[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Rules and Regulations]
[Pages 3882-3918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1073]
[[Page 3881]]
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Part V
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; Final Rule
Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 /
Rules and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 0808061069-81583-02]
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: Final rule.
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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing
regulations to govern the unintentional taking of marine mammals
incidental to training, maintenance, and research, development, testing
and evaluation (RDT&E) activities conducted in the Southern California
Range Complex (SOCAL Range Complex), which extends south and southwest
off the southern California coast, for the period of January 2009
through January 2014. The Navy's activities are considered military
readiness activities pursuant to the Marine Mammal Protection Act
(MMPA), as amended by the National Defense Authorization Act for Fiscal
Year 2004 (NDAA). These regulations, which allow for the issuance of
``Letters of Authorization'' (LOAs) for the incidental take of marine
mammals during the described activities and specified timeframes,
prescribe the permissible methods of taking and other means of
affecting the least practicable adverse impact on marine mammal species
and their habitat, as well as requirements pertaining to the monitoring
and reporting of such taking.
DATES: Effective January 14, 2009 through January 14, 2014.
ADDRESSES: A copy of the Navy's application (which contains a list of
the references used in this document), NMFS' Record of Decision (ROD),
and other documents cited herein, may be obtained by writing to Michael
Payne, Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact
listed here (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected
Resources, NMFS, (301) 713-2289, ext. 166.
SUPPLEMENTARY INFORMATION: Extensive supplementary information was
provided in the proposed rule for this activity, which was published in
the Federal Register on Tuesday, October 14, 2008 (73 FR 60836). This
information will not be reprinted here in its entirety; rather, all
sections from the proposed rule will be represented herein and will
contain either a summary of the material presented in the proposed rule
or a note referencing the page(s) in the proposed rule where the
information may be found. Any information that has changed since the
proposed rule was published will be addressed herein. Additionally,
this final rule contains a section that responds to the comments
received during the public comment period.
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional taking of marine 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 and of no more than 1 year, the Secretary
shall issue a notice of proposed authorization for public 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 NDAA (Pub. L. 108-136) removed the ``small numbers'' and
``specified geographical region'' limitations and amended the
definition of ``harassment'' as it applies to a ``military readiness
activity'' to read as follows (Section 3(18)(B) of the MMPA):
(i) Any act that injures or has the significant potential to
injure a marine mammal or marine mammal stock in the wild [Level A
Harassment]; or
(ii) Any act that disturbs or is likely to disturb a marine
mammal or marine mammal stock in the wild by causing disruption of
natural behavioral patterns, including, but not limited to,
migration, surfacing, nursing, breeding, feeding, or sheltering, to
a point where such behavioral patterns are abandoned or
significantly altered [Level B Harassment].
Summary of Request
On 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 the SOCAL Range Complex, 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 activities are military readiness activities under the
provisions of the NDAA. The Navy states, and NMFS concurs, that these
military readiness activities may incidentally take marine mammals
present within the SOCAL Range Complex 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 period for which the regulations will be in effect.
Background of Navy Request
The proposed rule contains a description of the Navy's mission,
their responsibilities pursuant to Title 10 of the United States Code,
and the specific purpose and need for the activities for which they
requested incidental take authorization. The description contained in
the proposed rule has not changed. See 73 FR 60836.
Overview of the SOCAL Range Complex
The proposed rule contains an overview of the SOCAL Range Complex
that describes the SOCAL Operational Areas (OPAREAS), the Special Use
Airspaces, San Clemente Island, and the overlap with Point Mugu Sea
Range for certain anti-submarine warfare (ASW) training. The
description contained in the proposed rule has not changed. See 73 FR
60836, page 60837.
Description of the Specified Activities
The proposed rule contains a complete description of the Navy's
specified activities that are covered by these final regulations, and
for which the associated incidental take of marine mammals will be
authorized in the related LOAs. The proposed rule
[[Page 3883]]
describes the nature of the activities involving both mid and high-
frequency active sonar (MFAS and HFAS) and explosive detonations, as
well as the MFAS and HFAS sound sources and explosive types. See 73 FR
60836, pages 60837-60847. The narrative description of the action
contained in the proposed rule has not changed, with the exception of
the change from IEER to AEER described in the paragraph below. Tables
1, 2, and 3 summarize the sonar and explosive exercise types used in
the Navy's activities and hours of sonar operation conducted.
The Navy is developing the Advanced Extended Echo Ranging (AEER)
system as a replacement to the IEER system. AEER would use a new active
sonobuoy (AN/SSQ-125) that utilizes a tonal (or a sonar ping) vice
impulsive (or explosive) sound source as a replacement for the SSQ-110A
(the system used in IEER). AEER will still use the ADAR sonobuoy as the
systems receiver and be deployed by Marine Patrol Aircraft. As AEER is
introduced for Fleet use, IEER will be removed. The same total number
of buoys will be deployed as were presented in the proposed rule, but a
subset of them will be AEER instead of IEER. The small difference in
the number of anticipated marine mammal takes that will result from
this change is indicated in the take table, along with other minor
modifications. This small change in the take numbers did not affect
NMFS' analysis of and conclusions regarding the proposed action.
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Description of Marine Mammals in the Area of the Specified Activities
There are 41 marine mammal species with possible or confirmed
occurrence in the SOCAL Range Complex. Nine marine mammal species
listed as federally endangered under the Endangered Species Act (ESA)
can occur in the SOCAL Range Complex: The humpback whale, North Pacific
right whale, sei whale, fin whale, blue whale, sperm whale, southern
resident killer whale, Guadalupe fur seal, and Steller sea lion. The
proposed rule contains a discussion of three species that are not
considered further in the analysis (southern resident killer whale,
North Pacific right whale, and Steller sea lion) because of their
rarity in the SOCAL Range Complex. With the exception of marine mammal
abundance and Steller sea lion correction discussed below, the
Description of Marine Mammals in the Area of the Specified Activities
in the proposed rule remains unchanged (see 73 FR 60836, pages 60846-
60850).
For this rulemaking and subsequent 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).
These density estimates are included in Table 4 and remain unchanged
from the proposed rule. The proposed rule contains a description of the
methods used to estimate density. During the public comment period for
the proposed rule, several members of the public noted and commented
that the abundance numbers provided for some marine mammal species were
not from the latest NMFS stock assessment reports. Those numbers have
been updated in Table 4, which now includes the abundance estimates
from both the 2007 stock assessment reports and the draft 2008 reports.
This correction did not affect NMFS analysis, as take estimates are
based on density estimates (not abundance estimates), which remain
unchanged from those presented in the proposed rule.
The proposed rule indicated (73 FR 60836, page 60849) that the last
sighting of a Steller sea lion in Southern California was that of a sub
adult male that was briefly on San Miguel Island in 1998. In fact, a
Steller sea lion was sighted in Newport Harbor in April 2008 and a
Steller sea lion (that may have been the same individual) live stranded
in Santa Barbara in the summer of 2008. This correction did not affect
NMFS analysis and, as indicated in the proposed rule, Steller sea lions
are not likely to be present in the action area or taken by the Navy's
specified activities.
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A Brief Background on Sound
The proposed rule contains a section that provides a brief
background on the principles of sound that are frequently referred to
in this rulemaking. See 73 FR 60836, pages 60850-60851. This section
also includes a discussion of the functional hearing ranges of the
different groups of marine mammals (by frequency) as well as a
discussion of the two main sound metrics used in NMFS analysis (sound
pressure level (SPL) and sound energy level (SEL)). The information
contained in the proposed rule has not changed.
Potential Effects of Specified Activities on Marine Mammals
With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A Harassment
(injury), or mortality, including an identification of the number and
types of take that could occur by Level A or B harassment or mortality)
and to prescribe other means of affecting the least practicable adverse
impact on such species or stock and its habitat (i.e., mitigation); (2)
to determine whether the specified activity will have a negligible
impact on the affected species or stocks of marine mammals (based on
the likelihood that the activity will adversely affect the species or
stock through effects on annual rates of recruitment or survival); (3)
to determine whether the specified activity will have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses (however, there are no subsistence communities that
would be affected in the SOCAL Range Complex, so this determination is
inapplicable for this rulemaking); and (4) to prescribe requirements
pertaining to monitoring and reporting.
In the Potential Effects of Specified Activities on Marine Mammals
Section of the proposed rule NMFS included a qualitative discussion of
the different ways that MFAS/HFAS and underwater explosive detonations
may potentially affect marine mammals (some of which NMFS would not
classify as harassment). See 73 FR 60836, pages 60851-60863. Marine
mammals may experience direct physiological effects (such as threshold
shift), acoustic masking, impaired communications, stress responses,
and behavioral disturbance. This section also included a discussion of
some of the suggested explanations for the association between the use
of MFAS and marine mammal strandings (such as behaviorally-mediated
bubble growth) that have been observed a limited number of times in
certain circumstances (the specific events are also described). See 73
FR 60836, pages 60859-60863. The information contained in the Potential
Effects of Specified Activities on Marine Mammals Section from the
proposed rule has not changed, with the exception of the following
sentence. On page 60861, NMFS said ``Other species (Stenella
coeruleoalba, Kogia breviceps and Balaenoptera acutorostrata) have
stranded, but in much lower numbers and less consistently than beaked
whales.'' As a member of the public pointed out, and as NMFS stated on
page 60860 of the proposed rule, there was no likely association
between the minke whale and spotted dolphin strandings referred to and
the operation of MFAS. Therefore, the sentence should read ``Other
species, such as Kogia breviceps, have stranded in association with the
operation of MFAS, but in much lower numbers and less consistently than
beaked whales.''
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Later, in the Estimated Take of Marine Mammals section, NMFS
relates and quantifies the potential effects to marine mammals from
MFAS/HFAS and underwater detonation of explosives discussed here to the
MMPA regulatory definitions of Level A and Level B Harassment. NMFS has
also considered the effects of mortality on these species.
Mitigation
In order to issue an incidental take authorization (ITA) under
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations
setting forth the ``permissible methods of taking pursuant to such
activity, and other means of affecting the least practicable adverse
impact on such species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.'' The NDAA of 2004 amended the MMPA as it relates to
military readiness activities and the incidental take authorization
process such that ``least practicable adverse impact'' shall include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the ``military readiness activity.'' The
SOCAL Range Complex activities described in the proposed rule are
considered military readiness activities.
NMFS reviewed the Navy's proposed SOCAL Range Complex activities
and the proposed SOCAL mitigation measures (which the Navy refers to as
Protective 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.
Any mitigation measure prescribed by NMFS should be known 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:
(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 worked with the Navy to identify potential additional
practicable and effective mitigation measures, which included a careful
balancing of the likely benefit of any particular measure to the marine
mammals with the likely effect of that measure on personnel safety,
practicality of implementation, and impact on the ``military-readiness
activity''. NMFS and the Navy developed a Stranding Response Plan to
address the concern listed above.
The Navy's proposed mitigation measures, as well as the Stranding
Response Plan, which is required under these regulations, were
described in detail in the proposed rule (73 FR 60836, pages 60863-
60870). The Navy's measures address personnel training, lookout and
watchstander responsibilities, and operating procedures for activities
using both MFAS/HFAS and explosive detonations. Three modifications
(see below) have been made to the mitigation measures described in the
proposed rule. The final SOCAL Stranding Response Plan, which includes
a shutdown protocol, a stranding investigation plan, and a requirement
for Navy and NMFS to implement an MOA that will establish a framework
whereby the Navy can (and provide the Navy examples of how they can
best) assist NMFS with stranding investigations in certain
circumstances, may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Additionally, the mitigation measures are
included in full in the codified text of the regulations.
The proposed rule (the regulatory text, not the preamble) contained
a measure in which the Navy indicated that ``prior to conducting the
exercise, remotely sensed sea surface temperature maps would be
reviewed. SINKEX shall not be conducted within areas where strong
temperature discontinuities are present, thereby indicating the
existence of oceanographic fronts.'' See 73 FR 60836, page 60904. The
Navy included this measure in the LOA application in error. The removal
of the measure does not change NMFS' analysis and therefore the measure
is not included in the final rule.
The following measure has been added to the Mitigation section of
the regulations: Night vision goggles shall be available to all ships
and air crews for use as appropriate.
Last, the same mitigation measures outlined for the IEER system in
the proposed rule will also be applied to the similar, but newly
described, AEER system.
NMFS has 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 mammal species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, while also considering
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity. The justification for
this conclusion is discussed in the Mitigation Conclusion section of
the proposed rule. See 73 FR 60836, pages 60870-60871. The Mitigation
Conclusion Section of the proposed rule has not changed. Research and
Conservation Measures for Marine Mammals.
The Navy provides a significant amount of funding and support for
marine research. The Navy provided $26 million in Fiscal Year 2008 and
plans for $22 million in Fiscal Year 2009 to universities, research
institutions, federal laboratories, private companies, and independent
researchers around the world to study marine mammals. Over the past
five years the Navy has funded over $100 million in marine mammal
research.
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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.
The Navy's 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 and the SOCAL Range Complex EIS, such as the Marine
Resource Assessments. Furthermore, research cruises by NMFS and by
academic institutions have received funding from the U.S. Navy.
The Navy has sponsored several workshops to evaluate the current
state of knowledge and potential for future acoustic monitoring of
marine mammals. The workshops brought together acoustic experts and
marine biologists from the Navy and other research organizations to
present data and information on current acoustic monitoring research
efforts and to evaluate the potential for incorporating similar
technology and methods on instrumented ranges. However, acoustic
detection, identification, localization, and tracking of individual
animals still requires a significant amount of research effort to be
considered a reliable method for marine mammal monitoring. The Navy
supports research efforts on acoustic monitoring and will continue to
investigate the feasibility of passive acoustics as a potential
mitigation and monitoring tool.
Overall, the Navy will continue to fund ongoing marine mammal
research, and is planning to coordinate long-term monitoring/studies of
marine mammals on various established ranges and operating areas. The
Navy will continue to research and contribute to university/external
research to improve the state of the science regarding marine species
biology and acoustic effects. These efforts include mitigation and
monitoring programs; data sharing with NMFS and via the literature for
research and development efforts.
Long-Term Prospective Study
Apart from this final rule, NMFS, with input and assistance from
the Navy and several other agencies and entities, will perform a
longitudinal observational study of marine mammal strandings to
systematically observe and record the types of pathologies and diseases
and investigate the relationship with potential causal factors (e.g.,
sonar, seismic surveys, weather). The proposed rule contained an
outline of the proposed study (73 FR 60836, pages 60837-60838). No
changes have been made to the longitudinal study as described in the
proposed rule.
Monitoring
In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the level of taking or impacts on populations of marine
mammals that are expected to be present.
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 effects analyses.
(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
(behaviorally or physiologically) 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).
(d) An increased knowledge of the affected species.
(e) An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.
(f) A better understanding and record of the manner in which the
authorized entity complies with the incidental take authorization.
Proposed Monitoring Plan for the SOCAL Range Complex
As NMFS indicated in the proposed rule, the Navy has (with input
from NMFS) fleshed out the details of and made improvements to the
SOCAL Range Complex Marine Mammal and Sea Turtle Monitoring Plan
(Monitoring Plan). Additionally, NMFS and the Navy have incorporated a
recommendation from the public, which recommended the Navy hold a
workshop to discuss the Navy's Monitoring Plan (see Monitoring Workshop
section). The final SOCAL Range Complex Monitoring Plan, which is
summarized below may be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Navy plans to implement all of the
components of the Monitoring Plan; however, only the marine mammal
components (not the sea turtle components) will be required by the MMPA
regulations and associated LOAs.
The draft Monitoring Plan for the SOCAL Range Complex has been
designed as a collection of focused ``studies'' (described fully in the
SOCAL Range Complex Monitoring Plan) to gather data that will allow the
Navy to address the following questions:
(1) Are marine mammals and sea turtles 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?
(2) If marine mammals and sea turtles 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?
(3) If marine mammals and sea turtles are exposed to MFAS, what are
their behavioral responses to various levels?
[[Page 3888]]
(4) What are the behavioral responses of marine mammals and sea
turtles that are exposed to explosives at specific levels?
(5) Is the Navy's suite of mitigation measures for MFAS and
explosives (e.g., PMAP, major exercise measures agreed to by the Navy
through permitting) effective at avoiding TTS, injury, and mortality of
marine mammals and sea turtles?
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:
Visual Surveys--Vessel and aerial.
Passive Acoustic Monitoring (PAM), including working with
the passive acoustic detection capabilities of Navy's SOAR fixed range.
Marine Mammal Observers (MMOs) on Navy Vessels.
Marine Mammal Tagging.
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 activities utilizing MFAS/HFAS or explosive detonations. Table 5
contains a summary of the monitoring effort that is planned for each
study in each year (effort may vary slightly between years or study
type, but overall effort will remain constant). The SOCAL Range Complex
Monitoring Plan is designed to collect data on all marine mammals and
sea turtles encountered during monitoring studies. However, priority
will be given to ESA-listed species and taxa in which MFAS exposure,
under certain circumstances and strandings have been linked (beaked
whales and other deep-diving species).
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Monitoring Workshop
During the public comment period on the SOCAL Range Complex
proposed rule (as well as the Hawaii Range Complex proposed rule), NMFS
received a comment which, in consultation with the Navy, we have chosen
to incorporate into the final rule (in a modified form). One commenter
recommended that a workshop or panel be convened to solicit input on
the monitoring plan from researchers, experts, and other interested
parties. The SOCAL Range Complex proposed rule included an adaptive
management component and both NMFS and the Navy believe that a workshop
would provide a means for Navy and NMFS to consider input from
participants in determining whether or how to modify monitoring
techniques to more effectively accomplish the goals of monitoring set
forth earlier in the document. NMFS and the Navy believe that this
workshop concept is valuable in relation to all of the Range Complexes
and major training exercise rules and LOAs that NMFS is working on with
the Navy at this time, and consequently this single Monitoring Workshop
will be included as a component of all of the rules and LOAs that NMFS
will be processing for the Navy in the next year or so.
The Navy, with guidance and support from NMFS, will convene a
Monitoring Workshop, including marine mammal and acoustic experts as
well as other interested parties, in 2011. The Monitoring Workshop
participants will review the monitoring results from the previous two
years of monitoring pursuant to the SOCAL Range Complex rule as well as
monitoring results from other Navy rules and LOAs (e.g., the Atlantic
Fleet Active Sonar Training, Hawaii Range Complex (HRC), and other
rules). The Monitoring Workshop participants would provide their
individual recommendations to the Navy and NMFS on the monitoring
plan(s) after also considering the current science (including Navy
research and development) and working within the framework of available
resources and feasibility of implementation. NMFS and the Navy would
then analyze the input from the Monitoring Workshop participants and
determine the best way forward from a national perspective. Subsequent
to the Monitoring Workshop, modifications would be applied to
monitoring plans as appropriate.
Integrated Comprehensive Monitoring Program
In addition to the Monitoring Plan for the SOCAL Range Complex, the
Navy will complete the Integrated Comprehensive Monitoring Program
(ICMP) Plan by the end of 2009. The ICMP will provide the overarching
coordination that will support compilation of data from range-specific
monitoring plans (e.g., SOCAL Range Complex plan) as well as Navy
funded research and development (R&D) studies. The ICMP will coordinate
the monitoring program's progress towards meeting its goals and develop
a data management plan. The ICMP will be evaluated annually to provide
a matrix for progress and goals for the following year, and will make
recommendations on adaptive management for refinement and analysis of
the monitoring methods.
The primary objectives of the ICMP are to:
Monitor and assess the effects of Navy activities on
protected species;
Ensure that data collected at multiple locations is
collected in a manner that allows comparison between and among
different geographic locations;
Assess the efficacy and practicality of the monitoring and
mitigation techniques;
Add to the overall knowledge-base of marine species and
the effects of Navy activities on marine species.
The ICMP will be used both as: (1) A planning tool to focus Navy
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy
Range Complexes and Exercises; and (2) an adaptive management tool,
through the consolidation and analysis of the Navy's monitoring and
watchstander data, as well as new information from other Navy programs
(e.g., R&D), and other appropriate newly published information.
In combination with the 2011 Monitoring Workshop and the adaptive
management component of the SOCAL Range Complex rule and the other
planned Navy rules (e.g., AFAST and HRC), the ICMP could potentially
provide a framework for restructuring the monitoring plans and
allocating monitoring effort based on the value of particular specific
monitoring proposals (in terms of the degree to which results would
likely contribute to stated monitoring goals, as well as the likely
technical success of the monitoring based on a review of past
monitoring results) that have been developed through the ICMP
framework, instead of allocating based on maintaining an equal (or
commensurate to effects) distribution of monitoring effort across Range
complexes. For example, if careful prioritization and planning through
the ICMP (which would include a review of both past monitoring results
and current scientific developments) were to show that a large, intense
monitoring effort in Hawaii would likely provide extensive, robust and
much-needed data that could be used to understand the effects of sonar
throughout different geographical areas, it may be appropriate to have
other Range Complexes dedicate money, resources, or staff to the
specific monitoring proposal identified as ``high priority'' by the
Navy and NMFS, in lieu of focusing on smaller, lower priority projects
divided throughout their home Range Complexes.
The ICMP will identify:
A means by which NMFS and the Navy would jointly consider
the previous year's monitoring results and advancing science to
determine if modifications are needed in mitigation or monitoring
measures to better effect the goals laid out in the Mitigation and
Monitoring sections of the SOCAL Range Complex rule.
Guidelines for prioritizing monitoring projects.
If, as a result of the workshop and similar to the example
described in the paragraph above, the Navy and NMFS decide it is
appropriate to restructure the monitoring plans for multiple ranges
such that they are no longer evenly allocated (by Range Complex), but
rather focused on priority monitoring projects that are not necessarily
tied to the geographic area addressed in the rule, the ICMP will be
modified to include a very clear and unclassified record-keeping system
that will allow NMFS and the public to see how each Range Complex/
project is contributing to all of the ongoing monitoring (resources,
effort, money, etc.).
Past Monitoring in the SOCAL Range Complex
The proposed rule contained a detailed review of the previous
marine mammal monitoring conducted in the SOCAL Range Complex, which
was conducted in compliance with the terms and conditions of multiple
biological opinions issued for MFAS activities (73 FR 60836, pages
60873-60875). No changes have been made to the discussion contained in
the proposed rule.
Adaptive Management
The final regulations governing the take of marine mammals
incidental to Navy activities in the SOCAL Range Complex will contain
an adaptive
[[Page 3890]]
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 continues to improve. 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). 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 mitigation or monitoring measures should be
modified or added (or deleted) if new data suggests that such
modifications are appropriate (or are not appropriate) for subsequent
annual LOAs.
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).
Findings of the Workshop that the Navy will convene in
2011 to analyze monitoring results to date, review current science, and
recommend modifications, as appropriate to the monitoring protocols to
increase monitoring effectiveness.
Compiled results of Navy funded research and development
(R&D) studies (presented pursuant to the ICMP, which is discussed
elsewhere in this document).
Results from specific stranding investigations (either
from the SOCAL Range Complex or other locations, involving the
coincident MFAS/HFAS of explosives training or not involving the
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 (or deleted) if new
data suggests that such modifications would have (or do not have) a
reasonable likelihood of accomplishing the goals of mitigation laid out
in this final rule and if the measures are practicable. NMFS would also
coordinate with the Navy to modify or add to (or delete) the existing
monitoring requirements if the new data suggest that the addition of
(or deletion of) a particular measure would more effectively accomplish
the goals of monitoring laid out in this final rule. The reporting
requirements associated with this rule are designed to provide NMFS
with monitoring data from the previous year to allow NMFS to consider
the data and issue annual LOAs. NMFS and the Navy will meet annually
(prior to LOA issuance, except in the year of the Monitoring Workshop)
to discuss the monitoring reports, Navy R&D developments, and current
science and whether mitigation or monitoring modifications are
appropriate.
Reporting
In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. Effective reporting is
critical to ensure compliance with the terms and conditions of an LOA,
and to provide NMFS and the Navy with data of the highest quality based
on the required monitoring.
As NMFS noted in its proposed rule, additional detail has been
added to the reporting requirements since they were outlined in the
proposed rule. The updated reporting requirements are all included
below. A subset of the information provided in the monitoring reports
may be classified and not releasable to the public.
NMFS will work with the Navy to develop tables that allow for
efficient submission of the information required below.
General Notification of Injured or Dead Marine Mammals
Navy personnel will ensure that NMFS (regional stranding
coordinator) is notified immediately (or as soon as operational
security allows) 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 Stranding Response Plan
contains more specific reporting requirements for specific
circumstances.
Annual SOCAL Range Complex Monitoring Plan Report
The Navy shall submit a report annually on October 1 describing the
implementation and results (through August 1 of the same year) of the
SOCAL Range Complex Monitoring Plan, described above. Data collection
methods will be standardized across range complexes to allow for
comparison in different geographic locations. Although additional
information will also be gathered, marine mammal observers (MMOs)
collecting marine mammal data pursuant to the SOCAL Range Complex
Monitoring Plan shall, at a minimum, provide the same marine mammal
observation data required in the MFAS/HFAS major Training Exercises
section of the Annual SOCAL Range Complex Exercise Report referenced
below.
The SOCAL Range Complex Monitoring Plan Report may be provided to
NMFS within a larger report that includes the required Monitoring Plan
Reports from multiple Range Complexes.
Annual SOCAL Range Complex Exercise Report
The Navy will submit an Annual SOCAL Range Complex Exercise Report
on October 1 of every year (covering data gathered through August 1).
This report shall contain the subsections and information indicated
below.
MFAS/HFAS Major Training Exercises
This section shall contain the following information for
Integrated, Coordinated, and Major Training Exercises (MTEs), which
include Ship ASW Readiness and Evaluation Measuring (SHAREM),
Sustainment Exercises, Integrated ASW Course Phase II (IAC2), Composite
Training Unit Exercises (COMPTUEX), and Joint Task Force Exercises
(JTFEX) conducted in the SOCAL Range Complex:
(a) Exercise Information (for each MTE):
(i) Exercise designator.
(ii) Date that exercise began and ended.
(iii) Location.
(iv) Number and types of active sources used in the exercise.
(v) Number and types of passive acoustic sources used in exercise.
(vi) Number and types of vessels, aircraft, etc., participating in
exercise.
(vii) Total hours of observation by watchstanders.
(viii) Total hours of all active sonar source operation.
(ix) Total hours of each active sonar source (along with explanation of
how hours are calculated for sources typically quantified in alternate
way (buoys, torpedoes, etc.)).
(x) Wave height (high, low, and average during exercise).
(b) Individual marine mammal sighting info (for each sighting in
each MTE):
[[Page 3891]]
(i) Location of sighting.
(ii) Species (if not possible--indication of whale/dolphin/pinniped).
(iii) Number of individuals.
(iv) Calves observed (y/n).
(v) Initial Detection Sensor.
(vi) Indication of specific type of platform observation made from
(including, for example, what type of surface vessel, i.e., FFG, DDG,
or CG).
(vii) Length of time observers maintained visual contact with marine
mammal(s).
(viii) Wave height (in feet).
(ix) Visibility.
(x) Sonar source in use (y/n).
(xi) Indication of whether animal is <200yd, 200-500yd, 500-1000yd,
1000-2000yd, or >2000yd from sonar source in (x) above.
(xiii) Mitigation Implementation--Whether operation of sonar sensor was
delayed, or sonar was powered or shut down, and how long the delay was.
(xiv) If source in use (x) is hullmounted, true bearing of animal from
ship, true direction of ship's travel, and estimation of animal's
motion relative to ship (opening, closing, parallel).
(xv) Observed behavior--Watchstanders shall report, in plain language
and without trying to categorize in any way, the observed behavior of
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.).
(c) An evaluation (based on data gathered during all of the MTEs)
of the effectiveness of mitigation measures designed to avoid exposing
animals to mid-frequency sonar. This evaluation shall identify the
specific observations that support any conclusions the Navy reaches
about the effectiveness of the mitigation.
ASW Summary
This section shall include the following information as summarized
from both MTEs and non-major training exercises (unit-level exercises,
such as TRACKEXs):
(i) Total annual hours of each type of sonar source (along with
explanation of how hours are calculated for sources typically
quantified in alternate way (buoys, torpedoes, etc.)).
(iv) Cumulative Impact Report--To the extent practicable, the Navy,
in coordination with NMFS, shall develop and implement a method of
annually reporting non-major (i.e., other than MTEs) training exercises
utilizing hull-mounted sonar. The report shall present an annual (and
seasonal, where practicable) depiction of non-major training exercises
geographically across the SOCAL Range Complex. The Navy shall include
(in the SOCAL Range Complex annual report) a brief annual progress
update on the status of the development of an effective and
unclassified method to report this information until an agreed-upon
(with NMFS) method has been developed and implemented.
SINKEXs
This section shall include the following information for each
SINKEX completed that year:
(a) Exercise info:
(i) Location.
(ii) Date and time exercise began and ended.
(iii) Total hours of observation by watchstanders before, during, and
after exercise.
(iv) Total number and types of rounds expended/explosives detonated.
(v) Number and types of passive acoustic sources used in exercise.
(vi) Total hours of passive acoustic search time.
(vii) Number and types of vessels, aircraft, etc., participating in
exercise.
(viii) Wave height in feet (high, low and average during exercise).
(ix) Narrative description of sensors and platforms utilized for marine
mammal detection and timeline illustrating how marine mammal detection
was conducted.
(b) Individual marine mammal observation (by Navy lookouts) info:
(i) Location of sighting.
(ii) Species (if not possible--indication of whale/dolphin/pinniped).
(iii) Number of individuals.
(iv) Calves observed (y/n).
(v) Initial detection sensor.
(vi) Length of time observers maintained visual contact with marine
mammal.
(vii) Wave height.
(viii) Visibility.
(ix) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
(x) Distance of marine mammal from actual detonations (or target spot
if not yet detonated)--use four categories to define distance: (1) The
modeled injury threshold radius for the largest explosive used in that
exercise type in that OPAREA (738 m for SINKEX in the SOCAL Range
Complex); (2) the required exclusion zone (1 nm for SINKEX in SOCAL
Range Complex); (3) the required observation distance (if different
than the exclusion zone (2 nm for SINKEX in SOCAL Range Complex); and
(4) greater than the required observed distance. For example, in this
case, the observer would indicate if < 738 m, from 738 m-1 nm, from 1
nm-2 nm, and > 2 nm.
(xi) Observed behavior--Watchstanders will report, in plain language
and without trying to categorize in any way, the observed behavior of
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and
direction.
(xii) Resulting mitigation implementation--Indicate whether explosive
detonations were delayed, ceased, modified, or not modified due to
marine mammal presence and for how long.
(xiii) If observation occurs while explosives are detonating in the
water, indicate munition type in use at time of marine mammal
detection.
Improved Extended Echo-Ranging System (IEER) and Advanced Extended
Echo-Ranging System (AEER) Summary
This section shall include an annual summary of the following IEER/
AEER information:
(i) Total number of IEER and AEER events conducted in the SOCAL Range
Complex.
(ii) Total expended/detonated rounds (buoys).
(iii) Total number of self-scuttled IEER rounds.
Explosives Summary
The Navy is in the process of improving the methods used to track
explosive use to provide increased granularity. To the extent
practicable, the Navy will provide the information described below for
all of their explosive exercises. Until the Navy is able to report in
full the information below, they will provide an annual update on the
Navy's explosive tracking methods, including improvements from the
previous year.
(i) Total annual number of each type of explosive exercise (of those
identified as part of the ``specified activity'' in this final rule)
conducted in the SOCAL Range Complex.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.) for
each explosive type.
[[Page 3892]]
Sonar Exercise Notification
The Navy shall submit to the NMFS Office of Protected Resources
(specific contact information to be provided in LOA) either an
electronic (preferably) or verbal report within fifteen calendar days
after the completion of any MTE (Sustainment, IAC2, SHAREM, COMPTUEX,
or JTFEX) indicating:
(1) Location of the exercise.
(2) Beginning and end dates of the exercise.
(3) Type of exercise.
SOCAL Range Complex 5-Yr 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 ASW and explosive exercises for which annual reports are
required (Annual SOCAL Range Complex Exercise Reports and SOCAL Range
Complex Monitoring Plan Reports). This report will be submitted at the
end of the fourth year of the rule (November 2012), covering activities
that have occurred through June 1, 2012.
Comprehensive National ASW Report
By June, 2014, the Navy shall submit a draft National Report that
analyzes, compares, and summarizes the active sonar data gathered
(through January 1, 2014) from the watchstanders and pursuant to the
implementation of the Monitoring Plans for the SOCAL Range Complex, the
Atlantic Fleet Active Sonar Training, the HRC, the Marianas Range
Complex, the Northwest Training Range, the Gulf of Alaska, and the East
Coast Undersea Warfare Training Range.
The Navy shall respond to NMFS comments and requests for additional
information or clarification on the SOCAL Range Complex Comprehensive
Report, the Comprehensive National ASW report, the Annual SOCAL Range
Complex Exercise Report, or the Annual SOCAL Range Complex Monitoring
Plan Report (or the multi-Range Complex Annual Monitoring Plan Report,
if that is how the Navy chooses to submit the information) if submitted
within 3 months of receipt. These reports will be considered final
after the Navy has addressed NMFS' comments or provided the requested
information, or three months after the submittal of the draft if NMFS
does not comment by then.
SOCAL
Comments and Responses
On October 14, 2008 (73 FR 60836), NMFS published a proposed rule
in response to the Navy's request to take marine mammals incidental to
military readiness training exercises in SOCAL and requested comments,
information and suggestions concerning the request. During the 30-day
public comment period, NMFS received 8 comments from private citizens,
comments from the Marine Mammal Commission (MMC) and several sets of
comments from non-governmental organizations, including, the Natural
Resources Defense Council (NRDC) (which commented on behalf of The
Humane Society of the United States, the International Fund for Animal
Welfare, Whale and Dolphin Conservation Society, Cetacean Society
International, Pamlico Tar River Foundation, League for Coastal
Protection, and Ocean Futures Society and its founder Jean-Michel
Cousteau), the Cascadia Research Collective (CRC), Ziphius EcoServices,
and Smultea Environmental Sciences, LLC. The comments are summarized
and sorted into general topic areas and are addressed below. Full
copies of the comment letters may be accessed at www.regulations.gov.
Monitoring and Reporting
Comment 1: One commenter stated that ``It is advisable to hold a
multi-day workshop to discuss controversial issues related to the
problem.'' The commenter further indicated that the workshop should
include representatives from the Navy, NMFS, relevant marine mammal
researchers, NGOs (e.g., NRDC), and invited experts on certain topics
of interest. The goal of the workshop should be to move towards
consensus on a way forward for the monitoring plan. Another commenter
suggested that outside expert review of the ICMP by professional marine
mammal biologists was needed.
Response: NMFS believes that a workshop consisting of the Navy,
NMFS, researchers, invited experts, and other interested parties, in
combination with an adaptive management plan that allows for
modification to the monitoring plan, would provide a means for the Navy
to potentially make changes to the Monitoring Plan that would more
effectively accomplish some of the goals of monitoring set forth
earlier in the Monitoring section. NMFS and the Navy have coordinated
on this point and the Navy will convene a workshop, to include (among
others) outside marine mammal experts, in 2011. The workshop and how it
will interact with the adaptive management component are discussed in
the Monitoring Workshop section of this final rule. The Monitoring
Workshop participants will be asked to submit individual
recommendations to the Navy and NMFS, and both agencies will work
together to determine whether modifications to the SOCAL Range Complex
monitoring are necessary based on the recommendations. As necessary,
NMFS would incorporate any changes into future LOAs and future rules.
However, NMFS disagrees with the commenter's suggestion that the
workshop participants seek to achieve consensus on a way forward for
the monitoring plan. NMFS has statutory responsibility to prescribe
regulations pertaining to monitoring and reporting, and will in
coordination with the Navy, develop the most effective and appropriate
monitoring and reporting protocols for future authorizations.
Comment 2: Two commenters made several recommendations regarding
the formatting and understandability of the monitoring plan, including
recommending additional text. For example, one commenter recommended
the Navy add a list of acronyms and another recommended adding text
explaining that dropping sonobuoys from monitoring observation aircraft
is another potential method of PAM whose feasibility and utility should
be assessed as part of the SCMP.
Response: NMFS and the Navy incorporated these recommendations
where appropriate. For example, both of the above examples were
incorporated. However, we did not incorporate the commenter's
recommendations in all cases, if we believed doing so, for example,
would needlessly lengthen and complicate the Plan or generally be
duplicative with the analytical contents of the rule.
Comment 3: One commenter stated: ``The Navy improperly assumes that
they have no impact on the marine mammals. It is clear that the draft
plan begins with the assumption that the Navy has no impact on marine
mammals, or that the current mitigation is adequate to eliminate
impacts. This is not supported by facts, and it invalidates the entire
purpose of the plan. The Navy must acknowledge that sonar testing may
indeed impact marine mammals and provide references, and must be
willing to work as an active partner in a plan to investigate the
extent and severity of such impacts, and how to reduce them to
insignificant levels. Otherwise, this entire exercise is just `window
dressing' and will be a major waste of taxpayer dollars.''
Response: NMFS disagrees with this commenter's assertion. It is
possible that the commenter mistook the fact that the Navy phrased some
of their goals as null hypotheses (``If marine mammals and
[[Page 3893]]
sea turtles are exposed to MFAS, what are their behavioral responses?
Are they different at various levels?'') to mean that they think there
are no effects. The Navy's LOA application and EIS clearly discuss the
potential adverse effects that marine mammals may experience when
exposed to MFAS/HFAS and explosive detonations. The Navy has and will
continue to work as an active partner to investigate the extent and
severity of the impacts and how to reduce them (see Navy Research
section of this final rule).
Regarding the issue of the mitigation being adequate to eliminate
impacts, nowhere does either the Navy or NMFS indicate that the current
mitigation will eliminate impacts. The MMPA requires that NMFS put
forth the means of effecting the least practicable adverse impacts. As
discussed in the Mitigation section of the proposed rule, NMFS has
determined that the final required mitigation accomplishes this. If it
were possible to eliminate impacts to marine mammals, an MMPA
authorization would not be necessary.
Comment 4: Two commenters were concerned that the Navy used the
term ``relative distance'' when describing the data that would be
gathered for marine mammals and sound sources and indicated that
precise measurements are needed to draw accurate conclusions.
Response: GPS measurements are used for the majority of Navy data,
both for ship tracks and marine mammal sightings. The word ``relative''
was used because in some cases the Navy cannot report exactly where
their exercise is for security reasons, but they can report exactly
where the marine mammal was relative to the sound source.
Comment 5: A few commenters asked why the Navy did not consider
additional survey methods, or modifications to the existing methods,
beyond those currently included in the plan, such as: dropping
sonobuoys from airplanes, specified focal follows of one animal before,
during, and after sonar; photo-identification of marine mammals to look
at residency patterns; or doing biopsy sampling to assess stress
hormones.
Response: There are many different methods available with which to
monitor marine mammals and the Navy considered a wide range of methods
in the development of their plan. NMFS considered all of the public
comments (including the recommended additional survey methods) received
during this rulemaking. Some of the methods suggested by the public,
such as the photo-identification method, would likely be feasible and
provide useful information (and in fact, the Navy will take photographs
whenever feasible), while other methods, such as biopsy sampling (which
would require a new research permit), would be more difficult both
financially and operationally. Nevertheless, the Navy must work within
the framework of the available resources and the operational
constraints associated with doing work in the vicinity of a complex
military exercise. NMFS provided input during the development of the
plan and believes that results from the required monitoring will
provide valuable information regarding the effects of MFAS on marine
mammals. Additionally, by including the Monitoring Plan as a
requirement of the regulations and LOA, NMFS is compliant with the MMPA
requirement to prescribe regulations setting forth the requirements
pertaining to the monitoring and reporting of taking. That being said,
the Navy and NMFS understand the importance of marine mammal monitoring
to determine the effects of MFAS, which is why the Navy agreed to
conduct the Workshop referred to in Comment 1 during which the
workshop participants will review and assess the monitoring results
(from this Monitoring Plan and others from other Range complexes and
areas) and make informed recommendations for how to move forward with
the best monitoring strategy.
Comment 6: One commenter asked that the Navy specify somewhere in
the Monitoring Plan that any potentially stranded animals will be
photographed for individual identification purposes.
Response: When possible, every attempt will be made to
opportunistically collect concurrent digital video and digital
photographs of animals under observation by both vessels and aircraft.
Direct experience with aerial monitoring within the Hawaii and SOCAL
Range Complexes in 2008 revealed the value of these techniques for on-
site and off-site species identification or confirmation, and for
assistance in reviewing a given animal's behavioral state after the
survey. Language to this effect has been added to the Monitoring Plan.
Comment 7: One commenter questioned who will conduct the Adaptive
Management Review and whether professional marine mammal and sea turtle
biologists will be involved as advisors on a regular basis.
Response: The NMFS and the Navy will conduct the Adaptive
Management Reassessment review to examine the prior year's monitoring
lessons learned, integrate new science, and re-direct monitoring based
on input from the scientific community. As mentioned in comment 1,
professional marine mammal biologists will be involved in the 2011
Monitoring Workshop.
Comment 8: One commenter noted that there is a lot of emphasis on
collection of data by Navy watchstanders, but the Navy must acknowledge
the limitation of these kinds of data. The relatively low level of
training and experience by these people (in relation to professional
marine mammal biologists) will make the data collected of little value.
Another commenter similarly notes that the marine species awareness
training consists primarily of watching a DVD, which is insufficient to
ensure that they accurately detect many species.
Response: The vast majority of the monitoring (pursuant to the
monitoring plan) will be conducted by independent marine mammal
scientists. Alternately, Navy lookouts are responsible for detecting
marine mammal presence within the safety zone so that the mitigation
can be implemented. Navy lookouts are specifically trained to detect
anomalies in the water around the ship and both the safety of Navy
personnel and success in the training exercise depend on the lookout
being able to detect objects (or marine mammals) effectively around the
ship. NMFS has reviewed the Navy's After Action Reports from previous
exercises and they show that lookouts are detecting marine mammals, and
implementing sonar shutdowns as required when they do. That said, the
SOCAL Range Complex Monitoring Plan contains a study in which Navy
lookouts will be on watch simultaneously with non-Navy marine mammal
observers and their detection rates will be compared. Though Navy
lookouts are not trained biologists and may not always be able to
identify a marine mammal to species, NMFS believes that if data is
gathered systematically and in sufficient detail (as described in the
Reporting section of the rule), Navy lookouts will provide important
encounter rate data that will allow comparisons between lookouts and
MMOs, as well as between when sonar is on or off.
Comment 9: One commenter stated that it would seem to be a conflict
of interest to be using Navy personnel to monitor training activity
areas for marine mammals [during their own activities].
Response: The Navy is responsible for both the funding and
implementation of a substantial amount of marine mammal and acoustic
research and NMFS has no concerns regarding the objectivity of the
reported results from either these research projects or the monitoring
required pursuant to the MMPA
[[Page 3894]]
authorization. It is definitely not a conflict of interest since the
statute requires a permit holder to comply with regulations related to
the incidental taking of marine mammals, including monitoring and
reporting requirements.
Comment 10: During aerial surveys, information on headings/
orientation of animals should be collected as these data can later be
examined to assess movement/response of animals relative to locations
and received sound levels of MFAS and underwater detonations.
Response: As NMFS noted in the proposed rule, additional detail has
been added to the Reporting Requirements section of the final rule. A
requirement that Navy lookouts report the relative directions of both
the marine mammals and the sonar source has been included. NMFS also
included a requirement that the MMOs collecting data for the Monitoring
Plan collect, at a minimum, the same data outlined in the Reporting
Requirements section for the Navy lookouts.
Comment 11: Commenters questioned whether the Navy had considered
whether a statistically sound sample size had been developed to answer
the questions that monitoring is trying to answer.
Response: The Navy will contract a team of marine mammal experts to
implement the monitoring plan and fine-tune the sample size and
analysis parameters. The data from the SOCAL Range Complex will be
pooled (as appropriate) with data collected from other range complexes
to maximize data collection each year. No conclusions will be made
without a statistically valid sample size.
Comment 12: One commenter stated: ``The Navy should establish a
long-term research program, perhaps conducted by NMFS or by an
independent agent, on the distribution, abundance, and population
structuring of protected species on the SOCAL Range Complex, with the
goal of supporting adaptive geographic avoidance of high-value
habitat.'' Another commenter suggests that the Navy should conduct
research and development of technologies to reduce the impacts of
active acoustic sources on marine mammals.
Response: The MMPA does not require that individuals who have
received an incidental take authorization conduct research. As
mentioned above, the mitigation EA addresses geographic avoidance of
high-value habitat. Separately, the Navy has voluntarily developed and
funded a number of research plans that are designed to address
technologies to reduce the impacts of active acoustic sources on marine
mammals (see Research section).
Mitigation
Comment 13: The Marine Mammal Commission recommends that NMFS:
(a) Clarify which monitoring and mitigation measures will be
required, in light of the fact that a revised Monitoring Plan was
posted after the proposed rule was published.
(b) Require performance testing and validation of those measures
(and the MMC suggests that NMFS did not review, and the rule does not
include reference to, five post-exercise reports that the Navy
submitted to us for 2006/2007 exercises in the SOCAL Range Complex).
(c) Require new measures to address remaining monitoring and
mitigation shortcomings. The MMC suggests that visual and passive
acoustic monitoring offer only limited detection capability but notes
that NMFS asserts that more than 60 potential lethal or injurious takes
have been mitigated to zero by posting visual observers and
opportunistic monitoring using sonobuoys and other existing passive
acoustic sensing capabilities.
(d) Work with the Navy to develop a database for storing original
records of marine mammal interactions; the database should meet the
Navy's security requirements but also maintain what are potentially
valuable records about the Navy's interactions with and effects on
marine mammals. The MMC notes that the proposed rule indicates that the
ship's logs of sightings, power-downs, and other mitigation actions are
retained only for 30 days.
Response: Following are responses to MMC's alphabetized sub-
comments:
(a) The final required mitigation measures are exactly the same as
those described in the proposed rule. As described in the proposed
rule, the Monitoring Plan contains a table that generally describes the
level of effort that the Navy has committed to in the monitoring, but
the Navy continued to develop and improve the Monitoring Plan for the
SOCAL Range Complex (based on public comments, among other input)
throughout the MMPA and ESA processes. The Monitoring Plan will be
finalized prior to the issuance of the first LOA, but we note that
flexibility remains for the implementation team (the independent
scientist contractors that the Navy will hire to conduct the
monitoring) to further refine the specific protocols as appropriate.
(b) Navy lookouts are specifically trained to detect anomalies in
the water around the ship and both the safety of Navy personnel and
success in the training exercise depend on the lookout being able to
detect objects (or marine mammals) effectively around the ship. NMFS
has reviewed the Navy's After Action Reports from previous exercises
and they show that lookouts are detecting marine mammals and
implementing sonar shutdowns as required. That said, the SOCAL Range
Complex Monitoring Plan contains a study in which Navy lookouts will be
on watch simultaneously with non-Navy marine mammal observers and their
detection rates will be compared. Additionally, the regulations and
subsequent authorization would require the Navy to provide ``an
evaluation (based on data gathered during all of the major training
exercises) of the effectiveness of mitigation measures designed to
avoid exposing marine mammals to mid-frequency sonar. This evaluation
shall identify the specific observations that support any conclusions
the Navy reaches about the effectiveness of the mitigation included in
the authorization.'' Last, the rule contains an adaptive management
component that specifies that NMFS and the Navy will meet on an annual
basis to evaluate the Navy Reports (on both Navy lookout observations
as well as Monitoring Plan reporting) and other new information (such
as Navy R&D developments or new science) to ascertain whether
mitigation or monitoring modifications are appropriate.
Contrary to the MMC's assertion, NMFS included both a summary table
of (Table 7 in proposed rule), and general conclusions related to, 12
post exercise reports that the Navy submitted for exercises conducted
in 2006 and 2007. NMFS agrees that the review of post-exercise reports
is critical, and through the implementation of the more rigorous
reporting requirements that have been laid out in the final rule
(versus the proposed rule) we should be able to reach well-supported
conclusions regarding the effects of MFAS on marine mammals.
(c) As described in the proposed rule, NMFS's analysis does not
assert that 60+ injuries or mortalities are completely alleviated by
mitigation implementation. Rather, we explain that, in the first place,
the model that estimated 60 injuries and mortalities does not take into
consideration at all that a subset of animals will avoid operating
sound sources (or even vessels without operating sources), which means
that fewer than 60 animals would be likely to get close enough to be
exposed to levels expected to result in injury or death. For MFAS,
animals
[[Page 3895]]
would need to approach within 10 m of the sound source to be exposed to
levels likely to result in injury. For explosives, the larger charges
have effects at greater distances, but they also have very rigorous
clearance procedures that include monitoring the area for 2 hours in
advance of the exercise. Nonetheless, NMFS acknowledges the opportunity
for improvement via the use of dedicated passive or active sonar to
detect marine mammals for mitigation implementation. However, current
technology does not allow the Navy to detect, identify, and localize
marine mammals and transmit this information to operators real-time
while also not substantially reducing the effectiveness of the fast-
paced and complicated exercises that the Navy must conduct. The Navy is
committed, however, to technological development in the area of marine
mammal protection and is currently funding multiple research projects
towards this goal (see Research section).
(d) Though the original ship logs are destroyed after 30 days, the
information pertaining to marine mammal observations and mitigation
implementation is passed along to environmental compliance staff who
are responsible for producing reports for NMFS and who already have a
system for retaining the needed information. However, under the ICMP,
NMFS will work with the Navy to ensure that all of the needed
information is saved (in a standard form across geographic areas),
which could potentially include the development of a new database.
Comment 14: One commenter noted that the training exercises that
the Navy proposes to conduct in the Southern California range from 2009
to 2014 are apparently very similar to those that have in the past
provoked extended litigation against the Navy by environmental groups
(e.g., the RIMPAC litigation in 2006 and the ongoing SOCAL case, NRDC
v. Winters, currently under review by the Supreme Court). The
environmental groups have, thus far, been successful in both of their
lawsuits against the Navy and the NMFS; each suit has required the Navy
to take much more rigorous measures to mitigate the environmental
impact of its sonar exercises. And yet neither the Navy nor the NMFS
appears to have incorporated the lessons of these legal actions into
their practices, as shown by the proposed regulation released for
comment. Specifically, the NRDC asserts that NMFS's proposed rule, as
well as the Navy's SOCAL Range Complex Draft Environmental Impact
Statement (``DEIS'') (73 FR 18522 (Apr. 4, 2008)) ignores mitigation
measures imposed specifically for the SOCAL Range Complex by courts in
California. See NRDC v. Winter 527 F.Supp.2d 1216 (C.D. Cal. 2008),
aff'd 518 F.3d 658 (9th Cir. 2008).
Response: The outcome of any litigation is based very specifically
on the content of the administrative record for the particular decision
that is being litigated. NMFS has worked closely with the Navy, both in
the development of the SOCAL Range Complex EIS and in the ESA and MMPA
consultations, to build a strong administrative record (both procedure
and content-wise) that supports our decisions under the applicable
statutes. Both NMFS and the Navy have incorporated lessons from the
aforementioned legal actions into our practices. For example, the Navy
(with NMFS support as a cooperating agency) chose to develop EISs for
their major MFAS training activities instead of relying on an
Environmental Assessment as they did in RIMPAC 2006. However, NMFS and
the Navy are still bound to make certain findings under different
statutes, and just because additional measures were imposed by the
court in previous similar cases does not mean that those measures are
appropriate in the specific context of the statutes that NMFS or the
Navy are endeavoring to comply with in a specific case. More
specifically, though, both NMFS and the Navy have considered the types
of measures recommended by the courts (see Mitigation EA). Finally, the
Supreme Court (Winter v. NRDC) recently sided with the Navy in NRDC's
challenge to the use of mid-frequency active sonar in the SOCAL Range
Complex. The court determined the Navy's need to conduct realistic
training with active sonar to respond to the threat posed by enemy
submarines plainly outweighs the interests advanced by the plaintiffs.
Comment 15: One commenter asserts that NMFS's analysis ignores or
improperly discounts an array of options that have been considered and
imposed by other active sonar users, including avoidance of coastal
waters, high-value habitat, and complex topography; the employment of a
safety zone more protective than the 1000-yard power-down and 200-yard
shutdown accepted by NMFS; general passive acoustic monitoring for
whales; special rules for surface ducting and low-visibility
conditions; monitoring and shutdown procedures for sea turtles and
large schools of fish; and many others. The commenter further provides
a detailed list of 30 additional measures that should be considered.
Other commenters made additional recommendations of mitigation measures
that should be considered.
Response: NMFS considered a wide range of mitigation options in our
analysis, including those listed by the commenters. 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 affecting 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 National Defense Authorization Act (NDAA)
of 2004 amended the MMPA as it relates to military-readiness activities
(which these Navy activities are) 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''.
NMFS worked with the Navy to identify practicable and effective
mitigation measures, which included a careful balancing of the likely
benefit of any particular measure to the marine mammals with the likely
effect of that measure on personnel safety, practicality of
implementation, and impact on the ``military-readiness activity''. NMFS
developed an Environmental Assessment (EA) that analyzes a suite of
possible mitigation measures in regard to potential benefits for marine
mammals (see goals of mitigation in the Mitigation section of this
proposed rule) and practicability for the Navy. That EA, which
considered all of the measures recommended by these public comments, is
currently available on the NMFS Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications) and has been relied upon to inform
NMFS's MMPA decision.
Comment 16: One commenter suggests that the graded response steps
for MFAS based on the distance at which marine mammals are sighted does
not make sense given the high proportion of time many marine mammal
species, especially long-divers, spend underwater. A beaked whale
sighted in the path of the vessel 600 yards ahead that then dives would
only require a decrease in source level by 6 dB, even though the
trajectory of the ship would take it directly over the animal while it
is underwater.
Response: The next ``graded'' mitigation measure says ``Should the
marine mammal be detected within or closing to inside 200 yds (183 m)
of the
[[Page 3896]]
sonar dome, active sonar transmissions shall cease.'' The ``or
closing'' part of this measure ensures that if the Navy vessel is
headed straight at an animal, they will use the appropriate measure.
Additionally, review of the Navy's after-action reports shows that in
the vast majority of marine mammal detections within 1000 yds, the Navy
immediately shuts down the sonar, without going through the power-down
step.
Comment 17: NRDC recommends prescription of specific mitigation
requirements for individual categories (or sub-categories) of testing
and training activities, in order to maximize mitigation given varying
sets of operational needs. Also, the Navy should require that other
nations abide by U.S. mitigation measures when training in the SOCAL
Range Complex, except where their own measures are more stringent.
Response: The Navy's standard protective measures include measures
that are specific to certain categories of activities. For example,
different exclusion zones are utilized for hull-mounted sonar and
dipping sonar, and different range clearance procedures are used for
SINKEXs and IEER sonobuoy exercises. Pursuant to the Navy's 2000 Policy
for Environmental Compliance at Sea, the commander or officer in charge
of a major exercise shall provide participating foreign units with a
description of the measures to protect the environment required of
similar U.S. units as early as reasonable in the exercise planning
process and shall encourage them to comply. As a binding international
law, foreign sovereign immune vessels may not be compelled to adopt
such mitigation measures.
Comment 18: The Marine Mammal Commission recommends that NMFS
modify the Navy's mitigation measures by requiring that the Navy delay
resumption of full operational sonar use following a power-down or
shutdown for 30 minutes if the sighted animal can be identified to the
species level and the species is not deep diving and 60 minutes if it
cannot be identified or is known to be a member of a deep-diving
species such as sperm and beaked whales. They further recommend that
NMFS allow resumption of full operations before the end of the 30-
minute period (when the species can be identified and is not a deep
diver) or 60-minute period (the species cannot be determined or can be
determined but is a deep diver) only when the Navy has good evidence
that the marine mammal seen outside the safety zone is the same animal
originally sighted within the zone.
Response: NMFS does not concur with the MMC that we should expand
the delay (until sonar can be restarted after a shutdown due to a
marine mammal sighting) to 60 minutes for deep-diving species for the
following reasons:
The ability of an animal to dive longer than 30 minutes
does not mean that it will always do so. Therefore, the 60 minute delay
would only potentially add value in instances when animals had remained
under water for more than 30 minutes.
Navy vessels typically move at 10-12 knots (5-6 m/sec)
when operating active sonar and potentially much faster when not. Fish
et al. (2006) measured speeds of 7 species of odontocetes and found
that they ranged from 1.4-7.30 m/sec. Even if a vessel was moving at
the slower typical speed associated with active sonar use, an animal
would need to be swimming near sustained maximum speed for an hour in
the direction of the vessel's course to stay within the safety zone of
the vessel. Increasing the typical speed associated with active sonar
use would further narrow the circumstances in which the 60-minute delay
would add value.
Additionally, the times when marine mammals are deep-
diving (i.e., the times when they are under the water for longer
periods of time) are the same times that a large portion of their
motion is in the vertical direction, which means that they are far less
likely to keep pace with a horizontally moving vessel.
Given that, the animal would need to have stayed in the
immediate vicinity of the sound source for an hour and considering the
maximum area that both the vessel and the animal could cover in an
hour, it is improbable that this would randomly occur. Moreover,
considering that many animals have been shown to avoid both acoustic
sources and ships without acoustic sources, it is improbable that a
deep-diving cetacean (as opposed to a dolphin that might bow ride)
would choose to remain in the immediate vicinity of the source. NMFS
believes that it is unlikely that a single cetacean would remain in the
safety zone of a Navy sound source for more than 30 minutes.
Last, in many cases, the lookouts are not able to
differentiate species to the degree that would be necessary to
implement this measure. Plus, Navy operators have indicated that
increasing the number of mitigation decisions that need to be made
based on biological information is more difficult for the lookouts
(because it is not their area of expertise).
NMFS does not believe that 60-minute delay would add to the
protection of marine mammals in the vast majority of cases, while it
would definitely decrease the effectiveness of the Navy's training
exercises by adding further delay, and therefore we have not required
it. Regarding the MMCs second recommendation, the current measure says
that sonar transmission will be limited until ``the animal is seen to
leave the area''--NMFS does not believe that further clarification is
needed regarding the fact that the Navy needs to be sure it is the same
animal.
Comment 19: One commenter states that the Navy should engage in
timely and regular reporting to NOAA, state coastal management
authorities, and the public to describe and verify use of mitigation
measures during testing and training activities.
Response: The Navy will be required to submit annual reports and
these reports will be made available to the public upon the Notice to
the public (in the Federal Register) of the issuance of subsequent
LOAs. The reports will include a description of the mitigation measures
implemented during major exercises and will also include an evaluation
of the effectiveness if any mitigation measure implemented.
Comment 20: One commenter asserts that the Navy should avoid fish
spawning grounds and important fish habitat. It should also avoid high-
value sea turtle habitat. The Navy should include sea turtles in other
described mitigation measures, including safety zones, for which
floating weeds and kelp and algal mats should be taken as proxies for
sea turtle presence.
Response: These concerns are outside of the purview of the MMPA.
Impacts to fish spawning grounds are dealt with pursuant to the
Magnuson-Stevens Act as it relates to Essential Fish Habitat (EFH).
NMFS Office of Habitat Conservation found that the Navy's proposed
action would adversely affect EFH, but that the proposed mitigation
measures (see the Navy's EFH assessment in Appendix E of the SOCAL
Range Complex FEIS) would adequately address adverse impacts to EFH.
Therefore, NMFS made no additional EFH conservation recommendations.
Measures to reduce impacts to sea turtles are included in the terms and
conditions of the biological opinion that NMFS issued to the Navy (view
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications).
Finally, it should be noted that the Navy will be required to alter
activities if floating weeds or kelp are seen within a particular area
(e.g., for Surface-to-Surface Gunnery exercises: ``Lookouts shall
visually survey for floating weeds
[[Page 3897]]
and kelp. Intended impact shall not be within 600 yds (585 m) of known
or observed floating weeds and kelp, and algal mats'').
Acoustic Threshold for Behavioral Harassment
Comment 21: The NRDC submitted a comprehensive critique of the risk
function (authored by Dr. David Bain), which NMFS has posted on our Web
site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications).
NRDC summarized some general limitations of the risk function and
included a fairly detailed critique of the specific structure of and
parameters chosen for use in the model. Following are some of the
general topics addressed in the letter:
Factors that Dr. Bain thinks should be addressed by the
model, such as social interactions and multiple sources.
Critique of the datasets that NMFS used to populate the
risk function (described Level B Harasssment--Risk Function section of
the proposed rule): (1) Controlled Laboratory Experiments with
Odontocetes (SSC Dataset); (2) Mysticete Field Study (Nowacek et al.,
2004), and (3) Odontocete Field Data (Haro Strait--USS Shoup).
Consideration of some datasets that were considered by
NMFS, but not used in the risk function.
A critique of the parameters (A, B, and K) used in the
risk function.
A sensitivity analysis of the parameters (i.e., takes were
modeled while applying variable values for the A, B, and K values).
Dr. Bain included a summary of his concerns and an abbreviated
version is included below. Additionally (and not included in the
summary), Dr. Bain suggested that the effect of multiple sources may be
both different and greater than the effects of fewer sources and
provided supporting examples.
Dr. Bain's Summary follows (comments that were in Dr. Bain's
summary, but have been addressed elsewhere in this Comment Response
section are not included below):
In summary, development of a function that recognizes
individual variation is a step in the right direction.
The selected equation is likely to produce underestimates
of takes due to asymmetries in the number of individuals affected if
parameters are either underestimated or overestimated due to
uncertainty. Thus it will be important to use the risk function in a
precautionary manner.
The sensitivity analysis reveals the importance of using
as many datasets as possible. First, for historical reasons, there has
been an emphasis on high energy noise sources and the species tolerant
enough of noise to be observed near them. Exclusion of the rarer
datasets demonstrating responses to low levels of noise biases the
average parameter values, and hence underestimates effects on sensitive
species.
A similar mistake was made with the right whale data. The
level at which 100 percent of individuals responded was used as the
value at which 50 percent of individuals responded (B+K). Likewise, the
level at which 100 percent of killer whales responded to mid-frequency
sonar is less than the value derived for B+K in the HRC SDEIS (Dept.
Navy 2008b).
It is likely that biological B values should be in the
range from just detectable above ambient noise to 120 dB re 1 [mu]Pa.
The resulting mathematical B value could be tens of dB lower, not the
120 dB re 1 [mu]Pa proposed. For many species, risk may approach 100
percent in the range from 120-135 dB re 1 [mu]Pa, putting K in the 15-
45 dB range.
The A values do not seem well supported by the data, and
in any case, are likely to be misleading in social species as the risk
function is likely to be asymmetrical with a disproportionate number of
individuals responding at low noise levels. Rather than one equation
fitting all species well, parameters are likely to be species typical.
As realistic parameter values are lower than those
employed in the HRC SDEIS (Dept. Navy 2008b), AFAST DEIS (Dept. Navy
2008a) and related DEIS's, take numbers should be recalculated to
reflect the larger numbers of individuals likely to be taken. The
difference between the parameter values estimated here and those used
in the SDEIS suggests takes were underestimated by two orders of
magnitude.
Response: Many of the limitations outlined in Dr. Bain's document
were raised by other commenters and are addressed elsewhere in this
Comment and Response Section and will not be addressed again here.
Below, NMFS responds to the specific points summarized above.
The effects of multiple sources: Mathematically, the
Navy's exposure model has already accounted for takes of animals
exposed to multiple sources in the number of estimated takes. NMFS
concurs with the commenter, however, in noting that the severity of
responses of the small subset of animals that are actually exposed to
multiple sources simultaneously could potentially be greater than
animals exposed to a single source due to the fact that received level,
both SPL and SEL, would be slightly higher and because contextually it
could be perceived as more threatening to an animal to receive multiple
stimuli coming from potentially multiple directions at once (for
example, marine mammals have been shown to respond more severely to
sources coming directly towards them, vs. obliquely (Wartzok, 2004)).
However, it is also worth noting that according to information provided
by the Navy, surface vessels do not typically operate closer than 10-20
miles from another surface vessel (and greater distance is ideal), and
other sonar sources, such as dipping sonar and sonobuoys, are almost
always used 20 or more miles away from the surface vessel. This means
that if the two most powerful sources were operating at the closest
distance they are likely to (10 miles), in the worst case scenario,
animals that would have been exposed to 150 dB SPL or less (taken from
table 16 of the proposed rule) may be exposed to slightly higher levels
or to similar levels or less coming from multiple directions.
Underestimates of takes due to asymmetries in the number
of individuals affected when parameters are underestimated and
overestimated due to uncertainty: The commenter's point is
acknowledged. When a sensitivity analysis is conducted and parameters
are varied (both higher and lower values used)--the degree of
difference in take estimates is much greater when the parameter is
adjusted in one direction than in the other, which suggests the way
that this generalized model incorporates uncertainty may not be
conservative. However, in all cases when the adjustment of the
parameter in a certain direction results in a disproportionately (as
compared to an adjustment in the other direction) large increase in the
number of takes, it is because the model is now estimating that a
larger percentage of animals will be taken at greater distances from
the source. This risk function is based completely on the received
level of sound. As discussed in the proposed rule, there are other
contextual variables that are very important to the way that an animal
responds to a sound, such as nearness of the source, relative movement
(approaching or retreating), or the animals familiarity with the
source. Southall et al. (2007) indicates that the presence of high-
frequency components and a lack of reverberation (which are indicative
of nearness) may be more relevant acoustic cues of spatial relationship
than simply exposure level alone. In the SOCAL Range Complex, an
[[Page 3898]]
animal exposed to between 120 and 130 dB may be more than 65 nm from
the sonar source. NMFS is not aware of any data that describe the
response of any marine mammals to sounds at that distance, much less
data that indicate that an animal responded in a way we would classify
as harassment at that distance. Because of this, NMFS does not believe
it is currently possible or appropriate to modify the model to further
address uncertainty if doing so results in the model predicting that
much larger numbers of animals will be taken at great distances from
the source when we have no data to suggest that that would occur.
Using many datasets: NMFS has explained both in the rule,
and then again elsewhere in response to these comments, why we chose
the three datasets we did to define the risk function. As Dr. Bain
points out, there are datasets that report marine mammal responses to
lower levels of received sound. However, because of the structure of
the curve NMFS is using and what it predicts (Level B Harassment), we
need datasets that show a response that we have determined qualifies as
harassment (in addition to needing a source that is adequately
representative of MFAS and reliable specific received level
information), which many of the lower level examples do not.
50 percent vs. 100 percent response: Dr. Bain asserts that
two of the three datasets (Nowacek et al., 2004 and Haro Strait--USS
SHOUP) that NMFS uses to derive the 50 percent response probability in
the risk function actually report a 100 percent response at the
indicated received levels. For the Haro Strait dataset, a range of
estimated received levels at the closest approach to the J Pod were
estimated. Given that neither the number of individual exposures or
responses were available, the mean of this range was used as a
surrogate for the 50 percent response probability in the development of
the risk function. For the Nowacek data, NMFS used 139.2 dB, which is
the mean of the received levels at which 5 of 6 animals showed a
significant response to the signal. However, viewed another way, of 6
animals, one animal did not respond to the signal and the other five
responded at received levels of 133 dB, 135 dB, 137 dB, 143 dB, and 148
dB, which means that 3 of the 6 animals (50 percent) showed a
significant response at 139.2 dB or less.
120 dB basement value: When the broad array of data
reported from exposures across taxa and to varied sources are reviewed,
NMFS believes that 120 dB is an appropriate B value for a curve
designed to predict responses that rise to the level of an MMPA
harassment (not just any response). The available data do not support
the commenter's assertion that risk may approach 100 percent in the
range from 120-135 dB for many species. For example, the Southall et
al. (2007) summary of behavioral response data clearly shows, in almost
every table (for all sound types), reports of events in which animals
showed no observable response, or low-level responses NMFS would not
likely consider harassment, in the 120 to 135-dB range. For the species
(the harbor porpoise) for which the data do support that assertion,
which the Southall et al. (2007) paper considers ``particularly
sensitive'', NMFS has implemented the use of a species-specific step
function threshold of 120 dB SPL.
The A value: Please see the second bullet of this response
for the first part of the answer. NMFS concurs with the commenter that
species-specific parameters would likely be ideal, however there are
not currently enough applicable data to support separate curves for
each species. We note, though, that even with species-specific
parameters, the context of the exposure will still likely result in a
substantive variability of behavioral responses to the same received
level by the same species.
Recalculation: For the reasons described in the bullets
above in this response, NMFS disagrees with the commenter's assertion
that the parameters used in the proposed rule and the EIS are
unrealistic and that they result in take estimates that are too small
by two orders of magnitude. We do not believe that a recalculation is
necessary.
The science in the field of marine mammals and underwater sound is
evolving relatively rapidly. NMFS is in the process of revisiting our
acoustic criteria with the goal of developing a framework (Acoustic
Guidelines) that allows for the regular and scientifically valid
incorporation of new data into our acoustic criteria. We acknowledge
that this model has limitations, however, the limitations are primarily
based on the lack of applicable quantitative data. We believe that the
best available science has been used in the development of the criteria
used in this and other concurrent Navy rules and that this behavioral
harassment threshold far more accurately represents the number of
marine mammals that will be taken than the criteria used in the RIMPAC
2006 authorization. We appreciate the input from the public and intend
to consider it further as we move forward and develop the Acoustic
Guidelines.
Comment 22: One commenter expressed the concern that NMFS blindly
relies on TTS studies conducted on 7 captive animals of two species (to
the exclusion of copious data on animals in the wild) as a primary
source of data for the behavioral harassment threshold. The commenter
further asserts that these studies (on highly trained animals that do
not represent a normal range of variation within their own species, as
they have been housed in a noisy bay for most of their lives) have
major deficiencies, which NMFS ignores by using the data.
Response: The SSC Dataset (Controlled Laboratory Experiments with
Odontocetes) is not the primary source of data for the behavioral
harassment threshold; rather, it is one of three datasets (the other
two datasets are from wild species exposed to noise in the field)
treated equally in the determination of the K value (equates to
midpoint) of the behavioral risk function. NMFS recognizes that certain
limitations may exist when one develops and applies a risk function to
animals in the field based on captive animal behavioral data. However,
we note that for the SSC Dataset: (1) Researchers had superior control
over and ability to quantify noise exposure conditions; (2) behavioral
patterns of exposed marine mammals were readily observable and
definable; and, (3) fatiguing noise consisted of tonal noise exposures
with frequencies contained in the tactical mid-frequency sonar
bandwidth. NMFS does not ignore the deficiencies of these data, rather
we weighed them against the value of the data and compared the dataset
to the other available datasets and decided that the SSC dataset was
one of the three appropriate datasets to use in the development of the
risk function.
Comment 23: NMFS fails to include data from the July 2004 Hanalei
Bay event, in which 150-200 melon-headed whales were embayed for more
than 24 hours during the Navy's Rim of the Pacific exercise. According
to the Navy's analysis, predicted mean received levels (from mid-
frequency sonar) inside and at the mouth of Hanalei Bay ranged from
137.9 dB to 149.2 dB. NMFS' failure to incorporate these numbers into
its methodology as another data set is not justifiable.
Response: NMFS' investigation of the Hanalei event concluded that
there was insufficient evidence to determine causality. There are a
number of uncertainties about sonar exposure and other potential
contributing factors and assumptions inherent to a reconstruction of
events in which sonar was the causative agent that simply
[[Page 3899]]
preclude this determination. Because of this, NMFS did not use the
numbers (137.9-149.2 dB) in our methodology. Additionally, even if NMFS
had concluded that MFAS were the causative agent, insufficient evidence
exists regarding the received level when the animals responded (there
is no information regarding where they were when they would have first
heard the sound).
Comment 24: One commenter stated ``NMFS excludes a substantial body
of research on wild animals (and some research on other experimental
animals as well, within a behavioral experimental protocol). Perhaps
most glaringly, while the related DEIS prepared for the Navy's Atlantic
Fleet Active Sonar Training activities appears to acknowledge the
strong sensitivity of harbor porpoises by setting an absolute take
threshold of 120 dB (SPL)--a sensitivity that, as NMFS has noted, is
reflected in numerous wild and captive animal studies--the agencies
improperly fail to include any of these studies in their data set. The
result is clear bias, for even if one assumes (for argument's sake)
that the SPAWAR data has value, NMFS has included a relatively
insensitive species in setting its general standard for marine mammals
while excluding a relatively sensitive one.''
Response: As explained in the Level B Harassment (Risk Function)
section of the proposed rule the risk function is based primarily on
three datasets (SSC dataset, Nowacek et al. (2004), and Haro Strait--
USS Shoup) 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. NMFS considered the ``substantial body of
research'' that the commenter refers to but was unable to find other
datasets that were suitable in terms of all of the following: The
equivalency of the sound source to MFAS, a reported behavioral response
that NMFS would definitively consider Level B Harassment, and a
received level reported with high confidence. The SSC dataset is only
one of three used and, in fact, the other 2 datasets (which are from
wild animals--killer whales and North Atlantic right whales) both
report behavioral responses at substantively lower levels (i.e., the
``relatively insensitive'' species is not driving the values in the
function).
Separately, combined wild and captive data support the conclusion
that harbor porpoises (high-frequency hearing specialists) are quite
sensitive to a variety of anthropogenic sounds at very low exposures
(Southall et al., 2007). Southall et al. (which refer to harbor
porpoises as particularly sensitive species) report that all recorded
exposures exceeding 140 dB SPL induced profound and sustained avoidance
behavior in wild harbor porpoises. Unlike for the mid-frequency and
low-frequency species, there are also no reported instances where
harbor porpoises were exposed to higher levels and did not have a high
response score. For these reasons, harbor porpoises are considered
especially sensitive and NMFS determined that it is appropriate to
apply a more conservative threshold.
Comment 25: The risk function must take into account the social
ecology of some marine mammal species. For species that travel in
tight-knit groups, an effect on certain individuals can adversely
influence the behavior of the whole. Should those individuals fall on
the more sensitive end of the spectrum, the entire group or pod can
suffer significant harm at levels below what the Navy would use as the
mean. In developing its ``K'' parameter, NMFS must take into account
the potential for indirect effects.
Response: The risk function is intended to define the received
level of MFAS at which exposed marine mammals will experience
behavioral harassment. The issue the commenter raises is related to the
Navy's exposure model--not the risk function. However, because of a
lack of related data there is no way to numerically address this issue
in the model. Although the point the commenter raises could potentially
apply, one could also assert that if certain animals in a tight knit
group were less sensitive it would have the opposite effect on the
group. Additionally, the modeling is based on uniform marine mammal
density (distributed evenly over the entire area of potential effect),
which does not consider the fact that marine mammals appearing in pods
will be easier to detect and therefore the Navy will be more likely to
implement mitigation measures that avoid exposing the animals to the
higher levels received within 1000m of the source.
Comment 26: One commenter asserts that NMFS' threshold is applied
in such a way as to preclude any assessment of long-term behavioral
impacts on marine mammals. It does not account, to any degree, for the
problem of repetition: The way that apparently insignificant impacts,
such as subtle changes in dive times or vocalization patterns, can
become significant if experienced repeatedly or over time.
Response: NMFS threshold does not preclude any assessment of long-
term behavioral impacts on marine mammals. The threshold is a
quantitative tool that NMFS uses to estimate individual behavioral
harassment events. Quantitative data relating to long-term behavioral
impacts are limited, and therefore NMFS' assessment of long-term
behavioral impacts is qualitative in nature (see Diel Cycle section in
Negligible Impact Analysis section). NMFS analysis discusses the
potential significance of impacts that continue more than 24 hours and/
or are repeated on subsequent days and, though it does not quantify
those impacts, further indicates that these types of impacts are not
likely to occur because of the nature of the Navy's training activities
and the large area over which they are conducted.
Comment 27: One commenter stated ``NMFS appears to have misused
data garnered from the Haro Strait incident--one of only three data
sets it considers--by including only those levels of sound received by
the ``J'' pod of killer whales when the USS Shoup was at its closest
approach. These numbers represent the maximum level at which the pod
was harassed; in fact, the whales were reported to have broken off
their foraging and to have engaged in significant avoidance behavior at
far greater distances from the ship, where received levels would have
been orders of magnitude lower. We must insist that NMFS provide the
public with the Navy's propagation analysis for the Haro Strait event,
which it used in preparing its 2005 Assessment of the incident.''
Response: For the specific application in the risk function for
behavioral harassment, NMFS used the levels of sound received by the
``J'' pod when the USS Shoup was at its closest approach because a
review of the videotapes and other materials by NMFS detailing the
behavior of the animals in relation to the location of the Navy vessels
showed that it was after the closest approach of the vessel that the
whales were observed responding in a manner that NMFS would classify as
``harassed.'' Though animals were observed potentially responding to
the source at greater distances, NMFS scientists believed that the
responses observed at greater distances were notably less severe and
would not rise to the level of MMPA harassment. Though the received
levels observed in relation to the lesser responses could be used in
some types of analytical tools, the risk continuum specifically
requires that we use received sound levels that are representative of
when MMPA harassment likely occurred. The Navy's report may be viewed
at: http://www.acousticecology.org/docs/SHOUPNavyReport0204.pdf.
[[Page 3900]]
Acoustic Thresholds for TTS and PTS
Comment 28: One commenter notes that in the SOCAL proposed rule,
NMFS sets its threshold for temporary hearing loss and behavioral
effects, or ``temporary threshold shift'' (``TTS''), at 183 dB re 1
[mu]Pa2[middot]s for harbor seals, 204 dB re 1
[mu]Pa\2\[middot]s for northern elephant seals, and 206 dB re 1
[mu]Pa\2\[middot]s for California sea lions (73 FR 60878). However, the
commenter notes, in the proposed rule for AFAST, NMFS indicates that
the TTS threshold for pinnipeds is 183 dB re 1 [mu]Pa\2\[middot]s. NMFS
does not explain the difference in thresholds. The commenter makes the
same comment for the PTS thresholds (which are 20 dB higher than the
TTS thresholds).
Response: As noted in the SOCAL proposed rule, the TTS thresholds
are 183 dB re 1 FPa\2\[middot]s for harbor seals (and closely related
species), 204 dB re 1 [mu]Pa\2\[middot]s for northern elephant seals
(and closely related species), and 206 dB re 1 [mu]Pa\2\[middot]s for
California sea lions (and closely related species) (73 FR 60878). The
commenter is correct, in the AFAST rule, NMFS did not fully explain
that all of the pinnipeds that might be exposed to MFAS are ``closely
related'' to harbor seals. Therefore, the 183 dB SEL is the pinniped
threshold applied in AFAST. The AFAST final rule will be amended to
clarify this issue and be consistent with the SOCAL final rule. The
same answer applies to the comment about PTS thresholds.
Comment 29: One commenter stated that NMFS' take estimates do not
reflect other non-auditory physiological impacts, such as from chronic
exposure during development, stress, ship collisions, and exposure to
toxic chemicals.
Response: The commenter is correct that the Navy's estimated take
numbers do not reflect non-auditory physiological impacts because the
quantitative data necessary to address those factors in the exposure
model do not exist. However, NMFS acknowledges that a subset of the
animals that are taken by harassment will also likely experience non-
auditory physiological effects (stress, etc.) and these effects are
addressed in the proposed rule (see Stress Responses section).
Regarding toxins, the Navy concluded that the potential ingestion of
toxins, such as the small amount of propellant or stimulant remaining
in the spent boosters or on pieces of missile debris, by marine mammals
or fish species would be remote because of (1) atmospheric dispersion,
(2) the diluting and neutralizing effects of seawater, and (3) the
relatively small area that could potentially be affected. Therefore,
the Navy determined that marine mammals would not be taken via the
ingestion of toxins and they did not request (nor did NMFS grant)
authorization for take of marine mammals from toxin ingestion.
Similarly, regarding ship strikes, the Navy's EIS indicated that the
Navy does not expect marine mammals to be struck because of standard
operating procedures to reduce the likelihood of collisions, to
include: (1) Use of lookouts trained to detect all objects on the
surface of the water (including marine mammals); (2) reasonable and
prudent actions to avoid the close interactions of Navy assets and
marine mammals; and (3) maneuvering to keep away from any observed
marine mammal. Therefore, the Navy did not request (nor did NMFS grant)
authorization for take of marine mammals from ship strikes.
Comment 30: The Navy's exclusive reliance on energy flux density as
its unit of analysis does not take other potentially relevant acoustic
characteristics into account. Reflecting this uncertainty, the Navy
should establish a dual threshold for marine mammal injury.
Response: NMFS currently uses the injury threshold recommended by
Southall et al. (2007) for MFAS. Specifically, NMFS uses the 215-dB SEL
sound exposure level threshold (the commenter refers to it as energy
flux density level). Southall et al. (2007) presents a dual threshold
for injury, which also includes a 230-dB peak pressure level threshold.
NMFS discussed this issue with the Navy early in the MMPA process and
determined that the 215-dB SEL injury threshold was the more
conservative of the two thresholds (i.e., the 230-dB peak pressure
threshold occurs much closer to the source than the 215-dB SEL
threshold) and therefore it was not necessary to consider the 230-dB
peak pressure threshold further. For example, an animal will be within
the 215-dB SEL threshold and counted as a take before it is exposed to
the 230-dB threshold. NMFS concurs with Southall et al. (2007), which
asserts that for an exposed individual, whichever criterion is exceeded
first, the more precautionary of the two measures should be used as the
operative injury criterion.
Comment 31: One commenter asserts that NMFS disregards data gained
from actual whale mortalities. The commenter cites to peer-reviewed
literature that indicates that sound levels at the most likely
locations of beaked whales beached in the Bahamas strandings run far
lower than the Navy's threshold for injury here: Approximately 150-160
dB re 1 [mu]Pa for 50-150 seconds, over the course of the transit. A
further modeling effort, undertaken in part by the Office of Naval
Research, the commenter states, suggests that the mean exposure level
of beaked whales, given their likely distribution in the Bahamas'
Providence Channels and averaging results from various assumptions, may
have been lower than 140 dB re 1 [mu]Pa. Last the commenter suggests
that when duration is factored in, evidence would support a maximum
energy level (``EL'') threshold for serious injury on the order of 182
dB re 1 [mu]Pa\2\[middot]s, at least for beaked whales.
Response: No one knows where the beaked whales were when they were
first exposed to MFAS in the Bahamas or the duration of exposure for
individuals (in regards to maximum EL) and, therefore, we cannot
accurately estimate the received level that triggered the response that
ultimately led to the stranding. Therefore, NMFS is unable to
quantitatively utilize any data from this event in the mathematical
model utilized to estimate the number of animals that will be ``taken''
incidental to the Navy's proposed action. However, NMFS does not
disregard the data. The proposed rule includes a qualitative discussion
of the Bahamas stranding and four other strandings that NMFS and the
Navy concur that the operation of MFAS likely contributed to. These
data illustrate a ``worst case scenario'' of the range of potential
effects from sonar and the analysis of these strandings supports the
Navy's request for authorization to take 10 individuals of several
species by mortality over the 5-yr. period.
Comment 32: One commenter states that NMFS' and the Navy's
assessment of the risk of marine mammal injury and mortality is
astonishingly poor. Although NMFS briefly discusses stranding events
(73 FR 60859), the Marine Mammal Protection Act requires NMFS to fully
consider the impacts of sonar on marine mammals to determine there is
no more than a negligible impact before issuing an incidental take
authorization.
Response: NMFS disagrees. The proposed rule contains a detailed
discussion of stranding events (those that were merely coincident with
MFAS use, as well as those for which the evidence suggests that MFAS
exposure was a contributing factor), a detailed discussion of the
multiple hypotheses that describe how acoustically-mediated or
behaviorally-mediated bubble growth can lead to marine mammal
strandings, as well as a comprehensive discussion
[[Page 3901]]
of the more general potential effects to marine mammals of MFAS
exposure. NMFS analyses fully considers the impacts to marine mammals,
which allows us to determine that the specified activites will have a
negligible impact on the affected species or stocks.
Comment 33: One commenter states: ``NMFS fails to take proper
account of published research on bubble growth in marine mammals, which
separately indicates the potential for injury and death at lower
[received sound] levels. According to the best available scientific
evidence, gas bubble growth is the causal mechanism most consistent
with the observed injuries. NMFS' argument to the contrary simply
misrepresents the available literature.''
Response: The proposed rule contained a detailed discussion of the
many hypotheses involving both acoustically-mediated and behaviorally-
mediated bubble growth. NMFS concluded that there is not sufficient
evidence to definitively say that any of these hypotheses accurately
describe the exact mechanism that leads from sonar exposure to a
stranding. Despite the many theories involving bubble formation (both
as a direct cause of injury and an indirect cause of stranding),
Southall et al., (2007) summarizes that scientific disagreement or
complete lack of information exists regarding the following important
points: (1) Received acoustical exposure conditions for animals
involved in stranding events; (2) pathological interpretation of
observed lesions in stranded marine mammals; (3) acoustic exposure
conditions required to induce such physical trauma directly; (4)
whether noise exposure may cause behavioral reactions (such as atypical
diving behavior) that secondarily cause bubble formation and tissue
damage; and (5) the extent the post mortem artifacts introduced by
decomposition before sampling, handling, freezing, or necropsy
procedures affect interpretation of observed lesions.
Comment 34: One commenter states that the calculation of PTS (which
is equated to the onset on injury) is based on studies of TTS that, as
discussed below, are significantly limited.
Response: NMFS addressed this issue in response to comments 22, 24,
and 27.
Effects Analysis
Comment 35: One commenter asserts that NMFS does not properly
incorporate the latest available data on marine mammal population
structure and abundance into its analysis. NMFS' (and the Navy's)
analysis of marine mammal distribution, habitat abundance, population
structure and ecology contains false, misleading or outdated
assumptions that tend to both underestimate impacts on species and to
impede consideration of mitigation measures. Specifically, commenters
point to errors in the reported abundance of blue whales, Baird's
beaked whales, and sei whales.
Response: The Navy began drafting and submitted the SOCAL Range
Complex LOA application to NMFS prior to wide dissemination of the
NMFS' 2007 U.S. Pacific Stock Assessment Reports (SAR). Information on
estimated population size was obtained from the 2006 SAR and these
numbers were carried forward into the Proposed Rule. Table 3 of this
final rule shows updated population estimates based on the both the
2007 and 2008 DRAFT U.S. Pacific SARs. Discussion of population
abundance is for general review of relative population size since these
estimates can vary every year based on new survey information, or a
revision of previous statistical analysis by NMFS. Alternately, for the
estimated density of the affected marine mammal stocks reported in both
the proposed rule and SOCAL EIS, the Navy used a different calculation
provided by NMFS Southwest Fisheries Science Center (SWFSC). SWFSC
provided a multi-year statistical analysis of potential marine mammal
densities stratified on visual ship sightings from south of Point
Conception, California. The density estimates used in the impact
analysis described in the Proposed and Final rule are based on NMFS
sighting data stratified for species specific sightings only occurring
within SOCAL. Sighting data across a species or stock range, which can
often be much broader than SOCAL, is used for calculating potential
abundance for that stock in the Pacific SARs. NMFS feels that this
approach to regional density calculation is more realistic and
scientific given limitations to at-sea marine mammal surveys. Unlike
the abundance numbers, these NMFS density estimates were directly used
by the Navy in the model and analysis that generated the take estimates
shown in table 4 of this final rule. In short, this error neither
caused NMFS to underestimate impacts nor impeded consideration of
mitigation measures.
Comment 36: The Navy compiled table of occurrence of marine mammals
(page 60848 of the proposed rule) overstates the absence of some
species during certain periods. For example, both humpback and blue
whales are listed as not occurring November-April, when in fact lower
numbers are present throughout this time, particularly in the early and
late period of that range. This table also cites only one confirmed
sighting of Bryde's whales in California; however we observed this
species on two occasions in 2006 at SOAR.
Response: Table 4 was meant to be a generalized summary of SOCAL
marine mammal presence subject to a number of caveats. Oceanographic
variations within a season could impact relative occurrence of certain
more migratory species such as blue whales, humpback whales, and some
dolphin species. The main purpose of the warm and cold designations was
to indicate if enough sighting data was available within the specified
time in which to calculate a species density for use in the impact
analysis. Species-specific densities were provided to the Navy by NMFS
Southwest Fisheries Science Center based on best available science
derived from NMFS marine mammal surveys and are shown in Table 4 of
this final rule (same as table 13 in proposed rule). Status of Bryde's
whales within SOCAL is perhaps more accurately defined as rarely
documented and status of blue and humpback whales would more accurately
be generalized by ``YES less''. The extent of this species occurrence
within SOCAL is poorly known, primarily because morphologically Bryde's
whales and fin whales are very similar when observed at sea. At the
time of the Navy's LOA application and Proposed Rule, 1993 was the last
known confirmed Bryde's whale sighting prior to the unpublished
sighting reported by the commenter. Regardless of the words used in the
generalized Table 4 of the proposed rule, a low density of Bryde's
whale, as well as densities for blue and humpback whales, were
incorporated into the impact analysis.
Comment 37: One commenter states that preliminary results of recent
visual-acoustic surveys at SOAR (sponsored by the Navy) suggest that
the population densities used to calculate takes may seriously
underestimate the number of individuals to be exposed to MFAS/HFAS.
This is most relevant for Cuvier's beaked whales, which (with acoustic
direction from the M3R system) were among the most frequently
encountered species in surveys conducted in 2007 and 2008. The group
sizes of Cuvier's beaked whales at SOAR were larger on average than
were reported in the line-transect surveys from which take estimates
were derived, and a minimum 30 unique individuals were photo-identified
within a limited area of the SOAR array in a 5-day period in October
2007 (Falcone et al., submitted).
Response: As discussed in the SOCAL Monitoring Plan, the Navy
already has a funded marine mammal research program within SOCAL
specifically
[[Page 3902]]
looking at science issues related to beaked whales. Data collection,
analysis, and reporting are ongoing over the next few years. The
commenter is referring to preliminary data from this program that was
not available to the Navy or NMFS at the time of the SOCAL proposed
rule. For the SOCAL EIS and the proposed rule impact analysis, the Navy
and NMFS used the latest beaked whale density provided by the NMFS
Southwest Fisheries Science Center as the best available science as of
rule making publication deadlines. As new small scale density data
becomes published in peer-review literature, the Navy will consider
this information for future NEPA documentation. Increased knowledge of
beaked whale distribution within SOCAL is an important science gap to
be filled. This is the intent of both the ongoing Navy funded research
and the SOCAL Monitoring Plan. Therefore while quantitative re-analysis
may not be currently warranted based on the preliminary unpublished
data collected to date, it is interesting to note the frequency and
visual re-sighting rate of Cuvier's beaked whales in an area that has
been subject to Navy operations for over 40 years.
Comment 38: One commenter states that there are also a number of
marine mammal populations (e.g., bottlenose dolphins, short-finned
pilot whale, transient killer whale, and minke whale) in the Southern
California region that, while not threatened or endangered, have very
low abundance and are therefore particularly vulnerable to human
impact. They are concerned that a lack of information has biased NMFS
and the Navy's effects analysis and thus the potential risk to these
species has been significantly underestimated. They cite the most
recent NOAA stock assessments which indicate that the loss of 0.98
individual short-finned pilot whales and 5.4 individual minke whales
would compromise survival of those species, and note that NMFS has
authorized 45 and 126 respective takes of those whales per year.
Response: The NOAA stock assessment reports are referring to the
loss, or death, of individuals. The takes that NMFS is authorizing as
part of the current MMPA process are all Level B Harassment takes which
are not expected to lead to the loss of any of these animals.
Additionally, though these species have low abundance, the animals span
the entire West Coast and beyond. The small numbers of these animals
are not all focused in SOCAL and they are not experiencing repeated or
regular exposures to sonar. NMFS does not believe that potential risk
to these species has been underestimated and for the reasons discussed
in the Negligible Impact Analysis section, we have determined that the
Navy's activities in SOCAL will have a negligible impact on these
species or stocks.
Comment 39: One commenter is concerned that by adopting the Navy's
analysis wholesale--and finding that the ``there will be few, and more
likely no, impacts'' on fish--NMFS disregards relevant scientific
literature.
Response: The commenter misquotes the proposed rule. In the Effects
on Marine Mammal habitat section, after some discussion, NMFS concludes
that there ``will be few, and more likely no, impacts on the behavior
of fish from active sonar.'' NMFS also discusses the potential for both
threshold shifts and mortality to fish from MFAS, though we conclude
that these impacts would be short-term (threshold shift) and
insignificant to the population as a whole in light of natural daily
mortality rates.
Comment 40: One commenter noted that the migratory range of gray
whales is a well documented part of the SOCAL Range Complex, and is an
area of specific importance for reproduction for pregnant females (who
are documented to give birth in the area, and newly pregnant females
transit the area) and calves, all of who are more vulnerable to adverse
effects and impacts. The commenter stated that these impacts need to be
included in the rule.
Response: As indicated in the Navy's SOCAL EIS and referenced in
the proposed rule, gray whales have a well-defined north-south
migratory path that takes them through SOCAL twice a year, and they do
not spend much time, if any, feeding within SOCAL. Some calves are born
along the coast of California, however, most are born in the shallow
protected waters on the Pacific coast on Baja California from Morro de
Santo Domingo south to Isla Creciente. These areas are well south of
the SOCAL areas used for the majority of Navy operations. The potential
impacts to mother-calf pairs from sonar are specifically discussed in
the Potential Effects of Specified Activities on Marine Mammals section
of the proposed rule. Given the transient nature of gray whale inshore
mother-calf occurrence, which is on the order of hours to a day while
moving along a more inshore migration path through SOCAL, and in light
of the Navy's mitigation measures, though some mother-calf pairs may be
behaviorally disturbed, more severe responses are not anticipated and
NMFS determined that the take will have a negligible impact on the
stock.
Comment 41: One commenter felt that the rule discounts the
potential impacts on beaked whales within SOCAL based on assumptions
that are unfounded. The first is that strandings are unlikely to occur
because events are not planned ``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)'' (73 FR
60863). The commenter notes that sonar-associated beaked whale
mortalities have occurred in other areas (e.g. the Canary Islands in
2002 and 2004) where such bathymetry was not present, suggesting this
as not a requisite characteristic for sonar-influenced strandings. The
second is the observation that unusual strandings have not been
recorded to date in the region is not an indication that mortalities
have not occurred. Given that most species of cetaceans sink upon
death, and that most beaked whales occur in very deep water which would
prevent decomposing carcasses from eventually refloating, it is highly
unlikely that whales suffering mortal injury at sea would have been
detected. This is especially true in offshore/island regions, where
there is limited shoreline throughout much of the operational area, and
much of it is steep or rocky and not conducive to holding moribund
individuals or carcasses.
Response: The rule does not discount the potential impacts on
beaked whales from sonar. NMFS specifically addresses the potential
impacts to beaked whales in the ``Acoustically Mediated Bubble Growth''
, ``Behaviorally Mediated Responses to MFAS That May Lead to
Stranding'', ``Stranding and Mortality'', and ``Association Between
Mass Stranding Events and Exposure to MFAS'' sections of the proposed
rule. Specifically, in recognition of potential impacts to beaked
whales and the scientific uncertainty surrounding the exact mechanisms
that lead to strandings, the Navy requested, and NMFS has authorized,
the mortality of 10 beaked whales over the course of 5 years in the
unlikely event that a stranding occurs as a result of Navy training
exercises. Additionally, the commenter is misrepresenting a piece of
text from the proposed rule--though NMFS points out that the five
factors that contributed to the stranding in the Bahamas are not all
present in southern California, we do not say that that alone means
strandings are unlikely to occur. We also further suggest that caution
is recommended when any of the three environmental factors are present
(constricted channels, steep bathymetry, or surface
[[Page 3903]]
ducts) in the presence of MFAS and beaked whales. Also, NMFS does not
ever say that the fact that strandings have not been recorded to date
in the region is not an indication that mortalities have not occurred.
Rather, we say ``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'' (25 of which, people have actively been collecting stranding
data).
Comment 42: One commenter asserts that the Navy's exposure model
fails to consider the following important points:
Possible synergistic effects of using multiple sources in
the same exercise, or the combined effects of multiple exercises.
Indirect effects, such as the potential for mother-calf
separation, that can result from short-term disturbance.
In assuming animals are evenly distributed--the magnifying
effects of social structure, whereby impacts on a single animal within
a pod, herd, or other unit may affect the entire group.
In assuming that every whale encountered during subsequent
exercises is essentially a new whale--the cumulative impacts on the
breeding, feeding, and other activities of species and stocks.
Response: Though the Navy's model does not quantitatively consider
the points listed above (because the quantitative data necessary to
include those concepts in a mathematical model do not currently exist),
NMFS and the Navy have qualitatively addressed those concerns in their
effects analyses in the rule and in the Navy's EIS.
Comment 43: One commenter stated: ``NMFS does not properly account
for reasonably foreseeable reverberation effects (as in the Haro Strait
incident), giving no indication that its modeling sufficiently
represents areas in which the risk of reverberation is greatest.''
Response: The model does indirectly incorporate surface-ducting
(surface reverberation), as conditions in the model are based on
nominal conditions calculated from a generalized digitalized monthly
average. Though the model does not directly consider reverberations,
these effects are generally at received levels many orders of magnitude
below those of direct exposures (as demonstrated in the Haro Strait
analysis associated with bottom reverberation) and thus contribute
essentially nothing to the cumulative SEL exposure and would not result
in the exposure of an animal to a higher SPL than the direct exposure,
which is already considered by the model. Additionally, within SOCAL,
many of the modeling areas, defined based on regional bathymetry, are
relatively deep (>1000 feet) and may not be as influenced by bottom
revelation as the more shallow Haro Strait.
Comment 44: One commenter stated that NMFS does not consider the
potential for acute synergistic [indirect] effects from sonar training.
For example, the agency does not consider the greater susceptibility to
vessel strike of animals that have been temporarily harassed or
disoriented. The absence of analysis is particularly glaring in light
of the 2004 Nowacek et al. study, which indicates that mid-frequency
sources provoke surfacing and other behavior in North Atlantic right
whales that increases the risk of vessel strike.
Response: In the proposed rule, NMFS refers the reader to a
conceptual framework that illustrates the variety of avenues of effects
that can result from sonar exposure, to include ``risk prone behavior''
resulting somewhat indirectly from attempting to avoid certain received
levels. Though we consider the potential for this type of interaction,
NMFS does not include detailed analysis of potential indirect effects
that have not been empirically demonstrated. Though Nowacek showed that
right whales responded to a signal with mid-frequency components (not
an actual MFAS signal) in a way that appeared likely to put them at
greater risk for ship strike, we do not have evidence that the
hypothesized sequence of behaviors has actually led to a ship strike.
Additionally, in general and if affected, marine mammals may be
affected by (or respond to) sonar in more than one single way when
exposed. However, when analyzing impacts, NMFS ``counts'' the most
severe response. In the example given by the commenter, NMFS considers
the overall possibility of ship strikes resulting from Navy activities,
regardless of whether or not they would be preceded by a lesser
response.
Comment 45: One commenter asked how oceanographic conditions (e.g.,
water temperature profiles, water depth, salinity, etc.) will be
factored into the modeling of received sound levels of MFAS and
underwater detonations. Which oceanographic data sources will be used?
Response: The Take Calculation section of the proposed rule
generally discusses how these and other variables are factored into the
take estimates and references the Navy's FEIS for the SOCAL Range
Complex, which contains the details of the model and how these
variables are incorporated. Due to the importance that propagation loss
plays in ASW, the Navy has invested heavily over the last four to five
decades in measuring and modeling environmental parameters. The result
of this effort is the following collection of global databases of
environmental parameters that are accepted as standards for all Navy
modeling efforts:
Water depth--Digital Bathymetry Data Base Variable
Resolution (DBDBV),
Sound speed--Generalized Dynamic Environmental Model
(GDEM),
Bottom loss--Low-Frequency Bottom Loss (LFBL), Sediment
Thickness Database, and High-Frequency Bottom Loss (HFBL), and
Wind speed--U.S. Navy Marine Climatic Atlas of the World.
In terms of predicting potential MFAS exposure to marine mammals
sighted during Navy training events and in context of the research
goals of the SOCAL Monitoring Plan, there are a number of general and
classified Navy models using the databases listed above and real-world
measurements that may be used to predict likely exposure to compare
with concurrent scientific observation of marine mammal behavior
conducted under the Monitoring Plan.
General Opposition
Comment 46: The NRDC urged NMFS to withdraw its proposed rule on
SOCAL and to revise the document prior to its recirculation for public
comment. They suggested NMFS revisit its profoundly flawed analysis of
environmental impacts and prescribe mitigation measures that truly
result in the least practicable adverse impact on marine species.
Response: NMFS has addressed specific comments related to the
effects analysis here and the mitigation measures in the Mitigation
Environmental Assessment. We do not believe that the analysis is flawed
and we believe that the prescribed measures will result in the least
practicable adverse impacts on the affected species or stock.
Therefore, NMFS does not intend to withdraw its rule on SOCAL.
Comment 47: A few commenters expressed general opposition to Navy
activities and NMFS' issuance of an MMPA authorization and presented
several reasons why MFAS was not necessary.
Response: NMFS appreciates the commenter's concern for the marine
mammals that live in the area of the proposed activities. However, the
MMPA directs NMFS to issue an incidental take authorization if certain
findings can be made. Under the
[[Page 3904]]
MMPA, NMFS must make the decision of whether or not to issue an
authorization based on the proposed action that the applicant submits--
the MMPA does not contain a mechanism for NMFS to question the need for
the action that the applicant has proposed (unless the action is
illegal). Similarly, any U.S. citizen (including the Navy) can request
and receive an MMPA authorization as long as all of the necessary
findings can be made. NMFS has determined that the Navy training
activities in the SOCAL Range Complex will have a negligible impact on
the affected species or stocks and, therefore, we plan to issue the
requested MMPA authorization.
Other
Comment 48: Two commenters voiced general opposition to the Navy's
capture, caging, or harnessing of marine mammals.
Response: The Navy does not intend to capture marine mammals during
these activities and this rule does not authorize the capture of marine
mammals.
Comment 49: A few members of the public submitted comments on the
Navy's EIS that they did not clearly tie to the proposed rule.
Response: The purpose of this comment period was for the public to
provide comments on the proposed rule. Responses were not provided to
comments on the EIS if their bearing on the MMPA authorization was not
clear.
Comment 50: One commenter noted that in the second column of 73 FR
60860, NMFS correctly asserts that ``As discussed in the Bahamas
report, there is no likely association between the minke whale and
spotted dolphin strandings and the operation of MFAS'' However, on page
60861, third column under Association of Strandings and MFAS, the NMFS
incorrectly still lists these species (minke whale and spotted dolphin)
as associated with MFAS.'' This is incorrect as NMFS previously states.
The sentence reads, ``Other species (Stenella coeruleoalba, Kogia
breviceps and Balaenoptera acutorostrata) have stranded, but in much
lower numbers and less consistently than beaked whales'' This sentence
should be removed from the NMFS' Final Rule.
Response: NMFS concurs that this sentence is incorrect in the
context of discussing the 5 strandings associated with MFAS use and has
modified the final rule.
Comment 51: On the third column of 73 FR 60883, after the last
sentence in this section, another sentence should be inserted to
accurately frame the biological distribution for the species (harbor
porpoise) in question. The harbor porpoise is more commonly found in
near shore water from Central California north of Point Conception to
Alaska.
Response: The commenter is correct. To add clarity, though the
harbor porpoise criteria were discussed in the rule, no harbor
porpoises are expected to be harassed incidental to the SOCAL action,
since SOCAL is outside the normal range of harbor porpoise
distribution.
Comment 52: The MMC recommends that NMFS work with the Navy to
prepare an adequate analysis under the National Environmental Policy
Act of proposed operations at Tanner Bank, but until such an analysis
has been completed, NMFS withhold authorization for the taking of
marine mammals at that site. MMC noted that the biological importance
of Tanner Banks is well documented and any plans to increase naval
activity in that area should be carefully evaluated and weighed against
the options of increasing the use of alternative, existing
countermeasure sites or placing the new minefield site elsewhere where
it would be less likely to have a significant biological impact.
Response: The Navy adequately considered alternative minefield
sites to the new minefield site at Tanner Banks. As discussed in the
SOCAL Draft and Final EIS, the Navy proposed to establish an offshore
shallow water minefield in the SOCAL Range Complex to support an
overall increased requirement for mine countermeasure training. The EIS
proposed an increase in mine warfare training operations at the
existing sites, as well as new sites based on expanding mine warfare
training requirements in SOCAL associated with:
Introduction of the MH-60S Helicopters (which have a new
mine warfare mission focus),
Introduction of the Littoral Combat Ship (LCS),
Transfer of the Navy's mine warfare surface ships to San
Diego from other homeports based on BRAC decision, and
Overall increased emphasis on mine warfare training as a
result of concerns about moored mines
Two existing shallow water minefields were considered as
alternatives to new proposed sites: ARPA off La Jolla, California and
the Kingfisher Range northwest of Eel Point at San Clemente Island. In
addition, the Navy evaluated new sites at Tanner Banks, offshore of
Camp Pendleton, and off the southern end of San Clemente Island. The
feasibility of each of these proposed alternatives were evaluated to
determine if they satisfied the following environmental,
infrastructure, and operationally-related criteria:
Provide enough training opportunities and sites to
accommodate all the various mine warfare training requirements which
may overlap in time and space.
Provide the unique oceanographic characteristics (depths
less than 150 feet and offshore bathymetry with steep sloping canyons)
that is representative of real world potential mine warfare operational
areas.
Provide the unique oceanographic characteristics where
shallower water depths occur in a relatively open ocean area well away
from land masses thereby offering minimal interference from civilian
activities.
Provide proximity to existing undersea ranges to include
other mine warfare and anti-submarine ranges with complimentary
features such that training opportunities could be optimized in one
area reducing time/costs/personnel tempo and fuel (primarily aviation
but also fuel costs for ships).
Geography that optimizes use of the SOCAL Range Complex
space during exercises and enhances realism of training (as compared to
any other site) by providing a mine warfare training opportunity in the
same area where units would be doing other operations at the same time
as could be expected while deployed.
The sites off Camp Pendleton and off San Clemente Islands meet
several of the sighting requirements and were considered by the Navy.
The Tanner Bank site, however, was found to meet all five of the
necessary environmental, infrastructure, and operational criteria:
The new Tanner Bank site ensures that there would be
enough sites to provide the required increase mine warfare training by
providing a new site away from the existing sites near San Clemente
Island and offshore of La Jolla significantly enhancing the
availability of training opportunities for the expanded mine warfare
training requirements.
The Tanner Bank site provides a realistic mine warfare
environment that contains a series of underwater escarpments, canyons,
banks, and sea mounts. Tanner Bank is the highest peak of the undersea
ridges.
The proposed site is approximately 90 nautical miles from
the California coastline at San Diego and over 10 miles from San
Clemente Island. This location is sufficiently distant to ensure
minimal interference from civilian activities.
[[Page 3905]]
The Tanner Bank site is in proximity to the existing
Southern California Anti-Submarine Warfare Range (SOAR) and is within
the area proposed for expansion of the SOAR, as well as the other
ranges available on and around San Clemente Island Offshore Range
(SCIUR). This location would allow the co-location of anti-submarine
warfare and mine countermeasures training thereby optimizing the
undersea warfare training available to a Strike Group, thereby saving
time and fuel.
Overall, the geographic location of the Tanner Bank site
would enhance the quality and realism of training available in the
SOCAL Range Complex. Significant portions of advanced Strike Group
exercise training activities are concentrated in the areas southwest of
San Clemente Island; adding a mine warfare range in this area at Tanner
Banks allows mine warfare training to be conducted with other training
enhancing realism.
Estimated Take of Marine Mammals
As mentioned previously, with respect to the MMPA, NMFS' effects
assessments serve three primary purposes: (1) To put forth the
permissible methods of taking (i.e., Level B Harassment (behavioral
harassment), Level A Harassment (injury), or mortality, including an
identification of the number and types of take that could occur by
Level A or B harassment or mortality)) and to prescribe other means of
effecting the least practicable adverse impact on such species or stock
and its habitat (i.e., mitigation); (2) to determine whether the
specified activity will have a negligible impact on the affected
species or stocks of marine mammals (based on the likelihood that the
activity will adversely affect the species or stock through effects on
annual rates of recruitment or survival); (3) to determine whether the
specified activity will have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (however,
there are no subsistence communities that would be affected in southern
California, so this determination is inapplicable for this rulemaking);
and (4) to prescribe requirements pertaining to monitoring and
reporting.
In the Estimated Take of Marine Mammals section of the proposed
rule, NMFS related the potential effects to marine mammals from MFAS/
HFAS and underwater detonation of explosives (discussed in the
Potential Effects of Specified Activities on Marine Mammals Section) to
the MMPA definitions of Level A and Level B Harassment and quantified
(estimated) the effects on marine mammals that could result from the
specific activities that the Navy intends to conduct. The subsections
of this analysis are discussed individually below.
Definition of Harassment
The Definition of Harassment section of the proposed rule contained
the definitions of Level A and Level B Harassments, and a discussion of
which of the previously discussed potential effects of MFAS/HFAS or
explosive detonations fall into the categories of Level A Harassment
(permanent threshold shift (PTS), acoustically mediated bubble growth,
behaviorally mediated bubble growth, and physical disruption of tissues
resulting from explosive shock wave) or Level B Harassment (temporary
threshold shift (TTS), acoustic masking and communication impairment,
and behavioral disturbance rising to the level of harassment). See 73
FR 60836, pages 60876-60877. No changes have been made to the
discussion contained in this section of the proposed rule.
Acoustic Take Criteria
In the Acoustic Take Criteria section of the proposed rule, NMFS
described the development and application of the acoustic criteria for
both MFAS/HFAS and explosive detonations. See 73 FR 60836, pages 60877-
60883. No changes have been made to the discussion contained in this
section of the proposed rule. NMFS has also summarized the acoustic
criteria below.
For MFAS/HFAS, NMFS uses acoustic criteria for PTS, TTS, and
behavioral harassment.
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]Pa2-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]Pa2-s
Northern Elephant Seals (and closely related species)--204
dB re 1 [mu]Pa2-s
California Sea Lions (and closely related species)--206 dB
re 1 [mu]Pa2-s
NMFS uses the following acoustic criteria for injury (Level A
Harassment):
Cetaceans--215 dB re 1 [mu]Pa2-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]Pa2-s
Northern Elephant Seals (and closely related species)--224
dB re 1 [mu]Pa2-s
California Sea Lions (and closely related species)--226 dB
re 1 [mu]Pa2-s
For the behavioral harassment criteria, NMFS uses acoustic risk
functions developed by NMFS, with input from the Navy, to 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 MFA sonar. See 73 FR 60836, pages 60879-60883.
Table 13 in the proposed rule summarizes the acoustic criteria for
explosive detonations. See 73 FR 60836, page 60883.
Estimates of Potential Marine Mammal Exposures and Authorized Take
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 SOCAL Range Complex FEIS.
(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 criteria) from MFAS/
HFAS and explosive detonations based on several important pieces of
information, including:
Characteristics of the sound sources
[cir] 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.
[cir] Explosive source characteristics include: The net explosive
weight (NEW) 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
[[Page 3906]]
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 Range Complex (see Table 4), 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 the SOCAL Range Complex,
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 blue whale would be exposed
to levels of active sonar anticipated to result in PTS. However, a blue
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 blue whales, and
nature of blue whale behavior, it is highly unlikely that a blue whale
would be exposed to those levels, and therefore the Navy would not
request authorization for Level A Harassment of 1 blue whale. Table 6
contains the Navy's modeled take estimates and the number of takes that
NMFS is authorizing in these regulations.
(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 2 (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.
[[Page 3907]]
[GRAPHIC] [TIFF OMITTED] TR21JA09.005
Mortality
Evidence from five beaked whale strandings, all of which have taken
place outside of the SOCAL Range Complex, and have occurred over
approximately a decade, suggests that the exposure of beaked whales to
mid-frequency sonar in the presence of certain conditions (e.g.,
multiple units using tactical sonar, steep bathymetry, constricted
channels, strong surface ducts, etc.) may result in strandings,
potentially leading to mortality. Although these physical factors
believed to contribute to the likelihood of beaked whale strandings are
not present in southern California in the aggregate, scientific
uncertainty exists regarding what other factors, or combination of
factors, may contribute to beaked whale strandings. Accordingly, to
allow for scientific uncertainty regarding contributing causes of
beaked whale strandings and the exact behavioral or physiological
mechanisms that can lead to the ultimate physical effects (stranding
and/or death), the Navy has requested authorization for (and NMFS is
authorizing) take, by injury or mortality. Although the Navy has
requested take by injury or mortality of 10 beaked whales over the
course of the 5-yr regulations, the Navy's model did not predict
injurious takes of beaked whales and neither NMFS, nor the Navy
anticipates that marine mammal strandings or mortality will result from
the operation of MFAS during Navy exercises within the SOCAL Range
Complex.
Effects on Marine Mammal Habitat
NMFS' SOCAL Range Complex proposed rule included a detailed section
that addressed the effects of the Navy's activities on Marine Mammal
Habitat. See 73 FR 60836, pages 60886-60888. The analysis concluded
that the Navy's activities would have minimal effects on fish or
invertebrates (in their roles as food sources for marine mammals), or
water quality in the SOCAL Range Complex. No changes have been made to
the discussion
[[Page 3908]]
contained in this section of the proposed rule.
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 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 had 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.
In the Analysis and Negligible Impact Determination section of the
proposed rule, NMFS addressed the issues identified in the preceding
paragraph in combination with additional detailed analysis regarding
the severity of the anticipated effects, and including species (or
group)-specific discussions, to determine that Navy activities
utilizing MFAS/HFAS and underwater detonations will have a negligible
impact on the marine mammal species and stocks present in the SOCAL
Range Complex. No changes have been made to the discussion contained in
this section of the proposed rule. See 73 FR 60836, pages 60889-60899.
Subsistence Harvest of Marine Mammals
NMFS has determined that the issuance of these regulations and
subsequent LOAs for Navy activities in the SOCAL Range Complex would
not have an unmitigable adverse impact on the availability of the
affected species or stocks for taking for subsistence uses, since there
are no such uses in the specified area.
ESA
There are nine marine mammal species and four sea turtle species
listed as threatened or endangered under the ESA with confirmed or
possible occurrence in the study area: Humpback whale, North Pacific
right whale, sei whale, fin whale, blue whale, sperm whale, southern
resident killer whale, Guadalupe fur seal, Steller sea lion, loggerhead
sea turtle, the green sea turtle, leatherback sea turtle, and olive
ridley sea turtle. White Abalone (Haliotis sorenseni) are also present
in the Navy's action area. Pursuant to Section 7 of the ESA, the Navy
has consulted with NMFS on this action. NMFS has also consulted
internally on the issuance of regulations under section 101(a)(5)(A) of
the MMPA for this activity. In a Biological Opinion (BiOp), NMFS
concluded that the Navy's activities in the SOCAL Range Complex and
NMFS' issuance of these regulations are not likely to jeopardize the
continued existence of threatened or endangered species or destroy or
adversely modify any designated critical habitat.
NMFS (the Endangered Species Division) will also issue BiOps and
associated incidental take statements (ITSs) to NMFS (the Permits,
Conservation, and Recreation Division) to exempt the take (under the
ESA) that NMFS authorizes in the LOAs under the MMPA. Because of the
difference between the statutes, it is possible that ESA analysis of
the applicant's action could produce a take estimate that is different
than the takes requested by the applicant (and analyzed for
authorization by NMFS under the MMPA process), despite the fact that
the same proposed action (i.e. number of sonar hours and explosive
detonations) was being analyzed under each statute. When this occurs,
NMFS staff coordinate to ensure that that the most conservative
(lowest) number of takes are authorized. For the Navy's proposed
training in the SOCAL Range Complex, coordination with the Endangered
Species Division indicates that they will likely allow for a lower
level of take of ESA-listed marine mammals than were requested by the
applicant (because their analysis indicates that fewer will be taken
than estimated by the applicant). Therefore, the number of authorized
takes in NMFS' LOA(s) will reflect the lower take numbers from the ESA
consultation, though the specified activities (i.e., number of sonar
hours, etc.) will remain the same. Alternately, these regulations
indicate the maximum number of takes that may be authorized under the
MMPA.
The ITS(s) issued for each LOA will contain implementing terms and
conditions to minimize the effect of the marine mammal take authorized
through the 2009 LOA (and subsequent LOAs in 2010, 2011, 2012, and
2013). With respect to listed marine mammals, the terms and conditions
of the ITSs will be incorporated into the LOAs.
NEPA
NMFS participated as a cooperating agency on the Navy's Final
Environmental Impact Statement (FEIS) for the Southern California Range
Complex. NMFS subsequently adopted the Navy's EIS for the purpose of
complying with the MMPA. Additionally, NMFS prepared an Environmental
Assessment (EA) that tiered off the Navy's FEIS. The EA analyzed the
environmental effects of several different mitigation alternatives for
the issuance of the SOCAL Range Complex rule and subsequent LOAs. A
finding of no significant impact for the mitigation EA was issued in
January, 2009.
Determination
Based on the analysis contained herein and in the proposed rule
(and other related documents) of the likely effects of the specified
activity on marine mammals and their habitat and dependent upon the
implementation of the mitigation measures, NMFS finds that the total
taking from Navy training, maintenance, and RDT&E activities utilizing
MFAS/HFAS and underwater explosives in the SOCAL Range Complex over the
5 year period will have a negligible impact on the affected species or
stocks and will not result in an unmitigable adverse impact on the
availability of marine mammal species
[[Page 3909]]
or stocks for taking for subsistence uses because no subsistence uses
exist in the SOCAL Range Complex. NMFS has issued regulations for these
exercises that prescribe the means of effecting the least practicable
adverse impact on marine mammals and their habitat and set forth
requirements pertaining to the monitoring and reporting of that taking.
Classification
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act.
Pursuant to the procedures established to implement section 6 of
Executive Order 12866, the Office of Management and Budget has
determined that this final rule is significant.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce certified at the proposed rule
stage to the Chief Counsel for Advocacy of the Small Business
Administration that this final rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The Regulatory Flexibility Act requires Federal agencies to prepare an
analysis of a rule's impact on small entities whenever the agency is
required to publish a notice of proposed rulemaking. However, a Federal
agency may certify, pursuant to 5 U.S.C. section 605(b), that the
action will not have a significant economic impact on a substantial
number of small entities. The Navy is the entity that will be affected
by this rulemaking, not a small governmental jurisdiction, small
organization or small business, as defined by the Regulatory
Flexibility Act. Any requirements imposed by a Letter of Authorization
issued pursuant to these regulations, and any monitoring or reporting
requirements imposed by these regulations, will be applicable only to
the Navy. Because this action, if adopted, would directly affect the
Navy and not a small entity, NMFS concludes the action would not result
in a significant economic impact on a substantial number of small
entities.
The Assistant Administrator for Fisheries has determined that there
is good cause under the Administrative Procedure Act (5 U.S.C.
553(d)(3)) to waive the 30-day delay in effective date of the measures
contained in the final rule. Since January 23, 2007, the Navy has been
conducting military readiness activities employing mid-frequency active
sonar (MFAS) pursuant to a 2-year MMPA National Defense Exemption
(NDE). The NDE served as a bridge to long-term compliance with the MMPA
while the Navy prepared its Environmental Impact Statement and pursued
the necessary MMPA incidental take authorization for the SOCAL Range
Complex. The NDE will expire on January 23, 2009, by which time it is
imperative that the regulations and the measures identified in a
subsequent LOA become effective. Any delay of these measures would
result in either: (1) A suspension of ongoing or planned naval
exercises, which would disrupt vital sequential training and
certification processes essential to national security; or (2) the
Navy's non-compliance with the MMPA (should the Navy conduct exercises
without an LOA), thereby resulting in the potential for unauthorized
takes of marine mammals upon expiration of the NDE. National security
and NMFS' and Navy's preference that the Navy be in compliance with the
MMPA after January 23, 2009, dictate that these measures go into effect
immediately. The Navy is the entity subject to the regulations and has
informed NMFS that it is imperative that these measures be effective on
or before January 23, 2009. Finally, as recognized by the President
when issuing the Presidential Exemption under the CZMA for the SOCAL
COMPTUEX/JTFEX exercises, the training proposed to be conducted in
SOCAL is in the paramount interest of the United States. Also, the
Supreme Court noted SOCAL is an ideal location for conducting
integrated training exercises as the only area on the west coast that
is relatively close to land, air and sea bases as well as amphibious
landings areas. Any delay in the implementation of these measures would
raise serious national security implications. Therefore, these measures
will become effective upon filing.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: January 14, 2009.
Samuel D. Rauch III,
Deputy Administrator for Regulatory Programs, National Marine Fisheries
Service.
0
For reasons set forth in the preamble, 50 CFR Part 216 is amended as
follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Subpart X is added to part 216 to read as follows:
Subpart X--Taking Marine Mammals Incidental to U.S. Navy Training in
the Southern California Range Complex
Sec.
216.270 Specified activity and specified geographical region.
216.271 Effective dates and 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.
216.279 Modifications to Letters of Authorization.
Subpart X--Taking Marine Mammals Incidental to U.S. Navy Training
in the Southern California Range Complex (SOCAL Range Complex)
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 occurs 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 Final Environmental Impact Statement for the SOCAL Range
Complex), 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 9885 hours over the
course of 5 years (an average of 1977 hours per year)
(ii) AN/SQS-56 (hull-mounted active sonar)--up to 2470 hours over the
course of 5 years (an average of 494 hours per year)
[[Page 3910]]
(iii) AN/BQQ-10 (submarine active sonar)--up to 4075 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 13595
dips over the course of 5 years (an average of 2719 dips per year--10
pings per dip)
(v) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS)
sonobuoys)--up to 21275 sonobuoys over the course of 5 years (an
average of 4255 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 1135 hours over the course of 5 years (an
average of 227 hours per year)
(x) AN/SSQ-125 (AEER sonar sonobuoy)--up to 540 sonobuoys (total, of
EER/IEER and AEER) over the course of 5 years (an average of 108 per
year))
(2) The detonation of the underwater explosives identified in
paragraph (c)(2)(i) conducted as part of the training exercises
identified in 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 2010
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 (total, of EER/IEER and AEER
combined) over the course of 5 years (an average of 3 exercises, or 108
sonobuoy deployments, per year).
Sec. 216.271 Effective dates and definitions.
(a) Regulations are effective January 14, 2009 through January 14,
2014.
(b) The following definitions are utilized in these regulations:
(1) Uncommon Stranding Event (USE)--A stranding event that takes
place during an integrated, coordinated, or 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 the SOCAL Range Complex Stranding
Response Plan.
(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.
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 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:
(1) Level B Harassment (+/-10 percent of the number of takes
indicated below):
(i) Mysticetes:
(A) Humpback whale (Megaptera novaeangliae)--110 (an average of 22
annually)
(B) Fin whale (Balaenoptera physalus)--870 (an average of 174
annually)
(C) Blue whale (Balaenoptera musculus)--3085 (an average of 617
annually)
(D) Minke whale (Balaenoptera acutorostrata)--665 (an average of
133 annually)
(E) Gray whale (Eschrichtius robustus)--27340 (an average of 5468
annually)
(ii) Odontocetes:
(A) Sperm whales (Physeter macrocephalus)--775 (an average of 155
annually)
(B) Pygmy sperm whales (Kogia breviceps)--830 (an average of 166
annually)
(C) Dwarf sperm whale (Kogia sima)--100 (an average of 20 annually)
(D) Mesoplodont beaked whales (Blainville's, Hubb's, Perrin's,
pygmy, and ginkgo-toothed) (Mesoplodon densirostris, M. carlhubbsi, M.
perrini, M. peruvianus, M. ginkgodens)--690 (an average of 138
annually)
(E) Cuvier's beaked whales (Ziphius cavirostris)--2175 (an average
of 435 annually)
(F) Baird's beaked whales (Berardius bairdii)--100 (an average of
20 annually)
(G) Unidentified beaked whales--555 (an average of 104 annually)
(H) Rough-toothed dolphin (Steno bredanensis)--100 (an average of
20 annually)
(I) Bottlenose dolphin (Tursiops truncatus)--7480 (an average of
1516 annually)
(J) Pan-tropical spotted dolphin (Stenella attenuata)--100 (an
average of 20 annually)
(K) Spinner dolphin (Stenella longirostris)--100 (an average of 20
annually)
(L) Striped dolphin (Stenella coeruleoalba)--9190 (an average of
1838 annually)
(M) Long-beaked common dolphin (Delphinus capensis)--23145 (an
average of 4629 annually)
(N) Risso's dolphin (Grampus griseus)--17995 (an average of 3599
annually)
(O) Northern right whale dolphin (Lissodelphis borealis)--7935 (an
average of 1547 annually)
(P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--7020
(an average of 1404 annually)
(Q) Short-beaked common dolphin (Delphinus delphis)--197350 (an
[[Page 3911]]
average of 39470 annually)
(R) Melon-headed whale (Peponocephala electra)--100 (an average of
20 annually)
(S) Pygmy killer whale (Feresa attenuata)--100 (an average of 20
annually)
(T) False killer whale (Pseudorca crassidens)--100 (an average of
20 annually)
(U) Killer whale (Orcinus orca)--70 (an average of 14 annually)
(V) Short-finned pilot whale (Globicephala macrorynchus)--260 (an
average of 52 annually)
(W) Dall's porpoise (Phocoenoides dalli)--3145 (an average of 629
annually)
(iii) Pinnipeds:
(A) Northern elephant seal (Mirounga angustirostris)--4795 (an
average of 959 annually)
(B) Pacific harbor seal (Phoca vitulina)--28380 (an average of 5676
annually)
(C) California sea lion (Zalophus californianus)--277530 (an
average of 55506 annually)
(D) Northern fur seal (Callorhinus ursinus)--6185 (an average of
1237 annually)
(E) Guadalupe fur seal (Arctocephalus townsendi)--5340 (an average
of 1068 annually)
(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) through (G) over the course of the 5-year
regulations.
Sec. 216.273 Prohibitions.
Notwithstanding takings contemplated in Sec. 216.272 and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 216.277, 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 (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) When conducting activities 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 SOCAL 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.
(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 mitigation 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 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) 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 mid-frequency active sensor,
pedestal mounted ``Big Eye'' (20x110) 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
Lookout 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 shall conduct
and maintain, when operationally feasible and safe, surveillance for
marine mammals as long as it does not violate safety constraints or
interfere with the accomplishment of primary operational duties. 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
[[Page 3912]]
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) Navy will distribute final mitigation measures contained in the
LOA and the Incidental take statement of NMFS' biological opinion to
the Fleet.
(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 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
paragraph (a)(2)(iii)(H) of this section, 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 start up or restart of active sonar, operators will
check that the Safety Zone radius around the sound source is clear of
marine mammals.
(J) 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.
[[Page 3913]]
(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.
(N) Night vision goggles shall be available to all ships and air
crews, for use as appropriate.
(3) Navy's Measures for Underwater Detonations:
(i) Surface-to-Surface Gunnery (explosive rounds):
(A) Lookouts shall visually survey for floating weeds and kelp.
Intended impact (i.e., where the Navy is aiming) 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 applicable. 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 applicable.
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. 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 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 NEW charge):
(A) Exclusion Zones--All Demolitions, 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 a marine mammal 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
[[Page 3914]]
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 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, Third 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) An exclusion zone with a radius of 1.5 nm shall be established
around each target. This 1.5 nm zone includes a buffer of 0.5 nm to
account for errors, target drift, and animal movement. In addition to
the 1.5 nm exclusion zone, a further safety zone, which extends from
the exclusion zone at 1.5 nm out an additional 0.5 nm, shall be
surveyed. Together, the zones (exclusion and safety) extend out 2 nm
from the target.
(C) 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 shall 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 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 in paragraph (a)(3)(x)(C)(6 ) of
this section 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.
(D) 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.
(E) Where practicable, the Navy shall conduct the exercise in sea
states that are ideal for marine mammal sighting, i.e., 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.
(F) The exercise shall not be conducted unless the exclusion zone
can be adequately monitored visually.
(G) 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).
(H) 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/AEER):
(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) For IEER (AN/SSQ-110A), 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-
[[Page 3915]]
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) For IEER (AN/SSQ-110A), 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) Marine 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),
which is incorporated herein by reference, 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 Range Complex 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 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 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
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 Range Complex 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 a MOA, or other mechanism consistent with federal fiscal law
requirements (and all other applicable laws), that will establish a
framework whereby the Navy can (and provide the Navy examples of how
they can best) assist NMFS with stranding investigations in certain
circumstances.
Sec. 216.275 Requirements for monitoring and reporting.
(a) As outlined in the SOCAL Range Complex 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(c) 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. 216.272(c).
(b) The Navy must conduct all monitoring and required reporting
under the Letter of Authorization, including abiding by the SOCAL Range
Complex Monitoring Plan.
(c) The Navy shall complete an Integrated Comprehensive Monitoring
Plan (ICMP) in 2009. This planning and adaptive management tool shall
include:
(1) A method for prioritizing monitoring projects that clearly
describes the characteristics of a proposal that factor into its
priority.
(2) A method for annually reviewing, with NMFS, monitoring results,
Navy R&D, and current science to use for potential modification of
mitigation or monitoring methods.
(3) A detailed description of the Monitoring Workshop to be
convened in 2011 and how and when Navy/NMFS will subsequently utilize
the findings of the Monitoring Workshop to potentially modify
subsequent monitoring and mitigation.
(4) An adaptive management plan.
[[Page 3916]]
(5) A method for standardizing data collection across Range
Complexes.
(d) General Notification of Injured or Dead Marine Mammals--Navy
personnel shall 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 shall 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 Navy shall consult the Stranding Response Plan to
obtain more specific reporting requirements for specific circumstances.
(e) Annual SOCAL Range Complex Monitoring Plan Report--The Navy
shall submit a report annually on October 1 describing the
implementation and results (through August 1 of the same year) of the
SOCAL Range Complex Monitoring Plan. Data collection methods will be
standardized across range complexes to allow for comparison in
different geographic locations. Although additional information will
also be gathered, the marine mammal observers (MMOs) collecting marine
mammal data pursuant to the SOCAL Range Complex Monitoring Plan shall,
at a minimum, provide the same marine mammal observation data required
in the data required in Sec. 216.275(f)(1). The SOCAL Range Complex
Monitoring Plan Report may be provided to NMFS within a larger report
that includes the required Monitoring Plan Reports from multiple Range
Complexes.
(f) Annual SOCAL Range Complex Exercise Report--The Navy shall
submit an Annual SOCAL Range Complex Exercise Report on October 1 of
every year (covering data gathered through August 1 of the same year).
This report shall contain information identified in Sec. 216.275(f)(1)
through (5).
(1) MFAS/HFAS Major Training Exercises--This section shall contain
the following information for Integrated, Coordinated, and Major
Training Exercises (MTEs), which include Ship ASW Readiness and
Evaluation Measuring (SHAREM), Sustainment Exercises, Integrated ASW
Course Phase II (IAC2), Composite Training Unit Exercises (COMPTUEX),
and Joint Task Force Exercises (JTFEX) conducted in the SOCAL Range
Complex:
(i) Exercise Information (for each MTE):
(A) Exercise designator
(B) Date that exercise began and ended
(C) Location
(D) Number and types of active sources used in the exercise
(E) Number and types of passive acoustic sources used in exercise
(F) Number and types of vessels, aircraft, etc., participating in
exercise
(G) Total hours of observation by watchstanders
(H) Total hours of all active sonar source operation
(I) Total hours of each active sonar source (along with explanation
of how hours are calculated for sources typically quantified in
alternate way (buoys, torpedoes, etc.)).
(J) Wave height (high, low, and average during exercise)
(ii) Individual marine mammal sighting info (for each sighting in each
MTE)
(A) Location of sighting
(B) Species (if not possible--indication of whale/dolphin/pinniped)
(C) Number of individuals
(D) Calves observed (y/n)
(E) Initial Detection Sensor
(F) Indication of specific type of platform observation made from
(including, for example, what type of surface vessel, i.e., FFG, DDG,
or CG)
(G) Length of time observers maintained visual contact with marine
mammal
(H) Wave height (in feet)
(I) Visibility
(J) Sonar source in use (y/n).
(K) Indication of whether animal is < 200 yd, 200-500 yd, 500-1000
yd, 1000-2000 yd, or > 2000 yd from sonar source in paragraph
(f)(1)(ii)(J) of this section.
(L) Mitigation Implementation--Whether operation of sonar sensor
was delayed, or sonar was powered or shut down, and how long the delay
was.
(M) If source in use (i.e., in paragraph (f)(1)(ii)(J) of this
section) is hull-mounted, true bearing of animal from ship, true
direction of ship's travel, and estimation of animal's motion relative
to ship (opening, closing, parallel)
(N) Observed behavior--Watchstanders shall report, in plain
language and without trying to categorize in any way, the observed
behavior of the animals (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming, etc.)
(iii) An evaluation (based on data gathered during all of the MTEs) of
the effectiveness of mitigation measures designed to avoid exposing
marine mammals to mid-frequency sonar. This evaluation shall identify
the specific observations that support any conclusions the Navy reaches
about the effectiveness of the mitigation.
(2) ASW Summary--This section shall include the following
information as summarized from both MTEs and non-major training
exercises (unit-level exercises, such as TRACKEXs):
(i) Total annual hours of each type of sonar source (along with
explanation of how hours are calculated for sources typically
quantified in alternate way (buoys, torpedoes, etc.))
(ii) Cumulative Impact Report--To the extent practicable, the Navy,
in coordination with NMFS, shall develop and implement a method of
annually reporting non-major (i.e., other than MTEs) training exercises
utilizing hull-mounted sonar. The report shall present an annual (and
seasonal, where practicable) depiction of non-major training exercises
geographically across the SOCAL Range Complex. The Navy shall include
(in the SOCAL Range Complex annual report) a brief annual progress
update on the status of the development of an effective and
unclassified method to report this information until an agreed-upon
(with NMFS) method has been developed and implemented.
(3) SINKEXs--This section shall include the following information
for each SINKEX completed that year:
(i) Exercise information (gathered for each SINKEX):
(A) Location
(B) Date and time exercise began and ended
(C) Total hours of observation by watchstanders before, during, and
after exercise
(D) Total number and types of rounds expended / explosives
detonated
(E) Number and types of passive acoustic sources used in exercise
(F) Total hours of passive acoustic search time
(G) Number and types of vessels, aircraft, etc., participating in
exercise
(H) Wave height in feet (high, low and average during exercise)
(I) Narrative description of sensors and platforms utilized for
marine mammal detection and timeline illustrating how marine mammal
detection was conducted
(ii) Individual marine mammal observation (by Navy lookouts)
information (gathered for each marine mammal sighting)
(A) Location of sighting
[[Page 3917]]
(B) Species (if not possible, indicate whale, dolphin or pinniped)
(C) Number of individuals
(D) Whether calves were observed
(E) Initial detection sensor
(F) Length of time observers maintained visual contact with marine
mammal
(G) Wave height
(H) Visibility
(I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after
(J) Distance of marine mammal from actual detonations (or target
spot if not yet detonated)--use four categories to define distance:
(1) The modeled injury threshold radius for the largest explosive
used in that exercise type in that OPAREA (738 m for SINKEX in the
SOCAL Range Complex);
(2) The required exclusion zone (1 nm for SINKEX in the SOCAL Range
Complex);
(3) The required observation distance (if different than the
exclusion zone (2 nm for SINKEX in the SOCAL Range Complex); and
(4) Greater than the required observed distance. For example, in
this case, the observer would indicate if < 738 m, from 738 m to 1 nm,
from 1 nm to 2 nm, and > 2 nm.
(K) Observed behavior--Watchstanders will report, in plain language
and without trying to categorize in any way, the observed behavior of
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and
direction.
(L) Resulting mitigation implementation--Indicate whether explosive
detonations were delayed, ceased, modified, or not modified due to
marine mammal presence and for how long.
(M) If observation occurs while explosives are detonating in the
water, indicate munition type in use at time of marine mammal
detection.
(4) IEER Summary--This section shall include an annual summary of
the following IEER information:
(i) Total number of IEER events conducted in the SOCAL Range
Complex
(ii) Total expended/detonated rounds (buoys)
(iii) Total number of self-scuttled IEER rounds
(5) Explosives Summary--To the extent practicable, the Navy will
provide the information described below for all of their explosive
exercises. Until the Navy is able to report in full the information
below, they will provide an annual update on the Navy's explosive
tracking methods, including improvements from the previous year.
(i) Total annual number of each type of explosive exercises (of
those identified as part of the ``specified activity'' in this final
rule) conducted in the SOCAL Range Complex.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.)
for each explosive type.
(g) Sonar Exercise Notification--The Navy shall submit to the NMFS
Office of Protected Resources (specific contact information to be
provided in LOA) either an electronic (preferably) or verbal report
within fifteen calendar days after the completion of any MTE
(Sustainment, IAC2, SHAREM, COMPTUEX, or JTFEX) indicating:
(1) Location of the exercise
(2) Beginning and end dates of the exercise
(3) Type of exercise (e.g., SHAREM, JTFEX, etc.)
(h) SOCAL Range Complex 5-yr 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 ASW and explosive
exercises for which annual reports are required (Annual SOCAL Range
Complex Exercise Reports and SOCAL Range Complex Monitoring Plan
Reports). This report will be submitted at the end of the fourth year
of the rule (November 2012), covering activities that have occurred
through June 1, 2012
(i) Comprehensive National ASW Report--By June, 2014, the Navy
shall submit a draft National Report that analyzes, compares, and
summarizes the active sonar data gathered (through January 1, 2014)
from the watchstanders and pursuant to the implementation of the
Monitoring Plans for the SOCAL Range Complex, the Atlantic Fleet Active
Sonar Training, the HRC, the Marianas Range Complex, the Northwest
Training Range, the Gulf of Alaska, and the East Coast Undersea Warfare
Training Range.
(j) The Navy shall respond to NMFS comments and requests for
additional information or clarification on the SOCAL Range Complex
Comprehensive Report, the Comprehensive National ASW report, the Annual
SOCAL Range Complex Exercise Report, or the Annual SOCAL Range Complex
Monitoring Plan Report (or the multi-Range Complex Annual Monitoring
Plan Report, if that is how the Navy chooses to submit the information)
if submitted within 3 months of receipt. These reports will be
considered final after the Navy has addressed NMFS' comments or
provided the requested information, or three months after the submittal
of the draft if NMFS does not comment by then.
(k) In 2011, the Navy shall convene a Monitoring Workshop in which
the Monitoring Workshop participants will be asked to review the Navy's
Monitoring Plans and monitoring results and make individual
recommendations (to the Navy and NMFS) of ways of improving the
Monitoring Plans. The recommendations shall be reviewed by the Navy, in
consultation with NMFS, and modifications to the Monitoring Plan shall
be made, as appropriate.
Sec. 216.276 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to the regulations in
this subpart, the U.S. citizen (as defined by Sec. 216.103) conducting
the activity identified in Sec. 216.270(c) (the U.S. 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 Letters 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 will 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 will 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).
[[Page 3918]]
Sec. 216.278 Renewal of Letters of Authorization and Adaptive
Management.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.277 for the activity identified in Sec. 216.270(c) will be renewed
annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 216.276 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) Timely receipt (by the dates indicated in these regulations) of
the monitoring reports required under Sec. 216.275(c) 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) 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, as determined by NMFS, to the described work, mitigation
or monitoring undertaken during the upcoming season will occur, the
NMFS will provide the public a period of 30 days for review and comment
on the request. Review and comment on renewals of Letters of
Authorization are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
(d) NMFS, in response to new information and in consultation with
the Navy, may modify the mitigation or monitoring measures in
subsequent LOAs if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of mitigation and monitoring set
forth in the preamble of these regulations. Below are some of the
possible sources of new data that could contribute to the decision to
modify the mitigation or monitoring measures:
(1) Results from the Navy's monitoring from the previous year
(either from the SOCAL Range Complex or other locations).
(2) Findings of the Monitoring Workshop that the Navy will convene
in 2011 (Sec. 216.275(l)).
(3) Compiled results of Navy funded research and development (R&D)
studies (presented pursuant to the ICMP (Sec. 216.275(d)).
(4) 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).
(5) Results from the Long Term Prospective Study described in the
preamble to these regulations.
(6) Results from general marine mammal and sound research (funded
by the Navy (described below) or otherwise).
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. 216.272(c), 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.
[FR Doc. E9-1073 Filed 1-14-09; 4:15 pm]
BILLING CODE 3510-22-P