stress
responses and, perhaps, physiological responses that would be
classified as ``distress'' upon exposure to high frequency, mid-
frequency and low-frequency sounds.
For example, Jansen (1998) reported on the relationship between
acoustic exposures and physiological responses that are indicative of
stress responses in humans (for example, elevated respiration and
increased heart rates). Jones (1998) reported on reductions in human
performance when faced with acute, repetitive exposures to acoustic
disturbance. Trimper et al. (1998) reported on the physiological stress
responses of osprey to low-level aircraft noise while Krausman et al.
(2004) reported on the auditory and physiology stress responses of
endangered Sonoran pronghorn to military overflights. Smith et al.
(2004a, 2004b) identified noise-induced physiological transient stress
responses in hearing-specialist fish (i.e., goldfish) that accompanied
short- and long-term hearing losses. Welch and Welch (1970) reported
physiological and behavioral stress responses that accompanied damage
to the inner ears of fish and several mammals.
Hearing is one of the primary senses marine mammals use to gather
information about their environment and to communicate with
conspecifics. Although empirical information on the relationship
between sensory impairment (TTS, PTS, and acoustic masking) on marine
mammals remains limited, it seems reasonable to assume that reducing an
animal's ability to gather information about its environment and to
communicate with other members of its species would be stressful for
animals that use hearing as their primary sensory mechanism. Therefore,
we assume that acoustic exposures sufficient to trigger onset PTS or
TTS would be accompanied by physiological stress responses because
terrestrial animals exhibit those responses under similar conditions
(NRC, 2003). More importantly, marine mammals might experience stress
responses at received levels lower than those necessary to trigger
onset TTS. Based on empirical studies of the time required to recover
from stress responses (Moberg, 2000), we also assume that stress
responses are likely to persist beyond the time interval required for
animals to recover from TTS and might result in pathological and pre-
pathological states that would be as significant as behavioral
responses to TTS.

Behavioral Disturbance

Behavioral responses to sound are highly variable and context-
specific. Many different variables can influence an animal's perception
of and response to (nature and magnitude) an acoustic event. An
animal's prior experience with a sound or sound source effects whether
it is less likely (habituation) or more likely (sensitization) to
respond to certain sounds in the future (animals can also be innately
pre-disposed to respond to certain sounds in certain ways) (Southall et
al., 2007). Related to the sound itself, the perceived nearness of the
sound, bearing of the sound (approaching vs. retreating), similarity of
a sound to biologically relevant sounds in the animal's environment
(i.e., calls of predators, prey, or conspecifics), and familiarity of
the sound may effect the way an animal responds to the sound (Southall
et al., 2007). Individuals (of different age, gender, reproductive
status, etc.) among most populations will have variable hearing
capabilities, and differing behavioral sensitivities to sounds that
will be affected by prior conditioning, experience, and current
activities of those individuals. Often, specific acoustic features of
the sound and contextual variables (i.e., proximity, duration, or
recurrence of the sound or the current behavior that the marine mammal
is engaged in or its prior experience), as well as entirely separate
factors such as the physical presence of a nearby vessel, may be more
relevant to the animal's response than the received level alone.
Exposure of marine mammals to sound sources can result in (but is
not limited to) the following observable responses: Increased
alertness; orientation or attraction to a sound source; vocal
modifications; cessation of feeding; cessation of social interaction;
alteration of movement or diving behavior; habitat abandonment
(temporary or permanent); and, in severe cases, panic, flight,
stampede, or stranding, potentially resulting in death (Southall et
al., 2007). A review of marine mammal responses to anthropogenic sound
was first conducted by Richardson and others in 1995. A more recent
review (Nowacek et al., 2007) addresses studies conducted since 1995
and focuses on observations where the received sound level of the
exposed marine mammal(s) was known or could be estimated. The following
sub-sections provide examples of behavioral responses that provide an
idea of the variability in behavioral responses that would be expected
given the differential sensitivities of marine mammal species to sound
and the wide range of potential acoustic sources to which a marine
mammal may be exposed. Estimates of the types of behavioral responses
that could occur for a given sound exposure should be

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determined from the literature that is available for each species, or
extrapolated from closely related species when no information exists.
Flight Response--A flight response is a dramatic change in normal
movement to a directed and rapid movement away from the perceived
location of a sound source. Relatively little information on flight
responses of marine mammals to anthropogenic signals exist, although
observations of flight responses to the presence of predators have
occurred (Connor and Heithaus, 1996). Flight responses have been
speculated as being a component of marine mammal strandings associated
with sonar activities (Evans and England, 2001).
Response to Predator--Evidence suggests that at least some marine
mammals have the ability to acoustically identify potential predators.
For example, harbor seals that reside in the coastal waters off British
Columbia are frequently targeted by certain groups of killer whales,
but not others. The seals discriminate between the calls of threatening
and non-threatening killer whales (Deecke et al., 2002), a capability
that should increase survivorship while reducing the energy required
for attending to and responding to all killer whale calls. The
occurrence of masking or hearing impairment provides a means by which
marine mammals may be prevented from responding to the acoustic cues
produced by their predators. Whether or not this is a possibility
depends on the duration of the masking/hearing impairment and the
likelihood of encountering a predator during the time that predator
cues are impeded.
Diving--Changes in dive behavior can vary widely. They may consist
of increased or decreased dive times and surface intervals as well as
changes in the rates of ascent and descent during a dive. Variations in
dive behavior may reflect interruptions in biologically significant
activities (e.g., foraging) or they may be of little biological
significance. Variations in dive behavior may also expose an animal to
potentially harmful conditions (e.g., increasing the chance of ship-
strike) or may serve as an avoidance response that enhances
survivorship. The impact of a variation in diving resulting from an
acoustic exposure depends on what the animal is doing at the time of
the exposure and the type and magnitude of the response.
Nowacek et al. (2004) reported disruptions of dive behaviors in
foraging North Atlantic right whales when exposed to an alerting
stimulus, an action, they noted, that could lead to an increased
likelihood of ship strike. However, the whales did not respond to
playbacks of either right whale social sounds or vessel noise,
highlighting the importance of the sound characteristics in producing a
behavioral reaction. Conversely, Indo-Pacific humpback dolphins have
been observed to dive for longer periods of time in areas where vessels
were present and/or approaching (Ng and Leung, 2003). In both of these
studies, the influence of the sound exposure cannot be decoupled from
the physical presence of a surface vessel, thus complicating
intepretations of the relative contribution of each stimulus to the
response. Indeed, the presence of surface vessels, their approach and
speed of approach, seemed to be significant factors in the response of
the Indo-Pacific humpback dolphins (Ng and Leung, 2003). Low frequency
signals of the Acoustic Thermometry of Ocean Climate (ATOC) sound
source were not found to affect dive times of humpback whales in
Hawaiian waters (Frankel and Clark, 2000) or to overtly affect elephant
seal dives (Costa et al., 2003). They did, however, produce subtle
effects that varied in direction and degree among the individual seals,
illustrating the equivocal nature of behavioral effects and consequent
difficulty in defining and predicting them.
Due to past incidents of beaked whale strandings associated with
sonar operations, feedback paths are provided between avoidance and
diving and indirect tissue effects. This feedback accounts for the
hypothesis that variations in diving behavior and/or avoidance
responses can possibly result in nitrogen tissue supersaturation and
nitrogen off-gassing, possibly to the point of deleterious vascular
bubble formation (Jepson et al., 2003).
Foraging--Disruption of feeding behavior can be difficult to
correlate with anthropogenic sound exposure, so it is usually inferred
by observed displacement from known foraging areas, the appearance of
secondary indicators (e.g., bubble nets or sediment plumes), or changes
in dive behavior. Noise from seismic surveys was not found to impact
the feeding behavior in western grey whales off the coast of Russia
(Yazvenko et al., 2007) and sperm whales engaged in foraging dives did
not abandon dives when exposed to distant signatures of seismic airguns
(Madsen et al., 2006). Balaenopterid whales exposed to moderate low-
frequency signals similar to the ATOC sound source demonstrated no
variation in foraging activity (Croll et al., 2001), whereas five out
of six North Atlantic right whales exposed to an acoustic alarm
interrupted their foraging dives (Nowacek et al., 2004). Although the
received sound pressure level at the animals was similar in the latter
two studies, the frequency, duration, and temporal pattern of signal
presentation were different. These factors, as well as differences in
species sensitivity, are likely contributing factors to the
differential response. A determination of whether foraging disruptions
incur fitness consequences will require information on or estimates of
the energetic requirements of the individuals and the relationship
between prey availability, foraging effort and success, and the life
history stage of the animal.
Breathing--Variations in respiration naturally vary with different
behaviors and variations in respiration rate as a function of acoustic
exposure can be expected to co-occur with other behavioral reactions,
such as a flight response or an alteration in diving. However,
respiration rates in and of themselves may be representative of
annoyance or an acute stress response. Mean exhalation rates of gray
whales at rest and while diving were found to be unaffected by seismic
surveys conducted adjacent to the whale feeding grounds (Gailey et al.,
2007). Studies with captive harbor porpoises showed increased
respiration rates upon introduction of acoustic alarms (Kastelein et
al., 2001; Kastelein et al., 2006a) and emissions for underwater data
transmission (Kastelein et al., 2005). However, exposure of the same
acoustic alarm to a striped dolphin under the same conditions did not
elicit a response (Kastelein et al., 2006a), again highlighting the
importance in understanding species differences in the tolerance of
underwater noise when determining the potential for impacts resulting
from anthropogenic sound exposure.
Social relationships--Social interactions between mammals can be
affected by noise via the disruption of communication signals or by the
displacement of individuals. Disruption of social relationships
therefore depends on the disruption of other behaviors (e.g., caused
avoidance, masking, etc.) and no specific overview is provided here.
However, social disruptions must be considered in context of the
relationships that are affected. Long-term disruptions of mother/calf
pairs or mating displays have the potential to affect the growth and
survival or reproductive effort/success of individuals, respectively.
Vocalizations (also see Masking Section)--Vocal changes in response
to anthropogenic noise can occur across

[[Page 60774]]

the repertoire of sound production modes used by marine mammals, such
as whistling, echolocation click production, calling, and singing.
Changes may result in response to a need to compete with an increase in
background noise or may reflect an increased vigilance or startle
response. For example, in the presence of low-frequency active sonar,
humpback whales have been observed to increase the length of their
``songs'' (Miller et al., 2000; Fristrup et al., 2003), possibly due to
the overlap in frequencies between the whale song and the low-frequency
active sonar. A similar compensatory effect for the presence of low
frequency vessel noise has been suggested for right whales; right
whales have been observed to shift the frequency content of their calls
upward while reducing the rate of calling in areas of increased
anthropogenic noise (Parks et al., 2007). Killer whales off the
northwestern coast of the United States have been observed to increase
the duration of primary calls once a threshold in observing vessel
density (e.g., whale watching) was reached, which has been suggested as
a response to increased masking noise produced by the vessels (Foote et
al., 2004). In contrast, both sperm and pilot whales potentially ceased
sound production during the Heard Island feasibility test (Bowles et
al., 1994), although it cannot be absolutely determined whether the
inability to acoustically detect the animals was due to the cessation
of sound production or the displacement of animals from the area.
Avoidance--Avoidance is the displacement of an individual from an
area as a result of the presence of a sound. Richardson et al. (1995)
noted that avoidance reactions are the most obvious manifestations of
disturbance in marine mammals. It is qualitatively different from the
flight response, but also differs in the magnitude of the response
(i.e., directed movement, rate of travel, etc.). Oftentimes avoidance
is temporary, and animals return to the area once the noise has ceased.
Longer term displacement is possible, however, which can lead to
changes in abundance or distribution patterns of the species in the
affected region if they do not become acclimated to the presence of the
sound (Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al.,
2006). Acute avoidance responses have been observed in captive
porpoises and pinnipeds exposed to a number of different sound sources
(Kastelein et al., 2001; Finneran et al., 2003; Kastelein et al.,
2006a; Kastelein et al., 2006b). Short term avoidance of seismic
surveys, low frequency emissions, and acoustic deterrants has also been
noted in wild populations of odontocetes (Bowles et al., 1994; Goold,
1996; 1998; Stone et al., 2000; Morton and Symonds, 2002) and to some
extent in mysticetes (Gailey et al., 2007), while longer term or
repetitive/chronic displacement for some dolphin groups and for
manatees has been suggested to be due to the presence of chronic vessel
noise (Haviland-Howell et al., 2007; Miksis-Olds et al., 2007).
Orientation--A shift in an animal's resting state or an attentional
change via an orienting response represent behaviors that would be
considered mild disruptions if occurring alone. As previously
mentioned, the responses may co-occur with other behaviors; for
instance, an animal may initially orient toward a sound source, and
then move away from it. Thus, any orienting response should be
considered in context of other reactions that may occur.
There are few empirical studies of avoidance responses of free-
living cetaceans to mid-frequency sonars. Much more information is
available on the avoidance responses of free-living cetaceans to other
acoustic sources, such as seismic airguns and low frequency tactical
sonar, than mid-frequency active sonar.

Behavioral Responses (Southall et al. (2007))

Southall et al. (2007) reports the results of the efforts of a
panel of experts in acoustic research from behavioral, physiological,
and physical disciplines that convened and reviewed the available
literature on marine mammal hearing and physiological and behavioral
responses to human-made sound with the goal of proposing exposure
criteria for certain effects. This peer-reviewed compilation of
literature is very valuable, though Southall et al. (2007) note that
not all data are equal, some have poor statistical power, insufficient
controls, and/or limited information on received levels, background
noise, and other potentially important contextual variables--such data
were reviewed and sometimes used for qualitative illustration but were
not included in the quantitative analysis for the criteria
recommendations. All of the studies considered, however, contain an
estimate of the received sound level when the animal exhibited the
indicated response.
In the Southall et al. (2007) publication, for the purposes of
analyzing responses of marine mammals to anthropogenic sound and
developing criteria, the authors differentiate between single pulse
sounds, multiple pulse sounds, and non-pulse sounds. MFAS/HFAS sonar is
considered a non-pulse sound. Southall et al. (2007) summarize the
studies associated with low-frequency, mid-frequency, and high-
frequency cetacean and pinniped responses to non-pulse sounds, based
strictly on received level, in Appendix C of their article
(incorporated by reference and summarized in the three paragraphs
below).
The studies that address responses of low frequency cetaceans to
non-pulse sounds include data gathered in the field and related to
several types of sound sources (of varying similarity to MFAS/HFAS)
including: Vessel noise, drilling and machinery playback, low-frequency
M-sequences (sine wave with multiple phase reversals) playback,
tactical low-frequency active sonar playback, drill ships, Acoustic
Thermometry of Ocean Climate (ATOC) source, and non-pulse playbacks.
These studies generally indicate no (or very limited) responses to
received levels in the 90 to 120 dB re: 1 [mu]Pa range and an
increasing likelihood of avoidance and other behavioral effects in the
120 to 160 dB range. As mentioned earlier, though, contextual variables
play a very important role in the reported responses and the severity
of effects is not linear when compared to received level. Also, few of
the laboratory or field datasets had common conditions, behavioral
contexts or sound sources, so it is not surprising that responses
differ.
The studies that address responses of mid-frequency cetaceans to
non-pulse sounds include data gathered both in the field and the
laboratory and related to several different sound sources (of varying
similarity to MFAS/HFAS) including: Pingers, drilling playbacks, ship
and ice-breaking noise, vessel noise, Acoustic Harassment Devices
(AHDs), Acoustic Deterrent Devices (ADDs), MFAS, and non-pulse bands
and tones. Southall et al. (2007) were unable to come to a clear
conclusion regarding the results of these studies. In some cases,
animals in the field showed significant responses to received levels
between 90 and 120 dB, while in other cases these responses were not
seen in the 120 to 150 dB range. The disparity in results was likely
due to contextual variation and the differences between the results in
the field and laboratory data (animals typically responded at lower
levels in the field).
The studies that address responses of high frequency cetaceans to
non-pulse sounds include data gathered both in the field and the
laboratory and related to several different sound sources (of varying
similarity to MFAS/HFAS)

[[Page 60775]]

including: Pingers, AHDs, and various laboratory non-pulse sounds. All
of these data were collected from harbor porpoises. Southall et al.
(2007) concluded that the existing data indicate that harbor porpoises
are likely sensitive to a wide range of anthropogenic sounds at low
received levels (~90-120 dB), at least for initial exposures. All
recorded exposures above 140 dB induced profound and sustained
avoidance behavior in wild harbor porpoises (Southall et al., 2007).
Rapid habituation was noted in some but not all studies. There is no
data to indicate whether other high frequency cetaceans are as
sensitive to anthropogenic sound as harbor porpoises are.
The studies that address the responses of pinnipeds in water to
non-pulse sounds include data gathered both in the field and the
laboratory and related to several different sound sources (of varying
similarity to MFAS/HFAS) including: AHDs, ATOC, various non-pulse
sounds used in underwater data communication; underwater drilling, and
construction noise. Few studies exist with enough information to
include them in the analysis. The limited data suggested that exposures
to non-pulse sounds between 90 and 140 dB generally do not result in
strong behavioral responses in pinnipeds in water, but no data exist at
higher received levels.
In addition to summarizing the available data, the authors of
Southall et al. (2007) developed a severity scaling system with the
intent of ultimately being able to assign some level of biological
significance to a response. Following is a summary of their scoring
system; a comprehensive list of the behaviors associated with each
score may be found in the report:
0-3 (Minor and/or brief behaviors) includes, but is not
limited to: no response; minor changes in speed or locomotion (but with
no avoidance); individual alert behavior; minor cessation in vocal
behavior; minor changes in response to trained behaviors (in
laboratory).
4-6 (Behaviors with higher potential to affect foraging,
reproduction, or survival) includes, but is not limited to: moderate
changes in speed, direction, or dive profile; brief shift in group
distribution; prolonged cessation or modification of vocal behavior
(duration > duration of sound), minor or moderate individual and/or
group avoidance of sound; brief cessation of reproductive behavior; or
refusal to initiate trained tasks (in laboratory).
7-9 (Behaviors considered likely to affect the
aforementioned vital rates) includes, but is not limited to: Extensive
or prolonged aggressive behavior; moderate, prolonged or significant
separation of females and dependent offspring with disruption of
acoustic reunion mechanisms; long-term avoidance of an area; outright
panic, stampede, stranding; threatening or attacking sound source (in
laboratory).
In Table 5 we have summarized the scores that Southall et al.
(2007) assigned to the papers that reported behavioral responses of
low-frequency cetaceans, mid-frequency cetaceans, and pinnipeds in
water to non-pulse sounds. This table is included simply to summarize
the findings of the studies and opportunistic observations (all of
which were capable of estimating received level) that Southall et al.
(2007) compiled in the effort to develop acoustic criteria.
[GRAPHIC] [TIFF OMITTED] TP14OC08.007

Potential Effects of Behavioral Disturbance

The different ways that marine mammals respond to sound are
sometimes indicators of the ultimate effect that exposure to a given
stimulus will have on the well-being (survival, reproduction, etc.) of
an animal (see Figure 1). There is little marine mammal data
quantitatively relating the exposure of marine mammals to sound to
effects on reproduction or survival, though data exists for terrestrial
species to which we can draw comparisons for marine mammals.
Attention is the cognitive process of selectively concentrating on
one aspect of an animal's environment while ignoring other things
(Posner, 1994). Because animals (including humans) have limited
cognitive resources, there is a limit to how much sensory information
they can process at any time. The phenomenon called ``attentional
capture'' occurs when a stimulus (usually a stimulus that an animal is
not concentrating on or attending to) ``captures'' an animal's
attention. This shift in attention can occur consciously or
unconsciously (for example, when an animal hears sounds that it
associates with the approach of a predator) and the shift in attention
can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has
captured an animal's attention, the animal can respond by ignoring the
stimulus, assuming a ``watch and wait'' posture, or treat the stimulus
as a disturbance

[[Page 60776]]

and respond accordingly, which includes scanning for the source of the
stimulus or ``vigilance'' (Cowlishaw et al., 2004).
Vigilance is normally an adaptive behavior that helps animals
determine the presence or absence of predators, assess their distance
from conspecifics, or to attend cues from prey (Bednekoff and Lima,
1998; Treves, 2000). Despite those benefits, however, vigilance has a
cost of time: when animals focus their attention on specific
environmental cues, they are not attending to other activities such a
foraging. These costs have been documented best in foraging animals,
where vigilance has been shown to substantially reduce feeding rates
(Saino, 1994; Beauchamp and Livoreil, 1997; Fritz et al., 2002).
Animals will spend more time being vigilant, which may translate to
less time foraging or resting, when disturbance stimuli approach them
more directly, remain at closer distances, have a greater group size
(for example, multiple surface vessels), or when they co-occur with
times that an animal perceives increased risk (for example, when they
are giving birth or accompanied by a calf). Most of the published
literature, however, suggests that direct approaches will increase the
amount of time animals will dedicate to being vigilant. For example,
bighorn sheep and Dall's sheep dedicated more time to being vigilant,
and less time resting or foraging, when aircraft made direct approaches
over them (Frid, 2001; Stockwell et al., 1991).
Several authors have established that long-term and intense
disturbance stimuli can cause population declines by reducing the body
condition of individuals that have been disturbed, followed by reduced
reproductive success, reduced survival, or both (Daan et al., 1996;
Madsen, 1994; White, 1983). For example, Madsen (1994) reported that
pink-footed geese (Anser brachyrhynchus) in undisturbed habitat gained
body mass and had about a 46-percent reproductive success rate compared
with geese in disturbed habitat (being consistently scared off the
fields on which they were foraging) which did not gain mass and has a
17 percent reproductive success rate. Similar reductions in
reproductive success have been reported for mule deer (Odocoileus
hemionus) disturbed by all-terrain vehicles (Yarmoloy et al., 1988),
caribou disturbed by seismic exploration blasts (Bradshaw et al.,
1998), caribou disturbed by low-elevation military jet-fights (Luick et
al., 1996), and caribou disturbed by low-elevation jet flights
(Harrington and Veitch, 1992). Similarly, a study of elk (Cervus
elaphus) that were disturbed experimentally by pedestrians concluded
that the ratio of young to mothers was inversely related to disturbance
rate (Phillips and Alldredge, 2000).
The primary mechanism by which increased vigilance and disturbance
appear to affect the fitness of individual animals is by disrupting an
animal's time budget and, as a result, reducing the time they might
spend foraging and resting (which increases an animal's activity rate
and energy demand). For example, a study of grizzly bears (Ursus
horribilis) reported that bears disturbed by hikers reduced their
energy intake by an average of 12 kcal/min (50.2 x 10\3\kJ/min), and
spent energy fleeing or acting aggressively toward hikers (White et
al., 1999).
On a related note, many animals perform vital functions, such as
feeding, resting, traveling, and socializing, on a diel cycle (24-hr
cycle). Substantive behavioral reactions to noise exposure (such as
disruption of critical life functions, displacement, or avoidance of
important habitat) are more likely to be significant if they last more
than one diel cycle or recur on subsequent days (Southall et al.,
2007). Consequently, a behavioral response lasting less than one day
and not recurring on subsequent days is not considered particularly
severe unless it could directly affect reproduction or survival
(Southall et al., 2007).

Stranding and Mortality

When a live or dead marine mammal swims or floats onto shore and
becomes ``beached'' or incapable of returning to sea, the event is
termed a ``stranding'' (Geraci et al., 1999; Perrin and Geraci, 2002;
Geraci and Lounsbury, 2005; National Marine Fisheries Service, 2007p).
The legal definition for a stranding within the United States is that
(A) ``a marine mammal is dead and is (i) on a beach or shore of the
United States; or (ii) in waters under the jurisdiction of the United
States (including any navigable waters); or (B) a marine mammal is
alive and is (i) on a beach or shore of the United States and is unable
to return to the water; (ii) on a beach or shore of the United States
and, although able to return to the water, is in need of apparent
medical attention; or (iii) in the waters under the jurisdiction of the
United States (including any navigable waters), but is unable to return
to its natural habitat under its own power or without assistance.'' (16
U.S.C. 1421h).
Marine mammals are known to strand for a variety of reasons, such
as infectious agents, biotoxicosis, starvation, fishery interaction,
ship strike, unusual oceanographic or weather events, sound exposure,
or combinations of these stressors sustained concurrently or in series.
However, the cause or causes of most strandings are unknown (Geraci et
al., 1976; Eaton, 1979, Odell et al., 1980; Best, 1982). Numerous
studies suggest that the physiology, behavior, habitat relationships,
age, or condition of cetaceans may cause them to strand or might pre-
dispose them the strand when exposed to another phenomenon. These
suggestions are consistent with the conclusions of numerous other
studies that have demonstrated that combinations of dissimilar
stressors commonly combine to kill an animal or dramatically reduce its
fitness, even though one exposure without the other does not produce
the same result (Chroussos, 2000; Creel, 2005; DeVries et al., 2003;
Fair and Becker, 2000; Foley et al., 2001; Moberg, 2000; Relyea, 2005a;
2005b, Romero, 2004; Sih et al., 2004).
Several sources have published lists of mass stranding events of
cetaceans during attempts to identify relationships between those
stranding events and military sonar (Hildebrand, 2004; IWC, 2005;
Taylor et al., 2004). For example, based on a review of stranding
records between 1960 and 1995, the International Whaling Commission
(2005) identified ten mass stranding events of Cuvier's beaked whales
that had been reported and one mass stranding of four Baird's beaked
whale (Berardius bairdii). The IWC concluded that, out of eight
stranding events reported from the mid-1980s to the summer of 2003,
seven had been coincident with the use of tactical mid-frequency sonar,
one of those seven had been associated with the use of tactical low-
frequency sonar, and the remaining stranding event had been associated
with the use of seismic airguns.
Most of the stranding events reviewed by the International Whaling
Commission involved beaked whales. A mass stranding of Cuvier's beaked
whales in the eastern Mediterranean Sea occurred in 1996 (Franzis,
1998) and mass stranding events involving Gervais' beaked whales,
Blainville's beaked whales, and Cuvier's beaked whales occurred off the
coast of the Canary Islands in the late 1980s (Simmonds and Lopez-
Jurado, 1991). The stranding events that occurred in the Canary Islands
and Kyparissiakos Gulf in the late 1990s and the Bahamas in 2000 have
been the most intensively-studied mass stranding events and have been
associated with naval maneuvers involving the use of tactical sonar.

[[Page 60777]]

Between 1960 and 2006, 48 strandings (68 percent) involved beaked
whales, 3 (4 percent) involved dolphins, and 14 (20 percent) involved
whale species. Cuvier's beaked whales were involved in the greatest
number of these events (48 or 68 percent), followed by sperm whales (7
or 10 percent), and Blainville's and Gervais' beaked whales (4 each or
6 percent). Naval activities that might have involved active sonar are
reported to have coincided with 9 (13 percent) or 10 (14 percent) of
those stranding events. Between the mid-1980s and 2003 (the period
reported by the International Whaling Commission), we identified
reports of 44 mass cetacean stranding events of which at least 7 were
coincident with naval exercises that were using mid-frequency sonar.

Strandings Associated With MFAS

Over the past 12 years, there have been five stranding events
coincident with military mid-frequency sonar use in which exposure to
sonar is believed to have been a contributing factor: Greece (1996);
the Bahamas (2000); Madeira (2000); Canary Islands (2002); and Spain
(2006). A number of other stranding events coincident with the
operation of mid-frequency sonar including the death of beaked whales
or other species (minke whales, dwarf sperm whales, pilot whales) have
been reported, however, the majority have not been investigated to the
degree necessary to determine the cause of the stranding.

Greece (1996)

Twelve Cuvier's beaked whales stranded atypically (in both time and
space) along a 38.2-kilometer strand of the coast of the Kyparissiakos
Gulf on May 12 and 13, 1996 (Frantzis, 1998). From May 11 through May
15, the NATO research vessel Alliance was conducting sonar tests with
signals of 600 Hz and 3 kHz and source levels of 228 and 226 dB re:
1[mu]Pa, respectively (D'Amico and Verboom, 1998; D'Spain et al.,
2006). The timing and the location of the testing encompassed the time
and location of the whale strandings (Frantzis, 1998).
Necropsies of eight of the animals were performed but were limited
to basic external examination and sampling of stomach contents, blood,
and skin. No ears or organs were collected, and no histological samples
were preserved. No apparent abnormalities or wounds were found
(Frantzis, 2004). Examination of photos of the animals, taken soon
after their death, revealed that the eyes of at least four of the
individuals were bleeding. Photos were taken soon after their death
(Frantzis, 2004). Stomach contents contained the flesh of cephalopods,
indicating that feeding had recently taken place (Frantzis, 1998).
All available information regarding the conditions associated with
this stranding event were compiled, and many potential causes were
examined including major pollution events, prominent tectonic activity,
unusual physical or meteorological events, magnetic anomalies,
epizootics, and conventional military activities (International Council
for the Exploration of the Sea, 2005a). However, none of these
potential causes coincided in time or space with the mass stranding, or
could explain its characteristics (International Council for the
Exploration of the Sea, 2005a). The robust condition of the animals,
plus the recent stomach contents, is inconsistent with pathogenic
causes (Frantzis, 2004). In addition, environmental causes can be ruled
out as there were no unusual environmental circumstances or events
before or during this time period and within the general proximity
(Frantzis, 2004).
It was determined that because of the rarity of this mass stranding
of Cuvier's beaked whales in the Kyparissiakos Gulf (first one in
history), the probability for the two events (the military exercises
and the strandings) to coincide in time and location, while being
independent of each other, was extremely low (Frantzis, 1998). However,
because full necropsies had not been conducted, and no abnormalities
were noted, the cause of the strandings could not be precisely
determined (Cox et al., 2006). The analysis of this stranding event
provided support for, but no clear evidence for, the cause-and-effect
relationship of tactical sonar training activities and beaked whale
strandings (Cox et al., 2006).

Bahamas (2000)

NMFS and the Navy prepared a joint report addressing the multi-
species stranding in the Bahamas in 2000, which took place within 24
hours of U.S. Navy ships using MFAS as they passed through the
Northeast and Northwest Providence Channels on March 15-16, 2000. The
ships, which operated both AN/SQS-53C and AN/SQS-56, moved through the
channel while emitting sonar pings approximately every 24 seconds. Of
the 17 cetaceans that stranded over a 36-hr period (Cuvier's beaked
whales, Blainville's beaked whales, Minke whales, and a spotted
dolphin), seven animals died on the beach (5 Cuvier's beaked whales, 1
Blainville's beaked whale, and the spotted dolphin), while the other 10
were returned to the water alive (though their ultimate fate is
unknown).
Necropsies were performed on five of the stranded beaked whales.
All five necropsied beaked whales were in good body condition, showing
no signs of infection, disease, ship strike, blunt trauma, or fishery
related injuries, and three still had food remains in their stomachs.
Auditory structural damage was discovered in four of the whales,
specifically bloody effusions or hemorrhaging around the ears.
Bilateral intracochlear and unilateral temporal region subarachnoid
hemorrhage, with blood clots in the lateral ventricles, were found in
two of the whales. Three of the whales had small hemorrhages in their
acoustic fats (located along the jaw and in the melon).
A comprehensive investigation was conducted and all possible causes
of the stranding event were considered, whether they seemed likely at
the outset or not. Based on the way in which the strandings coincided
with ongoing naval activity involving tactical MFAS use, in terms of
both time and geography, the nature of the physiological effects
experienced by the dead animals, and the absence of any other acoustic
sources, the investigation team concluded that MFAS aboard U.S. Navy
ships that were in use during the sonar exercise in question were the
most plausible source of this acoustic or impulse trauma to beaked
whales. This sound source was active in a complex environment that
included the presence of a surface duct, unusual and steep bathymetry,
a constricted channel with limited egress, intensive use of multiple,
active sonar units over an extended period of time, and the presence of
beaked whales that appear to be sensitive to the frequencies produced
by these sonars. The investigation team concluded that the cause of
this stranding event was the confluence of the Navy MFAS and these
contributory factors working together, and further recommended that the
Navy avoid operating MFAS in situations where these five factors would
be likely to occur. This report does not conclude that all five of
these factors must be present for a stranding to occur, nor that beaked
whales are the only species that could potentially be affected by the
confluence of the other factors. Based on this, NMFS believes that the
operation of MFAS in situations where surface ducts exist, or in marine
environments defined by steep bathymetry and/or constricted channels
may increase the likelihood of producing a sound field with the
potential to cause cetaceans

[[Page 60778]]

(especially beaked whales) to strand, and therefore, suggests the need
for increased vigilance while operating MFAS in these areas, especially
when beaked whales (or potentially other deep divers) are likely
present.

Madeira, Spain (2000)

From May 10-14, 2000, three Cuvier's beaked whales were found
atypically stranded on two islands in the Madeira archipelago, Portugal
(Cox et al., 2006). A fourth animal was reported floating in the
Madeiran waters by fisherman but did not come ashore (Woods Hole
Oceanographic Institution, 2005). Joint NATO amphibious training
peacekeeping exercises involving participants from 17 countries 80
warships, took place in Portugal during May 2-15, 2000.
The bodies of the three stranded whales were examined post mortem
(Woods Hole Oceanographic Institution, 2005), though only one of the
stranded whales was fresh enough (24 hours after stranding) to be
necropsied (Cox et al., 2006). Results from the necropsy revealed
evidence of hemorrhage and congestion in the right lung and both
kidneys (Cox et al., 2006). There was also evidence of intercochlear
and intracranial hemorrhage similar to that which was observed in the
whales that stranded in the Bahamas event (Cox et al., 2006). There
were no signs of blunt trauma, and no major fractures (Woods Hole
Oceanographic Institution, 2005). The cranial sinuses and airways were
found to be clear with little or no fluid deposition, which may
indicate good preservation of tissues (Woods Hole Oceanographic
Institution, 2005).
Several observations on the Madeira stranded beaked whales, such as
the pattern of injury to the auditory system, are the same as those
observed in the Bahamas strandings. Blood in and around the eyes,
kidney lesions, pleural hemorrhages, and congestion in the lungs are
particularly consistent with the pathologies from the whales stranded
in the Bahamas, and are consistent with stress and pressure related
trauma. The similarities in pathology and stranding patterns between
these two events suggest that a similar pressure event may have
precipitated or contributed to the strandings at both sites (Woods Hole
Oceanographic Institution, 2005).
Even though no definitive causal link can be made between the
stranding event and naval exercises, certain conditions may have
existed in the exercise area that, in their aggregate, may have
contributed to the marine mammal strandings (Freitas, 2004): Exercises
were conducted in areas of at least 547 fathoms (1,000 m) depth near a
shoreline where there is a rapid change in bathymetry on the order of
547 to 3,281 (1,000--6,000 m) fathoms occurring across a relatively
short horizontal distance (Freitas, 2004); multiple ships were
operating around Madeira, though it is not known if MFA sonar was used,
and the specifics of the sound sources used are unknown (Cox et al.,
2006, Freitas, 2004); exercises took place in an area surrounded by
landmasses separated by less than 35 nm (65 km) and at least 10 nm (19
km) in length, or in an embayment. Exercises involving multiple ships
employing MFA near land may produce sound directed towards a channel or
embayment that may cut off the lines of egress for marine mammals
(Freitas, 2004).

Canary Islands, Spain (2002)

The southeastern area within the Canary Islands is well known for
aggregations of beaked whales due to its ocean depths of greater than
547 fathoms (1,000 m) within a few hundred meters of the coastline
(Fernandez et al., 2005). On September 24, 2002, 14 beaked whales were
found stranded on Fuerteventura and Lanzarote Islands in the Canary
Islands (International Council for Exploration of the Sea, 2005a).
Seven whales died, while the remaining seven live whales were returned
to deeper waters (Fernandez et al., 2005). Four beaked whales were
found stranded dead over the next 3 days either on the coast or
floating offshore. These strandings occurred within near proximity of
an international naval exercise that utilized MFAS and involved
numerous surface warships and several submarines. Strandings began
about 4 hours after the onset of MFA sonar activity (International
Council for Exploration of the Sea, 2005a; Fernandez et al., 2005).
Eight Cuvier's beaked whales, one Blainville's beaked whale, and
one Gervais' beaked whale were necropsied, six of them within 12 hours
of stranding (Fernandez et al., 2005). No pathogenic bacteria were
isolated from the carcasses (Jepson et al., 2003). The animals
displayed severe vascular congestion and hemorrhage especially around
the tissues in the jaw, ears, brain, and kidneys, displaying marked
disseminated microvascular hemorrhages associated with widespread fat
emboli (Jepson et al., 2003; International Council for Exploration of
the Sea, 2005a). Several organs contained intravascular bubbles,
although definitive evidence of gas embolism in vivo is difficult to
determine after death (Jepson et al., 2003). The livers of the
necropsied animals were the most consistently affected organ, which
contained macroscopic gas-filled cavities and had variable degrees of
fibrotic encapsulation. In some animals, cavitary lesions had
extensively replaced the normal tissue (Jepson et al., 2003). Stomachs
contained a large amount of fresh and undigested contents, suggesting a
rapid onset of disease and death (Fernandez et al., 2005). Head and
neck lymph nodes were enlarged and congested, and parasites were found
in the kidneys of all animals (Fernandez et al., 2005).
The association of NATO MFA sonar use close in space and time to
the beaked whale strandings, and the similarity between this stranding
event and previous beaked whale mass strandings coincident with sonar
use, suggests that a similar scenario and causative mechanism of
stranding may be shared between the events. Beaked whales stranded in
this event demonstrated brain and auditory system injuries,
hemorrhages, and congestion in multiple organs, similar to the
pathological findings of the Bahamas and Madeira stranding events. In
addition, the necropsy results of Canary Islands stranding event lead
to the hypothesis that the presence of disseminated and widespread gas
bubbles and fat emboli were indicative of nitrogen bubble formation,
similar to what might be expected in decompression sickness (Jepson et
al., 2003; Fernandez et al., 2005).

Spain (2006)

The Spanish Cetacean Society reported an atypical mass stranding of
four beaked whales that occurred January 26, 2006, on the southeast
coast of Spain, near Mojacar (Gulf of Vera) in the Western
Mediterranean Sea. According to the report, two of the whales were
discovered the evening of January 26 and were found to be still alive.
Two other whales were discovered during the day on January 27, but had
already died. The fourth animal was found dead on the afternoon of
January 27, a few kilometers north of the first three animals. From
January 25-26, 2006, Standing North Atlantic Treaty Organization (NATO)
Response Force Maritime Group Two (five of seven ships including one
U.S. ship under NATO Operational Control) had conducted active sonar
training against a Spanish submarine within 50 nm (93 km) of the
stranding site.
Veterinary pathologists necropsied the two male and two female
Cuvier's beaked whales. According to the pathologists, the most likely
primary

[[Page 60779]]

cause of this type of beaked whale mass stranding event was
anthropogenic acoustic activities, most probably anti-submarine MFAS
used during the military naval exercises. However, no positive acoustic
link was established as a direct cause of the stranding. Even though no
causal link can be made between the stranding event and naval
exercises, certain conditions may have existed in the exercise area
that, in their aggregate, may have contributed to the marine mammal
strandings (Freitas, 2004): exercises were conducted in areas of at
least 547 fathoms (1000 m) depth near a shoreline where there is a
rapid change in bathymetry on the order of 547 to 3,281 fathoms (1000-
6000 m) occurring across a relatively short horizontal distance
(Freitas, 2004); multiple ships (in this instance, five) were operating
MFAS in the same area over extended periods of time (in this case, 20
hours) in close proximity; Exercises took place in an area surrounded
by landmasses, or in an embayment. Exercises involving multiple ships
employing MFA sonar near land may have produced sound directed towards
a channel or embayment that may have cut off the lines of egress for
the affected marine mammals (Freitas, 2004).

Association Between Mass Stranding Events and Exposure to MFAS

Several authors have noted similarities between some of these
stranding incidents: they occurred in islands or archipelagoes with
deep water nearby, several appeared to have been associated with
acoustic waveguides like surface ducting, and the sound fields created
by ships transmitting MFAS (Cox et al., 2006, D'Spain et al., 2006).
Although Cuvier's beaked whales have been the most common species
involved in these stranding events (81 percent of the total number of
stranded animals), other beaked whales (including Mesoplodon europeaus,
M. densirostris, and Hyperoodon ampullatus) comprise 14 percent of the
total. Other species (Stenella coeruleoalba, Kogia breviceps and
Balaenoptera acutorostrata) have stranded, but in much lower numbers
and less consistently than beaked whales.
Based on the evidence available, however, we cannot determine
whether (a) Cuvier's beaked whale is more prone to injury from high-
intensity sound than other species, (b) their behavioral responses to
sound makes them more likely to strand, or (c) they are more likely to
be exposed to MFAS than other cetaceans (for reasons that remain
unknown). Because the association between active sonar exposures and
marine mammals mass stranding events is not consistent--some marine
mammals strand without being exposed to sonar and some sonar
transmissions are not associated with marine mammal stranding events
despite their co-occurrence--other risk factors or a grouping of risk
factors probably contribute to these stranding events.

Behaviorally Mediated Responses to MFAS That May Lead to Stranding

Although the confluence of Navy MFAS with the other contributory
factors noted in the report was identified as the cause of the 2000
Bahamas stranding event, the specific mechanisms that led to that
stranding (or the others) are not understood, and there is uncertainty
regarding the ordering of effects that led to the stranding. It is
unclear whether beaked whales were directly injured by sound
(acoustically mediated bubble growth, addressed above) prior to
stranding or whether a behavioral response to sound occurred that
ultimately caused the beaked whales to be injured and strand.
Although causal relationships between beaked whale stranding events
and active sonar remain unknown, several authors have hypothesized that
stranding events involving these species in the Bahamas and Canary
Islands may have been triggered when the whales changed their dive
behavior in a startled response to exposure to active sonar or to
further avoid exposure (Cox et al., 2006, Rommel et al., 2006). These
authors proposed three mechanisms by which the behavioral responses of
beaked whales upon being exposed to active sonar might result in a
stranding event. These include: gas bubble formation caused by
excessively fast surfacing; remaining at the surface too long when
tissues are supersaturated with nitrogen; or diving prematurely when
extended time at the surface is necessary to eliminate excess nitrogen.
More specifically, beaked whales that occur in deep waters that are in
close proximity to shallow waters (for example, the ``canyon areas''
that are cited in the Bahamas stranding event; see D'Spain and D'Amico,
2006), may respond to active sonar by swimming into shallow waters to
avoid further exposures and strand if they were not able to swim back
to deeper waters. Second, beaked whales exposed to active sonar might
alter their dive behavior. Changes in their dive behavior might cause
them to remain at the surface or at depth for extended periods of time
which could lead to hypoxia directly by increasing their oxygen demands
or indirectly by increasing their energy expenditures (to remain at
depth) and increase their oxygen demands as a result. If beaked whales
are at depth when they detect a ping from an active sonar transmission
and change their dive profile, this could lead to the formation of
significant gas bubbles, which could damage multiple organs or
interfere with normal physiological function (Cox et al., 2006; Rommel
et al., 2006; Zimmer and Tyack, 2007). Baird et al. (2005) found that
slow ascent rates from deep dives and long periods of time spent within
50 m of the surface were typical for both Cuvier's and Blainville's
beaked whales, the two species involved in mass strandings related to
naval sonar. These two behavioral mechanisms may be necessary to purge
excessive dissolved nitrogen concentrated in their tissues during their
frequent long dives (Baird et al., 2005). Baird et al. (2005) further
suggests that abnormally rapid ascents or premature dives in response
to high-intensity sonar could indirectly result in physical harm to the
beaked whales, through the mechanisms described above (gas bubble
formation or non-elimination of excess nitrogen).
Because many species of marine mammals make repetitive and
prolonged dives to great depths, it has long been assumed that marine
mammals have evolved physiological mechanisms to protect against the
effects of rapid and repeated decompressions. Although several
investigators have identified physiological adaptations that may
protect marine mammals against nitrogen gas supersaturation (alveolar
collapse and elective circulation; Kooyman et al., 1972; Ridgway and
Howard, 1979), Ridgway and Howard (1979) reported that bottlenose
dolphins (Tursiops truncatus) that were trained to dive repeatedly had
muscle tissues that were substantially supersaturated with nitrogen
gas. Houser et al. (2001) used these data to model the accumulation of
nitrogen gas within the muscle tissue of other marine mammal species
and concluded that cetaceans that dive deep and have slow ascent or
descent speeds would have tissues that are more supersaturated with
nitrogen gas than other marine mammals. Based on these data, Cox et al.
(2006) hypothesized that a critical dive sequence might make beaked
whales more prone to stranding in response to acoustic exposures. The
sequence began with (1) very deep (to depths as deep as 2 kilometers)
and long (as long as 90 minutes) foraging dives with (2) relatively
slow, controlled ascents, followed by (3) a series of ``bounce'' dives
between 100 and 400

[[Page 60780]]

meters in depth (also see Zimmer and Tyack, 2007). They concluded that
acoustic exposures that disrupted any part of this dive sequence (for
example, causing beaked whales to spend more time at surface without
the bounce dives that are necessary to recover from the deep dive)
could produce excessive levels of nitrogen supersaturation in their
tissues, leading to gas bubble and emboli formation that produces
pathologies similar to decompression sickness.
Recently, Zimmer and Tyack (2007) modeled nitrogen tension and
bubble growth in several tissue compartments for several hypothetical
dive profiles and concluded that repetitive shallow dives (defined as a
dive where depth does not exceed the depth of alveolar collapse,
approximately 72 m for Ziphius), perhaps as a consequence of an
extended avoidance reaction to sonar sound, could pose a risk for
decompression sickness and that this risk should increase with the
duration of the response. Their models also suggested that
unrealistically rapid ascent rates of ascent from normal dive behaviors
are unlikely to result in supersaturation to the extent that bubble
formation would be expected. Tyack et al. (2006) suggested that emboli
observed in animals exposed to mid-frequency range sonar (Jepson et
al., 2003; Fernandez et al., 2005) could stem from a behavioral
response that involves repeated dives shallower than the depth of lung
collapse. Given that nitrogen gas accumulation is a passive process
(i.e. nitrogen is metabolically inert), a bottlenose dolphin was
trained to repetitively dive a profile predicted to elevate nitrogen
saturation to the point that nitrogen bubble formation was predicted to
occur. However, inspection of the vascular system of the dolphin via
ultrasound did not demonstrate the formation of asymptomatic nitrogen
gas bubbles (Houser et al., 2007).
If marine mammals respond to a Navy vessel that is transmitting
active sonar in the same way that they might respond to a predator,
their probability of flight responses should increase when they
perceive that Navy vessels are approaching them directly, because a
direct approach may convey detection and intent to capture (Burger and
Gochfeld, 1981, 1990; Cooper, 1997, 1998). The probability of flight
responses should also increase as received levels of active sonar
increase (and the ship is, therefore, closer) and as ship speeds
increase (that is, as approach speeds increase). For example, the
probability of flight responses in Dall's sheep (Ovis dalli dalli)
(Frid 2001a, b), ringed seals (Phoca hispida) (Born et al., 1999),
Pacific brant (Branta bernic nigricans) and Canada geese (B.
canadensis) increased as a helicopter or fixed-wing aircraft approached
groups of these animals more directly (Ward et al., 1999). Bald eagles
(Haliaeetus leucocephalus) perched on trees alongside a river were also
more likely to flee from a paddle raft when their perches were closer
to the river or were closer to the ground (Steidl and Anthony, 1996).
Despite the many theories involving bubble formation (both as a
direct cause of injury (see Acoustically Mediated Bubble Growth
Section) and an indirect cause of stranding (See Behaviorally Mediated
Bubble Growth Section), Southall et al. (2007) summarizes that there is
either scientific disagreement or a lack of information regarding each
of 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 the post mortem
artifacts introduced by decomposition before sampling, handling,
freezing, or necropsy procedures affect interpretation of observed
lesions.
During AFAST exercises there will be use of multiple sonar units in
areas where six species of beaked whale species may be present. A
surface duct may be present in a limited area for a limited period of
time. Although most of the ASW training events will take place in the
deep ocean, some will occur in areas of high bathymetric relief.
However, none of the training events will take place in a location
having a constricted channel with limited egress similar to the Bahamas
(because none exist in the AFAST Study Area). Consequently, not all
five of the environmental factors believed to contribute to the Bahamas
stranding (mid-frequency sonar, beaked whale presence, surface ducts,
steep bathymetry, and constricted channels with limited egress) will be
present during AFAST exercises. However, as mentioned previously, NMFS
recommends caution when steep bathymetry, surface ducting conditions,
or a constricted channel is present when mid-frequency tactical sonar
is employed and cetaceans (especially beaked whales) are present.

IEER (Underwater Detonation of Small Explosive Charges)

IEER includes the underwater detonation of small (4.1 lb) charges.
Underwater detonations send a shock wave and blast noise through the
water and can release gaseous by-products, create an oscillating
bubble, or cause a plume of water to shoot up from the water surface
(IEER charges do not cause a plume because of their relatively small
size). The shock wave and accompanying noise are of most concern to
marine animals. Depending on the intensity of the shock wave and size,
location, and depth of the animal, an animal can be injured, killed,
suffer non-lethal physical effects, experience hearing related effects
with or without behavioral responses, or exhibit temporary behavioral
responses or tolerance from hearing the blast sound. Generally,
exposures to higher levels of impulse and pressure levels would result
in greater impacts to an individual animal. Animals would need to be
very close to the smaller explosives used in the IEER exercises to be
exposed to levels of pressure or sound that would likely result in the
more severe effects discussed here.
Injuries resulting from a shock wave take place at boundaries
between tissues of different densities. Different velocities are
imparted to tissues of different densities, and this can lead to their
physical disruption. Blast effects are greatest at the gas-liquid
interface (Landsberg, 2000). Gas-containing organs, particularly the
lungs and gastrointestinal tract, are especially susceptible (Goertner,
1982; Hill, 1978; Yelverton et al., 1973). In addition, gas-containing
organs including the nasal sacs, larynx, pharynx, trachea, and lungs
may be damaged by compression/expansion caused by the oscillations of
the blast gas bubble (Reidenberg and Laitman, 2003). Intestinal walls
can bruise or rupture, with subsequent hemorrhage and escape of gut
contents into the body cavity. Less severe gastrointestinal tract
injuries include contusions, petechiae (small red or purple spots
caused by bleeding in the skin), and slight hemorrhaging (Yelverton et
al., 1973).
Because the ears are the most sensitive to pressure, they are the
organs most sensitive to injury (Ketten, 2000). Sound-related damage
associated with blast noise can be theoretically distinct from injury
from the shock wave, particularly farther from the explosion. If an
animal is able to hear a noise, at some level it can damage its hearing
by causing decreased sensitivity (Ketten, 1995) (See Noise-induced
Threshold

[[Page 60781]]

Shift Section above). Sound-related trauma can be lethal or sublethal.
Lethal impacts are those that result in immediate death or serious
debilitation in or near an intense source and are not, technically,
pure acoustic trauma (Ketten, 1995). Sublethal impacts include hearing
loss, which is caused by exposures to perceptible sounds. Severe damage
(from the shock wave) to the ears includes tympanic membrane rupture,
fracture of the ossicles, damage to the cochlea, hemorrhage, and
cerebrospinal fluid leakage into the middle ear. Moderate injury
implies partial hearing loss due to tympanic membrane rupture and blood
in the middle ear. Permanent hearing loss also can occur when the hair
cells are damaged by one very loud event, as well as by prolonged
exposure to a loud noise or chronic exposure to noise. The level of
impact from blasts depends on both an animal's location and, at outer
zones, on its sensitivity to the residual noise (Ketten, 1995).
There have been fewer studies addressing the behavioral effects of
explosives on marine mammals than MFAS/HFAS. However, though the nature
of the sound waves emitted from an explosion are different (in shape
and rise time) from MFAS/HFAS, we still anticipate the same sorts of
behavioral responses (see Exposure to MFAS/HFAS: Behavioral Disturbance
Section) to result from repeated explosive detonations (a smaller range
of likely less severe responses (i.e., not rising to the level of MMPA
harassment) would be expected to occur as a result of exposure to a
single explosive detonation that was not powerful enough or close
enough to the animal to cause TTS or injury).

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
incidental take authorization process such that ``least practicable
adverse impact'' shall include consideration of personnel safety,
practicality of implementation, and impact on the effectiveness of the
``military readiness activity''. The training activities described in
the AFAST application are considered military readiness activities.
NMFS reviewed the proposed AFAST activities and the proposed AFAST
mitigation measures presented in the Navy's application to determine
whether the activities and mitigation measures were capable of
achieving the least practicable adverse effect on marine mammals. NMFS
determined that further discussion was necessary regarding: (1) general
minimization of marine mammal impacts; (2) minimization of impacts
within the southeastern NARW critical habitat; and (3) the potential
relationship between the operation of MFAS/HFAS and marine mammal
strandings. NMFS worked with the Navy to identify additional
practicable and effective mitigation measures, which included a careful
balancing of the likely benefit of any particular measure to the marine
mammals with the likely effect of that measure on personnel safety,
practicality of implementation, and impact on the ``military readiness
activity''.
NMFS and the Navy developed additional mitigation measures that
address the concerns mentioned above, including the development of
Planning Awareness Areas (PAAs), additional minimization of impacts in
the southeastern NARW critical habitat, and a Stranding Response Plan.
Included below are the mitigation measures the Navy initially proposed
(see ``Mitigation Measures Proposed in the Navy's LOA Application'')
and the additional measures that NMFS and the Navy developed (see
``Additional Measures Developed by NMFS and the Navy'' below).
Separately, NMFS has previously received comments from the public
expressing concerns regarding potential delays between when marine
mammals are visually detected by watchstanders and when the tactical
sonar is actually powered or shut down. NMFS and the Navy have
discussed this issue and determined the following: Naval operators and
lookouts are aware of the potential for a very small delay (up to about
4 seconds) between detecting a marine mammal and powering down or
shutting down the tactical sonar and will take the actions necessary to
ensure that sonar is powered down or shut down when detected animals
are within the specified powerdown or shutdown zone (for example, by
initiating shutdown when animals are approaching, but not quite within
the designated distance).

Mitigation Measures Proposed in the Navy's LOA Application

This section includes the protective measures proposed by the Navy
and is taken directly from their application (with the exception of
headings, which have been modified for increased clarity within the
context of this proposed rule).

Navy's Protective Measures for MFAS/HFAS

Current protective measures employed by the Navy include applicable
training of personnel and implementation of activity specific
procedures resulting in minimization and/or avoidance of interactions
with protected resources.
Navy shipboard lookout(s) are highly qualified and experienced
marine observers. At all times, the shipboard lookouts are required to
sight and report, to the Officer of the Deck, all objects found in the
water. Objects (e.g., trash, periscope) or disturbances (e.g., surface
disturbance, discoloration) in the water may indicate a threat to the
vessel and its crew. Navy lookouts undergo extensive training to
qualify as a watchstander. This training includes on-the-job
instruction under the supervision of an experienced watchstander,
followed by completion of the Personal Qualification Standard (PQS)
program, certifying that they have demonstrated the necessary skills to
detect and report partially submerged objects. In addition to these
requirements, many watchstanders periodically undergo a two-day
refresher training course.
For the past few years, the Navy has implemented marine mammal
spotter training for its bridge lookout personnel on ships and
submarines. This training has been revamped and updated as the Marine
Species Awareness Training (MSAT) and is provided to all applicable
units. The lookout training program incorporates MSAT, which addresses
the lookout's role in environmental protection, laws governing the
protection of marine species, Navy stewardship commitments, and general
observation information including more detailed information for
spotting marine mammals. MSAT has been reviewed by NMFS and
acknowledged as suitable training. MSAT would also be provided to the
following personnel:
Bridge personnel on ships and submarines--Personnel would
continue to use the current marine mammal spotting training and any
updates.
Aviation units--Pilots and air crew personnel whose
airborne duties during ASW training activities include searching for
submarine periscopes would be trained in marine mammal spotting. These
personnel would also be trained on the details of the mitigation

[[Page 60782]]

measures specific to both their platform and that of the surface
combatants with which they are associated.
Sonar personnel on ships, submarines, and ASW aircraft--
Both passive and active sonar operators on ships, submarines, and
aircraft utilize protective measures relative to their platform. The
Navy issues a Letter of Instruction for each Major Exercise which
mandates specific actions to be taken if a marine mammal is detected,
and these actions are standard operating procedure throughout the
exercise.
The following procedures would be implemented to maximize the
ability of operators to recognize instances when marine mammals are in
the vicinity.

Personnel Training

(a) All lookouts onboard platforms involved in ASW training events
will review the NMFS-approved MSAT material prior to use of active
sonar.
(b) All Commanding Officers, Executive Officers, and officers
standing watch on the bridge will have reviewed the MSAT material prior
to a training event employing the use of MFAS.
(c) Navy lookouts will undertake extensive training in order to
qualify as a watchstander in accordance with the Lookout Training
Handbook (NAVEDTRA, 12968-D).
(d) Lookout training will include on-the-job instruction under the
supervision of a qualified, experienced watchstander. Following
successful completion of this supervised training period, lookouts will
complete the Personal Qualification Standard program, certifying that
they have demonstrated the necessary skills (such as detection and
reporting of partially submerged objects). This does not forbid
personnel being trained as lookouts from being counted as those listed
in previous measures so long as supervisors monitor their progress and
performance.
(e) Lookouts would be trained to quickly and effectively
communicate within the command structure in order to facilitate
implementation of protective measures if marine species are spotted.

Lookout and Watchstander Responsibilities

(a) On the bridge of surface ships, there will always be at least
three people on watch whose duties include observing the water surface
around the vessel.
(b) All surface ships participating in ASW exercises will, in
addition to the three personnel on watch noted previously, have at all
times during the exercise at least two additional personnel on watch as
lookouts.
(c) Personnel on lookout and officers on watch on the bridge will
have at least one set of binoculars available for each person to aid in
the detection of marine mammals.
(d) On surface vessels equipped with mid-frequency active sonar,
pedestal mounted ``Big Eye'' (20x110) binoculars will be present and in
good working order to assist in the detection of marine mammals in the
vicinity of the vessel.
(e) Personnel on lookout will employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
(f) Surface lookouts would scan the water from the ship to the
horizon and be responsible for all contacts in their sector. In
searching the assigned sector, the lookout would always start at the
forward part of the sector and search aft (toward the back). To search
and scan, the lookout would hold the binoculars steady so the horizon
is in the top third of the field of vision and direct the eyes just
below the horizon. The lookout would scan for approximately five
seconds in as many small steps as possible across the field seen
through the binoculars. They would search the entire sector in
approximately five-degree steps, pausing between steps for
approximately five seconds to scan the field of view. At the end of the
sector search, the glasses would be lowered to allow the eyes to rest
for a few seconds, and then the lookout would search back across the
sector with the naked eye.
(g) After sunset and prior to sunrise, lookouts will employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook.
(h) At night, lookouts would not sweep the horizon with their eyes
because eyes do not see well when they are moving. Lookouts would scan
the horizon in a series of movements that would allow their eyes to
come to periodic rests as they scan the sector. When visually searching
at night, they would look a little to one side and out of the corners
of their eyes, paying attention to the things on the outer edges of
their field of vision.
(i) Personnel on lookout will be responsible for informing the
Officer of the Deck of all objects or anomalies sighted in the water
(regardless of the distance from the vessel), since any object or
disturbance (e.g., trash, periscope, surface disturbance,
discoloration) in the water may be indicative of a threat to the vessel
and its crew or indicative of a marine species that may need to be
avoided as warranted.

Operating Procedures

(a) Commanding Officers will make use of marine species detection
cues and information to limit interaction with marine species to the
maximum extent possible consistent with safety of the ship.
(b) All personnel engaged in passive acoustic sonar operation
(including aircraft, surface ships, or submarines) will monitor for
marine mammal vocalizations and report the detection of any marine
mammal to the appropriate watch station for dissemination and
appropriate action. The Navy can detect sounds within the human hearing
range due to an operator listening to the incoming sounds. Passive
acoustic detection systems are used during all ASW activities.
(c) Units shall use trained lookouts to survey for marine mammals
prior to commencement and during the use of active sonar.
(d) During operations involving sonar, personnel will utilize all
available sensor and optical systems (such as Night Vision Goggles) to
aid in the detection of marine mammals.
(e) Navy aircraft participating in exercises at sea will conduct
and maintain, when operationally feasible and safe, surveillance for
marine species of concern as long as it does not violate safety
constraints or interfere with the accomplishment of primary operational
duties.
(f) Aircraft with deployed sonobuoys will use only the passive
capability of sonobuoys when marine mammals are detected within 200
yards (183 m) of the sonobuoy.
(g) Marine mammal detections will be immediately reported to
assigned Aircraft Control Unit (if participating) for further
dissemination to ships in the vicinity of the marine species. This
action would occur when it is reasonable to conclude that the course of
the ship will likely close the distance between the ship and the
detected marine mammal.
(h) Safety Zones--When marine mammals are detected by any means
(aircraft, shipboard lookout, or acoustically) the Navy will ensure
that sonar transmission levels are limited to at least 6 dB below
normal operating levels if any detected marine mammals are within 1000
yards (914 m) of the sonar dome (the bow).
(i) Ships and submarines will continue to limit maximum
transmission levels by this 6-dB factor until the marine mammal has
been seen to leave the area, has not been detected for 30 minutes, or
the vessel has transited more than 2,000 yards (1828

[[Page 60783]]

m) beyond the location of the last detection.
(ii) Should a marine mammal be detected within or closing to inside
457 m (500 yd) of the sonar dome, active sonar transmissions would be
limited to at least 10 dB below the equipment's normal operating level.
Ships and submarines will continue to limit maximum ping levels by this
10-dB factor until the marine mammal has been seen to leave the area,
has not been detected for 30 minutes, or the vessel has transited more
than 2000 yards (1828 m) beyond the location of the last detection.
(iii) Should the marine mammal be detected within or closing to
inside 183 m (200 yd) of the sonar dome, active sonar transmissions
would cease. Sonar will not resume until the marine mammal has been
seen to leave the area, has not been detected for 30 minutes, or the
vessel has transited more than 2,000 yards (1828 m) beyond the location
of the last detection.
(iv) If the need for power-down should arise as detailed in
``Safety Zones'' above, Navy shall follow the requirements as though
they were operating at 235 dB--the normal operating level (i.e., the
first power-down will be to 229 dB, regardless of at what level above
235 sonar was being operated).
(i) Prior to start up or restart of active sonar, operators will
check that the Safety Zone radius around the sound source is clear of
marine mammals.
(j) Sonar levels (generally)--Navy will operate active sonar at the
lowest practicable level, not to exceed 235 dB, except as required to
meet tactical training objectives.
(k) Helicopters shall observe/survey the vicinity of an ASW
Operation for 10 minutes before the first deployment of active
(dipping) sonar in the water.
(l) Helicopters shall not dip their active sonar within 200 yards
(183 m) of a marine mammal and shall cease pinging if a marine mammal
closes within 200 yards (183 m) after pinging has begun.
(m) Submarine sonar operators will review detection indicators of
close-aboard marine mammals prior to the commencement of ASW training
activities involving active MFAS.
(n) If, after conducting an initial maneuver to avoid close
quarters with dolphins, the ship concludes that dolphins are
deliberately closing in on the ship to ride the vessel's bow wave, no
further mitigation actions would be necessary because dolphins are out
of the main transmission axis of the active sonar while in the shallow-
wave area of the vessel bow.

Additional Mitigation for TORPEXs in the Northeast NARW Critical
Habitat

TORPEXs in locations other than the Northeast will utilize the
measures described above. TORPEXs conducted in the five TORPEX training
areas off of Cape Cod, which may occur in right whale critical habitat,
will implement the following measures.
(a) All torpedo-firing operations shall take place during daylight
hours.
(b) During the conduct of each test, visual surveys of the test
area shall be conducted by all vessels and aircraft involved in the
exercise to detect the presence of marine mammals. Additionally,
trained observers shall be placed on the submarine, spotter aircraft,
and the surface support vessel. All participants will be required to
report sightings of any marine mammals, including negative reports,
prior to torpedo firings. Reporting requirements will be outlined in
the test plans and procedures written for each individual exercise, and
will be emphasized as part of pre-exercise briefings conducted with all
participants.
(c) Observers shall receive NMFS-approved training in field
identification, distribution, and relevant behaviors of marine mammals
of the western north Atlantic. Currently, this training is provided by
a professor at the University of Rhode Island, Graduate School of
Oceanography. Observers shall fill out Standard Sighting Forms and the
data will be housed at the Naval Undersea Warfare Center Division
Newport (NUWCDIVNPT). Any sightings of North Atlantic right whales
shall be immediately communicated to the Sighting Advisory System
(SAS). All platforms shall have onboard a copy of
The Guide to Marine Mammals and Turtles of the U.S.
Atlantic and Gulf of Mexico (Wynne and Schwartz 1999).
The NMFS Critical Sightings Program placard.
Right Whales, Guidelines to Mariners placard.
(d) In addition to the visual surveillance discussed above,
dedicated aerial surveys shall be conducted utilizing a fixed-wing
aircraft. An aircraft with an overhead wing (i.e., Cessna Skymaster or
similar) will be used to facilitate a clear view of the test area. Two
trained observers, in addition to the pilot, shall be embarked on the
aircraft. Surveys will be conducted at an approximate altitude of 1000
ft (305 m) flying parallel track lines at a separation of 1 nmi (1.85
km), or as necessary to facilitate good visual coverage of the sea
surface. While conducting surveillance, the aircraft shall maintain an
approximate speed of 100 knots (185 km/hr). Since factors that affect
visibility are highly dependent on the specific time of day of the
survey, the flight operator will have the flexibility to adjust the
flight pattern to reduce glare and improve visibility. The entire test
site will be surveyed initially, but once preparations are being made
for an actual test launch, survey effort will be concentrated over the
vicinity of the individual test location. Further, for approximately
ten minutes immediately prior to launch, the aircraft will racetrack
back and forth between the launch vessel and the target vessel.
(e) Commencement of an individual torpedo test scenario shall not
occur until observers from all vessels and aircraft involved in the
exercise have reported to the Officer in Tactical Command (OTC) and the
OTC has declared that the range is clear of marine mammals. Should
protected animals be present within or seen moving toward the test
area, the test shall be either delayed or moved as required to avoid
interference with the animals.
(f) The TORPEX will be suspended if the Beaufort Sea State exceeds
3 or if visibility precludes safe operations.
(g) Vessel speeds:
During transit through the North Atlantic right whale
critical habitat, surface vessels and submarines shall maintain a speed
of no more than 10 knots (19 km/hr) while not actively engaged in the
exercise procedures.
During TORPEX operations, a firing vessel will likely not
exceed 10 knots. When a submarine is used as a target, vessel speeds
would not likely exceed 18 knots. However, on occasion, when surface
vessels are used as targets, the vessel may exceed 18 kts in order to
fully test the functionality of the torpedoes. This increased speed
would occur for a short period of time (e.g., 10-15 minutes) to evade
the torpedo when fired upon.
(h) In the event of an animal strike, or if an animal is discovered
that appears to be in distress, a report will immediately be
promulgated through the appropriate Navy chain of Command (see
Stranding Plan for additional details).

Potential Mitigation Under Development

The Navy is working to develop the capability to detect, identify,
and localize vocalizing marine mammals using the installed sensors.
Based on the current status of acoustic monitoring science, it is not
yet possible to use installed systems as a mitigation tools; however,
as this science develops, it

[[Page 60784]]

will be incorporated into the AFAST mitigation plan as appropriate.
The Navy is also actively engaged in acoustic monitoring research
involving a variety of methodologies (e.g., underwater gliders); to
date, none of the methodologies have been developed to the point where
they could be used as an actual mitigation tool. The Navy will continue
to coordinate passive monitoring and detection research specific to the
proposed use of active sonar. As technology and methodologies become
available, their applicability and viability will be evaluated for
incorporation into this mitigation plan.

Navy's Protective Measures for IEER

(a) Crews will conduct visual reconnaissance of the drop area prior
to laying their intended sonobuoy pattern. This search should be
conducted below 500 yards (457 m) at a slow speed, if operationally
feasible and weather conditions permit. In dual aircraft training
activities, crews are allowed to conduct coordinated area clearances.
(b) Crews shall conduct a minimum of 30 minutes of visual and
acoustic monitoring of the search area prior to commanding the first
post detonation. This 30-minute observation period may include pattern
deployment time.
(c) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of
observed marine mammal activity, deploy the receiver ONLY and monitor
while conducting a visual search. When marine mammals are no longer
detected within 1,000 yards (914 m) of the intended post position, co-
locate the explosive source sonobuoy (AN/SSQ-110A) (source) with the
receiver.
(d) When able, crews will conduct continuous visual and aural
monitoring of marine mammal activity. This is to include monitoring of
own-aircraft sensors from first sensor placement to checking off
station and out of communication range of these sensors.
(e) Aural Detection: If the presence of marine mammals is detected
aurally, then that should cue the aircrew to increase the diligence of
their visual surveillance. Subsequently, if no marine mammals are
visually detected, then the crew may continue multi-static active
search.
(f) Visual Detection: If marine mammals are visually detected
within 1,000 yards (914 m) of the explosive source sonobuoy (AN/SSQ-
110A) intended for use, then that payload shall not be detonated.
Aircrews may utilize this post once the marine mammals have not been
re-sighted for 30 minutes, or are observed to have moved outside the
1,000 yards (914 m) safety buffer. Aircrews may also shift their multi-
static active search to another post, where marine mammals are outside
the 1,000 yards (914 m) safety buffer.
(g) Aircrews shall make every attempt to manually detonate the
unexploded charges at each post in the pattern prior to departing the
operations area by using the ``Payload 1 Release'' command followed by
the ``Payload 2 Release'' command. Aircrews shall refrain from using
the ``Scuttle'' command when two payloads remain at a given post.
Aircrews will ensure that a 1,000 yard (914 m) safety buffer, visually
clear of marine mammals, is maintained around each post as is done
during active search operations.
(h) Aircrews shall only leave posts with unexploded charges in the
event of a sonobuoy malfunction, an aircraft system malfunction, or
when an aircraft must immediately depart the area due to issues such as
fuel constraints, inclement weather, and in-flight emergencies. In
these cases, the sonobuoy will self-scuttle using the secondary or
tertiary method.
(i) Ensure all payloads are accounted for. Explosive source
sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported as
unexploded ordnance via voice communications while airborne, then upon
landing via naval message.
(j) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.

Mitigation Measures Related to Vessel Transit and North Atlantic Right
Whales

Mid-Atlantic, Offshore of the Eastern United States

For purposes of these measures, the Mid-Atlantic is defined broadly
to include ports south and east of Block Island Sound southward to
South Carolina. The procedure described below would be established as
mitigation measures for Navy vessel transits during North Atlantic
right whale migratory seasons near ports located off the western North
Atlantic, offshore of the eastern United States. The mitigation
measures would apply to all Navy vessel transits, including those
vessels that would transit to and from East Coast ports and OPAREAs.
Seasonal migration of right whales is generally described as occurring
from October 15 through April 30, when right whales migrate between
feeding grounds farther north and calving grounds farther south.
NMFS has identified ports located in the western Atlantic Ocean,
offshore of the southeastern United States, where vessel transit during
right whale migration is of highest concern for potential ship strike.
The ports include the Hampton Roads entrance to the Chesapeake Bay,
which includes the concentration of Atlantic Fleet vessels in Norfolk,
Virginia. Navy vessels are required to use extreme caution and operate
at a slow, safe speed consistent with mission and safety during the
months indicated in Table 6 and within a 37 km (20 NM) arc (except as
noted) of the specified reference points.
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[[Page 60785]]

During the indicated months, Navy vessels would practice increased
vigilance with respect to avoidance of vessel-whale interactions along
the mid-Atlantic coast, including transits to and from any mid-Atlantic
ports not specifically identified above. All surface units transiting
within 56 km (30 NM) of the coast in the mid-Atlantic would ensure at
least two watchstanders are posted, including at least one lookout that
has completed required MSAT training. Furthermore, Navy vessels would
not knowingly approach any whale head on and would maneuver to keep at
least 457 m (1,500 ft) away from any observed whale, consistent with
vessel safety.

Southeast Atlantic, Offshore of the Eastern United States

For purposes of these measures, the southeast encompasses sea space
from Charleston, South Carolina, southward to Sebastian Inlet, Florida,
and from the coast seaward to 148 km (80 NM) from shore. The mitigation
measures described in this section were developed specifically to
protect the North Atlantic right whale during its calving season
(Typically from December 1st through March 31st). During this period,
North Atlantic right whales give birth and nurse their calves in and
around a federally designated critical habitat off the coast of Georgia
and Florida. This critical habitat is the area from 31-15N to 30-15N
extending from the coast out to 28 km (15 NM), and the area from 28-00N
to 30-15N from the coast out to 9 km (5 NM). All mitigation measures
that apply to the critical habitat also apply to an associated area of
concern which extends 9 km (5 NM) seaward of the designated critical
boundaries.
Prior to transiting or training in the critical habitat or
associated area of concern, ships will contact Fleet Area Control and
Surveillance Facility, Jacksonville, to obtain latest whale sighting
and other information needed to make informed decisions regarding safe
speed and path of intended movement. Subs shall contact Commander,
Submarine Group Ten for similar information.
Specific mitigation measures related to activities occurring within
the critical habitat or associated area of concern include the
following:
When transiting within the critical habitat or associated
area of concern, vessels will exercise extreme caution and proceed at a
slow safe speed. The speed will be the slowest safe speed that is
consistent with mission, training and operations.
Speed reductions (adjustments) are required when a whale
is sighted by a vessel or when the vessel is within 9 km (5 NM) of a
reported new sighting less then 12 hours old.
Additionally, circumstances could arise where, in order to
avoid North Atlantic right whale(s), speed reductions could mean vessel
must reduce speed to a minimum at which it can safely keep on course or
vessels could come to an all stop.
Vessels will avoid head-on approaches to North Atlantic
right whale(s) and will maneuver to maintain at least 457 m (500 yd) of
separation from any observed whale if deemed safe to do so. These
requirements do not apply if a vessel's safety is threatened, such as
when change of course would create an imminent and serious threat to
person, vessel, or aircraft, and to the extent vessels are restricted
in the ability to maneuver.
Ships shall not transit through the critical habitat or
associated area of concern in a North-South direction.
Ship, surfaced submarines, and aircraft will report any
whale sightings to Fleet Area Control and Surveillance Facility,
Jacksonville, by most convenient and fast means. Sighting report will
include the time, latitude/longitude, direction of movement and number
and description of whale (i.e., adult/calf).

Northeast Atlantic, Offshore of the Eastern United States

Prior to transiting the Great South Channel or Cape Cod Bay
critical habitat areas, ships will obtain the latest right whale
sightings and other information needed to make informed decisions
regarding safe speed. The Great South Channel critical habitat is
defined by the following coordinates: 41-00 N, 69-05 W; 41-45 N, 69-45
W; 42-10 N, 68-31 W; 41-38 N, 68-13 W. The Cape Cod Bay critical
habitat is defined by the following coordinates: 42-04.8 N, 70-10 W;
42-12 N, 70-15 W; 42-12 N, 70-30 W; 41-46.8 N, 70-30 W.
Ships, surfaced subs, and aircraft will report any North Atlantic
right whale sightings (if the whale is identifiable as a right whale)
off the northeastern U.S. to Patrol and Reconnaissance Wing
(COMPATRECONWING). The report will include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of
the whale(s). In addition, vessels or aircraft that observe whale
carcasses will record the location and time of the sighting and report
this information as soon as possible to the cognizant regional
environmental coordinator. All whale strikes must be reported. Report
will include the date, time, and location of the strike; vessel course
and speed; operations being conducted by the vessel; weather
conditions, visibility, and sea state; description of the whale;
narrative of incident; and indication of whether photos/videos were
taken. Units are encouraged to take photos whenever possible. See AFAST
Stranding Plan for additional detail.
Specific mitigation measures related to activities occurring within
the critical habitat or associated area of concern include the
following:
Vessels will avoid head-on approaches to North Atlantic
right whale(s) and will maneuver to maintain at least 457 m (500 yd) of
separation from any observed whale if deemed safe to do so. These
requirements do not apply if a vessel's safety is threatened, such as
when change of course would create an imminent and serious threat to
person, vessel, or aircraft, and to the extent vessels are restricted
in the ability to maneuver.
When transiting within the critical habitat or associated
area of concern, vessels shall use extreme caution and operate at a
safe speed so as to be able to avoid collisions with North Atlantic
right whales and other marine mammals, and stop within a distance
appropriate to the circumstances and conditions.
Speed reductions (adjustments) are required when a whale
is sighted by a vessel or when the vessel is within 9 km (5 NM) of a
reported new sighting less than one week old.
Ships transiting in the Cape Cod Bay and Great South
Channel critical habitats will obtain information on recent whale
sightings in the vicinity of the critical habitat. Any vessel operating
in the vicinity of a North Atlantic right whale shall consider
additional speed reductions as per Rule 6 of International Navigational
Rules.

Additional Mitigation Measures Developed by NMFS and the Navy

As mentioned above, NMFS worked with the Navy to identify
additional practicable and effective mitigation measures to address the
following two issues of concern: (1) General minimization of marine
mammal impacts; (2) minimization of impacts within the southeastern
NARW critical habitat; and (3) the potential relationship between the
operation of MFAS/HFAS and marine mammal strandings. Any mitigation
measure(s) prescribed by NMFS should be able to accomplish, have a
reasonable likelihood of accomplishing (based on current science), or
contribute to the

[[Page 60786]]

accomplishment of one or more of the general goals listed below:
(a) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals b, c, and d may contribute to this goal).
(b) A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to received
levels of MFAS/HFAS, underwater detonations, or other activities
expected to result in the take of marine mammals (this goal may
contribute to a, above, or to reducing harassment takes only).
(c) A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to received levels of MFAS/HFAS, underwater detonations, or other
activities expected to result in the take of marine mammals (this goal
may contribute to a, above, or to reducing harassment takes only).
(d) A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to received
levels of MFAS/HFAS, underwater detonations, or other activities
expected to result in the take of marine mammals (this goal may
contribute to a, above, or to reducing the severity of harassment takes
only).
(e) A reduction in adverse effects to marine mammal habitat, paying
special attention to the food base, activities that block or limit
passage to or from biologically important areas, permanent destruction
of habitat, or temporary destruction/disturbance of habitat during a
biologically important time.
(f) For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation (shut-down zone, etc.).
NMFS and the Navy had extensive discussions regarding mitigation,
in which we explored several mitigation options and their respective
practicability. Ultimately, NMFS and the Navy developed the measures
listed below, which we believe support (or contribute) to the goals
mentioned in a-e above.

Planning Awareness Areas

The Navy has designated several Planning Awareness Areas (PAAs)
(see Figure 2) based on areas of high productivity that have been
correlated with high concentrations of marine mammals (such as
persistent oceanographic features like upwellings associated with the
Gulf Stream front where it is deflected off the east coast near the
Outer Banks), and areas of steep bathymetric contours that are
frequented by deep diving marine mammals such as beaked whales and
sperm whales. In developing the PAAs, U.S. Fleet Forces (USFF) was able
to consider these factors because of geographic flexibility in
conducting ASW training. USFF is not tied to a specific range support
structure for the majority of the training for AFAST. Additionally, the
topography and bathymetry along the East Coast and in the Gulf of
Mexico is unique in that there is a wide continental shelf leading to
the shelf break affording a wider range of training opportunities.
The Navy proposes to avoid planning major exercises in the
specified planning awareness areas (yellow areas on map). Should
national security require the conduct of more than four major exercises
(COMPTUEX, JTFEX, SEASWITI, or similar scale event) in these areas
(meaning all or a portion of the exercise) per year the Navy would
provide NMFS with prior notification and include the information in any
associated after-action or monitoring reports.
To the extent operationally feasible, the Navy plans to
conduct no more than one of the four above-mentioned major exercises
(COMPTUEX, JTFEX, SEASWITI or similar scale event) per year in the Gulf
of Mexico. Based on operational requirements, the exercise area for
this one exercise may include the De Soto Canyon. If national security
needs require more than one major exercise to be conducted in the PAAs,
which includes portions of the DeSoto Canyon, the Navy would provide
NMFS with prior notification and include the information in any
associated after-action or monitoring reports.
The PAAs identified on the attached figure will be
included in the Navy's Protective Measures Assessment Protocol (PMAP)
(implemented by the Navy for use in the protection of the marine
environment) for unit level situational awareness (i.e., exercises
other than COMPTUEX, JTFEX, SEASWITI). The goal of PMAP is to raise
awareness in the fleet and ensure common sense and informed oversight
are injected into planning processes for testing and training
evolutions.
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[[Page 60788]]

Helicopter Dipping Sonar in NARW Critical Habitat

Helicopter Dipping Sonar is one of the two activity types that has
been identified as planned to occur in the southern North Atlantic
right whale (NARW) critical habitat. Historically, only maintenance of
helicopter dipping sonars occurs within a portion of the NARW critical
habitat. Tactical training with helicopter dipping sonar does not
typically occur in the NARW critical habitat area at any time of the
year. The critical habitat area is used on occasion for post
maintenance operational checks and equipment testing due to its
proximity to shore. Unless otherwise dictated by national security
needs, the Navy will minimize helicopter dipping sonar maintenance
within the SE right whale critical habitat from November 15-April 15.

Object Detection Exercises in NARW Critical Habitat

Object detection training requirements are another type of activity
that have been identified as planned to occur in the southern North
Atlantic right whale (NARW) critical habitat. The Navy recognizes the
significance of the NARW calving area and has explored ways of
affecting the least practicable impact (which includes a consideration
of practicality of implementation and impacts to training fidelity) to
right whales. Navy units will incorporate data from the Early Warning
System (EWS) into exercise pre-planning efforts. As NMFS is aware, USFF
contributes more than $150,000 annually for aerial surveys that support
the EWS, a communication network that assists afloat commands to avoid
interactions with right whales. Fleet Area Control and Surveillance
Facility, Jacksonville (FACSFACJAX) houses the Whale Fusion Center,
which disseminates the latest right whale sighting information to Navy
ships, submarines, and aircraft. Through the Fusion Center, FACSFACJAX
coordinates ship and aircraft movement into the right whale critical
habitat and the surrounding operating areas based on season, water
temperature, weather conditions, and frequency of whale sightings and
provides right whale reports to ships, submarines and aircraft,
including coast guard vessels and civilian shipping. All sighting data
is maintained on a Web site, http://www.facsfacjax.navy.mil. The Navy
proposes to:
Reduce the time spent conducting object detection
exercises in the NARW critical habitat.
Prior to conducting surface ship object detection
exercises in the SE right whale critical habitat during the time of
November 15-April 15, ships will contact FACSFACJAX to obtain the
latest right whale sighting information. FACSFACJAX will advise ships
of all reported whale sightings in the vicinity of the critical habitat
and AAOC. To the extent operationally feasible, ships will avoid
conducting training in the vicinity of recently sighted right whales.
Ships will maneuver to maintain at least 500 yards separation from any
observed whale, consistent with the safety of the ship.

Stranding Response Plan for Major Navy Training Exercises in the AFAST
Study Area

NMFS and the Navy have developed a draft Stranding Response Plan
for Major Exercises in the AFAST Study Area (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm). Pursuant to 50 CFR
Section 216.105, the plan will be included as part of (attached to) the
Navy's MMPA Letter of Authorization (LOA), which contains the
conditions under which the Navy is authorized to take marine mammals
pursuant to training activities involving MFAS/HFAS or explosives
(IEER) in the AFAST Study Area. The Stranding Response plan is
specifically intended to outline the applicable requirements the
authorization is conditioned upon in the event that a marine mammal
stranding is reported in the AFAST Study Area during a major training
exercise (MTE) (see glossary below). As mentioned above, NMFS considers
all plausible causes within the course of a stranding investigation and
this plan in no way presumes that any strandings in the AFAST Study
Area are related to, or caused by, Navy training activities, absent a
determination made in a Phase 2 Investigation as outlined in Paragraph
7 of this plan, indicating that MFAS or explosive detonation in the
AFAST Study Area were a cause of the stranding. This plan is designed
to address the following three issues:
Mitigation--When marine mammals are in a situation that
can be defined as a stranding (see glossary of plan), they are
experiencing physiological stress. When animals are stranded, and
alive, NMFS believes that exposing these compromised animals to
additional known stressors would likely exacerbate the animal's
distress and could potentially cause its death. Regardless of the
factor(s) that may have initially contributed to the stranding, it is
NMFS' goal to avoid exposing these animals to further stressors.
Therefore, when live stranded cetaceans are in the water and engaged in
what is classified as an Uncommon Stranding Event (USE) (see glossary
of plan), the shutdown component of this plan is intended to minimize
the exposure of those animals to MFAS and explosive detonations,
regardless of whether or not these activities may have initially played
a role in the event.
Monitoring--This plan will enhance the understanding of
how MFAS/HFAS or IEER (as well as other environmental conditions) may,
or may not, be associated with marine mammal injury or strandings.
Additionally, information gained from the investigations associated
with this plan may be used in the adaptive management of mitigation or
monitoring measures in subsequent LOAs, if appropriate.
Compliance--The information gathered pursuant to this
protocol will inform NMFS' decisions regarding compliance with Sections
101(a)(5)(B and C) of the MMPA.
The Stranding Response Plan has several components:
Shutdown Procedures--When an uncommon stranding event (USE--defined
in the plan) occurs during a major exercise in the AFAST Study Area,
and a live cetacean(s) is in the water exhibiting indicators of
distress (defined in the plan), NMFS will advise the Navy that they
should cease MFAS/HFAS operation and explosive detonations within 14 nm
(26 km) in the Atlantic and 17 nm (29 km) in the Gulf of Mexico of the
live animal involved in the USE (NMFS and the Navy will maintain a
dialogue, as needed, regarding the identification of the USE and the
potential need to implement shutdown procedures). These distances (14
and 17 nm) (26 and 29 km) are the approximate distances at which sound
from the sonar sources are anticipated to attenuate to 145 dB (SPL).
The risk function predicts that less than 1 percent of the animals
exposed to sonar at this level (mysticete or odontocete) would respond
in a manner that NMFS considers Level B Harassment. The following
special shutdown provisions for right whales are also included: (1) The
Navy will automatically cease sonar operation (without waiting for the
notification from NMFS) within 14 or 17 nm (Atlantic or GOM,
respectively) of an injured or entangled right whale found at sea
during an MTE; and (2) The Navy will alert NMFS immediately if a dead
right whale is found at sea during an MTE and increase vigilance in the
area of the whale.
Memorandum of Agreement (MOA)--The Navy and NMFS will develop an
MOA, or other mechanism consistent with federal fiscal law requirements

[[Page 60789]]

(and all other applicable laws), that allows the Navy to assist NMFS
with the Phase 1 and 2 Investigations of USEs through the provision of
in-kind services, such as (but not limited to) the use of plane/boat/
truck for transport of stranding responders or animals, use of Navy
property for necropsies or burial, or assistance with aerial surveys to
discern the extent of a USE. The Navy may assist NMFS with the
Investigations by providing one or more of the in-kind services
outlined in the MOA, when available and logistically feasible and when
the provision does not negatively affect Fleet operational commitments.
Communication Protocol--Effective communication is critical to the
successful implementation of this Stranding Response Plan. Very
specific protocols for communication, including identification of the
Navy personnel authorized to implement a shutdown and the NMFS
personnel authorized to advise the Navy of the need to implement
shutdown procedures (NMFS Protected Resources HQ--senior
administrators) and the associated phone trees, etc. are currently in
development and will be refined and finalized for the Stranding
Response Plan prior to the issuance of a final rule (and updated
yearly).
Stranding Investigation--The Stranding Response Plan also outlines
the way that NMFS plans to investigate any strandings (providing staff
and resources are available) that occur during major training exercises
in the AFAST Study Area.

Mitigation Conclusions

NMFS believes that the range clearance procedures and shutdown/
safety zone/exclusion zone measures the Navy has proposed will enable
the Navy to avoid injuring any marine mammals and will enable them to
minimize the numbers of marine mammals exposed to levels associated
with TTS for the following reasons:

MFAS/HFAS

The Navy's standard protective measures indicate that they will
ensure powerdown of MFAS/HFAS by 6 dB when a marine mammal is detected
within 1000 yd (914 km), powerdown of 4 more dB (or 10 dB total) when a
marine mammal is detected within 500 yd (457 km), and will cease MFAS/
HFAS transmissions when a marine mammal is detected within 200 yd (183
km).
PTS/Injury--NMFS believes that the proposed mitigation measures
will allow the Navy to avoid exposing marine mammals to received levels
of MFAS/HFAS sound that would result in injury for the following
reasons:
The estimated distance from the most powerful source at
which an animal would receive a level of 215 dB SEL (threshold for PTS/
injury/Level A Harassment) is approximately 10 m (10.9 yd).
NMFS believes that the probability that a marine mammal
would approach within 10 m (10.9 yd) of the sonar dome (to the sides or
below) without being seen by the watchstanders (who would then activate
a shutdown if the animal was within 200 yd (183 m) is very low,
especially considering that animals would likely avoid approaching a
source transmitting at that level at that distance.
The model predicted that some animals would be exposed to
levels associated with injury, however, the model does not consider the
mitigation or likely avoidance behaviors and NMFS believes that injury
is unlikely when those factors are considered.
TTS--NMFS believes that the proposed mitigation measures will allow
the Navy to minimize exposure of marine mammals to received levels of
MFAS/HFAS sound associated with TTS for the following reasons:
The estimated range of maximum distances from the most
powerful source at which an animal would receive 195 dB SEL (the TTS
threshold) is from approximately 275-500 m (301-547 yd) from the source
in most operating environments.
Based on the size of the animals, average group size,
behavior, and average dive time, NMFS believes that the probability
that Navy watchstanders will visually detect mysticetes or sperm
whales, dolphins, and social pelagic species (pilot whales, melon-
headed whales, etc.) at some point within the 1000-yd (914 km) safety
zone before they are exposed to the TTS threshold levels is high, which
means that the Navy would be able to shutdown or powerdown to avoid
exposing these species to sound levels associated with TTS.
However, more cryptic (animals that are difficult to
detect and observe), deep-diving species (beaked whales and Kogia sp.)
are less likely to be visually detected and could potentially be
exposed to levels of MFAS/HFAS expected to cause TTS. Additionally, the
Navy's bow-riding mitigation exception for dolphins may sometimes allow
dolphins to be exposed to levels of MFAS/HFAS likely to result in TTS.

IEER

The Navy utilizes a 1000-yd exclusion zone (wherein explosive
detonation will not occur if animals are within the zone) for the IEER
and they begin observations at least 30 minutes before any detonations.
Based on the explosive criteria (see Acoustic Take Criteria Section), a
marine mammal would need to be within 24-78 m of the explosive sonobuoy
detonation to be exposed to levels that could cause death, within 79-
179 m to be exposed to levels that could cause injury, and within 209-
348 m to be exposed to levels that could result in TTS (the maximum
range varies with acoustic propagation environment).
Mortality and Injury--Though the model predicted that 3 animals
would be exposed to levels that would result in PTS (0 mortality), NMFS
believes that the mitigation measures will allow the Navy to avoid
exposing marine mammals to underwater detonations from IEER that would
result in injury or mortality for the following reasons:
Surveillance (including aerial and passive acoustic)
begins two hours before the exercise and extends 1000-yd from the
charges.
Animals would need to approach within less than
approximately 24-78 m of the source unnoticed to be exposed to the
mortality threshold (we note here that this threshold is conservatively
based on the exposure of a dolphin calf--most marine mammals are much
larger and effects to these larger animals would likely be less
severe). Additionally, the model predicted no exposures to levels
associated with mortality.
Animals would need to approach within less than
approximately 79-179 m of the sonobuoy to be injured
Unlike for sonar, an animal would need to be present at
the exact moment of the explosion(s).
TTS-NMFS believes that the proposed mitigation measures will allow
the Navy to minimize the exposure of marine mammals to underwater
detonations that would result in TTS for the following reasons:
31 animals were predicted to be exposed to explosive
levels that would result in TTS, however, for the same reasons as above
(i.e., surveillance and close approach to source), NMFS believes that
most modeled TTS takes can be avoided, especially dolphins, mysticetes
and sperm whales, and social pelagic species.
However, more cryptic, deep-diving species (beaked whales
and Kogia sp.) are less likely to be visually detected and could
potentially be exposed to explosive levels expected to cause TTS.
The Stranding Response Plan will minimize the probability of
distressed live-stranded animals responding to the

[[Page 60790]]

proximity of sonar in a manner that further stresses them or increases
the potential likelihood of mortality.
The incorporation of the Navy's proposed PAAs into their planning
process along with the plan not to conduct more than 4 major exercises
within these areas should ultimately result in a reduction in the
number of marine mammals exposed to MFAS/HFAS (because these PAAs are
anticipated to have higher densities of animals), a reduction in the
number of animals exposed while engaged in feeding behaviors (because
these areas are particularly productive), and an increased awareness of
their potential presence when conducting activities in those important
areas. Additionally, the Navy's plan to minimize both the helicopter
dipping and object detection activities within the NARW critical
habitat during the time when the most calves and mothers are present
should result in the minimization of exposure of cow/calf pairs to
MFAS/HFAS.
NMFS has preliminarily determined that the Navy's proposed
mitigation measures (from the LOA application), along with the Planning
Awareness Areas, the helicopter dipping and object detection
minimization measures, and the Stranding Response Plan (and when the
Adaptive Management (see Adaptive Management below) component is taken
into consideration) are adequate means of effecting the least
practicable adverse impacts on marine mammals species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, while also considering
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
These mitigation measures may be refined, modified, removed, or
added to prior to the issuance of the final rule based on the comments
and information received during the public comment period.

Research and Conservation Measures for Marine Mammals

The Navy is working towards a better understanding of marine
mammals and sound in ways that are not directly related to the MMPA
process. The Navy highlights some of those ways in the section below.
Further, NMFS is working on a long-term stranding study that will be
supported by the Navy by way of a funding and information sharing
component (see below).

Navy Research

The Navy provides a significant amount of funding and support to
marine research. The agency is providing approximately $26 million
annually between FY07-FY09 to universities, research institutions,
federal laboratories, private companies, and independent researchers
around the world to study marine mammals. The U.S. Navy sponsors 50
percent of all U.S. research concerning the effects of human-generated
sound on marine mammals and 50 percent of such research conducted both
in the U.S. and 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 seabirds, and
Developing tools to model and estimate potential effects
of sound.
This research is directly applicable to Atlantic 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 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:
1. Environmental Consequences of Underwater Sound,
2. Non-Auditory Biological Effects of Sound on Marine Mammals,
3. Effects of Sound on the Marine Environment,
4. Sensors and Models for Marine Environmental Monitoring,
5. Effects of Sound on Hearing of Marine Animals, and
6. 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 reports. Furthermore, research cruises by
the NMFS and by academic institutions have received funding from the
U.S. Navy. For instance, the ONR contributed financially to the Sperm
Whale Seismic Survey (SWSS) in the Gulf of Mexico, coordinated by Texas
A&M. The goals of the SWSS are to examine effects of the oil and gas
industry on sperm whales and what mitigations would be employed to
minimize adverse effects to the species. All of this research helps in
understanding the marine environment and the effects that may arise
from the use of underwater noise in the Gulf of Mexico and western
North Atlantic Ocean.
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 OPAREAS. 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 proposed rule, NMFS, with input and assistance from
the Navy and several other agencies and entities, will perform a
longitudinal observational study of marine mammal strandings to
systematically observe for and record the types of pathologies and
diseases and investigate the relationship with potential causal factors
(e.g., tactical sonar, seismic, weather). The study will not be a true
``cohort'' study, because we will be unable to quantify or estimate
specific sonar or other sound exposures for individual animals that
strand. However, a cross-sectional or correlational analysis, a method
of descriptive rather than analytical

[[Page 60791]]

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, we 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 MTEs and other anthropogenic and non-anthropogenic stressors. In
coordination with the Navy and other federal and non-federal partners,
the comparative study will be designed and conducted for specific sites
during intervals of the presence of anthropogenic activities such as
sonar transmission or other sound exposures and absence to evaluate
demographics of morbidity and mortality, lesions found, and cause of
death or stranding. Additional data that will be collected and analyzed
in an effort to control potential confounding factors include variables
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 tactical sonar or no seismic); environmental
variables may complicate the interpretation of ``control''
measurements. The Navy and NMFS along with other partners are
evaluating mechanisms for funding this study.

Monitoring

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

Proposed Monitoring Plan for the AFAST Study Area

The Navy has submitted a draft Monitoring Plan for AFAST, which may
be viewed at NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. NMFS and the Navy have worked together on the
development of this plan in the months preceding the publication of
this proposed rule; however, we are still refining the plan and
anticipate that it will contain more details by the time it is
finalized in advance of the issuance of the final rule. Additionally,
the plan may be modified or supplemented based on comments or new
information received from the public during the public comment period.
A summary of the primary components of the plan follows.
The draft Monitoring Plan for AFAST has been designed as a
collection of focused ``studies'' (described fully in the AFAST
Monitoring Plan) to gather data that will allow the Navy to address the
following questions:
(a) Are marine mammals exposed to MFAS, especially at levels
associated with adverse effects (i.e., based on NMFS' criteria for
behavioral harassment, TTS, or PTS)? If so, at what levels are they
exposed?
(b) If marine mammals are exposed to MFAS in the AFAST Study Area,
do they redistribute geographically as a result of continued exposure?
If so, how long does the redistribution last?
(c) If marine mammals are exposed to MFAS, what are their
behavioral responses to various levels?
(d) Is the Navy's suite of mitigation measures for MFAS (e.g.,
measures agreed to by the Navy through permitting) effective at
avoiding TTS, injury, and mortality of marine mammals?
Data gathered in these studies will be collected by qualified,
professional marine mammal biologists that are experts in their field.
They will use a combination of the following methods to collect data:
Contracted vessel and aerial surveys.
Passive acoustics.
Marine mammal observers on Navy ships.
In the four proposed study designs (all of which cover multiple
years), the above methods will be used separately or in combination to
monitor marine mammals in different combinations before, during, and
after training activities utilizing MFAS/HFAS. Table 7 contains a
summary of the monitoring effort that is planned for each study in each
year.
This monitoring plan has been designed to gather data on all
species of marine mammals that are observed in the AFAST study area.
The Plan recognizes that deep-diving and cryptic species of marine
mammals such as beaked whales have a low probability of detection
(Barlow and Gisiner, 2006). Therefore, methods will be utilized to
attempt to address this issue (e.g., passive acoustic monitoring).
North Atlantic right whales will also be given particular attention
during monitoring in the AFAST study area, although monitoring methods
will be the same for all species. Within the AFAST study area, the
Northwestern Atlantic provides unique breeding and

[[Page 60792]]

calving habitat for North Atlantic right whales, and as a result,
critical habitat has been designated for one calving ground (off
Georgia and northern Florida) and two feeding areas (Cape Cod Bay and
the Great South Channel). North Atlantic right whales will be given
particular attention in the form of focal follows (e.g., collect
behavioral data using the Big Eyes binoculars, and observe the behavior
of any animals that are seen) when observed.
[GRAPHIC] [TIFF OMITTED] TP14OC08.010

[[Page 60793]]

In addition to the Monitoring Plan for AFAST, by the end of 2009,
the Navy will have completed an Integrated Comprehensive Monitoring
Program (ICMP). The ICMP will provide the overarching structure and
coordination that will, over time, compile data from both range
specific monitoring plans (such as AFAST, the Hawaii Range complex, and
the Southern California Range Complex) as well as Navy funded research
and development (R&D) studies. The primary objectives of the ICMP are:
To monitor Navy training events, particularly those
involving mid-frequency sonar and underwater detonations, for
compliance with the terms and conditions of ESA Section 7 consultations
or MMPA authorizations;
To collect data to support estimating the number of
individuals exposed to sound levels above current regulatory
thresholds;
To assess the efficacy of the Navy's current marine
species mitigation;
To add to the knowledge base on potential behavioral and
physiological effects to marine species from mid-frequency active sonar
and underwater detonations; and
To assess the practicality and effectiveness of a number
of mitigation tools and techniques (some not yet in use).
More information about the ICMP may be found in the draft
Monitoring Plan for AFAST.

Past Monitoring in the AFAST Study Area

NMFS has received four total monitoring reports addressing MFAS use
off the Atlantic Coast or in the Gulf of Mexico. The data contained in
the After Action Reports (AAR) have been considered in developing
mitigation and monitoring measures for the proposed activities
contained in this rule. The Navy's AAR may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. NMFS has reviewed these
reports and has summarized the results, as related to marine mammal
observations, below.

ESG COMPTUEX 08-01

The USS Nassau Expeditionary Strike Group COMPTUEX 08-01 was
conducted from November 28, 2007 through December 14, 2007. The ASW
training conducted during the ESG COMPTUEX involved ships, submarines,
aircraft, non-explosive exercise weapons, and other training related
devices and occurred within portions of the Cherry Point and
Charleston/Jacksonville Operating Areas (OPAREAS; see Figure A-1,
Appendix A). MFA sonar equipped ships that participated in ESG COMPTUEX
08-01 included Ticonderoga-class guided missile cruisers (CG), Arleigh
Burke-class guided missile destroyers (DDG), and Oliver Hazard Perry-
class guided missile frigates (FFG). The surface combatants employed
ANSQS-53C/ANSQS 56 sonar, and the associated aviation assets employed
SH-60B/F/R with AN/AQS-13F or AQS-22 dipping sonar and AN/SSQ-62B1C/D/E
Directional Command Activated Sonobuoy System (DICASS). The MFA sonar
equipped submarines that participated were SSNs with AN/BQQ-5 sonar.
During ESG COMPTUEX 08-01, 141-161 hours of MFAS and 38-46 DICASS
sonobuoy usage was reported.
Navy lookouts did not report any sightings of marine mammals during
ESG COMPTUEX 08-01.

Combined CSG COMPTUEX/JTFEX 07-01

USS TRUMAN 07-1 CSG COMPTUEX/JTFEX was conducted from July 2-August
1, 2007 and involved a Carrier Strike Group. Ships assigned to this CSG
included: two non-MFAS-equipped ships, and five MFAS-equipped ships and
one submarine. Other participating U.S. Navy units representing support
and opposition forces included one submarine and four MFAS-equipped
ships. France participated with three MFAS-equipped ships. Allied
nations participating in the exercise were also provided the mitigation
measures in Appendix B and the MSAT. There were two ASW SH-60
helicopters and two ASW P-3 Maritime Patrol Aircraft also
participating.
During USS Truman 07-1 CSG COMPTUEX/JTFEX MFAS was only used during
carefully planned exercise events and for only a small subset of any
given exercise time frame. During this exercise, 340-355 hours of hull-
mounted MFAS, 50-65 hours of dipping sonar, and use of 170 DICASS
sonobuoys were reported.
There were 49 total sighting events and three passive detections.
An estimated 374-416 marine mammals and four sea turtles were observed
during USS Truman 07-1 CSG COMPTUEX/JTFEX (See Table 8). There were two
sighting events occurring during active sonar use. The first occurred
with the observing ship observing five dolphins while using MFAS and a
second ship was active within the vicinity of this sighting. The second
occurred with the observing ship sighting two pilot whales while not
active, but a second ship was active at a distance which could have had
an influence on the sighted marine mammals. On four instances, vessels
maneuvered to avoid the path of a marine mammal or increase the
distance between the ship and animal.
None of the watchstanders reported any sort of ``observed effect''
on the marine mammals that were observed in the two instances when the
sonar was on.

[[Page 60794]]

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[[Page 60795]]

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ESG COMPTUEX 07-01

This exercise was conducted in October 2006 in two large areas
seaward of the shelf break off the coasts of North and South Carolina.
The types of ASW training conducted during ESG COMPTUEX07-1 involved
the use of ships, submarines, aircraft, non-explosive exercise weapons,
and other training related devices. Exercise planning estimated use of
114 hours of MFA sonar and 118 DICASS sonobuoys. Actual use was 101.4
hours of MFA sonar and 35 DICASS sonobuoys.
There was one marine mammal sighting during the exercise. A surface
ship sighted approximately 12 ``dolphins'' ``playing'' within 1,000
yds. The group was engaged in the combined battle problem, with ships
intermittently active and passive. All units shut down MFAS for
approximately 2 hours.
None of the watchstanders reported any sort of ``observed effect''
on the marine mammals that were observed, either with or without the
operation of sonar.

JTFEX 06-02

This exercise was conducted from July 21-29, 2006, largely within
the Cherry Point OPAREA, off the shelf break of North Carolina. The
types of ASW training conducted during JTFEX 06-2 involved the use of
ships, submarines, aircraft, non-explosive exercise weapons, and other
training related devices. In addition to the JTFEX major exercise, a
precursor event three days prior to the exercise was included in the
analysis due to the temporal proximity of the exercise. The precursor
event estimated sonar use was 22.5 hours of surface vessel MFAS and 36
DICASS sonobuoys. The planned exercise, exclusive of the precursor
events, was estimated at 200-225 hours of SQS-53C MFAS, 100-125 hours
of surface vessel SQS-56 MFAS and 50 DICASS sonobuoys used. In reality,
108 hours of MFA sonar and less than 50 sonobuoys were used for both
the precursor events and the JTFEX 06-2 exercise.
During the exercise, all surface vessels and aircraft participating
in ASW events were involved in the visual surveillance for marine
mammals. There were 29 instances when marine mammals (individuals or
pods) were detected, all by surface vessel exercise participants. MFAS
was shut down seven times by exercise participants due to the detected
marine mammals as detailed in Table 9.

[[Page 60796]]

These 29 marine mammal detections by exercise participants totaled
120 quantified marine mammals, and 10 sightings of multiple animals, or
``pods'' that could not be quantified. Assuming each pod consisted of
at least four animals; the estimated total number of marine mammals
detected was 160 animals. Of those detections when sonar was active (7
of the 29 in Table 9), 18 animals were quantified, and 4 reports were
of multiple animals that could not be quantified. Using the described
estimating procedure, approximately 34 marine mammals were in the
vicinity of surface ships during MFAS use periods. In only one instance
(see Table 9) were the animals present within a range requiring power
reduction. In two instances described in Table 9, 12 dolphins (sighting
27 (8 animals) and sighting 29 (estimated 4 animals)) were sighted
closing on the ship and later engaged in bow riding. In these
instances, sonar was shutdown at a range of 3,000 yards.
None of the watchstanders reported any sort of ``observed effect''
on the marine mammals that were observed, either with or without the
operation of MFAS.

[[Page 60797]]

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[[Page 60798]]

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General Conclusions Drawn From Review of Monitoring Reports

Because NMFS has received relatively few monitoring reports from
sonar training in the AFAST Study Area, and none that have utilized
independent aerial or vessel-based observers (though they will be
required by this LOA (see Monitoring)), it is difficult to draw
biological conclusions. However, NMFS can draw some general conclusions
from the content of the monitoring reports:
(a) Data from watchstanders is generally useful to indicate the
presence or absence of marine mammals within the safety zones (and
sometimes without) and to document the implementation of mitigation
measures, but does not provide useful species specific information or
behavioral data. Data gathered by independent observers can provide
very valuable information at a level of detail not possible with
watchstanders (such as data gathered by independent, biologist monitors
in Hawaii and submitted to NMFS in a monitoring report, which indicated
the presence of sub-adult sei whales in the Hawaiian Islands in fall,
potentially indicating the use of the area for breeding).
(b) Though it is by no means conclusory, it is worth noting that no
instances of obvious behavioral disturbance were observed by the Navy
watchstanders. Though of course, these observations only cover the
animals that were at the surface (or slightly below in the case of
aerial surveys) and within the distance that the observers can see with
the big-eye binoculars or from the aircraft.
(c) NMFS and the Navy need to more carefully designate what
information should be gathered during monitoring, as some reports
contain different information, making cross-report comparisons
difficult.

Adaptive Management

Adaptive Management was addressed above in the context of the
Stranding Response Plan because that Section will be a stand-alone
document. More specifically, the final regulations governing the take
of marine mammals incidental to Navy training exercises in the AFAST
Study Area will contain an adaptive management component. Our
understanding of the effects of MFAS/HFAS and explosives on marine
mammals is still in its relative infancy, and yet the science in this
field is evolving fairly quickly. These circumstances make the
inclusion of an adaptive management component both valuable and
necessary within the context of 5-year regulations for activities that
have been associated with marine mammal mortality in certain
circumstances and locations (though not the AFAST Study Area). The use
of adaptive management will give NMFS the ability to consider new data
from different sources to determine (in coordination with the Navy), on
an annual basis if new or modified mitigation or monitoring measures
are appropriate for subsequent annual LOAs. Following are some of the
possible sources of applicable data:
Results from the Navy's monitoring from the previous year
(either from the AFAST Study Area or other locations)
Results from specific stranding investigations (either
from the AFAST Study Area or other locations, and involving coincident
MFAS/HFAS of explosives training or not involving coincident use)
Results from the Long Term Prospective Study described
below
Results from general marine mammal and sound research
(funded by the Navy (described below) or otherwise)

[[Page 60799]]

Mitigation measures could be modified or added if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
NMFS could also coordinate with the Navy to modify or add to the
existing monitoring requirements if the new data suggest that the
addition of a particular measure would likely fill in a specifically
important data gap.

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. Some of the reporting
requirements are still in development and the final rule may contain
additional details not contained in the proposed rule. Additionally,
proposed reporting requirements may be modified, removed, or added
based on information or comments received during the public comment
period. Currently, there are several different reporting requirements
pursuant to these proposed regulations:

General Notification of Injured or Dead Marine Mammals

Navy personnel will ensure that NMFS (regional stranding
coordinator) is notified immediately (or as soon as clearance
procedures allow) if an injured or dead marine mammal is found during
or shortly after, and in the vicinity of, any Navy training exercise
utilizing MFAS, HFAS, or underwater explosive detonations. The Navy
will provide NMFS with species or description of the animal (s), the
condition of the animal(s) (including carcass condition if the animal
is dead), location, time of first discovery, observed behaviors (if
alive), and photo or video (if available). The AFAST Stranding Response
Plan contains more specific reporting requirements for specific
circumstances.

IEER

A yearly report detailing the number of exercises along with the
hours of associated marine mammal survey and associated marine mammal
sightings, number of times employment was delayed by sightings, and the
number of total detonated charges and self-scuttled charges will be
submitted to NMFS.

MFAS/HFAS Mitigation/Navy Watchstanders

The Navy will submit an After Action Report to the Office of
Protected Resources, NMFS, within 120 days of the completion of a Major
Training Exercise (SEASWITI, COMPTUEX, JTFEX, but not Group Sails). For
other ASW exercises the Navy will submit a yearly summary report. These
reports will, at a minimum, include the following information:
The estimated number of hours of sonar operation, broken
down by source type.
If possible, the total number of hours of observation
effort (including observation time when sonar was not operating).
A report of all marine mammal sightings (at any distance--
not just within a particular distance) to include, when possible and to
the best of their ability, and if not classified:
Species or animal type.
Number of animals sighted.
Location of marine mammal sighting.
Distance of animal from any operating sonar sources.
Whether animal is fore, aft, port, starboard.
Direction animal is moving in relation to source (away,
towards, parallel).
Any observed behaviors of marine mammals.
The status of any sonar sources (what sources were in use)
and whether or not they were powered down or shut down as a result of
the marine mammal observation.
The platform that the marine mammals were sighted from.

Monitoring Report

Although the draft Monitoring Plan for AFAST contains a general
description of the monitoring that the Navy plans to conduct (and that
NMFS has analyzed) in the AFAST Study Area, the detailed analysis and
reporting protocols that will be used for the AFAST monitoring plan are
still being refined at this time. The draft AFAST Monitoring plan may
be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
Standard marine species sighting forms will be used by Navy lookouts
and biologists to standardize data collection and data collection
methods will be standardized across ranges to allow for comparison in
different geographic locations. Reports of the required monitoring will
be submitted to NMFS on an annual basis as well as in the form of a
multi-year report that compiles all five years worth of monitoring data
(reported at end of fourth year of rule--in future rules will include
the last year of the prior rule).

AFAST Comprehensive Report

The Navy will submit to NMFS a draft report that analyzes and
summarizes all of the multi-year marine mammal information gathered
during ASW and IEER exercises for which individual reports are required
in Sec. 216.175(d)-(f). This report will be submitted at the end of
the fourth year of the rule (December 2012), covering activities that
have occurred through June 1, 2012. The Navy will respond to NMFS
comments on the draft comprehensive report if submitted within 3 months
of receipt. The report will be considered final after the Navy has
addressed NMFS' comments, or three months after the submittal of the
draft if NMFS does not comment by then.

Comprehensive National ASW Report

The Navy will submit a draft Comprehensive National ASW Report that
analyzes, compares, and summarizes the data gathered from the
watchstanders and pursuant to the implementation of the Monitoring
Plans for AFAST, the Hawaii Range Complex, the Southern California
(SOCAL) Range Complex, and the Marianas range Complex. The Navy will
respond to NMFS comments on the draft comprehensive report if submitted
within 3 months of receipt. The report will be considered final after
the Navy has addressed NMFS' comments, or three months after the
submittal of the draft if NMFS does not comment by then.

Estimated Take of Marine Mammals

As mentioned previously, for the purposes of MMPA authorizations,
NMFS' effects assessments have two primary purposes (in the context of
the AFAST LOA, where subsistence communities are not present): (1) To
put forth the permissible methods of taking within the context of MMPA
Level B Harassment (behavioral harassment), Level A Harassment
(injury), and mortality (i.e., identify the number and types of take
that will occur); and (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).
In the Potential Effects of Exposure of Marine Mammal to MFAS/HFAS
and Underwater Detonations section, NMFS' analysis identified the
lethal responses, physical trauma, sensory impairment

[[Page 60800]]

(permanent and temporary threshold shifts and acoustic masking),
physiological responses (particular stress responses), and behavioral
responses that could potentially result from exposure to MFAS/HFAS or
underwater explosive detonations. In this section, we will relate the
potential effects to marine mammals from MFAS/HFAS and underwater
detonation of explosives to the MMPA regulatory definitions of Level A
and Level B Harassment and attempt to quantify the effects that might
occur from the specific training activities that the Navy is proposing
in the AFAST Study Area.

Definition of Harassment

As mentioned previously, with respect to military readiness
activities, Section 3(18)(B) of the MMPA defines ``harassment'' as: (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].

Level B Harassment

Of the potential effects that were described in the Potential
Effects of Exposure of Marine Mammal to MFAS/HFAS and Underwater
Detonations Section, the following are the types of effects that fall
into the Level B Harassment category:
Behavioral Harassment--Behavioral disturbance that rises to the
level described in the definition above, when resulting from exposures
to MFAS/HFAS or underwater detonations, is considered Level B
Harassment. Some of the lower level physiological stress responses
discussed in the Potential Effects of Exposure of Marine Mammal to
MFAS/HFAS and Underwater Detonations Section: Stress Section will also
likely co-occur with the predicted harassments, although these
responses are more difficult to detect and fewer data exist relating
these responses to specific received levels of sound. When Level B
Harassment is predicted based on estimated behavioral responses, those
takes may have a stress-related physiological component as well.
In the effects section above, we described the Southall et al.
(2007) severity scaling system and listed some examples of the three
broad categories of behaviors: (0-3: Minor and/or brief behaviors); 4-6
(Behaviors with higher potential to affect foraging, reproduction, or
survival); 7-9 (Behaviors considered likely to affect the
aforementioned vital rates). Generally speaking, MMPA Level B
Harassment, as defined in this document, would include the behaviors
described in the 7-9 category, and a subset, dependent on context and
other considerations, of the behaviors described in the 4-6 categories.
Behavioral harassment does not generally include behaviors ranked 0-3
in Southall et al. (2007).
Acoustic Masking and Communication Impairment--Acoustic masking is
considered Level B Harassment as it can disrupt natural behavioral
patterns by interrupting or limiting the marine mammal's receipt or
transmittal of important information or environmental cues.
TTS--As discussed previously, TTS can effect how an animal behaves
in response to the environment, including conspecifics, predators, and
prey. The following physiological mechanisms are thought to play a role
in inducing auditory fatigue: effects to sensory hair cells in the
inner ear that reduce their sensitivity, modification of the chemical
environment within the sensory cells, residual muscular activity in the
middle ear, displacement of certain inner ear membranes, increased
blood flow, and post-stimulatory reduction in both efferent and sensory
neural output. Ward (1997) suggested that when these effects result in
TTS rather than PTS, they are within the normal bounds of physiological
variability and tolerance and do not represent a physical injury.
Additionally, Southall et al. (2007) indicate that although PTS is a
tissue injury, TTS is not, because the reduced hearing sensitivity
following exposure to intense sound results primarily from fatigue, not
loss, of cochlear hair cells and supporting structures and is
reversible. Accordingly, NMFS classifies TTS (when resulting from
exposure to either MFAS/HFAS or underwater detonations) as Level B
Harassment, not Level A Harassment (injury).

Level A Harassment

Of the potential effects that were described in the Potential
Effects of Exposure of Marine Mammals to MFAS/HFAS and Underwater
Detonations Section, following are the types of effects that fall into
the Level A Harassment category:
PTS--PTS (resulting either from exposure to MFAS/HFAS or explosive
detonations) is irreversible and considered an injury. PTS results from
exposure to intense sounds that cause a permanent loss of inner or
outer cochlear hair cells or exceed the elastic limits of certain
tissues and membranes in the middle and inner ears and result in
changes in the chemical composition of the inner ear fluids.
Tissue Damage due to Acoustically Mediated Bubble Growth--A few
theories suggest ways in which gas bubbles become enlarged through
exposure to intense sounds (MFAS/HFAS) to the point where tissue damage
results. In rectified diffusion, exposure to a sound field would cause
bubbles to increase in size. A short duration of sonar pings (such as
that which an animal exposed to MFAS would be most likely to encounter)
would not likely be long enough to drive bubble growth to any
substantial size. Alternately, bubbles could be destabilized by high-
level sound exposures such that bubble growth then occurs through
static diffusion of gas out of the tissues. The degree of
supersaturation and exposure levels observed to cause microbubble
destabilization are unlikely to occur, either alone or in concert
because of how close an animal would need to be to the sound source to
be exposed to high enough levels, especially considering the likely
avoidance of the sound source and the required mitigation. Still,
possible tissue damage from either of these processes would be
considered an injury.
Tissue Damage due to Behaviorally Mediated Bubble Growth--Several
authors suggest mechanisms in which marine mammals could behaviorally
respond to exposure to MFAS/HFAS by altering their dive patterns in a
manner (unusually rapid ascent, unusually long series of surface dives,
etc.) that might result in unusual bubble formation or growth
ultimately resulting in tissue damage (emboli, etc.) In this scenario,
the rate of ascent would need to be sufficiently rapid to compromise
behavioral or physiological protections against nitrogen bubble
formation. There is considerable disagreement among scientists as to
the likelihood of this phenomenon (Piantadosi and Thalmann, 2004; Evans
and Miller, 2003). Although it has been argued that traumas from recent
beaked whale strandings are consistent with gas emboli and bubble-
induced tissue separations (Jepson et al., 2003; Fernandez et al.,
2005), nitrogen bubble formation as the cause of the traumas has not
been verified. If tissue damage does occur by this phenomenon, it would
be considered an injury.
Physical Disruption of Tissues Resulting from Explosive Shock
Wave--Physical damage of tissues resulting from a shock wave (from an
explosive

[[Page 60801]]

detonation) is classified as an injury. Blast effects are greatest at
the gas-liquid interface (Landsberg, 2000) and gas-containing organs,
particularly the lungs and gastrointestinal tract, are especially
susceptible (Goertner, 1982; Hill 1978; Yelverton et al., 1973). Nasal
sacs, larynx, pharynx, trachea, and lungs may be damaged by
compression/expansion caused by the oscillations of the blast gas
bubble (Reidenberg and Laitman, 2003). Severe damage (from the shock
wave) to the ears can include tympanic membrane rupture, fracture of
the ossicles, damage to the cochlea, hemorrhage, and cerebrospinal
fluid leakage into the middle ear.

Acoustic Take Criteria

For the purposes of an MMPA incidental take authorization, three
types of take are identified: Level B Harassment; Level A Harassment;
and mortality (or serious injury leading to mortality). The categories
of marine mammal responses (physiological and behavioral) that fall
into the two harassment categories were described in the previous
section.
Because the physiological and behavioral responses of the majority
of the marine mammals exposed to MFAS/HFAS and underwater detonations
cannot be detected or measured (not all responses visible external to
animal, portion of exposed animals underwater (so not visible), many
animals located many miles from observers and covering very large area,
etc.) and because NMFS must authorize take prior to the impacts to
marine mammals, a method is needed to estimate the number of
individuals that will be taken, pursuant to the MMPA, based on the
proposed action. To this end, NMFS developed acoustic criteria that
estimate at what received level (when exposed to MFAS/HFAS or explosive
detonations) Level B Harassment, Level A Harassment, and mortality (for
explosives) of marine mammals would occur. The acoustic criteria for
MFAS/HFAS and Underwater Detonations (IEER) are discussed below.

MFAS/HFAS Acoustic Criteria

Because relatively few applicable data exist to support acoustic
criteria specifically for HFAS and because such a small percentage of
the sonar pings that marine mammals will likely be exposed to
incidental to this activity come from a HFAS source (the vast majority
come from MFAS sources), NMFS will apply the criteria developed for the
MFAS to the HFAS as well.
NMFS utilizes three acoustic criteria for MFAS/HFAS: PTS (injury--
Level A Harassment), TTS (Level B Harassment), and behavioral
harassment (Level B Harassment). Because the TTS and PTS criteria are
derived similarly and the PTS criteria was extrapolated from the TTS
data, the TTS and PTS acoustic criteria will be presented first, before
the behavioral criteria.
For more information regarding these criteria, please see the
Navy's FEIS for AFAST.

Level B Harassment Threshold (TTS)

As mentioned above, behavioral disturbance, acoustic masking, and
TTS are all considered Level B Harassment. Marine mammals would usually
be behaviorally disturbed at lower received levels than those at which
they would likely sustain TTS, so the levels at which behavioral
disturbance are likely to occur is considered the onset of Level B
Harassment. The behavioral responses of marine mammals to sound are
variable, context specific, and, therefore, difficult to quantify (see
Risk Function section, below). Alternately, TTS is a physiological
effect that has been studied and quantified in laboratory conditions.
Because data exist to support an estimate of at what received levels
marine mammals will incur TTS, NMFS uses an acoustic criteria to
estimate the number of marine mammals that might sustain TTS. TTS is a
subset of Level B Harassment (along with sub-TTS behavioral harassment)
and we are not specifically required to estimate those numbers;
however, the more specifically we can estimate the affected marine
mammal responses, the better the analysis.
A number of investigators have measured TTS in marine mammals.
These studies measured hearing thresholds in trained marine mammals
before and after exposure to intense sounds. The existing cetacean TTS
data are summarized in the following bullets.
Schlundt et al. (2000) reported the results of TTS
experiments conducted with 5 bottlenose dolphins and 2 belugas exposed
to 1-second tones. This paper also includes a reanalysis of preliminary
TTS data released in a technical report by Ridgway et al. (1997). At
frequencies of 3, 10, and 20 kHz, sound pressure levels (SPLs)
necessary to induce measurable amounts (6 dB or more) of TTS were
between 192 and 201 dB re 1 [mu]Pa (EL = 192 to 201 dB re 1 [mu]Pa\2\-
s). The mean exposure SPL and EL for onset-TTS were 195 dB re 1 [mu]Pa
and 195 dB re 1 [mu]Pa\2\-s, respectively.
Finneran et al. (2001, 2003, 2005) described TTS
experiments conducted with bottlenose dolphins exposed to 3-kHz tones
with durations of 1, 2, 4, and 8 seconds. Small amounts of TTS (3 to 6
dB) were observed in one dolphin after exposure to ELs between 190 and
204 dB re 1 [mu]Pa\2\-s. These results were consistent with the data of
Schlundt et al. (2000) and showed that the Schlundt et al. (2000) data
were not significantly affected by the masking sound used. These
results also confirmed that, for tones with different durations, the
amount of TTS is best correlated with the exposure EL rather than the
exposure SPL.
Nachtigall et al. (2003) measured TTS in a bottlenose
dolphin exposed to octave-band sound centered at 7.5 kHz. Nachtigall et
al. (2003a) reported TTSs of about 11 dB measured 10 to 15 minutes
after exposure to 30 to 50 minutes of sound with SPL 179 dB re 1 [mu]Pa
(EL about 213 dB re [mu]Pa\2\-s). No TTS was observed after exposure to
the same sound at 165 and 171 dB re 1 [mu]Pa. Nachtigall et al. (2004)
reported TTSs of around 4 to 8 dB 5 minutes after exposure to 30 to 50
minutes of sound with SPL 160 dB re 1 [mu]Pa (EL about 193 to 195 dB re
1 [mu]Pa\2\-s). The difference in results was attributed to faster
post-exposure threshold measurement--TTS may have recovered before
being detected by Nachtigall et al. (2003). These studies showed that,
for long-duration exposures, lower sound pressures are required to
induce TTS than are required for short-duration tones.
Finneran et al. (2000, 2002) conducted TTS experiments
with dolphins and belugas exposed to impulsive sounds similar to those
produced by distant underwater explosions and seismic waterguns. These
studies showed that, for very short-duration impulsive sounds, higher
sound pressures were required to induce TTS than for longer-duration
tones.
Finneran et al. (2007) conducted TTS experiments with
bottlenose dolphins exposed to intense 20 kHz fatiguing tone.
Behavioral and auditory evoked potentials (using sinusoidal amplitude
modulated tones creating auditory steady state response [AASR]) were
used to measure TTS. The fatiguing tone was either 16 (mean = 193 re
1[mu]Pa, SD = 0.8) or 64 seconds (185-186 re 1[mu]Pa) in duration. TTS
ranged from 19-33db from behavioral measurements and 40-45dB from ASSR
measurements.
Kastak et al. (1999a, 2005) conducted TTS experiments with
three species of pinnipeds, California sea lion, northern elephant seal
and a Pacific harbor seal, exposed to continuous underwater sounds at
levels of 80 and 95 dB sensation level at 2.5 and 3.5 kHz for up to 50
minutes. Mean TTS shifts

[[Page 60802]]

of up to 12.2 dB occurred with the harbor seals showing the largest
shift of 28.1 dB. Increasing the sound duration had a greater effect on
TTS than increasing the sound level from 80 to 95 dB.
Some of the more important data obtained from these studies are
onset-TTS levels (exposure levels sufficient to cause a just-measurable
amount of TTS) often defined as 6 dB of TTS (for example, Schlundt et
al., 2000) and the fact that energy metrics (sound exposure levels
(SEL), which include a duration component) better predict when an
animal will sustain TTS than pressure (SPL) alone. NMFS' TTS criteria
(which indicate the received level at which onset TTS (>6dB) is
induced) for MFAS/HFAS are as follows:
Cetaceans--195 dB re 1 [mu]Pa\2\-s (based on mid-frequency
cetaceans--no published data exist on auditory effects of noise in low-
or high-frequency cetaceans (Southall et al. (2007))
Pinnipeds--183 dB re 1 [mu]Pa\2\-s
A detailed description of how TTS criteria were derived from the
results of the above studies may be found in Chapter 3 of Southall et
al. (2007), as well as the Navy's AFAST LOA application.

Level A Harassment Threshold (PTS)

For acoustic effects, because the tissues of the ear appear to be
the most susceptible to the physiological effects of sound, and because
threshold shifts tend to occur at lower exposures than other more
serious auditory effects, NMFS has determined that PTS is the best
indicator for the smallest degree of injury that can be measured.
Therefore, the acoustic exposure associated with onset-PTS is used to
define the lower limit of the Level A harassment.
PTS data do not currently exist for marine mammals and are unlikely
to be obtained due to ethical concerns. However, PTS levels for these
animals may be estimated using TTS data from marine mammals and
relationships between TTS and PTS that have been discovered through
study of terrestrial mammals. NMFS uses the following acoustic criteria
for injury:
Cetaceans--215 dB re 1 [mu]Pa\2\-s (based on mid-frequency
cetaceans--no published data exist on auditory effects of noise in low-
or high-frequency cetaceans (Southall et al. (2007))
Pinnipeds--203 dB re 1 [mu]Pa\2\-s)
These criteria are based on a 20 dB increase in SEL over that
required for onset-TTS. Extrapolations from terrestrial mammal data
indicate that PTS occurs at 40 dB or more of TS, and that TS growth
occurs at a rate of approximately 1.6 dB TS per dB increase in EL.
There is a 34-dB TS difference between onset-TTS (6 dB) and onset-PTS
(40 dB). Therefore, an animal would require approximately 20 dB of
additional exposure (34 dB divided by 1.6 dB) above onset-TTS to reach
PTS. A detailed description of how TTS criteria were derived from the
results of the above studies may be found in Chapter 3 of Southall et
al. (2007), as well as the Navy's AFAST LOA application. Southall et
al. (2007) recommend a precautionary dual criteria for TTS (230 dB re 1
[mu]Pa (SPL peak pressure) in addition to 215 dB re 1 [mu]Pa\2\-s
(SEL)) to account for the potentially damaging transients embedded
within non-pulse exposures. However, in the case of MFAS/HFAS, the
distance at which an animal would receive 215 dB (SEL) is farther from
the source (i.e., more conservative) than the distance at which they
would receive 230 dB (SPL peak pressure) and therefore, it is not
necessary to consider 230 dB peak.
We note here that behaviorally mediated injuries (such as those
that have been hypothesized as the cause of some beaked whale
strandings) could potentially occur in response to received levels
lower than those believed to directly result in tissue damage. As
mentioned previously, data to support a quantitative estimate of these
potential effects (for which the exact mechanism is not known and in
which factors other than received level may play a significant role) do
not exist. However, based on the number of years (more than 40) and
number of hours of MFAS per year that the U.S. (and other countries)
has operated compared to the reported (and verified) cases of
associated marine mammal strandings, NMFS believes that the probability
of these types of injuries is very low.

Level B Harassment Risk Function (Behavioral Harassment)

In 2006, NMFS issued the only MMPA authorization that has, as yet,
authorized the take of marine mammals incidental to MFAS. For that
authorization, NMFS used 173 dB SEL as the criterion for the onset of
behavioral harassment (Level B Harassment). This type of single number
criterion is referred to as a step function, in which (in this example)
all animals estimated to be exposed to received levels above 173 db SEL
would be predicted to be taken by Level B Harassment and all animals
exposed to less than 173 dB SEL would not be taken by Level B
Harassment. As mentioned previously, marine mammal behavioral responses
to sound are highly variable and context specific (affected by
differences in acoustic conditions; differences between species and
populations; differences in gender, age, reproductive status, or social
behavior; or the prior experience of the individuals), which does not
support the use of a step function to estimate behavioral harassment.
Unlike step functions, acoustic risk continuum functions (which are
also called ``exposure-response functions,'' ``dose-response
functions,'' or ``stress-response functions'' in other risk assessment
contexts) allow for probability of a response that NMFS would classify
as harassment to occur over a range of possible received levels
(instead of one number) and assume that the probability of a response
depends first on the ``dose'' (in this case, the received level of
sound) and that the probability of a response increases as the ``dose''
increases (see Figure 3a). The Navy and NMFS have previously used
acoustic risk functions to estimate the probable responses of marine
mammals to acoustic exposures for other training and research programs.
Examples of previous application include the Navy FEISs on the SURTASS
LFA sonar (U.S. Department of the Navy, 2001c); the North Pacific
Acoustic Laboratory experiments conducted off the Island of Kauai
(Office of Naval Research, 2001), the Supplemental EIS for SURTASS LFA
sonar (U.S. Department of the Navy, 2007d) and the FEIS for the Navy's
Hawaii Range Complex (U.S. Department of the Navy, 2008). As discussed
in the Effects section, factors other than received level (such as
distance from or bearing to the sound source) can affect the way that
marine mammals respond; however, data to support a quantitative
analysis of those (and other factors) do not currently exist. NMFS will
continue to modify these criteria as new data become available.
The particular acoustic risk functions developed by NMFS and the
Navy (see Figures 3a and b) estimate the probability of behavioral
responses to MFAS/HFAS (interpreted as the percentage of the exposed
population) that NMFS would classify as harassment for the purposes of
the MMPA given exposure to specific received levels of MFAS/HFAS. The
mathematical function (below) underlying this curve is a cumulative
probability distribution adapted from a solution in Feller (1968) and
was also used in predicting risk for the Navy's SURTASS LFA MMPA
authorization as well.

[[Page 60803]]

[GRAPHIC] [TIFF OMITTED] TP14OC08.053

Where:

R = Risk (0-1.0)
L = Received level (dB re: 1 [mu]Pa)
B = Basement received level = 120 dB re: 1 [mu]Pa
K = Received level increment above B where 50 percent risk = 45 dB
re: 1 [mu]Pa
A = Risk transition sharpness parameter = 10 (odontocetes and
pinnipeds) or 8 (mysticetes)

In order to use this function to estimate the percentage of an
exposed population that would respond in a manner that NMFS classifies
as Level B Harassment, based on a given received level, the values for
B, K and A need to be identified.
B Parameter (Basement)--The B parameter is the estimated received
level below which the probability of disruption of natural behavioral
patterns, such as migration, surfacing, nursing, breeding, feeding, or
sheltering, to a point where such behavioral patterns are abandoned or
significantly altered approaches zero for the MFAS/HFAS risk
assessment. At this received level, the curve would predict that the
percentage of the exposed population that would be taken by Level B
Harassment approaches zero. For MFAS/HFAS, NMFS has determined that B =
120 dB. This level is based on a broad overview of the levels at which
many species have been reported responding to a variety of sound
sources.
K Parameter (representing the 50 percent Risk Point)--The K
parameter is based on the received level that corresponds to 50 percent
risk, or the received level at which we believe 50 percent of the
animals exposed to the designated received level will respond in a
manner that NMFS classifies as Level B Harassment. The K parameter (K =
45 dB) is based on three datasets in which marine mammals exposed to
mid-frequency sound sources were reported to respond in a manner that
NMFS would classify as Level B Harassment. There is widespread
consensus that marine mammal responses to MFA sound signals need to be
better defined using controlled exposure experiments (Cox et al., 2006;
Southall et al., 2007). The Navy is contributing to an ongoing
behavioral response study in the Bahamas that is expected to provide
some initial information on beaked whales, the species identified as
the most sensitive to MFAS. NMFS is leading this international effort
with scientists from various academic institutions and research
organizations to conduct studies on how marine mammals respond to
underwater sound exposures. Additionally, the Navy plans to tag whales
in conjunction with the 2008 RIMPAC exercises. Until additional data
are available, however, NMFS and the Navy have determined that the
following three data sets are most applicable for the direct use in
establishing the K parameter for the MFAS/HFAS risk function. These
data sets, summarized below, represent the only known data that
specifically relate altered behavioral responses (that NMFS would
consider Level B Harassment) to exposure--at specific received levels--
to MFA sonar and sources within or having components within the range
of MFAS (1-10 kHz).
Even though these data are considered the most representative of
the proposed specified activities, and therefore the most appropriate
on which to base the K parameter (which basically determines the
midpoint) of the risk function, these data have limitations, which are
discussed in Appendix J of the Navy's FEIS for AFAST.
1. Controlled Laboratory Experiments with Odontocetes (SSC
Dataset)--Most of the observations of the behavioral responses of
toothed whales resulted from a series of controlled experiments on
bottlenose dolphins and beluga whales conducted by researchers at SSC's
facility in San Diego, California (Finneran et al., 2001, 2003, 2005;
Finneran and Schlundt, 2004; Schlundt et al., 2000). In experimental
trials (designed to measure TTS) with marine mammals trained to perform
tasks when prompted, scientists evaluated whether the marine mammals
still performed these tasks when exposed to mid-frequency tones.
Altered behavior during experimental trials usually involved refusal of
animals to return to the site of the sound stimulus, but also included
attempts to avoid an exposure in progress, aggressive behavior, or
refusal to further participate in tests.
Finneran and Schlundt (2004) examined behavioral observations
recorded by the trainers or test coordinators during the Schlundt et
al. (2000) and Finneran et al. (2001, 2003, 2005) experiments. These
included observations from 193 exposure sessions (fatiguing stimulus
level > 141 dB re 1 [mu]Pa) conducted by Schlundt et al. (2000) and 21
exposure sessions conducted by Finneran et al. (2001, 2003, 2005). The
TTS experiments that supported Finneran and Schlundt (2004) are further
explained below:
Schlundt et al. (2000) provided a detailed summary of the
behavioral responses of trained marine mammals during TTS tests
conducted at SSC San Diego with 1-sec tones and exposure frequencies of
0.4 kHz, 3 kHz, 10 kHz, 20 kHz and 75 kHz. Schlundt et al. (2000)
reported eight individual TTS experiments. The experiments were
conducted in San Diego Bay. Because of the variable ambient noise in
the bay, low-level broadband masking noise was used to keep hearing
thresholds consistent despite fluctuations in the ambient noise.
Schlundt et al. (2000) reported that ``behavioral alterations,'' or
deviations from the behaviors the animals being tested had been trained
to exhibit, occurred as the animals were exposed to increasing
fatiguing stimulus levels.
Finneran et al. (2001, 2003, 2005) conducted 2 separate
TTS experiments using 1-sec tones at 3 kHz. The test methods were
similar to that of Schlundt et al. (2000) except the tests were
conducted in a pool with very low ambient noise level (below 50 dB re 1
[mu]Pa²/hertz [Hz]), and no masking noise was used. In the
first, fatiguing sound levels were increased from 160 to 201 dB SPL. In
the second experiment, fatiguing sound levels between 180 and 200 dB
SPL were randomly presented.
Bottlenose dolphins exposed to 1-second (sec) intense tones
exhibited short-term changes in behavior above received sound levels of
178 to 193 dB re 1 [mu]Pa (rms), and beluga whales did so at received
levels of 180 to 196 dB and above.
2. Mysticete Field Study (Nowacek et al., 2004)--The only available
and applicable data relating mysticete responses to exposure to mid-
frequency sound sources is from Nowacek et al. (2004). Nowacek et al.
(2004) documented observations of the behavioral response of North
Atlantic right whales exposed to alert stimuli containing mid-frequency
components in the Bay of Fundy. Investigators used archival digital
acoustic recording tags (DTAG) to record the behavior (by measuring
pitch, roll, heading, and depth) of right whales in the presence of an
alert signal, and to calibrate received sound levels. The alert signal
was 18 minutes of exposure consisting of three 2-minute signals played
sequentially three times over. The three signals had a 60 percent duty
cycle and consisted of: (1) Alternating 1-sec pure tones at 500 Hz and
850 Hz; (2) a 2-sec logarithmic down-sweep from 4,500 Hz to 500 Hz; and
(3) a pair of low (1,500 Hz)-high (2,000 Hz) sine wave tones amplitude
modulated at 120 Hz and each 1-sec long. The purposes of the

[[Page 60804]]

alert signal were (a) to pique the mammalian auditory system with
disharmonic signals that cover the whales' estimated hearing range; (b)
to maximize the signal to noise ratio (obtain the largest difference
between background noise) and (c) to provide localization cues for the
whale. The maximum source level used was 173 dB SPL.
Nowacek et al. (2004) reported that five out of six whales exposed
to the alert signal with maximum received levels ranging from 133 to
148 dB re 1 [mu]Pa significantly altered their regular behavior and did
so in identical fashion. Each of these five whales: (i) Abandoned their
current foraging dive prematurely as evidenced by curtailing their
``bottom time''; (ii) executed a shallow-angled, high power (i.e.,
significantly increased fluke stroke rate) ascent; (iii) remained at or
near the surface for the duration of the exposure, an abnormally long
surface interval; and (iv) spent significantly more time at subsurface
depths (1-10 m) compared with normal surfacing periods when whales
normally stay within 1 m (1.1 yd) of the surface.
3. Odontocete Field Data (Haro Strait--USS SHOUP)--In May 2003,
killer whales (Orcinus orca) were observed exhibiting behavioral
responses generally described as avoidance behavior while the U.S. Ship
(USS) SHOUP was engaged in MFAS in the Haro Strait in the vicinity of
Puget Sound, Washington. Those observations have been documented in
three reports developed by Navy and NMFS (NMFS, 2005; Fromm, 2004a,
2004b; DON, 2003). Although these observations were made in an
uncontrolled environment, the sound field that may have been associated
with the sonar operations was estimated using standard acoustic
propagation models that were verified (for some but not all signals)
based on calibrated in situ measurements from an independent researcher
who recorded the sounds during the event. Behavioral observations were
reported for the group of whales during the event by an experienced
marine mammal biologist who happened to be on the water studying them
at the time. The observations associated with the USS SHOUP provide the
only data set available of the behavioral responses of wild, non-
captive animal upon actual exposure to AN/SQS-53 sonar.
U.S. Department of Commerce (National Marine Fisheries, 2005a);
U.S. Department of the Navy (2004b); Fromm (2004a, 2004b) documented
reconstruction of sound fields produced by USS SHOUP associated with
the behavioral response of killer whales observed in Haro Strait.
Observations from this reconstruction included an approximate closest
approach time which was correlated to a reconstructed estimate of
received level. Observations from this reconstruction included an
estimate of 169.3 dB SPL which represents the mean level at a point of
closest approach within a 500 m wide area which the animals were
exposed. Within that area, the estimated received levels varied from
approximately 150 to 180 dB SPL.
Calculation of K Parameter--NMFS and the Navy used the mean of the
following values to define the midpoint of the function: (1) The mean
of the lowest received levels (185.3 dB) at which individuals responded
with altered behavior to 3 kHz tones in the SSC data set; (2) the
estimated mean received level value of 169.3 dB produced by the
reconstruction of the USS SHOUP incident in which killer whales exposed
to MFA sonar (range modeled possible received levels: 150 to 180 dB);
and (3) the mean of the 5 maximum received levels at which Nowacek et
al. (2004) observed significantly altered responses of right whales to
the alert stimuli than to the control (no input signal) is 139.2 dB
SPL. The arithmetic mean of these three mean values is 165 dB SPL. The
value of K is the difference between the value of B (120 dB SPL) and
the 50 percent value of 165 dB SPL; therefore, K = 45.
A Parameter (Steepness)--NMFS determined that a steepness parameter
(A) = 10 is appropriate for odontocetes and pinnipeds and A = 8 is
appropriate for mysticetes.
The use of a steepness parameter of A = 10 for odontocetes for the
MFAS/HFAS risk function was based on the use of the same value for the
SURTASS LFA risk continuum, which was supported by a sensitivity
analysis of the parameter presented in Appendix D of the SURTASS/LFA
FEIS (U.S. Department of the Navy, 2001c). As concluded in the SURTASS
FEIS/EIS, the value of A = 10 produces a curve that has a more gradual
transition than the curves developed by the analyses of migratory gray
whale studies (Malme et al., 1984; Buck and Tyack, 2000; and SURTASS
LFA Sonar EIS, Subchapters 1.43, 4.2.4.3 and Appendix D, and National
Marine Fisheries Service, 2008).
NMFS determined that a lower steepness parameter (A = 8), resulting
in a shallower curve, was appropriate for use with mysticetes and MFAS/
HFAS. The Nowacek et al. (2004) dataset contains the only data
illustrating mysticete behavioral responses to a sound source that
encompasses frequencies in the mid-frequency sound spectrum. A
shallower curve (achieved by using A = 8) better reflects the risk of
behavioral response at the relatively low received levels at which
behavioral responses of right whales were reported in the Nowacek et
al. (2004) data. Compared to the odontocete curve, this adjustment
results in an increase in the proportion of the exposed population of
mysticetes being classified as behaviorally harassed at lower RLs, such
as those reported in and is supported by the only dataset currently
available.
BILLING CODE 3510-22-P

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Basic Application of the Risk Function--The risk function is used
to estimate the percentage of an exposed population that is likely to
exhibit behaviors that would qualify as harassment (as that term is
defined by the MMPA applicable to military readiness activities, such
as the Navy's testing and training with MFA sonar) at a given received
level of sound. For example, at 165 dB SPL (dB re: 1[mu]Pa rms), the
risk (or probability) of harassment is defined according to this
function as 50 percent, and Navy/NMFS applies that by estimating that
50 percent of the individuals exposed at that received level are likely
to respond by exhibiting behavior that NMFS would classify as
behavioral harassment. The risk function is not applied to individual
animals, only to exposed populations.
The data primarily used to produce the risk function (the K
parameter) were compiled from four species that had been exposed to
sound sources in a variety of different circumstances. As a result, the
risk function represents a general relationship between acoustic
exposures and behavioral responses that is then applied to specific
circumstances. That is, the risk function represents a relationship
that is deemed to be generally true, based on the limited, best-
available science, but may not be true in specific circumstances. In
particular, the risk function, as currently derived, treats the
received level as the only variable that is relevant to a marine
mammal's behavioral response. However, we know that many other
variables--the marine mammal's gender, age, and prior experience; the
activity it is engaged in during an exposure event, its distance from a
sound source, the number of sound sources, and whether the sound
sources are approaching or moving away from the animal--can be
critically important in determining whether and how a marine mammal
will respond to a sound source (Southall et al., 2007). The data that
are currently available do not allow for incorporation of these other
variables in the current risk functions; however, the risk function
represents the best use of the data that are available.
As more specific and applicable data become available for MFAS/HFAS
sources, NMFS can use these data to modify the outputs generated by the
risk function to make them more realistic. Ultimately, data may exist
to justify the use of additional, alternate, or multi-variate
functions. For example, as mentioned previously, the distance from the
sound source and whether it is perceived as approaching or moving away
can affect the way an animal responds to a sound (Wartzok et al.,
2003). In the AFAST example, animals exposed to received levels between
120 and 130 dB may be more than 65 nautical miles (131,651 yards
(120381 m)) from a sound source; those distances could influence
whether those animals perceive the sound source as a potential threat,
and their behavioral responses to that threat. Though there are data
showing marine mammal responses to sound sources at that received
level, NMFS does not currently have any data that describe the response
of marine mammals to sounds at that distance, much less data that
compare responses to similar sound levels at varying distances (much
less for MFAS/HFAS). However, if data were to become available, NMFS
would re-evaluate the risk function and incorporate any additional
variables into the ``take'' estimates.

Harbor Porpoise Behavioral Harassment Criteria

The information currently available regarding these inshore species
that inhabit shallow and coastal waters suggests a very low threshold
level of response for both captive and wild animals. Threshold levels
at which both captive (e.g. Kastelein et al., 2000; Kastelein et al.,
2005; Kastelein et al., 2006, Kastelein et al., 2008) and wild harbor
porpoises (e.g. Johnston, 2002) responded to sound (e.g. acoustic
harassment devices (ADHs), acoustic deterrent devices (ADDs), or other
non-pulsed sound sources) is very low (e.g. ~120 dB SPL), although the
biological significance of the disturbance is uncertain. Therefore, a
step function threshold of 120 dB SPL was used to estimate take of
harbor porpoises instead of the risk functions used for other species
(i.e., we assume for the purpose of estimating take that all harbor
porpoises exposed to 120 dB or higher MFAS/HFAS will be taken by Level
B behavioral harassment).

Explosive Detonation Criteria (for IEER)

The criteria for mortality, Level A Harassment, and Level B
Harassment resulting from explosive detonations were initially
developed for the Navy's Sea Wolf and Churchill ship-shock trials and
have not changed since other MMPA authorizations issued for explosive
detonations. The criteria, which are applied to cetaceans and
pinnipeds, are summarized in Table 10. Additional information regarding
the derivation of these criteria is available in the Navy's FEIS for
the AFAST and in the Navy's CHURCHILL FEIS (U.S. Department of the
Navy, 2001c).

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Although NMFS does consider behavioral harassment that could
potentially result from successive explosive detonations, such as those
that would occur in gunnery exercises, because of the spatio-temporal
separation (10-12 charges are detonated over the course of 2-8 hours in
an area of up to 60 by 60 nm) of the charges detonated in an IEER
exercises, behavioral harassment is considered unlikely. Also, the
pressure wave (23 psi) explosive TTS threshold radius is very close to
the size of the acoustic energy threshold for sub-TTS harassment--so
many of the takes that might have been counted as behavioral
harassments would already have been captured as TTS takes anyway.
Additionally, a 1,000-yd exclusion zone is utilized for the IEER
exercises and the distance from the source at which animals would be
exposed to the behavioral harassment threshold is less than 1,000 yds
(approximately 500 yd).

Estimates of Potential Marine Mammal Exposures and Takes

Information regarding the models used, the assumptions used in the
models, and the process of estimating take is available in the Navy's
EIS/OEIS for AFAST. Estimating the take that will result from the
proposed activities entails the following general steps:
(1) In order to quantify the types of take described in previous
sections that are predicted to result from the Navy's specified
activities, the Navy first uses a sound propagation model that predicts
the volume of water that will be ensonified to a range of levels of
pressure and energy (of the metrics used in the criteria) from MFAS/
HFAS and explosive detonations based on several important pieces of
information, including:

Characteristics of the sound sources
Sonar source characteristics include: Source level (with
horizontal and vertical directivity corrections), source depth, center
frequency, source directivity (horizontal/vertical beam width and
horizontal/vertical steer direction), and ping spacing
Explosive source characteristics include: The weight of an
explosive, the type of explosive, and the detonation depth
Transmission loss (in 36 representative environmental
provinces) based on: Seasonal sound speed profiles; seabed
geoacoustics; wind speed; and acoustics

(2) The accumulated energy and maximum received sound pressure
level within the waters in which the sonar is operating is sampled over
a two dimensional grid. The zone of influence (ZOI) for a given
threshold is estimated by summing the areas represented by each grid
point for which the threshold is exceeded. For behavioral response, the
percentage of animals likely to respond corresponding to the maximum
received level is found, and the area of the grid point is multiplied
by that percentage to find the adjusted area. Those adjusted areas are
summed across all grid points to find the overall ZOI for a particular
source.
(3) The densities of each marine mammal species, which are specific
to certain geographic areas and seasons if data are available, are
applied to the summed zones of influence for a particular training
event to determine how many times individuals of each species are
exposed to levels that exceed the applicable criteria for injury or
harassment.
(4) Next, the criteria discussed in the previous section are
applied to the estimated exposures to predict the number of exposures
that exceed the criteria, i.e., the number of takes by Level B
Harassment, Level A Harassment, and mortality.
(5) Last, NMFS and the Navy consider the mitigation measures and
model-calculated estimates may be adjusted based a post-model
assessment. For example, in some cases the raw modeled numbers of
exposures to levels predicted to result in Level A Harassment from
exposure to sonar might indicate that 1 fin whale would be exposed to
levels of sonar anticipated to result in PTS--however, a fin whale
would need to be within approximately 10 m of the source vessel in
order to be exposed to these levels. Because of the mitigation measures
(watchstanders and shutdown zone), size of fin whales, and nature of
fin whale behavior, it is highly unlikely that a fin whale would be
exposed to those levels, and therefore the Navy would not request
authorization for Level A Harassment of 1 fin whale. Table 11 contains
the Navy's estimated take estimates. The ``takes'' reported in the take
table and proposed to be authorized are based on estimates of marine
mammal exposures to levels above those indicated in the criteria. Every
separate take does not necessarily represent a different individual
because some individual marine mammals may be exposed more than once,
either within one day and one exercise, or on different days from
different exercise types.
(6) Last, the Navy's specified activities have been described based
on best estimates of the number of MFAS/HFAS

[[Page 60808]]

hours that the Navy will conduct. The exact number of hours may vary
from year to year, but will not exceed the 5-year total indicated in
Table 1 (by multiplying the yearly estimate by 5) by more than 10-
percent. NMFS estimates that a 10-percent increase in sonar hours would
result in approximately a 10-percent increase in the number of takes,
and we have considered this possibility and the effect of this
additional sonar use in our analysis.
NMFS notes here that the Navy revised its request for incidental
harassment (since the application was initially submitted and posted on
NMFS' Web site) based on corrections to the acoustic analysis that
resulted in changes in the exposure estimates. During intensive quality
assurance of the acoustic analysis calculations, the following errors
were corrected:
Acoustic footprints for several of the sound sources were
not summing correctly, leading to an underestimate of exposures.
Nearshore densities of several species of marine mammals
in the northeast were improperly used to estimate offshore densities
resulting in an overestimate of exposures.
Modeling of maintenance of the AN/BQQ-5/10 (submarine
sonar) improperly summed footprints that were modeled for operations,
leading to a significant overestimate of the number of marine mammal
exposures. During operations submarines are predicted to ping
infrequently, therefore each ping is added independently with no
overlap between ping footprints. During maintenance the BQQ-5/10 is
predicted to ping frequently, which leads to significant overlap of the
ping footprints.
The analysis contained in this proposed rule incorporates the
revised take estimates and, thereby, the above-mentioned corrections.
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Mortality

Evidence from five beaked whale strandings, all of which have taken
place outside the AFAST Study Area, 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
tactical sonar, steep bathymetry, constricted channels, strong surface
ducts, etc.) may result in strandings, potentially leading to
mortality. Although these physical factors believed to contribute to
the likelihood of beaked whale strandings are not present, in their
aggregate, in the AFAST Study Area, 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 ultimate physical effects (stranding and/or death), the Navy has
requested authorization for take, by serious injury or mortality, of 10
beaked whales over the course of the 5-yr regulations. Neither NMFS nor
the Navy anticipates that marine mammal strandings or mortality will
result from the operation of mid-frequency sonar during Navy exercises
within the AFAST Study Area.

Effects on Marine Mammal Habitat

Unless the source is stationary and/or continuous over a long
duration in one area, the effects of the introduction of sound into the
environment are generally considered to have a less severe impact on
marine mammal habitat than the physical alteration of the habitat.
AFAST activities primarily include the operation of active sonar
sources at various locations and times along the Atlantic and Gulf of
Mexico Coasts throughout the year, although IEER exercises (169 2-8
hour exercises per year) may also include the detonation of several
explosive sonobuoys, which utilize a 4.1-lb charge. In addition to the
physical alteration of habitat, NMFS considers the effects of the
action on prey species when analyzing the effects of the action on
marine mammal habitat. Based on the information below and the
supporting information included in the Navy's DEIS, NMFS has
preliminarily determined that the AFAST activities will not have
significant or long term impacts on marine mammal habitat. However, the
determination of whether an activity will adversely modify designated
critical habitat is reached through a separate process, which would be
completed before an MMPA authorization would be issued.

Right Whale Critical Habitat

Please see the Negligible Impact Determination Section for a
discussion of the nature and extent of effects proposed to occur in
designated right whale critical habitat. The NMFS Endangered Species
Division will make a determination pursuant to the ESA regarding
whether the Navy's actions are likely to result in the destruction or
adverse modification of right whale critical habitat prior to the
issuance (if appropriate) of an LOA.

Effects on Fish

Mid-Frequency and High-Frequency Active Sonar
The Navy's DEIS (Section 4.7) includes a detailed discussion of the
effects of sonar on marine fish. In summary, studies have indicated
that acoustic communication and orientation of fish may be restricted
by anthropogenic sound in their environment. However, most marine fish
species are not expected to be able to detect sounds in the mid-
frequency range of the operational sonars used in the Proposed Action,
and therefore, the sound sources are not likely to mask key
environmental sounds. The few fish species that have been shown to be
able to detect mid-frequencies do not have their best sensitivities in
the range of the operational sonars. Additionally, vocal marine fish
largely communicate below the range of mid-frequency levels used in the
Proposed Action.
Though mortality has been shown to occur in one species, a hearing
specialist, as a result of exposure to non-impulsive sources, the
available evidence does not suggest that exposures such as those
anticipated from MFAS/HFAS would result in significant fish mortality
on a population level. The mortality that was observed was considered
insignificant in light of natural daily mortality rates. Experiments
have shown that exposure to loud sound can result in significant
threshold shifts in certain fish that are classified as hearing
specialists (but not those classified as hearing generalists).
Threshold shifts are temporary, and considering the best available
data, no data exist that demonstrate any long-term negative effects on
marine fish from underwater sound associated with sonar activities.
Further, while fish may respond behaviorally to mid-frequency sources,
this behavioral modification is only expected to be brief and not
biologically significant. Based on the evaluation presented in the
Navy's DEIS and summarized here, the likelihood of significant effects
to individual fish from active sonar is low.
Explosive Detonations (IEER)
There are currently no well-established thresholds for estimating
effects to fish from explosives other than mortality models. Fish that
are located in the water column, in proximity to the source of
detonation could be injured, killed, or disturbed by the impulsive
sound and possibly temporarily leave the area. Continental Shelf Inc.
(2004) summarized a few studies conducted to determine effects
associated with removal of offshore structures (e.g., oil rigs) in the
Gulf of Mexico. Their findings revealed that at very close range,
underwater explosions are lethal to most fish species regardless of
size, shape, or internal anatomy. For most situations, cause of death
in fishes has been massive organ and tissue damage and internal
bleeding. At longer range, species with gas-filled swimbladders (e.g.,
snapper, cod, and striped bass) are more susceptible than those without
swimbladders (e.g., flounders, eels). Studies also suggest that larger
fishes are generally less susceptible to death or injury than small
fishes. Moreover, elongated forms that are round in cross section are
less at risk than deep-bodied forms; and orientation of fish relative
to the shock wave may affect the extent of injury. Open water pelagic
fish (e.g., mackerel) also seem to be less affected than reef fishes.
The results of most studies are dependent upon specific biological,
environmental, explosive, and data recording factors. The Navy's
explosive sonobuoys that are proposed for use in IEER exercises are
relatively small (4.1 lb) compared to charges used in many other
activities, both military and construction-based.
The huge variations in the fish population, including numbers,
species, sizes, and orientation and range from the detonation point,
make it very difficult to accurately predict mortalities at any
specific site of detonation. 872 explosive sonobuoys, deployed in 169
2-8 hour exercises spread approximately evenly across all OPAREAs, are
proposed to be detonated per year in the AFAST Study Area. Most fish
species experience large numbers of natural mortalities, especially
during early life-stages, and any small level of mortality caused by
the AFAST activities involving the explosive source sonobuoy (AN/SSQ-
110A) will likely be insignificant to the population as a whole.

[[Page 60811]]

Analysis and Negligible Impact Determination
Pursuant to NMFS regulations implementing the MMPA, an applicant is
required to estimate the number of animals that will be ``taken'' by
the specified activities (i.e., takes by harassment only, or takes by
harassment, injury, and/or death). This estimate informs the analysis
that NMFS must perform to determine whether the activity will have a
``negligible impact'' on the affected species or stock. Level B
(behavioral) harassment occurs at the level of the individual(s) and
does not assume any resulting population-level consequences, though
there are known avenues through which behavioral disturbance of
individuals can result in population-level effects (for example: pink-
footed geese (Anser brachyrhynchus) in undisturbed habitat gained body
mass and had about a 46 percent reproductive success compared with
geese in disturbed habitat (being consistently scared off the fields on
which they were foraging) which did not gain mass and has a 17 percent
reproductive success). A negligible impact finding is based on the lack
of likely adverse effects on annual rates of recruitment or survival
(i.e., population-level effects). An estimate of the number of Level B
harassment takes, alone, is not enough information on which to base an
impact determination. In addition to considering estimates of the
number of marine mammals that might be ``taken'' through behavioral
harassment, NMFS must consider other factors, such as the likely nature
of any responses (their intensity, duration, etc.), the context of any
responses (critical reproductive time or location, migration, etc.), or
any of the other variables mentioned in the first paragraph (if known),
as well as the number and nature of estimated Level A takes, the number
of estimated mortalities, and effects on habitat. Generally speaking,
and especially with other factors being equal, the Navy and NMFS
anticipate more severe effects from takes resulting from exposure to
higher received levels (though this is in no way a strictly linear
relationship throughout species, individuals, or circumstances) and
less severe effects from takes resulting from exposure to lower
received levels.
The Navy's specified activities have been described based on best
estimates of the number of MFAS/HFAS hours that the Navy will conduct.
The exact number of hours (or torpedoes, or pings, whatever unit the
source is estimated in) may vary from year to year, but will not exceed
the 5-year total indicated in Table 1 (by multiplying the yearly
estimate by 5) by more than 10 percent. NMFS estimates that a 10
percent increase in sonar hours (torpedoes, pings, etc.) would result
in approximately a 10 percent increase in the number of takes, and we
have considered this possibility and the effect of the additional sonar
use in our analysis.
Taking the above into account, considering the sections discussed
below, and dependent upon the implementation of the proposed mitigation
measures, NMFS has preliminarily determined that Navy training
exercises utilizing MFAS/HFAS and underwater detonations (IEER) will
have a negligible impact on the marine mammal species and stocks
present in the AFAST.

Behavioral Harassment

As discussed in the Potential Effects of Exposure of Marine Mammals
to MFAS/HFAS and illustrated in the conceptual framework, marine
mammals can respond to MFAS/HFAS in many different ways, a subset of
which qualifies as harassment (see Behavioral Harassment Section). One
thing that the take estimates do not take into account is the fact that
most marine mammals will likely avoid strong sound sources to one
extent or another. Although an animal that avoids the sound source will
likely still be taken in some instances (such as if the avoidance
results in a missed opportunity to feed, interruption of reproductive
behaviors, etc.) in other cases avoidance may result in fewer instances
of take than were estimated or in the takes resulting from exposure to
a lower received level than was estimated, which could result in a less
severe response. For MFAS/HFAS, the Navy provided information (Table
12) estimating what percentage of the total takes that will occur
within the 10-dB bins (without considering mitigation or avoidance)
that are within the received levels considered in the risk continuum
and for TTS and PTS. This table applies specifically to 53C sonar (the
most powerful source), with less powerful sources the percentages would
increase slightly in the lower received levels and correspondingly
decrease in the higher received levels. As mentioned above, an animal's
exposure to a higher received level is more likely to result in a
behavioral response that is more likely to adversely affect the health
of the animals.
As mentioned previously, the Navy developed planning awareness
areas (PAAs) based on important bathymetric and consistent
oceanographic features (see Mitigation). The incorporation of the
Navy's proposed PAAs into their planning process along with the plan
not to conduct more than 4 major exercises within these areas should
ultimately result in a reduction in the number of marine mammals
exposed to MFAS/HFAS (because these PAAs are anticipated to have higher
densities of animals), a reduction in the number of animals exposed
while engaged in feeding behaviors (because these areas are
particularly productive), and an increased awareness of their potential
presence when conducting activities in those important areas.
Additionally, the Navy's plan to minimize both the helicopter dipping
and object detection activities within the NARW critical habitat during
the time when the most calves and mothers are present should result in
the minimization of exposure of cow/calf pairs to MFAS/HFAS.

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Because the Navy has only been monitoring specifically to discern the
effects of MFAS/HFAS on marine mammals since approximately 2006, and
because of the overall datagap regarding the effects MFAS/HFAS on
marine mammals, not a lot is known regarding, specifically, how marine
mammals in the AFAST Study Area will respond to MFAS/HFAS. For the four
MTEs for which NMFS has received a monitoring report, no instances of
obvious behavioral disturbance were observed by the Navy watchstanders
in the 700+ hours of effort in which 79 sightings of marine mammals
were made (10 during active sonar operation). One cannot conclude from
these results that marine mammals were not harassed from MFAS/HFAS, as
a portion of animals within the area of concern were not seen
(especially those more cryptic, deep-diving species, such as beaked
whales or Kogia sp.) and some of the non-biologist watchstanders might
not be well-qualified to characterize behaviors. However, one can say
that the animals that were observed did not respond in any of the
obviously more severe ways, such as panic, aggression, or anti-predator
response.
In addition to the monitoring that will be required pursuant to
this LOA, which is specifically designed to help us better understand
how marine mammals respond to sound, the Navy and NMFS have developed,
funded, and begun conducting a controlled exposure experiment with
beaked whales in the Bahamas. Separately, the Navy plans to conduct an
opportunistic tagging experiment with beaked whales in the area of the
2008 Rim of the Pacific training exercises in the HRC.

Diel Cycle

As noted previously, many animals perform vital functions, such as
feeding, resting, traveling, and socializing on a diel cycle (24-hr
cycle). Substantive behavioral reactions to noise exposure (such as
disruption of critical life functions, displacement, or avoidance of
important habitat) are more likely to be significant if they last more
than one diel cycle or recur on subsequent days (Southall et al.,
2007). Consequently, a behavioral response lasting less than one day
and not recurring on subsequent days is not considered particularly
severe unless it could directly affect reproduction or survival
(Southall et al., 2007).
In the previous section, we discussed the fact that potential
behavioral responses to MFAS/HFAS that fall into the category of
harassment could range in severity. By definition, the takes by
behavioral harassment involve the disturbance of a marine mammal or
marine mammal stock in the wild by causing disruption of natural
behavioral patterns (such as migration, surfacing, nursing, breeding,
feeding, or sheltering) to a point where such behavioral patterns are
abandoned or significantly altered. These reactions would, however, be
more of a concern if they were expected to last over 24 hours or be
repeated in subsequent days. For hull-mounted sonar (the highest power
source), approximately 60% of the hours of source use are comprised of
Independent Unit Level Training or maintenance activities that occur in
events of 6 hours or less. Coordinated Unit Level Training or Strike
Group Training events typically last more than one day, however, sonar
use is not continuous and the exercises take place over very large
areas, between 30 nm x 30 nm areas and 180 nm x 180 nm areas (900-
32,400 nm\2\). Additionally, during ASW exercises (times of continuous
sonar use) vessels with hull-mounted sonar are typically moving at
speeds of 10-12 knots. When this is combined with the fact that the
majority of the cetaceans in the AFAST study area would not likely
remain in the same area for successive days (especially an area in
waters beyond 22 km from shore or greater than 600 ft deep, which is
where the majority of the exercises take place), it is unlikely that
animals would be exposed to MFAS/HFAS at levels or for a duration
likely to result in a substantive response that would then be carried
on for more than one day or on successive days.

TTS

NMFS and the Navy have estimated that some individuals of some
species of marine mammals may sustain some level of TTS from MFAS/HFAS.
As mentioned previously, TTS can last from a few minutes to days, be of
varying degree, and occur across various frequency bandwidths. Table 11
indicates the estimated number of animals that might sustain TTS from
exposure to MFAS/HFAS. The TTS sustained by an animal is primarily
classified by three characteristics:
Frequency--Available data (of mid-frequency hearing
specialists exposed to mid to high frequency sounds--Southall

[[Page 60813]]

et al., 2007) suggest that most TTS occurs in the frequency range of
the source up to one octave higher than the source (with the maximum
TTS at \1/2\ octave above). The two hull-mounted MFAS sources, the
DICASS sonobuoys, and the helicopter dipping sonar have center
frequencies between 3.5 and 8 kHz and the other unidentified MF sources
are, by definition, less than 10 kHz, which suggests that TTS induced
by any of these MF sources would be in a frequency band somewhere
between approximately 2 and 20 kHz. There are far fewer hours of HF
source use and the sounds would attenuate more quickly, but if an
animal were to incur TTS from these sources, it would cover a higher
frequency range (don't know exactly because center frequencies of HF
sources are classified). TTS from explosives would be broadband. Tables
13a and b summarize the vocalization data for each species.
Degree of the shift (i.e., how many dB is the sensitivity
of the hearing reduced by)--generally, both the degree of TTS and the
duration of TTS will be greater if the marine mammal is exposed to a
higher level of energy (which would occur when the peak dB level is
higher or the duration is longer). The threshold for the onset of TTS
(> 6 dB) is 195 dB (SEL), which might be received at distances of up to
275-500 m from the most powerful MFAS source, the AN/SQS-53 (the
maximum ranges to TTS from other sources would be less). An animal
would have to approach closer to the source or remain in the vicinity
of the sound source appreciably longer to increase the received SEL,
which would be difficult considering the watchstanders and the nominal
speed of a sonar vessel (10-12 knots). Of all TTS studies, some using
exposures of almost an hour in duration or up to 217 SEL, most of the
TTS induced was 15 dB or less, though Finneran et al. (2007) induced 43
dB of TTS with a 64-sec exposure to a 20 kHz source (MFAS emits a 1-s
ping 2 times/minute).
Duration of TTS (Recovery time)--see above. Of all TTS
laboratory studies, some using exposures of almost an hour in duration
or up to 217 SEL, almost all recovered within 1 day (or less, often in
minutes), though in one study (Finneran et al. (2007)), recovery took 4
days.
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Based on the range of degree and duration of TTS reportedly induced
by exposures to non-pulse sounds of energy higher than that to which
free-swimming marine mammals in the field are likely to be exposed
during MFAS/HFAS training exercises, it is unlikely that marine mammals
would sustain a TTS from MFAS that alters their sensitivity by more
than 20 dB for more than a few days (and the majority would be far less
severe). Also, for the same reasons discussed in the Diel Cycle
section, and because of the short distance within which animals would
need to approach the sound source, it is unlikely that animals would be
exposed to the levels necessary to induce TTS in subsequent time
periods such that their recovery were impeded. Additionally (see Tables
13a and 13b), though the frequency range of TTS that marine mammals
might sustain would overlap with some of the frequency ranges of their
vocalization types, the frequency range of TTS from MFAS (the source
from which TTS would more likely be sustained because the higher source
level and slower attenuation make it more likely that an animal would
be exposed to a higher level) would not usually span the entire
frequency range of one vocalization type, much less span all types of
vocalizations. It is worth noting that TTS from MFAS could potentially
result in reduced sensitivity to the vocalizations of killer whales
(potential predators). If impaired, marine mammals would typically be
aware of their impairment and implement behaviors to compensate for it
(see Communication Impairment Section), though these compensations may
incur energetic costs.

Acoustic Masking or Communication Impairment

Table 13 is also informative regarding the nature of the masking or
communication impairment that could potentially occur from MFAS (again,
center frequencies are 3.5 and 7.5 kHz for the two types of hull-
mounted sonar). However, masking only occurs during the time of the
signal (and potential secondary arrivals of indirect rays), versus TTS,
which occurs continuously for its duration. Standard MFAS sonar pings
last on average one second and occur about once every 24-30 seconds for
hull-mounted sources. When hull-mounted sonar is used in the Kingfisher
mode, pulse length is shorter, but pings are much closer together (both
in time and space, since the vessel goes slower when operating in this
mode). For the sources for which we know the pulse length, most are
significantly shorter than hull-mounted sonar, on the order of several
microseconds to 10s of microseconds. For hull-mounted sonar, though
some of the vocalizations that marine mammals make are less than one
second long, there is only a 1 in 24 chance that they would occur
exactly when the ping was received, and when vocalizations are longer
than one second, only parts of them are masked. Alternately, when the
pulses are only several microseconds long, the majority of most
animals' vocalizations would not be masked. Masking effects from MFAS/
HFAS are expected to be minimal. If masking or communication impairment
were to occur briefly, it would be in the frequency range of MFAS,
which overlaps with some marine mammal vocalizations; however, it would
likely not mask the entirety of any particular vocalization or
communication series because the pulse length, frequency, and duty
cycle of the MFAS/HFAS signal does not perfectly mimic the
characteristics of any marine mammal's vocalizations.

PTS, Injury, or Mortality

The Navy's model estimated that the following numbers of
individuals of the indicated species would be exposed to levels of
MFAS/HFAS associated with the likelihood of resulting in PTS:
bottlenose dolphin-47; pantropical spotted dolphin-13; Atlantic spotted
dolphin-27; spinner dolphin-2; Clymene dolphin-4; striped dolphin-10;
common dolphin-5; Risso's dolphin-7; and pilot whales (long-finned and
short-finned)--9. However, these estimates do not take into
consideration either the mitigation measures or the likely avoidance
behaviors of some of the animals exposed. NMFS believes that many
marine mammals would deliberately avoid exposing themselves to the
received levels necessary to induce injury (i.e., approaching to within
approximately 10 m (10.9 yd) of the source) by moving away from or at
least modifying their path to avoid a close approach. Additionally, in
the unlikely event that an animal approaches the sonar vessel at a
close distance, NMFS believes that the mitigation measures (i.e.,
shutdown/powerdown zones for MFAS/HFAS) further ensure that animals
would not be exposed to injurious levels of sound. As discussed
previously, the Navy utilizes both aerial (when available) and passive
acoustic monitoring (during all ASW exercises) in addition to
watchstanders on vessels to detect marine mammals for mitigation
implementation and indicated that they are capable of effectively
monitoring a 1000-meter (1,093-yd) safety zone at night using night
vision goggles, infrared cameras, and passive acoustic monitoring. When
these two points are considered, NMFS does not believe that any marine
mammals will incur PTS from exposure to MFAS/HFAS.
The Navy's model estimated that 12 total animals (dolphins) would
be exposed to explosive detonations (from IEER) at levels that could
result in injury--however, those estimates do not consider mitigation
measures. Surveillance during the exercises for which injury was
estimated (which includes aerial and passive acoustic detection
methods, when available, to ensure clearance) begins half an hour
before the exercise and extends to 1000 yds (914 m) from the source.
Because of the behavior and visibility of dolphins and the half hour of
monitoring that occurs prior to detonation, NMFS does not think that
any animals will be exposed to levels of sound or pressure that will
result in injury from explosive detonations.
As discussed previously, marine mammals could potentially respond
to MFAS at a received level lower than the injury threshold in a manner
that indirectly results in the animals stranding. The exact mechanisms
of this potential response, behavioral or physiological, are not known.
However, based on the number of occurrences where strandings have been
definitively associated with military sonar versus the number of hours
of sonar that have been conducted, we suggest that the probability is
small that this will occur. Additionally, a sonar shutdown protocol for
strandings involving live animals milling in the water minimizes the
chances that these types of events turn into mortalities.
Though NMFS does not expect it to occur, because of the uncertainty
surrounding the mechanisms that link exposure to MFAS to stranding
(especially in beaked whales), NMFS is proposing to authorize the
injury or mortality of 10 beaked whales over the course of the 5-yr
regulations. The Navy's incorporation of the PAAs (some of which
include steep bathymetry, certain variations of which have been
implicated as contributing factors in marine mammal strandings) into
exercise planning and their plan to not conduct major exercises in them
could potentially further reduce the likelihood of strandings in
association with MFAS operation.

40 Years of Navy Training Exercises Using MFAS/HFAS in the AFAST Study
Area

The Navy has been conducting MFAS/HFAS training exercises in the
AFAST Study Area for over 40 years,

[[Page 60817]]

and the proposed action is the ``No Action'' alternative in the Navy's
DEIS, i.e., continuing sonar operation in the manner and at the levels
used in recent years. Although monitoring specifically in conjunction
with training exercises to determine the effects of sonar on marine
mammals was not being conducted by the Navy prior to 2006 and the
symptoms indicative of potential acoustic trauma were not as well
recognized prior to the mid-nineties, people have been collecting
stranding data in the AFAST Study Area for approximately 30 years.
Though not all dead or injured animals are expected to end up on the
shore (some may be eaten or float out to sea), one might expect that if
marine mammals were being harmed by sonar with any regularity, more
evidence would have been detected over the 40-yr period.

Model Overestimation

When analyzing the results of the acoustic effects modeling to
provide an estimate of effects, it is important to understand that
there are limitations to the ecological data and to the acoustic model
that likely result in an overestimation of the total exposures to
marine mammals. NMFS considers these limitations qualitatively when
analyzing effects. Specifically, the modeling results are likely
overestimates for the following reasons:
Acoustic footprints for sonar sources near land are not
reduced to account for the land mass, where marine mammals would not be
exposed to underwater sound.
The acoustic footprint for each sonar source is modeled
independently and, therefore, does not account for overlap it would
have with other sonar systems used during the same active sonar
activity (especially applicable during coordinated unit level training
or strike group training). As a consequence, the calculated acoustic
footprint is larger than the actual acoustic footprint, which can be
significant when considering the range over which a behavioral effect
may occur.
Acoustic exposures do not reflect implementation of
mitigation measures, such as reducing sonar source levels when marine
mammals are present.
In this analysis, the acoustic footprint is assumed to
extend from the water surface to the ocean bottom. In reality, the
acoustic footprint radiates from the source like a bubble, and a marine
animal may be outside this region.
Marine mammal densities were averaged across specific
active sonar activity areas and, therefore, are evenly distributed
without consideration for animal grouping or patchiness.
The model also does not consider the likely avoidance
behaviors of marine mammals in the proximity of an intense sound
source.

Species-Specific Analysis

In the discussions below, the ``acoustic analysis'' refers to the
Navy's analysis, which includes the use of several models and other
applicable calculations as described in the Estimates of Potential
Marine Mammal Exposure section. The numbers predicted by the ``acoustic
analysis'' are based on a uniform and stationary distribution of marine
mammals and do not take into consideration the implementation of
mitigation measures or potential avoidance behaviors of marine mammals,
and therefore, are likely overestimates of potential exposures to the
indicated thresholds (PTS, TTS, behavioral harassments). Consequently,
NMFS has factored in the mitigation measures and avoidance to make both
quantitative and qualitative adjustments to the take estimates
predicted by the Navy's ``acoustic analysis''. The revised take
estimates (and proposed take authorization) depict a more realistic
scenario than those adopted directly from the Navy's acoustic analysis.
Although NMFS is not required to identify the number of animals
that will be taken specifically by TTS versus behavioral harassment
(Level B Harassment takes include both), we have attempted to make more
realistic estimates by quantitatively refining the Navy's TTS estimates
by modifying the estimate produced by the acoustic analysis by a
specific amount if certain circumstances are present as described
below:
For MFAS/HFAS, some animals are likely to avoid the source to some
degree (which could decrease the number exposed to TTS levels). Adding
to that, in the following circumstances (discussed in more detail in
the individual sections below) the indicated multipliers were applied
to the TTS estimates predicted by the acoustic analysis:
When animals are highly visible (such as melon-headed
whales, humpback whales), we assume that lookouts will see them in time
to cease sonar operation before the animals are exposed to levels
associated with TTS, which reach to about 140 m from the sonar source.
In this case we estimate 0 animals will incur TTS.
When animals are deep divers and very cryptic at the
surface (such as beaked whales), though some may avoid the source, we
assume that most will not be sighted, and therefore we estimated that
50-100% of the number predicted by the Navy's acoustic analysis might
actually incur TTS.
When animals are more likely to be visually detected than
beaked whales, but less likely than the highly visible species, we
estimate that 0-100% of the number of these species (sperm whales, some
pinnipeds) predicted by the Navy's acoustic analysis might actually
incur TTS.
Though dolphins are highly visible, because the mitigation
includes a provision to allow bow-riding, not all TTS take of dolphins
will necessarily be avoided. Therefore, we estimated that 0-50% of the
number of dolphins predicted by the Navy's acoustic analysis might
actually incur TTS.

North Atlantic Right Whale

Acoustic analysis (here and below, ``acoustic analysis'' refers to
the Navy's process, including primarily the Navy's model, that results
in the take estimates submitted to NMFS--further analysis by NMFS may
result in minor adjustments of some of the numbers) indicates that up
to 666 exposures of North Atlantic right whales to sound levels likely
to result in Level B harassment may occur. This estimate represents the
total number of exposures and not necessarily the number of individuals
exposed, as a single individual may be exposed multiple times over the
course of a year (additionally, as mentioned above, the number may be
an overestimate). Although 4 of the modeled Level B Harassment takes
were predicted to be in the form of TTS, NMFS believes it is unlikely
that any right whales will incur TTS because of the distance within
which they would have to approach the sonar source (depending on
conditions, within a range of 275-500 m for the most powerful source),
the fact that many animals will likely avoid sonar sources to some
degree, and the likelihood that Navy monitors would detect these
animals prior to an approach within this distance and implement sonar
powerdown or shutdown. Navy lookouts will likely detect a group of
North Atlantic right whales out to 914 m (1,000 yd) given their large
size (Leatherwood and Reeves, 1982), surface behavior, pronounced blow,
and mean group size of approximately three animals. The probability of
trackline detection in Beaufort Sea States of 6 or less is 0.90 or 90
percent (Barlow, 2003).
A small number (30: 20 in the SE and 10 in the NE) of the predicted
takes of North Atlantic right whales would likely occur within critical
habitat for

[[Page 60818]]

the North Atlantic Right Whale, which has been designated in three
areas: (1) Coastal Florida and Georgia (Sebastian Inlet, Florida, to
the Altamaha River, Georgia)--calving grounds; (2) The Great South
Channel, east of Cape Cod--feeding and nursery grounds; and (3) Cape
Cod and Massachusetts Bays--feeding and nursery grounds.
In the Northeast, the Navy has proposed to largely avoid conducting
any training or sonar use in the critical habitat, with one exception.
Torpedo exercises (a maximum of 32 MK-48 torpedo runs at 15 minutes
each or up to 24 lightweight MK-46 or MK-54 torpedoes) would occur in
August-December (when right whales are less likely to be present), as
worked out during a previous section 7 consultation. The Navy has
included special mitigation measures for TORPEXs conducted in the
Northeast.
In the Southeast critical habitat, the Navy has also proposed to
largely avoid conducting any training or sonar use in critical habitat,
with two exceptions. Maintenance of helicopter dipping sonars
occasionally occurs (approximately 30 events at 2-4 hours each) in the
portion of the helicopter dipping sonar training area that overlaps
with NARW critical habitat. In addition, the Navy would conduct
approximately 40 ship object detection/navigational sonar training
exercises (1-2 hours each) annually while entering/exiting port (within
approximately 1 mile of the shore). This activity could occur year-
round (i.e., not all of them would occur during the time that right
whales are concentrated in the critical habitat, December-April). All
ASW training, except shore-based helicopter dipping sonar, occurs more
than 12 nm from shore and usually in greater than 600 ft of water.
Due to the importance of right whale critical habitat for
reproductive activities and feeding, takes that occur in those areas
would be considered more likely to have more potentially severe effects
than takes that occur while whales are just moving through and not
involved in reproductive or feeding behaviors. However, the estimated
takes in these areas are low (30 total, 20 in the SE, 10 in the NE).
Additionally, NMFS and the Navy have included mitigation measures to
minimize impacts (both number and severity) both in the northeast and
Southeast designated right whale critical habitat (see Mitigation
section).
Acoustic analysis indicates that no right whales will be exposed to
sound levels likely to result in Level A harassment. Modeling of the
explosive sonobuoys predicts no potential for injury or mortality to
right whales. As noted previously, regardless of what the model
predicts, NMFS believes that the Navy watchstanders would detect a
right whale and implement sonar powerdown or shutdown well before an
animal was able to approach within the distance necessary to be injured
(approximately 10 m from a hull-mounted sonar).
Fleet Area Control and Surveillance Facility Jacksonville
coordinates Navy ship and aircraft clearance into the Northern Right
Whale Critical Habitat and the surrounding Operating Area (OPAREA)
based on season, water temperature, weather conditions, and frequency
of whale sightings, and provides Northern Right Whale sighting reports
to ships, submarines and aircraft. Through coordination with the
Florida Fish and Wildlife Conservation Commission (FWCC), Georgia
Department of Natural Resources (GDNR), New England Aquarium Early
Warning System (EWS) and others, Fleet Area Control and Surveillance
Facility Jacksonville organized a communications network and reporting
system that ensures the widest possible exchange and dissemination of
Northern Right Whale sighting information to Department of Defense
(DoD) and civilian shipping.
Approximately 350 right whales, including about 70 mature females,
are thought to occur in the western North Atlantic (Kraus et al.,
2005). The most recent stock assessment report states that in a review
of the photo-ID recapture database for October 2005, 306 individually
recognized whales were known to be alive during 2001 (Waring et al.,
2007). This number represents a minimum population size, and no
abundance estimate with an associated coefficient of variation has been
calculated for this population (Waring et al., 2007). Right whales are
not normally expected to occur in the Gulf of Mexico.
Based on the Navy's modeled take estimates, it is possible that
nearly every North Atlantic right whale in the stock might be harassed
(Level B) one or two times during the course of one year, or
alternately, fewer animals might be harassed more than one or two times
per year. However, as discussed above, Coordinated Unit Level Exercises
and Strike Group Exercises utilizing surface vessels (i.e., the
exercises that utilize multiple surface vessels and last for multiple
days) occur farther than 12 nm from shore and do not occur in the NE
OPAREA at all, which means that they do not occur in or directly
adjacent to the right whale critical habitat. Therefore, any takes that
occur in the critical habitat would likely be short term and at a lower
received level (hull-mounted source on surface vessel is highest power)
and would likely not affect annual rates of recruitment or survival.
Last, in the unanticipated event that an injured or entangled North
Atlantic right whale is encountered by the Navy at sea during training
exercises, the Navy will cease sonar operation within 14 nm (Atlantic)
or 17 nm (Gulf of Mexico) of the animal in order to ensure that Navy
activities do not add to the stress of an already at risk and weakened
(regardless of the original cause) animal. These are the respective
estimated distances at which a marine mammal would receive
approximately 145 dB SPL, the level at which the risk function predicts
1% of the animals exposed would respond in a manner that NMFS considers
Level B harassment. Navy training will not resume in the area until the
animal dies or swims away of its own volition.

Humpback Whale

Acoustic analysis indicates that up to 4,198 exposures of humpback
whales to sound levels likely to result in Level B harassment may
occur. This estimate represents the total number of exposures and not
necessarily the number of individuals exposed, as a single individual
may be exposed multiple times over the course of a year. Although 30 of
the modeled Level B Harassment takes were predicted to be in the form
of TTS, NMFS believes it is unlikely that any humpback whales will
incur TTS because of the distance within which they would have to
approach the sonar source (depending on conditions, within a range of
275-500 m for the most powerful source), the fact that many animals
will likely avoid sonar sources to some degree, and the likelihood that
Navy monitors would detect these animals prior to an approach within
this distance and implement sonar powerdown or shutdown. Navy lookouts
will likely detect a group of humpback whales out to 914 m (1,000 yd)
given their large size (Leatherwood and Reeves, 1982), surface
behavior, and pronounced blow.
In the North Atlantic Ocean, humpbacks are found from spring
through fall on feeding grounds that are located from south of New
England to northern Norway (NMFS, 1991). The Gulf of Maine is one of
the principal summer feeding grounds for humpback whales in the North
Atlantic. The largest numbers of humpback whales are present from mid-
April to mid-November. Feeding locations off the northeastern United
States include

[[Page 60819]]

Stellwagen Bank, Jeffreys Ledge, the Great South Channel, the edges and
shoals of Georges Bank, Cashes Ledge, Grand Manan Banks, the banks on
the Scotian Shelf, the Gulf of St. Lawrence, and the Newfoundland Grand
Banks (CETAP, 1982; Whitehead, 1982; Kenney and Winn, 1986; Weinrich et
al., 1997). Feeding most often occurs in relatively shallow waters over
the inner continental shelf and sometimes in deeper waters. Large
multi-species feeding aggregations (including humpback whales) have
been observed over the shelf break on the southern edge of Georges Bank
(CETAP, 1982; Kenney and Winn, 1987) and in shelf break waters off the
U.S. mid-Atlantic coast (Smith et al., 1996).
Acoustic analysis indicates that no humpback whales will be exposed
to sound levels likely to result in Level A harassment. Modeling of the
explosive sonobuoys predicts no potential injury or mortality to
humpback whales.
Humpback whales in the North Atlantic are thought to belong to five
different feeding stocks: Gulf of Maine, Gulf of St. Lawrence,
Newfoundland/Labrador, western Greenland, and Iceland. The current best
estimate of population size for humpback whales in the North Atlantic,
including the Gulf of Maine Stock, is 11,570 individuals (Waring et
al., 2007). The best abundance estimate for the Gulf of Maine humpback
stock is 902 individuals (Waring et al., 2007). During the winter, most
of the North Atlantic population of humpback whales is believed to
migrate south to calving grounds in the West Indies region (Whitehead
and Moore, 1982; Smith et al., 1999; Stevick et al., 2003). During this
time individuals from the various feeding stocks mix through migration
routes as well as on the feeding grounds. Although the population
composition of the mid-Atlantic is apparently dominated by Gulf of
Maine whales, the mixing of multiple stocks through the migratory
season suggests that exposures in the Mid-Atlantic and Southeast are
likely spread across all of the North Atlantic populations. Sufficient
data to estimate the percentage of exposures to each stock is currently
not available, however, the estimated takes are spread across the
different OPAREAs and time such that focused and harmful impacts to one
particular stock are not anticipated.
As mentioned previously, important feeding areas for humpbacks are
located in the Northeast. Stellwagen Banks Sanctuary contains some of
this important area and the Navy does not currently plan to conduct any
activities in this area. Additionally, the Navy has designated PAAs in
the Northeast that include some of these important feeding areas and
these areas will be considered in the planning of exercises.

Sei Whale

Acoustic analysis indicates that up to 1,054 exposures of sei
whales to sound levels likely to result in Level B harassment may
occur. This estimate represents the total number of exposures and not
necessarily the number of individuals exposed, as a single individual
may be exposed multiple times over the course of a year. Although 2 of
the modeled Level B Harassment takes were predicted to be in the form
of TTS, NMFS believes it is unlikely that any sei whales will incur TTS
because of the distance within which they would have to approach the
sonar source (depending on conditions, within a range of 275-500 m for
the most powerful source), the fact that many animals will likely avoid
sonar sources to some degree, and the likelihood that Navy monitors
would detect these animals prior to an approach within this distance
and implement sonar powerdown or shutdown. Navy lookouts will likely
detect a group of sei whales out to 914 m (1,000 yd) given their large
size (Leatherwood and Reeves, 1982), group size (3 or more), and
pronounced blow. No areas of specific importance for reproduction or
feeding for sei whales have been identified in the AFAST Study Area.
Modeling of the explosive sonobuoys also predicts no potential for
injury or mortality to sei whales.
Sei whales in the North Atlantic belong to three stocks: Nova
Scotia, Iceland-Denmark Strait, and Northeast Atlantic (Perry et al.,
1999). The Nova Scotia Stock occurs in U.S. Atlantic waters (Waring et
al., 2007). There are no recent abundance estimates for the Nova Scotia
stock (Waring et al., 2007).

Fin and Blue Whales

There are no population estimates for blue whales for the Western
North Atlantic except for the Gulf of Saint Lawrence (Waring et al.,
2002), for which the estimate is 308. Blue whales are known to occur
throughout the deeper waters of the Atlantic, beyond the U.S. EEZ
(Clark 1995, Clark and Gagnon 2004). Comparisons can be made between
blue and fin whales based on behavior, areas where they are typically
found, and feeding habits. The fin whale abundance estimate is the most
analogous representation for blue whale abundance within the study
area. Therefore, the number of takes estimated for blue whales, as well
as overall conclusions, should be similar to those estimated for fin
whales.
Acoustic analysis indicates that up to 881 fin whales and 801 blue
whales may be exposed to sound levels likely to result in Level B
harassment. This estimate represents the total number of exposures and
not necessarily the number of individuals exposed, as a single
individual may be exposed multiple times over the course of a year.
Although 2 of the modeled Level B Harassment takes (for fin whales)
were predicted to be in the form of TTS, NMFS believes it is unlikely
that any fin (or blue) whales will incur TTS because of the distance
within which they would have to approach the sonar source (depending on
conditions, within a range of 275-500 m for the most powerful source),
the fact that many animals will likely avoid sonar sources to some
degree, and the likelihood that Navy monitors would detect these
animals prior to an approach within this distance and implement sonar
powerdown or shutdown. Navy lookouts will likely detect a group of fin
(or blue) whales out to 914 m (1,000 yd) given their large size and
pronounced blow (Barlow 2003 estimated a high rate of detection for fin
whales: 0.90 in Beaufort sea states of 6 or less). No areas of specific
importance for reproduction or feeding for fin (or blue) whales have
been identified in the AFAST Study Area. Also, acoustic analysis
predicts that no fin whales will be exposed to sound or explosive
levels likely to result either in Level A harassment or mortality.
Fin whales are currently considered as a single stock in the
western North Atlantic. The best abundance estimate for the Western
North Atlantic stock of fin whales is 2,814 (Waring et al., 2007).

Minke Whales

Acoustic analysis indicates that up to 414 exposures of minke
whales to sound levels likely to result in Level B harassment may
occur. This estimate represents the total number of exposures and not
necessarily the number of individuals exposed, as a single individual
may be exposed multiple times over the course of a year. Acoustic
analysis indicates that 1 of the modeled Level B Harassment takes would
be in the form of TTS. Though minke whales would have to approach the
sonar source within a range of 275-500 m (for the most powerful source)
to incur TTS and many animals will likely avoid sonar sources to some
degree, these animals have relatively cryptic behavior and profile at
the surface and therefore could potentially be missed by the lookouts
at this distance. Therefore,

[[Page 60820]]

NMFS thinks that one minke whale may incur TTS. No areas of specific
importance for reproduction or feeding for minke whales have been
identified in the AFAST Study Area. Also, acoustic analysis predicts
that no minke whales will be exposed to sound or explosive levels
likely to result either in Level A harassment or mortality. The best
available abundance estimate for minke whales from the Canadian East
Coast stock is 2,998 animals (Waring et al., 2007). The minke whale is
not expected in the Gulf of Mexico.

Bryde's Whale

Acoustic analysis indicates that up to 34 exposures of Bryde's
whales to sound levels likely to result in Level B harassment may
occur. This estimate represents the total number of exposures and not
necessarily the number of individuals exposed, as a single individual
may be exposed multiple times over the course of a year. Although
acoustic modeling estimated that one of the Level B Harassment takes
would be in the form of TTS, NMFS believes it is unlikely that any
Bryde's whales would incur TTS or be injured because of the distance
within which they would have to approach the sonar source (depending on
conditions, within a range of 275-500 m for the most powerful source
for TTS, 10 m for injury), the fact that many animals will likely avoid
sonar sources to some degree, and the likelihood that Navy monitors
would detect these animals prior to an approach within this distance
and implement sonar powerdown or shutdown. Navy lookouts will likely
detect a group of Bryde's whales out to 914 m (1,000 yd) given their
large size and pronounced blow. Acoustic analysis predicts that no
Bryde's whales will be exposed to sound levels or explosive detonations
likely to result either in TTS, Level A harassment, or mortality. No
areas of specific importance for reproduction or feeding for Bryde's
whales have been identified in the AFAST Study Area. The best abundance
estimate for Bryde's whales within the northern Gulf of Mexico is 40.

Sperm Whales

Acoustic analysis indicates that up to 9741 (estimated 342 in GOM)
exposures of sperm whales to sound levels likely to result in Level B
harassment may occur. This estimate represents the total number of
exposures and not necessarily the number of individuals exposed, as a
single individual may be exposed multiple times over the course of a
year. Although 63 of the modeled Level B Harassment takes were
predicted to be in the form of TTS, NMFS believes it is unlikely that
all of the estimated sperm whales will incur TTS because of the
distance within which they would have to approach the sonar source
(depending on conditions, within a range of 275-500 m for the most
powerful source), the fact that many animals will likely avoid sonar
sources to some degree, and the likelihood that Navy monitors would
detect these animals prior to an approach within this given their large
size, pronounced blow, and average group size (7). However, because of
their long, deep diving behavior (up to 2-hour dives), NMFS believes
that some animals may approach undetected within the distance in which
TTS would likely be incurred. Therefore, NMFS estimates that 0-32 sperm
whales may incur some degree of TTS from exposure to MFAS/HFAS.
The region of the Mississippi River Delta (Desoto Canyon) has been
recognized for high densities of sperm whales and appears to represent
an important calving and nursery area for these animals (Townsend,
1935; Collum and Fritts, 1985; Mullin et al., 1994a; W[uuml]rsig et
al., 2000; Baumgartner et al., 2001; Davis et al., 2002; Mullin et al.,
2004; Jochens et al., 2006). Sperm whales typically exhibit a strong
affinity for deep waters beyond the continental shelf, though in the
area of the Mississippi Delta they also occur on the outer continental
shelf break. However, there is a PAA designated immediately seaward of
the continental shelf associated with the Mississippi Delta, in which
the Navy plans to conduct no more than 1 major exercise and which they
plan to take into consideration in the planning of unit-level
exercises, and therefore NMFS does not expect that impacts will be
focused, extensive, or severe in the sperm whale calving area.
Acoustic analysis predicts that no sperm whales will be exposed to
sound or explosive levels likely to result either in Level A harassment
or mortality. The best abundance estimate for sperm whales for the
western North Atlantic is 4,804 and in the northern GOMEX is 1,349
individuals (Mullin and Fulling, 2004).

Pygmy and Dwarf Sperm Whales

Due to the difficulty in differentiating these two species at sea,
an estimate of the effects on the two species have been combined (as
have abundance estimates in NMFS' stock assessment reports). Acoustic
analysis indicates that up to 4384 exposures of Kogia spp. to sound
levels likely to result in Level B harassment may occur. This estimate
represents the total number of exposures and not necessarily the number
of individuals exposed, as a single individual may be exposed multiple
times over the course of a year. 44 of the modeled Level B Harassment
takes were predicted to be in the form of TTS. NMFS believes it is
unlikely that all 44 whales will incur TTS because of the distance
within which they would have to approach the sonar source (depending on
conditions, within a range of 275-500 m for the most powerful source),
the fact that many animals will likely avoid sonar sources to some
degree, and the likelihood that Navy monitors would detect some of
these animals prior to an approach within this distance and implement
sonar powerdown or shutdown. However, because of their deep diving
behavior (longer time below the surface) and relatively cryptic
behavior/profile at the surface, NMFS estimates that 22-44 animals may
approach undetected within the distance in which TTS would likely be
incurred. As mentioned above, some Kogia sp. vocalizations might
overlap with the MFAS/HFAS TTS frequency range (2-20 kHz), but the
limited information for Kogia sp. indicates that their clicks are at a
much higher frequency and that their maximum hearing sensitivity is
between 90 and 150 kHz. It is worth noting that TTS in the range
induced by MFAS would reduce sensitivity in the band that killer whales
click and echolocate in. However, as noted previously, NMFS does not
anticipate TTS of a long duration or severe degree to occur as a result
of exposure to MFA/HFAS.
No areas of specific importance for reproduction or feeding for
Kogia spp. have been identified in the AFAST Study Area. Also, acoustic
analysis predicts that no pygmy or dwarf sperm whales will be exposed
to sound or explosive levels likely to result either in Level A
harassment or mortality. The best abundance estimate for both species
combined in the western North Atlantic is 395 individuals, and combined
in the Northern Gulf of Mexico, the best abundance estimate is 742.

Beaked Whales

Due to the difficulty in differentiating Mesoplodon species from
each other, as well as from Ziphius at sea, and because of the lack of
a population estimate for bottlenose whales, estimates of the effects
on the six species of beaked whales listed in Table 4 have been
combined (as have abundance estimates in NMFS's stock assessment
reports). Acoustic analysis indicates that up to 2,665 exposures of
beaked whales to sound levels likely to result in Level B

[[Page 60821]]

harassment may occur. This estimate represents the total number of
exposures and not necessarily the number of individuals exposed, as a
single individual may be exposed multiple times over the course of a
year: 34 of the modeled Level B Harassment takes were predicted to be
in the form of TTS. NMFS believes it is unlikely that all 34 whales
will incur TTS because of the distance within which they would have to
approach the sonar source (depending on conditions, within a range of
275-500 m for the most powerful source), the fact that many animals
will likely avoid sonar sources to some degree, and the likelihood that
Navy monitors would detect a few of these animals prior to an approach
within this distance and implement sonar powerdown or shutdown.
However, because of their deep diving behavior (longer time below the
surface) and cryptic behavior/profile at the surface, NMFS believes
that some animals (estimate 17-34) may approach undetected within the
distance in which TTS would likely be incurred. As mentioned above and
indicated in Table 13, some beaked whale vocalizations might overlap
with the MFAS/HFAS TTS frequency range (2-20 kHz); however, as noted
previously, NMFS does not anticipate TTS of a long duration or severe
degree to occur as a result of exposure to MFA/HFAS. It is worth noting
that TTS in the range induced by MFAS could reduce sensitivity in the
band that killer whales click and echolocate in.
No areas of specific importance for reproduction or feeding for
beaked whales have been identified in the AFAST Study Area. Also,
acoustic analysis predicts that no beaked whales will be exposed to
sound or explosive levels likely to result either in Level A harassment
or mortality. The best abundance estimate for Mesoplodon species and
Cuvier's beaked whales in the northern Gulf of Mexico are 106 and 95
animals, respectively. The best abundance estimate for undifferentiated
beaked whales (Ziphius and Mesoplodon species) in the Western North
Atlantic is 3,513.
Although NMFS does not expect mortality of any of these six species
to occur as a result of the MFAS/HFAS training exercises (see Mortality
paragraph above), because we intend to authorize mortality, we consider
the 10 potential mortalities from across the six species potentially
effected over the course of 5 years in our negligible impact
determination (NMFS only intends to authorize a total of 10 beaked
whale mortality takes, but since they could be of any of the species,
we consider the effects of 10 mortalities of any of the six species).

Social Pelagic Species (Except Pilot Whales)

Acoustic analysis predicts that the following numbers of behavioral
harassments of the associated species will occur: 502 (false killer
whales), 499 (killer whales), 263 (Pygmy killer whales), and 1,533
(melon-headed whales), including the following numbers of TTS,
respectively: 10, 41, 7, 22. This estimate represents the total number
of exposures and not necessarily the number of individuals exposed, as
a single individual may be exposed multiple times over the course of a
year. Although 80 (total) of the modeled Level B Harassment takes for
these four species were predicted to be in the form of TTS, NMFS
believes it is unlikely that any individuals of these species will
incur TTS because of the distance within which they would have to
approach the sonar source (depending on conditions, within a range of
275-500 m for the most powerful source), the fact that many animals
will likely avoid sonar sources to some degree, and the likelihood that
Navy monitors would detect these animals prior to an approach within
this distance and implement sonar powerdown or shutdown. Navy lookouts
will likely detect a group of any of these four social pelagic species
out to 914 m (1,000 yd) given their large size, gregarious behavior,
and large average group size. No areas of specific importance for
reproduction or feeding for these whales have been identified in the
AFAST Study Area.
Acoustic analysis predicts that no individuals of these 4 species
will be exposed to sound or explosive levels likely to result either in
Level A harassment or mortality. These species are rare or extralimital
in the Northwest Atlantic Ocean and estimated takes for these species
are anticipated to occur in the GOM. Following are the best estimates
of abundance for these species in the GOM: false killer whales--1,038;
killer whales--133; pygmy killer whales--408; melon-headed whales--
3,451.

Pilot Whales

An estimate of the effects on these two species has been combined
(as have abundance estimates in NMFS's stock assessment reports).
Acoustic analysis indicates that up to 127,266 exposures of pilot
whales to sound levels likely to result in Level B harassment may
occur. This estimate represents the total number of exposures and not
necessarily the number of individuals exposed, as a single individual
may be exposed multiple times over the course of a year. Although 1,104
of the modeled Level B Harassment takes for pilot whales were predicted
to be in the form of TTS, NMFS believes it is unlikely that any
individuals of these species will incur TTS because of the distance
within which they would have to approach the sonar source (275-500 m
for the most powerful source), the fact that many animals will likely
avoid sonar sources to some degree, and the likelihood that Navy
monitors would detect these animals prior to an approach within this
distance and implement sonar powerdown or shutdown. Navy lookouts will
likely detect a group of pilot whales out to 914 m (1,000 yd) given
their large size, gregarious behavior, and large average group size.
Although the model predicted that 1 animal would be exposed to sound
levels that would result in Level A Harassment (PTS--injury), NMFS does
not believe that any animals would be exposed to these levels for the
same reasons listed in the previous sentence (and animals would need to
approach within 10 m of the sonar dome). No areas of specific
importance for reproduction or feeding for pilot whales have been
identified in the AFAST Study Area.
Acoustic analysis predicts that no pilot whales will be exposed to
sound or explosive levels likely to result in mortality. The best
estimate of abundance for pilot whales (combined short-finned and long-
finned) in the western North Atlantic is 31,139 individuals, with a
minimum population estimate of 24,866 (Waring et al., 2007). The best
estimate of abundance for the short-finned pilot whale in the northern
Gulf of Mexico is 2,388 individuals, with a minimum population estimate
of 1,628 (Mullin and Fulling, 2004; Waring et al., 2006).

Dolphins

The acoustic analysis predicts that the following numbers of
behavioral harassments of the associated species will occur: 2705
(rough-toothed dolphin), 605530 (bottlenose dolphins), 138394
(pantropical spotted dolphin), 376070 (Atlantic spotted dolphin), 21147
(spinner dolphin), 45302 (Clymene dolphin), 173675 (striped dolphin),
95548 (common dolphin), 320 (Fraser's dolphin), 94001 (Risso's
dolphins), 20647 (Atlantic white-sided dolphins), and 26243 (white-
beaked dolphin). This estimate represents the total number of exposures
and not necessarily the number of individuals exposed, as a single
individual may be

[[Page 60822]]

exposed multiple times over the course of a year.
Although a portion (see table 11) of the modeled Level B Harassment
takes for all of these species were predicted to be in the form of TTS,
NMFS believes it is unlikely that all of the individuals estimated will
incur TTS because of the distance within which they would have to
approach the sonar source (depending on conditions, within a range of
275-500 m for the most powerful source), the fact that many animals
will likely avoid sonar sources to some degree, and the likelihood that
Navy monitors would detect these animals prior to an approach within
this distance and implement sonar powerdown or shutdown. Navy lookouts
will likely detect a group of dolphins out to 914 m (1,000 yd) given
their relatively short dives and large average group size. However, the
Navy's proposed mitigation has a provision that allows the Navy to
continue operation of MFAS if the animals are clearly bow-riding even
after the Navy has initially maneuvered to try and avoid closing with
the animals. Since these animals sometimes bow-ride and could
potentially be exposed to levels associated with TTS as they approach
or depart from bow-riding, we estimate that half or less of the number
of animals modeled for MFAS/HFAS TTS might actually sustain TTS (see
table 11). As mentioned above and indicated in Table 13, some dolphin
vocalizations might overlap with the MFAS/HFAS TTS frequency range (2-
20 kHz), however, as noted previously, NMFS does not anticipate TTS of
a long duration or severe degree to occur as a result of exposure to
MFA/HFAS.
No areas of specific importance for reproduction or feeding for
dolphins have been identified in the AFAST Study Area.
Although acoustic analysis predicted that a small number of several
dolphin species would be exposed to levels of sound or explosive
detonations likely to result in Level A harassment, for the same
reasons stated above (mitigation, avoidance, dolphin behavior), NMFS
believes it is unlikely any animals would actually approach within the
necessary distance undetected (10 m for sonar, 79-180 m for IEER) to be
exposed to injurious levels. Of note, the directionality of the sonar
dome is such that dolphins would not likely be exposed to injurious
levels of sound while bow-riding. No mortalities from MFAS/HFAS or IEER
were predicted.
Table 14 summarizes the best abundance estimates for the different
dolphin stocks, except for the bottlenose dolphin, which is addressed
below.
[GRAPHIC] [TIFF OMITTED] TP14OC08.022

The western North Atlantic includes both coastal and offshore
bottlenose dolphin stocks. The best estimate for the western North
Atlantic coastal stock of bottlenose dolphins is 15,620 and the best
estimate for the western North Atlantic offshore stock of bottlenose
dolphins is 81,588 (Waring et al., 2007). Torres et al. (2003) found
that the offshore morphotype was found exclusively seaward of 34 km (18
NM) and in waters deeper than 34 m, though more recent studies have
sampled offshore animals as close as 7.3 km (4 NM) from shore in water
depths of 13 m (43 ft) (Garrison et al., 2003). Due to the apparent
mixing of the coastal and offshore stocks of bottlenose dolphins along
the Atlantic coast it is impossible to estimate the percentage of each
stock potentially exposed to sonar from AFAST. The general distribution
of AFAST training activities suggests that the majority of estimated
exposures to bottlenose dolphins will be to the offshore stock, however
some small proportion of exposures will likely apply to the coastal
stock as well.
In the northern GOMEX, the stocks of concern include the
continental shelf and oceanic stocks. The continental shelf stock is
thought to overlap with both the oceanic stock as well as coastal
stocks in some areas (Waring et al., 2007); however, the coastal stock
is generally limited to less than 20 m (66 ft) water depths and
therefore is not expected to be exposed to sonar from AFAST. The best
abundance estimate for the continental shelf stock is 25,320 (Waring et
al., 2007), The estimated abundance for bottlenose dolphins in oceanic
waters, pooled from 1996 to 2001, is 2,239 (Mullin and Fulling, 2004).
The oceanic stock is provisionally defined for bottlenose dolphins
inhabiting waters greater than 200 m (656 ft) (Waring et al., 2007).
While the two stocks may overlap to some degree the Navy estimates,
based on the distribution of AFAST activities, that most of the
predicted exposures will occur to the oceanic stock with the few
remaining exposures applying to the continental stock.

Harbor Porpoises

Acoustic analysis indicates that up to 153,481 exposures of harbor
porpoises

[[Page 60823]]

to sound levels likely to result in Level B harassment may occur. This
estimate represents the total number of exposures and not necessarily
the number of individuals exposed, as a single individual may be
exposed multiple times over the course of a year. Of note, the Level B
harassment threshold for harbor porpoises is 120 dB rms, i.e. any
animal exposed above that level is considered to be taken, which means
that the vast majority of the estimated takes will occur at relatively
low levels (120-140 dB). Although 11 of the modeled Level B Harassment
takes for all of these species were predicted to be in the form of TTS,
NMFS believes it is unlikely that any of the individuals estimated will
incur TTS because of the distance within which they would have to
approach the sonar source (depending on conditions, within a range of
275-500 m for the most powerful source), the fact that many animals
will likely avoid sonar sources to some degree, and the likelihood that
Navy monitors would detect these animals prior to an approach within
this distance and implement sonar powerdown or shutdown. Navy lookouts
will likely detect a group of harbor porpoises out to 914 m (1,000 yd)
given their relatively short dives and large average group size.
Acoustic analysis predicts that no harbor porpoises will be exposed
to sound levels or explosive detonations likely to result either in
Level A harassment or mortality. No areas of specific importance for
reproduction or feeding for harbor porpoises have been identified in
the AFAST Study Area. The best abundance estimate for the Gulf of
Maine/Bay of Fundy stock of harbor porpoises is 89,700 individuals.

Pinnipeds

The acoustic analysis predicts that the following numbers of
behavioral harassments of the associated species will occur: 7,859
(gray seal), 12,659 (harbor seal), 15,718 (hooded seal), and 11,002
(harp seal). This estimate represents the total number of exposures and
not necessarily the number of individuals exposed, as a single
individual may be exposed multiple times over the course of a year. A
small number (31, 29, 62, and 43, respectively) of the modeled Level B
Harassment takes for these species were predicted to be in the form of
TTS. Because the TTS threshold for these species is lower than for
cetaceans (i.e., the distance from the source at which they might incur
TTS is larger) and because they are typically more difficult to detect,
NMFS concurs with the Navy that up to the indicated number of pinnipeds
could be exposed to levels of sonar associated with TTS. As mentioned
above and indicated in Table 13, some pinniped vocalizations might
overlap with the MFAS/HFAS TTS frequency range (2-20 kHz); however, as
noted previously, NMFS does not anticipate TTS of a long duration or
severe degree to occur as a result of exposure to MFA/HFAS.
No areas of specific importance for reproduction or feeding for
pinnipeds have been identified in the AFAST Study Area. Acoustic
analysis predicts that no pinnipeds will be exposed to sound levels or
explosive detonations likely to result in Level A harassment or
mortality. Best estimates for the north Atlantic for the hooded and
harp seals are, respectively, 592,100 and 5.9 million. The best
estimate for the western north Atlantic stock of the harbor seal is
99,340. There is no current best estimate for gray seals in the north
Atlantic, though Canada's DFO estimated 99,340 in 1995.

Preliminary Determination

Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat and dependent
upon the implementation of the mitigation and monitoring measures, NMFS
preliminarily finds that the total taking from Navy training exercises
utilizing MFAS/HFAS and underwater explosives (IEER) in the AFAST Study
Area will have a negligible impact on the affected species or stocks.
NMFS has proposed regulations for these exercises that prescribe the
means of affecting the least practicable adverse impact on marine
mammals and their habitat and set forth requirements pertaining to the
monitoring and reporting of that taking.

Subsistence Harvest of Marine Mammals

NMFS has preliminarily determined that the issuance of 5-yr
regulations and subsequent LOAs for Navy training exercises in the
AFAST Study Area would not have an unmitigable adverse impact on the
availability of the affected species or stocks for subsistence use,
since there are no such uses in the specified area.

ESA

There are six marine mammal species and six sea turtle species that
are listed as endangered under the ESA with confirmed or possible
occurrence in the study area: humpback whale, North Atlantic right
whale, sei whale, fin whale, blue whale, sperm whale, loggerhead sea
turtle, the green sea turtle, hawksbill sea turtle, leatherback sea
turtle, the Kemp's ridley sea turtle, and the olive ridley sea turtle.
The Navy has begun consultation with NMFS pursuant to section 7 of the
ESA, and NMFS will also consult internally on the issuance of an LOA
under section 101(a)(5)(A) of the MMPA for AFAST activities.
Consultation will be concluded prior to a determination on the issuance
of the final rule and an LOA.

NEPA

NMFS has participated as a cooperating agency on the Navy's Draft
Environmental Impact Statement (DEIS) for AFAST, which was published on
February 15, 2008. The Navy's DEIS is posted on NMFS's website: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. NMFS intends to adopt the
Navy's Final EIS (FEIS), if adequate and appropriate. Currently, we
believe that the adoption of the Navy's FEIS will allow NMFS to meet
its responsibilities under NEPA for the issuance of an LOA for AFAST.
If the Navy's FEIS is deemed not to be adequate, NMFS would supplement
the existing analysis and document to ensure that we comply with NEPA
prior to the issuance of the final rule or LOA.

Classification

This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act.
Pursuant to the procedures established to implement section 6 of
Executive Order 12866, the Office of Management and Budget has
determined that this proposed rule is significant.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
rule, if adopted, would not have a significant economic impact on a
substantial number of small entities. The Regulatory Flexibility Act
requires Federal agencies to prepare an analysis of a rule's impact on
small entities whenever the agency is required to publish a notice of
proposed rulemaking. However, a Federal agency may certify, pursuant to
5 U.S.C. section 605(b), that the action will not have a significant
economic impact on a substantial number of small entities. The Navy is
the entity that will be affected by this rulemaking, not a small
governmental jurisdiction, small organization or small business, as
defined by the Regulatory Flexibility Act. Any requirements imposed by
a

[[Page 60824]]

Letter of Authorization issued pursuant to these regulations, and any
monitoring or reporting requirements imposed by these regulations, will
be applicable only to the Navy. Because this action, if adopted, would
directly affect the Navy and not a small entity, NMFS concludes the
action would not result in a significant economic impact on a
substantial number of small entities.

Dated: September 25, 2008.
James Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

1. The authority citation for part 216 continues to read as
follows:

Authority: 16 U.S.C. 1361 et seq.

2. Subpart V is added to part 216 to read as follows:
Subpart V--Taking Marine Mammals Incidental to U.S. Navy's Atlantic
Fleet Active Sonar Training (AFAST)
Sec.
216.240 Specified activity and specified geographic region.
216.241 Definitions.
216.242 Permissible methods of taking.
216.243 Prohibitions.
216.244 Mitigation.
216.245 Requirements for monitoring and reporting.
216.246 Applications for Letters of Authorization.
216.247 Letters of Authorization.
216.248 Renewal of Letters of Authorization.
216.249 Modifications to Letters of Authorization and adaptive
management.
Table 1 to Subpart V--``Summary of monitoring effort proposed in
draft Monitoring Plan for AFAST''
Figure 1 to Subpart V [Reserved]
Figure 2 to Subpart V--``AFAST Planning Awareness Areas''

Subpart V--Taking Marine Mammals Incidental to U.S. Navy's Atlantic
Fleet Active Sonar Training (AFAST)

Sec. 216.240 Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occur incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs within the AFAST Study Area, which extends east from the
Atlantic Coast of the U.S. to 45 degrees W. long. and south from the
Atlantic and Gulf of Mexico Coasts to approximately 23 degrees N. lat.,
excluding the Bahamas (see Figure 1-1 in the Navy's Application).
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the use of the following mid-frequency active
sonar (MFAS) sources, high frequency active sonar (HFAS) sources, or
explosive sonobuoys for U.S. Navy anti-submarine warfare (ASW), mine
warfare (MIW) training, maintenance, or research, development, testing,
and evaluation (RDT&E) in the amounts indicated below (+/-10 percent):
(1) AN/SQS-53 (hull-mounted sonar)--up to 16,070 hours over the
course of 5 years (an average of 3,214 hours per year).
(2) AN/SQS-56 (hull-mounted sonar)--up to 8,420 hours over the
course of 5 years (an average of 1,684 hours per year).
(3) AN/SQS-56 or 53 (hull mounted sonar in object detection mode)--
up to 1,080 hours over the course of 5 years (an average of 216 hours
per year).
(4) AN/BQQ-10 or 5 (submarine sonar)--up to 49,880 pings over the
course of 5 years (an average of 9,976 pings per year)(an average of 1
ping per two hours during training events, 60 pings per hour for
maintenance).
(5) AN/AQS-22 or 13 (helicopter dipping sonar)--up to 14,760 dips
over the course of 5 years (an average of 2,952 dips per year--10 pings
per five-minute dip).
(6) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS)
sonobuoys)--up to 29,265 sonobuoys over the course of 5 years (an
average of 5,853 sonobuoys per year).
(7) MK-48 (heavyweight torpedoes)--up to 160 torpedoes over the
course of 5 years (an average of 32 torpedoes per year).
(8) MK-46 or 54 (lightweight torpedoes)--up to 120 torpedoes over
the course of 5 years (an average of 24 torpedoes per year).
(9) AN/SSQ-110A (IEER explosive sonobuoy)--up to 4,360 sonobuoys
over the course of 5 years (an average of 872 buoys per year).
(10) AN/SQQ-32 (over the side mine-hunting sonar)--up to 22,370
hours over the course of 5 years (an average of 4,474 hours per year).
(11) AN/SLQ-25 (NIXIE--towed countermeasure)--up to 1,660 hours
over the course of 5 years (an average of 332 hours per year).
(12) AN/BQS-15 (submarine navigation)--up to 2,250 hours over the
course of 5 years (an average of 450 hours per year)
(13) MK-1 or 2 or 3 or 4 (Submarine-fired Acoustic Device
Countermeasure (ADC))--up to 1,125 ADCs over the course of 5 years (an
average of 225 ADCs per year)
(14) Noise Acoustic Emitters (NAE--Sub-fired countermeasure)--up to
635 NAEs over the course of 5 years (an average of 127 NAEs per year)

Sec. 216.241 Definitions.

The following definitions are utilized in these regulations:
(a) Uncommon Stranding Event (USE)--A stranding event that takes
place during a major training exercise (MTE) and involves any one of
the following:
(1) Two or more individuals of any cetacean species (not including
mother/calf pairs, unless of species of concern listed in next bullet)
found dead or live on shore within a two-day period and occurring
within 30 miles of one another.
(2) A single individual or mother/calf pair of any of the following
marine mammals of concern: beaked whale of any species, dwarf or pygmy
sperm whales, melon-headed whales, pilot whales, right whales, humpback
whales, sperm whales, blue whales, fin whales, or sei whales.
(3) A group of 2 or more cetaceans of any species exhibiting
indicators of distress.
(b) Shutdown--The cessation of MFAS/HFAS operation or detonation of
explosives within 14 nm (Atlantic Ocean) or 17 nm (Gulf of Mexico) of
any live, in the water, animal involved in a USE.
(c) Exhibiting Indicators of Distress--Animals exhibiting an
uncommon combination of behavioral and physiological indicators
typically associated with distressed or stranded animals. This
situation would be identified by a qualified individual and typically
includes, but is not limited to, some combination of the following
characteristics:
(1) Marine mammals continually circling or moving haphazardly in a
tightly packed group--with or without a member occasionally breaking
away and swimming towards the beach.
(2) Abnormal respirations including increased or decreased rate or
volume of breathing, abnormal content or odor.
(3) Presence of an individual or group of a species that has not
historically been seen in a particular habitat, for example a pelagic
species in a shallow bay when historic records indicate that it is a
rare event.
(4) Abnormal behavior for that species, such as abnormal surfacing
or

[[Page 60825]]

swimming pattern, listing, and abnormal appearance.
(d) Major Training Exercise--MTEs, within the context of the AFAST
Stranding Plan, include:
(1) Southeastern Integrated Training Initiative (SEASWITI)--4
events annually, 5 to 7 days per entire event.
(2) Integrated ASW Course (IAC)--5 events annually, 2 to 5 days per
entire event.
(3) Group Sails--20 events annually, 2 to 3 days per entire event.
(4) Composite Training Unit Exercise (COMPTUEX)--5 events annually,
21 days per entire event.
(5) Joint Task Force Exercise (JTFEX)--2 events annually, 10 days
per entire event.
It should be noted that sonar is typically not in use throughout an
entire event.

Sec. 216.242 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.247, the Holder of the Letter of Authorization
(hereinafter ``Navy'') may incidentally, but not intentionally, take
marine mammals within the area described in Sec. 216.240(b), provided
the activity is in compliance with all terms, conditions, and
requirements of these regulations and the appropriate Letter of
Authorization.
(b) The activities identified in Sec. 216.240(c) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 216.240(c) is limited to the following species, by
the indicated method of take and the indicated number of times
(estimated based on the authorized amounts of sound source operation):
(1) Level B Harassment (+/-10 percent of the take estimate
indicated below):
(i) Mysticetes:
(A) North Atlantic right whale (Eubalaena glacialis)--666.
(B) Humpback whale (Megaptera novaeangliae)--4,198.
(C) Minke whale (Balaenoptera acutorostrata)--414.
(D) Sei whale (Balaenoptera borealis)--1,054.
(E) Fin whale (Balaenoptera physalus)--881.
(F) Blue whale (Balaenoptera musculus)--801.
(F) Bryde's whale (Balaenoptera edeni)--34.
(ii) Odontocetes:
(A) Sperm whales (Physeter macrocephalus)--9,741.
(B) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--
4,384.
(C) Beaked Whales (Cuvier's, True's, Gervais', Sowerby's,
Blainville's, Northern bottlenose whale) (Ziphius cavirostris,
Mesoplodon mirus, M. europaeus, M. bidens, M. densirostris, Hyperoodon
ampullatus)--2665.
(D) Rough-toothed dolphin (Steno bredanensis)--2705.
(E) Bottlenose dolphin (Tursiops truncatus)--605530.
(F) Pan-tropical dolphin (Stenella attenuata)--138394.
(G) Atlantic spotted dolphin (Stenella frontalis)--376070.
(H) Spinner dolphin (Stenella longirostris)--21147.
(I) Clymene dolphin (Stenella clymene)--45823.
(J) Striped dolphin (Stenella coeruleoalba)--174583.
(K) Common dolphin (Delphinus spp.)--96409.
(L) Fraser's dolphin (Lagenodelphis hosei)--320.
(M) Risso's dolphin (Grampus griseus)--94001.
(N) Atlantic white-sided dolphin (Lagenorhynchus acutus)--20647.
(O) White-beaked dolphin (Lagenorhynchus albirostris)--26243.
(P) Melon-headed whale (Peponocephala electra)--1533.
(Q) Pygmy killer whale (Feresa attenuata)--263.
(R) False killer whale (Pseudorca crassidens)--502.
(S) Killer whale (Orcinus orca)--499.
(T) Pilot whales (Short-finned pilot or long-finned) (Globicephala
macrorynchus or G. melas)--127266.
(U) Harbor porpoise (Phocoena phocoena)--153481.
(iii) Pinnipeds:
(A) Gray seal (Halichoerus grypus)--7859.
(B) Harbor seal (Phoca vitulina)--12659.
(C) Hooded seal (Cystophora cristata)--15718.
(D) Harp seal (Pagophilus groenlandica)--11002.
(2) Level A Harassment and/or mortality of no more than 10 beaked
whales (total), of any of the species listed in Sec.
216.242(c)(1)(ii)(C) over the course of the 5-year regulations.

Sec. 216.243 Prohibitions.

No person in connection with the activities described in Sec.
216.240 may:
(a) Take any marine mammal not specified in Sec. 216.242(c);
(b) Take any marine mammal specified in Sec. 216.242(c) other than
by incidental take as specified in Sec. 216.242(c)(1) and (2);
(c) Take a marine mammal specified in Sec. 216.242(c) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.247.

Sec. 216.244 Mitigation.

(a) The activity identified in Sec. 216.240(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats.
(b) When conducting training, maintenance, or RDT&E activities and
operating the sound sources identified in Sec. 216.240(a), the
mitigation measures contained in the Letter of Authorization issued
under Sec. Sec. 216.106 and 216.247 must be implemented. These
mitigation measures include (but are not limited to):
(1) Mitigation Measures for ASW and MIW training:
(i) All lookouts onboard platforms involved in ASW training events
shall review the NMFS-approved Marine Species Awareness Training (MSAT)
material prior to use of midfrequency active sonar.
(ii) All Commanding Officers, Executive Officers, and officers
standing watch on the Bridge shall review the MSAT material prior to a
training event employing the use of mid- or high frequency active
sonar.
(iii) Navy lookouts shall undertake extensive training in order to
qualify as a watchstander in accordance with the Lookout Training
Handbook (NAVEDTRA, 12968-B).
(iv) Lookout training shall include on-the-job instruction under
the supervision of a qualified, experienced watchstander. Following
successful completion of this supervised training period, Lookouts
shall complete the Personal Qualification Standard program, certifying
that they have demonstrated the necessary skills (such as detection and
reporting of partially submerged objects).
(v) Lookouts shall be trained in the most effective means to ensure
quick and effective communication within the command structure in order
to facilitate implementation of mitigation measures if marine mammals
are spotted.
(vi) On the bridge of surface ships, there shall always be at least
three people on watch whose duties include observing the water surface
around the vessel.
(vii) All surface ships participating in ASW exercises shall, in
addition to the three personnel on watch noted previously, have at all
times during the

[[Page 60826]]

exercise at least two additional personnel on watch as lookouts.
(viii) Personnel on lookout and officers on watch on the bridge
shall have at least one set of binoculars available for each person to
aid in the detection of marine mammals.
(ix) On surface vessels equipped with mid-frequency active sonar,
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and
in good working order.
(x) Personnel on lookout shall employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-B). Surface lookouts would scan the
water from the ship to the horizon and be responsible for all contacts
in their sector. In searching the assigned sector, the lookout would
always start at the forward part of the sector and search aft (toward
the back). To search and scan, the lookout would hold the binoculars
steady so the horizon is in the top third of the field of vision and
direct the eyes just below the horizon. The lookout would scan for
approximately five seconds in as many small steps as possible across
the field seen through the binoculars. They would search the entire
sector in approximately five-degree steps, pausing between steps for
approximately five seconds to scan the field of view. At the end of the
sector search, the glasses should be lowered to allow the eyes to rest
for a few seconds, and then the lookout would search back across the
sector with the naked eye.
(xi) After sunset and prior to sunrise, lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook.
At night, lookouts would not sweep the horizon with their eyes because
this method is not effective when vessel is moving. Lookouts would scan
the horizon in a series of movements that should allow their eyes to
come to periodic rests as they scan the sector. When visually searching
at night, they should look a little to one side and out of the corners
of their eyes, paying attention to the things on the outer edges of
their field of vision.
(xii) Personnel on lookout shall be responsible for reporting all
objects or anomalies sighted in the water (regardless of the distance
from the vessel) to the Officer of the Deck, since any object or
disturbance (e.g., trash, periscope, surface disturbance,
discoloration) in the water may be indicative of a threat to the vessel
and its crew or indicative of a marine species that may need to be
avoided as warranted.
(xiii) Commanding Officers shall make use of marine mammal
detection cues and information to limit interaction with marine mammals
to the maximum extent possible consistent with safety of the ship.
(xiv) All personnel engaged in passive acoustic sonar operation
(including aircraft, surface ships, or submarines) shall monitor for
marine mammal vocalizations and report the detection of any marine
mammal to the appropriate watch station for dissemination and
appropriate action.
(xv) Units shall use training lookouts to survey for marine mammals
prior to commencement and during the use of active sonar.
(xvi) During operations involving sonar, personnel shall utilize
all available sensor and optical systems (such as Night Vision Goggles)
to aid in the detection of marine mammals.
(xvii) Navy aircraft participating in exercises at sea shall
conduct and maintain, when operationally feasible and safe,
surveillance for marine mammals as long as it does not violate safety
constraints or interfere with the accomplishment of primary operational
duties.
(xviii) Aircraft with deployed sonobuoys shall use only the passive
capability of sonobuoys when marine mammals are detected within 200
yards (182 m) of the sonobuoy.
(xix) Marine mammal detections shall be reported immediately to
assigned Aircraft Control Unit (if participating) for further
dissemination to ships in the vicinity of the marine mammals. This
action would occur when it is reasonable to conclude that the course of
the ship will likely close the distance between the ship and the
detected marine mammal.
(xx) Safety Zones--When marine mammals are detected by any means
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure
that sonar transmission levels are limited to at least 6 dB below
normal operating levels if any detected marine mammals are within 1000
yards (914 m) of the sonar dome (the bow).
(A) Ships and submarines shall continue to limit maximum
transmission levels by this 6-dB factor until the marine mammal has
been seen to leave the area, has not been detected for 30 minutes, or
the vessel has transited more than 2,000 yards (1828 m) beyond the
location of the last detection.
(B) Should a marine mammal be detected within or closing to inside
457 m (500 yd) of the sonar dome, active sonar transmissions would be
limited to at least 10 dB below the equipment's normal operating level.
Ships and submarines shall continue to limit maximum ping levels by
this 10-dB factor until the marine mammal has been seen to leave the
area, has not been detected for 30 minutes, or the vessel has transited
more than 2000 yards (1828 m) beyond the location of the last
detection.
(C) Should the marine mammal be detected within or closing to
inside 183 m (200 yd) of the sonar dome, active sonar transmissions
would cease. Sonar shall not resume until the marine mammal has been
seen to leave the area, has not been detected for 30 minutes, or the
vessel has transited more than 2,000 yards (1828 m) beyond the location
of the last detection.
(D) If the need for power-down should arise as detailed in ``Safety
Zones'' above, Navy shall follow the requirements as though they were
operating at 235 dB--the normal operating level (i.e., the first power-
down shall be to 229 dB, regardless of at what level above 235 sonar
was being operated).
(xxi) Prior to start up or restart of active sonar, operators shall
check that the Safety Zone radius around the sound source is clear of
marine mammals.
(xxii) Sonar levels (generally)--The Navy shall operate sonar at
the lowest practicable level, not to exceed 235 dB, except as required
to meet tactical training objectives.
(xxiii) Helicopters shall observe/survey the vicinity of an ASW
Operation for 10 minutes before the first deployment of active
(dipping) sonar in the water.
(xxiv) Helicopters shall not dip their sonar within 200 yards (183
m) of a marine mammal and shall cease pinging if a marine mammal closes
within 200 yards (183 m) after pinging has begun.
(xxv) Submarine sonar operators shall review detection indicators
of close-aboard marine mammals prior to the commencement of ASW
training activities involving active sonar.
(xxvi) Dolphin bowriding--If, after conducting an initial maneuver
to avoid close quarters with dolphins, the ship concludes that dolphins
are deliberately closing in on the ship to ride the vessel's bow wave,
no further mitigation actions would be necessary because dolphins are
out of the main transmission axis of the active sonar while in the
shallow-wave area of the vessel bow.
(xxvii) TORPEXs conducted in the northeast North Atlantic right
whale critical habitat (as designated in 50 CFR Part 226) shall
implement the below measures.

[[Page 60827]]

(A) All torpedo-firing operations shall take place during daylight
hours.
(B) During the conduct of each test, visual surveys of the test
area shall be conducted by all vessels and aircraft involved in the
exercise to detect the presence of marine mammals. Additionally,
trained observers shall be placed on the submarine, spotter aircraft,
and the surface support vessel. All participants shall report sightings
of any marine mammals, including negative reports, prior to torpedo
firings. Reporting requirements shall be outlined in the test plans and
procedures written for each individual exercise, and shall be
emphasized as part of pre-exercise briefings conducted with all
participants.
(C) Observers shall receive NMFS-approved training in field
identification, distribution, and relevant behaviors of marine mammals
of the western north Atlantic. Observers shall fill out Standard
Sighting Forms and the data shall be housed at the Naval Undersea
Warfare Center Division Newport (NUWCDIVNPT). Any sightings of North
Atlantic right whales shall be immediately communicated to the Sighting
Advisory System (SAS). All platforms shall have onboard a copy of:
(1) The Guide to Marine Mammals and Turtles of the US Atlantic and
Gulf of Mexico (Wynne and Schwartz 1999).
(2) The NMFS Critical Sightings Program placard.
(3) Right Whales, Guidelines to Mariners placard.
(D) In addition to the visual surveillance discussed above,
dedicated aerial surveys shall be conducted utilizing a fixed-wing
aircraft. An aircraft with an overhead wing (i.e., Cessna Skymaster or
similar) shall be used to facilitate a clear view of the test area. Two
trained observers, in addition to the pilot, shall be embarked on the
aircraft. Surveys shall be conducted at an approximate altitude of 1000
ft (305 m) flying parallel track lines at a separation of 1 nmi (1.85
km), or as necessary to facilitate good visual coverage of the sea
surface. While conducting surveillance, the aircraft shall maintain an
approximate speed of 100 knots (185 km/hr). Since factors that affect
visibility are highly dependent on the specific time of day of the
survey, the flight operator will have the flexibility to adjust the
flight pattern to reduce glare and improve visibility. The entire test
site shall be surveyed initially, but once preparations are being made
for an actual test launch, survey effort shall be concentrated over the
vicinity of the individual test location. Further, for approximately
ten minutes immediately prior to launch, the aircraft shall racetrack
back and forth between the launch vessel and the target vessel.
(E) Commencement of an individual torpedo test scenario shall not
occur until observers from all vessels and aircraft involved in the
exercise have reported to the Officer in Tactical Command (OTC) and the
OTC has declared that the range is clear of marine mammals. Should
marine mammals be present within or seen moving toward the test area,
the test shall be either delayed or moved as required to avoid
interference with the animals.
(F) The TORPEX shall be suspended if the Beaufort Sea State exceeds
3 or if visibility precludes safe operations.
(G) Vessel speeds:
(1) During transit through the northeastern North Atlantic right
whale critical habitat, surface vessels and submarines shall maintain a
speed of no more than 10 knots (19 km/hr) while not actively engaged in
the exercise procedures.
(2) During TORPEX operations, a firing vessel should, where
feasible, not exceed 10 knots. When a submarine is used as a target,
vessel speeds should, where feasible, not exceed 18 knots. However, on
occasion, when surface vessels are used as targets, the vessel may
exceed 18 kts in order to fully test the functionality of the
torpedoes. This increased speed would occur for a short period of time
(e.g., 10-15 minutes) to evade the torpedo when fired upon.
(H) In the event of an animal strike, or if an animal is discovered
that appears to be in distress, the Navy shall immediately report the
discovery through the appropriate Navy chain of Command.
(xxviii) The Navy shall abide by the following additional measures:
(A) The Navy shall avoid planning major exercises in the specified
planning awareness areas (PAAs--see Figure 2 of this Subpart) where
feasible. Should national security require the conduct of more than
four major exercises (C2X, JTFEX, SEASWITI, or similar scale event) in
these areas (meaning all or a portion of the exercise) per year the
Navy shall provide NMFS with prior notification and include the
information in any associated after-action or monitoring reports.
(B) The Navy shall conduct no more than one of the four above-
mentioned major exercises (COMPTUEX, JTFEX, SEASWITI or similar scale
event) per year in the Gulf of Mexico to the extent operationally
feasible. If national security needs require more than one major
exercise to be conducted in the Gulf of Mexico PAAs, the Navy shall
provide NMFS with prior notification and include the information in any
associated after-action or monitoring reports.
(C) The Navy shall include the PAAs in the Navy's Protective
Measures Assessment Protocol (PMAP) (implemented by the Navy for use in
the protection of the marine environment) for unit level situational
awareness (i.e., exercises other than COMPTUEX, JTFEX, SEASWITI) and
planning purposes.
(D) Helicopter Dipping Sonar--Unless otherwise dictated by national
security needs, the Navy shall minimize helicopter dipping sonar
activities within the southeastern areas of North Atlantic right whale
critical habitat (as designated in 50 CFR Part 226) from November 15-
April 15.
(E) Object Detection Exercises--The Navy shall implement the
following measures regarding object detection activities in the
southeastern areas of the North Atlantic right whale critical habitat:
(1) The Navy shall reduce the time spent conducting object
detection exercises in the NARW critical habitat;
(2) Prior to conducting surface ship object detection exercises in
the southeastern areas of the North Atlantic right whale critical
habitat during the time of November 15--April 15, ships shall contact
FACSFACJAX to obtain the latest right whale sighting information.
FACSFACJAX shall advise ships of all reported whale sightings in the
vicinity of the critical habitat and associated areas of concern (which
extend 9 km (5 NM) seaward of the designated critical habitat
boundaries). To the extent operationally feasible, ships shall avoid
conducting training in the vicinity of recently sighted right whales.
Ships shall maneuver to maintain at least 500 yards separation from any
observed whale, consistent with the safety of the ship.
(xxix) The Navy shall abide by the letter of the ``Stranding
Response Plan for Major Navy Training Exercises in the AFAST Study
Area'' (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), to include the following measures:
(A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 216.241) occurs during a Major Training Exercise (MTE,
including SEASWITI, IAC, Group Sails, JTFEX, or COMPTUEX) in the AFAST
Study Area, the Navy shall implement the procedures described below.
(1) The Navy shall implement a Shutdown (as defined Sec. 216.241)
when advised by a NMFS Office of Protected Resources Headquarters
Senior Official designated in the AFAST Stranding

[[Page 60828]]

Communication Protocol that a USE involving live animals has been
identified and that at least one live animal is located in the water.
NMFS and Navy shall communicate, as needed, regarding the
identification of the USE and the potential need to implement shutdown
procedures.
(2) Any shutdown in a given area shall remain in effect in that
area until NMFS advises the Navy that the subject(s) of the USE at that
area die or are euthanized, or that all live animals involved in the
USE at that area have left the area (either of their own volition or
herded).
(3) If the Navy finds an injured or dead animal of any species
other than North Atlantic right whale floating at sea during an MTE,
the Navy shall notify NMFS immediately or as soon as operational
security considerations allow. The Navy shall provide NMFS with species
or description of the animal (s), the condition of the animal (s)
including carcass condition if the animal(s) is/are dead), location,
time of first discovery, observed behaviors (if alive), and photo or
video (if available). Based on the information provided, NMFS shall
determine if, and advise the Navy whether a modified shutdown is
appropriate on a case-by-case basis.
(4) If the Navy finds an injured (or entangled) right whale
floating at sea during an MTE, the Navy shall implement shutdown
procedures (14 or 17 nm, as defined below) around the animal
immediately (without waiting for notification from NMFS). The Navy
shall then notify NMFS (pursuant to the AFAST Communication Protocol,
which is still in development) immediately or as soon as operational
security considerations allow. The Navy shall provide NMFS with species
or description of the animal (s), the condition of the animal (s)
including carcass condition if the animal(s) is/are dead), location,
time of first discovery, observed behaviors (if alive), and photo or
video (if available). Subsequent to the discovery of the injured whale,
any Navy platforms in the area shall report any right whale sightings
to NMFS (or to a contact that can alert NMFS as soon as possible).
Based on the information provided, NMFS may initiate/organize an aerial
survey (by requesting the Navy's assistance pursuant to the MOA (see
(xxix)(C) below) or by other available means) to see if other right
whales are in the vicinity. Based on the information provided by the
Navy and, if necessary, the outcome of the aerial surveys, NMFS shall
determine whether a continued shutdown is appropriate on a case-by-case
basis. Though it will be determined on a case-by-case basis after Navy/
NMFS discussion of the situation, NMFS anticipates that the shutdown
will continue within 14 or 17 nm of a live, injured/entangled right
whale until the animal dies or has not been seen for at least 3 hours
(either by NMFS staff attending the injured animal or Navy personnel
monitoring the area around where the animal was last sighted).
(5) If the Navy finds a dead right whale floating at sea during an
MTE, the Navy shall notify NMFS (pursuant to AFAST Stranding
Communication Protocol, which is still in development) immediately or
as soon as operational security considerations allow. The Navy shall
provide NMFS with species or description of the animal (s), the
condition of the animal (s) including carcass condition if the
animal(s) is/are dead), location, time of first discovery, observed
behaviors (if alive), and photo or video (if available). Subsequent to
the discovery of the dead whale, if the Navy is operating sonar in the
area they shall use increased vigilance (in looking for right whales)
and all platforms in the area shall report sightings of right whales to
NMFS as soon as possible. Based on the information provided, NMFS may
initiate/organize an aerial survey (by requesting the Navy's assistance
pursuant to the memorandum of agreement (see (xxix)(C) below) or by
other available means) to see if other right whales are in the
vicinity. Based on the information provided by the Navy and, if
necessary, the outcome of the aerial surveys, NMFS will determine
whether any additional protective measures are necessary on a case-by-
case basis.
(6) In the event, following a USE, that: (a) Qualified individuals
are attempting to herd animals back out to the open ocean and animals
are not willing to leave, or (b) animals are seen repeatedly heading
for the open ocean but turning back to shore, NMFS and the Navy should
coordinate (including an investigation of other potential anthropogenic
stressors in the area) to determine if the proximity of MFAS/HFAS
training activities or explosive detonations, though farther than 14 or
17 nm from the distressed animal(s), is likely decreasing the
likelihood that the animals return to the open water. If so, NMFS and
the Navy shall further coordinate to determine what measures are
necessary to further minimize that likelihood and implement those
measures as appropriate.
(B) Within 72 hours of NMFS notifying the Navy of the presence of a
USE, the Navy shall provide available information to NMFS (per the
AFAST Communication Protocol) regarding the location, number and types
of acoustic/explosive sources, direction and speed of units using MFAS/
HFAS, and marine mammal sightings information associated with training
activities occurring within 80 nm (148 km) and 72 hours prior to the
USE event. Information not initially available regarding the 80 nm (148
km), 72 hours, period prior to the event shall be provided as soon as
it becomes available. The Navy shall provide NMFS investigative teams
with additional relevant unclassified information as requested, if
available.
(C) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop
an MOA, or other mechanism consistent with federal fiscal law
requirements (and all other applicable laws), that allows the Navy to
assist NMFS with the Phase 1 and 2 Investigations of USEs through the
provision of in-kind services, such as (but not limited to) the use of
plane/boat/truck for transport of personnel involved in the stranding
response or investigation or animals, use of Navy property for
necropsies or burial, or assistance with aerial surveys to discern the
extent of a USE. The Navy may assist NMFS with the Investigations by
providing one or more of the in-kind services outlined in the MOA, when
available and logistically feasible and when the assistance does not
negatively affect Fleet operational commitments.
(2) Mitigation for IEER--The following are protective measures for
use with Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER) given an explosive source generates the acoustic wave used in
this sonobuoy.
(i) Navy crews shall conduct visual reconnaissance of the drop area
prior to laying their intended sonobuoy pattern. This search should be
conducted below 500 yards (457 m) at a slow speed, if operationally
feasible and weather conditions permit. In dual aircraft training
activities, crews are allowed to conduct coordinated area clearances.
(ii) Navy crews shall conduct a minimum of 30 minutes of visual and
acoustic monitoring of the search area prior to commanding the first
post detonation. This 30-minute observation period may include pattern
deployment time.
(iii) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of
observed marine mammal activity, deploy the receiver ONLY and monitor
while conducting a visual search. When marine mammals are no longer
detected within 1,000 yards (914 m) of the intended post position, co-
locate the explosive source

[[Page 60829]]

sonobuoy (AN/SSQ-110A) (source) with the receiver.
(iv) When able, Navy crews shall conduct continuous visual and
aural monitoring of marine mammal activity. This is to include
monitoring of own-aircraft sensors from first sensor placement to
checking off station and out of communication range of these sensors.
(v) Aural Detection: If the presence of marine mammals is detected
aurally, then that should cue the aircrew to increase the diligence of
their visual surveillance. Subsequently, if no marine mammals are
visually detected, then the Navy crew may continue multi-static active
search.
(vi) Visual Detection:
(A) If marine mammals are visually detected within 1,000 yards (914
m) of the explosive source sonobuoy (AN/SSQ-110A) intended for use,
then that payload shall not be detonated.
(B) Navy Aircrews may utilize this post once the marine mammals
have not been re-sighted for 30 minutes, or are observed to have moved
outside the 1,000 yards (914 m) safety buffer.
(C) Navy Aircrews may shift their multi-static active search to
another post, where marine mammals are outside the 1,000 yards (914 m)
safety buffer.
(vii) Navy Aircrews shall make every attempt to manually detonate
the unexploded charges at each post in the pattern prior to departing
the operations area by using the ``Payload 1 Release'' command followed
by the ``Payload 2 Release'' command. Aircrews shall refrain from using
the ``Scuttle'' command when two payloads remain at a given post.
Aircrews shall ensure that a 1,000 yard (914 m) safety buffer, visually
clear of marine mammals, is maintained around each post as is done
during active search operations.
(viii) Navy Aircrews shall only leave posts with unexploded charges
in the event of a sonobuoy malfunction, an aircraft system malfunction,
or when an aircraft must immediately depart the area due to issues such
as fuel constraints, inclement weather, and in-flight emergencies. In
these cases, the sonobuoy will self-scuttle using the secondary or
tertiary method.
(ix) The navy shall ensure all payloads are accounted for.
Explosive source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall
be reported as unexploded ordnance via voice communications while
airborne, then upon landing via naval message.
(x) Mammal monitoring shall continue until out of own-aircraft
sensor range.
(3) Protective Measures related to Vessel Transit and North
Atlantic Right Whales.
(i) Mid-Atlantic, Offshore of the Eastern United States.
(A) All Navy vessels are required to use extreme caution and
operate at a slow, safe speed consistent with mission and safety during
the months indicated below and within a 37 km (20 nm) arc (except as
noted) of the specified associated reference points:
(1) South and East of Block Island (37 km (20 NM) seaward of line
between 41-4.49 N. lat. 071-51.15 W. long. and 41-18.58 N. lat. 070-
50.23 W. long): Sept-Oct and Mar-Apr.
(2) New York / New Jersey (40-30.64 N. lat. 073-57.76 W. long.):
Sep-Oct and Feb-Apr.
(3) Delaware Bay (Philadelphia) (38-52.13 N. lat. 075-1.93 W.
long.): Oct-Dec and Feb-Mar.
(4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11 . lat.
075-57.56 W. long.): Nov-Dec and Feb-Apr.
(5) North Carolina (34-41.54 N. lat. 076-40.20 W. long.): Dec-Apr.
(6) South Carolina (33-11.84 N. lat. 079-8.99 W. long. and 32-43.39
N. lat. 079-48.72 W. long.): Oct-Apr.
(B) During the months indicated in (A), above, Navy vessels shall
practice increased vigilance with respect to avoidance of vessel-whale
interactions along the mid-Atlantic coast, including transits to and
from any mid-Atlantic ports not specifically identified above.
(C) All surface units transiting within 56 km (30 NM) of the coast
in the mid-Atlantic shall ensure at least two watchstanders are posted,
including at least one lookout who has completed required MSAT
training.
(D) Navy vessels shall not knowingly approach any whale head on and
shall maneuver to keep at least 457 m (1,500 ft) away from any observed
whale, consistent with vessel safety.
(ii) Southeast Atlantic, Offshore of the Eastern United States--for
the purposes of the measures below (within (ii)), the ``southeast''
encompasses sea space from Charleston, South Carolina, southward to
Sebastian Inlet, Florida, and from the coast seaward to 148 km (80 NM)
from shore. North Atlantic right whale critical habitat is the area
from 31-15 N. lat. to 30-15 N. lat. extending from the coast out to 28
km (15 NM), and the area from 28-00 N. lat. to 30-15 N. lat. from the
coast out to 9 km (5 NM). All mitigation measures described here that
apply to the critical habitat also apply to an associated area of
concern which extends 9 km (5 NM) seaward of the designated critical
habitat boundaries.
(A) Prior to transiting or training in the critical habitat or
associated area of concern, ships shall contact Fleet Area Control and
Surveillance Facility, Jacksonville, to obtain latest whale sighting
and other information needed to make informed decisions regarding safe
speed and path of intended movement. Subs shall contact Commander,
Submarine Group Ten for similar information.
(B) The following specific mitigation measures apply to activities
occurring within the critical habitat and an associated area of concern
which extends 9 km (5 NM) seaward of the designated critical habitat
boundaries:
(1) When transiting within the critical habitat or associated area
of concern, vessels shall exercise extreme caution and proceed at a
slow safe speed. The speed shall be the slowest safe speed that is
consistent with mission, training and operations.
(2) Speed reductions (adjustments) are required when a whale is
sighted by a vessel or when the vessel is within 9 km (5 NM) of a
reported new sighting less then 12 hours old.
(3) Additionally, circumstances could arise where, in order to
avoid North Atlantic right whale(s), speed reductions could mean vessel
must reduce speed to a minimum at which it can safely keep on course or
vessels could come to an all stop.
(4) Vessels shall avoid head-on approaches to North Atlantic right
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of
separation from any observed whale if deemed safe to do so. These
requirements do not apply if a vessel's safety is threatened, such as
when a change of course would create an imminent and serious threat to
a person, vessel, or aircraft, and to the extent vessels are restricted
in the ability to maneuver.
(5) Ships shall not transit through the critical habitat or
associated area of concern in a North-South direction.
(6) Ships, surfaced subs, and aircraft shall report any whale
sightings to Fleet Area Control and Surveillance Facility,
Jacksonville, by the most convenient and fastest means. The sighting
report shall include the time, latitude/longitude, direction of
movement and number and description of whale (i.e., adult/calf).
(iii) Northeast Atlantic, Offshore of the Eastern United States
(A) Prior to transiting the Great South Channel or Cape Cod Bay
critical habitat areas, ships shall obtain the latest right whale
sightings and other information needed to make informed decisions
regarding safe speed. The Great South

[[Page 60830]]

Channel critical habitat is defined by the following coordinates: 41-00
N. lat., 69-05 W. long.; 41-45 N. lat, 69-45 W. long; 42-10 N. lat.,
68-31 W. long.; 41-38 N. lat., 68-13 W. long.. The Cape Cod Bay
critical habitat is defined by the following coordinates: 42-04.8 N.
lat., 70-10 W. long.; 42-12 N. lat., 70-15 W. long.; 42-12 N. lat., 70-
30 W. long.; 41-46.8 N. lat., 70-30 W. long.
(B) Ships, surfaced subs, and aircraft shall report any North
Atlantic right whale sightings (if the whale is identifiable as a right
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of
the whale(s).
(C) Vessels or aircraft that observe whale carcasses shall record
the location and time of the sighting and report this information as
soon as possible to the cognizant regional environmental coordinator.
All whale strikes must be reported. This report shall include the date,
time, and location of the strike; vessel course and speed; operations
being conducted by the vessel; weather conditions, visibility, and sea
state; description of the whale; narrative of incident; and indication
of whether photos/videos were taken. Navy personnel are encouraged to
take photos whenever possible.
(D) Specific mitigation measures related to activities occurring
within the critical habitat include the following:
(1) Vessels shall avoid head-on approaches to North Atlantic right
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of
separation from any observed whale if deemed safe to do so. These
requirements do not apply if a vessel's safety is threatened, such as
when change of course would create an imminent and serious threat to
person, vessel, or aircraft, and to the extent vessels are restricted
in the ability to maneuver.
(2) When transiting within the critical habitat or associated area
of concern, vessels shall use extreme caution and operate at a safe
speed so as to be able to avoid collisions with North Atlantic right
whales and other marine mammals, and stop within a distance appropriate
to the circumstances and conditions.
(3) Speed reductions (adjustments) are required when a whale is
sighted by a vessel or when the vessel is within 9 km (5 NM) of a
reported new sighting less than one week old.
(4) Ships transiting in the Cape Cod Bay and Great South Channel
critical habitats shall obtain information on recent whale sightings in
the vicinity of the critical habitat. Any vessel operating in the
vicinity of a North Atlantic right whale shall consider additional
speed reductions as per Rule 6 of International Navigational Rules.

Sec. 216.245 Requirements for monitoring and reporting.

(a) The Navy is required to cooperate with the NMFS, and any other
Federal, state or local agency monitoring the impacts of the activity
on marine mammals.
(b) As outlined in the AFAST Stranding Communication Plan, the Navy
must notify NMFS immediately (or as soon as clearance procedures allow)
if the specified activity identified in Sec. 216.240(b) is thought to
have resulted in the mortality or injury of any marine mammals, or in
any take of marine mammals not identified in Sec. 216.240(c).
(c) The Navy must conduct all monitoring and/or research required
under the Letter of Authorization including abiding by the letter of
the AFAST Monitoring Plan, which requires the Navy to implement, at a
minimum, the monitoring activities summarized in Table 1 to subpart V
to this part (and described in more detail in the AFAST Monitoring
Plan, which may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm).
(d) Report on Monitoring required in sub-paragraph (c) of this
section--The Navy shall submit a report annually on September 1
describing the implementation and results (through June 1 of the same
year) of the monitoring required in paragraph c, above. Standard marine
species sighting forms shall be used by the Navy to standardize data
collection and data collection methods will be standardized across
ranges to allow for comparison in different geographic locations.
(e) IEER exercises--A yearly report detailing the number of
exercises along with the hours of associated marine mammal survey and
associated marine mammal sightings, number of times employment was
delayed by marine mammal sightings, and the number of total detonated
charges and self-scuttled charges shall be submitted to NMFS.
(f) MFAS/HFAS exercises--The Navy shall submit an After Action
Report to the Office of Protected Resources, NMFS, within 120 days of
the completion of any Major Training Exercise (SEASWITI, IAC, COMPTUEX,
JTFEX, but not Group Sails). For other ASW and MIW exercises, the Navy
shall submit a yearly summary report. These reports shall, at a
minimum, include the following information:
(1) The estimated number of hours of sonar operation, subdivided by
source type;
(2) The total number of hours of observation effort (including
observation time when sonar was not operating), if obtainable;
(3) All marine mammal sightings (at any distance--not just within a
particular distance) to include, when possible, and if not classified:
(i) Species.
(ii) Number of animals sighted.
(iii) Geographic location of marine mammal sighting.
(iv) Distance of animal from any ship with observers.
(v) Whether animal is fore, aft, port, or starboard.
(vi) Direction of animal movement in relation to boat (towards,
away, parallel).
(vii) Any observed behaviors of marine mammals.
(4) The status of any sonar sources (what sources were in use) and
whether or not they were powered down or shut down as a result of the
marine mammal observation.
(5) The platform that the marine mammals were initially sighted
from.
(g) AFAST Comprehensive Report--The Navy shall submit to NMFS a
draft report that analyzes and summarizes all of the multi-year marine
mammal information gathered during all training for which individual
reports are required in Sec. 216.145 (d-f). This report shall be
submitted at the end of the fourth year of the rule (November 2012),
covering activities that have occurred through June 1, 2012.
(h) The Navy shall respond to NMFS comments on the draft
comprehensive report if NMFS provides the Navy with comments on the
draft report within 3 months of receipt. The report shall be considered
final after the Navy has addressed NMFS' comments, or three months
after the submittal of the draft if NMFS does not comment by then.
(i) Comprehensive National Sonar Report--By June, 2014, the Navy
shall submit a draft National Report that analyzes, compares, and
summarizes the active sonar data gathered from the watchstanders and
pursuant to the implementation of the Monitoring Plans for AFAST, the
Hawaii Range Complex (HRC), the Southern California (SOCAL) Range
Complex, the Marianas Range Complex, and the Northwest Training Range.
(j) The Navy shall respond to NMFS comments on the draft
comprehensive report if NMFS provides the Navy with

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comments on the draft report within 3 months of receipt. The report
will be considered final after the Navy has addressed NMFS' comments,
or three months after the submittal of the draft if NMFS does not
comment by then.

Sec. 216.246 Applications for Letters of Authorization.

To incidentally take marine mammals pursuant to these regulations,
the Navy conducting the activity identified in Sec. 216.240(a) must
apply for and obtain either an initial Letter of Authorization in
accordance with Sec. Sec. 216.247 or a renewal under Sec. 216.248.

Sec. 216.247 Letter of Authorization.

(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 216.248.
(b) Each Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization shall be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).

Sec. 216.248 Renewal of Letters of Authorization and adaptive
management.

(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.147 for the activity identified in Sec. 216.140(c) will be renewed
annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 216.246 will be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12 months;
(2) Receipt of the monitoring reports and notifications within the
indicated timeframes required under Sec. 216.245(b-j); and
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 216.244 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 216.247, were
undertaken and will be undertaken during the upcoming annual period of
validity of a renewed Letter of Authorization.
(b) Adaptive Management--Based on new information, NMFS may modify
or augment the existing mitigation measures if new data suggests that
such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
Similarly, NMFS may coordinate with the Navy to modify or augment the
existing monitoring requirements if the new data suggest that the
addition of a particular measure would likely fill in a specifically
important data gap. The following are some possible sources of new and
applicable data:
(1) Results from the Navy's monitoring from the previous year
(either from the AFAST Study Area or other locations);
(2) Results from specific stranding investigations (either from the
AFAST Study Area or other locations, and involving coincident MFAS/HFAS
training or not involving coincident use) or NMFS' long term
prospective stranding investigation discussed in the preamble to this
proposed rule;
(3) Results from general marine mammal and sound research (funded
by the Navy or otherwise).
(c) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.248 indicates that a substantial
modification to the described work, mitigation or monitoring undertaken
during the upcoming season will occur, or if NMFS utilizes the adaptive
management mechanism addressed in (b) above to modify or augment the
mitigation or monitoring measures, the NMFS shall provide the public a
period of 30 days for review and comment on the request. Review and
comment on renewals of Letters of Authorization would be restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.

Sec. 216.249 Modifications to Letters of Authorization.

(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106
and 216.247 and subject to the provisions of this subpart, shall be
made until after notification and an opportunity for public comment has
been provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 216.248, without modification (except for the
period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.240(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.247 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.
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[FR Doc. E8-23617 Filed 10-10-08; 8:45 am]
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