[Federal Register Volume 76, Number 86 (Wednesday, May 4, 2011)]
[Rules and Regulations]
[Pages 25480-25513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10440]
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Vol. 76
Wednesday,
No. 86
May 4, 2011
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 218
Taking and Importing Marine Mammals; Military Training Activities
Conducted Within the Gulf of Alaska Temporary Maritime Activities Area;
Final Rule
Federal Register / Vol. 76 , No. 86 / Wednesday, May 4, 2011 / Rules
and Regulations
[[Page 25480]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 100817363-1137-02]
RIN 0648-BA14
Taking and Importing Marine Mammals; Military Training Activities
Conducted Within the Gulf of Alaska Temporary Maritime Activities Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), issues
regulations to govern the unintentional taking of marine mammals
incidental to training activities conducted in the Gulf of Alaska (GoA)
Temporary Maritime Activities Area (TMAA) for the period April 2011
through April 2016. The Navy's activities are considered military
readiness activities pursuant to the Marine Mammal Protection Act
(MMPA), as amended by the National Defense Authorization Act for Fiscal
Year 2004 (NDAA). These regulations, which allow for the issuance of
``Letters of Authorization'' (LOAs) for the incidental take of marine
mammals during the described activities and specified timeframes,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat, as well as requirements pertaining to the
monitoring and reporting of such taking.
DATES: Effective May 4, 2011 through May 4, 2016.
ADDRESSES: A copy of the Navy's application (which contains a list of
references used in this document), NMFS' Record of Decision (ROD), and
other documents cited herein may be obtained by writing to Michael
Payne, Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact
listed here (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Brian D. Hopper, or
Michelle Magliocca, Office of Protected Resources, NMFS, (301) 713-
2289.
SUPPLEMENTARY INFORMATION:
Availability of Supporting Information
Extensive SUPPLEMENTARY INFORMATION was provided in the proposed
rule for this activity, which was published in the Federal Register on
Tuesday, October 19, 2010 (75 FR 64508). This information will not be
reprinted here in its entirety; rather, all sections from the proposed
rule will be represented herein and will contain either a summary of
the material presented in the proposed rule or a note referencing the
page(s) in the proposed rule where the information may be found.
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) during periods of not more than five consecutive years each if
certain findings are made and regulations are issued or, if the taking
is limited to harassment, notice of a proposed authorization is
provided to the public for review.
Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and if the permissible methods of taking
and requirements pertaining to the mitigation, monitoring and reporting
of such taking are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as: ``an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.''
The National Defense Authorization Act of 2004 (NDAA) (Public Law
108-136) modified the MMPA by removing the ``small numbers'' and
``specified geographical region'' limitations and amended the
definition of ``harassment'' as it applies to a ``military readiness
activity'' to read as follows (Section 3(18)(B) of the MMPA): ``any act
that injures or has the significant potential to injure a marine mammal
or marine mammal stock in the wild [Level A Harassment]; or any act
that disturbs or is likely to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of natural behavioral patterns,
including, but not limited to, migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where such behavioral patterns are
abandoned or significantly altered [Level B Harassment].
Summary of Request
In March 2009, NMFS received an application from the Navy
requesting authorization to take individuals of 20 species of marine
mammals (15 cetaceans and 5 pinnipeds) incidental to upcoming training
activities to be conducted from April 2011 through April 2016 in the
GoA TMAA, which is a 42,146 square nautical mile (nm\2\) (145,482
km\2\) polygon roughly the shape of a 300 nm (555.6 km) by 150 nm
(277.8 km) rectangle oriented northwest to southeast in the long
direction. NMFS subsequently requested additional information, which
was provided in November 2009 in the form of a revised application.
These training activities are classified as military readiness
activities under the provisions of the NDAA of 2004. These military
readiness activities may incidentally take marine mammals within the
TMAA by exposing them to sound from mid-frequency or high-frequency
active sonar (MFAS/HFAS) or underwater detonations. The Navy requested
authorization to take individuals of 20 species of cetaceans and
pinnipeds by Level B Harassment. Further, although it is neither
anticipated to occur, nor does the Navy's model factor in any potential
benefits from the implementation of mitigation measures, the Navy still
requested authorization to take, by injury or mortality, up to 15
individual beaked whales (of any of the following species as a
conservative (i.e., overestimation) measure: Baird's beaked whale,
Cuvier's beaked whale, Stejneger's beaked whale) over the course of the
5-year regulations.
Background of Request
The proposed rule contains a description of the Navy's mission,
their responsibilities pursuant to Title 10 of the United States Code,
and the specific purpose and need for the activities for which they
requested incidental take authorization. The description contained in
the proposed rule has not changed (75 FR 64508). The Navy plans to
conduct up to two, 21-day training exercises (composed of smaller
exercise components) per year between the months of April and October
in the Gulf of Alaska.
Overview of the GoA TMAA
The proposed rule contains a description of the GoA TMAA. The
description contained in the proposed rule has not changed (75 FR
64508). The GoA TMAA is a roughly rectangular area approximately 300 nm
(555.6 km)
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long by 150 nm (277.8 km) wide (42,146 nm\2\ (145,482 km\2\)), situated
south of Prince William Sound and east of Kodiak Island.
Specified Activities
The proposed rule contains a complete description of the Navy's
specified activities that are covered by these final regulations, and
for which the associated incidental take of marine mammals will be
authorized in the related LOAs. The proposed rule describes the nature
and number of anti-submarine warfare (ASW) exercises and anti-surface
warfare (ASUW) exercises involving both mid- and high-frequency active
sonar (MFAS and HFAS), as well as explosive detonations. It also
describes the sound sources and explosive types used (75 FR 64508,
pages 64509-64518). The narrative description of the action contained
in the proposed rule has not changed. Tables 1, 2, and 3 list the types
of sonar sources and the estimated yearly use, summarize the
characteristics of the exercise types, and list the explosive types
used. One acoustic source mentioned in the text of the proposed rule,
the MK-39 EMATT target, was not included in Table 1 in the proposed
rule due to an oversight. It has been added to Table 1 in this final
rule. Also, Table 1 in the proposed rule contained an error in the
number of AN/SSQ-110A (IEER) sonobuoys. The Navy proposes to use 80 of
these sonobuoys annually, which has been corrected in Table 1 in this
final rule.
The Navy has carefully characterized the training activities
planned for the GoA TMAA over the 5 years covered by these regulations;
however, evolving real-world needs necessitate flexibility in both the
types and amounts of sound sources used in annual activities. In the
proposed rule, NMFS included regulatory text (see Sec. 218.122(c))
allowing for inter-annual flexibility in the amount of use of specific
sound and explosive sources, provided it does not affect the take
estimates and anticipated impacts in a manner that changes our
analysis. However, additional minor changes to the text are needed to
address flexibility in the types of sources.
In some cases, the proposed rule identified the most representative
or highest power source to represent a group of known similar sources.
Additionally, the Navy regularly modifies or develops new technology,
often in the way of sound sources that are similar to, but not exactly
the same as, other sources. In this refinement to the final rule's
regulatory text (Sec. 218.120 (c)(1) & (2)), we increase flexibility
by inserting language that will allow for authorization of take
incidental to the previously identified specified sources or to
``similar sources,'' provided that the implementation of these changes
in annual or biennial LOAs does not result in exceeding the incidental
take analyzed and identified in the final rule.
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Description of Marine Mammals in the Area of the Specified Activities
Twenty-six marine mammal species or populations/stocks have
confirmed or possible occurrence within or adjacent to the GoA,
including seven species of baleen whales (mysticetes), 13 species of
toothed whales (odontocetes), five species of seals (pinnipeds), and
the sea otter (mustelid). Nine of these species are ESA-listed and
considered depleted under the MMPA: blue whale, fin whale, humpback
whale, sei whale, sperm whale, North Pacific right whale, Cook Inlet
beluga whale, Steller sea lion, and sea otter. Table 4 summarizes their
abundance, Endangered Species Act (ESA) status, occurrence, density,
and likely occurrence in the TMAA during the April to October
timeframe. The sea otter is managed by the U.S. Fish and Wildlife
Service and will not be addressed further here. The proposed rule
contains a discussion of five species (Cook Inlet beluga whale, false
killer whale, northern right whale dolphin, Risso's dolphin, and short-
finned pilot whale) that are not considered further in the analysis
because of their rarity in the GoA TMAA and therefore are unlikely to
be impacted by the training. The proposed rule contains a discussion of
important areas, including North Pacific right whale and Steller sea
lion critical habitat, and feeding habitats for marine mammals in the
GoA. The proposed rule also includes a discussion of marine mammal
vocalizations. Finally, the proposed rule includes a discussion of the
methods used to estimate marine mammal density in the GoA TMAA. The
Description of Marine Mammals in the Area of Specified Activities
section has not changed from what was in the proposed rule (75 FR
64508, pages 64518-64524).
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Brief Background on Sound
The proposed rule contains a section that provides a brief
background on the principles of sound that are frequently referred to
in this rulemaking (75 FR 64508, pages 64524-64526). This section also
includes a discussion of the functional hearing ranges of the different
groups of marine mammals (by frequency) as well as a discussion of the
two main sound metrics used in NMFS' analysis (sound pressure level
(SPL) and sound energy level (SEL)). The information contained in the
proposed rule has not changed.
Potential Effects of Specified Activities on Marine Mammals
With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A Harassment
(injury), or mortality, including an identification of the number and
types of take that could occur by Level A or Level B Harassment or
mortality) and to prescribe other means of effecting the least
practicable adverse impact on such species or stock and its habitat
(i.e., mitigation); (2) to determine whether the specified activity
will have a negligible impact on the affected species or stocks of
marine mammals (based on the likelihood that the activity will
adversely affect the species or stock through effects on annual rates
of recruitment or survival); (3) to determine whether the specified
activity will have an unmitigable adverse impact on the availability of
the species or stock(s) for subsistence uses; and (4) to prescribe
requirements pertaining to monitoring and reporting.
In the Potential Effects of Specified Activities on Marine Mammals
section of the proposed rule, NMFS included a
[[Page 25487]]
qualitative discussion of the different ways that MFAS/HFAS and
underwater explosive detonations may potentially affect marine mammals
(some of which NMFS would not classify as harassment), as well as a
discussion of the potential effects of vessel movement and collision
(75 FR 64508, pages 64526-64542). Marine mammals may experience direct
physiological effects (such as threshold shift), acoustic masking,
impaired communications, stress responses, and behavioral disturbance.
This section also included a discussion of some of the suggested
explanations for the association between the use of MFAS and marine
mammal strandings (such as behaviorally-mediated bubble growth) that
have been observed a limited number of times in certain circumstances
(the specific events are also described) (75 FR 64508, pages 64535-
64542). The information contained in the Potential Effects of Specified
Activities on Marine Mammals section from the proposed rule has not
changed.
Later, in the Estimated Take of Marine Mammals section, NMFS
relates and quantifies the potential effects to marine mammals from
MFAS/HFAS and underwater detonations of explosives discussed here to
the MMPA definitions of Level A and Level B Harassment.
Mitigation
In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible
methods of taking pursuant to such activity, and other means of
effecting the least practicable adverse impact on such species or stock
and its habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance.'' The NDAA of 2004 amended
the MMPA as it relates to military-readiness activities and the ITA
process such that ``least practicable adverse impact'' shall include
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the ``military readiness activity.'' The
training activities described in the GoA TMAA application are
considered military readiness activities.
NMFS reviewed the proposed GoA TMAA activities and the proposed GoA
TMAA mitigation measures as described in the Navy's LOA application to
determine if they would result in the least practicable adverse effect
on marine mammals. This included a careful balancing of the likely
benefit of any particular measure to the marine mammals against the
likely effect of that measure on personnel safety, practicality of
implementation, and impact on the effectiveness of the ``military-
readiness activity.'' NMFS identified the need to further amplify the
Navy's plan for how to respond in the event of a stranding in the GoA,
and the Navy and NMFS subsequently coordinated and produced the draft
Stranding Response Plan for the GoA, which was made available to the
public at the NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
NMFS' proposed rule includes a list of the Navy's proposed
mitigation measures (75 FR 64508, pages 64542-64548), which have been
included in the regulatory text of this document.
Based on our evaluation of the proposed measures and other measures
considered by NMFS or recommended by the public, NMFS has determined
that the required mitigation measures (including the Adaptive
Management component, see below) provide adequate means of effecting
the least practicable adverse impact on marine mammal species or stocks
and their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, while also considering
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity. The proposed rule
contains further support for this finding in the Mitigation Conclusion
section (75 FR 64508, pages 64546-64548). During the public comment
period, a few mitigation measures not previously considered were
recommended, and NMFS' analysis of these measures is included in the
Response to Public Comments section.
Research
The Navy provides a significant amount of funding and support to
marine research. In the past five years, the agency funded over $100
million ($26 million in Fiscal Year 08 alone) to universities, research
institutions, Federal laboratories, private companies, and independent
researchers around the world to study marine mammals. The U.S. Navy
sponsors 70 percent of all U.S. research concerning the effects of
human-generated sound on marine mammals and 50 percent of such research
conducted worldwide. Major topics of Navy-supported research include
the following:
Better understanding of marine species distribution and
important habitat areas;
Developing methods to detect and monitor marine species
before and during training;
Understanding the effects of sound on marine mammals, sea
turtles, fish, and birds; and
Developing tools to model and estimate potential effects
of sound.
This research is directly applicable to fleet training activities,
particularly with respect to the investigations of the potential
effects of underwater noise sources on marine mammals and other
protected species. Proposed training activities employ active sonar and
underwater explosives, which introduce sound into the marine
environment.
The Marine Life Sciences Division of the Office of Naval Research
currently coordinates six programs that examine the marine environment
and are devoted solely to studying the effects of noise and/or the
implementation of technology tools that will assist the Navy in
studying and tracking marine mammals. The six programs are as follows:
Environmental Consequences of Underwater Sound
Non-Auditory Biological Effects of Sound on Marine Mammals
Effects of Sound on the Marine Environment
Sensors and Models for Marine Environmental Monitoring
Effects of Sound on Hearing of Marine Animals
Passive Acoustic Detection, Classification, and Tracking
of Marine Mammals
The Navy has also developed the technical reports referenced within
this document, which include the Marine Resource Assessment.
Furthermore, research cruises by NMFS and by academic institutions have
received funding from the U.S. Navy. For example, in April 2009, the
U.S. Pacific Fleet contributed approximately $250,000 to support a NMFS
marine mammal density survey of the GoA's offshore waters. The goal of
this study was to increase the state of awareness on marine mammal
occurrence, density, and distribution within the GoA. The Navy-funded
vessel-based line-transect survey conducted from onboard the NOAA ship
Oscar Dyson determined marine mammal species distribution and abundance
in the GoA TMAA. The survey cruise employed multiple observation
techniques, including visual and passive acoustic observations, as well
as photographic identifications (Rone et al., 2009). In addition to the
U.S. Pacific Fleet-funded monitoring initiative, the Chief of Naval
Operations Environmental Readiness Division and the Office of Naval
Research have developed a coordinated Science & Technology and Research
& Development program focused on
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marine mammals and sound. Total Investment in this program between 2004
and 2008 was $100 million. Fiscal Year 09 funding was $22 million and
continued funding at levels greater than $14 million is foreseen in
subsequent years (beyond 2010).
The Navy has sponsored several workshops to evaluate the current
state of knowledge and potential for future acoustic monitoring of
marine mammals. The workshops brought together acoustic experts and
marine biologists from the Navy and other research organizations to
present data and information on current acoustic monitoring research
efforts, and to evaluate the potential for incorporating similar
technology and methods on instrumented ranges. However, acoustic
detection, identification, localization, and tracking of individual
animals still requires a significant amount of research effort to be
considered a reliable method for marine mammal monitoring. The Navy
supports research efforts on acoustic monitoring and will continue to
investigate the feasibility of passive acoustics as a potential
mitigation and monitoring tool.
Overall, the Navy will continue to fund marine mammal research, and
is planning to coordinate long-term monitoring/studies of marine
mammals on various established ranges and operating areas. The Navy
will continue to research and contribute to university/external
research to improve the state of the science regarding marine species
biology and acoustic effects. These efforts include mitigation and
monitoring programs; data sharing with NMFS and via the literature for
research and development efforts; and future research as described
previously.
Monitoring
Section 101(a)(5)(A) of the MMPA states that, in order to issue an
ITA for an activity, NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the level of taking or impacts on populations of marine
mammals that are expected to be present.
Proposed Monitoring Plan for the GoA TMAA
The Navy submitted a draft Monitoring Plan for the GoA TMAA which
may be viewed at NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
Navy Monitoring Plans are typically designed as a collection of
focused ``studies'' to gather data that will allow the Navy to address
one or more of the following questions:
(a) Are marine mammals exposed to MFAS/HFAS (1-10 kHz), especially
at levels associated with adverse effects (i.e., based on NMFS'
criteria for behavioral harassment, TTS, or PTS)? If so, at what levels
are they exposed?
(b) If marine mammals are exposed to MFAS/HFAS, do they
redistribute geographically as a result of continued exposure? If so,
how long does the redistribution last?
(c) If marine mammals are exposed to MFAS/HFAS, what are their
behavioral responses to various levels?
(d) What are the behavioral responses of marine mammals that are
exposed to explosives at specific levels?
(e) Is the Navy's suite of mitigation measures for MFAS/HFAS and
explosives (e.g., Protective Measures Assessment Protocol, major
exercise measures agreed to by the Navy through permitting) effective
at avoiding TTS, injury, and mortality of marine mammals?
Given the larger scope of training events within other Navy range
complexes as compared to the GoA, not all of these original five study
questions would necessarily be addressed in the final GoA TMAA
Monitoring Plan. Rather, data collected from the GoA monitoring efforts
would be used to supplement a consolidated range complex marine mammal
monitoring report incorporating data from the Hawaii Range Complex,
Marianas Island Range Complex, Northwest Training Range Complex, and
Southern California Range Complex.
Data gathered in these studies will be collected by qualified,
professional marine mammal biologists who are experts in their field.
Monitoring methods proposed for the GoA include use of passive
acoustic monitoring (PAM) to primarily focus on providing additional
data for study questions (b) and (c).
This monitoring plan has been designed to gather data on all
species of marine mammals that are observed in the GoA TMAA study area;
however, the Navy will prioritize monitoring efforts for ESA-listed
species and beaked whale species. The Plan recognizes that deep-diving
and cryptic species of marine mammals, such as beaked whales and sperm
whales, may have low probability of visual detection (Barlow and
Gisiner, 2006). Therefore, methods will be utilized to address this
issue (e.g., PAM).
During the comment period on the Notice of Receipt (75 FR 5575,
February 3, 2010) for the GoA TMAA action, NMFS received multiple
public comments suggesting that there are inadequate density,
distribution, and abundance data for marine mammals in the GoA TMAA. As
mentioned previously, the Navy funded a $250,000 density survey in the
offshore waters of the GoA TMAA in April, 2009. The Navy developed its
draft monitoring plan for the GoA TMAA was developed to contribute
scientific information to the overall NMFS-Navy monitoring goals. It
selected year-round PAM recorders as the most appropriate long-term
tool for obtaining more precise marine mammal occurrence data
(presence/absence) in the GoA TMAA, especially in the offshore waters
where weather and sea conditions would likely limit the usefulness of
visual surveys. At other Navy range complexes, results from similar PAM
recordings have begun to provide better information on species-specific
occurrence and behavior.
NMFS believes that we should vigorously target this baseline
information need with the monitoring plan and, in consideration of the
public comments that we received on the proposed rule (75 FR 64508,
October 19, 2010), we worked with the Navy on revising the plan. The
revised monitoring plan now includes a commitment by the Navy to deploy
PAM devices in 2011 and 2012 in the GoA TMAA to detect, locate, and
potentially track vocalizing marine mammals, as well as provide
seasonal estimates of presence/absence. These devices will be deployed
year-round, including during Navy training events. Given the potential
seas states and ocean conditions during both winter and summer, and the
relatively infrequent Navy presence in the GoA TMAA, PAM represents the
best long-term monitoring technique to employ within the GoA TMAA. In
addition to collecting marine mammal vocalization and echolocation data
before, during, and after any Navy training event, information can be
inferred as to whether the training event has an effect or no effect on
observed vocalizations. In 2013 and 2014, the Navy plans to conduct
further monitoring using either PAM or another survey method. An
alternate survey technique would ideally be part of a larger focused
effort during the same time period in coordination with other agencies
or research organizations working in the area. While the exact extent
and
[[Page 25489]]
technique to be employed is still undetermined (e.g., including but not
limited to visual survey), monitoring in 2013 and 2014 is expected to
receive the same level of fiscal and logistical support as the 2011-
2012 efforts.
In addition to the Monitoring Plan for the GoA, the Navy has
established an Integrated Comprehensive Monitoring Program (ICMP). The
ICMP is a Navy-wide monitoring framework that will provide an
overarching structure and coordination that will, over time, compile
data from all Navy range-specific monitoring plans; the GoA TMAA plan
is just one component of the ICMP. The overall objective of the ICMP is
to assimilate relevant data collected across Navy range complexes in
order to answer questions pertaining to the impact of MFAS and
underwater explosive detonations on marine animals. Top priorities of
the ICMP include: monitoring Navy training events, particularly those
involving MFAS and underwater detonations; collecting data to estimate
the number of individuals exposed to sound levels above current
regulatory thresholds; assessing the efficacy and practicability of
monitoring and mitigation tools and techniques and the Navy's current
mitigation methods; and adding to the overall knowledge base on
potential behavioral and physiological effects to marine species from
MFAS and underwater detonations. More information about the ICMP may be
found in the Monitoring Plan for the GoA.
Monitoring Workshop
The Navy, with guidance and support from NMFS, will convene a
Monitoring Workshop, including marine mammal and acoustic experts as
well as other interested parties, in 2011. The Monitoring Workshop
participants will review the monitoring results from other Navy rules
and LOAs (e.g., the Southern California Range Complex (SOCAL), Hawaii
Range Complex (HRC), etc.). The Monitoring Workshop participants will
provide their individual recommendations to the Navy and NMFS on the
monitoring plan(s) after also considering the current science
(including Navy research and development) and working within the
framework of available resources and feasibility of implementation.
NMFS and the Navy will then analyze the input from the Monitoring
Workshop participants and determine the best way forward from a
national perspective. Subsequent to the Monitoring Workshop, NMFS and
the Navy will apply modifications to monitoring plans as appropriate.
Adaptive Management
Our understanding of the effects of MFAS and explosives on marine
mammals is still in its relative infancy, and yet the science in this
field is evolving fairly quickly. These circumstances make the
inclusion of an adaptive management component both valuable and
necessary within the context of 5-year regulations for activities that
have been associated with marine mammal mortality in certain
circumstances and locations (though not in the Pacific Ocean or within
the GoA TMAA). NMFS has included an adaptive management component in
these regulations, which will allow NMFS to consider new information
from different sources to determine (in coordination with the Navy and
with input regarding practicability) on an annual or biennial basis if
mitigation or monitoring measures should be modified (including
additions or deletions) if new data suggest that such modifications are
appropriate for subsequent annual or biennial LOAs.
The following are some of the possible sources of applicable data:
(1) Findings of the Workshop that the Navy will convene in 2011 to
analyze monitoring results to date, review current science, and
recommend modifications, as appropriate, to the monitoring protocols to
increase monitoring effectiveness; (2) compiled results of Navy funded
research and development (R&D) studies (presented pursuant to the ICMP,
which is discussed elsewhere in this document); (3) results from
specific stranding investigations (involving coincident MFAS or
explosives training or not involving coincident use); (4) results from
general marine mammal and sound research; and (5) any information which
reveals that marine mammals may have been taken in a manner, extent or
number not authorized by these regulations or subsequent Letters of
Authorization.
Separately, in July, 2010, NMFS and the Navy convened the ``Marine
Mammals and Sound'' workshop, which brought together science and policy
experts from the government, the academic community, and non-
governmental organizations with the goals of prioritizing marine mammal
research needs and opening up a broad discussion of (and potentially
making recommendations regarding) some of the current management issues
related to marine mammals and sound. After the information and ideas
gathered during this workshop are sorted, compiled, and assessed, NMFS
will use them, as appropriate, to inform our management decisions on
issues such as appropriate mitigation and monitoring. In addition to
considering these workshop products in the broader context of all MMPA
authorizations from the Office of Protected Resources, they will also
be considered as NMFS and the Navy work through the Adaptive Management
process outlined for the GOA below.
Mitigation measures or monitoring requirements could be modified,
added, or deleted if new information suggests that such modifications
would have a reasonable likelihood of accomplishing the goals of
mitigation or monitoring laid out in this final rule and if the
measures are practicable.
Reporting
In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' Effective reporting is
critical both to compliance as well as ensuring that the most value is
obtained from the required monitoring. The proposed rule contains the
reporting requirements for the Navy (75 FR 64508, pages 64550-64552),
and these requirements remain unchanged.
Comments and Responses
On October 19, 2010 (75 FR 64508), NMFS published a proposed rule
in response to the Navy's request to take marine mammals incidental to
military readiness training in the GoA TMAA and solicited comments,
information, and suggestions concerning the proposed rule. NMFS
received twelve comment letters from environmental non-governmental
organizations, the Marine Mammal Commission (MMC), and interested
members of the public. The comments are summarized, sorted into general
topic areas, and addressed below. Full copies of the comment letters
may be accessed at http://www.regulations.gov.
NMFS worked with the Navy to develop MMPA rules and LOAs for the
GoA TMAA, Atlantic Fleet Active Sonar Training (AFAST) activities,
Southern California Range Complex (SOCAL), Hawaii Range Complex (HRC),
Mariana Islands Range Complex (MIRC), and Northwest Training Range
Complex (NWTRC). Many of the issues raised in the public comments for
this rule were also raised for these previous rules, and NMFS
considered many of the broader issues in the context of all of these
Navy actions when determining how to address the comments on the GoA
TMAA. Responses to public comments on AFAST, SOCAL, and HRC were
[[Page 25490]]
published in January 2009, and responses to public comments on MIRC and
NWTRC were published in August and November 2010, respectively. These
final rules and their responses to public comments may provide the
public with additional detail, if needed.
Additional Mitigation Recommendations
Comment 1: One commenter suggests that aerial surveys before
SINKEXs (75 FR 64508, p. 64546) should be mandatory, especially when
the Beaufort Sea State is above 3.
Response: As stated in the proposed rule, in the event of a
Beaufort Sea State 4 or above, survey efforts shall be increased within
the 2 nm (3.7 km) zone around the target. This shall be accomplished
through the use of an additional aircraft, if available, and conducting
tight search patterns. The exercise shall not be conducted unless the 2
nm (3.7 km) zone around the target could be adequately monitored
visually.
Comment 2: One commenter suggests that over-flights should be
required for spotting marine mammals before detonation exercises (75 FR
64508, p. 64552) because the typical sea state in GoA is usually
greater than 1.
Response: As stated in the proposed rule, a series of surveillance
over-flights shall be conducted within the exclusion and the safety
zones, prior to and during exercises, when feasible.
Comment 3: One commenter asked whether the training could be done
during times of the year that would result in the minimal impact to all
species. Another commenter asked whether there is another location that
could be used for at least part of the training, where fewer animals
would be impacted.
Response: While several species of baleen whales have periods of
increased prevalence within the TMAA, these times do not always
overlap; hence, it is not possible for the Navy to avoid every species
of marine mammal. Furthermore, most species are more prevalent during
summer months, which is when the Navy needs to do their exercises.
Training during the winter months is not an option due to human safety
concerns. Certain specific types of seasonal and geographic
restrictions or limitations are impracticable for the Navy's activities
in the TMAA.
In response to the second part of the comment, the TMAA was chosen
very carefully in order to meet the Navy's training requirements and
allow for the safe operation of ships, aircraft, and submarines. Moving
the training activities to alternative locations would impact the
effectiveness of the training and has no known benefit. Moreover,
satisfying this request is beyond NMFS' authority under current laws.
Furthermore, the existing marine mammal density and distribution
information does not suggest that there are specific areas within the
GoA where training would result in fewer impacts to marine mammals.
Comment 4: One commenter asked if the military could develop and
substitute computer-simulated training for at least part or most of the
training.
Response: As explained in the Navy's EIS, the Navy often employs
simulators and synthetic training, but live training in a realistic
environment is vital to success. The Navy relies on realistic combat-
like training to prepare men and women for deployment. Moreover, a
simulator cannot match the dynamic nature of the environment, either in
bathymetry, sound propagation properties, or oceanography. In addition,
coordinated unit level and Strike Group Training activities require
multiple crews to interact in a variety of acoustic environments that
cannot be simulated. Finally, it is a training imperative that crews
actually use the equipment they will be called upon to operate. For
more information on the simulated training option please refer to the
Alternatives Eliminated from Further Consideration section of the
Navy's EIS.
Comment 5: One commenter refers to the Navy's claims that it does
not anticipate beaked whale mortality, yet requests Level A take, and
states that this is not acceptable; beaked whales require additional
mitigation and protection from Navy sonar.
Response: As stated in the proposed rule, evidence from five beaked
whale strandings (all of which have taken place outside the GoA TMAA,
and have occurred over approximately a decade) suggests that the
exposure of beaked whales to MFAS in the presence of certain conditions
(e.g., multiple units using active sonar, steep bathymetry, constricted
channels, strong surface ducts, etc.) may result in strandings,
potentially leading to mortality. Although not all five of these
physical factors believed to have contributed to the likelihood of
beaked whale strandings are present, in their aggregate, in the GoA
TMAA, scientific uncertainty exists regarding what other factors, or
combination of factors, may contribute to beaked whale strandings.
Accordingly, to allow for scientific uncertainty regarding contributing
causes of beaked whale strandings and the exact behavioral or
physiological mechanisms that can lead to the stranding and/or death,
the Navy has requested authorization for (and NMFS is authorizing) take
by injury or mortality. Although NMFS is authorizing take by injury or
mortality of up to 15 beaked whales over the course of the 5-year
regulations, the Navy's model did not predict injurious takes of beaked
whales and neither NMFS nor the Navy anticipates that marine mammal
strandings or mortality will result from the operation of MFAS during
Navy exercises within the GoA TMAA. NMFS determined that the impact to
beaked whales from the Navy's activities cannot be reasonably expected
to, and is not reasonably likely to, adversely affect the species or
stock through effects on annual rates of recruitment or survival and,
therefore, concluded that the activity would have a negligible impact
for these species.
Comment 6: One commenter refers to NMFS' mention of the ENP Alaskan
resident stock and ENP Alaskan transient stock (75 FR 64508, p. 64571)
of killer whales and asks if this is the depleted Prince William Sound
stock. If so, according to the commenter, they require special
consideration.
Response: The ENP Alaska resident stock includes the Prince William
Sound pod; however, this stock of killer whales is not listed as
``depleted'' under the MMPA. In the Gulf of Alaska, Malkin et al.
(1999) described two genetically distinct communities of transient
killer whales that do not interact, the so-called Gulf of Alaska
transients and the AT1 transients. In 2004, the AT1 transient killer
whale group was determined by NMFS to be depleted under the MMPA.
Individuals from this stock may be present in the TMAA; however, the
Navy's activities are not expected to occur in an area/time of specific
importance for reproduction, feeding, or other known critical
behaviors. Furthermore, these large-grouped gregarious animals are very
likely to be detected by Marine Mammal Observers (MMOs) and Navy
Lookouts. As stated in the proposed rule, NMFS has determined that the
Navy's specified activities will have a negligible impact on this
species.
Comment 7: The MMC recommends that the rule require the suspension
of the Navy's activities if a marine mammal is seriously injured or
killed and the injury or death could be associated with those
activities. The injury or death should be investigated to determine the
cause, assess the full impact of the activity or activities and
determine how activities should be modified to avoid future injuries or
deaths.
[[Page 25491]]
Response: NMFS and the Navy have developed a detailed Stranding
Response Plan for the GoA TMAA that outlines protocols for, and
describes the underlying rationale for shutdown (in very specific
circumstances) and investigation in the event that dead or stranded
animals are found in the vicinity of an exercise. In addition, NMFS'
regulations include a provision for ``General notification of injured
or dead marine mammals,'' that requires Navy personnel to notify NMFS
immediately (or as soon as clearance procedures allow) if an injured,
stranded, or dead marine mammal is found during or shortly after, and
in the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or
underwater explosive detonations. The provision further requires the
Navy to provide NMFS with species identifications or descriptions of
the animal(s), the conditions of the animal(s) (including carcass
condition if the animal is dead), location, time of first discovery,
observed behaviors (if alive), and photo or video of the animal(s) (if
available).
It can take months to years to complete the necessary tests and
analysis required to determine, with a reasonable amount of certainty,
the cause of a marine mammal death--and sometimes it is not possible to
determine it. All but one of the small number of strandings that have
occurred around the world associated with MFAS exercises have occurred
concurrent with MFAS exercises that would have been considered
``major,'' which typically involve multiple surface vessels and last
for a much longer duration than non-major exercises. Therefore, NMFS
(with input from the Navy) determined that it was beneficial and
practicable to preemptively outline an explicit plan (that includes a
shutdown requirement in certain circumstances) for how to deal with a
stranding that occurs during a major exercise, and Stranding Response
Plans were developed for all of the areas in which major exercises are
conducted. Alternatively, for non-major exercises, the general
notification provisions apply, under which the Navy would contact NMFS
as soon as clearance procedures allow and we would determine how best
to proceed at that time.
Because: (1) So few strandings have been definitively associated
with MFAS training in the 60+ years that the U.S. and other countries
that share information have been conducting MFAS training; (2) the
exercises conducted in the GoA TMAA are of short duration and
seasonally limited (i.e., no more than two 21-day exercises, which may
only be conducted between the months of April and October); and (3)
investigations take a long time and are not always conclusive, it is
not reasonable or practicable to require the Navy to shut down every
time an injured or dead animal is found in the vicinity pending the
results of an investigation that could take years to conduct.
However, NMFS and the Navy will implement the Stranding Response
Plan as written and, as in the past, will work together on a case-by-
case basis within the constraints of our available resources to
investigate the causes of any stranding or death occurring during a
non-major exercise. Once investigations are completed and
determinations made (as feasible), NMFS would use the available
information to help reduce the likelihood that a similar event would
recur and would work with the Navy on the necessary steps to ensure
compliance by the Navy with the MMPA. NMFS and the Navy will develop
and finalize a Memorandum of Agreement that will streamline and improve
the way that the Navy assists NMFS during a stranding investigation.
Finally, the Stranding Response Plan includes a provision for stranding
debriefs/lessons learned meetings between NMFS and the Navy following a
stranding response, and the GoA TMAA rule includes an adaptive
management provision that allows for the modification of mitigation or
monitoring measures based on new information (like that which might be
gathered during a stranding response/investigation), as appropriate.
Comment 8: One commenter states that NMFS' assertion regarding blue
whales most likely feeding during the summer months should lead to NMFS
prohibiting Navy activities during this time.
Response: NMFS stated that, ``like most baleen whales, blue whales
would most likely feed in the north during summer months (potentially
the GoA) and head southward in the cooler months.'' However, the GoA
TMAA activities are not expected to occur in an area/time of specific
importance for breeding, calving, or other known critical behaviors of
blue whales. Currently, there are no known specific feeding grounds for
blue whales within the TMAA. Furthermore, the blue whales' large size
and detectability makes it unlikely that these animals would be exposed
to the higher levels of sound expected to result in more severe
effects. Moreover, training during other times of the year is not an
option due to human safety concerns.
Comment 9: One commenter requests that NMFS protect feeding grounds
for humpback whales and migratory routes for gray whales. In addition,
this commenter and another commenter request that NMFS protect (e.g.,
prohibit MFAS within) high bathymetric relief areas for beaked whales.
Response: In the proposed rule, NMFS stated that most baleen
whales, including humpback and gray whales, would most likely feed in
the north during summer months, potentially the GoA, and head southward
in the cooler months. However, the GoA TMAA activities are not expected
to occur in an area/time of specific importance for breeding, calving,
or other known critical behaviors. Currently, there are no known
specific feeding grounds for humpback or gray whales within the TMAA.
Furthermore, their large size and detectability makes it unlikely that
these animals would be exposed to the higher levels of sound expected
to result in more severe effects.
As indicated in the Navy's EIS and referenced in the proposed rule,
gray whales have a well-defined north-south migratory path that takes
them through the GoA twice a year. During migration through the GoA,
gray whales' primary occurrence extends seaward 15 nm (28 km) from the
shoreline within a narrow margin of the TMAA's northern boundary. The
April 2009 survey encountered one group of two gray whales within the
western edge of the TMAA and two groups well outside the TMAA nearshore
at Kodiak Island (Rone et al., 2009). The potential impacts to gray
whales from Navy training activities are specifically discussed in the
Potential Effects of Specified Activities on Marine Mammals section of
the proposed rule. Given the transient nature of gray whales during
migration through the GoA, and in light of the Navy's mitigation
measures, although some gray whales may be behaviorally disturbed, more
severe responses are not anticipated and NMFS determined that the take
will have a negligible impact on the stock.
With respect to high bathymetric relief areas and beaked whales,
the Navy's training exercises are spread throughout the GoA TMAA (as
opposed to being focused in an area of known particular importance).
Furthermore, the Navy's activities in the GoA are only occurring for a
21-day period once or twice a year.
Comment 10: One commenter states that NMFS must ensure that SINKEXs
do not occur in or near critical habitat or breeding/feeding grounds.
Response: NMFS agrees that protecting important habitat (e.g.,
[[Page 25492]]
critical habitat or areas known for displays of important behaviors
such as breeding and feeding) can be an effective way to minimize
impacts to marine mammals; however, SINKEXs will not occur in or near
critical habitat because designated critical habitats for Steller sea
lions and North Pacific right whales are outside of the GoA TMAA.
Furthermore, the commenter has neither suggested particular areas used
by marine mammals for breeding/feeding nor presented any additional
evidence that NMFS could consider in identifying such areas within the
GoA TMAA. Pursuant to the MMPA, NMFS makes mitigation decisions based
on the biological information pertaining to the potential impacts of an
activity on marine mammals and their habitat (and the practicability of
the measure). SINKEXs, in general, require the most comprehensive suite
of mitigation measures relative to other Navy training exercises and
the permit issued to the Navy under the Marine Protection, Research and
Sanctuaries Act requires vessels to be sunk in waters that are at least
6,000 ft (1,829 m) deep and at least 50 nm (92.6 km) from land. In
addition, the Navy has agreed not to conduct SINKEXs within Habitat
Areas of Particular Concern (HAPCs) established in the GoA. NMFS
believes that the permit conditions and avoidance of HAPCs, in
conjunction with the Navy's SINKEX mitigation plan, set forth a means
for effecting the least practicable adverse impact. The rationale
behind this finding was discussed in the Mitigation Conclusion section
of the proposed rule (75 FR 64508, pages 64546-64548).
Comment 11: One commenter states that, with respect to North
Pacific right whales, the Navy must take all possible precautions,
including a larger buffer zone around the critical habitat area that
extends inside the TMAA, and ceasing all activity when whales are
present. Another similar comment states that NMFS should require
sufficient buffers between critical habitat and the TMAA. Another
commenter claims NMFS' proposal to allow Level B takes of North Pacific
right whales (75 FR 64508, p. 64568), is unacceptable due to their
critically endangered status.
Response: NMFS believes that the location of the TMAA relative to
designated critical habitats is sufficient to avoid diminishing their
conservation value to species. For example, the nearest boundary of the
Pacific right whale critical habitat is approximately 16 nm (30 km)
west of the southwest corner of the TMAA. NMFS believes that this
distance, coupled with the fact that most exercises will take place
away from the boundaries of the TMAA, provide an adequate buffer around
North Pacific right whale critical habitat. In addition, current
regulations (50 CFR 224.103(c)) require ships to maneuver to maintain
at least 500 yards (460 m) of separation from any observed right whale
(consistent with safety of ship). The Navy's model predicted that
approximately 10 takes of North Pacific right whales would occur within
the GoA TMAA over the course of five years (and no takes by injury or
mortality). NMFS believes that by implementing specific mitigation
measures the Navy has minimized, to the extent practicable, the impacts
to North Pacific right whales and their critical habitat.
In addition, the TMAA is located offshore of the main habitat and
foraging grounds for Steller sea lions. While the Steller sea lions'
range runs adjacent to the TMAA, their foraging habitat consists
primarily of shallow, nearshore areas, and continental shelf waters 8
to 24 km (4.3 to 13 nm) offshore, which are inshore of the TMAA
boundaries. There is no critical habitat for Steller sea lions within
the TMAA boundaries. The area designated as critical habitat was based
on land use patterns, the extent of foraging trips, and the
availability of prey items, with particular importance given to the
haul out areas where Stellers rest, pup, nurse, mate, and molt.
With respect to the additional comment regarding takes of North
Pacific right whales, as noted in the proposed rule, only Level B takes
in the form of behavioral disturbances are anticipated. No TTS takes
are estimated because the North Pacific right whales' large size and
detectability makes it unlikely that these animals would be exposed to
the higher levels of sound expected to result in more severe effects.
Mitigation Effectiveness
Comment 12: According to one commenter, NMFS states that bow riding
dolphins will not be affected because they are outside the main beam of
the sonar (75 FR 64508, p. 64547). The commenter then asks about the
assumption that marine mammals will not approach ships, and whether the
Navy is supposed to cease MFAS when marine mammals are within 1,000
yds.
Response: Dolphins are known to deliberately close in on a ship to
ride the vessel's bow wave. While in the shallow-wave area of the
vessel bow, dolphins are out of the main transmission axis of the
active sonar. As stated in the proposed rule, if after conducting an
initial maneuver to avoid close quarters with dolphins or porpoises,
the Officer of the Deck (OOD) concludes that dolphins or porpoises are
deliberately closing to ride the vessel's bow wave, no further
mitigation actions are necessary while the dolphins or porpoises
continue to exhibit bow wave riding behavior.
Comment 13: One commenter claims that NMFS fails to describe Navy's
``suite of mitigation measures'' (75 FR 64508, p. 64549).
Response: NMFS discussed the proposed mitigation measures in detail
within the proposed rule (75 FR 64542, October 19, 2010). To briefly
reiterate, they include personnel training, specific operating
procedures and collision avoidance, shutdowns, buffer zones, and
Lookouts. This information is also explicitly described in the
regulatory text of the final rule.
Comment 14: One commenter asserts that safety zones (1,000 yard
power-down and 200 yard shut down) around sonar domes are an inadequate
and ineffective mitigation measure. Similarly, another commenter
recommended that the 1,000 yard safety zone should be increased to
2,000 yards.
Response: The commenter provides no justification for increasing
the buffer zone to 2,000 yards. The Navy's powerdown and shutdown
strategy (i.e., the specific distances) is intended to avoid exposure
of marine mammals to injurious levels of sound (which is thought to
occur at about 10 m from the source), and to reduce exposing marine
mammals (to varying degrees, depending on the species and environmental
conditions) to higher levels of sound that might be associated with
more severe behavioral responses. As the proposed rule discussed, while
visual detection of marine mammals is not anticipated to be 100%
effective, the 1,000 yard safety zone coincides with a Lookout's
ability to realistically maintain situational awareness over a large
area of the ocean; including the ability to detect marine mammals
during less than ideal sea state conditions. The Mitigation Conclusion
section of the proposed rule describes NMFS' least practicable adverse
impact analysis (75 FR 64508, pages 64546-64548).
Comment 15: One commenter expressed concern over the unknown
impacts of the way sound travels with respect to the large underwater
canyons in the GoA and states that the Navy does not set forth adequate
measures to mitigate harmful effects of sonar primarily with
sensitivity to fin, right, minke, or killer whales.
Response: In general, environmental parameters--such as
bathymetry--play an important role in the Navy's analysis of marine
mammal impacts, and due to the importance that propagation loss
[[Page 25493]]
plays in ASW exercises, the Navy has, over the last four to five
decades, invested heavily in measuring and modeling environmental
parameters. Within the GoA TMAA, the Navy has identified six
bathymetric provinces ranging from 100 m to typical deep-water depths
(slightly more than 5,000 m). To model how sound from a particular
source travels through the water column, bathymetric features are
combined with other environmental parameters, such as sound speed
profiles and High-Frequency Bottom Loss classes to determine
propagation loss, and, ultimately, the zone of influence of a
particular sound source.
The model used by the Navy to estimate marine mammal exposures to
sonar, which also considers the density of each species in the area,
did not predict any Level A exposures (PTS) on fin, North Pacific
right, minke, or killer whales. With respect to mitigation measures,
NMFS indicates that Level A Harassment (injury) and Temporary Threshold
Shift (TTS) (one type of Level B Harassment) are unlikely to occur
because of: The distance from the source within which an animal would
need to approach to be exposed to levels associated with injury (~ 10
m) or TTS (~178-335 m); the fact that Lookouts would detect animals at
that close distance; the fact that the Navy model (which does not take
mitigation or avoidance into consideration) predicted that 1 Dall's
porpoise would be exposed to injurious levels of sound and 931 animals
would be exposed to levels associated with TTS; and the fact that many
(not all) animals will avoid sonar at some distance. Although modeling
predicted that one animal would be exposed to levels of sound that
would cause injury, Level A takes were not requested by the Navy (and
NMFS is not authorizing Level A takes) because the implementation of
mitigation and monitoring procedures will further minimize the
potential for marine mammal exposures to sonar sources. Additionally,
the Navy is capable of effectively monitoring a 1,000 m safety zone
using a variety of techniques, including binoculars, night vision
goggles, infrared cameras, and passive acoustic monitoring.
Comment 16: One commenter claims that NMFS assumes marine mammals
can easily move away during SINKEXs, but asserts that little to nothing
is known about how marine mammals in the GoA will react to noise.
Response: The commenter misrepresents this piece of text from the
proposed rule. Up to two SINKEXs are planned annually for the GoA TMAA.
These exercises are stationary and conducted in deep, open water where
few marine mammals would typically be expected to be randomly
encountered. NMFS does not solely rely on the animal's ability to
detect the activity and avoid it as a mitigation measure during
SINKEXs. In fact, SINKEXs have the most rigorous monitoring and
shutdown protocol of any planned explosive exercise. For a complete
list of these protocols, please refer to Sec. 218.124(a)(4).
Impact Assessment
Comment 17: One commenter claims that NMFS refers to models, but
does not provide a source (75 FR 64508, p. 64548).
Response: NMFS refers to the model used by the Navy to estimate
marine mammal takes in the GoA, which is described in detail in
Appendix B of the LOA application and Appendix D of the EIS.
Comment 18: One commenter claims that NMFS does not address the
issue of greenhouse gases from overflights.
Response: NMFS is not authorizing the Navy's activities; rather, we
are analyzing and authorizing the take of marine mammals incidental to
those activities. NMFS does not anticipate that greenhouse gas
emissions from overflights will result in marine mammal take, and
therefore, we do not address the issue any further. Please refer to
section 3.1 of the EIS for a detailed discussion of potential impacts
to air quality, including emissions from aircraft activities.
Comment 19: One commenter claims NMFS states that the probability
of marine mammals approaching the sonar dome is low (75 FR 64508, p.
64547), but does not cite where that information is from and does not
take into account deep-diving whales that may be present.
Response: NMFS actually stated that the probability that a marine
mammal would approach within the above distances of the sonar dome
without being seen by the watchstanders is very low. The watchstanders'
job is to look for marine mammals and activate a shutdown, should they
approach within 200 yd (183 m).
Comment 20: One commenter asserts that NMFS claims that animals
exposed to MFAS would not receive enough exposure to drive bubble
growth to substantial size (75 FR 64508, p. 64553), and asks what
studies substantiate this assertion.
Response: The proposed rule contained a detailed discussion of the
many hypotheses involving both acoustically-mediated and behaviorally-
mediated bubble growth. NMFS concluded that there is not sufficient
evidence to definitively say that any of these hypotheses accurately
describe the exact mechanism that leads from sonar exposure to a
stranding. Despite the many theories involving bubble formation (both
as a direct cause of injury and an indirect cause of stranding),
Southall et al. (2007) summarizes that scientific disagreement or
complete lack of information exists regarding the following important
points: (1) Received acoustical exposure conditions for animals
involved in stranding events; (2) pathological interpretation of
observed lesions in stranded marine mammals; (3) acoustic exposure
conditions required to induce such physical trauma directly; (4)
whether noise exposure may cause behavioral reactions (such as atypical
diving behavior) that secondarily cause bubble formation and tissue
damage; and (5) the extent to which the post mortem artifacts
introduced by decomposition before sampling, handling, freezing, or
necropsy procedures affect interpretation of observed lesions. Based on
the best available science, NMFS stated that a short duration of active
sonar pings (such as that which an animal exposed to MFAS would be most
likely to encounter) would not likely be long enough to drive bubble
growth to any substantial size (75 FR 64553, October 19, 2010). The
Navy's mitigation and monitoring measures are in place to prevent
prolonged exposure of marine mammals to MFAS.
Comment 21: One commenter refers to NMFS' use of a risk function
based on studies on four species and limited science (75 FR 64508, p.
64558) and asks if this is a risk model that will be used in the GoA.
If so, the commenter asserts, it needs to integrate cumulative, long-
term, synergistic stressors. The commenter claims that if there is no
data to allow for this integration, then NMFS should not be using this
risk function to estimate and authorize takes.
Response: NMFS has explained in the proposed rule why we chose the
three datasets we used to define the risk function. These three
datasets represent the only known data that specifically relate altered
behavior responses (that NMFS would consider Level B Harassment) to
exposure--at specific received levels--to MFAS and sources within or
having components within the range of MFAS (1-10 kHz). As commenters
have pointed out in previous rules, there are datasets that report
marine mammal responses to lower levels of received sound; however,
because of the structure of the curve NMFS uses and what it predicts
(Level B Harassment), we need datasets
[[Page 25494]]
that show a response that we have determined qualifies as harassment
(in addition to needing a source that is adequately representative of
MFAS and includes reliable specific received level information), which
many of the lower level examples do not.
Comment 22: One commenter claims that the hours of MFAS over a 5-
year period are not readily apparent in Table 8.
Response: Table 8 (Table 5 in this final rule) is not intended to
depict the hours of MFAS over a 5-year period. Rather, the table shows
the Navy's estimated amount of take and NMFS' proposed annual take
authorization. The hours of sonar sources authorized over a 5-year
period are included in Subpart N of Part 218--Regulations Governing the
Taking and Importing of Marine Mammals.
Comment 23: One commenter asks if sonar has been shown to affect
the successful reproduction of any marine mammal species or their prey.
Response: In the Species Specific Analysis section of the proposed
rule, NMFS discusses potential effects on marine mammals in the GoA
TMAA, including population level effects. The GoA TMAA activities are
not expected to occur in an area/time of specific importance for
breeding, calving or other known critical behaviors. In addition, the
size of many large whale species and group size of smaller ododocetes
improves detectability and makes it unlikely that these animals would
be exposed to higher levels of sound that would be expected to result
in more severe effects. Therefore, the activities are not expected to
adversely impact rates of recruitment and survival of these marine
mammals species or stocks and NMFS has determined that the Navy's
activities will have a negligible impact on the affected species or
stocks. With respect to marine mammal prey, in the Effects on Marine
Mammal Habitat section, NMFS discusses the effects on marine mammal
food resources, including fish and invertebrates. Potential impacts to
marine mammal food resources within the GoA TMAA are negligible given
both the lack of hearing sensitivity to mid-frequency sonar, the very
limited spatial and temporal scope of most Navy activities at sea
including underwater detonations, and the high biological productivity
of these resources. NMFS concludes that no short- or long-term effects
to marine mammal food resources from Navy activities are anticipated
within the GoA TMAA.
Comment 24: One commenter asserts that plastic, heavy metals, and
nylon materials from sonobuoys will undoubtedly wash up along the GoA,
degrading the marine environment and posing a potential risk to marine
mammals, and believes that NMFS does not appropriately address the
issue of flotsam from expended materials.
Response: The effects from expended materials are considered
insignificant and discountable, as addressed in the Navy's EIS. The
probability of a marine mammal ingesting any material is extremely low
based on the size of the TMAA, the limited duration of the training
exercises, and the low concentration of certain materials being used.
Other materials are expected to sink beyond the known depth of marine
mammals or are considered large enough to prohibit ingestion.
Comment 25: The MMC recommended that NMFS advise the Navy to
consult with the U.S. Fish and Wildlife Service to determine if the
Navy also needs authorization to take sea otters.
Response: The Navy has consulted on the GoA TMAA action under
section 7 of the ESA with the USFWS, which has jurisdiction over sea
otters. The Navy and the USFWS coordinated regarding the list of
species, and sea otters were not included. Sea otters are considered to
be extralimital to the GoA TMAA and none were encountered within the
TMAA during the April 2009 GOALS survey (Rone et al., 2009). The MMC
concurred that sea otters were unlikely to enter the Navy training
range area due to the distance from shore in their comment letter on
the DEIS dated January 27, 2010.
Comment 26: The MMC recommended that NMFS require the Navy to
conduct an external peer review of its marine mammal density estimates
for the GoA, the data upon which those estimates are based, and the
manner in which those data are being used.
Response: Both NMFS and the Navy use peer-reviewed science whenever
it is available and applicable, and NMFS has encouraged the Navy to get
the models they use and data they gather peer-reviewed. In 2008, the
impacts analysis model used for the GoA TMAA (and the previous Navy
EISs and final rules) underwent the NMFS peer review process using the
Center for Independent Experts (CIE) and was deemed adequate and
sufficient for the purpose for which it was being used. Recommendations
made by the CIE for improvements were incorporated into the next
generation model upgrades.
In the context of the Navy's GoA TMAA EIS/OEIS and LOA application,
the marine mammal densities used in the Navy's impact analysis were
derived from several sources, which are summarized in Table B-16 of the
Navy's LOA application. The sources the Navy relied upon to derive
density estimates for marine mammal species in the GoA are all from
peer-reviewed journals. In addition, due to the lack of new survey data
for marine mammals in the GoA, the Navy funded the Gulf of Alaska Line-
Transect Survey (GOALS), which was conducted in April 2009. During this
survey, line-transect visual data and acoustic data were collected over
a 10-day period, from which densities were derived for fin and humpback
whales for inshore and offshore strata.
Also, while it is not the same as peer review, both the NEPA and
MMPA processes include a comment period during which the public can
specifically recommend better ways to use the data to estimate density,
which the Navy and NMFS take into account. For example, the proposed
rule for the GoA TMAA (75 FR 64508, October 19, 2010) encouraged the
public to recommend effective, regionally specific methods for
augmenting existing marine mammal density, distribution, and abundance
information in the GoA TMAA and to prioritize the specific density and
distribution data needs in the area.
Further, a new systematic framework (that includes a hierarchy of
preferred methodologies based on the data available in an area) is
being developed by the Navy to estimate density in the analyses for the
rule renewals that will follow the expiration of the MMPA rules for
Navy training in 2009, 2010, and 2011 (i.e., rules that would, if
appropriate, be issued in 2014 and later). The Navy has indicated that
they may pursue a peer review of this framework and NMFS has encouraged
them to do so.
Comment 27: The MMC recommended that NMFS require the Navy to
estimate marine mammal takes using season- and location-specific
environmental parameters (including sound speed profiles and wind
speed) and marine mammal densities before issuing the final rule; if
the Navy plans to conduct training exercises in April or May, but does
not provide more realistic take estimates for these months, NMFS should
limit the final rule to exercises that occur during the period from
June to October.
Response: The Navy did consider densities during April-May, but
elected to use the higher summer densities as a conservative measure
(i.e., over prediction of potential exposures). The multi-day Northern
Edge (NE) exercise is the main modeling driver for exposures, and these
event-based exposures are what are summed in the ``annual'' exposures.
Highest densities
[[Page 25495]]
from the summer were used to model two NE events; the sum of all
current exposures likely overestimates exposure to all species
(mitigation is not factored into these exposure values either), and re-
modeling/re-assessing for April-May for two species of pinnipeds would
not significantly change species specific or total exposures. The
modeling was not done for an entire period of time (June-October) of
continuous activity. This is different from other range complexes like
SOCAL where there is year round unit level training. The only Navy
ships in the GOA will likely be there in association with NE exercises.
Comment 28: Ocean Conservation Research (OCR) included a copy of
their comments on the Navy's EIS and suggested that some of those
comments also pertained to the MMPA authorization. Other commenters
mirrored several of the recommendations that OCR made in these
comments.
Response: OCR and others assert that the chemical, toxic, and
``inert'' pollution models used in the GoA DEIS are over simplistic and
do not take into account the current state of knowledge about
accumulation and concentrations of chemical, toxic, and ``inert''
pollutant behavior throughout the entire ocean, and up and down the
entire food chain--including humans. The Navy did not expect GoA TMAA
exercises to result in the production of any toxic chemicals that would
affect marine mammals. The EIS did analyze the potential impacts from
PUTR material, ordnance and target-related materials, chaff, sunken
hulks (i.e., SINKEXs), and expended sonobuoys, and found that no
significant impacts to marine mammals were likely to result from those
expended materials. Therefore, the Navy determined that marine mammals
would not be taken via ingestion of toxins or interaction with the
aforementioned expended materials and they did not request (nor did
NMFS grant) authorization for take of marine mammals via these methods.
Comment 29: One commenter claims that, due to insufficient data
provided on the sonar characteristics and source levels, assessments of
potential impacts are incomplete.
Response: NMFS does not agree with the commenter's claim that
insufficient data were provided on the sonar characteristics and source
levels used in the GoA TMAA. To the extent permissible (i.e., not
classified), the Navy provided detailed source descriptions in Table B-
4 of the Navy's LOA application. The same information was provided in
Table D-4 of the Navy's EIS. If unclassified, these tables include
source depth, center frequency, source level, emission spacing,
vertical directivity, and horizontal directivity for the active sonar
sources used in the TMAA. The Navy then used the characteristics of
these sources to model the potential impacts on marine mammals.
Comment 30: One commenter claims that the bio-acoustic impact
models used in the DEIS are overly simplistic and do not represent wild
animal impacts or behaviors and do not account for agonistic qualities
and characteristics of the various signals that would be introduced
into the environment.
Response: NMFS does not agree with the commenter's claim that the
impact models used in the DEIS are overly simplistic and
unrepresentative. NMFS has responded to similar comments regarding the
Navy's risk function analysis provided by Dr. David Bain in the
Atlantic Fleet Active Sonar Training final rule (74 FR 4865) and refers
readers to those comments and responses.
Comment 31: One commenter asserts that mid- and high-frequency
sonar acoustic impact data on fish is lacking and does not justify the
conclusion that impacts are ``negligible or non-existent.''
Response: Limited data exists on the effects of sound on fish, both
in terms of number of well controlled studies and species tested.
However, the vast majority of fish species studied to date are hearing
generalists and cannot hear sounds above 500 to 1,500 Hz (0.5 to 1.5
kHz), depending on the species. Therefore, most fish are not likely to
experience behavioral effects as a result of exposure to sonar because
they cannot hear in that frequency range. Even for species that are
capable of hearing above 1,500 Hz (1.5 kHz), their hearing in this
range is poor compared to their sensitivity at lower frequencies.
Moreover, even if a fish detects a mid- or high-frequency sound,
masking of biologically relevant sounds is unlikely to occur since the
vast majority of biologically relevant sounds for fish are below 1,000
Hz (1 kHz).
Comment 32: One commenter claims that the mortality ``risk
continuum'' for fish due to explosives is inadequate and suspiciously
biased to appear much more benign than it actually is. The conclusion
in the DEIS section on fish admits that very little is known about
impact of sonar, yet contradicts the summary table statement that
``sonar used in Navy exercises would result in minimal harm to fish or
EFH.''
Response: The commenter refers to the Navy's analysis of potential
impacts to fish and Essential Fish Habitat contained in the EIS. It is
important to note that the analysis referred to was conducted in the
context of the Magnuson-Stevens Fishery Conservation and Management
Act, the ESA, and Executive Order 12114. The factors used to assess the
significance of effects vary under these Acts, and are also different
from those applied to the MMPA's effects analysis. The purpose of this
comment period was for the public to provide comments on the proposed
rule, which is being promulgated under the authority of the MMPA. In
the Effects on Marine Mammal Habitat section of the proposed rule, NMFS
discusses the effects on marine mammal food resources, including fish
and invertebrates. Potential impacts to marine mammal food resources
within the GoA TMAA are negligible given both the lack of hearing
sensitivity to mid-frequency sonar, the very limited spatial and
temporal scope of most Navy activities at sea including underwater
detonations, and the high biological productivity of these resources.
NMFS concludes that no short- or long-term effects to marine mammal
food resources from Navy activities are anticipated within the GoA
TMAA.
Comment 33: One commenter claims that the exposure risk models of
marine mammals appear to contain many examples of ``statistical
manipulations of convenience'' which erodes both the credibility of the
models and the integrity of the entire DEIS.
Response: NMFS disagrees with the commenter's assertions. For
example, the commenter takes issue with the density of species being
presented in animals per km\2\, which results in 0.0019 humpback whales
per km\2\, because there is no such thing as 0.0019 of a humpback
whale. While the commenter is correct that there is no such thing as
0.0019 of a humpback whale, density is typically measured in terms of
the number of animals per unit of area, which is usually per square
kilometer or mile. In addition, the commenter asks whether setting the
cutoff extent of the integral to 120 dB is based on either excluding
the harbor porpoise from the marine mammal response data set or
modifying the harbor porpoise risk function to a ``heaviside step
function.'' Harbor porpoise are found in coastal regions of northern
temperate and subarctic waters (Reeves et al., 2002). Generally, harbor
porpoise are not found in water deeper than 100 m, and decline linearly
as depth increases (Carretta et al., 2001, Barlow 1988, Angliss and
Allen 2009). A survey conducted in the GoA in June 2003 yielded a
single sighting of two
[[Page 25496]]
individual harbor porpoises (Waite, 2003). The vessel survey conducted
in April 2009 yielded 30 sightings of 89 harbor porpoise (Rone et al.,
2009). Based on their coastal distribution and limitation to shallower
depths, it is unlikely that harbor porpoises would occur within the
TMAA; therefore, there is no empirical density information for this
species. The Navy used stock assessment information indicating an area
for the GoA harbor porpoise stock of approximately 69,829 nm\2\
(239,597 km\2\) with an abundance of 41,854 animals. Assuming an even
distribution of harbor porpoises in the GoA stock, there would be 2,719
harbor porpoises within the TMAA. While this figure is likely an
overestimate, the Navy assumes for analysis purposes that 2,719 harbor
porpoises will be exposed to Level B behavioral harassment.
Comment 34: One commenter claims that the model of bio-acoustic
impact of explosives on marine mammals is overly simplistic because it
models the animals as ``linear input devices'' and does not account for
synergistic effects of stress on the animal or destruction of habitat
and food sources.
Response: Although the Navy's model does not quantitatively
consider the points raised by the commenter (because the quantitative
data necessary to include those concepts in a mathematical model do not
currently exist), NMFS and the Navy have qualitatively addressed these
concerns in the effects analysis contained in the rule and EIS.
Comment 35: One commenter claims that NMFS dismisses effects of
MFAS on fish because the Navy will be operating beyond the frequency
that fish can hear, but does not take into account the effects of
pressure from sound waves. The commenter further claims that NMFS cites
one study on one species and references the lack of data on fish and
exposure to sound, but goes on to make a broad assumption that no long-
term negative effects will occur (75 FR 64508, p. 64562).
Response: 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 shift 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. As stated in the proposed
rule, there are currently no well-established thresholds for estimating
effects to fish from explosives other than mortality models. Fish that
are located in the water column, in proximity to the source of
detonation could be injured, killed, or disturbed by the impulsive
sound and possibly leave the area. The huge variations in the fish
population, including numbers, species, sizes, and orientation and
range from the detonation point, make it very difficult to accurately
predict mortalities at any specific site of detonation. Most fish
species experience a large number of natural mortalities, especially
during early life stages, and any small level of mortality caused by
training exercises in the GoA TMAA involving explosives will likely be
insignificant to the population as a whole.
Comment 36: One commenter claims NMFS cites an incident of damage
to squid following airgun activity, but supports the position that the
activity was ``totally circumstantial'' (75 FR 64508, p. 64563), thus
participating in a Type II error. The commenter asserts that bias for
the Navy on the part of NMFS is apparent.
Response: As stated in the proposed rule, the data presented
showing damage to squid tissue is highly questionable since there was
no way to differentiate between damage due to some external cause
(e.g., the seismic airgun) and normal tissue degradation that takes
place after death, or due to poor fixation and preparation of tissue.
To date, this work has not been published in peer reviewed literature,
and detailed images of the reportedly damaged tissue are also not
available.
Comment 37: One commenter expressed concern that NMFS did not
account for non-Navy ships that may strike whales as they surface due
to MFAS. This commenter further asserts that non-Navy ship traffic
should not be excluded from consideration because they too pose a risk
to marine mammals.
Response: NMFS appreciates the commenter's concern regarding the
potential impacts of non-Navy vessel activity in the GoA; however, the
non-Navy shipping traffic in the area falls outside of the scope of the
proposed action that NMFS and the Navy analyzed as part of the proposed
and final rulemaking process. For more information on non-Navy vessel
activity, please refer to section 3.3 and section 4 of the Navy's EIS.
Under section 101(a)(5)(A) of the MMPA, NMFS prescribes regulations
setting forth the permissible methods of taking pursuant to an activity
upon request (emphasis added) by citizens of the United States. In this
case, the Navy requested authorization from NMFS to permit the taking
of marine mammals incidental to training activities in the GoA and
NMFS, after determining that the total take during the 5-year period
will have a negligible impact on marine mammals, has responded by
prescribing regulations setting forth the permissible methods of taking
pursuant to Navy training activities, and other means of effecting the
least practicable adverse impact on marine mammals and their habitat.
Separately, non-Navy vessels are prohibited from taking marine
mammals under section 101(a) of the MMPA. In addition, NMFS has
regulations in effect that prohibit approaching within 100 yards (91.4
m) of a humpback whale in waters within 200 nm (370.4 km) of Alaska (50
CFR 224.103(b)). These regulations also require vessels to operate at a
``slow safe speed'' within proximity to a humpback whale. For other
species or marine mammals in Alaskan waters, NMFS has guidelines that
advise vessels to remain at least 100 yards (91.4 m) from marine
mammals. The guidelines are available on the following Web site: http://www.fakr.noaa.gov/protectedresources/mmv/guide.htm. Guidelines and
regulations are designed to prevent vessels from violating Federal law
and to reduce the potential for inadvertently harming whales, dolphins,
porpoises, seals and sea lions.
Comment 38: One commenter expressed concern that the speeds at
which Navy ships travel (10-14 knots) increase the likelihood of ship
strikes because NMFS has previously stated that speeds in excess of 10
knots cause fatalities in ship strike events.
Response: NMFS has analyzed the potential impacts from ship strikes
in the proposed rule (75 FR 64508, pages 64540-64542) and includes
mitigation measures to minimize the likelihood of ship strikes in the
final rule (see Sec. 218.124(a)(2)). Because of the relatively low
density of Navy traffic in the GoA TMAA, the limited number of days
that the Navy plans to conduct training activities in the GoA TMAA, the
fact that there are no reports of Navy vessels striking a whale in the
GoA, and the mitigation measures required under this final rule, NMFS
does not believe that a vessel strike of a marine mammal is likely in
the GoA TMAA.
Comment 39: One commenter claims that NMFS' authorization of lethal
take of up to 15 beaked whales over the course of 5 years is
unacceptable in the absence of scientific data about these animals in
the GoA.
Response: NMFS appreciates the commenter's concern, but the MMPA
directs NMFS to issue an incidental take authorization if certain
findings can be made. Under the MMPA, NMFS must
[[Page 25497]]
make the decision of whether or not to issue an authorization based on
the proposed action that the applicant submits. 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. Both NMFS and the
Navy have a responsibility to use the best available science to support
our analyses and decisions under both the MMPA and NEPA. For example,
in 2009, the Navy funded a baseline survey of the GoA to gather data on
the distribution and density of marine mammals. The results from this
survey, as well as other relevant literature presented in the LOA
application and EIS, represent the best available science generated by
the Navy and used by NMFS. As more surveys are conducted, data will be
collected across additional months and areas (such as seamounts that
are associated with the presence of beaked whales), which will allow
for the calculation of more spatially and temporally explicit density
estimates. In the meantime, the density estimates from the 2009 survey
and other sources allow NMFS to make reasonable predictions regarding
the number of marine mammals that might be exposed to particular levels
of sound. In this case, NMFS has determined that the Navy's GoA TMAA
exercises will have a negligible impact on the affected species or
stock (including beaked whales) and, therefore, we plan to issue the
requested MMPA authorization.
Comment 40: One commenter asks how NMFS can justify estimating
takes using criteria that were developed based on assumptions about
received levels of MFAS.
Response: The commenter misrepresents this discussion in the
proposed rule. As discussed in the Acoustic Take Criteria section of
the proposed rule, NMFS developed acoustic criteria that estimate at
what received level (when exposed to MFAS/HFAS or explosive
detonations) Level B Harassment, Level A Harassment, and mortality (for
explosives) would occur. NMFS utilizes three acoustic criteria to
assess impacts from MFAS/HFAS: PTS (injury--Level A Harassment), TTS
(Level B Harassment), and behavioral harassment (Level B Harassment). A
number of investigators have measured TTS in marine mammals. These
studies measured hearing thresholds in trained marine mammals before
and after exposure to intense sounds. Because PTS data do not currently
exist for marine mammals (and are unlikely to be obtained due to
ethical concerns), these levels are estimated using TTS data from
marine mammals and relationships between TTS and PTS have been
discovered through the study of terrestrial mammals. For behavioral
harassment, NMFS uses acoustic risk continuum functions, which allow
for probability of a response that NMFS would classify as harassment to
occur over a range of possible received levels and assume that the
probability of a response depends first on the ``dose'' (in this case,
the received level of sound) and that the probability of a response
increases as the ``dose'' increases. The Navy and NMFS have previously
used acoustic risk functions to estimate the probable response of
marine mammals to acoustic exposures for other training and research
programs.
Comment 41: One commenter refers to NMFS' statement in the proposed
rule that marine mammals that incur PTS due to approaching sonar
sources may compensate, ``although this may include energetic costs''
and asserts that energetic costs can contribute to the decline of an
animal's state of health, and that it is reasonable to assume that such
costs could potentially lead to an animal's death.
Response: The commenter takes the statement quoted from the
proposed rule out of context. First, in order to incur PTS a marine
mammal would have to be within 10m of the sonar dome and NMFS believes
that many animals would deliberately avoid exposing themselves to the
received levels of active sonar necessary to induce injury by either
moving away from the source or at least modifying their course to avoid
a close approach. Second, in the unlikely event that an animal
approaches the sonar vessel at close distance, NMFS believes that the
mitigation measures (i.e., shutdown/powerdown zones for MFAS/HFAS)
would typically ensure that animals would not be exposed to injurious
levels of sound. Third, if a marine mammal is able to approach a
surface vessel within the distance necessary to incur PTS, the likely
speed of the vessel (typically 10-12 knots) would make it very
difficult for the animal to remain in range long enough to accumulate
enough energy to result in more than a mild case of PTS. Fourth,
although the Navy's modeling predicted that one Dall's porpoise would
incur PTS from exposure to MFAS/HFAS, the Navy and NMFS believe this
result is very unlikely to occur; therefore, the Navy has not requested
authorization for takes by Level A Harassment and NMFS is not
authorizing takes by Level A Harassment. Finally, although NMFS states
that marine mammals may compensate for PTS, which may incur energetic
costs, this would represent a worst case scenario that is unlikely to
occur in the GoA TMAA because of the mitigation measures implemented to
prevent animals from being exposed to injurious levels of sound.
Therefore, NMFS determined that the impact to marine mammals from the
Navy's activities cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival and concluded that
the activity would have a negligible impact.
Comment 42: One commenter claims that NMFS' assertion that marine
mammals will deliberately avoid exposing themselves to received levels
of active sonar necessary to induce injury is not supported by
available data and asks whether NMFS really believes this.
Response: See response to Comment 41 above.
Comment 43: One commenter claims NMFS assumes that marine mammals
will not be exposed to sounds long enough to induce TTS, yet nothing is
known about how marine mammals will respond to sound in the GoA. The
commenter further claims that NMFS makes assumptions based on
experiments, but the public does not know whether these experiments
involved control, the number of test subjects, and other important
information.
Response: The impacts of the Navy's training activities in the GoA
have been analyzed in the Navy's DEIS and LOA application. A detailed
description of the Navy's approach to analyzing the impacts on marine
mammals is provided in Appendix D of the EIS and Appendix B of the LOA
application. In the proposed rule, NMFS discusses the potential effects
of Navy training activities, including active sonar, on marine mammals
and refers to a number of studies that have measured TTS in marine
mammals. These studies measured hearing thresholds in trained marine
mammals before and after exposure to intense sounds. A detailed
description of how the TTS criterion was derived from the results of
these studies may be found in Chapter 3 of Southall et al. (2007), as
well as the Navy's GoA TMAA LOA application.
Comment 44: One commenter expressed concern regarding NMFS'
conclusion that the Navy activities would not be expected to occur in
areas of reproduction, feeding, or other critical behaviors of beaked
whales in light of lack of available information regarding these
species in the GoA. This commenter expressed additional concern that
NMFS mentions oceanic seamounts and submarine escarpments,
[[Page 25498]]
but fails to mention the effect of reverberating sound on beaked
whales.
Response: The rule does not discount the potential impacts on
beaked whales. NMFS specifically addresses the potential impacts to
beaked whales in the following sections of the proposed rule:
``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.'' Specifically, in recognition of potential impacts
to beaked whales and the scientific uncertainty surrounding their
presence in the GoA and the exact mechanisms that lead to strandings,
NMFS has authorized the mortality of 15 beaked whales over the course
of 5 years in the unlikely event that a stranding occurs as a result of
Navy training exercises. In addition, the commenter is misrepresenting
a piece of the text from the proposed rule--although NMFS points out
that the five factors that contributed to the stranding in the Bahamas
are not all present in the GoA TMAA, we do not say that fact alone
means strandings are unlikely to occur.
Comment 45: One commenter asks how NMFS can issue permits based on
the best available data if NMFS admits that data does not exist on
marine mammal behavioral response as a result of factors other than
received levels of MFAS?
Response: NMFS relies on the best available date for analyzing the
effects on marine mammals. However, because the best available data is
constantly changing and our current knowledge of marine mammal
behavioral response is limited, NMFS utilizes an adaptive management
approach. In so doing, we are able to continuously assess behavioral
effects and incorporate new mitigation or monitoring measures when
necessary. NMFS never stated that data on factors other than received
level is non-existent; but rather, that quantitative data on marine
mammal behavioral response to factors other than received level does
not exist. The proposed rule included a qualitative discussion of how
factors other than received level (e.g., speed, angle of approach) may
impact a marine mammal's response to a sound source.
Comment 46: One commenter states that the proposed rule assumes
that because stranding events have been low during 60 years of
conducting MFAS/HFAS training exercises, they are not likely to occur,
but unreported strandings and mortalities cannot be minimized since
there was little to no oversight, mitigation, or reporting requirements
during this period. Another commenter claims that, with respect to
marine mammal injury/mortality stats, NMFS fails to account for whales
that may sink to the bottom.
Response: The Navy has been conducting MFAS/HFAS training exercises
throughout the world's oceans for over 60 years. Although the Navy has
not conducted monitoring specifically in conjunction with training
exercises in the past, people have been collecting data from stranded
animals for approximately 30 years. In addition, although not all dead
or injured animals are expected to end up on the shore (some may be
eaten or float out to sea), one would expect that if marine mammals
were being harmed by Navy training exercises with some regularity, more
evidence would have been detected over the 30-year period.
Comment 47: One commenter states that NMFS' assumption that marine
mammals will habituate to noise by comparing GoA to a different region
is not a valid.
Response: In the proposed rule, NMFS stated that, ``although the
radiated sound from Navy vessels will be audible to marine mammals over
a large distance, it is unlikely that animals will respond behaviorally
(in a manner that NMFS would consider MMPA harassment) to low-level
distant shipping noise as the animals in the area are likely to be
habituated to such noises (Nowacek et al., 2004).'' Although Nowacek's
study does not take place in the GoA, that does not change the fact
that shipping currently occurs in the TMAA and the noise from Navy
vessels should not cause a different reaction.
Comment 48: One commenter states that the studies NMFS cites on
marine mammals in captivity to justify the assumption that marine
mammals will avoid sound sources lack an adequate sample size, and asks
if NMFS believes that these studies translate into the field with so
many unknown variables, including lack of information about marine
mammal behaviors in the GoA.
Response: The SSC Dataset (Controlled Laboratory Experiments with
Odotocetes) is not the primary source of data for the behavioral
harassment threshold; rather, it is one of three datasets (two of which
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 MFAS 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, applicable,
and validated datasets and decided that the SSC dataset was one of the
three appropriate datasets to use in the development of the risk
function.
Monitoring and Reporting
Comment 49: One commenter claims that NMFS fails to define ``Marine
Species Awareness Training,'' and assumes that Navy personnel will be
able to spot whales from the bridge, but does not include the sea state
in their assertion. In addition, a similar comment claims that NMFS
does not mention sea state when discussing the probability that
watchstanders will likely observe whales.
Response: MSAT is a training course, intended for Navy Lookouts,
designed to introduce marine mammal cues that may assist in avoiding
potential collisions with whales during Navy activities. While NMFS
does expect observers to see whales, we do not assume that observers
will see every whale. NMFS recognizes that sea state affects
visibility, which is why the Navy will increase survey efforts in the
event of a Beaufort Sea State of 4 or above.
In response to the second part, the Navy's activities within the
TMAA will occur during summer months, when Beaufort Sea State
conditions are lower and visibility is better for monitoring. In
addition to watchstanders, aerial surveys and passive acoustic
monitoring (PAM) will also be used to observe for marine mammals.
During sinking exercises (SINKEX), every attempt shall be made to
conduct the exercise in sea states that are ideal for marine mammal
sighting, Beaufort Sea State 3 or less. In the event of a 4 or above,
survey efforts shall be increased within the 2 nm (3.7 km) zone around
the target. This shall be accomplished through the use of an additional
aircraft, if available, and by conducting tight search patterns.
Comment 50: One commenter states that NMFS fails to define ``highly
qualified and experienced observers of the marine environment'' (75 FR
64508, p. 64543) and who will train them.
Response: NMFS explained in the proposed rule that Navy Lookouts,
also referred to as ``watchstanders,'' are highly qualified and
experienced
[[Page 25499]]
observers of the marine environment. All Lookouts take part in Marine
Species Awareness Training so that they are better prepared to spot
marine mammals. Their duties also require that they report all objects
sighted in the water, not just marine mammals, that may be indicative
of a threat to the vessel and its crew. Lookouts are stationed day and
night whenever a ship or surfaced submarine is moving through the
water.
Comment 51: One commenter states that NMFS fails to define ``most
effective means to ensure quick and effective communication within the
command structure in order to facilitate implementation of protective
measures if marine species are spotted'' (75 FR 64508, p. 64543).
Response: As previously stated, all Navy Lookouts undergo Marine
Species Awareness Training. The Navy is responsible for deciding the
most effective means of communicating information within the command
structure. This is the same ``quick communication'' that Lookouts rely
on to notify the captain that there is something in the vessel's path.
NMFS does not define this means of rapid communication, because it is
different for each vessel and best determined by Navy operators.
Comment 52: One commenter claims that NMFS fails to fully describe
how they and the Navy plan to integrate results from monitoring data
for the public and other interested entities.
Response: The Navy's annual monitoring reports will be available
for public viewing on NFMS' Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm). The Navy is in the process of making some of
their data available through an on-line database.
Comment 53: One commenter asks if marine mammal observers will be
aboard to watch for adverse effects. The commenter further asks whether
sonar training is halted if observers note negative impacts from the
training?
Response: As stated in the proposed rule, marine mammal observers
and Navy Lookouts will be used to monitor for marine mammals before,
during, and after training events. Should a marine mammal enter an
exclusion zone, mitigation measures will be implemented. For example,
the Navy will powerdown and shutdown sonar emitting devices when marine
mammals are detected within ranges where the received sound level is
likely to result in temporary threshold shift (TTS) or injury. In
addition, the Navy and NMFS have a stranding response plan for the GoA
that will be implemented in the event of a marine mammals stranding,
which includes a shutdown requirement in the event of a live stranding.
Furthermore, the rule includes an adaptive management component that
allows for timely modification of mitigation or monitoring measures
based on new information, when appropriate.
Comment 54: One commenter states that NMFS asserts that little is
known about how marine mammals will react to sonar in the GoA, but
mentions the Navy's claim that no marine mammals have been harassed in
other training ranges, which the commenter believes should be a red
flag that the Navy's monitoring system is not effective and asks what
is the probability that zero marine mammals will be harassed during
training exercises that occur year round?
Response: The Navy's LOA application and EIS clearly discuss the
potential adverse effects (harassment) 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
Research section of this final rule). Regarding the issue of monitoring
being effective, nowhere does either the Navy or NMFS indicate that the
current monitoring (and associated mitigation) will eliminate impacts.
The MMPA requires that NMFS put forth the means of effecting the least
practicable adverse impacts, and NMFS has determined that the required
mitigation and associated monitoring (meaning specifically the
mitigation monitoring) measures accomplish this. If it were possible to
eliminate impacts to marine mammals, an MMPA authorization would not be
necessary.
Comment 55: The MMC and other commenters recommend that NMFS
require the Navy to conduct seasonal, systematic vessel or aerial line-
transect surveys supplemented with passive acoustic monitoring and
satellite tracking to provide the data needed to describe marine mammal
density, distribution, and habitat use during the seasons and in the
regions when and where the Navy plans to conduct its exercises.
Response: NMFS agrees and has recommended that the Navy refocus
their Monitoring Plan for the GoA TMAA. In 2011 and 2012, the Navy
plans to deploy two PAM devices in the GoA TMAA to detect, locate, and
potentially track vocalizing marine mammals, as well as provide
seasonal estimates of presence/absence. These devices will be deployed
year-round, including during Navy training events. Given the potential
sea states and ocean conditions during both winter and summer, and the
relatively infrequent Navy presence in the GoA TMAA, PAM represents the
best long-term monitoring technique to employ within the GoA TMAA. In
addition to collecting marine mammal vocalization and echolocation data
before, during, and after any Navy training event, information from
which NMFS can infer to whether the training event has an effect or no
effect on observed vocalizations.
In response to public comment, the Navy has modified their
monitoring plan such that in either 2013 or 2014, instead of deploying
the PAM devices as originally planned, the Navy will conduct a survey
using a visual method (most likely vessel survey), which will augment
the data gathered by the PAM devices. The PAM devices will be deployed
in whichever year (2013 or 2014) the visual survey is not conducted. An
alternate survey technique would ideally be part of a larger focused
effort during the same time period, in coordination with other agencies
or research organizations working in the area. While the exact extent
and technique to be employed is still to be determined (e.g., including
but not limited to visual surveys), monitoring in 2013 and 2014 is
expected to receive the same level of fiscal and logistical support as
the 2011-2012 efforts.
Comment 56: The MMC recommended that NMFS extend the required
monitoring period to at least one hour before the resumption of
training exercises when an animal has been sighted within the safety
zone and after power-down and shut-down of active sonar sources.
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 one hour for the following reasons:
The ability of an animal to dive for extended periods
(i.e., greater than 30 minutes) does not mean that it will always do
so. Therefore, the one hour delay would only potentially add value in
instances when animals have remained under water for more than 30
minutes.
Navy vessels typically move at speeds of 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 moves at
the slower of the typical speeds associated with active sonar use,
[[Page 25500]]
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 one hour
delay would add value.
Additionally, the times when animals are underwater for
longer periods of time (i.e., deep-diving) 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 vessel moving
horizontally across the surface.
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 up to one hour.
Comment 57: The MMC recommended that NMFS require all members of
the Navy's mitigation teams to complete the marine mammal training
program (i.e., the NMFS-approved Marine Species Awareness Training)
before they participate in any training activities.
Response: The Navy has Lookouts stationed onboard ships whose
primary duty is to detect objects in the water, estimate their distance
from the ship, and identify them as any of a number of inanimate or
animate objects that are significant to a Navy exercise or as a marine
mammal so that the mitigation measure can be implemented. Navy Lookouts
undergo extensive training to learn these skills and the Marine Species
Awareness Training is used to augment it with some information specific
to marine mammals that will make them aware of some of the cues that
they may not otherwise have learned and may contribute to their
collection of slightly more accurate and descriptive information in
their reports. However, Lookouts are not expected to identify marine
mammals to species and they are not expected to provide in-depth
behavioral or status information on marine mammals.
Comment 58: The MMC recommended that NMFS require the Navy to use a
sufficient level of monitoring during all training activities to ensure
that marine mammals are not being taken in unanticipated ways or
numbers.
Response: There are two different types of monitoring required
pursuant to the GoA TMAA. One type is outlined in the Monitoring Plan,
which consists of different monitoring methods designed to address a
series of focused study questions and is conducted by Marine Mammal
Observers (MMOs).
The second type of monitoring is routinely conducted by Navy
Lookouts on surface vessels (and opportunistically by personnel on
other platforms). This monitoring is used to detect animals so the
necessary mitigation measure can be implemented. Behavioral data that
allow for a general assessment of the impacts are collected with other
information (such as the status of sonar sources), which help verify
the Navy's implementation of the appropriate mitigation measure. This
data-gathering requirement is described in more detail in Sec. 218.125
of the regulatory text entitled ``Requirements for monitoring and
reporting.''
Comment 59: One commenter asked if there are plans for any long-
term monitoring (1-2 years) of marine mammals after the training
activities take place.
Response: In 2011 and 2012, the Navy plans to deploy two passive
acoustic monitoring (PAM) devices in the GoA TMAA to detect, locate,
and potentially track vocalizing marine mammals, as well as provide
seasonal estimates of presence/absence. These devices will be deployed
year-round, including during Navy training events. Given the potential
sea states and ocean conditions during both winter and summer, and the
relatively infrequent Navy presence in the GoA TMAA, PAM represents the
best long-term monitoring technique to employ within the GoA TMAA. In
addition to collecting marine mammal vocalization and echolocation data
before, during, and after any Navy training event, information can be
inferred as to whether the training event has an effect or no effect on
observed vocalizations.
In response to public comment, the Navy has modified their
mitigation plan such that in either 2013 or 2014, instead of deploying
the PAM devices as originally planned, the Navy will conduct a survey
using a visual method (most likely, vessel survey), which will augment
the data gathered by the PAM devices. The PAM devices will be deployed
in whichever year (2013 or 2014) the visual survey is not conducted. An
alternate survey technique would ideally be part of a larger focused
effort during the same time period in coordination with other agencies
or research organizations working in the area. While the exact extent
and technique to be employed is still to be determined (e.g., including
but not limited to visual surveys), monitoring in 2013 and 2014 is
expected to receive the same level of fiscal and logistic support as
the 2011-2012 efforts.
Comment 60: One commenter expressed concern over marine mammals
potentially leaving Alaskan waters to avoid the exposure to sound and
asks if marine mammals will be tagged/tracked to see how the Navy's
activities will affect them.
Response: Currently, there are no plans to conduct tagging/tracking
studies in the GoA TMAA. At this point, NMFS feels it is more important
to improve our understanding of the presence, density, and abundance of
marine mammal species in the area. Therefore, the focus will be on
deploying PAM devices--two long-term deployments in 2011 and 2012--and
either additional visual surveys or long-term deployments of PAMs in
2013 and 2014. A monitoring study for 2015 will be determined after
adaptive management review, which NMFS has incorporated into the GoA
TMAA rule and that allows for yearly review of Navy monitoring and
current science that could influence (allow for the potential
modification of) monitoring and mitigation measures in subsequent LOAs,
if appropriate. 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).
Subsistence Harvest of Marine Mammals
Comment 61: One commenter claims that even if Alutiiq, Eyak, and
Tlingnit Tribes do not use the GoA TMAA for subsistence use, the
animals used by these Tribes for traditional subsistence do. This
commenter further requested that NMFS make public the letters that the
consulted Tribes provided on the Navy's GoA TMAA DEIS.
Response: NMFS agrees that marine mammals that occur within the GoA
TMAA are those that may be taken for subsistence use; however, the
activities in the TMAA do not overlap in space or time with any
subsistence hunts and should not directly impact any subsistence hunts
through: Causing abandonment of locations where
[[Page 25501]]
subsistence use takes place; displacing subsistence users; or placing
physical barriers between marine mammals and hunters. Any effects on
marine mammals within the TMAA are likely to be behavioral in nature
and temporary in duration and NMFS' negligible impact determination
further supports the finding that the Navy training activities will not
have an unmitigable adverse impact on the availability of marine mammal
species or stocks for taking for subsistence uses.
With respect to the second point, pursuant to the Navy's American
Indian/Alaskan Native policy, letters were sent to 12 local Tribes.
These letters provided the Navy's preliminary determination that
potential protected Tribal resources may be affected, but not adversely
affected by Navy training activities in the GoA TMAA. The Navy asked
whether the training activities would significantly affect any Tribal
rights or protected Tribal resources, requested a reply, and invited
consultation on a Government-to-Government basis. These letters and the
written responses, if any, will be provided in Navy's Final EIS.
Comment 62: One commenter took issue with NMFS' claim that no
Tribes around the GoA had concerns with the Navy's DEIS and assert that
their Tribe (Tlingit) protested the Navy's plans to conduct training
exercises in an area where their subsistence animals are known to
migrate, feed, reproduce, etc.
Response: NMFS was unaware that the Tlingit protested the Navy's
plans to conduct training in the GoA TMAA. Under the MMPA, in order to
issue regulations authorizing the taking of marine mammals incidental
to the Navy's training activities, NMFS must find that the total taking
during the 5-year period will have a negligible impact on the affected
marine mammal species or stocks and will not have an unmitigable
adverse impact on the availability of such species or stock for taking
for subsistence use. NMFS has made this determination and prescribed
regulations setting forth the permissible method of taking, and other
means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, and on the availability of
such species or stocks for subsistence use.
With respect to the EIS process, on April 18, 2008, the Navy sent a
letter to the Yakutat Tlingit Tribe, asking if the proposed EIS would
have a significant impact on any of the Tribal rights or resources, and
therefore require formal Government-to-Government consultation. On June
4, 2008, via phone call, the Alaska Command (ALCOM) Native Liaison
confirmed that the Yakutat Tlingit Tribe did not want to initiate
formal Government-to-Government consultation with the Navy on the Gulf
of Alaska Navy Training Activities EIS and the proposal would not have
any significant impact on a Tribal right or resource. The Tribe was
also sent a letter by Commander, U.S. Pacific Fleet on December 7, 2009
with a full hard copy of the Draft EIS, asking for their input and
comments. No comments from the Tribe were received by the Navy on the
Draft EIS.
Other
Comment 63: One commenter states that the Navy has recently
expanded ASW training areas in multiple range complexes, and claims
that adding the GoA is not justified by any scarcity of other training
areas.
Response: As stated in the Navy's EIS, the location, oceanographic
conditions, and area of training space make the TMAA (and Alaska
Training Area components) a unique and strategically important training
venue for the Navy. Furthermore, the GoA is not a recent expansion; the
Navy has been training in this area for over 30 years.
Comment 64: Several commenters claim that there was a lack of
alternatives analysis and establishment of protection areas in Navy's
DEIS.
Response: Several comments were received that relate to the Navy's
DEIS. The purpose of this comment period was for the public to provide
comments on NMFS' proposed rule. Responses were not provided to
comments on the EIS if their bearing on the MMPA authorization was not
clear.
Comment 65: One commenter states that NMFS mentions a Memorandum of
Understanding between NMFS and the Navy, but the document is apparently
not ready, and asks how NMFS can make a determination on this request
to take marine mammals when all of the documents are not in place for
public review.
Response: NMFS and the Navy are still working on this document, but
it is not intended for public review because it is an internal,
interagency letter that pertains to coordination and cooperation
between the two agencies.
Comment 66: Multiple commenters expressed general opposition to
Navy activities and NMFS' issuance of an MMPA authorization, citing
general concerns about the health and welfare of marine mammals.
Response: NMFS appreciates the commenters' concern for the marine
mammals that live in the area of the Navy's training activities. The
MMPA directs NMFS to issue an incidental take authorization if certain
findings can be made. NMFS has determined that the Navy's GoA TMAA
exercises will have a negligible impact on the affected species or
stocks. Additionally, NMFS has worked with the Navy to develop
mitigation measures that help minimize the impacts to marine mammals
and a monitoring plan that will increase our understanding of the
marine mammals in the area and guide their responses in the presence of
marine mammals. Therefore, NMFS issues the necessary governing
regulations and plans to issue the requested MMPA authorization.
Estimated Take of Marine Mammals
As mentioned previously, one of the main purposes of NMFS' effects
assessments is to identify the permissible methods of taking, meaning:
The nature of the take (e.g., resulting from anthropogenic noise vs.
from ship strike, etc.); the regulatory level of take (i.e., mortality
vs. Level A or Level B harassment); and the amount of take. The
Potential Effects section identified the lethal responses, physical
trauma, sensory impairment (permanent and temporary threshold shifts
and acoustic masking), physiological responses (particular stress
responses), and behavioral responses that could potentially result from
exposure to MFAS/HFAS or underwater explosive detonations. This section
will relate the potential effects to marine mammals from MFAS/HFAS and
underwater detonation of explosives to the MMPA statutory definitions
of Level A and Level B Harassment and attempt to quantify the effects
that might occur from the specific training activities that the Navy is
proposing in the GoA TMAA.
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 detonations (discussed in the Potential Effects of
Specified Activities on Marine Mammals section) to the MMPA statutory
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 that analysis are discussed individually below.
Definition of Harassment
The Definition of Harassment section of the proposed rule contains
the definitions of Level A and Level B Harassment, and a discussion of
which of the previously discussed potential effects of MFAS/HFAS or
explosive detonations fall into the categories of
[[Page 25502]]
Level A Harassment (permanent threshold shift (PTS), acoustically
mediated bubble growth, behaviorally mediated bubble growth, and
physical disruption of tissues resulting from explosive shock waves) or
Level B Harassment (temporary threshold shift (TTS), acoustic masking
and communication impairment, and behavioral disturbance rising to the
level of harassment). See 75 FR 64508, pages 64552-64554. 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 (75 FR 64508, pages 64554-
64562). No changes have been made to the discussion contained in this
section of the proposed rule.
Estimates of Potential Marine Mammal Exposure
The proposed rule describes in detail how the Navy estimated the
take that will result from their proposed activities (75 FR 64508,
pages 64559-64560), which entails the following three general steps:
(1) A propagation model estimates animals exposed to sources at
different levels; (2) further modeling determines the number of
exposures to levels indicated in criteria above (i.e., number of
takes); and (3) post-modeling corrections refine estimates to make them
more accurate. More information regarding the models used, the
assumptions used in the models, and the process of estimating take is
available in Appendix B of the Navy's application or Appendix D of the
Navy's DEIS for the GoA TMAA.
Table 5, which is identical to Table 8 in the proposed rule with a
few minor corrections, indicates the number of takes that were modeled
and that are being authorized annually or biennially incidental to the
Navy's activities, with the following allowances. The Navy has
carefully characterized the training activities planned for the GoA
TMAA over the 5 years covered by these regulations; however, evolving
real-world needs necessitate flexibility in annual activities, which in
turn is reflected in the annual variation in the potential take of
marine mammals. NMFS has included language bounding this flexibility in
the regulatory text (see Sec. 218.122(c)). These potential annual
variations were considered in the negligible impact analysis and the
analysis in the proposed rule remains applicable. This language
indicates that after-action modeled annual takes (i.e., based on the
activities that were actually conducted and which must be provided with
the LOA application) of any individual species may vary, but will not
ultimately exceed the indicated 5 year total for that species by more
than 10 percent and will not exceed the indicated annual total by more
than 25 percent in any given year; and that modeled total yearly take
of all species combined may vary, but may not exceed the combined
amount indicated below in any given year by more than 10 percent.
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Mortality
Evidence from five beaked whale strandings, all of which have taken
place outside the GoA TMAA, and have occurred over approximately a
decade, suggests that the exposure of beaked whales to MFAS in the
presence of certain conditions (e.g., multiple units using active
sonar, steep bathymetry, constricted channels, strong surface ducts,
etc.) may result in strandings, potentially leading to mortality.
Although not all five of these physical factors believed to have
contributed to the likelihood of beaked whale strandings are present,
in their aggregate, in the GoA TMAA, scientific uncertainty exists
regarding what other factors, or combination of factors, may contribute
to beaked whale strandings. Accordingly, to allow for scientific
uncertainty regarding contributing causes of beaked whale strandings
and the exact behavioral or physiological mechanisms that can lead to
the ultimate physical effects (stranding and/or death), the Navy has
requested authorization for (and NMFS authorizes) take of beaked
whales, by injury or mortality. Although NMFS authorizes take by injury
or mortality of up to 15 beaked whales over the course of the 5-year
regulations, the Navy's model did not predict any injurious takes of
beaked whales would occur and neither NMFS nor the Navy anticipates
that marine mammal strandings or mortality will result from the
operation of MFAS during Navy exercises within the GoA TMAA.
Effects on Marine Mammal Habitat
NMFS' proposed rule includes a section that addresses the effects
of the Navy's activities on Marine Mammal Habitat (75 FR 64508, pages
64562-64564). The analysis preliminarily concluded that the Navy's
activities would have minimal effects on marine mammal habitat. No
changes have been made to the discussion contained in this section of
the proposed rule and NMFS has concluded there would be minimal effects
on marine mammal habitat.
Analysis and Negligible Impact Determination
Pursuant to NMFS' regulations implementing the MMPA, an applicant
for an LOA is required to estimate the number of animals that will be
``taken'' by the specified activities (i.e., takes by harassment only,
or takes by harassment, injury, and/or death). This estimate informs
the analysis that NMFS must perform to determine whether the activity
will have a ``negligible impact'' on the affected species or stock.
Level B (behavioral) harassment occurs at the level of the
individual(s) and does not assume any resulting population-level
consequences, though there are known avenues through which behavioral
disturbance of individuals can result in population-level effects
(e.g., pink-footed geese (Anser brachyrhynchus) in undisturbed habitat
gained body mass and had about a 46-percent reproductive success
compared with geese in disturbed habitat (being consistently scared off
the fields on which they were foraging) which did not gain mass and has
a 17-percent reproductive success). A negligible impact finding is
based on the lack of likely adverse effects on annual rates of
recruitment or survival (i.e., population-level effects). An estimate
of the number of Level B harassment takes, alone, is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through behavioral harassment, NMFS must consider other
factors, such as the likely nature of any responses (their intensity,
duration, etc.), the context of any responses (critical reproductive
time or location, migration, etc.), as well as the number and nature of
estimated Level A Harassment 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 preliminarily determine that Navy
training will have a negligible impact on the marine mammal species and
stocks present in the GoA TMAA. No changes have been made to the
discussion contained in the proposed rule (75 FR 64508, pages 64564-
64574).
Determinations
Negligible Impact
Based on the analysis contained here 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 and monitoring measures, NMFS finds
that the total taking from Navy training exercises utilizing MFAS/HFAS
and underwater explosives in the GoA TMAA will have a negligible impact
on the affected species or stocks. NMFS issues 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.
Subsistence Harvest of Marine Mammals
NMFS has determined that the issuance of 5-year regulations and
subsequent LOAs for Navy training exercises in the GoA TMAA would not
have an unmitigable adverse impact on the availability of the affected
species or stocks for subsistence use. The Tribes nearest the GoA TMAA
include the Alutiiq, Eyak, and Tlingit groups; however, these Tribes do
not use the TMAA for subsistence. In March 2008, the Navy sent letters
to 12 Tribes, including those listed above, with the assistance of the
Alaskan Command's Tribal liaison, requesting Government-to-Government
consultation pursuant to Executive Order 13175. None of the 12 Tribes
indicated that they desired consultation on the proposed action. All 12
Tribes were also provided a copy of the GoA TMAA DEIS for review and
comment. Comments on the DEIS were received from the Eyak, Afognak, and
Shoonaq' Tribes. The Navy will continue to keep the Tribes informed of
the timeframes of future joint training exercises.
ESA
There are eight marine mammal species under NMFS' jurisdiction that
are listed as endangered or threatened under the ESA with confirmed or
possible occurrence in the TMAA: Cook Inlet beluga whale, North Pacific
right whale, humpback whale, sei whale, fin whale, blue whale, sperm
whale, and Steller sea lion. Typically, the Cook Inlet beluga whale
does not leave Cook Inlet, which is approximately 70 nm (129.6 km) from
the nearest edge of the TMAA. Based on this information, Cook Inlet
beluga whales are considered extralimital to the TMAA, were not
considered further for analysis under the MMPA and the Navy concluded
that their activities will have no effect on Cook Inlet beluga whales.
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
[[Page 25505]]
section 101(a)(5)(A) of the MMPA for this activity. The Biological
Opinion concludes that the Navy's activities in the GoA TMAA and NMFS'
issuance of these regulations are not likely to jeopardize the
continued existence of threatened or endangered species under NMFS
jurisdiction or destroy or adversely modify any designated critical
habitat.
NEPA
NMFS participated as a cooperating agency on the Navy's Final
Environmental Impact Statement (FEIS) for the GoA TMAA. NMFS
subsequently adopted the Navy's FEIS for the purpose of complying with
the MMPA.
Classification
This action does not contain any collection of information
requirements for purposes of the Paperwork Reduction Act.
The Office of Management and Budget has determined that this rule
is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), 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 rule will not have a significant economic
impact on a substantial number of small entities. The RFA 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. 605 (b), that the action will not have a significant economic
impact on a substantial number of small entities. During the public
comment period, NMFS did not receive any comments related to this
certification. The Navy is the sole entity that will be affected by
this rulemaking, not a small governmental jurisdiction, small
organization, or small business, as defined by the RFA. Any
requirements imposed by a Letter of Authorization issued pursuant to
these regulations, and any monitoring or reporting requirements imposed
by these regulations, will be applicable only to the Navy. NMFS does
not expect the issuance of these regulations or the associated LOAs to
result in any impacts to small entities pursuant to the RFA. Because
this action will directly affect the Navy and not a small entity, NMFS
concludes the action will 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. The Navy is the entity subject to the
regulations and has informed NMFS that, due to unforeseen delays in
publishing the Final EIS and in the interest of national security and
homeland defense, it is imperative that these measures go into effect
upon publication so that the LOA can be issued on or before June 1,
2011. The Navy has a compelling reason to conduct military readiness
activities in the GoA TMAA without suspension or interruption. As
discussed below, suspension/interruption of the Navy's ability to
conduct training activities disrupts adequate and realistic testing of
military equipment, vehicles, weapons, and sensors for proper operation
and suitability for combat essential to our national security.
In order to meet its national security objectives, the Navy must
continually maintain its ability to operate in a challenging at-sea
environment, conduct military operations, control strategic maritime
transit routes and international straits, and protect sea lines of
communications that support international commerce. To meet these
objectives, the Navy must develop and maintain proficiency with current
and emerging defense systems by establishing and executing training
programs, including at-sea training and exercises, and ensuring naval
forces have access to the ranges, operating areas, and airspace needed
to develop and maintain the skills for conducting naval activities.
Such training is critical to achieving the level of certification,
proficiency, and readiness needed to ensure that naval forces are
combat-ready.
The training requirements are designed to provide the experience
and familiarity needed to properly prepare U.S. Sailors and Marines for
operational success. The Navy has identified and scheduled training in
the Gulf of Alaska for the purpose of acquiring combat-ready
certification for the fleet forces assigned to the GoA TMAA. Delays in
training and evaluation affects the Navy's ability to meet its
statutory mission to deploy worldwide naval forces equipped to meet
existing and emergent threats. Although a 30-day delay may not affect
specific training events, it will delay the effective date of the final
rule, and thus could affect planning for future needs and emergent
training which cannot be anticipated.
Waiver of the 30-day delay of the effective date of the final rule
is in the public interest because it will allow the Navy to conduct
training activities essential to homeland defense and national
security, and to put capability into the hands of U.S. Sailors and
Marines quickly.
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: April 25, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 218 is amended
as follows:
PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 218 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Subpart N is added to part 218 to read as follows:
Subpart N--Taking and Importing Marine Mammals; Gulf of Alaska
Temporary Maritime Activities Area (GoA TMAA)
Sec.
218.120 Specified activity and geographical area.
218.121 Effective dates.
218.122 Permissible methods of taking.
218.123 Prohibitions.
218.124 Mitigation.
218.125 Requirements for monitoring and reporting.
218.126 Applications for Letters of Authorization.
218.127 Letters of Authorization.
218.128 Renewal of Letters of Authorization and adaptive management.
218.129 Modifications to Letters of Authorization.
Subpart N--Taking and Importing Marine Mammals; Gulf of Alaska
Temporary Maritime Activities Area (GoA TMAA)
Sec. 218.120 Specified activity and geographical area.
(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occur incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs within the Gulf of Alaska Temporary
[[Page 25506]]
Maritime Activities Area (GoA TMAA) (as depicted in Figure 1-1 in the
Navy's application for GoA TMAA), which is bounded by a hexagon with
the following six corners: 57[deg]30' N. lat., 141[deg]30' W. long.;
59[deg]36' N. lat., 148[deg]10' W. long.; 58[deg]57' N. lat.,
150[deg]04' W. long.; 58[deg]20' N. lat., 151[deg]00' W. long.;
57[deg]16' N. lat., 151[deg]00' W. long.; and 55[deg]30' N. lat.,
142[deg]00' W. long.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities:
(1) The use of the following mid-frequency active sonar (MFAS)
sources, high-frequency active sonar (HFAS) sources, or similar sources
for Navy training activities (estimated amounts below):
(i) AN/SQS-53 (hull-mounted active sonar)--up to 2,890 hours over
the course of 5 years (an average of 578 hours per year);
(ii) AN/SQS-56 (hull-mounted active sonar)--up to 260 hours over
the course of 5 years (an average of 52 hours per year);
(iii) AN/SSQ-62 (Directional Command Activated Sonobuoy System
(DICASS) sonobuoys)--up to 1,330 sonobuoys over the course of 5 years
(an average of 266 sonobuoys per year);
(iv) AN/AQS-22 (helicopter dipping sonar)--up to 960 ``dips'' over
the course of 5 years (an average of 192 ``dips'' per year);
(v) AN/BQQ-10 (submarine hull-mounted sonar)--up to 240 hours over
the course of 5 years (an average of 48 hours per year);
(vi) MK-48 (torpedo)--up to 10 torpedoes over the course of 5 years
(a maximum of 2 torpedoes per year);
(vii) AN/SSQ-110A (IEER)--up to 400 buoys deployed over the course
of 5 years (an average of 80 per year maximum combined use of AN/SSQ-
110A or AN/SSQ-125);
(viii) AN/SSQ-125 (MAC)--up to 400 buoys deployed over the course
of 5 years (an average of 80 per year maximum combined use of AN/SSQ-
110A or AN/SSQ-125);
(ix) Range Pingers--up to 400 hours over the course of 5 years (an
average of 80 hours per year);
(x) SUS MK-84--up to 120 devices over the course of 5 years (an
average of 24 per year);
(xi) PUTR Transponder--up to 400 hours over the course of 5 years
(an average of 80 hours per year); and
(xii) MK-39 EMATT Targets--up to 60 devices over the course of 5
years (an average of 12 per year).
(2) The detonation of the underwater explosives indicated in
paragraph (c)(2)(i) of this section, or similar explosives, conducted
as part of the training exercises indicated in paragraph (c)(2)(ii) of
this section:
(i) Underwater Explosives (Net Explosive Weight (NEW)):
(A) 5'' Naval Gunfire (9.5 lbs NEW);
(B) 76 mm rounds (1.6 lbs NEW);
(C) Maverick (78.5 lbs NEW);
(D) MK-82 (238 lbs NEW);
(E) MK-83 (238 lbs NEW);
(F) MK-83 (574 lbs NEW);
(G) MK-84 (945 lbs NEW);
(H) MK-48 (851 lbs NEW);
(I) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs NEW);
(ii) Training Events:
(A) Gunnery Exercises (S-S GUNEX)--up to 60 exercises over the
course of 5 years (an average of 12 per year);
(B) Bombing Exercises (BOMBEX)--up to 180 exercises over the course
of 5 years (an average of 36 per year);
(C) Sinking Exercises (SINKEX)--up to 10 exercises over the course
of 5 years (a maximum of 2 per year);
(D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 400 deployments over the course of 5 years (an
average of 80 per year);
(E) Missile exercises (A-S MISSILEX)--up to 20 exercises over the
course of 5 years (an average of 4 per year).
(d) The taking of marine mammals may be authorized in an LOA for
the activities and sources listed in Sec. 218.120(c) should the
amounts (i.e., hours, dips, number of exercises) vary from those
estimated in Sec. 218.120(c), provided that the variation does not
result in exceeding the amount of take indicated in Sec. 218.122(c).
Sec. 218.121 Effective dates.
Regulations in this subpart are effective from May 4, 2011, through
May 4, 2016.
Sec. 218.122 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 218.127 of this chapter, the Holder of the Letter of
Authorization (hereinafter ``Navy'') may incidentally, but not
intentionally, take marine mammals within the area described in Sec.
218.120(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. 218.120(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. 218.120(c) is limited to the species listed below
in paragraphs (c)(4) and (5) of this section by the indicated method of
take and the indicated number of times (estimated based on the
authorized amounts of sound source operation), but with the following
allowances for annual variation in activities:
(1) In any given year, annual take, by harassment, of any species
of marine mammal may not exceed the amount identified in paragraphs
(c)(4) and (5) of this section, for that species by more than 25
percent (a post-calculation/estimation of which must be provided in the
annual LOA application);
(2) In any given year, annual take by harassment of all marine
mammal species combined may not exceed the estimated total of all
species combined, indicated in paragraphs (c)(4) and (5) of this
section, by more than 10 percent; and
(3) Over the course of the effective period of this subpart, total
take, by harassment, of any species may not exceed the 5-year amounts
indicated in paragraphs (c)(4) and (5) of this section by more than 10
percent. A running calculation/estimation of takes of each species over
the course of the years covered by the rule must be maintained.
(4) Level B Harassment:
(i) Mysticetes:
(A) Humpback whale (Megaptera novaeangliae)--6,975 (an average of
1,395 annually);
(B) Fin whale (Balaenoptera physalus)--55185 (an average of 11,037
annually);
(C) Blue whale (Balaenoptera musculus)--10 (an average of 2
annually);
(D) Sei whale (Balaenoptera borealis)--40 (an average of 8
annually);
(E) Minke whale (Balaenoptera acutorostrata)--3,405 (an average of
681 annually);
(F) Gray whale (Eschrichtius robustus)--1,940 (an average of 388
annually); and
(G) North Pacific right whale (Eubalaena japonica)--10 (an average
of 2 annually).
(ii) Odontocetes:
(A) Sperm whales (Physeter macrocephalus)--1,645 (an average of 329
annually);
(B) Killer whale (Orcinus orca)--53,245 (an average of 10,649
annually);
(C) Harbor porpoise (Phocoena phocoena)--27,200 (an average of
5,440 annually);
(D) Baird's beaked whales (Berardius bairdii)--2,435 (an average of
487 annually);
(E) Cuvier's beaked whales (Ziphius cavirostris)--11,560 (an
average of 2,312 annually);
[[Page 25507]]
(F) Stejneger's beaked whales (Mesoplodon stejnegeri)--11,565 (an
average of 2,313 annually);
(G) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--
84,955 (an average of 16,991 annually); and
(H) Dall's porpoise (Phocoenoides dalli)--1,031,870 (an average of
206,374 annually).
(iii) Pinnipeds:
(A) Steller sea lion (Eumetopias jubatus)--55,540 (an average of
11,108 annually)
(B) California sea lion (Zalophus californianus)--10 (an average of
2 annually);
(C) Harbor seal (Phoca vitulina richardsi)--10 (an average of 2
annually);
(D) Northern elephant seal (Mirounga angustirostris)--10,345 (an
average of 2,069 annually); and
(E) Northern fur seal (Callorhinus ursinus)--771,010 (an average of
154,202 annually).
(5) Level A Harassment and/or mortality of no more than 15 beaked
whales (total), of any of the species listed in Sec.
218.122(c)(1)(ii)(D) through (F) over the course of the 5-year
regulations.
Sec. 218.123 Prohibitions.
No person in connection with the activities described in Sec.
218.120 may:
(a) Take any marine mammal not specified in Sec. 218.122(c);
(b) Take any marine mammal specified in Sec. 218.122(c) other than
by incidental take as specified in Sec. Sec. 218.122(c)(1), (c)(2),
and (c)(3);
(c) Take a marine mammal specified in Sec. 218.122(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 218.127 of this chapter.
Sec. 218.124 Mitigation.
(a) When conducting training and utilizing the sound sources or
explosives identified in Sec. 218.120(c), the mitigation measures
contained in a Letter of Authorization issued under Sec. Sec. 216.106
and 218.127 of this chapter must be implemented. These mitigation
measures include, but are not limited to:
(1) Personnel Training (for all Training Types):
(i) 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) 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.
(ii) 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).
(iii) 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.
(iv) Lookouts shall be trained in the most effective means to
ensure quick and effective communication within the command structure
in order to facilitate implementation of protective measures if marine
species are spotted.
(v) 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.
(vi) 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 MFAS/HFAS.
(2) General Operating Procedures (for all Training Types):
(i) Prior to major exercises, a Letter of Instruction, Mitigation
Measures Message or Environmental Annex to the Operational Order shall
be issued to further disseminate the personnel training requirement and
general marine species protective measures.
(ii) COs shall make use of marine species detection cues and
information to limit interaction with marine mammals to the maximum
extent possible consistent with safety of the ship.
(iii) 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 shall watch for
and report to the OOD the presence of marine mammals.
(iv) On surface vessels equipped with mid-frequency active sonar,
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.
(v) Personnel on Lookout shall employ visual search procedures
employing a scanning methodology in accordance with the Lookout
Training Handbook (NAVEDTRA 12968-D).
(vi) After sunset and prior to sunrise, Lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook
(NAVEDTRA 12968-D).
(vii) While in transit, naval vessels shall be alert at all times,
use extreme caution, and proceed at a ``safe speed,'' which means the
speed at which the CO can maintain crew safety and effectiveness of
current operational directives, so that the vessel can take action to
avoid a collision with any marine mammal.
(viii) When marine mammals have been sighted in the area, Navy
vessels shall increase vigilance and take all reasonable and
practicable actions to avoid collisions and activities that might
result in close interaction of naval assets and marine mammals. Such
action may include changing speed and/or direction and are dictated by
environmental and other conditions (e.g., safety, weather).
(ix) Navy aircraft participating in exercises at sea shall conduct
and maintain surveillance for marine mammals as long as it does not
violate safety constraints or interfere with the accomplishment of
primary operational duties.
(x) All 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.
(xi) Naval vessels shall maneuver to keep at least 1,500 ft (500 yd
or 457 m) away from any observed whale in the vessel's path and avoid
approaching whales head-on. These requirements do not apply if a
vessel's safety is threatened, such as when change of course will
create an imminent and serious threat to a person, vessel, or aircraft,
and to the extent vessels are restricted in their ability to maneuver.
Restricted maneuverability includes, but is not limited to, situations
when
[[Page 25508]]
vessels are engaged in dredging, submerged activities, launching and
recovering aircraft or landing craft, minesweeping activities,
replenishment while underway and towing activities that severely
restrict a vessel's ability to deviate course. Vessels shall take
reasonable steps to alert other vessels in the vicinity of the whale.
Given rapid swimming speeds and maneuverability of many dolphin
species, naval vessels would maintain normal course and speed on
sighting dolphins unless some condition indicated a need for the vessel
to maneuver.
(3) Operating Procedures (for Anti-submarine Warfare (ASW)
Operations):
(i) 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.
(ii) All surface ships participating in ASW training events shall
have, in addition to the three personnel on watch noted in paragraph
(i), at least two additional personnel on watch as Lookouts at all
times during the exercise.
(iii) 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.
(iv) 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 mammal that may need to be
avoided as warranted.
(v) 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.
(vi) 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.
(vii) Aircraft with deployed sonobuoys shall use only the passive
capability of sonobuoys when marine mammals are detected within 200 yd
(183 m) of the sonobuoy.
(viii) Helicopters shall observe/survey the vicinity of an ASW
exercise for 10 minutes before the first deployment of active (dipping)
sonar in the water.
(ix) Helicopters shall not dip their sonar within 200 yd (183 m) of
a marine mammal and shall cease pinging if a marine mammal closes
within 200 yd (183 m) of the sound source after pinging has begun.
(x) Safety Zones--When marine mammals are detected by any means
(aircraft, shipboard Lookout, or acoustically) within 1,000 yd (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 for that source (i.e., limit to at most 229 dB for AN/SQS-53 and
219 for AN/SQS-56, etc.).
(A) Ships and submarines shall continue to limit maximum
transmission levels by this 6-dB factor until the animal has been seen
to leave the 1,000-yd (914 m) exclusion zone, has not been detected for
30 minutes, or the vessel has transited more than 2,000 yds (1,829 m)
beyond the location of the last detection.
(B) Should a marine mammal be detected within 500 yd (457 m) of the
sonar dome, active sonar transmissions shall be limited to at least 10
dB below the equipment's normal operating level (i.e., limit to at most
225 dB for AN/SQS-53 and 215 for AN/SQS-56, etc.). Ships and submarines
shall continue to limit maximum ping levels by this 10-dB factor until
the animal has been seen to leave the 500-yd (457 m) safety zone (at
which point the 6-dB powerdown applies until the animal leaves the
1,000-yd (914 m) safety zone), has not been detected for 30 minutes, or
the vessel has transited more than 2,000 yd (1,829 m) beyond the
location of the last detection.
(C) Should the marine mammal be detected within 200 yd (183 m) of
the sonar dome, active sonar transmissions shall cease. Sonar shall not
resume until the animal has been seen to leave the 200-yd (183 m)
safety zone (at which point the 10-dB or 6-dB powerdowns apply until
the animal leaves the 500-yd (457 m) or 1,000-yd (914 m) safety zone,
respectively), has not been detected for 30 minutes, or the vessel has
transited more than 2,000 yd (1,829 m) beyond the location of the last
detection.
(D) 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.
(xi) Prior to start up or restart of active sonar, operators shall
check that the Safety Zone radius around the sound source is clear of
marine mammals.
(xii) 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.
(xiii) Submarine sonar operators shall review detection indicators
of close-aboard marine mammals prior to the commencement of ASW
training events involving MFAS.
Note to paragraph (a)(3): If the need for power-down should
arise (as detailed in 218.114(a)(3)(x)) when the Navy is operating a
hull-mounted or sub-mounted source above 235 db (infrequent), 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).
(4) Sinking Exercise:
(i) All weapons firing shall be conducted during the period 1 hour
after official sunrise to 30 minutes before official sunset.
(ii) An exclusion zone with a radius of 1.0 nm (1.9 km) shall be
established around each target. An additional buffer of 0.5 nm (0.9 km)
will be added to account for errors, target drift, and animal
movements. Additionally, a safety zone, which will extend beyond the
buffer zone by an additional 0.5 nm (0.9 km), shall be surveyed.
Together, the zones extend out 2 nm (3.7 km) from the target.
(iii) 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:
(A) 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.
(B) 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.
(C) In addition to the overflights, the exclusion zone shall be
monitored by passive acoustic means, when assets are
[[Page 25509]]
available. This passive acoustic monitoring shall 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, if
submarines are present, passive sonar onboard submarines may be
utilized to detect any vocalizing marine mammals in the area. The OCE
shall be informed of any aural detection of marine mammals and shall
include this information in the determination of when it is safe to
commence the exercise.
(D) On each day of the exercise, aerial surveillance of the
exclusion and safety zones shall commence 2 hours prior to the first
firing.
(E) 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.
(F) If a marine mammal is observed within the exclusion zone,
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 can be assumed to have left the
exclusion zone. The OCE shall determine if the marine mammal is in
danger of being adversely affected by commencement of the exercise.
(G) During breaks in the exercise of 30 minutes or more, the
exclusion zone shall again be surveyed for any marine mammal. If marine
mammals are sighted within the exclusion zone or buffer zone, the OCE
shall be notified, and the procedure described above shall be followed.
(H) 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.
(iv) Aerial surveillance shall be conducted using helicopters or
other aircraft based on necessity and availability.
(v) Where practicable, the Navy shall conduct the exercise in sea
states that are ideal for marine mammal sighting, Beaufort Sea State 3
or less. In the event of a Beaufort Sea State 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.
(vi) The exercise shall not be conducted unless the exclusion zone
can be adequately monitored visually.
(vii) In the event that any marine mammals are observed to be
harmed in the area, NMFS shall be notified as soon as feasible
following the stranding communication protocol. A detailed description
of the animal shall be taken, the location noted, and if possible,
photos taken of the marine mammal. This information shall be provided
to NMFS via the Navy's regional environmental coordinator for purposes
of identification (see the draft Stranding Plan for detail).
(viii) 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.
(5) Surface-to-Surface Gunnery (up to 5-inch Explosive Rounds):
(i) For exercises using targets towed by a vessel, target-towing
vessels shall maintain a trained Lookout for marine mammals when
feasible. If a marine mammal is sighted in the vicinity, the tow vessel
shall immediately notify the firing vessel, which shall suspend the
exercise until the area is clear.
(ii) A 600-yd (585 m) radius buffer zone shall be established
around the intended target.
(iii) 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. Due to the distance between
the firing position and the buffer zone, Lookouts are only expected to
visually detect breaching whales, whale blows, and large pods of
dolphins and porpoises.
(iv) The exercise shall be conducted only when the buffer zone is
visible and marine mammals are not detected within it.
(6) Surface-to-Surface Gunnery (non-explosive rounds):
(i) A 200-yd (183 m) radius buffer zone shall be established around
the intended target.
(ii) 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.
(iii) If available, target-towing vessels shall maintain a Lookout
(unmanned towing vessels will not have a Lookout available). 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.
(iv) 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.
(7) Surface-to-Air Gunnery (Explosive and Non-explosive Rounds):
(i) Vessels shall orient the geometry of gunnery exercises in order
to prevent debris from falling in the area of sighted marine mammals.
(ii) Vessels shall expedite the attempt to recover any parachute
deploying aerial targets to reduce the potential for entanglement of
marine mammals.
(iii) Target-towing aircraft shall maintain a Lookout if feasible.
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.
(8) Air-to-Surface Gunnery (Explosive and Non-explosive Rounds):
(i) A 200-yd (183 m) radius buffer zone shall be established around
the intended target.
(ii) If surface vessels are involved, Lookout(s) shall visually
survey the buffer zone for marine mammals prior to commencement and
during the exercise.
(iii) Aerial surveillance of the buffer zone for marine mammals
shall be conducted prior to commencement of the exercise. Aerial
surveillance altitude of 500 ft to 1,500 ft (152-456 m) is optimum.
Aircraft crew/pilot shall maintain visual watch during exercises.
Release of ordnance through cloud cover is prohibited; aircraft must be
able to actually see ordnance impact areas.
(iv) The exercise shall be conducted only if marine mammals are not
visible within the buffer zone.
(9) Small Arms Training (Grenades, Explosive and Non-explosive
Rounds)--Lookouts shall visually survey for marine mammals. Weapons
shall not be fired in the direction of known or observed marine
mammals.
(10) Air-to-Surface At-sea Bombing Exercises (explosive bombs and
rockets):
(i) If surface vessels are involved, trained Lookouts shall survey
for marine mammals. Ordnance shall not be targeted to impact within
1,000 yd (914 m) of known or observed marine mammals.
(ii) A 1,000-yd (914 m) radius buffer zone shall be established
around the intended target.
(iii) 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 (457 m) or lower, if
safe to do so, and at the slowest safe speed. Release of ordinance
[[Page 25510]]
through cloud cover is prohibited: Aircraft must be able to see
ordnance impact areas. Survey aircraft shall employ most effective
search tactics and capabilities.
(iv) The exercise shall be conducted only if marine mammals are not
visible within the buffer zone.
(11) Air-to-Surface At-Sea Bombing Exercises (Non-explosive Bombs
and Rockets):
(i) If surface vessels are involved, trained Lookouts shall survey
for marine mammals. Ordnance shall not be targeted to impact within
1,000 yd (914 m) of known or observed marine mammals.
(ii) A 1,000-yd (914 m) radius buffer zone shall be established
around the intended target.
(iii) 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 (457 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 shall employ most effective
search tactics and capabilities.
(iv) The exercise shall be conducted only if marine mammals and are
not visible within the buffer zone.
(12) Air-to-Surface Missile Exercises (explosive and non-
explosive):
(i) Aircraft shall visually survey the target area for marine
mammals. Visual inspection of the target area shall be made by flying
at 1,500 ft (457 m) or lower, if safe to do so, and at the slowest safe
speed. Firing or range clearance aircraft must be able to actually see
ordnance impact areas.
(ii) Explosive ordnance shall not be targeted to impact within
1,800 yd (1646 m) of sighted marine mammals.
(13) Aircraft Training Activities Involving Non-Explosive Devices:
(i) Non-explosive devices such as some sonobuoys and inert bombs
involve aerial drops of devices that have the potential to hit marine
mammals if they are in the immediate vicinity of a floating target. The
exclusion zone (200 yd), therefore, shall be clear of marine mammals
and around the target location.
(ii) [Reserved]
(14) Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER):
(i) 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 500 yd (457 m) at a slow speed, if
operationally feasible and weather conditions permit. In dual aircraft
operations, crews are allowed to conduct coordinated area clearances.
(ii) 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.
(iii) For any part of the intended sonobuoy pattern where a post
(source/receiver sonobuoy pair) shall be deployed within 1,000 yd (914
m) 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 1,000 yd (914 m) of the intended
post position, the Navy shall co-locate the explosive source sonobuoy
(AN/SSQ-110A) (source) with the receiver.
(iv) When operationally feasible, Navy crews shall conduct
continuous visual and aural monitoring of marine mammal activity. This
is to include monitoring of own-aircraft sensors from first sensor
placement to checking off station and out of RF range of these sensors.
(v) 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.
(vi) Visual Detection--If marine mammals are visually detected
within 1,000 yd (914 m) of the explosive source sonobuoy (AN/SSQ-110A)
intended for use, then that payload shall not be detonated. Aircrews
may utilize this post once the marine mammals have not been re-sighted
for 30 minutes, or are observed to have moved outside the 1,000-yd (914
m) safety buffer. Aircrews may shift their multi-static active search
to another post, where marine mammals are outside the 1,000-yd (914 m)
safety buffer.
(vii) Aircrews shall make every attempt to manually detonate the
unexploded charges at each post in the pattern prior to departing the
operations area by using the ``Payload 1 Release'' command followed by
the ``Payload 2 Release'' command. Aircrews shall refrain from using
the ``Scuttle'' command when two payloads remain at a given post.
Aircrews shall ensure that a 1,000-yd (914 m) safety buffer, visually
clear of marine mammals, is maintained around each post as is done
during active search operations.
(viii) 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 shall self-scuttle using the secondary or
tertiary method.
(ix) The Navy shall ensure all payloads are accounted for.
Explosive source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall
be reported as unexploded ordnance via voice communications while
airborne, then upon landing via naval message.
(x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
(15) The Navy shall abide by the letter of the ``Stranding Response
Plan for Major Navy Training Exercises in the GoA TMAA'' (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 Multi-strike group
exercises, Joint Expeditionary exercises, and Marine Air Ground Task
Force exercises in the GoA TMAA), the Navy shall implement the
procedures described below.
(A) The Navy shall implement a Shutdown (as defined in the
Stranding Response Plan for GoA TMAA) when advised by a NMFS Office of
Protected Resources Headquarters Senior Official designated in the GoA
TMAA Stranding Communication Protocol that a USE (as defined in the
Stranding Response Plan for the GoA TMAA) 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 the species or description of the animal(s), the condition of the
animal(s) including carcass condition if the animal(s) is/are dead),
location, time of
[[Page 25511]]
first discovery, observed behavior(s) (if alive), and photo or video of
the animal(s) (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: Qualified individuals are
attempting to herd animals back out to the open ocean and animals are
not willing to leave, or 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 hrs of NMFS notifying the Navy of the presence of a
USE, the Navy shall provide available information to NMFS (per the GoA
TMAA 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 hrs prior to the USE
event. Information not initially available regarding the 80 nm (148 km)
and 72 hrs 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, 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.
(b) [Reserved]
Sec. 218.125 Requirements for monitoring and reporting.
(a) General Notification of Injured or Dead Marine Mammals--Navy
personnel shall ensure that NMFS is notified immediately ((see
Communication Plan) or as soon as clearance procedures allow) if an
injured, stranded, or dead marine mammal is found during or shortly
after, and in the vicinity of, any Navy training exercise utilizing
MFAS, HFAS, or underwater explosive detonations. The Navy shall provide
NMFS with the 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 behavior(s) (if alive), and
photo or video of the animal(s) (if available). In the event that an
injured, stranded, or dead marine mammal is found by the Navy that is
not in the vicinity of, or during or shortly after, MFAS, HFAS, or
underwater explosive detonations, the Navy shall report the same
information as listed above as soon as operationally feasible and
clearance procedures allow.
(b) General Notification of Ship Strike--In the event of a ship
strike by any Navy vessel, at any time or place, the Navy shall do the
following:
(1) Immediately report to NMFS the species identification (if
known), location (lat/long) of the animal (or the strike if the animal
has disappeared), and whether the animal is alive or dead, or whether
its status is unknown.
(2) Report to NMFS as soon as operationally feasible the size and
length of animal, an estimate of the injury status (e.g., dead, injured
but alive, injured and moving, unknown, etc)., vessel class/type and
operational status.
(3) Report to NMFS the vessel length, speed, and heading as soon as
feasible.
(4) Provide NMFS a photo or video of the animal(s), if equipment is
available.
(c) The Navy must conduct all monitoring and/or research required
under the Letter of Authorization including abiding by the GoA TMAA
Monitoring Plan. (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications)
(d) Report on Monitoring required in paragraph (c) of this
section--The Navy shall submit a report annually on December 15
describing the implementation and results (through October of the same
year) of the monitoring required in paragraph (c) of this section. The
Navy shall standardize data collection methods across ranges to allow
for comparison in different geographic locations.
(e) 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 15 calendar days after the completion of any MTER indicating:
(1) Location of the exercise;
(2) Beginning and end dates of the exercise; and
(3) Type of exercise.
(f) Annual GoA TMAA Report--The Navy shall submit an Annual
Exercise GoA TMAA Report on December 15 of every year (covering data
gathered through October). This report shall contain the subsections
and information indicated below.
(1) MFAS/HFAS Training Exercises--This section shall contain the
following information for the following Coordinated and Strike Group
exercises: Joint Multi-strike Group Exercises; Joint Expeditionary
Exercises; and Marine Air Ground Task Force GoA TMAA:
(i) Exercise Information (for each exercise):
(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.)); and
(J) Wave height (high, low, and average during exercise).
(ii) Individual marine mammal sighting info (for each sighting in
each exercise):
(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(s);
(H) Wave height (ft);
(I) Visibility;
(J) Sonar source in use (y/n);
(K) Indication of whether animal is < 200 yd, 200-500 yd, 500-1,000
yd, 1,000-2,000 yd, or > 2,000 yd from sonar source in (x) above;
(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 (x) 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); and
[[Page 25512]]
(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
exercises) of the effectiveness of mitigation measures designed to
avoid exposing marine mammals to MFAS. 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 non-major training exercises (unit-level
exercises, such as TRACKEXs):
(i) Total Hours--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 Impacts--To the extent practicable, the Navy, in
coordination with NMFS, shall develop and implement a method of
annually reporting other training (i.e., Unit Level Training (ULT))
utilizing hull-mounted sonar. The report shall present an annual (and
seasonal, where practicable) depiction of non-major training exercises
geographically across the GoA TMAA. The Navy shall include (in the GoA
TMAA 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) Sinking Exercises (SINKEXs)--This section shall include the
following information for each SINKEX completed that year:
(i) Exercise info:
(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);
and
(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 during SINKEX (by Navy
Lookouts) information:
(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) Length of time observers maintained visual contact with marine
mammal;
(G) Wave height (ft);
(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 (762 m for SINKEX in the GoA
TMAA);
(2) The required exclusion zone (1 nm for SINKEX in the GoA TMAA);
(3) The required observation distance (if different than the
exclusion zone (2 nm for SINKEX in the GoA TMAA); and
(4) Greater than the required observed distance. For example, in
this case, the observer shall indicate if < 762 m, from 762 m-1 nm,
from 1 nm-2 nm, and > 2 nm.
(K) 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.),
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 munitions type in use at time of marine mammal
detection.
(4) Improved Extended Echo-Ranging System (IEER) Summary:
(i) Total number of IEER events conducted in the GoA TMAA;
(ii) Total expended/detonated rounds (buoys); and
(iii) Total number of self-scuttled IEER rounds.
(5) 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 shall provide the information
described below for all of their explosive exercises. Until the Navy is
able to report in full the information below, they shall 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 GoA TMAA; and
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.)
for each explosive type.
(g) GoA TMAA 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 GoA TMAA Exercise Reports
and GoA TMAA Monitoring Plan Reports). This report shall be submitted
at the end of the fourth year of the rule (December 2014), covering
activities that have occurred through October 2014.
(h) 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 Northwest Training Range Complex, the Southern
California Range Complex, the Atlantic Fleet Active Sonar Training, the
Hawaii Range Complex, the Mariana Islands Range Complex, and the Gulf
of Alaska.
(i) The Navy shall comply with the Integrated Comprehensive
Monitoring Program (ICMP) Plan and continue to improve the program in
consultation with NMFS.
Sec. 218.126 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to these regulations,
the U.S. Citizen (as defined by Sec. 216.103 of this chapter)
conducting the activity identified in Sec. 218.120(c) (i.e., the Navy)
must apply for and obtain either an initial Letter of Authorization in
accordance with Sec. 218.127 or a renewal under Sec. 218.128.
Sec. 218.127 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 or biennially subject to renewal
conditions in Sec. 218.128.
(b) Each Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
[[Page 25513]]
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization shall be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).
Sec. 218.128 Renewal of Letters of Authorization and adaptive
management.
(a) A Letter of Authorization issued under Sec. Sec. 216.106 and
218.127 of this chapter or the activity identified in Sec. 218.120(c)
shall be renewed annually or biennially upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 218.126 shall be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12-24 months;
(2) Receipt of the monitoring reports and notifications within the
indicated timeframes required under Sec. 218.125(b through j); and
(3) A determination by NMFS that the mitigation, monitoring, and
reporting measures required under Sec. 218.124 and the Letter of
Authorization issued under Sec. Sec. 216.126 and 218.127 of this
chapter were undertaken and will be undertaken during the upcoming
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. 216.126 and 216.128 indicates that a substantial
modification, as determined by NMFS, to the described work, mitigation
or monitoring undertaken during the upcoming season will occur, 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) Adaptive Management--NMFS may modify or augment the existing
mitigation or monitoring measures (after consulting with the Navy
regarding the practicability of the modifications) 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 GoA TMAA or other locations).
(2) Findings of the Monitoring Workshop that the Navy will convene
in 2011.
(3) Compiled results of Navy-funded research and development (R&D)
studies (presented pursuant to the Integrated Comprehensive Monitoring
Plan).
(4) Results from specific stranding investigations (either from the
GoA TMAA 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. 218.129 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. 216.126
and 218.127 of this chapter 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. 218.128, 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. 218.120(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.126 and 218.127 of this
chapter 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. 2011-10440 Filed 5-3-11; 8:45 am]
BILLING CODE 3510-22-P