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

[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Proposed Rules]
[Pages 60836-60908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23618]

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Part III

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 Training in the Southern
California Range Complex; 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. 0808061069-81171-01]
RIN 0648-AW91

Taking and Importing Marine Mammals; U.S. Navy Training in the
Southern California Range Complex

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 in the Southern California Range Complex (SOCAL), which
extends south and southwest off the southern California coast, 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-AW91, 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. 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 SOCAL was published on
April 4, 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) modified the MMPA by removing the ``small numbers'' and
``specified geographical region'' limitations and amended the
definition of ``harassment'' as it applies to a ``military readiness
activity'' to read as follows (Section 3(18)(B) of the MMPA):

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

Summary of Request

On April 1, 2008, NMFS received an application from the Navy
requesting authorization for the take of individuals of 37 species of
marine mammals incidental to upcoming Navy training activities,
maintenance, and research, development, testing, and evaluation (RDT&E)
activities to be conducted within SOCAL, which extends southwest
approximately 600 nm in the general shape of a 200-nm wide rectangle
(see the Navy's application), over the course of 5 years. These
training activities are military readiness activities under the
provisions of the NDAA. The Navy states, and NMFS concurs, that these
military readiness activities may incidentally take marine mammals
present within SOCAL by exposing them to sound from mid-frequency or
high frequency active sonar (MFAS/HFAS) or underwater detonations. The
Navy requests authorization to take individuals of 37 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 Request

The Navy's mission is to maintain, train, and equip combat-ready
naval forces capable of winning wars, deterring aggression, and
maintaining freedom of the seas. Title 10, U.S. Code (U.S.C.) 5062
directs the Chief of Naval Operations to train all naval forces for
combat. The Chief of Naval Operations meets that direction, in part, by
conducting at-sea training exercises and ensuring naval forces have
access to ranges, operating areas (OPAREAs) and airspace where they can
develop and maintain skills for wartime missions and conduct research,
development, testing, and evaluation (RDT&E) of naval weapons systems.
The Navy proposes to implement actions within the SOCAL Range
Complex to:
Increase training and RDT&E operations from current levels
as necessary to support the Navy-wide training plan, known as the Fleet
Readiness Training Plan (FRTP);

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Accommodate mission requirements associated with force
structure changes and introduction of new weapons and systems to the
Fleet; and
Implement enhanced range complex capabilities.
The Proposed Action would result in selectively focused but
critical increases in training, and range enhancements (including the
establishment and use of a shallow-water minefield and construction of
a shallow-water training range) to address testing and training
resource shortfalls, as necessary to ensure the SOCAL Range Complex
supports Navy and Marine Corps training and readiness objectives. The
proposed action would result in approximately a 12-percent increase in
the amount of MFAS/HFAS currently used.

Overview of SOCAL Range Complex

The U.S. Navy has been training and operating in the area now
defined as the SOCAL Range Complex for over 70 years. The SOCAL Range
Complex has three primary components: Ocean Operating Areas (SOCAL
OPAREAs), Special Use Airspace (SUA), and San Clemente Island (SCI).
The Range Complex is situated between Dana Point and San Diego, and
extends more than 600 nautical miles (nm) (1,111 kilometers (km))
southwest into the Pacific Ocean (See the Navy's application). The
components of the SOCAL Range Complex encompass 120,000 square nm
(nm\2\) (411,600 square km (km\2\)) of sea space, 113,000 nm\2\
(387,500 km\2\) of SUA, and over 42 nm\2\ (144 km\2\) of land (SCI). To
facilitate range management and scheduling, the SOCAL Range Complex is
divided into numerous sub-component ranges and training areas, which
are described below.

SOCAL OPAREAS

The ocean areas of the SOCAL Range Complex include surface and
subsurface OPAREAs extending generally southwest from the coastline of
southern California between Dana Point and San Diego for approximately
600 nm into international waters to the west of Baja California,
Mexico. Most of the SOCAL OPAREAS are located under the Warning Area
291 Airspace mentioned below. Several SOCAL OPAREAs do not lie under W-
291. These OPAREAS are used for ocean surface and subsurface training.
Military aviation activities may be conducted in airspace that is not
designated as SUA, however, these aviation activities do not include
use of live or inert ordnance.

Special Use Airspace (SUA)

The SOCAL Range Complex includes military airspace designated as
Warning Area 291 (W-291). W-291 comprises 113,000 nm²
(209,276 km²) of SUA that generally overlies the SOCAL
OPAREAs and SCI, extending to the southwest from approximately 12 nm
(22 km) off the coast to approximately 600 nm (1,111 km). W-291 is the
largest component of SUA in the Navy's range inventory.

San Clemente Island (SCI)

SCI, a component part of the SOCAL Range Complex, is comprised of
existing land ranges and training areas that are integral to training
of Pacific Fleet air, surface, and subsurface units; First Marine
Expeditionary Force (I MEF) units; Naval Special Warfare (NSW) units;
and selected formal schools. SCI provides instrumented ranges,
operating areas, and associated facilities to conduct and evaluate a
wide range of exercises within the scope of naval warfare. SCI also
provides ranges and services for RDT&E activities. Over 20 Navy and
Marine Corps commands conduct training and testing activities on SCI.
Due to its unique capabilities to support multiple training operations,
SCI training activities encompass every Navy primary mission area
(PMAR), and SCI provides critical training resources for Expeditionary
Strike Group (ESG), Carrier Strike Group (CSG), and Marine
Expeditionary Unit (MEU) certification exercises.
SCI provides an extensive suite of range capabilities for tactical
training. SCI includes a Shore Bombardment Area (SHOBA), landing
beaches, several live-fire training areas and ranges (TARs) for small
arms, maneuver areas, and other dedicated ranges for the conduct of
training in all Primary Mission Areas (PMARs). SCI includes extensive
instrumentation, and provides robust opposing force simulation and
targets for use in land, sea-based, and air live-fire training. SCI
also contains an airfield and other infrastructure for training and
logistical support.

Overlap With Point Mugu Sea Range for Certain Anti-Submarine Warfare
Training (ASW)

The Point Mugu Sea Range is a Navy ocean range area north of and
generally adjacent to the SOCAL Range Complex. ASW training conducted
in the course of major exercises occurs across the boundaries of the
SOCAL Range Complex into the Point Mugu Sea Range. These cross-boundary
events are addressed in this authorization request.

Description of Specified Activities

As mentioned above, the Navy has requested MMPA authorization to
take marine mammals incidental to training activities in the SOCAL
Range Complex that would result in the generation of sound or pressure
waves 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 detonation of explosives in the
water. These activities are discussed below.

Activities Utilizing Active Sonar Sources

For the SOCAL Range Complex, the training activities that utilize
active tactical sonar sources fall into the category of Anti-submarine
Warfare (ASW) exercises. This section includes a description of ASW,
the active acoustic devices used in ASW exercises, as well as the
exercise types in which these acoustic sources are used.

ASW Training and Active Sonar

ASW involves helicopter and sea control aircraft, ships, and
submarines, operating alone or in combination, in operations to locate,
track, and neutralize submarines. Controlling the undersea battlespace
is a unique naval capability and a vital aspect of sea control.
Undersea battlespace dominance requires proficiency in ASW. Every
deploying strike group and individual ASW-capable combatant must
possess this capability.
Various types of active and passive sonars are used by the Navy to
determine water depth, locate mines, and identify, track, and target
submarines. Passive sonar ``listens'' for sound waves by using
underwater microphones, called hydrophones, which receive, amplify and
process underwater sounds. No sound is introduced into the water when
using passive sonar. Passive sonar can indicate the presence, character
and movement of submarines. Passive sonar, alternatively, provides only
a bearing (direction) to a sound-emitting source; it does not provide
an accurate range (distance) to the source. Active sonar is needed to
locate objects because active sonar provides both bearing and range to
the detected contact (such as an enemy submarine).
Active sonar transmits pulses of sound that travel through the
water, reflect off objects and return to a receiver. By knowing the
speed of sound in water and the time taken for the sound wave to travel
to the object and back, active sonar systems can quickly calculate
direction and distance from the sonar platform to the underwater

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object. There are three types of active sonar: Low-frequency, mid-
frequency, and high-frequency.
Low-frequency sonar operates below 1 kilohertz (kHz) and is
designed to detect extremely quiet diesel-electric submarines at ranges
far beyond the capabilities of mid-frequency active sonars. There are
only two ships in use by the U.S. Navy that are equipped with low-
frequency sonar; both are ocean surveillance vessels operated by
Military Sealift Command. Low-frequency active sonar is not presently
utilized in the SOCAL Range Complex, and use of low-frequency active
sonar is not contemplated in the Proposed Action.
High-frequency active sonar (HFAS), operates at frequencies greater
than 10 kilohertz (kHz). At higher acoustic frequencies, sound rapidly
dissipates in the ocean environment, resulting in short detection
ranges, typically less than five nm. High-frequency sonar is used
primarily for determining water depth, hunting mines and guiding
torpedoes.
Mid-frequency active sonar (MFAS) operates between 1 and 10 kHz,
with detection ranges up to 10 nautical miles (nm). Because of this
detection ranging capability, MFAS is the Navy's primary tool for
conducting ASW. Many ASW experiments and exercises have demonstrated
that this improved capability for long range detection of adversary
submarines before they are able to conduct an attack is essential to
U.S. ship survivability. Today, ASW is the Navy's 1 war-
fighting priority. Navies across the world utilize modern, quiet,
diesel-electric submarines which pose the primary threat to the U.S.
Navy's ability to perform a number of critically necessary missions.
Extensive training is necessary of sailors, ASW-capable units, and
strike groups are to gain proficiency in using MFAS. If a strike group
does not demonstrate MFAS proficiency, it cannot be certified as combat
ready.

Acoustic Sources Used for ASW Exercises in SOCAL

Modern sonar technology has developed 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 emits an omni-directional ping and then
rapidly scans a steered receiving beam to provide directional, as well
as range, information. More advanced active sonars transmit multiple
preformed beams, listening to echoes from several directions
simultaneously and providing efficient detection of both direction and
range. The types of active sonar sources employed during ASW active
sonar training exercises in the SOCAL Range Complex are identified in
Table 1.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TP14OC08.025

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BILLING CODE 3510-22-C
ASW sonar systems are deployed from certain classes of surface
ships, submarines, helicopters, and fixed wing maritime patrol aircraft
(Table 1). The surface ships used are typically equipped with hull-
mounted sonars (active and passive) and towed-array passive sonar for
the detection of submarines. Helicopters equipped with dipping sonar or
sonobuoys are utilized to locate submarines or submarine targets within
the training area. In addition, fixed wing marine patrol aircraft (MPA)
are used to deploy both active and passive sonobuoys to assist in
locating and tracking submarines during the duration of the exercise.
Submarines are equipped with hull-mounted sonars sometimes used to
locate and prosecute other submarines and/or surface ships during the
exercise. The platforms used in ASW exercises are identified below.
Surface Ship Sonars--A variety of surface ships participate in
testing and training events. Some ships (e.g., aircraft carriers,
amphibious assault ships) do not have any onboard active sonar systems,
other than fathometers. Others, like guided missile cruisers, are
equipped with active as well as passive tactical sonars for mine
avoidance and submarine detection and tracking. For purposes of the
analysis, the SQS-53 was modeled as having a nominal source level of
235 decibels (dB) re 1 [mu]Pa @ 1 m, and the SQS-56 was modeled as
having a nominal source level of 225 decibels (dB) re 1 [mu]Pa @ 1 m.
Sonar ping transmission durations were modeled as lasting 1 second per
ping and omni-directional, which is a conservative assumption that will
overestimate potential effects. Actual ping durations will be less than
1 second. The SQS-53 hull-mounted sonar transmits at center frequencies
of 2.6 kHz and 3.5 kHz. The SQS-56 sonar transmits at a center
frequency of 7.5 kHz. Details concerning the tactical use of specific
frequencies and the repetition rate for the sonar pings is classified
but was modeled based on the required tactical training setting.
Hull-mounted active 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), and the ping is not omnidirectional,
but directed forward.
Submarine Sonars--Submarine active and passive sonars are used to
detect and target enemy submarines and surface ships. Because submarine
MF active sonar (AN/BQQ-10) use is very rare and in those rare
instances, very brief (only approximately 2 pings per hour), it is
extremely unlikely that use of active sonar by submarines would have
any measurable effect on marine mammals. However, submarine sonar was
included in the modeling for estimating exposures of marine mammals to
sonar sounds. Estimates of exposure are also included for the HF AN/
BQQ-15 which is used for navigation.
Aircraft Sonar Systems--Aircraft sonar systems that would operate
in the SOCAL Range Complex include DICASS sonobuoys (AN/SSQ-62; source
level of 201 dB) and dipping sonar (AN/AQS-22). Sonobuoys may be
deployed by maritime patrol aircraft or helicopters; dipping sonars are
used by carrier-based helicopters. A sonobuoy is an expendable device
used by aircraft for the detection of underwater acoustic energy and
for conducting vertical water column temperature measurements. Most
sonobuoys are passive, but some can generate active acoustic signals,
as well as listen passively. Dipping sonar is an active or passive
sonar device lowered on cable by helicopters to detect or maintain
contact with underwater targets. During ASW training, these systems
active modes are only used briefly for localization of contacts and are
not used in primary search capacity. Because active mode dipping sonar
use is very brief and has a lower normal source level than hull-mounted
active sonars, it is extremely unlikely its use would have any effect
on marine mammals. However, the AN/AQS-22 dipping sonar was modeled
based on estimated use during major training exercises within the SOCAL
Range Complex.
Extended Echo Ranging and Improved Extended Echo Ranging (EER/IEER)
Systems--EER/IEER are airborne 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 sonar ``ping'' (actually small explosive
detonation) and the passive AN/SSQ-101A ADAR Sonobuoy would ``listen''
for the return echo of the sonar 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 sonobuoy pairs are dropped
from a fixed-wing aircraft into the ocean in a predetermined pattern
with a few buoys covering a very large area. The AN/SSQ-110A Sonobuoy
Series is an expendable and commandable sonobuoy. 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. The AN/
SSQ-110A is listed in this table because it functions like a sonar
ping, however, the source creates an explosive detonation and its
effects are considered in the underwater explosive section.
Torpedoes--Torpedoes are the primary ASW weapon 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, exploiting the
emitted sound energy by the target, or actively, by reflecting a sonar
signal off the target and using the received echoes for guidance. The
MK-48 torpedo was modeled for active sonar transmissions during
specified training operations within the SOCAL Range Complex. The MK-48
sonar with a higher source level was also conservatively used to
account for MK-46 torpedo exercises.
Other Acoustic Sources--The Navy also utilizes the sources listed
below in ASW exercises. However, based on operational characteristics
(such as frequency and source level), the Navy determined that use of
the following acoustic sources would not likely result in the take of
marine mammals:
Acoustic Device Countermeasures (ADC)--Several types of
acoustic counter measure devices could be deployed during Fleet
training exercises, including the free-floating submarine launched
Acoustic Device Countermeasure (MK-1, MK-2, MK-3, MK-4), the free-
floating submarine launched Noise Acoustic Emitter (NAE), and the
surface ship towed AN/SLQ-25A (NIXIE). Countermeasure devices are
submarine simulators and act as decoys to avert localization and
torpedo attacks.
Training Targets--ASW training targets consisting of MK-30
and/or MK-39 EMATT are used to simulate opposition submarines. They are
equipped with one or a combination of the following devices: (1)
Acoustic projectors emanating sounds to simulate submarine acoustic
signatures; (2) echo repeaters to simulate the characteristics

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of the echo of a particular sonar signal reflected from a specific type
of submarine; and (3) magnetic sources to trigger magnetic detectors.
Range Sources. Range pingers are active acoustic devices
that allow each of the in-water platforms on the range (e.g., ships,
submarines, target simulators, and exercise torpedoes) to be tracked by
the instrumented range hydrophones on the Southern California ASW Range
(SOAR) west of San Clemente Island. In addition to passively tracking
the pinger signal from each range participant, the range transducer
nodes also are capable of transmitting acoustic signals for a limited
set of functions. These functions include submarine warning signals,
acoustic commands to submarine target simulators (acoustic command
link), and occasional voice or data communications (received by
participating ships and submarines on range).

Types of ASW Exercises in the SOCAL

The Navy's ASW training plan, including the use of active sonar in
at-sea training scenarios, includes multiple levels of training.
Independent Unit-level ASW training (such as TRACKEX and TORPEX
exercises) addresses basic skills such as detection and classification
of contacts, distinguishing discrete acoustic signatures including
those of ships, submarines, and marine life, and identifying the
characteristics, functions, and effects of controlled jamming and
evasion devices.
The Navy must execute training involving ships, aircraft,
submarines, and Marine Corps forces operating in multiple dimensions
(at sea, undersea, in the air, and on land) in order to ensure the
readiness of naval forces. Unit training proceeds on a continuum,
ranging from events involving a small number of ships, submarines, or
aircraft engaged in training tailored to specific tasks, to large-scale
pre-deployment or readiness exercises involving Strike Groups.
Exercises involving an entire Strike Group are referred to as major
range events (JTFEX and COMPTUEX). Smaller, integrated unit-level
exercises are complex events (SHAREM, IAC2, or sustainment exercise),
but of lesser scope than major range events, which pursue tailored
training objectives for components of a Strike Group. It is useful to
view larger exercises as being composed of individual training events
conducted in a coordinated fashion. For example, the ASW portions of a
major range event might include multiple TRACKEX and TORPEX events,
conducted simultaneously with aviation or amphibious training. Table 2,
at the end of this section, summarizes the exercise types (both sonar
and explosive) and they are further described below. Note that the
names and exact composition of these exercises may change, however, the
basic components are described here and the total hours of sonar sound
source and explosive use will not exceed those described in this
document.

Antisubmarine Warfare Tracking Exercise (TRACKEX)

A TRACKEX, which is an independent unit-level exercise, tests the
Naval Strike Group's (NSG) ability to locate and track an unknown or
hostile submarine over a predetermined time. This operation tests the
NSG's ability to coordinate the positioning of assets including
surface, air, and subsurface, and the effective communication and
turnover of responsibility for maintaining coverage of the unknown
submarine.
The TRACKEX-surface involves a surface ship employing hull mounted
and/or towed array sonar against a target which may be an Expendable
Mobile Anti-submarine Warfare Training Target (EMATT) or live
submarine. The target may be either non-evading and assigned to a
specified track or fully evasive depending on the state of training of
the ship and crew. Passive and active sonar may be employed depending
on the type of threat submarine, the tactical situation, and water
conditions that may affect sonar effectiveness. Active sonar transmits
at varying power levels, pulse types, and intervals, while passive
sonar listens for noise emitted by the threat submarine. Passive sonar
is typically employed first for tactical reasons, followed by active
sonar to determine an exact target location; however, active sonar may
be employed during the initial search phase against an extremely quiet
submarine or in situations where the water conditions do not support
acceptable passive reception. There is no ordnance expended in this
exercise. An ASW TRACKEX-Surface usually lasts two to four hours.
This exercise may involve a single ship, or may be undertaken in
the context of a coordinated larger exercise involving multiple
aircraft and/or ships, including a major range event.
The Navy also conducts Submarine TRACKEX exercises. However, during
this event, passive sonar is used almost exclusively; active sonar use
is tactically proscribed because it would reveal the tracking
submarine's presence to the target submarine.

Torpedo Exercise (TORPEX)

Anti-submarine Warfare Torpedo Exercises (ASW TORPEX) operations,
which are independent unit-level exercises, train crews in tracking and
attack of submerged targets, firing one or two exercise torpedoes
(EXTORPs) or recoverable exercise torpedoes (REXTORPs). TORPEX targets
used in the Offshore Areas include live submarines, MK 48 torpedoes,
MK-30 ASW training targets, and MK-39 Expendable Mobile ASW Training
Targets (EMATT). The target may be non-evading while operating on a
specified track, or it may be fully evasive, depending on the training
requirements of the operation.
The ASW TORPEX-Surface involves a surface ship using hull-mounted
and towed sonar arrays to search for, detect, classify, localize, and
track a simulated threat submarine. Submarines periodically conduct
TORPEXs within the SOCAL Range Complex. Typical duration of a submarine
TORPEX exercise is 10 hours, while air and surface ASW platform TORPEX
operations are considerably shorter.

Ship ASW Readiness and Evaluation Measuring (SHAREM)

SHAREM is a Chief of Naval Operations (CNO) chartered program with
the overall objective to collect and analyze high-quality data to
quantitatively ``assess'' surface ship ASW readiness and effectiveness.
The SHAREM is an integrated unit-level event and will typically involve
multiple ships, submarines, and aircraft in several coordinated events
over a period of a week or less. A SHAREM may take place once per year
in SOCAL.

Sustainment Exercise

Included in the FRTP is a requirement to conduct post-deployment
sustainment, training, and maintenance. The sustainment exercise, which
is an integrated unit-level exercise, ensures that the components of a
Strike Group maintain an acceptable level of readiness after returning
from deployment. A sustainment exercise is an exercise designed to
challenge the strike group in all warfare areas. This exercise is
similar to a COMPTUEX but of shorter duration. One to two sustainment
exercises may occur each year in SOCAL.

Integrated ASW Course Phase II (IAC2)

IAC2 exercises are combined aircraft and surface ship events. The
IAC2 consists of two 12-hour events conducted primarily on SOAR over a
2-3 day period. SOAR is an undersea warfare range providing
instrumented

[[Page 60841]]

three dimensional tracking over a 670 sq nm area within the large
Southern California Offshore Range (SCORE). The typical participants
include four helicopters, two P-3 aircraft, two adversary submarines,
and two Mk 30 or Mk 39 targets. Frequently, IAC2s include the
introduction of an off-range Mk 30 target. Four IAC2 exercises may
occur per year.

Major Range Events

The Navy conducts large-scale exercises, or major ranges events, in
the SOCAL Range Complex. These exercises are required for pre-
deployment certification of naval formations. The composition of the
force to be trained, and the nature of its mission upon deployment,
determines the scope of the exercise. The Navy currently conducts up to
eight major range events per year. Major range events bring together
the component elements of a Strike Group or Strike Force (that is, all
of the various ships, submarines, aircraft, and Marine Corps forces) to
train in complex command, control, operational coordination, and
logistics functions. Major range events require vast areas of sea space
and airspace for the exercise of realistic training, as well as land
areas for conducting land attack training events. The training space
required for these events is a function of naval warfighting doctrine,
which favors widely dispersed units capable of projecting forces and
firepower at high speeds across distances of up to several hundred
miles in a coordinated fashion, to concentrate on an objective. The
three-dimensional space required to conduct a major range event
involving a carrier strike group (CSG) or expeditionary strike group
(ESG) is a complicated polygon covering an area as large as 50,000 nm
\2\.
A major range event is comprised of several ``unit level'' range
operations conducted by several units operating together while
commanded and controlled by a single commander. These exercises
typically employ an exercise scenario developed to train and evaluate
the Strike Group/Force in required naval tactical tasks. In a major
range event, most of the operations and activities being directed and
coordinated by the Strike Group commander are identical in nature to
the operations conducted in the course of individual, crew, and
smaller-unit training events. In a major range event, however, these
disparate training tasks are conducted in concert, rather than in
isolation.
Major range events include:
Composite Training Unit Exercise (COMPTUEX). The COMPTUEX
is an Integration Phase, at-sea, major range event. For the CSG, this
exercise integrates the aircraft carrier and carrier air wing with
surface and submarine units in a challenging operational environment.
For the ESG, this exercise integrates amphibious ships with their
associated air wing, surface ships, submarines, and Marine
Expeditionary Unit. Live-fire operations that may take place during
COMPTUEX include long-range air strikes, Naval Surface Fire Support
(NSFS), and surface-to-air, surface-to-surface, and air-to-surface
missile exercises. The MEU also conducts realistic training based on
anticipated operational requirements and to further develop the
required coordination between Navy and Marine Corps forces. Special
Operations training may also be integrated with the exercise scenario.
The COMPTUEX is typically 21 days in length. The exercise is conducted
in accordance with a schedule of events, which may include two 1-day,
scenario-driven, ``mini'' battle problems, culminating with a scenario-
driven free play (as opposed to scripted) 3-day Final Battle Problem
where the strike group is required to respond to dynamic maneuvers.''
COMPTUEX occurs three to four times per year.
Joint Task Force Exercise (JTFEX). The JTFEX is a dynamic
and complex major range event that is the culminating exercise in the
Sustainment Phase training and certification event for the CSGs and
ESGs. For an ESG, the exercise incorporates an Amphibious Ready Group
(ARG) Certification Exercise (ARG CERT) for the amphibious ships and a
Special Operations Capable Certification (SOCCERT) for the MEU. When
schedules align, the JTFEX may be conducted concurrently for an ESG and
CSG. JTFEX emphasizes mission planning and effective execution by all
primary and support warfare commanders, including command and control,
surveillance, intelligence, logistics support, and the integration of
tactical fires. JTFEX is mostly a free-play (as opposed to scripted)
event. JTFEX is normally 10 days long, not including a 3-day in-port
Force Protection Exercise, and is the final at-sea exercise for the CSG
or ESG prior to deployment. JTFEX occurs three to four times per year.
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Activities Utilizing Underwater Detonations

Underwater detonation activities can occur at various depths
depending on the activity (sinking exercise [SINKEX] and mine
neutralization), but may also include activities which may have
detonations at or just below the surface (SINKEX, gunnery exercise
[GUNEX], or missile exercise [MISSILEX]). When the weapons hit the
target, except for live torpedo shot, there is no explosion in the
water, and so a ``hit'' is not modeled (i.e., the energy (either
acoustic or pressure) from the hit is not expected to reach levels that
would result in take of marine mammals). When a live weapon misses, it
is modeled as exploding below the water surface at 1 ft (5-inch naval
gunfire, 76-mm rounds), 2 meters (Maverick, Harpoon, MK-82, MK-83, MK-
84), or 50 ft (MK-48 torpedo) as shown in Appendix A of the Navy's
application, Table A-7 (the depth is chosen to represent the worst case
of the possible scenarios as related to potential marine mammals
impacts). Exercises may utilize either live or inert ordnance of the
types listed in Table 3. Additionally, successful hit rates are known
to the Navy and are utilized in the effects modeling. Training events
that involve explosives and underwater detonations occur throughout the
year and are described below and summarized in Table 2.
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Sinking Exercise (SINKEX)

In a SINKEX, a specially prepared, deactivated vessel is
deliberately sunk using multiple weapons systems. The exercise provides
training to ship and aircraft crews in delivering both live and inert
ordnance on a real target. These target vessels are empty, cleaned, and
environmentally remediated ship hulk (i.e., a hulk that has been
stripped of all hazardous materials and potential marine water
contaminants in accordance with the requirements of 40 CFR 229.2
[Transport of target vessels]). A SINKEX target is towed to sea and set
adrift at the SINKEX location. The duration of a SINKEX is
unpredictable since it ends when the target sinks, sometimes
immediately after the first weapon impact and sometimes only after
multiple impacts by a variety of weapons. Typically, the exercise lasts
for 4 to 8 hours over 1 to 2 days. SINKEXs occur only occasionally
during SOCAL Range Complex exercises.
Some or all of the following weapons may be employed in a SINKEX:
Three HARPOON surface-to-surface and air-to-surface
missiles.
Two to eight air-to-surface Maverick missiles.
Two to four MK-82 General Purpose Bombs.
Two Hellfire air-to-surface missiles.
One SLAM-ER air-to-surface missile.
Two-hundred and fifty rounds for a 5-inch gun.
One MK-48 heavyweight submarine-launched torpedo.

Air-to-Surface Gunnery Exercise (A-S GUNEX)

Air-to-Surface GUNEX operations, which may be conducted in W291,
are conducted by fixed or rotary-wing aircraft against stationary
targets (Floating at-sea Target [FAST] and smoke buoy). Rotary-wing
aircraft involved in this operation would include a single SH-60 using
either 7.62-mm or .50-caliber door-mounted machine guns. A typical A-S
GUNEX will last approximately one hour and involve the expenditure of
approximately 400 rounds of 0.50-caliber or 7.62-mm ammunition. Due to
the inert nature of the ammunition and the small size of the rounds,
they are not considered to have an underwater detonation impact.

Surface-to-Surface Gunnery Exercise (S-S GUNEX)

Surface gunnery exercises (GUNEX) take place in the open ocean
(W291 and SOAR) to provide gunnery practice for Navy and Coast Guard
ship crews. This exercise may involve a single firing ship, or be
undertaken in the context of a coordinated larger exercise involving
multiple ships, including a major range event. GUNEX training
operations conducted in the Offshore OPAREA involve stationary targets
such as a MK-42 FAST or a MK-58 marker (smoke) buoy. The gun systems
employed against surface targets include the 5-inch, 76 millimeter
(mm), 57-mm, 25-mm chain gun, 20-mm Close-in Weapon System (CIWS), and
.50 caliber machine gun. Typical ordnance expenditure for a single
GUNEX is 21-70 rounds of 5-inch, 76-mm, or 57-mm ammunition, and
approximately 150 rounds of 25-mm or .50-caliber ammunition. Both live
and inert training rounds are used. After impacting the water, the
rounds and fragments sink to the bottom of the ocean. A GUNEX lasts up
to 2.5 hours, depending on target services and weather conditions. The
live 5-inch, 57-mm and 76-mm rounds are considered in the underwater
detonation modeling.
Naval Surface Fire Support exercises (NSFS), in which crews train
in naval gunnery against shore targets using the same ammunition as a
GUNEX, are included with GUNEX both in Table 2 and further discussion
(though separate mitigation is described in the Mitigation section).
NSFS may be conducted in SOAR, MIR, or SHOBA.

Air-to-Surface Missile Exercise (A-S MISSILEX)

The air-to-surface missile exercise (MISSILEX [A-S]) consists of
the attacking platform releasing a forward-fired, guided weapon at the
designated towed target. The exercise involves locating the target,
then designating the target, usually with a laser. MISSILEX (A-S)
training that does not involve the

[[Page 60844]]

release of a live weapon can take place if the attacking platform is
carrying a captive air training missile (CATM) simulating the weapon
involved in the training. The CATM MISSILEX is identical to a live-fire
exercise in every aspect except that a weapon is not released. The
operation requires a laser-safe range as the target is designated just
as in a live-fire exercise.
From 1 to 16 aircraft, carrying live, inert, or CATMs, or flying
without ordnance (dry runs) are used during the exercise. At sea,
seaborne powered targets (SEPTARs), Improved Surface Towed Targets
(ISTTs), and decommissioned hulks are used as targets. MISSILEX (A-S)
assets include helicopters and/or 1 to 16 fixed wing aircraft with air-
to-surface missiles and anti-radiation missiles (electromagnetic
radiation source seeking missiles). When a high-speed anti-radiation
missile (HARM) is used, the exercise is called a HARMEX. Targets
include SEPTARs, ISTTs, and excess ship hulks.

Surface-to-Surface Missile Exercise (S-S MISSILEX)

Surface-to-surface missile exercise (MISSILEX [S-S]) involves the
attack of surface targets at sea by use of cruise missiles or other
missile systems, usually by a single ship conducting training in the
detection, classification, tracking and engagement of a surface target.
Engagement is usually with Harpoon missiles or Standard missiles in the
surface-to-surface mode. Targets could include virtual targets or the
SEPTAR or ship deployed surface target. MISSILEX (S-S) training is
routinely conducted on individual ships with embedded training devices.
A MISSILEX (S-S) could include 4 to 20 surface-to-surface missiles,
SEPTARs, a weapons recovery boat, and a helicopter for environmental
and photo evaluation. All missiles are equipped with instrumentation
packages or a warhead. Surface-to-air missiles can also be used in a
surface-to-surface mode. MISSILEX (S-S) activities are conducted
withinW-291. Each exercise typically lasts five hours. Future MISSILEX
S-S could range from 4 to 35 hours.
S-S MISSILEX exercises only occur during SINKEX exercises, and the
hours of S-S MISSILEX are included in the total hours of SINKEX
indicated in Table 2.

Bombing Exercise (BOMBEX)

Fixed-wing aircraft conduct bombing exercise (BOMBEX [Sea])
operations against stationary targets (MK-42 FAST or MK-58 smoke buoy)
at sea. An aircraft will clear the area, deploy a smoke buoy or other
floating target, and then set up a racetrack pattern, dropping on the
target with each pass. A BOMBEX may involve either live or inert
ordnance.

Mine Warfare (MIW)/ Mine Countermeasures (MCM)

MIW is the naval warfare area involving the detection, avoidance,
and neutralization of mines to protect Navy ships and submarines, and
offensive mine laying in naval operations. A naval mine is a self-
contained explosive device placed in water to destroy ships or
submarines. Naval mines are deposited and left in place until triggered
by the approach of or a contact with an enemy ship, or are destroyed or
removed. Naval mines can be laid by purpose-built minelayers, other
ships, submarines, or airplanes. MIW training includes Mine
Countermeasures (MCM) Exercises and Mine Laying Exercises (MINEX). MCM
training is currently conducted on the Kingfisher Range and offshore
areas in the Tanner and Cortes Banks. MCM training engages ships' crews
in the use of sonar for mine detection and avoidance, and minefield
navigation and reporting. The proposed extension of the SOAR is
intended for use in such training. MINEX events involve aircraft
dropping inert training shapes, and less frequently submarine mine
laying. MINEX events are conducted on the MINEX Training Ranges in the
Castle Rock, Eel Point, China Point, and Pyramid Head areas offshore of
SCI.
Mine Neutralization operations involve the detection,
identification, evaluation, rendering safe, and disposal of mines and
unexploded ordnance (UXO) that constitutes a threat to ships or
personnel. Mine neutralization training can be conducted by a variety
of air, surface and sub-surface assets. Potential harassment would be
from underwater detonation.
Tactics for neutralization of ground or bottom mines involve the
diver placing a specific amount of explosives, which when detonated
underwater at a specific distance from a mine results in neutralization
of the mine. Floating, or moored, mines involve the diver placing a
specific amount of explosives directly on the mine. Floating mines
encountered by Fleet ships in open-ocean areas will be detonated at the
surface. In support of an expeditionary assault, divers and Navy marine
mammal assets deploy in very shallow water depths (10 to 40 feet) to
locate mines and obstructions. Divers are transported to the mines by
boat or helicopter. Inert dummy mines are used in the exercises. The
total net explosive weight used against each mine ranges from less than
1 pound to 20 pounds.
Various types of surveying equipment may be used during mine
detection. Examples include the Canadian Route Survey System that
hydrographically maps the ocean floor using multi-beam side scan sonar
and the Bottom Object Inspection Vehicle used for object
identification. These units can help in supporting mine detection prior
to Special Warfare Operations (SPECWAROPS) and amphibious exercises.
All demolition activities are conducted in accordance with
established Navy guidelines and procedures for disposal of explosives
at sea. Before any explosive is detonated, divers are transported a
safe distance away from the explosive.
Standard practices for tethered mines in the SOCAL Range Complex
require ground mine explosive charges to be suspended 10 feet below the
surface of the water.
Mine neutralization exercises would involve training using Organic
Airborne Mine Countermeasures (OAMCM) systems employed by helicopters
in simulated threat minefields with the goal of clearing a safe channel
through the minefield for the passage of friendly ships. Once a mine
shape is located, mine neutralization is simulated. Helicopters engaged
in MCM training would be configured with one or more of the following
systems:
AN/AQS-20 Mine Hunting System: The AQS-20 is an active
high resolution, side-looking, multibeam sonar system used for mine
hunting of deeper mine threats along the ocean bottom. It is towed by a
helicopter. A small diameter electromechanical cable is used to tow the
rapidly-deployable system that provides real-time sonar images to
operators in the helicopter.
AN/AES-1 Airborne Laser Mine Detection System (ALMDS):
ALMDS is a helicopter-mounted system that uses Light Detection and
Ranging (LIDAR) blue-green laser technology to detect, classify, and
localize floating and near-surface moored mines in shallow water.
AN/ALQ-220 Organic Airborne Surface Influence Sweep
(OASIS). OASIS is a helicopter deployed, towed-body, 10 ft long and 20
inches in diameter that is self-contained, allowing for the emulation
of magnetic and acoustic signatures of the ships.
Airborne Mine Neutralization System (AMNS): AMNS is a
helicopter-deployed underwater vehicle that searches for, locates, and
destroys mines. This vehicle is a self-propelled, unmanned, wire-guided
munition with

[[Page 60845]]

homing capability that expends itself during the mine destruction
process.
AN/AWS-2 Rapid Airborne Mine Clearance System (RAMCIS):
RAMICS is a helicopter-borne weapon system that fires a 30mm projectile
from a gun or cannon to neutralize surface and near-surface mines.
RAMICS uses LIDAR technology to detect mines.
Mine neutralization exercises also would involve shipboard MCM
systems, including the Remote Minehunting System (RMS). The RMS is an
unmanned, semi-submersible vehicle that tows a variable-depth sensor to
detect, localize, classify and identify mines. The RMS includes a
shipboard launch and recovery system.
Mine neutralization exercises also would involve submarine-deployed
MCM systems, the Long-term Mine Reconnaissance System (LMRS). The LMRS
employs a self-propelled underwater vehicle equipped with forward-
looking search sonar and side-looking classification sonar.
Locations proposed for mine neutralization training are: Pyramid
Cove; Northwest Harbor; Kingfisher Training Range; MTR-1, MTR-2, and
Advanced Research Project Agency (ARPA).
The unusual physical bathymetries, the low numbers of protected
species and the training routines at the sites where these exercises
are conducted combine with the unusual pressure-wave propagation
characteristics of the Northwest Harbor, where multiple charges are
used, to allow exceptionally reliable and effective mitigation
procedures. The exceptional reliability of visual detection of
protected species at these sites allows for complete mitigation within
a radius that extends out to the distance at which only the lowest
degree of temporary auditory threshold shift (onset-TTS) would be
expected to occur (if mitigation were not so effective at the site).
Therefore, the Navy and NMFS do not expect mine neutralization
exercises to result in the take of marine mammals and no take
authorization pursuant to this activity type has been proposed.

Shallow Water Minefield

Currently, the Navy conducts mine countermeasures (MCM) training on
two existing ranges in the SOCAL Range Complex: the Kingfisher Range
off SCI and the ARPA Training Minefield off La Jolla. The ARPA has
historically been used for shallow water submarine and MCM training,
and is the desired location for expanding MCM training. ARPA currently
supports the submarine training requirement for a shallow water
minefield to train in small object avoidance. Use of the ARPA shallow
water minefield would be expanded from its current use by submarines to
include surface ships and helicopters.
On the ARPA, 35 mine shapes approximately 30-35 inches in diameter,
constructed of cylinders weighted with cement, are placed approximately
500-700 yards apart, either moored (no drilling is required) or simply
set on the sea floor. Mine shapes are recoverable and replaceable, and
typically need maintenance or cleaning every two years.
In addition to expanded use of the ARPA, the Navy proposes to
establish an offshore shallow water minefield on Tanner Banks. The
training area would be approximately 2 by 3 nm in size. Mine shapes
like those used at ARPA would be placed on the ocean floor, with a
total of 15 mine shapes in three rows of five. This offshore MCM range
would be utilized by surface ships training to detect, classify and
localize underwater mines.
MCM training involving ships or helicopters typically employ mid-to
high-frequency navigation and mine detecting sonar systems. Once a mine
shape is located, mine neutralization is simulated. Surface ships
engaged in MCM training at ARPA and Tanner Banks MCM ranges would
utilize the Remote Mine Hunting System (RMS). The RMS is an unmanned,
semi-submersible vehicle that will be deployed from both the DDG-51
Class destroyer and the LCS. The RMS is launched and recovered by the
host ship using a davit system. After deployment, the RMS enters the
target zone to perform reconnaissance for bottom-laid mines. An area
search is conducted following an operator-programmed search pattern.
The RMS searches using low-power (< 85dB) acoustic sonar. Upon
detecting a mine, the RMS unit will localize and photograph the object
for classification, and then continue on its programmed search. When
the search portion of the mission is completed, the RMS will proceed to
a programmed location for recovery.
The exercises that will be conducted on these minefields have been
described in previous sections and any expected take of marine mammals
will be included when those exercise types are analyzed in later
sections. NMFS does not expect the actual expansion and formation of
the minefields to result in any take of marine mammals.

Shallow Water Training Range (SWTR) Extension

The SWTR component of the Proposed Action would provide underwater
instrumentation for two additional areas of the current SOAR, one
250nm\2\ (463-km\2\) area to the west of the already instrumented (deep
water) section, in the area of Tanner/Cortes Banks, and one 250 nm\2\
(463-km\2\) area between the deep water section and the southern
section of SCI (See Figure 2-3). Once in place, the new instrumentation
in the SWTR would expand the areas of the Navy's existing program on
SOAR to enhance the ability to use passive hydrophones to detect and
track marine mammals. If installed in these areas, use of the SWTR
would increase the use of these areas for ASW training involving MFAS.
The proposed instrumentation would be in the form of undersea
cables and sensor nodes. The cables and sensors would be similar to
those that instrument the current deep water range at (SOAR). The new
areas would form an integral SWTR capability for SOAR. The combination
of deep water and shallow water instrumentation would support a
seamless tracking interface from deep to shallow water, which is an
essential element of effective ASW training. The instrumented area
would be connected to shore via multiple trunk cables.
The SWTR instrumentation would be an undersea cables system
integrated with hydrophone and underwater telephone sensors, called
nodes, connected to each other and then connected by up to eight trunk
cable(s) to a land-based facility where the collected range data are
used to evaluate the performance of participants in shallow water
(120'-600'deep) training exercises. The basic proposed features of the
instrumentation and construction follow.
The transducer nodes are capable of both transmitting and receiving
acoustic signals from ships operating within the instrumented areas of
SOAR (a transducer is an instrument that converts one form of energy
into another [in this case, underwater sound into an electrical signal
or vice-versa]). Some nodes are configured to only support receiving
signals, some can both transmit and receive, and others are transmit-
only versions. The acoustic signals that are sent from the exercise
participants (e.g., submarines, torpedoes, ships) to the receive-
capable range nodes allow the position of the participants to be
determined and stored electronically for both real-time and future
evaluation. The transmit-capable nodes allow communication from the
range to ships or other devices that are being tracked. More
specifically:
The SWTR extension would consist of no more than 500
sensor nodes spread on the ocean floor over a 500-nm

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area. The distance between nodes would vary between 0.5nm and 3nm,
depending on water depth. Each sensor node would be similar on
construction to the existing SOAR instrumentation. The sensor nodes are
small spherical shapes of less than 6 inches in diameter. The sensors
would be either suspended up to 15 feet in the water column or lie flat
on the seafloor. Sensor nodes located in shallow water with a presence
of commercial fishing activity would have an additional protective
device surrounding or overlaying a sensor. These mechanical protective
devices would be 3-4 feet round or rectangular with a shallow height.
The final physical characteristics of the sensor nodes would be
determined based upon local geographic conditions and to accommodate
man-made threats such as fishing activity. Sensor nodes would be
connected to each other by interconnect cable (standard submarine
telecommunications cable with diameters less than 1 inch).
Approximately 900nm of interconnect cable would be deployed.
A series of sensor nodes would be connected via the
interconnect cable to an underwater junction box(es) located in diver-
accessible water depths. A junction box is rectangular in shape with
dimensions of 10-15 feet on each side. The junction box(es) would
connect to a shore-based facility via trunk cable(s) (submarine cables
up to 2 inch diameter with additional data capacity). The trunk
cable(s) eliminate the need to have numerous interconnect cables
running to shore. Up to 8 trunk cables with a combined length of 375nm
would be employed. Trunk cables would be protected in the sea-shore
area by horizontally directionally drilled pipes running beneath the
shoreline.
The interconnect and trunk cables would be deployed using
a ship with a length overall up to 300 feet. The trunk cable paths
would be routed through the deep water as much as is possible. Trunk
cable deployed in shallow water may require cable burial. Burial
equipment would cut (hard bottom) or plow (soft sediment) a furrow 4
inches (10 cm) wide by up to 36 inches deep. Burial equipment (tracked
vehicle or towed plow) would be deployed from a ship. The trunk cable,
which passes through the sea-shore area, would terminate in SOAR's
current cable termination facility (CTF) at West Cove. From there,
information gathered on the SWTR would be transmitted via an existing
microwave datalink to the Southern California Offshore Range (SCORE)
Range Operations Center (ROC) on Naval Air Station North Island. The
adjacent SOAR has a single junction box located outside the nearshore
area and places the trunk cable in a horizontally directionally drilled
bore that terminates on shore. The size of the SWTR may require up to 8
junction boxes and 8 trunk cables. Multiple horizontal bores are in the
SOAR. Every effort would be made to take advantage of any excess bore
capacity available in the SOAR.
The in-water instrumentation system would be structured to
achieve a long operating life, with a goal of 20 years and with a
minimum of maintenance and repair throughout the life-cycle. This is
due to the high cost of performing at-sea repairs on transducer nodes
and cables, the inherently long lead-time to plan, permit, fund and
conduct such repairs (6-18 months) and the loss of range capability
while awaiting completion. The long life performance would be achieved
by using high quality components, proven designs, and multiple levels
of redundancy in the system design. This includes back-up capacity for
key electronic components and fault tolerance to the loss of individual
sensors or even an entire sensor string. The use of materials capable
of withstanding long term exposure to high water pressure and salt
water-induced corrosion is also important. Periodic inspection and
maintenance in accessible areas also extends system life.
The Navy would submit cable area coordinates to the National
Geospatial Intelligence Agency (NGA) and request that the combined
SWTR/SOAR area be noted on charts within the appropriate warning area.
This area would be noted in the U.S. Coast Pilot as a Military
Operating Area (MOA), as are other areas on the West Coast. The Navy
may promulgate a Notice to Mariners (NOTMAR) and a Notice to Airmen
(NOTAM) within 72 hours of the training activities, as appropriate.
Installation of the SWTR instrumentation array may be done in
phases. For example, the Tanner Bank area could be installed first,
followed by the eastern area. The decision as to whether or not to
proceed in phases, how many phases, and the order in which the phases
are executed is based on multiple factors, including weather, ship
availability and capacity, production schedules for nodes and cable,
installation time, total environmental impact of installation, funding
availability, and efficiency.

RDT&E

Space and Naval Warfare Systems Center (SPAWARSYSCEN) conducts
research, development, testing, and evaluation (RDT&E), engineering,
and fleet support for command, control, and communications systems and
ocean surveillance in the SOCAL Range Complex, primarily in the
vicinity of SCI. Specific events include ship tracking and torpedo
tests, unmanned underwater vehicle (UUV) tests; and sonobuoy quality
assurance/quality control.
The San Diego Division of the Naval Undersea Warfare Center (NUWC)
is a Naval Sea Systems Command (NAVSEA) organization supporting the
Pacific Fleet. NUWC operates and maintains the SCI Underwater Range
(SCIUR). NUWC conducts tests, analysis, and evaluation of submarine USW
exercises and test programs. NUWC also provides engineering and
technical support for Undersea Warfare (USW) programs and exercises,
design cognizance of underwater weapons acoustic and tracking ranges
and associated range equipment, and provides proof testing and
evaluation for underwater weapons, weapons systems, and components.
Additional information on the Navy's proposed activities may be
found in the LOA Application and Appendix A of the Navy's SOCAL DEIS.

Description of Marine Mammals in the Area of the Specified Activities

The California Current passes through the SOCAL Range Complex,
creating a mixing of temperate and tropical waters, and making this
area one of the most productive ocean systems in the world (Hickey
1979, Hickey 1992, Daily et al. 1993, DoN 2002a). Because of this
productive environment, there is a rich marine mammal fauna, as
evidenced in abundance and species diversity (Leatherwood et al., 1988;
Bonnell and Dailey, 1993). In addition to many marine mammal species
that live in the area year-round and use the region's coasts and
islands for breeding and hauling out, there is a community of seasonal
residents and migrants. The narrow continental shelf along the Pacific
coast and the presence of the cold California Current sweeping down
from Alaska allows cold-water marine mammal species to reach nearshore
waters as far south as Baja California. The Southern California Bight
(SCB) is the major geological region occurring within the SOCAL Range
Complex and can be described as a complex combination of islands,
ridges, and basins that exhibit wide ranges in water temperature. San
Diego Bay, a naturally formed, crescent-shaped embayment is located
along the southern end of the SCB (Largier, 1995; DoN, 2000); the bay
provides habitat for a number of oceanic

[[Page 60847]]

and estuarine species as the ebb and flood of tides within the Bay
circulate and mix ocean and Bay waters, creating for distinct
circulation zones within San Diego Bay (see Chapter 2 of the
application for further detail regarding these zones) (Largier et al.,
1996; DoN, 2000).
Populations/stocks of forty-one marine mammal species have been
confirmed or may possibly occur in the study area off southern
California (see Table 4), including 34 cetacean (whales, dolphins, and
porpoises), six pinniped (seals, sea lions, and fur seals), and one
fissiped species (the sea otter, which is managed by the U.S. Fish and
Wildlife Service and will not be addressed further here). Information
on marine mammal occurrence at the Point Mugu Sea Range (just to the
north of the SOCAL Range Complex) is analyzed in Koski et al. (1998).
Temperate and warm-water toothed whales often change their distribution
and abundance as oceanographic conditions vary both seasonally (Forney
and Barlow, 1998) and interannually (Forney 2000). Forney and Barlow
(1998) noted significant north/south shifts in distribution for Dall's
porpoises, common dolphins, and Pacific white-sided dolphins, and they
identified significant inshore/offshore differences for northern right
whale dolphins and humpback whales. Several authors have noted the
impact of the El Ni[ntilde]o events of 1982/1983 and 1997/1998 on
marine mammal occurrence patterns and population dynamics in the waters
off California (Wells et al., 1990; Forney and Barlow, 1998; Benson et
al., 2002).
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[GRAPHIC] [TIFF OMITTED] TP14OC08.028

BILLING CODE 3510-22-C
The Navy has compiled information on the abundance, behavior,
status and distribution, and vocalizations of marine mammal species in
SOCAL Range Complex waters from peer reviewed literature, the Navy
Marine Resource Assessment for the SOCAL Operating Area, 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 DEIS for SOCAL (see
Availability). Additional information is available in NMFS Stock
Assessment Reports, which may be viewed at:

[[Page 60849]]

http://www.nmfs.noaa.gov/pr/sars/species.htm.

Species Not Considered Further

Killer whale, Southern Resident Stock--The Southern Resident stock
of killer whale is not likely to be present within Southern California.
This stock is most commonly seen in the inland waters of Washington
state and southern Vancouver Island; however, individuals from this
stock have been observed in Monterey Bay, California in January, 2000
and March, 2003, near the Farallon Islands in February 2005 and off
Point Reyes in January 2006 (Pacific Fishery Management Council (PFMC)
and NMFS 2006). Based on the above known information, there is a very
low likelihood of Southern Resident killer whales being present in the
action area, so this species will not be considered in greater detail.
North Pacific right whale--The likelihood of a North Pacific right
whale being present in the action area is extremely low. It may be the
most endangered of the large whale species (Perry et al. 1999) and
currently there is no reliable population estimate, although the
population in the eastern North Pacific Ocean is considered to be very
small, perhaps in the tens to low hundreds of animals. Despite many
years of systematic aerial and ship-based surveys for marine mammals
off the western coast of the U.S., only seven documented sightings of
right whales were made from 1990 through 2000 (Waite et al., 2003).
Based on this information, it is highly unlikely for this species to be
present in the action area. Consequently, this species will not be
considered in greater detail.
Steller sea lion (Eumetopias jubatus) Eastern Distinct Population
Segment--Steller sea lions are also not expected to be present in the
action area. Steller sea lions range along the North Pacific Rim from
northern Japan to California (Loughlin et al., 1984), with centers of
abundance and distribution in the Gulf of Alaska and Aleutian Islands,
respectively. In U.S. waters, there are two separate stocks of Steller
sea lions: an eastern U.S. stock, which includes animals east of Cape
Suckling, Alaska (144[deg] W longitude), and a western U.S. stock,
which includes animals at and west of Cape Suckling (Loughlin 1997).
The closest rookery to the action area is A[ntilde]o Nuevo Island,
which declined by 85% between 1970 and 1987 (LeBoeuf et al., 1991).
Steller sea lions are rarely sighted in Southern California waters and
have not been documented interacting with southern California fisheries
in over a decade. The last documented interaction with California-based
fisheries was in northern California, in 1994, with the California/
Oregon drift gillnet fishery (NMFS, 2000). The last sighting of a
Steller sea lion in Southern California was that of a subadult male
that was briefly on San Miguel Island in 1998 (Thorson et al., 1998).
For the reasons listed above, Steller sea lions are not likely to be
present in the action area, and will not be considered in greater
detail.

Marine Mammal Density Estimates

The southern California region has been systematically surveyed for
several years (1991-1993, 1996, 2001, 2005) by the National Marine
Fisheries Service (NMFS), both via aircraft (e.g., Carretta and Forney,
1993) and vessel (e.g., Ferguson and Barlow, 2003; Barlow, 2003;
Forney, 2007). The most recent vessel survey was conducted in the U.S.
Exclusive Economic Zone (EEZ) out to 300 nm offshore of California,
Oregon and Washington by NMFS in summer and fall 2005 (Barlow, 2007;
Forney, 2007). There has also been regional survey effort in the area
of the proposed action, particularly around San Clemente Island and in
extreme near shore areas (e.g., Carretta et al., 2000; Carretta, 2003).
Consequently there are several density estimates available for most
cetacean species in southern California.
For this LOA, NMFS Southwest Fisheries Science Center calculated
marine mammal density estimates based on compiled densities from vessel
surveys conducted from 1986 to 2005, and provided it to the Navy as
Government Furnished Information (GFI). A new multiple-covariate, line-
transect approach (Marques and Buckland, 2003) was used to account for
multiple factors that affect the distance at which cetaceans can be
seen in different conditions. Other computational procedures were as
described in Barlow (2007) and Forney (2007).
These density compilations prorate densities of ``unidentified''
species groups (such as unidentified dolphins, small whales, rorquals,
large whales, etc.) with densities of identified species, so likely
represent the most conservative densities at this time for the southern
California region. Densities are presented for warm (May-October) and
cold water (November-April) seasons north of 30[deg] N, which is the
southern extent of NMFS marine mammal survey cruises. Gray whale
densities were taken from Carretta et al. (2000), and are applicable
for January-April only. The geographic distributions of cetacean
species for which densities are available off southern California
overlap completely with all eight sonar areas (shown in Figure 3-1 of
the application), so further refinement of densities to sonar areas was
not necessary. Area 8 includes all areas outside the previous seven
areas that are within the quasi-rectangular region bounded in latitude
by 29[deg] N and 34[deg] N, and in longitude by 120[deg]30' W and
116[deg]30' W but is not indicated in Figure 3-1 of the application.
Pinniped at-sea density is not often known because pinniped
abundance is obtained via shore counts of animals at known rookeries
and haulouts. Therefore, densities of pinnipeds were derived quite
differently from those of cetaceans. Several parameters were identified
from the literature, including area of stock occurrence, number of
animals (which may vary seasonally) and season, and those parameters
were then used to calculate density. Once density per ``pinniped
season'' was determined, those values were prorated to fit the warm
water (May-October) and cold water (November-April) seasons. Pinniped
geographic distributions do not overlap all sonar areas, so density was
further refined as the percentage of each sonar area actually
overlapped by the species distribution. Determining density in this
manner is risky as the parameters used usually contain error (e.g.,
geographic range is not exactly known and needs to be estimated,
abundance estimates usually have large variances) and, as is true of
all density estimates, it assumes that animals are always distributed
evenly within an area which is likely never true. However, this remains
one of the few means available to determine at-sea density for
pinnipeds.
The detailed density estimate methods and results may be viewed in
Section 3.5 of the Navy's LOA application. Density and abundance are
summarized in Table 13.

Depth Distribution of Marine Mammals

There are limited depth distribution data for most marine mammals.
This is especially true for cetaceans, as they must be tagged at-sea
and by using a tag that either must be implanted in the skin/blubber in
some manner or adhere to the skin. There is slightly more data for some
pinnipeds, as they can be tagged while on shore during breeding or
molting seasons and the tags can be glued to the pelage rather than
implanted. There are a few different methodologies/techniques that can
be used to determine depth distribution percentages, but by far the
most widely used technique currently is the time-depth recorder. These
instruments are attached to the animal for a fairly short

[[Page 60850]]

period of time (several hours to a few days) via a suction cup or glue,
and then retrieved immediately after detachment or when the animal
returns to the beach. Depth information can also be collected via
satellite tags, sonic tags, digital tags, and, for sperm whales, via
acoustic tracking of sounds produced by the animal itself.
There are somewhat suitable depth distribution data for a few
marine mammal species. Sample sizes are usually extremely small, nearly
always fewer than 10 animals total and often only one or two animals.
Depth distribution information often must be interpreted from other
dive and/or preferred prey characteristics. Depth distributions for
species for which no data are available can be extrapolated from
similar species.
Density is nearly always reported for an area, e.g., animals/
km². Analyses of survey results using Distance Sampling
techniques include correction factors for animals at the surface but
not seen as well as animals below the surface and not seen. Therefore,
although the area (e.g., km\2\) appears to represent only the surface
of the water (two-dimensional), density actually implicitly includes
animals anywhere within the water column under that surface area.
Density assumes that animals are uniformly distributed within the
prescribed area, even though this is likely rarely true. Marine mammals
are usually clumped in areas of greater importance, for example, areas
of high productivity, lower predation, safe calving, etc. Density
estimates are typically derived for large areas by NMFS, for instance
the All California and Point Conception south stratas presented in
Forney and Barlow, 2007. Often scientific information on smaller scale
distribution and density within discrete areas such as the SOCAL
modeling areas used in the acoustic impact analysis is lacking and
larger scale densities have to be used as an approximate. The available
NMFS derived density estimates are therefore used in lieu of small
scale density estimates. In addition, as a further conservative
approach, these densities are evenly distributed across a given model
area since the degree of daily, seasonal, and yearly presence/absence
or spatial clumping is currently not well known for many species.
Assuming that marine mammals are distributed evenly within the
water column is not accurate. The ever-expanding database of marine
mammal behavioral and physiological parameters obtained through tagging
and other technologies has demonstrated that marine mammals use the
water column in various ways, with some species capable of regular deep
dives (<800 m) and others regularly diving to <200 m, regardless of the
bottom depth. Assuming that all species are evenly distributed from
surface to bottom is almost never appropriate and can present a
distorted view of marine mammal distribution in any region.
By combining marine mammal density with depth distribution
information, as is done for the SOCAL Range Complex, a more accurate
three-dimensional density estimate is possible. These 3-D estimates
allow more accurate modeling of potential marine mammal exposures from
specific noise sources. Complete details on species biological
parameters used in sonar and explosives modeling are provided in
Appendix F to the SOCAL DEIS.

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 MFAS/HFAS 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 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 loudness, or a 10 dB decrease in
noise as a halving of loudness. 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 active 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 group's hearing is estimated as being most sensitive is
represented in the flat part of the M-weighting functions developed for
each group. The functional groups and the associated frequencies are
indicated below (though, again, animals are less sensitive to sounds at
the outer edge of their functional range and most sensitive to sounds
of frequencies within a smaller range somewhere in the middle of their
functional hearing range):

[[Page 60851]]

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 MFAS/HFAS 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.
SEL = SPL + 10 log (duration in seconds).
As applied to MFAS/HFAS, 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 SOCAL Range
Complex utilizing MFAS/HFAS or underwater detonations. The Navy has
analyzed the potential impacts to marine mammals from training
activities in the SOCAL Range Complex, 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
SOCAL EIS, has determined that take of marine mammals incidental to
these non-acoustic components of SOCAL is unlikely 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
SOCAL Range Complex, so this determination is inapplicable for SOCAL).
More specifically, for activities involving sonar or underwater
detonations, NMFS' analysis will identify the probability of lethal
responses, physical trauma, sensory impairment (permanent and temporary

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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 June 21, 2008, Biological Opinion of the U.S. Navy's
proposal to conduct MFAS in the Hawaii Range Complex, NMFS presented a
conceptual model of the potential responses of endangered and
threatened species upon being exposed to MFAS/HFAS 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 Biological
Opinion of the U.S. Navy's proposal to conduct MFAS in the Hawaii Range
Complex.

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
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 on the onset of TTS 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

[[Page 60853]]

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 MFAS 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 MFAS/
HFAS 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 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). A
recent study by Nachtigall and Supin (2008) showed that false killer
whales adjust their hearing to compensate for ambient sounds and the
intensity of returning echolocation signals.

Nachtigall, P.E. and A.Y. Supin. 2008

As mentioned previously, the functional hearing ranges of
mysticetes, odontocetes, and pinnipeds underwater all encompass the
frequencies of the MFAS/HFAS sources used in the Navy's MFAS/HFAS
training exercises. Additionally, in almost all species, vocal
repertoires span across the frequencies of these MFAS/HFAS sources used
by the Navy. The closer the characteristics of the masking signal to
the signal of interest, the more likely

[[Page 60854]]

masking is to occur. For hull-mounted MFAS/HFAS--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 environmental 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 hypothalamus-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 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

[[Page 60855]]

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), NMFS also assumes that stress
responses could 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 (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 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 MFAS 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.
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

[[Page 60856]]

interpretations 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
MFAS 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 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 deterrents have 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

[[Page 60857]]

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 active 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
active 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 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 are not linear when compared to the 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) 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. The Pacific harbor porpoise, however, does not
normally occur within Southern California south of Point Conception,
and would therefore, not be exposed to Navy activities covered by this
proposed rule. 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)

[[Page 60858]]

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] TP14OC08.029

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. 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 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

[[Page 60859]]

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). Alternately, Ridgway et al. (2006) reported that increased
vigilance in bottlenose dolphins exposed to sound over a five day
period did not cause any sleep deprivation or stress effects such as
changes in cortisol or epinephrine levels.
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 to 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 active 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
whales (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 MFAS, 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 MFAS.
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 active 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 MFAS 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 active 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,

[[Page 60860]]

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 active 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 MFAS 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). As discussed in the Bahamas report (DOC/DON, 2001), there is
no likely association between the minke whale and spotted dolphin
strandings and the operation of MFAS.
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 active 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 active 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
(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):

[[Page 60861]]

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 MFAS 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 MFAS 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 MFAS 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 MFAS 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 active
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 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 (1,000 m) depth near a shoreline where there is a
rapid change in bathymetry on the order of 547 to 3,281 fathoms
(1,000--6,000 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 MFAS 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

[[Page 60862]]

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 active 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 to 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 MFAS. 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 active 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 of up to 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 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 active 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 MFAS (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).
Baird et al. (2008), in a beaked whale tagging study off Hawaii, showed
that deep dives are equally common during day or night, but ``bounce
dives'' are typically a daytime behavior, possibly associated with
visual predator avoidance (Baird et al. 2008). This may indicate that
``bounce dives'' are associated with something other than behavioral
regulation of dissolved nitrogen levels, which would be necessary day
and night.
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

[[Page 60863]]

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 SOCAL exercises there will be use of multiple sonar units in
areas where seven species of beaked whale species may be present. A
surface duct may be seasonally present in a limited area for a limited
period of time. Some exercises will occur in areas of high bathymetric
relief. However, none of the training events will take place in a
location having a constricted channel less than 35 miles wide or with
limited egress similar to the Bahamas (because none exist in the SOCAL
Range Complex). Consequently, not all five of the environmental factors
believed to contribute to the Bahamas stranding (mid-frequency active
sonar, beaked whale presence, surface ducts, steep bathymetry, and
constricted channels with limited egress) will be present during SOCAL
exercises. However, as mentioned previously, NMFS recommends caution
when steep bathymetry, surface ducting conditions, or a constricted
channel is present when mid-frequency active sonar is employed and
cetaceans (especially beaked whales) are present.

Exposure to Underwater Detonation of Explosives

Some of the Navy's training exercises include the underwater
detonation of explosives. For many of the exercises discussed, inert
ordnance is used for a subset of the exercises. For exercises that
involve ``shooting'' at a target that is above the surface of the
water, underwater explosions only occur when the target is missed,
which is the minority of the time (the Navy has historical hit/miss
ratios and uses them in their exposure estimates). The underwater
explosion from a weapon would send a shock wave and blast noise through
the water, release gaseous by-products, create an oscillating bubble,
and cause a plume of water to shoot up from the water surface. The
shock wave and blast 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 worse
impacts to an individual animal.
Injuries resulting from a shock wave take place at boundaries
between tissues of different density. 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 trauma
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 fatigue or damage
its hearing by causing decreased sensitivity (Ketten, 1995) (See Noise-
induced Threshold 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 is 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 would be expected to occur as a result
of exposure to a single explosive detonation).

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

[[Page 60864]]

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 SOCAL application are considered military readiness activities.
NMFS reviewed the proposed SOCAL activities and the proposed SOCAL
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 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''.
To address the concern above, NMFS and the Navy developed a
comprehensive 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 Stranding
Response Plan that NMFS and the Navy developed (see ``Additional
Measure 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 active
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 MFAS is powered down or shut down when detected animals are
within the specified powerdown or shutdown zone (for example, by
preparing to shut-down when animals are approaching, so as to implement
shut-down when they are 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). In their proposed mitigation, the Navy
has included measures to protect sea turtles--those measures are
included here as part of the Navy's proposed action. Although measures
to protect sea turtles are important, they are not required by the
MMPA, and therefore, will not be codified through this regulation or
required in any subsequent MMPA LOA. Measures to protect sea turtles
will, however, be addressed in the Endangered Species Act section 7
consultation.

General Maritime Measures for All Training at Sea

Personnel Training (for All Training Types)

The use of shipboard lookouts is a critical component of all Navy
protective measures. Lookout duties require that they report all
objects sighted in the water to the officer of the deck (OOD) (e.g.,
trash, a periscope, marine mammals, sea turtles) and all disturbances
(e.g., surface disturbance, discoloration) that may be indicative of a
threat to the vessel and its crew. There are personnel serving as
lookouts on station at all times (day and night) when a ship or
surfaced submarine is moving through the water.
All commanding officers (COs), executive officers (XOs),
lookouts, officers of the deck (OODs), junior OODs (JOODs), maritime
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare
(MIW) helicopter crews will complete the NMFS-approved Marine Species
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital
versatile disk (DVD). All bridge lookouts will complete both parts one
and two of the MSAT; part two is optional for other personnel. This
training addresses the lookout's role in environmental protection, laws
governing the protection of marine species, Navy stewardship
commitments and general observation information to aid in avoiding
interactions with marine species.
Navy lookouts will undertake extensive training in order
to qualify as a watchstander in accordance with the Lookout Training
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
Lookout training will include on-the-job instruction under
the supervision of a qualified, experienced lookout. 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). Personnel being trained as
lookouts can be counted among those listed below as long as supervisors
monitor their progress and performance.
Lookouts will be trained in the most effective means to
ensure quick and effective communication within the command structure
in order to facilitate implementation of protective measures if marine
species are spotted.

Operating Procedures & Collision Avoidance

Prior to major exercises, a Letter of Instruction,
Mitigation Measures Message or Environmental Annex to the Operational
Order will be issued to further disseminate the personnel training
requirement and general marine species protective measures.
COs 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.
While underway, surface vessels will have at least two
lookouts with binoculars; surfaced submarines will have at least one
lookout with binoculars. Lookouts already posted for safety of
navigation and man-overboard precautions may be used to fill this
requirement. As part of their regular duties, lookouts will watch for
and report to the OOD the presence of marine mammals and sea turtles.
On surface vessels equipped with a multi-function active
sensor, pedestal mounted ``Big Eye'' (20 x 10) binoculars will be
properly installed and in good working order to assist in the detection
of marine mammals and sea turtles in the vicinity of the vessel.
Personnel on lookout will employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
After sunset and prior to sunrise, lookouts will employ
Night Lookouts Techniques in accordance with the Lookout Training
Handbook (NAVEDTRA 12968-D).
While in transit, naval vessels will be alert at all
times, use extreme caution, and proceed at a ``safe speed'' so that the
vessel can take proper and effective action to avoid a collision with
any marine animal and can be stopped within a distance appropriate to
the

[[Page 60865]]

prevailing circumstances and conditions.
When whales have been sighted in the area, Navy vessels
will increase vigilance and take reasonable and practicable actions to
avoid collisions and activities that might result in close interaction
of naval assets and marine mammals. Actions may include changing speed
and/or direction and would be dictated by environmental and other
conditions (e.g., safety, weather).
Floating weeds and kelp, algal mats, clusters of seabirds,
and jellyfish are good indicators of sea turtles and marine mammals.
Therefore, increased vigilance in watching for sea turtles and marine
mammals will be taken where these are present.
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. Marine mammal detections will be
immediately reported to assigned Aircraft Control Unit for further
dissemination to ships in the vicinity of the marine species as
appropriate where it is reasonable to conclude that the course of the
ship will likely result in a closing of the distance to the detected
marine mammal.
All vessels will maintain logs and records documenting
training operations should they be required for event reconstruction
purposes. Logs and records will be kept for a period of 30 days
following completion of a major training exercise.

Measures for MFAS Operations

Personnel Training (for MFAS Operations)

All lookouts onboard platforms involved in ASW training
events will review the NMFS-approved Marine Species Awareness Training
material prior to use of mid-frequency active sonar.
All COs, XOs, and officers standing watch on the bridge
will have reviewed the Marine Species Awareness Training material prior
to a training event employing the use of mid-frequency active sonar.
Navy lookouts will undertake extensive training in order
to qualify as a watchstander in accordance with the Lookout Training
Handbook (Naval Educational Training [NAVEDTRA], 12968-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.
Lookouts will 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
species are spotted.

Lookout and Watchstander Responsibilities

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.
All surface ships participating in ASW training events
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 marine mammal lookouts.
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.
On surface vessels equipped with mid-frequency active
sonar, pedestal mounted ``Big Eye'' (20 x 110) binoculars will be
present and in good working order to assist in the detection of marine
mammals in the vicinity of the vessel.
Personnel on lookout will employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
After sunset and prior to sunrise, lookouts will employ
Night Lookouts Techniques in accordance with the Lookout Training
Handbook.
Personnel on lookout will 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.

Operating Procedures

A Letter of Instruction, Mitigation Measures Message, or
Environmental Annex to the Operational Order will be issued prior to
major exercises to further disseminate the personnel training
requirement and general marine mammal mitigation measures.
COs 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.
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.
During mid-frequency active sonar operations, personnel
will utilize all available sensor and optical systems (such as night
vision goggles) to aid in the detection of marine mammals.
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.
Aircraft with deployed sonobuoys will use only the passive
capability of sonobuoys when marine mammals are detected within 200 yds
(183 m) of the sonobuoy.
Marine mammal detections will be immediately reported to
assigned Aircraft Control Unit for further dissemination to ships in
the vicinity of the marine species as appropriate where it is
reasonable to conclude that the course of the ship will likely result
in a closing of the distance to the detected marine mammal.
Safety Zones--When marine mammals are detected by any
means (aircraft, shipboard lookout, or acoustically) within or closing
to inside 1,000 yds (914 m) of the sonar dome (the bow), the ship or
submarine will limit active transmission levels to at least 6 decibels
(dB) below normal operating levels. (A 6 dB reduction equates to a 75
percent power reduction. The reason is that decibel levels are on a
logarithmic scale, not a linear scale. Thus, a 6 dB reduction results
in a power level only 25 percent of the original power.)
Ships and submarines will continue to limit maximum
transmission levels by this 6-dB factor until the animal has been seen
to leave the area, has not been detected for 30 minutes, or the vessel
has transited more than 2,000 yds (1,829 m) beyond the location of the
last detection.

[[Page 60866]]

Should a marine mammal be detected within or closing to
inside 500 yds (457 m) of the sonar dome, active sonar transmissions
will be limited to at least 10 dB below the equipment's normal
operating level. (A 10 dB reduction equates to a 90 percent power
reduction from normal operating levels.) Ships and submarines will
continue to limit maximum ping levels by this 10-dB factor until the
animal has been seen to leave the area, has not been detected for 30
minutes, or the vessel has transited more than 2,000 yds (1,829 m)
beyond the location of the last detection.
Should the marine mammal be detected within or closing to
inside 200 yds (183 m) of the sonar dome, active sonar transmissions
will cease. Active sonar will not resume until the animal has been seen
to leave the area, has not been detected for 30 minutes, or the vessel
has transited more than 2,000 yds (457 m) beyond the location of the
last detection.
Special conditions applicable for dolphin and porpoise
only: If, after conducting an initial maneuver to avoid close quarters
with dolphin or porpoise, the OOD concludes that dolphin or porpoise
are deliberately closing to ride the vessel's bow wave, no further
mitigation actions would be necessary while the dolphin or porpoise
continue to exhibit bow wave riding behavior.
If the need for power-down should arise as detailed in
``Safety Zones'' above, the 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 dB active sonar was being operated).
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.
Active sonar levels (generally)--Navy will operate sonar
at the lowest practicable level, not to exceed 235 dB, except as
required to meet tactical training objectives.
Helicopters shall observe/survey the vicinity of an ASW
training event for 10 minutes before the first deployment of active
(dipping) sonar in the water.
Helicopters shall not dip their active sonar within 200
yds (183 m) of a marine mammal and shall cease pinging if a marine
mammal closes within 200 yds (183 m) of the sonar source after pinging
has begun.
Submarine sonar operators will review detection indicators
of close-aboard marine mammals prior to the commencement of ASW
training events involving MFAS.

Measures for Underwater Detonations

Surface-to-Surface Gunnery (5-inch, 76 mm, 20 mm, 25 mm and 30 mm
Explosive Rounds)

Lookouts will visually survey for floating weeds and kelp,
and algal mats which may be inhabited by immature sea turtles in the
target area. Intended impact shall not be within 600 yds (585 m) of
known or observed floating weeds and kelp, and algal mats.
For exercises using targets towed by a vessel or aircraft,
target-towing vessels/aircraft shall maintain a trained lookout for
marine mammals and sea turtles. If a marine mammal or sea turtle is
sighted in the vicinity, the tow aircraft/vessel will immediately
notify the firing vessel, which will suspend the exercise until the
area is clear.
A 600-yard radius buffer zone will be established around
the intended target.
From the intended firing position, trained lookouts will
survey the buffer zone for marine mammals and sea turtles prior to
commencement and during the exercise as long as practicable. Due to the
distance between the firing position and the buffer zone, lookouts are
only expected to visually detect breaching whales, whale blows, and
large pods of dolphins and porpoises.
The exercise will be conducted only when the buffer zone
is visible and marine mammals and sea turtles are not detected within
it.

Surface-to-Surface Gunnery (Non-Explosive Rounds)

Lookouts will visually survey for floating weeds and kelp,
and algal mats which may be inhabited by immature sea turtles in the
target area. Intended impact will not be within 200 yds (183 m) of
known or observed floating weeds and kelp, and algal mats.
A 200-yd (183 m) radius buffer zone will be established
around the intended target.
From the intended firing position, trained lookouts will
survey the buffer zone for marine mammals and sea turtles prior to
commencement and during the exercise as long as practicable. Due to the
distance between the firing position and the buffer zone, lookouts are
only expected to visually detect breaching whales, whale blows, and
large pods of dolphins and porpoises.
If applicable, target towing vessels will maintain a
lookout. If a marine mammal or sea turtle is sighted in the vicinity of
the exercise, the tow vessel will immediately notify the firing vessel
in order to secure gunnery firing until the area is clear.
The exercise will be conducted only when the buffer zone
is visible and marine mammals and sea turtles are not detected within
the target area and the buffer zone.

Surface-to-Air Gunnery (Explosive and Non-Explosive Rounds)

Vessels will orient the geometry of gunnery exercises in
order to prevent debris from falling in the area of sighted marine
mammals, sea turtles, algal mats, and floating kelp.
Vessels will expedite the recovery of any parachute
deploying aerial targets to reduce the potential for entanglement of
marine mammals and sea turtles.
Target towing aircraft shall maintain a lookout. If a
marine mammal or sea turtle is sighted in the vicinity of the exercise,
the tow aircraft will immediately notify the firing vessel in order to
secure gunnery firing until the area is clear.

Air-to-Surface Gunnery (Explosive and Non-Explosive Rounds)

If surface vessels are involved, lookouts will visually
survey for floating kelp, which may be inhabited by immature sea
turtles, in the target area. Impact shall not occur within 200 yds (183
m) of known or observed floating weeds and kelp or algal mats.
A 200-yd (183 m) radius buffer zone will be established
around the intended target.
If surface vessels are involved, lookout(s) will visually
survey the buffer zone for marine mammals and sea turtles prior to and
during the exercise.
Aerial surveillance of the buffer zone for marine mammals
and sea turtles will be conducted prior to commencement of the
exercise. Aerial surveillance altitude of 500 feet to 1,500 feet (ft)
(152-456 m) is optimum. Aircraft crew/pilot will maintain visual watch
during exercises. Release of ordnance through cloud cover is
prohibited: Aircraft must be able to actually see ordnance impact
areas.
The exercise will be conducted only if marine mammals and
sea turtles are not visible within the buffer zone.

Small Arms Training--(Grenades, Explosive and Non-Explosive Rounds)

Weapons will not be fired in the direction of known or
observed floating weeds or kelp, algal mats, marine mammals, sea
turtles.

[[Page 60867]]

Air-to-Surface At-Sea Bombing Exercises (Explosive and Non-Explosive)

If surface vessels are involved, trained lookouts will
survey for floating kelp, which may be inhabited by immature sea
turtles, and marine mammals. Ordnance shall not be targeted to impact
within 1,000 yds (914 m) of known or observed floating kelp, sea
turtles, or marine mammals.
A 1,000 yd (914 m) radius buffer zone will be established
around the intended target.
Aircraft will visually survey the target and buffer zone
for marine mammals and sea turtles prior to and during the exercise.
The survey of the impact area will be made by flying at 1,500 ft (152
m) or lower, if safe to do so, and at the slowest safe speed. Release
of ordnance through cloud cover is prohibited: Aircraft must be able to
actually see ordnance impact areas. Survey aircraft should employ most
effective search tactics and capabilities.
The exercise will be conducted only if marine mammals and
sea turtles are not visible within the buffer zone.

Air-to-Surface Missile Exercises (Explosive and Non-Explosive)

Ordnance shall not be targeted to impact within 1,800 yds
(1,646 m) of known or observed floating kelp, which may be inhabited by
immature sea turtles, or coral reefs.
Aircraft will visually survey the target area for marine
mammals and sea turtles. Visual inspection of the target area will be
made by flying at 1,500 (457 m) feet or lower, if safe to do so, and at
slowest safe speed. Firing or range clearance aircraft must be able to
actually see ordnance impact areas. Explosive ordnance shall not be
targeted to impact within 1,800 yds (1,646 m) of sighted marine mammals
and sea turtles.

Demolitions, Mine Warfare, and Mine Countermeasures (up to a 20-lb
Charge)

Exclusion Zones--All Mine Warfare and Mine Countermeasures
Operations involving the use of explosive charges must include
exclusion zones for marine mammals and sea turtles to prevent physical
and/or acoustic effects to those species. These exclusion zones shall
extend in a 700-yard arc (640 yd) radius around the detonation site.
Pre-Exercise Surveys--For Demolition and Ship Mine Countermeasures
Operations, pre-exercise survey shall be conducted within 30 minutes
prior to the commencement of the scheduled explosive event. The survey
may be conducted from the surface, by divers, and/or from the air, and
personnel shall be alert to the presence of any marine mammal or sea
turtle. Should such an animal be present within the survey area, the
exercise shall be paused until the animal voluntarily leaves the area.
The Navy will suspend detonation exercises and ensure the area is clear
for a full 30 minutes prior to detonation. Personnel will record any
protected species marine mammal and sea turtle observations during the
exercise as well as measures taken if species are detected within the
exclusion zone.
Post-Exercise Surveys--Surveys within the same radius shall also be
conducted within 30 minutes after the completion of the explosive
event.
Reporting--If there is evidence that a marine mammal or sea turtle
may have been stranded, injured or killed by the action, Navy training
activities will be immediately suspended and the situation immediately
reported by the participating unit to the Officer in Charge of the
Exercise (OCE), who will follow Navy procedures for reporting the
incident to Commander, Pacific Fleet, Commander, Navy Region Southwest,
Environmental Director, and the chain-of-command. The situation will
also be reported to NMFS (see Stranding Plan for details).

Mining Operations

Mining Operations involve aerial drops of inert training shapes on
target points. Aircrews are scored for their ability to accurately hit
the target points. This operation does not involve live ordnance. The
probability of a marine species being in the exact spot in the ocean
where an inert object is dropped is remote. However, as a conservative
measure, initial target points will be briefly surveyed prior to inert
ordnance release from an aircraft to ensure the intended drop area is
clear of marine mammals and sea turtles. To the extent feasible, the
Navy shall retrieve inert mine shapes dropped during Mining Operations.

Sink Exercise

The selection of sites suitable for Sink Exercises (SINKEXs)
involves a balance of operational suitability, requirements established
under the Marine Protection, Research and Sanctuaries Act (MPRSA)
permit granted to the Navy (40 Code of Federal Regulations Sec.
229.2), and the identification of areas with a low likelihood of
encountering Endangered Species Act (ESA) listed species. To meet
operational suitability criteria, locations must be within a reasonable
distance of the target vessels' originating location. The locations
should also be close to active military bases to allow participating
assets access to shore facilities. For safety purposes, these locations
should also be in areas that are not generally used by non-military air
or watercraft. The MPRSA permit requires vessels to be sunk in waters
which are at least 6,000 ft (1,829 m) deep and at least 50 nm from
land. In general, most listed species prefer areas with strong
bathymetric gradients and oceanographic fronts for significant
biological activity such as feeding and reproduction. Typical locations
include the continental shelf and shelf-edge.
The Navy has developed range clearance procedures to maximize the
probability of sighting any ships or protected species in the vicinity
of an exercise, which are as follows:
All weapons firing would be conducted during the period 1
hour after official sunrise to 30 minutes before official sunset.
A marine mammal exclusion zone with a radius of 1.0 nm
will be established around the target. An additional safety zone with
radius of 2.0 nm surrounding the target will be monitored. If marine
mammals or sea turtles enter this 2.0 nm radius, they shall be
monitored to the extent practicable and no weapons release is
authorized until they are clear of the area
A series of surveillance overflights shall be conducted
prior to the event to ensure that no marine mammals or sea turtles are
present in the exclusion zone. Survey protocol will be as follows:
Overflights within the exclusion zone would be conducted
in a manner that optimizes the surface area of the water observed. This
may be accomplished through the use of the Navy's Search and Rescue
Tactical Aid, which provides the best search altitude, ground speed,
and track spacing for the discovery of small, possibly dark objects in
the water based on the environmental conditions of the day. These
environmental conditions include the angle of sun inclination, amount
of daylight, cloud cover, visibility, and sea state.
All visual surveillance activities would be conducted by
Navy personnel trained in visual surveillance. At least one member of
the mitigation team would have completed the Navy's marine mammal
training program for lookouts.
In addition to the overflights, the exclusion zone would
be monitored by passive acoustic means, when assets are available. This
passive acoustic monitoring would be maintained throughout the
exercise. Potential assets

[[Page 60868]]

include sonobuoys, which can be utilized to detect any vocalizing
marine mammals (particularly sperm whales) in the vicinity of the
exercise. The sonobuoys would be re-seeded as necessary throughout the
exercise. Additionally, passive sonar onboard submarines may be
utilized to detect any vocalizing marine mammals in the area. The OCE
would be informed of any aural detection of marine mammals and would
include this information in the determination of when it is safe to
commence the exercise.
On each day of the exercise, aerial surveillance of the
exclusion and safety zones would commence 2 hours prior to the first
firing.
The results of all visual, aerial, and acoustic searches
would be reported immediately to the OCE. No weapons launches or firing
would commence until the OCE declares the safety and exclusion zones
free of marine mammals and threatened and endangered species.
If a protected species observed within the exclusion zone
is diving, firing would be delayed until the animal is re-sighted
outside the exclusion zone, or 30 minutes have elapsed. After 30
minutes, if the animal has not been re-sighted it would be assumed to
have left the exclusion zone. The OCE would determine if the listed
species is in danger of being adversely affected by commencement of the
exercise.
During breaks in the exercise of 30 minutes or more, the
exclusion zone would again be surveyed for any protected species. If
protected species are sighted within the exclusion zone, the OCE would
be notified, and the procedure described above would be followed.
Upon sinking of the vessel, a final surveillance of the
exclusion zone would be monitored for 2 hours, or until sunset, to
verify that no listed species were harmed.
Aerial surveillance would be conducted using helicopters
or other aircraft based on necessity and availability. The Navy has
several types of aircraft capable of performing this task; however, not
all types are available for every exercise. For each exercise, the
available asset best suited for identifying objects on and near the
surface of the ocean would be used. These aircraft would be capable of
flying at the slow safe speeds necessary to enable viewing of marine
vertebrates with unobstructed, or minimally obstructed, downward and
outward visibility. The exclusion and safety zone surveys may be
cancelled in the event that a mechanical problem, emergency search and
rescue, or other similar and unexpected event preempts the use of one
of the aircraft onsite for the exercise.
Every attempt would be made to conduct the exercise in sea
states that are ideal for marine mammal sighting, Beaufort Sea State 3
or less. In the event of a 4 or above, survey efforts would be
increased within the zones. This would be accomplished through the use
of an additional aircraft, if available, and conducting tight search
patterns.
The exercise would not be conducted unless the exclusion
zone could be adequately monitored visually.
In the unlikely event that any listed species are observed
to be harmed in the area, a detailed description of the animal would be
taken, the location noted, and if possible, photos taken. This
information would be provided to NMFS via the Navy's regional
environmental coordinator for purposes of identification (see the
Stranding Plan for detail).
An after action report detailing the exercise's time line,
the time the surveys commenced and terminated, amount, and types of all
ordnance expended, and the results of survey efforts for each event
would be submitted to NMFS.

Explosive Source Sonobuoys Used in EER/IEER (AN/SSQ-110A)

Crews will conduct visual reconnaissance of the drop area
prior to laying their intended sonobuoy pattern. This search should be
conducted below 457 m (500 yd) at a slow speed, if operationally
feasible and weather conditions permit. In dual aircraft operations,
crews are allowed to conduct coordinated area clearances.
Crews shall conduct a minimum of 30 minutes of visual and
aural monitoring of the search area prior to commanding the first post
detonation. This 30-minute observation period may include pattern
deployment time.
For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 914 m (1,000 yd) of
observed marine mammal activity, deploy the receiver ONLY and monitor
while conducting a visual search. When marine mammals are no longer
detected within 914 m (1,000 yd) of the intended post position, co-
locate the explosive source sonobuoy (AN/SSQ-110A) (source) with the
receiver.
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 RF range of these sensors.
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.
Visual Detection--If marine mammals are visually detected
within 914 m (1,000 yd) 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 914 m (1,000
yd) safety buffer. Aircrews may shift their multi-static active search
to another post, where marine mammals are outside the 914 m (1,000 yd)
safety buffer.
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 914 m (1,000 yd) safety buffer, visually
clear of marine mammals, is maintained around each post as is done
during active search operations.
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.
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.
Mammal monitoring shall continue until out of own-aircraft
sensor range.
Additional Mitigation Measure 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
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 accomplishment of one
or more of the general goals listed below:

[[Page 60869]]

(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
and potential strandings. Ultimately, NMFS and the Navy developed the
proposed draft SOCAL Stranding Plan (summarized below), which we
believe supports (or contributes) to the goals mentioned in (a)-(e)
above.

Stranding Response Plan for Major Navy Training Exercises in the SOCAL
Range Complex

NMFS and the Navy have developed a draft Stranding Response Plan
for Major Exercises in the SOCAL Range Complex (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 in
the SOCAL Range Complex. 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 SOCAL Range Complex 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 that could occur in
the SOCAL Range Complex are related to, or caused by, Navy training
activities, absent a determination made in a Phase 2 Investigation as
outlined in the plan, indicating that MFAS or explosive detonation in
the SOCAL Range Complex 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 underwater detonations (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 SOCAL Range Complex,
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) of the live animal involved in the USE (NMFS and Navy will
maintain a dialogue, as needed, regarding the identification of the USE
and the potential need to implement shutdown procedures). This distance
is the approximate distance at which sound from the active sonar
sources is anticipated to attenuate to 145 dB (SPL). The risk function
predicts that less than 1 percent of the animals exposed to active
sonar at this level (mysticete or odontocete) would respond in a manner
that NMFS considers Level B Harassment.
Memorandum of Agreement (MOA)--The Navy and NMFS will develop a
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 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 SOCAL Range Complex.

[[Page 60870]]

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 1,000 yd (914 m), powerdown of 4 more dB (or 10 dB total) when a
marine mammal is detected within 500 yd (457 m), and will cease MFAS/
HFAS transmissions when a marine mammal is detected within 200 yd (183
m).
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 cetaceans and all pinnipeds except harbor seals would receive a
level of 215 dB SEL (threshold for PTS/injury/Level A Harassment) is
approximately 10 m (10.9 yd). The PTS threshold for harbor seals is 203
dB SEL, which has an associated distance of approximately 50 m.
NMFS believes that the probability that a marine mammal
would approach within the above distances 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 140 m from the source in most
operating environments (except for harbor seals for which the distance
is approximately 1,700 m).
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, social pelagic species (pilot whales, melon-headed
whales, etc.), and sea lions at some point within the 1,000 yd (914 m)
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, seals and more cryptic (animals that are
difficult to detect and observe), deep-diving cetaceans (beaked whales
and Kogia spp.) are less likely to be visually detected and could
potentially be exposed to levels of MFAS/HFAS expected to cause TTS.
Animals at depth in one location would not be expected to be
continuously exposed to repeated sonar signals, though, given the
typical 5-10+ knot speed of Navy surface ships during ASW event. During
a typical one-hour subsurface dive by a beaked whale, the ship will
have moved over 5 to 10 nm from the original location.
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. However, there are combinations of
factors that reduce the acoustic energy received by dolphins
approaching ships to ride in bow waves. Dolphins riding ship's bow wave
are outside of the main beam of the MFAS vertical beam pattern. Source
levels drop quickly outside of the main beam. Sidelobes of the radiate
beam pattern that point to the surface are significantly lower in
power. Together with spherical spreading losses, received levels in the
ship's bow wave can be more than 42 dB less than typical source level
(i.e., 235 dB-42 dB = 193 dB). Finally, bow wave riding dolphins are
frequently in and out of a bubble layer generated by the breaking bow
waves. This bubble layer is an excellent scatterer of acoustic energy
and can further reduce received energy.

Underwater Explosives

The Navy utilizes exclusion zones (wherein explosive detonation
will not begin/continue if animals are within the zone) for explosive
exercises. Table 3 indicates the various explosives, the estimated
distance at which animals will receive levels associated with take (see
Acoustic Take Criteria Section), and the exclusion zone associated with
the explosive types.
Mortality and Injury--NMFS believes that the mitigation measures
will allow the Navy to avoid exposing marine mammals to underwater
detonations that would result in injury or mortality for the following
reasons:
Surveillance for large charges (which includes aerial and
passive acoustic detection methods, when available, to ensure
clearance) begins two hours before the exercise and extends to 2 nm
(3,704 m) from the source. Surveillance for all charges extends out 2-
12 times the farthest distance from the source at which injury would be
anticipated to occur (see Table 3).
Animals would need to be within less than 193-723 m (211-
790 yd) (large explosives) or 24-158 m (26-173 yd) (smaller charges)
from the source to be injured.
Unlike for active sonar, an animal would need to be
present at the exact moment of the explosion(s) (except for the short
series of gunfire example in GUNEX) to be taken.
The model predicted only 34 and 7 animals would be exposed
to levels associated with injury and death, respectively (though for
the reasons above, NMFS does not believe they will be exposed to those
levels).
When the implementation of the exclusion zones (i.e., not
starting or continuing to detonate explosives if an animal is detected
within the exclusion zone) is combined with the above bullets, NMFS
believes that the Navy's mitigation will be effective for avoiding
injury and mortality to marine mammals from explosives.
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:
A number of animals were predicted to be exposed to
explosive levels that would result in TTS--and for the reasons above,
NMFS believes that most modeled TTS takes can be avoided, especially
dolphins, mysticetes and sperm whales, and social pelagic species.
However, pinnipeds and more cryptic, deep-diving species
(beaked whales and Kogia spp.) are less likely to be visually detected
and could potentially be exposed to explosive levels expected to cause
TTS.
Additionally, for two of the exercise types (SINKEX and
BOMBEX), the distance at which an animal would be expected to receive
sound or pressure levels associated with TTS (182 dB SEL

[[Page 60871]]

or 23 psi) is sometimes larger than the exclusion zone, which means
that for those two exercise types, some individuals will likely be
exposed to levels associated with TTS outside of the exclusion zone.
The Stranding Response Plan, another important component of the
mitigation measures for SOCAL, will minimize the probability of
distressed live-stranded animals responding to the proximity of active
sonar in a manner that further stresses them or increases the potential
likelihood of mortality.
NMFS has preliminarily determined that the Navy's proposed
mitigation measures (from the LOA application), along with 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

The Navy provides a significant amount of funding and support to
marine research. In the past five years the agency funded over $100
million ($26 million in FY08 alone) to universities, research
institutions, federal laboratories, private companies, and independent
researchers around the world to study marine mammals. The U.S. Navy
sponsors seventy percent of all U.S. research concerning the effects of
human-generated sound on marine mammals and 50 percent of such research
conducted worldwide. Major topics of Navy-supported research include
the following:
Better understanding of marine species distribution and
important habitat areas,
Developing methods to detect and monitor marine species
before and during training,
Understanding the effects of sound on marine mammals, sea
turtles, fish, and birds, and
Developing tools to model and estimate potential effects
of sound.
This research is directly applicable to Fleet training activities,
particularly with respect to the investigations of the potential
effects of underwater noise sources on marine mammals and other
protected species. Proposed training activities employ active sonar and
underwater explosives, which introduce sound into the marine
environment.
The Marine Life Sciences Division of the Office of Naval Research
currently coordinates six programs that examine the marine environment
and are devoted solely to studying the effects of noise and/or the
implementation of technology tools that will assist the Navy in
studying and tracking marine mammals. The six programs are as follows:
Environmental Consequences of Underwater Sound,
Non-Auditory Biological Effects of Sound on Marine
Mammals,
Effects of Sound on the Marine Environment,
Sensors and Models for Marine Environmental Monitoring,
Effects of Sound on Hearing of Marine Animals, and
Passive Acoustic Detection, Classification, and Tracking
of Marine Mammals.
The Navy has also developed the technical reports referenced within
this document, which include the Marine Resource Assessments and the
Navy OPAREA Density Estimates (NODE) reports. Furthermore, research
cruises by the National Marine Fisheries Service (NMFS) and by academic
institutions have received funding from the U.S. Navy.
The Navy has sponsored several workshops to evaluate the current
state of knowledge and potential for future acoustic monitoring of
marine mammals. The workshops brought together acoustic experts and
marine biologists from the Navy and other research organizations to
present data and information on current acoustic monitoring research
efforts and to evaluate the potential for incorporating similar
technology and methods on instrumented ranges. However, acoustic
detection, identification, localization, and tracking of individual
animals still requires a significant amount of research effort to be
considered a reliable method for marine mammal monitoring. The Navy
supports research efforts on acoustic monitoring and will continue to
investigate the feasibility of passive acoustics as a potential
mitigation and monitoring tool.
Overall, the Navy will continue to fund ongoing marine mammal
research, and is planning to coordinate long term monitoring/studies of
marine mammals on various established ranges and operating areas. The
Navy will continue to research and contribute to university/external
research to improve the state of the science regarding marine species
biology and acoustic effects. These efforts include mitigation and
monitoring programs; data sharing with NMFS and via the literature for
research and development efforts; and future research as described
previously.

Long-Term Prospective Study

Apart from this 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., active sonar, seismic, weather). The study will not be a true
``cohort'' study, because we will be unable to quantify or estimate
specific active sonar or other sound exposures for individual animals
that strand. However, a cross-sectional or correlational analysis, a
method of descriptive rather than analytical epidemiology, can be
conducted to compare population characteristics, e.g., frequency of
strandings and types of specific pathologies between general periods of
various anthropogenic activities and non-activities within a prescribed
geographic space. In the long-term study, 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 active sonar
transmission or other sound exposures and absence to evaluate
demographics of morbidity and mortality, lesions found, and cause of
death or stranding. Additional data that will be collected and analyzed
in an effort to control potential confounding factors include 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 active sonar or no seismic);

[[Page 60872]]

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 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 active 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 active sonar (need to be
able to accurately predict received level and report bathymetric
conditions, distance from source, and other pertinent information).
Pre-planned (i.e., well designed protocols in place) 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 SOCAL Range Complex

The Navy has submitted a draft Monitoring Plan for the SOCAL Range
Complex, 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 SOCAL has been designed as a
collection of focused ``studies'' (described fully in the SOCAL draft
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 SOCAL Range
Complex, do they redistribute geographically as a result of continued
exposure? If so, how long does the redistribution last?
(c) If marine mammals are exposed to MFAS, 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 five 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 6 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 SOCAL. 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).
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In addition to the Monitoring Plan for SOCAL, 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
MFAS and underwater detonations, for compliance with the terms and
conditions of ESA Section 7 consultations or MMPA authorizations;
Collect data to support estimating the number of
individuals exposed to sound levels above current regulatory
thresholds;
Assess the efficacy of the Navy's current marine species
mitigation;
Add to the knowledge base on potential behavioral and
physiological effects to marine species from mid-frequency active sonar
and underwater detonations; and,
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 SOCAL.

Past Monitoring in the SOCAL Range Complex

NMFS has received ten total after action reports (AARs) addressing
12 MFAS exercises in the SOCAL Range Complex since 2006 (the Navy has
only been required to submit reports to NMFS since 2006 pursuant to the
terms and conditions of the associated biological opinions). NMFS has
reviewed these reports and has summarized the results, as related to
marine mammal observations, in Table 7. 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 AARs may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

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General Conclusions Drawn From Review of Monitoring Reports

The data included in the after action reports provided by the Navy
thus far comes from Navy watchstander observations, not independent
aerial or vessel-based observers (though they would be required by
these regulations and any accompanying LOA (see Monitoring)), and
therefore 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

[[Page 60875]]

implementation of mitigation measures, but does not provide useful
species' specific information or behavioral data. Though a few
observations identified pilot or gray whales specifically, the vast
majority of the observations identified marine mammals as dolphins,
whales, large whales, small whales, sea lions, pinnipeds, or unknown.
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 reported by the Navy
watchstanders in their 704 marine mammal sightings totaling 7435
animals. 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. NMFS and Navy will work on this issue prior to the issuance
of the final rule for the SOCAL activities.

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 SOCAL
Range Complex 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 SOCAL Range Complex in the
Navy's over 70 years of use of the area for testing and training). 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 SOCAL Range Complex or other locations).
Results from specific stranding investigations (either
from the SOCAL Range Complex or other locations, and involving
coincident MFAS/HFAS or 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).
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 SOCAL Stranding Response
Plan contains more specific reporting requirements for specific
circumstances.

SINKEX, GUNEX, MISSILEX, BOMBEX, Mine Warfare/Countermeasures, and NSFS

A yearly report detailing the exercise's timeline, the time the
surveys commenced and terminated, amount, and types of all ordnance
expended, and the results of marine mammal survey efforts for each
event will be submitted to NMFS.

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 marine mammal
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
or Coordinated Training Exercise (Sustainment, IAC2, SHAREM, COMPTUEX,
or JTFEX). For other ASW exercises the Navy will submit a yearly
summary report. These reports will, at a minimum, include the following
information:
The estimated total number of hours of active sonar
operation and the types of sonar used in the exercise.
If possible, the total number of hours of observation
effort (including observation time when active 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:
[dec221] Species or animal type.
[dec221] Number of animals sighted.
[dec221] Location of marine mammal sighting (where not classified).
[dec221] Distance of animal from any operating active sonar
sources.
[dec221] Whether animal is fore, aft, port, starboard.
[dec221] Direction animal is moving in relation to source (away,
towards, parallel).

[[Page 60876]]

[dec221] Any observed behaviors of marine mammals.
The status of any active 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 type that the marine mammals were sighted
from.

Monitoring Report From Monitoring Plan

Although the draft Monitoring Plan for SOCAL contains a general
description of the monitoring that the Navy plans to conduct (and that
NMFS has analyzed) in the SOCAL Range Complex, the detailed analysis
and reporting protocols that will be used for the SOCAL monitoring plan
are still being refined at this time. The draft SOCAL Monitoring plan
may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
Navy will standardize data collection methods 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).

SOCAL 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 explosive exercises for which individual reports are
required. 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. The activities authorized by this LOA that are not
covered in this report (i.e., those that occur between June 2012 and
January 2014) will be covered in the comprehensive report of the next
5-yr regulations for SOCAL, if issued.

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, the Northwest Training Range Complex (NWTRC) and
the Marianas range Complex. This report will be submitted by June 2014,
covering activities that have occurred in these four ranges through
June 1, 2013. The Navy will respond to NMFS comments on the draft
comprehensive report if submitted within 3 months of receipt. The
report will be considered final after the Navy has addressed NMFS'
comments, or three months after the submittal of the draft if NMFS does
not comment by then.

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 SOCAL rulemaking and LOA process, where subsistence communities are
not present): (1) To set 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 (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 statutory 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
SOCAL Range Complex.

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 affect how an animal behaves
in response to the environment, including conspecifics, predators, and
prey. The

[[Page 60877]]

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 active 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 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 active 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 DEIS for SOCAL.

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

[[Page 60878]]

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 uPa2-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
1uPa, SD = 0.8) or 64 seconds (185-186 re 1uPa) 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 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)).
Harbor Seals (and closely related species)--183 dB re 1
[mu]Pa\2\-s
Northern Elephant Seals (and closely related species)--204
dB re 1 [mu]Pa\2\-s
California Sea Lions (and closely related species)--206 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 SOCAL LOA application. Because they
are both otariids, the California sea lion criteria is used to estimate
take of northern fur seals for this authorization.

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))
Harbor Seals (and closely related species)--203 dB re 1
[mu]Pa\2\-s
Northern Elephant Seals (and closely related species)--224
dB re 1 [mu]Pa\2\-s
California Sea Lions (and closely related species)--226 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.

[[Page 60879]]

(2007), as well as the Navy's SOCAL 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 (to the Navy
for the Rim of the Pacific Exercises (RIMPAC)). 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 2a and 2b) 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.
[GRAPHIC] [TIFF OMITTED] TP14OC08.054

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 data sets 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 recently tagged
whales in conjunction with the 2008 RIMPAC exercises. Until additional
data are available, however,

[[Page 60880]]

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 MFAS 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 F of the Navy's DEIS for SOCAL.
1. Controlled Laboratory Experiments with Odontocetes (SSC Data
set)--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 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 active 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 animals 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

[[Page 60881]]

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 MFAS (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 (except harbor porpoises) 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.
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[[Page 60882]]

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BILLING CODE 3510-22-C
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 MFAS) 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

[[Page 60883]]

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 SOCAL example, animals exposed to received levels between
120 and 130 dB may be 22-65 nm (41-120 km) from a sound source
depending on seasonal variations; 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 response of certain marine mammal species to mid-frequency
sound sources at that received level, NMFS does not currently have any
data that describe the response of marine mammals to mid-frequency
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 to 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 Seawolf 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 8. Additional information regarding
the derivation of these criteria is available in the Navy's DEIS for
the SOCAL and in the Navy's CHURCHILL FEIS (U.S. Department of the
Navy, 2001c).
[GRAPHIC] [TIFF OMITTED] TP14OC08.033

Estimates of Potential Marine Mammal Exposure

Estimating the take that will result from the proposed activities
entails the following four general steps: (1) Propagation model
estimates animals exposed to sources at different levels; (2) further
modeling determines number of exposures to levels indicated in criteria
above (i.e., number of takes); (3) post-modeling corrections refine
estimates to make them more accurate; and, (4) mitigation is taken into
consideration. More information regarding the models used, the
assumptions used in the models, and the process of estimating take is
available in Appendix F of the Navy's DEIS for SOCAL.
(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 number of animals that will be exposed to a range of levels of
pressure and energy (of the metrics used in the

[[Page 60884]]

criteria) from MFAS/HFAS and explosive detonations based on several
important pieces of information, including:

Characteristics of the sound sources.
[dec221] Active 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.
[dec221] Explosive source characteristics include: The weight of an
explosive, the type of explosive, the detonation depth, number of
successive explosions.
Transmission loss (in 13 representative environmental
provinces across 8 sonar modeling areas in two seasons) based on: Water
depth; sound speed variability throughout the water column (warm season
exhibits a weak surface duct, cold season exhibits a relatively strong
surface duct); bottom geo-acoustic properties (bathymetry); and wind
speed.
The estimated density of each marine mammal species in the
SOCAL (see Table 13), horizontally distributed uniformly and vertically
distributed according to dive profiles based on field data.

(2) 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.
(3) During the development of the EIS for SOCAL, NMFS and the Navy
determined that the output of the model could be made more realistic by
applying post-modeling corrections to account for the following:
Acoustic footprints for active sonar sources must account
for land masses (by subtracting them out).
Acoustic footprints for active sonar sources should not be
added independently, rather, the degree to which the footprints from
multiple ships participating in the same exercise would typically
overlap needs to be taken into consideration.
Acoustic modeling should account for the maximum number of
individuals of a species that could potentially be exposed to active
sonar within the course of 1 day or a discreet continuous sonar event
if less than 24 hours.
(4) Mitigation measures are taken into consideration by NMFS and
adjustments may be applied to the numbers produced by the Navy's
modeled estimates. For example, in some cases the raw modeled numbers
of exposures to levels predicted to result in Level A Harassment from
exposure to MFAS/HFAS might indicate that 1 fin whale would be exposed
to levels of active 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 9
contains the Navy's estimated take estimates.
(5) Last, 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 may vary from year to year, but will
not exceed the 5-year total indicated in Table 10 (by multiplying the
yearly estimate by 5) by more than 10 percent. NMFS estimates that a
10-percent increase in active sonar hours would result in approximately
a 10-percent increase in the number of takes, and we have considered
this possibility in our analysis.
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[[Page 60885]]

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[GRAPHIC] [TIFF OMITTED] TP14OC08.035

BILLING CODE 3510-22-C

Mortality

Evidence from five beaked whale strandings, all of which have taken
place outside the SOCAL Range Complex, and have occurred over
approximately a decade, suggests that the exposure of beaked whales to
MFAS in the presence of certain conditions (e.g., multiple units using
active sonar, steep bathymetry, constricted channels, strong surface
ducts, etc.) may result in strandings, potentially leading to
mortality. Although these physical factors believed to have contributed
to the likelihood of beaked whale strandings are not present, in their
aggregate, in the SOCAL Study Area, scientific uncertainty exists
regarding what other factors, or combination of factors, may contribute
to beaked whale strandings. Accordingly, to account for scientific
uncertainty regarding contributing causes of beaked whale strandings
and the exact behavioral or physiological mechanisms that can lead

[[Page 60886]]

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 MFAS during Navy exercises within the
SOCAL Range Complex.

Effects on Marine Mammal Habitat

The Navy's proposed training exercises could potentially affect
marine mammal habitat through the introduction of sound into the water
column, impacts to the prey species of marine mammals, bottom
disturbance, or changes in water quality. Each of these components was
considered in the SOCAL DEIS and was determined by the Navy to have no
effect 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 SOCAL training activities will not
have adverse or long-term impacts on marine mammal habitat. A summary
of the conclusions is included in subsequent sections.
There is no marine mammal critical habitat (designated under the
ESA) or known specific breeding areas within the SOCAL Range Complex
with the exception of pinnipeds (e.g., seals and sea lions). Much is
unknown about the specifics of dolphin mating, but it is presumed that
these species mate throughout their habitat and possibly throughout the
year. Even less is known about the mating habits of beaked whales. Most
of the offshore area within the SOCAL Range Complex study area could
potentially be utilized for active sonar activities or underwater
detonations. The Navy assumes that active sonar activities could take
place within potential mating areas of these toothed whale species
within SOCAL, although current state of knowledge is very limited and
there may be seasonal components to distribution that could account for
breeding activities outside of the SOCAL Range Complex. Baleen whales
and sperm whales breed in deep tropical and subtropical waters south
and west of the SOCAL Range Complex.
Unless the sound source or explosive detonation 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. Marine mammals may be temporarily displaced
from areas where Navy training is occurring, but the area will be
utilized again after the activities have ceased.

Effects on Food Resources

Fish
The Navy's DEIS includes a detailed discussion of the effects of
active 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, the vast majority of
fish species studied to date are hearing generalists and cannot hear
sounds above 500 to 1,500 Hz (0.5 to 1.5 kHz) (depending upon the
species), and therefore, there are not likely to be behavioral effects
on these species from higher frequency sounds such as MFAS/HFAS.
Moreover, even those marine species that may hear above 1.5 kHz, such
as a few sciaenids and the clupeids (and relatives), have relatively
poor hearing above 1.5 kHz as compared to their hearing sensitivity at
lower frequencies, so it is likely that the fish will only actually
hear the sounds if the fish and source were fairly close to one
another. And, finally, since the vast majority of sounds that are of
biological relevance to fish are below 1 kHz (e.g., Zelick et al.,
1999; Ladich and Popper, 2004), even if a fish detects a mid- or high-
frequency sound, these sounds will not likely mask detection of lower
frequency biologically relevant sounds. Thus, a reasonable conclusion,
even without more data, is that there will be few, and more likely no,
impacts on the behavior of fish from active sonar.
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 active 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.
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 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. However, most fish species experience a
large number of natural mortalities, especially during early life-
stages, and any small level of mortality caused by the SOCAL training
exercises involving explosives will likely be insignificant to the
population as a whole.

Invertebrates

Oceanographic features and bottom topography south of Point
Conception produce localized turbulence, mixing, and increased surface
nutrients which in turn support aggregations of primary and secondary
production such as krill (Euphausiids) (Fiedler et al., 1998). Off the
California coast, zooplankton biomass tends to reach its maximum
abundance in the summer months and main prey species for marine mammals
found within Southern California include Euphausia pacifica and
Thysanoessa spinifera both of which are relatively cold water species,
produced locally along the southern California coast (Brinton, 1976;
Brinton, 1981).

[[Page 60887]]

Swarms of E. pacifica are most abundant off Channel Island shelf edges
between 150-200 m during daylight, with vertical migration to the
surface at night (Fiedler et al., 1998). T. spinifera is a more coastal
species, highly favored by blue whales (Balaenoptera musculus), and
found during daylight from 50-150 m particularly on shelf areas
northwest of San Miguel Island, and north of Santa Rosa Island (Fiedler
et al., 1998).
Very little is known about sound detection and use of sound by
invertebrates (see Budelmann, 1992a, b; Popper et al., 2001 for
reviews). The limited data shows that some crabs are able to detect
sound, and there has been the suggestion that some other groups of
invertebrates are also able to detect sounds. In addition, cephalopods
(octopus and squid) and decapods (lobster, shrimp, and crab) are
thought to sense low-frequency sound (Budelmann, 1992b). Packard et
al., (1990) reported sensitivity to sound vibrations between 1-100 Hz
for three species of cephalopods. McCauley et al., (2000) found
evidence that squid exposed to seismic airguns show a behavioral
response including inking. However, these were caged animals, and it is
not clear how unconfined animals may have responded to the same signal
and at the same distances used. In another study, Wilson et al., (2007)
played back echolocation clicks of killer whales to two groups of squid
(Loligo pealeii) in a tank. The investigators observed no apparent
behavioral effects or any acoustic debilitation from playback of
signals up to 199 to 226 dB re 1 [mu]Pa. It should be noted, however,
that the lack of behavioral response by the squid may have been because
the animals were in a tank rather than being in the wild. In another
report on squid, Guerra et al. (2004) claimed that dead giant squid
turned up around the time of seismic airgun operations off of Spain.
The authors suggested, based on analysis of carcasses, that the damage
to the squid was unusual when compared to other dead squid found at
other times. However, the report presents conclusions based on a
correlation to the time of finding of the carcasses and seismic
testing, but the evidence in support of an effect of airgun activity
was totally circumstantial. Moreover, the data presented showing damage
to tissue is highly questionable since there was no way to
differentiate between damage due to some external cause (e.g., the
seismic airgun) and normal tissue degradation that takes place after
death, or due to poor fixation and preparation of tissue. To date, this
work has not been published in peer reviewed literature, and detailed
images of the reportedly damaged tissue are also not available.
In summary, baleen whales feed on the aggregations of krill and
small schooling fish within Southern California, while toothed whales
feed on epipelagic, mesoplegic, and bathypelagic fish and squid. As
summarized above and in the SOCAL Range Complex DEIS in more detail,
potential impacts to marine mammal food resources within the SOCAL
Range Complex is negligible given both lack of hearing sensitivity to
MFAS, the very geographic and spatially limited scope of most Navy at
sea activities including underwater detonations, and the high
biological productivity of these resources. No short or long term
effects to marine mammal food resources from Navy activities are
anticipated within the SOCAL Range Complex.

Bottom Disturbance

The current Shallow Water Training Range (SWTR) instrumentation is
to be extended out from SOAR, to include one 250-nm\2\ (463-km\2\) area
to the west in the area of the Tanner/Cortes Banks, and one 250-nm\2\
(463-km\2\) area between SOAR and the southern section of SCI. The SWTR
instrumentation is a system of underwater acoustic transducer devices,
called nodes, connected by cable to each other and to a land-based
facility where the collected range data are used to evaluate the
performance of participants in shallow water training exercises. The
transducer nodes are capable of both transmitting and receiving
acoustic signals from ships operating within the SWTR Extension.
Since the exact cable route has not been decided, it is not
possible to determine if sensitive habitat will be affected by the SWTR
Extension. The marine biological resource that could be most affected
is the white abalone, and anywhere the cable crosses between 65 to 196
ft (20 to 60 m) and there is rocky substrate, there is the possibility
of affecting white abalone or disrupting abalone habitat. Assuming that
rocky substrate is avoided throughout the cable corridor, the
activities that could affect marine biological resources are associated
with the construction of the SWTR Extension. Direct impact and
mortality of marine invertebrates at each node and from burial of the
trunk cable would occur. Assuming that 300 transducer nodes will be
used, approximately 65,400 ft2 (6,075 m\2\) of soft bottom habitat
would be affected, and also assuming that 14 nm (25.9 km) of the trunk
cable will be buried (assuming a width of 7.8 inches [20 cm], which is
twice the wide of the trench to account for sidecasted material),
approximately 55,757 ft2 (5,180 m\2\) of soft bottom habitat would be
affected. Soft bottom habitats are not considered sensitive habitats
and generally support lower biological diversity than hard substrate
habitats. Soft bottom organisms are also generally opportunistic and
would be expected to rapidly re-colonize the disturbed areas. Localized
turbidity during installation may also temporarily impact suspension
feeding invertebrates in the vicinity of the cable corridor and nodes.
Therefore, assuming that rocky substrate is avoided, impacts to marine
biological resources from the SWTR Extension are anticipated to be
minimal.

Water Quality

The SOCAL Range Complex EIS analyzed the potential effects to water
quality from sonobuoy, Acoustic Device Countermeasures (ADC), and
Expendable Mobile Acoustic Training Target (EMATT) batteries; explosive
packages associated with the explosive source sonobuoy (AN/SSQ-110A),
and Otto Fuel (OF) II combustion byproducts associated with torpedoes.
Expendable Bathythermographs do not have batteries and were not
included in the analysis. In addition, sonobuoys were not analyzed
since, once scuttled, their electrodes are largely exhausted during
operations and residual constituent dissolution occurs more slowly than
the releases from activated seawater batteries. As such, only the
potential effects of batteries and explosions on marine water quality
in and surrounding the sonobuoy operation area were completed. It was
determined that there would be no significant effect to water quality
from seawater batteries, lithium batteries, and thermal batteries
associated with scuttled sonobuoys. ADCs and EMATTs use lithium sulfur
dioxide batteries. The constituents in the battery react to form
soluble hydrogen gas and lithium dithionite. The hydrogen gas
eventually enters the atmosphere and the lithium hydroxide dissociates,
forming lithium ions and hydroxide ions. The hydroxide is neutralized
by the hydronium formed from hydrolysis of the acidic sulfur dioxide,
ultimately forming water. Sulfur dioxide, a gas that is highly soluble
in water, is the major reactive component in the battery. The sulfur
dioxide ionizes in the water, forming bisulfite (HSO3) that is easily
oxidized to sulfate in the slightly alkaline environment of the ocean.
Sulfur is present as sulfate in large quantities (i.e., 885 milligrams
per liter [mg/L]) in

[[Page 60888]]

the ocean. Thus, it was determined that there would be no significant
effect to water quality from lithium sulfur batteries associated with
scuttled ADCs and EMATTs.
Only a very small percentage of the available hydrogen fluoride
explosive product in the explosive source sonobuoy (AN/SSQ-110A) is
expected to become solubilized prior to reaching the surface and the
rapid dilution would occur upon mixing with the ambient water. As such,
it was determined that there would be no significant effect to water
quality from the explosive product associated with the explosive source
sonobuoy (AN/SSQ-110A).
OF II is combusted in the torpedo engine and the combustion
byproducts are exhausted into the torpedo wake, which is extremely
turbulent and causes rapid mixing and diffusion. Combustion byproducts
include carbon dioxide, carbon monoxide, water, hydrogen gas, nitrogen
gas, ammonia, hydrogen cyanide, and nitrogen oxides. All of the
byproducts, with the exception of hydrogen cyanide, are below the
United States Environmental Protection Agency (EPA) water quality
criteria. Hydrogen cyanide is highly soluble in seawater and dilutes
below the USEPA criterion within 6.3 m (20.7 ft) of the torpedo.
Therefore, it was determined there would be no significant effect to
water quality as a result of OF II.

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 10 (by multiplying the yearly
estimate by 5) by more than 10 percent. NMFS estimates that a 10
percent increase in active 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 active 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 will have a
negligible impact on the marine mammal species and stocks present in
the SOCAL Range Complex.

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 qualify 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
11) 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 hull-
mounted active 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.

[[Page 60889]]

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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 data gap regarding the effects of MFAS/HFAS on
marine mammals, not a lot is known regarding how marine mammals in the
SOCAL Range Complex will respond to MFAS/HFAS. For the 12 MTEs for
which NMFS has received a monitoring report, no instances of obvious
behavioral disturbance were observed by the Navy watchstanders in the
704 marine mammal sightings of 7435 animals (9000+ hours of effort,
though only 4 of the 12 reports reported the total number of hours of
observation). 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 spp.) 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
these regulations and any corresponding LOAs, 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 and NMFS conducted 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 active sonar (the highest
power source), approximately 27 percent of the hours of source use are
comprised of Unit Level Training or maintenance activities that occur
in events of 4 hours or less. Integrated Unit Level Training or Major
Training events typically last more than one day, however, active sonar
use is not continuous and the exercises take place over very large
areas, up to 50,000 nm²). Additionally, during times of
continuous sonar use (parts of some ASW exercises), vessels with hull-
mounted active sonar are typically moving at speeds of 10-12 knots.
NMFS believes that 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 9
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 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 (sources are
between 20 and 100 kHz, which means that TTS could range up to 200 kHz,
however, HF systems are typically used less frequently and for shorter
time periods

[[Page 60890]]

than surface ship and aircraft MF systems, so TTS from these sources is
even less likely). TTS from explosives would be broadband. Tables 12a
and 12b 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
140 m from the most powerful MFAS source, the AN/SQS-53 (the maximum
ranges to TTS from other sources would be less, as modeled for SOCAL).
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 an active 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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BILLING CODE 3510-22-C
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

[[Page 60892]]

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 12a and 12b), 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. 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 12 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 active 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 pings
last on average one second and occur about once every 24-30 seconds for
hull-mounted sources. When hull-mounted active 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 active sonar,
on the order of several microseconds to 10s of micro seconds. For hull-
mounted active 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; blue whale--1; gray whale--1: Long-beaked common
dolphin--1; short-beaked common dolphin--6; striped dolphin--1; and
Pacific harbor seal--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 of active sonar 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 (1093-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 34 total animals (dolphins and
pinnipeds) would be exposed to explosive detonations at levels that
could result in injury and that 4 dolphins and 7 pinnipeds would be
exposed to levels that could result in death--however, those estimates
do not consider mitigation measures. Because of the surveillance
conducted prior to and during the exercises, the associated exclusion
zones (see table 3 and the Mitigation section), and the distance within
which the animal would have to be from the explosive, NMFS does not
think that any animals will be exposed to levels of sound or pressure
from explosives that will result in injury or death.
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 active sonar versus the number of
hours of active sonar training that have been conducted, we suggest
that the probability is small that this will occur. Additionally, an
active 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.

40 Years of Navy Training Exercises Using MFAS/HFAS in the SOCAL Range
Complex

The Navy has been conducting MFAS/HFAS training exercises in the
SOCAL Range Complex for over forty years. Although monitoring
specifically in conjunction with training exercises to determine the
effects of active 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 SOCAL Range Complex
for approximately 25 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
active sonar with any regularity, more evidence would have been
detected over the 40-yr period.

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

[[Page 60893]]

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 percent 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 percent 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 percent
of the number of dolphins predicted by the Navy's acoustic analysis
might actually incur TTS.
For explosives, all TTS will likely not be avoided for any species
because for a couple of the larger explosives, the distance at which an
animal could incur TTS is somewhat greater than the Navy's exclusion
zone for a couple of the exercise types (see Table 3). 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 marine mammals are highly detectable, NMFS estimated
that 0-50 percent of the number of those species predicted by the
Navy's acoustic analysis might actually incur TTS.
When marine mammals are less than highly detectable, NMFS
estimated that 50-100 percent of the number of those species predicted
by the Navy's acoustic analysis might actually incur TTS.

Humpback Whale

Acoustic analysis indicates that up to 15 exposures of humpback
whales to sound levels likely to result in Level B harassment may occur
from MFAS/HFAS and explosives. This estimate represents the total
number of takes and not necessarily the number of individuals taken, as
a single individual may be taken multiple times over the course of a
year. These Level B takes are anticipated to be in the form of
behavioral disturbance as described in the Definition of Harassment:
Level B Harassment section section. Although 2 of the modeled Level B
Harassment takes were predicted to be in the form of TTS from MFAS/
HFAS, NMFS believes it is unlikely that any humpback whales will incur
TTS because of the distance within which they would have to approach
the active sonar source (depending on conditions, within a range of 140
m for the most powerful source), the fact that many animals will likely
avoid active sonar sources to some degree, and the high likelihood that
Navy monitors would detect these animals (due to their large size,
surface behavior, and pronounced blow) prior to an approach within this
distance and implement active sonar powerdown or shutdown. Acoustic
analysis estimates that no humpback whales will be exposed to MFAS/HFAS
sound levels likely to result in Level A harassment.
Modeling of the explosive sources predicts that no take of humpback
whales will result from the detonation of underwater explosives.
Humpback whales in southern California are primarily from the
Eastern North Pacific Stock. The current best estimate of population
size for this stock is 1,391 (Caretta et al., 2007). No areas of
specific importance for reproduction or feeding for humpback whales
have been identified in the SOCAL Range Complex.

Sei Whales and Bryde's Whales

Both Sei whales and Bryde's whales are considered rare in SOCAL
(less than 3 sightings in last 30 years, only one confirmed sighting in
California, respectively). Because of their very low density in the
area, the Navy's acoustic analysis indicates that no sei whales or
Bryde's whales will be exposed to sound levels or explosive detonations
likely to result in take and the Navy has not requested authorization
to take any individuals of these species.

Fin Whales

Acoustic analysis indicates that up to 167 exposures of fin whales
to sound levels likely to result in Level B harassment may result from
MFAS/HFAS and explosives. This estimate represents the total number of
takes and not necessarily the number of individuals taken, as a single
individual may be taken multiple times over the course of a year. These
Level B takes are anticipated to primarily be in the form of behavioral
harassment as described in the Definition of Harassment: Level B
Harassment section. Although 12 of the modeled Level B Harassment takes
were predicted to be in the form of TTS from MFAS/HFAS, NMFS believes
it is unlikely that any fin whales will incur TTS because of the
distance within which they would have to approach the MFAS source
(approximately 140 m for the most powerful source for TTS), the fact
that many animals will likely avoid active sonar sources to some
degree, and the likelihood that Navy monitors would detect these
animals prior to an approach within this distance and implement active
sonar powerdown or shutdown. Navy lookouts will likely detect a group
of fin whales because of their large size, mean group size (3), and
pronounced blow.
Acoustic analysis also predicted that 1 TTS take of fin whales from
explosives would occur. For the same reasons listed above, NMFS
anticipates that the Navy watchstanders would

[[Page 60894]]

likely detect these species and implement the mitigation to avoid
exposure. However, the range to TTS for a few of the larger explosives
is larger than the associated exclusion zones for BOMBEX, MISSILEX, or
SINKEX (see Table 3), and therefore NMFS anticipates that TTS might not
be entirely avoided during those exercises, so NMFS estimates that up
to 1 TTS take of a fin whale might result from explosive detonations.
Acoustic analysis estimates that no fin whales will be exposed to
MFAS/HFAS sound levels or explosives expected to result in injury or
death. Further, NMFS believes that many marine mammals would avoid
exposing themselves to the received levels necessary to induce injury
(and avoid getting as close to the vessel as they would need to: within
approximately 10 m (10.9 yd)) by moving away from or at least modifying
their path to avoid a close approach. Also, NMFS believes that the
mitigation measures would be effective at avoiding injurious exposures
to animal that approached within the explosive safety zone, especially
in the case of these large animals.
Fin whales in the Southern California Range Complex belong to the
California/Oregon/Washington stock. The best population estimate for
this stock is 2,099. No areas of specific importance for reproduction
or feeding for fin whales have been identified in the SOCAL Range
Complex.

Blue Whales

Acoustic analysis indicates that up to 609 exposures of blue whales
to MFAS/HFAS or explosive detonations at sound or pressure levels
likely to result in Level B harassment may occur. This estimate
represents the total number of takes and not necessarily the number of
individuals taken, as a single individual may be taken multiple times
over the course of a year. These Level B takes are anticipated to be
primarily in the form of behavioral disturbance as described in the
Definition of Harassment: Level B Harassment section. Although 67 of
the modeled Level B Harassment takes were predicted to be in the form
of TTS from MFAS/HFAS exposure, NMFS believes it is unlikely that any
blue whales will incur TTS because of the distance within which they
would have to approach the MFAS source (approximately 140 m for the
most powerful source for TTS), the fact that many animals will likely
avoid active sonar sources to some degree, and the likelihood that Navy
monitors would detect these animals prior to an approach within this
distance and implement active sonar powerdown or shutdown. Navy
lookouts will likely detect a group of blue whales given their large
size, average group size (2-3), and pronounced vertical blow. The
acoustic analysis also predicted that 1 animal would be exposed to
MFAS/HFAS sound levels that would result in Level A Harassment (PTS--
injury). However, for the same reasons listed above for TTS (and
because animals would need to approach within 10 m of the sonar dome),
NMFS does not believe that any animals will incur PTS or be otherwise
injured by MFAS/HFAS.
Acoustic analysis also predicted that 2 blue whales would be
exposed to sound or pressure from explosives at levels expected to
result in TTS. For the same reasons listed above, NMFS anticipates that
the Navy watchstanders would likely detect these species and implement
the mitigation to avoid exposure. However, the range to TTS for a few
of the larger explosives is larger than the associated exclusion zones
for BOMBEX, MISSILEX, or SINKEX (see Table 3), therefore NMFS
anticipates that TTS might not be entirely avoided during those
exercises, so NMFS estimates that up to 1 TTS take of a blue whale
might result from explosive detonations. Acoustic analysis estimates
that no blue whales will be exposed to explosive levels likely to
result in PTS or mortality.
Blue whales in the Southern California Range Complex belong to the
Eastern North Pacific stock. The best population estimate for this
stock is 1,744 (Caretta et al., 2007). No areas of specific importance
for reproduction or feeding for blue whales have been identified in the
SOCAL Range Complex.

Gray Whales

Acoustic analysis indicates that up to 5,460 exposures of gray
whales to MFAS/HFAS or explosive detonations at sound or pressure
levels likely to result in Level B harassment may occur. This estimate
represents the total number of takes and not necessarily the number of
individuals taken, as a single individual may be taken multiple times
over the course of a year. These Level B takes are anticipated to
primarily be in the form of behavioral disturbance as described in the
Definition of Harassment: Level B Harassment section section. Although
544 of the modeled Level B Harassment takes were predicted to be in the
form of TTS from MFAS/HFAS exposure, NMFS believes it is unlikely that
any gray whales will incur TTS because of the distance within which
they would have to approach the MFAS source (approximately 140 m for
the most powerful source for TTS, 10 m for injury), the fact that many
animals will likely avoid active sonar sources to some degree, and the
likelihood that Navy monitors would detect these animals prior to an
approach within this distance and implement active sonar powerdown or
shutdown. Navy lookouts will likely detect a group of gray whales given
their large size, pronounced blow and mean group size of about 3
animals. The acoustic analysis also predicted that 1 animal would be
exposed to MFAS/HFAS sound levels that would result in Level A
Harassment (PTS--injury). However, for the same reasons listed above
for TTS (and because animals would need to approach within 10 m of the
sonar dome), NMFS does not believe that any animals will incur PTS or
be otherwise injured by MFAS/HFAS.
Acoustic analysis also predicted that 7 gray whales would be
exposed to sound or pressure from explosives at levels expected to
result in TTS. For the same reasons listed above, NMFS anticipates that
the Navy watchstanders would likely detect these species and implement
the mitigation to avoid exposure. However, the range to TTS for a few
of the larger explosives is larger than the associated exclusion zones
for BOMBEX, MISSILEX, or SINKEX (see Table 3), and therefore NMFS
anticipates that TTS might not be entirely avoided during those
exercises, so NMFS estimates that up to 4 TTS take of a gray whale
might result from explosive detonations. Acoustic analysis predicts
that no gray whales will be exposed to explosive levels likely to
result either in Level A harassment or mortality.
Gray whales in the Southern California Range Complex belong to the
Eastern North Pacific stock, for which the best population estimate is
26,635 (Angliss and Outlaw, 2007). No areas of specific importance for
reproduction or feeding for gray whales have been identified in the
SOCAL Range Complex.

Minke Whales

Acoustic analysis indicates that up to 126 exposures of minke
whales to MFAS/HFAS or explosive detonations at sound or pressure
levels likely to result in Level B harassment may occur. This estimate
represents the total number of Level B takes and not necessarily the
number of individuals taken, as a single individual may be taken
multiple times over the course of a year. These Level B takes are
anticipated to be in the form of behavioral disturbance as described in
the Definition of Harassment: Level B

[[Page 60895]]

Harassment section. Although 16 of the modeled Level B Harassment takes
were predicted to be in the form of TTS from MFAS/HFAS exposure, NMFS
believes it is unlikely that all 16 whales will incur TTS because of
the distance within which they would have to approach the active sonar
source (approximately 140 m for the most powerful source), the fact
that many animals will likely avoid active 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
active sonar powerdown or shutdown. However, because of their cryptic
behavior/profile at the surface, NMFS believes that some animals may
approach undetected within the distance in which TTS would likely be
incurred (although, they can be detected well using passive acoustic
monitoring). Therefore, NMFS estimates that 0-16 Minke whales may incur
TTS from exposure to MFAS/HFAS.
As indicated in Table 12, known minke whale vocalizations are
largely below 1 kHz and would not likely overlap with MFAS/HFAS TTS,
which would be in the range of 2-20 kHz. 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.
Acoustic analysis predicts that no minke whales will be exposed to
MFAS/HFAS sound levels likely to result either in Level A harassment or
mortality. Additionally, acoustic analysis predicts that no take of
minke whales will result form exposure to explosive detonations. No
areas of specific importance for reproduction or feeding for minke
whales have been identified in the SOCAL Range Complex.
Minke whales in the Southern California Range Complex belong to the
California/Oregon/Washington stock, for which the best population
estimate is 823 (Barlow and Forney, 2007).

Sperm Whales

Acoustic analysis indicates that up to 148 exposures of sperm
whales to MFAS/HFAS or explosive detonations at sound or pressure
levels likely to result in Level B harassment may occur. This estimate
represents the total number of Level B takes and not necessarily the
number of individuals taken, as a single individual may be taken
multiple times over the course of a year. These Level B takes are
anticipated to primarily be in the form of behavioral disturbance as
described in the Definition of Harassment: Level B Harassment section.
Although 8 of the modeled Level B Harassment takes were predicted to be
in the form of TTS from MFAS/HFAS exposure, NMFS believes it is
unlikely that all eight whales will incur TTS because of the distance
within which they would have to approach the MFAS source (approximately
140 m for the most powerful source), the fact that many animals will
likely avoid active sonar sources to some degree, and the likelihood
that Navy monitors would detect some of these animals at the surface
prior to an approach within this distance and implement active sonar
powerdown or shutdown. 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 0-8 sperm whales may incur
some degree of TTS from exposure to MFAS/HFAS.
As indicated in Table 12, some (but not all) sperm whale
vocalizations might overlap with the MFAS/HFAS TTS frequency range (2-
20 kHz), which could potentially temporarily decrease an animal's
sensitivity to the calls of conspecifics or returning echolocation
signals. 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 sperm whales are predicted to be exposed to MFAS/HFAS
sound levels associated with PTS or injury.
Acoustic analysis also predicted that one sperm whale would be
exposed to sound or pressure from explosives at levels expected to
result in TTS. For the same reasons listed above, NMFS anticipates that
the Navy watchstanders would likely detect these species in most
instances and implement the mitigation to avoid exposure. However, the
range to TTS for a few of the larger explosives is larger than the
associated exclusion zones for BOMBEX, MISSILEX, or SINKEX (see Table
3), and therefore NMFS anticipates that TTS might not be entirely
avoided during those exercises, so NMFS estimates that up to one TTS
take of a sperm whale might result from explosive detonations. Acoustic
analysis predicts that no sperm whales will be exposed to explosive
levels likely to result either in Level A harassment or mortality.
No areas of specific importance for reproduction or feeding for
sperm whales have been identified in the SOCAL Range Complex. Sperm
whales in the Southern California Range Complex belong to the
California/Oregon/Washington stock, for which the best population
estimate is 1,233 (Caretta et al., 2007).

Pygmy and Dwarf Sperm Whales

Acoustic analysis indicates that up to 159 exposures of pygmy sperm
whales to MFAS/HFAS or explosive detonations at sound or pressure
levels likely to result in Level B harassment may occur. This estimate
represents the total number of Level B takes and not necessarily the
number of individuals taken, as a single individual may be taken
multiple times over the course of a year. These Level B takes are
anticipated to primarily be in the form of behavioral disturbance as
described in the Definition of Harassment: Level B Harassment section.
Sixteen of the modeled Level B Harassment takes were predicted to be in
the form of TTS from MFAS/HFAS exposure. NMFS believes it is unlikely
that all 16 whales will incur TTS because of the distance within which
they would have to approach the MFAS source (approximately 140 m for
the most powerful source) and the fact that many animals will likely
avoid active sonar sources to some degree. However, the likelihood that
Navy monitors would detect most of these animals at the surface prior
to an approach within this distance is low because of their small size,
non-gregarious nature, and cryptic behavior and profile. Therefore,
NMFS estimates that 8-16 pygmy sperm whales may incur some degree of
TTS from exposure to MFAS/HFAS.
As indicated in Table 12, some Kogia spp. vocalizations might
overlap with the MFAS/HFAS TTS frequency range (2-20 kHz), but the
limited information for Kogia sp. indicates that the majority of their
clicks are at a much higher frequency and that their maximum hearing
sensitivity is between 90 and 150 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 pygmy sperm whales are
predicted to be exposed to MFAS/HFAS sound levels associated with PTS
or injury.
Acoustic analysis also predicted that one pygmy sperm whale would
be exposed to sound or pressure from explosives at levels expected to
result in TTS. For the same reasons listed above, NMFS anticipates that
the Navy watchstanders would not always detect these species to
implement the mitigation to avoid exposure. Additionally, the range to
TTS for a few of the larger explosives is larger than the associated
exclusion zones for BOMBEX, MISSILEX, or SINKEX (see Table 3), and
therefore NMFS anticipates that TTS might not be

[[Page 60896]]

entirely avoided during those exercises, so NMFS estimates that one TTS
take of a pygmy sperm whale would result from explosive detonations.
Acoustic analysis predicts that no sperm whales will be exposed to
explosive levels likely to result either in Level A harassment or
mortality.
Dwarf sperm whales are considered rare in the SOCAL Range Complex
and no information is available to estimate the population size of
dwarf sperm whales off the U.S. West Coast (Caretta et al., 2007). NMFS
and the Navy do not anticipate take of this species occurring, but NMFS
is proposing to authorize 20 Level B Harassment takes for this species
annually to ensure MMPA compliance should the Navy unexpectedly
encounter an individual of this species while operating active sonar.
No areas of specific importance for reproduction or feeding for
pygmy or dwarf sperm whales have been identified in the SOCAL Range
Complex. Pygmy sperm whales in the Southern California Range Complex
belong to the California/Oregon/Washington stock, for which the most
recent population estimate is 247 (Caretta et al., 2007).

Beaked Whales

Due to the difficulty in differentiating Mesoplodon species from
each other, the management unit (California/Oregon/Washington stock of
Mesoplodont beaked whales) is defined to include all the mesoplodon
populations (Blainville's, Hubb's, Perrin's, pygmy, and ginkgo-toothed
beaked whales) and anticipated take of these 5 species is combined in
Table 9. Acoustic analysis indicates that 13 Baird's beaked whales, 428
Cuvier's beaked whales, and 131 Mesoplodon species will likely be
exposed to MFAS/HFAS or explosives at pressure or sound levels likely
to result in Level B harassment. The analysis also further estimates
that 97 unidentified beaked whales may be taken by Level B Harassment.
These estimates represent 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.
One (Baird's), 37 (Cuvier's), and 13 (Mesoplodon) of the modeled
Level B Harassment takes were predicted to be in the form of TTS from
MFAS/HFAS exposure. NMFS believes it is unlikely that all 51 beaked
whales will incur TTS because of the distance within which they would
have to approach the active sonar source (approximately 140 m for the
most powerful source) and the fact that many animals will likely avoid
active sonar sources to some degree. However, the likelihood that Navy
monitors would detect most of these animals at the surface prior to an
approach within this distance is low because of their non-gregarious
nature, cryptic behavior and profile, and the fact that they often dive
for up to an hour. Therefore, NMFS estimates that 1 Baird's, 19-37
Cuvier's, and 7-13 Mesoplodon beaked whales may incur some degree of
TTS from exposure to MFAS/HFAS.
As indicated in Table 12, some beaked whale vocalizations might
overlap with the MFAS/HFAS TTS frequency range (2-20 kHz), which could
potentially temporarily decrease an animal's sensitivity to the calls
of conspecifics or returning echolocation signals. 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 beaked whales
are predicted to be exposed to MFAS/HFAS sound levels associated with
PTS or injury.
Acoustic analysis also predicted that 3 Cuvier's and 1 Mesoplodon
beaked whale would be exposed to sound or pressure from explosives at
levels expected to result in TTS. For the same reasons listed above,
NMFS anticipates that the Navy watchstanders would not likely always
detect these species and implement the mitigation to avoid exposure.
Additionally, the range to TTS for a few of the larger explosives is
larger than the associated exclusion zones for BOMBEX, MISSILEX, or
SINKEX (see Table 3), therefore NMFS anticipates that TTS might not be
entirely avoided during those exercises. NMFS estimates that up to 1
TTS take of a Mesoplodon species and up to 3 TTS takes of a Cuvier's
beaked whale would result from explosive detonations. Acoustic analysis
predicts that no beaked whales will be exposed to explosive levels
likely to result either in Level A harassment or mortality.
No areas of specific importance for reproduction or feeding for
beaked whales have been identified in the SOCAL Range Complex. The
California/Oregon/Washington stock of Mesoplodon whales has estimated
population of 1,777 (Barlow and Forney, 2007). The population size of
the California/Oregon/Washington stock of Cuvier's beaked whale is
estimated at 4,342 (Barlow and Forney, 2007). The population size of
the California/Oregon/Washington stock of Baird's beaked whale is
estimated at 1,005 (Barlow and Forney, 2007).
As discussed previously, scientific uncertainty exists regarding
the potential contributing causes of beaked whale strandings and the
exact behavioral or physiological mechanisms that can potentially lead
to the ultimate physical effects (stranding and/or death) that have
been documented in a few cases. Although NMFS does not expect injury or
mortality of any of these seven species to occur as a result of the
MFAS/HFAS training exercises (see Mortality paragraph above), there
remains the potential for the operation of MFAS to contribute to the
mortality of beaked whales. Consequently, NMFS intends to authorize
mortality and we consider the 10 potential mortalities from across the
seven 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
seven species).

Social Pelagic Species (killer whales, short-finned pilot whales, false
killer whales, pygmy killer whales, and melon-headed whales)

Acoustic analysis indicates that 7 killer whales and 45 short-
finned pilot whales will be exposed to MFAS/HFAS or explosive
detonations at sound or pressure levels likely to result in Level B
harassment. This estimate represents the total number of Level B takes
and not necessarily the number of individuals taken, as a single
individual may be taken multiple times over the course of a year. These
Level B takes are anticipated to be in the form of behavioral
disturbance as described in the Definition of Harassment: Level B
harassment section. Acoustic analysis predicts that neither of these
species will be exposed to levels of MFAS/HFAS associated with PTS or
injury.
Although 1 and 6 (killer whale and pilot whale, respectively) of
the modeled Level B Harassment takes were predicted to be in the form
of TTS from MFAS/HFAS exposure, NMFS believes it is unlikely that any
killer whales or short-finned pilot whales will incur TTS because of
the distance within which they would have to approach the active sonar
source (approximately 140 m for the most powerful source for TTS), the
fact that many animals will likely avoid active sonar sources to some
degree, and the likelihood that Navy monitors would detect these
animals prior to an approach within this distance and implement active
sonar powerdown or shutdown. Navy lookouts will likely detect a group
of killer whales or short-finned pilot whales given their large

[[Page 60897]]

individual size and mean large group size (6.5 and 22.5, respectively).
Acoustic analysis predicts that neither of these species will be
exposed to levels of sound or pressure from explosives that would be
expected to result in any form of take. No areas of specific importance
for reproduction or feeding for beaked whales have been identified in
the SOCAL Range Complex.
The low density of killer whales in California consists primarily
of individuals from the Offshore Eastern North Pacific stock and the
Transient stock (as mentioned previously, individuals from the eastern
north Pacific southern resident stock are not expected to be
encountered in SOCAL). The combined population of these three stocks is
estimated at 1,340 (Caretta et al., 2007). Population size of the
California/Oregon/Washington stock of the short-finned pilot whale is
estimated at 350 (Barlow and Forney 2007).
Pygmy killer, false killer, and melon-headed whales are considered
rare in the SOCAL Range Complex and no stocks have been designated for
these species on the west coast of the U.S. NMFS and the Navy do not
anticipate take of this species occurring, but NMFS is proposing to
authorize 20 Level B Harassment takes for each of these species
annually to ensure MMPA compliance should the Navy unexpectedly
encounter an individual of this species while operating MFAS/HFAS.

Dolphins and Dall's Porpoise

The acoustic analysis predicts that the following numbers of Level
B behavioral harassments of the associated species will occur: 1472
(bottlenose dolphins), 4583 (long-beaked common dolphin), 39404 (short-
beaked common dolphin), 1503 (northern right whale dolphin), 1360
(Pacific white-sided dolphin), 1830 (striped dolphin), 622 (Dall's
porpoise). 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 a portion (191 (bottlenose dolphins), 432 (long-beaked
common dolphin), 3727 (short-beaked common dolphin), 166 (northern
right whale dolphin), 189 (Pacific white-sided dolphin), 249 (striped
dolphin), 88 (Dall's porpoise)) 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 active sonar source (approximately 140 m for the most
powerful source), the fact that many animals will likely avoid active
sonar sources to some degree, and the likelihood that Navy monitors
would detect these animals prior to an approach within this distance
and implement active sonar powerdown or shutdown. Navy lookouts will
likely detect a group of dolphins given their relatively short dives,
gregarious behavior, 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 would sustain TTS (see table 9). As mentioned
above and indicated in Table 12, some dolphin vocalizations might
overlap with the MFAS/HFAS TTS frequency range (2-20 kHz), which could
potentially temporarily decrease an animal's sensitivity to the calls
of conspecifics or returning echolocation signals. 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.
The acoustic analysis also predicted that 1 long-beaked common
dolphin, 6 short-beaked common dolphins, and 1 striped dolphin would be
exposed to MFAS/HFAS sound levels that would result in Level A
Harassment (PTS--injury). However, for the same reasons listed above
for TTS (and because animals would need to approach within 10 m of the
sonar dome), NMFS does not believe that any animals will incur PTS or
be otherwise injured by MFAS/HFAS. 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.
Acoustic analysis also predicted that 10 bottlenose dolphins, 41
long-beaked common dolphins, 354 short-beaked common dolphins, 12
northern right whale dolphins, 9 Pacific white-sided dolphins, 6
striped dolphins, and 2 Dall's porpoises would be exposed to sound or
pressure from explosives at levels expected to result in TTS. For the
same reasons listed above, NMFS anticipates that the Navy watchstanders
would likely detect these species and implement the mitigation to avoid
exposure. However, the range to TTS for a few of the larger explosives
is larger than the associated exclusion zones for BOMBEX, MISSILEX, or
SINKEX (see Table 3), and therefore NMFS anticipates that TTS might not
be entirely avoided during those exercises, so NMFS estimates that up
to half of the estimated explosive detonation TTS takes of dolphins
might occur.
Acoustic analysis also predicted that 1 long-beaked dolphin, 1
Risso's dolphin, and 12 short-beaked common dolphins might be exposed
to sound or pressure from explosive detonations that would result in
PTS or injury, and that 4 short-beaked common dolphins would be exposed
to levels that would result in mortality. For the same reasons listed
above (group size, dive and social behavior), NMFS anticipates that the
Navy watchstanders would detect these species and implement the
mitigation measures to avoid exposure. In the case of all explosive
exercises, the exclusion zones are 2-12 times larger than the estimated
distance at which an animal would be exposed to injurious sounds or
pressure waves. Therefore, no takes by injury or death are anticipated
or authorized.
No areas of specific importance for reproduction or feeding for
dolphins have been identified in the SOCAL Range Complex. Table 13
shows the estimated abundance of the affected stocks of dolphins and
Dall's porpoise.
Pantropical spotted, rough-toothed, and spinner dolphins are
considered rare in the SOCAL Range Complex and no stocks have been
designated for these species on the west coast of the U.S. NMFS and the
Navy do not anticipate take of this species occurring, but NMFS is
proposing to authorize 20 Level B Harassment takes for each of these
species annually to ensure MMPA compliance should the Navy unexpectedly
encounter an individual of this species while operating MFAS/HFAS.
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Pinnipeds (Guadalupe fur seal, Northern fur seal, California sea
lion, Northern elephant seal, and Pacific harbor seal).
The Navy's acoustic analysis predicts that the following numbers of
Level B behavioral harassments of the associated species will occur:
1064 (Guadalupe fur seal), 1229 (Northern fur seal), 55443 (California
sea lion), 955 (northern elephant seal), and 5625 (Pacific harbor
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 portion (190 Guadalupe fur seal, 3 Northern fur seal, 3
California sea lion, 5 northern elephant seal, and 4559 Pacific harbor
seal) of the modeled Level B Harassment takes for all of these species
were predicted to be in the form of TTS. For Guadalupe fur seals,
Northern fur seals, and California sea lions, for which the TTS
threshold is 206 dB SEL, NMFS believes it is unlikely that any of these
pinnipeds will incur TTS because of the distance within which they
would have to approach the MFAS source (approximately 40 m for the most
powerful source for), the fact that many animals will likely avoid
active sonar sources to some degree, and the likelihood that Navy
monitors would detect these pinnipeds (because of the relatively short
duration of their dives and their tendency to rest near the surface)
prior to an approach within this distance and implement active sonar
powerdown or shutdown. Because elephant seals typically dive for longer
periods (20-30 minutes) and only spend about 10 percent of their time
at the surface, some animals will likely not be detected by Navy
monitors and will likely incur TTS. Also of note though, elephant seals
make extensive foraging migrations to the North Pacific and Gulf of
Alaska outside of SOCAL returning two times a year California haul-out
sites for breeding and molting. Northern elephant seals would not be
exposed during the times they are foraging outside of SOCAL (Stewart
and DeLong 1995, Le Boeuf et al., 2000, Crocker et al., 2006, Bearzi et
al., 2008). NMFS estimates that less than half of the estimated
elephant seal TTS takes may occur (0-3). Though harbor seals have
generally short dive times, they are smaller (harder to see) and the
TTS

[[Page 60899]]

threshold for this species is substantively lower (183 dB SEL), which
means that they can be exposed to levels expected to result in TTS at a
substantially larger distance from the source (approximately 1650 m).
Therefore, though some TTS takes will likely be avoided through
mitigation implementation, NMFS estimates that more than half of the
estimated TTS takes will still actually occur (2280-4559). As mentioned
above and indicated in Table 12, some pinniped vocalizations might
overlap with the MFAS/HFAS TTS frequency range (2-20 kHz), which could
potentially temporarily decrease an animal's sensitivity to the calls
of conspecifics or returning echolocation signals. However, as noted
previously, NMFS does not anticipate TTS of a long duration or severe
degree to occur as a result of exposure to MFAS/HFAS.
The acoustic analysis also predicted that 9 Pacific harbor seals
animal would be exposed to MFAS/HFAS sound levels that would result in
Level A Harassment (PTS--injury). However, because of the distance
within which they would have to approach the MFAS source (approximately
50 m for the most powerful source for) and the fact that animals will
likely avoid active sonar sources to some degree, NMFS does not believe
that any animals will incur PTS or be otherwise injured by MFAS/HFAS.
Acoustic analysis also predicted that 2 Guadalupe fur seals, 64
Northern fur seals, 510 California sea lions, 41 northern elephant
seals, and 26 Pacific harbor seals would be exposed to sound or
pressure from explosives at levels expected to result in TTS. For the
same reasons listed above, NMFS anticipates that the Navy watchstanders
would likely detect the majority of the individual Guadalupe fur seals,
northern fur seals, and California sea lions and implement the
mitigation measures to avoid exposure. However, the range to TTS for a
few of the larger explosives is larger than the associated exclusion
zones for BOMBEX, MISSILEX, or SINKEX (see Table 3), therefore NMFS
anticipates that TTS might not be entirely avoided during those
exercises, so NMFS estimates that up to half of the TTS takes predicted
by the acoustic analysis might actually be incurred (0-1 Guadalupe fur
seals, 0-32 northern fur seals, and 0-255 California sea lions). NMFS
estimates that of all of the pinnipeds, fewer elephant seals and harbor
seals would likely be detected, and therefore we estimate that a larger
portion of predicted exposures of elephant seals and harbor seals might
be in the form of TTS (20-41 elephant seals, 13-26 harbor seals).
Acoustic analysis also predicted that 20 pinnipeds might be exposed
to levels of sound or pressure from explosives that would result in PTS
or other injury and that 7 pinnipeds mortalities would result from
explosive detonations. NMFS anticipates that the Navy watchstanders
would likely detect these species and implement the mitigation measures
to avoid exposure. In the case of all explosive exercises, the
exclusion zones are 2-12 times larger than the estimated distance at
which an animal would be exposed to injurious sounds or pressure waves.
Therefore, no takes by injury or death are anticipated or authorized.
Table 13 shows the estimated abundance of the affected stocks of
dolphins and Dall's porpoise.

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 in the SOCAL Range
Complex 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-year
regulations and subsequent LOAs for Navy training exercises in the
SOCAL Range Complex 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, sei whale, fin whale,
blue whale, sperm whale, Guadalupe fur seal, loggerhead sea turtle, the
green sea turtle, leatherback 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 SOCAL 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 SOCAL, which was published on
April 4, 2008. The Navy's DEIS is posted on NMFS' Web site: 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 SOCAL.
If the Navy's FEIS is deemed not to be adequate, NMFS would supplement
the existing analysis to ensure that we comply with NEPA prior to the
issuance of the final rule or LOA.

Classification

This action does not contain any collection of information
requirements for purposes of the Paperwork Reduction Act.
The Office of Management and Budget has determined that this
proposed rule is significant for purposes of Executive Order 12866.
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 sole 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 (RFA). Any requirements
imposed by a 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. NMFS does not
expect the issuance of these regulations or the associated LOAs to
result in any impacts to small entities

[[Page 60900]]

pursuant to the RFA. 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 X is added to part 216 to read as follows:
Subpart X--Taking and Importing Marine Mammals; U.S. Navy's Southern
California Range Complex (SOCAL)
Sec.
216.270 Specified activity and specified geographical region.
216.271 Definitions.
216.272 Permissible methods of taking.
216.273 Prohibitions.
216.274 Mitigation.
216.275 Requirements for monitoring and reporting.
216.276 Applications for Letters of Authorization.
216.277 Letters of Authorization.
216.278 Renewal of Letters of Authorization and adaptive management.
216.279 Modifications to Letters of Authorization.
Table 1 to Subpart X--``Summary of monitoring effort proposed in
draft Monitoring Plan for SOCAL''

Subpart X--Taking and Importing Marine Mammals; U.S. Navy's
Southern California Range Complex (SOCAL)

Sec. 216.270 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 SOCAL Range Complex (as depicted in Figure ES-1 in
the Navy's Draft Environmental Impact Statement for SOCAL), which
extends southwest from southern California in an approximately 700 by
200 nm rectangle with the seaward corners at 27[deg]30'00'' N. lat.;
127[deg]10'04'' W. long. and 24[deg]00'01'' N. lat.; 125[deg]00'03'' W.
long.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities within the designated
amounts of use:
(1) The use of the following mid-frequency active sonar (MFAS)
sources, high frequency active sonar (HFAS) sources 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):
(i) AN/SQS-53 (hull-mounted active sonar)--up to 9,885 hours over
the course of 5 years (an average of 1,977 hours per year).
(ii) AN/SQS-56 (hull-mounted active sonar)--up to 2,470 hours over
the course of 5 years (an average of 494 hours per year).
(iii) AN/BQQ-10 (submarine active sonar)--up to 4,075 hours over
the course of 5 years (an average of 815 hours per year) (an average of
2 pings per hour during training events, 60 pings per hour for
maintenance).
(iv) AN/AQS-22 or 13 (active helicopter dipping sonar)--up to
13,595 dips over the course of 5 years (an average of 2,719 dips per
year--10 pings per dip).
(v) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS)
sonobuoys)--up to 21,275 sonobuoys over the course of 5 years (an
average of 4,255 sonobuoys per year).
(vi) MK-48 (heavyweight torpedoes)--up to 435 torpedoes over the
course of 5 years (an average of 87 torpedoes per year).
(vii) AN/BQQ-15 (submarine navigational sonar)--up to 610 hours
over the course of 5 years (an average of 122 hours per year).
(viii) MK-46 (lightweight torpedoes)--up to 420 torpedoes over the
course of 5 years (an average of 84 torpedoes per year).
(ix) AN/SLQ-25A NIXIE--up to 1,135 hours over the course of 5 years
(an average of 227 hours per year).
(2) The detonation of the underwater explosives indicated in this
paragraph (c)(2)(i) conducted as part of the training exercises
indicated in this paragraph (c)(2)(ii):
(i) Underwater Explosives:
(A) 5''; Naval Gunfire (9.5 lbs).
(B) 76 mm rounds (1.6 lbs).
(C) Maverick (78.5 lbs).
(D) Harpoon (448 lbs).
(E) MK-82 (238 lbs).
(F) MK-83 (574 lbs).
(G) MK-84 (945 lbs).
(H) MK-48 (851 lbs).
(I) Demolition Charges (20 lbs).
(J) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs).
(ii) Training Events:
(A) Surface-to-surface Gunnery Exercises (S-S GUNEX)--up to 2,010
exercises over the course of 5 years (an average of 402 per year).
(B) Air-to-surface Missile Exercises (A-S MISSILEX)--up to 250
exercises over the course of 5 years (an average of 50 per year).
(C) Bombing Exercises (BOMBEX)--up to 200 exercises over the course
of 5 years (an average of 40 per year).
(D) Sinking Exercises (SINKEX)--up to 10 exercises over the course
of 5 years (an average of 2 per year).
(E) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 15 exercises over the course of 5 years (an
average of 3 per year).

Sec. 216.271 Definitions.

(a) The following definitions are utilized in these regulations:
(1) Uncommon Stranding Event (USE)--A stranding event that takes
place during a major training exercise (MTE) and involves any one of
the following:
(i) Two or more individuals of any cetacean species (not including
mother/calf pairs, unless of species of concern listed in Sec.
216.271(b)(1)(ii) found dead or live on shore within a two-day period
and occurring within 30 miles of one another.
(ii) 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, short-finned pilot whales, humpback whales,
sperm whales, blue whales, fin whales, or sei whales.
(iii) A group of 2 or more cetaceans of any species exhibiting
indicators of distress as defined in Sec. 216.271(b)(3).
(2) Shutdown--The cessation of MFAS/HFAS operation or detonation of
explosives within 14 nm of any live, in the water, animal involved in a
USE.
(3) 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:
(i) 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.
(ii) Abnormal respirations including increased or decreased rate or
volume of breathing, abnormal content or odor.

[[Page 60901]]

(iii) 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.
(iv) Abnormal behavior for that species, such as abnormal surfacing
or swimming pattern, listing, and abnormal appearance.
(4) Major Training Exercise--MTEs, within the context of the SOCAL
Stranding Plan, include:
(i) Composite Training Unit Exercise (COMPTUEX)--3-4 events
annually, 21 days per entire event.
(ii) Joint Task Force Exercise (JTFEX)--3-4 events annually, 10
days per entire event.
(iii) Ship Anti-submarine warfare (ASW) Readiness and Evaluation
Measuring (SHAREM)--1 event annually, less than a week long.
(iv) Sustainment Exercise--2 events annually, shorter than
COMPTUEX.
(v) Integrated ASW Course (IAC2)--4 events annually, 2 12-hour
exercises over 2 days.
(b) [Reserved]

Sec. 216.272 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.277, the Holder of the Letter of Authorization
(hereinafter ``Navy'') may incidentally, but not intentionally, take
marine mammals within the area described in Sec. 216.270(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. 216.270(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. 216.270(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) Humpback whale (Megaptera novaeangliae)--15.
(B) Fin whale (Balaenoptera physalus)--167.
(C) Blue whale (Balaenoptera musculus)--609.
(D) Minke whale (Balaenoptera acutorostrata)--126.
(E) Gray whale (Eschrichtius robustus)--5460.
(ii) Odontocetes:
(A) Sperm whales (Physeter macrocephalus)--148.
(B) Pygmy sperm whales (Kogia breviceps)--159.
(C) Dwarf sperm whale (Kogia sima)--20.
(D) Mesoplodont beaked whales (Blainville's, Hubb's, Perrin's,
pygmy, and ginkgo-toothed) (Mesoplodon densirostris, M. carlhubbsi, M.
perrini, M. peruvianus, M. ginkgodens)--131.
(E) Cuvier's beaked whales (Ziphius cavirostris)--428.
(F) Baird's beaked whales (Berardius bairdii)--13.
(G) Unidentified beaked whales--97.
(H) Rough-toothed dolphin (Steno bredanensis)--20.
(I) Bottlenose dolphin (Tursiops truncatus)--1,509.
(J) Pan-tropical spotted dolphin (Stenella attenuata)--20.
(K) Spinner dolphin (Stenella longirostris)--20.
(L) Striped dolphin (Stenella coeruleoalba)--1,830.
(M) Long-beaked common dolphin (Delphinus capensis)--4,622.
(N) Risso's dolphin (Grampus griseus)--3,592.
(O) Northern right whale dolphin (Lissodelphis borealis)--1,540.
(P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--
1,397.
(Q) Short-beaked common dolphin (Delphinus delphis)--39,441.
(R) Melon-headed whale (Peponocephala electra)--20.
(S) Pygmy killer whale (Feresa attenuata)--20.
(T) False killer whale (Pseudorca crassidens)--20.
(U) Killer whale (Orcinus orca)--7.
(V) Short-finned pilot whale (Globicephala macrorynchus)--45.
(W) Dall's porpoise (Phocoenoides dalli)--622.
(ii) Pinnipeds:
(A) Northern elephant seal (Mirounga angustirostris)--955.
(B) Pacific harbor seal (Phoca vitulina)--5,672.
(C) California sea lion (Zalophus californianus)--55,502.
(D) Northern fur seal (Callorhinus ursinus)--1,229.
(E) Guadelupe fur seal (Arctocephalus townsendi)--1,064.
(2) Level A Harassment and/or mortality of no more than 10 beaked
whales (total), of any of the species listed in Sec.
216.272(c)(1)(ii)(D-F) over the course of the 5-year regulations.

Sec. 216.273 Prohibitions.

No person in connection with the activities described in Sec.
216.270 may:
(a) Take any marine mammal not specified in Sec. 216.272(c);
(b) Take any marine mammal specified in Sec. 216.272(c) other than
by incidental take as specified in Sec. 216.272(c)(1) and (c)(2);
(c) Take a marine mammal specified in Sec. 216.272(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 216.277.

Sec. 216.274 Mitigation.

(a) The activities identified in Sec. 216.270(c) 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
utilizing the sound sources or explosives identified in Sec.
216.270(c), the mitigation measures contained in the Letter of
Authorization issued under Sec. Sec. 216.106 and 216.277 must be
implemented. These mitigation measures include, but are not limited to:
(1) Navy's General Maritime Measures for All Training at Sea:
(i) Personnel Training (for all Training Types):
(A) All commanding officers (COs), executive officers (XOs),
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare
(MIW) helicopter crews shall complete the NMFS-approved Marine Species
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital
versatile disk (DVD). All bridge lookouts shall complete both parts one
and two of the MSAT; part two is optional for other personnel.
(B) Navy lookouts shall undertake extensive training in order to
qualify as a watchstander in accordance with the Lookout Training
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
(C) Lookout training shall include on-the-job instruction under the
supervision of a qualified, experienced lookout. 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). Personnel being trained as lookouts can
be counted among required lookouts as long as supervisors monitor their
progress and performance.

[[Page 60902]]

(D) 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 protective measures if marine species
are spotted.
(ii) Operating Procedures and Collision Avoidance:
(A) Prior to major exercises, a Letter of Instruction, Mitigation
Measures Message or Environmental Annex to the Operational Order shall
be issued to further disseminate the personnel training requirement and
general marine species protective measures.
(B) COs shall 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.
(C) While underway, surface vessels shall have at least two
lookouts with binoculars; surfaced submarines shall have at least one
lookout with binoculars. Lookouts already posted for safety of
navigation and man-overboard precautions may be used to fill this
requirement. As part of their regular duties, lookouts will watch for
and report to the OOD the presence of marine mammals.
(D) On surface vessels equipped with a multi-function active
sensor, pedestal mounted ``Big Eye'' (20x10) binoculars shall be
properly installed and in good working order to assist in the detection
of marine mammals in the vicinity of the vessel.
(E) Personnel on lookout shall employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
(F) After sunset and prior to sunrise, lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook.
(NAVEDTRA 12968-D).
(G) While in transit, naval vessels shall be alert at all times,
use extreme caution, and proceed at a ``safe speed'' so that the vessel
can take proper and effective action to avoid a collision with any
marine animal and can be stopped within a distance appropriate to the
prevailing circumstances and conditions.
(H) When marine mammals have been sighted in the area, Navy vessels
shall increase vigilance and take reasonable and practicable actions to
avoid collisions and activities that might result in close interaction
of naval assets and marine mammals. Actions may include changing speed
and/or direction and are dictated by environmental and other conditions
(e.g., safety, weather).
(I) Floating weeds and kelp, algal mats, clusters of seabirds, and
jellyfish are good indicators of marine mammals. Therefore, where these
circumstances are present, the Navy shall exercise increased vigilance
in watching for marine mammals.
(J) Navy aircraft participating in exercises at sea shal 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. Marine
mammal detections shall be immediately reported to assigned Aircraft
Control Unit for further dissemination to ships in the vicinity of the
marine species as appropriate when it is reasonable to conclude that
the course of the ship will likely result in a closing of the distance
to the detected marine mammal.
(K) All vessels shall maintain logs and records documenting
training operations should they be required for event reconstruction
purposes. Logs and records will be kept for a period of 30 days
following completion of a major training exercise.
(2) Navy's Measures for MFAS Operations.
(i) Personnel Training (for MFAS Operations):
(A) All lookouts onboard platforms involved in ASW training events
shall review the NMFS-approved Marine Species Awareness Training
material prior to use of mid-frequency active sonar.
(B) All COs, XOs, and officers standing watch on the bridge shall
have reviewed the Marine Species Awareness Training material prior to a
training event employing the use of mid-frequency active sonar.
(C) Navy lookouts shall undertake extensive training in order to
qualify as a watchstander in accordance with the Lookout Training
Handbook (Naval Educational Training [NAVEDTRA], 12968-D).
(D) 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). 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 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 species
are spotted.
(ii) Lookout and Watchstander Responsibilities:
(A) 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.
(B) All surface ships participating in ASW training events shall,
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 marine mammal lookouts.
(C) 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.
(D) On surface vessels equipped with mid-frequency active sonar,
pedestal mounted ``Big Eye'' (20x110) binoculars shall 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 shall employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
(F) After sunset and prior to sunrise, lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook.
(G) 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.
(iii) Operating Procedures:
(A) A Letter of Instruction, Mitigation Measures Message, or
Environmental Annex to the Operational Order shall be issued prior to
the exercise to further disseminate the personnel training requirement
and general marine mammal mitigation measures.
(B) COs shall 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.
(C) 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

[[Page 60903]]

watch station for dissemination and appropriate action.
(D) During mid-frequency active sonar operations, personnel shall
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 shall 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 shall use only the passive
capability of sonobuoys when marine mammals are detected within 200 yds
(183 m) of the sonobuoy.
(G) Marine mammal detections shall be immediately reported to
assigned Aircraft Control Unit for further dissemination to ships in
the vicinity of the marine species as appropriate where it is
reasonable to conclude that the course of the ship will likely result
in a closing of the distance to the detected marine mammal.
(H) Safety Zones--When marine mammals are detected by any means
(aircraft, shipboard lookout, or acoustically) within or closing to
inside 1,000 yds (914 m) of the sonar dome (the bow), the ship or
submarine shall limit active transmission levels to at least 6 decibels
(dB) below normal operating levels.
(1) Ships and submarines shall continue to limit maximum
transmission levels by this 6-dB factor until the animal has been seen
to leave the area, has not been detected for 30 minutes, or the vessel
has transited more than 2,000 yds (1829 m) beyond the location of the
last detection.
(2) Should a marine mammal be detected within or closing to inside
500 yds (457 m) of the sonar dome, active sonar transmissions shall 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 animal has been seen to leave the area, has
not been detected for 30 minutes, or the vessel has transited more than
2,000 yds (1829 m) beyond the location of the last detection.
(3) Should the marine mammal be detected within or closing to
inside 200 yds (183 m) of the sonar dome, active sonar transmissions
shall cease. Sonar shall not resume until the animal has been seen to
leave the area, has not been detected for 30 minutes, or the vessel has
transited more than 2,000 yds (1829 m) beyond the location of the last
detection.
(4) Special conditions applicable for dolphins and porpoises only:
If, after conducting an initial maneuver to avoid close quarters with
dolphins or porpoises, the OOD concludes that dolphins or porpoises are
deliberately closing to ride the vessel's bow wave, no further
mitigation actions are necessary while the dolphins or porpoises
continue to exhibit bow wave riding behavior.
(5) If the need for power-down should arise as detailed in ``Safety
Zones'' above, the 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 dB
active sonar was being operated).
(I) Prior to startup or restart of active sonar, operators will
check that the Safety Zone radius around the sound source is clear of
marine mammals.
(J) Active sonar levels (generally)--Navy shall 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
training event for 10 minutes before the first deployment of active
(dipping) sonar in the water.
(L) Helicopters shall not dip their active sonar within 200 yds
(183 m) of a marine mammal and shall cease pinging if a marine mammal
closes within 200 yds (183 m) after pinging has begun.
(M) Submarine sonar operators shall review detection indicators of
close-aboard marine mammals prior to the commencement of ASW training
events involving active mid-frequency sonar.
(3) Navy's Measures for Underwater Detonations
(i) Surface-to-Surface Gunnery (5-inch, 76 mm, 57 mm, 20 mm, 25 mm
and 30 mm explosive rounds)
(A) Lookouts shall visually survey for floating weeds and kelp.
Intended impact shall not be within 600 yds (585 m) of known or
observed floating weeds and kelp, and algal mats.
(B) For exercises using targets towed by a vessel or aircraft,
target-towing vessels/aircraft shall maintain a trained lookout for
marine mammals. If a marine mammal is sighted in the vicinity, the tow
aircraft/vessel shall immediately notify the firing vessel, which shall
suspend the exercise until the area is clear.
(C) A 600-yard radius buffer zone shall be established around the
intended target.
(D) From the intended firing position, trained lookouts shall
survey the buffer zone for marine mammals prior to commencement and
during the exercise as long as practicable.
(E) The exercise shall be conducted only when the buffer zone is
visible and marine mammals are not detected within it.
(ii) Surface-to-Surface Gunnery (non-explosive rounds)
(A) Lookouts shall visually survey for floating weeds and kelp, and
algal mats. Intended impact will not be within 200 yds (183 m) of known
or observed floating weeds and kelp, and algal mats.
(B) A 200-yd (183 m) radius buffer zone shall be established around
the intended target.
(C) From the intended firing position, trained lookouts shall
survey the buffer zone for marine mammals prior to commencement and
during the exercise as long as practicable.
(D) If applicable, target towing vessels shall maintain a lookout.
If a marine mammal is sighted in the vicinity of the exercise, the tow
vessel shall immediately notify the firing vessel in order to secure
gunnery firing until the area is clear.
(E) The exercise shall be conducted only when the buffer zone is
visible and marine mammals are not detected within the target area and
the buffer zone.
(iii) Surface-to-Air Gunnery (explosive and non-explosive rounds)
(A) Vessels shall orient the geometry of gunnery exercises in order
to prevent debris from falling in the area of sighted marine mammals.
(B) Vessels will expedite the recovery of any parachute deploying
aerial targets to reduce the potential for entanglement of marine
mammals.
(C) Target towing aircraft shall maintain a lookout. If a marine
mammal is sighted in the vicinity of the exercise, the tow aircraft
shall immediately notify the firing vessel in order to secure gunnery
firing until the area is clear.
(iv) Air-to-Surface Gunnery (explosive and non-explosive rounds)
(A) If surface vessels are involved, lookouts will visually survey
for floating kelp in the target area. Impact shall not occur within 200
yds (183 m) of known or observed floating weeds and kelp or algal mats.
(B) A 200 yd (183 m) radius buffer zone shall be established around
the intended target.
(C) If surface vessels are involved, lookout(s) shall visually
survey the buffer zone for marine mammals prior to and during the
exercise.
(D) Aerial surveillance of the buffer zone for marine mammals shall
be conducted prior to commencement of the exercise. Aerial surveillance
altitude

[[Page 60904]]

of 500 feet to 1,500 feet (ft) (152--456 m) is optimum. Aircraft crew/
pilot shall maintain visual watch during exercises. Release of ordnance
through cloud cover is prohibited: Aircraft must be able to actually
see ordnance impact areas.
(E) The exercise shall be conducted only if marine mammals and are
not visible within the buffer zone.
(v) Small Arms Training (grenades, explosive and non-explosive
rounds)--Lookouts will visually survey for floating weeds or kelp,
algal mats, and marine mammals. Weapons shall not be fired in the
direction of known or observed floating weeds or kelp, algal mats, or
marine mammals.
(vi) Air-to-Surface At-sea Bombing Exercises (explosive and non-
explosive):
(A) If surface vessels are involved, trained lookouts shall survey
for floating kelp and marine mammals. Ordnance shall not be targeted to
impact within 1,000 yds (914 m) of known or observed floating kelp or
marine mammals.
(B) A 1,000 yd (914 m) radius buffer zone shall be established
around the intended target.
(C) Aircraft shall visually survey the target and buffer zone for
marine mammals prior to and during the exercise. The survey of the
impact area shall be made by flying at 1,500 ft (152 m) or lower, if
safe to do so, and at the slowest safe speed. Release of ordnance
through cloud cover is prohibited: Aircraft must be able to actually
see ordnance impact areas. Survey aircraft should employ most effective
search tactics and capabilities.
(D) The exercise will be conducted only if marine mammals are not
visible within the buffer zone.
(vii) Air-to-Surface Missile Exercises (explosive and non-
explosive):
(A) Ordnance shall not be targeted to impact within 1,800 yds (1646
m) of known or observed floating kelp.
(B) Aircraft shall visually survey the target area for marine
mammals. Visual inspection of the target area shall be made by flying
at 1,500 (457 m) feet or lower, if safe to do so, and at slowest safe
speed. Firing or range clearance aircraft must be able to actually see
ordnance impact areas. Explosive ordnance shall not be targeted to
impact within 1,800 yds (1646 m) of sighted marine mammals.
(viii) Demolitions, Mine Warfare, and Mine Countermeasures (up to a
20-lb charge):
(A) Exclusion Zones--All Mine Warfare and Mine Countermeasures
Operations involving the use of explosive charges must include
exclusion zones for marine mammals to prevent physical and/or acoustic
effects to those species. These exclusion zones shall extend in a 700-
yard arc radius around the detonation site.
(B) Pre-Exercise Surveys--For Demolition and Ship Mine
Countermeasures Operations, pre-exercise survey shall be conducted
within 30 minutes prior to the commencement of the scheduled explosive
event. The survey may be conducted from the surface, by divers, and/or
from the air, and personnel shall be alert to the presence of any
marine mammal. Should such an animal be present within the survey area,
the exercise shall be paused until the animal voluntarily leaves the
area. The Navy shall suspend detonation exercises and ensure the area
is clear for a full 30 minutes prior to detonation. Personnel shall
record any marine mammal observations during the exercise.
(C) Post-Exercise Surveys--Surveys within the same radius shall
also be conducted within 30 minutes after the completion of the
explosive event.
(D) Reporting--If there is evidence that a marine mammal may have
been stranded, injured or killed by the action, Navy training
activities shall be immediately suspended and the situation immediately
reported by the participating unit to the Officer in Charge of the
Exercise (OCE), who will follow Navy procedures for reporting the
incident to Commander, Pacific Fleet, Commander, Navy Region Southwest,
Environmental Director, and the chain-of-command. The situation shall
also be reported to NMFS (see Stranding Plan for details).
(ix) Mining Operations--initial target points shall be briefly
surveyed prior to inert ordnance (no live ordnance used) release from
an aircraft to ensure the intended drop area is clear of marine
mammals. To the extent feasible, the Navy shall retrieve inert mine
shapes dropped during Mining Operations.
(x) Sink Exercise:
(A) All weapons firing shall be conducted during the period 1 hour
after official sunrise to 30 minutes before official sunset.
(B) Prior to conducting the exercise, remotely sensed sea surface
temperature maps shall be reviewed. SINKEX shall not be conducted
within areas where strong temperature discontinuities are present,
thereby indicating the existence of oceanographic fronts. These areas
shall be avoided because concentrations of some listed species, or
their prey, are known to be associated with these oceanographic
features.
(C) An exclusion zone with a radius of 1.0 nm shall be established
around each target. An additional buffer of 0.5 nm shall be added to
account for errors, target drift, and animal movements. Additionally, a
safety zone, which extends from the exclusion zone at 1.0 nm out an
additional 0.5 nm, shall be surveyed. Together, the zones extend out 2
nm from the target.
(D) A series of surveillance over-flights shall be conducted within
the exclusion and the safety zones, prior to and during the exercise,
when feasible. Survey protocol shall be as follows:
(1) Overflights within the exclusion zone shall be conducted in a
manner that optimizes the surface area of the water observed. This may
be accomplished through the use of the Navy's Search and Rescue
Tactical Aid, which provides the best search altitude, ground speed,
and track spacing for the discovery of small, possibly dark objects in
the water based on the environmental conditions of the day. These
environmental conditions include the angle of sun inclination, amount
of daylight, cloud cover, visibility, and sea state.
(2) All visual surveillance activities shall be conducted by Navy
personnel trained in visual surveillance. At least one member of the
mitigation team would have completed the Navy's marine mammal training
program for lookouts.
(3) In addition to the overflights, the exclusion zone shall be
monitored by passive acoustic means, when assets are available. This
passive acoustic monitoring would be maintained throughout the
exercise. Potential assets include sonobuoys, which can be utilized to
detect any vocalizing marine mammals (particularly sperm whales) in the
vicinity of the exercise. The sonobuoys shall be re-seeded as necessary
throughout the exercise. Additionally, passive sonar onboard submarines
may be utilized to detect any vocalizing marine mammals in the area.
The OCE would be informed of any aural detection of marine mammals and
would include this information in the determination of when it is safe
to commence the exercise.
(4) On each day of the exercise, aerial surveillance of the
exclusion and safety zones shall commence 2 hours prior to the first
firing.
(5) The results of all visual, aerial, and acoustic searches shall
be reported immediately to the OCE. No weapons launches or firing may
commence until the OCE declares the safety and exclusion zones free of
marine mammals.
(6) If a protected species observed within the exclusion zone is
diving, firing shall be delayed until the animal is re-sighted outside
the exclusion zone, or 30 minutes have elapsed. After 30

[[Page 60905]]

minutes, if the animal has not been re-sighted it would be assumed to
have left the exclusion zone.
(7) During breaks in the exercise of 30 minutes or more, the
exclusion zone shall again be surveyed for any protected species. If
marine mammals are sighted within the exclusion zone, the OCE shall be
notified, and the procedure described above would be followed.
(8) Upon sinking of the vessel, a final surveillance of the
exclusion zone shall be monitored for 2 hours, or until sunset, to
verify that no marine mammals were harmed.
(E) Aerial surveillance shall be conducted using helicopters or
other aircraft based on necessity and availability. The Navy has
several types of aircraft capable of performing this task; however, not
all types are available for every exercise. For each exercise, the
available asset best suited for identifying objects on and near the
surface of the ocean would be used. These aircraft would be capable of
flying at the slow safe speeds necessary to enable viewing of marine
vertebrates with unobstructed, or minimally obstructed, downward and
outward visibility. The exclusion and safety zone surveys may be
cancelled in the event that a mechanical problem, emergency search and
rescue, or other similar and unexpected event preempts the use of one
of the aircraft onsite for the exercise.
(F) Every attempt would be made to conduct the exercise in sea
states that are ideal for marine mammal sighting, Beaufort Sea State 3
or less. In the event of a 4 or above, survey efforts shall be
increased within the zones. This shall be accomplished through the use
of an additional aircraft, if available, and conducting tight search
patterns.
(G) The exercise shall not be conducted unless the exclusion zone
could be adequately monitored visually.
(H) In the event that any marine mammals are observed to be harmed
in the area, a detailed description of the animal shall be taken, the
location noted, and if possible, photos taken. This information shall
be provided to NMFS via the Navy's regional environmental coordinator
for purposes of identification (see the Stranding Plan for detail).
(I) An after action report detailing the exercise's time line, the
time the surveys commenced and terminated, amount, and types of all
ordnance expended, and the results of survey efforts for each event
shall be submitted to NMFS.
(xi) Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER):
(A) Crews shall conduct visual reconnaissance of the drop area
prior to laying their intended sonobuoy pattern. This search shall be
conducted at an altitude below 457 m (500 yd) at a slow speed, if
operationally feasible and weather conditions permit. In dual aircraft
operations, crews are allowed to conduct coordinated area clearances.
(B) Crews shall conduct a minimum of 30 minutes of visual and aural
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 914 m (1,000 yd) of
observed marine mammal activity, the Navy shall deploy the receiver
ONLY and monitor while conducting a visual search. When marine mammals
are no longer detected within 914 m (1,000 yd) of the intended post
position, the Navy shall co-locate the explosive source sonobuoy (AN/
SSQ-110A) (source) with the receiver.
(D) 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 RF range of these sensors.
(E) Aural Detection--If the presence of marine mammals is detected
aurally, then that shall cue the Navy 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 914 m (1,000 yd) 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 914 m (1,000
yd) safety buffer. Aircrews may shift their multi-static active search
to another post, where marine mammals are outside the 914 m (1,000 yd)
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 914 m (1,000 yd) 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) The Navy shall ensure all payloads are accounted for. Explosive
source sonobuoys (AN/SSQ-110A) that can not be scuttled shall be
reported as unexploded ordnance via voice communications while
airborne, then upon landing via naval message.
(J) Mammal monitoring shall continue until out of own-aircraft
sensor range.
(4) The Navy shall abide by the letter of the ``Stranding Response
Plan for Major Navy Training Exercises in the SOCAL Range Complex''
(available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), to
include the following measures:
(i) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 216.271) occurs during a Major Training Exercise (MTE)
(as defined in the Stranding Plan, meaning including Sustainment,
SHAREM, IAC2, JTFEX, or COMPTUEX) in the SOCAL Range Complex, the Navy
shall implement the procedures described below.
(A) The Navy shall implement a Shutdown (as defined Sec. 216.271)
when advised by a NMFS Office of Protected Resources Headquarters
Senior Official designated in the SOCAL Stranding 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 the Navy
shall communicate, as needed, regarding the identification of the USE
and the potential need to implement shutdown procedures.
(B) 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).
(C) If the Navy finds an injured or dead marine mammal 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

[[Page 60906]]

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.
(D) 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 shall
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 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.
(ii) Within 72 hours of NMFS notifying the Navy of the presence of
a USE, the Navy shall provide available information to NMFS (per the
SOCAL 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.
(iii) 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.

Sec. 216.275 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 SOCAL Stranding Communication Plan, the Navy
must notify NMFS immediately (or as soon as clearance procedures allow)
if the specified activity identified in Sec. 216.270(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. 216.270(c).
(c) The Navy must conduct all monitoring and/or research required
under the Letter of Authorization including abiding by the letter of
the SOCAL Monitoring Plan, which requires the Navy to implement, at a
minimum, the monitoring activities summarized in Table 1 below (and
described in more detail in the SOCAL 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. Navy will
standardize data collection methods across ranges to allow for
comparison in different geographic locations.
(e) SINKEX, GUNEX, MISSILEX, BOMBEX, Mine Warfare/Countermeasures,
and Naval Surface Fire Support--A yearly report detailing the
exercise's timelines, the time the surveys commenced and terminated,
amount, and types of all ordnance expended, and the results of marine
mammal survey efforts for each event will be submitted to NMFS.
(f) 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.
(g) 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 or Integrated Unit-Level Exercise
(Sustainment Exercise, IAC2, SHAREM, COMPTUEX, JTFEX). For other ASW
exercises, the Navy shall submit a yearly summary report. These reports
(the AARs and the annual reports) shall, at a minimum, include the
following information:
(1) The estimated total number of hours of active sonar operation
and the types of sonar utilized in the exercise;
(2) The total number of hours of observation effort (including
observation time when active sonar was not operating), if obtainable;
and;
(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 active 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; and
(5) The platform that the marine mammals were initially sighted
from.
(h) SOCAL 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. 216.175 (d through 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.
(i) The Navy shall respond to NMFS comments on the draft SOCAL
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 3 months after
the submittal of the draft if NMFS does not comment by then.
(j) 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 (through November 2013) from
the watchstanders and pursuant to the implementation of the Monitoring
Plans for SOCAL, the Hawaii Range Complex (HRC), the Southern
California (SOCAL) Range Complex, the Marianas Range Complex, and the
Northwest Training Range.
(k) The Navy shall respond to NMFS comments on the draft
comprehensive

[[Page 60907]]

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

Sec. 216.276 Applications for Letters of Authorization.

To incidentally take marine mammals pursuant to these regulations,
the U.S. Citizen (as defined by Sec. 216.103) conducting the activity
identified in Sec. 216.270(c) (i.e., the Navy) must apply for and
obtain either an initial Letter of Authorization in accordance with
Sec. 216.277 or a renewal under Sec. 216.278.

Sec. 216.277 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. 216.278.
(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. 216.278 Renewal of Letters of Authorization and adaptive
management.

(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.177 for the activity identified in Sec. 216.170(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. 216.275(b through j); and
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 216.274 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 216.277, 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 SOCAL Range Complex or other locations);
(2) Results from specific stranding investigations (either from the
SOCAL Range Complex 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 216.278 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 paragraph (b) of this section 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.
(d) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.

Sec. 216.279 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 216.277 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. 216.278, 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. 216.270(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.277 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. E8-23618 Filed 10-10-08; 8:45 am]
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