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



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 216



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

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

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


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

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

ACTION: Proposed rule; request for comments.

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

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

ADDRESSES: You may submit comments, identified by 0648-AW90, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to Michael Payne, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments Enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Availability

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

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens, who engage in a specified activity (other than commercial 
fishing) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as:

    ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''

    The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) removed the ``small numbers'' and ``specified geographical 
region'' limitations and amended the definition of ``harassment'' as it 
applies to a ``military readiness activity'' to read as follows 
(Section 3(18)(B) of the MMPA):

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

Summary of Request

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

Background of Navy Request

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

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

Description of Specified Activities

Anti-Submarine Warfare (ASW) Training

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

Mine Warfare (MIW) Training

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

Acoustic Sources Used for ASW and MIW Exercises in AFAST

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

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

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

Types of ASW and MIW Exercises in the AFAST Study Area

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

AFAST Study Area

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

[[Page 60763]]

[GRAPHIC] [TIFF OMITTED] TP14OC08.005

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

[[Page 60764]]

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

Maintenance Areas

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

RDT&E Areas

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

National Marine Sanctuaries

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

North Atlantic Right Whale (NARW) Critical Habitat

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

Description of Marine Mammals in the Area of the Specified Activities

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

Important Areas

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

North Atlantic Right Whale

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

[[Page 60767]]

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

Humpback Whale

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

Sperm Whale

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

Marine Mammal Density Estimates

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

Brief Background on Sound

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

[[Page 60768]]

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

Metrics Used in This Document

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

SPL

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

SEL

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

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

Potential Effects of Specified Activities on Marine Mammals

Exposure to MFAS/HFAS

    The Navy has requested authorization for the take of marine mammals 
that may occur incidental to training activities in the AFAST Study 
Area utilizing MFAS/HFAS or the IEER system, which includes an 
explosive sonobuoy. The Navy has analyzed the potential impacts to 
marine mammals from AFAST, including ship strike, entanglement in or 
direct strike by expended materials, ship noise, and others, and in 
consultation with NMFS as a cooperating agency for the AFAST EIS, has 
determined that take of marine mammals incidental to these non-acoustic 
components of AFAST is unlikely (see the Navy's LOA application and 
March addendum to the application) and, therefore, has not requested 
authorization for take of marine mammals that might occur incidental to 
these non-acoustic components. In this document, NMFS analyzes the 
potential effects on marine mammals from exposure to MFAS/HFAS and 
underwater detonations from the IEER.
    For the purpose of MMPA authorizations, NMFS' effects assessments 
serve three primary purposes: (1) To put forth the permissible methods 
of taking within the context of MMPA Level B Harassment (behavioral 
harassment), Level A Harassment (injury), and mortality (i.e., identify 
the number and types of take that will occur); (2) to determine whether 
the specified activity will have a negligible impact on the affected 
species or stocks of marine mammals (based on the likelihood that the 
activity will adversely affect the species or stock through effects on 
annual rates of recruitment or survival); and (3) to determine whether 
the specified activity will have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (however, 
there are no subsistence communities that would be affected in the 
AFAST Study Area, so this determination is inapplicable for AFAST).
    More specifically, for activities involving active tactical sonar 
or underwater detonations, NMFS' analysis will identify the probability 
of lethal responses, physical trauma, sensory impairment (permanent and 
temporary threshold shifts and acoustic masking), physiological 
responses (particular stress responses), behavioral disturbance (that 
rises to the level of harassment), and social responses that would be 
classified as behavioral harassment or injury and/or would be likely to 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival. In this section, we will focus 
qualitatively on the different ways that MFAS/HFAS and underwater 
explosive detonations (IEER) may affect marine mammals (some of which 
NMFS would not classify as harassment). Then, in the Estimated Take of 
Marine Mammals Section, NMFS will relate the potential effects to 
marine mammals from MFAS/HFAS and underwater detonation of explosives 
to the MMPA regulatory definitions of Level A and Level B Harassment 
and attempt to quantify those effects.
    In its April 14, 2008, Biological Opinion of the U.S. Navy's 
proposal to conduct four training exercises in the Cherry Point, 
Virginia Capes, and Jacksonville Range Complexes NMFS presented a 
conceptual model of the potential responses of endangered and 
threatened species upon being exposed to active sonar and the pathways 
by which those responses might affect the fitness of individual animals 
that have been exposed, which may then affect the reproduction and/or 
survival of those individuals. Literature supporting the framework, 
with examples drawn from many taxa (both aquatic and terrestrial) was 
included in the ``Application of this Approach'' and ``Response 
Analyses'' sections of that document (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm). This conceptual framework 
may also be used to describe the responses and pathways for non-
endangered and non-threatened species and is included in the Biological 
Opinion of the U.S. Navy's proposal to conduct four training exercises 
in the Cherry Point, Virginia Capes, and Jacksonville Range Complexes.

Direct Physiological Effects

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

Threshold Shift (Noise-Induced Loss of Hearing)

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

[[Page 60770]]

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

Acoustically Mediated Bubble Growth

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

Acoustic Masking

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

[[Page 60771]]

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

Impaired Communication

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

Stress Responses

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

[[Page 60772]]

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

Behavioral Disturbance

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

[[Page 60773]]

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

[[Page 60774]]

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

Behavioral Responses (Southall et al. (2007))

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

[[Page 60775]]

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

Potential Effects of Behavioral Disturbance

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

[[Page 60776]]

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

Stranding and Mortality

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

[[Page 60777]]

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

Strandings Associated With MFAS

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

Greece (1996)

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

Bahamas (2000)

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

[[Page 60778]]

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

Madeira, Spain (2000)

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

Canary Islands, Spain (2002)

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

Spain (2006)

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

[[Page 60779]]

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

Association Between Mass Stranding Events and Exposure to MFAS

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

Behaviorally Mediated Responses to MFAS That May Lead to Stranding

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

[[Page 60780]]

meters in depth (also see Zimmer and Tyack, 2007). They concluded that 
acoustic exposures that disrupted any part of this dive sequence (for 
example, causing beaked whales to spend more time at surface without 
the bounce dives that are necessary to recover from the deep dive) 
could produce excessive levels of nitrogen supersaturation in their 
tissues, leading to gas bubble and emboli formation that produces 
pathologies similar to decompression sickness.
    Recently, Zimmer and Tyack (2007) modeled nitrogen tension and 
bubble growth in several tissue compartments for several hypothetical 
dive profiles and concluded that repetitive shallow dives (defined as a 
dive where depth does not exceed the depth of alveolar collapse, 
approximately 72 m for Ziphius), perhaps as a consequence of an 
extended avoidance reaction to sonar sound, could pose a risk for 
decompression sickness and that this risk should increase with the 
duration of the response. Their models also suggested that 
unrealistically rapid ascent rates of ascent from normal dive behaviors 
are unlikely to result in supersaturation to the extent that bubble 
formation would be expected. Tyack et al. (2006) suggested that emboli 
observed in animals exposed to mid-frequency range sonar (Jepson et 
al., 2003; Fernandez et al., 2005) could stem from a behavioral 
response that involves repeated dives shallower than the depth of lung 
collapse. Given that nitrogen gas accumulation is a passive process 
(i.e. nitrogen is metabolically inert), a bottlenose dolphin was 
trained to repetitively dive a profile predicted to elevate nitrogen 
saturation to the point that nitrogen bubble formation was predicted to 
occur. However, inspection of the vascular system of the dolphin via 
ultrasound did not demonstrate the formation of asymptomatic nitrogen 
gas bubbles (Houser et al., 2007).
    If marine mammals respond to a Navy vessel that is transmitting 
active sonar in the same way that they might respond to a predator, 
their probability of flight responses should increase when they 
perceive that Navy vessels are approaching them directly, because a 
direct approach may convey detection and intent to capture (Burger and 
Gochfeld, 1981, 1990; Cooper, 1997, 1998). The probability of flight 
responses should also increase as received levels of active sonar 
increase (and the ship is, therefore, closer) and as ship speeds 
increase (that is, as approach speeds increase). For example, the 
probability of flight responses in Dall's sheep (Ovis dalli dalli) 
(Frid 2001a, b), ringed seals (Phoca hispida) (Born et al., 1999), 
Pacific brant (Branta bernic nigricans) and Canada geese (B. 
canadensis) increased as a helicopter or fixed-wing aircraft approached 
groups of these animals more directly (Ward et al., 1999). Bald eagles 
(Haliaeetus leucocephalus) perched on trees alongside a river were also 
more likely to flee from a paddle raft when their perches were closer 
to the river or were closer to the ground (Steidl and Anthony, 1996).
    Despite the many theories involving bubble formation (both as a 
direct cause of injury (see Acoustically Mediated Bubble Growth 
Section) and an indirect cause of stranding (See Behaviorally Mediated 
Bubble Growth Section), Southall et al. (2007) summarizes that there is 
either scientific disagreement or a lack of information regarding each 
of the following important points: (1) Received acoustical exposure 
conditions for animals involved in stranding events; (2) pathological 
interpretation of observed lesions in stranded marine mammals; (3) 
acoustic exposure conditions required to induce such physical trauma 
directly; (4) whether noise exposure may cause behavioral reactions 
(such as atypical diving behavior) that secondarily cause bubble 
formation and tissue damage; and (5) the extent the post mortem 
artifacts introduced by decomposition before sampling, handling, 
freezing, or necropsy procedures affect interpretation of observed 
lesions.
    During AFAST exercises there will be use of multiple sonar units in 
areas where six species of beaked whale species may be present. A 
surface duct may be present in a limited area for a limited period of 
time. Although most of the ASW training events will take place in the 
deep ocean, some will occur in areas of high bathymetric relief. 
However, none of the training events will take place in a location 
having a constricted channel with limited egress similar to the Bahamas 
(because none exist in the AFAST Study Area). Consequently, not all 
five of the environmental factors believed to contribute to the Bahamas 
stranding (mid-frequency sonar, beaked whale presence, surface ducts, 
steep bathymetry, and constricted channels with limited egress) will be 
present during AFAST exercises. However, as mentioned previously, NMFS 
recommends caution when steep bathymetry, surface ducting conditions, 
or a constricted channel is present when mid-frequency tactical sonar 
is employed and cetaceans (especially beaked whales) are present.

IEER (Underwater Detonation of Small Explosive Charges)

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

[[Page 60781]]

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

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.'' The NDAA of 2004 amended 
the MMPA as it relates to military readiness activities and the 
incidental take authorization process such that ``least practicable 
adverse impact'' shall include consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
``military readiness activity''. The training activities described in 
the AFAST application are considered military readiness activities.
    NMFS reviewed the proposed AFAST activities and the proposed AFAST 
mitigation measures presented in the Navy's application to determine 
whether the activities and mitigation measures were capable of 
achieving the least practicable adverse effect on marine mammals. NMFS 
determined that further discussion was necessary regarding: (1) general 
minimization of marine mammal impacts; (2) minimization of impacts 
within the southeastern NARW critical habitat; and (3) the potential 
relationship between the operation of MFAS/HFAS and marine mammal 
strandings. NMFS worked with the Navy to identify additional 
practicable and effective mitigation measures, which included a careful 
balancing of the likely benefit of any particular measure to the marine 
mammals with the likely effect of that measure on personnel safety, 
practicality of implementation, and impact on the ``military readiness 
activity''.
    NMFS and the Navy developed additional mitigation measures that 
address the concerns mentioned above, including the development of 
Planning Awareness Areas (PAAs), additional minimization of impacts in 
the southeastern NARW critical habitat, and a Stranding Response Plan. 
Included below are the mitigation measures the Navy initially proposed 
(see ``Mitigation Measures Proposed in the Navy's LOA Application'') 
and the additional measures that NMFS and the Navy developed (see 
``Additional Measures Developed by NMFS and the Navy'' below).
    Separately, NMFS has previously received comments from the public 
expressing concerns regarding potential delays between when marine 
mammals are visually detected by watchstanders and when the tactical 
sonar is actually powered or shut down. NMFS and the Navy have 
discussed this issue and determined the following: Naval operators and 
lookouts are aware of the potential for a very small delay (up to about 
4 seconds) between detecting a marine mammal and powering down or 
shutting down the tactical sonar and will take the actions necessary to 
ensure that sonar is powered down or shut down when detected animals 
are within the specified powerdown or shutdown zone (for example, by 
initiating shutdown when animals are approaching, but not quite within 
the designated distance).

Mitigation Measures Proposed in the Navy's LOA Application

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

Navy's Protective Measures for MFAS/HFAS

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

[[Page 60782]]

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

Personnel Training

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

Lookout and Watchstander Responsibilities

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

Operating Procedures

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

[[Page 60783]]

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

Additional Mitigation for TORPEXs in the Northeast NARW Critical 
Habitat

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

Potential Mitigation Under Development

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

[[Page 60784]]

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

Navy's Protective Measures for IEER

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

Mitigation Measures Related to Vessel Transit and North Atlantic Right 
Whales

Mid-Atlantic, Offshore of the Eastern United States

    For purposes of these measures, the Mid-Atlantic is defined broadly 
to include ports south and east of Block Island Sound southward to 
South Carolina. The procedure described below would be established as 
mitigation measures for Navy vessel transits during North Atlantic 
right whale migratory seasons near ports located off the western North 
Atlantic, offshore of the eastern United States. The mitigation 
measures would apply to all Navy vessel transits, including those 
vessels that would transit to and from East Coast ports and OPAREAs. 
Seasonal migration of right whales is generally described as occurring 
from October 15 through April 30, when right whales migrate between 
feeding grounds farther north and calving grounds farther south.
    NMFS has identified ports located in the western Atlantic Ocean, 
offshore of the southeastern United States, where vessel transit during 
right whale migration is of highest concern for potential ship strike. 
The ports include the Hampton Roads entrance to the Chesapeake Bay, 
which includes the concentration of Atlantic Fleet vessels in Norfolk, 
Virginia. Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety during the 
months indicated in Table 6 and within a 37 km (20 NM) arc (except as 
noted) of the specified reference points.
[GRAPHIC] [TIFF OMITTED] TP14OC08.008


[[Page 60785]]


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

Southeast Atlantic, Offshore of the Eastern United States

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

Northeast Atlantic, Offshore of the Eastern United States

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

Additional Mitigation Measures Developed by NMFS and the Navy

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

[[Page 60786]]

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

Planning Awareness Areas

    The Navy has designated several Planning Awareness Areas (PAAs) 
(see Figure 2) based on areas of high productivity that have been 
correlated with high concentrations of marine mammals (such as 
persistent oceanographic features like upwellings associated with the 
Gulf Stream front where it is deflected off the east coast near the 
Outer Banks), and areas of steep bathymetric contours that are 
frequented by deep diving marine mammals such as beaked whales and 
sperm whales. In developing the PAAs, U.S. Fleet Forces (USFF) was able 
to consider these factors because of geographic flexibility in 
conducting ASW training. USFF is not tied to a specific range support 
structure for the majority of the training for AFAST. Additionally, the 
topography and bathymetry along the East Coast and in the Gulf of 
Mexico is unique in that there is a wide continental shelf leading to 
the shelf break affording a wider range of training opportunities.
     The Navy proposes to avoid planning major exercises in the 
specified planning awareness areas (yellow areas on map). Should 
national security require the conduct of more than four major exercises 
(COMPTUEX, JTFEX, SEASWITI, or similar scale event) in these areas 
(meaning all or a portion of the exercise) per year the Navy would 
provide NMFS with prior notification and include the information in any 
associated after-action or monitoring reports.
     To the extent operationally feasible, the Navy plans to 
conduct no more than one of the four above-mentioned major exercises 
(COMPTUEX, JTFEX, SEASWITI or similar scale event) per year in the Gulf 
of Mexico. Based on operational requirements, the exercise area for 
this one exercise may include the De Soto Canyon. If national security 
needs require more than one major exercise to be conducted in the PAAs, 
which includes portions of the DeSoto Canyon, the Navy would provide 
NMFS with prior notification and include the information in any 
associated after-action or monitoring reports.
     The PAAs identified on the attached figure will be 
included in the Navy's Protective Measures Assessment Protocol (PMAP) 
(implemented by the Navy for use in the protection of the marine 
environment) for unit level situational awareness (i.e., exercises 
other than COMPTUEX, JTFEX, SEASWITI). The goal of PMAP is to raise 
awareness in the fleet and ensure common sense and informed oversight 
are injected into planning processes for testing and training 
evolutions.
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[[Page 60787]]

[GRAPHIC] [TIFF OMITTED] TP14OC08.009

BILLING CODE 3510-22-C

[[Page 60788]]

Helicopter Dipping Sonar in NARW Critical Habitat

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

Object Detection Exercises in NARW Critical Habitat

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

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

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

[[Page 60789]]

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

Mitigation Conclusions

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

MFAS/HFAS

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

IEER

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

[[Page 60790]]

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

Research and Conservation Measures for Marine Mammals

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

Navy Research

    The Navy provides a significant amount of funding and support to 
marine research. The agency is providing approximately $26 million 
annually between FY07-FY09 to universities, research institutions, 
federal laboratories, private companies, and independent researchers 
around the world to study marine mammals. The U.S. Navy sponsors 50 
percent of all U.S. research concerning the effects of human-generated 
sound on marine mammals and 50 percent of such research conducted both 
in the U.S. and worldwide. Major topics of Navy-supported research 
include the following:
     Better understanding of marine species distribution and 
important habitat areas,
     Developing methods to detect and monitor marine species 
before and during training,
     Understanding the effects of sound on marine mammals, sea 
turtles, fish, and seabirds, and
     Developing tools to model and estimate potential effects 
of sound.
    This research is directly applicable to Atlantic Fleet training 
activities, particularly with respect to the investigations of the 
potential effects of underwater noise sources on marine mammals and 
other protected species. Proposed training activities employ sonar and 
underwater explosives, which introduce sound into the marine 
environment.
    The Marine Life Sciences Division of the Office of Naval Research 
currently coordinates six programs that examine the marine environment 
and are devoted solely to studying the effects of noise and/or the 
implementation of technology tools that will assist the Navy in 
studying and tracking marine mammals. The six programs are:
    1. Environmental Consequences of Underwater Sound,
    2. Non-Auditory Biological Effects of Sound on Marine Mammals,
    3. Effects of Sound on the Marine Environment,
    4. Sensors and Models for Marine Environmental Monitoring,
    5. Effects of Sound on Hearing of Marine Animals, and
    6. Passive Acoustic Detection, Classification, and Tracking of 
Marine Mammals.
    The Navy has also developed the technical reports referenced within 
this document, which include the Marine Resource Assessments and the 
Navy OPAREA Density Estimates reports. Furthermore, research cruises by 
the NMFS and by academic institutions have received funding from the 
U.S. Navy. For instance, the ONR contributed financially to the Sperm 
Whale Seismic Survey (SWSS) in the Gulf of Mexico, coordinated by Texas 
A&M. The goals of the SWSS are to examine effects of the oil and gas 
industry on sperm whales and what mitigations would be employed to 
minimize adverse effects to the species. All of this research helps in 
understanding the marine environment and the effects that may arise 
from the use of underwater noise in the Gulf of Mexico and western 
North Atlantic Ocean.
    The Navy has sponsored several workshops to evaluate the current 
state of knowledge and potential for future acoustic monitoring of 
marine mammals. The workshops brought together acoustic experts and 
marine biologists from the Navy and other research organizations to 
present data and information on current acoustic monitoring research 
efforts and to evaluate the potential for incorporating similar 
technology and methods on instrumented ranges. However, acoustic 
detection, identification, localization, and tracking of individual 
animals still requires a significant amount of research effort to be 
considered a reliable method for marine mammal monitoring. The Navy 
supports research efforts on acoustic monitoring and will continue to 
investigate the feasibility of passive acoustics as a potential 
mitigation and monitoring tool.
    Overall, the Navy will continue to fund ongoing marine mammal 
research, and is planning to coordinate long-term monitoring/studies of 
marine mammals on various established ranges and OPAREAS. The Navy will 
continue to research and contribute to university/external research to 
improve the state of the science regarding marine species biology and 
acoustic effects. These efforts include mitigation and monitoring 
programs; data sharing with NMFS and via the literature for research 
and development efforts; and future research as described previously.

Long-Term Prospective Study

    Apart from this proposed rule, NMFS, with input and assistance from 
the Navy and several other agencies and entities, will perform a 
longitudinal observational study of marine mammal strandings to 
systematically observe for and record the types of pathologies and 
diseases and investigate the relationship with potential causal factors 
(e.g., tactical sonar, seismic, weather). The study will not be a true 
``cohort'' study, because we will be unable to quantify or estimate 
specific sonar or other sound exposures for individual animals that 
strand. However, a cross-sectional or correlational analysis, a method 
of descriptive rather than analytical

[[Page 60791]]

epidemiology, can be conducted to compare population characteristics, 
e.g., frequency of strandings and types of specific pathologies between 
general periods of various anthropogenic activities and non-activities 
within a prescribed geographic space. In the long-term study, we will 
more fully and consistently collect and analyze data on the 
demographics of strandings in specific locations and consider 
anthropogenic activities and physical, chemical, and biological 
environmental parameters. This approach in conjunction with true cohort 
studies (tagging animals, measuring received sounds, and evaluating 
behavior or injuries) in the presence of activities and non-activities 
will provide critical information needed to further define the impacts 
of MTEs and other anthropogenic and non-anthropogenic stressors. In 
coordination with the Navy and other federal and non-federal partners, 
the comparative study will be designed and conducted for specific sites 
during intervals of the presence of anthropogenic activities such as 
sonar transmission or other sound exposures and absence to evaluate 
demographics of morbidity and mortality, lesions found, and cause of 
death or stranding. Additional data that will be collected and analyzed 
in an effort to control potential confounding factors include variables 
such as average sea temperature (or just season), meteorological or 
other environmental variables (e.g., seismic activity), fishing 
activities, etc. All efforts will be made to include appropriate 
controls (i.e., no tactical sonar or no seismic); environmental 
variables may complicate the interpretation of ``control'' 
measurements. The Navy and NMFS along with other partners are 
evaluating mechanisms for funding this study.

Monitoring

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

Proposed Monitoring Plan for the AFAST Study Area

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

[[Page 60792]]

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


[[Page 60793]]


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

Past Monitoring in the AFAST Study Area

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

ESG COMPTUEX 08-01

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

Combined CSG COMPTUEX/JTFEX 07-01

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

[[Page 60794]]

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[[Page 60795]]


[GRAPHIC] [TIFF OMITTED] TP14OC08.012

ESG COMPTUEX 07-01

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

JTFEX 06-02

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

[[Page 60796]]

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

[[Page 60797]]

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[[Page 60798]]


[GRAPHIC] [TIFF OMITTED] TP14OC08.014

General Conclusions Drawn From Review of Monitoring Reports

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

Adaptive Management

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

[[Page 60799]]

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

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. Effective reporting is 
critical both to compliance as well as ensuring that the most value is 
obtained from the required monitoring. Some of the reporting 
requirements are still in development and the final rule may contain 
additional details not contained in the proposed rule. Additionally, 
proposed reporting requirements may be modified, removed, or added 
based on information or comments received during the public comment 
period. Currently, there are several different reporting requirements 
pursuant to these proposed regulations:

General Notification of Injured or Dead Marine Mammals

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

IEER

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

MFAS/HFAS Mitigation/Navy Watchstanders

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

Monitoring Report

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

AFAST Comprehensive Report

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

Comprehensive National ASW Report

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

Estimated Take of Marine Mammals

    As mentioned previously, for the purposes of MMPA authorizations, 
NMFS' effects assessments have two primary purposes (in the context of 
the AFAST LOA, where subsistence communities are not present): (1) To 
put forth the permissible methods of taking within the context of MMPA 
Level B Harassment (behavioral harassment), Level A Harassment 
(injury), and mortality (i.e., identify the number and types of take 
that will occur); and (2) to determine whether the specified activity 
will have a negligible impact on the affected species or stocks of 
marine mammals (based on the likelihood that the activity will 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival).
    In the Potential Effects of Exposure of Marine Mammal to MFAS/HFAS 
and Underwater Detonations section, NMFS' analysis identified the 
lethal responses, physical trauma, sensory impairment

[[Page 60800]]

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

Definition of Harassment

    As mentioned previously, with respect to military readiness 
activities, Section 3(18)(B) of the MMPA defines ``harassment'' as: (i) 
Any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild [Level A Harassment]; 
or (ii) any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
behavioral patterns, including, but not limited to, migration, 
surfacing, nursing, breeding, feeding, or sheltering, to a point where 
such behavioral patterns are abandoned or significantly altered [Level 
B Harassment].

Level B Harassment

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

Level A Harassment

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

[[Page 60801]]

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

Acoustic Take Criteria

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

MFAS/HFAS Acoustic Criteria

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

Level B Harassment Threshold (TTS)

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

[[Page 60802]]

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

Level A Harassment Threshold (PTS)

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

Level B Harassment Risk Function (Behavioral Harassment)

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

[[Page 60803]]

[GRAPHIC] [TIFF OMITTED] TP14OC08.053

Where:

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

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

[[Page 60804]]

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

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

Harbor Porpoise Behavioral Harassment Criteria

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

Explosive Detonation Criteria (for IEER)

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

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

Estimates of Potential Marine Mammal Exposures and Takes

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

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

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

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

    Evidence from five beaked whale strandings, all of which have taken 
place outside the AFAST Study Area, and have occurred over 
approximately a decade, suggests that the exposure of beaked whales to 
MFAS in the presence of certain conditions (e.g., multiple units using 
tactical sonar, steep bathymetry, constricted channels, strong surface 
ducts, etc.) may result in strandings, potentially leading to 
mortality. Although these physical factors believed to contribute to 
the likelihood of beaked whale strandings are not present, in their 
aggregate, in the AFAST Study Area, scientific uncertainty exists 
regarding what other factors, or combination of factors, may contribute 
to beaked whale strandings. Accordingly, to allow for scientific 
uncertainty regarding contributing causes of beaked whale strandings 
and the exact behavioral or physiological mechanisms that can lead to 
the ultimate physical effects (stranding and/or death), the Navy has 
requested authorization for take, by serious injury or mortality, of 10 
beaked whales over the course of the 5-yr regulations. Neither NMFS nor 
the Navy anticipates that marine mammal strandings or mortality will 
result from the operation of mid-frequency sonar during Navy exercises 
within the AFAST Study Area.

Effects on Marine Mammal Habitat

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

Right Whale Critical Habitat

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

Effects on Fish

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

[[Page 60811]]

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

Behavioral Harassment

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

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

Diel Cycle

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

TTS

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

[[Page 60813]]

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

Acoustic Masking or Communication Impairment

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

PTS, Injury, or Mortality

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

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

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

[[Page 60817]]

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

Model Overestimation

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

Species-Specific Analysis

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

North Atlantic Right Whale

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

[[Page 60818]]

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

Humpback Whale

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

[[Page 60819]]

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

Sei Whale

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

Fin and Blue Whales

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

Minke Whales

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

[[Page 60820]]

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

Bryde's Whale

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

Sperm Whales

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

Pygmy and Dwarf Sperm Whales

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

Beaked Whales

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

[[Page 60821]]

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

Social Pelagic Species (Except Pilot Whales)

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

Pilot Whales

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

Dolphins

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

[[Page 60822]]

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

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

Harbor Porpoises

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

[[Page 60823]]

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

Pinnipeds

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

Preliminary Determination

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

Subsistence Harvest of Marine Mammals

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

ESA

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

NEPA

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

Classification

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

[[Page 60824]]

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

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

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

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

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

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

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


Sec.  216.240  Specified activity and specified geographical region.

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


Sec.  216.241  Definitions.

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

[[Page 60825]]

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


Sec.  216.242  Permissible methods of taking.

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


Sec.  216.243  Prohibitions.

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


Sec.  216.244  Mitigation.

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

[[Page 60826]]

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

[[Page 60827]]

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

[[Page 60828]]

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

[[Page 60829]]

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

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


Sec.  216.245  Requirements for monitoring and reporting.

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

[[Page 60831]]

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


Sec.  216.246  Applications for Letters of Authorization.

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


Sec.  216.247  Letter of Authorization.

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


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

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


Sec.  216.249  Modifications to Letters of Authorization.

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