[Federal Register Volume 74, Number 133 (Tuesday, July 14, 2009)]
[Proposed Rules]
[Pages 33960-33986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16537]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
RIN 0648-AX86
Taking of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Training Operations Conducted
Within the Gulf of Mexico Range Complex
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS has received requests from the U.S. Navy (Navy) for
authorizations for the take of marine mammals incidental to training
and operational activities conducted by the Navy's Atlantic Fleet
within the Gulf of Mexico (GOMEX) Range Complex for the period
beginning December 3, 2009 and ending December 2, 2014. Pursuant to the
implementing regulations of 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 August
13, 2009.
ADDRESSES: You may submit comments, identified by 0648-AX86, 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 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 NA in the required
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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: Shane Guan, Office of Protected
Resources, NMFS, (301) 713-2289, ext. 137.
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#applications.
The Navy's Draft Environmental Impact Statement (DEIS) for the GOMEX
Range Complex was published in November 2008, and may be viewed at
http://www.gomexrangecomplexeis.com/. NMFS participated in the
development of the Navy's DEIS as a cooperating agency under the
National Environmental Policy Act (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) 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 for incidental takings may 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.
With respect to military readiness activities, 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].
Summary of Request
On October 2, 2008, NMFS received an application from the Navy
requesting an authorization for the take of marine mammal species/
stocks incidental to the proposed training operations within the GOMEX
Range Complex over the course of 5 years. These training activities are
classified as military readiness activities. The Navy states that these
training activities may cause various impacts to marine mammal species
in the proposed GOMEX Range Complex Study Area. The Navy requests an
authorization to take 8 species of cetaceans annually by Level B
harassment, and 1 individual each of pantropical spotted dolphin and
spinner dolphin by Level A harassment (injury). Please refer to the
take table on page 6-17 of the LOA application for detailed information
of the potential exposures from explosive ordnance (per year) for
marine mammals in the GOMEX Range Complex. However, due to the
implementation of the proposed mitigation and monitoring measures, NMFS
believes that the actual take would be less than estimated.
Description of the Specified Activities
The GOMEX Study Area encompasses areas at sea, undersea, and
Special Use Airspace (SUA) in the northern Gulf of Mexico off the coast
of the U.S. (Figures 1 and 2 of the LOA application). The portions of
the GOMEX Study Area to be considered for the proposed action consist
of the BOMBEX Hotbox (surface and subsurface waters) located within the
Pensacola Operation Area (OPAREA), SUA warning areas W-151A/B/C and W-
155A/B (surface waters), and underwater detonation (UNDET) Area E3
(surface and subsurface waters), located within the territorial waters
off Padre Island, Texas, near Corpus Christi NAS. The portions of the
GOMEX Study Area addressed in the Navy's LOA application encompass:
1,496 nm\2\ (5,131 km\2\) of sea space (BOMBEX Hotbox,
where high explosives occur, and UNDET Area E3 where underwater
detonations occur); and
11,714 nm\2\ (40,178 km\2\) of SUA warning areas (vessel
movements only) The BOMBEX Hotbox is an in-water operating and
maneuvers area with defined air, ocean surface, and subsurface areas.
The BOMBEX Hotbox is located in the offshore waters of the northeastern
Gulf of Mexico (GOM) adjacent to Florida and Alabama. The northernmost
boundary of the BOMBEX Hotbox is located 23 nm (42.6 km) from the coast
of the Florida panhandle at latitude 30 [deg]N, the eastern boundary is
approximately 200 nm (370.4 km) from the coast of the Florida peninsula
at longitude 86[deg]48' W.
The SUA warning areas, W-151A/B/C and W-155A/B, are in-water
operating and maneuver areas with defined air and ocean surface. W-
151A/B/C and W-155A/B are located in and above the offshore waters of
the northeastern GOM adjacent to Florida and Alabama.
The UNDET Area E3 is a defined surface and subsurface area located
in the waters south of Corpus Christi NAS and offshore of Padre Island,
Texas. The westernmost boundary is located 7.5 nm (13.9 km) from the
coast of Padre Island at 97[deg]9'33'' W and 27[deg]24'26'' N at the
Western most corner. It lies entirely within the territorial waters (0
to 12 nm, or 0 to 22.2 km) of the U.S. and the majority of it lies
within Texas state waters (0 to 9 nm, or 0 to 16.7 km). It is a very
shallow water training area with depths ranging from 20 to 26 m.
In the application submitted to NMFS, the Navy requests an
authorization to take marine mammals incidental to conducting training
operations within the GOMEX Range Complex. These training activities
consist of surface warfare. Although vessel movement is also a
component of the proposed GOMEX Range Complex training activities, the
Navy concludes that it is unlikely marine mammals would be taken by
vessel movement with the implementation of mitigation and monitoring
measures described in the Mitigation Measures and Monitoring Measures
sections.
Surface Warfare
Surface Warfare (SUW) supports defense of a geographical area
(e.g., a zone or barrier) in cooperation with surface, subsurface, and
air forces. SUW operations detect, localize, and track surface targets,
primarily ships. Detected ships are monitored visually and with radar.
Operations include identifying surface contacts, engaging with weapons,
disengaging, evasion, and avoiding attack, including implementation of
radio silence and deceptive measures. For the proposed GOMEX Range
Complex training operations, SUW events involving the use of explosive
ordnance include air-to-surface Bombing Exercises [BOMEX (A-S)] and
small arms training (involving explosive hand grenades) that occur at
sea.
[[Page 33962]]
(A) Bombing Exercise (Air-to-Surface) [BOMEX (A-S)]
Strike fighter aircraft, such as F/A-18s, deliver explosive bombs
against at-sea surface targets with the goal of destroying the target.
BOMBEX (A-S) training in the GOMEX Study Area occurs only during
daylight hours in the BOMBEX Hotbox area.
For the proposed BOMBEX (A-S), two aircraft will approach an at-sea
target from an altitude of between 15,000 ft (4,572 m) to less than
3,000 ft (914.4 m) and release a high explosive (HE) 1,000-pound (lb)
bomb on the target. MK-83 bombs would be used. MK-83 bombs have a net
explosive weight (NEW) of 415.8 lbs. The typical bomb release altitude
is below 3,000 ft (914.4 m) and the target is usually a flare. The time
in between bomb drops is approximately 3 minutes.
(B) Small Arms Training (Explosive Hand Grenades)
Small arms training is a part of quarterly reservist training and
operational activities for the Mobile Expeditionary Security Group
(MESG) that operates out of Corpus Christi Naval Air Station (NAS). The
MESG trains with MK3A2 (0.5-lb NEW) anti-swimmer concussion grenades.
The MK3A2 grenades are small and contain high explosives in an inert
metal or plastic shell. They detonate at about 3 m under the water's
surface within 4 to 5 seconds of being deployed. The detonation depth
may be shallower depending upon the speed of the boat at the time the
grenade is deployed.
A number of different types of boats will be used depending on the
unit using the boat and their mission. Boats are mostly used by naval
special warfare (NSW) teams and Navy Expeditionary Combat Command
(NECC) units (Naval Coastal Warfare, Inshore Boat Units, Mobile
Security Detachments, Explosive Ordnance Disposal, and Riverine
Forces). These units are used to protect ships in harbors and high
value units, such as aircraft carriers, nuclear submarines, liquid
natural gas tankers, etc., while entering and leaving ports, as well as
to conduct riverine operations, insertion and extractions, and various
NSW operations.
The boats used by these units include: Small Unit River Craft
(SURC), Combat Rubber Raiding Craft (CRRC), Rigid Hull Inflatable Boats
(RHIB), Patrol Craft, and many other versions of these types of boats.
These boats use inboard or outboard, diesel or gasoline engines with
either propeller or water jet propulsion.
This exercise is usually a live-fire exercise with M3A2 Anti-
swimmer Concussion Grenades, but at times blanks may be used so boat
crews can practice their ship-handling skills for the employment of
weapons without being concerned with the safety requirements involved
with HE weapons. Boat crews may use high or low speeds to approach and
engage targets simulating swimmers with anti-swimmer concussion
grenades. The purpose of this exercise is to develop marksmanship
skills and small boat ship-handling tactics skills required to employ
these weapons. Training usually lasts 1-2 hours. Small arms training in
the GOMEX Study Area will occur during day or evening hours in the
UNDET Area E3.
Table 1 summarizes the level of Surface Warfare training activities
planned in the GOMEX Range Complex for the proposed action.
Table 1--Level of Surface Warfare Training Activities Planned in the GOMEX Range Complex per Year
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Potential time of
Operation Platform System/ordnance Number of events Training area day Event duration
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Bombing Exercise (BOMBEX) (Air- F/A-18............. MK-831,000-lb High 1 event (4 bombs in BOMBEX Hotbox..... Daytime only...... 1 hour.
to-Surface, At-Sea). Explosive (HE) succession).
bomb] 415.8 lbs
NEW.
Small Arms Training............. Maritime MK3A2 anti-swimmer 6 events* (20 live UNDET Area E3..... Day or night...... 1 hour.
Expeditionary grenades (8-oz HE grenades).
Support Group grenade) 0.5 lb
(Various Small NEW.
Boats).
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* An individual event can include detonation of up to 10 live grenades, but no more than 20 live grenades will be used per year.
Vessel Movement
Vessel movements are associated with most training and operational
activities in the GOMEX Study Area. Currently, the number of Navy
vessels operating in the GOMEX Study Area varies based on training
schedules and can range from 0 to about 10 vessels at any given time.
Vessel sizes range from small boats (<35 ft, or 10.7 m) for a harbor
security boat to 1,092 ft (332.8 m) for a CVN (carrier vessel nuclear)
and speeds generally range from 10 to 14 knots, but may be considerably
faster, for example an aircraft carrier ``making wind'' while launching
and recovering aircraft, and for small boat operations. Operations
involving vessel movements occur intermittently and are variable in
duration, ranging from a few hours up to 2 weeks. These operations are
widely dispersed throughout the GOMEX Study Area, which is an area
encompassing 11,714 nm\2\ (40,178 km\2\). Most vessel movements occur
in the offshore OPAREAs, but vessel movements associated with MESG
training in the UNDET Area E3 and Commander Naval Installations Command
(CNIC) harbor security group training in the Panama City OPAREA occur
between shore and 12 nm (22.2 km), including the nearshore zone (<3 nm,
or 5.6 km). The Navy logs about 180 total vessel days within the GOMEX
Study Area during a typical year. Consequently, the density of Navy
vessels within the GOMEX Study Area at any given time is low (i.e.,
less than 0.0113 ships/nm\2\ (0.0386 km\2\)).
Description of Marine Mammals in the Area of the Specified Activities
Twenty-nine marine mammal species have confirmed or potential
occurrence in the GOMEX Study Area. These include 28 cetacean species
and 1 sirenian species (DoN, 2007a), which can be found in Table 2.
Although it is possible that any of the 29 species of marine mammals
may occur in the Study Area, only 21 of those species are expected to
occur regularly in the region. Most cetacean species are in the Study
Area year-round (e.g., sperm whales and bottlenose dolphins), while a
few (e.g., fin whales and killer whales) have accidental or transient
occurrence in the area.
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Table 2--Marine Mammal Species Found in the GOMEX Range Complex
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Family and scientific name Common name Federal status
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Order Cetacea
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Suborder Mysticeti (baleen whales)
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Eubalaena glacialis............. North Atlantic Endangered.
right whale.
Megaptera novaeangliae.......... Humpback whale.... Endangered.
Balaenoptera acutorostrata...... Minke whale.......
B. brydei....................... Bryde's whale.....
B. borealis..................... Sei whale......... Endangered.
B. physalus..................... Fin whale......... Endangered.
B. musculus..................... Blue whale........ Endangered.
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Suborder Odontoceti (toothed whales)
------------------------------------------------------------------------
Physeter macrocephalus.......... Sperm whale....... Endangered.
Kogia breviceps................. Pygmy sperm whale.
K. sima......................... Dwarf sperm whale.
Ziphius cavirostris............. Cuvier's beaked
whale.
M. europaeus.................... Gervais' beaked
whale.
M. bidens....................... Sowerby's beaked
whale.
M. densirostris................. Blainville's
beaked whale.
Steno bredanensis............... Rough-toothed
dolphin.
Tursiops truncatus.............. Bottlenose dolphin
Stenella attenuata.............. Pantropical
spotted dolphin.
S. frontalis.................... Atlantic spotted
dolphin.
S. longirostris................. Spinner dolphin...
S. clymene...................... Clymene dolphin...
S. coeruleoalba................. Striped dolphin...
Lagenodephis hosei.............. Fraser's dolphin..
Grampus griseus................. Risso's dolphin...
Peponocephala electra........... Melon-headed whale
Feresa attenuata................ Pygmy killer whale
Pseudorca crassidens............ False killer whale
Orcinus orca.................... Killer whale......
G. macrorhynchus................ Short-finned pilot
whale.
------------------------------------------------------------------------
Order Sirenia
------------------------------------------------------------------------
Trichechus manatus.............. West Indian Endangered.
manatee.
------------------------------------------------------------------------
The information contained in this section relies heavily on the
data gathered in the Marine Resources Assessments (MRAs). The Navy MRA
Program was implemented by the Commander, Fleet Forces Command, to
initiate collection of data and information concerning the protected
and commercial marine resources found in the Navy's OPAREAs.
Specifically, the goal of the MRA program is to describe and document
the marine resources present in each of the Navy's OPAREAs. The MRA for
the GOMEX OPAREA was published in 2007 (DoN, 2007a). The MRA data were
used to provide a regional context for each species. The MRA represents
a compilation and synthesis of available scientific literature (e.g.,
journals, periodicals, theses, dissertations, project reports, and
other technical reports published by government agencies, private
businesses, or consulting firms), and NMFS reports including stock
assessment reports (SARs), recovery plans, and survey reports. This
information was used to evaluate the potential for occurrence of marine
mammal species in the GOMEX Study Area.
The density estimates that were used in previous Navy environmental
documents have been recently updated to provide a compilation of the
most recent data and information on the occurrence, distribution, and
density of marine mammals. The updated density estimates presented in
this LOA application are derived from the Navy OPAREA Density Estimates
(NODEs) for the GOMEX OPAREA report (DoN, 2007b).
Density estimates for cetaceans were either modeled using available
line-transect survey data or derived using cetacean abundance estimates
found in the 2006 NOAA stock assessment reports (SARs) (Waring et al.,
2007), which can be viewed at http://www.nmfs.noaa.gov/pr/sars/species.htm. The abundance estimates in the stock assessment reports
are from Mullin and Fulling (2004).
For the model-based approach, density estimates were calculated for
each species within areas containing survey effort. A relationship
between these density estimates and the associated environmental
parameters such as depth, slope, distance from the shelf break, sea
surface temperature (SST), and chlorophyll a (chl a) concentration was
formulated using generalized additive models (GAMs). This relationship
was then used to generate a two-dimensional density surface for the
region by predicting densities in areas where no survey data exist.
The analyses for cetaceans were based on sighting data collected
through shipboard surveys conducted by NMFS SEFSC between 1996 and
2004. Species-specific density estimates derived through spatial
modeling were compared with abundance estimates found in the 2006 NOAA
SARs to ensure consistency. All spatial models and density estimates
were reviewed by and coordinated with NMFS Science
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Center technical staff and scientists with the University of St.
Andrews, Scotland, Centre for Environmental and Ecological Modeling
(CREEM). For a more detailed description of the methods involved in
calculating the density estimates provided in this LOA request, please
refer to the NODE report for the GOMEX OPAREA (DoN, 2007b). The
following lists how density estimates were derived for each species:
Model-Derived Density Estimates--Line Transect Survey Data
Sperm whale, dwarf and pygmy sperm whales, beaked whales, rough-
toothed dolphin, bottlenose dolphin (Tursiops truncatus), pantropical
spotted dolphin, Atlantic spotted dolphin, striped dolphin, spinner
dolphin, and Risso's dolphin.
Stock Assessment Report or Literature-Derived Density Estimates
Bryde's whale, Clymene dolphin, Fraser's dolphin, killer whale,
false killer whale, pygmy killer whale, melon-headed whale, short-
finned pilot whale.
Potential Impacts to Marine Mammal Species
The Navy considers that explosions associated with BOMBEX (A-S) and
small arms training are the activities with the potential to result in
Level A or Level B harassment of marine mammals. Vessel strikes were
also analyzed for potential effect to marine mammals.
Vessel Strikes
Collisions with commercial and Navy ships can result in serious
injury and may occasionally cause fatalities to cetaceans and manatees.
Although the most vulnerable marine mammals may be assumed to be slow-
moving cetaceans or those that spend extended periods of time at the
surface in order to restore oxygen levels within their tissues after
deep dives (e.g., sperm whale), fin whales are actually struck most
frequently (Laist et al., 2001). Manatees are also particularly
susceptible to vessel interactions and collisions with watercraft
constitute the leading cause of mortality (USFWS, 2007). Smaller marine
mammals such as bottlenose and Atlantic spotted dolphins move more
quickly throughout the water column and are often seen riding the bow
wave of large ships. Marine mammal responses to vessels may include
avoidance and changes in dive patterns (NRC, 2003).
After reviewing historical records and computerized stranding
databases for evidence of ship strikes involving baleen and sperm
whales, Laist et al. (2001) found that accounts of large whale ship
strikes involving motorized boats in the area date back to at least the
late 1800s. Ship collisions remained infrequent until the 1950s, after
which point they increased. Laist et al. (2001) report that both the
number and speed of motorized vessels have increased over time for
trans-Atlantic passenger services, which transit through the area. They
concluded that most strikes occur over or near the continental shelf,
that ship strikes likely have a negligible effect on the status of most
whale populations, but that for small populations or segments of
populations the impact of ship strikes may be significant.
Although ship strikes may result in the mortality of a limited
number of whales within a population or stock, Laist et al. (2001) also
concluded that, when considered in combination with other human-related
mortalities in the area (e.g., entanglement in fishing gear), these
ship strikes may present a concern for whale populations.
Of 11 species known to be hit by ships, fin whales are struck most
frequently; followed by right whales, humpback whales, sperm whales,
and gray whales (Laist et al., 2001). In some areas, one-third of all
fin whale and right whale strandings appear to involve ship strikes.
Sperm whales spend long periods (typically up to 10 minutes; Jacquet et
al., 1996) ``rafting'' at the surface between deep dives. This could
make them exceptionally vulnerable to ship strikes. Berzin (1972) noted
that there were ``many'' reports of sperm whales of different age
classes being struck by vessels, including passenger ships and tug
boats. There were also instances in which sperm whales approached
vessels too closely and were cut by the propellers (NMFS, 2006).
In the Gulf of Mexico, sperm whales are of particular concern.
Sperm whales spend extended periods of time at the surface in order to
restore oxygen levels within their tissues after deep dives. In
addition, some baleen whales such as the North Atlantic right whale
seem generally unresponsive to vessel sound, making them more
susceptible to vessel collisions (Nowacek et al., 2004a). In comparison
with other regions of the U.S., the Gulf of Mexico is the least common
area for ship strikes of large whales (Jensen and Silber, 2003).
Between 1972 and 1999, eight confirmed or possible large whale ship
strikes were recorded in the Gulf of Mexico, including two that
collided with Navy vessels; four of these resulted in mortality of the
animal (Jensen and Silber, 2003) and one resulted in extensive damage
to a Navy vessel (Laist et al., 2001). It is not known whether the
shipstrikes involving Navy vessels resulted in the mortality of the
animal (Laist et al., 2001; Jensen and Silber, 2003).
Accordingly, the Navy has proposed mitigation measures to reduce
the potential for collisions with surfaced marine mammals (for more
details refer to Proposed Mitigation Measures below). Based on the
implementation of Navy mitigation measures and the relatively low
density of Navy ships in the Study Area the likelihood that a vessel
collision would occur is very low.
Vessel Movement
There are limited data concerning marine mammal behavioral
responses to vessel traffic and vessel noise, and a lack of consensus
among scientists with respect to what these responses mean or whether
they result in short-term or long-term adverse effects. In those cases
where there is a busy shipping lane or where there is large amount of
vessel traffic, marine mammals may experience acoustic masking
(Hildebrand, 2005) if they are present in the area (e.g., killer whales
in Puget Sound; Foote et al., 2004; Holt et al., 2008). In cases where
vessels actively approach marine mammals (e.g., whale watching or
dolphin watching boats), scientists have documented that animals
exhibit altered behavior such as increased swimming speed, erratic
movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991;
Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al.,
2002; Constantine et al., 2003), reduced blow interval (Ritcher et al.,
2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and
the shift of behavioral activities which may increase energetic costs
(Constantine et al., 2003; 2004)). A detailed review of marine mammal
reactions to ships and boats is available in Richardson et al. (1995).
For each of the marine mammals taxonomy groups, Richardson et al.
(1995) provided the following assessment regarding cetacean reactions
to vessel traffic:
Toothed whales: ``In summary, toothed whales sometimes show no
avoidance reaction to vessels, or even approach them. However,
avoidance can occur, especially in response to vessels of types used to
chase or hunt the animals. This may cause temporary displacement, but
we know of no clear evidence that toothed whales have abandoned
significant parts of their range because of vessel traffic.''
Baleen whales: ``When baleen whales receive low-level sounds from
distant or
[[Page 33965]]
stationary vessels, the sounds often seem to be ignored. Some whales
approach the sources of these sounds. When vessels approach whales
slowly and nonaggressively, whales often exhibit slow and inconspicuous
avoidance maneuvers. In response to strong or rapidly changing vessel
noise, baleen whales often interrupt their normal behavior and swim
rapidly away. Avoidance is especially strong when a boat heads directly
toward the whale.''
It is important to recognize that behavioral responses to stimuli
are complex and influenced to varying degrees by a number of factors
such as species, behavioral contexts, geographical regions, source
characteristics (moving or stationary, speed, direction, etc.), prior
experience of the animal, and physical status of the animal. For
example, studies have shown that beluga whales reacted differently when
exposed to vessel noise and traffic. In some cases, naive beluga whales
exhibited rapid swimming from ice-breaking vessels up to 80 km away,
and showed changes in surfacing, breathing, diving, and group
composition in the Canadian high Arctic where vessel traffic is rare
(Finley et al., 1990). In other cases, beluga whales were more tolerant
of vessels, but differentially responsive by reducing their calling
rates, to certain vessels and operating characteristics (especially
older animals) in the St. Lawrence River where vessel traffic is common
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales
continued to feed when surrounded by fishing vessels and resisted
dispersal even when purposefully harassed (Fish and Vania, 1971).
In reviewing more than 25 years of whale observation data, Watkins
(1986) concluded that whale reactions to vessel traffic were ``modified
by their previous experience and current activity: habituation often
occurred rapidly, attention to other stimuli or preoccupation with
other activities sometimes overcame their interest or wariness of
stimuli.'' Watkins noticed that over the years of exposure to ships in
the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed
from frequent positive (such as approaching vessels) interest to
generally uninterested reactions; finback whales (B. physalus) changed
from mostly negative (such as avoidance) to uninterested reactions;
right whales (Eubalaena glacialis) apparently continued the same
variety of responses (negative, uninterested, and positive responses)
with little change; and humpbacks (Megaptera novaeangliae) dramatically
changed from mixed responses that were often negative to often strongly
positive reactions. Watkins (1986) summarized that ``whales near shore,
even in regions with low vessel traffic, generally have become less
wary of boats and their noises, and they have appeared to be less
easily disturbed than previously. In particular locations with intense
shipping and repeated approaches by boats (such as the whale-watching
areas of Stellwagen Bank), more and more whales had P [positive]
reactions to familiar vessels, and they also occasionally approached
other boats and yachts in the same ways.''
In the case of the GOMEX Range Complex, naval vessel traffic is
expected to be much lower than in areas where there are large shipping
lanes and large numbers of fishing vessels and/or recreational vessels.
Nevertheless, the proposed action area is well traveled by a variety of
commercial and recreational vessels, so marine mammals in the area are
expected to be habituated to vessel noise.
As described earlier in this document, operations involving vessel
movements occur intermittently and are variable in duration, ranging
from a few hours up to 2 weeks. These operations are widely dispersed
throughout the GOMEX Range Complex OPAREA, which is a vast area
encompassing 11,714 nm\2\. The Navy logs about 180 total vessel days
within the Study Area during a typical year. Consequently, the density
of ships within the Study Area at any given time is extremely low
(i.e., less than 0.0113 ships/nm\2\).
Moreover, naval vessels transiting the study area or engaging in
the training exercises will not actively or intentionally approach a
marine mammal or change speed drastically. All vessels transiting to,
from, and within the range complexes will be traveling at speeds
generally ranging from 10 to 14 knots. In addition, mitigation measures
described below require Navy vessels to keep at least 500 yards (460 m)
away from any observed whale and at least 200 yards (183 m) from marine
mammals other than whales, and avoid approaching animals head-on.
Although the radiated sound from the vessels will be audible to marine
mammals over a large distance, it is unlikely that animals will respond
behaviorally to low-level distant shipping noise as the animals in the
area are likely to be habituated to such noises (Nowacek et al., 2004).
In light of these facts, NMFS does not expect the Navy's vessel
movements to result in Level B harassment.
Assessment of Marine Mammal Response to Anthropogenic Sound
Marine mammals respond to various types of anthropogenic sounds
introduced in the ocean environment. Responses are typically subtle and
can include shorter surfacings, shorter dives, fewer blows per
surfacing, longer intervals between blows (breaths), ceasing or
increasing vocalizations, shortening or lengthening vocalizations, and
changing frequency or intensity of vocalizations (NRC, 2005). However,
it is not known how these responses relate to significant effects
(e.g., long-term effects or population consequences). The following is
an assessment of marine mammal responses and disturbances when exposed
to anthropogenic sound.
I. Physiology
Potential impacts to the auditory system are assessed by
considering the characteristics of the received sound (e.g., amplitude,
frequency, duration) and the sensitivity of the exposed animals. Some
of these assessments can be numerically based (e.g., temporary
threshold shift [TTS] of hearing sensitivity, permanent threshold shift
[PTS] of hearing sensitivity, perception). Others will be necessarily
qualitative, due to a lack of information, or will need to be
extrapolated from other species for which information exists.
Potential physiological responses to the sound exposure are ranked
in descending order, with the most severe impact (auditory trauma)
occurring at the top and the least severe impact occurring at the
bottom (the sound is not perceived).
Auditory trauma represents direct mechanical injury to hearing
related structures, including tympanic membrane rupture,
disarticulation of the middle ear ossicles, and trauma to the inner ear
structures such as the organ of Corti and the associated hair cells.
Auditory trauma is always injurious that could result in PTS and is
always assumed to result in a stress response.
Auditory fatigue refers to a loss of hearing sensitivity after
sound stimulation. The loss of sensitivity persists after, sometimes
long after, the cessation of the sound. The mechanisms responsible for
auditory fatigue differ from auditory trauma and would primarily
consist of metabolic exhaustion of the hair cells and cochlear tissues.
The features of the exposure (e.g., amplitude, frequency, duration,
temporal pattern) and the individual animal's susceptibility would
determine the severity of fatigue and whether the
[[Page 33966]]
effects were temporary (TTS) or permanent (PTS). Auditory fatigue (PTS
or TTS) is always assumed to result in a stress response.
Sounds with sufficient amplitude and duration to be detected among
the background ambient noise are considered to be perceived. This
category includes sounds from the threshold of audibility through the
normal dynamic range of hearing (i.e., not capable of producing
fatigue).
To determine whether an animal perceives the sound, the received
level, frequency, and duration of the sound are compared to what is
known of the species' hearing sensitivity.
Since audible sounds may interfere with an animal's ability to
detect other sounds at the same time, perceived sounds have the
potential to result in auditory masking. Unlike auditory fatigue, which
always results in a stress response because the sensory tissues are
being stimulated beyond their normal physiological range, masking may
or may not result in a stress response, depending on the degree and
duration of the masking effect. Masking may also result in a unique
circumstance where an animal's ability to detect other sounds is
compromised without the animal's knowledge. This could conceivably
result in sensory impairment and subsequent behavior change; in this
case, the change in behavior is the lack of a response that would
normally be made if sensory impairment did not occur. For this reason,
masking also may lead directly to behavior change without first causing
a stress response.
The features of perceived sound (e.g., amplitude, duration,
temporal pattern) are also used to judge whether the sound exposure is
capable of producing a stress response. Factors to consider in this
decision include the probability of the animal being naive or
experienced with the sound (i.e., what are the known/unknown
consequences of the exposure).
If the received level is not of sufficient amplitude, frequency,
and duration to be perceptible by the animal, by extension, this does
not result in a stress response (not perceived). Potential impacts to
tissues other than those related to the auditory system are assessed by
considering the characteristics of the sound (e.g., amplitude,
frequency, duration) and the known or estimated response
characteristics of non-auditory tissues. Some of these assessments can
be numerically based (e.g., exposure required for rectified diffusion).
Others will be necessarily qualitative, due to lack of information.
Each of the potential responses may or may not result in a stress
response.
Direct tissue effects--Direct tissue responses to sound stimulation
may range from tissue shearing (injury) to mechanical vibration with no
resulting injury.
No tissue effects--The received sound is insufficient to cause
either direct (mechanical) or indirect effects to tissues. No stress
response occurs.
II. The Stress Response
The acoustic source is considered a potential stressor if, by its
action on the animal, via auditory or non-auditory means, it may
produce a stress response in the animal. The term ``stress'' has taken
on an ambiguous meaning in the scientific literature, but with respect
to the later discussions of allostasis and allostatic loading, the
stress response will refer to an increase in energetic expenditure that
results from exposure to the stressor and which is predominantly
characterized by either the stimulation of the sympathetic nervous
system (SNS) or the hypothalamic-pituitary-adrenal (HPA) axis (Reeder
and Kramer, 2005). The SNS response to a stressor is immediate and
acute and is characterized by the release of the catecholamine
neurohormones norepinephrine and epinephrine (i.e., adrenaline). These
hormones produce elevations in the heart and respiration rate, increase
awareness, and increase the availability of glucose and lipids for
energy. The HPA response is ultimately defined by increases in the
secretion of the glucocorticoid steroid hormones, predominantly
cortisol in mammals. The amount of increase in circulating
glucocorticoids above baseline may be an indicator of the overall
severity of a stress response (Hennessy et al., 1979). Each component
of the stress response is variable in time; e.g., adrenalines are
released nearly immediately and are used or cleared by the system
quickly, whereas cortisol levels may take long periods of time to
return to baseline.
The presence and magnitude of a stress response in an animal
depends on a number of factors. These include the animal's life history
stage (e.g., neonate, juvenile, adult), the environmental conditions,
reproductive or developmental state, and experience with the stressor.
Not only will these factors be subject to individual variation, but
they will also vary within an individual over time. In considering
potential stress responses of marine mammals to acoustic stressors,
each of these should be considered. For example, is the acoustic
stressor in an area where animals engage in breeding activity? Are
animals in the region resident and likely to have experience with the
stressor (i.e., repeated exposures)? Is the region a foraging ground or
are the animals passing through as transients? What is the ratio of
young (naive) to old (experienced) animals in the population? It is
unlikely that all such questions can be answered from empirical data;
however, they should be addressed in any qualitative assessment of a
potential stress response as based on the available literature.
The stress response may or may not result in a behavioral change,
depending on the characteristics of the exposed animal. However,
provided a stress response occurs, we assume that some contribution is
made to the animal's allostatic load. Allostasis is the ability of an
animal to maintain stability through change by adjusting its physiology
in response to both predictable and unpredictable events (McEwen and
Wingfield, 2003). The same hormones associated with the stress response
vary naturally throughout an animal's life, providing support for
particular life history events (e.g., pregnancy) and predictable
environmental conditions (e.g., seasonal changes). The allostatic load
is the cumulative cost of allostasis incurred by an animal and is
generally characterized with respect to an animal's energetic
expenditure. Perturbations to an animal that may occur with the
presence of a stressor, either biological (e.g., predator) or
anthropogenic (e.g., construction), can contribute to the allostatic
load (Wingfield, 2003). Additional costs are cumulative and additions
to the allostatic load over time may contribute to reductions in the
probability of achieving ultimate life history functions (e.g.,
survival, maturation, reproductive effort and success) by producing
pathophysiological states (the conditions of disease or injury). The
contribution to the allostatic load from a stressor requires estimating
the magnitude and duration of the stress response, as well as any
secondary contributions that might result from a change in behavior.
If the acoustic source does not produce tissue effects, is not
perceived by the animal, or does not produce a stress response by any
other means, we assume that the exposure does not contribute to the
allostatic load. Additionally, without a stress response or auditory
masking, it is assumed that there can be no behavioral change.
Conversely, any immediate effect of exposure that produces an injury is
assumed to also produce a stress response and contribute to the
allostatic load.
[[Page 33967]]
III. Behavior
Changes in marine mammal behavior are expected to result from an
acute stress response. This expectation is based on the idea that some
sort of physiological trigger must exist to change any behavior that is
already being performed. The exception to this rule is the case of
auditory masking. The presence of a masking sound may not produce a
stress response, but may interfere with the animal's ability to detect
and discriminate biologically relevant signals. The inability to detect
and discriminate biologically relevant signals hinders the potential
for normal behavioral responses to auditory cues and is thus considered
a behavioral change.
Impulsive sounds from explosions have very short durations as
compared to other sounds like sonar or ship noise, which are more
likely to produce auditory masking. Additionally the explosive sources
analyzed in this document are used infrequently and the training events
are typically of short duration. Therefore, the potential for auditory
masking is unlikely.
Numerous behavioral changes can occur as a result of stress
response. For each potential behavioral change, the magnitude in the
change and the severity of the response needs to be estimated. Certain
conditions, such as stampeding (i.e., flight response) or a response to
a predator, might have a probability of resulting in injury. For
example, a flight response, if significant enough, could produce a
stranding event. Each disruption to a natural behavioral pattern (e.g.,
breeding or nursing) may need to be classified as Level B harassment.
All behavioral disruptions have the potential to contribute to the
allostatic load. This secondary potential is signified by the feedback
from the collective behaviors to allostatic loading.
IV. Life Function
IV.1. Proximate Life Functions
Proximate life history functions are the functions that the animal
is engaged in at the time of acoustic exposure. The disruption of these
functions, and the magnitude of the disruption, is something that must
be considered in determining how the ultimate life history functions
are affected. Consideration of the magnitude of the effect to each of
the proximate life history functions is dependent upon the life stage
of the animal. For example, an animal on a breeding ground which is
sexually immature will suffer relatively little consequence to
disruption of breeding behavior when compared to an actively displaying
adult of prime reproductive age.
IV.2. Ultimate Life Functions
The ultimate life functions are those that enable an animal to
contribute to the population (or stock, or species, etc.). The impact
to ultimate life functions will depend on the nature and magnitude of
the perturbation to proximate life history functions. Depending on the
severity of the response to the stressor, acute perturbations may have
nominal to profound impacts on ultimate life functions. For example,
unit-level use of sonar by a vessel transiting through an area that is
utilized for foraging, but not for breeding, may disrupt feeding by
exposed animals for a brief period of time. Because of the brevity of
the perturbation, the impact to ultimate life functions may be
negligible. By contrast, weekly training over a period of years may
have a more substantial impact because the stressor is chronic.
Assessment of the magnitude of the stress response from the chronic
perturbation would require an understanding of how and whether animals
acclimate to a specific, repeated stressor and whether chronic
elevations in the stress response (e.g., cortisol levels) produce
fitness deficits.
The proximate life functions are loosely ordered in decreasing
severity of impact. Mortality (survival) has an immediate effect, in
that no future reproductive success is feasible and there is no further
addition to the population resulting from reproduction. Severe injuries
may also lead to reduced survivorship (longevity) and prolonged
alterations in behavior. The latter may further affect an animal's
overall reproductive success and reproductive effort. Disruptions of
breeding have an immediate impact on reproductive effort and may impact
reproductive success. The magnitude of the effect will depend on the
duration of the disruption and the type of behavior change that was
provoked. Disruptions to feeding and migration can affect all of the
ultimate life functions; however, the impacts to reproductive effort
and success are not likely to be as severe or immediate as those
incurred by mortality and breeding disruptions.
Explosive Ordnance Exposure Analysis
The underwater explosion from a weapon would send a shock wave and
blast noise through the water, release gaseous by-products, create an
oscillating bubble, and cause a plume of water to shoot up from the
water surface. The shock wave and blast noise are of most concern to
marine animals. The effects of an underwater explosion on a marine
mammal depends on many factors, including the size, type, and depth of
both the animal and the explosive charge; the depth of the water
column; and the standoff distance between the charge and the animal, as
well as the sound propagation properties of the environment. Potential
impacts can range from brief effects (such as behavioral disturbance),
tactile perception, physical discomfort, slight injury of the internal
organs and the auditory system, to death of the animal (Yelverton et
al., 1973; O'Keeffe and Young, 1984; DoN, 2001). Non-lethal injury
includes slight injury to internal organs and the auditory system;
however, delayed lethality can be a result of individual or cumulative
sublethal injuries (DoN, 2001). Immediate lethal injury would be a
result of massive combined trauma to internal organs as a direct result
of proximity to the point of detonation (DoN, 2001). Generally, the
higher the level of impulse and pressure level exposure, the more
severe the impact to an individual.
Injuries resulting from a shock wave take place at boundaries
between tissues of different density. Different velocities are imparted
to tissues of different densities, and this can lead to their physical
disruption. Blast effects are greatest at the gas-liquid interface
(Landsberg, 2000). Gas-containing organs, particularly the lungs and
gastrointestinal tract, are especially susceptible (Goertner, 1982;
Hill, 1978; Yelverton et al., 1973). In addition, gas-containing organs
including the nasal sacs, larynx, pharynx, trachea, and lungs may be
damaged by compression/expansion caused by the oscillations of the
blast gas bubble (Reidenberg and Laitman, 2003). Intestinal walls can
bruise or rupture, with subsequent hemorrhage and escape of gut
contents into the body cavity. Less severe gastrointestinal tract
injuries include contusions, petechiae (small red or purple spots
caused by bleeding in the skin), and slight hemorrhaging (Yelverton et
al., 1973).
Because the ears are the most sensitive to pressure, they are the
organs most sensitive to injury (Ketten, 2000). Sound-related 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 Assessment of
Marine Mammal Response to Anthropogenic Sound Section above). Sound-
related trauma can be lethal or sublethal. Lethal
[[Page 33968]]
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).
The exercises that use explosives in this request include BOMBEX
(A-S) and GUNEX (S-S). Table 1 summarizes the number of events and
specific areas where each occurs for each type of explosive ordnance
used. There is no difference in how many events take place between the
different seasons. Fractional values are a result of evenly
distributing the annual totals over the four seasons. For example,
there is one BOXEX event per year that can take place in the BOMBEX
Hotbox during any season, so there are 0.25 event modeled for each
season.
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].
I. Level B Harassment
Of the potential effects that were described in the Assessment of
Marine Mammal Response to Anthropogenic Sound and the Explosive
Ordnance Exposure Analysis sections, the following are the types of
effects that fall into the Level B Harassment category:
(A) Behavioral Harassment--Behavioral disturbance that rises to the
level described in the definition above, when resulting from exposures
to underwater detonations, is considered Level B Harassment. Some of
the lower level physiological stress responses discussed in the
Assessment of Marine Mammal Response to Anthropogenic Sound 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.
(B) 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.
(C) TTS--As discussed previously, TTS can affect 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 underwater detonations) as Level B Harassment, not Level A
Harassment (injury).
II. Level A Harassment
Of the potential effects that were described in the Assessment of
Marine Mammal Response to Anthropogenic Sound section, the following
are the types of effects that fall into the Level A Harassment
category:
(A) PTS--PTS is irreversible and considered to be 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.
(B) Physical Disruption of Tissues Resulting from Explosive Shock
Wave--Physical damage of tissues resulting from a shock wave (from an
explosive detonation) is classified as an injury. Blast effects are
greatest at the gas-liquid interface (Landsberg, 2000) and gas-
containing organs, particularly the lungs and gastrointestinal tract,
are especially susceptible to damage (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 underwater detonations cannot be
detected or measured, 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 uses an acoustic criteria that
estimate at what received level (when exposed to explosive detonations)
Level B Harassment, Level A Harassment, and mortality (for explosives)
of marine mammals would occur. The acoustic criteria for Underwater
Detonations are discussed.
Thresholds and Criteria for Impulsive Sound
Criteria and thresholds for estimating the exposures from a single
explosive activity on marine mammals were established for the Seawolf
Submarine Shock Test Final Environmental Impact Statement (FEIS)
(``Seawolf'') and subsequently used in the USS Winston
[[Page 33969]]
S. Churchill (DDG-81) Ship Shock FEIS (``Churchill'') (DoN, 1998 and
2001a). NMFS adopted these criteria and thresholds in its final rule on
unintentional taking of marine animals occurring incidental to the
shock testing (NMFS, 2001a). Since the ship-shock events involve only
one large explosive at a time, additional assumptions were made to
extend the approach to cover multiple explosions for BOMBEX (A-S). In
addition, this section reflects a revised acoustic criterion for small
underwater explosions (i.e., 23 pounds per square inch [psi] instead of
previous acoustic criteria of 12 psi for peak pressure), which is based
on the final rule issued to the Air Force by NMFS (NMFS, 2005b).
I.1. Thresholds and Criteria for Injurious Physiological Impacts
I.1.a. Single Explosion
For injury, NMFS uses dual criteria: eardrum rupture (i.e.,
tympanic-membrane injury) and onset of slight lung injury. These
criteria are considered indicative of the onset of injury. The
threshold for tympanic-membrane (TM) rupture corresponds to a 50
percent rate of rupture (i.e., 50 percent of animals exposed to the
level are expected to suffer TM rupture). This value is stated in terms
of an Energy Flux Density Level (EL) value of 1.17 inch pounds per
square inch (in-lb/in \2\), approximately 205 dB re 1 microPa \2\-sec.
The threshold for onset of slight lung injury is calculated for a
small animal (a dolphin calf weighing 26.9 lbs), and is given in terms
of the ``Goertner modified positive impulse,'' indexed to 13 psi-msec
(DoN, 2001). This threshold is conservative since the positive impulse
needed to cause injury is proportional to animal mass, and therefore,
larger animals require a higher impulse to cause the onset of injury.
This analysis assumed the marine species populations were 100 percent
small animals. The criterion with the largest potential impact range
(most conservative), either TM rupture (energy threshold) or onset of
slight lung injury (peak pressure), will be used in the analysis to
determine Level A exposures for single explosive events.
For mortality, NMFS uses the criterion corresponding to the onset
of extensive lung injury. This is conservative in that it corresponds
to a 1 percent chance of mortal injury, and yet any animal experiencing
onset severe lung injury is counted as a lethal exposure. For small
animals, the threshold is given in terms of the Goertner modified
positive impulse, indexed to 30.5 psi-msec. Since the Goertner approach
depends on propagation, source/animal depths, and animal mass in a
complex way, the actual impulse value corresponding to the 30.5 psi-
msec index is a complicated calculation. To be conservative, the
analysis used the mass of a calf dolphin (at 26.9 lbs) for 100 percent
of the populations.
I.1.b. Multiple Explosions
For this analysis, the use of multiple explosions only applies to
the MK-83 bombs used in BOMBEX. Since BOMBEX events require multiple
explosions, the Churchill approach had to be extended to cover multiple
sound events at the same training site. For multiple exposures,
accumulated energy over the entire training time is the natural
extension for energy thresholds since energy accumulates with each
subsequent shot (explosion); this is consistent with the treatment of
multiple arrivals in Churchill. For positive impulse, it is consistent
with Churchill to use the maximum value over all impulses received.
I.2. Thresholds and Criteria for Non-Injurious Physiological Effects
The NMFS' criterion for non-injurious harassment is TTS--a slight,
recoverable loss of hearing sensitivity (DoN, 2001). For this
assessment, there are dual criteria for TTS, an energy threshold and a
peak pressure threshold. The criterion with the largest potential
impact range (most conservative) either the energy or peak pressure
threshold, will be used in the analysis to determine Level B TTS
exposures.
I.2.a. Single Explosion--TTS-Energy Threshold
The first threshold is a 182 dB re 1 microPa \2\-sec maximum energy
flux density level in any \1/3\-octave band at frequencies above 100
Hertz (Hz) for toothed whales and in any \1/3\-octave band above 10 Hz
for baleen whales. For large explosives, as in the case of the
Churchill FEIS, frequency range cutoffs at 10 and 100 Hz make a
difference in the range estimates. For small explosives (<1,500 lb
NEW), as what was modeled for this analysis, the spectrum of the shot
arrival is broad, and there is essentially no difference in impact
ranges for toothed whales or baleen whales.
The TTS energy threshold for explosives is derived from the Space
and Naval Warfare Systems Center (SSC) pure-tone tests for TTS
(Schlundt et al., 2000; Finneran and Schlundt, 2004). The pure-tone
threshold (192 dB as the lowest value) is modified for explosives by
(a) interpreting it as an energy metric, (b) reducing it by 10 dB to
account for the time constant of the mammal ear, and (c) measuring the
energy in \1/3\-octave bands, the natural filter band of the ear. The
resulting threshold is 182 dB re 1 microPa \2\-sec in any \1/3\-octave
band. The energy threshold usually dominates and is used in the
analysis to determine potential Level B exposures for single explosion
ordnance.
I.2.b. Single Explosion--TTS-Peak Pressure Threshold
The second threshold applies to all species and is stated in terms
of peak pressure at 23 psi (about 225 dB re 1 microPa). This criterion
was adopted for Precision Strike Weapons (PSW) Testing and Training by
Eglin Air Force Base in the Gulf of Mexico (NMFS, 2005b). It is
important to note that for small shots near the surface (such as in
this analysis), the 23-psi peak pressure threshold generally will
produce longer impact ranges than the 182-dB energy metric.
Furthermore, it is not unusual for the TTS impact range for the 23-psi
pressure metric to actually exceed the without-TTS (behavioral change
without onset of TTS) impact range for the 177-dB energy metric.
I.2.c. Multiple Explosions--TTS
For multiple explosions, accumulated energy over the entire
training time is the natural extension for energy thresholds since
energy accumulates with each subsequent shot/detonation. This is
consistent with the energy argument in Churchill. For peak pressure, it
is consistent with Churchill to use the maximum value over all impulses
received.
I.3. Thresholds and Criteria for Behavioral Effects
I.3.a. Single Explosion
For a single explosion, to be consistent with Churchill, TTS is the
criterion for Level B harassment. In other words, because behavioral
disturbance for a single explosion is likely to be limited to a short-
lived startle reaction, use of the TTS criterion is considered
sufficient protection and therefore behavioral effects (Level B
behavioral harassment without onset of TTS) are not expected for single
explosions.
I.3.b. Multiple Explosions--Without TTS
For this analysis, the use of multiple explosions only applies to
FIREX (with IMPASS). Because multiple explosions would occur within a
discrete time period, a new acoustic criterion--
[[Page 33970]]
behavioral disturbance (without TTS)--is used to account for behavioral
effects significant enough to be judged as harassment, but occurring at
lower noise levels than those that may cause TTS.
The threshold is based on test results published in Schlundt et al.
(2000), with derivation following the approach of the Churchill FEIS
for the energy-based TTS threshold. The original Schlundt et al. (2000)
data and the report of Finneran and Schlundt (2004) are the basis for
thresholds for behavioral disturbance (without TTS). As reported by
Schlundt et al. (2000), instances of altered behavior generally began
at lower exposures than those causing TTS; however, there were many
instances when subjects exhibited no altered behavior at levels above
the onset-TTS levels. Regardless of reactions at higher or lower
levels, all instances of altered behavior were included in the
statistical summary.
The behavioral disturbance (without TTS) threshold for tones is
derived from the SSC tests, and is found to be 5 dB below the threshold
for TTS, or 177 dB re: 1 microPa2-s maximum EL in any \1/3\-
octave band at frequencies above 100 Hz for toothed whales/sea turtles
and in any \1/3\-octave band above 10 Hz for baleen whales. As stated
previously for TTS, for small explosives (<1500-lb NEW), as what was
modeled for this analysis, the spectrum of the shot arrival is broad,
and there is essentially no difference in impact ranges for toothed
whales/sea turtles or baleen whales. For BOMBEX involving MK-83 bombs,
behavioral disturbance (without TTS) (177 dB re: 1 microPa2-
s) is the criterion that dominates in the analysis to determine
potential behavioral exposures (MMPA-Level B) due to the use of
multiple explosions.
II. Summary of Thresholds and Criteria for Impulsive Sounds
Table 3 summarizes the effects, criteria, and thresholds used in
the assessment for impulsive sounds. The criteria for behavioral
effects without physiological effects used in this analysis are based
on use of multiple explosives that only take place during a BOMBEX
event.
Table 3--Effects, Criteria, and Thresholds for Impulsive Sounds
----------------------------------------------------------------------------------------------------------------
Effect Criteria Metric Threshold Effect
----------------------------------------------------------------------------------------------------------------
Mortality.................... Onset of Extensive Goertner modified Indexed to 30.5 psi- Mortality.
Lung Injury. positive impulse. msec (assumes 100
percent small
animal at 26.9 lbs).
Injurious Physiological...... 50% Tympanic Energy flux density. 1.17 in-lb/in\2\ Level A.
Membrane Rupture. (about 205 dB re 1
microPa\2\-sec).
Injurious Physiological...... Onset Slight Lung Goertner modified Indexed to 13 psi- Level A.
Injury. positive impulse. msec (assumes 100
percent small
animal at 26.9 lbs).
Non-injurious Physiological.. TTS................. Greatest energy flux 82 dB re 1 Level B.
density level in microPa\2\-sec.
any \1/3\-octave
band (>100 Hz for
toothed whales and
>10 Hz for baleen
whales)--for total
energy over all
exposures 1.
Non-injurious Physiological.. TTS................. Peak pressure over 23 psi.............. Level B.
all exposures.
Non-injurious Behavioral..... Multiple Explosions Greatest energy flux 177 dB re 1 Level B.
Without TTS. density level in microPa\2\-sec.
any \1/3\-octave
(>100 Hz for
toothed whales and
> 10Hz for baleen
whales)--for total
energy over all
exposures (multiple
explosions only).
----------------------------------------------------------------------------------------------------------------
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 3. Additional information regarding the
derivation of these criteria is available in the Navy's FEIS for the
GOMEX Range Complex and in the Navy's Churchill FEIS (U.S. Department
of the Navy, 2001).
III. Acoustic Environment
Sound propagation (the spreading or attenuation of sound) in the
oceans of the world is affected by several environmental factors: water
depth, variations in sound speed within the water column, surface
roughness, and the geo-acoustic properties of the ocean bottom. These
parameters can vary widely with location.
Four types of data are used to define the acoustic environment for
each analysis site:
Seasonal Sound Velocity Profiles (SVP)--Plots of propagation speed
(velocity) as a function of depth, or SVPs, are a fundamental tool used
for predicting how sound will travel. Seasonal SVP averages were
obtained for each training area.
Seabed Geo-acoustics--The type of sea floor influences how much
sound is absorbed and how much sound is reflected back into the water
column.
Wind Speeds--Several environmental inputs, such as wind speed and
surface roughness, are necessary to model acoustic propagation in the
prospective training areas.
Bathymetry Data--Bathymetry data are necessary to model acoustic
propagation and were obtained for each of the training areas.
IV. Acoustic Effects Analysis
The acoustic effects analysis presented in the following sections
is summarized for each major type of exercise. A more in-depth effects
analysis is in Appendix A of the LOA application and the Addendum.
1. BOMBEX
Modeling was completed for four explosive sources (sequential
detonation of four bombs per event) involved in BOMBEX with an assumed
detonation depth of 1 m. The NEW used in simulations of the MK83 is
415.8 lbs.
[[Page 33971]]
Determining the zone of influence (ZOI) for the thresholds in terms
of total EFD, impulse, peak pressure and \1/3\-octave bands EFD must
treat the sequential explosions differently than the single
detonations. For the MK-83, two factors are involved for the sequential
explosives that deal with the spatial and temporal distribution of the
detonations as well as the effective accumulation of the resultant
acoustics. In view of the ZOI determinations, the sequential
detonations are modeled as a single point event with only the EFD
summed incoherently:
[GRAPHIC] [TIFF OMITTED] TP14JY09.004
The multiple explosion energy criterion was used to determine the
ZOI for the Level B without TTS exposure analysis. Table 4 shows the
ZOI results of the model estimation. The ZOI, when multiplied by the
animal densities and total number of events (Table 1), provides the
exposure estimates for that animal species for the given bomb source.
BOMBEX is restricted to one location (BOMBEX Hotbox). In addition
to other mitigation measures (see Mitigation Measures section below),
aircraft will survey the target area for marine mammals before and
during the exercise. Ships will not fire on the target until the area
is surveyed and determined to be free of marine mammals. The exercise
will be suspended if any marine mammals enter the buffer area (5,100-
yard or 4,663-m radius around target). The implementation of mitigation
measures like these effectively reduce exposures in the ZOI.
Table 4--Estimated ZOIs (km\2\) Used in Exposure Calculations for BOMBEX Using MK-83 (415.8 lbs NEW) in the GOMEX Range Complex for Different Seasons
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated ZOI @ 177 dB re 1 [mu]Pa\2\-sec Estimated ZOI @ 182 dB re 1 [mu]Pa\2\-sec or Estimated ZOI @ 205 dB re 1 [mu]Pa\2\-sec or Mortality ZOI @ 30.5 psi
(multiple detonations only) 23 psi 13 psi -----------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------------------------
Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
98.93 115.93 161.39 173.27 55.53 76.82 137.33 158.07 4.84 4.84 4.84 4.98 <0.01 <0.01 <0.01 <0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: ZOIs for the MK-83 bombs are modeled as multiple detonations (4 bombs dropped in succession at same location).
2. Small Arms Training
Modeling was completed for the MK3A2 explosive anti-swimmer
grenades, which assumed a 6 ft (1.8 m) detonation depth. The NEW used
in simulations of the MK3A2 grenade is 0.5 lb.
Determining the ZOI for the thresholds in terms of total energy
flux density (EFD), impulse, peak pressure and \1/3\-octave bands EFD
must treat the sequential explosions differently than the single
detonations. For the MK3A2, two factors are involved for the sequential
explosives that deal with the spatial and temporal distribution of the
detonations as well as the effective accumulation of the resultant
acoustics. In view of the ZOI determinations, the sequential
detonations are modeled as a single point event with only the EFD
summed incoherently:
[GRAPHIC] [TIFF OMITTED] TP14JY09.005
The multiple explosion energy criterion was used to determine the
ZOI for the non-injurious behavioral (without TTS) exposure analysis.
Table 5 shows the ZOI results of the model estimation. The ZOI,
when multiplied by the animal densities and total number of events,
provides the exposure estimates for that animal species. Grenade use is
restricted to one location (UNDET Area E3) (see Figure 2 of the Navy's
LOA application). In addition to other mitigation measures (see
Mitigation Measures section below), lookouts will visually survey the
target area for marine mammals. The exercise will not be conducted
until the area is clear and will suspend the exercise if any enter the
buffer area. Implementation of mitigation measures like these reduce
the likelihood of exposure and potential effects in the ZOI.
Table 5--Estimated ZOIs (km\2\) Used in Exposure Calculations for Small Arms Training Using MK3A2 Anti-Swimmer Grenades (0.5 lbs NEW) in the GOMEX Range Complex for Different Seasons
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated ZOI @ 177 dB re 1 [mu]Pa\2\-sec Estimated ZOI @ 182 dB re 1 [mu]Pa\2\-sec or Estimated ZOI @ 205 dB re 1 [mu]Pa\2\-sec or Mortality ZOI @ 30.5 psi
(multiple detonations only) 23 psi 13 psi -----------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------------------------
Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
4.94 5.45 4.71 5.81 1.80 2.18 1.96 3.27 0.09 0.09 0.09 0.10 <0.01 <0.01 <0.01 <0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: ZOIs for the MK3A2 bombs are modeled as multiple detonations (4 bombs dropped in succession at same location).
3. Summary of Potential Exposures From Explosive Ordnance Use
Explosions that occur in the GOMEX Study Area with the potential to
impact marine mammals are associated with training during BOMBEX and
small arms training events. Explosive ordnance use is limited to
specific training areas. Within the GOMEX Study Area, explosive use
associated with BOMBEX events occur in the BOMBEX Hotbox. The use of
MK3A2 anti-swimmer grenades is associated with small arms training
events, which are limited to the UNDET Area E3 box.
An explosive analysis was conducted to estimate the number of
marine mammals that could be exposed to impacts from explosive ordnance
use associated with BOMBEX and small arms training. Table 6 provides a
summary of the explosive analysis modeling results.
Exposure estimates could not be calculated for several species
(blue whale, fin whale, humpback whale, North Atlantic right whale, sei
whale, and minke whale) because density data could not be calculated
for the GOMEX Study Area due to the limited available data for these
species; however, the likelihood of exposure for species not expected
to occur in the GOMEX Study Area should be even lower than for the
species with occurrence frequent enough for densities to be calculated.
In addition to the low likelihood of exposure, the proposed mitigation
measures presented below would be implemented prior to release of
ordnance. Since the fin, North Atlantic right, humpback, blue, sei, and
minke whale are considered rare in the GOMEX Range Complex, no
exposures are expected for these species. In addition, the West Indian
manatee is not expected to occur where explosive
[[Page 33972]]
ordnance is used; therefore no exposures are expected for this species.
Lookouts will monitor the area before ordnance is used. Sperm
whales will have high detection rates at the surface because of their
large body size and pronounced blows; however, sperm whales are long,
deep divers and may be submerged, and thus not visually detectable, for
over an hour. It is likely that lookouts would detect Atlantic spotted
dolphins, bottlenose dolphins, Clymene dolphins, pantropical spotted
dolphins, Risso's dolphins, spinner dolphins and striped dolphins due
to their gregarious nature and active surface behavior. Implementation
of mitigation measures will reduce the likelihood of exposure and
potential effects.
Table 6--Summary of Potential Exposures From Explosive Ordnance (Per Year) for Marine Mammals in the GOMEX Range
Complex by the Navy Modeling
----------------------------------------------------------------------------------------------------------------
Potential
exposures @177 dB Potential Potential Potential
Species/training operation re 1 microPa\2\-s exposures @182 dB exposures @205 dB exposures @30.5
(multiple re 1 microPa\2\-s re 1 microPa\2\-s psi-ms
detonations only) or 23 psi-ms or 13 psi-ms
----------------------------------------------------------------------------------------------------------------
Sperm whale:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin:
BOMBEX training............. 1 1 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 1 1 0 0
----------------------------------------------------------------------------------------------------------------
Beaked whales:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin:
BOMBEX training............. 6 6 0 0
Small Arms training......... 4 3 0 0
-------------------------------------------------------------------------------
Total Exposures......... 10 9 0 0
----------------------------------------------------------------------------------------------------------------
Bryde's whale:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Clymene dolphin:
BOMBEX training............. 3 3 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 3 3 0 0
----------------------------------------------------------------------------------------------------------------
False killer whale:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Fraser's dolphin:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Killer whale:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Kogia spp.:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
[[Page 33973]]
Melon-headed whale:
BOMBEX training............. 1 1 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 1 1 0 0
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin:
BOMBEX training............. 14 12 1 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 14 12 1 0
----------------------------------------------------------------------------------------------------------------
Pygmy killer whale:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Risso's dolphin:
BOMBEX training............. 1 1 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 1 1 0 0
----------------------------------------------------------------------------------------------------------------
Rough-toothed dolphin:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Short-finned pilot whale:
BOMBEX training............. 0 0 0 0
Small Arms training......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Total Exposures......... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Spinner dolphin:
BOMBEX training............. 14 13 1 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 14 13 1 0
----------------------------------------------------------------------------------------------------------------
Striped dolphin
BOMBEX training............. 4 4 0 0
Small Arms training......... 0 0 0 0
-------------------------------------------------------------------------------
Total Exposures......... 4 4 0 0
----------------------------------------------------------------------------------------------------------------
Proposed Mitigation Measures
In order to issue an incidental take authorization (ITA) under
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations
setting forth the ``permissible methods of taking pursuant to such
activity, and other means of 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 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 GOMEX Range
Complex training activities described in this document are considered
military readiness activities.
NMFS reviewed the Navy's proposed GOMEX Range Complex training
activities and the proposed GOMEX Range Complex 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.
Any mitigation measure prescribed by NMFS should be known to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals (2), (3), and (4) may contribute to this
goal).
(2) A reduction in the numbers of marine mammals (total number or
number at a biologically important time
[[Page 33974]]
or location) exposed to underwater detonations or other activities
expected to result in the take of marine mammals (this goal may
contribute to (1), above, or to reducing harassment takes only).
(3) A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to underwater detonations or other activities expected to result in the
take of marine mammals (this goal may contribute to (1), above, or to
reducing harassment takes only).
(4) A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to underwater
detonations or other activities expected to result in the take of
marine mammals (this goal may contribute to (1), above, or to reducing
the severity of harassment takes only).
(5) 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.
(6) 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 reviewed the Navy's proposed 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.'' These mitigation measures are listed
below.
General Maritime Measures
The mitigation measures presented below would be taken by Navy
personnel on a regular and routine basis. These are routine measures
and are considered ``Standard Operating Procedures.''
I. Personnel Training--Lookouts
The use of shipboard lookouts is a critical component of all Navy
standard operating procedures. Navy shipboard lookouts (also referred
to as ``watchstanders'') are qualified and experienced observers of the
marine environment. Their duties require that they report all objects
sighted in the water to the Officer of the Deck (OOD) (e.g., trash, a
periscope, marine mammals, sea turtles) and all disturbances (e.g.,
surface disturbance, discoloration) that may be indicative of a threat
to the vessel and its crew. There are personnel serving as lookouts on
station at all times (day and night) when a ship or surfaced submarine
is moving through the water.
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 may also be viewed on-line at https://portal.navfac.navy.mil/go/msat.
1. All bridge personnel, Commanding Officers, Executive Officers,
officers standing watch on the bridge, maritime patrol aircraft
aircrews, and Mine Warfare (MIW) helicopter crews will complete MSAT.
2. Navy lookouts would undertake extensive training to qualify as a
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA
12968-D).
3. 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).
4. Lookouts will be trained in the most effective means to ensure
quick and effective communication within the command structure to
facilitate implementation of protective measures if marine species are
spotted.
5. 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.
II. Operating Procedures and Collision Avoidance
1. Prior to major exercises, a Letter of Instruction, Mitigation
Measures Message or Environmental Annex to the Operational Order will
be issued to further disseminate the personnel training requirement and
general marine species mitigation measures.
2. 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 according to
the proposed mitigation and monitoring measures.
3. While underway, surface vessels will have at least two lookouts
with binoculars; surfaced submarines will have at least one lookout
with binoculars. Lookouts already posted for safety of navigation and
man-overboard precautions may be used to fill this requirement. As part
of their regular duties, lookouts will watch for and report to the OOD
the presence of marine mammals.
4. Personnel on lookout will employ visual search procedures
employing a scanning method in accordance with the Lookout Training
Handbook (NAVEDTRA 12968-D).
5. After sunset and prior to sunrise, lookouts will employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook
(NAVEDTRA 12968-D).
6. While in transit, personnel aboard naval vessels will be alert
at all times, use extreme caution, and proceed at a ``safe speed'' (the
minimum speed at which mission goals or safety will not be compromised)
so that the vessel can take proper and effective action to avoid a
collision with any marine animal and can be stopped within a distance
appropriate to the prevailing circumstances and conditions.
7. When whales have been sighted in the area, Navy vessels will
increase vigilance and shall implement measures to avoid collisions
with marine mammals and avoid activities that might result in close
interaction of naval assets and marine mammals. Actions shall include
changing speed and/or direction and are dictated by environmental and
other conditions (e.g., safety, weather).
8. Naval vessels will maneuver to keep at least 500 yds (460 m)
away from
[[Page 33975]]
any observed whale and avoid approaching whales head-on. This
requirement does not apply if a vessel's safety is threatened, such as
when change of course will create an imminent and serious threat to a
person, vessel, or aircraft, and to the extent vessels are restricted
in their ability to maneuver. Restricted maneuverability includes, but
is not limited to, situations when vessels are engaged in dredging,
submerged operations, launching and recovering aircraft or landing
craft, minesweeping operations, replenishment while underway and towing
operations that severely restrict a vessel's ability to deviate course.
Vessels will take reasonable steps to alert other vessels in the
vicinity of the whale.
9. Where feasible and consistent with mission and safety, vessels
will avoid closing to within 200-yd (183 m) of marine mammals other
than whales (whales addressed above).
10. Floating weeds, algal mats, Sargassum rafts, clusters of
seabirds, and jellyfish are good indicators of marine mammal presence.
Therefore, increased vigilance in watching for marine mammals will be
taken where these conditions exist.
11. 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 described in the Navy's LOA application. Marine mammal
detections will be immediately reported to assigned Aircraft Control
Unit for further dissemination to ships in the vicinity of the marine
species as appropriate where it is reasonable to conclude that the
course of the ship will likely result in a closing of the distance to
the detected marine mammal.
12. All vessels will maintain logs and records documenting training
operations should they be required for event reconstruction purposes.
Logs and records will be kept for a period of 30 days following
completion of a major training exercise.
Coordination and Reporting Requirements
The Navy will coordinate with the local NMFS Stranding Coordinator
for any unusual marine mammal behavior and any stranding, beached live/
dead, or floating marine mammals that may occur at any time during
training activities or within 24 hours after completion of training
activities. Additionally, the Navy will follow internal chain of
command reporting procedures as promulgated through Navy instructions
and orders.
Proposed Mitigation Measures for Specific At-Sea Training Events
These measures are standard operating procedures that are in place
currently and will be used in the future for all activities being
analyzed in this LOA request.
I. Small Arms Training--Explosive Hand Grenades (MK3A2 Grenades)
This activity occurs in the UNDET Area E3 of the GOMEX Study Area.
The following mitigation measures are proposed by the Navy for the
small arms training.
(A) Lookouts visually survey for floating weeds, algal mats,
Sargassum rafts, marine mammals.
(B) A 200-yard (182-m) radius buffer zone will be established
around the intended target. The exercises will be conducted only if the
buffer is clear of sighted marine mammals and sea turtles.
II. Air-to-Surface At-Sea Bombing Exercises (BOMBEX, 500-lb to 2,000-lb
Explosive Bombs)
This activity occurs in W-155A/B (hot box) area of the GOMEX Study
Area. The location was established to be within 150 nm from shore-based
facilities (the established flight distance restriction for F/A-18 jets
during unit level training events). The following mitigation measures
are proposed by the Navy for the BOMBEX training.
(A) Aircraft would visually survey the target and buffer zone for
marine mammals prior to and during the exercise. The survey of the
impact area would be made by flying at 1,500 feet altitude or lower, if
safe to do so, and at the slowest safe speed. Release of ordnance
through cloud cover is prohibited; aircraft must be able to actually
see ordnance impact areas. Survey aircraft should employ most effective
search tactics and capabilities.
(B) A buffer zone of a 5,100-yard (4,663-m) radius would be
established around the intended target zone. The exercises would be
conducted only if the buffer zone is clear of sighted marine mammals
and sea turtles.
(C) If surface vessels are involved, lookouts would survey for
Sargassum rafts, which may be inhabited by immature sea turtles.
Ordnance would not be targeted to impact within 5,100 yards (4,663 m)
of known or observed Sargassum rafts or coral reefs.
(D) At-sea BOMBEXs using live ordnance will occur during daylight
hours only.
Monitoring Measures
In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for LOAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the level of taking or impacts on populations of marine
mammals that are expected to be present.
Monitoring measures prescribed by NMFS should accomplish one or
more of the following general goals:
(1) An increase in the probability of detecting marine mammals,
both within the safety zone (thus allowing for more effective
implementation of the mitigation) and in general to generate more data
to contribute to the effects analyses.
(2) An increase in our understanding of how many marine mammals are
likely to be exposed to levels of underwater detonations or other
stimuli that we associate with specific adverse effects, such as
behavioral harassment, TTS, or PTS.
(3) An increase in our understanding of how marine mammals respond
(behaviorally or physiologically) to underwater detonations 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).
(4) An increased knowledge of the affected species.
(5) An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.
(6) A better understanding and record of the manner in which the
authorized entity complies with the incidental take authorization.
Proposed Monitoring Plan for the GOMEX Range Complex
The Navy has provided NMFS with a copy of the draft GOMEX Range
Complex Monitoring Plan. Additionally, NMFS and the Navy have
incorporated a suggestion from the public, which recommended the Navy
hold a peer review workshop to discuss the Navy's Monitoring Plans for
the multiple range complexes and training exercises in which the Navy
would receive ITAs.
The Navy must notify NMFS immediately (or as soon as clearance
[[Page 33976]]
procedures allow) if the specified activity is thought to have resulted
in the mortality or injury of any marine mammals, or in any take of
marine mammals not identified in this document.
The Navy must conduct all monitoring and/or research required under
the Letter of Authorization, if issued.
With input from NMFS, a summary of the monitoring methods required
for use during training events in the GOMEX Range Complex are described
below. These methods include a combination of individual elements that
are designed to allow a comprehensive assessment.
I. Vessel or Aerial Surveys
(A) The Navy shall visually survey a minimum of 1 explosive event
per year. If possible, the event surveyed will be one involving
multiple detonations. One of the vessel or aerial surveys should
involve professionally trained marine mammal observers (MMOs).
(B) When operationally feasible, for specified training events,
aerial or vessel surveys shall be used 1-2 days prior to, during (if
reasonably safe), and 1-5 days post detonation.
(C) Surveys shall include any specified exclusion zone around a
particular detonation point plus 2,000 yards beyond the border of the
exclusion zone (i.e., the circumference of the area from the border of
the exclusion zone extending 2,000 yards outwards). For vessel-based
surveys a passive acoustic system (hydrophone or towed array) could be
used to determine if marine mammals are in the area before and/or after
a detonation event.
(D) When conducting a particular survey, the survey team shall
collect:
Location of sighting;
Species (if not possible, indicate whale, dolphin or
pinniped);
Number of individuals;
Whether calves were observed;
Initial detection sensor;
Length of time observers maintained visual contact with
marine mammal;
Wave height;
Visibility;
Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
Distance of marine mammal from actual detonations (or
target spot if not yet detonated);
Observed behavior--Watchstanders will report, in plain
language and without trying to categorize in any way, the observed
behavior of the animal(s) (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming etc.),
including speed and direction;
Resulting mitigation implementation--Indicate whether
explosive detonations were delayed, ceased, modified, or not modified
due to marine mammal presence and for how long; and
If observation occurs while explosives are detonating in
the water, indicate munitions type in use at time of marine mammal
detection (e.g., were the 5-inch guns actually firing when the animals
were sighted? Did animals enter an area 2 minutes after a huge
explosion went off?).
II. Passive Acoustic Monitoring
The Navy is required to conduct passive acoustic monitoring when
operationally feasible.
(A) Any time a towed hydrophone array is employed during shipboard
surveys the towed array shall be deployed during daylight hours for
each of the days the ship is at sea.
(B) The towed hydrophone array shall be used to supplement the
ship-based systematic line-transect surveys (particularly for species
such as beaked whales that are rarely seen).
III. Marine Mammal Observers on Navy Platforms
(A) MMOs selected for aerial or vessel surveys shall be placed on a
Navy platform during one of the exercises being monitored per year. The
remaining designated exercise(s) shall be monitored by the Navy
lookouts/watchstanders.
(B) The MMO must possess expertise in species identification of
regional marine mammal species and experience collecting behavioral
data.
(C) MMOs shall not be placed aboard Navy platforms for every Navy
training event or major exercise, but during specifically identified
opportunities deemed appropriate for data collection efforts. The
events selected for MMO participation shall take into account safety,
logistics, and operational concerns.
(D) MMOs shall observe from the same height above water as the
lookouts.
(E) The MMOs shall not be part of the Navy's formal reporting chain
of command during their data collection efforts; Navy lookouts shall
continue to serve as the primary reporting means within the Navy chain
of command for marine mammal sightings. The only exception is that if
an animal is observed within the shutdown zone that has not been
observed by the lookout, the MMO shall inform the lookout of the
sighting, and the lookout shall take the appropriate action through the
chain of command.
(F) The MMOs shall collect species identification, behavior,
direction of travel relative to the Navy platform, and distance first
observed. All MMO sightings shall be conducted according to a standard
operating procedure. Information collected by MMOs should be the same
as those collected by Navy lookout/watchstanders described above.
The Monitoring Plan for the GOMEX Range Complex has been designed
as a collection of focused ``studies'' (described fully in the GOMEX
Monitoring Plan) to gather data that will allow the Navy to address the
following questions:
(A) What are the behavioral responses of marine mammals that are
exposed to explosives?
(B) Is the Navy's suite of mitigation measures effective at
avoiding injury and mortality of marine mammals?
Data gathered in these studies will be collected by qualified,
professional marine mammal biologists or trained Navy lookouts/
watchstanders that are experts in their field. This monitoring plan has
been designed to gather data on all species of marine mammals that are
observed in the GOMEX Range Complex study area.
Monitoring Workshop
During the public comment period on past proposed rules for Navy
actions (such as the Hawaii Range Complex (HRC) and Southern California
Range Complex (SOCAL) proposed rules), NMFS received a recommendation
that a workshop or panel be convened to solicit input on the monitoring
plan from researchers, experts, and other interested parties. The GOMEX
Range Complex proposed rule included an adaptive management component
and both NMFS and the Navy believe that a workshop would provide a
means for Navy and NMFS to consider input from participants in
determining whether (and if so, how) to modify monitoring techniques to
more effectively accomplish the goals of monitoring set forth earlier
in the document. NMFS and the Navy believe that this workshop concept
is valuable in relation to all of the Range Complexes and major
training exercise rules and LOAs that NMFS is working on with the Navy
at this time. Consequently, NMFS has determined that this single
Monitoring Workshop will be included as a component of all of the rules
and LOAs that NMFS will be processing for the Navy in the next year or
so.
The Navy, with guidance and support from NMFS, will convene a
Monitoring Workshop, including marine mammal and acoustic experts as
well as other interested parties, in 2011. The Monitoring Workshop
participants will review the monitoring results from the
[[Page 33977]]
previous two years of monitoring pursuant to the GOMEX Range Complex
rule as well as monitoring results from other Navy rules and LOAs
(e.g., VACAPES, AFAST, SOCAL, HRC, and other rules). The Monitoring
Workshop participants would provide their individual recommendations to
the Navy and NMFS on the monitoring plan(s) after also considering the
current science (including Navy research and development) and working
within the framework of available resources and feasibility of
implementation. NMFS and the Navy would then analyze the input from the
Monitoring Workshop participants and determine the best way forward
from a national perspective. Subsequent to the Monitoring Workshop,
modifications would be applied to monitoring plans as appropriate.
Integrated Comprehensive Monitoring Program
In addition to the site-specific Monitoring Plan for the GOMEX
Range Complex, the Navy will complete the Integrated Comprehensive
Monitoring Program (ICMP) Plan by the end of 2009. The ICMP is
currently in development by the Navy, with Chief of Naval Operations
Environmental Readiness Division (CNO-N45) having the lead. The program
does not duplicate the monitoring plans for individual areas (e.g.,
AFAST, HRC, SOCAL, VACAPES); instead it is intended to provide the
overarching coordination that will support compilation of data from
both range-specific monitoring plans as well as Navy funded research
and development (R&D) studies. The ICMP will coordinate the monitoring
programs' progress towards meeting its goals and develop a data
management plan. A program review board is also being considered to
provide additional guidance. The ICMP will be evaluated annually to
provide a matrix for progress and goals for the following year, and
will make recommendations on adaptive management for refinement and
analysis of the monitoring methods.
The primary objectives of the ICMP are to:
Monitor and assess the effects of Navy activities on
protected species;
Ensure that data collected at multiple locations is
collected in a manner that allows comparison between and among
different geographic locations;
Assess the efficacy and practicality of the monitoring and
mitigation techniques;
Add to the overall knowledge-base of marine species and
the effects of Navy activities on marine species.
The ICMP will be used both as: (1) a planning tool to focus Navy
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy
Range Complexes and Exercises; and (2) an adaptive management tool,
through the consolidation and analysis of the Navy's monitoring and
watchstander data, as well as new information from other Navy programs
(e.g., R&D), and other appropriate newly published information.
In combination with the 2011 Monitoring Workshop and the adaptive
management component of the GOMEX Range Complex rule and the other Navy
rules (e.g. VACAPES Range Complex, Jacksonville Range Complex, etc.),
the ICMP could potentially provide a framework for restructuring the
monitoring plans and allocating monitoring effort based on the value of
particular specific monitoring proposals (in terms of the degree to
which results would likely contribute to stated monitoring goals, as
well the likely technical success of the monitoring based on a review
of past monitoring results) that have been developed through the ICMP
framework, instead of allocating based on maintaining an equal (or
commensurate to effects) distribution of monitoring effort across range
complexes. For example, if careful prioritization and planning through
the ICMP (which would include a review of both past monitoring results
and current scientific developments) were to show that a large, intense
monitoring effort in Hawaii would likely provide extensive, robust and
much-needed data that could be used to understand the effects of sonar
throughout different geographical areas, it may be appropriate to have
other range complexes dedicate money, resources, or staff to the
specific monitoring proposal identified as ``high priority'' by the
Navy and NMFS, in lieu of focusing on smaller, lower priority projects
divided throughout their home range complexes.
The ICMP will identify:
A means by which NMFS and the Navy would jointly consider
prior years' monitoring results and advancing science to determine if
modifications are needed in mitigation or monitoring measures to better
effect the goals laid out in the Mitigation and Monitoring sections of
the GOMEX Range Complex rule.
Guidelines for prioritizing monitoring projects.
If, as a result of the workshop and similar to the example
described in the paragraph above, the Navy and NMFS decide it is
appropriate to restructure the monitoring plans for multiple ranges
such that they are no longer evenly allocated (by rule), but rather
focused on priority monitoring projects that are not necessarily tied
to the geographic area addressed in the rule, the ICMP will be modified
to include a very clear and unclassified recordkeeping system that will
allow NMFS and the public to see how each range complex/project is
contributing to all of the ongoing monitoring programs (resources,
effort, money, etc.).
Adaptive Management
NMFS proposes to include an adaptive management component in the
final regulations governing the take of marine mammals incidental to
Navy training exercises in the GOMEX Range Complex. The use of adaptive
management will give NMFS the ability to consider new data from
different sources to determine (in coordination with the Navy) on an
annual basis if mitigation or monitoring measures should be modified or
added (or deleted) if new data suggests that such modifications are
appropriate (or are not appropriate) for subsequent annual LOAs, if
issued.
The following are some of the possible sources of applicable data:
Results from the Navy's monitoring from the previous year
(either from GOMEX Range Complex or other locations).
Findings of the Workshop that the Navy will convene in
2011 to analyze monitoring results to date, review current science, and
recommend modifications, as appropriate to the monitoring protocols to
increase monitoring effectiveness.
Compiled results of Navy funded research and development
(R&D) studies (presented pursuant to the ICMP, which is discussed
elsewhere in this document).
Results from specific stranding investigations (either
from GOMEX Range Complex or other locations).
Results from general marine mammal and sound research
(funded by the Navy or otherwise).
Any information which reveals that marine mammals may have
been taken in a manner, extent or number not authorized by these
regulations or subsequent Letters of Authorization.
Mitigation measures could be modified or added (or deleted) if new
data suggests that such modifications would have (or do not have) a
reasonable likelihood of accomplishing the goals of mitigation laid out
in this proposed rule and if the measures are practicable. NMFS would
also
[[Page 33978]]
coordinate with the Navy to modify or add to (or delete) the existing
monitoring requirements if the new data suggest that the addition of
(or deletion of) a particular measure would more effectively accomplish
the goals of monitoring laid out in this proposed rule. The reporting
requirements associated with this rule are designed to provide NMFS
with monitoring data from the previous year to allow NMFS to consider
the data and issue annual LOAs. NMFS and the Navy will meet annually,
prior to LOA issuance, to discuss the monitoring reports, Navy R&D
developments, and current science and whether mitigation or monitoring
modifications are appropriate.
Reporting Measures
In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. Effective reporting is
critical to ensure compliance with the terms and conditions of a LOA,
and to provide NMFS and the Navy with data of the highest quality based
on the required monitoring. As NMFS noted in its proposed rule,
additional detail has been added to the reporting requirements since
they were outlined in the proposed rule. The updated reporting
requirements are all included below. A subset of the information
provided in the monitoring reports may be classified and not releasable
to the public.
NMFS will work with the Navy to develop tables that allow for
efficient submission of the information required below.
General Notification of Injured or Dead Marine Mammals
Navy personnel will ensure that NMFS (regional stranding
coordinator) is notified immediately (or as soon as operational
security allows) if an injured or dead marine mammal is found during or
shortly after, and in the vicinity of, any Navy training exercise
utilizing underwater explosive detonations or other activities. 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).
Annual GOMEX Range Complex Monitoring Plan Report
The Navy shall submit a report annually on November 1 describing
the implementation and results (through September 1 of the same year)
of the GOMEX Range Complex Monitoring Plan, described above. Data
collection methods will be standardized across range complexes to allow
for comparison in different geographic locations. Although additional
information will also be gathered, the MMOs collecting marine mammal
data pursuant to the GOMEX Range Complex Monitoring Plan shall, at a
minimum, provide the same marine mammal observation data required in
major range complex training exercises section of the Annual GOMEX
Range Complex Exercise Report referenced below.
The GOMEX Range Complex Monitoring Plan Report may be provided to
NMFS within a larger report that includes the required Monitoring Plan
Reports from multiple Range Complexes.
Annual GOMEX Range Complex Exercise Report
The Navy is in the process of improving the methods used to track
explosives used to provide increased granularity. The Navy will provide
the information described below for all of their explosive exercises.
Until the Navy is able to report in full the information below, they
will provide an annual update on the Navy's explosive tracking methods,
including improvements from the previous year.
(i) Total annual number of each type of explosive exercise (of
those identified as part of the ``specified activity'' in this final
rule) conducted in the GOMEX Range Complex.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.)
for each explosive type.
GOMEX Range Complex 5-yr Comprehensive Report
The Navy shall submit to NMFS a draft report that analyzes and
summarizes all of the multi-year marine mammal information gathered
during the GOMEX Range Complex exercises for which annual reports are
required (Annual GOMEX Range Complex Exercise Reports and GOMEX Range
Complex Monitoring Plan Reports). This report will be submitted at the
end of the fourth year of the rule (March 2014), covering activities
that have occurred through September 1, 2013.
Estimated Take of Marine Mammals
With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A harassment
(injury), or mortality, including an identification of the number and
types of take that could occur by Level A or B harassment or mortality)
and to prescribe other means of affecting the least practicable adverse
impact on such species or stock and its habitat (i.e., mitigation); (2)
to determine whether the specified activity will have a negligible
impact on the affected species or stocks of marine mammals (based on
the likelihood that the activity will adversely affect the species or
stock through effects on annual rates of recruitment or survival); (3)
to determine whether the specified activity will have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses (however, there are no subsistence communities that
would be affected in the GOMEX Range Complex, so this determination is
inapplicable for this rulemaking); and (4) to prescribe requirements
pertaining to monitoring and reporting.
In the Assessment of Marine Mammal Response to Anthropogenic Sound
section, NMFS' analysis identified the lethal responses, physical
trauma, sensory impairment (permanent and temporary threshold shifts
and acoustic masking), physiological responses (particular stress
responses), and behavioral responses that could potentially result from
explosive ordnance exposures. In this section, we will relate the
potential effects to marine mammals from 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
GOMEX Range Complex.
Take Calculations
In estimating the potential for marine mammals to be exposed to an
acoustic source, the Navy completed the following actions:
(1) Evaluated potential effects within the context of existing and
current regulations, thresholds, and criteria;
(2) Identified all acoustic sources that will be used during Navy
training activities;
(3) Identified the location, season, and duration of the action to
determine which marine mammal species are likely to be present;
(4) Determined the estimated number of marine mammals (i.e.,
density) of each species that will likely be present in the respective
OPAREAs during the Navy training activities;
(5) Applied the applicable acoustic threshold criteria to the
predicted sound exposures from the proposed activity. The results were
then evaluated to
[[Page 33979]]
determine whether the predicted sound exposures from the acoustic model
might be considered harassment; and
(6) Considered potential harassment within the context of the
affected marine mammal population, stock, and species to assess
potential population viability. Particular focus on recruitment and
survival are provided to analyze whether the effects of the action can
be considered to have a negligible impact on marine mammal species or
stocks.
Starting with a sound source, the attenuation of an emitted sound
due to propagation loss is determined. Uniform animal distribution is
overlaid onto the calculated sound fields to assess if animals are
physically present at sufficient received sound levels to be considered
``exposed'' to the sound. If the animal is determined to be exposed,
two possible scenarios must be considered with respect to the animal's
physiology--effects on the auditory system and effects on non-auditory
system tissues. These are not independent pathways and both must be
considered since the same sound could affect both auditory and non-
auditory tissues. Note that the model does not account for any animal
response; rather the animals are considered stationary, accumulating
energy until the threshold is tripped.
These modeling results do not take into account the mitigation
measures (detailed in the Mitigation Measure section above) that lower
the potential for exposures to occur given standard range clearance
procedures and the likelihood that these species can be readily
detected (e.g., small animals move quickly throughout the water column
and are often seen riding the bow wave of large ships or in large
groups). Nevertheless, based on the modeling results, 2 Atlantic
spotted dolphins, 19 bottlenose dolphins, 6 Clymene dolphins, 2 melon-
headed whales, 26 pantropical spotted dolphins, 2 Risso's dolphins, 27
spinner dolphins, and 8 striped dolphins would be taken by Level B
harassment (sub-TTS and TTS) as a result of the Navy training
activities in the GOMEX Range Complex. In addition, 1 individual each
of pantropical spotted dolphin and spinner dolphin would be taken by
Level A harassment (injury). Please refer to Table 6 for a detailed
list of marine mammals that would be taken as a result of the proposed
Navy training activities within the GOMEX Range Complex. NMFS does not
believe that there would be any mortality of any marine mammal
resulting from the proposed training activities due to the sparse
training activities and the implementation of mitigation and monitoring
measures described above. Therefore, mortality of marine mammals would
not be authorized. With the mitigation and monitoring measures
implemented, the estimated take could be further reduced.
Effects on Marine Mammal Habitat
Marine mammal habitat and prey species could be affected by the
explosive ordnance testing and the sound generated by such activities.
Based on the analysis contained in the Navy's DEIS and the information
below, NMFS has determined that the GOMEX Range Complex training
activities will not have adverse or long-term impacts on marine mammal
habitat or prey species.
Unless the sound source or explosive detonation is stationary and/
or continuous over a long duration in one area, the effects of
underwater detonation and its associated sound are generally considered
to have a less severe impact on marine mammal habitat than the physical
alteration of the habitat. Marine mammals may be temporarily displaced
from areas where Navy training is occurring, but the area will be
utilized again after the activities have ceased.
Effects on Food Resources
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 could leave the area temporarily. 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. In most situations, cause of death in
fish 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 fish are generally less
susceptible to death or injury than small fish. Moreover, elongated
forms that are round in cross section are less at risk than deep-bodied
forms. Orientation of fish relative to the shock wave may also affect
the extent of injury. Open water pelagic fish (e.g., mackerel) seem to
be less affected than reef fishes. The results of most studies are
dependent upon specific biological, environmental, explosive, and data
recording factors.
The huge variation in fish populations, including numbers, species,
sizes, and orientation and range from the detonation point, makes it
very difficult to accurately predict mortalities at any specific site
of detonation. A total of 7 hours explosive detonation events, with
each event lasting for approximately 1 hour, are widely dispersed in
two locations within the large GOMEX study area over the seasons for
each year. Most fish species experience a large number of natural
mortalities, especially during early life-stages, and any small level
of mortality caused by the GOMEX Range Complex training exercises
involving explosives will likely be insignificant to the population as
a whole.
Therefore, potential impacts to marine mammal food resources within
the GOMEX Range Complex are expected to be minimal given both the very
geographic and spatially limited scope of most Navy at-sea activities
including underwater detonations, and the high biological productivity
of these resources. No short or long term effects to marine mammal food
resources from Navy activities are anticipated within the GOMEX Range
Complex.
Analysis and Negligible Impact Determination
Pursuant to NMFS' regulations implementing the MMPA, an applicant
is required to estimate the number of animals that will be ``taken'' by
the specified activities (i.e., takes by harassment only, or takes by
harassment, injury, and/or death). This estimate informs the analysis
that NMFS must perform to determine whether the activity will have a
``negligible impact'' on the species or stock. Level B (behavioral)
harassment occurs at the level of the individual(s) and does not assume
any resulting population-level consequences, though there are known
avenues through which behavioral disturbance of individuals can result
in population-level effects. 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,
[[Page 33980]]
etc.), the context of any responses (critical reproductive time or
location, migration, etc.), as well as the number and nature of
estimated Level A takes, the number of estimated mortalities, and
effects on habitat.
The Navy's specified activities have been described based on best
estimates of the planned detonation events the Navy would conduct for
the proposed GOMEX Range Complex training activities. The events are
generally short in duration, with each of the seven annual events
lasting for about 1 hour. Taking the above into account, along with the
fact that NMFS anticipates no mortalities (and few injuries) to result
from the action, the fact that there are no specific areas of
reproductive importance for marine mammals recognized within the GOMEX
Range Complex, the sections discussed below, and dependent upon the
implementation of the proposed mitigation measures, NMFS has determined
that Navy training exercises utilizing underwater detonations will have
a negligible impact on the affected marine mammal species and stocks
present in the GOMEX Range Complex Study Area.
NMFS' analysis of potential behavioral harassment, temporary
threshold shifts, permanent threshold shifts, injury, and mortality to
marine mammals as a result of the GOMEX Range Complex training
activities was provided earlier in this proposed rule and is analyzed
in more detail below.
Behavioral Harassment
The Navy plans a total of 1 BOMBEX training event (with 4 bombs in
succession for 1 hour) and 6 small arms training events (with 20 live
grenades for each 1-hour event) annually. The total training exercises
proposed by the Navy in the GOMEX Range Complex amount to approximately
7 hours per year. These detonation events are widely dispersed in two
of the designated sites within the GOMEX Range Complex Study Area. The
probability that detonation events will overlap in time and space with
marine mammals is low, particularly given the densities of marine
mammals in the GOMEX Range Complex Study Area and the implementation of
monitoring and mitigation measures. Moreover, NMFS does not expect
animals to experience repeat exposures to the same sound source as
animals will likely move away from the source after being exposed. In
addition, these isolated exposures, when received at distances of Level
B behavioral harassment (i.e., 177 dB re 1 microPa \2\-sec), are
expected to cause brief startle reactions or short-term behavioral
modification by the animals. These brief reactions and behavioral
changes are expected to disappear when the exposures cease. Therefore,
these levels of received impulse noise from detonation are not expected
to affect annual rates or recruitment or survival.
TTS
NMFS and the Navy have estimated that individuals of some species
of marine mammals may sustain some level of temporarily threshold shift
TTS from underwater detonations. TTS can last from a few minutes to
days, be of varying degree, and occur across various frequency
bandwidths. The TTS sustained by an animal is primarily classified by
three characteristics:
Frequency--Available data (of mid-frequency hearing
specialists exposed to mid- to high-frequency sounds--Southall et al.,
2007) suggest that most TTS occurs in the frequency range of the source
up to one octave higher than the source (with the maximum TTS at \1/2\-
octave above).
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). Since the impulse from detonation is
extremely brief, an animal would have to approach very close to the
detonation site to increase the received SEL. The threshold for the
onset of TTS for detonations is a dual criteria: 182 dB re 1
microPa\2\-sec or 23 psi, which might be received at distances from
345-2,863 m from the centers of detonation based on the types of NEW
involved to receive the SEL that causes TTS compared to similar source
level with longer durations (such as sonar signals).
Duration of TTS (Recovery time)--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.
Although the degree of TTS depends on the received noise
levels and exposure time, all studies show that TTS is reversible and
animals' sensitivity is expected to recover fully in minutes to hours.
Therefore, NMFS expects that TTS would not affect annual rates of
recruitment or survival.
Acoustic Masking or Communication Impairment
As discussed above, it is also possible that anthropogenic sound
could result in masking of marine mammal communication and navigation
signals. 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. Impulse sounds from underwater
detonation are extremely brief and the majority of most animals'
vocalizations would not be masked. Therefore, masking effects from
underwater detonation are expected to be minimal and unlikely. If
masking or communication impairment were to occur briefly, it would be
in the frequency ranges below 100 Hz, which overlaps with some
mysticete vocalizations; however, it would likely not mask the entirety
of any particular vocalization or communication series because of the
short impulse.
PTS, Injury, or Mortality
The Navy's model estimated that 1 pantropical spotted dolphin and 1
spinner dolphin could experience 50-percent tympanic membrane rupture
or slight lung injury (Level A harassment) as a result of the training
activities utilizing underwater detonation by BOMBEX in the GOMEX Range
Complex Study Area. However, these estimates do not take into
consideration the proposed mitigation and monitoring measures. For
underwater detonations, the animals have to be within an area between
certain injury zones of influence (ZOI) to experience Level A
harassment. Such injury ZOI varies from 0.09 km\2\ to 4.98 km\2\ (or at
distances between 169 m to 1,259 m from the center of detonation)
depending on the types of munition used and the season of the action.
Though it is possible that Navy observers could fail to detect an
animal at a distance of more than 1 km (an injury ZOI during BOMBEX,
which is planned to have 1 event annually), all injury ZOIs from small
arms trainings are smaller than 0.1 km\2\ (178 m in radius) and NMFS
believes it is unlikely that any marine mammal could be detected by
lookouts/watchstanders or MMOs. As discussed previously, the Navy plans
to utilize aerial or vessel surveys to detect marine mammals for
mitigation implementation and indicated that they are capable of
effectively monitoring safety zones.
Based on these assessments, NMFS determined that approximately 2
Atlantic spotted dolphins, 19 bottlenose dolphins, 6 Clymene dolphins,
2 melon-headed whales, 26 pantropical spotted dolphins, 2 Risso's
dolphins, 27 spinner dolphins, and 8 striped dolphins could be affected
by Level B harassment (TTS and sub-TTS) as a result of the proposed
GOMEX Range Complex training activities. These numbers represent
[[Page 33981]]
approximately 0.01%, 0.51%, 0.09%, 0.09%, 0.08%, 0.13%, 1.36%, and
0.24% of Atlantic spotted dolphins, bottlenose dolphins (Gulf of Mexico
oceanic stock), Clymene dolphins, melon-headed whales, pantropical
spotted dolphins, Risso's dolphins, spinner dolphins, and striped
dolphins, respectively, in the vicinity of the proposed GOMEX Range
Complex Study Area (calculation based on NMFS 2007 U.S. Atlantic and
Gulf of Mexico Marine Mammal Stock Assessment).
In addition, the Level A takes of 1 pantropical spotted dolphin and
1 spinner dolphin represent 0.0029% and 0.0503% of these species,
respectively, in the vicinity of the proposed GOMEX Range Complex Study
Area (calculation based on NMFS 2007 U.S. Atlantic and Gulf of Mexico
Marine Mammal Stock Assessment). Given these very small percentages,
NMFS does not expect there to be any long-term adverse effect on the
populations of the aforementioned dolphin species. No marine mammals
are expected to be killed as a result of these activities.
Additionally, the aforementioned take estimates do not account for
the implementation of mitigation measures. With the implementation of
mitigation and monitoring measures, NMFS expects that the takes would
be reduced further. Coupled with the fact that these impacts will
likely not occur in areas and times critical to reproduction, NMFS has
preliminarily determined that the total taking over the 5-year period
of the regulations and subsequent LOAs from the Navy's GOMEX Range
Complex training activities will have a negligible impact on the marine
mammal species and stocks present in the GOMEX Range Complex Study
Area.
Subsistence Harvest of Marine Mammals
NMFS has preliminarily determined that the issuance of 5-year
regulations and subsequent LOAs (as warranted) for Navy training
exercises in the GOMEX Range Complex would not have an unmitigable
adverse impact on the availability of the affected species or stocks
for subsistence use since there are no such uses in the specified area.
ESA
There are six ESA-listed marine mammal species that are listed as
endangered under the ESA with confirmed or possible occurrence in the
GOMEX Range Complex: humpback whale, North Atlantic right whale, fin
whale, blue whale, sei whale, and sperm whale. 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 training exercises in the GOMEX Range
Complex. Consultation will be concluded prior to a determination on the
issuance of the final rule and an LOA.
NEPA
The Navy is preparing an Environmental Impact Statement (EIS) for
the proposed GOMEX Range Complex training activities. A draft EIS was
released in November 2008 and it is available at http://www.gomexrangecomplexeis.com/. NMFS is a cooperating agency (as defined
by the Council on Environmental Quality (40 CFR 1501.6)) in the
preparation of the EIS. NMFS has reviewed the Draft EIS and will be
working with the Navy on the Final EIS (FEIS).
NMFS intends to adopt the Navy's FEIS, if adequate and appropriate,
and we believe that the Navy's FEIS will allow NMFS to meet its
responsibilities under NEPA for the issuance of the 5-year regulation
and LOAs for training activities in the GOMEX Range Complex. If the
Navy's FEIS is not adequate, NMFS will supplement the existing analysis
and documents to ensure that we comply with NEPA prior to the issuance
of the final rule or LOA.
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 measures, NMFS preliminarily
finds that the total taking from Navy training exercises utilizing
underwater explosives in the GOMEX Range Complex will have a negligible
impact on the affected marine mammal 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.
Classification
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
rule, if adopted, would not have a significant economic impact on a
substantial number of small entities. The Regulatory Flexibility Act
requires Federal agencies to prepare an analysis of a rule's impact on
small entities whenever the agency is required to publish a notice of
proposed rulemaking. However, a Federal agency may certify, pursuant to
5 U.S.C. Section 605 (b), that the action will not have a significant
economic impact on a substantial number of small entities. The Navy is
the 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. This rulemaking authorizes
the take of marine mammals incidental to a specified activity. The
specified activity defined in the proposed rule includes the use of
underwater detonations during training activities that are only
conducted by the U.S. Navy. Additionally, the proposed regulations are
specifically written for ``military readiness'' activities, as defined
by the NDAA, which means they cannot apply to small businesses.
Consequently, any requirements imposed by a Letter of Authorization
issued pursuant to these regulations, and any monitoring or reporting
requirements imposed by these regulations, will be applicable only to
the Navy. Because this action, if adopted, would directly affect the
Navy and not a small entity, NMFS concludes the action would not result
in a significant economic impact on a substantial number of small
entities. As a result, an initial regulatory flexibility analysis is
not required and none has been prepared.
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: July 7, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 218 is proposed
to be amended as follows:
PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 218 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
[[Page 33982]]
2. Subpart D is added to part 218 to read as follows:
Subpart D--Taking Marine Mammals Incidental to U.S. Navy Training in
the Gulf of Mexico Range Complex (GOMEX Range Complex)
Sec.
218.30 Specified activity and specified geographical area.
218.31 Permissible methods of taking.
218.32 Prohibitions.
218.33 Mitigation.
218.34 Requirements for monitoring and reporting.
218.35 Applications for Letters of Authorization.
218.36 Letters of Authorization.
218.37 Renewal of Letters of Authorization and adaptive management.
218.38 Modifications to Letters of Authorization.
Subpart D--Taking Marine Mammals Incidental to U.S. Navy Training
in the Gulf of Mexico Range Complex (GOMEX Range Complex)
Sec. 218.30 Specified activity and specified geographical area.
(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occur incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs within the GOMEX Range Complex Operation Areas (OPAREAs),
which is located along the southern east coast of the U.S. described in
Figures 1 and 2 of the LOA application and consist of the BOMBEX Hotbox
(surface and subsurface waters) and underwater detonation (UNDET) Area
E3 (surface and subsurface waters), located within the territorial
waters off Padre Island, Texas, near Corpus Christi NAS.
(1) The northernmost boundary of the BOMBEX Hotbox is located 23 nm
(42.6 km) from the coast of the Florida panhandle at latitude 30[deg]
N, the eastern boundary is approximately 200 nm (370.4 km) from the
coast of the Florida peninsula at longitude 86[deg]48' W.
(2) The UNDET Area E3 is a defined surface and subsurface area
located in the waters south of Corpus Christi NAS and offshore of Padre
Island, Texas. The westernmost boundary is located 7.5 nm (13.9 km)
from the coast of Padre Island at 97[deg]9'33' W and 27[deg]24'26'' N
at the westernmost corner. It lies entirely within the territorial
waters (0 to 12 nm, or 0 to 22.2 km) of the U.S. and the majority of it
lies within Texas state waters (0 to 9 nm, or 0 to 16.7 km). It is a
very shallow water training area with depths ranging from 20 to 26 m.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities within the designated
amounts of use:
(1) The detonation of the underwater explosives indicated in
paragraph (c)(1)(i) of this section conducted as part of the training
events indicated in paragraph (c)(1)(ii) of this section:
(i) Underwater Explosives:
(A) MK-83 (1,000 lb High Explosive bomb);
(B) MK3A2 anti-swimmer concussion grenades (0.5 lbs NEW).
(ii) Training Events:
(A) BOMBEX (Air-to-Surface)--up to 5 events over the course of 5
years (an average of 1 event per year, with 4 bombs in succession for
each event);
(B) Small Arms Training with MK3A2 anti-swimmer concussion
grenade--up to 30 events over the course of 5 years (an average 6
events per year, with 20 live grenades used for each event).
(2) [Reserved]
Sec. 218.31 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106
of this chapter and Sec. 218.36, the Holder of the Letter of
Authorization may incidentally, but not intentionally, take marine
mammals within the area described in Sec. 218.30(b), provided the
activity is in compliance with all terms, conditions, and requirements
of this subpart and the appropriate Letter of Authorization.
(b) The activities identified in Sec. 218.30(c) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 218.30(c) is limited to the following species, by
the indicated method of take and the indicated number of times:
(1) Level B Harassment:
(i) Bottlenose dolphin (Tursiops truncatus )--95 (an average of 19
annually);
(ii) Pantropical spotted dolphin (Stenella attenuata )--130 (an
average of 26 annually);
(iii) Clymene dolphin (S. clymene)--30 (an average of 6 annually);
(iv) Atlantic spotted dolphin (S. frontalis)--10 (an average of 2
annually);
(v) Spinner dolphin (S. longirostris)--135 (an average of 27
annually);
(vi) Striped dolphin (S. coeruleoalba)--40 (an average of 8
annually);
(vii) Risso's dolphin (Grampus griseus)--10 (an average of 2
annually); (viii) Melon-headed whales (Peponocephala electra)--10 (an
average of 2 annually);
(2) Level A Harassment (injury):
(i) Pantropical spotted dolphin--5 (an average of 1 annually);
(ii) Spinner dolphin--5 (an average of 1 annually);
Sec. 218.32 Prohibitions.
Notwithstanding takings contemplated in Sec. 218.31 and authorized
by a Letter of Authorization issued under Sec. 216.106 of this chapter
and Sec. 218.36, no person in connection with the activities described
in Sec. 218.30 may:
(a) Take any marine mammal not specified in Sec. 218.31(c);
(b) Take any marine mammal specified in Sec. 218.31(c) other than
by incidental take as specified in Sec. 218.31(c)(1) and (2);
(c) Take a marine mammal specified in Sec. 218.31(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 this Subpart or a Letter of Authorization issued under
Sec. 216.106 of this chapter and Sec. 218.36.
Sec. 218.33 Mitigation.
(a) When conducting training activities identified in Sec.
218.30(c), the mitigation measures contained in the Letter of
Authorization issued under Sec. 216.106 of this chapter and Sec.
218.36 must be implemented. These mitigation measures include, but are
not limited to:
(1) General Maritime Measures:
(i) Personnel Training--Lookouts:
(A) All bridge personnel, Commanding Officers, Executive Officers,
officers standing watch on the bridge, maritime patrol aircraft
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine
Species Awareness Training (MSAT).
(B) Navy lookouts shall undertake extensive training to qualify as
a watchstander in accordance with the Lookout Training Handbook
(NAVEDTRA 12968-D).
(C) 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).
(D) Lookouts shall be trained in the most effective means to ensure
quick and effective communication within the command structure to
facilitate implementation of protective measures if marine species are
spotted.
[[Page 33983]]
(E) Surface lookouts shall 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 shall always start at the
forward part of the sector and search aft (toward the back). To search
and scan, the lookout shall 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 shall scan for approximately five
seconds in as many small steps as possible across the field seen
through the binoculars. They shall 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 shall be lowered to allow the eyes to rest
for a few seconds, and then the lookout shall search back across the
sector with the naked eye.
(F) At night, lookouts shall 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 shall 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.
Lookouts shall also have night vision devices available for use.
(ii) Operating Procedures & Collision Avoidance:
(A) Prior to major exercises, a Letter of Instruction, Mitigation
Measures Message or Environmental Annex to the Operational Order shall
be issued to further disseminate the personnel training requirement and
general marine species mitigation measures.
(B) Commanding Officers shall make use of marine species detection
cues and information to limit interaction with marine species to the
maximum extent possible consistent with safety of the ship.
(C) While underway, surface vessels shall have at least two
lookouts with binoculars; surfaced submarines shall have at least one
lookout with binoculars. Lookouts already posted for safety of
navigation and man-overboard precautions may be used to fill this
requirement. As part of their regular duties, lookouts shall watch for
and report to the OOD the presence of marine mammals.
(D) Personnel on lookout shall employ visual search procedures
employing a scanning method in accordance with the Lookout Training
Handbook (NAVEDTRA 12968-D).
(E) After sunset and prior to sunrise, lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook
(NAVEDTRA 12968-D).
(F) While in transit, naval vessels shall be alert at all times,
use extreme caution, and proceed at a ``safe speed'' (the minimum speed
at which mission goals or safety will not be compromised) so that the
vessel can take proper and effective action to avoid a collision with
any marine animal and can be stopped within a distance appropriate to
the prevailing circumstances and conditions.
(G) When marine mammals have been sighted in the area, Navy vessels
shall increase vigilance and implement measures to avoid collisions
with marine mammals and avoid activities that might result in close
interaction of naval assets and marine mammals. Such measures shall
include changing speed and/or course direction and would be dictated by
environmental and other conditions (e.g., safety or weather).
(H) Naval vessels shall maneuver to keep at least 500 yds (460 m)
away from any observed whale and avoid approaching whales head-on. This
requirement does not apply if a vessel's safety is threatened, such as
when change of course will create an imminent and serious threat to a
person, vessel, or aircraft, and to the extent vessels are restricted
in their ability to maneuver. Vessels shall take reasonable steps to
alert other vessels in the vicinity of the whale.
(I) Where feasible and consistent with mission and safety, vessels
shall avoid closing to within 200-yd (183 m) of marine mammals other
than whales (whales addressed above).
(J) Navy aircraft participating in exercises at sea shall conduct
and maintain, when operationally feasible and safe, surveillance for
marine species of concern as long as it does not violate safety
constraints or interfere with the accomplishment of primary operational
duties. Marine mammal detections shall be immediately reported to
assigned Aircraft Control Unit for further dissemination to ships in
the vicinity of the marine species as appropriate where it is
reasonable to conclude that the course of the ship will likely result
in a closing of the distance to the detected marine mammal.
(K) All vessels shall maintain logs and records documenting
training operations should they be required for event reconstruction
purposes. Logs and records shall be kept for a period of 30 days
following completion of a major training exercise.
(2) Coordination and Reporting Requirements:
(i) The Navy shall coordinate with the local NMFS Stranding
Coordinator for any unusual marine mammal behavior and any stranding,
beached live/dead, or floating marine mammals that may occur at any
time during or within 24 hours after completion of training activities.
(ii) The Navy shall follow internal chain of command reporting
procedures as promulgated through Navy instructions and orders.
(3) Proposed Mitigation Measures for Specific At-sea Training
Events--If a marine mammal is injured or killed as a result of the
proposed Navy training activities (e.g., instances in which it is clear
that munitions explosions caused death), the Navy shall suspend its
activities immediately and report such incident to NMFS.
(i) Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs
explosive bombs):
(A) This activity shall only occur in W-155A/B (hot box) area of
the GOMEX Range Complex OPAREA.
(B) Aircraft shall visually survey the target and buffer zone for
marine mammals prior to and during the exercise. The survey of the
impact area shall be made by flying at 1,500 ft (457 m) altitude or
lower, if safe to do so, and at the slowest safe speed. Release of
ordnance through cloud cover is prohibited; aircraft must be able to
actually see ordnance impact areas.
(C) A buffer zone of a 5,100-yard (4,663-m) radius shall be
established around the intended target zone. The exercises shall be
conducted only if the buffer zone is clear of sighted marine mammals.
(D) At-sea BOMBEXs using live ordnance shall occur during daylight
hours only.
(ii) Small Arms Training--Explosive hand grenades (such as the
MK3A2 grenades):
(A) Lookouts shall visually survey for marine mammals prior to and
during exercise.
(B) A 200-yd (182-m) radius buffer zone shall be established around
the intended target. The exercises shall be conducted only if the
buffer zone is clear of marine mammals.
(b) [Reserved]
Sec. 218.34 Requirements for monitoring and reporting.
(a) The Holder of the Letter of Authorization issued pursuant to
Sec. 216.106 of this chapter and Sec. 218.36 for activities described
in Sec. 218.30(c) is required to cooperate with the NMFS when
monitoring the impacts of the activity on marine mammals.
(b) The Holder of the Authorization must notify NMFS immediately
(or as soon as clearance procedures allow) if
[[Page 33984]]
the specified activity identified in Sec. 218.30(c) is thought to have
resulted in the mortality or serious injury of any marine mammals, or
in any take of marine mammals not identified in Sec. 218.31(c).
(c) The Navy must conduct all monitoring and required reporting
under the Letter of Authorization, including abiding by the GOMEX Range
Complex Monitoring Plan, which is incorporated herein by reference, and
which requires the Navy to implement, at a minimum, the monitoring
activities summarized below.
(1) Vessel or aerial surveys.
(i) The Holder of this Authorization shall visually survey a
minimum of 1 explosive event per year. One of the vessel or aerial
surveys should involve NMFS-approved marine mammal observers (MMOs). If
it is impossible to conduct the required surveys due to lack of
training exercises, the missed annual survey requirement shall roll
into the subsequent year to ensure that the appropriate number of
surveys (i.e., total of five) occurs over the 5-year period of
effectiveness of this subject.
(ii) When operationally feasible, for specified training events,
aerial or vessel surveys shall be used 1-2 days prior to, during (if
reasonably safe), and 1-5 days post detonation.
(iii) Surveys shall include any specified exclusion zone around a
particular detonation point plus 2,000 yards beyond the border of the
exclusion zone (i.e., the circumference of the area from the border of
the exclusion zone extending 2,000 yards outwards). For vessel based
surveys a passive acoustic system (hydrophone or towed array) could be
used to determine if marine mammals are in the area before and/or after
a detonation event.
(iv) When conducting a particular survey, the survey team shall
collect:
(A) Location of sighting;
(B) Species (if not possible, indicate whale, dolphin or pinniped);
(C) Number of individuals;
(D) Whether calves were observed;
(E) Initial detection sensor;
(F) Length of time observers maintained visual contact with marine
mammal;
(G) Wave height;
(H) Visibility;
(I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
(J) Distance of marine mammal from actual detonations (or target
spot if not yet detonated);
(K) Observed behavior--Watchstanders shall report, in plain
language and without trying to categorize in any way, the observed
behavior of the animal(s) (such as animal closing to bow ride,
paralleling course/speed, floating on surface and not swimming, etc.),
including speed and direction;
(L) Resulting mitigation implementation--Indicate whether explosive
detonations were delayed, ceased, modified, or not modified due to
marine mammal presence and for how long; and
(M) If observation occurs while explosives are detonating in the
water, indicate munitions type in use at time of marine mammal
detection.
(2) Passive acoustic monitoring--the Navy shall conduct passive
acoustic monitoring when operationally feasible.
(i) Any time a towed hydrophone array is employed during shipboard
surveys the towed array shall be deployed during daylight hours for
each of the days the ship is at sea.
(ii) The towed hydrophone array shall be used to supplement the
ship-based systematic line-transect surveys (particularly for species
such as beaked whales that are rarely seen).
(iii) The array should have the capability of detecting low
frequency vocalizations (<1,000 Hz) for baleen whales and relatively
high frequency (up to 30 kHz) for odontocetes. The use of two
simultaneously deployed arrays can also allow more accurate
localization and determination of diving patterns.
(3) Marine mammal observers on Navy platforms:
(i) As required in Sec. 218.34(c)(1), MMOs who are selected for
aerial or vessel surveys shall be placed on a Navy platform during one
of the explosive exercises being monitored per year, the other
designated exercise shall be monitored by the Navy lookouts/
watchstanders.
(ii) The MMO must possess expertise in species identification of
regional marine mammal species and experience collecting behavioral
data.
(iii) MMOs shall not be placed aboard Navy platforms for every Navy
training event or major exercise, but during specifically identified
opportunities deemed appropriate for data collection efforts. The
events selected for MMO participation shall take into account safety,
logistics, and operational concerns.
(iv) MMOs shall observe from the same height above water as the
lookouts.
(v) The MMOs shall not be part of the Navy's formal reporting chain
of command during their data collection efforts; Navy lookouts shall
continue to serve as the primary reporting means within the Navy chain
of command for marine mammal sightings. The only exception is that if
an animal is observed within the shutdown zone that has not been
observed by the lookout, the MMO shall inform the lookout of the
sighting and the lookout shall take the appropriate action through the
chain of command.
(vi) The MMOs shall collect species identification, behavior,
direction of travel relative to the Navy platform, and distance first
observed. Information collected by MMOs should be the same as those
collected by Navy lookout/watchstanders described in Sec.
218.34(c)(1)(iv).
(d) The Navy shall complete an Integrated Comprehensive Monitoring
Program (ICMP) Plan in 2009. This planning and adaptive management tool
shall include:
(1) A method for prioritizing monitoring projects that clearly
describes the characteristics of a proposal that factor into its
priority.
(2) A method for annually reviewing, with NMFS, monitoring results,
Navy R&D, and current science to use for potential modification of
mitigation or monitoring methods.
(3) A detailed description of the Monitoring Workshop to be
convened in 2011 and how and when Navy/NMFS will subsequently utilize
the findings of the Monitoring Workshop to potentially modify
subsequent monitoring and mitigation.
(4) An adaptive management plan,
(5) A method for standardizing data collection for GOMEX Range
Complex and across range complexes,
(e) General Notification of Injured or Dead Marine Mammals--Navy
personnel shall ensure that NMFS (regional stranding coordinator) is
notified immediately (or as soon as clearance procedures allow) if an
injured or dead marine mammal is found during or shortly after, and in
the vicinity of, any Navy training exercise utilizing underwater
explosive detonations. The Navy shall provide NMFS with species or
description of the animal(s), the condition of the animal(s) (including
carcass condition if the animal is dead), location, time of first
discovery, observed behaviors (if alive), and photo or video (if
available).
(f) Annual GOMEX Range Complex Monitoring Plan Report--The Navy
shall submit a report annually on November 1 describing the
implementation and results (through September 1 of the same year) of
the GOMEX Range Complex Monitoring Plan. Data collection methods shall
be standardized across range complexes to allow for comparison in
different geographic locations. Although
[[Page 33985]]
additional information will also be gathered, the MMOs collecting
marine mammal data pursuant to the GOMEX Range Complex Monitoring Plan
shall, at a minimum, provide the same marine mammal observation data
required in the data required in Sec. 218.34(g). The GOMEX Range
Complex Monitoring Plan Report may be provided to NMFS within a larger
report that includes the required Monitoring Plan Reports from GOMEX
Range Complex and multiple range complexes.
(g) Annual GOMEX Range Complex Exercise Report--The Navy shall
provide the information described below for all of their explosive
exercises. Until the Navy is able to report in full the information
below, they shall provide an annual update on the Navy's explosive
tracking methods, including improvements from the previous year.
(1) Total annual number of each type of explosive exercise (of
those identified as part of the ``specified activity'' in this final
rule) conducted in the GOMEX Range Complex.
(2) Total annual expended/detonated rounds (missiles, bombs, etc.)
for each explosive type.
(h) GOMEX Range Complex 5-yr Comprehensive Report--The Navy shall
submit to NMFS a draft report that analyzes and summarizes all of the
multi-year marine mammal information gathered during the GOMEX Range
Complex exercises for which annual reports are required (Annual GOMEX
Range Complex Exercise Reports and GOMEX Range Complex Monitoring Plan
Reports). This report shall be submitted at the end of the fourth year
of the rule (March 2014), covering activities that have occurred
through September 1, 2013.
(i) The Navy shall respond to NMFS comments and requests for
additional information or clarification on the GOMEX Range Complex
Comprehensive Report, the Annual GOMEX Range Complex Exercise Report,
or the Annual GOMEX Range Complex Monitoring Plan Report (or the multi-
Range Complex Annual Monitoring Plan Report, if that is how the Navy
chooses to submit the information) if submitted within 3 months of
receipt. These reports will be considered final after the Navy has
addressed NMFS' comments or provided the requested information, or
three months after the submittal of the draft if NMFS does not comment
by then.
(j) In 2011, the Navy shall convene a Monitoring Workshop in which
the Monitoring Workshop participants will be asked to review the Navy's
Monitoring Plans and monitoring results and make individual
recommendations (to the Navy and NMFS) of ways of improving the
Monitoring Plans. The recommendations shall be reviewed by the Navy, in
consultation with NMFS, and modifications to the Monitoring Plan shall
be made, as appropriate.
Sec. 218.35 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to these regulations,
the U.S. citizen (as defined by Sec. 216.103 of this chapter)
conducting the activity identified in Sec. 218.30(a) (the U.S. Navy)
must apply for and obtain either an initial Letter of Authorization in
accordance with Sec. 218.26 or a renewal under Sec. 218.27.
Sec. 218.36 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 218.37.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization will be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).
Sec. 218.37 Renewal of Letters of Authorization and adaptive
management.
(a) A Letter of Authorization issued under Sec. Sec. 216.106 and
218.36 of this chapter for the activity identified in Sec. 218.30(c)
will be renewed annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 218.35 shall be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12 months;
(2) Timely receipt of the monitoring reports required under Sec.
218.34; and
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 218.33 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 218.36 of this
chapter, were undertaken and will be undertaken during the upcoming
annual period of validity of a renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. 216.106 of this chapter and Sec. 218.37 indicates that a
substantial modification to the described work, mitigation or
monitoring undertaken during the upcoming season will occur, the NMFS
will provide the public a period of 30 days for review and comment on
the request. Review and comment on renewals of Letters of Authorization
are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
(d) NMFS, in response to new information and in consultation with
the Navy, may modify the mitigation or monitoring measures in
subsequent LOAs if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of mitigation and monitoring set
forth in the preamble of these regulations. Below are some of the
possible sources of new data that could contribute to the decision to
modify the mitigation or monitoring measures:
(1) Results from the Navy's monitoring from the previous year
(either from GOMEX Study Area or other locations).
(2) Findings of the Monitoring Workshop that the Navy will convene
in 2011 (Sec. 218.34(j)).
(3) Compiled results of Navy funded research and development (R&D)
studies (presented pursuant to the ICMP (Sec. 218.34(d)).
(4) Results from specific stranding investigations (either from the
GOMEX Range Complex Study Area or other locations).
(5) Results from general marine mammal and sound research (funded
by the Navy (described below) or otherwise).
(6) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not authorized by these regulations
or subsequent Letters of Authorization.
Sec. 218.38 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive
[[Page 33986]]
modification (including withdrawal or suspension) to the Letter of
Authorization by NMFS, issued pursuant to Sec. Sec. 216.106 and 218.36
of this chapter and subject to the provisions of this subpart shall be
made until after notification and an opportunity for public comment has
been provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 218.37, without modification (except for the
period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 218.30(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 218.36 of this
chapter may be substantively modified without prior notification and an
opportunity for public comment. Notification will be published in the
Federal Register within 30 days subsequent to the action.
[FR Doc. E9-16537 Filed 7-13-09; 8:45 am]
BILLING CODE 3510-22-P