[Federal Register Volume 83, Number 220 (Wednesday, November 14, 2018)]
[Rules and Regulations]
[Pages 57076-57261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24042]
[[Page 57075]]
Vol. 83
Wednesday,
No. 220
November 14, 2018
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 218
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to the U.S. Navy Training and Testing Activities in the Atlantic Fleet
Training and Testing Study Area; Final Rule
Federal Register / Vol. 83 , No. 220 / Wednesday, November 14, 2018 /
Rules and Regulations
[[Page 57076]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 170720687-8965-02]
RIN 0648-BH06
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training and Testing Activities in the
Atlantic Fleet Training and Testing Study Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these
regulations pursuant to the Marine Mammal Protection Act (MMPA) to
govern the taking of marine mammals incidental to the training and
testing activities conducted in the Atlantic Fleet Training and Testing
(AFTT) Study Area over the course of five years beginning in November.
These regulations, which allow for the issuance of Letters of
Authorization (LOA) for the incidental take of marine mammals during
the described activities and timeframes, prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat,
and establish requirements pertaining to the monitoring and reporting
of such taking.
DATES: Effective from November 14, 2018 through November 13, 2023.
ADDRESSES: A copy of the Navy's application and supporting documents,
as well as a list of the references cited in this document, may be
obtained online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these documents, please call
the contact listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected
Resources, National Marine Fisheries Service, 1315 East-West Highway,
Silver Spring, MD 20910, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose of Regulatory Action
These regulations, issued under the authority of the MMPA (16
U.S.C. 1361 et seq.), establish a framework for authorizing the take of
marine mammals incidental to the Navy's training and testing activities
(categorized as military readiness activities) from the use of sonar
and other transducers, in-water detonations, air guns, impact pile
driving/vibratory extraction, and potential vessel strikes based on
Navy movement throughout the AFTT Study Area, which includes areas of
the western Atlantic Ocean along the East Coast of North America,
portions of the Caribbean Sea, and the Gulf of Mexico (GOMEX).
We received an application from the Navy requesting five-year
regulations and authorizations to incidentally take individuals of
multiple species and stocks of marine mammals (``Navy's rulemaking/LOA
application'' or ``Navy's application''). Take is anticipated to occur
by Level A and Level B harassment as well as a very small number of
serious injuries or mortalities incidental to the Navy's training and
testing activities.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional taking of small numbers of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity, as well as monitoring and reporting
requirements. Section 101(a)(5)(A) of the MMPA and the implementing
regulations at 50 CFR part 216, subpart I, provide the legal basis for
issuing this final rule and the subsequent LOAs. As directed by this
legal authority, this final rule contains mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Final Rule
Following is a summary of the major provisions of this final rule
regarding the Navy's activities. Major provisions include, but are not
limited to:
[ssquf] The use of defined powerdown and shutdown zones (based on
activity);
[ssquf] Measures to reduce or eliminate the likelihood of ship
strikes, especially for North Atlantic right whales (Eubalaena
glacialis) (NARW);
[ssquf] Operational limitations in certain areas and times that are
biologically important (i.e., for foraging, migration, reproduction)
for marine mammals;
[ssquf] Implementation of a Notification and Reporting Plan (for
dead, live stranded, or marine mammals struck by a vessel); and
[ssquf] Implementation of a robust monitoring plan to improve our
understanding of the environmental effects resulting from Navy training
and testing activities.
Additionally, the rule includes an adaptive management component
that allows for timely modification of mitigation or monitoring
measures based on new information, when appropriate.
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made and either regulations are issued or, if
the taking is limited to harassment, a notice of a proposed
authorization is provided to the public for review and the opportunity
to submit comments.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking, other means of
effecting the least practicable adverse impact on the species or
stocks, and requirements pertaining to the monitoring and reporting of
such takings are set forth. The MMPA states that the term ``take''
means to harass, hunt, capture, kill or attempt to harass, hunt,
capture, or kill any marine mammal.
The National Defense Authorization Act of 2004 (2004 NDAA) (Pub. L.
108-136) amended section 101(a)(5) of the MMPA to remove the ``small
numbers'' and ``specified geographical region'' provisions indicated
above and amended the definition of ``harassment'' as it applies to a
``military readiness activity,'' along with certain research
activities. The definitions of applicable MMPA statutory terms cited
above are included in the relevant sections below.
More recently, the John S. McCain National Defense Authorization
Act for Fiscal Year 2019 (2019 NDAA) (Pub. L. 115-232) amended the MMPA
to allow incidental take rules for military readiness activities to be
issued for up to seven years. That recent amendment of the MMPA does
not affect this final rule.
[[Page 57077]]
Summary and Background of Request
On June 16, 2017, NMFS received an application from the Navy for
authorization to take marine mammals incidental to training and testing
activities (categorized as military readiness activities) from the use
of sonar and other transducers, in-water detonations, air guns, and
impact pile driving/vibratory extraction in the AFTT Study Area. In
addition, the Navy requested incidental take authorization for up to
nine mortalities of four marine mammal species during ship shock
trials, and authorization for up to three takes by serious injury or
mortality from vessel strikes over the five-year period. On August 4,
2017, the Navy sent an amendment to its application, and the
application was found to be adequate and complete. On August 14, 2017
(82 FR 37851), we published a notice of receipt of application (NOR) in
the Federal Register, requesting comments and information related to
the Navy's request for 30 days. On March 13, 2018, we published a
notice of the proposed rulemaking (83 FR 10954) and requested comments
and information related to the Navy's request for 45 days. On April 9,
2018, a proposed rule correction (83 FR 15117), which corrected Table
4. Proposed Training was published in the Federal Register. Sections of
the table were missing from the preamble, specifically Amphibious
Warfare, Anti-Submarine Warfare, Expeditionary Warfare, Mine Warfare,
and a portion of Surface Warfare. Comments received during the NOR and
the proposed rulemaking comment periods are addressed in this final
rule. See further details addressing comments received in the Comments
and Responses section. On September 13, 2018, Navy provided NMFS with a
memorandum revising the takes by serious injury or mortality included
in the Navy's rulemaking/LOA application (Chapter 5, Section 5.2
Incidental Take Request from Vessel Strikes). Specifically, after
further analysis, the Navy withdrew the inclusion of the Western North
Atlantic stock of blue whale and the Northern GOMEX stock of sperm
whale from its request for authorization for take of three (3) large
whales by serious injury or mortality from vessel strike. The
information and assessment that supports this change is included in the
Estimated Take of Marine Mammals section.
The Navy requested two five-year LOAs, one for training and one for
testing activities to be conducted within the AFTT Study Area, which
includes areas of the western Atlantic Ocean along the East Coast of
North America, portions of the Caribbean Sea, and the GOMEX. Please
refer to the Navy's rulemaking/LOA application, specifically Figure
1.1-1 for a map of the AFTT Study Area and Figures 2.2-1 through Figure
2.2-3 for additional maps of the range complexes and testing ranges.
The following types of training and testing, which are classified
as military readiness activities pursuant to the MMPA, as amended by
the 2004 NDAA, will be covered under the regulations and associated
LOAs: amphibious warfare (in-water detonations), anti-submarine warfare
(sonar and other transducers, in-water detonations), expeditionary
warfare (in-water detonations), surface warfare (in-water detonations),
mine warfare (sonar and other transducers, in-water detonations), and
other warfare activities (sonar and other transducers, impact pile
driving/vibratory extraction, air guns). In addition, ship shock
trials, a specific testing activity related to vessel evaluation, will
be conducted. Also, ship strike by Navy vessels is addressed and
covered, as appropriate.
This will be NMFS' third series of rulemaking under the MMPA for
activities in the AFTT Study Area. NMFS published the first rule
effective from January 22, 2009 through January 22, 2014 on January 27,
2009 (74 FR 4844) and the second rule effective from November 14, 2013
through November 13, 2018 on December 4, 2013 (78 FR 73009). These
regulations are also valid for five years, from November 14, 2018,
through November 13, 2023.
The Navy's mission is to organize, train, equip, and maintain
combat-ready naval forces capable of winning wars, deterring
aggression, and maintaining freedom of the seas. This mission is
mandated by federal law (10 U.S.C. 5062), which ensures the readiness
of the naval forces of the United States. The Navy executes this
responsibility by establishing and executing training and testing
programs, including at-sea training and testing exercises, and ensuring
naval forces have access to the ranges, operating areas (OPAREAs), and
airspace needed to develop and maintain skills for conducting naval
activities.
The Navy plans to conduct training and testing activities within
the AFTT Study Area. The Navy has been conducting military readiness
activities in the AFTT Study Area for well over a century and with
active sonar for over 70 years. The tempo and types of training and
testing activities have fluctuated because of the introduction of new
technologies, the evolving nature of international events, advances in
warfighting doctrine and procedures, and changes in force structure
(organization of ships, weapons, and personnel). Such developments
influenced the frequency, duration, intensity, and location of required
training and testing activities. This rulemaking reflects the most up
to date compilation of training and testing activities deemed necessary
to accomplish military readiness requirements. The types and numbers of
activities included in the rule accounts for fluctuations in training
and testing in order to meet evolving or emergent military readiness
requirements.
These regulations cover training and testing activities that would
occur for a five-year period following the expiration of the current
MMPA authorization for the AFTT Study Area, which expires on November
13, 2018.
Description of the Specified Activity
Additional detail regarding the specified activity was provided in
our Federal Register notice of proposed rulemaking (83 FR 10954; March
13, 2018); please see that proposed rule or the Navy's application for
more information. Since the proposed rule, the Navy has removed one of
its testing activities in the Northeast Range Complex (four events for
Undersea Warfare Testing (USWT), which decreased the number of takes by
Level B harassment for the NARW by 115 takes annually. This change also
decreased take by Level B harassment by approximately 200 takes
annually for Endangered Species Act (ESA)-listed fin whale and 20 takes
annually for sei whales as well as approximately 10,000 takes annually
for harbor porpoise. NMFS and the Navy have also reached agreement on
additional mitigation measures since the proposed rule, which are
summarized below and discussed in greater detail in the Mitigation
Measures section of this rule.
The Navy agrees to implement pre- and post-event observations as
part of all in-water explosive event mitigations in the AFTT Study
Area. The Navy has expanded the Northeast (NE) NARW Mitigation Area to
match the updated NE NARW ESA-designated critical habitat. The Navy has
agreed to broadcast awareness notification messages with NARW Dynamic
Management Area information (e.g., location and dates) to alert vessels
to the possible presence of a NARW to further reduce the potential for
a vessel strike. The Navy has agreed to additional coordination to aid
in the implementation of procedural mitigation to minimize potential
interactions with NARW in the
[[Page 57078]]
Jacksonville Operating Area. The Navy will also report the total hours
and counts of active sonar and in-water explosives used in a Southeast
(SE) NARW Critical Habitat Special Reporting Area in its annual
training and testing activity reports submitted to NMFS. The Navy will
minimize use of explosives (March to September) in the Navy Cherry
Point Range Complex Nearshore Mitigation Area to the extent
practicable.
In addition, the Navy will not conduct major training exercises
(MTE) in the Gulf of Maine Planning Awareness Mitigation Area and the
GOMEX Planning Awareness Mitigation Area. The Navy will also implement
a 200 hour (hr)/year hull-mounted mid-frequency active sonar (MFAS) cap
in the Gulf of Maine Planning Awareness Mitigation Area. The Navy has
added a year-round, Bryde's Whale Mitigation Area, which will cover the
biologically important area (BIA) as described in NMFS' 2016 Status
Review (NMFS 2016) and implement a 200 hr/year hull-mounted MFAS cap
and restrict all explosives except for mine warfare activities events
in this mitigation area. The Navy has assessed and agreed to move the
ship shock trial box east of the Mid-Atlantic Planning Awareness
Mitigation Areas and move the northern GOMEX ship shock trial west of
the Bryde's Whale Mitigation Area, including five nmi buffers from the
mitigation areas.
The Navy has also revised its estimated serious injury or mortality
takes of large whales and, as a result, withdrawn its request for
serious injury or mortality incidental take for the Western North
Atlantic stock of blue whale and Northern GOMEX stock of sperm whale
due to the extremely low probability that vessel strike incidental to
the training and testing activities in the AFTT Study Area would occur.
Overview of Training and Testing Activities
The Navy routinely trains and tests in the AFTT Study Area in
preparation for national defense missions. Training and testing
activities and exercises covered in these regulations are summarized
below.
Primary Mission Areas
The Navy categorizes its activities into functional warfare areas
called primary mission areas. These activities generally fall into the
following seven primary mission areas: Air warfare; amphibious warfare;
anti-submarine warfare (ASW); electronic warfare; expeditionary
warfare; mine warfare (MIW); and surface warfare (SUW). Most activities
addressed in the AFTT Final Environmental Impact Statement/Overseas
Environmental Impact Statement (FEIS/OEIS) are categorized under one of
the primary mission areas; the testing community has three additional
categories of activities for vessel evaluation (including ship shock
trials), unmanned systems, and acoustic and oceanographic science and
technology. Activities that do not fall within one of these areas are
listed as ``other warfare activities.'' Each warfare community
(surface, subsurface, aviation, and expeditionary warfare) may train in
some or all of these primary mission areas. The testing community also
categorizes most, but not all, of its testing activities under these
primary mission areas.
The Navy describes and analyzes the impacts of its training and
testing activities within the AFTT FEIS/OEIS and the Navy's rulemaking/
LOA application (documents available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities). In its assessment, the Navy concluded
that sonar and other transducers, in-water detonations, air guns, and
pile driving/extraction were the stressors that would result in impacts
on marine mammals that could rise to the level of harassment (also
serious injury or mortality in ship shock trials or by vessel strike)
as defined under the MMPA. Therefore, the rulemaking/LOA application
provides the Navy's assessment of potential effects from these
stressors in terms of the various warfare mission areas in which they
would be conducted. In terms of Navy's primary warfare areas, this
includes:
Amphibious warfare (in-water detonations);
anti-submarine warfare (sonar and other transducers, in-
water detonations);
expeditionary warfare (in-water detonations);
surface warfare (in-water detonations);
mine warfare (sonar and other transducers, in-water
detonations); and
other warfare activities (sonar and other transducers,
impact pile driving/vibratory extraction, air guns).
Overview of Training Activities and Exercises Within the AFTT Study
Area
An MTE is comprised of several ``unit level'' range exercises
conducted by several units operating together while commanded and
controlled by a single commander. These exercises typically employ an
exercise scenario developed to train and evaluate the strike group in
naval tactical tasks. In a MTE, most of the activities being directed
and coordinated by the strike group commander are identical in nature
to the activities conducted during individual, crew, and smaller unit
level training events. In a MTE, however, these disparate training
tasks are conducted in concert, rather than in isolation.
Some integrated or coordinated ASW exercises are similar in that
they are comprised of several unit level exercises but are generally on
a smaller scale than a MTE, are shorter in duration, use fewer assets,
and use fewer hours of hull-mounted sonar per exercise. These
coordinated exercises are conducted under anti-submarine warfare. For
the purpose of analysis, three key factors used to identify and group
the exercises are the scale of the exercise, duration of the exercise,
and amount of hull-mounted sonar hours modeled/used for the exercise.
NMFS considered the effects of all training exercises, not just the
major training exercises in these regulations. Additional detail
regarding the training activities was provided in our Federal Register
notice of proposed rulemaking (83 FR 10954; March 13, 2018) and a
proposed rule correction (83 FR 15117; April 9, 2018); please see those
documents or the Navy's application for more information.
Overview of Testing Activities Within the AFTT Study Area
The Navy's research and acquisition community engages in a broad
spectrum of testing activities in support of the fleet. These
activities include, but are not limited to, basic and applied
scientific research and technology development; testing, evaluation,
and maintenance of systems (e.g., missiles, radar, and sonar) and
platforms (e.g., surface ships, submarines, and aircraft); and
acquisition of systems and platforms to support Navy missions and give
a technological edge over adversaries. The individual commands within
the research and acquisition community included in the Navy's
rulemaking/LOA application are the Naval Air Systems Command, Naval Sea
Systems Command, and the Office of Naval Research. Additional detail
regarding the testing activities was provided in our Federal Register
notice of proposed rulemaking (83 FR 10954; March 13, 2018); please see
that proposed rule or the Navy's application for more information.
Dates and Duration
The specified activities may occur at any time during the five-year
period of validity of the regulations. Planned number and duration of
training and
[[Page 57079]]
testing activities are shown in the Planned Activities section (Tables
4 through 7).
Specific Geographic Area
The Navy's training and testing activities conducted within the
AFTT Study Area (which includes areas of the western Atlantic Ocean
along the East Coast of North America, portions of the Caribbean Sea,
and the GOMEX), covers approximately 2.6 million square nautical miles
(nmi \2\) of ocean area, oriented from the mean high tide line along
the U.S. coast and extends east to the 45-degree west longitude line,
north to the 65-degree north latitude line, and south to approximately
the 20-degree north latitude line. Please refer to the Navy's
rulemaking/LOA application, specifically Figure 1.1-1 for a map of the
AFTT Study Area and Figures 2.2-1 through Figure 2.2-3 for additional
maps of the range complexes and testing ranges.
Description of Acoustic and Explosive Stressors
The planned training and testing activities were evaluated to
identify specific components that could act as stressors (acoustic and
explosive) by having direct or indirect impacts on the environment.
This analysis included identification of the spatial variation of the
identified stressors.
The Navy uses a variety of sensors, platforms, weapons, and other
devices, including ones used to ensure the safety of Sailors and
Marines, to meet its mission. Training and testing with these systems
may introduce acoustic (sound) energy into the environment. The Navy's
rulemaking/LOA application describes specific components that could act
as stressors by having direct or indirect impacts on the environment.
This analysis included identification of the spatial variation of the
identified stressors. The following subsections describe the acoustic
and explosive stressors for biological resources within the AFTT Study
Area. Because of the complexity of analyzing sound propagation in the
ocean environment, the Navy relies on acoustic models in its
environmental analyses that consider sound source characteristics and
varying ocean conditions across the AFTT Study Area. Stressor/resource
interactions that were determined to have de minimus or no impacts
(i.e., vessel, aircraft, or weapons noise) were not carried forward for
analysis in the Navy's rulemaking/LOA application. NMFS reviewed the
Navy's analysis and conclusions and finds them complete and
supportable.
Acoustic Stressors
Acoustic stressors include acoustic signals emitted into the water
for a specific purpose, such as sonar, other transducers (devices that
convert energy from one form to another--in this case, to sound waves),
and air guns, as well as incidental sources of broadband sound produced
as a byproduct of impact pile driving and vibratory extraction.
Explosives also produce broadband sound but are characterized
separately from other acoustic sources due to their unique
characteristics. In order to better organize and facilitate the
analysis of approximately 300 sources of underwater sound used for
training and testing by the Navy including sonars, other transducers,
air guns, and explosives, a series of source classifications, or source
bins, were developed. The source classification bins do not include the
broadband sounds produced incidental to pile driving, vessel or
aircraft transits, weapons firing, and bow shocks.
The use of source classification bins provides the following
benefits: Provides the ability for new sensors or munitions to be
covered under existing authorizations, as long as those sources fall
within the parameters of a ``bin;'' improves efficiency of source
utilization data collection and reporting requirements anticipated
under the MMPA authorizations; ensures a conservative approach to all
impact estimates, as all sources within a given class are modeled as
the most impactful source (highest source level, longest duty cycle, or
largest net explosive weight) within that bin; allows analyses to be
conducted in a more efficient manner, without any compromise of
analytical results; and provides a framework to support the
reallocation of source usage (hours/explosives) between different
source bins, as long as the total numbers of takes remain within the
overall analyzed and authorized limits. This flexibility is required to
support evolving Navy training and testing requirements, which are
linked to real world events.
Sonar and Other Transducers
Active sonar and other transducers emit non-impulsive sound waves
into the water to detect objects, safely navigate, and communicate.
Passive sonars differ from active sound sources in that they do not
emit acoustic signals; rather, they only receive acoustic information
about the environment, or listen.
The Navy employs a variety of sonars and other transducers to
obtain and transmit information about the undersea environment. Some
examples are mid-frequency hull-mounted sonars used to find and track
enemy submarines; high-frequency small object detection sonars used to
detect mines; high frequency underwater modems used to transfer data
over short ranges; and extremely high-frequency (>200 kilohertz [kHz])
Doppler sonars used for navigation, like those used on commercial and
private vessels.
Additional detail regarding sound sources and platforms and
categories of acoustic stressors was provided in our Federal Register
notice of proposed rulemaking (83 FR 10954; March 13, 2018); please see
that proposed rule or the Navy's application for more information.
Sonars and other transducers are grouped into classes that share an
attribute, such as frequency range or purpose of use. Classes are
further sorted by bins based on the frequency or bandwidth; source
level; and, when warranted, the application in which the source would
be used, as follows:
[ssquf] Frequency of the non-impulsive acoustic source;
[cir] Low-frequency sources operate below 1 kHz;
[cir] Mid-frequency sources operate at and above 1 kHz, up to and
including 10 kHz;
[cir] High-frequency sources operate above 10 kHz, up to and
including 100 kHz;
[cir] Very high-frequency sources operate above 100 kHz but below
200 kHz;
[ssquf] Sound pressure level of the non-impulsive source;
[cir] Greater than 160 decibels (dB) re 1 micro Pascal ([mu]Pa),
but less than 180 dB re 1 [mu]Pa;
[cir] Equal to 180 dB re 1 [mu]Pa and up to 200 dB re 1 [mu]Pa;
[cir] Greater than 200 dB re 1 [mu]Pa;
[ssquf] Application in which the source would be used;
[cir] Sources with similar functions that have similar
characteristics, such as pulse length (duration of each pulse), beam
pattern, and duty cycle.
The bins used for classifying active sonars and transducers that
are quantitatively analyzed in the AFTT Study Area are shown in Table 1
below. While general parameters or source characteristics are shown in
the table, actual source parameters are classified.
[[Page 57080]]
Table 1--Sonar and Transducers Quantitatively Analyzed in the AFTT Study
Area
------------------------------------------------------------------------
Source class category Bin Description
------------------------------------------------------------------------
Low-Frequency (LF): Sources LF3 LF sources greater
that produce signals less than LF4 than 200 dB.
1 kHz. LF sources equal to
180 dB and up to 200
dB.
LF5 LF sources less than
180 dB.
LF6 LF sources greater
than 200 dB with long
pulse lengths.
Mid-Frequency (MF): Tactical MF1 Hull-mounted surface
and non-tactical sources that ship sonars (e.g., AN/
produce signals between 1-10 SQS-53C and AN/SQS-
kHz. 61).
MF1K Kingfisher mode
associated with MF1
sonars.
MF3 Hull-mounted submarine
sonars (e.g., AN/BQQ-
10).
MF4 Helicopter-deployed
dipping sonars (e.g.,
AN/AQS-22 and AN/AQS-
13).
MF5 Active acoustic
sonobuoys (e.g.,
DICASS).
MF6 Active underwater
sound signal devices
(e.g., MK84).
MF8 Active sources
(greater than 200 dB)
not otherwise binned.
MF9 Active sources (equal
to 180 dB and up to
200 dB) not otherwise
binned.
MF10 Active sources
(greater than 160 dB,
but less than 180 dB)
not otherwise binned.
MF11 Hull-mounted surface
ship sonars with an
active duty cycle
greater than 80%.
MF12 Towed array surface
ship sonars with an
active duty cycle
greater than 80%.
MF14 Oceanographic MF
sonar.
High-Frequency (HF): Tactical HF1 Hull-mounted submarine
and non-tactical sources that sonars (e.g., AN/BQQ-
produce signals between 10-100 10).
kHz. HF3
Other hull-mounted
submarine sonars
(classified).
HF4 Mine detection,
classification, and
neutralization sonar
(e.g., AN/SQS-20).
HF5 Active sources
(greater than 200 dB)
not otherwise binned.
HF6 Active sources (equal
to 180 dB and up to
200 dB) not otherwise
binned.
HF7 Active sources
(greater than 160 dB,
but less than 180 dB)
not otherwise binned.
HF8 Hull-mounted surface
ship sonars (e.g., AN/
SQS-61).
Very High-Frequency Sonars VHF1 VHF sources greater
(VHF): Non-tactical sources than 200 dB.
that produce signals between
100-200 kHz.
Anti-Submarine Warfare (ASW): ASW1 MF systems operating
Tactical sources (e.g., active above 200 dB.
sonobuoys and acoustic counter- ASW2
measures systems) used during MF Multistatic Active
ASW training and testing Coherent sonobuoy
activities. (e.g., AN/SSQ-125).
ASW3
MF towed active
acoustic
countermeasure
systems (e.g., AN/SLQ-
25).
ASW4 MF expendable active
acoustic device
countermeasures
(e.g., MK 3).
ASW5 MF sonobuoys with high
duty cycles.
Torpedoes (TORP): Source TORP1 Lightweight torpedo
classes associated with the (e.g., MK 46, MK 54,
active acoustic signals or Anti-Torpedo
produced by torpedoes. Torpedo).
TORP2 Heavyweight torpedo
(e.g., MK 48).
TORP3 Heavyweight torpedo
(e.g., MK 48).
Forward Looking Sonar (FLS): FLS2 HF sources with short
Forward or upward looking pulse lengths, narrow
object avoidance sonars used beam widths, and
for ship navigation and safety. focused beam
patterns.
Acoustic Modems (M): Systems M3 MF acoustic modems
used to transmit data through (greater than 190
the water. dB).
Swimmer Detection Sonars (SD): SD1-SD2 HF and VHF sources
Systems used to detect divers with short pulse
and sub- merged swimmers. lengths, used for the
detection of swimmers
and other objects for
the purpose of port
security.
Synthetic Aperture Sonars SAS1 MF SAS systems.
(SAS): Sonars in which active SAS2
acoustic signals are post- HF SAS systems.
processed to form high-
resolution images of the
seafloor.
SAS3 VHF SAS systems.
SAS4 MF to HF broadband
mine countermeasure
sonar.
Broadband Sound Sources (BB): BB1 MF to HF mine
Sonar systems with large countermeasure sonar.
frequency spectra, used for BB2
various purposes. HF to VHF mine
countermeasure sonar.
BB4 LF to MF oceanographic
source.
BB5 LF to MF oceanographic
source.
BB6 HF oceanographic
source.
BB7 LF oceanographic
source.
------------------------------------------------------------------------
Notes: ASW: Anti-submarine Warfare; BB: Broadband Sound Sources; FLS:
Forward Looking Sonar; HF: High-Frequency; LF: Low-Frequency; M:
Acoustic Modems; MF: Mid-Frequency; SAS: Synthetic Aperture Sonars;
SD: Swimmer Detection Sonars; TORP: Torpedoes; VHF: Very High-
Frequency; dB: decibels.
[[Page 57081]]
Air guns
Small air guns with capacities up to 60 cubic inches (in\3\) would
be used during testing activities in various offshore areas in the AFTT
Study Area, as well as near shore at Newport, RI.
Generated impulses would have short durations, typically a few
hundred milliseconds, with dominant frequencies below 1 kHz. The root-
mean-square sound pressure level (SPL) and peak pressure (SPL peak) at
a distance 1 meter (m) from the airgun would be approximately 215 dB re
1 [mu]Pa and 227 dB re 1 [mu]Pa, respectively, if operated at the full
capacity of 60 in\3\ cubic inches.
Pile Driving/Extraction
Impact pile driving and vibratory pile removal would occur during
construction of an Elevated Causeway System (ELCAS), a temporary pier
that allows the offloading of ships in areas without a permanent port.
The source levels of the noise produced by impact pile driving and
vibratory pile removal from an actual elevated causeway pile driving
and removal are shown in Table 2.
Table 2--Elevated Causeway System Pile Driving and Removal Underwater Sound Levels in the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Pile size and type Method Average sound levels at 10 m
----------------------------------------------------------------------------------------------------------------
24-in. Steel Pipe Pile.................. Impact \1\................. 192 dB re 1 [micro]Pa SPL rms; 182 dB re
1 [micro]Pa \2\s SEL (single strike).
24-in. Steel Pipe Pile.................. Vibratory \2\.............. 146 dB re 1 [micro]Pa SPL rms; 145 dB re
1 [micro]Pa \2\s SEL (per second of
duration).
----------------------------------------------------------------------------------------------------------------
\1\ Illingworth and Rodkin (2016).
\2\ Illingworth and Rodkin (2015).
Notes: dB re 1 [micro]Pa: decibels referenced to 1 micropascal; in.: inch; rms: root mean squared; SEL: Sound
Exposure Level; SPL: Sound Pressure Level.
The size of the pier in an ELCAS event is approximately 1,520 ft
long, requiring 119 supporting piles. Construction of the ELCAS would
involve intermittent impact pile driving over approximately 20 days.
Crews work 24 hours (hrs) a day and would drive approximately 6 piles
in that period. Each pile takes about 15 minutes to drive with time
taken between piles to reposition the driver. When training events that
use the ELCAS are complete, the structure would be removed using
vibratory methods over approximately 10 days. Crews would remove about
12 piles per 24-hour period, each taking about 6 minutes to remove.
Explosive Stressors
This section describes the characteristics of explosions during
naval training and testing. The activities analyzed in the Navy's
rulemaking/LOA application that use explosives are described in
Appendix A (Navy Activity Descriptions) of the AFTT FEIS/OEIS.
Additional detail regarding explosive stressors was provided in our
Federal Register notice of proposed rulemaking (83 FR 10954; March 13,
2018); please see that proposed rule or the Navy's application for more
information.
Explosive detonations during training and testing activities are
associated with high-explosive munitions, including, but not limited
to, bombs, missiles, rockets, naval gun shells, torpedoes, mines,
demolition charges, and explosive sonobuoys. Explosive detonations
during training and testing involving the use of high-explosive
munitions (including bombs, missiles, and naval gun shells) could occur
near the water's surface. Explosive detonations associated with
torpedoes and explosive sonobuoys would occur in the water column;
mines and demolition charges could be detonated in the water column or
on the ocean bottom. Most detonations would occur in waters greater
than 200 ft in depth, and greater than 3 nmi from shore, although mine
warfare, demolition, and some testing detonations would occur in
shallow water close to shore.
In order to better organize and facilitate the analysis of
explosives used by the Navy during training and testing that could
detonate in water or at the water surface, explosive classification
bins were developed. Explosives detonated in water are binned by net
explosive weight. The bins of explosives that are planned for use in
the AFTT Study Area are shown in Table 3 below.
Table 3--Explosives Analyzed in the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Net explosive
Bin weight \1\ (lb) Example explosive source
----------------------------------------------------------------------------------------------------------------
E1............................ 0.1-0.25......... Medium-caliber projectile.
E2............................ >0.25-0.5........ Medium-caliber projectile.
E3............................ >0.5-2.5......... Large-caliber projectile.
E4............................ >2.5-5........... Mine neutralization charge.
E5............................ >5-10............ 5-inch projectile.
E6............................ >10-20........... Hellfire missile.
E7............................ >20-60........... Demo block/shaped charge.
E8............................ >60-100.......... Light-weight torpedo.
E9............................ >100-250......... 500 lb. bomb.
E10........................... >250-500......... Harpoon missile.
E11........................... >500-650......... 650 lb mine.
E12........................... >650-1,000....... 2,000 lb bomb.
E14 \2\....................... >1,741-3,625..... Line charge.
E16........................... >7,250-14,500.... Littoral Combat Ship full ship shock trial.
E17........................... >14,500-58,000... Aircraft carrier full ship shock trial.
----------------------------------------------------------------------------------------------------------------
\1\ Net Explosive Weight refers to the equivalent amount of TNT the actual weight of a munition may be larger
due to other components.
\2\ E14 is not modeled for protected species impacts in water because most energy is lost into the air or to the
bottom substrate due to detonation in very shallow water.
[[Page 57082]]
Explosive Fragments
Marine mammals could be exposed to fragments from underwater
explosions associated with the specified activities. When explosive
ordnance (e.g., bombs or missiles) detonates, fragments of the weapons
are thrown at high-velocity from the detonation point, which can injure
or kill marine mammals if they are struck. These fragments may be of
variable size and are ejected at supersonic speed from the detonation.
The casing fragments will be ejected at velocities much greater than
debris from any target due to the proximity of the casing to the
explosive material. Risk of fragment injury reduces exponentially with
distance as the fragment density is reduced. Fragments underwater tend
to be larger than fragments produced by in-air explosions (Swisdak and
Montaro, 1992). Underwater, the friction of the water would quickly
slow these fragments to a point where they no longer pose a threat. In
contrast, the blast wave from an explosive detonation moves efficiently
through seawater. Because the ranges to mortality and injury due to
exposure to the blast wave are likely to far exceed the zone where
fragments could injure or kill an animal, the threshold are assumed to
encompass risk due to fragmentation.
Other Stressor--Vessel Strike
Vessel strikes are not specific to any particular training or
testing activity, but rather a potential, limited, sporadic, and
incidental result of Navy vessel movement within the AFTT Study Area.
The average speed of large Navy ships ranges between 10 and 15 knots
and submarines generally operate at speeds in the range of 8-13 knots,
while a few specialized vessels can travel at faster speeds. Vessel
strikes are likely to result in incidental take from serious injury
and/or mortality and, accordingly, for the purposes of the analysis we
assume that any authorized ship strike would result in serious injury
or mortality. Information on Navy vessel movements is provided in the
Planned Activities section. Additional detail on vessel strike was
provided in our Federal Register notice of proposed rulemaking (83 FR
10954; March 13, 2018); please see that proposed rule or the Navy's
application for more information. Additionally, as referenced above and
described in more detail in the Estimated Take of Marine Mammals
section, on September 13, 2018 the Navy provided additional information
explaining why and withdrew certain species from their request for
serious injury or mortality takes from vessel strike.
Planned Activities
Planned Training Activities
The training activities that the Navy plans to conduct in the AFTT
Study Area are summarized in Table 4. The table is organized according
to primary mission areas and includes the activity name, associated
stressors applicable to these regulations, number of planned
activities, and locations of those activities in the AFTT Study Area.
For further information regarding the primary platform used (e.g., ship
or aircraft type) see Appendix A (Navy Activity Descriptions) of the
AFTT FEIS/OEIS.
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Planned Testing Activities
Testing activities covered in these regulations are described in
Table 5 through Table 7.
Naval Air Systems Command
Table 5 summarizes the planned testing activities for the Naval Air
Systems Command analyzed within the AFTT Study Area.
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Naval Sea Systems Command
Table 6 summarizes the planned testing activities for the Naval Sea
Systems Command analyzed within the AFTT Study Area.
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Office of Naval Research
Table 7 summarizes the planned testing activities for the Office of
Naval Research analyzed within the AFTT Study Area.
[[Page 57103]]
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Summary of Acoustic and Explosive Sources Analyzed for Training and
Testing
Table 8 through Table 11 show the acoustic source classes and
numbers, explosive source bins and numbers, air gun sources, and pile
driving and removal activities associated with Navy training and
testing activities in the AFTT Study Area that were analyzed in this
rule. Table 8 shows the acoustic source classes (i.e., LF, MF, and HF)
that could occur in any year under the Planned Activity for training
and testing activities. Under the Planned Activities, acoustic source
class use would vary annually, consistent with the number of annual
activities summarized above. The five-year total for the Planned
Activities takes into account that annual variability.
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Table 9 shows the number of air gun shots planned in AFTT Study
Area for training and testing activities.
Table 9--Training and Testing Airgun Sources Quantitatively Analyzed in the AFTT Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Training Testing
Source class category Bin Unit \1\ -------------------------------------------------------------------
Annual 5-year total Annual 5-year total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air guns (AG): Small underwater air AG C 0 0 604 3,020
guns.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ C = count. One count (C) of AG is equivalent to 100 air gun firings.
Table 10 summarizes the impact pile driving and vibratory pile
removal activities that would occur during a 24-hour period. Annually,
for impact pile driving, the Navy will drive 119 piles, two times a
year for a total of 238 piles. Over the 5-year period of the rule, the
Navy will drive a total of 1190 piles by impact pile driving. Annually,
for vibratory pile removal, the Navy will remove 119 piles, two times a
year for a total of 238 piles. Over the 5-year period of the rule, the
Navy will remove a total of 1190 piles by vibratory pile removal.
Table 10--Summary of Pile Driving and Removal Activities per 24-Hour Period in the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Total
estimated time
Method Piles per 24- Time per pile of noise per
hour period (minutes) 24-hour period
(minutes)
----------------------------------------------------------------------------------------------------------------
Pile Driving (Impact)........................................... 6 15 90
Pile Removal (Vibratory)........................................ 12 6 72
----------------------------------------------------------------------------------------------------------------
[[Page 57108]]
Table 11 shows the number of in-water explosives that could be used
in any year under the Planned Activity for training and testing
activities. Under the Planned Activities, bin use would vary annually,
consistent with the number of annual activities summarized above. The
five-year total for the Specified Activities takes into account that
annual variability.
Table 11-Explosive Source Bins Analyzed and Numbers Used During Training and Testing Activities in the AFTT Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Training Testing
Bin Net explosive weight \1\ (lb) Example explosive source ---------------------------------------------------------------
Annual \2\ 5-year total Annual \2\ 5-year total
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................... 0.1-0.25...................... Medium-caliber projectile 7,700 38,500 17,840-26,840 116,200
E2........................... >0.25-0.5..................... Medium-caliber projectile 210-214 1,062 0 0
E3........................... >0.5-2.5...................... Large-caliber projectile. 4,592 22,960 3,054-3,422 16,206
E4........................... >2.5-5........................ Mine neutralization 127-133 653 746-800 3,784
charge.
E5........................... >5-10......................... 5-inch projectile........ 1,436 7,180 1,325 6,625
E6........................... >10-20........................ Hellfire missile......... 602 3,010 28-48 200
E7........................... >20-60........................ Demo block/shaped charge. 4 20 0 0
E8........................... >60-100....................... Light-weight torpedo..... 22 110 33 165
E9........................... >100-250...................... 500 lb bomb.............. 66 330 4 20
E10.......................... >250-500...................... Harpoon missile.......... 90 450 68-98 400
E11.......................... >500-650...................... 650 lb mine.............. 1 5 10 50
E12.......................... >650-1,000.................... 2,000 lb bomb............ 18 90 0 0
E16 \3\...................... >7,250-14,500................. Littoral Combat Ship full 0 0 0-12 12
ship shock trial.
E17 \3\...................... >14,500-58,000................ Aircraft carrier full 0 0 0-4 4
ship shock trial.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Net Explosive Weight refers to the equivalent amount of TNT the actual weight of a munition may be larger due to other components.
\2\ Expected annual use may vary per bin because the number of events may vary from year to year, as described in Section 1.5 (Planned Activity).
\3\ Shock trials consist of four explosions each. In any given year there could be 0-3 small ship shock trials (E16) and 0-1 large ship shock trials
(E17). Over a 5-year period, there could be three small ship shock trials (E16) and one large ship shock trial (E17).
Vessel Movement
Vessels used as part of the Planned Activity include ships,
submarines and boats ranging in size from small, 22 ft (7 m) rigid hull
inflatable boats to aircraft carriers with lengths up to 1,092 ft (333
m). Large Navy ships greater than 60 ft (18 m) generally operate at
speeds in the range of 10 to 15 kn for fuel conservation. Submarines
generally operate at speeds in the range of 8 to 13 kn in transits and
less than those speeds for certain tactical maneuvers. Small craft,
less than 60 ft (18 m) in length, have much more variable speeds
(dependent on the mission). For small craft types, sizes and speeds
vary during training and testing. Speeds generally range from 10 to 14
kn. While these speeds for large and small crafts are representative of
most events, some vessels need to temporarily operate outside of these
parameters.
The number of Navy vessels used in the AFTT Study Area varies based
on military training and testing requirements, deployment schedules,
annual budgets, and other unpredictable factors. Most training and
testing activities involve the use of vessels. These activities could
be widely dispersed throughout the AFTT Study Area, but would be
typically conducted near naval ports, piers, and range areas.
Standard Operating Procedures
For training and testing to be effective, personnel must be able to
safely use their sensors and weapon systems as they are intended to be
used in a real-world situation and to their optimum capabilities. While
standard operating procedures are designed for the safety of personnel
and equipment and to ensure the success of training and testing
activities, their implementation often yields additional benefits on
environmental, socioeconomic, public health and safety, and cultural
resources.
Because standard operating procedures are essential to safety and
mission success, the Navy considers them to be part of the planned
activities and has included them in the environmental analysis.
Additional details on standard operating procedures were provided in
our Federal Register notice of proposed rulemaking (83 FR 10954; March
13, 2018); please see that proposed rule or the Navy's application for
more information.
Duration and Location
Training and testing activities would be conducted in the AFTT
Study Area throughout the year from 2018 through 2023 for the five-year
period covered by the regulations. The AFTT Study Area (see Figure 1.1-
1 of the Navy's rulemaking/LOA application) includes areas of the
western Atlantic Ocean along the East Coast of North America, portions
of the Caribbean Sea, and the GOMEX. The AFTT Study Area begins at the
mean high tide line along the U.S. coast and extends east to the 45-
degree west longitude line, north to the 65-degree north latitude line,
and south to approximately the 20-degree north latitude line. The AFTT
Study Area also includes Navy pierside locations, bays, harbors, and
inland waterways, and civilian ports where training and testing occurs.
The AFTT Study Area generally follows the Commander Task Force 80 area
of operations, covering approximately 2.6 million nmi\2\ of ocean area,
and includes designated Navy range complexes and associated operating
areas (OPAREAs) and special use airspace. While the AFTT Study Area
itself is very large, it is important to note that the vast majority of
Navy training and testing occurs in designated range complexes and
testing ranges.
A Navy range complex consists of geographic areas that encompass a
water component (above and below the surface) and airspace, and may
encompass a land component where training and testing of military
platforms, tactics, munitions, explosives, and electronic warfare
systems occur. Range complexes include established OPAREAs, which may
be further divided to provide better control of the area for safety
reasons.
[[Page 57109]]
Please refer to the regional maps provided in the Navy's rulemaking/LOA
application (Figure 2.2-1 through Figure 2.2-3) for additional detail
of the range complexes and testing ranges. Additional detail on range
complexes and testing ranges was provided in our Federal Register
notice of proposed rulemaking (83 FR 10954; March 13, 2018); please see
that proposed rule or the Navy's application for more information.
Comments and Responses
We published a notice of proposed regulations in the Federal
Register on March 13, 2018 (83 FR 10954), with a 45-day comment period.
In that proposed rule, we requested public input on the request for
authorization described therein, our analyses, and the proposed
authorizations and requested that interested persons submit relevant
information, suggestions, and comments. During the 45-day comment
period, we received 28 total comment letters. Of this total, one
submission was from another federal agency, two letters were from
organizations or individuals acting in an official capacity (e.g., non-
governmental organizations (NGOs)) and 25 submissions were from private
citizens. Letters from other NGOs and state departments that were
received during the NOR were also considered further. NMFS has reviewed
all public comments received on the proposed rule and issuance of the
LOAs. All relevant comments and our responses are described below. We
provide no response to specific comments that addressed species or
statutes not relevant to our proposed actions under section
101(a)(5)(A) of the MMPA (e.g., comments related to sea turtles). We
outline our comment responses by major categories.
General Comments
The majority of the 25 comment letters from private citizens
expressed general opposition toward the Navy's proposed training and
testing activities and requested that NMFS not issue the LOAs, but
without providing information relevant to NMFS' decisions. These
comments appear to indicate a lack of understanding of the MMPA's
requirement that NMFS ``shall issue'' requested authorizations when
certain findings (see the Background section) are met; therefore, these
comments were not considered further. The remaining comments are
addressed below.
Impact Analysis
General
Comment 1: A Commenter recommends that NMFS consult with the Navy
to collect more information regarding the number, nature, and timing of
testing and training events that take place within, or within close
proximity to, important habitat areas, essentially refining the scale
of the analysis of training and testing activities to match the scale
of the habitat areas considered to be important.
Response: In their take request and effects analysis provided to
NMFS, the Navy considered historic use (number and nature of training
and testing activities) and locational information of training and
testing activities when developing modelling boxes. The timing of
training cycles and testing needs varies based on deployment
requirements to meet current and emerging threats. Due to the
variability, the Navy's description of their specified activities is
structured to provide flexibility in training and testing locations,
timing, and number. In addition, information regarding the exact
location of sonar usage is classified. Due to the variety of factors,
many of which influence locations that cannot be predicted in advance
(e.g., weather), the analysis is completed at a scale that is necessary
to allow for flexibility. The purpose of the Navy's quantitative
acoustic analysis is to provide the best estimate of impact/take to
marine mammals and ESA listed species for the regulatory and ESA
section 7 consultation analyses. Specifically, the analysis must take
into account multiple Navy training and testing activities over large
areas of the ocean for multiple years; therefore, analyzing activities
in multiple locations over multiple seasons produces the best estimate
of impacts/take to inform the AFTT FEIS/OEIS and regulators. Also, the
scale at which spatially explicit marine mammal density models are
structured is determined by the data collection method and the
environmental variables that are used to build the model. Therefore,
altogether, given the variables that determine when and where the Navy
trains and tests, as well as the resolution of the density data, the
analysis of potential impacts is scaled to the level that the data
fidelity will support. NMFS has worked with the Navy over the years to
increase the spatio-temporal specificity of the descriptions of
activities planned in or near areas of biological importance, when
possible (i.e., in NARW ESA-designated critical habitat), and NMFS is
confident that the granularity of information provided sufficiently
allows for an accurate assessment of both the impacts of the Navy's
activities on marine mammal populations and the protective measures
evaluated to mitigate those impacts.
Density Estimates
Comment 2: A Commenter noted that 30 iterations or Monte Carlo
simulations is low for general bootstrapping methods used in those
models but understands that increasing the number of iterations in turn
increases the computational time needed to run the models. Accordingly,
the Commenter suggests that the Navy consider increasing the iterations
from 30 to at least 200 for activities that have yet to be modeled for
Phase III and for all activities in Phase IV.
Response: The 30 iterations used in NAEMO represent the number of
iterations run for each of the four seasons analyzed in AFTT Phase III,
which results in a total of 120 iterations per year for each event
analyzed. For other areas where only warm and cold seasons are
analyzed, the number of iterations per season is increased to 60 so
that the same 120 iterations per year are maintained. Navy reached this
number of iterations by running two iterations of a scenario and
calculating the mean of exposures, then running a third iteration and
calculating the running mean of exposures, then a fourth iteration and
so on. This is done until the running mean becomes stable. Through this
approach, it was determined 120 iterations was sufficient to converge
to a statistically valid answer and provides a reasonable uniformity of
exposure predictions for most species and areas. There are a few
exceptions for species with sparsely populated distributions or highly
variable distributions. In these cases, the running mean may not
flatten out (or become stable); however, there were so few exposures in
these cases that while the mean may fluctuate, the overall number of
exposures did not result in significant differences in the totals. In
total, the number of simulations conducted for AFTT Phase III exceeded
six million simulations and produced hundreds of terabytes of data.
Increasing the number of iterations, based on the discussion above,
would not result in a significant change in the results, but would
incur a significant increase in resources (e.g., computational and
storage requirements). This would divert these resources from
conducting other more consequential analysis without providing for
meaningfully improved data. The Navy has
[[Page 57110]]
communicated that it is continually looking at ways to improve NAEMO
and reduce data and computational requirements. As technologies and
computational efficiencies improve, Navy will evaluate these advances
and incorporate them where appropriate.
Comment 3: A Commenter recommends that the Navy (1) specify what
modeling method and underlying assumptions were used to estimate PTS
and TTS zones for pile driving activities and (2) accumulate energy for
the entire day of proposed activities, and (3) clarify why those zones
were estimated to be the same for LF and HF.
Response: The Navy has explained that it used measured values for
source levels and transmission loss from pile driving of the Elevated
Causeway System, the only pile driving activity included in the
Proposed Action of the AFTT FEIS/OEIS. These recorded source waveforms
were weighted using the auditory weighting functions. Low-frequency and
high-frequency cetaceans have similar ranges for impact pile driving
since low-frequency cetaceans would be relatively more sensitive to the
low-frequency sound, which is below high-frequency cetaceans best range
of hearing. Neither the NMFS user spreadsheet nor NAEMO were required
for calculations. An area density model was developed in MS Excel,
which calculated zones of influence to thresholds of interest (e.g.,
behavioral response) based on durations of pile driving and the
aforementioned measured and weighted source level values. The resulting
area was then multiplied by density of each marine mammal species that
could occur within the vicinity. This produced an estimated number of
animals that could be impacted per pile, per day, and overall during
the entire activity for both the impact pile driving and vibratory
removal phases.
Regarding the appropriateness of accumulating energy for the entire
day, based on the best available science regarding animal reaction to
sound, selecting a reasonable SEL calculation period is necessary to
more accurately reflect the time period an animal would likely be
exposed to the sound. The Navy factored both mitigation effectiveness
and animal avoidance of higher sound levels into the impact pile
driving analysis. For impact pile driving, the mitigation zone extends
beyond the average ranges to PTS for all hearing groups; therefore,
mitigation will help prevent or reduce the potential for exposure to
PTS. The impact pile driving mitigation zone also extends beyond or
into a portion of the average ranges to TTS; therefore, mitigation will
help prevent or reduce the potential for exposure to all TTS or some
higher levels of TTS, depending on the hearing group. Mitigation
effectiveness and animal avoidance of higher sound levels were both
factored into the impact pile driving analysis as most marine mammals
should be able to easily move away from the expanding ensonified zone
of TTS/PTS within 60 seconds, especially considering the soft start
procedure, or avoid the zone altogether if they are outside of the
immediate area upon startup. Marine mammals and sea turtles are likely
to leave the immediate area of pile driving and extraction activities
and be less likely to return as activities persist. However, some
``naive'' animals may enter the area during the short period of time
when pile driving and extraction equipment is being re-positioned
between piles. Therefore, an animal ``refresh rate'' of 10 percent was
selected. This means that 10 percent of the single pile zone of
influence (ZOI) was added for each consecutive pile within a given 24-
hour period to generate the daily ZOI per effect category. These daily
ZOIs were then multiplied by the number of days of pile driving and
pile extraction and then summed to generate a total ZOI per effect
category (i.e., behavioral response, TTS, PTS). The small size of the
mitigation zone and its close proximity to the observation platform
will result in a high likelihood that Lookouts would be able to detect
marine mammals and sea turtles throughout the mitigation zone.
PTS/TTS Thresholds
Comment 4: A Commenter supports the weighting functions and
associated thresholds as stipulated in Finneran (2016), which are the
same as those used for Navy Phase III activities, but points to
additional recent studies that provide additional behavioral audiograms
(e.g., Branstetter et al., 2017, Kastelein et al., 2017b) and
information on TTS (e.g., Kastelein et al., 2017a; 2017c). However, the
Commenter recommends that the Navy should provide a discussion of
whether those new data corroborate the current weighting functions and
associated thresholds.
Response: The NMFS' revised Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2018),
which was used in the assessment of effects for this action, compiled,
interpreted, and synthesized the best available scientific information
for noise-induced hearing effects for marine mammals to derive updated
thresholds for assessing the impacts of noise on marine mammal hearing,
including the articles that the Commenter references that were
published subsequent to the publication of the first version of 2016
Acoustic Technical Guidance. The new data included in those articles
are consistent with the thresholds and weighting functions included in
the current version of the Acoustic Technical Guidance (NMFS 2018).
NMFS will continue to review and evaluate new relevant data as it
becomes available and consider the impacts of those studies on the
Acoustic Technical Guidance to determine what revisions/updates may be
appropriate. Thus far, no new information has been published or
otherwise conveyed that would fundamentally change the assessment of
impacts or conclusions of this rule.
Comment 5: A Commenter commented that the criteria that the agency
has produced to estimate temporary threshold shift (TTS) and permanent
threshold shift (PTS) in marine mammals are erroneous and non-
conservative. The Commenter specifically cited many supposed issues
with NMFS' Acoustic Technical Guidance, including adoption of
``erroneous'' models, broad extrapolation from a small number of
individuals, and disregarding ``non-linear accumulation of
uncertainty.'' The Commenter suggests that NMFS retain the historical
180-dB rms Level A harassment threshold as a ``conservative upper
bound'' or conduct a ``sensitivity analysis'' to ``understand the
potential magnitude'' of the supposed errors.
Response: NMFS disagrees with this characterization of the Acoustic
Technical Guidance and the associated recommendation. The Acoustic
Technical Guidance is a compilation, interpretation, and synthesis of
the scientific literature that provides the best available information
regarding the effects of anthropogenic sound on marine mammals'
hearing. The technical guidance was classified as a Highly Influential
Scientific Assessment and, as such, underwent three independent peer
reviews, at three different stages in its development, including a
follow-up to one of the peer reviews, prior to its dissemination by
NMFS. In addition, there were three separate public comment periods,
during which time we received and responded to similar comments on the
guidance (81 FR 51694), which we cross-reference here, and more recent
public and interagency review under Executive Order 13795.
The Acoustic Technical Guidance updates the historical 180-dB rms
injury threshold, which was based on professional judgement (i.e., no
data
[[Page 57111]]
were available on the effects of noise on marine mammal hearing at the
time this original threshold was derived). NMFS does not believe the
use of the Acoustic Technical Guidance provides erroneous results. The
180-dB rms threshold is plainly outdated, as the best available science
indicates that rms SPL is not even an appropriate metric by which to
gauge potential auditory injury (whereas the scientific debate
regarding Level B behavioral harassment thresholds is not about the
proper metric but rather the proper level or levels and how these may
vary in different contexts).
Multiple studies from humans, terrestrial mammals, and marine
mammals have demonstrated less TTS from intermittent exposures compared
to continuous exposures with the same total energy because hearing is
known to experience some recovery in between noise exposures, which
means that the effects of intermittent noise sources such as tactical
sonars are likely overestimated. Marine mammal TTS data have also shown
that, for two exposures with equal energy, the longer duration exposure
tends to produce a larger amount of TTS. Most marine mammal TTS data
have been obtained using exposure durations of tens of seconds up to an
hour, much longer than the durations of many tactical sources (much
less the continuous time that a marine mammal in the field would be
exposed consecutively to those levels), further suggesting that the use
of these TTS data are likely to overestimate the effects of sonars with
shorter duration signals.
Regarding the suggestion of pseudo-replication and erroneous
models, since marine mammal hearing and noise-induced hearing loss data
are limited, both in the number of species and in the number of
individual's available, attempts to minimize pseudoreplication would
further reduce these already limited data sets. Specifically, with
marine mammal behavioral temporary threshold shift studies,
behaviorally derived data are only available for two mid-frequency
cetacean species (bottlenose dolphin, beluga) and two phocids (in-
water) pinniped species (harbor seal and northern elephant seal), with
otariid (in-water) pinnipeds and high-frequency cetaceans only having
behaviorally-derived data from one species. Arguments from Wright
(2015) regarding pseudoreplication within the TTS data are therefore
largely irrelevant in a practical sense because there are so few data.
Multiple data points were not included for the same individual at a
single frequency. If multiple data existed at one frequency, the lowest
TTS onset was always used. There is only a single frequency where TTS
onset data exist for two individuals of the same species: 3 kHz for
dolphins. Their TTS (unweighted) onset values were 193 and 194 dB re 1
[mu]Pa\2\s. Thus, NMFS believes that the current approach makes the
best use of the given data. Appropriate means of reducing
pseudoreplication may be considered in the future, if more data become
available. Many other comments from Wright (2015) and the comments from
Racca et al. (2015b) appear to be erroneously based on the idea that
the shapes of the auditory weighting functions and TTS/PTS exposure
thresholds are directly related to the audiograms; i.e., that changes
to the composite audiograms would directly influence the TTS/PTS
exposure functions (e.g., Wright (2015) describes weighting functions
as ``effectively the mirror image of an audiogram'' (p. 2) and states,
``The underlying goal was to estimate how much a sound level needs to
be above hearing threshold to induce TTS.'' (p. 3)). Both statements
are incorrect and suggest a fundamental misunderstanding of the
criteria/threshold derivation. This would require a constant
(frequency-independent) relationship between hearing threshold and TTS
onset that is not reflected in the actual marine mammal TTS data.
Attempts to create a ``cautionary'' outcome by artificially lowering
the composite audiogram thresholds would not necessarily result in
lower TTS/PTS exposure levels, since the exposure functions are to a
large extent based on applying mathematical functions to fit the
existing TTS data.
Behavioral Harassment Thresholds
Comment 6: A Commenter suggests that NMFS fails to set proper
thresholds for behavioral impacts. Referencing the biphasic function
that assumes an unmediated dose response relationship at higher
received levels and a context-influenced response at lower received
levels that NMFS uses to quantify Level B behavioral harassment from
sonar, the Commenter suggests that resulting functions depend on some
inappropriate assumptions that tend to significantly underestimate
effects. The Commenter expresses concern that every data point that
informs the agency's pinniped function, and nearly two-thirds of the
data points informing the odontocete function (30/49), are derived from
a captive animal study. Additionally, they assert that the risk
functions do not incorporate (nor does NMFS apparently consider) a
number of relevant studies on wild marine mammals. It is not clear from
the proposed rule, or from the Navy's recent technical report on
acoustic ``criteria and thresholds,'' on which NMFS' approach here is
based, exactly how each of the studies that NMFS employed was applied
in the analysis, or how the functions were fitted to the data, but the
available evidence on behavioral response raises concerns that the
functions are not conservative for some species. The Commenter
recommends NMFS make additional technical information available,
including from any expert elicitation and peer review, so that the
public can fully comment.
Response: The Criteria and Thresholds for U.S. Navy Acoustic and
Explosive Impacts to Marine Mammals and Sea Turtles technical report
(U.S. Department of the Navy, 2017) details how the Navy's proposed
method, which was determined appropriate and adopted by NMFS, accounted
for the differences in captive and wild animals in the development of
the behavioral response functions. The Navy uses the best available
science, which has been reviewed by external scientists and approved by
NMFS, in the analysis. The Navy and NMFS have utilized all available
data that relate known or estimable received levels to observations of
individual or group behavior as a result of sonar exposure (which is
needed to inform the behavioral response function) for the development
of updated thresholds. Limiting the data to the small number of field
studies that include these necessary data would not provide enough data
with which to develop the new risk functions. In addition, NMFS agrees
with the assumptions made by the Navy to include the fact that captive
animals may be less sensitive, in that the scale at which a moderate to
severe response was considered to have occurred is different for
captive animals than for wild animals, as the agency understands those
responses will be different.
The new risk functions were developed in 2016, before several
recent papers were published or the data were available. As new science
is published, the NMFS and the Navy continue to evaluate the
information. The thresholds have been rigorously vetted among
scientists and within the Navy community during expert elicitation and
then reviewed by the public before being applied. It is unreasonable to
revise and update the criteria and risk functions every time a new
paper is published. These new and future papers provide additional
information, and the Navy has already begun to consult them for updates
to the thresholds in the future, when the next round of updated
criteria will be developed. Thus far, no
[[Page 57112]]
new information has been published or otherwise conveyed that would
fundamentally change the assessment of impacts or conclusions of the
AFTT FEIS/OEIS or this rule. To be included in the behavioral response
function, data sets need to relate known or estimable received levels
to observations of individual or group behavior. Melcon et al. (2012)
does not relate observations of individual/group behavior to known or
estimable received levels (at that individual/group). In Melcon et al.
(2012), received levels at the HARP buoy averaged over many hours are
related to probabilities of D-calls, but the received level at the blue
whale individuals/group are unknown.
As noted, the derivation of the behavioral response functions is
provided in the 2017 technical report titled Criteria and Thresholds
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III). The
appendices to this report detail the specific data points used to
generate the behavioral response functions. Data points come from
published data that is readily available and cited within the technical
report.
Comment 7: Commenters have concerns with the use of distance ``cut-
offs'' in the Level B behavioral harassment thresholds, and the
recommend that NMFS refrain from using cut-off distances in conjunction
with the Bayesian BRFs and re-estimate the numbers of marine mammal
takes based solely on the Bayesian BRFs.
Response: The consideration of proximity (cut-off distances) was
part of the criteria developed in consultation between Navy and NMFS
and was applied within the Navy's acoustic effects model. Cut-off
distances were used to better reflect the take potential for military
readiness activities as defined in the MMPA. The derivation of the
behavioral response functions and associated cut-off distances is
provided in the 2017 technical report titled Criteria and Thresholds
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III). Much
of the data used to derive the behavioral response functions was from
nearby, scaled sources, thereby potentially confounding results since
it is difficult to tell whether the focal marine mammal is reacting to
the sound level or the proximity of the source and/or vessel, amongst
other potentially confounding contextual factors that are unlike actual
Navy events for which the behavioral response functions (BRFs) are
being derived. To account for these non-applicable contextual factors,
all available data on marine mammal reactions to actual Navy activities
and other sound sources (or other large scale activities such as
seismic surveys when information on proximity to sonar sources is not
available for a given species group, i.e., harbor porpoises) were
reviewed to find the farthest distance to which significant behavioral
reactions were observed. These distances were rounded up to the nearest
5 or 10 km interval, and for moderate to large scale activities using
multiple or louder sonar sources, these distances were greatly
increased -- doubled in most cases. The Navy's BRFs applied within
these distance is currently the best known method for providing the
public and regulators with a more realistic (but still conservative
where some uncertainties exist) estimate of impact and potential take
under military readiness for the proposed actions within the AFTT FEIS/
OEIS. NMFS has independently assessed the Navy's Level B behavioral
harassment thresholds and believe that they appropriately apply the
best available science and it is not necessary to recalculate take
estimates.
A Commenter also specifically expresses concern that distance
``cut-offs'' alleviate some of the exposures that would otherwise have
been counted if the received level alone were considered. It is unclear
why the Commenter finds this inherently inappropriate, as this is what
the data show. As noted previously, there are multiple studies
illustrating that in situations where one would expect a Level B
behavioral harassment because of the received levels at which previous
responses were observed, it has not occurred when the distance from the
source was larger than the distance of the first observed response.
Comment 8: Regarding cut-off distances, a Commenter further notes
that dipping sonar appears a significant predictor of deep-dive rates
in beaked whales on Southern California Anti-submarine Warfare Range
(SOAR), with the dive rate falling significantly (e.g., to 35 percent
of that individual's control rate) during sonar exposure, and likewise
appears associated with habitat abandonment. Importantly, these effects
were observed at substantially greater distances (e.g., 30 or more km)
from dipping sonar than would otherwise be expected given the systems'
source levels and the beaked whale response thresholds developed from
research on hull-mounted sonar. They suggest that the analysis, and
associated cut-off distances, do not properly consider the impacts of
dipping sonar.
Response: The Navy relied upon the best science that was available
to develop the behavioral response functions in consultation with NMFS.
The Navy's current beaked whale BRF acknowledges and incorporates the
increased sensitivity observed in beaked whales during both behavioral
response studies and during actual Navy training events, as well as the
fact that dipping sonar can have greater effects than some other
sources with the same source level. Specifically, the distance cut-off
for beaked whales is 50 km, larger than any other group. Moreover,
although dipping sonar has a significantly lower source level than
hull-mounted sonar, it is included in the category of sources with
larger distance cut-offs, specifically in acknowledgement of its
unpredictability and association with observed effects. This means that
``takes'' are reflected at lower received levels that would have been
excluded because of the distance for other source types. The referenced
article (Associating patterns in movement and diving behavior with
sonar use during military training exercises: A case study using
satellite tag data from Cuvier's beaked whales at the Southern
California Anti-submarine Warfare Range (Falcone, 2015)) was not
available at the time the behavioral response functions were developed.
However, NMFS and the Navy have reviewed the article and concur that
neither this article nor any other new information that has been
published or otherwise conveyed would significantly change the
assessment of impacts or conclusions in the AFTT FEIS/OEIS or in this
rulemaking. Nonetheless, the new information and data presented in the
new article were recently thoroughly reviewed by the Navy and will be
quantitatively incorporated into future behavioral response functions,
as appropriate.
Comment 9: Regarding the behavioral thresholds for explosives, a
Commenter recommends that NMFS estimate and ultimately authorize
behavior takes of marine mammals during all explosive activities,
including those that involve single detonations.
Response: The derivation of the explosive injury criteria is
provided in the 2017 technical report titled Criteria and Thresholds
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III), and
NMFS has applied the general rule the Commenter references to single
explosives for years, i.e., that marine mammals are unlikely to respond
to a single instantaneous detonation in a manner that would rise to the
level of a take. Neither NMFS nor the Navy are aware of evidence to
support the assertion that animals will have significant behavioral
reactions (i.e., those that would rise to the level of a take) to
temporally and spatially
[[Page 57113]]
isolated explosions. The Navy has been monitoring detonations since the
1990's and has not observed these types of reactions. TTS and all other
higher order impacts are assessed for all training and testing events
that involve the use of explosives or explosive ordnance. All of Navy's
monitoring projects, reports, and publications are available on the
marine species monitoring web page (https://www.navymarinespeciesmonitoring.us/). NMFS will continue to review
applicable monitoring and science data and consider modifying these
criteria when and if new information suggests it is appropriate.
Mortality and Injury Thresholds for Explosions
Comment 10: A Commenter recommends that NMFS require the Navy to
(1) explain why the constants and exponents for onset mortality and
onset slight lung injury thresholds for Phase III have been amended,
(2) ensure that the modified equations are correct, and (3) specify any
additional assumptions that were made.
Response: The derivation of the explosive injury equations,
including any assumptions, is provided in the 2017 technical report
titled Criteria and Thresholds for U.S. Navy Acoustic and Explosive
Effects Analysis (Phase III). It is our understanding that the
constants and exponents for onset mortality and onset slight lung
injury were amended by the Navy since Phase II to better account for
the best available science. Specifically, the equations were modified
in Phase III to fully incorporate the injury model in Goertner (1982),
specifically to include lung compression with depth. The derivation of
the Phase III equations and all associated assumptions are fully
documented in the Navy's 2017 technical report Criteria and Thresholds
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III). NMFS
independently reviewed and concurred with this approach.
Comment 11: A Commenter commented on circumstances of the deaths of
multiple common dolphins during one of the Navy's underwater detonation
events in March 2011 (Danil and St. Leger 2011) and indicated that the
Navy's mitigation measures are not fully effective, especially for
explosive activities. The Commenter believes it would be more prudent
for the Navy to estimate injuries and mortalities based on onset rather
than a 50-percent incidence of occurrence. The Navy did indicate that
it is reasonable to assume for its impact analysis--thus its take
estimation process--that extensive lung hemorrhage is a level of injury
that would result in mortality for a wild animal (U.S. Department of
the Navy 2017a). Thus, the Commenters notes that it is unclear why the
Navy did not follow through with that premise. The Commenter recommends
that NMFS use onset mortality, onset slight lung injury, and onset GI
tract injury thresholds to estimate both the numbers of marine mammal
takes and the respective ranges to effect.
Response: Based on an extensive review of the incident referred to
by the commenter, the Navy, in consultation with NMFS, revised and
updated the mitigation for these types of events, which did not
previously include consideration of the distance an animal could travel
while the detonation was ``delayed.'' There have been no further
incidents since these mitigation changes were instituted.
The Navy used the range to one percent risk of mortality, as well
as injury (referred to as ``onset'' in the AFTT DEIS/OEIS), to inform
the development of mitigation ranges for explosions. In all cases, the
proposed mitigation ranges for explosives extend beyond the range to
one percent risk of non-auditory injury, even for a small animal
(representative mass = 5 kg). In the AFTT FEIS/OEIS, the Navy clarified
that the ``onset'' non-auditory injury and mortality criteria are
actually one percent risk criteria.
Over-predicting impacts, which would occur with the use of one
percent non-auditory injury risk criteria in the quantitative analysis,
would not afford extra protection to any animal. The Navy, in
coordination with NMFS, has determined that the 50 percent incidence of
occurrence is a reasonable mechanism for quantifying the likely effect,
given the use of mitigation zones based on onset. Ranges to effect
based on one percent risk criteria were examined to ensure that
explosive mitigation zones would encompass the range to any potential
mortality or non-auditory injury, affording actual protection against
these effects. NMFS concurs with the Navy's approach for mitigating and
quantifying injury and mortality from explosives.
Although the commenter implies that the Navy did not use extensive
lung hemorrhage as indicative of mortality, that statement is
incorrect. Extensive lung hemorrhage is assumed to result in mortality,
and the explosive mortality criteria are based on extensive lung injury
data. See the technical report titled Criteria and Thresholds for U.S.
Navy Acoustic and Explosive Effects Analysis (Phase III).
Range to Effects
Comment 12: A Commenter notes an apparent error in Table 6.4-3 of
the Navy's rulemaking/LOA application and recommends that NMFS
determine what the appropriate ranges to TTS should be for bin LF5 and
amend the ranges for the various functional hearing groups in the
various tables accordingly.
Response: The error in the table has been fixed; specifically, the
ranges for MF cetaceans have been revised. Note that the distances are
shorter than initially provided in proposed rule, indicating that the
impacts of exposure to this bin are fewer than initially implied by the
table. Regardless, the error was only associated with the information
presented in this table; there was no associated error in any distances
used in the take estimation, and both the take estimates and our
findings remain the same.
Comment 13: A Commenter recommends that the Navy use its spatially
and temporally dynamic simulation models (e.g., randomly-generated
munition trajectories and animat simulations) rather than simple
probability calculations to estimate strike probabilities and number of
takes from expended munitions and non-explosive materials.
Response: The recommendation of the Commenter to use a dynamic
simulation model to estimate expended munitions and non-explosive
materials strike probability was considered, but the Navy found, and
NMFS agrees, that while the current analysis used in the AFTT FEIS/OEIS
is more conservative and almost certainly over-estimates the potential
impacts to marine mammals, it was preferable given the uncertainty
involved in the prediction. An analysis of direct strike resulting from
expended materials conducted in a dynamic simulation model such as
NAEMO would also be a probability analysis; however, it would be
conducted in a different manner. The current analysis provides an over-
estimation of the probability of a strike for the following reasons: It
(1) calculates the probability of a single military item (of all the
items expended over the course of the year) hitting a single animal at
its species' highest seasonal density; (2) does not take into account
the possibility that an animal may avoid military activities; (3) does
not take into account the possibility that an animal may not be at the
water surface; (4) does not take into account that most projectiles
fired during training and testing activities are fired at targets, and
not all projectiles would hit the water with their maximum velocity and
force; and (5)
[[Page 57114]]
does not quantitatively take into account the Navy avoiding animals
that are sighted through the implementation of mitigation measures.
Given the uncertainty, and in order to be more conservative, NMFS and
the Navy will continue using this method.
Mitigation and Avoidance Calculations
Comment 14: Commenters cite concerns that there was not enough
information by which to evaluate the Navy's post-modeling calculations
to account for mitigation and avoidance and imply that Level A
harassment takes and mortality takes may be underestimated. A Commenter
recommends that the Navy (1) provide the total numbers of model-
estimated Level A harassment (PTS and slight lung and GI injuries) and
mortality takes rather than reduce the estimated numbers of takes based
on the Navy's post-model analyses and (2) include the model-estimated
Level A harassment and mortality takes in its rulemaking/application to
inform NMFS' negligible impact determination analyses.
Response: The consideration of marine mammal avoidance and
mitigation effectiveness is integral to the Navy's overall analysis of
impacts from sonar and explosive sources. NMFS has independently
evaluated the method and agrees that it is appropriately applied to
augment the model in the prediction and authorization of injury and
mortality as described in the rule. Details of this analysis are
provided in the Navy's 2018 technical report titled Quantifying
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and
Analytical Approach for Phase III Training and Testing.
Sound levels diminish quickly below levels that could cause PTS.
Studies have shown that all animals observed avoid areas well beyond
these zones; therefore, the vast majority of animals are likely to
avoid sound levels that could cause injury to their ear. As discussed
in the Navy's 2018 technical report titled Quantifying Acoustic Impacts
on Marine Mammals and Sea Turtles: Methods and Analytical Approach for
Phase III Training and Testing, animats in the Navy's acoustic effects
model do not move horizontally or ``react'' to sound in any way. The
current best available science based on a growing body of behavioral
response research shows that animals do in fact avoid the immediate
area around sound sources to a distance of a few hundred meters or more
depending upon the species. Avoidance to this distance greatly reduces
the likelihood of impacts to hearing such as TTS and PTS.
Specifically, behavioral response literature, including the recent
3S and SOCAL BRS studies, indicate that the multiple species from
different cetacean suborders do in fact avoid approaching sound sources
by a few hundred meters or more, which would reduce received sound
levels for individual marine mammals to levels below those that could
cause PTS. The ranges to PTS for most marine mammal groups are within a
few tens of meters and the ranges for the most sensitive group, the HF
cetaceans, average about 200 m, to a maximum of 270 m in limited cases;
however HF cetaceans such as harbor porpoises, have been observed
reacting to anthropogenic sound at greater distances than other species
and are likely to avoid their zones to hearing impacts (TTS and PTS) as
well.
As discussed in the Navy's 2018 technical report titled Quantifying
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and
Analytical Approach for Phase III Training and Testing, the Navy's
acoustic effects model does not consider procedural mitigations (i.e.,
power-down or shut-down of sonars, or pausing explosive activities when
animals are detected in specific zones adjacent to the source), which
necessitates consideration of these factors in the Navy's overall
acoustic analysis. Credit taken for mitigation effectiveness is
extremely conservative. For example, if Lookouts can see the whole
area, they get credit for it in the calculation; if they can see more
than half the area, they get half credit; if they can see less than
half the area, they get no credit. Not considering animal avoidance and
mitigation effectiveness would lead to a great overestimate of
injurious impacts. NMFS concurs with the analytical approach used.
Last, the Navy's 2018 technical report titled Quantifying Acoustic
Impacts on Marine Mammals and Sea Turtles: Methods and Analytical
Approach for Phase III Training and Testing very clearly explains in
detail how species sightability, the Lookout's ability to observe the
range to PTS (for sonar and other transducers) and mortality (for
explosives), the portion of time when mitigation could potentially be
conducted during periods of reduced daytime visibility (to include
inclement weather and high sea state) and the portion of time when
mitigation could potentially be conducted at night, and the ability for
sound sources to be positively controlled (powered down) are considered
in the post-modeling calculation to account for mitigation and
avoidance. It is not necessary to view the many tables of numbers
generated in the assessment to evaluate the method.
Comment 15: A Commenter stated in regards to the method in which
the Navy's post-model calculation considers avoidance specifically
(i.e., assuming animals present beyond the range of PTS for the first
few pings will be able to avoid it and incur only TTS), given that
sound sources are moving, it may not be until later in an exercise that
the animal is close enough to experience PTS, and it is those few close
pings that contribute to the potential to experience PTS. An animal
being beyond the PTS zone initially has no bearing on whether it will
come within close range later during an exercise since both sources and
animals are moving. In addition, Navy vessels may move faster than the
ability of the animals to evacuate the area. The Navy should have been
able to query the dosimeters of the animats to verify whether its five-
percent assumption was valid.
Response: The consideration of marine mammals avoiding the area
immediately around the sound source is provided in the Navy's 2018
technical report titled Quantitative Analysis for Estimating Acoustic
and Explosive Impacts to Marine Mammals and Sea Turtles. As the
Commenter correctly articulates: ``For avoidance, the Navy assumed that
animals present beyond the range to onset PTS for the first three to
four pings are assumed to avoid any additional exposures at levels that
could cause PTS. That equated to approximately five percent of the
total pings or 5 percent of the overall time active; therefore, 95
percent of marine mammals predicted to experience PTS due to sonar and
other transducers were instead assumed to experience TTS.'' In regard
to the comment about vessels moving faster than animals' ability to get
out of the way, as discussed in the Navy's 2018 technical report titled
Quantitative Analysis for Estimating Acoustic and Explosive Impacts to
Marine Mammals and Sea Turtles, animats in the Navy's acoustic effects
model do not move horizontally or ``react'' to sound in any way,
necessitating the additional step of considering animal avoidance of
close-in PTS zones. NMFS independently reviewed this approach and
concurs that it is fully supported by the best available science. Based
on a growing body of behavioral response research, animals do in fact
avoid the immediate area around sound sources to a distance of a few
hundred meters or more depending upon the species. Avoidance to this
distance greatly reduces the likelihood of impacts to hearing such as
TTS and PTS, respectively. Specifically,
[[Page 57115]]
the ranges to PTS for most marine mammal groups are within a few tens
of meters and the ranges for the most sensitive group, the HF
cetaceans, average about 200 m, to a maximum of 270 m in limited cases;
however HF cetaceans such as harbor porpoises have been observed
reacting to anthropogenic sound at greater distances than other species
and are likely to avoid their zones to hearing impacts (TTS and PTS) as
well. Querying the dosimeters of the animats would not produce useful
information since, as discussed previously, the animats do not move in
the horizontal and are not programmed to ``react'' to sound or any
other stimulus.
Comment 16: A Commenter asserted that the Navy's adjustment of
injury and mortality numbers for ``mitigation effectiveness'' is also
problematic. The analysis starts with species-specific g(0) factors
(probability of detection of animals at zero distance) applied in
professional marine mammal abundance surveys, then multiplies them by a
simple factor to reflect the relative effectiveness of the Navy's
Lookouts in routine operating conditions. Yet the Navy's sighting
effectiveness is likely to be much poorer than that of experienced
biologists dedicated exclusively to marine mammal detection, operating
under conditions that maximize sightings. As one recent paper observed,
for example, abundance survey rates declined significantly as sea
states rose above Beaufort 1, and average Beaufort sea states in the
mid- and southeast Atlantic average Beaufort 3-4 throughout the year
(see Table 1). Given this, it seems that Navy visual surveys can seldom
approximate the sighting effectiveness of a large-vessel abundance
survey.
Response: Information about the quantitative analysis process,
including the consideration of mitigation effectiveness, is described
in detail in the 2018 technical report titled Quantifying Acoustic
Impacts on Marine Mammals and Sea Turtles: Methods and Analytical
Approach for Phase III Training and Testing. The Navy quantitatively
assessed the effectiveness of its mitigation measures on a per-scenario
basis using four factors: (1) Species sightability, (2) a Lookout's
ability to observe the range to permanent threshold shift (for sonar
and other transducers) and range to mortality (for explosives), (3) the
portion of time when mitigation could potentially be conducted during
periods of reduced daytime visibility (to include inclement weather and
high sea-state) and the portion of time when mitigation could
potentially be conducted at night, and (4) the ability for sound
sources to be positively controlled (e.g., powered down). The g(0)
values used by the Navy for their mitigation effectiveness adjustments
take into account the differences in sightability with sea state, and
utilize averaged g(0) values for sea states of 1-4 and weighted as
suggested by Barlow (2015). This helps to account for reduced
sightability in varying conditions, as does the fact that, during
active sonar activities, Navy Lookouts tend to look in the water near
the vessel, within 1 km, rather than out to the horizon as Marine
Mammal Observers (MMO) do. During training and testing activities,
there is typically at least one, if not numerous, support personnel
involved in the activity (e.g., range support personnel aboard a
torpedo retrieval boat or support aircraft). In addition to the Lookout
posted for the purpose of mitigation, these additional personnel
observe for and disseminate marine species sighting information amongst
the units participating in the activity whenever possible as they
conduct their primary mission responsibilities. However, as a
conservative approach to assigning mitigation effectiveness factors,
the Navy elected to account only for the minimum number of required
Lookouts used for each activity; therefore, the mitigation
effectiveness factors may underestimate the likelihood that some marine
mammals (as well as sea turtles) may be detected during activities that
are supported by additional personnel who may also be observing the
mitigation zone. NMFS independently reviewed and concurs with this
analysis.
Comment 17: A Commenter comments on the potential for serious
injury and mortality that could occur in the event of a ship strike or
as a result of marine mammal exposure to explosive detonations (ship
shock trials) and suggests that NMFS' prediction that only these few
takes will result from Navy's thousands of hours of training and
testing activities has misrepresented the science. Specifically, the
Commenter discusses the risk of ship strike to NARW and suggested that
it appears as a glaring omission from the list of species authorized
for lethal take. While the Commenter concurred with NMFS' refusal to
authorize a single ship strike to the NARW, they do not share the
agency's level of confidence that the Navy will be able to effectively
mitigate the potential for a ship strike to occur. They further suggest
that NMFS has failed to consider the indirect effects of noise on ship-
strike risk. They also assert that indirect ship strike risk resulting
from habitat displacement must be accounted for in NMFS' analysis. The
Commenter recommends additional mitigation measures slowing ships to 10
kn.
Response: As described in greater detail in the Take from Vessel
Strikes section of the final rule, although NMFS' analysis shows that
NARWs have a low probability of being struck even one time within the
five-year period of the rule when strikes across all activity types
(including non-Navy) are considered (10.11 percent, lower than all
other stocks except North Atlantic sperm whales), when the enhanced
mitigation measures the Navy will implement for NARWs are considered in
combination with this low probability, the Navy and NMFS have
determined that a vessel strike is highly unlikely and, therefore, it
was not requested and is not authorized.
In addition to procedural mitigation, the Navy will limit MTEs and
implement additional protective measures in mitigation areas used by
NARW for foraging, calving, and migration (where individuals are
concentrated and more likely to be struck). These measures, which go
above and beyond those focused on other species (e.g., funding of and
communication with sightings systems, implementation of speed
reductions during applicable circumstances in certain areas) have
helped the Navy avoid striking a NARW during training and testing
activities in the past; and eliminate the potential for future strikes
to occur in the five years of the rule. In particular, the mitigation
pertaining to communication among vessels, including the continued
participation in and sponsoring of the Early Warning System (EWS, a
comprehensive information exchange network dedicated to reducing the
risk of vessel strikes to NARW in the Southeast) and NOAA's NARW
Sighting Advisory System in the Northeast, will help Navy vessels avoid
NARW during transits and training and testing activities.
Implementation of these measures is expected to significantly
reduce the probability of striking this particular species during the
five-year period of the rule. Further, the Navy has agreed to expand
the requirement for Navy vessels to contact the EWS from just the NARW
ESA-designated critical habitat to the entire Jacksonville OPAREA.
Additionally the Navy has developed a new mitigation measure to
broadcast Dynamic Management Area information based on potential
changes in NARW distribution. Platforms will use Dynamic Management
Area information to assist their visual observation of
[[Page 57116]]
applicable mitigation zones during training and testing activities.
This will make units even more aware of NARW aggregations to better
plan and conduct activities to minimize interactions with this species.
Not only will this mitigation measure help the Navy further avoid or
reduce potential impacts on NARW from vessel movements, it will also
help aid the implementation of applicable procedural mitigation
measures for acoustic, explosive, and physical disturbance and strike
stressors when Dynamic Management Areas are in effect.
Ship strikes are a fluke encounter for which the probability can
never be zero for any vessel. However, the probability for any
particular ship striking a marine mammal is primarily a product of the
ability of the ship to detect a marine mammal and the ability to
effectively act to avoid it. Navy combat ships are inherently among the
best at both of these abilities because compared to large commercial
vessels, they have trained Lookouts which have received specialized MMO
training and the most maneuverable ships, which means that they are
more likely to sight a marine mammal and more likely to be able to
maneuver to avoid it in the available time--both of which decrease the
probability of striking a marine mammal below what it would have been
in the absence of those abilities. In the case of the NARW, the
extensive communication/detection network described above, which is in
use in the areas of highest NARW occurrence and where they may be more
susceptible to strike, further increases the likelihood of detecting a
NARW and thereby avoiding it, which further reduces the probability of
NARW strike. Because of these additional mitigation measures combined
with the already low probability that a NARW will be struck, it is
extremely unlikely the Navy will strike a NARW and mortality/serious
injury of a NARW from vessel strike is neither anticipated nor
authorized. Regarding the likelihood of mortality from explosives, the
Commenter does not offer any data or rationale to support the assertion
that NMFS has underestimated the mortality from explosives. The
analysis and estimates contained in the final rule are based on the
best available science and accurately represent the appropriate take
numbers for mortality and injury from explosives.
Underestimated Beaked Whale Injury and Mortality
Comment 18: A Commenter claims that NMFS is underestimating serious
injury and mortality for beaked whales. They note the statement in the
proposed rule that because a causal relationship between Navy MFAS use
and beaked whale strandings has not been established in all instances,
and that, in some cases, sonar was considered to be only one of several
factors that, in aggregate, may have contributed to the stranding
event, NMFS does ``not expect strandings, serious injury, or mortality
of beaked whales to occur as a result of training activities.'' (83 FR
11084). This opinion is inconsistent with best available science and
does not take into account the fact that the leading explanation for
the mechanism of sonar-related injuries--that whales suffer from bubble
growth in organs that is similar to decompression sickness, or ``the
bends'' in human divers--has now been supported by numerous papers. At
the same time, the commenter argues that NMFS fails to seriously
acknowledge that sonar can seriously injure or kill marine mammals at
distances well beyond those established for permanent hearing loss (83
FR 10999) and dismisses the risk of stranding and other mortality
events (83 FR 11084) based on the argument that such effects can
transpire only under the same set of circumstances that occurred during
known sonar-related events--an assumption that is arbitrary and
capricious. In conclusion, they argue that none of NMFS' assumptions
regarding the expected lack of serious injury and mortality for beaked
whales are supported by the record, and all lead to an underestimation
of impacts.
Response: The Commenter's characterization of NMFS' analysis is
incorrect. NMFS does not disregard the fact that it is possible for
naval activities using hull-mounted tactical sonar to contribute to the
death of marine mammals in certain circumstances (that are not present
in the AFTT Study Area) via strandings resulting from behaviorally
mediated physiological impacts or other gas-related injuries. NMFS
discusses these potential causes and outlines the few cases where
active naval sonar (in the U.S. or, largely, elsewhere) has either
potentially contributed to or (as with the Bahamas example) been more
definitively causally linked with marine mammal strandings. As noted,
there are a suite of factors that have been associated with these
specific cases of strandings directly associated with sonar (steep
bathymetry, multiple hull-mounted platforms using sonar simultaneously,
constricted channels, strong surface ducts, etc.) that are not present
together in the AFTT Study Area and during the specified activities
(and which the Navy takes care across the world not to operate under
without additional monitoring). Further, there have never been any
strandings associated with Navy sonar use in the AFTT Study Area. For
these reasons, NMFS does not anticipate that the Navy's AFTT training
or testing activities will result in marine mammal strandings, and none
are authorized.
Ship Strike
Comment 19: A Commenter asserted that the Navy's analysis, which
NMFS used to support its vessel-strike analysis in the rule, does not
address the potential for increased strike risk by non-Navy vessels as
a consequence of acoustic disturbance. For example, some types of
anthropogenic noise have been shown to induce near-surfacing behavior
in NARW, increasing the risk of ship-strike at relatively moderate
levels of exposure. An analysis based on reported strikes by Navy
vessels does not account for this additional risk. In assessing ship-
strike risk, the Navy should include offsets to account for potentially
undetected and unreported collisions.
Response: There is no evidence that Navy training and testing
activities (or other acoustic activities) increase the risk of nearby
non-Navy vessels (or other nearby Navy vessels not involved in the
referenced training or testing) striking marine mammals. Further, any
increase in the probability of hitting a NARW resulting from this
speculated effect would already inherently be accounted for in the
probability included in our analysis, which is based on the actual
estimated number of NARW strikes (which accounts for unreported non-
Navy vessel strikes). Lastly, the anthropogenic noise signal referred
to in the comment was developed specifically to elicit a response from
NARWs. This type of signal is not analogous to any sound source used by
Navy.
Comment 20: A Commenter asserts that NMFS and the Navy's analyses
fail to account for the likelihood that the number of ship strikes are
grossly underestimated because some animals are struck and not
recovered or reported.
Response: While NMFS agrees that broadly speaking the number of
total ship strikes may be underestimated due to incomplete information
from other sectors (shipping, etc.), NMFS is confident that whales
struck by Navy vessels are detected and reported, and Navy strikes are
the numbers used in NMFS' analysis to support the authorized number of
strikes. Navy ships have multiple Lookouts, including
[[Page 57117]]
on the forward part of the ship that can visually detect a hit whale
(which has occasionally occurred), in the unlikely event ship personnel
do not feel the strike. Navy's strict internal procedures and
implementation of past mitigation measures require reporting of any
vessel strikes of marine mammals and the Navy's discipline and chain of
command give NMFS a high level of confidence that all strikes actually
get reported. Accordingly, NMFS is confident that the information used
to support the analysis is accurate and complete.
Mitigation and Monitoring
Least Practicable Adverse Impact Determination
Comment 21: A Commenter comments that deaths of or serious injuries
to marine mammals that occur pursuant to activities conducted under an
incidental take authorization, while perhaps negligible to the overall
health and productivity of the species or stock and of little
consequence at that level, nevertheless are clearly adverse to the
individuals involved and results in some quantifiable (though
negligible) adverse impact on the population; it reduces the population
to some degree. Under the least practicable adverse impact requirement,
and more generally under the purposes and policies of the MMPA, the
Commenter asserts that Congress embraced a policy to minimize, whenever
practicable, the risk of killing or seriously injuring a marine mammal
incidental to an activity subject to section 101(a)(5)(A), including
providing measures in an authorization to eliminate or reduce the
likelihood of lethal taking. The Commenter recommends that NMFS address
this point explicitly in its analysis and clarify whether it agrees
that the incidental serious injury or death of a marine mammal always
should be considered an adverse impact for purposes of applying the
least practicable adverse impact standard.
Response: NMFS disagrees that it is necessary or helpful to
explicitly address the point the Commenter raises in the general
description of the LPAI standard. The discussion of this standard
already notes that there can be population-level impacts that fall
below the ``negligible'' standard, but that are still appropriate to
mitigate under the LPAI standard. It is always NMFS' practice to
mitigate mortality to the greatest degree possible, as death is the
impact that is most easily linked to reducing the probability of
adverse impacts to populations. However, we cannot agree that one
mortality will always decrease any population in a quantifiable or
meaningful way. For example, for very large populations, one mortality
may fall well within typical known annual variation and not have any
effect on population rates. Further, we do not understand the problem
that the Commenter's recommendation is attempting to fix. Applicants
generally do not express reluctance to mitigate mortality, and we
believe that modifications of this nature would confuse the issue.
Comment 22: A Commenter recommends that NMFS address the habitat
component of the least practicable adverse impact provision in greater
detail. It asserts that NMFS' discussion of ESA-designated critical
habitat, marine sanctuaries, and BIAs in the proposed rule is not
integrated with the discussion of the least practicable adverse impact
standard. It would seem that, under the least practicable adverse
impact provision, adverse impacts on important habitat should be
avoided whenever practicable. Therefore, to the extent that activities
would be allowed to proceed in these areas, NMFS should explain why it
is not practicable to constrain them further.
Response: Marine mammal habitat value is informed by marine mammal
presence and use and, in some cases, there may be overlap in measures
for the species or stock directly and for use of habitat. In this rule,
we have identified time-area mitigations based on a combination of
factors that include higher densities and observations of specific
important behaviors of marine mammals themselves, but also that clearly
reflect preferred habitat (e.g., feeding areas in the Northeast, NARW
calving areas in the Southeast). In addition to being delineated based
on physical features that drive habitat function (e.g., bathymetric
features, among others for some BIAs), the high densities and
concentration of certain important behaviors (e.g., feeding) in these
particular areas clearly indicate the presence of preferred habitat.
The Commenter seems to suggest that NMFS must always consider separate
measures aimed at marine mammal habitat; however, the MMPA does not
specify that effects to habitat must be mitigated in separate measures,
and NMFS has clearly identified measures that provide significant
reduction of impacts to both ``marine mammal species and stocks and
their habitat,'' as required by the statute.
Comment 23: A Commenter recommends that NMFS rework its evaluation
criteria for applying the least practicable adverse impact standard to
separate the factors used to determine whether a potential impact on
marine mammals or their habitat is adverse and whether possible
mitigation measures would be effective. In this regard, the Commenter
asserts that it seems as though the proposed ``effectiveness''
criterion more appropriately fits as an element of practicability and
should be addressed under that prong of the analysis. In other words, a
measure not expected to be effective should not be considered a
practicable means of reducing impacts.
Response: In the Mitigation Measures section, NMFS has explained in
detail our interpretation of the LPAI standard, the rationale for our
interpretation, and our approach for implementing our interpretation.
The ability of a measure to reduce effects on marine mammals is
entirely related to its ``effectiveness'' as a measure, whereas the
effectiveness of a measure is not connected to its practicability. The
Commenter provides no support for its argument, and NMFS has not
implemented the Commenter's suggestion.
Comment 24: A Commenter recommends that NMFS recast its conclusions
to provide sufficient detail as to why additional measures either are
not needed (i.e., there are no remaining adverse impacts) or would not
be practicable to implement. The Commenter states that the most
concerning element of NMFS' implementation of the least practicable
adverse impact standard is its suggestion that the mitigation measures
proposed by the Navy will sufficiently reduce impacts on the affected
mammal species and stocks and their habitats (83 FR 11045). That phrase
suggests that NMFS is applying a ``good-enough'' standard to the Navy's
activities. Under the statutory criteria, however, those proposed
measures are ``sufficient'' only if they have either (1) eliminated all
adverse impacts on marine mammal species and stocks and their habitat
or (2) if adverse impacts remain, it is impracticable to reduce them
further.
Response: The statement that the Commenter references does not
indicate that NMFS applies a ``good-enough'' standard to determining
least practicable adverse impact. Rather, it indicates that the
mitigation measures are sufficient to meet the statutory legal
standard. In addition, as NMFS has explained in our description of the
least practicable adverse impact standard, NMFS does not view the
necessary analysis through the yes/no lens that the Commenter seeks to
prescribe. Rather, NMFS' least practicable adverse impact analysis
considers both the reduction of adverse effects and the practicability.
Further, since the proposed rule was
[[Page 57118]]
published, the Navy and NMFS have evaluated additional measures in the
context of both their practicability and their ability to further
reduce impacts to marine mammals and have determined that the addition
of several measures (see Mitigation Measures) is appropriate.
Regardless, beyond these new additional measures, where the Navy's AFTT
activities are concerned, the Navy has indicated that further
procedural or area mitigation of any kind (beyond that prescribed in
this final rule) would be entirely impracticable.
Comment 25: A Commenter recommends that any ``formal
interpretation'' of the least practicable adverse impact standard by
NMFS be issued in a stand-alone, generally applicable rulemaking (e.g.,
in amendments to 50 CFR 216.103 or 216.105) or in a separate policy
directive, rather than in the preambles to individual proposed rules.
Response: We appreciate the Commenter's recommendation and may
consider the recommended approaches in the future. We note, however,
that providing relevant explanations in a proposed incidental take rule
is an effective and efficient way to provide information to the reader
and solicit focused input from the public, and ultimately affords the
same opportunities for public comment as a stand-alone rulemaking
would. NMFS has provided similar explanations of the least practicable
adverse impact standard in other recent section 101(a)(5)(A) rules,
including: U.S. Navy Operations of Surveillance Towed Array Sensor
System Low Frequency Active (SURTASS LFA) Sonar; Geophysical Surveys
Related to Oil and Gas Activities in the GOMEX; and the proposed rule
for U.S. Navy Training and Testing in the Hawaii-Southern California
Training and Testing (HSTT) Study Area.
Comment 26: A Commenter cites two judicial decisions and comments
that while there have been some improvements in mitigation relative to
NMFS' 2013-2018 final rule for AFTT activities, the ``least practicable
adverse impact'' standard has not been met. The Commenter asserts, for
example, that if in prescribing protective measures in important
habitat NMFS concludes after careful analysis that complete exclusion
of unit-level sonar training from the area is not practicable, the
agency should consider what reductions in activity are practicable, as
by looking at particular types of exercises or testing activities or by
limiting the amount of activity that can take place. The Commenter
argues that the MMPA sets forth a ``stringent standard'' for mitigation
that requires the agency to minimize impacts to the lowest practicable
level, and that the agency must conduct its own analysis and clearly
articulate it: it ``cannot just parrot what the Navy says.''
Response: NMFS disagrees with much of what the Commenter asserts.
When a suggested or recommended mitigation measure is impracticable,
NMFS has explored variations of that mitigation to determine if a
practicable form of related mitigation exists. This is clearly
illustrated in NMFS' independent mitigation analysis process explained
in this rule. First, the type of mitigation required varies by
mitigation area, demonstrating that NMFS has engaged in a site-specific
analysis to ensure mitigation is tailored only when practicability
demands, i.e., some forms of mitigation were practicable in some areas
but not others. Other examples of NMFS' analysis on this issue appear
throughout the rule. For instance, while it was not practicable for the
Navy to expand the SE NARW Mitigation Area to the full extent
recommended, the Navy did agree to some expansion of the SE NARW
Mitigation Area to provide better protection. Additionally, while the
Navy cannot alleviate all training in the NE NARW Mitigation Area due
to changes in requirements, Navy removed one impactful testing activity
(four events) that reduced takes for NARW and other species
significantly.
Nonetheless, NMFS agrees that the agency must conduct its own
analysis, which it has done here, and not just accept what is provided
by the Navy. That does not mean, however, that NMFS cannot review the
Navy's analysis of effectiveness and practicability, and concur with
those aspects of the Navy's analysis with which NMFS agrees. The
Commenter seems to suggest that NMFS must describe in the rule in
detail the rationale for not adopting every conceivable permutation of
mitigation, which is neither reasonable nor required by the MMPA. NMFS
has described our well-reasoned process for identifying the measures
needed to meet the LPAI standard in the Mitigation Measures section in
this rule, and we have followed the approach described there when
analyzing potential mitigation for the Navy's activities in the AFTT
Study Area. Discussion regarding specific recommendations for
mitigation measures provided by the Commenter on the proposed rule are
discussed separately.
Procedural Mitigation Effectiveness and Recommendations
Comment 27: A Commenter commented that the Phase III proposed
mitigation zones would not protect various functional hearing groups
from PTS. For example, the mitigation zone for an explosive sonobuoy is
549 m but the mean PTS zones range from 2,205-3,324 m for HF cetaceans
and 308-1,091 m for LF cetaceans. Similarly, the mitigation zone for an
explosive torpedo is 1,920 m but the mean PTS zones range from 13,105-
14,627 m for HF cetaceans, 3,133-3,705 m for LF cetaceans, and 3,072-
3,232 for pinnipeds in water (PW). Mitigation effectiveness is further
complicated when platforms fire munitions (e.g., for missiles and
rockets) at targets 28 to 140 km away from the firing platform, as
described in the AFTT DEIS/OEIS. An aircraft would clear the target
area well before it positions itself at the launch location and
launches the missile or rocket. Ships, on the other hand, do not clear
the target area before launching the missile or rocket. In either case,
marine mammals could be present in the target area at the time of the
launch unbeknownst to the Navy.
Response: NMFS is aware that some mitigation zones do not fully
cover the area in which an animal from a certain hearing group may
incur PTS. For this small subset of circumstances, NMFS discussed
potential enlargement of the mitigation zones with the Navy but
concurred with the Navy's assessment that further enlargement would be
impracticable. Specifically, the Navy explained that explosive
mitigation zones, as discussed in Chapter 5 of the AFTT FEIS/OEIS, any
additional increases in mitigation zone size (beyond what is depicted
for each explosive activity), or additional observation requirements
would be impracticable to implement due to implications for safety,
sustainability, the Navy's ability to meet Title 10 requirements to
successfully accomplish military readiness objectives, and the Navy's
ability to conduct testing associated with required acquisition
milestones or as required on an as-needed basis to meet operational
requirements. Additionally, Navy Senior Leadership has approved and
determined that the mitigation detailed in Chapter 5 (Mitigation) of
the AFTT FEIS/OEIS provides the greatest extent of protection that is
practicable to implement. The absence of mitigation to avoid all Level
A harassment in some of these circumstances has been analyzed, however,
and the Navy is authorized for any of these Level A harassment takes
that may occur.
Comment 28: A Commenter believes that rather than simply reducing
the size of the mitigation zones it plans to monitor, the Navy should
supplement
[[Page 57119]]
its visual monitoring efforts with other monitoring measures.
Specifically, the Commenter further suggests that sonobuoys could be
deployed with the target in the various target areas prior to the
activity for the Navy to better determine whether the target area is
clear and remains clear until the munition is launched. The Commenter
also suggests that the Navy's instrumented Undersea Warfare Training
Range (USWTR) could be used for real-time mitigation and refers to
Navy-cited improvements in the use of other ranges for monitoring. The
Navy did propose to supplement visual monitoring with passive acoustic
monitoring during three explosive activity types but not during the
remaining explosive activities or during low-, mid-, and high-frequency
active sonar activities. Further, the Commenter recommends that NMFS
require the Navy to use passive and active acoustic monitoring,
whenever practicable, to supplement visual monitoring during the
implementation of its mitigation measures for all activities that could
cause injury or mortality beyond those explosive activities for which
passive acoustic monitoring already was proposed. This includes use of
the instrumented USWTR in the coming years.
Response: For explosive mitigation zones, as discussed in Chapter 5
of the AFTT FEIS/OEIS, any additional increases in mitigation zone size
(beyond what is depicted for each explosive activity) or observation
requirements would be impracticable to implement due to implications
for safety, sustainability, and the Navy's ability to meet Title 10
requirements to successfully accomplish military readiness objectives.
We do note, however, that since the proposed rule, the Navy has
committed to implementing pre-event observations for all in-water
explosives events (including some that were not previously monitored)
and to using additional platforms if available in the vicinity of the
detonation area to help with this monitoring.
As discussed in the comment, the Navy does employ passive acoustic
monitoring when practicable to do so (i.e., when assets that have
passive acoustic monitoring capabilities are already participating in
the activity). For other explosive events, there are no platforms
participating that have passive acoustic monitoring capabilities.
Adding a passive acoustic monitoring capability (either by adding a
passive acoustic monitoring device to a platform already participating
in the activity, or by adding a platform with integrated passive
acoustic monitoring capabilities to the activity, such as a sonobuoy)
for mitigation is not practicable. As discussed in Section 5.5.3
(Active and Passive Acoustic Monitoring Devices) of the AFTT FEIS/OEIS,
there are significant manpower and logistical constraints that make
constructing and maintaining additional passive acoustic monitoring
systems or platforms for each training and testing activity
impracticable. Additionally, diverting platforms that have passive
acoustic monitoring platforms would impact their ability to meet their
Title 10 requirements and reduce the service life of those systems.
Regarding the use of instrumented ranges such as USTWR for real-
time mitigation, the commenter is correct that the Navy continues to
develop the technology and capabilities on their Ranges for use in
marine mammal monitoring, which can be effectively compared to
operational information after the fact to gain information regarding
marine mammal response, and occasionally used to support small-scale
real-time mitigation. However, as discussed above, the manpower and
logistical complexity involved in detecting and localizing marine
mammals in relation to multiple fast-moving sound source platforms in
order to implement real-time mitigation is significant. USWTR is not
scheduled to go active until late 2019 (half of USWTR); however, the
Navy continues to explore mechanisms by which the Range will contribute
to marine mammal mitigation and monitoring. Lastly, the mitigation
zones for active sonar systems encompass the ranges to potential
injury.
Comment 29: A Commenter recommends that NMFS require the Navy to
conduct additional pre-activity overflights before conducting any
activities involving detonations barring any safety issues (e.g., low
fuel), as well as post-activity monitoring for activities involving
medium- and large caliber projectiles, missiles, rockets, and bombs.
Response: The Navy has agreed to implement pre-event observation
mitigation, as well as post-event observation, for all in-water
explosive events. If there are other platforms participating in these
events and in the vicinity of the detonation area, they will also
visually observe this area as part of the mitigation team.
Comment 30: A Commenter discusses that since 2010, the Navy has
been collaborating with researchers at the University of St. Andrews to
study Navy Lookout effectiveness. The Navy does not appear to have
mentioned that study in its AFTT DEIS/OEIS for Phase III and NMFS did
not discuss it in the rule. For its Phase II DEISs, the Navy noted that
data collected in that study were insufficient to yield statistically
significant results. Nevertheless, the Commenter continues to consider
the basic information provided by the studies to be useful and cites
several specific instances where MMOs sighted marine mammals that were
not sighted by Navy Lookouts.
Response: The Lookout effectiveness study that the Commenter
references is still ongoing. This type of study has never been
conducted, is extremely complex to ensure data validity, and requires a
substantial amount of data to conduct meaningful statistical analysis.
The Navy has stated that it is committed to completing it; however, as
noted by the Commenter, there has not been enough data collected to
conduct a sufficient analysis. Therefore drawing conclusions from an
incomplete data set is not scientifically valid.
Comment 31: A Commenter commented that NMFS should increase the
exclusion zone to the 120 dB isopleth. Since some animals are sensitive
to sonar at low levels of exposure, the exclusion zone should ensure
lower exposure than 120 dB. Additionally, there should be buffer zones
along the boundaries of the mitigation areas to ensure that the
mitigation areas are not exposed to sources higher than the 120 dB.
Response: First, it is important to note that the Commenter is
suggesting that NMFS require mitigation that would eliminate all take,
which is not what the applicable standard requires. Rather, NMFS is
required to put in place measures that effect the ``least practicable
adverse impact.'' Separately, NMFS acknowledges that some marine
mammals may respond to sound at 120 dB in some circumstances; however,
based on the best available data, only a subset of those exposed at
that low level respond in a manner that would be considered harassment
under the MMPA. NMFS and the Navy have quantified those individuals of
certain stocks where appropriate, analyzed the impacts, and authorized
them where needed. Further, NMFS and the Navy have identified exclusion
zone sizes that are best suited to minimize impacts to marine mammal
species and stocks and their habitat while also being practicable (see
Mitigation Measures section of this rule). Buffer zones are addressed
in Comment 50.
Comment 32: A Commenter recommended NMFS impose a 10 kn ship speed
in biologically important areas for marine mammals to reduce
[[Page 57120]]
vessel strikes and that NMFS should mandate that ship speed be reduced
to a maximum of 10 kn in mitigation areas or in the presence of marine
mammals to decrease the probability of strikes and decrease sound
disturbance from engines.
Response: This issue is addressed elsewhere in the Comments and
Responses section and for specific mitigation areas, but we also
reiterate here that the Navy has applied conditional ship-speed
restrictions in the areas where it is practicable. However, generally
speaking, it is impracticable (because of impacts to mission
effectiveness) to further reduce ship speeds for Navy activities, and,
moreover, given the maneuverability of Navy ships at higher speeds and
effective Lookouts, any further reduction in speed would reduce the
already low probability of ship strike little, if any.
Mitigation Areas
Introduction
The Navy included a comprehensive proposal of mitigation measures
in their initial application that included procedural mitigations that
reduce the likelihood of mortality, injury, hearing impairment, and
more severe behavioral responses for most species. The Navy also
included time/area mitigation that further protects areas where
important behaviors are conducted and/or sensitive species congregate,
which reduces the likelihood of takes that are likely to impact
reproduction or survival (as described in the Mitigation Measures
section of the final rule and the Navy's application). As a general
matter, where an applicant proposes measures that are likely to reduce
impacts to marine mammals, the fact that they are included in the
proposal and application indicates that the measures are practicable,
and it is not necessary for NMFS to conduct a detailed analysis of the
measures the applicant proposed (rather, they are simply included).
However, it is necessary for NMFS to consider whether there are
additional practicable measures that could also contribute to the
reduction of adverse effects on the species or stocks through effects
on annual rates of recruitment or survival. In the case of the Navy's
application, NMFS raised potential additional mitigation measures for
consideration, and discussion between the Navy and NMFS of the multiple
factors considered in a least practicable adverse impact analysis
resulted in the expansion of the SE NARW Mitigation Area by 500 mi\2\.
During the public comment period on the proposed rule, NMFS
received numerous recommendations for the Navy to implement additional
mitigation measures, both procedural and time/area limitations.
Extensive discussion of the recommended mitigation measures in the
context of the factors considered in the least practicable adverse
impact analysis (considered in the Mitigation Measures section of the
final rule and described below), as well as considerations of alternate
iterations or portions of the recommended measures considered to better
address practicability concerns, resulted in the addition of several
procedural mitigations and expansion of multiple time/area mitigations
(see the Mitigation Measures section in the final rule). These
additional areas reflect, for example, the concerning stock status of
the NARW and Bryde's whales (which resulted in expanded time/area
mitigation), focus on areas where important behaviors and habitat are
found (which resulted in NARW mitigation areas expanded to better
reflect ESA-designated critical habitat in the Southeast calving area
and Northeast feeding areas), and enhancement of the Navy's ability to
detect and reduce injury and mortality (which resulted in expanded
monitoring before and after explosive events and movement of ship shock
trials outside of Bryde's whale areas and the Mid-Atlantic Planning
Awareness Mitigation Areas). Through extensive discussion, NMFS and the
Navy worked to identify and prioritize additional mitigation measures
that are likely to reduce impacts on marine mammal species or stocks
and their habitat and are also possible for the Navy to implement.
Ultimately, the Navy adopted all mitigation measures that are possible
without jeopardizing their mission and Title 10 responsibilities. In
other words, a comprehensive assessment by Navy leadership of the
final, entire list of mitigation measures concluded that the inclusion
of any further mitigation beyond those measures identified here in the
final rule would be entirely impracticable. Below is additional
discussion regarding specific recommendations for mitigation measures.
Mitigation Area Recommendations
Comment 33: In several places in their comment letter, a Commenter
recommends that the Navy use an approach similar to that of the
settlement agreement in Conservation Council for Hawaii v. NMFS, 97
F.Supp. 3d 1210 (D. Haw. 2015), which, while barring or restricting
active sonar and explosives activities, reserved the Navy's authority
to proceed regardless, provided that certain conditions were met: (1)
That the Navy deemed the activity necessary for national defense; (2)
that the authority could be invoked only by the highest Command
authority; and (3) that any invocation of the authority be reported to
NMFS and, through the Navy's Annual and Five-Year Exercise Reports, to
the public.
Response: Following the publication of the 2013 HSTT Study Area
MMPA incidental take rule, a settlement agreement that resulted from
the litigation prohibited or restricted Navy activities within specific
areas in the HSTT Study Area. As a general note, the provisional
prohibitions and restrictions on activities within the HSTT Study Area
were derived pursuant to negotiations with the plaintiffs in that case
and were specifically not evaluated or selected based on the type of
thorough examination of best available science that occurs through the
rulemaking process under the MMPA, or through related analyses
conducted under the National Environmental Policy Act (NEPA) or the
ESA. The agreement did not constitute a concession by the Navy as to
the potential impacts of Navy activities on marine mammals or any other
marine species. Furthermore, the Navy's adoption of restrictions on its
HSTT activities as part of a relatively short-term settlement does not
mean that those restrictions are necessarily supported by the best
available science, likely to reduce impacts to marine mammals species
or stocks and their habitat, or practicable to implement from a
military readiness standpoint over the longer term in either the HSTT
Study Area or other Study Areas, including AFTT. The Fleet Commander
and senior Navy leadership have approved the mitigation and explicitly
determined that this is the maximum amount of mitigation that is
practicable to implement. Permission schemes would impede on commanding
officers who are empowered to train their crews and operate their
vessels to maintain readiness and ensure personnel safety.
North Atlantic Right Whale
Comment 34: As a general matter, several comments were provided in
regards to the NARW.
Response: NMFS appreciates the concerns expressed by Commenters
regarding NARW in the Northeast in their feeding and mating areas and
along the Atlantic Coast during migration, as well as in the Southeast
during calving. As an agency, NMFS is working to address the numerous
issues facing
[[Page 57121]]
NARW, including continued work to reduce deaths due to ship strike by
non-military vessels and entanglement in fishing gear, ongoing
investigation of the Unusual Mortality Event (UME), and other measures
to investigate and address the status of the species. The best
available scientific information shows that the majority of NARW
sightings in the Southeast occur in NARW calving areas from roughly
November through April, with individual NARWs migrating to and from
these areas through Mid-Atlantic shelf waters.
Since the proposed rule, the Navy has expanded the NE NARW
Mitigation Area to match designated ESA-designated critical habitat in
the Northeast. This further minimizes LFAS/MFAS/HFAS and explosives in
the mitigation area year-round and incorporates mitigation measures to
avoid ship strike to NARW (which will also reduce potentially ship
strike to other large whales). The Navy will obtain Early Warning
System NARW sightings data in the Jacksonville Operating Area and
report this information to all units to help vessels and aircraft
reduce potential interactions with NARW. The Navy will also broadcast
awareness notification messages with NARW Dynamic Management Area
information (e.g., location and dates) to applicable Navy assets
operating in the vicinity of the Dynamic Management Area. The Navy
added the SE NARW Critical Habitat Special Reporting Area and will
report the total hours and counts of active sonar and in-water
explosives used in the Southeast NARW ESA-designated critical habitat).
Additionally, the Navy has removed one of their testing activities in
the Northeast Range Complex (four events--USWTR) which decreased the
number of Level B harassment takes annually for NARW by 115 takes.
Separately, this change also decreased annual Level B harassment takes
by approximately 200 takes for ESA-listed fin whale, 20 takes for sei
whales, and approximately 10,000 takes for harbor porpoise, which are
discussed elsewhere in comments and responses. Additional discussion on
NARW is provided below, organized geographically north to south.
NARW Northeast
Comment 35: Several Commenters recommended expanding the Navy's NE
NARW Mitigation Area spatially and temporally to include important
areas such as Jeffreys Ledge and the central Gulf of Maine. Commenters
recommended that NMFS include (1) both Jeffreys Ledge and the central
Gulf of Maine in the Navy's NE NARW Mitigation Area, at least during
the timeframes noted by LaBrecque et al. (2015a). A Commenter stated
that, if NMFS chooses not to implement their recommendation for both
Jeffreys Ledge and the central Gulf of Maine during the timeframes
noted by LaBrecque et al. (2015a), that NMFS require the Navy to (1)
implement speed restrictions of no more than 10 kn during vessel
transits, (2) obtain the latest NARW sightings information from the
Northeast Fisheries Science Center's NARW Sighting Advisory System
prior to transits, (3) use the sightings information to reduce
potential interactions with NARWs during transits, and (4) implement
speed reductions after a vessel observes a NARW, if a vessel is within
5 nmi of a sighting reported to the NARW Sighting Advisory System
within the past week, and when operating at night or during periods of
reduced visibility. A Commenter also recommended that a 10 kn vessel
speed restriction be required for the NE NARW Mitigation Area and also
within the boundaries of Jeffreys Ledge, at a minimum between the
months of June-July and October-December.
Response: In response to the recommendations of enlarging the NE
NARW Mitigation Area, the Navy has agreed to expand the NE NARW
Mitigation Area to match the NE NARW ESA-designated critical habitat.
The expanded NE NARW Mitigation Area encompasses key BIAs, as described
below. In general, the expanded NE NARW Mitigation Area encompasses all
or nearly 100 percent of Cape Cod Bay, Jeffreys Ledge, the western edge
of Georges Bank, and the northern portion of the Great South Channel
BIAs. One hundred percent of the NARW feeding area on Jeffreys Ledge
and the NARW mating area in the central Gulf of Maine are included in
the expanded NE NARW Mitigation Area (as well as covering 100 percent
in the Gulf of Maine Planning Awareness Area). One hundred percent of
the NARW feeding area on Cape Cod Bay and Massachusetts Bay are
included in the expanded NE NARW Mitigation Area. Additionally, 95.08
percent of the NARW feeding area in the Great South Channel and the
northern edge of Georges Bank is included in the expanded NE NARW
Mitigation Area. The mitigation measures required in the previous NE
NARW Mitigation Areas will carry over to the expanded NE NARW
Mitigation Area and be implemented year-round.
In response to the recommendation to implement additional vessel
speed-related mitigation measures for NARW on Jeffreys Ledge and the
central Gulf of Maine, these areas are now in fact encompassed by the
expanded NE NARW Mitigation Area, as described above, and vessel speed-
related mitigation measures are being implemented during activities
using non-explosive torpedoes (the same described in proposed rule).
Specifically, in the NE NARW Mitigation Area, during non-explosive
torpedo events only, the Navy will (1) maintain a ship speed of no more
than 10 kn during transits and normal firing; no more than 18 kn during
submarine target firing; and during vessel target firing, vessel speeds
may exceed 18 kn for brief periods of time (e.g., 10-15 min.); (2)
before vessel transits within the NARW Mitigation Area, conduct a web
query or email inquiry to the Northeast Fisheries Science Center's NARW
Sighting Advisory System to obtain the latest NARW sightings
information; (3) vessels will use the sightings information to reduce
potential interactions with NARW during transits; and (4) in the NE
NARW Mitigation Area, vessels will implement speed reductions after
they observe a NARW, if they are within 5 nmi of a sighting reported to
the NARW Sighting Advisory System within the past week, and when
operating at night or during periods of reduced visibility.
Comment 36: A Commenter recommends that NMFS prohibit all active
low-, mid-, and high-frequency sonar and limit non-explosive torpedo
use from April through June in the Great South Channel and from
February through April in Cape Cod Bay within the NE NARW Mitigation
Area.
Response: As discussed above, the Navy has agreed to expand the NE
NARW Mitigation Area to encompass all of the ESA-designated critical
habitat in the Northeast year-round. Therefore, within the expanded NE
NARW Mitigation Area, the Navy has agreed to minimize, but not
eliminate, the use of low-frequency active sonar, mid-frequency active
sonar, and high-frequency active sonar to the maximum extent
practicable. The Navy will not use Improved Extended Echo Ranging
sonobuoys within three nmi of the mitigation area and not use explosive
and non-explosive bombs, in-water detonations, and explosive torpedoes
within the mitigation area. While this does not include non-explosive
torpedoes within the NE NARW Mitigation Area, there are only a small
number of Level B harassment takes from this activity. The Navy
analyzed this area and determine that non-explosive torpedo activities
could not be removed from this area as described
[[Page 57122]]
below. There are 33 estimated takes from TORPEX. This region provides a
variety of bathymetric and environmental conditions necessary to ensure
functionality and accuracy of systems and platforms in areas analogous
to where the military operates. Testing locations are typically located
near systems command support facilities, which provide critical safety,
platform, and infrastructure support and technical expertise necessary
to conduct testing. The Navy has used these same torpedo testing areas
in this region for decades because they provide critical bathymetric
and oceanographic features, and using these same areas provides data
collection consistency, which is critical for comparative data
analysis. In short, NMFS concurs with the Navy that the addition of
this measure would be impracticable. However to mitigate for non-
explosive torpedo events, the Navy has already agreed to several
procedural mitigation steps to avoid NARW as follows. The Navy will
conduct activities during daylight hours in Beaufort sea state 3 or
less. The Navy will use three Lookouts (one positioned on a vessel and
two in an aircraft during dedicated aerial surveys) to observe the
vicinity of the activity. An additional Lookout will be positioned on
the submarine, when surfaced. Immediately prior to the start of the
activity, Lookouts will observe for floating vegetation and marine
mammals; if observed, the activity will not commence until the vicinity
is clear or the activity is relocated to an area where the vicinity is
clear. During the activity, Lookouts will observe for marine mammals;
if observed, the activity will cease. To allow a sighted NARW (or any
other marine mammals) to leave the area, the Navy will not recommence
the activity until one of the following conditions has been met: (1)
The animal is observed exiting the vicinity of the activity; (2) the
animal is thought to have exited the vicinity of the activity based on
a determination of its course, speed, and movement relative to the
activity location; or (3) the area has been clear from any additional
sightings for 30 min.
Northeast Planning Awareness Mitigation Area
Comment 37: A Commenter recommends Navy/NMFS further limiting MTEs
and prohibiting/limiting other activities to reduce cumulative
exposures to range-limited beaked whale and sperm whale populations
that may inhabit the NE Planning Awareness Mitigation Areas. The
Commenter recommends that NMFS consult with the Navy and consider
prohibiting the planning and conduct of major exercises within these
areas, using the Conservation Council settlement-agreement approach as
described earlier in the Mitigation Areas of this Comments and
Responses section. If MTEs cannot absolutely be avoided, the Commenter
recommends that NMFS should prohibit conduct of more than two MTEs per
year, with each exercise carried out in different NE Planning Awareness
Mitigation Areas (i.e., one exercise in the northern Mitigation Area,
and one exercise in the southern Mitigation Area), to ensure that
marine mammal populations with site fidelity are not exposed to
multiple major training exercises within a single year. Similarly, the
Commenter asserts that NMFS should consider prohibiting testing and
unit-level sonar and in-water explosives training, or alternatively,
and less preferably, reducing the number of hours allowable in a given
year, with the prohibition or restriction structured as in the
Conservation Council settlement agreement.
Response: As part of the NE Planning Awareness Mitigation Areas,
the Navy already agrees to avoid conducting MTEs within the mitigation
area to the maximum extent practicable. However, if Navy needs to
conduct MTE's, it will not conduct more than four per year within the
mitigation area. The Commenter indicated that range-limited beaked
whale populations have been found on the shelf break off Cape Hatteras,
areas off Canada, in the Mediterranean, off Southern California, in the
Bahamas, and around the Hawaiian Islands, and range-limited sperm whale
populations have been found off Cape Hatteras, the GOMEX, and off
Western Australia. The Commenter assumed that beaked whales and sperm
whales are also range-limited within the NE Planning Awareness
Mitigation Areas, and as a result, recommended additional mitigation to
limit MTEs and other activities to reduce cumulative exposure in the NE
Planning Awareness Mitigation Areas. However, NMFS agrees with the
Navy's assessment that the best available science does not indicate
that beaked whales and sperm whales are range-limited within the NE
Planning Awareness Mitigation Areas. NMFS relied on the best available
scientific information (e.g., NMFS' Stock Assessment Reports (SARs);
Roberts et al., 2016, 2017; and numerous study reports from Navy-funded
monitoring and research in the specific geographic region) in assessing
density, distribution, and other information regarding marine mammal
use of habitats in the study area. In addition, NMFS consulted
LaBrecque et al. (2015), which provides a specific, detailed assessment
of known BIAs and provides the best available science to help inform
regulatory and management decisions about some, though not all,
important cetacean areas. BIAs, which may be region-, species-, and/or
time-specific, include reproductive areas, feeding areas, migratory
corridors, and areas in which small and resident populations are
concentrated. There are currently no BIAs for beaked whales or sperm
whales along the Atlantic Coast.
As discussed in the Analysis and Negligible Impact Determination
section, a few minor to moderate TTS or behavioral reactions to an
individual over the course of a year are unlikely to have an impact on
individual reproduction or survival. Considering these factors and the
required mitigation measures, adverse impacts for the species or stock
via effects on recruitment or survival are not expected. The Navy does
not typically schedule MTEs in the Northeast Range Complexes, as
indicated in Table 64. For training and testing that does occur here,
this area provides a wide range of bathymetric and topographic
opportunities that support critical smaller scale training and testing
necessary to meet mission requirements. Additionally, MTEs originally
planned for other locations may have to change during an exercise, or
in exercise planning, based on an assessment of the performance of the
units, or due to other conditions such as weather and mechanical
issues. These contingency requirements preclude the Navy from
completely eliminating MTEs from occurring in this area.
Comment 38: A Commenter recommends prohibiting/limiting sonar and
in-water explosives activities within the southern portion of the
Northeast Canyons and Seamounts National Marine Monument, including the
Bear Seamount and Physalia Seamount.
Response: Currently the Northeast Canyons and Seamounts National
Monument overlap the Gulf of Maine Planning Awareness Mitigation Area
and the NE Planning Awareness Mitigation Areas, respectively. Bear
Seamount and Physalia Seamount are contained within the Seamount Unit.
The Navy is already limiting activities within the NE Planning
Awareness Mitigation Areas by avoiding conducting MTEs to the maximum
extent practicable (and avoiding MTEs completely within the Gulf of
Maine Planning Awareness Mitigation Area). In its assessment of the
practicability of
[[Page 57123]]
potential mitigation, the Navy indicated that it had considered
implementing additional restrictions on active sonar and explosives in
the Northeast Canyons and Seamounts National Marine Monument. Navy's
operational assessment determined that implementing additional
mitigation is impracticable for the reasons stated in Section 5.4.2 of
the AFTT FEIS/OEIS (Mitigation Areas off the Northeastern United
States) and also would be impracticable due to implications for safety
(the ability to avoid potential hazards), sustainability (maintain
readiness), and the Navy's ability to continue meeting its Title 10
requirements to successfully accomplish military readiness objectives.
The Navy's operational input indicates that designating additional
mitigation areas (including the southern portion of the Northeast
Canyons and Seamounts National Marine Monument) or implementing further
restrictions on the level, number, or timing (seasonal or time of day)
of training or testing activities within the mitigation areas
(including, but not limited to, limiting MTEs and other activities to
reduce cumulative exposures) would have a significant impact on (1) the
ability of Navy units to meet their individual training and
certification requirements, preventing them from deploying with the
required level of readiness necessary to accomplish their missions; (2)
the ability to certify strike groups to deploy to meet national
security tasking, limiting the flexibility of Combatant Commanders and
warfighters to project power, engage in multi-national operations, and
conduct the full range of naval warfighting capability in support of
national security interests; (3) the ability of program managers and
weapons system acquisition programs to meet testing requirements and
required acquisition milestones; (4) operational costs due to extending
distance offshore, which would increase fuel consumption, maintenance,
and time on station to complete required training and testing
activities; (5) the safety risk associated with conducting training and
testing at extended distances offshore, farther away from critical
medical and search and rescue capabilities; (6) accelerated fatigue-
life of aircraft and ships, leading to increased safety risk and higher
maintenance costs; (7) training and testing realism due to reduced
access to necessary environmental or oceanographic conditions that
replicate potential real world areas in which combat may occur; and (8)
the ability for Navy sailors to train and become proficient in using
the sensors and weapons systems as would be required in a real world
combat situation. NMFS concurs with the Navy's determination that the
recommended additional mitigation is impracticable and, accordingly,
has not included it in the requirements of the rule.
Gulf of Maine Planning Awareness Mitigation Area
Comment 39: A Commenter comments that, although the Gulf of Maine
Planning Awareness Area represents a significant geographic area, the
mitigation requirements are less limited compared to the NE NARW
Mitigation Area. Within the boundaries of this area between the months
of July-September, the Commenter recommends prohibiting/further
limiting mid- and high-frequency sonar and prohibit explosives
activities within the biologically important area for harbor porpoise.
The Commenter recommends prohibiting low-, mid-, and high-frequency
sonar activities from March through November in biologically important
feeding habitat for minke whales at Cashes Ledge, as well as
prohibiting explosives activities in this area year-round. The
Commenter also recommends prohibiting/limiting sonar and in-water
explosives activities within the northern portion of the Northeast
Canyons and Seamounts National Marine Monument.
Response: In regards to harbor porpoise, 81.87 percent of the small
and resident population BIA within the U.S. Exclusive Economic Zone
(EEZ) overlaps the now expanded year-round NE NARW Mitigation Area, and
100 percent is contained within the Gulf of Maine Planning Awareness
Mitigation Area.
In regards to minke whales, 100 percent of the BIA falls within the
now expanded year-round NE NARW Mitigation Area, and 100 percent also
falls within the Gulf of Maine Planning Awareness Mitigation Area. The
Navy is minimizing the use of low-, mid-, and high-frequency active
sonar to the maximum extent practicable and limiting the use of
explosives, explosive and non-explosive bombs, in-water detonations,
and explosive torpedoes within the expanded NE NARW Mitigation Area
year-round. Specifically, the Navy will not use Improved Extended Echo
Ranging sonobuoys within 3 nmi of the mitigation area. The Navy has now
agreed (since the proposed rule) not to conduct MTEs within the year-
round Gulf of Maine Planning Awareness Mitigation Area and will cap the
sonar use in the mitigation area to less than 200 hours of hull-mounted
MFAS per year, thereby reducing impacts to harbor porpoise further. As
discussed in the Analysis and Negligible Impact Determination section,
the activities conducted by the Navy are of short duration (minutes to
a few hours) and widely dispersed temporally and geographically and are
not expected to significantly affect natural behavioral patterns of
harbor porpoises or minke whales, such as feeding, breeding, etc., in a
manner that would adversely affect either stock via impacts on rates of
recruitment or survival.
In regards to the use of active sonar and in-water explosives being
prohibited or limited in the area year-round within the boundaries of
the northern portion of the Northeast Canyons and Seamounts Marine
National Monument, the northern portion (Canyon Unit) falls inside of
the Gulf of Maine Planning Awareness Mitigation area. The Navy is
already limiting their use of hull-mounted MFAS by capping use at 200
hrs per year and now will not conduct MTEs within the mitigation area.
However, there are no limitations on explosives in this area. The Navy
has worked collaboratively with NMFS to develop mitigation areas using
inputs from the operational community, the best available science
discussed in Chapter 3 (Affected Environment and Environmental
Consequences) of the AFTT FEIS/OEIS, published literature, predicted
activity impact footprints, and marine species monitoring and density
data. The Navy has communicated that it completed an extensive
biological assessment and operational analysis (based on a detailed and
lengthy review by training experts and leadership responsible for
meeting statutory readiness requirements) of potential mitigation areas
throughout the entire Study Area. The mitigation identified in this
final rule represents what the Navy has stated is the maximum
mitigation that is practicable to implement under the Proposed Action.
Operational input indicates that designating additional mitigation
areas (including, but not limited to, within the northern portion of
the Northeast Canyons and Seamounts Marine National Monument) and
implementing further restrictions on the level, number, or timing
(seasonal or time of day) of training or testing activities within the
mitigation areas (including, but not limited to, limiting MTEs and
other activities) would have a significant impact on (1) the ability
for units to meet their individual training and certification
requirements, preventing them from
[[Page 57124]]
deploying with the required level of readiness necessary to accomplish
their missions; (2) the ability to certify strike groups to deploy to
meet national security tasking, limiting the flexibility of Combatant
Commanders and warfighters to project power, engage in multi-national
operations, and conduct the full range of naval warfighting capability
in support of national security interests; (3) the ability of program
managers and weapons system acquisition programs to meet testing
requirements and required acquisition milestones; (4) operational costs
due to extending distance offshore, which would increase fuel
consumption, maintenance, and time on station to complete required
training and testing activities; (5) the safety risk associated with
conducting training and testing at extended distances offshore farther
away from critical medical and search and rescue capabilities; (6)
accelerated fatigue-life of aircraft and ships leading to increased
safety risk and higher maintenance costs; (7) training and testing
realism due to reduced access to necessary environmental or
oceanographic conditions that replicate potential real world areas in
which combat may occur; and (8) the ability for Navy sailors to train
and become proficient in using the sensors and weapons systems as would
be required in a real world combat situation. The Navy has stated that
it is unclear how it would be able to train and test without access to
the ranges and locations that have been carefully developed over
decades. Additionally, limiting access to ranges would deny operational
commanders the ability to respond to emerging national security
challenges, placing national security at risk and sailors in danger by
not being properly prepared to perform their missions. Likewise, the
Navy has stated that these restrictions would have a significant impact
on the testing of current systems and the development of new systems.
This would deny weapons system program managers and research, testing,
and development program managers the flexibility to rapidly field or
develop necessary systems due to the required use of multiple areas
within limited timeframes. NMFS concurs with the Navy's practicability
assessment.
NARW Mid-Atlantic
Comment 40: A Commenter recommends that the Navy should not plan
activities in the Mid-Atlantic Planning Awareness Mitigation Areas to
avoid times of predicted higher NARW occurrence, and that NMFS should
consult experts in the NARW Consortium, including the New England
Aquarium, for the best available information on the timing of the NARW
migration and the months in which NARW are most likely to be present
within the Mid-Atlantic Planning Awareness Mitigation Areas.
Response: By late March, NARW typically leave the calving grounds
of the southeast and travel up the U.S. continental shelf to the Gulf
of Maine (Kenney et al., 2001; Knowlton et al., 2002 as cited in
LaBrecque et al., 2015), and during this migration, the animals will
traverse these training areas (e.g., Virginia Capes). Additionally,
recent evidence suggests distributional shifts of NARW, with passive
acoustic data indicating nearly year-round presence of this species in
the mid-Atlantic area (Davis et al., 2017). As described in the final
rule, the Navy will avoid conducting MTEs within the mitigation area
(Composite Training Unit Exercises or Fleet Exercises/Sustainment
Exercises) to the maximum extent practicable but cannot avoid the area
completely and will not conduct more than four MTEs per year.
Locations for training and testing activities are chosen based on
their proximity of associated training and testing ranges, operating
areas (e.g., VACAPES), available airspace (e.g., W-50), unobstructed
sea space, and aircraft emergency landing fields (e.g., Naval Air
Station Oceana), and with consideration for public safety (e.g.,
avoiding areas popular for recreational boating). The Navy has
indicated that further restrictions in this area (e.g., further
restricting the number of major training events or seasonal
restrictions on major training exercises based on predicted density of
marine mammal species) for mitigation would be impracticable to
implement and would significantly impact the scheduling, training, and
certifications required to prepare naval forces for deployment. It
would be impracticable to implement seasonal or temporal restrictions
for all training and testing in this region because training and
testing schedules are based on national tasking, the number and
duration of training cycles identified in the Optimized Fleet Response
Plan and various training plans, and forecasting of future testing
requirements (including emerging requirements). Although the Navy has
indicated that it has the ability to restrict the number of major
training exercises in the Mid-Atlantic Planning Awareness Mitigation
Areas, the Navy is unable to eliminate all MTEs in this area, because
it provides air and sea conditions necessary to meet real-world
requirements. Additionally, MTEs originally planned for other locations
may have to change during an exercise, or in exercise planning, based
on an assessment of the performance of the units or due to other
conditions such as weather and mechanical issues. The Navy has
indicated that these contingency requirements preclude it from
completely prohibiting MTEs from occurring in this area. NMFS concurs
with the Navy's practicability assessment.
Mid-Atlantic Planning Awareness Mitigation Areas
Comment 41: A Commenter recommends extending the boundaries of the
Mid-Atlantic Planning Awareness Mitigation Areas to fully encompass the
Cape Hatteras Special Research Area (CHSRA), prohibiting all training,
and testing activities within the boundary of the CHSRA.
Response: Although the Navy has the ability to restrict the number
of MTEs in the Mid-Atlantic Planning Awareness Mitigation Areas (no
more than four), the Navy has communicated that it is unable to
prohibit all MTEs in this area, as it provides air and sea conditions
necessary to meet real-world requirements. Additionally, MTEs
originally planned for other locations may have to change during an
exercise, or in exercise planning, based on an assessment of the
performance of the units or due to other conditions such as weather and
mechanical issues. These contingency requirements preclude the Navy
from completely prohibiting MTEs from occurring in this area.
In its assessment of potential mitigation, the Navy considered
implementing additional restrictions on active sonar and explosives in
the U.S. mid-Atlantic region, including expanding the boundaries of the
mitigation area to fully encompass the CHSRA, limiting MTEs, and
planning activities to avoid times of predicted high NARW density. Navy
operators determined that implementing additional mitigation beyond
what is described in this final rule would be impracticable due to
implications for safety, sustainability, and the Navy's ability to
continue meeting its Title 10 requirements to successfully accomplish
military readiness objectives. Some of the Navy's considerations
regarding why it would be impracticable to implement additional
mitigation in the mid-Atlantic region, which NMFS has reviewed and
concurs with, are provided below.
The waters off the mid-Atlantic and southeastern United States
encompass part of the primary water space in the AFTT Study Area where
unit-level training, integrated training, and
[[Page 57125]]
deployment certification exercises occur and are critical for these and
other training and testing activities. The Navy conducts training and
testing activities off the mid-Atlantic and southeastern United States
because this region provides valuable access to air and sea space
conditions that are analogous to areas where the Navy operates or may
need to operate in the future. This contributes to safety of personnel,
skill proficiency, and validation of testing program requirements. For
training and testing, areas in this region where exercises are
scheduled to occur are chosen to allow for the realistic tactical
development of the myriad of training and testing scenarios that Navy
units are required to complete to be mission effective. Certain
activities, such as deployment certification exercises using integrated
warfare components, require large areas of the littorals and open ocean
for realistic and safe training.
Locations for other training and testing activities are chosen due
to the proximity of associated training and testing ranges and
operating areas (e.g., VACAPES), available airspace (e.g., W-50),
unobstructed sea space, and aircraft emergency landing fields (e.g.,
Naval Air Station Oceana) and with consideration for public safety
(e.g., avoiding areas popular for recreational boating). Further
restrictions in this area (e.g., further restricting the number of
major training events or seasonal restrictions on MTEs based on
predicted density of marine mammal species) for mitigation would be
impracticable to implement and would significantly impact the
scheduling, training, and certifications required to prepare naval
forces for deployment. It would be impracticable to implement seasonal
or temporal restrictions for all training and testing in this region
(including within the CHSRA) because training and testing schedules are
based on national tasking, the number and duration of training cycles
identified in the Optimized Fleet Response Plan and various training
plans, and forecasting of future testing requirements (including
emerging requirements).
Comment 42: A Commenter also recommends further limiting MTE and
prohibiting/further limiting other activities to reduce cumulative
exposures in the Mid-Atlantic Planning Awareness Mitigation Areas.
Commenter asserts that if MTEs cannot absolutely be avoided, NMFS
should consider limiting the number of MTEs allowable to two per year,
with each exercise carried out in different Mid-Atlantic Planning
Awareness Mitigation Areas (i.e., one exercise in the northern
Mitigation Area, and one exercise in the southern Mitigation Area), to
ensure that marine mammal populations with site fidelity are not
exposed to multiple MTEs within a single year. Similarly, the Commenter
states that NMFS should consider prohibiting testing, unit-level sonar,
and in-water explosives training in the mitigation areas, or
alternatively, and less preferably, reducing the number of hours
allowable in a given year, with the prohibition or restriction
structured as in the Conservation Council settlement agreement to
provide flexibility.
Response: The Navy has indicated that although it has the ability
to restrict the number of MTEs in the Mid-Atlantic Planning Awareness
Mitigation Areas (no more than four), the Navy is unable to prohibit
all MTEs in this area, as it provides air and sea conditions necessary
to meet real-world requirements. MTE locations may have to change
during an exercise, or in exercise planning, based on an assessment of
the performance of the units, or due to other conditions such as
weather and mechanical issues, which precludes the ability to
completely prohibit major training exercises from occurring in this
area.
In its assessment of potential mitigation, the Navy considered
implementing additional restrictions on active sonar and explosives in
the U.S. mid-Atlantic region and limiting MTEs and planning activities
to further limit activities in times and areas of predicted high NARW
density. Navy operators determined that implementing additional
mitigation beyond what is described in Section 5.4.3 (Mitigation Areas
off the mid-Atlantic and southeastern United States) of the AFTT FEIS/
OEIS and this final rule (which provides a significant reduction of
impacts on NARW, as discussed in the Mitigation Measures section in
this final rule) would be impracticable due to implications for safety,
sustainability, and the Navy's ability to continue meeting its Title 10
requirements to successfully accomplish military readiness objectives.
As the Navy explains, it would be impracticable to implement additional
mitigation in the U.S. mid-Atlantic region for several reasons. NMFS
reviewed and concurs with the Navy's assessment of practicality,
effects on mission effectiveness, and personnel safety. First, the
waters off the mid-Atlantic and southeastern United States encompass
part of the primary water space in the AFTT Study Area where unit-level
training, integrated training, and deployment certification exercises
occur and are critical for these and other training and testing
activities. The Navy conducts training and testing activities off the
mid-Atlantic and southeastern United States because this region
provides valuable access to air and sea space conditions that are
analogous to areas where the Navy operates or may need to operate in
the future. This contributes to ensure safety of personnel, skill
proficiency, and validation of testing program requirements. Areas in
this region where activities are scheduled to occur are chosen to allow
for the realistic tactical development of the myriad training and
testing scenarios that Navy units are required to complete to be
mission effective. Certain activities, such as deployment certification
exercises using integrated warfare components, require large areas of
the littorals and open ocean for realistic and safe training. Locations
for other training and testing activities are chosen due to the
proximity of associated training and testing ranges and operating areas
(e.g., VACAPES), available airspace (e.g., W-50 in VACAPES),
unobstructed sea space, aircraft emergency landing fields (e.g., Naval
Air Station Oceana), and with consideration for public safety (e.g.,
avoiding areas popular for recreational boating). Further restrictions
in this area (e.g., further restricting the number of major training
events or seasonal restrictions on MTEs based on predicted density of
marine mammal species, such as NARW) for mitigation would be
impracticable to implement and would significantly impact the
scheduling, training, and certifications required to prepare naval
forces for deployment. It would be impracticable to implement seasonal
or temporal restrictions for all training and testing in this region
(including within the CHSRA) because training and testing schedules are
based on national tasking, the number and duration of training cycles
identified in the Optimized Fleet Response Plan and various training
plans, and forecasting of future testing requirements (including
emerging requirements).
Comment 43: A Commenter recommends that NMFS require the Navy to
move the ship shock trial areas beyond the extents of the two Mid-
Atlantic Planning Awareness Areas and allow a minimum of a five nmi
buffer between the Planning Awareness Areas and the ship shock trial
areas.
Response: The Navy assessed the practicality and effects on mission
effectiveness and personnel safety, of this measure and agreed to move
the ship shock trial box east of the Mid-Atlantic Planning Awareness
Mitigation Areas, including a five nmi buffer.
[[Page 57126]]
NMFS included the requirement in the final rule.
NARW Southeast
Comment 44: Several commenters recommended expanding the Navy's SE
NARW mitigation areas to encompass additional areas of NARW occurrence
or the entirety of the ESA-designated critical habitat in the
Southeast, and/or expanding the limitations on Navy activities within
these areas. Further, a Commenter recommended that if NMFS was not
going to expand the SE NARW Mitigation Area, that NMFS should require
the Navy to further implement measures of vessel speed restrictions and
obtain NARW sighting information to reduce NARW and potential vessel
interactions on the NARW calving BIA. A Commenter commented that NMFS
should include the entire extent of the NARW calving BIA as depicted in
LaBrecque et al. (2015a) in the SE NARW Mitigation Area. Another
commenter requested that the Navy add an ``expanded mitigation area''
(geographically corresponding to the current SE NARW ESA-designated
critical habitat, minus the Navy's current SE NARW Mitigation Area). A
Commenter suggested that if NMFS chooses not to implement the NARW
calving BIA as depicted in and during the timeframes noted by LaBrecque
et al. (2015a), then they recommend that NMFS require the Navy to (1)
implement speed restrictions of no more than 10 kn during vessel
transits, (2) obtain the latest NARW sightings information prior to
transits from the Southeast Regional Office's (SERO) NARW Early Warning
System, (3) use the sightings information to reduce potential
interactions with NARWs during transits, and (4) implement speed
reductions after a vessel observes a NARW, if a vessel is within 5 nmi
of a sighting reported to the SE Regional Office NARW Early Warning
System within the past week, and when operating at night or during
periods of reduced visibility. Similarly, a commenter also requested
that the Navy minimize activities requiring vessel speeds greater than
10 kn for all vessels 65 ft or greater operating within the current SE
NARW Mitigation Area as well as an ``expanded mitigation area''
(spatially corresponding to the current SE NARW ESA-designated critical
habitat, minus the Navy's current SE NARW Mitigation Area).
Response: The SE NARW Mitigation Area remains the same from the
proposed rule but as a result of recommendations from and discussion
with NMFS, the Navy has expanded this area from the previous rule
authorizing incidental take between 2013 and 2018. The SE NARW
Mitigation Area occurs off the coast of Florida and Georgia and
encompasses a portion of the calving ESA-designated critical habitat
for this species. The best available scientific information shows that
the majority of NARW sightings in the Southeast occur in calving areas
from roughly November through April, with individual NARW migrating to
and from these areas through mid-Atlantic shelf waters. Because of
these concerns regarding NARW, the Navy proposed mitigation in its
rulemaking/LOA application in the SE NARW Mitigation Area from November
15 to April 15. These measures are expected to largely avoid disruption
of behavioral patterns for NARW and to minimize overall acoustic
exposures. Major training exercises and most activities using active
sonar will not occur in some portions of the calving ESA-designated
critical habitat in the SE NARW Mitigation Area. The Navy will not
conduct: (1) Low-frequency active sonar (except as noted below), (2)
mid-frequency active sonar (except as noted below), (3) high-frequency
active sonar, (4) missile and rocket activities (explosive and non-
explosive), (5) small-, medium-, and large-caliber gunnery activities,
(6) Improved Extended Echo Ranging sonobuoy activities, (7) explosive
and non-explosive bombing activities, (8) in-water detonations, and (9)
explosive torpedo activities within the mitigation area. Further, to
the maximum extent practicable, the Navy has already agreed to minimize
the use of: (1) Helicopter dipping sonar, (2) low and mid-frequency
active sonar for navigation training and object detection exercises
within the mitigation area, and (3) other activities. The activities
resulting in most of the Level B harassment within ESA-designated
critical habitat and within the Navy's SE NARW Mitigation Area are from
navigation (37 takes) and ship object detection exercise (82 takes)
which each last for approximately 30 min or less as the vessel or
submarine is transiting into or out of port. With the exception of the
Composite Training Unit Exercise, all activities using sonar that are
expected to result in Level B harassment by TTS and behavioral
disturbance of NARW in this area are either short-term (e.g., 30 min to
4 hours during submarine navigation and signature analysis testing) or
involve a limited number of sonar platforms (since there are a limited
number of sonar platforms and both the sonar platforms and animals are
moving, there is a low likelihood of co-occurrence for more than a
short period of time). These factors limit the potential for these
instances of Level B harassment by TTS and behavioral disturbance to
result in long duration exposures. Consistent with literature described
previously on the response of marine mammals to sonar, we anticipate
that exposed animals will be able to return to normal behavior patterns
shortly after the exposure is over (minutes to hours) (See, e.g.,
Goldbogen et al., 2013; Sivle et al., 2015). For longer duration
activities (e.g., MTEs), particularly those utilizing multiple sonar
platforms, the chance of a longer term exposure and associated response
is increased, but as described below, we do not expect long-term
exposures to occur from these activities. Depending on animal movement
and where these longer duration activities actually occur within the
operating areas, such exercises have the potential to result in
sustained and/or repeated exposure of NARW. However, the Navy's
geographic mitigations for MTEs and other exercises using active sonar
(with the exception of navigation and ship object detection) minimize
the likelihood of exposures of animals to these activities in ESA-
designated critical habitat. MTEs will not be conducted in most of the
Southeast ESA-designated critical habitat. Further, the Navy's modeling
indicated very limited impacts to NARW from MTEs in the southeast
(i.e., one instance of Level B behavioral harassment in the
Jacksonville Range Complex, which could occur within the ESA-designated
critical habitat designated for the species).
Based on this short duration of exposure, and the minor behavioral
response expected to occur from the exposure, we do not expect these
responses to affect the health of individual NARWs in any way that
could affect reproduction or survival, even though some individual
animals may experience Level B harassment more than once annually in
this area. NARW may be present in or near the SE NARW Mitigation Area
for approximately 20 events per year (5.48 percent) for navigation and
57 approximate events per year (15.61 percent) for object detection.
This does not necessarily mean NARW will be impacted by Level B
harassment takes during these short duration activities (approximately
30 min, up to 2 hrs). NMFS believes that the mitigation in the
Southeast avoids impacts to the NARWs while on the calving grounds.
While the Navy could not expand the SE NARW Mitigation Area to the full
extent of ESA-designated critical habitat, the Navy has agreed to
include the full
[[Page 57127]]
extent of ESA-designated critical habitat in a special reporting area
and annually report training and testing activities in this area to
NMFS. The Navy will report the total hours and counts of active sonar
and in-water explosives used in the SE NARW Critical Habitat Special
Reporting Area (November 15 through April 15) (i.e., the Southeast NARW
ESA-designated critical habitat) in its annual training and testing
activity reports submitted to NMFS.
In response to the recommendation to implement additional vessel
speed related mitigation measures for NARW in the calving BIA (as
depicted by LaBrecque et al., 2015), the SE NARW Mitigation Area has
not been expanded from the proposed rule. However, the Navy has added
mitigation measures related to vessels, including the addition of the
Jacksonville Operating Area Mitigation Area (November 15 through April
15), where additional communication will occur for all training and
testing activities occurring in this area to fleet vessels to minimize
potential interaction with NARW. The Jacksonville Operating Area
Mitigation Area overlaps with the SE NARW ESA-designated critical
habitat/calving BIA. Regarding measures to avoid vessel strikes in the
southeast, in the SE NARW Mitigation Area, (1) the Navy will implement
vessel speed reductions after they observe a NARW; (2) before
transiting or conducting training or testing activities in the SE NARW
Mitigation Area, the Navy will initiate communication with the Fleet
Area Control and Surveillance Facility, Jacksonville to obtain Early
Warning System NARW sightings data; (3) the Fleet Area Control and
Surveillance Facility, Jacksonville will advise vessels of all reported
NARW sightings in the vicinity to help vessels and aircraft reduce
potential interactions with NARW; and (4) vessels will implement speed
reductions if they are within 5 nmi of a sighting reported within the
past 12 hrs, or when operating at night or during periods of poor
visibility. To the maximum extent practicable, vessels will minimize
north-south transits. The Navy will use the reported sightings
information as it plans specific details of events (e.g., timing,
location, duration) to minimize potential interactions with NARW to the
maximum extent practicable. The Navy will use the reported sightings
information to assist visual observations of applicable mitigation
zones and to aid in the implementation of procedural mitigation.
Finally, since the proposed rule, the Navy has agreed to broadcast
awareness notification messages with NARW Dynamic Management Area
information (e.g., location and dates) to applicable Navy assets
operating in the vicinity (NARW Dynamic Management Area notification).
The information will alert assets to the possible presence of a NARW to
maintain safety of navigation and further reduce the potential for a
vessel strike. Units will use the information to assist their visual
observation of applicable mitigation zones during training and testing
activities and to aid in the implementation of procedural mitigation,
including but not limited to, mitigation for vessel movement.
For this rule, within the mid-Atlantic and southeastern region,
NMFS and the Navy worked to identify an opportunity to expand the
mitigation area for NARW off the southeastern United States in a way
that would enhance protections for the species, while balancing the
practicability of implementation. The Navy expanded the SE NARW
Mitigation Area to correlate with the occurrence of NARW to the maximum
extent practicable based on readiness requirements.
Certain activities, such as deployment certification exercises
using integrated warfare components, require large areas of the
littorals and open ocean for realistic and safe training. Locations for
other training activities are chosen due to the proximity of associated
training ranges (e.g., Jacksonville Range Complex), available airspace
(e.g., avoiding airspace conflicts with major airports such as
Jacksonville International Airport), unobstructed sea space, aircraft
emergency landing fields (e.g., Naval Air Station Jacksonville), and
with consideration for public safety (e.g., avoiding areas popular for
recreational boating). The Jacksonville Operating Area and Charleston
Operating Area represent critical training sea spaces that are
necessary to prepare naval forces for combat. Areas where testing
events are scheduled to occur are chosen to allow the Navy to test
systems and platforms in a variety of bathymetric and environmental
conditions to ensure functionality and accuracy in real world
environments. Test locations are typically located near the support
facilities of the systems commands, which provide critical safety,
platform, and infrastructure support and technical expertise necessary
to conduct testing (e.g., proximity to air squadrons).
In conclusion, the Navy has indicated that additional expansion of
the SE NARW Mitigation Area eastward to mirror the boundary of the
expanded ESA-designated critical habitat or northward to encompass all
areas of potential occurrence, would require training to move farther
north or farther out to sea, which would be impracticable due to
implications for safety and sustainability, as detailed in Section
5.4.3 (Mitigation Areas off the Mid-Atlantic and Southeastern United
States) of the AFTT FEIS/OEIS. Additionally, the Navy has explained why
further limitations on activities within this area would be
impracticable. NMFS reviewed, and concurs with, the Navy's assessment
of practicality, effects on mission effectiveness, personnel safety.
Comment 45: A Commenter recommended dipping sonar and low-frequency
sonar be prohibited in the Navy's SE NARW Mitigation Area.
Response: Regarding dipping sonar, as discussed in Section 5.4.3
(Mitigation Areas off the Mid-Atlantic and Southeastern United States)
of the AFTT FEIS/OEIS, the Navy will minimize the use of helicopter
dipping sonar to the maximum extent practicable. The only helicopter
dipping sonar activity that could potentially be conducted in the
mitigation area is Kilo Dip, which could involve 1-2 pings of active
sonar infrequently. Kilo Dip is a functional check activity that needs
to occur close to an air station in the event of a system failure
(i.e., all systems are not functioning properly). During this activity,
the Navy will implement the procedural mitigation described in Section
5.3.2.1 (Active Sonar) of the AFTT FEIS/OEIS, with visual observations
aided by Early Warning System NARW data.
Regarding LFAS, as discussed in Section 5.4.3 (Mitigation Areas off
the Mid-Atlantic and Southeastern United States) of the AFTT FEIS/OEIS,
the Navy will not conduct LFAS in the mitigation area, with the
exception of LFAS used for navigation training, which will be minimized
to the maximum extent practicable. During this activity, crews train to
operate sonar for navigation, an ability that is critical for safety
while transiting into and out of port during periods of reduced
visibility. The Navy will implement the procedural mitigation described
in Section 5.3.2.1 (Active Sonar), with visual observations aided by
Early Warning System NARW sightings data.
Additionally, since the proposed rule, the Navy added a SE NARW
Critical Habitat Special Reporting Area (November 15 through April 15)
where the Navy will report the total hours and counts of active sonar
and in-water explosives used in the Special Reporting Area in its
annual training and testing activity reports submitted to NMFS.
[[Page 57128]]
Geographically speaking, this Special Reporting Area is the same area
as the SE NARW ESA-designated critical habitat, and the reporting will
help NMFS and the Navy understand in a more refined way the actual
scale of activities occurring in NARW habitat, which will inform future
analyses and, as appropriate, adaptive management.
GOMEX Planning Awareness Mitigation Areas/Bryde's Whale Mitigation Area
Comment 46: Commenters recommend that NMFS (1) expand Area 2 in the
GOMEX Planning Awareness Mitigation Areas to include the waters (a) out
to the 400-m isobath along Area 2's entire extent and (b) from the 100-
to 400-m isobaths from Pensacola, Florida, to Mobile Bay, Alabama for
the biologically important area identified by LaBrecque et al. (2015)
for Bryde's whale, which in the proposed rule is not fully capturing
the extent of important habitat within the De Soto Canyon. A Commenter
also recommends moving, as necessary, the ship shock trial area farther
offshore to allow a minimum of a five nmi buffer between the expanded
Area 2 (as recommended above) in the GOMEX Planning Awareness
Mitigation Areas and the ship shock trial area, and restricting the
Navy from conducting underwater detonations in Area 2 in the GOMEX
Planning Awareness Mitigation Areas. Further, a Commenter recommends
that NMFS require the Navy to implement year-round speed restrictions
of no more than 10 kn during vessel transits in Area 2 of the GOMEX
Planning Awareness Mitigation Areas.
Response: Since the proposed rule, the Navy has agreed to the
addition of a year-round, Bryde's Whale Mitigation Area which will
cover the BIA as described in NMFS' 2016 Status Review and include the
area between 100 to 400 m isobaths between 87.5 degrees W to 27.5
degrees N. The Navy has agreed to move the northern GOMEX ship shock
trial box west, out of the Bryde's whale BIA/Bryde's Whale Mitigation
Area, including a five nmi buffer. Within the mitigation area, the Navy
will not conduct more than 200 hrs of hull-mounted MFAS per year and
will not use explosives (except during mine warfare activities). The
Navy will report the total hours and counts of active sonar and in-
water explosives used in the mitigation area in its annual training and
testing activity reports submitted to NMFS. Based on the Navy's
assessment of practicality and effects on mission effectiveness and
personnel safety, which NMFS reviewed and concurs with, the new
mitigation represents the maximum level of mitigation that is
practicable to implement within this area. Due to low numbers of
Bryde's whale, almost exclusively limited to the GOMEX, and limited
Navy ship traffic that overlaps with Bryde's whale habitat, the Navy
does not anticipate any ship strike takes. Furthermore, there have been
no documented Bryde's whale ship strikes by Navy vessels; therefore,
the speed restrictions would not lower the already low potential for
ship strike for this species. Further, the Navy will implement
procedural mitigation during any vessel movements to reduce potential
ship strike for all marine mammals including Bryde's whales.
Comment 47: A Commenter recommended prohibiting or reducing
deployment of all unit-level active low-, mid-, and high-frequency
sonar and underwater explosives in the GOMEX Planning Awareness
Mitigation Areas or alternatively, and less preferably, reducing the
number of hours allowable in a given year.
Response: Since the proposed rule, the Navy expanded and renamed a
portion of the GOMEX Planning Awareness Mitigation Areas as the Bryde's
Whale Mitigation Area. As described in more detail in Comment Response
46, the Bryde's Whale Mitigation Area allows a limited amount of MFAS
and prohibits the use of explosives. The Navy also will now not conduct
MTEs in the GOMEX Planning Awareness Mitigation Areas.
However, the Navy has communicated that the GOMEX encompasses part
of the primary water space in the AFTT Study Area where unit-level
training, integrated training, and deployment certification exercises
occur and it is critical for these and other training and testing
activities. The Navy conducts training and testing activities in the
GOMEX because this region provides valuable access to air and sea space
conditions that are analogous to areas where the Navy operates or may
need to operate in the future. This contributes to ensure safety of
personnel, skill proficiency, and validation of testing program
requirements. For training, areas in this region where exercises are
scheduled to occur are chosen to allow for the realistic tactical
development of the myriad of training scenarios Navy units are required
to complete to be mission effective. Certain activities, such as
deployment certification exercises using integrated warfare components,
require large areas of the littorals and open ocean for realistic and
safe training. Locations for other training activities are chosen due
to the proximity of associated training ranges (e.g., Pensacola
Operating Area); available airspace (e.g., avoiding airspace conflicts
with major airports, such as Key West International Airport);
unobstructed sea space (e.g., throughout the New Orleans Operating
Area); aircraft emergency landing fields (e.g., Naval Air Station
Pensacola), and with consideration of public safety (e.g., avoiding
areas popular for recreational boating). Areas where testing events are
scheduled to occur are chosen to allow the Navy to test systems and
platforms in a variety of bathymetric and environmental conditions to
ensure functionality and accuracy in real world environments. Test
locations are typically located near the support facilities of the
systems commands, which provide critical safety, platforms, and
infrastructure support and technical expertise necessary to conduct
testing (e.g., proximity to air squadrons). Based on the Navy's
assessment of practicality and effects on mission effectiveness and
personnel safety, which NMFS reviewed and concurs with, the Bryde's
Whale Mitigation Area includes the maximum level of mitigation that is
practicable to implement within this area.
Additional Mitigation Areas
Comment 48: A Commenter recommends adding additional mitigation
areas for (1) the Charleston Bump (year-round), (2) coastal bottlenose
dolphin habitat within the DWH oil spill area, and (3) habitat based
management for the Cul de Sac, Great Bahama Canyon.
Response: First, we note regarding the Charleston Bump, the
commenter cites the importance of the area to fish larvae and spawning,
fishing, and sea turtles, with only a general reference to ``a
diversity of marine mammals,'' without any indication that limiting
activities in the area would reduce impacts to marine mammal species
and stocks or their habitat. Regarding protection of coastal bottlenose
dolphins affected by the Deepwater Horizon (DWH) oil spill, we note
that of all the Northern GOMEX Estuarine stocks, only one overlaps with
stressors from the Navy's activities, and that stock is authorized for
one take by Level B harassment.
More importantly, separate from the fact that little, if any,
protection of marine mammals would be achieved through the adoption of
the recommended measures, the Navy has assessed the practicality and
effect of these recommendations on mission effectiveness and personnel
safety and determined that the measures would be impracticable, and
NMFS concurs with this determination.
[[Page 57129]]
In its assessment of potential mitigation, the Navy considered
implementing additional restrictions on active sonar and explosives in
the U.S. mid-Atlantic and GOMEX regions, including at the Charleston
Bump and areas affected by the DWH oil spill. Navy operators determined
that implementing additional mitigation beyond what is described in
Section 5.4.3 and Section 5.4.4 (Mitigation Areas off the mid-Atlantic
and Southeastern United States and Mitigation Areas in the GOMEX) of
the AFTT FEIS/OEIS would be impracticable due to implications for
safety (the ability to avoid potential hazards), sustainability
(maintain readiness), and the Navy's ability to continue meeting its
Title 10 requirements to successfully accomplish military readiness
objectives.
It would be impracticable to implement additional mitigation in the
U.S. mid-Atlantic and GOMEX for several reasons. The Navy has indicated
that the mitigation identified in Section 5.4 (Mitigation Areas to be
Implemented) of the AFTT FEIS/OEIS represents the maximum mitigation
within the identified mitigation areas that is practicable to implement
under the proposed activities. The Navy has communicated that
operational input indicates that designating additional mitigation
areas (including the Charleston Bump and areas affected by the DWH oil
spill) would (1) have a significant impact on the ability for units to
meet their individual training and certification requirements,
preventing them from deploying with the required level of readiness
necessary to accomplish their missions); (2) the ability to certify
strike groups to deploy to meet national security tasking (limiting the
flexibility of Combatant Commanders and warfighters to project power,
engage in multi-national operations, and conduct the full range of
naval warfighting capability in support of national security
interests); (3) the ability of program managers and weapons system
acquisition programs to meet testing requirements and required
acquisition milestones; (4) operational costs (due to extending
distance offshore, which would increase fuel consumption, maintenance,
and time on station to complete required training and testing
activities); (5) the safety risk associated with conducting training
and testing at extended distances offshore (farther away from critical
medical and search and rescue capabilities); (6) accelerated fatigue-
life of aircraft and ships (leading to increased safety risk and higher
maintenance costs); (7) training and testing realism (due to reduced
access to necessary environmental or oceanographic conditions that
replicate potential real world areas in which combat may occur); and
(8) the ability for Navy Sailors to train and become proficient in
using the sensors and weapons systems as would be required in a real
world combat situation.
Furthermore, the iterative and cumulative impact of all commenter-
proposed mitigation areas and seasonal or temporal restrictions would
deny national command authorities the flexibility to respond to
national security challenges and incur significant restrictions to
required training and testing that entail movements to multiple
operational areas along the Eastern seaboard and the GOMEX to conduct
training within set time frames. Likewise, this iterative and
cumulative impact would deny weapons system program managers and
research, testing, and development program managers the flexibility to
rapidly field or develop necessary systems due to the required use of
multiple areas within limited timeframes. Additional information
regarding the operational importance, significant negative impacts on
Navy training and testing activities, and impracticability of
implementing the mitigation area in each geographic region mentioned is
provided in Chapter 5 (Mitigation) of the AFTT FEIS/OEIS.
Regarding Cul de Sac, Bahamas, the Navy did not consider mitigation
for the Cul de Sac because it is not part of the AFTT Study Area.
Therefore, NMFS did not consider mitigation in the final rule for the
Cul de Sac because it is not part of the AFTT Study Area.
Comment 49: A Commenter recommends that efforts be undertaken to
identify additional important habitat areas across the AFTT Study Area,
using the full range of data and information available (e.g., habitat-
based density models, NOAA-recognized BIAs, survey data, etc.).
Response: NMFS and the Navy used the best available scientific
information (e.g., SARs; Roberts et al., 2016, 2017; and numerous study
reports from Navy-funded monitoring and research in the specific
geographic region) in assessing density, distribution, and other
information regarding marine mammal use of habitats in the AFTT Study
Area. In addition, NMFS consulted LaBrecque et al. (2015), which
provides a specific, detailed assessment of known BIAs, which may be
region-, species-, and/or time-specific, include reproductive areas,
feeding areas, migratory corridors, and areas in which small and
resident populations are concentrated.
Comment 50: A Commenter recommended establishing stand-off
distances around the Navy's mitigation areas to the greatest extent
practicable, allowing for variability in size given the location of the
area, the type of operation at issue, and the species of concern.
Response: Mitigation areas are typically developed in consideration
of both the area that is being protected and the distance from the
stressor in question that is appropriate to maintain to ensure the
protection. Sometimes this results in the identification of the area
plus a buffer, and sometimes both the protected area and the buffer are
considered together in the designation of the edge of the area. We note
that the edges of a protected area are typically of less importance to
a protected stock or behavior, since important areas often have a
density gradient that lessens towards the edge. In addition, while a
buffer of a certain size may be ideal to alleviate all impacts of
concern, a lessened buffer does not mean that the protective value is
significantly reduced, as the core of the area is still protected.
Also, one should not assume that activities are constantly occurring in
the area immediately adjacent to the protected area. These issues were
considered here, and the Navy has indicated that the mitigation
identified in Section 5.4 (Mitigation Areas to be Implemented) of the
AFTT FEIS/OEIS represents the maximum mitigation within mitigation
areas and the maximum size of mitigation areas that are practicable to
implement under the proposed activities. The Navy has communicated (and
NMFS concurs with the assessment) that implementing additional
mitigation (e.g., stand-off distances that would extend the size of the
mitigation areas) beyond what is described in Section 5.4 (Mitigation
Areas to be Implemented) of the AFTT FEIS/OEIS would be impracticable
due to implications for safety (the ability to avoid potential
hazards), sustainability (based on the amount and type of resources
available, such as funding, personnel, and equipment)), and the Navy's
ability to continue meeting its Title 10 requirements.
Additional Mitigation Research
Comment 51: Commenters recommend that NMFS consider additional
mitigation measures to prescribe or research including (1) research
into sonar signal modifications, (2) thermal detection systems, (3)
mitigation and research on Navy ship speeds, including requiring the
Navy to
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collect and report data on ship speed as part of the EIS process; and
(4) compensatory mitigation for the adverse impacts of the permitted
activity on marine mammals and their habitat that cannot be prevented
or mitigated.
Response: NMFS consulted with the Navy regarding potential research
into additional mitigation measures, as follows:
1. Research into sonar signal modification--Sonar signals are
designed explicitly to provide optimum performance at detecting
underwater objects (e.g., submarines) in a variety of acoustic
environments. The Navy acknowledges that there is very limited data,
and some suggest that up or down sweeps of the sonar signal may result
in different animal reactions; however, this is a very small data
sample, and this science requires further development. If future
studies indicate this could be an effective approach, then NMFS and the
Navy will investigate the feasibility and practicability to modify
signals, based on tactical considerations and cost, to determine how it
will affect the sonar's performance.
2. Thermal detection--The Office of Naval Research Marine Mammals
and Biology program is currently funding an ongoing project (2013-2018)
that is testing the thermal limits of infrared based automatic whale
detection technology (Principal Investigators: Olaf Boebel and Daniel
Zitterbart). This project is focused on (1) capturing whale spouts at
two different locations featuring subtropical and tropical water
temperatures, (2) optimizing detector/classifier performance on the
collected data, and (3) testing system performance by comparing system
detections with concurrent visual observations. In addition, the
Defense Advanced Research Projects Agency (DARPA) has funded six
initial studies to test and evaluate current technologies and
algorithms to automatically detect marine mammals (IR thermal detection
being one of the technologies) on an unmanned surface vehicle. Based on
the outcome of these initial studies, follow-on efforts and testing are
planned for 2018-2019.
3. Mitigation for the Navy to collect and report data on ship speed
as part of the EIS--The Navy conducted an operational analysis of
potential mitigation areas throughout the entire Study Area to consider
a wide range of mitigation options, including but not limited to vessel
speed restrictions. As discussed in Section 3.0.3.3.4.1 (Vessels and
In-Water Devices) of the AFTT FEIS/OEIS, Navy ships transit at speeds
that are optimal for fuel conservation or to meet operational
requirements. Operational input indicated that implementing additional
vessel speed restrictions beyond what is identified in Section 5.4
(Mitigation Areas to be Implemented) of the AFTT FEIS/OEIS would be
impracticable to implement due to implications for safety and
sustainability. In its assessment of potential mitigation, the Navy
considered implementing additional vessel speed restrictions (e.g.,
expanding the 10 kn restriction to other activities). The Navy
determined that implementing additional vessel speed restrictions
beyond what is described in Section 5.5.2.2 (Restricting Vessel Speed)
of the AFTT FEIS/OEIS would be impracticable due to implications for
safety (the ability to avoid potential hazards), sustainability
(maintain readiness), and the Navy's ability to continue meeting its
Title 10 requirements to successfully accomplish military readiness
objectives. Additionally, as described in Section 5.5.2.2 (Restricting
Vessel Speed) of the AFTT FEIS/OEIS, any additional vessel speed
restrictions would prevent vessel operators from gaining skill
proficiency, would prevent the Navy from properly testing vessel
capabilities, or would increase the time on station during training or
testing activities as required to achieve skill proficiency or properly
test vessel capabilities, which would significantly increase fuel
consumption. As discussed in Section 5.3.4.1 (Vessel Movement) of the
AFTT FEIS/OEIS, the Navy implements mitigation to avoid vessel strikes
throughout the Study Area. As directed by the Chief of Naval Operations
Instruction (OPNAVINST) 5090.1D, Environmental Readiness Program, Navy
vessels report all marine mammal incidents worldwide, including ship
speed. Therefore, the data required for ship strike analysis discussed
in the comment is already being collected. Any additional data
collection required would create an unnecessary and impracticable
administrative burden on the Navy.
4. Compensatory mitigation--For years, the Navy has implemented a
very broad and comprehensive range of measures to mitigate potential
impacts to marine mammals from military readiness activities. As the
AFTT FEIS/OEIS documents in Chapter 5 (Mitigation), the Navy is
proposing to expand these measures further where practicable. Aside
from direct mitigation, as noted by a Commenter, the Navy engages in an
extensive spectrum of other activities that greatly benefit marine
species in a more general manner that is not necessarily tied to just
military readiness activities. As noted in Section 3.0.1.1 (Marine
Species Monitoring and Research Programs) of the AFTT FEIS/OEIS, the
Navy provides extensive investment for research programs in basic and
applied research. The U.S. Navy is one of the largest sources of
funding for marine mammal research in the world, which has greatly
enhanced the scientific community's understanding of marine species
much more generally. The Navy's support and marine mammal research
includes: Marine mammal detection, including the development and
testing of new autonomous hardware platforms and signal processing
algorithms for detection, classification, and localization of marine
mammals; improvements in density information and development of
abundance models of marine mammals; and advancements in the
understanding and characterization of the behavioral, physiological
(hearing and stress response), and potentially population-level
consequences of sound exposure on marine life. In addition, the Navy is
a critical sponsor of the NARW Early Warning System and the winter
aerial surveys, which have contributed to a marked reduction in vessel
strikes of the NARW in the Southeast ESA-designated critical habitat,
particularly by commercial vessels, which represent one of the biggest
threats to the NARW. Compensatory mitigation is not required to be
imposed upon federal agencies under the MMPA. Importantly, the
Commenter did not recommend any specific measure(s), rendering it
impossible to conduct any meaningful evaluation of its recommendation.
Finally, many of the methods of compensatory mitigation that have
proven successful in terrestrial settings (purchasing or preserving
land with important habitat, improving habitat through plantings, etc.)
are not applicable in a marine setting with such far-ranging species.
Thus, any presumed conservation value from such an idea would be purely
speculative at this time.
Monitoring Recommendations
Comment 52: A Commenter recommends that NMFS prioritize Navy
research projects of long-term monitoring that aim to provide baseline
information and quantify the impact of training and testing activities
at the individual, and ultimately, population level, and the
effectiveness of mitigation. The Commenter recommends individual-level
behavioral-response studies, such as focal follows and tagging using
DTAGs, carried out before, during, and after Navy training and testing
activities. The
[[Page 57131]]
Commenter recommends prioritizing DTAG studies that further
characterize the suite of vocalizations related to social interactions.
The Commenter recommends the use of unmanned aerial vehicles. The
Commenter recommends that NMFS require the Navy to use these
technologies for assessing marine mammal behavior before, during, and
after Navy training and testing (e.g., swim speed and direction, group
cohesion). The Commenter recommends NMFS ask the Navy to expand funding
to explore the utility of other, simpler modeling methods that could
provide at least an indicator of population-level effects, even if each
of the behavioral and physiological mechanisms are not fully
characterized. The Commenter recommends studies aimed at exploring
other potential proxy measures of changes in population-level abundance
in order to develop an early-detection system for populations that may
be experiencing a decline as a result of Navy activities.
Response: Broadly speaking, NMFS works closely with the Navy in the
identification of monitoring priorities and the selection of projects
to conduct, continue, modify, and/or stop through the Adaptive
Management process, which includes annual review and debriefs by all
scientists conducting studies pursuant to the Navy's MMPA rule. The
process NMFS and the Navy have developed allows for comprehensive and
timely input from the Navy and other stakeholders that is based on
rigorous reporting out from the Navy and the researchers doing the
work. Further, the Navy is pursuing many of the topics that the
commenter identifies, either through the Navy monitoring required under
the MMPA and ESA, or through Navy-funded research programs (ONR and
LMR). We are confident that the monitoring conducted by the Navy
satisfies the requirements of the MMPA.
The Navy established the Strategic Planning Process under the
marine species monitoring program to help structure the evaluation and
prioritization of projects for funding. Section 5.1.2.2.1.3 (Strategic
Planning Process) of the AFTT FEIS/OEIS provides a brief overview of
the Strategic Planning Process. More detail, including the current
intermediate scientific objectives, is available on the monitoring
portal as well as in the Strategic Planning Process report. The Navy's
evaluation and prioritization process is driven largely by a standard
set of criteria that help the steering committee evaluate how well a
potential project would address the primary objectives of the
monitoring program. NMFS has opportunities to provide input regarding
the Navy's intermediate scientific objectives as well as providing
feedback on individual projects through the annual program review
meeting and annual report. For additional information, please visit:
https://www.navymarinespeciesmonitoring.us/about/strategic-planning-process/.
Details on the Navy's involvement with future research will
continue to be developed and refined by Navy and NMFS through the
consultation and adaptive management processes, which regularly
considers and evaluates the development and use of new science and
technologies for Navy applications. The Navy has indicated that it will
continue to be a leader in funding of research to better understand the
potential impacts of Navy training and testing activities and to
operate with the least possible impacts while meeting training and
testing requirements.
[ssquf] Individual-level behavioral-response studies--In addition
to the Navy's marine species monitoring program investments for
individual-level behavioral-response studies, the Office of Naval
Research Marine Mammals and Biology program and the Navy's Living
Marine Resources program continue to heavily invest in this topic. For
example, the following studies are currently being funded.
[ssquf] The Southern California Behavioral Response Study
(Principal Investigators: John Calambokidis and Brandon Southall).
[ssquf] Cuvier's Beaked Whale and Fin Whale Behavior During
Military Sonar Operations: Using Medium-term Tag Technology to Develop
Empirical Risk Functions (Principal Investigators: Greg Schorr and Erin
Falcone).
[ssquf] 3S3--Behavioral responses of sperm whales to naval sonar
(Principal Investigators: Petter Kvadsheim and Frans-Peter Lam).
[ssquf] Measuring the effect of range on the behavioral response of
marine mammals through the use of Navy sonar (Principal Investigators:
Stephanie Watwood and Greg Schorr).
[ssquf] Behavioral response evaluations employing robust baselines
and actual Navy training (BREVE) (Principal Investigators: Steve
Martin, Tyler Helble, Len Thomas).
[ssquf] Integrating remote sensing methods to measure baseline
behavior and responses of social delphinids to Navy sonar (Principal
Investigators: Brandon Southall, John Calambokidis, John Durban).
2. DTAGS to characterize social communication between individuals
of a species or stock, including mothers and calves--The Navy has
funded a variety of projects that are collecting data that can be used
to study social interactions amongst individuals. Examples of these
projects include:
[ssquf] Southern California Behavioral Response Study (Principal
Investigators: John Calambokidis and Brandon Southall).
[ssquf] Tagging and Tracking of Endangered NARW in Florida Waters
(Principal Investigators: Doug Nowacek and Susan Parks). This project
involves the use of DTAGs, and data regarding the tagged individual and
group are collected in association with the tagging event. In addition
to the vocalization data that is being collected on the DTAGs, data is
collected on individual and group behaviors that are observed,
including between mother/calf pairs when applicable. The Navy will
continue to collect this type of data when possible.
[ssquf] Integrating remote sensing methods to measure baseline
behavior and responses of social delphinids to Navy sonar (Principal
Investigators: Brandon Southall, John Calambokidis, John Durban).
[ssquf] Acoustic Behavior of NARW (Eubalaena glacialis) Mother-Calf
Pairs (Principal Investigators: Susan E. Parks and Sofie Van Parijs).
The long-term goal of this project is to quantify the behavior of
mother-calf pairs from the NARW to determine (a) why mothers and calves
are more susceptible to collisions with vessels and, (b) the vocal
behavior of this critical life stage to assess the effectiveness of
passive acoustic monitoring to detect mother-calf pairs in important
habitat areas (see https://www.onr.navy.mil/reports/FY15/mbparks.pdf).
[ssquf] Social Ecology and Group Cohesion in Pilot Whales and Their
Responses to Playback of Anthropogenic and Natural Sounds (Principal
Investigator: Frants H. Jensen). This project investigates the social
ecology and cohesion of long-finned pilot whales as part of a broad
multi-investigator research program that seeks to understand how
cetaceans are affected by mid-frequency sonar and other sources of
anthropogenic noise (see https://www.onr.navy.mil/reports/FY15/mbjensen.pdf).
3. Unmanned Aerial Vehicles to assess marine mammal behavior
before, during, and after Navy training and testing activities (e.g.,
swim speed and direction, group cohesion)--Studies that use unmanned
aerial vehicles to assess marine mammal behaviors and body condition
are being funded by the Office of Naval Research Marine Mammals and
Biology program. Although the technology shows promise, the field
limitations associated with the use of
[[Page 57132]]
this technology has hindered the useful application in behavioral
response studies in association with Navy training and testing events.
For safety, research vessels cannot remain in close proximity to Navy
vessels during Navy training or testing events, so battery life of the
unmanned aerial vehicles has been an issue. However, as the technology
improves, the Navy will continue to assess the applicability of this
technology for the Navy's research and monitoring programs. An example
project is Integrating Remote Sensing Methods to Measure Baseline
Behavior and Responses of Social Delphinids to Navy sonar (Principal
Investigators: Brandon Southall, John Calambokidis, and John Durban).
4. NMFS asked the Navy to expand funding to explore the utility of
other, simpler modeling methods that could provide at least an
indicator of population-level effects, even if each of the behavioral
and physiological mechanisms are not fully characterized--The Office of
Naval Research Marine Mammals and Biology program has invested in the
Population Consequences of Disturbance (PCoD) model, which provides a
theoretical framework and the types of data that would be needed to
assess population level impacts. Although the process is complicated
and many species are data poor, this work has provided a foundation for
the type of data that is needed. Therefore, in the future, relevant
data that is needed for improving the analytical approaches for
population level consequences resulting from disturbances will be
collected during projects funded by the Navy's marine species
monitoring program. General population level trend analysis is
conducted by NMFS through its SARs and regulatory determinations. The
Navy's analysis of effects to populations (species and stocks) of all
potentially exposed marine species, including marine mammals and sea
turtles, is based on the best available science as discussed in
Sections 3.7 (Marine Mammals) and 3.8 (Reptiles) of the AFTT FEIS/OEIS.
PCoD models, similar to many fisheries stock assessment models, once
developed will be powerful analytical tools when mature. However,
currently they are dependent on too many unknown factors for these
types of models to produce a reliable answer.
As discussed in the Monitoring section of this final rule, the
Navy's marine species monitoring program typically supports 10-15
projects in the Atlantic at any given time. Current projects cover a
range of species and topics from collecting baseline data on occurrence
and distribution, to tracking whales and sea turtles, to conducting
behavioral response studies on beaked whales and pilot whales. The
Navy's marine species monitoring web portal provides details on past
and current monitoring projects, including technical reports,
publications, presentations, and access to available data and can be
found at: https://www.navymarinespeciesmonitoring.us/regions/atlantic/current-projects/. A list of the monitoring studies that the Navy is
currently planning under this rule are listed at the bottom of the
Monitoring section of this final rule.
Negligible Impact Determination
General
Comment 53: A Commenter commented that NMFS' analytical approach is
not transparent. NMFS applied both qualitative and quantitative
analyses to inform its negligible impact determination. In general,
NMFS has based negligible impact determinations associated with
incidental take authorizations on abundance estimates provided either
in its SARs or other more recent published literature. For the AFTT
proposed rule, NMFS used the average population estimate as determined
by the Navy's density models across all seasons from Roberts et al.
(2016) rather than abundance estimates from either the SARs or
published literature. For some species, NMFS indicated that it had
apportioned the takes at the species or population level based on takes
predicted at higher taxonomic levels. However, NMFS did not specify for
which species/populations this method was used or the assumptions made.
NMFS also did not specify how it determined the actual ``population''
size given that the densities differ on orders of kilometers.
Interpolation or smoothing, and potentially extrapolation, of data
likely would be necessary to achieve NMFS' intended goal--it is unclear
whether any such methods were implemented.
In addition, it is unclear whether NMFS used data from Mannocci et
al. (2017) in a similar manner to the Roberts et al. (2016) data, which
informed abundance estimates for the majority of species within the
U.S. EEZ. Furthermore, NMFS did not specify how it determined the
proportion of total takes that would occur beyond the U.S. EEZ.
Presumably, that was based on modeling assumptions and model-estimated
takes provided by the Navy, but this is not certain. Moreover, the
``instances'' of the specific types of taking (i.e., mortality, Level A
and B harassment) do not match the total takes ``inside and outside the
U.S. EEZ'' in Tables 72-77 or those take estimates in Tables 39-41. It
appears the ``instances'' of take columns were based on only those
takes in the U.S. EEZ rather than the entire AFTT Study Area. Sperm
whales, for example, have 3,880 takes that presumably would occur
outside the U.S. EEZ and were not enumerated in the ``instances'' of
take columns. Thus, it is unclear what types of takes those constitute.
Given that the negligible impact determination is based on the total
taking in the entire study area, NMFS should have partitioned the takes
in the ``instances'' of take columns in Tables 72-77 for all activities
that occur within and beyond the U.S. EEZ.
Response: NMFS has added explanation in the Analysis and Negligible
Impact Determination section to better describe the take-specific
analysis for each stock, species, or group, as appropriate. As
described in the footnotes, the Navy abundances referenced in the
tables in the Analysis and Negligible Impact Determination section,
both in and outside of the U.S. EEZ, are a reflection of summing the
densities that are used to calculate take for each species as described
in the Estimated Take of Marine Mammals section (i.e., including
Roberts et al. and/or Mannocci et al. where appropriate), which means
using Roberts et al. (2016), where available (inside the U.S EEZ), and
Mannocci et al. (2017) outside the U.S. EEZ, as the commenter suggests.
NMFS acknowledges that there were a few small errors in the take
numbers in the proposed rule; however, they have been corrected (i.e.,
the take totals in Tables 39, 40, and 41 for a given stock now equal
the ``in and outside the U.S. EEZ'' take totals in Tables 72-77) and
the minor changes do not affect the analysis or determinations in the
rule.
Comment 54: A Commenter asserts that NMFS assumes that it is
unlikely any particular subset of a stock would be taken over more than
a few sequential days--i.e., where repeated takes of individuals are
likely to occur, they are more likely to result from non-sequential
exposures from different activities, and marine mammals are not
predicted to be taken for more than a few days in a row, at most. Yet
NMFS presents no details of the Navy's training and testing activities
in support of this position. The Commenter cites to the fact that the
Navy reuses certain geographic areas regularly for some specific
exercises as a reason that repeat exposures are likely to be
sequential.
Response: The Commenter ignores the fact that marine mammals still
move
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around (some for long distances), and even if they are resident and
Navy activities are geographically concentrated, it does not naturally
follow that their exposures to these activities are necessarily
temporally concentrated.
In addition, NMFS' analyses do not uniformly assume that where
repeated takes are likely to occur, they are more likely to result from
non-sequential exposures. NMFS negligible impact analyses suggest that
individuals of some stocks are likely to be taken across sequential
days, while others are not. Multiple factors are taken into
consideration in predicting the relative likelihood that repeated takes
of an individual will occur sequentially, including the approximate
predicted number of takes to an individual within a year and the manner
in which the activities overlap the species range. For example, if the
number of average takes per individual is less than two, the entire
species range is contained within the AFTT Study Area, and that range
includes a migratory pathway that moves through an area dense with
training and testing activities (e.g., NARW), it is reasonably likely
that every or almost every individual gets taken on at least one day.
This means that there are relatively few takes left to distribute.
There is no reason to think (based on species movement and activities)
that these takes would all accrue to a few animals, or that the takes
would occur on sequential days. In other words, even if activities
occur in focused areas, it is highly unlikely that individual animals
(e.g., NARW) are staying in those areas, especially given how limited
activities are in the areas that animals (e.g., NARW) aggregate due to
the mitigation. Alternately, if the average number of takes per animal
is notably higher (either altogether or in a limited area such as the
U.S. EEZ), such as 18 for beaked whales, it follows that some number of
individuals are likely actually taken at an even higher number, and the
higher that number, the higher the probability that when spread across
the years, some days will be sequential. NMFS addresses these
differences in our negligible impact analyses.
Comment 55: A Commenter states that NMFS must consider new
information for sperm whales in the GOMEX prior to authorizing take for
the AFTT specified activities, particularly because of the five
reported stranded sperm whale calves in the Gulf since October 2016.
The Commenter asserts that NMFS must protect the Mississippi Canyon
that provides year-round sperm whale habitat. The Commenter also states
that NMFS should ensure heightened protection for this area for sperm
whales as well as Bryde's whales and Cuvier's beaked whales that are
vulnerable to harm from military activities.
Response: NMFS considered the sperm whale information provided by
the commenter in its negligible impact determination. There have been
six documented sperm whales strandings in the GOMEX between 2016 and
2018. Five sperm whales stranded in 2016, 1 whale in 2017, and zero
whales in 2018. Based on the examination data that was available (the
condition of the whale ranged from fresh dead to moderate/advanced
decomposition to mummified/skeletal) there were four whales where
findings of human interaction could not be determined. Of the two
whales that remained, one whale showed evidence of a fishery
interaction, and the other showed no evidence of human interaction.
NMFS' SERO requested a consultation with the Working Group on Marine
Mammal Unusual Mortality Events about the elevated 2016 sperm whale
strandings, but the Working Group determined the data did not qualify
as a UME at that time. The Working Group noted that the current number
of four strandings for the year was only at the upper limit of the 10
year average, that there was a very low total number of strandings in
general in the region, and the animals were stranding during months
that they would be expected, and therefore the findings did not meet
the UME criteria. The SERO and our Southeast Fisheries Science Center
will continue to coordinate with the Working Group for sharing of
histopathology results and formulation of hypotheses.
Separately, and as described in more detail elsewhere in the rule,
after additional discussion with NMFS, the Navy withdrew its request
for mortal take by vessel strike for sperm whale (GOMEX stock) due to
the following considerations that showed that vessel strike of a whale
from this stock is unlikely: (1) The lower number of Navy steaming days
in the GOMEX; (2) that there have been no vessel strikes of any large
whales since 2009 per the SAR and no Navy strikes of any large whales
since 1995 (based on our records) in the GOMEX; (3) the lower abundance
of sperm whales in the GOMEX, and (4) the Navy's adherence to Marine
Species Awareness Training and adoption of additional mitigation
measures. NMFS concurs that the strike of sperm whales in the GOMEX is
unlikely and has not authorized mortal take. Further, nearly the entire
important sperm whale habitat (Mississippi Canyon) is included in the
GOMEX Planning Awareness Mitigation Areas. As stated in this final rule
and the AFTT FEIS/OEIS, the Navy is not planning to conduct any MTEs in
the GOMEX.
Cumulative and Aggregate Effects
Comment 56: A Commenter commented that NMFS failed to adequately
assess the aggregate effects of all of the Navy's activities included
in the rule. The Commenter alleges that NMFS' lack of analysis of these
aggregate impacts, which is essential to any negligible impact
determination, represents a glaring omission from the proposed rule.
Further, they assert that the agency assumes that all of the Navy's
estimated impacts would not affect individuals or populations through
repeated activity--even though the takes anticipated each year would
affect the same populations and, indeed, would admittedly involve
extensive use of some of the same biogeographic areas. While NMFS
states that Level B behavioral harassment (aside from those caused by
masking effects) involves a stress response that may contribute to an
animal's allostatic load, it assumes without further analysis that any
such impacts would be insignificant. The commenter states that both
statements are factually insupportable given the lack of any population
analysis or quantitative assessment of long-term effects in the
proposed rule and the numerous deficiencies in the thresholds and
modeling that NMFS has adopted from the Navy.
Response: We respond to the aggregate effect comment here, and
address the consideration of impacts from other activities in the
response to Comment 57 immediately below.
NMFS did analyze the aggregate effects of mortality, injury,
masking, energetic costs, stress, hearing loss, and behavioral
harassment from the Navy's activities in reaching the negligible impact
determinations. Significant additional discussion has been added to the
Analysis and Negligible Impact Determination section of the final rule
to better explain the agency's analysis and how the potential for
aggregate or cumulative effects on individuals relate to the overall
negligible impact determination for each species or stock.
In our analysis, NMFS fully considers the potential for aggregate
effects from all Navy activities. We also consider UMEs and previous
environmental impacts (i.e., DWH oil spill) to inform the baseline
levels of both individual health and susceptibility to additional
stressors, as well as stock status. Further, the species and stock-
specific assessments in the Analysis and
[[Page 57134]]
Negligible Impact Determination section (which have been updated and
expanded) pull together and address the combined mortality, injury,
behavioral harassment, and other effects of the aggregate AFTT
activities (and in consideration of applicable mitigation) as well as
other information that supports our determinations that the Navy
activities will not adversely affect any species or stocks via impacts
on rates of recruitment or survival. We refer the reader to the
Analysis and Negligible Impact Determination section for this analysis.
Comment 57: Some commenters asserted that in reaching our MMPA
findings, NMFS did not adequately consider the cumulative impacts of
the Navy's activities when combined with the effects of other non-Navy
activities. A Commenter adds that NMFS needs to include consideration
of the most up-to-date information on NARW, humpback whales, and sperm
whales, including UMEs, deaths, and recent strandings.
Response: The preamble for NMFS' implementing regulations under
section 101(a)(5) (54 FR 40338; September 29, 1989) explains in
responses to comments that the impacts from other past and ongoing
anthropogenic activities are to be incorporated into the negligible
impact analysis via their impacts on the environmental baseline.
Consistent with that direction, NMFS here has factored into its
negligible impact analyses the impacts of other past and ongoing
anthropogenic activities via their impacts on the baseline (e.g., as
reflected in the density/distribution and status of the species,
population size and growth rate, and other relevant stressors (such as
incidental mortality in commercial fisheries, UMEs, or oil spills)).
See the Analysis and Negligible Impact Determination section of this
rule.
Also, as described further in the Analysis and Negligible Impact
Determination section of the final rule, NMFS evaluated the impacts of
AFTT authorized mortality on the affected stocks in consideration of
other anticipated human-caused mortality, including the mortality
predicted in the SARs for other activities along with other NMFS-
permitted mortality (i.e., authorized as part of the Northeast
Fisheries Science Center (NEFSC) rule), using multiple factors,
including Potential Biological Removal (PBR). As described in more
detail in the Analysis and Negligible Impact Determination section, PBR
was designed to identify the maximum number of animals that may be
removed from a stock (not including natural mortalities) while allowing
that stock to reach or maintain its optimum sustainable population
(OSP) and is also helpful in informing whether mortality will adversely
affect annual rates of recruitment or survival in the context of a
section 101(a)(5)(A).
In addition, NMFS did consider the most up-to-date information on
the three large whale species referenced by the commenter, along with
the other potentially affected species and stocks. See the relevant
sections of the final rule for extensive discussion on the effects of
UMEs, deaths, recent strandings, and other factors that are affecting,
or have the potential to affect, the species and stocks that will also
be affected by the Navy's activities.
Our 1989 final rule for the MMPA implementing regulations also
addressed public comments regarding cumulative effects from future,
unrelated activities. There we stated that such effects are not
considered in making findings under section 101(a)(5) concerning
negligible impact. We indicated that NMFS would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis
and also that reasonably foreseeable cumulative effects would be
considered under section 7 of the ESA for ESA-listed species.
We recognize the potential for cumulative impacts, and that the
aggregate impacts of the Navy's training and testing activities will be
greater than the impacts of any one particular activity. The direct
aggregate impacts of the Navy's training and testing activities were
addressed through the associated NEPA analyses in the AFTT FEIS/OEIS
(with NMFS as a cooperating agency), which addressed the impacts of a
maximum amount of activities, and which NMFS has adopted as the basis
for its Record of Decision for the issuance of the final rule and LOAs.
In order to meet the responsibility to analyze cumulative effects
under NEPA, the Navy, in cooperation with NMFS, evaluated the
cumulative effects of the incremental impact of its proposed action
when added to other past, present, and future actions (as well as the
effects of climate change), against the appropriate resources and
regulatory baselines. The Navy used the best available science and a
comprehensive review of past, present, and reasonably foreseeable
actions to develop its Cumulative Impacts analysis. This analysis is
contained in Chapter 4 of the AFTT FEIS/OIES. As required under NEPA,
the level and scope of the analysis is commensurate with the scope of
potential impacts of the action and the extent and character of the
potentially-impacted resources (e.g., the geographic boundaries for
cumulative impacts analysis for some resources are expanded to include
activities outside the AFTT Study Area that might impact migratory or
wide-ranging animals), as reflected in the resource-specific
discussions in Chapter 3 (Affected Environment and Environmental
consequences) of the AFTT FEIS/OEIS. The AFTT FEIS/OEIS considered the
proposed training and testing activities alongside other actions in the
region whose impacts may be additive to those of the proposed training
and testing. Past and present actions are also included in the
analytical process as part of the affected environmental baseline
conditions presented in Chapter 3 of the AFTT FEIS/OEIS. The Navy has
done so in accordance with 1997 Council on Environmental Quality (CEQ)
guidance. Per the guidance, a qualitative approach and best
professional judgment are appropriate where precise measurements are
not available. Where precise measurements and/or methodologies were
available they were used. Guidance from CEQ states it ``is not
practical to analyze cumulative effects of an action on the universe;
the list of environmental effects must focus on those that are truly
meaningful.'' Further, the U.S. EPA has reviewed the AFTT FEIS/OEIS and
rated the document as LO--lack of objections--which means it has not
identified any environmental impact requiring substantive changes to
the proposal. Information on the NEPA analysis is provided in Section
4.1.1 (Determination of Significance). Lastly, all of the potential
effects on marine mammals from Navy training and testing were analyzed
in Section 3.7 (Affected Environment and Environmental Consequences--
Marine mammals) of the AFTT FEIS/OEIS. Based on the best available
science, it was determined that population-level impacts would not
occur.
Comment 58: A Commenter cites to the status and trajectory of NARWs
and asserts that the negligible impact finding is unsupported for this
species specifically. The commenter asserts that the negligible impact
analysis must take into account all of the baseline activities that are
known to have contributed to the species' decline, as well as other
reasonably foreseeable activities (e.g., five seismic surveys planned
for the Atlantic in the near future) that would affect the same
populations impacted by the Navy's activities. The Commenter also cites
to the number of Level B harassment takes (585) included in the
proposed rule to support their assertions. To satisfy the negligible
impact requirement for NARWs, the
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Commenter asserts that NMFS must revise its impacts analysis and
incorporate additional mitigation, such as those recommended in section
II of Commenter's letter.
Response: The analysis for NARW in the final rule has been updated
and expanded since the proposed rule and more clearly addresses the
pertinent points the commenter raises. See also the responses above for
how NMFS took into account other activities that have or may contribute
to the species' status (Comments and Responses 35, 36, 40, 44, and 45).
In addition, since publication of the proposed rule, the Navy has
removed an exercise that would have occurred in the Northeast,
decreasing estimated takes by approximately 20 percent to 471. Further,
the Navy has expanded the NE NARW Mitigation Area (and its associated
protections) to match the updated NARW ESA-designated critical habitat
and further added a requirement not to conduct MTEs in the Gulf of
Maine Planning Awareness Area. Both of these mitigation measures
further reduce impacts to NARW in important feeding areas. Given all of
this, and as described in more detail in the Analysis and Negligible
Impact Determination section of the rule, any individual NARW is likely
to be disturbed at a low-moderate level on no more than a few likely
non-sequential days per year, and not in biologically important areas.
Even given the fact that some of the affected individuals may already
have compromised health, there is nothing to suggest that such a low
magnitude and severity of effects would result in impacts on
reproduction or survival of any individual. For these reasons, we
determined that the expected take will have a negligible impact on
NARW.
NEPA
Comment 59: A Commenter comments that NMFS cannot rely on the
Navy's AFTT FEIS/OEIS to fulfill its obligations under NEPA because the
Purpose and Need is too narrow and does not support NMFS' MMPA action,
and therefore the AFTT FEIS/OEIS does not explore a reasonable range of
alternatives.
Response: The proposed action at issue is the Navy's proposal to
conduct training activities in the AFTT Study Area. NMFS is a
cooperating agency for that proposed action, as it has jurisdiction by
law and special expertise over marine resources impacted by the
proposed action including marine mammals and federally listed
threatened and endangered species. Consistent with the regulations
published by the Council on Environmental Quality (CEQ), it is common
and sound NEPA practice for NOAA to adopt a lead agency's NEPA analysis
when, after independent review, NOAA determines the document to be
sufficient in accordance with 40 CFR 1506.3. Specifically here, NOAA
must be satisfied that the AFTT EIS/OEIS adequately addresses the
impacts of issuing the MMPA incidental take authorization and that
NOAA's comments and concerns have been adequately addressed. There is
no requirement in CEQ regulations that NMFS, as a cooperating agency,
issue a separate purpose and need statement in order to ensure adequacy
and sufficiency for adoption. Nevertheless, the Navy, in coordination
with NMFS, has clarified the statement of Purpose and Need in the AFTT
FEIS/OEIS to more explicitly acknowledge NMFS' action of issuing an
MMPA incidental take authorization. NMFS also clarified how its
regulatory role under the MMPA related to Navy's activities. NMFS'
early participation in the NEPA process and role in shaping and
informing analyses using its special expertise ensured that the
analysis in the AFTT FEIS/OEIS is sufficient for purposes of NMFS' own
NEPA obligations related to its issuance of an Incidental Take
Authorization under the MMPA.
Regarding the alternatives, NMFS' early involvement in development
of the AFTT DEIS/OEIS and role in evaluating the effects of incidental
take under the MMPA ensured that the AFTT DEIS/OEIS would include
adequate analysis of a reasonable range of alternatives. The AFTT FEIS/
OEIS includes a No Action Alternative specifically to address what
could happen if NMFS did not issue an MMPA authorization. The other two
Alternatives address two action options that the Navy could potentially
pursue while also meeting their mandated Title 10 training and testing
responsibilities. More importantly, these alternatives fully analyze a
comprehensive variety of mitigation measures. This mitigation analysis
supported NMFS' evaluation of our options in potentially issuing an
MMPA authorization, which, if the authorization may be issued,
primarily revolves around the appropriate mitigation to prescribe. This
approach to evaluating a reasonable range of alternatives is consistent
with NMFS policy and practice for issuing MMPA incidental take
authorizations. NOAA has independently reviewed and evaluated the AFTT
EIS/OEIS, including the purpose and need statement and range of
alternatives, and determined that the Navy's AFTT FEIS/OEIS fully
satisfies NMFS' NEPA obligations related to its decision to issue the
MMPA final rule and associated Letters of Authorization, and we have
adopted it.
Use of NMFS' Acoustic Technical Guidance
Comment 60: A Commenter does not agree with the Navy's use of NMFS
2016 Acoustic Technical Guidance (NMFS, 2016) for purposes of
evaluating potential auditory injury. The Commenter claims that (1)
NOAA is considering rescinding or revising the Acoustic Technical
Guidance (2) NMFS' use of the guidance conflicts with Executive Order
(E.O.) 13795 (``Implementing an America-First Offshore Energy
Strategy''); (2) Several industry groups have identified Data Quality
flaws in the Acoustic Technical guidance; (3) the Commenter has also
identified significant Data Quality flaws in the Acoustic Technical
Guidance; and (4) NMFS and/or Navy's continued use of the Acoustic
Technical Guidance violates Information Quality Act (IQA) guidelines.
Regarding the IQA, the Commenter states that NMFS does not have an
Office of Management and Budget (OMB)-approved Information Collection
Request (ICR) associated with the guidance, and is therefore violating
the IQA.
Response: NMFS disagrees that use of the Acoustic Technical
Guidance results in any of the claims listed by the Commenter. NMFS is
not considering rescinding the Acoustic Technical Guidance. First, the
use of the Acoustic Technical Guidance does not conflict with Executive
Order 13795. Section 10 of the Executive Order called for a review of
the technical guidance as follows: ``The Secretary of Commerce shall
review for consistency with the policy set forth in Section 2 of this
order and, after consultation with the appropriate Federal agencies,
take all steps permitted by law to rescind or revise that guidance, if
appropriate.'' To assist the Secretary in the review of the Acoustic
Technical Guidance, NMFS solicited public comment via a 45-day public
comment period (82 FR 24950; May 31, 2017) and hosted an interagency
consultation meeting with representatives from ten federal agencies
(September 25, 2017). NMFS received 62 comments directly related to the
2016 Acoustic Technical Guidance. Comments were submitted by federal
agencies (Bureau of Ocean Energy Management (BOEM), the Navy, the
Marine Mammal Commission), oil and gas industry representatives,
Members of Congress, subject matter experts, NGOs, a foreign statutory
[[Page 57136]]
advisory group, a regulatory advocacy group, and members of the public.
Most of the comments (85 percent) recommended no changes to the
Acoustic Technical Guidance, and no public commenter suggested
rescinding the Acoustic Technical Guidance. The U.S. Navy, the Marine
Mammal Commission, Members of Congress, and subject matter experts
expressed support for the Acoustic Technical Guidance thresholds and
weighting functions as reflecting the best available science. The
remaining comments (15 percent) focused on additional scientific
publications for consideration or recommended revisions to improve
implementation of the Acoustic Technical Guidance. All public comments
received during this review can be found at www.regulations.gov. At the
September 25, 2017, Federal Interagency Consultation, none of the
federal agencies recommended rescinding the Acoustic Technical
Guidance. Federal agencies were supportive of the Acoustic Technical
Guidance thresholds and auditory weighting functions and the science
behind their derivation and were appreciative of the opportunity to
provide input. Comments received at the meeting focused on improvements
to implementation of the Acoustic Technical Guidance and
recommendations for future working group discussions to address
implementation of the Acoustic Technical Guidance based on any new
scientific information as it becomes available.
NMFS has already released a revised 2018 Acoustic Technical
Guidance document (June 21, 2018) as a result of the review under E.O.
13795 (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance), and the
thresholds and weighting functions in the revised document (2018
Acoustic Technical Guidance) are identical to those in the 2016
Acoustic Technical Guidance. Thus, the revised version does not change
the analysis already completed by the Navy, which relied on the 2016
version. Additional information on the review process under Executive
Order 13795 can be found in Appendix C of the Acoustic Technical
Guidance.
In addition, NMFS did comply with the OMB Peer Review Bulletin and
IQA Guidelines in development of the technical guidance. The Acoustic
Technical Guidance was classified as a Highly Influential Scientific
Assessment and, as such, underwent three independent peer reviews, at
three different stages in its development, including a follow-up to one
of the peer reviews, prior to its dissemination by NMFS. In addition,
there were three separate public comment periods. Responses to public
comments were provided in a previous Federal Register notice (81 FR
51694; August 4, 2016). Detailed information on the peer reviews and
public comment periods conducted during development of the Acoustic
Technical Guidance are included as an appendix to the Acoustic
Technical Guidance.
The Commenter is incorrect in their assumption that the Acoustic
Technical Guidance is only based on non-impulsive Navy sonar and that
it is radically different from impulsive sound like seismic air guns
used in the oil and gas industry. The Commenter is also incorrect in
stating that the application of the Acoustic Technical Guidance cannot
practically be used to regulate seismic and other impulsive sounds
sources and that explosives, like those used by the Navy, are not
subject to the Acoustic Technical Guidance, but instead to a completely
different explosive risk guidance. While it is true that there are less
marine mammal TTS onset data available for impulsive sources compared
to non-impulsive sources, the Acoustic Technical Guidance impulsive
thresholds are specifically derived from data from two impulsive
sources: (1) A seismic water gun (Finneran et al., 2002) and (2) a
single air gun exposure (Lucke et al., 2009) (i.e., these sources are
more similar to those used by the oil and gas industry than tactical
sonar or tonal signals). For the evaluation of PTS onset, underwater
explosives are subject to the same impulsive thresholds from the
Acoustic Technical Guidance as other impulsive sources, such as seismic
air guns or impact pile drivers (i.e., they do not have a separate set
of criteria for potential impacts on hearing). Underwater explosives do
have additional thresholds based on their potential to induce lung or
gastrointestinal injury via exposure to shock waves, which are based on
net explosive weight, as well as charge depth and animal mass.
Regarding the comment that industry impulsive sound would be more
appropriately assessed and regulated through Navy's explosive risk
guidance than through the Acoustic Technical Guidance, we disagree.
Please see our comments above regarding explosives. Overall, the
Acoustic Technical Guidance is a scientific tool that assists in impact
assessments and explicitly states that while it can inform regulatory
decisions, it in no way directly mandates any specific regulatory
decisions, actions, or mitigations. Discretion is left to regulators to
interpret the best way to use this best available information.
Last, regarding the Paperwork Reduction Act, there is no collection
of information requirement associated with the Acoustic Technical
Guidance. Rather, NMFS information collection for Applications and
Reporting Requirements for Incidental Taking of Marine Mammals by
Specified Activities Under the Marine Mammal Protection Act, OMB
control number 0648-0151, was recently renewed and fully considers any
potential additional time required as a result of using the Acoustic
Technical Guidance, which is included in the estimated burden hours.
Description of Marine Mammals and Their Habitat in the Area of the
Specified Activities
Marine mammal species and their associated stocks that have the
potential to occur in the AFTT Study Area are presented in Table 12
along with an abundance estimate, an associated coefficient of
variation value, and best/minimum abundance estimates. Some marine
mammal species, such as manatees, are not managed by NMFS, but by the
U.S. Fish and Wildlife Service and therefore not discussed below. The
Navy anticipates the take of individuals of 39 marine mammal species by
Level A and B harassment incidental to training and testing activities
from the use of sonar and other transducers, in-water detonations, air
guns, and impact pile driving/vibratory extraction. In addition, the
Navy requested authorization for nine serious injuries or mortalities
of four marine mammal stocks during ship shock trials, and three takes
by serious injury or mortality from vessel strikes over the five-year
period. One marine mammal species, the NARW, has critical habitat
designated under the ESA in the AFTT Study Area (described below).
The species carried forward for analysis are those likely to be
found in the AFTT Study Area based on the most recent data available,
and do not include stocks or species that may have once inhabited or
transited the area but have not been sighted in recent years and
therefore are extremely unlikely to occur in the AFTT Study Area (e.g.,
species which were extirpated because of factors such as nineteenth and
twentieth century commercial exploitation).
The species not carried forward for analysis include the bowhead
whale, beluga whale, and narwhal as these would be considered
extralimital
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species and are not part of the AFTT seasonal species assemblage.
Bowhead whales are likely to be found only in the Labrador Current open
ocean area, even if in 2012 and 2014, the same bowhead whale was
observed in Cape Cod Bay, which represents the southernmost record of
this species in the western North Atlantic. In June 2014, a beluga
whale was observed in several bays and inlets of Rhode Island and
Massachusetts (Swaintek, 2014). This sighting likely represents a
single extralimital beluga whale occurrence in the Northeast United
States Continental Shelf Large Marine Ecosystem. There is no stock of
narwhal that occurs in the U.S. EEZ in the Atlantic Ocean; however,
populations from Hudson Strait and Davis Strait may extend into the
AFTT Study Area at its northwest extreme. However, narwhals prefer cold
Arctic waters and those wintering in Hudson Strait occur in smaller
numbers. For these reasons, the likelihood of any Navy activities
encountering and having any effect on any of these three species is so
slight as to be unlikely; therefore, these species do not require
further analysis.
Additionally, for multiple bottlenose dolphin stocks, there was no
potential for overlap with any stressors from Navy activities and
therefore there would be no adverse effects (or takes), in which case,
those stocks were not considered further. Specifically, with the
exception of the Mississippi Sound, Lake Borgne, Bay Boudreau stock of
bottlenose dolphins (which is addressed in the Analysis and Negligible
Impact Determination section below), there is no potential for overlap
of any Navy stressor with any other Northern GOMEX Bay, Sound, and
Estuary stocks. Also, the following bottlenose dolphin stocks for the
Atlantic do not have any potential for overlap with Navy activity
stressors (or take), and therefore are not considered further: Northern
South Carolina Estuarine System, Charleston Estuarine System, Northern
Georgia/Southern South Carolina Estuarine System, Central Georgia
Estuarine System, Southern Georgia Estuarine System, Biscayne Bay, and
Florida Bay stocks. For the same reason, bottlenose dolphins off of
Puerto Rico and the U.S. Virgin Islands were also not considered
further. We note that in NMFS' draft 2018 SARs (made available since
the proposed rule was published), NMFS has further delineated stocks
within the Northern GOMEX Bay, Sound, and Estuary stocks since the 2017
SAR and the Navy's application. However, the Mississippi Sound, Lake
Borgne, Bay Boudreau stock of bottlenose dolphins remains the same, and
the fact that no Navy stressors overlap any of the other stocks remains
accurate, so our analysis of these stocks is unchanged. NMFS is in the
process of writing individual SARs for each of the 31 Northern GOMEX
Bay, Sound, and Estuary stocks. To date, six have been completed
(including the Mississippi Sound, Lake Borgne, Bay Boudreau stock).We
presented a detailed discussion of marine mammals and their occurrence
in the planned action area, inclusive of important marine mammal
habitat (e.g., critical habitat), BIAs, national marine sanctuaries,
and UMEs in our Federal Register notice of proposed rulemaking (83 FR
10954; March 13, 2018); please see that proposed rule or the Navy's
application for more information. There have been no changes to
important marine mammal habitat, BIAs, National Marine Sanctuaries, or
ESA-designated critical habitat since the issuance of the proposed
rule; therefore, they are not discussed further (though we note that
NARW ESA-designated critical habitat was updated in 2016, since the
last Navy AFTT rule, and some of the discussion in the rule references
that). Additional information on UMEs has become available and is
discussed following Table 12.
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A UME is defined under section 410(6) of the MMPA as a stranding
that is unexpected; involves a significant die-off of any marine mammal
population; and demands immediate response. From 1991 to the present,
there have been 36 formally recognized UMEs affecting marine mammals
along the Atlantic Coast and the GOMEX involving species under NMFS'
jurisdiction. Two additional UME's have been declared in 2018 since
publication of the proposed rule that inform our analysis: The
Northeast Pinniped UME (harbor and gray seals) in the Atlantic and the
Southwest Florida Bottlenose dolphin UME in the GOMEX. The NARW,
humpback whale, and minke whale UMEs on the Atlantic Coast are still
active and involve ongoing investigations. The impacts to Barataria Bay
bottlenose dolphins from the expired UME (discussed in the proposed
rule) associated with the DWH oil spill in the GOMEX are thought to be
persistent and continue to inform population analyses. The other UMEs
expired several years ago and little is known about how the effects of
those events might be appropriately applied to an impact assessment
several years later. The five UMEs that could inform the current
analysis are discussed below.
NARW UME
Since June 7, 2017, elevated mortalities of NARW have been
documented. To date, a total of 19 confirmed dead stranded NARW (12 in
Canada; 7 in the United States), and five live whale entanglements in
Canada have been observed, predominantly in the Gulf of St. Lawrence
region of Canada and around the Cape Cod area of Massachusetts.
Historically (2006-2016), the annual average for dead NARW strandings
in Canada and the United States combined is 3.8 whales per year. This
event was declared a UME and is under investigation. Full necropsy
examinations have been conducted on 11 of the 19 whales and final
results from the examinations are pending. Necropsy results from seven
of the Canadian whales suggest mortalities of four whales were
compatible with blunt trauma likely caused by vessel collision and two
mortalities were confirmed from chronic entanglement in fishing gear
(Daoust et al., 2017; M. Hardy personal communication to D. Fauquier on
October 5, 2017; Meyer-Gutbrod et al., 2018; Pettis et al., 2017a). The
seventh whale was too decomposed to determine the cause of mortality,
but some observations in this animal suggested blunt trauma. Limited
samples from another whale suggest
[[Page 57151]]
acute death (Daoust et al., 2018). Daoust et al. (2018) also concluded
there were no oil and gas seismic surveys authorized in the months
prior to or during the period over which these mortalities occurred, as
well as no blasting or major marine development projects. All of the
NARW that stranded in the United States that are part of the UME had
been significantly decomposed at the time of stranding, and
investigations have been limited. Navy was consulted as to sonar use
and they confirmed none was used in the vicinity of any of the
strandings.
As part of the UME process, an independent team of scientists
(Investigative Team) was assembled to coordinate with the Working Group
on Marine Mammal Unusual Mortality Events to review the data collected,
sample future whales that strand and to determine the next steps for
the investigation. For more information on this UME, please refer to
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-north-atlantic-right-whale-unusual-mortality-event.
While data are not yet available to statistically estimate the
population's trend beyond 2015, three lines of evidence indicate the
population is still in decline. First, calving rates in 2016, 2017, and
2018 were low. Only five new calves were documented in 2017 (Pettis et
al., 2017a), well below the number needed to compensate for expected
mortalities (Pace et al., 2017), and no new calves were reported for
2018. Long-term photographic identification data indicate new calves
rarely go undetected, so these years likely represent a continuation of
the low calving rates that began in 2012 (Kraus et al., 2007; Pace et
al., 2017). Second, as noted above, the preliminary abundance estimate
for 2016 is 451 individuals, down approximately 1.5 percent from 458 in
2015. Third, since June 2017, at least 19 NARWs have died in what has
been declared an UME as discussed above, and at least one calf died
prior to this in April 2017 (Meyer-Gutbrod et al., 2018; NMFS 2017).
Humpback Whale UME Along the Atlantic Coast
Since January 2016, elevated mortalities of humpback whales along
the Atlantic coast from Maine through Florida have occurred. As of
August 29, 2018 a total of 81 humpback strandings have occurred (26,
33, and 22 whales in 2016, 2017, and 2018 respectively). As of April
2017, partial or full necropsy examinations were conducted on 20 cases,
or approximately half of the 42 strandings (at that time). Of the 20
whales examined, 10 had evidence of blunt force trauma or pre-mortem
propeller wounds indicative of vessel strike, which is over six times
above the 16-year average of 1.5 whales showing signs of vessel strike
in this region. Vessel strikes were documented for stranded humpback
whales in Virginia (3), New York (3), Delaware (2), Massachusetts (1)
and New Hampshire (1). NOAA, in coordination with our stranding network
partners, continues to investigate the recent mortalities,
environmental conditions, and population monitoring to better
understand the recent humpback whale mortalities. At this time, vessel
parameters (including size) are not known for each vessel-whale
collision that lead to the death of the whales. Therefore, NOAA
considers all sizes of vessels to be risks for whale species in highly
trafficked areas. The Navy has investigated potential strikes and
confirmed that it had none. This investigation is ongoing. Please refer
to http://www.nmfs.noaa.gov/pr/health/mmume/2017humpbackatlanticume.html for more information on this UME.
Minke Whale UME Along the Atlantic Coast
Since January 2017, elevated mortalities of minke whale along the
Atlantic coast from Maine through South Carolina have occurred. As of
September 9, 2018, a total of 43 strandings have occurred (27 and 16
whales in 2017 and 2018, respectively). As of February 16, 2018 full or
partial necropsy examinations were conducted on over 60 percent of the
whales. Preliminary findings in several of the whales have shown
evidence of human interactions, primarily fisheries interactions, or
infectious disease. These findings are not consistent across all of the
whales examined, and final diagnostic results are still pending for
many of the cases. This investigation is ongoing. Please refer to
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-minke-whale-unusual-mortality-event-along-atlantic-coast for more
information on this UME.
Northeast Pinniped UME Along the Atlantic Coast
Since July 2018, elevated numbers of harbor seal and gray seal
mortalities have occurred across Maine, New Hampshire and
Massachusetts. As of September 25, 2018, a total of 1,036 seal
strandings have been confirmed. Full or partial necropsy examinations
have been conducted on many of the seals and samples have been
collected for testing. Based on testing conducted so far, the main
pathogen found in the seals is phocine distemper virus. While initially
detected in some animals, there is not strong evidence that avian
influenza virus is a cause of this UME. This investigation is ongoing.
Please refer to https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-pinniped-unusual-mortality-event-along-northeast for more information on this UME.
Southwest Florida Bottlenose Dolphin UME Along the GOMEX
Since July 2018, elevated bottlenose dolphin mortalities have
occurred along the Southwest coast of Florida including Collier, Lee,
Charlotte, Sarasota, Manatee, Hillsborough, and Pinellas counties. As
of September 27, 2018, 65 dolphins have been confirmed stranded in this
event. Our stranding network partners have conducted full or partial
necropsy examinations on several dolphins, with positive results for
the red tide toxin (brevetoxin) indicating this UME is related to the
severe bloom of a red tide that has been ongoing since November 2017.
This investigation is ongoing. Please refer to https://www.fisheries.noaa.gov/southeast/marine-life-distress/2018-bottlenose-dolphin-unusual-mortality-event-southwest-florida for more information
on this UME.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
We provided a summary and discussion of the potential effects of
the specified activity on marine mammals and their habitat in our
Federal Register notice of proposed rulemaking (83 FR 10954; March 13,
2018). In the Potential Effects of Specified Activities on Marine
Mammals and Their Habitat section of the proposed rule, NMFS provided a
description of the ways marine mammals may be affected by these
activities in the form of serious injury or mortality, physical trauma,
sensory impairment (permanent and temporary threshold shifts and
acoustic masking), physiological responses (particular stress
responses), behavioral disturbance, or habitat effects. Therefore, we
do not reprint the information here but refer the reader to that
document. For additional summary and discussion of recent scientific
studies not included in the proposed rulemaking, we direct the reader
to the AFTT FEIS/OEIS (Chapter 3, Section 3.7 Marine Mammals, http://www.aftteis.com/), which NMFS participated in the development of via
our cooperating agency status and adopted to meet our NEPA
[[Page 57152]]
requirements. We highlight several studies below, but direct the reader
to the AFTT FEIS/OEIS for a full compilation. As noted above, NMFS has
reviewed and accepted the Navy's compilation and interpretation of the
best available science contained in the AFTT FEIS/OEIS. More
specifically, we have independently reviewed the more recent studies
that were not included in NMFS' proposed rule and have concluded that
the descriptions and interpretations of those studies are accurate.
Importantly, we note that none of the newer information highlighted
here or in the AFTT FEIS/OEIS affects our analysis in a manner that
changes our determinations under the MMPA.
The Acoustic Technical Guidance (NMFS 2018), which was used in the
assessment of effects for this action, compiled, interpreted, and
synthesized the best available scientific information for noise-induced
hearing effects for marine mammals to derive updated thresholds for
assessing the impacts of noise on marine mammal hearing. New data on
killer whale hearing (Branstetter et al., 2017), harbor porpoise
hearing (Kastelein et al., 2017a), harbor porpoise TS in response to
airguns (Kastelein et al., 2017b) and mid-frequency sonar (Kastelein et
al., 2017c), and harbor seal TS in response to pile-driving sounds
(Kastelein et al., 2018) are consistent with data included and
thresholds presented in the Acoustic Technical Guidance.
Recent studies with captive odontocete species (bottlenose dolphin,
harbor porpoise, beluga, and false killer whale) have observed
increases in hearing threshold levels when individuals received a
warning sound prior to exposure to a relatively loud sound (Nachtigall
and Supin, 2013, 2015, Nachtigall et al., 2016a,b,c, Finneran, 2018,
Nachtigall et al., 2018). These studies suggest that captive animals
have a mechanism to reduce hearing sensitivity prior to impending loud
sounds. Hearing change was observed to be frequency dependent and
Finneran (2018) suggests hearing attenuation occurs within the cochlea
or auditory nerve. Based on these observations on captive odontocetes,
the authors suggest that wild animals may have a mechanism to self-
mitigate the impacts of noise exposure by dampening their hearing
during prolonged exposures of loud sound, or if conditioned to
anticipate intense sounds (Finneran, 2018, Nachtigall at al., 2018).
Recent reviews have synthesized data from experimental studies
examining marine mammal behavioral response to anthropogenic sound, and
have documented large variances in individual behavioral responses to
anthropogenic sound both within and among marine mammal species. These
reviews highlight the importance of the exposure context (e.g.,
behavioral state, presence of other animals and social relationships,
prey abundance, distance to source, presence of vessels, environmental
parameters, etc.) in determining or predicting a behavioral response.
As described in the Proposed Rule, in a review of experimental field
studies to measure behavioral responses of cetaceans to sonar, Southall
et al. (2016) observed that some individuals of different species
display clear yet varied responses (some of which have negative
implications), while others appear to tolerate high levels. Results
from the studies they investigated demonstrate that responses are
highly variable and may not be fully predictable with simple acoustic
exposure metrics (e.g., received sound level). Rather, differences
among species and individuals along with contextual aspects of exposure
(e.g., behavioral state) appear to affect response probability
(Southall et al., 2016). Dunlop et al. (2018) combined data from the
BRAHSS (Behavioural Response of Australian Humpback whales to Seismic
Surveys) studies designed to examine the behavioral responses of
migrating humpback whales to various seismic array sources to develop a
dose-response model. The model accounted for other variables such as
presence of the vessel, array towpath relative to the migration, and
social and environmental parameters. Authors observed that whales were
more likely to avoid the airgun or array (defined by increasing their
distance from the source) when they were exposed to sounds greater than
130 dB re 1 [mu]Pa\2\[middot]s and they were within 4 km of the source
(Dunlop et al., 2018). At sound exposure levels of 150-155 dB re 1
[mu]Pa\2\[middot]s and less than 2.5 km from the source the model
predicted a 50% probability of response (Dunlop et al. 2018). However,
it was not possible to estimate the maximum response threshold as at
the highest received levels of 160-170 dB re 1 [mu]Pa\2\[middot]s) a
small number of whales moving rapidly and close to the source did not
exhibit an avoidance response as defined by the study (Dunlop et al.,
2018).
Estimated Take of Marine Mammals
This section indicates the number of takes that NMFS is
authorizing, which are based on the amount of take that NMFS
anticipates could occur or is likely to occur, depending on the type of
take and the methods used to estimate it, as described in detail below.
NMFS coordinated closely with the Navy in the development of their
incidental take application, and with one limited exception, agrees
that the methods the Navy put forth in their application to estimate
take (including the model, thresholds, and density estimates), and the
resulting numbers being authorized, are appropriate and based on the
best available science. As noted elsewhere, additional discussion and
subsequent analysis led both NMFS and the Navy, in coordination, to
conclude that different take estimates for serious injury or mortality
were appropriate, and where those numbers differ from the Navy's
application or our proposed rule, NMFS has explicitly described our
rationale and indicated what we consider an appropriate number of
takes.
Takes are predominantly in the form of harassment, but a small
number of serious injuries or mortalities are also authorized. For
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).
Authorized takes would primarily be in the form of Level B
harassment, as use of the acoustic and explosive sources (i.e., sonar,
air guns, pile driving, explosives) is more likely to result in the
disruption of natural behavioral patterns to a point where they are
abandoned or significantly altered (as defined specifically at the
beginning of this section, but referred to generally as behavioral
disruption) or TTS for marine mammals than other forms of take. There
is also the potential for Level A harassment, however, in the form of
auditory injury and/or tissue damage (latter from explosives only) to
result from exposure to the sound sources utilized in training and
testing activities. Lastly, a limited number of serious injuries or
mortalities could occur for four species of mid-frequency cetaceans
during ship shock trials and three serious injuries or mortalities
total (over the five-year period) of mysticetes (except for blue
whales) and North Atlantic sperm whales could occur through vessel
collisions. Although we analyze the impacts of these potential serious
injuries or mortalities that are
[[Page 57153]]
authorized, the required mitigation and monitoring measures are
expected to minimize the likelihood that ship strike or these high
level explosive exposures (and the associated serious injury or
mortality) actually occur.
Generally speaking, for acoustic impacts, we estimate the amount
and type of harassment by considering: (1) Acoustic thresholds above
which NMFS believes the best available science indicates marine mammals
will be taken by Level B harassment (in this case, as defined in the
military readiness definition of Level B harassment included above) or
incur some degree of temporary or permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day or event; (3) the density or occurrence of marine mammals within
these ensonified areas; and (4) and the number of days of activities or
events. Below, we describe these components in more detail and present
the take estimate.
Acoustic Thresholds
Using the best available science, NMFS, in coordination with the
Navy, has established acoustic thresholds that identify the most
appropriate received level of underwater sound above which marine
mammals exposed to these sound sources could be reasonably expected to
experience a disruption in behavior patterns to a point where they are
abandoned or significantly altered, or to incur TTS (equated to Level B
harassment) or PTS of some degree (equated to Level A harassment).
Thresholds have also been developed to identify the pressure levels
above which animals may incur non-auditory injury from exposure to
pressure waves from explosive detonation.
Despite the quickly evolving science, there are still challenges in
quantifying expected behavioral responses that qualify as Level B
harassment, especially where the goal is to use one or two predictable
indicators (e.g., received level and distance) to predict responses
that are also driven by additional factors that cannot be easily
incorporated into the thresholds (e.g., context). So, while the new
Level B behavioral harassment thresholds have been refined here to
better consider the best available science (e.g., incorporating both
received level and distance), they also still, accordingly, have some
built-in conservative choices to address the challenge noted. For
example, while duration of observed responses in the data are now
considered in the thresholds, some of the responses that are informing
take thresholds are of a very short duration, such that it is possible
some of these responses might not always rise to the level of
disrupting behavior patterns to a point where they are abandoned or
significantly altered. In summary, we believe these Level B behavioral
harassment thresholds are the most appropriate method for predicting
Level B behavioral harassment given the best available science and the
associated uncertainty. We describe the application of this Level B
behavioral harassment threshold as identifying the ``maximum number of
instances in which marine mammals could be reasonably expected to
experience a disruption in behavior patterns to a point where they are
abandoned or significantly altered.''
Hearing Impairment (TTS/PTS and Tissues Damage and Mortality)
Non-Impulsive and Impulsive
NMFS' Acoustic Technical Guidance (NMFS, 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). The Acoustic Technical Guidance also
identifies criteria to predict TTS, which is not considered injury and
falls into the Level B harassment category. The Navy's planned activity
includes the use of non-impulsive (sonar, vibratory pile driving/
removal) and impulsive (explosives, air guns, impact pile driving)
sources.
These thresholds (Tables 13-14) were developed by compiling and
synthesizing the best available science and soliciting input multiple
times from both the public and peer reviewers. The references,
analysis, and methodology used in the development of the thresholds are
described in Acoustic Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Table 13--Acoustic Thresholds Identifying the Onset of TTS and PTS for Non-Impulsive Sound Sources by Functional
Hearing Group
----------------------------------------------------------------------------------------------------------------
Non-impulsive
-------------------------------------------
Functional hearing group TTS threshold SEL PTS threshold SEL
(weighted) (weighted)
----------------------------------------------------------------------------------------------------------------
Low-Frequency Cetaceans............................................. 179 199
Mid-Frequency Cetaceans............................................. 178 198
High-Frequency Cetaceans............................................ 153 173
Phocid Pinnipeds (Underwater)....................................... 181 201
----------------------------------------------------------------------------------------------------------------
Note: SEL thresholds in dB re 1 [mu]Pa\2\s.
Based on the best available science, the Navy (in coordination with
NMFS) used the acoustic and pressure thresholds indicated in Table 14
to predict the onset of TTS, PTS, tissue damage, and mortality for
explosives (impulsive) and other impulsive sound sources.
Table 14--Onset of TTS, PTS, Tissue Damage, and Mortality Thresholds for Marine Mammals for Explosives and Other Impulsive Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mean onset slight Mean onset slight
Functional hearing group Species Onset TTS Onset PTS GI tract injury lung injury Mean onset mortality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans......... All mysticetes... 168 dB SEL 183 dB SEL 237 dB Peak SPL.. Equation 1........... Equation 2.
(weighted) or (weighted) or
213 dB Peak SPL. 219 dB Peak SPL.
[[Page 57154]]
Mid-frequency cetaceans......... Most delphinids, 170 dB SEL 185 dB SEL 237 dB Peak SPL..
medium and large (weighted) or (weighted) or
toothed whales. 224 dB Peak SPL. 230 dB Peak SPL.
High-frequency cetaceans........ Porpoises and 140 dB SEL 155 dB SEL 237 dB Peak SPL..
Kogia spp. (weighted) or (weighted) or
196 dB Peak SPL. 202 dB Peak SPL.
Phocidae........................ Harbor, Gray, 170 dB SEL 185 dB SEL 237 dB Peak SPL..
Bearded, Harp, (weighted) or (weighted) or
Hooded, and 212 dB Peak SPL. 218 dB Peak SPL.
Ringed seals.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
Equation 1: 47.5M1/3 (1+[DRm/10.1])1/6 Pa-sec.
Equation 2: 103M1/3 (1+[DRm/10.1])1/6 Pa-sec.
M = mass of the animals in kg.
DRm = depth of the receiver (animal) in meters.
SPL = sound pressure level.
Impulsive--Air Guns and Impact Pile Driving
Impact pile driving produces impulsive noise; therefore, the
criteria used to assess the onset of TTS and PTS are identical to those
used for air guns, as well as explosives (see Table 14 above) (see
Hearing Loss from Air guns in Chapter 6, Section 6.4.3.1, Methods for
Analyzing Impacts from Air guns in the Navy's rulemaking/LOA
application). Refer to the Criteria and Thresholds for U.S. Navy
Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles
technical report (U.S. Department of the Navy, 2017d) for detailed
information on how the criteria and thresholds were derived.
Non-Impulsive--Sonar and Vibratory Pile Driving/Removal
Vibratory pile removal (that will be used during the ELCAS) creates
continuous non-impulsive noise at low source levels for a short
duration. Therefore, the criteria used to assess the onset of TTS and
PTS due to exposure to sonars (non-impulsive, see Table 13 above) are
also used to assess auditory impacts to marine mammals from vibratory
pile driving (see Hearing Loss from Sonar and Other Transducers in
Chapter 6, Section 6.4.2.1, Methods for Analyzing Impacts from Sonars
and Other Transducers in the Navy's rulemaking/LOA application). Refer
to the Criteria and Thresholds for U.S. Navy Acoustic and Explosive
Impacts to Marine Mammals and Sea Turtles technical report (U.S.
Department of the Navy, 2017d) for detailed information on how the
criteria and thresholds were derived. Non-auditory injury (i.e., other
than PTS) and mortality from sonar and other transducers is so unlikely
as to be discountable under normal conditions for the reasons explained
in the proposed rule under Potential Effects of Specified Activities on
Marine Mammals and Their Habitat section--Acoustically Mediated Bubble
Growth and Other Pressure-related Injury and is therefore not
considered further in this analysis.
Behavioral Harassment
Though significantly driven by received level, the onset of Level B
harassment by behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al., 2007, Ellison et al., 2011). Based on what
the available science indicates and the practical need to use
thresholds based on a factor, or factors, that are both predictable and
measurable for most activities, NMFS uses generalized acoustic
thresholds based primarily on received level (and distance in some
cases) to estimate the onset of Level B behavioral harassment.
Air Guns and Pile Driving
For air guns and pile driving, NMFS predicts that marine mammals
are likely to be taken by Level B behavioral harassment when exposed to
underwater anthropogenic noise above received levels of 120 dB re 1
[mu]Pa (rms) for continuous (e.g., vibratory pile-driving, drilling)
and above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g.,
seismic air guns) or intermittent (e.g., scientific sonar) sources. To
estimate Level B behavioral harassment from air guns, the existing NMFS
Level B harassment threshold of 160 dB re 1 [micro]Pa (rms) is used.
The root mean square calculation for air guns is based on the duration
defined by 90 percent of the cumulative energy in the impulse.
The existing NMFS Level B harassment thresholds were also applied
to estimate Level B behavioral harassment from impact and vibratory
pile driving (Table 15).
Table 15--Pile Driving Level B Harassment Thresholds Used in This
Analysis To Predict Behavioral Responses From Marine Mammals
------------------------------------------------------------------------
Pile driving criteria (SPL, dB re 1 [mu]Pa) Level B harassment threshold
-------------------------------------------------------------------------
Underwater vibratory (dB rms) Underwater impact (dB rms)
------------------------------------------------------------------------
120 160
------------------------------------------------------------------------
Notes: Root mean square calculation for impact pile driving is based on
the duration defined by 90 percent of the cumulative energy in the
impulse. Root mean square for vibratory pile driving is calculated
based on a representative time series long enough to capture the
variation in levels, usually on the order of a few seconds.
dB: decibel; dB re 1 [micro]Pa: decibel referenced to 1 micropascal;
rms: root mean square.
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Sonar
As noted, the Navy coordinated with NMFS to propose Level B
behavioral harassment thresholds specific to their military readiness
activities utilizing active sonar. The way the criteria were derived is
discussed in detail in the Criteria and Thresholds for U.S. Navy
Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles
Technical Report (U.S. Department of the Navy, 2017d). Developing the
new Level B harassment behavioral criteria involved multiple steps. All
peer-reviewed published behavioral response studies conducted both in
the field and on captive animals were examined in order to understand
the breadth of behavioral responses of marine mammals to sonar and
other transducers. NMFS has carefully reviewed the Navy's proposed
Level B behavioral thresholds and establishment of cutoff distances for
the species, and agrees that it is the best available science and is
the appropriate method to use at this time for determining impacts to
marine mammals from sonar and other transducers and calculating take
and to support the determinations made in the proposed rule.
As noted above, marine mammal responses to sound (some of which are
considered disturbances that rise to the level of a take) are highly
variable and context specific, i.e., they are affected by differences
in acoustic conditions; differences between species and populations;
differences in gender, age, reproductive status, or social behavior; or
other prior experience of the individuals. This means that there is
support for considering alternative approaches for estimating Level B
behavioral harassment. Although the statutory definition of Level B
harassment for military readiness activities means that a natural
behavior pattern of a marine mammal is significantly altered or
abandoned, the current state of science for determining those
thresholds is somewhat unsettled.
In its analysis of impacts associated with sonar acoustic sources
(which was coordinated with NMFS), the Navy proposed an updated
conservative approach that likely overestimates the number of takes by
Level B harassment due to behavioral disturbance and response. Many of
the behavioral responses identified using the Navy's quantitative
analysis are most likely to be of moderate severity as described in the
Southall et al., 2007 behavioral response severity scale. These
``moderate'' severity responses were considered significant if they
were sustained for the duration of the exposure or longer. Within the
Navy's quantitative analysis, many reactions are predicted from
exposure to sound that may exceed an animal's Level B behavioral
harassment threshold for only a single exposure (a few seconds) to
several minutes, and it is likely that some of the resulting estimated
behavioral responses that are counted as Level B harassment would not
constitute ``significantly altering or abandoning natural behavioral
patterns.'' The Navy and NMFS have used the best available science to
address the challenging differentiation between significant and non-
significant behavioral reactions (i.e., whether the behavior has been
abandoned or significantly altered such that it qualifies as
harassment), but have erred on the cautious side where uncertainty
exists (e.g., counting these lower duration reactions as take), which
likely results in some degree of overestimation of Level B behavioral
harassment. We consider application of this Level B behavioral
harassment threshold, therefore, as identifying the maximum number of
instances in which marine mammals could be reasonably expected to
experience a disruption in behavior patterns to a point where they are
abandoned or significantly altered (i.e., Level B harassment). Because
this is the most appropriate method for estimating Level B harassment
given the best available science and uncertainty on the topic, it is
these numbers of Level B harassment by behavioral disturbance that are
analyzed in the Analysis and Negligible Impact Determination section.
In the Navy's acoustic impact analyses during Phase II, the
likelihood of Level B behavioral harassment in response to sonar and
other transducers was based on a probabilistic function (termed a
behavioral response function--BRF), that related the likelihood (i.e.,
probability) of a behavioral response (at the level of a Level B
harassment) to the received SPL. The BRF was used to estimate the
percentage of an exposed population that is likely to exhibit Level B
harassment due to altered behaviors or behavioral disturbance at a
given received SPL. This BRF relied on the assumption that sound poses
a negligible risk to marine mammals if they are exposed to SPL below a
certain ``basement'' value. Above the basement exposure SPL, the
probability of a response increased with increasing SPL. Two BRFs were
used in Navy acoustic impact analyses: BRF1 for mysticetes and BRF2 for
other species. BRFs were not used for harbor porpoises and beaked
whales during Phase II analyses. Instead, step functions at SPLs of 120
dB re 1 [mu]Pa and 140 dB re 1 [mu]Pa were used for harbor porpoises
and beaked whales, respectively, as thresholds to predict Level B
harassment by behavioral disturbance.
Developing the new Level B behavioral harassment criteria for Phase
III involved multiple steps: All available behavioral response studies
conducted both in the field and on captive animals were examined to
understand the breadth of behavioral responses of marine mammals to
sonar and other transducers. Marine mammal species were placed into
behavioral criteria groups based on their known or suspected behavioral
sensitivities to sound. In most cases these divisions were driven by
taxonomic classifications (e.g., mysticetes, pinnipeds). The data from
the behavioral studies were analyzed by looking for significant
responses, or lack thereof, for each experimental session.
The Navy used cutoff distances beyond which the potential of
significant behavioral responses (and therefore Level B harassment) is
considered to be unlikely (see Table 16 below). For animals within the
cutoff distance, a behavioral response function based on a received SPL
as presented in Chapter 3, Section 3.1.0 of the Navy's rulemaking/LOA
application was used to predict the probability of a potential
significant behavioral response. For training and testing events that
contain multiple platforms or tactical sonar sources that exceed 215 dB
re 1 [mu]Pa @ 1 m, this cutoff distance is substantially increased
(i.e., doubled) from values derived from the literature. The use of
multiple platforms and intense sound sources are factors that probably
increase responsiveness in marine mammals overall. There are currently
few behavioral observations under these circumstances; therefore, the
Navy conservatively predicted significant behavioral responses that
would rise to Level B harassment at further ranges as shown in Table
16, versus less intense events.
[[Page 57156]]
Table 16--Cutoff Distances for Moderate Source Level, Single Platform
Training and Testing Events and for All Other Events With Multiple
Platforms or Sonar With Source Levels at or Exceeding 215 dB re 1
[micro]Pa @1 m
------------------------------------------------------------------------
Moderate SL/
single platform High SL/ multi-
Criteria group cutoff distance platform cutoff
(km) distance (km)
------------------------------------------------------------------------
Odontocetes......................... 10 20
Pinnipeds........................... 5 10
Mysticetes and Manatees............. 10 20
Beaked Whales....................... 25 50
Harbor Porpoise..................... 20 40
------------------------------------------------------------------------
Notes: dB re 1 [micro]Pa @1 m: decibels referenced to 1 micropascal at 1
meter; km: kilometer; SL: source level.
The information currently available regarding harbor porpoises
suggests a very low threshold level of response for both captive and
wild animals. Threshold levels at which both captive (Kastelein et al.,
2000; Kastelein et al., 2005) and wild harbor porpoises (Johnston,
2002) responded to sound (e.g., acoustic harassment devices, acoustic
deterrent devices, or other non-impulsive sound sources) are very low,
approximately 120 dB re 1 [micro]Pa. Therefore, a SPL of 120 dB re 1
[micro]Pa was used in the analysis as a threshold for predicting Level
B behavioral harassment in harbor porpoises.
The range to received sound levels in 6-dB steps from five
representative sonar bins and the percentage of animals that may be
taken by Level B harassment under each behavioral response function (or
step function in the case of the harbor porpoise) are shown in Table 17
through Table 21. Cells are shaded if the mean range value for the
specified received level exceeds the distance cutoff range for a
particular hearing group and therefore are not included in the
estimated take. See Chapter 6, Section 6.4.2.1.1 (Methods for Analyzing
Impacts from Sonars and Other Transducers) of the Navy's rulemaking/LOA
application for further details on the derivation and use of the
behavioral response functions, thresholds, and the cutoff distances to
identify takes by Level B harassment, which were coordinated with NMFS.
Table 17 illustrates the maximum likely takes (maximum number of
instances in which marine mammals would be reasonably expected to
experience a disruption in behavior patterns to a point where they are
abandoned or significantly altered) for LFAS. As noted previously, NMFS
carefully reviewed, and contributed to, Navy's proposed level B
behavioral harassment thresholds and cutoff distances for the species,
and agrees that these methods represent the best available science at
this time for determining impacts to marine mammals from sonar and
other transducers.
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Explosives
Phase III explosive criteria for Level B behavioral harassment
thresholds for marine mammals is the hearing groups' TTS threshold
minus 5 dB (see Table 22 and Table 14 for the TTS thresholds for
explosives) for events that contain multiple impulses from explosives
underwater. This was the same approach as taken in Phase II for
explosive analysis. See the Criteria and Thresholds for U.S. Navy
Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles
Technical Report (U.S. Department of the Navy, 2017d) for detailed
information on how the criteria and thresholds were derived. NMFS
continues to concur that this approach is the best available science
for determining impacts to marine mammals from explosives.
Table 22--Phase III Level B Behavioral Harassment Thresholds for
Explosives for Marine Mammals
------------------------------------------------------------------------
Functional hearing SEL
Medium group (weighted)
------------------------------------------------------------------------
Underwater.......................... LF 163
Underwater.......................... MF 165
Underwater.......................... HF 135
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Underwater.......................... PW 165
------------------------------------------------------------------------
Note: Weighted SEL thresholds in dB re 1 [mu]Pa\2\s underwater.
Navy's Acoustic Effects Model
Sonar and Other Transducers and Explosives
The Navy's Acoustic Effects Model calculates sound energy
propagation from sonar and other transducers and explosives during
naval activities and the sound received by animat dosimeters. Animat
dosimeters are virtual representations of marine mammals distributed in
the area around the modeled naval activity and each dosimeter records
its individual sound ``dose.'' The model bases the distribution of
animats over the AFTT Study Area on the density values in the Navy
Marine Species Density Database and distributes animats in the water
column proportional to the known time that species spend at varying
depths.
The model accounts for environmental variability of sound
propagation in both distance and depth when computing the received
sound level on the animats. The model conducts a statistical analysis
based on multiple model runs to compute the estimated effects on
animals. The number of animats that exceed the thresholds for effects
is tallied to provide an estimate of the number of marine mammals that
could be affected.
Assumptions in the Navy model intentionally err on the side of
overestimation when there are unknowns. Naval activities are modeled as
though they would occur regardless of proximity to marine mammals,
meaning that no mitigation is considered (i.e., no power down or shut
down modeled) and without any avoidance of the activity by the animal.
The final step of the quantitative analysis of acoustic effects is to
consider the implementation of mitigation and the possibility that
marine mammals would avoid continued or repeated sound exposures. For
more information on this process, see the discussion in the Take
Requests subsection below. Many explosions from ordnance such as bombs
and missiles actually occur upon impact with above-water targets.
However, for this analysis, sources such as these were modeled as
exploding underwater. This overestimates the amount of explosive and
acoustic energy entering the water.
The model estimates the impacts caused by individual training and
testing exercises. During any individual modeled event, impacts to
individual animats are considered over 24-hour periods. The animats do
not represent actual animals, but rather they represent a distribution
of animals based on density and abundance data, which allows for a
statistical analysis of the number of instances that marine mammals may
be exposed to sound levels resulting in an effect. Therefore, the model
estimates the number of instances in which an effect threshold was
exceeded over the course of a year, but does not estimate the number of
individual marine mammals that may be impacted over a year (i.e., some
marine mammals could be impacted several times, while others would not
experience any impact). A detailed explanation of the Navy's Acoustic
Effects Model is provided in the technical report Quantitative Analysis
for Estimating Acoustic and Explosive Impacts to Marine Mammals and Sea
Turtles (U.S. Department of the Navy, 2017a).
Air Guns and Pile Driving
The Navy's quantitative analysis estimates the sound and energy
received by marine mammals distributed in the area around planned Navy
activities involving air guns. See the technical report titled
Quantitative Analysis for Estimating Acoustic and Explosive Impacts to
Marine Mammals and Sea Turtles (U.S. Department of the Navy, 2017a) for
additional details. Underwater noise effects from pile driving and
vibratory pile extraction were modeled using actual measures of impact
pile driving and vibratory removal during construction of an ELCAS
(Illingworth and Rodkin, 2015, 2016). A conservative estimate of
spreading loss of sound in shallow coastal waters (i.e., transmission
loss = 16.5*Log10 [radius]) was applied based on spreading loss
observed in actual measurements. Inputs used in the model are provided
in Chapter 1, Section 1.4.1.3 (Pile Driving) of the Navy's rulemaking/
LOA application, including source levels; the number of strikes
required to drive a pile and the duration of vibratory removal per
pile; the number of piles driven or removed per day; and the number of
days of pile driving and removal.
Range to Effects
The following section provides range to effects for sonar and other
active acoustic sources as well as explosives to specific acoustic
thresholds determined using the Navy Acoustic Effects Model. Marine
mammals exposed within these ranges for the shown duration are
predicted to experience the associated effect. Range to effects is
important information in not only predicting acoustic impacts, but also
in verifying the accuracy of model results against real-world
situations and determining adequate mitigation ranges to avoid higher
level effects, especially physiological effects to marine mammals.
Sonar
The range to received sound levels in 6-dB steps from 5
representative sonar bins and the percentage of the total number of
animals that may exhibit a significant behavioral response (and
therefore Level B harassment) under each behavioral response function
(or step function in the case of the harbor porpoise) are shown in
Table 17 through Table 21 above, respectively. See Chapter 6, Section
6.4.2.1 (Methods for Analyzing Impacts from Sonars and Other
Transducers) of the Navy's rulemaking/LOA application for additional
details on the derivation and use of the behavioral response functions,
thresholds, and the cutoff distances that are used to identify Level B
behavioral harassment.
The ranges to the PTS for 5 representative sonar systems for an
exposure of 30 seconds is shown in Table 23 relative to the marine
mammal's functional hearing group. This period (30 seconds) was chosen
based on examining the maximum amount of time a marine mammal would
realistically be exposed to levels that could cause the onset of PTS
based on platform (e.g., ship) speed and a nominal animal swim speed of
approximately 1.5 m per second. The ranges provided in the table
include the average range to PTS, as well as the range from the minimum
to the maximum distance at which PTS is possible for each hearing
group.
[[Page 57163]]
Table 23--Range to Permanent Threshold Shift (Meters) for Five Representative Sonar Systems
----------------------------------------------------------------------------------------------------------------
Approximate PTS (30 seconds) ranges (meters) \1\
-------------------------------------------------------------------------------
Sonar bin LF5
Functional hearing group (low frequency Sonar bin MF1 Sonar bin MF4 Sonar bin MF5 Sonar bin HF4
sources <180 (e.g., SQS-53 (e.g., AQS-22 (e.g., SSQ-62 (e.g., SQS-20
dB source ASW hull ASW Dipping ASW Sonobuoy) Mine Hunting
level) mounted sonar) Sonar) Sonar)
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......... 0 66 15 0 0
(0-0) (65-80) (15-18) (0-0) (0-0)
Mid-frequency Cetaceans......... 0 16 3 0 1
(0-0) (16-16) (3-3) (0-0) (0-2)
High-frequency Cetaceans........ 0 192 31 9 34
(0-0) (170-270) (30-40) (8-13) (20-85)
Phocid Seals.................... 0 46 11 0 0
(0-0) (45-55) (11-13) (0-0) (0-0)
----------------------------------------------------------------------------------------------------------------
\1\ PTS ranges extend from the sonar or other active acoustic sound source to the indicated distance. The
average range to PTS is provided as well as the range from the estimated minimum to the maximum range to PTS
in parenthesis.
Notes: ASW: Anti-submarine warfare; HF: High frequency; LF: Low frequency; MF: Mid-frequency; PTS: Permanent
threshold shift; NA: Not applicable because there is no overlap between species and sound source.
The tables below illustrate the range to TTS for 1, 30, 60, and 120
seconds from five representative sonar systems (see Table 24 through
Table 28).
Table 24--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin LF5 Over a Representative Range of
Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Approximate TTS ranges (meters) \1\
---------------------------------------------------------------
Functional hearing group Sonar bin LF5 (low frequency sources <180 dB source level)
---------------------------------------------------------------
1 second 30 seconds 60 seconds 120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......................... 4 4 4 4
(0-5) (0-5) (0-5) (0-5)
Mid-frequency Cetaceans......................... 222 222 331 424
(200-310) (200-310) (280-525) (340-800)
High-frequency Cetaceans........................ 0 0 0 0
(0-0) (0-0) (0-0) (0-0)
Phocid Seals.................................... 0 0 0 0
(0-0) (0-0) (0-0) (0-0)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: Ranges for 1-sec and 30-sec periods are identical for Bin MF1 because this system nominally pings every
50 seconds, therefore these periods encompass only a single ping. PTS: Permanent threshold shift; TTS:
Temporary threshold shift.
Table 25--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin MF1 Over a Representative Range of
Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Approximate TTS ranges (meters) \1\
---------------------------------------------------------------
Functional hearing group Sonar bin MF1 (e.g., SQS-53 ASW hull mounted sonar)
---------------------------------------------------------------
1 second 30 seconds 60 seconds 120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......................... 1111 1111 1655 2160
(650-2775) (650-2775) (800-3775) (900-6525)
Mid-frequency Cetaceans......................... 222 222 331 424
(200-310) (200-310) (280-525) (340-800)
High-frequency Cetaceans........................ 3001 3001 4803 6016
(1275-8275) (1275-8275) (1525-13525) (1525-16775)
Phocid Seals.................................... 784 784 1211 1505
(575-1275) (575-1275) (850-3025) (1025-3775)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: Ranges for 1-sec and 30-sec periods are identical for Bin MF1 because this system nominally pings every
50 seconds, therefore these periods encompass only a single ping. ASW: Anti-submarine warfare; MF: Mid-
frequency; PTS: Permanent threshold shift; TTS: Temporary threshold shift.
[[Page 57164]]
Table 26--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin MF4 Over a Representative Range of
Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Approximate TTS ranges (meters) \1\
---------------------------------------------------------------
Functional hearing group Sonar bin MF4 (e.g., AQS-22 ASW Dipping Sonar)
---------------------------------------------------------------
1 second 30 seconds 60 seconds 120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......................... 89 175 262 429
(85-120) (160-280) (220-575) (330-875)
Mid-frequency Cetaceans......................... 22 36 51 72
(22-25) (35-45) (45-60) (70-95)
High-frequency Cetaceans........................ 270 546 729 1107
(220-575) (410-1025) (525-1525) (600-2275)
Phocid Seals.................................... 67 119 171 296
(65-90) (110-180) (150-260) (240-700)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: ASW: Anti-submarine warfare; MF: Mid-frequency; PTS: Permanent threshold shift; TTS: Temporary threshold
shift.
Table 27--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin MF5 Over a Representative Range of
Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Approximate TTS ranges (meters) \1\
---------------------------------------------------------------
Functional hearing group Sonar bin MF5 (e.g., SSQ-62 ASW Sonobuoy)
---------------------------------------------------------------
1 second 30 seconds 60 seconds 120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......................... 11 11 16 23
(0-14) (0-14) (0-20) (0-25)
Mid-frequency Cetaceans......................... 5 5 12 17
(0-10) (0-10) (0-15) (0-22)
High-frequency Cetaceans........................ 122 122 187 286
(110-320) (110-320) (150-525) (210-750)
Phocid Seals.................................... 9 9 15 22
(8-13) (8-13) (14-18) (21-25)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: ASW: Anti-submarine warfare; MF: Mid-frequency; PTS: Permanent threshold shift; TTS: Temporary threshold
shift.
Table 28--Ranges to Temporary Threshold Shift (meters) for Sonar Bin HF4 Over a Representative Range of
Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
Approximate TTS ranges (Meters) \1\
---------------------------------------------------------------
Functional hearing group Sonar bin HF4 (e.g., SQS-20 Mine Hunting Sonar)
---------------------------------------------------------------
1 second 30 seconds 60 seconds 120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......................... 1 3 5 7
(0-3) (0-5) (0-7) (0-12)
Mid-frequency Cetaceans......................... 10 19 27 39
(7-17) (11-35) (17-60) (22-100)
High-frequency Cetaceans........................ 242 395 524 655
(100-975) (170-1775) (230-2775) (300-4275)
Phocid Seals.................................... 2 5 8 12
(0-5) (0-8) (5-13) (8-20)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: HF: High frequency; PTS: Permanent threshold shift; TTS: Temporary threshold shift.
Explosives
The following section provides the range (distance) over which
specific physiological or behavioral effects are expected to occur
based on the explosive criteria (see Chapter 6, Section 6.5.2.1.1 of
the Navy's rulemaking/LOA application and the Navy's technical report
Criteria and Thresholds Used to Estimate Impacts to Marine Mammals from
Explosives) and the explosive propagation calculations
[[Page 57165]]
from the Navy Acoustic Effects Model (see Chapter 6, Section 6.5.2.1.3,
Navy Acoustic Effects Model of the Navy's rulemaking/LOA application).
The range to effects are shown for a range of explosive bins, from E1
(up to 0.25 lb net explosive weight) to E17 (up to 58,000 lb net
explosive weight) (Tables 29 through 34). Ranges are determined by
modeling the distance that noise from an explosion would need to
propagate to reach exposure level thresholds specific to a hearing
group that would cause behavioral response (to the degree of Level B
behavioral harassment), TTS, PTS, and non-auditory injury. Ranges are
provided for a representative source depth and cluster size for each
bin. For events with multiple explosions, sound from successive
explosions can be expected to accumulate and increase the range to the
onset of an impact based on SEL thresholds. Ranges to non-auditory
injury and mortality are shown in Tables 33 and 34, respectively. Range
to effects is important information in not only predicting impacts from
explosives, but also in verifying the accuracy of model results against
real-world situations and determining adequate mitigation ranges to
avoid higher level effects, especially physiological effects to marine
mammals. For additional information on how ranges to impacts from
explosions were estimated, see the technical report Quantifying
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and
Analytical Approach for Phase III Training and Testing (U.S. Navy,
2017b).
Table 29 shows the minimum, average, and maximum ranges to onset of
auditory and likely behavioral effects that rise to the level of Level
B harassment for high-frequency cetaceans based on the developed
thresholds.
Table 29--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Behavioral Harassment for High-Frequency Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range to effects for explosives: high frequency cetaceans \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
Source depth
Bin (m) Cluster size PTS TTS Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................ 0.1 1 446 (180-975) 1,512 (525-3,775) 2,591 (800-6,775)
20 1,289 (440-3,025) 4,527 (1,275-10,775) 6,650 (1,525-16,525)
E2........................................ 0.1 1 503 (200-1,025) 1,865 (600-3,775) 3,559 (1,025-6,775)
2 623 (250-1,275) 2,606 (750-5,275) 4,743 (1,275-8,525)
E3........................................ 18.25 1 865 (525-2,525) 3,707 (1,025-6,775) 5,879 (1,775-10,025)
50 4,484 (1,275-7,775) 10,610 (2,275-19,775) 13,817 (2,275-27,025)
E4........................................ 15 1 1,576 (1,025-2,275) 6,588 (4,525-8,775) 9,744 (7,275-13,025)
5 3,314 (2,275-4,525) 10,312 (7,525-14,775) 14,200 (9,775-20,025)
19.8 2 1,262 (975-2,025) 4,708 (1,775-7,525) 6,618 (2,025-11,525)
198 2 1,355 (875-2,775) 4,900 (2,525-8,275) 6,686 (3,025-11,275)
E5........................................ 0.1 25 3,342 (925-8,025) 8,880 (1,275-20,525) 11,832 (1,525-25,025)
E6........................................ 0.1 1 1,204 (550-3,275) 4,507 (1,275-10,775) 6,755 (1,525-16,525)
30 1 2,442 (1,525-5,025) 7,631 (4,525-10,775) 10,503 (4,775-15,025)
E7........................................ 15 1 3,317 (2,525-4,525) 10,122 (7,775-13,275) 13,872 (9,775-17,775)
E8........................................ 0.1 1 1,883 (675-4,525) 6,404 (1,525-14,525) 9,001 (1,525-19,775)
45.75 1 2,442 (1,025-5,525) 7,079 (2,025-12,275) 9,462 (2,275-17,025)
305 1 3,008 (2,025-4,025) 9,008 (6,025-10,775) 12,032 (8,525-14,525)
E9........................................ 0.1 1 2,210 (800-4,775) 6,088 (1,525-13,275) 8,299 (1,525-19,025)
E10....................................... 0.1 1 2,960 (875-7,275) 8,424 (1,525-19,275) 11,380 (1,525-24,275)
E11....................................... 18.5 1 4,827 (1,525-8,775) 11,231 (2,525-20,025) 14,667 (2,525-26,775)
45.75 1 3,893 (1,525-7,525) 9,320 (2,275-17,025) 12,118 (2,525-21,525)
E12....................................... 0.1 1 3,046 (1,275-6,775) 7,722 (1,525-18,775) 10,218 (2,025-22,525)
E16....................................... 61 1 5,190 (2,275-9,775) 7,851 (3,525-19,525) 9,643 (3,775-25,775)
E17....................................... 61 1 6,173 (2,525-12,025) 11,071 (3,775-29,275) 13,574 (4,025-37,775)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.
Table 30 shows the minimum, average, and maximum ranges to onset of
auditory and likely behavioral effects that rise to the level of a take
for mid-frequency cetaceans based on the developed thresholds.
Table 30--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Behavioral Harassment for Mid-Frequency Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range to effects for explosives: mid-frequency cetaceans \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
Source depth
Bin (m) Cluster size PTS TTS Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................ 0.1 1 26 (25-50) 139 (95-370) 218 (120-550)
20 113 (80-290) 539 (210-1,025) 754 (270-1,525)
E2........................................ 0.1 1 35 (30-45) 184 (100-300) 276 (130-490)
2 51 (40-70) 251 (120-430) 365 (160-700)
E3........................................ 18.25 1 40 (35-45) 236 (190-800) 388 (280-1,275)
50 304 (230-1,025) 1,615 (750-3,275) 2,424 (925-5,025)
E4........................................ 15 1 74 (60-100) 522 (440-750) 813 (650-1,025)
5 192 (140-260) 1,055 (875-1,525) 1,631 (1,275-2,525)
19.8 2 69 (65-70) 380 (330-470) 665 (550-750)
198 2 48 (0-55) 307 (260-380) 504 (430-700)
E5........................................ 0.1 25 391 (170-850) 1,292 (470-3,275) 1,820 (575-5,025)
E6........................................ 0.1 1 116 (90-290) 536 (310-1,025) 742 (380-1,525)
30 1 110 (85-310) 862 (600-2,275) 1,281 (975-3,275)
E7........................................ 15 1 201 (190-220) 1,067 (1,025-1,275) 1,601 (1,275-2,025)
E8........................................ 0.1 1 204 (150-500) 802 (400-1,525) 1,064 (470-2,275)
45.75 1 133 (120-200) 828 (525-2,025) 1,273 (775-2,775)
305 1 58 (0-110) 656 (550-750) 1,019 (900-1,025)
[[Page 57166]]
E9........................................ 0.1 1 241 (200-370) 946 (450-1,525) 1,279 (500-2,275)
E10....................................... 0.1 1 339 (230-750) 1,125 (490-2,525) 1,558 (550-4,775)
E11....................................... 18.5 1 361 (230-750) 1,744 (800-3,775) 2,597 (925-5,025)
45.75 1 289 (230-825) 1,544 (800-3,275) 2,298 (925-5,025)
E12....................................... 0.1 1 382 (270-550) 1,312 (525-2,775) 1,767 (600-4,275)
E16....................................... 61 1 885 (650-1,775) 3,056 (1,275-5,025) 3,689 (1,525-6,525)
E17....................................... 61 1 1,398 (925-2,275) 3,738 (1,525-6,775) 4,835 (1,775-9,275)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.
Table 31 shows the minimum, average, and maximum ranges to onset of
auditory and likely behavioral effects that rise to the level of a take
for low-frequency cetaceans based on the developed thresholds.
Table 31--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Behavioral Harassment for Low-Frequency Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range to effects for explosives: low frequency cetaceans \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
Source depth
Bin (m) Cluster size PTS TTS Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................ 0.1 1 54 (45-80) 259 (130-390) 137 (90-210)
20 211 (110-320) 787 (340-1,525) 487 (210-775)
E2........................................ 0.1 1 64 (55-75) 264 (150-400) 154 (100-220)
2 87 (70-110) 339 (190-500) 203 (120-300)
E3........................................ 18.25 1 211 (190-390) 1,182 (600-2,525) 588 (410-1,275)
50 1,450 (675-3,275) 8,920 (1,525-24,275) 4,671 (1,025-10,775)
E4........................................ 15 1 424 (380-550) 3,308 (2,275-4,775) 1,426 (1,025-2,275)
5 1,091 (950-1,525) 6,261 (3,775-9,525) 3,661 (2,525-5,275)
19.8 2 375 (350-400) 1,770 (1,275-3,025) 1,003 (725-1,275)
198 2 308 (280-380) 2,275 (1,275-3,525) 1,092 (850-2,275)
E5........................................ 0.1 25 701 (300-1,525) 4,827 (750-29,275) 1,962 (575-22,525)
E6........................................ 0.1 1 280 (150-450) 1,018 (460-7,275) 601 (300-1,525)
30 1 824 (525-1,275) 4,431 (2,025-7,775) 2,334 (1,275-4,275)
E7........................................ 15 1 1,928 (1,775-2,275) 8,803 (6,025-14,275) 4,942 (3,525-6,525)
E8........................................ 0.1 1 486 (220-1,000) 3,059 (575-20,525) 1,087 (440-7,775)
45.75 1 1,233 (675-3,025) 7,447 (1,275-19,025) 3,633 (1,000-9,025)
305 1 937 (875-975) 6,540 (3,025-12,025) 3,888 (2,025-6,525)
E9........................................ 0.1 1 655 (310-1,275) 2,900 (650-31,025) 1,364 (500-8,525)
E10....................................... 0.1 1 786 (340-7,275) 7,546 (725-49,025) 3,289 (550-26,525)
E11....................................... 18.5 1 3,705 (925-8,775) 16,488 (2,275-40,275) 9,489 (1,775-22,775)
45.75 1 3,133 (925-8,275) 16,365 (1,775-50,275) 8,701 (1,275-23,775)
E12....................................... 0.1 1 985 (400-6,025) 7,096 (800-72,775) 2,658 (625-46,525)
E16....................................... 61 1 10,155 (2,025-21,525) 35,790 (18,025-69,775) 25,946 (14,025-58,775)
E17....................................... 61 1 17,464 (8,275-39,525) 47,402 (21,025-93,275) 34,095 (16,275-86,275)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.
Table 32 shows the minimum, average, and maximum ranges to onset of
auditory and likely behavioral effects that rise to the level of take
for phocids based on the developed thresholds.
Table 32--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, Level B Behavioral Harassment and for Phocids
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range to effects for explosives: phocids \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
Source depth
Bin (m) Cluster size PTS TTS Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................ 0.1 1 50 (45-85) 242 (120-470) 360 (160-650)
20 197 (110-380) 792 (300-1,275) 1,066 (410-2,275)
E2........................................ 0.1 1 65 (55-85) 267 (140-430) 378 (190-675)
2 85 (65-100) 345 (180-575) 476 (230-875)
E3........................................ 18.25 1 121 (110-220) 689 (500-1,525) 1,074 (725-2,525)
50 859 (600-2,025) 4,880 (1,525-10,525) 7,064 (1,775-16,275)
E4........................................ 15 1 213 (190-260) 1,246 (1,025-1,775) 2,006 (1,525-3,025)
5 505 (450-600) 2,933 (2,275-4,275) 4,529 (3,275-6,775)
19.8 2 214 (210-220) 1,083 (900-2,025) 1,559 (1,025-2,525)
198 2 156 (150-180) 1,141 (825-2,275) 2,076 (1,275-3,525)
E5........................................ 0.1 25 615 (250-1,025) 2,209 (850-9,775) 3,488 (1,025-15,275)
E6........................................ 0.1 1 210 (160-380) 796 (480-1,275) 1,040 (600-3,275)
30 1 359 (280-625) 1,821 (1,275-2,775) 2,786 (1,775-4,275)
E7........................................ 15 1 557 (525-650) 3,435 (2,775-4,525) 5,095 (3,775-6,775)
[[Page 57167]]
E8........................................ 0.1 1 346 (230-600) 1,136 (625-4,025) 1,708 (850-6,025)
45.75 1 469 (380-1,025) 2,555 (1,275-6,025) 3,804 (1,525-9,775)
305 1 322 (310-330) 3,222 (1,775-4,525) 4,186 (2,275-5,775)
E9........................................ 0.1 1 441 (330-575) 1,466 (825-5,775) 2,142 (950-9,775)
E10....................................... 0.1 1 539 (350-900) 1,914 (875-8,525) 3,137 (1,025-15,025)
E11....................................... 18.5 1 1,026 (700-2,025) 5,796 (1,525-12,775) 8,525 (1,775-19,775)
45.75 1 993 (675-2,275) 4,835 (1,525-13,525) 7,337 (1,775-18,775)
E12....................................... 0.1 1 651 (420-900) 2,249 (950-11,025) 3,349 (1,275-16,025)
E16....................................... 61 1 2,935 (1,775-5,025) 6,451 (2,275-16,275) 10,619 (3,275-24,025)
E17....................................... 61 1 3,583 (1,775-7,525) 12,031 (3,275-29,275) 18,396 (7,275-41,025)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.
Table 33 below shows the minimum, average, and maximum ranges due
to varying propagation conditions to non-auditory injury as a function
of animal mass and explosive bin (i.e., net explosive weight). Ranges
to gastrointestinal tract injury typically exceed ranges to slight lung
injury; therefore, the maximum range to effect is not mass-dependent.
Animals within these water volumes would be expected to receive minor
injuries at the outer ranges, increasing to more substantial injuries,
and finally mortality as an animal approaches the detonation point.
Table 33--Ranges \1\ to 50 Percent Non-Auditory Injury Risk for All
Marine Mammal Hearing Groups
------------------------------------------------------------------------
Bin Range (m)
------------------------------------------------------------------------
E1............................................. 22 (22-35)
E2............................................. 25 (25-30)
E3............................................. 46 (35-75)
E4............................................. 63 (0-130)
E5............................................. 75 (55-130)
E6............................................. 97 (65-390)
E7............................................. 232 (200-270)
E8............................................. 170 (0-490)
E9............................................. 215 (100-430)
E10............................................ 251 (110-700)
E11............................................ 604 (400-2,525)
E12............................................ 436 (130-1,025)
E16............................................ 1,844 (925-3,025)
E17............................................ 3,649 (1,000-14,025)
------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum
and maximum distances due to varying propagation environments in
parentheses. Modeled ranges based on peak pressure for a single
explosion generally exceed the modeled ranges based on impulse
(related to animal mass and depth).
Ranges to mortality, based on animal mass, are show in Table 34
below.
Table 34--Ranges \1\ to 50 Percent Mortality Risk for All Marine Mammal Hearing Groups as a Function of Animal Mass
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range to effects for air guns \1\ for 10 pulses (m)
---------------------------------------------------------------------------------------------------------------------------------------------------------
Hearing group PTS (SEL) PTS (Peak SPL) TTS (SEL) TTS (Peak SPL) Behavioral \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
High-Frequency Cetacean........................ 0 (0-0) 15 (15-15) 0 (0-0) 25 (25-25) 700 (250-1,025)
Low-Frequency Cetacean......................... 13 (12-13) 2 (2-2) 72 (70-80) 4 (4-4) 685 (170-1,025)
Mid-Frequency Cetacean......................... 0 (0-0) 0 (0-0) 0 (0-0) 0 (0-0) 680 (160-2,275)
Phocids........................................ 0 (0-0) 2 (2-2) 3 (3-3) 4 (4-4) 708 (220-1,025)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Average distance (m) to PTS, TTS, and behavioral thresholds are depicted above the minimum and maximum distances which are in parentheses. PTS and
TTS values depict the range produced by SEL and Peak SPL (as noted) hearing threshold criteria levels.
\2\ Behavioral values depict the ranges produced by RMS hearing threshold criteria levels.
Air Guns
Table 35 and Table 36 present the approximate ranges in meters to
PTS, TTS, and likely behavioral reactions that rise to the level of
take for air guns for 10 and 100 pulses, respectively. Ranges are
specific to the AFTT Study Area and also to each marine mammal hearing
group, dependent upon their criteria and the specific locations where
animals from the hearing groups and the airgun activities could
overlap. Small air guns (12-60 in3) would be fired pierside at the
Naval Undersea Warfare Center Division, Newport Testing Range, and at
off-shore locations typically in the Northeast, Virginia Capes, and
GOMEX Range Complexes. Single, small air guns lack the peak pressures
that could cause non-auditory injury (see Finneran et al., (2015));
therefore, potential impacts could include PTS, TTS, and/or Level B
behavioral harassment.
Table 35--Range to Effects (Meters) From Air Guns for 10 Pulses
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range to effects for air guns \1\ for 10 pulses (m)
---------------------------------------------------------------------------------------------------------------------------------------------------------
Hearing group PTS (SEL) PTS (Peak SPL) TTS (SEL) TTS (Peak SPL) Behavioral \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
High-Frequency Cetacean............................................ 0 (0-0) 15 (15-15) 0 (0-0) 25 (25-25) 700 (250-1,025)
Low-Frequency Cetacean............................................. 13 (12-13) 2 (2-2) 72 (70-80) 4 (4-4) 685 (170-1,025)
[[Page 57168]]
Mid-Frequency Cetacean............................................. 0 (0-0) 0 (0-0) 0 (0-0) 0 (0-0) 680 (160-2,275)
Phocids............................................................ 0 (0-0) 2 (2-2) 3 (3-3) 4 (4-4) 708 (220-1,025)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Average distance (m) to PTS, TTS, and behavioral thresholds are depicted above the minimum and maximum distances which are in parentheses. PTS and
TTS values depict the range produced by SEL and Peak SPL (as noted) hearing threshold criteria levels.
\2\ Behavioral values depict the ranges produced by RMS hearing threshold criteria levels.
Table 36--Range to Effects From Air Guns for 100 Pulses
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range to effects for air guns \1\ for 100 pulses (m)
---------------------------------------------------------------------------------------------------------------------------------------------------------
Hearing group PTS (SEL) PTS (Peak SPL) TTS (SEL) TTS (Peak SPL) Behavioral \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
High-Frequency Cetacean............................................ 4 (4-4) 40 (40-40) 48 (45-50) 66 (65-70) 2,546 (1,025-5,525)
Low-Frequency Cetacean............................................. 122 (120-130) 3 (3-3) 871 (600- 13 (12-13) 2,546 (1,025-5,525)
1,275)
Mid-Frequency Cetacean............................................. 0 (0-0) 0 (0-0) 0 (0-0) 0 (0-0) 2,546 (1,025-5,525)
Phocids............................................................ 3 (2-3) 3 (3-3) 25 (25-25) 14 (14-15) 2,546 (1,025-5,525)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Average distance (m) to PTS, TTS, and behavioral thresholds are depicted above the minimum and maximum distances which are in parentheses. PTS and
TTS values depict the range produced by SEL and Peak SPL (as noted) hearing threshold criteria levels.
\2\ Behavioral values depict the ranges produced by RMS hearing threshold criteria levels.
Pile Driving
Table 37 and Table 38 present the approximate ranges in meters to
PTS, TTS, and likely behavioral responses that rise to the level of
take for impact pile driving and vibratory pile removal, respectively.
Non-auditory injury is not predicted for pile driving activities.
Table 37--Average Ranges to Effects (Meters) From Impact Pile Driving
----------------------------------------------------------------------------------------------------------------
Hearing group PTS (m) TTS (m) Behavioral (m)
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......................................... 65 529 870
Mid-frequency Cetaceans......................................... 2 16 870
High-frequency Cetaceans........................................ 65 529 870
Phocids......................................................... 19 151 870
----------------------------------------------------------------------------------------------------------------
Notes: PTS: Permanent threshold shift; TTS: Temporary threshold shift.
Table 38--Average Ranges to Effects (Meters) From Vibratory Pile Extraction
----------------------------------------------------------------------------------------------------------------
Hearing group PTS (m) TTS (m) Behavioral (m)
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans......................................... 0 3 376
Mid-frequency Cetaceans......................................... 0 4 376
High-frequency Cetaceans........................................ 7 116 376
Phocids......................................................... 0 2 376
----------------------------------------------------------------------------------------------------------------
Notes: PTS: Permanent threshold shift; TTS: Temporary threshold shift.
Marine Mammal Density
A quantitative analysis of impacts on a species or stock requires
data on their abundance and distribution that may be affected by
anthropogenic activities in the potentially impacted area. The most
appropriate metric for this type of analysis is density, which is the
number of animals present per unit area. Marine species density
estimation requires a significant amount of effort to both collect and
analyze data to produce a reasonable estimate. Unlike surveys for
terrestrial wildlife, many marine species spend much of their time
submerged, and are not easily observed. In order to collect enough
sighting data to make reasonable density estimates, multiple
observations are required, often in areas that are not easily
accessible (e.g., far offshore). Ideally, marine mammal species
sighting data would be collected for the specific area and time period
(e.g., season) of interest and density estimates derived accordingly.
However, in many places, poor weather conditions and high sea states
prohibit the completion of comprehensive visual surveys.
For most cetacean species, abundance is estimated using line-
transect surveys or mark-recapture studies (e.g., Barlow, 2010, Barlow
and Forney, 2007, Calambokidis et al., 2008). The result provides one
single density estimate value for each species across broad geographic
areas. This is the general approach applied in estimating cetacean
abundance in the NMFS' SARs. Although the single value provides a good
average estimate of abundance (total number of individuals) for a
specified area, it does not provide information on the species
distribution or concentrations within that area, and it does not
estimate density for other timeframes or seasons that were not
[[Page 57169]]
surveyed. More recently, habitat modeling has been used to estimate
cetacean densities (Barlow et al., 2009; Becker et al., 2010, 2012a, b,
c, 2014, 2016; Ferguson et al., 2006a; Forney et al., 2012, 2015;
Redfern et al., 2006). These models estimate cetacean density as a
continuous function of habitat variables (e.g., sea surface
temperature, seafloor depth, etc.) and thus allow predictions of
cetacean densities on finer spatial scales than traditional line-
transect or mark recapture analyses and for areas that have not been
surveyed. Within the geographic area that was modeled, densities can be
predicted wherever these habitat variables can be measured or
estimated.
To characterize the marine species density for large areas such as
the AFTT Study Area, the Navy compiled data from several sources. The
Navy developed a protocol to select the best available data sources
based on species, area, and time (season). The resulting Geographic
Information System database called the Navy Marine Species Density
Database includes seasonal density values for every marine mammal
species present within the AFTT Study Area. This database is described
in the technical report titled U.S. Navy Marine Species Density
Database Phase III for the Atlantic Fleet Training and Testing Area
(U.S. Department of the Navy, 2017), hereafter referred to as the
density technical report.
A variety of density data and density models are needed in order to
develop a density database that encompasses the entirety of the AFTT
Study Area. Because this data is collected using different methods with
varying amounts of accuracy and uncertainty, the Navy has developed a
model hierarchy to ensure the most accurate data is used when
available. The density technical report describes these models in
detail and provides detailed explanations of the models applied to each
species density estimate. The below list describes possible models in
order of preference.
1. Spatial density models (see Roberts et al. (2016)) are preferred
and used when available because they provide an estimate with the least
amount of uncertainty by deriving estimates for divided segments of the
sampling area. These models (see Becker et al., 2016; Forney et al.,
2015) predict spatial variability of animal presence based on habitat
variables (e.g., sea surface temperature, seafloor depth, etc.). This
model is developed for areas, species, and, when available, specific
timeframes (months or seasons) with sufficient survey data; therefore,
this model cannot be used for species with low numbers of sightings. In
the AFTT Study Area, this model is available for certain species along
the East Coast to the offshore extent of available survey data and in
the GOMEX.
2. Design-based density models predict animal density based on
survey data. Like spatial density models, they are applied to areas
with survey data. Design-based density models may be stratified, in
which a density is predicted for each sub-region of a survey area,
allowing for better prediction of species distribution across the
density model area. In the AFTT Study Area, stratified density models
are used for certain species on both the East Coast and the GOMEX. In
addition, a few species' stratified density models are applied to areas
east of regions with available survey data and cover a substantial
portion of the Atlantic Ocean portion of the AFTT Study Area.
3. Extrapolative models are used in areas where there is
insufficient or no survey data. These models use a limited set of
environmental variables to predict possible species densities based on
environmental observations during actual marine mammal surveys (see
Mannocci et al. (2017)). In the AFTT Study Area, extrapolative models
are typically used east of regions with available survey data and cover
a substantial portion of the Atlantic Ocean of the AFTT Study Area.
Because some unsurveyed areas have oceanographic conditions that are
very different from surveyed areas (e.g., the Labrador Sea and North
Atlantic gyre) and some species models rely on a very limited data set,
the predictions of some species' extrapolative density models and some
regions of certain species' extrapolative density models are considered
highly speculative. Extrapolative models are not used in the GOMEX.
4. Existing Relative Environmental Suitability models include a
high degree of uncertainty, but are applied when no other model is
available.
When interpreting the results of the quantitative analysis, as
described in the density technical report (U.S. Department of the Navy,
2017), ``it is important to consider that even the best estimate of
marine species density is really a model representation of the values
of concentration where these animals might occur. Each model is limited
to the variables and assumptions considered by the original data source
provider. No mathematical model representation of any biological
population is perfect and with regards to marine species biodiversity,
any single model method will not completely explain the actual
distribution and abundance of marine mammal species. It is expected
that there would be anomalies in the results that need to be evaluated,
with independent information for each case, to support if we might
accept or reject a model or portions of the model.''
The Navy's estimate of abundance (based on the density estimates
used) in the AFTT Study Area may differ from population abundances
estimated in the NMFS' SARs in some cases for a variety of reasons.
Models may predict different population abundances for many reasons.
The models may be based on different data sets or different temporal
predictions may be made. The SARs are often based on single years of
NMFS surveys, whereas the models used by the Navy generally include
multiple years of survey data from NMFS, the Navy, and other sources.
To present a single, best estimate, the SARs often use a single season
survey where they have the best spatial coverage (generally summer).
Navy models often use predictions for multiple seasons, where
appropriate for the species, even when survey coverage in non-summer
seasons is limited, to characterize impacts over multiple seasons as
Navy activities may occur in any season. Predictions may be made for
different spatial extents. Many different, but equally valid, habitat
and density modeling techniques exist and these can also be the cause
of differences in population predictions. Differences in population
estimates may be caused by a combination of these factors. Even similar
estimates should be interpreted with caution and differences in models
fully understood before drawing conclusions.
These factors and others described in the Density Technical Report
should be considered when examining the estimated impact numbers in
comparison to current population abundance information for any given
species or stock. For a detailed description of the density and
assumptions made for each species, see the Density Technical Report.
NMFS coordinated with the Navy in the development of its take
estimates and concurs that the Navy's approach for density
appropriately utilizes the best available science. Later, in the
Analysis and Negligible Impact Determination section, we assess how the
estimated take numbers compare to stock abundance in order to better
understand the potential number of individuals impacted--and the
rationale for which abundance estimate is used is included there.
[[Page 57170]]
Take Requests
The AFTT FEIS/OEIS considered all training and testing activities
proposed to occur in the AFTT Study Area that have the potential to
result in the MMPA defined take of marine mammals. The Navy determined
that the three stressors below could result in the incidental taking of
marine mammals. NMFS has reviewed the Navy's data and analysis and
determined that it is complete and accurate and agrees that the
following stressors have the potential to result in takes of marine
mammals from the Navy's planned activities.
[ssquf] Acoustics (sonar and other transducers; air guns; pile
driving/extraction).
[ssquf] Explosives (explosive shock wave and sound).
[ssquf] Physical Disturbance and Strike (vessel strike).
NMFS reviewed and agrees with the Navy's conclusion that acoustic
and explosive sources have the potential to result in incidental takes
of marine mammals by harassment, serious injury, or mortality. NMFS
carefully reviewed the Navy's analysis and conducted its own analysis
of vessel strikes, determining that the likelihood of any particular
species of large whale being struck is quite low. Nonetheless, NMFS
agrees that vessel strikes have the potential to result in incidental
take from serious injury or mortality for certain species of large
whales and the Navy has specifically requested coverage for these
species. Therefore, the likelihood of vessel strikes, and later the
effects of the incidental take that is being authorized, has been fully
analyzed and is described below.
The quantitative analysis process used for the AFTT FEIS/OEIS and
the Navy's take request in the rulemaking/LOA application to estimate
potential exposures to marine mammals resulting from acoustic and
explosive stressors is detailed in the technical report titled
Quantitative Analysis for Estimating Acoustic and Explosive Impacts to
Marine Mammals and Sea Turtles (U.S. Department of the Navy, 2017a).
The Navy Acoustic Effects Model estimates acoustic and explosive
effects without taking mitigation into account; therefore, the model
overestimates predicted impacts on marine mammals within mitigation
zones. To account for mitigation for marine species in the take
estimates, the Navy conducts a quantitative assessment of mitigation.
The Navy conservatively quantifies the manner in which procedural
mitigation is expected to reduce model-estimated PTS to TTS for
exposures to sonar and other transducers, and reduce model-estimated
mortality to injury for exposures to explosives. The extent to which
the mitigation areas reduce impacts on the affected species and stocks
is addressed separately in the Analysis and Negligible Impact
Determination section.
The Navy assessed the effectiveness of its procedural mitigation
measures on a per-scenario basis for four factors: (1) Species
sightability, (2) a Lookout's ability to observe the range to PTS (for
sonar and other transducers) and range to mortality (for explosives),
(3) the portion of time when mitigation could potentially be conducted
during periods of reduced daytime visibility (to include inclement
weather and high sea-state) and the portion of time when mitigation
could potentially be conducted at night, and (4) the ability for sound
sources to be positively controlled (e.g., powered down).
During the conduct of training and testing activities, there is
typically at least one, if not numerous, support personnel involved in
the activity (e.g., range support personnel aboard a torpedo retrieval
boat or support aircraft). In addition to the Lookout posted for the
purpose of mitigation, these additional personnel observe for and
disseminate marine species sighting information amongst the units
participating in the activity whenever possible as they conduct their
primary mission responsibilities. However, as a conservative approach
to assigning mitigation effectiveness factors, the Navy elected to only
account for the minimum number of required Lookouts used for each
activity; therefore, the mitigation effectiveness factors may
underestimate the likelihood that some marine mammals may be detected
during activities that are supported by additional personnel who may
also be observing the mitigation zone.
The Navy used the equations in the below sections to calculate the
reduction in model-estimated mortality impacts due to implementing
procedural mitigation.
Equation 1:
Mitigation Effectiveness = Species Sightability x Visibility x
Observation Area x Positive Control
Species Sightability is the ability to detect marine mammals and is
dependent on the animal's presence at the surface and the
characteristics of the animal that influence its sightability. The Navy
considered applicable data from the best available science to
numerically approximate the sightability of marine mammals and
determined that the standard ``detection probability'' referred to as
g(0) is most appropriate. Visibility = 1-sum of individual visibility
reduction factors. Observation Area = portion of impact range that can
be continuously observed during an event. Positive Control = positive
control factor of all sound sources involving mitigation. For further
details on these mitigation effectiveness factors please refer to the
technical report titled Quantifying Acoustic Impacts on Marine Mammals
and Sea Turtles: Methods and Analytical Approach for Phase III Training
and Testing report (U.S. Department of the Navy, 2018).
To quantify the number of marine mammals predicted to be sighted by
Lookouts during implementation of procedural mitigation in the range to
injury (PTS) for sonar and other transducers, the species sightability
is multiplied by the mitigation effectiveness scores and number of
model-estimated PTS impacts, as shown in the equation below:
Equation 2:
Number of Animals Sighted by Lookouts = Mitigation Effectiveness x
Model-Estimated Impacts
The marine mammals sighted by Lookouts during implementation of
mitigation in the range to PTS, as calculated by the equation above,
would avoid being exposed to these higher level impacts. The Navy
corrects the category of predicted impact for the number of animals
sighted within the mitigation zone (e.g., shifts PTS to TTS), but does
not modify the total number of animals predicted to experience impacts
from the scenario.
To quantify the number of marine mammals predicted to be sighted by
Lookouts during implementation of procedural mitigation in the range to
mortality during events using explosives, the species sightability is
multiplied by the mitigation effectiveness scores and number of model-
estimated mortality impacts, as shown in equation 1 above. The marine
mammals predicted to be sighted by Lookouts during implementation of
procedural mitigation in the range to mortality, as calculated by the
above equation 2, are predicted to avoid exposure in these ranges. The
Navy corrects the category of predicted impact for the number of
animals sighted within the mitigation zone, but does not modify the
total number of animals predicted to experience impacts from the
scenario. For example, the number of animals sighted (i.e., number of
animals that will avoid mortality) is first subtracted from the model-
predicted mortality impacts, and then
[[Page 57171]]
added to the model-predicted injurious impacts.
The Navy coordinated with NMFS in the development of this
quantitative method to address the effects of procedural mitigation on
acoustic and explosive exposures and takes, and NMFS independently
reviewed and concurs with the Navy that it is appropriate to
incorporate the quantitative assessment of mitigation into the take
estimates based on the best available science. For additional
information on the quantitative analysis process and mitigation
measures, refer to Chapter 6 (Take Estimates for Marine Mammals) and
Chapter 11 (Mitigation Measures) of the Navy's rulemaking/LOA
application.
In summary, we believe the Navy's methods, including the method for
incorporating mitigation and avoidance, are the most appropriate
methods for predicting PTS and TTS. But even with the consideration of
mitigation and avoidance, given some of the more conservative
components of the methodology (e.g., the thresholds do not consider ear
recovery between pulses), we would describe the application of these
methods as identifying the maximum number of instances in which marine
mammals would be reasonably expected to incur either TTS or PTS.
Authorized Take From Training Activities
For training activities, Table 39 summarizes the Navy's take
request and the maximum amount and type of take by harassment that NMFS
concurs is reasonably likely to occur by species or stock. Authorized
mortality is addressed further down. Navy Figures 6.4-10 through 6.5-69
in Chapter 6 of the Navy's rulemaking/LOA application illustrate the
comparative amounts of TTS and Level B behavioral harassment for each
species, noting that if a ``taken'' animat was exposed to both TTS and
Level B behavioral harassment in the model, it was recorded as a TTS.
Table 39--Species and Stock-Specific Take From All Training Activities
----------------------------------------------------------------------------------------------------------------
Annual 5-Year total
---------------------------------------------------------------
Species Stock Level B Level A Level B Level A
harassment harassment harassment harassment
----------------------------------------------------------------------------------------------------------------
Suborder Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenidae (right whales)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.. Western......... 245 0 1,177 0
----------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (roquals)
----------------------------------------------------------------------------------------------------------------
Blue whale *.................. Western North 26 0 121 0
Atlantic (Gulf
of St.
Lawrence).
Bryde's whale................. Northern Gulf of 0 0 0 0
Mexico. 206 0 961 0
NSD [dagger]....
Minke whale................... Canadian East 2,425 0 11,262 0
Coast.
Fin whale *................... Western North 1,498 3 7,296 14
Atlantic.
Humpback whale................ Gulf of Maine... 233 1 1,116 3
Sei whale *................... Nova Scotia..... 292 0 1,400 0
----------------------------------------------------------------------------------------------------------------
Suborder Odontoceti (toothed whales)
----------------------------------------------------------------------------------------------------------------
Family Physeteridae (sperm whale)
----------------------------------------------------------------------------------------------------------------
Sperm whale *................. Gulf of Mexico 24 0 119 0
Oceanic. 14,084 0 68,839 0
North Atlantic..
----------------------------------------------------------------------------------------------------------------
Family Kogiidae (sperm whales)
----------------------------------------------------------------------------------------------------------------
Dwarf sperm whale............. Gulf of Mexico 14 0 74 0
Oceanic. 8,527 10 39,913 48
Western North
Atlantic.
Pygmy sperm whale............. Northern Gulf of 14 0 74 0
Mexico. 8,527 10 39,913 48
Western North
Atlantic.
----------------------------------------------------------------------------------------------------------------
Family Ziphiidae (beaked whales)
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale..... Northern Gulf of 35 0 173 0
Mexico. 12,533 0 61,113 0
Western North
Atlantic.
Cuvier's beaked whale......... Northern Gulf of 34 0 172 0
Mexico. 46,402 0 226,286 0
Western North
Atlantic.
Gervais' beaked whale......... Northern Gulf of 35 0 173 0
Mexico. 12,533 0 61,113 0
Western North
Atlantic.
Northern bottlenose whale..... Western North 1,073 0 5,360 0
Atlantic.
Sowersby's beaked whale....... Western North 12,533 0 61,113 0
Atlantic.
True's beaked whale........... Western North 12,533 0 61,113 0
Atlantic.
----------------------------------------------------------------------------------------------------------------
Family Delphinidae (dolphins)
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin...... Northern Gulf of 951 0 4,706 0
Mexico. 117,994 9 573,622 46
Western North
Atlantic.
Atlantic white-sided dolphin.. Western North 14,502 0 71,097 0
Atlantic.
Bottlenose dolphin............ Choctawhatchee 7 0 33 0
Bay.
Gulf of Mexico 42 0 125 0
Eastern Coastal.
[[Page 57172]]
Gulf of Mexico 219 0 1,089 0
Northern
Coastal.
Gulf of Mexico 4,149 0 12,568 0
Western Coastal.
Indian River 283 0 1,414 0
Lagoon
Estuarine
System.
Jacksonville 84 0 421 0
Estuarine
System.
Mississippi 0 0 0 0
Sound, Lake
Borgne, Bay
Boudreau.
Northern Gulf of 1,560 2 7,799 9
Mexico
Continental
Shelf.
Northern Gulf of 195 0 970 0
Mexico Oceanic.
Northern North 3,221 0 11,800 0
Carolina
Estuarine
System.
Southern North 0 0 0 0
Carolina
Estuarine
System.
Western North 906 0 4,324 0
Atlantic
Northern
Florida Coastal.
Western North 5,341 0 25,594 0
Atlantic
Central Florida
Coastal.
Western North 25,189 4 125,183 21
Atlantic
Northern
Migratory
Coastal.
Western North 308,206 39 1,473,308 192
Atlantic
Offshore.
Western North 4,328 0 20,559 0
Atlantic South
Carolina/
Georgia Coastal.
Western North 12,494 2 58,061 10
Atlantic
Southern
Migratory
Coastal.
Clymene dolphin............... Northern Gulf of 99 0 495 0
Mexico. 69,774 3 330,027 13
Western North
Atlantic.
False killer whale............ Northern Gulf of 41 0 208 0
Mexico. 8,271 0 39,051 0
Western North
Atlantic.
Fraser's dolphin.............. Northern Gulf of 59 0 298 0
Mexico. 3,929 0 18,634 0
Western North
Atlantic.
Killer whale.................. Northern Gulf of 1 0 4 0
Mexico. 77 0 372 0
Western North
Atlantic.
Long-finned pilot whale....... Western North 17,039 0 83,050 0
Atlantic.
Melon-headed whale............ Northern Gulf of 70 0 352 0
Mexico. 37,157 1 175,369 3
Western North
Atlantic.
Pantropical spotted dolphin... Northern Gulf of 566 0 2,828 0
Mexico. 145,125 2 686,775 12
Western North
Atlantic.
Pygmy killer whale............ Northern Gulf of 16 0 84 0
Mexico. 6,483 0 30,639 0
Western North
Atlantic.
Risso's dolphin............... Northern Gulf of 39 0 197 0
Mexico. 21,034 0 100,018 0
Western North
Atlantic.
Rough-toothed dolphin......... Northern Gulf of 97 0 436 0
Mexico. 19,568 0 92,314 0
Western North
Atlantic.
Short-beaked common dolphin... Western North 218,144 13 1,046,193 64
Atlantic.
Short-finned pilot whale...... Northern Gulf of 36 0 179 0
Mexico. 31,357 0 150,213 0
Western North
Atlantic.
Spinner dolphin............... Northern Gulf of 228 0 1,138 0
Mexico. 73,689 1 347,347 6
Western North
Atlantic.
Striped dolphin............... Northern Gulf of 67 0 336 0
Mexico. 91,038 3 451,001 15
Western North
Atlantic.
White-beaked dolphin.......... Western North 40 0 192 0
Atlantic.
----------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises)
----------------------------------------------------------------------------------------------------------------
Harbor porpoise............... Gulf of Maine/ 29,789 161 147,290 802
Bay of Fundy.
----------------------------------------------------------------------------------------------------------------
Suborder Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Phocidae (true seals)
----------------------------------------------------------------------------------------------------------------
Gray seal..................... Western North 1,444 0 7,173 0
Atlantic.
Harbor seal................... Western North 2,341 0 11,632 0
Atlantic.
Harp seal..................... Western North 8,444 1 42,191 4
Atlantic.
Hooded seal................... Western North 127 0 631 0
Atlantic.
----------------------------------------------------------------------------------------------------------------
* ESA-listed species (all stocks) within the AFTT Study Area.
[dagger] NSD: No stock designated.
[[Page 57173]]
Authorized Take From Testing Activities
For testing activities other than ship shock trials, Table 40
summarizes the Navy's take request and the maximum amount and type of
take by harassment that NMFS concurs is reasonably likely to occur and
has authorized by species or stock. Since the proposed rule, the Navy
has removed one of their testing events in the Northeast Range Complex
(Undersea Warfare Testing), which decreased the number of Level B
harassment takes annually for NARW by 115 takes. This change also
decreased annual Level B harassment takes by approximately 200 takes
for ESA-listed fin whale and 20 takes for sei whales as well as
approximately 10,000 takes annually for harbor porpoise.
Table 40--Species-Specific Take From All Testing Activities (Excluding Ship Shock Trials)
----------------------------------------------------------------------------------------------------------------
Annual 5-Year total
---------------------------------------------------------------
Species Stock Level B Level A Level B Level A
harassment harassment harassment harassment
----------------------------------------------------------------------------------------------------------------
Suborder Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenidae (right whales)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.. Western......... 224 0 1,091 0
----------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (roquals)
----------------------------------------------------------------------------------------------------------------
Blue whale *.................. Western North 20 0 95 0
Atlantic (Gulf
of St.
Lawrence).
Bryde's whale................. Northern Gulf of 52 0 257 0
Mexico.
NSD [dagger].... 125 0 614 0
Minke whale................... Canadian East 1,616 2 7,971 7
Coast.
Fin whale *................... Western North 3,655 3 17,716 16
Atlantic.
Humpback whale................ Gulf of Maine... 493 0 2,412 0
Sei whale *................... Nova Scotia..... 482 0 2,327 0
----------------------------------------------------------------------------------------------------------------
Suborder Odontoceti (toothed whales)
----------------------------------------------------------------------------------------------------------------
Family Physeteridae (sperm whale)
----------------------------------------------------------------------------------------------------------------
Sperm whale *................. Gulf of Mexico 1,106 0 5,240 0
Oceanic.
North Atlantic.. 11,278 0 51,657 0
----------------------------------------------------------------------------------------------------------------
Family Kogiidae (sperm whales)
----------------------------------------------------------------------------------------------------------------
Dwarf sperm whale............. Gulf of Mexico 727 6 3,424 27
Oceanic.
Western North 4,384 14 21,159 66
Atlantic.
Pygmy sperm whale............. Northern Gulf of 727 6 3,424 27
Mexico.
Western North 4,384 14 21,159 66
Atlantic.
----------------------------------------------------------------------------------------------------------------
Family Ziphiidae (beaked whales)
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale..... Northern Gulf of 1,392 0 6,710 0
Mexico.
Western North 10,565 0 49,647 0
Atlantic.
Cuvier's beaked whale......... Northern Gulf of 1,460 0 6,988 0
Mexico.
Western North 38,780 0 182,228 0
Atlantic.
Gervais' beaked whale......... Northern Gulf of 1,392 0 6,710 0
Mexico.
Western North 10,565 0 49,647 0
Atlantic.
Northern bottlenose whale..... Western North 971 0 4,485 0
Atlantic.
Sowersby's beaked whale....... Western North 10,593 0 49,764 0
Atlantic.
True's beaked whale........... Western North 10,593 0 49,764 0
Atlantic.
----------------------------------------------------------------------------------------------------------------
Family Delphinidae (dolphins)
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin...... Northern Gulf of 71,882 2 333,793 13
Mexico.
Western North 109,582 11 504,538 52
Atlantic.
Atlantic white-sided dolphin.. Western North 31,779 1 150,062 6
Atlantic.
Bottlenose dolphin............ Choctawhatchee 966 0 4,421 0
Bay.
Gulf of Mexico 0 0 0 0
Eastern Coastal.
Gulf of Mexico 16,258 1 76,439 5
Northern
Coastal.
Gulf of Mexico 3,677 0 18,035 0
Western Coastal.
Indian River 3 0 15 0
Lagoon
Estuarine
System.
Jacksonville 3 0 14 0
Estuarine
System.
Mississippi 1 0 4 0
Sound, Lake
Borgne, Bay
Boudreau.
Northern Gulf of 125,940 8 594,921 40
Mexico
Continental
Shelf.
Northern Gulf of 14,448 1 67,244 5
Mexico Oceanic.
Northern North 106 0 533 0
Carolina
Estuarine
System.
[[Page 57174]]
Southern North 0 0 0 0
Carolina
Estuarine
System.
Western North 329 0 1,614 0
Atlantic
Northern
Florida Coastal.
Western North 2,272 0 10,950 0
Atlantic
Central Florida
Coastal.
Western North 11,855 3 56,321 15
Atlantic
Northern
Migratory
Coastal.
Western North 119,880 23 566,572 116
Atlantic
Offshore.
Western North 1,632 0 8,017 0
Atlantic South
Carolina/
Georgia Coastal.
Western North 4,222 0 20,827 0
Atlantic
Southern
Migratory
Coastal.
Clymene dolphin............... Northern Gulf of 4,166 0 19,919 0
Mexico.
Western North 35,985 2 170,033 8
Atlantic.
False killer whale............ Northern Gulf of 1,931 0 9,118 0
Mexico.
Western North 3,766 0 17,716 0
Atlantic.
Fraser's dolphin.............. Northern Gulf of 1,120 0 5,314 0
Mexico.
Western North 1,293 0 6,070 0
Atlantic.
Killer whale.................. Northern Gulf of 32 0 152 0
Mexico.
Western North 42 0 188 0
Atlantic.
Long-finned pilot whale....... Western North 20,502 2 94,694 8
Atlantic.
Melon-headed whale............ Northern Gulf of 3,059 0 14,546 0
Mexico.
Western North 16,688 1 78,545 4
Atlantic.
Pantropical spotted dolphin... Northern Gulf of 25,929 1 121,469 4
Mexico.
Western North 77,451 4 355,889 19
Atlantic.
Pygmy killer whale............ Northern Gulf of 719 0 3,415 0
Mexico.
Western North 2,847 0 13,426 0
Atlantic.
Risso's dolphin............... Northern Gulf of 1,649 0 7,821 0
Mexico.
Western North 20,070 1 94,009 6
Atlantic.
Rough-toothed dolphin......... Northern Gulf of 3,927 0 18,493 0
Mexico.
Western North 8,765 0 41,492 0
Atlantic.
Short-beaked common dolphin... Western North 353,012 17 1,675,885 72
Atlantic.
Short-finned pilot whale...... Northern Gulf of 1,823 0 8,614 0
Mexico.
Western North 17,002 1 80,576 7
Atlantic.
Spinner dolphin............... Northern Gulf of 7,815 0 36,567 0
Mexico.
Western North 33,351 2 157,241 7
Atlantic.
Striped dolphin............... Northern Gulf of 2,447 0 11,703 0
Mexico.
Western North 102,047 5 465,392 23
Atlantic.
White-beaked dolphin.......... Western North 44 0 213 0
Atlantic.
----------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises)
----------------------------------------------------------------------------------------------------------------
Harbor porpoise............... Gulf of Maine/ 125,404 212 578,130 1,007
Bay of Fundy.
----------------------------------------------------------------------------------------------------------------
Suborder Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Phocidae (true seals)
----------------------------------------------------------------------------------------------------------------
Gray seal..................... Western North 894 2 4,376 11
Atlantic.
Harbor seal................... Western North 1,448 4 7,094 17
Atlantic.
Harp seal..................... Western North 7,850 2 38,273 12
Atlantic.
Hooded seal................... Western North 787 0 3,805 0
Atlantic.
----------------------------------------------------------------------------------------------------------------
* ESA-listed species (all stocks) within the AFTT Study Area.
[dagger] NSD: No stock designated.
Authorized Take From Ship Shock
The Navy's model and quantitative analysis process used for the
AFTT FEIS/OEIS and in the Navy's rulemaking/LOA application to estimate
exposures of marine mammals to explosives (ship shock) is detailed in
the technical report titled Quantifying Acoustic Impacts on Marine
Mammals and Sea Turtles: Methods and Analytical Approach for Phase III
Training and Testing (U.S. Department of the Navy, 2017b). NMFS has
reviewed the Navy's data and analysis of explosive impacts and concurs
that the estimated take the Navy requested appropriately represents the
maximum take by harassment that is reasonably expected to occur, as
well as the potential for mortality. Table 41 summarizes the Navy's
take request and the maximum amount and type of take that is reasonably
expected to occur (harassment) or could potentially occur (serious
injury/mortality) by species for ship shock trials under testing
activities per small and large ship shock events and the summation over
a five-year period. The table below displays maximum ship shock impacts
to marine
[[Page 57175]]
mammals by species (in bold text), as well as maximum impacts on
individual stocks. The maximum is derived by selecting the highest
number of potential impacts across all locations and all seasons for
each species/stock. Small Ship Shock trials could take place any season
within the deep offshore water of the Virginia Capes Range Complex or
in the spring, summer, or fall within the Jacksonville Range Complex
and could occur up to three times over a five-year period. The Large
Ship Shock trial could take place in the Jacksonville Range Complex
during the spring, summer, or fall and during any season within the
deep offshore water of the Virginia Capes Range Complex or within the
GOMEX. The Large Ship Shock Trial could occur once over five years.
Navy's model and quantitative analysis process estimated serious
injury/mortality of four dolphin species from ship shock trials
including: Atlantic white-sided dolphin (Western North Atlantic),
Pantropical spotted dolphin (Northern GOMEX), short-beaked common
dolphin (Western North Atlantic), and Spinner dolphin (Northern GOMEX)
(Table 41 below). For serious injury/mortality takes over the five-year
period, based on the exposure estimates generated by the model and the
quantitative post-modeling mitigation and avoidance adjustments, an
annual average of 0.2 dolphins from each dolphin species/stock listed
above (i.e., for those species or stocks where 1 take could potentially
occur divided by 5 years to get the annual number of mortalities/
serious injuries) or 1.2 dolphins in the case of short-beaked common
dolphin (i.e., where 6 takes could potentially occur divided by 5 years
to get the annual number of mortalities/serious injuries) is used in
further analysis in the Analysis and Negligible Impact Determination
section.
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Take From Vessel Strikes
The marine mammals most vulnerable to vessel strikes are those that
spend extended periods of time at the surface in order to restore
oxygen levels within their tissues after deep dives (e.g., the sperm
whale). In addition, some baleen whales, such as the NARW, seem
generally unresponsive to vessel sound, making them more susceptible to
vessel collisions (Nowacek et al., 2004). These species are primarily
large, slower moving whales.
Some researchers have suggested the relative risk of a vessel
strike can be assessed as a function of animal density and the
magnitude of vessel traffic (e.g., Fonnesbeck et al. 2008; Vanderlaan
et al., 2008). Differences among vessel types also influence the
probability of a vessel strike. The ability of any ship to detect a
marine mammal and avoid a collision depends on a variety of factors,
including environmental conditions, ship design, size, speed, and
personnel, as well as the behavior of the animal. Vessel speed, size,
and mass are all important factors in determining if injury or death of
a marine mammal is likely due to a vessel strike. For large vessels,
speed and angle of approach can influence the severity of a strike. For
example, Vanderlaan and Taggart (2007) found that between vessel speeds
of 8.6 and 15 knots, the probability that a vessel strike is lethal
increases from 0.21 to 0.79. Large whales also do not have to be at the
water's surface to be struck. Silber et al. (2010) found when a whale
is below the surface (about one to two times the vessel draft), there
is likely to be a pronounced propeller suction effect. This suction
effect may draw the whale into the hull of the ship, increasing the
probability of propeller strikes.
There are some key differences between the operation of military
and non-military vessels, which make the likelihood of a military
vessel striking a whale lower than some other vessels (e.g., commercial
merchant vessels). Key differences include: Many military ships have
their bridges positioned closer to the bow, offering better visibility
ahead of the ship (compared to a commercial merchant vessel).
There are often aircraft associated with the training or
testing activity (which can serve as Lookouts), which can more readily
detect cetaceans in the vicinity of a vessel or ahead of a vessel's
present course before crew on the vessel would be able to detect them.
Military ships are generally more maneuverable than
commercial merchant vessels, and if cetaceans are spotted in the path
of the ship, could be capable of changing course more quickly.
The crew size on military vessels is generally larger than
merchant ships, allowing for stationing more trained Lookouts on the
bridge. At all times when vessels are underway, trained Lookouts and
bridge navigation teams are used to detect objects on the surface of
the water ahead of the ship, including cetaceans. Additional Lookouts,
beyond those already stationed on the bridge and on navigation teams,
are positioned as Lookouts during some training events.
When submerged, submarines are generally slow moving (to
avoid detection) and therefore marine mammals at depth with a submarine
are likely able to avoid collision with the submarine. When a submarine
is transiting on the surface, there are Lookouts serving the same
function as they do on surface ships.
Vessel strike to marine mammals is not associated with any specific
training or testing activity but is rather an extremely limited and
sporadic, but possible, accidental result of Navy vessel movement
within the AFTT Study Area or while in transit.
There have been three recorded Navy vessel strikes of large whales
in the AFTT Study Area from 2009 through 2017 (nine years), the period
in which Navy began implementing effective mitigation measures to
reduce the likelihood of vessel strikes. In order to
[[Page 57182]]
account for the accidental nature of vessel strikes to large whales in
general, and the potential risk from any vessel movement within the
AFTT Study Area within the five-year period, the Navy requested
incidental takes based on probabilities derived from a Poisson
distribution using ship strike data between 2009-2016 in the AFTT Study
Area (the time period from when current mitigations were instituted
until the Navy conducted the analysis for the EIS and application), and
no new strikes have occurred since), as well as historical at-sea days
in AFTT from 2009-2016 and estimated potential at-sea days for the
period from 2018 to 2023 covered by the requested regulations. This
distribution predicted the probabilities of a specific number of
strikes (n=0, 1, 2, etc.) over the period from 2018 to 2023. The
analysis is described in detail in Chapter 6 of the Navy's rulemaking/
LOA application (and further refined in the Navy's revised ship strike
analysis posted on NMFS' website https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
For the same reasons listed above describing why Navy vessel strike
is comparatively unlikely, it is highly unlikely that a Navy vessel
would strike a whale or dolphin without detecting it and, accordingly,
NMFS is confident that the Navy's reported strikes are accurate and
appropriate for use in the analysis. The Navy used those three whale
strikes in their calculations to determine the number of strikes likely
to result from their activities (although worldwide strike information,
from all Navy activities and other strikes, was used to inform the
species that may be struck) and evaluated data beginning in 2009 as
that was the start of the Navy's Marine Species Awareness Training and
adoption of additional mitigation measures to address ship strike,
which will remain in place along with additional mitigation measures
during the five years of this rule.
The probability analysis concluded that there was a 15 percent
chance that zero whales would be struck by Navy vessels over the next
five years, indicating an 85 percent chance that at least one whale
would be struck over the next five years and a 17 percent chance of
striking three whales over the five-year period. In addition, small
delphinids are neither expected nor authorized to be struck by Navy
vessels since: They have not been struck historically as a result of
Navy AFTT activities, their smaller size and maneuverability makes a
strike from a larger vessel much less likely as illustrated in
worldwide ship-strike records, and the majority of the Navy's faster-
moving activities are located in offshore areas where smaller delphinid
densities are less. Accordingly, NMFS anticipates and authorizes takes
by vessel strike of large whales only (i.e., no dolphins or smaller
whales) over the course of the five-year regulations from training and
testing activities as discussed below.
Based on the above analysis, the Navy estimated that it has the
potential to strike, and take by serious injury or mortality, up to
three large whales incidental to the specified activity over the course
of the five years of the AFTT regulations. Because of the number of
incidents in which the struck animal has remained unidentified to
species (although due to the Navy's particular measures to avoid NARW,
it is unlikely that any of the three vessel strikes were of NARW), it
is challenging to predict the number of the potential takes that will
be of any particular species. The Navy requested incidental take
authorization for up to two of any the following species in the five-
year period: Humpback whale (Gulf of Maine stock), fin whale (Western
North Atlantic stock), minke (Canadian East Coast stock), and sperm
whale (North Atlantic stock) and one of any of the following: Sei whale
(Nova Scotia stock), blue whale (Western North Atlantic stock), sperm
whale (GOMEX Oceanic stock). NMFS independently reviewed this analysis
and agrees that three ship strikes have at least the potential to occur
and therefore the request for mortal takes of three large whales over
the five-year period of the rule is reasonable based on the available
strike data (three strikes by Navy over nine years) and the Navy's
probability analysis. NMFS does not agree, however, that two mortal
takes of any one species is likely, or that strike of either blue
whales or the GOMEX stock of sperm whales is remotely likely.
In order to predict the likelihood of striking any particular
species, NMFS compiled information from the latest NMFS 2018 SARs on
detected annual rates of large whale serious injury and mortality from
vessel collisions (Table 42 below), which represent the best available
science. The annual rates of large whale serious injury and mortality
from vessel collisions indicate the relative susceptibility of large
whale species to vessel strike in the Atlantic Ocean and GOMEX. To
calculate the relative likelihood of striking each species, we summed
the annual rates of mortality and serious injury from vessel
collisions, then divided each species' annual rate by this number. To
estimate the percent likelihood of striking a particular species of
large whale, we multiplied the relative likelihood of striking each
species by the total probability of striking a whale (i.e., 85 percent,
as described by the Navy's probability analysis). To calculate the
percent likelihood of striking a particular species of large whale
twice, we squared the value estimated for the probability of striking a
particular species of whale (i.e., to calculate the probability of an
event occurring twice, multiply the probability of the first event by
the second). The analysis indicates that there is a very low percent
chance of striking any particular species or stock more than once
(i.e., less than 7 percent chance for all species) as shown in Table 42
below and, accordingly, in the proposed rule NMFS proposed that any of
the mysticete and sperm whale stocks might incur one serious injury or
mortality take by vessel strike over the five-year period of the rule,
except the NARW which would have zero mortality/serious injury takes
because of the enhanced mitigation and the Bryde's whale, which would
also have zero mortality/serious injury takes because of their low
numbers and lack of previous strikes
However, based on the quantitative method above, blue whales and
GOMEX sperm whales also have a zero percent chance of being struck.
Following additional discussion with the Navy (after the proposed rule
was published) about this quantitative analysis, the Navy's activities,
and other factors--and NMFS' independent review--NMFS and the Navy
agreed that vessel strike of these two stocks was highly unlikely.
Accordingly, the Navy revised their request for take by serious injury
or mortality to include up to one of any the following species in the
five-year period: Humpback whale (Gulf of Maine stock), fin whale
(Western North Atlantic stock), minke whale (Canadian East Coast
stock), sperm whale (North Atlantic stock), and sei whale (Nova Scotia
stock)--removing the request for GOMEX sperm whales and North Atlantic
blue whales. We note that the quantitative method outlined above
indicates only a very small likelihood that the Navy will strike a
North Atlantic sperm whale (< 3 percent), however, the Navy has struck
a sperm whale previously in the Atlantic, which points to a higher
likelihood that it could occur and that an authorized mortality is
appropriate. Additional discussion relevant to our determinations for
North Atlantic blue
[[Page 57183]]
whales, GOMEX sperm whale, NARW, and Bryde's whale is included below.
In addition to the zero probability predicted by the quantitative
model, there are no recent confirmed records of vessel collision
mortality or serious injury to blue whales in the U.S. Atlantic EEZ,
although there is one older historical record pointing to a ship strike
that likely occurred outside of the U.S. Atlantic EEZ (outside of where
most Navy activities occur, so less relevant) and one 1998 record of a
dead 20 m (66 ft) male blue whale brought into Rhode Island waters on
the bow of a tanker. The cause of death was determined to be ship
strike; however, some of the injuries were difficult to explain from
the necropsy. As noted previously, the Navy has been conducting Marine
Species Awareness Training and implementing additional mitigation
measures to protect against strikes since 2009. Therefore, given the
absence of any strikes in the recent past since the Navy has
implemented its current mitigation measures, the very low abundance of
North Atlantic blue whales throughout the AFTT Study Area, and the very
low number of two blue whales ever known to be struck in the area by
any type of vessel (and not struck by Navy vessels), we believe the
likelihood of the Navy hitting a blue whale is discountable.
In addition to the zero probability of hitting a sperm whale in the
GOMEX predicted by the quantitative model, there have been no vessel
strikes of any large whales since 2009 per the SAR and no Navy strikes
of any large whales since 1995 (based on our records) in the GOMEX.
Further, the Navy has comparatively fewer steaming days in the GOMEX
and there is a fairly low abundance of sperm whales occurring there. As
noted previously, the Navy has been conducting Marine Species Awareness
Training and implementing additional mitigation measures to protect
against strikes since 2009. Therefore, NMFS believes that the
likelihood of the Navy hitting a GOMEX sperm whale is discountable.
Although the quantitative analysis predicts that NARWs do have a
low probability of being struck one time within the five-year period
when vessel strikes across all activity types (including non-Navy) are
considered (10.11 percent, lower than all other stocks except North
Atlantic sperm whales), when the enhanced mitigation measures
(discussed below) the Navy will implement for NARWs are considered in
combination with this low probability, the Navy and NMFS find that a
vessel strike is highly unlikely and therefore, lethal take of NARWs
was not requested and is not authorized. We further note that while
there have been three strikes of unidentified whales, it is unlikely
they were NARW, as one occurred in the Chesapeake Bay and observed
features suggested it was most probably a humpback whale, while the
other two occurred 75 and 45 nmi offshore from Cape Hatteras, beyond
where NARW are expected to occur. Regarding the Bryde's whale, due to
the fact that the Navy has not struck a Bryde's whale, the very low
abundance numbers, and the limited Navy ship traffic that overlaps with
Bryde's whale habitat, neither the Navy nor NMFS anticipate any vessel-
strike takes, and none were requested or proposed for authorization.
The Navy is now also limiting activities (i.e., 200 hr cap on hull-
mounted MFAS) and will not use explosives (except during mine warfare
activities) in the Bryde's Whale Mitigation Area.
Table 42--Annual Rates of Mortality and Serious Injury From Vessel Collisions Compiled From NMFS 2018 SARs and
Estimated Percent Chance of Striking Each Large Whale Species in the AFTT Study Area Over a Five-Year Period
----------------------------------------------------------------------------------------------------------------
Annual rate of
M/SI * from Percent chance Percent chance
Species vessel of ONE strike of TWO strike
collision
----------------------------------------------------------------------------------------------------------------
Fin whale--Western North Atlantic stock......................... 1.6 22.67 5.14
Sei whale--Nova Scotia stock.................................... 0.8 11.33 1.28
Minke whale--Canadian East Coast stock.......................... 1.4 19.83 3.93
Blue whale--Western North Atlantic stock........................ 0 0 0
Humpback whale--Gulf of Maine stock............................. 1.8 25.50 6.50
Sperm whale--North Atlantic stock............................... 0.2 2.83 0.08
Sperm whale--Gulf of Mexico stock............................... 0 0 0
----------------------------------------------------------------------------------------------------------------
In conclusion, although it is generally unlikely that any whales
will be struck in a year, based on the information and analysis above
(as well as the additional information regarding NARW mitigation
below), NMFS anticipates that no more than three whales could be taken
by serious injury or mortality over the five-year period of the rule,
and that those three whales may include no more than one of any of the
five following stocks (though no more than three total): Humpback whale
(Gulf of Maine stock), fin whale (Western North Atlantic stock), minke
(Canadian East Coast stock), sperm whale (North Atlantic stock), and
sei whale (Nova Scotia stock). Accordingly, NMFS has authorized the
serious injury or mortality of 0.2 whales annually from each of these
species or stocks (i.e., 1 take divided by 5 years to get the annual
number). Below we include additional information regarding the
mitigation measures that help avoid ship strike of NARW.
In addition to procedural mitigation, the Navy will implement
measures in mitigation areas used by NARW for foraging, calving, and
migration (see the Mitigation Measures section in this rule and a full
analysis in Chapter 5 (Mitigation) of the AFTT FEIS/OEIS). These
measures, which go above and beyond those focused on other species
(e.g., funding of and communication with sightings systems,
implementation of speed reductions during applicable circumstances in
certain areas) have helped the Navy avoid striking a NARW during
training and testing activities in the past; and essentially eliminate
the potential for strikes to occur during the five-year period of the
rule. In particular, the mitigation pertaining to vessels, including
the continued participation in and sponsoring of the Early Warning
System, will help Navy vessels avoid NARW during transits and training
and testing activities. The Early Warning System is a comprehensive
information exchange network dedicated to reducing the risk of vessel
strikes to NARW off the southeast United States from all mariners
(i.e., Navy and non-Navy vessels). Navy participants include the Fleet
Area
[[Page 57184]]
Control and Surveillance Facility, Jacksonville; Commander, Naval
Submarine Forces, Norfolk, Virginia; and Naval Submarine Support
Command. The Navy, U.S. Coast Guard, U.S. Army Corps of Engineers, and
NMFS collaboratively sponsor daily aerial surveys from December 1
through March 31 (weather permitting) to observe for NARW from the
shoreline out to approximately 30-35 nmi offshore. Aerial surveyors
relay sightings information to all mariners transiting within the NARW
calving habitat (e.g., commercial vessels, recreational boaters, and
Navy ships).
In the NE NARW Mitigation Area, before all vessel transits, the
Navy conducts a web query or email inquiry of NOAA's NARW Sighting
Advisory System to obtain the latest NARW sightings information. Navy
vessels will use the obtained sightings information to reduce potential
interactions with NARW during transits and prevent ship strikes. In
this mitigation area, vessels will implement speed reductions after
they observe a NARW; if they are within 5 nmi of the location of a
sighting reported to the NARW Sighting Advisory System within the past
week; and when operating at night or during periods of reduced
visibility. During transits and normal firing involving non-explosive
torpedos activities, the Navy ships will maintain a speed of no more
than 10 kn. During submarine target firing, ships will maintain speeds
of no more than 18 kn. During vessel target firing, vessel speeds may
exceed 18 kn for only brief periods of time (e.g., 10-15 min). In the
SE NARW Mitigation Area, before transiting or conducting training or
testing activities within the mitigation area, the Navy will initiate
communication with the Fleet Area Control and Surveillance Facility,
Jacksonville to obtain Early Warning System NARW whale sightings data.
The Fleet Area Control and Surveillance Facility, Jacksonville will
advise vessels of all reported whale sightings in the vicinity to help
vessels and aircraft reduce potential interactions with NARWs and
prevent ship strikes. Commander Submarine Force U.S. Atlantic Fleet
will coordinate any submarine activities that may require approval from
the Fleet Area Control and Surveillance Facility, Jacksonville. Vessels
will use the sightings information to reduce potential interactions
with NARW during transits and prevent ship strikes. Vessels will also
implement speed reductions after they observe a NARW, if they are
within 5 nmi of a sighting reported within the past 12 hrs, or when
operating in the mitigation area at night or during periods of poor
visibility. To the maximum extent practicable, vessels will minimize
north-south transits in the mitigation area. Finally, the Navy will
broadcast awareness notification messages with NARW Dynamic Management
Area information (e.g., location and dates) to applicable Navy vessels
operating in the vicinity of the Dynamic Management Area. The
information will alert assets to the possible presence of a NARW to
maintain safety of navigation and further reduce the potential for a
vessel strike. Navy platforms will use the information to assist their
visual observation of applicable mitigation zones during training and
testing activities and to aid in the implementation of procedural
mitigation, including but not limited to, mitigation for vessel
movement.
Implementation of these measures is expected to significantly
reduce the probability of striking this particular species during the
five-year period of the rule. Ship strikes are a fluke encounter for
which the probability will never be zero for any vessel. The
probability for any particular ship to strike a marine mammal is
primarily a product of the ability of the ship to detect a marine
mammal and the ability to effectively act to avoid it. Navy combat
ships are inherently among the best at both of these because compared
to large commercial vessels, they have trained Lookouts which have
received specialized MMO training, and the most maneuverable ships,
which means that they are more likely to sight a marine mammal and more
likely to be able to maneuver to avoid it in the available time--both
of which decrease the probability of striking a marine mammal below
what it would have been in the absence of those abilities. In the case
of the NARW, the extensive communication/detection network described
above, which is in use in the areas of highest NARW occurrence and
where they may be more susceptible to strike, further increases the
likelihood of detecting a NARW and thereby avoiding it, which further
reduces the probability of NARW strike. Further, detection of NARW in
some areas/times is associated with reduced speed requirements, which
in some cases may reduce the strike probability further by slightly
increasing the time within which an operator has to maneuver away from
a whale. Because of these additional mitigation measures combined with
the already low probability that a NARW will be struck, it is extremely
unlikely the Navy will strike a NARW and mortality/serious injury of a
NARW from vessel strike is neither anticipated nor authorized.
Mitigation Measures
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the
``permissible methods of taking pursuant to such activity, and other
means of effecting the least practicable adverse impact on such species
or stock and its habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance, and on the
availability of such species or stock for subsistence uses'' (``least
practicable adverse impact''). NMFS does not have a regulatory
definition for least practicable adverse impact. The NDAA for FY 2004
amended the MMPA as it relates to military readiness activities and the
incidental take authorization process such that a determination of
``least practicable adverse impact'' shall include consideration of
personnel safety, practicality of implementation, and impact on the
effectiveness of the ``military readiness activity.''
In Conservation Council for Hawaii v. National Marine Fisheries
Service, 97 F. Supp.3d 1210, 1229 (D. Haw. 2015), the Court stated that
NMFS ``appear[s] to think [it] satisf[ies] the statutory `least
practicable adverse impact' requirement with a `negligible impact'
finding.'' More recently, expressing similar concerns in a challenge to
a U.S. Navy Operations of Surveillance Towed Array Sensor System Low
Frequency Active Sonar (SURTASS LFA) incidental take rule (77 FR
50290), the Ninth Circuit Court of Appeals in Natural Resources Defense
Council (NRDC) v. Pritzker, 828 F.3d 1125, 1134 (9th Cir. 2016),
stated, ``[c]ompliance with the `negligible impact' requirement does
not mean there [is] compliance with the `least practicable adverse
impact' standard.'' As the Ninth Circuit noted in its opinion, however,
the Court was interpreting the statute without the benefit of NMFS'
formal interpretation. We state here explicitly that NMFS is in full
agreement that the ``negligible impact'' and ``least practicable
adverse impact'' requirements are distinct, even though both statutory
standards refer to species and stocks. With that in mind, we provide
further explanation of our interpretation of least practicable adverse
impact, and explain what distinguishes it from the negligible impact
standard. This discussion is consistent with, and expands upon,
previous rules we have issued (such as the Navy Gulf of Alaska rule (82
FR 19530; April 27, 2017)).
Before NMFS can issue incidental take regulations under section
[[Page 57185]]
101(a)(5)(A) of the MMPA, it must make a finding that the total taking
will have a ``negligible impact'' on the affected ``species or stocks''
of marine mammals. NMFS' and U.S. Fish and Wildlife Service's
implementing regulations for section 101(a)(5) both define ``negligible
impact'' 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'' (50 CFR 216.103 and 50 CFR 18.27(c)).
Recruitment (i.e., reproduction) and survival rates are used to
determine population growth rates \1\ and, therefore are considered in
evaluating population level impacts.
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\1\ A growth rate can be positive, negative, or flat.
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As we stated in the preamble to the final rule for the incidental
take implementing regulations, not every population-level impact
violates the negligible impact requirement. The negligible impact
standard does not require a finding that the anticipated take will have
``no effect'' on population numbers or growth rates: ``The statutory
standard does not require that the same recovery rate be maintained,
rather that no significant effect on annual rates of recruitment or
survival occurs. [T]he key factor is the significance of the level of
impact on rates of recruitment or survival.'' (54 FR 40338, 40341-42;
September 29, 1989).
While some level of impact on population numbers or growth rates of
a species or stock may occur and still satisfy the negligible impact
requirement--even without consideration of mitigation--the least
practicable adverse impact provision separately requires NMFS to
prescribe 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,'' 50 CFR
216.102(b), which are typically identified as mitigation measures.\2\
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\2\ For purposes of this discussion, we omit reference to the
language in the standard for least practicable adverse impact that
says we also must mitigate for subsistence impacts because they are
not at issue in this regulation.
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The negligible impact and least practicable adverse impact
standards in the MMPA both call for evaluation at the level of the
``species or stock.'' The MMPA does not define the term ``species.''
However, Merriam-Webster Dictionary defines ``species'' to include
``related organisms or populations potentially capable of
interbreeding.'' See www.merriam-webster.com/dictionary/species
(emphasis added). The MMPA defines ``stock'' as ``a group of marine
mammals of the same species or smaller taxa in a common spatial
arrangement that interbreed when mature.'' 16 U.S.C. 1362(11). The
definition of ``population'' is ``a group of interbreeding organisms
that represents the level of organization at which speciation begins.''
www.merriam-webster.com/dictionary/population. The definition of
``population'' is strikingly similar to the MMPA's definition of
``stock,'' with both involving groups of individuals that belong to the
same species and located in a manner that allows for interbreeding. In
fact, the term ``stock'' in the MMPA is interchangeable with the
statutory term ``population stock.'' 16 U.S.C. 1362(11). Both the
negligible impact standard and the least practicable adverse impact
standard call for evaluation at the level of the species or stock, and
the terms ``species'' and ``stock'' both relate to populations;
therefore, it is appropriate to view both the negligible impact
standard and the least practicable adverse impact standard as having a
population-level focus.
This interpretation is consistent with Congress's statutory
findings for enacting the MMPA, nearly all of which are most applicable
at the species or stock (i.e., population) level. See 16 U.S.C. 1361
(finding that it is species and population stocks that are or may be in
danger of extinction or depletion; that it is species and population
stocks that should not diminish beyond being significant functioning
elements of their ecosystems; and that it is species and population
stocks that should not be permitted to diminish below their optimum
sustainable population level). Annual rates of recruitment (i.e.,
reproduction) and survival are the key biological metrics used in the
evaluation of population-level impacts, and accordingly these same
metrics are also used in the evaluation of population level impacts for
the least practicable adverse impact standard.
Recognizing this common focus of the least practicable adverse
impact and negligible impact provisions on the ``species or stock''
does not mean we conflate the two standards; despite some common
statutory language, we recognize the two provisions are different and
have different functions. First, a negligible impact finding is
required before NMFS can issue an incidental take authorization.
Although it is acceptable to use the mitigation measures to reach a
negligible impact finding (see 50 CFR 216.104(c)), no amount of
mitigation can enable NMFS to issue an incidental take authorization
for an activity that still would not meet the negligible impact
standard. Moreover, even where NMFS can reach a negligible impact
finding--which we emphasize does allow for the possibility of some
``negligible'' population-level impact--the agency must still prescribe
measures that will affect the least practicable amount of adverse
impact upon the affected species or stock.
Section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction
with its authorization, binding--and enforceable--restrictions (in the
form of regulations) setting forth how the activity must be conducted,
thus ensuring the activity has the ``least practicable adverse impact''
on the affected species or stocks. In situations where mitigation is
specifically needed to reach a negligible impact determination, section
101(a)(5)(A)(i)(II) also provides a mechanism for ensuring compliance
with the ``negligible impact'' requirement. Finally, we reiterate that
the least practicable adverse impact standard also requires
consideration of measures for marine mammal habitat, with particular
attention to rookeries, mating grounds, and other areas of similar
significance, and for subsistence impacts, whereas the negligible
impact standard is concerned solely with conclusions about the impact
of an activity on annual rates of recruitment and survival.\3\
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\3\ Outside of the military readiness context, mitigation may
also be appropriate to ensure compliance with the ``small numbers''
language in MMPA sections 101(a)(5)(A) and (D).
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In NRDC v. Pritzker, the Court stated, ``[t]he statute is properly
read to mean that even if population levels are not threatened
significantly, still the agency must adopt mitigation measures aimed at
protecting marine mammals to the greatest extent practicable in light
of military readiness needs.'' Id. at 1134 (emphases added). This
statement is consistent with our understanding stated above that even
when the effects of an action satisfy the negligible impact standard
(i.e., in the Court's words, ``population levels are not threatened
significantly''), still the agency must prescribe mitigation under the
least practicable adverse impact standard. However, as the statute
indicates, the focus of both standards is ultimately the impact on the
affected ``species or stock,'' and not solely focused on or directed at
the impact on individual marine mammals.
We have carefully reviewed and considered the Ninth Circuit's
opinion in NRDC v. Pritzker in its entirety. While the Court's
reference to ``marine mammals'' rather than ``marine mammal species or
stocks'' in the italicized
[[Page 57186]]
language above might be construed as a holding that the least
practicable adverse impact standard applies at the individual ``marine
mammal'' level, i.e., that NMFS must require mitigation to minimize
impacts to each individual marine mammal unless impracticable, we
believe such an interpretation reflects an incomplete appreciation of
the Court's holding. In our view, the opinion as a whole turned on the
Court's determination that NMFS had not given separate and independent
meaning to the least practicable adverse impact standard apart from the
negligible impact standard, and further, that the Court's use of the
term ``marine mammals'' was not addressing the question of whether the
standard applies to individual animals as opposed to the species or
stock as a whole. We recognize that while consideration of mitigation
can play a role in a negligible impact determination, consideration of
mitigation measures extends beyond that analysis. In evaluating what
mitigation measures are appropriate, NMFS considers the potential
impacts of the Specified Activities, the availability of measures to
minimize those potential impacts, and the practicability of
implementing those measures, as we describe below.
Implementation of Least Practicable Adverse Impact Standard
Given the NRDC v. Pritzker decision, we discuss here how we
determine whether a measure or set of measures meets the ``least
practicable adverse impact'' standard. Our separate analysis of whether
the take anticipated to result from Navy's activities meets the
``negligible impact'' standard appears in the Analysis and Negligible
Impact Determination section below.
Our evaluation of potential mitigation measures includes
consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of
the potential measure(s) is expected to reduce adverse impacts to
marine mammal species or stocks, their habitat, and their availability
for subsistence uses (where relevant). This analysis considers such
things as the nature of the potential adverse impact (such as
likelihood, scope, and range), the likelihood that the measure will be
effective if implemented, and the likelihood of successful
implementation; and
(2) The practicability of the measures for applicant
implementation. Practicability of implementation may consider such
things as cost, impact on activities, and, in the case of a military
readiness activity, specifically considers personnel safety,
practicality of implementation, and impact on the effectiveness of the
military readiness activity. 16 U.S.C. 1371(a)(5)(A)(iii).
While the language of the least practicable adverse impact standard
calls for minimizing impacts to affected species or stocks, we
recognize that the reduction of impacts to those species or stocks
accrues through the application of mitigation measures that limit
impacts to individual animals. Accordingly, NMFS' analysis focuses on
measures that are designed to avoid or minimize impacts on individual
marine mammals that are likely to increase the probability or severity
of population-level effects.
While direct evidence of impacts to species or stocks from a
specified activity is rarely available, and additional study is still
needed to understand how specific disturbance events affect the fitness
of individuals of certain species, there have been improvements in
understanding the process by which disturbance effects are translated
to the population. With recent scientific advancements (both marine
mammal energetic research and the development of energetic frameworks),
the relative likelihood or degree of impacts on species or stocks may
often be inferred given a detailed understanding of the activity, the
environment, and the affected species or stocks. This same information
is used in the development of mitigation measures and helps us
understand how mitigation measures contribute to lessening effects (or
the risk thereof) to species or stocks. We also acknowledge that there
is always the potential that new information, or a new recommendation
that we had not previously considered, becomes available and
necessitates reevaluation of mitigation measures (which may be
addressed through adaptive management) to see if further reductions of
population impacts are possible and practicable.
In the evaluation of specific measures, the details of the
specified activity will necessarily inform each of the two primary
factors discussed above (expected reduction of impacts and
practicability), and are carefully considered to determine the types of
mitigation that are appropriate under the least practicable adverse
impact standard. Analysis of how a potential mitigation measure may
reduce adverse impacts on a marine mammal stock or species,
consideration of personnel safety, practicality of implementation, and
consideration of the impact on effectiveness of military readiness
activities are not issues that can be meaningfully evaluated through a
yes/no lens. The manner in which, and the degree to which,
implementation of a measure is expected to reduce impacts, as well as
its practicability in terms of these considerations, can vary widely.
For example, a time/area restriction could be of very high value for
decreasing population-level impacts (e.g., avoiding disturbance of
feeding females in an area of established biological importance) or it
could be of lower value (e.g., decreased disturbance in an area of high
productivity but of less firmly established biological importance).
Regarding practicability, a measure might involve restrictions in an
area or time that impede the Navy's ability to certify a strike group
(higher impact on mission effectiveness), or it could mean delaying a
small in-port training event by 30 minutes to avoid exposure of a
marine mammal to injurious levels of sound (lower impact). A
responsible evaluation of ``least practicable adverse impact'' will
consider the factors along these realistic scales. Accordingly, the
greater the likelihood that a measure will contribute to reducing the
probability or severity of adverse impacts to the species or stock or
their habitat, the greater the weight that measure is given when
considered in combination with practicability to determine the
appropriateness of the mitigation measure, and vice versa. In the
evaluation of specific measures, the details of the specified activity
will necessarily inform each of the two primary factors discussed above
(expected reduction of impacts and practicability), and will be
carefully considered to determine the types of mitigation that are
appropriate under the least practicable adverse impact standard. We
discuss consideration of these factors in greater detail below.
1. Reduction of adverse impacts to marine mammal species or stocks
and their habitat.\4\ The emphasis given to a measure's ability to
reduce the impacts on a species or stock considers the degree,
likelihood, and context of the anticipated reduction of impacts to
individuals (and how many individuals)
[[Page 57187]]
as well as the status of the species or stock.
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\4\ We recognize the least practicable adverse impact standard
requires consideration of measures that will address minimizing
impacts on the availability of the species or stocks for subsistence
uses where relevant. Because subsistence uses are not implicated for
this action, we do not discuss them. However, a similar framework
would apply for evaluating those measures, taking into account the
MMPA's directive that we make a finding of no unmitigable adverse
impact on the availability of the species or stocks for taking for
subsistence, and the relevant implementing regulations.
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The ultimate impact on any individual from a disturbance event
(which informs the likelihood of adverse species- or stock-level
effects) is dependent on the circumstances and associated contextual
factors, such as duration of exposure to stressors. Though any proposed
mitigation needs to be evaluated in the context of the specific
activity and the species or stocks affected, measures with the
following types of effects have greater value in reducing the
likelihood or severity of adverse species- or stock-level impacts:
Avoiding or minimizing injury or mortality; limiting interruption of
known feeding, breeding, mother/young, or resting behaviors; minimizing
the abandonment of important habitat (temporally and spatially);
minimizing the number of individuals subjected to these types of
disruptions; and limiting degradation of habitat. Mitigating these
types of effects is intended to reduce the likelihood that the activity
will result in energetic or other types of impacts that are more likely
to result in reduced reproductive success or survivorship. It is also
important to consider the degree of impacts that are expected in the
absence of mitigation in order to assess the added value of any
potential measures. Finally, because the least practicable adverse
impact standard gives NMFS discretion to weigh a variety of factors
when determining appropriate mitigation measures and because the focus
of the standard is on reducing impacts at the species or stock level,
the least practicable adverse impact standard does not compel
mitigation for every kind of take, or every individual taken, if that
mitigation is unlikely to meaningfully contribute to the reduction of
adverse impacts on the species or stock and its habitat, even when
practicable for implementation by the applicant.
The status of the species or stock is also relevant in evaluating
the appropriateness of potential mitigation measures in the context of
least practicable adverse impact. The following are examples of factors
that may (either alone, or in combination) result in greater emphasis
on the importance of a mitigation measure in reducing impacts on a
species or stock: The stock is known to be decreasing or status is
unknown, but believed to be declining; the known annual mortality (from
any source) is approaching or exceeding the PBR level (as defined in 16
U.S.C. 1362(20)); the affected species or stock is a small, resident
population; or the stock is involved in a UME or has other known
vulnerabilities, such as recovering from an oil spill.
Habitat mitigation, particularly as it relates to rookeries, mating
grounds, and areas of similar significance, is also relevant to
achieving the standard and can include measures such as reducing
impacts of the activity on known prey utilized in the activity area or
reducing impacts on physical habitat. As with species- or stock-related
mitigation, the emphasis given to a measure's ability to reduce impacts
on a species or stock's habitat considers the degree, likelihood, and
context of the anticipated reduction of impacts to habitat. Because
habitat value is informed by marine mammal presence and use, in some
cases there may be overlap in measures for the species or stock and for
use of habitat.
We consider available information indicating the likelihood of any
measure to accomplish its objective. If evidence shows that a measure
has not typically been effective nor successful, then either that
measure should be modified or the potential value of the measure to
reduce effects should be lowered.
2. Practicability. Factors considered may include cost, impact on
activities, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity (16 U.S.C.
1371(a)(5)(A)(iii)).
NMFS reviewed the Specified Activities and the mitigation measures
as described in the Navy's rulemaking/LOA application and the AFTT
FEIS/OEIS to determine if they would result in the least practicable
adverse effect on marine mammals. NMFS worked with the Navy in the
development of the Navy's initially proposed measures, which are
informed by years of implementation and monitoring. A complete
discussion of the evaluation process used to develop, assess, and
select mitigation measures, which was informed by input from NMFS, can
be found in Chapter 5 (Mitigation) of the AFTT FEIS/OEIS and is
summarized below in this section. The process described in Chapter 5
(Mitigation) of the AFTT FEIS/OEIS robustly supports NMFS' independent
evaluation of whether the mitigation measures required by this rule
meet the least practicable adverse impact standard. The Navy is
required to implement the mitigation measures identified in this rule
to avoid or reduce potential impacts from acoustic, explosive, and
physical disturbance and ship strike stressors.
In summary (and described in more detail below in this section),
the Navy has agreed to procedural mitigation measures that will reduce
the probability and/or severity of impacts expected to result from
acute exposure to acoustic sources or explosives, ship strike, and
impacts to marine mammal habitat. Specifically, the Navy will use a
combination of delayed starts, powerdowns, and shutdowns to minimize or
avoid serious injury or mortality, minimize the likelihood or severity
of PTS or other injury, and reduce instances of TTS or more severe
behavioral disruption caused by acoustic sources or explosives. The
Navy also will implement multiple time/area restrictions (several of
which have been added since the previous AFTT MMPA incidental take
rule) that would reduce take of marine mammals in areas or at times
where they are known to engage in important behaviors, such as feeding
or calving, where the disruption of those behaviors would have a higher
probability of resulting in impacts on reproduction or survival of
individuals that could lead to population-level impacts.
Since the proposed rule, NMFS and the Navy have agreed to
additional mitigation measures that are expected to reduce the
likelihood and/or severity of adverse impacts on marine mammal species/
stocks and their habitat and are practicable for implementation. Below
we summarize the added measures and describe the manner in which they
are expected to reduce the likelihood or severity of adverse impacts on
marine mammal species or stocks and their habitat. A full description
of each measure is included in the mitigation tables below.
1. Pre-event in-water explosive event observations--The Navy will
implement pre-event observation as part of all in-water explosive event
mitigations. Additionally, if there are other platforms participating
in these events (beyond the vessel or aircraft in which required
Lookout(s) are located) and in the vicinity of the detonation area,
they will also visually observe this area as part of the mitigation
team. This added monitoring for a subset of activities for which it was
not previously required (explosive bombs, missiles and rockets,
projectiles, torpedoes, grenades, and line charge testing) in advance
of explosive events increases the likelihood that marine mammals will
be detected if they are in the mitigation area and that, if any animals
are detected, explosions will be delayed by timely mitigation
implementation, thereby further reducing the already low likelihood
that animals will be injured or killed by the blast.
2. Post-event in-water explosive event observations--The Navy will
implement post-event observation as part of all in-
[[Page 57188]]
water explosive event mitigations. Additionally, if there are other
platforms participating in these events (beyond the vessel or aircraft
in which required Lookout(s) are located) and in the vicinity of the
detonation area, they will also visually observe this area as part of
the mitigation team. This added monitoring for a subset of activities
for which it was not previously required (explosive bombs, missiles and
rockets, projectiles, torpedoes, grenades, and line charge testing)
increases the likelihood that any injured marine mammals would be
detected following an explosive event, which would increase our
understanding of impacts and could potentially inform mitigation
changes via the adaptive management provisions.
3. NE NARW Mitigation Area--The Navy will expand the NE NARW
Mitigation Area to match the updated NE NARW ESA-designated critical
habitat. All of the mitigation required in the NE NARW Mitigation Area
and discussed in the proposed rule (see Table 63 in the proposed rule)
will apply to the expanded NE NARW Mitigation Area. The reduction of
activities in, and increase of protective measures in (discussed
elsewhere), areas with higher concentrations of NARWs engaged in
important feeding activities (such as they are in this area), is
expected to reduce the probability and/or severity of impacts on NARWs
that would be more likely to adversely affect the fitness of any
individual, which in turn reduces the likelihood that any impacts would
translate to adverse impacts on the stock.
4. NARW Dynamic Management Area notification--The Navy has agreed
to broadcast awareness notification messages with NARW Dynamic
Management Area information (e.g., location and dates) to applicable
Navy vessels operating in the vicinity of NARW Dynamic Management
Areas. The information will alert vessels to the possible presence of a
NARW to maintain safety of navigation and further reduce the potential
for a vessel strike. Any expanded mechanisms for detecting NARW, either
directly around a vessel or in the wider area to increase vigilance for
vessels, further reduce the probability that a whale will be struck.
5. Gulf of Maine Planning Awareness Mitigation Area--The Navy will
not conduct MTEs in this area. If the Navy identifies a National
Security requirement to conduct an MTE, Navy will confer with NMFS to
determine/verify that potential effects are addressed under the NEPA/
MMPA/ESA analyses. The Navy will implement a 200 hr/year hull-mounted
MFAS cap and include all sonar and explosives usage in the Gulf of
Maine Planning Awareness Mitigation Area in the annual training and
testing activity reports. Any limitation of activities in, and/or
increase of protective measures in, areas with higher concentrations of
NARW, fin whales, sei whales, humpback whales and minke whales engaged
in important feeding activities (such as this area), is expected to
reduce the probability and/or severity of impacts on NARW and other
mysticetes that would be more likely to adversely affect the fitness of
any individual, which in turn reduces the likelihood that any impacts
would translate to adverse impacts on the stock. Reduction of MTEs in
this area will also reduce the severity of impacts to the small
resident population of harbor porpoises (Gulf of Maine stock).
6. Bryde's Whale Mitigation Area--The Navy (1) has agreed to the
addition of a year-round, Bryde's Whale Mitigation Area, which will
cover the BIA as described in NMFS' 2016 Status Review and include the
area between 100 to 400 m isobaths between 87.5 degrees W to 27.5
degrees N; (2) has agreed to move the northern GOMEX ship shock trial
box west, out of the Bryde's whale BIA/Bryde's Whale Mitigation Area,
including a five nmi buffer; (3) will also implement a 200 hr/year
hull-mounted MFAS cap and restrict all explosives except for mine
warfare activities events in the Bryde's Whale Mitigation Area; and (4)
will report the total hours and counts of active sonar and in-water
explosives used in the mitigation area in its annual training and
testing activity reports submitted to NMFS. Any limitation of
activities in the Bryde's whale mitigation area is expected to reduce
the probability and/or severity of impacts on Bryde's whales that would
be more likely to adversely affect the fitness of any individual, which
in turn reduces the likelihood that any impacts would translate to
adverse impacts on the stock.
7. GOMEX Planning Awareness Mitigation Area--This area has been
expanded to cover the BIA as described in NMFS' 2016 Status Review and
include the area between 100 to 400 m isobaths between 87.5[deg] W to
27.5[deg] N. The Navy will not conduct MTEs in this area. If the Navy
identifies a National Security requirement to conduct an MTE, Navy will
confer with NMFS to determine/verify potential effects are addressed
under the NEPA/MMPA/ESA analyses. Any limitation of activities in the
area in which Bryde's whales are limited to is expected to reduce the
probability and/or severity of impacts on NARWs that would be more
likely to adversely affect the fitness of any individual, which in turn
reduces the likelihood that any impacts would translate to adverse
impacts on the stock.
8. Testing Event Removal--The Navy has removed one of their testing
activities in the Northeast Range Complex (four events--USWT), which
decreased the number of Level B harassment takes annually for NARW by
115 takes. This change also decreased annual Level B harassment takes
by approximately 200 takes for ESA-listed fin whale and 20 takes for
sei whales, as well as approximately 10,000 takes annually for harbor
porpoise.
9. Jacksonville Operating Area Mitigation Area (November 15 through
April 15)--The Navy will implement additional coordination and obtain
Early Warning System NARW sightings data to aid in the implementation
of procedural mitigation to minimize potential interactions with NARW
in the Jacksonville Operating Area. This additional coordination will
increase the likelihood that a NARW is detected and action taken to
avoid vessel strike, thus further reducing the probability of a NARW
strike.
10. SE NARW Critical Habitat Special Reporting Area (November 15
through April 15)--The Navy will report the total hours and counts of
active sonar and in-water explosives used in a SE NARW Critical Habitat
Special Reporting Area in its annual training and testing activity
reports submitted to NMFS.
11. Navy Cherry Point Range Complex Nearshore Mitigation Area
(March through September)--The Navy will minimize use of explosives in
the Navy Cherry Point Range Complex Nearshore Mitigation Area to the
extent practicable. This area overlaps with the NARW migratory BIA and
is expected to reduce impacts to NARW that may be present in March and
April.
12. Mid-Atlantic Planning Awareness Areas--The Navy has assessed
and agreed to move the ship shock trial box east of the including a 5
nmi buffer. The reduction of activities in, and increase of protective
measures in areas with higher concentrations of NARW (such as they are
in this area) is expected to reduce the probability and/or severity of
impacts on NARW that would be more likely to adversely affect the
fitness of any individual, which in turn reduces the likelihood that
any impacts would translate to adverse impacts on the stock.
The Navy assessed the measures it has agreed to in the context of
personnel safety, practicality of implementation,
[[Page 57189]]
and their impacts on the Navy's ability to meet their Title 10
requirements and found that the measures were supportable. As described
above, NMFS has independently evaluated all of the measures the Navy
has committed to (including those above added since the proposed rule
was published) in the manner described earlier in this section (i.e.,
in consideration of their ability to reduce adverse impacts on marine
mammal species and stocks and their habitat and their practicability
for implementation). We have determined that the additional measures
will further reduce impacts on the affected marine mammal species and
stocks and their habitat beyond the initial measures proposed and,
further, be practicable for Navy implementation.
The Navy also evaluated numerous measures in its AFTT FEIS/OEIS
that were not included in the Navy's rulemaking/LOA application for the
Specified Activities, and NMFS independently reviewed and concurs with
Navy's analysis that their inclusion was not appropriate under the
least practicable adverse impact standard based on our assessment. The
Navy considered these additional potential mitigation measures in two
groups. First, Chapter 5 (Mitigation) of the AFTT FEIS/OEIS, in the
Measures Considered but Eliminated section, includes an analysis of an
array of different types of mitigation that have been recommended over
the years by non-governmental organizations (NGOs) or the public,
through scoping or public comment on environmental compliance
documents. As described in Chapter 5 of the AFTT FEIS/OEIS, commenters
sometimes recommend that the Navy reduce their overall amount of
training, reduce explosive use, modify their sound sources, completely
replace live training with computer simulation, or include time of day
restrictions. All of these mitigation measures could potentially reduce
the number of marine mammals taken, via direct reduction of the
activities or amount of sound energy put in the water. However, as the
Navy has described in Chapter 5 Mitigation of the AFTT FEIS/OEIS, the
Navy needs to train and test in the conditions in which it fights--and
these types of modifications fundamentally change the activity in a
manner that would not support the purpose and need for the training and
testing (i.e., are entirely impracticable) and therefore are not
considered further. NMFS finds the Navy's explanation for why adoption
of these recommendations would unacceptably undermine the purpose of
the testing and training persuasive. After independent review, NMFS
finds the Navy's judgment on the impacts of potential mitigation
measures to personnel safety, practicality of implementation and the
undermining of the effectiveness of training and testing persuasive,
and for these reasons, NMFS finds that these measures do not meet the
least practicable adverse impact standard because they are not
practicable.
Second, in Chapter 5 Mitigation of the AFTT FEIS/OEIS, the Navy
evaluated additional potential procedural mitigation measures,
including increased mitigation zones, additional passive acoustic and
visual monitoring, and decreased vessel speeds. Some of these measures
have the potential to incrementally reduce take to some degree in
certain circumstances, though the degree to which this would occur is
typically low or uncertain. However, as described in the Navy's
analysis, the measures would have significant direct negative effects
on mission effectiveness and are considered impracticable (see Chapter
5 Mitigation of AFTT FEIS/OEIS). NMFS independently reviewed and
concurred with the Navy's evaluation and concurred with this
assessment, which supports NMFS' findings that the impracticability of
this additional mitigation would greatly outweigh any potential minor
reduction in marine mammal impacts that might result; therefore, these
additional mitigation measures are not required under the least
practicable adverse impact standard.
NMFS has independently reviewed the Navy's mitigation analysis
(Chapter 5 Mitigation of the AFTT FEIS/OEIS as referenced above), which
considers the same factors that NMFS would consider to satisfy the
least practical adverse impact standard, and concurs with the
conclusions. Therefore, NMFS is not proposing to include any additional
measures in these regulations, other than the new measures that were
agreed upon after the proposed rule. Below are the mitigation measures
that NMFS determined will ensure the least practicable adverse impact
on all affected species and stocks and their habitat, including the
specific considerations for military readiness activities. The
following sections summarize the mitigation measures that will be
implemented in association with the training and testing activities
analyzed in this document. The Navy's mitigation measures are organized
into two categories: procedural mitigation and mitigation areas.
Procedural Mitigation
Procedural mitigation is mitigation that the Navy will implement
whenever and wherever an applicable training or testing activity takes
place within the AFTT Study Area. The Navy customizes procedural
mitigation for each applicable activity category or stressor.
Procedural mitigation generally involves: (1) The use of one or more
trained Lookouts to diligently observe for specific biological
resources (including marine mammals) within a mitigation zone, (2)
requirements for Lookouts to immediately communicate sightings of
specific biological resources to the appropriate watch station for
information dissemination, and (3) requirements for the watch station
to implement mitigation (e.g., halt an activity) until certain
recommencement conditions have been met. The first procedural
mitigation (Table 43) is designed to aid Lookouts and other applicable
personnel with their observation, environmental compliance, and
reporting responsibilities. The remainder of the procedural mitigation
measures (Tables 44 through Tables 63) are organized by stressor type
and activity category and includes acoustic stressors (i.e., active
sonar, air guns, pile driving, weapons firing noise), explosive
stressors (i.e., sonobuoys, torpedoes, medium-caliber and large-caliber
projectiles, missiles and rockets, bombs, sinking exercises, mines,
anti-swimmer grenades, line charge testing and ship shock trials), and
physical disturbance and strike stressors (i.e., vessel movement, towed
in-water devices, small-, medium-, and large-caliber non-explosive
practice munitions, non-explosive missiles and rockets, non-explosive
bombs and mine shapes).
Table 43--Procedural Mitigation for Environmental Awareness and
Education
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
All training and testing activities, as applicable.
Mitigation Requirements:
[[Page 57190]]
Appropriate personnel (including civilian personnel)
involved in mitigation and training or testing activity reporting
under the Proposed Action must complete one or more modules of the
U.S. Navy Afloat Environmental Compliance Training Series, as
identified in their career path training plan. Modules include:
--Introduction to the U.S. Navy Afloat Environmental Compliance
Training Series. The introductory module provides information
on environmental laws (e.g., ESA, MMPA) and the corresponding
responsibilities that are relevant to Navy training and testing
activities. The material explains why environmental compliance
is important in supporting the Navy's commitment to
environmental stewardship.
--Marine Species Awareness Training. All bridge watch personnel,
Commanding Officers, Executive Officers, maritime patrol
aircraft aircrews, anti[hyphen]submarine warfare and mine
warfare rotary-wing aircrews, Lookouts, and equivalent civilian
personnel must successfully complete the Marine Species
Awareness Training prior to standing watch or serving as a
Lookout. The Marine Species Awareness Training provides
information on sighting cues, visual observation tools and
techniques, and sighting notification procedures. Navy
biologists developed Marine Species Awareness Training to
improve the effectiveness of visual observations for biological
resources, focusing on marine mammals and sea turtles, and
including floating vegetation, jellyfish aggregations, and
flocks of seabirds.
--U.S. Navy Protective Measures Assessment Protocol. This module
provides the necessary instruction for accessing mitigation
requirements during the event planning phase using the
Protective Measures Assessment Protocol software tool.
--U.S. Navy Sonar Positional Reporting System and Marine Mammal
Incident Reporting. This module provides instruction on the
procedures and activity reporting requirements for the Sonar
Positional Reporting System and marine mammal incident
reporting.
------------------------------------------------------------------------
Procedural Mitigation for Acoustic Stressors
Mitigation measures for acoustic stressors are provided in Tables
44 through 47.
Procedural Mitigation for Active Sonar
Procedural mitigation for active sonar is described in Table 44
below.
Table 44--Procedural Mitigation for Active Sonar
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Low-frequency active sonar, mid-frequency active sonar,
high-frequency active sonar:
--For vessel-based activities, mitigation applies only to
sources that are positively controlled and deployed from manned
surface vessels (e.g., sonar sources towed from manned surface
platforms).
--For aircraft-based activities, mitigation applies only to
sources that are positively controlled and deployed from manned
aircraft that do not operate at high altitudes (e.g., rotary-
wing aircraft). Mitigation does not apply to active sonar
sources deployed from unmanned aircraft or aircraft operating
at high altitudes (e.g., maritime patrol aircraft).
Number of Lookouts and Observation Platform:
Hull-mounted sources:
--1 Lookout: Platforms with space or manning restrictions while
underway (at the forward part of a small boat or ship) and
platforms using active sonar while moored or at anchor
(including pierside).
--2 Lookouts: Platforms without space or manning restrictions
while underway (at the forward part of the ship).
--4 Lookouts: Pierside sonar testing activities at Port
Canaveral, Florida and Kings Bay, Georgia.
Sources that are not hull-mounted:
--1 Lookout on the ship or aircraft conducting the activity.
Mitigation Requirements:
Mitigation zones:
--During the activity, at 1,000 yd power down 6 dB, at 500 yd
power down an additional 4 dB (for a total of 10 dB), and at
200 yd shut down for low-frequency active sonar >=200 decibels
(dB) and hull-mounted mid-frequency active sonar.
--200 yd. shut down for low-frequency active sonar <200 dB, mid-
frequency active sonar sources that are not hull-mounted, and
high-frequency active sonar.
Prior to the initial start of the activity (e.g., when
maneuvering on station):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of active sonar transmission.
During the activity:
--Low-frequency active sonar >=200 decibels (dB) and hull-
mounted mid-frequency active sonar: Observe the mitigation zone
for marine mammals; power down active sonar transmission by 6
dB if observed within 1,000 yd. of the sonar source; power down
an additional 4 dB (10 dB total) within 500 yd.; cease
transmission within 200 yd.
--Low-frequency active sonar <200 dB, mid-frequency active sonar
sources that are not hull-mounted, and high-frequency active
sonar: Observe the mitigation zone for marine mammals; cease
active sonar transmission if observed within 200 yd. of the
sonar source.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
or powering up active sonar transmission) until one of the
following conditions has been met: (1) The animal is observed
exiting the mitigation zone; (2) the animal is thought to have
exited the mitigation zone based on a determination of its
course, speed, and movement relative to the sonar source; (3)
the mitigation zone has been clear from any additional
sightings for 10 min for aircraft-deployed sonar sources or 30
min for vessel-deployed sonar sources; (4) for mobile
activities, the active sonar source has transited a distance
equal to double that of the mitigation zone size beyond the
location of the last sighting; or (5) for activities using hull-
mounted sonar, the ship concludes that dolphins are
deliberately closing in on the ship to ride the ship's bow
wave, and are therefore out of the main transmission axis of
the sonar (and there are no other marine mammal sightings
within the mitigation zone).
------------------------------------------------------------------------
Procedural Mitigation for Air Guns
Procedural mitigation for air guns is described in Table 45 below.
[[Page 57191]]
Table 45--Procedural Mitigation for Air Guns
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Air guns.
Number of Lookouts and Observation Platform:
1 Lookout positioned on a ship or pierside.
Mitigation Requirements:
Mitigation zone:
--150 yd around the air gun.
Prior to the initial start of the activity (e.g., when
maneuvering on station):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of air gun use.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease air gun use.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
air gun use) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to the air gun; (3) the mitigation zone has been clear
from any additional sightings for 30 min; or (4) for mobile
activities, the air gun has transited a distance equal to
double that of the mitigation zone size beyond the location of
the last sighting.
------------------------------------------------------------------------
Procedural Mitigation for Pile Driving
Procedural mitigation for pile driving is described in Table 46
below.
Table 46--Procedural Mitigation for Pile Driving
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Pile driving and pile extraction sound during Elevated
Causeway System training.
Number of Lookouts and Observation Platform:
1 Lookout positioned on the shore, the elevated causeway,
or a small boat.
Mitigation Requirements:
Mitigation zone:
--100 yd. around the pile.
Prior to the initial start of the activity (for 30 min):
--Observe the mitigation zone for floating vegetation; if
observed, delay the start until the mitigation zone is clear.
--Observe the mitigation zone for marine mammals; if observed,
delay the start of pile driving or vibratory pile extraction.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease impact pile driving or vibratory pile extraction.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
pile driving or pile extraction) until one of the following
conditions has been met: (1) The animal is observed exiting the
mitigation zone; (2) the animal is thought to have exited the
mitigation zone based on a determination of its course, speed,
and movement relative to the pile driving location; or (3) the
mitigation zone has been clear from any additional sightings
for 30 min.
------------------------------------------------------------------------
Procedural Mitigation for Weapons Firing Noise
Procedural mitigation for weapons firing noise is described in
Table 47 below.
Table 47-- Procedural Mitigation for Weapons Firing Noise
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Weapons firing noise associated with large-caliber gunnery
activities.
Number of Lookouts and Observation Platform:
1 Lookout positioned on the ship conducting the firing.
Depending on the activity, the Lookout could be the same
one described for Explosive Medium-Caliber and Large-Caliber
Projectiles or Small-, Medium-, and Large-Caliber Non-Explosive
Practice Munitions.
Mitigation Requirements:
[[Page 57192]]
Mitigation zone:
--30[deg] on either side of the firing line out to 70 yd from
the muzzle of the weapon being fired.
Prior to the initial start of the activity:
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of weapons firing.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease weapons firing.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
weapons firing) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to the firing ship; (3) the mitigation zone has been
clear from any additional sightings for 30 min; or (4) for
mobile activities, the firing ship has transited a distance
equal to double that of the mitigation zone size beyond the
location of the last sighting.
------------------------------------------------------------------------
Procedural Mitigation for Explosive Stressors
Mitigation measures for explosive stressors are provided in Tables
48 through 58.
Procedural Mitigation for Explosive Sonobuoys
Procedural mitigation for explosive sonobuoys is described in Table
48 below.
Table 48--Procedural Mitigation for Explosive Sonobuoys
----------------------------------------------------------------------------------------------------------------
Procedural Mitigation Description
-----------------------------------------------------------------------------------------------------------------
Stressor or Activity:
Explosive sonobuoys.
Number of Lookouts and Observation Platform:
1 Lookout positioned in an aircraft or on small boat.
If additional platforms are participating in the activity, personnel positioned in those assets
(e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biological
resources while performing their regular duties.
Mitigation Requirements:
Mitigation zone:
--600 yd. around an explosive sonobuoy.
Prior to the initial start of the activity (e.g., during deployment of a sonobuoy field, which
typically lasts 20-30 min):
--Observe the mitigation zone for floating vegetation; if observed, relocate or delay the start until
the mitigation zone is clear.
--Conduct passive acoustic monitoring for marine mammals; use information from detections to assist
visual observations.
--Visually observe the mitigation zone for marine mammals; if observed, relocate or delay the start of
sonobuoy or source/receiver pair detonations.
During the activity:
--Observe the mitigation zone for marine mammals; if observed, cease sonobuoy or source/receiver pair
detonations.
Commencement/recommencement conditions after a marine mammal sighting before or during the
activity:
--The Navy must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of
the activity (by delaying the start) or during the activity (by not recommencing detonations) until one
of the following conditions has been met: (1) The animal is observed exiting the mitigation zone; (2)
the animal is thought to have exited the mitigation zone based on a determination of its course, speed,
and movement relative to the sonobuoy; or (3) the mitigation zone has been clear from any additional
sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the
activity involves aircraft that are not typically fuel constrained.
After completion of the activity (e.g., prior to maneuvering off station):
--When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential
follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if
any injured or dead marine mammals are observed, follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g., providing range clearance), these assets
must assist in the visual observation of the area where detonations occurred.
----------------------------------------------------------------------------------------------------------------
Procedural Mitigation for Explosive Torpedoes
Procedural mitigation for explosive torpedoes is described in Table
49 below.
Table 49--Procedural Mitigation for Explosive Torpedoes
----------------------------------------------------------------------------------------------------------------
Procedural Mitigation Description
-----------------------------------------------------------------------------------------------------------------
Stressor or Activity:
Explosive torpedoes.
Number of Lookouts and Observation Platform:
[[Page 57193]]
1 Lookout positioned in an aircraft.
If additional platforms are participating in the activity, personnel positioned in those assets
(e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biological
resources while performing their regular duties.
Mitigation Requirements:
Mitigation zone:
--2,100 yd around the intended impact location.
Prior to the initial start of the activity (e.g., during deployment of the target):
--Observe the mitigation zone for floating vegetation; if observed, relocate or delay the start until
the mitigation zone is clear.
--Conduct passive acoustic monitoring for marine mammals; use information from detections to assist
visual observations.
--Visually observe the mitigation zone for marine mammals and jellyfish aggregations; if observed,
relocate or delay the start of firing.
During the activity:
--Observe the mitigation zone for marine mammals and jellyfish aggregations; if observed, cease firing.
Commencement/recommencement conditions after a marine mammal sighting before or during the
activity:
--The Navy must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of
the activity (by delaying the start) or during the activity (by not recommencing firing) until one of
the following conditions has been met: (1) The animal is observed exiting the mitigation zone; (2) the
animal is thought to have exited the mitigation zone based on a determination of its course, speed, and
movement relative to the intended impact location; or (3) the mitigation zone has been clear from any
additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30
min when the activity involves aircraft that are not typically fuel constrained.
After completion of the activity (e.g., prior to maneuvering off station):
--When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential
follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if
any injured or dead marine mammals are observed, follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g., providing range clearance), these assets
must assist in the visual observation of the area where detonations occurred.
----------------------------------------------------------------------------------------------------------------
Procedural Mitigation for Medium- and Large-Caliber Projectiles
Procedural mitigation for medium- and large-caliber projectiles is
described in Table 50 below.
[[Page 57194]]
Table 50--Procedural Mitigation for Explosive Medium-Caliber and Large-
Caliber Projectiles
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Gunnery activities using explosive medium-caliber and large-
caliber projectiles:
--Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
1 Lookout on the vessel or aircraft conducting the
activity.
For activities using explosive large-caliber projectiles,
depending on the activity, the Lookout could be the same as the one
described for Weapons Firing Noise.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zones:
--200 yd around the intended impact location for air-to-surface
activities using explosive medium-caliber projectiles.
--600 yd around the intended impact location for surface-to-
surface activities using explosive medium-caliber projectiles.
--1,000 yd around the intended impact location for surface-to-
surface activities using explosive large-caliber projectiles.
Prior to the initial start of the activity (e.g., when
maneuvering on station):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of firing.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease firing.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
firing) until one of the following conditions has been met: (1)
The animal is observed exiting the mitigation zone; (2) the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to
the intended impact location; (3) the mitigation zone has been
clear from any additional sightings for 10 min for aircraft-
based firing or 30 min for vessel-based firing; or (4) for
activities using mobile targets, the intended impact location
has transited a distance equal to double that of the mitigation
zone size beyond the location of the last sighting.
After completion of the activity (e.g., prior to
maneuvering off station):
--When practical (e.g., when platforms are not constrained by
fuel restrictions or mission-essential follow-on commitments),
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed,
follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Explosive Missiles and Rockets
Procedural mitigation for explosive missiles and rockets is
described in Table 51 below.
Table 51--Procedural Mitigation for Explosive Missiles and Rockets
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Aircraft-deployed explosive missiles and rockets:
--Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
1 Lookout positioned in an aircraft.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zones:
--900 yd around the intended impact location for missiles or
rockets with 0.6-20 lb net explosive weight.
--2,000 yd around the intended impact location for missiles with
21-500 lb net explosive weight.
Prior to the initial start of the activity (e.g., during a
fly-over of the mitigation zone):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of firing.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease firing.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
firing) until one of the following conditions has been met: (1)
The animal is observed exiting the mitigation zone; (2) the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to
the intended impact location; or (3) the mitigation zone has
been clear from any additional sightings for 10 min when the
activity involves aircraft that have fuel constraints, or 30
min when the activity involves aircraft that are not typically
fuel constrained.
After completion of the activity (e.g., prior to
maneuvering off station):
--When practical (e.g., when platforms are not constrained by
fuel restrictions or mission-essential follow-on commitments),
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed,
follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Explosive Bombs
Procedural mitigation for explosive bombs is described in Table 52
below.
[[Page 57195]]
Table 52--Procedural Mitigation for Explosive Bombs
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Explosive bombs.
Number of Lookouts and Observation Platform:
1 Lookout positioned in the aircraft conducting the
activity.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zone:
--2,500 yd around the intended target.
Prior to the initial start of the activity (e.g., when
arriving on station):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of bomb deployment.
During the activity (e.g., during target approach):
--Observe the mitigation zone for marine mammals; if observed,
cease bomb deployment.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
bomb deployment) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to the intended target; (3) the mitigation zone has
been clear from any additional sightings for 10 min; or (4) for
activities using mobile targets, the intended target has
transited a distance equal to double that of the mitigation
zone size beyond the location of the last sighting.
After completion of the activity (e.g., prior to
maneuvering off station):
--When practical (e.g., when platforms are not constrained by
fuel restrictions or mission-essential follow-on commitments),
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed,
follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Sinking Exercises
Procedural mitigation for sinking exercises is described in Table
53 below.
Table 53--Procedural Mitigation for Sinking Exercises
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Sinking exercises.
Number of Lookouts and Observation Platform:
2 Lookouts (one positioned in an aircraft and one on a
vessel).
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zone:
--2.5 nmi around the target ship hulk.
Prior to the initial start of the activity (90 min prior to
the first firing):
--Conduct aerial observations of the mitigation zone for
floating vegetation; delay the start until the mitigation zone
is clear.
--Conduct aerial observations of the mitigation zone for marine
mammals and jellyfish aggregations; if observed, delay the
start of firing.
During the activity:
--Conduct passive acoustic monitoring for marine mammals; use
information from detections to assist visual observations.
--Visually observe the mitigation zone for marine mammals from
the vessel; if observed, cease firing.
--Immediately after any planned or unplanned breaks in weapons
firing of longer than 2 hrs, observe the mitigation zone for
marine mammals from the aircraft and vessel; if observed, delay
recommencement of firing.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
firing) until one of the following conditions has been met: (1)
The animal is observed exiting the mitigation zone; (2) the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to
the target ship hulk; or (3) the mitigation zone has been clear
from any additional sightings for 30 min.
After completion of the activity (for 2 hrs after sinking
the vessel or until sunset, whichever comes first):
--Observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Explosive Mine Countermeasure and
Neutralization Activities
Procedural mitigation for explosive mine countermeasure and
neutralization activities is described in Table 54 below.
[[Page 57196]]
Table 54--Procedural Mitigation for Explosive Mine Countermeasure and
Neutralization Activities
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Explosive mine countermeasure and neutralization
activities.
Number of Lookouts and Observation Platform:
1 Lookout positioned on a vessel or in an aircraft when
implementing the smaller mitigation zone.
2 Lookouts (one positioned in an aircraft and one on a
small boat) when implementing the larger mitigation zone.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zones:
--600 yd around the detonation site for activities using 0.1-5-
lb net explosive weight.
--2,100 yd around the detonation site for activities using 6-650
lb net explosive weight (including high explosive target
mines).
Prior to the initial start of the activity (e.g., when
maneuvering on station; typically, 10 min when the activity
involves aircraft that have fuel constraints, or 30 min when the
activity involves aircraft that are not typically fuel
constrained):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of detonations.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease detonations.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
detonations) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to detonation site; or (3) the mitigation zone has
been clear from any additional sightings for 10 min when the
activity involves aircraft that have fuel constraints, or 30
min when the activity involves aircraft that are not typically
fuel constrained.
After completion of the activity (typically 10 min when the
activity involves aircraft that have fuel constraints, or 30 min
when the activity involves aircraft that are not typically fuel
constrained):
--Observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Explosive Mine Neutralization Activities
Involving Navy Divers
Procedural mitigation for explosive mine neutralization activities
involving Navy divers is described in Table 55 below.
Table 55--Procedural Mitigation for Explosive Mine Neutralization
Activities Involving Navy Divers
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Explosive mine neutralization activities involving Navy
divers.
Number of Lookouts and Observation Platform:
2 Lookouts (two small boats with one Lookout each, or one
Lookout on a small boat and one in a rotary-wing aircraft) when
implementing the smaller mitigation zone.
4 Lookouts (two small boats with two Lookouts each), and a
pilot or member of an aircrew must serve as an additional Lookout
if aircraft are used during the activity, when implementing the
larger mitigation zone.
All divers placing the charges on mines must support the
Lookouts while performing their regular duties and must report
applicable sightings to their supporting small boat or Range Safety
Officer.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
[[Page 57197]]
Mitigation zones:
--500 yd around the detonation site during activities under
positive control using 0.1-20 lb net explosive weight.
--1,000 yd around the detonation site during activities using
time-delay fuses (0.1-20 lb net explosive weight) and during
activities under positive control using 21-60 lb net explosive
weight charges.
Prior to the initial start of the activity (e.g., when
maneuvering on station for activities under positive control; 30
min for activities using time-delay firing devices):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of detonations or fuse initiation.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease detonations or fuse initiation.
--To the maximum extent practicable depending on mission
requirements, safety, and environmental conditions, boats must
position themselves near the mid-point of the mitigation zone
radius (but outside of the detonation plume and human safety
zone), must position themselves on opposite sides of the
detonation location (when two boats are used), and must travel
in a circular pattern around the detonation location with one
Lookout observing inward toward the detonation site and the
other observing outward toward the perimeter of the mitigation
zone.
--If used, aircraft must travel in a circular pattern around the
detonation location to the maximum extent practicable.
--The Navy must not set time-delay firing devices (0.1-20 lb net
explosive weight) to exceed 10 min.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
detonations) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to the detonation site; or (3) the mitigation zone has
been clear from any additional sightings for 10 min during
activities under positive control with aircraft that have fuel
constraints, or 30 min during activities under positive control
with aircraft that are not typically fuel constrained and
during activities using time-delay firing devices.
After completion of an activity (for 30 min):
--Observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Maritime Security Operations--Anti-Swimmer
Grenades
Procedural mitigation for maritime security operations--anti-
swimmer grenades is described in Table 56 below.
Table 56--Procedural Mitigation for Maritime Security Operations--Anti-
Swimmer Grenades
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Maritime Security Operations--Anti-Swimmer Grenades.
Number of Lookouts and Observation Platform:
1 Lookout positioned on the small boat conducting the
activity.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zone:
--200 yd around the intended detonation location.
Prior to the initial start of the activity (e.g., when
maneuvering on station):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of detonations.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease detonations.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
detonations) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to the intended detonation location; (3) the
mitigation zone has been clear from any additional sightings
for 30 min; or (4) the intended detonation location has
transited a distance equal to double that of the mitigation
zone size beyond the location of the last sighting.
After completion of the activity (e.g., prior to
maneuvering off station):
--When practical (e.g., when platforms are not constrained by
fuel restrictions or mission-essential follow-on commitments),
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed,
follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Line Charge Testing
Procedural mitigation for line charge testing is described in Table
57 below.
[[Page 57198]]
Table 57--Procedural Mitigation for Line Charge Testing
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Line charge testing.
Number of Lookouts and Observation Platform:
1 Lookout positioned on a vessel.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zone:
--900 yd around the intended detonation location.
Prior to the initial start of the activity (e.g., when
maneuvering on station):
--Observe the mitigation zone for floating vegetation; if
observed, delay the start until the mitigation zone is clear.
--Observe the mitigation zone for marine mammals; if observed,
delay the start of detonations.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease detonations.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
detonations) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to the intended detonation location; or (3) the
mitigation zone has been clear from any additional sightings
for 30 min.
After completion of the activity (e.g., prior to
maneuvering off station):
--When practical (e.g., when platforms are not constrained by
fuel restrictions or mission-essential follow-on commitments),
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed,
follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
Procedural Mitigation for Ship Shock Trials
Procedural mitigation for ship shock trials is described in Table
58 below.
Table 58--Procedural Mitigation for Ship Shock Trials
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Ship shock trials.
Number of Lookouts and Observation Platform:
At least 10 Lookouts or trained marine species observers
(or a combination thereof) positioned either in an aircraft or on
multiple vessels (i.e., a Marine Animal Response Team boat and the
test ship):
--If aircraft are used, Lookouts or trained marine species
observers must be in an aircraft and on multiple vessels.
--If aircraft are not used, a sufficient number of additional
Lookouts or trained marine species observers must be used to
provide vessel-based visual observation comparable to that
achieved by aerial surveys.
If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for
applicable biological resources while performing their regular
duties.
Mitigation Requirements:
Mitigation zone:
--3.5 nmi around the ship hull.
During event planning:
--The Navy must not conduct ship shock trials in the
Jacksonville Operating Area during North Atlantic right whale
calving season from November 15 through April 15.
--The Navy develops detailed ship shock trial monitoring and
mitigation plans approximately 1-year prior to an event and
must continue to provide these to NMFS for review and approval.
--Pre-activity planning must include selection of one primary
and two secondary areas where marine mammal populations are
expected to be the lowest during the event, with the primary
and secondary locations located more than 2 nmi from the
western boundary of the Gulf Stream for events in the Virginia
Capes Range Complex or Jacksonville Range Complex.
--If it is determined during pre-activity surveys that the
primary area is environmentally unsuitable (e.g., observations
of marine mammals or presence of concentrations of floating
vegetation), the shock trial could be moved to a secondary site
in accordance with the detailed mitigation and monitoring plan
provided to NMFS.
Prior to the initial start of the activity at the primary
shock trial location (in intervals of 5 hrs, 3 hrs, 40 min, and
immediately before the detonation):
--Observe the mitigation zone for floating vegetation; if
observed, delay the start until the mitigation zone is clear.
--Observe the mitigation zone for marine mammals; if observed,
delay triggering the detonation.
During the activity:
--Observe the mitigation zone for marine mammals, large schools
of fish, jellyfish aggregations, and flocks of seabirds; if
observed, cease triggering the detonation.
--After completion of each detonation, observe the mitigation
zone for marine mammals; if any injured or dead marine mammals
are observed, follow established incident reporting procedures
and halt any remaining detonations until the Navy can consult
with NMFS and review or adapt the mitigation, if necessary.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
detonations) until one of the following conditions has been
met: (1) The animal is observed exiting the mitigation zone;
(2) the animal is thought to have exited the mitigation zone
based on a determination of its course, speed, and movement
relative to the ship hull; or (3) the mitigation zone has been
clear from any additional sightings for 30 min.
After completion of the activity (during the following 2
days at a minimum, and up to 7 days at a maximum):
--Observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, follow established incident reporting procedures.
--If additional platforms are supporting this activity (e.g.,
providing range clearance), these assets must assist in the
visual observation of the area where detonations occurred.
------------------------------------------------------------------------
[[Page 57199]]
Procedural Mitigation for Physical Disturbance and Strike Stressors
Mitigation measures for physical disturbance and strike stressors
are provided in Table 59 through Table 63.
Procedural Mitigation for Vessel Movement
Procedural mitigation for vessel movement used during the Planned
Activities is described in Table 59 below.
Table 59--Procedural Mitigation for Vessel Movement
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Vessel movement:
--The mitigation must not be applied if: (1) The vessel's safety
is threatened, (2) the vessel is restricted in its ability to
maneuver (e.g., during launching and recovery of aircraft or
landing craft, during towing activities, when mooring, etc.),
or (3) the vessel is operated autonomously.
Number of Lookouts and Observation Platform:
1 Lookout on the vessel that is underway.
Mitigation Requirements:
Mitigation zones:
--500 yd around whales.
--200 yd around other marine mammals (except bow-riding dolphins
and pinnipeds hauled out on man-made navigational structures,
port structures, and vessels).
During the activity:
--When underway, observe the mitigation zone for marine mammals;
if observed, maneuver to maintain distance.
Additional requirements:
--The Navy must broadcast awareness notification messages with
North Atlantic right whale Dynamic Management Area information
(e.g., location and dates) to applicable Navy assets operating
in the vicinity of the Dynamic Management Area. The information
must alert assets to the possible presence of a North Atlantic
right whale to maintain safety of navigation and further reduce
the potential for a vessel strike. Platforms must use the
information to assist their visual observation of applicable
mitigation zones during training and testing activities and to
aid in the implementation of procedural mitigation, including
but not limited to mitigation for vessel movement.
--If a marine mammal vessel strike occurs, the Navy must follow
the established incident reporting procedures.
------------------------------------------------------------------------
Procedural Mitigation for Towed In-Water Devices
Procedural mitigation for towed in-water devices is described in
Table 60 below.
Table 60--Procedural Mitigation for Towed In-Water Devices
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Towed in-water devices:
--Mitigation applies to devices that are towed from a manned
surface platform or manned aircraft.
--The mitigation must not be applied if the safety of the towing
platform or in-water device is threatened.
Number of Lookouts and Observation Platform:
1 Lookout positioned on the manned towing platform.
Mitigation Requirements:
Mitigation zones:
--250 yd around marine mammals.
During the activity (i.e., when towing an in-water device):
--Observe the mitigation zone for marine mammals; if observed,
maneuver to maintain distance.
------------------------------------------------------------------------
Procedural Mitigation for Small-, Medium-, and Large-Caliber Non-
Explosive Practice Munitions
Procedural mitigation for small-, medium-, and large-caliber non-
explosive practice munitions is described in Table 61 below.
Table 61--Procedural Mitigation for Small-, Medium-, and Large-Caliber
Non-Explosive Practice Munitions
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Gunnery activities using small-, medium-, and large-caliber
non-explosive practice munitions:
--Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
1 Lookout positioned on the platform conducting the
activity.
Depending on the activity, the Lookout could be the same as
the one described for Weapons Firing Noise.
Mitigation Requirements:
[[Page 57200]]
Mitigation zone:
--200 yd around the intended impact location.
Prior to the initial start of the activity (e.g., when
maneuvering on station):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of firing.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease firing.
Commencement/recommencement conditions after a marine
mammal sighting before or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
firing) until one of the following conditions has been met: (1)
The animal is observed exiting the mitigation zone; (2) the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to
the intended impact location; (3) the mitigation zone has been
clear from any additional sightings for 10 min for aircraft-
based firing or 30 min for vessel-based firing; or (4) for
activities using a mobile target, the intended impact location
has transited a distance equal to double that of the mitigation
zone size beyond the location of the last sighting.
------------------------------------------------------------------------
Procedural Mitigation for Non-Explosive Missiles and Rockets
Procedural mitigation for non-explosive missiles and rockets is
described in Table 62 below.
Table 62--Procedural Mitigation for Non-Explosive Missiles and Rockets
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Aircraft-deployed non-explosive missiles and rockets:
--Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
1 Lookout positioned in an aircraft.
Mitigation Requirements:
Mitigation zone:
--900 yd around the intended impact location.
Prior to the initial start of the activity (e.g., during a
fly-over of the mitigation zone):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of firing.
During the activity:
--Observe the mitigation zone for marine mammals; if observed,
cease firing.
Commencement/recommencement conditions after a marine
mammal sighting prior to or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
firing) until one of the following conditions has been met: (1)
The animal is observed exiting the mitigation zone; (2) the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to
the intended impact location; or (3) the mitigation zone has
been clear from any additional sightings for 10 min when the
activity involves aircraft that have fuel constraints, or 30
min when the activity involves aircraft that are not typically
fuel constrained.
------------------------------------------------------------------------
Procedural Mitigation for Non-Explosive Bombs and Mine Shapes
Procedural mitigation for non-explosive bombs and mine shapes is
described in Table 63 below.
Table 63--Procedural Mitigation for Non-Explosive Bombs and Mine Shapes
------------------------------------------------------------------------
Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
Non-explosive bombs.
Non-explosive mine shapes during mine laying activities.
Number of Lookouts and Observation Platform:
1 Lookout positioned in an aircraft.
Mitigation Requirements:
[[Page 57201]]
Mitigation zone:
--1,000 yd around the intended target.
Prior to the start of the activity (e.g., when arriving on
station):
--Observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone
is clear.
--Observe the mitigation zone for marine mammals; if observed,
relocate or delay the start of bomb deployment or mine laying.
During the activity (e.g., during approach of the target or
intended minefield location):
--Observe the mitigation zone for marine mammals; if observed,
cease bomb deployment or mine laying.
Commencement/recommencement conditions after a marine
mammal sighting prior to or during the activity:
--The Navy must allow a sighted marine mammal to leave the
mitigation zone prior to the initial start of the activity (by
delaying the start) or during the activity (by not recommencing
bomb deployment or mine laying) until one of the following
conditions has been met: (1) The animal is observed exiting the
mitigation zone; (2) the animal is thought to have exited the
mitigation zone based on a determination of its course, speed,
and movement relative to the intended target or minefield
location; (3) the mitigation zone has been clear from any
additional sightings for 10 min; or (4) for activities using
mobile targets, the intended target has transited a distance
equal to double that of the mitigation zone size beyond the
location of the last sighting.
------------------------------------------------------------------------
Mitigation Areas
In addition to procedural mitigation, the Navy will implement
mitigation measures within mitigation areas and/or at times to avoid or
minimize potential impacts on marine mammals (see the revised maps and
tables, with expanded areas as described above, provided in Chapter 5
(Mitigation), Section 5.4 of the AFTT FEIS/OEIS). The Navy has taken
into account public comments received on the AFTT DEIS/OEIS, best
available science, and the practicability of implementing additional
mitigation measures and has expanded and improved their mitigation
areas and mitigation measures to further reduce impacts to marine
mammals. As such, the Navy revised their mitigation areas since their
application and the proposed rule (see above). The Navy re-analyzed
existing mitigation areas and considered new habitat areas suggested by
the public, NMFS, and other non-Navy organizations, including NARW ESA-
designated critical habitat, important habitat for sperm whales and
Bryde's whales, BIAs, and National Marine Sanctuaries. The Navy worked
collaboratively with NMFS to develop mitigation areas using inputs from
the Navy's operational community, the best available science discussed
in Chapter 3 of the AFTT FEIS/OEIS (Affected Environment and
Environmental Consequences), published literature, predicted activity
impact footprints, marine species monitoring and density data, and the
practicability of implementing additional mitigation measures.
Following are the mitigation areas that the Navy has committed to
implement and that are included in the final regulations (including a
description of expanded areas and/or protections).
Mitigation Areas Off the Northeastern United States
Mitigation areas for the Northeastern United States are described
in Table 64. The Navy has expanded the NE NARW Area and added the Gulf
of Maine Planning Awareness Mitigation Area since the proposed rule and
the location and boundaries of each mitigation area are included in the
Navy's AFTT FEIS/OEIS.
Table 64--Mitigation Areas Off the Northeastern United States
------------------------------------------------------------------------
Mitigation Area Description
-------------------------------------------------------------------------
Stressor or Activity:
Sonar.
Explosives.
Physical disturbance and strikes.
Mitigation Area Requirements (year-round):
[[Page 57202]]
Northeast North Atlantic Right Whale Mitigation Area:
--The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area (i.e., the
northeast North Atlantic right whale critical habitat) in its
annual training and testing activity reports submitted to NMFS.
--The Navy must minimize the use of low-frequency active sonar,
mid-frequency active sonar, and high-frequency active sonar to
the maximum extent practicable within the mitigation area.
--The Navy must not use Improved Extended Echo Ranging sonobuoys
(in or within 3 nmi of the mitigation area) or use, explosive
and non-explosive bombs, in-water detonations, and explosive
torpedoes within the mitigation area.
--For activities using non-explosive torpedoes within the
mitigation area, the Navy must conduct activities during
daylight hrs in Beaufort sea state 3 or less. The Navy must use
three Lookouts (one positioned on a vessel and two in an
aircraft during dedicated aerial surveys) to observe the
vicinity of the activity. An additional Lookout must be
positioned on the submarine, when surfaced. Immediately prior
to the start of the activity, Navy personnel must observe for
floating vegetation and marine mammals; if observed, the
activity must not commence until the vicinity is clear or the
activity is relocated to an area where the vicinity is clear.
During the activity, Navy personnel must observe for marine
mammals; if observed, the activity must cease. To allow a
sighted marine mammal to leave the area, the Navy must not
recommence the activity until one of the following conditions
has been met: (1) The animal is observed exiting the vicinity
of the activity; (2) the animal is thought to have exited the
vicinity of the activity based on a determination of its
course, speed, and movement relative to the activity location;
or (3) the area has been clear from any additional sightings
for 30 min. During transits and normal firing, ships must
maintain a speed of no more than 10 knots. During submarine
target firing, ships must maintain speeds of no more than 18
knots. During vessel target firing, vessel speeds may exceed 18
knots for brief periods of time (e.g., 10-15 min).
--Before vessel transits within the mitigation area, the Navy
must conduct a web query or email inquiry to the National
Oceanographic and Atmospheric Administration Northeast
Fisheries Science Center's North Atlantic Right Whale Sighting
Advisory System to obtain the latest North Atlantic right whale
sightings information. Vessels must use the sightings
information to reduce potential interactions with North
Atlantic right whales during transits. Vessels must implement
speed reductions within the mitigation area after observing a
North Atlantic right whale, if transiting within 5 nmi of a
sighting reported to the North Atlantic Right Whale Sighting
Advisory System within the past week, and if transiting at
night or during periods of reduced visibility.
Gulf of Maine Planning Awareness Mitigation Area:
--The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its
annual training and testing activity reports submitted to NMFS.
--The Navy must not conduct >200 hrs of hull-mounted mid-
frequency active sonar per year within the mitigation area.
--The Navy must not conduct major training exercises (Composite
Training Unit Exercises or Fleet Exercises/Sustainment
Exercises) within the mitigation area. If the Navy needs to
conduct a major training exercise within the mitigation area in
support of training requirements driven by national security
concerns, it must confer with NMFS to verify that potential
impacts are adequately addressed in the Navy's Final EIS/OEIS
and associated consultation documents.
Northeast Planning Awareness Mitigation Areas:
--The Navy will avoid conducting major training exercises
(Composite Training Unit Exercises or Fleet Exercises/
Sustainment Exercises) within the mitigation area to the
maximum extent practicable.
--The Navy must not conduct more than four major training
exercises per year within the mitigation area (all or a portion
of the exercise). If the Navy needs to conduct additional major
training exercises in the mitigation area in support of
training requirements driven by national security concerns, it
must provide NMFS with advance notification and include the
information in its annual training and testing activity reports
submitted to NMFS.
------------------------------------------------------------------------
Mitigation Areas Off the Mid-Atlantic and Southeastern United States
Mitigation areas off the Mid-Atlantic and Southeastern United
States are described in Table 65 below. The location and boundaries of
each mitigation area are included in the Navy's AFTT FEIS/OEIS.
Table 65--Mitigation Areas Off the Mid-Atlantic and Southeastern United
States
------------------------------------------------------------------------
Mitigation Area Description
-------------------------------------------------------------------------
Stressor or Activity:
Sonar.
Explosives.
Physical disturbance and strikes.
Mitigation Area Requirements:
[[Page 57203]]
Southeast North Atlantic Right Whale Mitigation Area
(November 15 through April 15):
--The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its
annual training and testing activity reports submitted to NMFS.
--The Navy must not conduct: (1) Low-frequency active sonar
(except as noted below), (2) mid-frequency active sonar (except
as noted below), (3) high-frequency active sonar, (4) missile
and rocket activities (explosive and non-explosive), (5) small-
, medium-, and large-caliber gunnery activities, (6) Improved
Extended Echo Ranging sonobuoy activities, (7) explosive and
non-explosive bombing activities, (8) in-water detonations, and
(9) explosive torpedo activities within the mitigation area.
--To the maximum extent practicable, the Navy must minimize the
use of: (1) Helicopter dipping sonar, (2) low-frequency active
sonar and hull-mounted mid-frequency active sonar used for
navigation training, and (3) low-frequency active sonar and
hull-mounted mid-frequency active sonar used for object
detection exercises within the mitigation area.
--Before transiting or conducting training or testing activities
within the mitigation area, the Navy must initiate
communication with the Fleet Area Control and Surveillance
Facility, Jacksonville to obtain Early Warning System North
Atlantic right whale sightings data. The Fleet Area Control and
Surveillance Facility, Jacksonville must advise vessels of all
reported whale sightings in the vicinity to help vessels and
aircraft reduce potential interactions with North Atlantic
right whales. Commander Submarine Force U.S. Atlantic Fleet
must coordinate any submarine activities that may require
approval from the Fleet Area Control and Surveillance Facility,
Jacksonville. Vessels must use the sightings information to
reduce potential interactions with North Atlantic right whales
during transits.
--Vessels must implement speed reductions if they are within 5
nmi of a sighting reported within the past 12 hrs, or when
operating at night or during periods of poor visibility.
--To the maximum extent practicable, vessels must minimize north-
south transits in the mitigation area.
Jacksonville Operating Area (November 15 through April 15):
--Navy units conducting training or testing activities in the
Jacksonville Operating Area must initiate communication with
the Fleet Area Control and Surveillance Facility, Jacksonville
to obtain Early Warning System North Atlantic right whale
sightings data. The Fleet Area Control and Surveillance
Facility, Jacksonville must advise vessels of all reported
whale sightings in the vicinity to help vessels and aircraft
reduce potential interactions with North Atlantic right whales.
Commander Submarine Force U.S. Atlantic Fleet must coordinate
any submarine activities that may require approval from the
Fleet Area Control and Surveillance Facility, Jacksonville. The
Navy must use the reported sightings information as it plans
specific details of events (e.g., timing, location, duration)
to minimize potential interactions with North Atlantic right
whales to the maximum extent practicable. The Navy must use the
reported sightings information to assist visual observations of
applicable mitigation zones and to aid in the implementation of
procedural mitigation.
Southeast North Atlantic Right Whale Critical Habitat
Special Reporting Area (November 15 through April 15):
--The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the Special Reporting Area
(i.e., the southeast North Atlantic right whale critical
habitat) in its annual training and testing activity reports
submitted to NMFS.
Mid-Atlantic Planning Awareness Mitigation Areas (year-
round):
--The Navy will avoid conducting major training exercises within
the mitigation area (Composite Training Unit Exercises or Fleet
Exercises/Sustainment Exercises) to the maximum extent
practicable.
--The Navy must not conduct the Ship Shock trial in the Mid-
Atlantic Planning Awareness Areas including a 5-nmi buffer.
--The Navy must not conduct more than four major training
exercises per year (all or a portion of the exercise) within
the mitigation area. If the Navy needs to conduct additional
major training exercises in the mitigation area in support of
training requirements driven by national security concerns, it
must provide NMFS with advance notification and include the
information in its annual training and testing activity reports
submitted to NMFS.
Navy Cherry Point Range Complex Nearshore Mitigation Area
(March through September):
--The Navy must not conduct explosive mine neutralization
activities involving Navy divers in the mitigation area.
--To the maximum extent practicable, the Navy must not use
explosive sonobuoys, explosive torpedoes, explosive medium-
caliber and large-caliber projectiles, explosive missiles and
rockets, explosive bombs, explosive mines during mine
countermeasure and neutralization activities, and anti-swimmer
grenades in the mitigation area.
------------------------------------------------------------------------
Mitigation Areas in the GOMEX
Mitigation areas in the GOMEX are described in Table 66 below. The
Navy has expanded the GOMEX Planning Awareness Mitigation area and
added the Bryde's Whale Mitigation area since the proposed rule and the
location and boundaries of each mitigation area are included in the
AFTT FEIS/OEIS.
Table 66--Mitigation Areas in the GOMEX
------------------------------------------------------------------------
Mitigation Area Description
-------------------------------------------------------------------------
Stressor or Activity:
Sonar.
Explosives.
Mitigation Area Requirements (Year-Round):
Bryde's Whale Mitigation Area:
--The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its
annual training and testing activity reports submitted to NMFS.
--The Navy must not conduct >200 hrs of hull-mounted mid-
frequency active sonar per year within the mitigation area.
--The Navy must not use explosives (except during mine warfare
activities) within the mitigation area.
Gulf of Mexico Planning Awareness Mitigation Areas:
--The Navy must not conduct any major training exercises within
the mitigation areas (all or a portion of the exercise). If the
Navy needs to conduct a major training exercise within the
mitigation areas in support of training requirements driven by
national security concerns, it must confer with NMFS to verify
that potential impacts are adequately addressed in the Navy's
Final EIS/OEIS and associated consultation documents.
------------------------------------------------------------------------
The Navy's analysis indicates that the measures in these mitigation
areas are both practicable and will reduce the likelihood or severity
of adverse impacts to marine mammal species and stocks or their habitat
in the manner described in the Navy's analysis. After extensive
coordination and independent consideration of the measures considered
and eliminated by the Navy and the Navy's determinations as to how the
measures would affect personnel safety, practicality to implement, and
effectiveness to the Navy mission, NMFS finds the information
persuasive to inform NMFS' LPAI finding and NMFS' independent analysis
of these mitigation areas.
Summary of Mitigation Areas
Table 67 below includes a description of the mitigation implemented
in each of the areas and immediately below we include a summary of the
manner in
[[Page 57204]]
which the mitigation areas are expected to reduce impacts to marine
mammals and the likelihood or severity of impacts to species or stock:
Northeast North Atlantic Right Whale Mitigation Areas (year-round)
The Navy has enlarged the mitigation area to cover the full extent
of the northeast NARW ESA-designated critical habitat. The expanded
area also encompasses all of the important feeding areas for humpback
whales and fin whales, significant portions of the feeding areas for
sei and minke whales (73 percent and 44 percent, respectively), as well
as 82 percent of the portion in the U.S. EEZ of a small and resident
population of harbor porpoises. Mitigation to limit the use of active
sonar to the maximum extent practicable and not use certain explosive
and non-explosive munitions will help the Navy further avoid or reduce
potential impacts on NARWs year-round in their most important feeding
areas, a mating area, and the northern portion of their migration
habitat. These mitigations will also reduce the severity and scale of
impacts on the other mysticetes and harbor porpoises. Conducting non-
explosive torpedo activities during daylight hours in Beaufort sea
state 3 or less will help increase Lookout effectiveness during these
activities. Mitigation to obtain the latest sighting information from
the NARW Sighting Advisory System will help vessels avoid NARWs during
training and testing activities. The NARW Sighting Advisory System is a
National Oceanographic and Atmospheric Administration program that
collects sightings information off the northeastern United States from
aerial surveys, shipboard surveys, whale watching vessels, and
opportunistic sources, such as the U.S. Coast Guard, commercial ships,
fishing vessels, and the public. The Navy will also implement new
special reporting procedures to report the total hours and counts of
active sonar and in-water explosives used in the mitigation area in its
annual training and testing activity reports submitted to NMFS. The
special reporting requirements will aid the Navy and NMFS in continuing
to analyze potential impacts of training and testing in this area. The
reduction of activities in, and increase of protective measures in,
areas with higher concentrations of NARWs or other mysticetes engaged
in important feeding activities (such as they are in this area), or
NARWs engaged in mating activities, is expected to reduce the
probability and/or severity of impacts to these species and stocks that
would be more likely to adversely affect the fitness of any individual,
which in turn reduces the likelihood that any impacts would translate
to adverse impacts on the stock. Similarly, reduction in the scale or
level of impacts in the vicinity of this small resident population of
harbor porpoises is expected to reduce the probability that impacts
would adversely impact the fitness of any individual and thereby
translate to adverse impacts on the stock.
Gulf of Maine Planning Awareness Mitigation Area (year-round)
Newly developed for Phase III and since the proposed rule was
published, the Gulf of Maine Planning Awareness Mitigation Area extends
throughout the Gulf of Maine and southward over Georges Bank. The area
covers the full extent of the northeast NARW ESA-designated critical
habitat, including both a mating area and important feeding area. The
expanded area also fully encompasses important feeding areas for
humpback whales, minke whales, sei whales, and fin whales as well as
all of the portion in the U.S. EEZ of a small and resident population
of harbor porpoises. The Navy will not conduct MTEs in this area, which
will further help the Navy avoid or reduce potential impacts on marine
mammals from active sonar during major training exercises (which are
associated with more severe effects because of the use of multiple
platforms and higher-level sound sources, as well as longer-duration
activities). The reduction of activities in, and increase of protective
measures in, areas with higher concentrations of NARWs or other
mysticetes engaged in important feeding activities (such as they are in
this area), or NARWs engaged in mating activities, is expected to
reduce the probability and/or severity of impacts to these species and
stocks that would be more likely to adversely affect the fitness of any
individual, which in turn reduces the likelihood that any impacts would
translate to adverse impacts on the stock. Similarly, and reduction in
the scale or level of impacts in the vicinity of this small resident
population of harbor porpoises is expected to reduce the probability
that impacts would adversely impact the fitness of any individual and
thereby translate to adverse impacts on the stock. The Navy will also
implement special reporting procedures to report the total hours and
counts of active sonar and in-water explosives used in the mitigation
area in its annual training and testing activity reports submitted to
NMFS. The special reporting requirements will aid the Navy and NMFS in
continuing to analyze potential impacts of training and testing in this
area.
Northeast Planning Awareness Mitigation Areas (year-round)
The Northeast Planning Awareness Mitigation Areas extend across the
shelf break and contain underwater canyons that have been associated
with marine mammal feeding and abundance, including within a portion of
the Northeast Canyons and Seamounts National Marine Monument. They are
situated among highly productive environments, such as persistent
oceanographic features associated with upwellings and steep bathymetric
contours. The mitigation included within the Northeast Planning
Awareness Mitigation Areas (Table 64) will help the Navy further avoid
or reduce potential impacts from active sonar during major training
exercises on marine mammals that inhabit, feed in, mate in, or migrate
through the northeast region. For example, the mitigation areas overlap
a portion of the NARW northern migration habitat. Fin whales are known
to follow prey off the continental shelf in this region (Azzellino et
al., 2008; Panigada et al., 2008). Sei whales have high abundance in
two of the mitigation areas along the shelf break of Georges Bank and
near Hydrographer Canyon (Waring et al., 2014). The reduction of
activities in, and increase of protective measures in, areas with
higher concentrations of NARWs or other mysticetes is expected to
reduce the probability of impacts to these species and stocks that
would be more likely to adversely affect the fitness of any individual,
which in turn reduces the likelihood that any impacts would translate
to adverse impacts on the stock.
Mid-Atlantic Planning Awareness Mitigation Areas (year-round)
The Mid-Atlantic Planning Awareness Mitigation Areas extend across
large swaths of shelf break and contain underwater canyons associated
with high marine mammal diversity (e.g., Norfolk Canyon). The
mitigation areas are situated among highly productive environments,
such as persistent oceanographic features associated with upwellings
and steep bathymetric contours. Numerous species of marine mammals
occur in the area, including beaked, fin, humpback, minke, and sperm
whales; and pilot whales, bottlenose, short-beaked common, Atlantic
spotted, striped, Clymene, and Risso's dolphins. The area is thought to
be important for short-finned pilot whale feeding (as well as other
odontocetes) and is associated with high
[[Page 57205]]
species abundance (Thorne et al., 2017). The area is also used
seasonally during migrations by numerous species and overlaps the NARW
migration habitat identified by LaBrecque et al. (2015b). The Navy will
avoid planning major training exercises to the maximum extent
practicable and will not conduct more than four per year. The Navy has
also agreed to move the ship shock trial box east of the Mid-Atlantic
Planning Awareness Mitigation Areas including a 5-nmi buffer. Because
of the diversity of marine mammals and other fauna, as well as the
general increased use of the area for odontocete feeding, any reduction
of the more impactful MTEs (more platforms, higher-level sources, and
longer duration) would be expected to have a reduction in the
probability of impacts to these species and stocks that would be more
likely to adversely affect the fitness of any individual, which in turn
reduces the likelihood that any impacts would translate to adverse
impacts on the stock. Because of the high diversity of marine fauna,
reduced training in this area would also be considered a direct
reduction of impacts on marine mammal habitat.
Southeast North Atlantic Right Whale Mitigation Area (November 15
Through April 15)
The Navy has expanded the existing SE NARW Mitigation Area
northward approximately 50 nmi along the coast of northern Georgia from
the shoreline out to 10-12 nmi. The Navy expanded the mitigation area
to correlate with the occurrence of NARWs to the maximum extent
practicable based on readiness requirements. The mitigation area
encompasses a portion of the NARW migration and calving areas
identified by LaBrecque et al. (2015b) and a portion of the southeast
NARW ESA-designated critical habitat. Mitigation to not conduct, or to
limit the use of, active sonar to the maximum extent practicable
(depending on the source) and to not conduct in-water detonations and
certain activities using explosives and non-explosive practice
munitions, will help the Navy further avoid or reduce potential impacts
on NARWs in these key habitat areas seasonally. The Navy will implement
special reporting procedures to report the total hours and counts of
active sonar and in-water explosives used in the mitigation area in its
annual training and testing activity reports submitted to NMFS. The
special reporting requirements will aid the Navy and NMFS in continuing
to analyze potential impacts of training and testing in the mitigation
area. Mitigation for vessel movements includes minimizing north-south
transits; implementing speed reductions after vessels observe a NARW,
if they are within 5 nmi of a sighting reported within the past 12 hrs,
or when operating in the mitigation area at night or during periods of
poor visibility; and continuing to participate in and sponsor the Early
Warning System. The Early Warning System is a comprehensive information
exchange network dedicated to reducing the risk of vessel strikes to
NARW off the southeast United States from all mariners (i.e., Navy and
non-Navy vessels). Navy participants include the Fleet Area Control and
Surveillance Facility, Jacksonville; Commander, Naval Submarine Forces,
Norfolk, Virginia; and Naval Submarine Support Command. The Navy, U.S.
Coast Guard, U.S. Army Corps of Engineers, and NMFS collaboratively
sponsor daily aerial surveys from December 1 through March 31 (weather
permitting) to observe for NARWs from the shoreline out to
approximately 30-35 nmi offshore. Aerial surveyors relay sightings
information to all mariners transiting within the NARW calving habitat
(e.g., commercial vessels, recreational boaters, Navy ships). The
reduction of activities in, and increase of protective measures in,
areas with higher concentrations of NARWs engaged in calving activities
and migration (such as they are in this area), is expected to reduce
the probability and/or severity of impacts on NARWs that would be more
likely to adversely affect the fitness of any individual, which in turn
reduces the likelihood that any impacts would translate to adverse
impacts on the stock. Additionally, these measures are expected to
significantly increase the likelihood of detection of NARWs, which in
turn significantly decreases the likelihood of a ship strike. Last,
this area coincides with the ranges of two small resident stocks of
bottlenose dolphins (Southern Georgia Estuarine and Jacksonville
Estuarine) and is generally expect to reduce the scale and severity of
impacts on these stocks, reducing the likelihood of population-level
impacts.
Southeast North Atlantic Right Whale Critical Habitat Special Reporting
Area
Newly developed for Phase III, the SE NARW Critical Habitat Special
Reporting Area covers the entire southeast NARW ESA-designated critical
habitat, as well as the ranges of three small resident populations of
bottlenose dolphins (Southern Georgia Estuarine, Jacksonville
Estuarine, and Charleston Estuarine). The Navy will implement special
reporting procedures to report the total hours and counts of active
sonar and in-water explosives used in the mitigation area (i.e., the
southeast NARW ESA-designated critical habitat) in its annual training
and testing activity reports submitted to NMFS. The special reporting
requirements will aid the Navy and NMFS in continuing to analyze
potential impacts of training and testing in this area.
Jacksonville Operating Area
The Navy has developed new mitigation measures for units conducting
training or testing activities in the Jacksonville Operating Area,
which overlaps the majority of the southeast NARW ESA-designated
critical habitat and extends far out to the edge of the continental
shelf. The mitigation measures to obtain and use Early Warning System
NARW sightings data will help vessels and aircraft reduce potential
interactions (i.e., reducing the likelihood of a strike) with NARWs in
portions of the southeast NARW ESA-designated critical habitat and NARW
migration and calving areas identified by LaBrecque et al. (2015b).
Navy Cherry Point Range Complex Nearshore Mitigation Area
The Navy is continuing an existing mitigation measure to not
conduct explosive mine neutralization activities involving Navy divers
from March through September within the mitigation area, which is
defined as within 3.2 nmi of an estuarine inlet and within 1.6 nmi of
the shoreline in the Navy Cherry Point Range Complex. For Phase III,
the Navy is expanding the mitigation requirements in this mitigation
area to include additional in-water explosives to the maximum extent
practicable. Although the measure was primarily designed to reduce
potential impacts on sea turtles near nesting beaches during the
nesting season and on sandbar sharks in Habitat Areas of Particular
Concern, the mitigation area also overlaps a portion of the NARW
migration area identified by LaBrecque et al. (2015b). Any reduction of
impacts where NARW may be concentrated contributes to a reduction in
the probability that impacts will accrue to fitness impacts on
individuals or, further, to impacts on the stock.
Bryde's Whale Mitigation Area (Year-Round)
Newly developed for Phase III, the Bryde's Whale Mitigation Area
covers the extent of the Bryde's whale small and resident population
area identified by LaBrecque et al. (2015a), including the extended
area identified by NMFS
[[Page 57206]]
in its 2016 Bryde's whale status review (Rosel et al., 2016).
Mitigation to limit annual hours of mid-frequency active sonar use and
to not use in-water explosives (except during mine warfare activities)
will help the Navy avoid or reduce potential impacts on the small and
resident population of Bryde's whales. To accomplish the mitigation for
explosives, the Navy has adjusted the boundaries of the northern GOMEX
ship shock trial area. The ship shock trial area is being relocated 5
nm from the western boundary of the Bryde's Whale Mitigation Area. This
will help the Navy avoid the potential for Bryde's whales to be exposed
to explosives during ship shock trials within the mitigation area. The
Navy will implement special reporting procedures to report the total
hours and counts of active sonar and in-water explosives used in the
mitigation area in its annual training and testing activity reports
submitted to NMFS. The special reporting requirements will aid the Navy
and NMFS in continuing to analyze potential impacts of training and
testing in this area. This overall reduction in activity and increase
in protective measures across the majority of the Bryde's whale range
minimizes the probability and/or severity of impacts on Bryde's whales
that are likely to adversely affect the fitness of any individual,
which in turn reduces the likelihood that any impacts would translate
to adverse impacts on the stock.
GOMEX Planning Awareness Mitigation Areas (Year-Round)
The Navy is enlarging the more eastern GOMEX Planning Awareness
Mitigation Area to fully encompass the Bryde's whale small and resident
population area identified by LaBrecque et al. (2015a) and the extended
area identified by NMFS in its 2016 Bryde's whale status review (Rosel
et al., 2016). The GOMEX Planning Awareness Mitigation Areas also
overlap most of the Mississippi Canyon sperm whale habitat area and a
portion of sperm whale habitat area west of the Dry Tortugas. They
extend across large swaths of shelf break and contain underwater
canyons associated with marine mammal abundance (e.g., Mississippi
Canyon, DeSoto Canyon). The mitigation areas are situated among highly
productive environments, such as persistent oceanographic features
associated with upwellings and steep bathymetric contours. The Navy
will not conduct MTEs in these areas. Mitigation within the GOMEX
Planning Awareness Mitigation Areas will help the Navy further avoid or
reduce potential impacts from active sonar during MTEs (which have more
platforms, higher source levels, and longer durations more likely to
have more severe impacts) on marine mammals that inhabit, feed in,
reproduce in, or migrate through these areas. Specifically, these
mitigation areas would be expected to result in a reduction in the
probability of impacts to the GOMEX stocks of Bryde's whales and sperm
whale that would be more likely to adversely affect the fitness of any
individual, which in turn reduces the likelihood that any impacts would
translate to adverse impacts on the stock.
A summary of mitigation areas for marine mammals is described in
Table 67 below.
Table 67--Summary of Mitigation Areas for Marine Mammals
------------------------------------------------------------------------
Summary of mitigation area requirements
-------------------------------------------------------------------------
Northeast North Atlantic Right Whale Mitigation Area
------------------------------------------------------------------------
The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its annual
training and testing activity reports.
The Navy must minimize use of active sonar to the maximum
extent practicable and must not use explosives that detonate in the
water.
The Navy must conduct non-explosive torpedo testing during
daylight hrs in Beaufort sea state 3 or less using three Lookouts (one
on a vessel, two in an aircraft during aerial surveys) and an
additional Lookout on the submarine when surfaced; during transits,
ships must maintain a speed of no more than 10 knots; during firing,
ships must maintain a speed of no more than 18 knots except brief
periods of time during vessel target firing.
Vessels must obtain the latest North Atlantic right whale
sightings data and implement speed reductions after they observe a
North Atlantic right whale, if within 5 nmi of a sighting reported
within the past week, and when operating at night or during periods of
reduced visibility.
------------------------------------------------------------------------
Gulf of Maine Planning Awareness Mitigation Area
------------------------------------------------------------------------
The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its annual
training and testing activity reports.
The Navy must not conduct major training exercises and must not
conduct >200 hrs of hull-mounted mid-frequency active sonar per year.
------------------------------------------------------------------------
Northeast Planning Awareness Mitigation Areas and Mid-Atlantic Planning
Awareness Mitigation Areas
------------------------------------------------------------------------
The Navy must avoid conducting major training exercises to the
maximum extent practicable.
The Navy must not conduct more than four major training
exercises per year.
------------------------------------------------------------------------
Southeast North Atlantic Right Whale Mitigation Area (November 15-April
15)
------------------------------------------------------------------------
The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its annual
training and testing activity reports.
The Navy must not use active sonar except as necessary for
navigation training, object detection training, and dipping sonar.
The Navy must not expend explosive or non-explosive ordnance.
Vessels must obtain the latest North Atlantic right whale
sightings data; must implement speed reductions after they observe a
North Atlantic right whale, if within 5 nmi of a sighting reported
within the past 12 hrs, and when operating at night or during periods
of reduced visibility; and must minimize north-south transits to the
maximum extent practicable.
------------------------------------------------------------------------
[[Page 57207]]
Jacksonville Operating Area (November 15-April 15)
------------------------------------------------------------------------
Navy units conducting training or testing activities in the
Jacksonville Operating Area must obtain and use Early Warning System
North Atlantic right whale sightings data as they plan specific details
of events to minimize potential interactions with North Atlantic right
whales to the maximum extent practicable. The Navy must use the
reported sightings information to assist visual observations of
applicable mitigation zones and to aid in the implementation of
procedural mitigation.
------------------------------------------------------------------------
Southeast North Atlantic Right Whale Critical Habitat Special Reporting
Area (November 15-April 15)
------------------------------------------------------------------------
The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its annual
training and testing activity reports.
------------------------------------------------------------------------
Navy Cherry Point Range Complex Nearshore Mitigation Area (March-
September)
------------------------------------------------------------------------
The Navy must not conduct explosive mine neutralization
activities involving Navy divers in the mitigation area.
To the maximum extent practicable, the Navy must not use
explosive sonobuoys, explosive torpedoes, explosive medium-caliber and
large-caliber projectiles, explosive missiles and rockets, explosive
bombs, explosive mines during mine countermeasure and neutralization
activities, and anti-swimmer grenades in the mitigation area.
------------------------------------------------------------------------
Bryde's Whale Mitigation Area
------------------------------------------------------------------------
The Navy must report the total hrs and counts of active sonar
and in-water explosives used in the mitigation area in its annual
training and testing activity reports.
The Navy must not conduct >200 hrs of hull-mounted mid-
frequency active sonar per year and must not use explosives (except
during explosive mine warfare activities).
------------------------------------------------------------------------
Gulf of Mexico Planning Awareness Mitigation Areas
------------------------------------------------------------------------
The Navy must not conduct any major training exercises under
the Proposed Action.
------------------------------------------------------------------------
Notes: Min.: minutes; nmi: nautical miles.
Summary of Procedural Mitigation
A summary of procedural mitigation is described in Table 68 below.
Table 68--Summary of Procedural Mitigation
------------------------------------------------------------------------
Mitigation zones sizes and other
Stressor or activity requirements
------------------------------------------------------------------------
Environmental Awareness and Afloat Environmental Compliance
Education. Training program for applicable
personnel.
Active Sonar................. Depending on sonar source:
1,000 yd power down, 500 yd
power down, and 200 yd shut. down
200 yd shut down.
Air Guns..................... 150 yd.
Pile Driving................. 100 yd.
Weapons Firing Noise......... 30 degrees on either side of the
firing line out to 70 yd.
Explosive Sonobuoys.......... 600 yd.
Explosive Torpedoes.......... 2,100 yd.
Explosive Medium-Caliber and 1,000 yd (large-caliber
Large-Caliber Projectiles. projectiles).
600 yd (medium-caliber
projectiles during surface-to-surface
activities).
200 yd (medium-caliber
projectiles during air-to-surface
activities).
Explosive Missiles and 2,000 yd (21-500 lb net
Rockets. explosive weight).
900 yd. (0.6-20 lb net explosive
weight).
Explosive Bombs.............. 2,500 yd.
Sinking Exercises............ 2.5 nmi.
Explosive Mine Countermeasure 2,100 yd (6-650 lb net explosive
and Neutralization weight).
Activities. 600 yd (0.1-5 lb net explosive
weight).
Explosive Mine Neutralization 1,000 yd (21-60 lb net explosive
Activities Involving Navy weight for positive control charges and
Divers. charges using time-delay fuses).
500 yd (0.1-20 lb net explosive
weight for positive control charges).
Maritime Security Operations-- 200 yd.
Anti-Swimmer Grenades.
Line Charge Testing.......... 900 yd.
Ship Shock Trials............ 3.5 nmi.
Vessel Movement.............. 500 yd (whales).
200 yd (other marine mammals).
North Atlantic right whale
Dynamic Management Area notification
messages.
Towed In-Water Devices....... 250 yd.
Small-, Medium-, and Large- 200 yd.
Caliber Non-Explosive
Practice Munitions.
[[Page 57208]]
Non-Explosive Missiles and 900 yd.
Rockets.
Non-Explosive Bombs and Mine 1,000 yd.
Shapes.
------------------------------------------------------------------------
Notes: lb: pounds; nmi: nautical miles; yd: yards.
Mitigation Conclusions
NMFS has carefully evaluated the Navy's mitigation measures--many
of which were developed with NMFS' input during the previous phases of
Navy training and testing authorizations--and considered a broad range
of other measures (i.e., the measures considered but eliminated in the
AFTT FEIS/OEIS, which reflect many of the comments that have arisen via
NMFS or public input in past years) in the context of ensuring that
NMFS prescribes the means of effecting the least practicable adverse
impact on the affected marine mammal species and stocks and their
habitat. Our evaluation of mitigation measures included consideration
of the following factors in relation to one another: The manner in
which, and the degree to which, the successful implementation of the
mitigation measures is expected to reduce the likelihood and/or
magnitude of adverse impacts to marine mammal species and stocks and
their habitat; the proven or likely efficacy of the measures; and the
practicability of the measures for applicant implementation, including
consideration of personnel safety, practicality of implementation, and
impact on the effectiveness of the military readiness activity.
Based on our evaluation of the Navy's planned measures, as well as
other measures considered by the Navy and NMFS, NMFS has determined
that the mitigation measures included in this rule are appropriate
means of effecting the least practicable adverse impacts on marine
mammals species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, considering specifically personnel safety, practicality
of implementation, and impact on the effectiveness of the military
readiness activity. Additionally, as described in more detail below,
the final rule includes an adaptive management provision, which ensures
that mitigation is regularly assessed and provides a mechanism to
improve the mitigation, based on the factors above, through
modification as appropriate.
Monitoring
Section 101(a)(5)(A) of the MMPA states that in order to authorize
incidental take for an activity, NMFS must set forth ``requirements
pertaining to the monitoring and reporting of such taking''. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) indicate that
requests for incidental take authorizations 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.
Integrated Comprehensive Monitoring Program (ICMP)
The Navy's ICMP is intended to coordinate marine species monitoring
efforts across all regions and to allocate the most appropriate level
and type of effort for each range complex based on a set of
standardized objectives, and in acknowledgement of regional expertise
and resource availability. The ICMP is designed to be flexible,
scalable, and adaptable through the adaptive management and strategic
planning processes to periodically assess progress and reevaluate
objectives. This process includes conducting an annual adaptive
management review meeting, at which the Navy and NMFS jointly consider
the prior-year goals, monitoring results, and related scientific
advances to determine if monitoring plan modifications are warranted to
more effectively address program goals. Although the ICMP does not
specify actual monitoring field work or individual projects, it does
establish a matrix of goals and objectives that have been developed in
coordination with NMFS. As the ICMP is implemented through the
Strategic Planning Process, detailed and specific studies will be
developed which support the Navy's top-level monitoring goals. In
essence, the ICMP directs that monitoring activities relating to the
effects of Navy training and testing activities on marine species
should be designed to contribute towards one or more of the following
top-level goals:
[ssquf] An increase in our understanding of the likely occurrence
of marine mammals and/or ESA-listed marine species in the vicinity of
the action (i.e., presence, abundance, distribution, and/or density of
species);
[ssquf] An increase in our understanding of the nature, scope, or
context of the likely exposure of marine mammals and/or ESA-listed
species to any of the potential stressor(s) associated with the action
(e.g., sound, explosive detonation, or military expended materials),
through better understanding of one or more of the following: (1) The
action and the environment in which it occurs (e.g., sound source
characterization, propagation, and ambient noise levels); (2) the
affected species (e.g., life history or dive patterns); (3) the likely
co-occurrence of marine mammals and/or ESA-listed marine species with
the action (in whole or part), and/or; (4) the likely biological or
behavioral context of exposure to the stressor for the marine mammal
and/or ESA-listed marine species (e.g., age class of exposed animals or
known pupping, calving or feeding areas);
[ssquf] An increase in our understanding of how individual marine
mammals or ESA-listed marine species respond (behaviorally or
physiologically) to the specific stressors associated with the action
(in specific contexts, where possible, e.g., at what distance or
received level);
[ssquf] An increase in our understanding of how anticipated
individual responses, to individual stressors or anticipated
combinations of stressors, may impact either: (1) The long-term fitness
and survival of an individual; or (2) the population, species, or stock
(e.g., through effects on annual rates of recruitment or survival);
[ssquf] An increase in our understanding of the effectiveness of
mitigation and monitoring measures;
[ssquf] A better understanding and record of the manner in which
the authorized entity complies with the incidental take regulations and
LOAs and the ESA Incidental Take Statement;
[ssquf] An increase in the probability of detecting marine mammals
(through improved technology or methods), both specifically within the
mitigation zone (thus allowing for more effective implementation of the
mitigation) and in general, to better achieve the above goals; and
[[Page 57209]]
[ssquf] Ensuring that adverse impact of activities remains at the
least practicable level.
Strategic Planning Process for Marine Species Monitoring
The Navy also developed the Strategic Planning Process for Marine
Species Monitoring, which establishes the guidelines and processes
necessary to develop, evaluate, and fund individual projects based on
objective scientific study questions. The process uses an underlying
framework designed around intermediate scientific objectives and a
conceptual framework incorporating a progression of knowledge, spanning
occurrence, exposure, response, and consequence. The Strategic Planning
Process for Marine Species Monitoring is used to set overarching
intermediate scientific objectives, develop individual monitoring
project concepts, identify potential species of interest at a regional
scale, evaluate, prioritize and select specific monitoring projects to
fund or continue supporting for a given fiscal year, execute and manage
selected monitoring projects, and report and evaluate progress and
results. This process addresses relative investments to different range
complexes based on goals across all range complexes, and monitoring
would leverage multiple techniques for data acquisition and analysis
whenever possible. The Strategic Planning Process for Marine Species
Monitoring is also available online (http://www.navymarinespeciesmonitoring.us/ us/).
Past and Current Monitoring in the AFTT Study Area
NMFS has received multiple years' worth of annual exercise and
monitoring reports addressing active sonar use and explosive
detonations within the AFTT Study Area and other Navy range complexes.
The data and information contained in these reports have been
considered in developing mitigation and monitoring measures for the
training and testing activities within the AFTT Study Area. The Navy's
annual exercise and monitoring reports may be viewed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities and http://www.navymarinespeciesmonitoring.us.
The Navy's marine species monitoring program typically supports 10-
15 projects in the Atlantic at any given time with an annual budget of
approximately $3.5M. Current projects cover a range of species and
topics from collecting baseline data on occurrence and distribution, to
tracking whales and sea turtles, to conducting behavioral response
studies on beaked whales and pilot whales. The Navy's marine species
monitoring web portal provides details on past and current monitoring
projects, including technical reports, publications, presentations, and
access to available data and can be found at: https://www.navymarinespeciesmonitoring.us/regions/atlantic/current-projects/.
Following is a summary of the work currently planned for 2019, some
of which is wrapping up and some of which will continue for multiple
years, based on the planning and review process outlined above, which
includes input from NMFS and the Marine Mammal Commission. Additional
details are available on the Navy's website (https://www.navymarinespeciesmonitoring.us/regions/atlantic/current-projects/):
[ssquf] Atlantic Behavioral Response Study (Hatteras study area)--
Assessing behavioral response of beaked whales and pilot whales to
tactical military sonar and simulated scaled sonar with controlled
exposure experiments.
[ssquf] Pinniped Tagging and Tracking in Southeast Virginia (lower
Chesapeake Bay)--Documenting habitat use, movements, and haul-out
patterns of seals in the Hampton Roads region of the Chesapeake Bay and
coastal Atlantic.
[ssquf] Pinniped Haul-out Counts and Photo-Identification (lower
Chesapeake Bay and Virginia eastern shore)--Documenting occurrence and
seasonal site fidelity of seals at select haul-out locations in the
lower Chesapeake Bay.
[ssquf] Mid-Atlantic Humpback Whale Monitoring (coastal SE
Virginia)--Photo identification and deployment of satellite-linked
tracking tags to document occurrence, baseline behavior, and habitat
use of humpback whales in the coastal mid-Atlantic waters of Virginia.
[ssquf] Behavioral Reactions of Juvenile Humpback Whales to
Approaching Ships (Chesapeake Bay shipping channels)--Assessing
response of humpback whales to vessel approaches using DTags and visual
focal follow methods.
[ssquf] NARW Monitoring--Assess the behavior and distribution of
NARWs using multiple methods including deployment of DTags in coastal
waters of the Southeast calving grounds, and passive acoustic
monitoring using autonomous underwater gliders in the mid-Atlantic
region.
[ssquf] Occurrence, Ecology, and Behavior of Deep-diving
Odontocetes (Hatteras study area)--Deployment of satellite-linked tags
to document and assess habitat use and diving behavior of beaked whales
and pilot whales.
[ssquf] Vessel baseline surveys and tagging of cetaceans (USWTR
study area of Jacksonville OPAREA)--continuation of vessel-based visual
surveys for cetaceans in the USWTR region, as well as satellite-linked
tagging of priority species to document habitat use and movement
patterns.
[ssquf] Passive Acoustic baseline monitoring--Continue deployment
of High-frequency Acoustic Recording packages (or similar) at multiple
locations along the mid-Atlantic and SE coast to document seasonal
patterns of species occurrence.
[ssquf] Occurrence and Ecology of North Atlantic Shelf Break
Species and Effects of Anthropogenic Noise Impacts--Assessment of
acoustic niche and spatial/seasonal occurrence of beaked whales and
Kogia, occurrence and acoustic behavior of baleen whales, and
anthropogenic drivers of cetacean distribution using passive acoustics.
[ssquf] Bryde's whale monitoring in GOMEX--collaboration with SEFSC
to assess occurrence and distribution of Bryde's whales in GOMEX.
[ssquf] Mid-Atlantic Continental Shelf Break Cetacean Study
(VACAPES OPAREA)--Assess occurrence, habitat use, movement patterns,
and baseline behavior of cetaceans (primarily medium to large whales)
in continental shelf break region of the VACAPES OPAREA with visual
surveys, photo ID, biopsy sampling, and satellite-linked tagging.
[ssquf] Mid-Atlantic & Southeast Humpback Catalog--Establish a
centralized collaborative humpback whale photo-id catalog for the mid-
Atlantic and southeast regions to support management and environmental
planning.
Adaptive Management
The final regulations governing the take of marine mammals
incidental to Navy training and testing activities in the AFTT Study
Area contain an adaptive management component. Our understanding of the
effects of Navy training and testing activities (e.g. acoustic and
explosive stressors) on marine mammals continues to evolve, which makes
the inclusion of an adaptive management component both valuable and
necessary within the context of five-year regulations.
The reporting requirements associated with this rule are designed
to provide NMFS with monitoring data from the previous year to allow
NMFS to consider whether any changes to existing mitigation and
monitoring
[[Page 57210]]
requirements are appropriate. NMFS and the Navy would meet to discuss
the monitoring reports, Navy research and development studies, and
current science and whether mitigation or monitoring modifications are
appropriate. The use of adaptive management allows NMFS to consider new
information from different sources to determine (with input from the
Navy regarding practicability) on an annual or biennial basis if
mitigation or monitoring measures should be modified (including
additions or deletions). Mitigation measures could be modified if new
data suggests that such modifications would have a reasonable
likelihood of reducing adverse effects to marine mammals and if the
measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring and exercises reports, as required by MMPA
authorizations; (2) compiled results of Navy funded R&D studies; (3)
results from specific stranding investigations; (4) results from
general marine mammal and sound research; and (5) any information which
reveals that marine mammals may have been taken in a manner, extent, or
number not authorized by these regulations or subsequent LOAs. The
results from monitoring reports and other studies may be viewed at
https://www.navymarinespeciesmonitoring.us/.
Reporting
In order to issue incidental take authorization for an activity,
section 101(a)(5)(A) of the MMPA states that NMFS must set forth
``requirements pertaining to the monitoring and reporting of such
taking.'' Effective reporting is critical both to compliance as well as
ensuring that the most value is obtained from the required monitoring.
Reports from individual monitoring events, results of analyses,
publications, and periodic progress reports for specific monitoring
projects will be posted to the Navy's Marine Species Monitoring web
portal: http://www.navymarinespeciesmonitoring.us. Currently, there are
several different reporting requirements pursuant to these regulations:
Notification of Injured, Live Stranded or Dead Marine Mammals
The Navy will consult the Notification and Reporting Plan, which
sets out notification, reporting, and other requirements when injured,
live stranded, or dead marine mammals are detected. The Notification
and Reporting Plan is available for review at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
Annual AFTT Monitoring Report
The Navy will submit an annual report to NMFS of the AFTT
monitoring describing the implementation and results from the previous
calendar year. Data collection methods will be standardized across
range complexes and AFTT Study Area to allow for comparison in
different geographic locations. The report will be submitted either 90
days after the calendar year, or 90 days after the conclusion of the
monitoring year to be determined by the Adaptive Management process.
Such a report would describe progress of knowledge made with respect to
intermediate scientific objectives within the AFTT Study Area
associated with the Integrated Comprehensive Monitoring Program.
Similar study questions shall be treated together so that summaries can
be provided for each topic area. The report need not include analyses
and content that does not provide direct assessment of cumulative
progress on the monitoring plan study questions.
Annual AFTT Exercise Report
Each year, the Navy will submit a preliminary report to NMFS
detailing the status of authorized sound sources within 21 days after
the anniversary of the date of issuance of the LOAs. Each year, the
Navy shall submit a detailed report to NMFS within 3 months after the
anniversary of the date of issuance of the LOA. The annual report shall
contain information on Major Training Exercises (MTEs) and Shock
Trials, Sinking Exercise (SINKEX) events, and a summary of all sound
sources used, including within specified mitigation areas (total hours
or quantity (per the LOA) of each bin of sonar or other non-impulsive
source and total annual expended/detonated ordnance (missiles, bombs,
sonobuoys, etc.) for each explosive bin). The report will also include
the details regarding specific requirements associated with specific
mitigation areas. The analysis in the detailed report will be based on
the accumulation of data from the current year's report and data
presented in the previous report. Information included in the
classified annual reports may be used to inform future adaptive
management of activities within the AFTT Study Area.
Major Training Exercises Notification
The Navy shall submit an electronic report to NMFS within fifteen
calendar days after the completion of any major training exercise
indicating: Location of the exercise; beginning and end dates of the
exercise; and type of exercise.
Five-Year Close-Out Exercise Report
This report will be included as part of the 2023 annual exercise
report. This report will provide the annual totals for each sound
source bin with a comparison to the annual allowance and the five-year
total for each sound source bin with a comparison to the five-year
allowance. The draft report will be submitted to NMFS three months
after the expiration of the rule. NMFS will provide comments, if any,
to the Navy on the draft close-out report within three months of
receipt. The report will be considered final after the Navy has
addressed NMFS' comments, or three months after the submittal of the
draft report if NMFS does not provide comments.
Analysis and Negligible Impact Determination
Negligible Impact Analysis
Introduction
NMFS has defined negligible impact 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 (50 CFR 216.103). 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 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 mortality, serious injury, and Level A or Level B
harassment (as presented in Tables 39 and 41), NMFS considers other
factors, such as the likely nature of any responses (e.g., intensity,
duration), the context of any responses (e.g., critical reproductive
time or location, migration), as well as effects on habitat, and the
likely effectiveness of the mitigation. We also assess the number,
intensity, and context of estimated takes by evaluating this
information relative to population status. Consistent with the 1989
preamble for NMFS' implementing regulations (54 FR 40338; September 29,
1989), the impacts from other past and ongoing anthropogenic activities
are incorporated into this analysis via their impacts on the
environmental baseline (e.g., as reflected in the regulatory status of
the species, population size and
[[Page 57211]]
growth rate where known, other ongoing sources of human-caused
mortality, ambient noise levels, and specific consideration of take by
Level A harassment or serious injury or mortality (hereafter referred
to as M/SI) previously authorized for other NMFS activities).
In the Estimated Take of Marine Mammals section, we identified the
subset of potential effects that would be expected to rise to the level
of takes, and then identified the number of each of those mortality
takes that we believe could occur or harassment takes that are likely
to occur based on the methods described. The impact that any given take
will have is dependent on many case-specific factors that need to be
considered in the negligible impact analysis (e.g., the context of
behavioral exposures such as duration or intensity of a disturbance,
the health of impacted animals, the status of a species that incurs
fitness-level impacts to individuals, etc.). Here we evaluate the
likely impacts of the enumerated harassment takes that are proposed for
authorization and anticipated to occur under this rule, in the context
of the specific circumstances surrounding these predicted takes. We
also include a specific assessment of serious injury or mortality takes
that could occur, as well as consideration of the traits and statuses
of the affected species and stocks. Last, we collectively evaluate this
information, as well as other more taxa-specific information and
mitigation measure effectiveness, in group-specific discussions that
support our negligible impact conclusions for each stock.
Harassment
The Navy's Specified Activities reflects representative levels/
ranges of training and testing activities, accounting for the natural
fluctuation in training, testing, and deployment schedules. This
approach is representative of how Navy's activities are conducted over
any given year over any given five-year period. Specifically, the Navy
provided a range of levels for each activity/source type for a year--
they used the maximum annual level to calculate annual takes, and they
used the sum of three nominal years (average level) and two maximum
years to calculate five-year takes for each source type. The
Description of the Specified Activity section contains a more realistic
annual representation of activities, but includes years of a higher
maximum amount of training and testing to account for these
fluctuations. There may be some flexibility in the exact number of
hours, items, or detonations that may vary from year to year, but take
totals would not exceed the five-year totals indicated in Tables 39
through 41. We base our analysis and negligible impact determination
(NID) on the maximum number of takes that would be reasonably expected
to occur and are being authorized, although, as stated before, the
number of takes are only a part of the analysis, which includes
extensive qualitative consideration of other contextual factors that
influence the degree of impact of the takes on the affected
individuals. To avoid repetition, we provide some general analysis
immediately below that applies to all the species listed in Tables 39
through 41, given that some of the anticipated effects of the Navy's
training and testing activities on marine mammals are expected to be
relatively similar in nature. However, below that, we break our
analysis into species (and/or stock), or groups of species (and the
associated stocks) where relevant similarities exist, to provide more
specific information related to the anticipated effects on individuals
of a specific stock or where there is information about the status or
structure of any species that would lead to a differing assessment of
the effects on the species or stock. Organizing our analysis by
grouping species or stocks that share common traits or that will
respond similarly to effects of the Navy's activities and then
providing species- or stock-specific information allows us to avoid
duplication while assuring that we have analyzed the effects of the
specified activities on each affected species or stock.
The Navy's harassment take request is based on its model and
quantitative assessment of mitigation, which NMFS believes
appropriately, although likely somewhat conservatively, predicts the
maximum amount of Level B harassment that is reasonably expected to
occur. In the discussions below, the ``acoustic analysis'' refers to
the Navy's modeling results and quantitative assessment of mitigation.
The model calculates sound energy propagation from sonar, other active
acoustic sources, and explosives during naval activities; the sound or
impulse received by animat dosimeters representing marine mammals
distributed in the area around the modeled activity; and whether the
sound or impulse energy received by a marine mammal exceeds the
thresholds for effects. Assumptions in the Navy model intentionally err
on the side of overestimation when there are unknowns. Naval activities
are modeled as though they would occur regardless of proximity to
marine mammals, meaning that no mitigation is considered (e.g., no
power down or shut down) and without any avoidance of the activity by
the animal. The final step of the quantitative analysis of acoustic
effects, which occurs after the modeling, is to consider the
implementation of mitigation and the possibility that marine mammals
would avoid continued or repeated sound exposures. NMFS provided input
to, independently reviewed, and concurred with, the Navy on this
process and the Navy's analysis, which is described in detail in
Chapter 6 of the Navy's rulemaking/LOA application (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities), was used to
quantify harassment takes for this rule.
Generally speaking, the Navy and NMFS anticipate more severe
effects from takes resulting from exposure to higher received levels
(though this is in no way a strictly linear relationship for behavioral
effects throughout species, individuals, or circumstances) and less
severe effects from takes resulting from exposure to lower received
levels. However, there is also growing evidence of the importance of
distance in predicting marine mammal behavioral response to sound--
i.e., sounds of a similar level emanating from a more distant source
have been shown to be less likely to evoke a response of equal
magnitude (DeRuiter 2012). The estimated number of Level A and Level B
harassment takes does not equate to the number of individual animals
the Navy expects to harass (which is lower), but rather to the
instances of take (i.e., exposures above the Level A and Level B
harassment threshold) that are anticipated to occur over the five-year
period. These instances may represent either brief exposures (seconds
or minutes) or, in some cases, longer durations of exposure within a
day. Some individuals may experience multiple instances of take
(meaning over multiple days) over the course of the year, while some
members of a species or stock may not experience take at all which
means that the number of individuals taken is smaller than the total
estimated takes. In other words, where the instances of take exceed the
number of individuals in the population, repeated takes (on more than
one day) of some individuals are predicted. Generally speaking, the
higher the number of takes as compared to the population abundance, the
more repeated takes of individuals are likely, and the higher the
actual percentage of individuals in the population that are likely
taken at least once in a year. We
[[Page 57212]]
look at this comparative metric to give us a relative sense of where
larger portions of the stocks are being taken by Navy activities and
where there is a higher likelihood that the same individuals are being
taken across multiple days and where that number of days might be
higher. In the ocean, the use of sonar and other active acoustic
sources is often transient and is unlikely to repeatedly expose the
same individual animals within a short period, for example within one
specific exercise, however, some repeated exposures across different
activities could occur over the year, especially where events occur in
generally the same area with more resident species. In short, we expect
that the total anticipated takes represent exposures of a smaller
number of individuals of which some were exposed multiple times, but
based on the nature of the Navy activities and the movement patterns of
marine mammals, it is unlikely that individuals from most species or
stocks would be taken over more than a few sequential days. This means
repeated takes of individuals are likely to occur, they are more likely
to result from non-sequential exposures from different activities and
marine mammals are not predicted to be taken for more than a few days
in a row, at most. As described elsewhere, the nature of the majority
of the exposures would be expected to be of a less severe nature and
based on the numbers it is likely that any individual exposed multiple
times is still only taken on a small percentage of the days of the
year. The greater likelihood is that not every individual is taken, or
perhaps a smaller subset is taken with a slightly higher average and
larger variability of highs and lows, but still with no reason to think
that any individuals would be taken a significant portion of the days
of the year, much less that many of the days of disturbance would be
sequential.
Some of the lower level physiological stress responses (e.g.,
orientation or startle response, change in respiration, change in heart
rate) discussed earlier would 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. Level B harassment takes, then, may have a stress-related
physiological component as well; however, we would not expect the
Navy's generally short-term, intermittent, and (typically in the case
of sonar) transitory activities to create conditions of long-term,
continuous noise leading to long-term physiological stress responses in
marine mammals.
The estimates calculated using the behavioral response function do
not differentiate between the different types of behavioral responses
that rise to the level of Level B harassments. As described in the
Navy's application, the Navy identified (with NMFS' input) the types of
behaviors that would be considered a take (moderate behavioral
responses as characterized in Southall et al., 2007 (e.g., altered
migration paths or dive profiles, interrupted nursing, breeding or
feeding, or avoidance) that also would be expected to continue for the
duration of an exposure). The Navy then compiled the available data
indicating at what received levels and distances those responses have
occurred, and used the indicated literature to build biphasic
behavioral response curves that are used to predict how many instances
of Level B behavioral harassment occur in a day. Take estimates alone
do not provide information regarding the potential fitness or other
biological consequences of the reactions on the affected individuals.
We therefore consider the available activity-specific, environmental,
and species-specific information to determine the likely nature of the
modeled behavioral responses and the potential fitness consequences for
affected individuals.
Use of sonar and other transducers would typically be transient and
temporary. The majority of acoustic effects to mysticetes from sonar
and other active sound sources during testing and training activities
would be primarily from ASW events. It is important to note although
ASW is one of the warfare areas of focus during MTEs, there are
significant periods when active ASW sonars are not in use.
Nevertheless, behavioral reactions are assumed more likely to be
significant during MTEs than during other ASW activities due to the
duration (i.e., multiple days), scale (i.e., multiple sonar platforms),
and use of high-power hull-mounted sonar in the MTEs. In other words,
in the range of potential behavioral effects that might expect to be
part of a response that qualifies as an instance Level B behavioral
harassment (which by nature of the way it is modeled/counted, occurs
within one day), the less severe end might include exposure to
comparatively lower levels of a sound, at a detectably greater distance
from the animal, for a few or several minutes, and that could result in
a behavioral response such as avoiding an area that an animal would
otherwise have chosen to move through or feed in for some amount of
time or breaking off one or a few feeding bouts. More severe effects
could occur when the animal gets close enough to the source to receive
a comparatively higher level, is exposed continuously to one source for
a longer time, or is exposed intermittently to different sources
throughout a day. Such effects might result in an animal having a more
severe flight response and leaving a larger area for a day or more or
potentially losing feeding opportunities for a day. However, such
severe behavioral effects are expected to occur infrequently.
To help assess this, for sonar (LFAS/MFAS/HFAS) used in the AFTT
Study Area, the Navy provided information estimating the percentage of
animals that may be taken by Level B harassment under each behavioral
response function that would occur within 6-dB increments (percentages
discussed below in the Group and Species-Specific Analyses section). As
mentioned above, all else being equal, an animal's exposure to a higher
received level is more likely to result in a behavioral response that
is more likely to lead to adverse effects, which could more likely
accumulate to impacts on reproductive success or survivorship of the
animal, but other contextual factors (such as distance) are important
also. The majority of Level B harassment takes are expected to be in
the form of milder responses (i.e., lower-level exposures that still
rise to the level of take, but would likely be less severe in the range
of responses that qualify as take) of a generally shorter duration. We
anticipate more severe effects from takes when animals are exposed to
higher received levels or at closer proximity to the source. Because
stocks belonging to the same species and species belonging to taxa that
share common characteristics are likely to respond and be affected in
similar ways, these discussions are presented within each species group
below in the Group and Species-Specific Analyses section. Specifically,
given a range of behavioral responses that may be classified as Level B
harassment, to the degree that higher received levels are expected to
result in more severe behavioral responses, only a smaller percentage
of the anticipated Level B harassment from Navy activities might
necessarily be expected to potentially result in more severe responses
(see the Group and Species-Specific Analyses section below for more
detailed information). To fully understand the likely impacts of the
predicted/authorized take on an individual (i.e., what is the
likelihood or degree of fitness impacts), one must look closely at the
available contextual
[[Page 57213]]
information, such as the duration of likely exposures and the likely
severity of the exposures (e.g., whether they will occur for a longer
duration over sequential days or the comparative sound level that will
be received). Moore and Barlow (2013) emphasizes the importance of
context (e.g., behavioral state of the animals, distance from the sound
source, etc.) in evaluating behavioral responses of marine mammals to
acoustic sources.
Diel Cycle
As noted previously, many animals perform vital functions, such as
feeding, resting, traveling, and socializing on a diel cycle (24-hour
cycle). Behavioral reactions to noise exposure, when taking place in a
biologically important context, such as disruption of critical life
functions, displacement, or avoidance of important habitat, are more
likely to be significant if they last more than one diel cycle or recur
on subsequent days (Southall et al., 2007). Henderson et al., 2016
found that ongoing smaller scale events had little to no impact on
foraging dives for Blainville's beaked whale, while multi-day training
events may decrease foraging behavior for Blainville's beaked whale
(Manzano-Roth et al., 2016). Consequently, a behavioral response
lasting less than one day and not recurring on subsequent days is not
considered severe unless it could directly affect reproduction or
survival (Southall et al., 2007). Note that there is a difference
between multiple-day substantive behavioral reactions and multiple-day
anthropogenic activities. For example, just because an at-sea exercise
lasts for multiple days does not necessarily mean that individual
animals are either exposed to those exercises for multiple days or,
further, exposed in a manner resulting in a sustained multiple day
substantive behavioral response. Large multi-day Navy exercises such as
ASW activities, typically include vessels that are continuously moving
at speeds typically 10-15 kn, or higher, and likely cover large areas
that are relatively far from shore (typically more than 3 nmi from
shore) and in waters greater than 600 ft deep. Additionally marine
mammals are moving as well, which would make it unlikely that the same
animal could remain in the immediate vicinity of the ship for the
entire duration of the exercise. Further, the Navy does not necessarily
operate active sonar the entire time during an exercise. While it is
certainly possible that these sorts of exercises could overlap with
individual marine mammals multiple days in a row at levels above those
anticipated to result in a take, because of the factors mentioned
above, it is considered unlikely for the majority of takes. However, it
is also worth noting that the Navy conducts many different types of
noise-producing activities over the course of the year and it is likely
that some marine mammals will be exposed to more than one and taken on
multiple days, even if they are not sequential.
Durations of Navy activities utilizing tactical sonar sources and
explosives vary and are fully described in Appendix A of the AFTT FEIS/
OEIS. Sonar used during ASW would impart the greatest amount of
acoustic energy of any category of sonar and other transducers analyzed
in the Navy's rulemaking/LOA application and include hull-mounted,
towed, sonobuoy, helicopter dipping, and torpedo sonars. Most ASW
sonars are MFAS (1-10 kHz); however, some sources may use higher or
lower frequencies. ASW training activities using hull mounted sonar
proposed for the AFTT Study Area generally last for only a few hours.
Some ASW training and testing can generally last for 2-10 days, or as
much as 21 days for an MTE-Large Integrated ASW (see Table 4). For
these multi-day exercises there will typically be extended intervals of
non-activity in between active sonar periods. Because of the need to
train in a large variety of situations, the Navy does not typically
conduct successive ASW exercises in the same locations. Given the
average length of ASW exercises (times of sonar use) and typical vessel
speed, combined with the fact that the majority of the cetaceans would
not likely remain in proximity to the sound source, it is unlikely that
an animal would be exposed to LFAS/MFAS/HFAS at levels or durations
likely to result in a substantive response that would then be carried
on for more than one day or on successive days.
Most planned explosive events are scheduled to occur over a short
duration (1-8 hours); however, the explosive component of the activity
only lasts for minutes (see Tables 4 through 7). Although explosive
exercises may sometimes be conducted in the same general areas
repeatedly, because of their short duration and the fact that they are
in the open ocean and animals can easily move away, it is similarly
unlikely that animals would be exposed for long, continuous amounts of
time, or demonstrate sustained behavioral responses. Although SINKEXs
may last for up to 48 hrs (4-8 hrs, possibly 1-2 days), they are almost
always completed in a single day and only one event is planned annually
for the AFTT training activities. They are stationary and conducted in
deep, open water where fewer marine mammals would typically be expected
to be encountered. They also have shutdown procedures and rigorous
monitoring, i.e., during the activity, the Navy conducts passive
acoustic monitoring and visually observes for marine mammals 90 min
prior to the first firing, during the event, and 2 hrs after sinking
the vessel. All of these factors make it unlikely that individuals
would be exposed to the exercise for extended periods or on consecutive
days.
Last, as described previously, Navy modeling uses the best
available science to predict the instances of exposure above certain
acoustic thresholds, which are equated, as appropriate, to harassment
takes (and further corrected to account for mitigation and avoidance).
As further noted, for active acoustics it is more challenging to parse
out the number of individuals taken by Level B harassment from this
larger number of instances. One method that NMFS can use to help better
understand the overall scope of the impacts is to compare these total
instances of take against the abundance of that stock. For example, if
there are 100 takes in a population of 100, one can assume either that
every individual was exposed above acoustic thresholds in no more than
one day, or that some smaller number were exposed in one day but a few
of those individuals were exposed multiple days within a year. Where
the instances of take exceed 100 percent of the population, multiple
takes of some individuals are predicted and expected to occur within a
year. Generally speaking, the higher the number of takes as compared to
the population abundance, the more multiple takes of individuals are
likely, and the higher the actual percentage of individuals in the
population that are likely taken at least once in a year. We look at
this comparative metric to give us a relative sense of where larger
portions of the stocks are being taken by Navy activities and where
there is a higher likelihood that the same individuals are being taken
across multiple days and where that number of days might be higher. At
a minimum, it provides a relative picture of the scale of impacts to
each stock.
In short, we expect that the total anticipated takes represent
exposures of a smaller number of individuals of which some would be
exposed multiple times, but based on the nature of the Navy's
activities and the movement patterns of marine mammals, it is unlikely
that any particular subset would be taken over more than several
sequential days (with a few possible
[[Page 57214]]
exceptions discussed in the stock-specific conclusions).
When calculating the proportion of a population affected by takes
(e.g., the number of takes divided by population abundance), it is
important to choose an appropriate population estimate to make the
comparison. In this case, we appropriately compared the predicted takes
to abundance estimates generated from the same underlying density
estimate used to calculate the predicted take (described earlier and
below), versus abundance estimates from the SARs, which are not based
on the same data (and are more limited) and would not be appropriate
for this purpose. The SARs provide the official population estimate for
a given species or stock in U.S. waters in a given year and are
typically based solely on the most recent survey data, but they are not
the only information used to estimate takes. Instead here modeled
density layers are used, which incorporate the SAR surveys and other
survey data. If takes are calculated from another dataset (for example
a broader sample of survey data) and compared to the population
estimate from the SARs, it would misrepresent the percent of the
population affected because of different population baselines. Note
that to further refine NMFS' comparison of take to the population
(which may be found in the Group and Species-Specific Analyses section
below), comparisons are made both within the U.S. EEZ only (where
density estimates have lesser uncertainty and takes are notably
greater) and across the whole AFTT Study Area, which offers a more
comprehensive comparison for many stocks.
The Navy uses, and NMFS concurs with, the use of spatially and
temporally explicit density models (based on the best available
science) that vary in space and time to estimate their potential
impacts to species. See the U.S. Navy Marine Species Density Database
Phase III for the Atlantic Fleet Training and Testing Area Technical
Report to learn more on how the Navy selects density information and
the models selected for individual species. These models may better
characterize how Navy impacts can vary in space and time but often
predict different population abundances than the SARs.
Models may predict different population abundances for many
reasons. The models may be based on different data sets or different
temporal predictions may be made. The SARs are often based on single
years of NMFS surveys whereas the models used by the Navy generally
include multiple years of survey data from NMFS, the Navy, and other
sources. To present a single, best estimate, the SARs often use a
single season survey where they have the best spatial coverage
(generally summer). Navy models often use predictions for multiple
seasons, where appropriate for the species, even when survey coverage
in non-summer seasons is limited, to characterize impacts over multiple
seasons as Navy activities may occur in any season. Predictions may be
made for different spatial extents. Many different, but equally valid,
habitat and density modeling techniques exist and these can also be the
cause of differences in population predictions. Differences in
population estimates may be caused by a combination of these factors.
Even similar estimates should be interpreted with caution and
differences in models must be fully understood before drawing
conclusions.
The AFTT Study Area covers a broad area in the western North
Atlantic Ocean and the GOMEX. The Navy has tried to find density
estimates for this entire area, where appropriate given species
distributions. However, only a small number of Navy training and
testing activities occur outside of the U.S. EEZ. As such, NMFS
believes that the average population predicted by Navy models across
seasons in the U.S. EEZ is the best baseline to use when analyzing
takes as a proportion of population. This is a close approximation of
the actual population used in Navy take analysis as occasionally sound
can propagate outside of the U.S. EEZ and a small number of exercises
do occur in international waters. This approximation will be less
accurate for species with major changes in density close to the U.S.
EEZ or far offshore. Models of individual species or stocks were not
available for all species and takes had to be proportioned to the
species or stock level from takes predicted on models at higher
taxonomic levels. See the various Navy technical reports mentioned
previously in this rule that detail take estimation and density model
selection proposed by Navy and adopted by NMFS for details.
TTS
NMFS and the Navy have estimated that some individuals of some
species of marine mammals may sustain some level of TTS from active
sonar. As mentioned previously, in general, TTS can last from a few
minutes to days, be of varying degree, and occur across various
frequency bandwidths, all of which determine the severity of the
impacts on the affected individual, which can range from minor to more
severe. Tables 72-77 indicate the number of takes by TTS that may be
incurred by different stocks from exposure to active sonar and
explosives. No TTS is estimated from air guns or pile driving
activities because it is unlikely to occur. The TTS sustained by an
animal is primarily classified by three characteristics:
1. Frequency--Available data (of mid-frequency hearing specialists
exposed to mid- or high-frequency sounds; Southall et al., 2007)
suggest that most TTS occurs in the frequency range of the source up to
one octave higher than the source (with the maximum TTS at \1/2\ octave
above). The Navy's MF sources, which are the highest power and most
numerous sources and the ones that cause the most take, utilize the 1-
10 kHz frequency band, which suggests that if TTS were to be induced by
any of these MF sources it would be in a frequency band somewhere
between approximately 2 and 20 kHz, which is in the range of
communication calls for many odontocetes. There are fewer hours of HF
source use and the sounds would attenuate more quickly, plus they have
lower source levels, but if an animal were to incur TTS from these
sources, it would cover a higher frequency range (sources are between
10 and 100 kHz, which means that TTS could range up to 200 kHz), which
could overlap with the range in which some odontocetes communicate or
echolocate. However, HF systems are typically used less frequently and
for shorter time periods than surface ship and aircraft MF systems, so
TTS from these sources is unlikely. There are fewer LF sources and the
majority are used in the more readily mitigated testing environment,
and TTS from LF sources would most likely occur below 2 kHz, which is
in the range where many mysticetes communicate and also where other
non-communication auditory cues are located (waves, snapping shrimp,
fish prey). TTS from explosives would be broadband. Also of note, the
majority of sonar sources from which TTS may be incurred occupy a
narrow frequency band, which means that the TTS incurred would also be
across a narrower band (i.e., not affecting the majority of an animal's
hearing range). This frequency provides information about the cues to
which a marine mammal may be temporarily less sensitive, but not the
degree or duration of sensitivity loss.
2. Degree of the shift (i.e., by how many dB the sensitivity of the
hearing is reduced)--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
[[Page 57215]]
occur when the peak dB level is higher or the duration is longer). The
threshold for the onset of TTS was discussed previously in this rule.
An animal would have to approach closer to the source or remain in the
vicinity of the sound source appreciably longer to increase the
received SEL, which would be difficult considering the Lookouts and the
nominal speed of an active sonar vessel (10-15 kn) and the relative
motion between the sonar vessel and the animal. In the TTS studies
discussed in the proposed rule, some using exposures of almost an hour
in duration or up to 217 SEL, most of the TTS induced was 15 dB or
less, though Finneran et al. (2007) induced 43 dB of TTS with a 64-
second exposure to a 20 kHz source. However, since any hull-mounted
sonar such as the SQS-53 (MFAS), emits a ping typically every 50
seconds, incurring those levels of TTS is highly unlikely. In short,
given the anticipated duration and levels of sound exposure, we would
not expect marine mammals to incur more than relatively low levels of
TTS (i.e., single digits of sensitivity loss). To add context to this
degree of TTS, individual marine mammals may regularly experience
variations of 6dB differences in hearing sensitivity across time
(Finneran et al., 2000; Schlundt et al., 2000; Finneran et al., 2002).
3. Duration of TTS (recovery time)--In the TTS laboratory studies
(as discussed in the proposed rule), some using exposures of almost an
hour in duration or up to 217 SEL, almost all individuals recovered
within 1 day (or less, often in minutes), although in one study
(Finneran et al., 2007), recovery took 4 days.
Based on the range of degree and duration of TTS reportedly induced
by exposures to non-pulse sounds of energy higher than that to which
free-swimming marine mammals in the field are likely to be exposed
during LFAS/MFAS/HFAS training and testing exercises in the AFTT Study
Area, it is unlikely that marine mammals would ever sustain a TTS from
MFAS that alters their sensitivity by more than 20 dB for more than a
few hours--and any incident of TTS would likely be far less severe due
to the short duration of the majority of the events and the speed of a
typical vessel, especially given the fact that the higher power sources
resulting in TTS are predominantly intermittent, which have been shown
to result in shorter durations of TTS. Also, for the same reasons
discussed in the Analysis and Negligible Impact Determination--Diel
Cycle section, and because of the short distance within which animals
would need to approach the sound source, it is unlikely that animals
would be exposed to the levels necessary to induce TTS in subsequent
time periods such that their recovery is impeded. Additionally, though
the frequency range of TTS that marine mammals might sustain would
overlap with some of the frequency ranges of their vocalization types,
the frequency range of TTS from MFAS (the source from which TTS would
most likely be sustained because the higher source level and slower
attenuation make it more likely that an animal would be exposed to a
higher received level) would not usually span the entire frequency
range of one vocalization type, much less span all types of
vocalizations or other critical auditory cues.
Tables 72-77 indicate the number of incidental takes by TTS that
are likely to result from the Navy's activities. As a general point,
the majority of these TTS takes are the result of exposure to hull-
mounted MFAS (MF narrower band sources), with fewer from explosives
(broad-band lower frequency sources), and even fewer from LF or HF
sonar sources (narrower band). As described above, we expect the
majority of these takes to be in the form of mild (single-digit),
short-term (minutes to hours), narrower band (only affecting a portion
of the animals hearing range) TTS. This means that for one to several
times per year, for several minutes to maybe a few hours (high end)
each, a taken individual will have slightly diminished hearing
sensitivity (slightly more than natural variation, but nowhere near
total deafness) more often within a narrower mid- to higher frequency
band that may overlap part (but not all) of a communication,
echolocation, or predator range, but sometimes across a lower or
broader bandwidth. The significance of TTS is also related to the
auditory cues that are germane within the time period that the animal
incurs the TTS--for example, if an odontocete has TTS at echolocation
frequencies, but incurs it at night when it is resting and not feeding,
for example, it is not impactful. In short, the expected results of any
one of these small number of mild TTS occurrences could be that (1) it
does not overlap signals that are pertinent to that animal in the given
time period, (2) it overlaps parts of signals that are important to the
animal, but not in a manner that impairs interpretation, or (3) it
reduces detectability of an important signal to a small degree for a
short amount of time--in which case the animal may be aware and be able
to compensate (but there may be slight energetic cost), or the animal
may have some reduced opportunities (e.g., to detect prey) or reduced
capabilities to react with maximum effectiveness (e.g., to detect a
predator or navigate optimally). However, given the small number of
times that any individual might incur TTS, the low degree of TTS and
the short anticipated duration, and the low likelihood that one of
these instances would occur in a time period in which the specific TTS
overlapped the entirety of a critical signal, it is unlikely that TTS
of the nature expected to result from Navy activities would result in
behavioral changes or other impacts that would impact any individual's
(of any hearing sensitivity) reproduction or survival.
Acoustic Masking or Communication Impairment
The ultimate potential impacts of masking on an individual (if it
were to occur) are similar to those discussed for TTS, but an important
difference is that masking only occurs during the time of the signal
(and potential secondary arrivals of indirect rays), versus TTS, which
continues beyond the duration of the signal. Fundamentally, masking is
referred to as a chronic effect because one of the key harmful
components of masking is its duration--the fact that an animal would
have reduced ability to hear or interpret critical cues becomes much
more likely to cause a problem the longer it is occurring. Also
inherent in the concept of masking is the fact that the potential for
the effect is only present during the times that the animal and the
source are in close enough proximity for the effect to occur (and
further, this time period would need to coincide with a time that the
animal was utilizing sounds at the masked frequency). As our analysis
has indicated, because of the relative movement of vessels and the
species involved in this rule, we do not expect the exposures with the
potential for masking to be of a long duration. In addition, masking is
fundamentally more of a concern at lower frequencies (because low
frequency signals propagate significantly further than higher
frequencies and because they are more likely to overlap both the
narrower LF calls of mysticetes, as well as many non-communication cues
such as fish and invertebrate prey, and geologic sounds that inform
navigation) and from continuous sources where there is no quiet time
between pulses within which auditory signals can be detected and
interpreted. For these reasons, dense aggregations of, and long
exposure to, continuous LF activity, such as shipping or seismic airgun
operation (the latter
[[Page 57216]]
signal changes from intermittent to continuous at distance), are much
more of a concern for masking, whereas comparatively short-term
exposure to the predominantly intermittent pulses of MFAS or HFAS, or
explosions are not expected to result in a meaningful amount of
masking. While the Navy occasionally uses LF and more continuous
sources, it is not in the contemporaneous aggregate amounts that would
accrue to a masking concern. Specifically, the nature of the activities
and sound sources used by the Navy do not support the likelihood of a
level of masking accruing that would have the potential to affect
reproductive success or survival. Additional detail is provided below.
Standard hull-mounted MFAS typically ping every 50 seconds for
hull-mounted sources. Some hull-mounted anti-submarine sonars can also
be used in an object detection mode known as ``Kingfisher'' mode (e.g.,
used on vessels when transiting to and from port) where pulse length is
shorter but pings are much closer together in both time and space since
the vessel goes slower when operating in this mode. For the majority of
sources, the pulse length is significantly shorter than hull-mounted
active sonar, on the order of several microseconds to tens of
milliseconds. Some of the vocalizations that many marine mammals make
are less than one second long, so, for example with hull-mounted sonar,
there would be a 1 in 50 chance (only if the source was in close enough
proximity for the sound to exceed the signal that is being detected)
that a single vocalization might be masked by a ping. However, when
vocalizations (or series of vocalizations) are longer than one second,
masking would not occur. Additionally, when the pulses are only several
microseconds long, the majority of most animals' vocalizations would
not be masked.
Most ASW sonars and countermeasures use MF frequencies and a few
use LF and HF frequencies. Most of these sonar signals are limited in
the temporal, frequency, and spatial domains. The duration of most
individual sounds is short, lasting up to a few seconds each. A few
systems operate with higher duty cycles or nearly continuously, but
they typically use lower power, which means that an animal would have
to be closer, or in the vicinity for a longer time, to be masked to the
same degree as by a higher level source. Nevertheless, masking could
occasionally occur at closer ranges to these high-duty cycle and
continuous active sonar systems, but as described previously, it would
be expected to be of a short duration when the source and animal are in
close proximity. Most ASW activities are geographically dispersed and
last for only a few hours, often with intermittent sonar use even
within this period. Most ASW sonars also have a narrow frequency band
(typically less than one-third octave). These factors reduce the
likelihood of sources causing significant masking. HF signals (above 10
kHz) attenuate more rapidly in the water due to absorption than do
lower frequency signals, thus producing only a very small zone of
potential masking. If masking or communication impairment were to occur
briefly, it would more likely be in the frequency range of MFAS (the
more powerful source), which overlaps with some odontocete
vocalizations; however, it would likely not mask the entirety of any
particular vocalization, communication series, or other critical
auditory cue, because the signal length, frequency, and duty cycle of
the MFAS/HFAS signal does not perfectly resemble the characteristics of
any marine mammal's vocalizations.
Masking could occur briefly in mysticetes due to the overlap
between their low-frequency vocalizations and the dominant frequencies
of airgun pulses. However, masking in odontocetes or pinnipeds is less
likely unless the airgun activity is in close range when the pulses are
more broadband. Masking is more likely to occur in the presence of
broadband, relatively continuous noise sources such as during vibratory
pile driving and from vessels, however, the duration of temporal and
spatial overlap with any individual animal and the spatially separated
sources that the Navy uses would not be expected to result in more than
short-term, low impact masking that would not affect reproduction or
survival.
The other sources used in Navy training and testing, many of either
higher frequencies (meaning that the sounds generated attenuate even
closer to the source) or lower amounts of operation, are similarly not
expected to result in masking. For the reasons described here, any
limited masking that could potentially occur would be minor and short-
term and not expected to have adverse impacts on reproductive success
or survivorship.
PTS from Sonar Acoustic Sources and Explosives and Tissue Damage From
Explosives
Tables 72-77 indicate the number of individuals of each of species
and stock for which Level A harassment in the form of PTS resulting
from exposure to active sonar and/or explosives is estimated to occur.
Tables 72-77 also indicate the number of individuals of each of species
and stock for which Level A harassment in the form of tissue damage
resulting from exposure to explosive detonations is estimated to occur.
The number of individuals to potentially incur PTS annually (from sonar
and explosives) for the predicted species ranges from 0 to 454 (454 for
harbor porpoise), but is more typically a few up to 31 (with the
exception of a few species). The number of individuals to potentially
incur tissue damage from explosives for the predicted species ranges
from 0 to 36 (36 for short-beaked common dolphin), but is typically
zero in most cases.
NMFS believes that many marine mammals would deliberately avoid
exposing themselves to the received levels of active sonar necessary to
induce injury by moving away from or at least modifying their path to
avoid a close approach. Additionally, in the unlikely event that an
animal approaches the sonar-emitting vessel at a close distance, NMFS
believes that the mitigation measures (i.e., shutdown/powerdown zones
for active sonar) would typically ensure that animals would not be
exposed to injurious levels of sound. As discussed previously, the Navy
utilizes both aerial (when available) and passive acoustic monitoring
(during ASW exercises, passive acoustic detections are used as a cue
for Lookouts' visual observations when passive acoustic assets are
already participating in an activity) in addition to Lookouts on
vessels to detect marine mammals for mitigation implementation. As
discussed previously, the Navy utilized a post-modeling quantitative
assessment to adjust the take estimates based on avoidance and the
likely success of some portion of the mitigation measures. As is
typical in predicting biological responses, it is challenging to
predict exactly how avoidance and mitigation will affect the take of
marine mammals, and therefore the Navy erred on the side of caution in
choosing a method that would more likely still overestimate the take by
PTS to some degree. Nonetheless, these modified Level A harassment take
numbers are the most appropriate estimates of what is likely to occur,
and we have analyzed them.
If a marine mammal is able to approach a surface vessel within the
distance necessary to incur PTS in spite of the mitigation measures,
the likely speed of the vessel (nominally 10-15 kn) and relative motion
of the vessel would make it very difficult for the
[[Page 57217]]
animal to remain in range long enough to accumulate enough energy to
result in more than a mild case of PTS. As mentioned previously and in
relation to TTS, the likely consequences to the health of an individual
that incurs PTS can range from mild to more serious dependent upon the
degree of PTS and the frequency band it is in. The majority of any PTS
incurred as a result of exposure to Navy sources would be expected to
be in the 2-20 kHz region (resulting from the most powerful hull-
mounted sonar) and could overlap a small portion of the communication
frequency range of many odontocetes, whereas other marine mammal groups
have communication calls at lower frequencies. Regardless of the
frequency band though, the more important point in this case is that
any PTS accrued as a result of exposure to Navy activities would be
expected to be of a small amount (single digits). Permanent loss of
some degree of hearing is a normal occurrence for older animals, and
many animals are able to compensate for the shift, both in old age or
at younger ages as the result of stressor exposure. While a small loss
of hearing sensitivity may include some degree of energetic costs for
compensating or may mean some small loss of opportunities or detection
capabilities, at the expected scale it would be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival.
We also assume that the acoustic exposures sufficient to trigger
onset PTS (or TTS) would be accompanied by physiological stress
responses, although the sound characteristics that correlate with
specific stress responses in marine mammals are poorly understood. As
discussed above for Level B behavioral harassment, we would not expect
the Navy's generally short-term, intermittent, and (in the case of
sonar) transitory activities to create conditions of long-term,
continuous noise leading to long-term physiological stress responses in
marine mammals that could affect reproduction or survival.
The Navy implements mitigation measures (described in the
Mitigation Measures section) during explosive activities, including
delaying detonations when a marine mammal is observed in the mitigation
zone. Nearly all explosive events will occur during daylight hours to
improve the sightability of marine mammals and thereby improve
mitigation effectiveness. Observing for marine mammals during the
explosive activities will include aerial and passive acoustic detection
methods (when they are available and part of the activity) before the
activity begins, in order to cover the mitigation zones that can range
from 200 yds (183 m) to 2,500 yds (2,286 m) depending on the source
(e.g., explosive sonobuoy, explosive torpedo, explosive bombs), and 2.5
nmi for sinking exercise (see Tables 48--57).
Observing for marine mammals during ship shock (which includes
Lookouts in aircraft or on multiple vessels) begins 5 hrs before the
detonation and extends 3.5 nmi from the ship's hull (see Table 58). The
required mitigation is expected to reduce the likelihood that all of
the takes will occur. Some, though likely not all, of that reduction
was quantified in the Navy's quantitative assessment of mitigation;
however, we analyze the type and amount of take by Level A harassment
in Tables 39 through 41. Generally speaking, tissue damage injuries
from explosives could range from minor lung injuries (the most
sensitive organ and first to be affected) that consist of some short-
term reduction of health and fitness immediately following the injury
that heals quickly and will not have any discernible long-term effects,
up to more impactful permanent injuries across multiple organs that may
cause health problems and negatively impact reproductive success (i.e.,
increase the time between pregnancies or even render reproduction
unlikely) but fall just short of a ``serious injury'' by virtue of the
fact that the animal is not expected to die. Nonetheless, due to the
Navy's mitigation and detection capabilities, we would not expect
marine mammals to typically be exposed to a more severe blast located
closer to the source--so the impacts likely would be on the less severe
end. It is still difficult to evaluate how these injuries may or may
not impact an animal's fitness, however, these effects are only seen in
very small numbers (single digits with the exception of two stocks) and
in species of fairly high to very high abundances. In short, it is
unlikely that any, much less all, of the small number of injuries
accrued to any one stock would result in reduced reproductive success
of any individuals, but even if a few did, the status of the affected
stocks are such that it would not be expected to adversely impact rates
of reproduction.
Serious Injury and Mortality
NMFS is authorizing a very small number of serious injuries or
mortalities that could occur in the event of a ship strike or as a
result of marine mammal exposure to explosive detonations. We note here
that the takes from potential ship strikes or explosive exposures
enumerated below could result in non-serious injury, but their worst
potential outcome (mortality) is analyzed for the purposes of the
negligible impact determination.
In addition, we discuss here the connection, and differences,
between the legal mechanisms for authorizing incidental take under
section 101(a)(5) for activities such as the Navy's testing and
training in the AFTT Study Area, and for authorizing incidental take
from commercial fisheries. In 1988, Congress amended the MMPA's
provisions for addressing incidental take of marine mammals in
commercial fishing operations. Congress directed NMFS to develop and
recommend a new long-term regime to govern such incidental taking (see
MMC, 1994). The need to develop a system suited to the unique
circumstances of commercial fishing operations led NMFS to suggest a
new conceptual means and associated regulatory framework. That concept,
PBR, and a system for developing plans containing regulatory and
voluntary measures to reduce incidental take for fisheries that exceed
PBR were incorporated as sections 117 and 118 in the 1994 amendments to
the MMPA.
PBR is defined in section 3 of the MMPA as ``the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
OSP and, although not controlling, can be one measure considered among
other factors when evaluating the effects of M/SI on a marine mammal
species or stock during the section 101(a)(5)(A) process. OSP is
defined in section 3 of the MMPA as ``the number of animals which will
result in the maximum productivity of the population or the species,
keeping in mind the carrying capacity of the habitat and the health of
the ecosystem of which they form a constituent element.'' Through
section 2, an overarching goal of the statute is to ensure that each
species or stock of marine mammal is maintained at or returned to its
OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (Nmin), the
productivity rate of the stock at a small population size, and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the
[[Page 57218]]
goals of the MMPA. For example, calculation of the minimum population
estimate (Nmin) incorporates the level of precision and
degree of variability associated with abundance information, while also
providing (typically the 20th percentile of a log-normal distribution
of the population estimate) reasonable assurance that the stock size is
equal to or greater than the estimate (Barlow et al., 1995). In
general, the three factors are developed on a stock-specific basis in
consideration of one another in order to produce conservative PBR
values that appropriately account for both imprecision that may be
estimated, as well as potential bias stemming from lack of knowledge
(Wade, 1998).
Congress called for PBR to be applied within the management
framework for commercial fishing incidental take under section 118 of
the MMPA. As a result, PBR cannot be applied appropriately outside of
the section 118 regulatory framework without consideration of how it
applies within the section 118 framework, as well as how the other
statutory management frameworks in the MMPA differ from the framework
in section 118. PBR was not designed and is not used as an absolute
threshold limiting commercial fisheries. Rather, it serves as a means
to evaluate the relative impacts of those activities on marine mammal
stocks. Even where commercial fishing is causing M/SI at levels that
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the
commercial fishing context under section 118, NMFS may develop a take
reduction plan, usually with the assistance of a take reduction team.
The take reduction plan will include measures to reduce and/or minimize
the taking of marine mammals by commercial fisheries to a level below
the stock's PBR. That is, where the total annual human-caused M/SI
exceeds PBR, NMFS is not required to halt fishing activities
contributing to total M/SI but rather utilizes the take reduction
process to further mitigate the effects of fishery activities via
additional bycatch reduction measures. In other words, under section
118 of the MMPA, PBR does not serve as a strict cap on the operation of
commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the
impacts of incidental take from activities other than commercial
fisheries, using it as the sole reason to deny (or issue) incidental
take authorization for those activities would be inconsistent with
Congress's intent under section 101(a)(5) and the use of PBR under
section 118. The standard for authorizing incidental take under section
101(a)(5) continues to be, among other things, whether the total taking
will have a negligible impact on the species or stock. When Congress
amended the MMPA in 1994 to add section 118 for commercial fishing, it
did not alter the standards for authorizing non-commercial fishing
incidental take under section 101(a)(5), implicitly acknowledging that
the negligible impact standard under section 101(a)(5) is separate from
the PBR metric under section 118. In fact, in 1994 Congress also
amended section 101(a)(5)(E) (a separate provision governing commercial
fishing incidental take for species listed under the ESA) to add
compliance with the new section 118 but retained the requirement for a
negligible impact finding under section 101(a)(5)(A), showing that
Congress understood that the determination of negligible impact and
application of PBR may share certain features but are, in fact,
different.
Since the introduction of PBR, NMFS has used the concept almost
entirely within the context of implementing sections 117 and 118 and
other commercial fisheries management-related provisions of the MMPA.
Although there are a few examples where PBR has informed agency
deliberations under other sections of the MMPA, where PBR has been
raised it has been a consideration and not dispositive to the issue at
hand. Further, the agency's thoughts regarding the potential role of
PBR in relation to other programs of the MMPA have evolved since the
agency's earlier applications to section 101(a)(5) decisions. The MMPA
requires that PBR be estimated in SARs and that it be used in
applications related to the management of take incidental to commercial
fisheries (i.e., the take reduction planning process described in
section 118 of the MMPA and the determination of whether a stock is
``strategic'' as defined in section 3), but nothing in the statute
requires the application of PBR outside the management of commercial
fisheries interactions with marine mammals.
Nonetheless, NMFS recognizes that as a quantitative metric, PBR may
be useful as a consideration when evaluating the impacts of other
human-caused activities on marine mammal stocks. Outside the commercial
fishing context, and in consideration of all known human-caused
mortality, PBR can help inform the potential effects of M/SI requested
to be authorized under 101(a)(5)(A). As noted by NMFS and the USFWS in
our implementation regulations for the 1986 amendments to the MMPA (54
FR 40341, September 29, 1989), the Services consider many factors, when
available, in making a negligible impact determination, including, but
not limited to, the status of the species or stock relative to OSP (if
known); whether the recruitment rate for the species or stock is
increasing, decreasing, stable, or unknown; the size and distribution
of the population; and existing impacts and environmental conditions.
In this multi-factor analysis, PBR can be a useful indicator for when,
and to what extent, the agency should take an especially close look at
the circumstances associated with the potential mortality, along with
any other factors that could influence annual rates of recruitment or
survival.
When considering PBR during evaluation of effects of M/SI under
section 101(a)(5)(A), we first calculate a metric for each species or
stock that incorporates information regarding ongoing anthropogenic M/
SI into the PBR value (i.e., PBR minus the total annual anthropogenic
mortality/serious injury estimate), which is called ``residual PBR.''
(Wood et al., 2012). We focus our analysis on residual PBR because it
incorporates anthropogenic mortality occurring from other sources. We
then consider how the anticipated or potential incidental M/SI from the
activities being evaluated compares to residual PBR using the following
framework.
Where a specified activity could cause (and NMFS is contemplating
authorizing) incidental M/SI that is less than 10 percent of residual
PBR (the ``insignificance threshold, see below), we consider M/SI from
the specified activities to represent an insignificant incremental
increase in ongoing anthropogenic M/SI for the marine mammal stock in
question that alone (i.e., in the absence of any other take) will not
adversely affect annual rates of recruitment and survival. As such,
this amount of M/SI would not be expected to affect rates of
recruitment or survival in a manner resulting in more than a negligible
impact on the affected stock unless there are other factors that could
affect reproduction or survival, such as Level A and/or Level B
harassment, or considerations such as information that illustrates the
uncertainty involved in the calculation of PBR for some stocks. In a
prior incidental take rulemaking, this threshold was identified as the
``significance threshold,'' but it is more accurately labeled an
insignificance threshold, and so we use that terminology here. Assuming
that any additional incidental take by Level A or Level B harassment
from the activities in question would not combine with the effects of
the authorized M/SI to exceed
[[Page 57219]]
the negligible impact level, the anticipated M/SI caused by the
activities being evaluated would have a negligible impact on the
species or stock. However, M/SI above the 10 percent insignificance
threshold does not indicate that the M/SI associated with the specified
activities is approaching a level that would necessarily exceed
negligible impact. Rather, the 10 percent insignificance threshold is
meant only to identify instances where additional analysis of the
anticipated M/SI is not required because the negligible impact standard
clearly will not be exceeded on that basis alone.
Where the anticipated M/SI is near, at, or above residual PBR,
consideration of other factors (positive or negative), including those
outlined above, as well as mitigation is especially important to
assessing whether the M/SI will have a negligible impact on the species
or stock. PBR is a conservative metric and not sufficiently precise to
serve as an absolute predictor of population effects upon which
mortality caps would appropriately be based. For example, in some cases
stock abundance (which is one of three key inputs into the PBR
calculation) is underestimated because marine mammal survey data within
the U.S. EEZ are used to calculate the abundance even when the stock
range extends well beyond the U.S. EEZ. An underestimate of abundance
could result in an underestimate of PBR. Alternatively, we sometimes
may not have complete M/SI data beyond the U.S. EEZ to compare to PBR,
which could result in an overestimate of residual PBR. M/SI that
exceeds PBR may still potentially be found to be negligible in light of
other factors that offset concern, especially when robust mitigation
and adaptive management provisions are included.
In Conservation Council for Hawaii v. National Marine Fisheries
Service, 97 F. Supp.3d 1210, 1225 (D. Haw. 2015), which concerned a
challenge to NMFS' issuance of letters of authorization to the Navy for
activities in an area of the Pacific Ocean known as the HSTT Study
Area, the Court reached a different conclusion, stating, ``Because any
mortality level that exceeds PBR will not allow the stock to reach or
maintain its OSP, such a mortality level could not be said to have only
a `negligible impact' on the stock.'' As described above, the Court's
statement fundamentally misunderstands the two terms and incorrectly
indicates that these concepts (PBR and ``negligible impact'') are
directly connected, when in fact nowhere in the MMPA is it indicated
that these two terms are equivalent.
Specifically, PBR was designed as a tool for evaluating mortality
and is defined as the number of animals that can be removed while
``allowing the stock to reach or maintain OSP,'' with the formula for
PBR designed to ensure that growth towards OSP is not reduced by more
than 10 percent (or equilibrate to OSP 95 percent of the time).
Separately, and without reference to PBR, NMFS' long-standing MMPA
implementing regulations state that take will have a negligible impact
when it does not ``adversely affect the species or stock through
effects on annual rates of recruitment or survival.'' OSP (to which PBR
is linked) is defined in the statute as a population which falls within
a range from the population level that is the largest supportable
within the ecosystem to the population level that results in maximum
net productivity. OSP is an aspirational goal of the overall statute
and PBR is designed to ensure minimal deviation from this overarching
goal. The ``negligible impact'' determination and finding protects
against ``adverse impacts on the affected species and stocks'' when
evaluating specific activities.
For all these reasons, even where M/SI exceeds residual PBR, it is
still possible for the take to have a negligible impact on the species
or stock. While ``allowing a stock to reach or maintain OSP'' would
ensure that NMFS approached the negligible impact standard in a
conservative and precautionary manner so that there were not ``adverse
effects on affected species or stocks,'' it is equally clear that in
some cases the time to reach this aspirational OSP could be slowed by
more than 10 percent (i.e., total human-caused mortality in excess of
PBR could be allowed) without adversely affecting a species or stock.
Another difference between the two standards is the temporal scales
upon which the terms focus. That is, OSP contemplates the incremental,
10 percent reduction in the rate to approach a goal that is tens or
hundreds of years away. The negligible impact analysis, on the other
hand, necessitates an evaluation of annual rates of recruitment or
survival to support the decision of whether to issue five-year
regulations.
Accordingly, while PBR is useful for evaluating the effects of M/SI
in section 101(a)(5)(A) determinations, it is just one consideration to
be assessed in combination with other factors and should not be
considered determinative. The accuracy and certainty around the data
that feed any PBR calculation (e.g., the abundance estimates) must be
carefully considered. This approach of using PBR as a trigger for
concern while also considering other relevant factors provides a
reasonable and appropriate means of evaluating the effects of potential
mortality on rates of recruitment and survival, while demonstrating
that it is possible to exceed PBR by some small amount and still make a
negligible impact determination under section 101(a)(5)(A).
Our evaluation of the M/SI for each of the species and stocks for
which mortality could occur follows. No mortalities or serious injuries
are anticipated from Navy's sonar activities. In addition, all
mortality authorized for some of the same species or stocks over the
next several years pursuant to our final rulemaking for the NMFS' NEFSC
has been incorporated into the residual PBR.
We first consider maximum potential incidental M/SI from Navy's
ship strike analysis for the affected mysticetes and sperm whales (see
Table 69) and from the Navy's explosive detonations for the affected
dolphin species (see Table 70) in consideration of NMFS' threshold for
identifying insignificant M/SI take. By considering the maximum
potential incidental M/SI in relation to PBR and ongoing sources of
anthropogenic mortality, we begin our evaluation of whether the
potential incremental addition of M/SI through Navy's ship strikes and
explosive detonations may affect the species' or stocks' annual rates
of recruitment or survival. We also consider the interaction of those
mortalities with incidental taking of that species or stock by
harassment pursuant to the specified activity.
Based on the methods discussed previously, NMFS believes that
mortal takes of three large whales over the course of the five-year
rule could occur, but that no more than one over the five years of any
species of humpback whale, fin whale, sei whale, minke whale, or sperm
whale (North Atlantic stock) would occur. This means an annual average
of 0.2 whales from each species or stock as described in Table 69
(i.e., 1 take over 5 years divided by 5 to get the annual number) is
planned for authorization.
[[Page 57220]]
Table 69--Summary Information Related to AFTT Ship Strike, 2018-2023
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Residual
planned PBR-PBR
Stock take by Total Fisheries interactions (Y/ Vessel collisions (Y/ NEFSC minus Stock
Species (stock) abundance serious annual M/ N); Annual rate of M/SI N); annual rate of M/SI PBR * authorized annual M/SI trend * UME (Y/N); number and
(Nbest)* injury or SI * \2\ from Fisheries from vessel collision * take and NEFSC \4\ year
mortality Interactions * (annual) authorized
\1\ take \ 3\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale (Western North Atlantic). 1,618 0.2 2.5 Y; 1.1................... Y; 1.4................. 2.5 0 0 ? N
Sei whale (Nova Scotia)............ 357 0.2 0.6 N; 0..................... Y; 0.6................. 0.5 0 -0.1 ? N
Minke Whale (Canadian East Coast).. 2,591 0.2 7.5 Y; 6.5................... Y; 1.1................. 14 1 5.5 ? Y/43; total in 2018
(27 in 2017 and 60
in 2018).
Humpback whale (Gulf of Maine)..... \5\ 896 0.2 9.8 Y; 7.1................... Y; 2.7................. 14.6 0 4.8 [uarr] Y/81; total in 2018
(26 in 2016, 33 in
2017 and 22 in
2018).
Sperm whale (North Atlantic)....... 2,288 0.2 0.8 Y; 0.6................... Y; 0.2................. 3.6 0 2.8 ? ?
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the draft 2018 SARS.
\1\ This column represents the annual take by serious injury or mortality by vessel collision and was calculated by the number of mortalities planned for authorization divided by five years
(the length of the rule and LOAs).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued
from either Navy strikes or NEFSC takes as noted in the SARs to ensure not double-counted against PBR. However, for these species, there were no takes from either Navy or NEFSC as noted in
the SARs to deduct that would be considered double-counting.
\3\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is presented in the draft 2018
SARs) and authorized take for NEFSC.
\4\ See relevant SARs for more information regarding stock status and trends.
The Navy has also requested a small number of takes by serious
injury or mortality from explosives. To calculate the annual average of
mortalities for explosives in Table 70 we used the same method as
described for vessel strikes. The annual average is the number of takes
divided by five years to get the annual number.
The following species takes by serious injury or mortality from
explosions (ship shock trials) are being authorized by NMFS. A total of
nine mortalities (one Atlantic white-sided dolphin, one pantropical
spotted dolphin, one spinner dolphin, and six short-beaked common
dolphins) are possible over the 5-year period and therefore the 0.2
mortalities annually for Atlantic white-sided dolphin, pantropical
spotted dolphin, and spinner dolphin and 1.2 mortalities annually for
short-beaked common dolphin are described in Table 70.
Table 70--Summary Information Related to AFTT Serious Injury or Mortality From Explosives (Ship Shock Trials), 2018-2023
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual
planned Fisheries Residual PBR-
Stock take by Total interactions NEFSC PBR minus
Species (stock) abundance serious annual M/SI (Y/N); annual PBR * authorized annual M/SI Stock UME (Y/N);
(Nbest) * injury or * \2\ rate of M/SI take and NEFSC trend *\4\ number and year
mortality from fisheries (annual) authorized
\1\ interactions * take \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin 48,819 0.2 30 30 304 0.6 273.4 ? N
(Western N. Atlantic).
Pantropical spotted dolphin 50,880 0.2 4.4 4.4 407 0 402.6 ? Y/3; in 2010-
(Northern GOMEX). 2014.
Short-beaked common dolphin 70,184 1.2 406 406 557 2 149 ? N
(Western N. Atlantic).
Spinner dolphin (Northern 11,411 0.2 0 0 62 0 62 ? Y/7; in 2010-
GOMEX). 2014.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the draft 2018 SARS.
\1\ This column represents the annual take by serious injury or mortality during ship shock trials and was calculated by the number of mortalities
planned for authorization divided by five years (the length of the rule and LOAs).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from
the SAR, but deducts the takes accrued from either Navy or NEFSC takes as noted in the SARs to ensure not double-counted against PBR. However, for
these species, there were no takes from either Navy or NEFSC as noted in the SARs to deduct that would be considered double-counting.
\3\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/
SI, which is presented in the draft 2018 SARs) and authorized take for NEFSC.
\4\ See relevant SARs for more information regarding stock status and trends.
[[Page 57221]]
Species or Stocks With M/SI Below the Insignificance Threshold
As noted above, for a species or stock with incidental M/SI less
than 10 percent of residual PBR, we consider M/SI from the specified
activities to represent an insignificant incremental increase in
ongoing anthropogenic M/SI that alone (i.e., in the absence of any
other take and barring any other unusual circumstances) will not
adversely affect annual rates of recruitment and survival. In this
case, as shown in Tables 69 and 70, the following species or stocks
have potential or estimated, and authorized, M/SI below their
insignificance threshold: Humpback whales (Gulf of Maine), sperm whale
(North Atlantic), Atlantic white-sided dolphins (Western Atlantic
stock), Pantropical spotted dolphins (Northern GOMEX stock), short-
beaked common dolphins (Western North Atlantic stock), spinner dolphins
(Northern GOMEX stock), and minke whales (Canadian East Coast). While
the authorized mortality of humpback whales and minke whales is below
the insignificance threshold, because of the ongoing UMEs for these
species, we address how other factors in the evaluation of how the
authorized serious injury or mortality inform the negligible impact
determination immediately below. For the other five stocks with
authorized mortality below the insignificance threshold, there are no
other known factors, information, or unusual circumstances that
indicate anticipated M/SI below the insignificance threshold could have
adverse effects on annual rates of recruitment or survival and they are
not discussed further.
For the remaining stocks with anticipated potential M/SI above the
insignificance threshold, how that M/SI compares to residual PBR and
discussion of additional factors are discussed in the section that
follows.
Humpback Whale
Authorized mortality of humpback whales is below the insignificance
threshold. Additionally, when evaluating the mortality authorization in
the context of the PBR designated for the Gulf of Maine stock, a
primary consideration is that, although the Gulf of Maine stock is the
only stock designated under the MMPA, it is but one of several North
Atlantic feeding groups associated with the West Indies breeding
population DPS (which is not considered at risk and thereby not ESA-
listed) found within the AFTT Study Area. Humpbacks encountered along
the East Coast within the AFTT Study Area may be from the Gulf of Maine
stock, the Newfoundland feeding group, the Gulf of St. Lawrence feeding
group, or one of the other three feeding groups associated with the
West Indies DPS. The Gulf of Maine stock likely dominates the northern
portion of the AFTT Study Area, where there is far less Navy activity
and ship traffic, but the southeastern and mid-Atlantic tissue sampling
and photo ID work (of relatively small sample size) suggests that Gulf
of Maine stock individuals might comprise approximately of 30 percent
of the individuals in the rest of the of the AFTT study area, i.e., the
mid- and south Atlantic portion (Hayes et al., 2017). In other words,
if there were a mortality, it would not necessarily come from the Gulf
of Maine stock. It is more appropriate to consider the mortality in the
context of the much larger West Indies DPS, which has an increasing
growth trend of 3.1 percent (Bettridge et al., 2015) and would have a
much higher PBR if it were calculated for the whole DPS or any of the
other feeding groups (none of which are designated as stocks).
Similarly, the humpback UME is of concern, but the number of recorded
deaths along the Atlantic Coast could come from a number of feeding
groups (at least four of which definitely have individuals that move
through the AFTT Study Area) and should be considered in that context.
In other words, the addition of the single Navy authorized mortality
means that the total human-caused mortality to all humpbacks recorded
from the Atlantic (which actually occurs from multiple feeding groups,
most of which are not considered stocks) is still less than the
insignificance threshold of the Gulf of Maine stock alone, meaning that
if the human-caused mortality in the Atlantic were compared against the
abundance (and associated PBR) of the much larger (and increasing) DPS
(or multiple feeding groups) to which the deaths actually accrue, the
single Navy mortality would be even more clearly unlikely to have any
effects on annual rates of recruitment or survival.
Of additional note, specifically, there are over 10,000 humpback
whales in the West Indies DPS. If one were to calculate a PBR for that
group, using a recovery factor of 0.5 (which is appropriate for stocks
when the OSP is not known), an rmax of 0.4, and assuming very
conservatively that nmin would be 5,000 or more (for U.S. stocks nmin
is typically 80% or more of the abundance estimate in the SAR), PBR
would be around 50. Eighty-four mortalities have been recorded during
the UME (since 2016), averaging 28 per year. However, average
mortalities from 2011-2015 averaged about 13, which means that there
are about 15 more mortalities annually during the UME than typically
recorded when there is no UME. If these UME mortalities were combined
with other annual human-caused mortalities and were viewed through the
PBR lens (for human-caused mortalities), total human-caused mortality
(inclusive of additional UME deaths, which are not necessarily human-
caused, as a portion have been attributed to vessel strike, while
others are inconclusive) would be well under the residual PBR for the
West Indies DPS.
Also of note, the Atlantic Large Whale Take Reduction Plan (ALWTRP)
is a program to reduce the risk of serious injury and death of large
whales caused by accidental entanglement in U.S. commercial trap/pot
and gillnet fishing gear. Since its implementation in 1997, it aims to
reduce the number of whales taken by gear entanglements focusing on fin
whales, humpback whales, and NARW. In 2003, the Atlantic Large Whale
Take Reduction Team (Team) agreed to manage entanglement risk by first
reducing the risk associated with groundlines and then reducing the
risk associated with vertical lines in commercial trap/pot and gillnet
gear. In 2014, the Plan was amended (79 FR 36586, June 27, 2014) to
address large whale entanglement risks associated with vertical line
(or buoy lines) from commercial trap/pot fisheries. This amendment
included gear modifications, gear setting requirements, an expanded
seasonal trap/pot closure (Massachusetts Restricted Area), and gear
marking for both trap/pot and gillnet fisheries. The original
Massachusetts Restricted Area was a seasonal closure from January 1
through April 30 for all trap/pot fisheries. In a subsequent Plan
amendment, the boundary for the Massachusetts Restricted Area was
expanded by 900 mi\2\ (2.59 km\2\), and the start date changed to
February 1 (79 FR 73848, December 12, 2014).
Currently the Atlantic Large Whale Take Reduction Plan has two
seasonal trap/pot closures: The Massachusetts Restricted Area (50 CFR
229.32(c)(3)) and the Great South Channel Trap/Pot Closure (50 CFR
229.32(c)(4)). The Massachusetts Restricted Area prohibits fishing
with, setting, or possessing trap/pot gear in this area unless stowed
in accordance with Sec. 229.2 from February 1 to April 30. The Great
South Channel Trap/Pot Closure prohibits fishing with, setting, or
possessing trap/pot gear in this area unless stowed in accordance with
Sec. 229.2 from April 1 through June
[[Page 57222]]
30. Effective September 1, 2015, the ALWTRP included new gear marking
areas for gillnets and trap/pots for Jeffrey's Ledge and Jordan Basin
(Gulf of Maine), two important high-use areas for humpback whales and
NARWs. The only study available that examined the effectiveness of the
ALWTRP reviewed the regulations up to 2009 (Pace et al., 2014) and the
results called for additional mitigation measures needed to reduce
entanglements. Since that time, NMFS put two major regulatory actions
in place--the 2007 sinking groundline rule that went into effect in
2009 (73 FR 51228) and the 2014 vertical line rule that went into
effect in 2015 (79 FR 36586). The Office of Law Enforcement (OLE)
reports that of gear checked by OLE under the ALWTRP, they found a
compliance rate of 94.49 percent in FY-2015 and 84.42 percent in FY-
2016. In addition, NMFS Fisheries Science Centers held a working group
in May 2018 to make recommendations on the best analytical approach to
measure how effective these regulations have been, however, the results
of the meeting are not yet available. For more information on this
program please refer to https://www.greateratlantic.fisheries.noaa.gov/protected/whaletrp/.
Minke Whale
Authorized mortality of minke whales is below the insignificance
threshold. The abundance and PBR of minke whales is significantly
greater than what is reflected in the current SAR because the most
recent population estimate is based only on surveys in U.S. waters and
slightly into Canada, and did not cover the habitat of the entire
Canadian East Coast stock. The 2015 SAR abundance included data from
the 2007 Canadian Trans-North Atlantic Sighting Surveys (TNASS), which
appropriately included surveys of Nova Scotian and Newfoundland
Canadian waters and estimated an abundance of 20,741 minkes with a PBR
of 162, as opposed to the current estimates of 2,591 and 14,
respectively. However, as recommended in the guidelines for preparing
SARs (NMFS 2016), estimates older than eight years are deemed
unreliable, so the 2018 SAR population estimate does not include data
from the 2007 TNASS. While it is certainly possible that the numbers in
Canadian waters have changed since the last TNASS survey, there is no
reason to think that the majority of the individuals in the stock would
not still occupy the Canadian portion of the range. Additionally, the
current abundance estimate does not account for availability bias due
to submerged animals (i.e., estimates are not corrected to account for
the fact that given X number of animals seen at the surface, we can
appropriately assume that Y number were submerged and not counted).
Without a correction for this bias, the abundance estimate is likely
further biased low. Last, while the UME is a concern, we note that the
deaths should be considered in the context of the whole stock, which
most certainly has a significantly higher abundance and PBR than those
reflected in the SAR.
Of additional note, specifically, the PBR was previously estimated
at 162 when the full abundance was considered. Fifty-two mortalities
have been recorded during the UME (since 2017), averaging 26 per year.
However, average mortalities from 2011-2016 averaged about 13, which
means that there are about 13 more mortalities annually during the UME
than typically recorded when there is no UME. If these UME mortalities
were combined with other annual human-caused mortalities and were
viewed through the PBR lens (for human-caused mortalities), and we
assumed that PBR was in the vicinity of the PBR previously reported
(162), total human-caused mortality (inclusive of additional UME
deaths) would still be well under residual PBR for the full stock of
minke whales.
Species or Stocks With M/SI Above the Insignificance Threshold
Fin Whale
For fin whales (Western North Atlantic stock) PBR is currently set
at 2.5 and the total annual M/SI is 2.5, yielding a residual PBR of 0.
The M/SI value includes the records of 1.0 annual fishery interaction
and 1.5 annual vessel collisions. For the reasons discussed above,
those collisions are unlikely to be from Navy vessels. NMFS is
authorizing one mortality over the five-year duration of the rule
(indicated as 0.2 annually for the purposes of comparing to PBR), which
means that residual PBR is exceeded by 0.2 (although of note, Navy take
alone does not exceed PBR itself). However as explained earlier, this
does not mean that the stock is not at or increasing toward OSP or that
one lethal take by the Navy in the five years covered by this rule
would adversely affect the stock through annual reproduction or
survival rates. To the contrary, consideration of the information
outlined below indicates that the Navy's authorized mortality is not
expected to result in more than a negligible impact on this stock.
The abundance of fin whales is likely significantly greater than
what is reflected in the current SAR because the most recent population
estimate is based only on surveys in U.S. waters and slightly into
Canada, and did not cover the habitat of the entire stock, which
extends over a very large additional area into Nova Scotian and
Newfoundland waters. Accordingly, if a PBR were calculated based on an
appropriately enlarged abundance, it would be notably higher.
Additionally, the current abundance estimate does not account for
availability bias due to submerged animals (i.e., estimates are not
corrected to account for the fact that given X number of animals seen
at the surface, we can appropriately assume that Y number were
submerged and not counted). Without a correction for this bias, the
abundance estimate is likely further biased low. Because of these
limitations, the current calculated PBR is not a reliable indicator of
how removal of animals will affect the stock's ability to reach or
maintain OSP. We note that, generally speaking, while the abundance may
be underestimated in this manner for some stocks due to the lack of
surveys in areas outside of the U.S. EEZ, it is also possible that the
human-caused mortality could be underestimated in the un-surveyed area.
However, in the case of fin whales, most mortality is caused by
entanglement in gear that is deployed relatively close to shore and,
therefore, unrecorded mortality offshore would realistically be
proportionally less as compared to the unsurveyed abundance and
therefore the premise that PBR is likely underestimated still holds.
Given the small amount by which residual PBR is exceeded and more
significant degree (proportionally) to which abundance is likely
underestimated, it is reasonable to think that if a more realistic PBR
were used, the anticipated total human-caused mortality would be
notably under it.
Additionally, the ALWTRP (as described above) is a program to
reduce the risk of serious injury and death of large whales caused by
accidental entanglement in U.S. commercial trap/pot and gillnet fishing
gear. It aims to reduce the number of whales taken by gear
entanglements focusing on fin whales, humpback whales, and NARW. ALWTRP
measures have equal effectiveness in reducing entanglement of fin
whales.
We also note that in this case, 0.2 M/SI means one mortality in one
of the five years and zero mortalities in four of those five years.
Therefore, residual PBR would not be exceeded in 80 percent of the
years covered by this rule. In these particular situations where
authorized M/SI is fractional, consideration must be given to the
lessened impacts
[[Page 57223]]
anticipated due to the absence of mortality in four of the five years.
Last, we reiterate the fact that PBR is a conservative metric and also
is not sufficiently precise to serve as an absolute predictor of
population effects upon which mortality caps would appropriately be
based, which is especially important given the subtle difference
between zero and one across the five-year period, which is the smallest
possible distinction one can have if there is any consideration of
mortality.
Nonetheless, the exceedance of residual PBR necessitates close
attention to the remainder of the impacts on fin whales from this
activity to ensure that the total authorized impacts are negligible.
This information will be considered in combination with our assessment
of the impacts of harassment takes later in the section.
Sei Whale
For sei whales (Nova Scotia stock) PBR is currently set at 0.5 and
the total annual M/SI is 0.6, yielding a residual PBR of -0.1. The fact
that residual PBR is negative means that the total anticipated human-
caused mortality is expected to exceed PBR even in the absence of
additional take by the Navy. The M/SI value includes no records of
annual fishery interactions, but 0.6 annual vessel collisions. For the
reasons discussed above, those collisions are unlikely to be from Navy
vessels. NMFS is authorizing one mortality over the five-year duration
of the rule (indicated as 0.2 annually for the purposes of comparing to
PBR), which means that residual PBR is exceeded by 0.3. However as
explained earlier, this does not necessarily mean that the stock is not
at or increasing toward OSP or that one lethal take by the Navy in the
five years would adversely affect reproduction or survival rates. In
fact, consideration of the additional information below supports our
determination that the Navy's authorized mortality is not expected to
result in more than a negligible impact on this stock.
The abundance of sei whales is likely significantly greater than
what is reflected in the current SAR because the population estimate is
based only on surveys in U.S. waters and slightly into Canada, and did
not cover the habitat of the entire stock, which extends over a large
additional area around to the south of Newfoundland. Accordingly, if a
PBR were calculated based on an appropriately enlarged abundance, it
would be higher. Additionally, the current abundance estimate does not
account for availability bias due to submerged animals (i.e., estimates
are not corrected to account for the fact that given X number of
animals seen at the surface, we can appropriate assume that Y number
were submerged and not counted). Without a correction for this bias,
the abundance estimate is likely biased low. Because of these
limitations, the current calculated PBR is not a reliable indicator of
how removal of animals will affect the stock's ability to reach or
maintain OSP. We note that, generally speaking, while the abundance may
be underestimated in this manner for some stocks due to the lack of
surveys in areas outside of the U.S. EEZ, it is also possible that the
human-caused mortality could be underestimated in the un-surveyed area.
However, in the case of sei whales, most mortality is caused by ship
strike and the density of ship traffic is higher the closer you are to
shore (making strikes more likely closer to shore) and, therefore,
unrecorded mortality offshore would realistically be proportionally
less as compared to the unsurveyed abundance and therefore the premise
that PBR is likely underestimated still holds. Given the small amount
by which residual PBR is exceeded, and more significant degree
(proportionally) to which abundance is likely underestimated, it is
reasonable to think that if a more realistic PBR were used, the
anticipated total human mortality would be notably under it.
We also note that in this case, 0.2 M/SI means one mortality in one
of five years and zero mortalities in four of those five years.
Residual PBR is not being exceeded in 80 percent of the years. In these
particular situations where authorized M/SI is fractional,
consideration must be given to the lessened impacts anticipated due to
the absence of mortality in four of the five years. Last, we reiterate
the fact that PBR is a conservative metric and also is not sufficiently
precise to serve as an absolute predictor of population effects upon
which mortality caps would appropriately be based, which is especially
important given the subtle difference between zero and one across the
five-year period, which is the smallest possible distinction one can
have if there is any consideration of mortality.
Nonetheless, the exceedance of residual PBR necessitates close
attention to the remainder of the impacts on sei whales from this
activity to ensure that the total authorized impacts are negligible.
This information will be considered in combination with our assessment
of the impacts of harassment takes later in the section.
Group and Species-Specific Analyses
Overview
The maximum amount and type of incidental take of marine mammals
reasonably likely to occur and therefore authorized from exposures to
sonar and other active acoustic sources and explosions during the five-
year training and testing period are shown in Tables 39 and 40 as well
as ship shock trials shown in Table 41. The vast majority of predicted
exposures (greater than 99 percent) are expected to be Level B
harassment (non-injurious TTS and behavioral reactions) from acoustic
and explosive sources during training and testing activities at
relatively low received levels.
As noted previously, the estimated Level B harassment takes
represent instances of take, not the number of individuals taken (the
much lower and less frequent Level A harassment takes are far more
likely to be associated with separate individuals), and in many cases
some individuals are expected to be taken more than one time, while in
other cases a portion of individuals will not be taken at all. Below,
we compare the take numbers for stocks to their associated abundance
estimates to evaluate the magnitude of impacts across the stock and to
individuals. Specifically, when an abundance percentage comparison is
below 100, it means that that percentage or less of the individuals in
the stock will be affected (i.e., some individuals will not be taken at
all), that the average for those taken is one day per year, and that we
would not expect any individuals to be taken more than a few times in a
year. When it is more than 100 percent, it means there will definitely
be some number of repeated takes of individuals. For example, if the
percentage is 300, the average would be each individual is taken on
three days in a year if all were taken, but it is more likely that some
number of individuals will be taken more than three times and some
number of individuals fewer or not at all. While it is not possible to
know the maximum number of days across which individuals of a stock
might be taken, in acknowledgement of the fact that it is more than the
average, for the purposes of this analysis, we assume a number
approaching twice the average. For example, if the percentage of take
compared to the abundance is 800, we estimate that some individuals
might be taken 16 times. Those comparisons are included in the sections
below. For some stocks these numbers have been adjusted slightly
(single digits) since the proposed rule to more consistently apply this
approach, but these minor
[[Page 57224]]
changes did not change the analysis or findings.
Use of sonar and other transducers would typically be transient and
temporary. The majority of acoustic effects to mysticetes from sonar
and other active sound sources during testing and training activities
would be primarily from ASW events. It is important to note that
although ASW is one of the warfare areas of focus during MTEs, there
are significant periods when active ASW sonars are not in use.
Nevertheless, behavioral reactions are assumed more likely to be
significant during MTEs than during other ASW activities due to the
duration (i.e., multiple days) and scale (i.e., multiple sonar
platforms) of the MTEs. On the the less severe end, exposure to
comparatively lower levels of a sound at a detectably greater distance
from the animal, for a few or several minutes, could result in a
behavioral response such as avoiding an area that an animal would
otherwise have moved through or feed in or breaking off one or a few
feeding bouts. More severe behavioral effects could occur when an
animal gets close enough to the source to receive a comparatively
higher level of sound, is exposed continuously to one source for a
longer time, or is exposed intermittently to different sources
throughout a day. Such effects might result in an animal having a more
severe flight response and leaving a larger area for a day or more, or
potentially losing feeding opportunities for a day. However, such
severe behavioral effects are expected to occur infrequently.
Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if
some smaller subset of the takes are in the form of a longer (several
hours or a day) and more severe responses, if they are not expected to
be repeated over sequential days, impacts to individual fitness are not
anticipated. Nearly all studies and experts agree that infrequent
exposures of a single day or less are unlikely to impact an
individual's overall energy budget (Farmer et al., 2018; Harris et al.,
2017; King et al., 2015; NAS 2017; New et al., 2014; Southall et al.,
2007; Villegas-Amtmann et al., 2015). When impacts to individuals
increase in magnitude or severity such that either repeated and
sequential higher severity impacts occur (the probability of this goes
up for an individual the higher total number of takes it has) or the
total number of moderate to more severe impacts increases
substantially, especially if occurring across sequential days, then it
becomes more likely that the aggregate effects could potentially
interfere with feeding enough to reduce energy budgets in a manner that
could impact reproductive success via longer cow-calf intervals,
terminated pregnancies, or calf mortality. It is important to note that
these impacts only accrue to females, which only comprise a portion of
the population (typically approximately 50 percent). Based on energetic
models, it takes energetic impacts of a significantly greater magnitude
to cause the death of an adult marine mammal, and females will always
terminate a pregnancy or stop lactating before allowing their health to
deteriorate. Also, the death of an adult has significantly more impact
on population growth rates than reductions in reproductive success, and
death of males has very little effect on population growth rates.
However, as explained earlier, such severe impacts from the Navy's
activities would be very infrequent and not likely to occur at all for
most species and stocks. Even for those species or stocks where it is
possible for a small number of females to experience reproductive
effects, we explain below why there still will be no effect on rates of
recruitment or survival.
Deepwater Horizon (DWH) Oil Spill
As discussed in the proposed rule, tens of thousands of marine
mammals were exposed to the DWH surface slick, where they inhaled,
aspirated, ingested, and came into contact with oil components (Dias et
al., 2017). The oil's physical and toxic effects damaged tissues and
organs, leading to a constellation of adverse health effects, including
reproductive failure, adrenal disease, lung disease, and poor body
condition, as observed in bottlenose dolphins (De Guise et al., 2017;
Kellar et al., 2017). Coastal and estuarine bottlenose dolphin
populations were some of the most severely injured (Hohn et al., 2017;
Rosel et al., 2017; Thomas et al., 2017), as described previously in
relation to the UME, but oceanic species were also exposed and
experienced increased mortality, increased reproductive failure, and a
higher likelihood of other adverse health effects.
Due to the scope of the spill, the magnitude of potentially injured
populations, and the difficulties and limitations of working with
marine mammals, it is impossible to quantify injury without
uncertainty. Wherever possible, the quantification results represent
ranges of values that encapsulate the uncertainty inherent in the
underlying datasets. The population model outputs shown in Table 71
best represent the temporal magnitude of the injury and the potential
recovery time from the injury (DWH NRDA Trustees (Deepwater Horizon
Natural Resource Damage Assessment Trustees), 2016). The values in the
table inform the baseline levels of both individual health and
susceptibility to additional stressors, as well as stock status, with
which the effects of the Navy takes are considered in the negligible
impact analysis.
[[Page 57225]]
[GRAPHIC] [TIFF OMITTED] TR14NO18.008
Group and Species-Specific Analyses
The analysis below in some cases (e.g., porpoises, pinnipeds)
addresses species collectively if they occupy the same functional
hearing group (i.e., low, mid, and high-frequency cetaceans and
pinnipeds in water), have similar hearing capabilities, and/or are
known to behaviorally respond similarly to acoustic stressors. Because
some of these species have similar hearing capabilities and respond
similarly to received sound, it would be duplicative to repeat the same
analysis for each species. In addition, animals belonging to each stock
within a species have the same hearing capabilities and behaviorally
respond in the same manner as animals in other stocks within the
species. Thus, our analysis below considers the effects of Navy's
activities on each affected stock even where discussion is organized by
functional hearing group and/or information is evaluated at the species
level. Where there are meaningful differences between stocks within a
species that would further differentiate the analysis (e.g., the status
of the stock or mitigation related to biologically important areas for
the stock), they are either described within the section or the
discussion for those species or stocks is included as a separate
subsection.
Mysticetes
This section builds on the broader discussion above and brings
together the discussion of the different types and amounts of take that
different stocks will incur, the applicable mitigation for each stock,
and the status of the stocks to support the negligible impact
determinations for each stock. We have already described above why we
believe the incremental addition of the small number of low-level PTS
takes will not have any meaningful effect towards inhibiting
reproduction or survival. We have also described the unlikelihood of
any masking or habitat impacts to any groups that would rise to the
level of affecting individual fitness. For mysticetes, there is no
predicted tissue damage from explosives for any stock. Much of the
discussion below focuses on the behavioral effects and the mitigation
measures that reduce the probability or severity of effects in
biologically important areas. Because there are multiple stock-specific
factors in relation to the status of the species (UMEs) as well as
mortality take for multiple stocks, we break out stock-specific
findings at the end of the section.
In Table 72 below, for mysticetes, we indicate the total annual
mortality, Level A and Level B harassment, and a number indicating the
instances of total take as a percentage of abundance. Since the
proposed rule, the Navy has removed one of their testing events in the
Northeast Range Complex (four events--USWT), which decreased the number
of Level B harassment takes annually for NARW by 115 takes. This change
also decreased annual Level B harassment takes by approximately 200
takes for ESA-listed fin whales and 20 takes for sei whales.
[[Page 57226]]
[GRAPHIC] [TIFF OMITTED] TR14NO18.009
The majority of takes by harassment of mysticetes in the AFTT Study
Area are caused by sources from the MF1 active sonar bin (which
includes hull-mounted sonar) because they are high level sources in the
1-10 kHz range, which overlaps the most sensitive area of hearing for
mysticetes, and of the sources expected to result in take, they also
are used in a large portion of exercises (see Table 1.5-5 in the Navy's
application). Most of the takes (64 percent) from the MF1 bin in the
AFTT Study Area would result from received levels between 160 and 172
dB SPL, while another 32 percent would result from exposure between 172
and 178 dB SPL. For the remaining active sonar bin types, the
percentages are as follows: LF3 = 96 percent between 142 and 154, MF4 =
98 percent between 136 and 145, MF5 = 97 percent between 118 and 142,
and HF4 = 98 percent between 100 and 148 dB SPL. These values may be
derived from the information in Tables 6.4-8 through 6.4-12 in the
Navy's rulemaking/LOA application (though they were provided directly
to NMFS upon request). For mysticetes, explosive training and testing
activities do not result in any Level B behavioral harassment or PTS,
and the TTS takes are in the single digits and comprise a fraction
(approximately 1-10 percent) of those caused by exposure to active
sonar. There are no takes of mysticetes by pile driving or airguns.
Based on this information, the majority of the Level B behavioral
harassment is expected to be of low to sometimes moderate severity and
of a relatively shorter duration.
Research and observations show that if mysticetes are exposed to
sonar or other active acoustic sources they may react in a number of
ways depending on the characteristics of the sound source, their
experience with the sound source, and whether they are migrating or on
seasonal grounds (i.e., breeding or feeding). Behavioral reactions may
include alerting, breaking off feeding dives and surfacing, diving or
swimming away, or no response at all (Richardson, 1995; Nowacek, 2007;
Southall et al., 2007; DOD, 2017). Overall, mysticetes have been
observed to be more reactive to acoustic disturbance when a noise
source is located directly on their migration route. Mysticetes
disturbed while migrating could pause their migration or route around
the disturbance. Although they may pause temporarily, they will resume
migration shortly after. Animals disturbed while engaged in other
activities such as feeding or reproductive behaviors may be more likely
to ignore or tolerate the disturbance and continue their natural
behavior patterns. As noted in the Potential Effects of Specified
Activities on Marine Mammals and Their Habitat section, there are
multiple examples from behavioral response studies of odontocetes
ceasing their feeding dives when exposed to sonar pulses at certain
levels, but alternately, blue whales were less likely to show a visible
response to sonar exposures at certain levels when feeding than when
traveling. However, Goldbogen et al. (2013) indicated some horizontal
displacement of deep foraging blue whales in response to simulated MFA
sonar. Most Level B behavioral harassment of mysticetes is likely to be
short-term and low to moderate severity, with no anticipated effect on
reproduction or survival from Level B harassment.
Richardson et al. (1995) noted that avoidance (temporary
displacement of an individual from an area) reactions are the most
obvious manifestations of disturbance in marine mammals. Avoidance is
qualitatively different from the startle or flight response, but also
differs in the magnitude of the response (i.e., directed movement, rate
of travel, etc.). Oftentimes avoidance is temporary, and animals return
to the area once the noise has ceased. Some mysticetes may avoid larger
activities such as a MTE as it moves through an area, although these
activities generally do not use the same training locations
[[Page 57227]]
day-after-day during multi-day activities. Therefore, displaced animals
could return quickly after the MTE finishes. Due to the limited number
and broad geographic scope of MTEs, it is unlikely that most mysticetes
would encounter a major training exercise more than once per year and
no MTEs will occur in the GOMEX or the Gulf of Maine area where the BIA
feeding areas for NARW, fin whales, humpback whales, minke whales, and
sei whales are located. In the ocean, the use of sonar and other active
acoustic sources is transient and is unlikely to expose the same
population of animals repeatedly over a short period of time,
especially given the broader-scale movements of mysticetes.
The implementation of mitigation and the sightability of mysticetes
(due to their large size) further reduces the potential for a
significant behavioral reaction or a threshold shift to occur (i.e.,
shutdowns are expected to be successfully implemented, though we have
analyzed the impacts that are anticipated to occur and that we are
therefore authorizing. As noted previously, when an animal incurs a
threshold shift, it occurs in the frequency from that of the source up
to one octave above. This means that the vast majority of threshold
shift caused by Navy sonar sources will typically occur in the range of
2-20 kHz (from the 1-10 kHz MF1 bin), and if resulting from hull-
mounted sonar, will be in the range of 3.5-7 kHz. The majority of
mysticete vocalizations, including for NARW, occurs in frequencies
below 1 kHz, which means that TTS incurred by mysticetes will not
interfere with conspecific communication Additionally, many of the
other critical sounds that serve as cues for navigation and prey (e.g.,
waves, fish, invertebrates) occur below a few kHz, which means that
detection of these signals will not be inhibited by most threshold
shift either. When we look in ocean areas where the Navy has been
intensively training and testing with sonar and other active acoustic
sources for decades, there is no data suggesting any long-term
consequences to reproduction or survival rates of mysticetes from
exposure to sonar and other active acoustic sources.
The Navy will implement mitigation areas that will avoid or reduce
impacts from harassment to mysticetes and these areas contain some of
the BIAs for large whales and ESA-designated critical habitat for NARW.
The NARW is an at-risk species with an ongoing UME. In order to
mitigate the number and potential severity of any NARW harassment
takes, from November 15 through April 15, the Navy will not conduct
LFAS/MFAS/HFAS, except for sources that will be minimized to the
maximum extent practicable during helicopter dipping, navigation
training, and object detection exercises within the SE NARW Mitigation
Area. As discussed previously, the majority of takes result from
exposure to the higher power hull-mounted sonar during major training
exercises, which will not occur here. The activities that are allowed
to occur such as those used for navigation training or object detection
exercises use lower level sources that operate in a manner less likely
to result in more concerning affects (i.e., single sources for shorter
overall amounts of time--e.g., activity is less than 30 min). Animals
in these protected areas are engaged in important behaviors, either
feeding or interacting with calves, during which if they were disturbed
the effects could be more impactful (e.g., if whales were displaced
from preferred feeding habitat for long periods, there could be
energetic consequences more likely to lead to an adverse effect on
fitness, or if exposure to activities caused a severe disturbance to a
cow-calf pair that resulted in the pair becoming separated, it could
increase the risk of predation for the calf). By limiting activities,
the number of takes that would occur in these areas is decreased and
the probability of a more severe impact is reduced. The SE NARW
Mitigation Area encompasses a portion of the NARW migration and calving
areas identified by LaBrecque et al. (2015a) and a portion of the
southeastern NARW ESA-designated critical habitat. Outside of the SE
NARW Mitigation Area, active sonar would be used for ASW activities and
for pierside sonar testing at Kings Bay, Georgia. The best available
density data for the AFTT Study Area shows that the areas of highest
density are off the southeastern United States in areas that coincide
with the SE NARW Mitigation Area. Therefore, the majority of active
sonar use would occur outside of the areas of highest seasonal NARW
density and important use areas off the southeastern United States. In
addition, before transiting or conducting testing and training
activities, the Navy will coordinate to obtain Early Warning System
NARW sighting data to help vessels and aircraft reduce potential
interactions with NARWs.
The Navy will also minimize the use of active sonar in the NE NARW
Mitigation Area. Refer to the Mitigation Measures section of this rule
for a description of the area. Torpedo (non-explosive) activities can
occur throughout the year, however, based on typical testing schedules
only a limited number would likely be conducted in August and
September. Many NARW will have migrated south out of the area by that
time. Torpedo training or testing activities would not occur in or
within 2.7 nmi of the Stellwagen Bank National Marine Sanctuary, which
is critical habitat for NARW foraging. Stellwagen Bank National Marine
Sanctuary also provides feeding and nursery grounds for NARW, humpback,
sei, and fin whales. Since the proposed rule, the Navy has agreed to
expand the NE NARW Mitigation Area to cover the full extent of the
northeast NARW ESA-designated critical habitat designated under the ESA
and has agreed not to conduct MTEs in the Gulf of Maine Planning
Awareness Mitigation Area. One hundred percent of the NARW feeding area
on Jeffreys Ledge and the NARW mating area in the central Gulf of Maine
are included in the expanded NE NARW Mitigation Area (as well as in the
Gulf of Maine Planning Awareness Area). The expanded NE NARW Mitigation
Area covers Cape Cod Bay, Jeffreys Ledge, the western edge of Georges
Bank, and the northern portion of the Great South Channel; 100 percent
of the NARW feeding area on Cape Cod Bay and Massachusetts Bay and
95.08 percent of the NARW feeding area in the Great South Channel and
the northern edge of George's Bank is included in the expanded NE NARW
Mitigation Area. The mitigation measures required in the previous NE
NARW Mitigation Area will carry over to the expanded mitigation area
and be implemented year-round. These same important feeding and mating
areas for NARW in the northeast are 100 percent included in the Gulf of
Maine Planning Awareness Mitigation Area.
The humpback whale (1 BIA), minke whale (2 BIAs), fin whale (2
BIAs), and sei whale (1 BIA) feeding BIAs (6 total) are also located
within the NE NARW Mitigation Area or Gulf of Maine Planning Awareness
Mitigation Area (or both). Ninety-seven percent of the humpback whale
feeding area in the Gulf of Maine, Stellwagen Bank, and the Great South
Channel are included in the NE NARW Mitigation Area (100 percent in the
Gulf of Maine Planning Awareness Mitigation Area). One hundred percent
of the minke whale feeding BIA (central Gulf of Maine--Parker Ridge and
Cashes Ledge) is included in the NE NARW Mitigation Area and the Gulf
of Maine Planning Awareness Mitigation Area. One hundred percent of the
fin whale feeding area BIA in the southern and the
[[Page 57228]]
northern Gulf of Maine are included in the NE NARW Mitigation Area and
the Gulf of Maine Planning Awareness Mitigation Area. Seventy-three
percent of the sei whale feeding area in the Gulf of Maine is included
in the NE NARW Mitigation Area (100 percent in the Gulf of Maine
Planning Awareness Mitigation Area). Approximately half of the minke
whale feeding area in the southwestern Gulf of Maine and Georges Bank
is included in the NE NARW Mitigation Area (100 percent in the Gulf of
Maine Planning Awareness Mitigation Area). The Navy will limit the use
of active sonar to the maximum extent practicable and not use certain
explosive and non-explosive munitions year-round within the NE NARW
Mitigation Area to further reduce potential impacts on large whales
feeding and NARW in their most important feeding areas, a mating area,
and the northern portion of their migration habitat. Newly developed
for this regulatory period, the Gulf of Maine Planning Awareness
Mitigation Area extends throughout the Gulf of Maine and southward over
Georges Bank. The mitigation will further reduce potential impacts on
marine mammals from active sonar during MTEs within key areas of
biological importance, including NARW critical habitat; a portion of
the northern NARW migration area; NARW, humpback whale, minke whale,
sei whale, and fin whale feeding areas; and a NARW mating area.
The Bryde's whale BIA is inclusive of the GOMEX Planning Awareness
Mitigation Areas and the Navy will not conduct MTEs in the GOMEX. Since
the proposed rule, the Navy agreed upon the addition of a mitigation
area for Bryde's whale. The Bryde's Whale Mitigation Area covers the
extent of the Bryde's whale small and resident population area
identified by LaBrecque et al. (2015b), including the extended area
identified by NMFS in its 2016 Bryde's whale status review (Rosel et
al., 2016). In this mitigation area, the Navy will limit annual hours
of MFAS use and will not use in-water explosives (except during mine
warfare activities) to avoid or reduce potential impacts on the small
and resident population of Bryde's whales.
As described previously there are three ongoing UMEs for NARW,
humpback whales, and minke whales. There is significant concern
regarding the status of the NARW, both because of the ongoing UME and
because of the overall status of the stock. However, the Navy's
mitigation measures make NARW mortality unlikely-- and we are not
authorizing such take--and the newly expanded mitigation areas further
reduce the extent of potential Level B harassment by behavioral
disruption in areas that are important for NARW, hence reducing the
significance of such disruption. NMFS also has concern regarding the
UMEs for humpback and minke whales. NMFS, in coordination with our
stranding network partners, continues to investigate the recent
mortalities, environmental conditions, and population monitoring to
better understand how the recent humpback and minke whale mortalities
occurred. Also, these unexplained mortalities have been evaluated in
the context of other human-caused mortality and the single authorized
mortalities for these species in the sections above. Ship speed
reduction rules are in effect for commercial and large vessels during
times of high concentrations of NARW, and require vessels greater than
or equal to 65 feet in length to reduce speeds to 10 kn or less while
entering or departing ports. While this rule was put into place
primarily for the NARW presence in New England and Mid-Atlantic waters,
it does benefit other whale species, such as humpback whales that are
in those areas from November through July. NOAA is reviewing ship-
tracking data to ensure compliance with the ship speed reduction rule
around Cape Cod, New York, and the Chesapeake Bay areas. The UME for
minke whales was recently declared. Preliminary findings in several of
the whales have shown evidence of human interactions or infectious
disease. These findings are not consistent across all of the whales
examined, so more research is needed. As part of the UME investigation
process, NOAA is assembling an independent team of scientists to
coordinate with the Working Group on Marine Mammal Unusual Mortality
Events to review the data collected, sample stranded whales, and
determine the next steps for the investigation.
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely impact
rates of recruitment or survival for any of the affected mysticete
stocks:
NARW (Western stock)--As described previously, the status of NARW
is precarious and they are listed as endangered under the ESA. There is
a UME associated with the recent unusually high number of deaths (some
of which have been attributed to entanglement), the number of births in
recent years has been unusually low, and recent studies have reported
individuals showing poor health or high stress levels. Accordingly and
as described above, the Navy is implementing a comprehensive suite of
mitigation measures that not only avoid the likelihood of ship strikes,
but also minimize the severity of behavioral disruption by minimizing
impacts in areas that are important for feeding and calving, thus
ensuring that the relatively small number of Level B harassment takes
that do occur are not expected to affect reproductive success or
survivorship via detrimental impacts to energy intake or cow/calf
interactions. Specifically, no mortality or Level A harassment is
anticipated or authorized. Regarding the magnitude of Level B
harassment takes (TTS and behavioral disruption), the number of
estimated instances compared to the abundance (137 percent) combined
with the fact that the AFTT Study Area overlaps most if not all of the
range, suggests that many to most of the individuals in the stock will
likely be taken, but only on one or two days per year, with no reason
to think the days would likely be sequential. Regarding the severity of
those individual takes by Level B behavioral harassment, we have
explained that the duration of any exposure is expected to be between
minutes and hours (i.e., relatively short), the received sound levels
are largely below 172 dB with some lesser portion up to 178 dB (i.e.,
of a moderate or lower level, less likely to evoke a severe response),
and that because of the mitigation the exposures will not occur in
areas or at times where impacts would be likely to affect feeding and
energetics or important cow/calf interactions that could lead to
reduced reproductive success or survival. Regarding the severity of TTS
takes, we have explained that they are expected to be low-level and of
short duration and the associated lost opportunities and capabilities
are not at a level that would impact reproduction or survival.
Altogether, any individual NARW is likely to be disturbed at a low-
moderate level on no more than a couple of likely non-sequential days
per year (and not in biologically important areas). Even given the fact
that some of the affected individuals may have compromised health,
there is nothing to suggest that such a low magnitude and severity of
effects would result in impacts on reproduction or survival of any
individual, much less impacts on annual rates of recruitment or
survival for the stock. For these reasons, we have determined, in
consideration of all of the effects of the Navy's activities combined,
that the authorized take will have a negligible impact on NARW.
Blue Whale (Western North Atlantic stock)--This is a wide-ranging
stock that is best considered as ``an occasional
[[Page 57229]]
visitor'' to the U.S. EEZ, which may represent the southern limit of
its feeding range (2017 SARS), though no specific feeding areas have
been identified. For this reason, the abundances calculated by the Navy
based on survey data in the U.S. EEZ are very low (9 and 104, in the
U.S. EEZ and throughout the range respectively) and while NMFS' 2018
SAR does not predict an abundance, it does report an Nmin (minimum
abundance) of 440. There is no currently reported trend for the
population and there are no specific issues with the status of the
stock that cause particular concern (e.g., UMEs), although the species
is listed as endangered under the ESA. No mortality or Level A
harassment is anticipated or authorized for blue whales. Regarding the
magnitude of Level B harassment takes (TTS and behavioral disruption),
given the number of total takes (47), the large range and wide-ranging
nature of blue whales, and the minimum abundance identified in the SAR,
there is no reason to think that any single animal will be taken by
Level B harassment more than one time (though perhaps a few could be)
and less than 10 percent of the population is likely to be impacted.
Regarding the severity of those individual Level B harassment
behavioral takes, we have explained that the duration of any exposure
is expected to be between minutes and hours (i.e., relatively short)
and the received sound levels are largely below 172 dB with a portion
up to 178 dB (i.e., of a moderate or lower level, less likely to evoke
a severe response). Regarding the severity of TTS takes, we have
explained that they are expected to be low-level and of short duration
and the associated lost opportunities and capabilities not at a level
that would impact reproduction or survival.
Altogether, no more than 10 percent of the stock is likely to be
impacted and any individual blue whale is likely to be disturbed at a
low-moderate level on no more than a day or two days per year and not
in any known biologically important areas. This low magnitude and
severity of effects is unlikely to result in impacts on the
reproduction or survival of any individual, much less impacts on annual
rates of recruitment or survival for the stock. For these reasons, we
have determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
impact on blue whales.
Bryde's whale (Northern GOMEX stock)--The Bryde's whale is a small
resident population. Although there is no current UME, the small size
of the population and its constricted range, combined with the
lingering effects of exposure to oil from the DWH oil spill (which
include adverse health effects on individuals, as well as population
effects) are cause for considerable caution. Accordingly, as described
above, the Navy is implementing considerable time/area mitigation
(including an expansion since the rule was proposed) to minimize
impacts within their limited range, including not planning MTEs, which
include the most powerful sound sources operating in a more
concentrated area, limiting the hours of other sonar use, and not using
explosives, with the exception of mine warfare activities, which has
both reduced the amount of take and reduced the likely severity of
impacts. No mortality or Level A harassment by tissue damage injury is
anticipated or authorized, and only one Level A harassment by PTS take
is estimated and authorized. Regarding the magnitude of Level B
harassment takes (TTS and behavioral disruption), the number of
estimated instances compared to the abundance (112 percent, Table 72)
combined with the fact that the AFTT Study Area overlaps all of the
small range, suggests that most to all of the individuals in the stock
will likely be taken, but only on one or two days per year, with no
reason to think the days would likely be sequential. Regarding the
severity of those individual Level B harassment behavioral takes, we
have explained that the duration of any exposure is expected to be
between minutes and hours (i.e., relatively short); the received sound
levels are largely below 172 dB with a portion up to 178 dB (i.e., of a
moderate or lower level, less likely to evoke a severe response); and
that because of the mitigation the exposures will be of a less
impactful nature. Regarding the severity of TTS takes, we have
explained that they are expected to be low-level and of short duration
and the associated lost opportunities and capabilities not at a level
that would impact reproduction or survival. For similar reasons
(described above) the one estimated Level A harassment take by PTS for
this stock is unlikely to have any effects on the reproduction or
survival of any individuals.
Altogether, any individual Bryde's whale is likely to be disturbed
at a low-moderate level on no more than one or two days per year. Even
given the fact that some of the affected individuals may have
compromised health, there is nothing to suggest that such a low
magnitude and severity of effects would result in impacts on the
reproduction or survival of any individual, much less annual rates of
recruitment or survival for the stock. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
impact on the GOMEX stock of Bryde's whales.
Bryde's whale (NSD)--These Bryde's whales span the mid- and
southern Atlantic and have not been designated as a stock under the
MMPA. There is no currently reported trend for the population and there
are no specific issues with the status of the stock that cause
particular concern (e.g., UMEs). No mortality or Level A harassment is
anticipated or authorized. Regarding the magnitude of Level B
harassment takes (TTS and behavioral disruption), the number of
estimated instances compared to the abundance within the U.S. EEZ and
both in and outside of the U.S. EEZ, respectively, is 626 percent and
60 percent (Table 72), though the percentages would be far lower if
compared against the abundance of the entire range of this species in
the Atlantic. This information suggests that only a portion of the
stock is likely impacted (significantly less than 60 percent given the
large range), but that there is likely some repeat exposure (5 to 12
days within a year) of some subset of individuals within the U.S. EEZ
if some animals spend extended time within the U.S. EEZ. Regarding the
severity of those individual Level B harassment behavioral takes, we
have explained that the duration of any exposure is expected to be
between minutes and hours (i.e., relatively short) and the received
sound levels are largely below 172 dB with a portion up to 178 dB
(i.e., of a moderate or lower level, less likely to evoke a severe
response). Regarding the severity of TTS takes, we have explained that
they are expected to be low-level and of short duration and the
associated lost opportunities and capabilities not at a level that
would impact reproduction or survival.
Altogether, only a portion of the population is impacted and any
individual Bryde's whale is likely to be disturbed at a low to moderate
level, with likely many animals exposed only once or twice and a subset
potentially disturbed across 5 to 12 likely non-sequential days not in
any known biologically important areas. This low magnitude and severity
of effects is not expected to result in impacts on annual rates of
recruitment or survival for the stock. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will
[[Page 57230]]
have a negligible impact on Bryde's whales.
Minke whale (Canadian East Coast stock)--This stock of minke whales
spans the East Coast and far into Northern Canada waters. Minke whales
in the Atlantic are currently experiencing a UME wherein there have
been unexpectedly elevated deaths along the Atlantic Coast, some of
which have been preliminarily attributed to human interaction or
infectious disease. Importantly, both the abundance and PBR are
considered significantly underestimated in the SAR, as discussed above.
NMFS will authorize one mortality in five years, and the resulting 0.2
annual mortality fell below 10 percent of residual PBR, under the
insignificance threshold, and would be considerably even lower if
compared against a more appropriate PBR. Regarding the magnitude of
Level B harassment takes (TTS and behavioral disruption), the number of
estimated instances compared to the abundance within the U.S. EEZ and
both in and outside of the U.S. EEZ, respectively, is 536 percent and
53 percent (Table 72). This information suggests that something less
than half of the individuals are likely impacted, but that there is
likely some repeat exposure (5 to 10 days within a year) of some subset
of individuals within the U.S. EEZ if some animals spend extended time
within the U.S. EEZ. Regarding the severity of those individual takes
by Level B behavioral harassment, we have explained that the duration
of any exposure is expected to be between minutes and hours (i.e.,
relatively short) and the received sound levels largely below 172 dB,
with a portion up to 178 dB (i.e., of a moderate or lower level, less
likely to evoke a severe response). Also, the Navy implements time/area
mitigation in the Northeast that minimizes MTEs and total sonar hours
in an area that significantly overlaps an important feeding area for
minke whales, which will reduce the severity of impacts to minke whales
by reducing interference in feeding that could result in lost feeding
opportunities or necessitate additional energy expenditure to find
other good opportunities. Regarding the severity of TTS takes, we have
explained that they are expected to be low-level and of short duration
and the associated lost opportunities and capabilities not at a level
that would impact reproduction or survival. For similar reasons
(described above) the five estimated Level A harassment takes by PTS
for this stock are unlikely to have any effects on the reproduction or
survival of any individuals.
Altogether, only a portion of the stock is impacted and any
individual minke whale is likely to be disturbed at a low to moderate
level, with likely many animals exposed only once or twice and a subset
potentially disturbed across 5 to 10 likely non-sequential days,
minimized in biologically important areas. Even given the potential for
compromised health of some individuals, this low magnitude and severity
of effects is not expected to result in impacts on the reproduction or
survival of individuals, nor are these harassment takes combined with
the authorized mortality expected to adversely affect this stock
through impacts on annual rates of recruitment or survival for the
stock. For these reasons, we have determined, in consideration of all
of the effects of the Navy's activities combined, that the authorized
take will have a negligible impact on minke whales.
Fin whale (Western North Atlantic stock)--This stock spans the East
Coast and up into the Newfoundland waters of Canada. There is no
currently reported trend for the population and there are no specific
issues with the status of the stock that cause particular concern
(e.g., UMEs), although the species is listed as endangered under the
ESA. Importantly, both the abundance and PBR are considered
underestimated in the SAR, as discussed above. NMFS will authorize 1
mortality over the 5 years of the rule, or 0.2 annually. With the
addition of this 0.2 annual mortality, residual PBR is exceeded, which
means the total human-caused mortality would exceed PBR by 0.2.
However, if the PBR in the SAR reflected the actual abundance across
the entire range of the stock, residual PBR would be significantly
higher, and definitely not be exceeded. Further, the Atlantic Large
Whale Take Reduction Plan directs multiple efforts and requirements
towards reducing mortality from commercial fishing (via gear
modifications, area closures, and other mechanisms) and NOAA Law
Enforcement has reported high compliance rates. Regarding the magnitude
of Level B harassment takes (TTS and behavioral disruption), the number
of estimated instances compared to the abundance within the U.S. EEZ
and both in and outside of the U.S. EEZ, respectively, is 323 percent
and 37 percent (Table 72). This information suggests that something
less than a third of the individuals are likely impacted, but that
there is likely some repeat exposure (2-6 days within a year) of some
subset of individuals within the U.S. EEZ if some animals spend
extended time within the U.S. EEZ. Regarding the severity of those
individual takes by Level B behavioral harassment, we have explained
that the duration of any exposure is expected to be between minutes and
hours (i.e., relatively short) and the received sound levels largely
below 172 dB (i.e., of a moderate or lower level, less likely to evoke
a severe response). Also, the Navy implements time/area mitigation in
the Northeast that minimizes major training exercises and total sonar
hours in an area that significantly overlaps an important BIA feeding
area for fin whales, which will reduce the severity of impacts to fin
whales by reducing interference in feeding that could result in lost
feeding opportunities or necessitate additional energy expenditure to
find other good opportunities. Regarding the severity of TTS takes, we
have explained that they are expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere with fin whale communication or other important low-frequency
cues--and that the associated lost opportunities and capabilities are
not at a level that would impact reproduction or survival. For these
same reasons (low level and frequency band), while a small permanent
loss of hearing sensitivity may include some degree of energetic costs
for compensating or may mean some small loss of opportunities or
detection capabilities, at the expected scale the 33 estimated Level A
harassment takes by PTS for fin whales would be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of any
individuals.
Altogether, only a portion of the stock is impacted and any
individual fin whale is likely to be disturbed at a low to moderate
level, with likely many animals exposed only once or twice and a subset
potentially disturbed across approximately 6 likely non-sequential
days, minimized in biologically important areas. This low magnitude and
severity of effects is not expected to result in impacts on
reproduction or survival of individuals, nor are these harassment takes
combined with the authorized mortality expected to adversely affect
this stock through impacts on annual rates of recruitment or survival
for the stock. For these reasons, we have determined, in consideration
of all of the effects of the Navy's activities combined, that the
authorized take will have a negligible impact on fin whales.
[[Page 57231]]
Humpback whale (Gulf of Maine stock)--This feeding group stock of
humpback whales is one of several associated with the larger, and
increasing, West Indies DPS. Humpback whales in the Atlantic are
currently experiencing a UME in which a portion of the whales have
shown evidence of vessel strike. NMFS will authorize one mortality for
the five-year period, which falls under the insignificance threshold of
10 percent of residual PBR for the Gulf of Maine stock. However,
importantly, deaths of humpback whales along the Atlantic coast
(whether by authorized ship strike or UME) must be considered within
the context of the larger West Indies DPS, as animals along the coast
could come from the Gulf of Maine stock or any of three or more other
associated feeding groups. Specifically, the West Indies DPS numbers in
excess of 10,000 whales and the associated PBR, if calculated, would be
over 100.
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances (of any
humpbacks) compared to the abundance within the U.S. EEZ and both in
and outside of the U.S. EEZ, respectively, is 141 percent and 16
percent (Table 72). This suggests that only a small portion of the
humpback whales in the area are likely impacted, with perhaps some
individuals taken on a few days of the year. It would be impossible to
determine exactly what portion of the takes are from the Gulf of Maine
stock. However, based on the information provided earlier, which
suggested about one third of the humpback whales traversing the
Atlantic Coast likely come from the Gulf of Maine stock, we estimate
that approximately 250 of the 749 total humpback whale takes might be
from the Gulf of Maine stock. Two hundred and fiftyrepresents about 28
percent of the minimum population estimate for the Gulf of Maine
humpback whale abundance in NMFS' draft 2018 SAR, equating to an
expectation that few animals would be repeatedly exposed. Regarding the
severity of those individual takes by Level B behavioral harassment, we
have explained that the duration of any exposure is expected to be
between minutes and hours (i.e., relatively short) and the received
sound levels largely below 172 dB with a portion above 178 dB (i.e., of
a moderate or lower level, less likely to evoke a severe response).
Also, the Navy implements time/area mitigation in the Northeast that
minimizes MTEs and total sonar hours in an area that significantly
overlaps with an important feeding area for humpbacks, which will
reduce the severity of impacts to humpbacks by reducing interference in
feeding that could result in lost feeding opportunities or necessitate
additional energy expenditure to find other good opportunities.
Regarding the severity of TTS takes, we have explained that they are
expected to be low-level and of short duration and the associated lost
opportunities and capabilities not at a level that would impact
reproduction or survival. For similar reasons (described above) the
three estimated Level A harassment takes by PTS for this stock are
unlikely to have any effects on the reproduction or survival of any
individuals.
Altogether, only a portion of the stock or DPS is impacted and any
individual humpback whale is likely to be disturbed at a low-moderate
level, with most animals exposed only once or twice, and minimized in
biologically important areas. This low magnitude and severity of
effects is not expected to result in impacts on the reproduction or
survival of any individuals, nor are these harassment takes combined
with the authorized mortality expected to adversely affect this stock
through impacts on annual rates of recruitment or survival for the
stock. For these reasons, we have determined, in consideration of all
of the effects of the Navy's activities combined, that the authorized
take will have a negligible impact on humpback whales.
Sei whale (Nova Scotia stock)--This stock spans the northern East
Coast and up to southern Newfoundland. There is no currently reported
trend for the population and there are no specific issues with the
status of the stock that cause particular concern (e.g., UMEs),
although the species is listed as endangered under the ESA.
Importantly, both the abundance and PBR are considered underestimated
in the SAR, as discussed above. NMFS will authorize one mortality over
the 5 years covered by this rule, or 0.2 mortality annually. With the
addition of this 0.2 annual mortality, residual PBR is exceeded, which
means the total human-caused mortality would exceed PBR by 0.3.
However, if the PBR in the SAR reflected the actual abundance across
the entire range of the stock, residual PBR would be significantly
higher, and PBR would not be exceeded. Further, the ALWTRP Plan directs
multiple efforts and requirements towards reducing mortality from
commercial fishing (via gear modifications, area closures, and other
mechanisms) and NOAA Law Enforcement has reported high compliance
rates. Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances compared to
the abundance within the U.S. EEZ and both in and outside of the U.S.
EEZ, respectively, is 317 percent and 7 percent (Table 72). This
information suggests that only a very small portion of individuals in
the stock are likely impacted, but that there is likely some repeat
exposure (several days within a year) of some subset of individuals
within the U.S. EEZ if some animals spend extended time within the U.S.
EEZ. Regarding the severity of those individual takes by Level B
behavioral harassment, we have explained that the duration of any
exposure is expected to be between minutes and hours (i.e., relatively
short) and the received sound levels largely below 172 dB with a
portion up to 178 dB (i.e., of a moderate or lower level, less likely
to evoke a severe response). Also, the Navy implements time/area
mitigation in the Northeast that minimizes major training exercises and
total sonar hours in an area that significantly overlaps an important
BIA feeding area for sei whales, which will reduce the severity of
impacts to sei whales by reducing interference in feeding that could
result in lost feeding opportunities or necessitate additional energy
expenditure to find other good opportunities. Regarding the severity of
TTS takes, we have explained that they are expected to be low-level and
of short duration and the associated lost opportunities and
capabilities not at a level that would impact reproduction or survival.
For similar reasons (described above) the four estimated Level A
harassment takes by PTS for this stock are unlikely to have any effects
on the reproduction or survival of any individuals.
Altogether, only a small portion of the stock is impacted and any
individual sei whale is likely to be disturbed at a low-moderate level,
with likely many animals exposed only once or twice and a subset
potentially disturbed across a few days, minimized in biologically
important areas. This low magnitude and severity of harassment effects
is not expected to result in impacts on individual reproduction or
survival, nor are these harassment takes combined with the authorized
mortality expected to adversely affect this stock through impacts on
annual rates of recruitment or survival. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
impact on sei whales.
[[Page 57232]]
Odontocetes
In this section, we include information here that applies to all of
the odontocete species and stocks addressed below, which are further
divided into the following subsections: Sperm whales, dwarf sperm
whales, and pygmy sperm whales; Dolphins and small whales; Beaked
whales; and Harbor porpoise. These sub-sections include more specific
information about the group, as well as conclusions for each stock
represented.
The majority of takes by harassment of odontocetes in the AFTT
Study Area are caused by sources from the MF1 active sonar bin (which
includes hull-mounted sonar) because they are high level sources at a
frequency (1-10 kHz), which overlap a more sensitive portion (though
not the most sensitive) of the MF hearing range, and of the sources
expected to result in take, they are used in a large portion of
exercises (see Table 1.5-5 in the Navy's rulemaking/LOA application).
For odontocetes other than beaked whales or harbor porpoises (for which
these percentages are indicated separately in their sections), most of
the takes (97 percent) from the MF1 bin in the AFTT Study Area would
result from received levels between 160 and 172 dB SPL. For the
remaining active sonar bin types, the percentages are as follows: LF3 =
98 percent between 142 and 160, MF4 = 97 percent between 136 and 160,
MF5 = 98 percent between 124 and 148, and HF4 = 93 percent between 100
and 148 dB SPL. These values may be derived from the information in
Tables 6.4-8 through 6.4-12 in the Navy's rulemaking/LOA application
(though they were provided directly to NMFS upon request). Based on
this information, the majority of the takes by Level B behavioral
harassment are expected to be low to sometimes moderate in nature, but
still of a generally shorter duration.
For all odontocetes, takes from explosives (Level B behavioral
harassment, TTS, or PTS if present) comprise a very small fraction of
those caused by exposure to active sonar. Take from exposure to air
guns or pile driving is limited to small numbers of a few dolphin
species (bottlenose, Atlantic spotted, and Clymene).
The range of potential behavioral effects of sound exposure on
marine mammals generally, and odontocetes specifically, has been
discussed in detail previously. There are a couple of behavioral
patterns that differentiate the likely impacts on odontocetes as
compared to mysticetes. First, odontocetes echolocate to find prey,
which means that they actively send out sounds to detect their prey.
While there are many strategies for hunting, one common pattern,
especially for deeper diving species, is many repeated deep dives
within a bout, and multiple bouts within a day, to find and catch prey.
As discussed above, there are many studies demonstrating the cessation
of odontocete foraging dives in response to sound exposure. If enough
foraging interruptions occur over multiple sequential days, and the
individual either does not take in the necessary food, or must exert
significant effort to find necessary food elsewhere, energy budget
deficits can occur that could potentially result in impacts to
reproductive success, such as increased cow/calf intervals (the time
between successive calving). Alternately, many mysticetes rely on
seasonal migratory patterns that position them in a geographic location
at a specific time of the year to take advantage of ephemeral large
abundances of prey (i.e., invertebrates or small fish, which they eat
by the thousands), whereas odontocetes forage more homogeneously one
fish or squid at a time, which means that if they are interrupted while
feeding, it is often possible to find more prey relatively nearby.
Because the majority of harassment take of odontocetes results from
the sources in the MF1 bin (1-10 kHz), the vast majority of threshold
shift caused by Navy sonar sources will typically occur in the range of
2-20 kHz. This frequency range falls directly within the range of most
odontocete vocalizations. However, odontocete vocalizations typically
span a much wider range than this, and alternately, threshold shift
from active sonar will often be in a narrower band (reflecting the
narrower band source that caused it), which means that TTS incurred by
odontocetes would typically only interfere with communication within a
portion of an odontocete's range (if it occurred during a time when
communication with conspecifics was occurring) and as discussed
earlier, it would only be expected to be of a short duration and
relatively small degree. Odontocete echolocation occurs predominantly
at frequencies significantly higher than 20 kHz, though there may be
some small overlap at the lower part of their echolocating range for
some species, which means that there is little likelihood that
threshold shift, either temporary or permanent would interfere with
feeding behaviors. Many of the other critical sounds that serve as cues
for navigation and prey (e.g., waves, fish, invertebrates) occur below
a few kHz, which means that detection of these signals will not be
inhibited by most threshold shift either. The low number of takes by
threshold shifts that might be incurred by individuals exposed to
explosives, pile driving, or air guns would likely be lower frequency
(5 kHz or less) and spanning a wider frequency range, which could
slightly lower an individual's sensitivity to navigational or prey
cues, or a small portion of communication calls, for several minutes to
hours (if temporary) or permanently. There is no reason to think that
any of the individual odontocetes taken by TTS would incur these types
of takes over more than a few days of the year (with the exception of
North Atlantic Kogia, which are explicitly discussed below), at the
most, and therefore they are unlikely to incur impacts on reproduction
or survival.
Sperm Whales, Dwarf Sperm Whales, and Pygmy Sperm Whales--In this
section, building on the broader discussion above (for marine mammals,
and odontocetes in particular), we bring together the discussion of the
different types and amounts of take that different stocks will incur,
the applicable mitigation for each stock, and the status of the stocks
to support the negligible impact determinations for each stock. We have
also previously described the unlikelihood of any masking or habitat
impacts to any groups that would rise to the level of affecting
individual fitness. The discussion in this section fairly narrowly
focuses some information that applies specifically to the sperm whale
group, and then because there are multiple stock-specific factors in
relation to differential Level B harassment effects and authorized
mortality, we break out specific findings into a few groups--North
Atlantic sperm whales (with authorized mortality and one instance of
tissue damage from explosives), Western North Atlantic dwarf and pygmy
sperm whales, and GOMEX sperm, dwarf sperm and pygmy sperm whales
(which have lower level magnitude of Level B harassment takes, but
lingering effects from the DWH oil spill).
In Table 73 below, for sperm whale, dwarf sperm whales, and pygmy
sperm whales, we indicate the total annual mortality, Level A and Level
B harassment, and a number indicating the instances of total take as a
percentage of abundance.
[[Page 57233]]
[GRAPHIC] [TIFF OMITTED] TR14NO18.010
As discussed above, the majority of Level B harassment behavioral
takes of odontocetes, and thereby sperm whales, are expected to be in
the form of low to occasionally moderate severity of a generally
shorter duration. As mentioned earlier in this section, we anticipate
more severe effects from takes when animals are exposed to higher
received levels or for longer durations. Occasional milder Level B
behavioral harassment is unlikely to cause long-term consequences for
individual animals or populations, even if some smaller subset of the
takes are in the form of a longer (several hours or a day) and more
moderate response. However, impacts across higher numbers of days,
especially where sequential, have an increased probability of resulting
in energetic deficits that could accrue to effects on reproductive
success.
We note here that Kogia, as an HF-sensitive species, has a lower
PTS threshold than all other groups and therefore is likely to
experience larger amounts of TTS and PTS, and NMFS will authorize
higher numbers. However, Kogia whales are still likely to avoid sound
levels that would cause higher levels of TTS (greater than 20 dB) or
PTS. Even though the number of takes is high, all of the reasons
described above for why TTS and PTS are not expected to impact
reproduction or survival still apply. The Navy will implement a
mitigation area that will avoid or reduce impacts to sperm whales
(Physeter microcephalus). Nearly the entire important sperm whale
habitat (Mississippi Canyon) is included in the GOMEX Planning
Awareness Mitigation Areas where the Navy will not conduct MTEs, which
are more likely to have more severe effects because of their multiple
platforms, hull-mounted sonar, and longer-durations.
Below we compile and summarize the information that supports our
determination that the Navy's activities will not adversely impact
recruitment or survival for any of the affected stocks addressed in
this section.
Sperm whale (North Atlantic stock)--This stock spans the East Coast
out into oceanic waters well beyond the U.S. EEZ. There is no currently
reported trend for the population and, although listed as endangered
under the ESA, there are no specific issues with the status of the
stock that cause particular concern (e.g., UMEs). NMFS will authorize
one mortality, which, when added to the other forward-projected
mortality does not exceed the PBR insignificance threshold. One Level A
harassment take by tissue damage will also be authorized which, as
noted previously, could range in impact from minor to something just
less than M/SI that could seriously impact fitness. However, given the
Navy's mitigation and the sperm whale's large size, which improves
detection by Lookouts, exposure at the closer to the source and more
severe end of the spectrum is less likely and we cautiously assume some
moderate impact for this single take that could lower one individual's
fitness within the year such that a female (assuming a 50 percent
chance of it being a female) might forego reproduction for one year. As
noted previously, foregone reproduction has less of an impact on
population rates than death (especially for one year) and one instance
would not be expected to impact annual rates of recruitment or
survival, even if it were a female. Regarding the magnitude of Level B
harassment takes (TTS and behavioral disruption), the number of
estimated instances of harassment compared to the abundance within the
U.S. EEZ and both in and outside of the U.S. EEZ, respectively, is 544
percent and 41 percent (Table 73). This information, combined with the
known range of the stock, suggests that something less than a quarter
of the individuals in the stock are likely impacted, but that there is
likely some repeat exposure (2-11 days within a year) of some subset of
individuals that remain within the U.S. EEZ for an extended time.
Regarding the severity of those individual takes by Level B behavioral
harassment, we have explained that the duration of any exposure
response is expected to be between minutes and hours (i.e., relatively
short) and the received sound
[[Page 57234]]
levels largely between 160 and 172 dB (i.e., of a lower, to
occasionally moderate, level). Regarding the severity of TTS takes, as
described previously they are expected to be low-level and of short
duration and the associated lost opportunities and capabilities not at
a level that would impact reproduction or survival. For similar reasons
(described above) three estimated Level A harassment takes by PTS for
this stock is unlikely to have any effects on the reproduction or
survival of any individuals.
Altogether, only a small portion of the stock is impacted and any
individual sperm whale is likely to be disturbed at a low-moderate
level, with the majority of animals likely disturbed once or not at
all, and a subset potentially disturbed across 2-11 likely non-
sequential days. Even for an animal disturbed at the high end of this
range (11 days over a year), given the low to moderate impact from each
incident, and the fact that few days with take would likely be
sequential, no impacts to individual fitness are expected. This low to
occasionally moderate magnitude and severity of effects is not expected
to result in impacts on reproduction or or survival, and nor are these
harassment takes combined with the authorized mortality expected to
adversely affect the stock through annual rates of recruitment or
survival. For these reasons, we have determined, in consideration of
all of the effects of the Navy's activities combined, that the
authorized take will have a negligible impact on North Atlantic sperm
whales.
Sperm whale, dwarf sperm whale, and pygmy sperm whale (GOMEX
stocks)--These stocks suffer from lingering health issues from the DWH
oil spill (6-7 percent of individuals of these stocks with adverse
health effects), which means that some could be more susceptible to
exposure to other stressors, and negative population effects (21-42
years until the DWH oil-injured population trajectory is projected to
catch up with the baseline population trajectory (i.e., in the absence
of DWH)), reported as years to recovery. Neither mortality nor tissue
damage from explosives is anticipated or authorized for any of these
three stocks, and sperm whales are not expected to incur PTS. Regarding
the magnitude of Level B harassment takes (TTS and behavioral
disruption), the number of estimated instances of harassment compared
to the abundance is 54-78 percent (Table 73), which suggests that for
each of the three species/stocks either this percentage of the
individuals in these stocks are all taken by harassment on a single
day, or a small subset may be taken on a few days. Regarding the
severity of those individual takes by Level B behavioral harassment, we
have explained that the duration of any exposure response is expected
to be between minutes and hours (i.e., relatively short) and the
received sound levels are largely between 160 and 172 dB (i.e., of a
lower level, less likely to evoke a severe response). Additionally, the
Navy is implementing mitigation areas for sperm whales that are
expected to reduce impacts in important feeding areas, further
lessening the severity of impacts. Regarding the severity of TTS takes,
as described previously they are expected to be low-level, of short
duration, and mostly not in a frequency band that would be expected to
interfere significantly with conspecific communication, echolocation,
or other important low-frequency cues. Also, there is no reason to
believe that any individual would incur these TTS takes more than a few
days in a year, and the associated lost opportunities and capabilities
would not be expected to impact reproduction or survival. For these
same reasons (low level and frequency band), while a small permanent
loss of hearing sensitivity may include some degree of energetic costs
for compensating or may mean some small loss of opportunities or
detection capabilities, 70 estimated Level A harassment takes by PTS
for the two Kogia stocks in the GOMEX would be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival of any
individuals.
Altogether, only a portion of these stocks are impacted and any
individual sperm, dwarf sperm, or pygmy sperm whale is likely to be
disturbed at a low to occasionally moderate level and no more than a
few days per year. Even given the fact that some of the affected
individuals may have compromised health, there is nothing to suggest
that such a low magnitude and severity of effects would result in
impacts on the reproduction or survival of individuals, much less
annual rates of recruitment or survival for any of the stocks. For
these reasons, we have determined, in consideration of all of the
effects of the Navy's activities combined, that the authorized take
will have a negligible impact on the GOMEX stocks of sperm whales,
dwarf sperm whales, and pygmy sperm whales.
Pygmy and Dwarf sperm whales (Western North Atlantic stocks)--These
stocks span the deeper waters of the East Coast north to Canada and out
into oceanic waters beyond the U.S. EEZ. There is no currently reported
trend for these populations and there are no specific issues with the
status of the stocks that cause particular concern. Neither mortality
nor tissue damage from explosives is anticipated or authorized for
these stocks. Regarding the magnitude of Level B harassment takes (TTS
and behavioral disruption), the number of estimated instances of
harassment compared to the abundance within the U.S. EEZ and both in
and outside of the U.S. EEZ, respectively, is 2,105 percent and 360
percent (Table 73). This information, combined with the known range of
the stock, suggests that while not all of the individuals in these
stocks will most likely be taken (because they span well into oceanic
waters) of those that are taken, most will be taken over several
repeated days (though likely not sequential) and some subset that
spends extended time within the U.S. EEZ will likely be taken over a
larger amount of days (likely 15-42 days during a year), some of which
could be sequential. Regarding the severity of the individual takes by
Level B behavioral harassment, we have explained that the duration of
any exposure response is expected to be between minutes and hours (and
likely not more than 24 hours) and the received sound levels are
largely between 160 and 172 dB (i.e., of a lower level, less likely to
evoke a severe response). Additionally, while interrupted feeding bouts
are a known response and concern for odontocetes, we also know that
there are often viable alternative habitat options in the relative
vicinity. Regarding the severity of TTS takes, as described previously
they are expected to be low-level, of short duration and mostly not in
a frequency band that would be expected to interfere significantly with
conspecific communication, echolocation, or other important low-
frequency cues. Also, there is no reason to believe that any individual
would incur these TTS takes more than a few days in a year, and the
associated lost opportunities and capabilities would not be expected to
impact reproduction or survival. For these same reasons (low level and
frequency band), while a small permanent loss of hearing sensitivity
may include some degree of energetic costs for compensating or may mean
some small loss of opportunities or detection capabilities, at the
expected scale the 94 estimated Level A harassment takes by PTS for the
two Kogia stocks in the North Atlantic would be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with
[[Page 57235]]
reproductive success or survival of any individuals.
Altogether, most of the stock will likely be taken (at a low to
occasionally moderate level) over several days a year, and some smaller
portion of the stock is expected to be taken on a relatively moderate
to high number of days across the year, some of which could be
sequential days. Though the majority of impacts are expected to be of a
lower to sometimes moderate severity, the larger number of takes (in
total and for certain individuals) makes it more likely
(probabilistically) that a small number of individuals could be
interrupted during foraging in a manner and amount such that impacts to
the energy budgets of females (from either losing feeding opportunities
or expending considerable energy to find alternative feeding options)
could cause them to forego reproduction for a year (energetic impacts
to males are generally meaningless to population rates unless they
cause death, and it takes extreme energy deficits beyond what would
ever be likely to result from these activities to cause the death of an
adult marine mammal). As noted previously, however, foregone
reproduction (especially for one year) has far less of an impact on
population rates than mortality and a small number of instances of
foregone reproduction would not be expected to adversely impact annual
rates of recruitment or survival, especially given that PBR for both of
these stocks is 21. For these reasons, in consideration of all of the
effects of the Navy's activities combined, we have determined that the
authorized take will have a negligible impact on the West North
Atlantic stocks of pygmy and dwarf sperm whales.
Dolphins and Small Whales--This section builds on the broader
discussion above brings together the discussion of the different types
and amounts of take that different stocks will incur, the applicable
mitigation for each stock, and the status of the stocks to support the
negligible impact determinations for each stock. None of these species
are listed as endangered or threatened under the ESA. We have also
described the unlikelihood of any masking or habitat impacts to any
groups that would rise to the level of affecting individual fitness.
The discussion below focuses on additional information that is specific
to the dolphin taxa (in addition to the general information on
odontocetes provided above, which is relevant to these species) and to
support the summarized group-specific conclusions in the subsequent
sections. Because of several factors, we break out specific findings
into four groups: The two GOMEX (GOM) stocks with authorized mortality,
the two Western North Atlantic stocks with authorized mortality, the
remaining GOMEX stocks (which have a lower magnitude of Level B
harassment takes, but also health issues related to the DWH oil spill),
and the remaining Western North Atlantic stocks.
In Table 74 below, for dolphins and small whales, we indicate the
total annual mortality, Level A and Level B harassment, and a number
indicating the instances of total take as a percentage of abundance.
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As described above, the large majority of Level B behavioral
harassments to odontocetes, and thereby dolphins and small whales, from
hull-mounted sonar (MF1) in the AFTT Study Area would result from
received levels between 160 and 172 dB SPL. Therefore, the majority of
Level B harassment takes are expected to be in the form of low to
occasionally moderate responses of a generally shorter duration. As
mentioned earlier in this section, we anticipate more severe effects
from takes when animals are exposed to higher received levels.
Occasional milder occurrences of Level B behavioral harassment are
unlikely to cause long-term consequences for individual animals or
populations that have any effect on reproduction or survival. Some
behavioral responses could be in the form of a longer (several hours or
a day) and more moderate response, but because they are not expected to
be repeated over more than several sequential days at the most, impacts
to reproduction or survival for most animals are not anticipated. Even
where a few animals could experience effects on reproduction, for the
reasons explained below this would not affect rates of recruitment or
survival.
Research and observations show that if delphinids are exposed to
sonar or other active acoustic sources they may react in a number of
ways depending on their experience with the sound source and what
activity they are engaged in at the time of the acoustic exposure.
Delphinids may not react at all until the sound source is approaching
within a few hundred meters to within a few kilometers depending on the
environmental conditions and species. Some dolphin species (the more
surface-dwelling taxa--typically those with ``dolphin'' in the common
name, except Risso's dolphin, such as bottlenose dolphins, spotted
dolphins, common dolphins, spinner dolphins, rough-toothed dolphins,
etc), especially those residing in more industrialized or busy areas,
have demonstrated more tolerance for disturbance and loud sounds and
many of these species are known to approach vessels to bow-ride. These
species are often considered generally less sensitive to disturbance.
Deep-diving dolphins that reside in deeper waters and generally have
fewer interactions with human activities are more likely to demonstrate
more typical avoidance reactions and foraging interruptions as
described above in the odontocete overview.
BIAs have been identified for several small and resident
populations of bottlenose dolphin in the GOMEX and on the East Coast,
but these identified areas are within bays and estuaries where the Navy
does not use explosives and conducts limited activities by sonar and
other transducers. For example, for the small resident population of
Northern North Carolina Estuarine dolphins, for which there is a BIA,
one-third of the takes are from sub-navigation and ship object
avoidance, which are less impactful than sonar activity and shorter in
duration (by about 30 min or less). The area of activity is at the
northern edge of this BIA, which further reduces the possibility of
modeled takes that would result in impacts that could affect
reproduction or survival. The other two-thirds of the takes for the
Northern North Carolina Estuarine dolphins are from Civilian Port
Defense, which would occur at most only once in five years in the
vicinity of that BIA. Similarly, for the small resident population of
Indian River Lagoon Estuarine system bottlenose dolphins, for which
there is also a BIA, all of the Level B harassment takes are also from
the less impactful sonar activity of sub-navigation and ship object
avoidance and are events of short duration (approximately 30 min). Two
small and resident populations of bottlenose dolphin for which there
are two BIAs (Northern North Carolina Estuarine System and Southern
North Carolina Estuarine System) may be impacted during pile driving
activities for the Elevated Causeway System at Marine Corps Base Camp
Lejeune, North Carolina; however, only one modeled take of a Northern
North Carolina Estuarine System bottlenose dolphin is predicted. There
are no expected takes from any activities to the small resident
population of Southern North Carolina Estuarine System bottlenose
dolphins (for which there is a BIA) and only one expected take to the
small resident population of Mississippi Sound bottlenose dolphins (for
which there is a BIA) from sonar. Therefore, for these small resident
populations of bottlenose dolphins, impacts from Level B harassment are
expected to be short-term and minor, and mostly all in the form of
behavioral disturbance. Abandonment of the area, or any other response
that could affect reproduction or survival, is not anticipated for the
small and resident bottlenose dolphin populations stocks with BIAs from
the Navy's training and testing activities.
Animals from one of these stocks with a BIA, the bottlenose dolphin
of Barataria Bay, Louisiana, which is still showing persistent impacts
from the Cetacean UME in the Northern GOMEX, were recently fitted with
satellite-linked transmitters, which showed that most dolphins remained
within the bay, while those that entered nearshore coastal waters
remained within 1.75 km (Wells et al., 2017). With the Navy's
activities very limited in this type of habitat, the Navy is not
conducting training or testing where Barataria Bay dolphins inhabit and
therefore no takes will occur to this stock.
Below we synthesize and summarize the information that supports our
determination that the Navy's activities will not adversely impact
recruitment or survival for any of the affected stocks addressed in
this section:
Atlantic white-sided dolphin and short-beaked common dolphin
(Western North Atlantic stocks)--There is no currently reported trend
for these stocks and there are no specific issues with the status of
these stocks that cause particular concern (e.g., UMEs). We have
authorized one and six mortalities over the course of five years for
these two stocks, respectively. Given the large residual PBR values for
these stocks (248 and 148), this number of mortalities falls well under
the insignificance threshold. Some Level A harassment take by tissue
damage from explosives has also been authorized for these stocks (3 and
36, respectively). As noted previously, tissue damage effects could
range in impact from minor to
[[Page 57238]]
something just less than M/SI that could seriously impact fitness.
However, given the Navy's mitigation, which makes exposure at the
closer to the source and more severe end of the spectrum less likely,
we cautiously assume some moderate impact for this category of take
that could lower an individual's fitness within the year such that
females (assuming a 50 percent chance that a take is a female) might
forego reproduction for one year. As noted previously, foregone
reproduction has less of an impact on population rates than death
(especially for one year) and the number of takes anticipated for each
stock would not be expected to impact annual rates of recruitment or
survival, even if all of the takes were females (which would be highly
unlikely), especially given the high residual PBRs of these stocks (in
other words, if the stocks can absorb those numbers of mortalities
without impacting ability to approach OSP, clearly they can absorb the
significantly lesser effects of a one-year delay in calving).
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances of harassment
compared to the abundance within the U.S. EEZ and both in and outside
of the U.S. EEZ for these four stocks, respectively, is 308-777 percent
and 34-110 percent (Table 74). This information suggests that some
portion of these stocks are likely not taken at all, but that there is
likely some repeat exposure (2-15 days within a year) of some subset of
individuals. Regarding the severity of those individual takes by Level
B behavioral harassment, we have explained that the duration of any
exposure response is expected to be between minutes and hours (i.e.,
relatively short) and the received sound levels largely below 172 dB
(i.e., of a lower level, less likely to evoke a severe response).
Additionally, while we do not have a specific reason to expect that
these takes would occur sequentially on more than several days in row
or be more severe in nature, the probability of this occurring
increases the higher the total take numbers. Given the higher number of
takes and the associated abundances (especially for short-beaked common
dolphin) we acknowledge the possibility that some smaller subset of
individuals could experience behavioral disruption of a degree that
impacts energetic budgets such that reproduction could be delayed for a
year. However, as discussed above in regards to PBR and Level A
harassment by tissue damage, and in consideration of the potential
reproductive effects of tissue damage and these takes by Level B
behavioral harassment, and in combination with the authorized
mortality--this degree of effects on a small subset of individuals is
still not expected to adversely affect rates of recruitment or
survival. Regarding the severity of TTS takes, as described previously
they are expected to be low-level, of short duration, and not in a
frequency band that would be expected to significantly interfere with
dolphin communication, or echolocation or other important low-frequency
cues--and, therefore, the associated lost opportunities and
capabilities would not be expected to impact reproduction or survival.
For these same reasons (low level and the likely frequency band), while
a small permanent loss of hearing sensitivity may include some degree
of energetic costs for compensating or may mean some small loss of
opportunities or detection capabilities, the estimated Level A
harassment takes by PTS for the two dolphin stocks addressed here (7
and 101, respectively) would be unlikely to impact behaviors,
opportunities, or detection capabilities to a degree that would
interfere with reproductive success or survival of any individuals.
Altogether, individual dolphins are likely to be taken at a low
level, with some animals likely taken once or not at all, many
potentially disturbed across 2-15 predominantly non-sequential days,
and a small number potentially experiencing a level of effects that
could curtail reproduction for one year. This magnitude and severity of
effects (especially given the status of the stocks), including the
consideration or the authorized mortality, is not expected to result in
impacts on annual rates of recruitment or survival for either of the
stocks. For these reasons, we have determined, in consideration of all
of the effects of the Navy's activities combined, that the authorized
take will have a negligible impact on these two Western North Atlantic
stocks of dolphins.
Pantropical spotted dolphin and spinner dolphin (GOM stocks)--As
described above, the GOMEX dolphin stocks indicated in Table 71 suffer
from lingering health issues resulting from the DWH oil spill (7 and 17
percent of individuals of these stocks, respectively, have adverse
health effects), which means that some of them could be more
susceptible to exposure to other stressors, as well as negative
population effects (predicting it will take up to 39 and 105 years,
respectively, for stocks to return to population growth rates predicted
in the absence of DWH effects). We have authorized one mortality over
the course of five years for each of these two stocks, respectively.
Given the large residual PBR values for these stocks (402 and 62,
respectively), this number of mortalities falls well under the
insignificance threshold. Some Level A harassment take by tissue damage
from explosives has also been authorized for these stocks (6 and 14,
respectively). As noted previously, tissue damage effects could range
in impact from minor to something just less than M/SI that could
seriously impact fitness. However, given the Navy's mitigation, which
makes exposure at the closer to the source and more severe end of the
spectrum less likely, we cautiously assume some moderate impact for
this category of take that could lower an individual's fitness within
the year such that females (assuming a 50 percent chance that a take is
a female) might forego reproduction for one year. As noted previously,
foregone reproduction has less of an impact on population rates than
death (especially for one year) and the number of takes anticipated for
each stock would not be expected to impact annual rates of recruitment
or survival, even if all of the takes were females (which would be
highly unlikely), especially given the high residual PBRs of these
stocks (in other words, if the stocks can absorb one mortality each
without impacting ability to approach OSP, they can absorb the
significantly lesser effect of a one-year delay in calving).
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances of harassment
compared to the abundance is 32 percent and 60 percent, respectively,
reflecting that only a subset of each stock will be taken by Level B
behavioral harassment within a year. Of that subset, those taken will
likely be taken one time, but if taken more than that, the 2 or 3 days
would not likely be sequential (Table 74). Regarding the severity of
those individual takes by Level B behavioral harassment, we have
explained that the duration of any exposure response is expected to be
between minutes and hours (i.e., relatively short) and the received
sound levels largely below 172 dB (i.e., of a lower to occasionally
moderate severity).
Regarding the severity of TTS takes, as described previously they
are expected to be low-level, of short duration, and not in a frequency
band that would be expected to significantly interfere with dolphin
communication, or echolocation or other important low-frequency cues.
Therefore, the associated lost opportunities and
[[Page 57239]]
capabilities are not expected to impact reproduction or survival. For
these same reasons (low level and the likely frequency band), while a
small permanent loss of hearing sensitivity may include some degree of
energetic costs for compensating or may mean some small loss of
opportunities or detection capabilities, the estimated Level A
harassment takes by PTS for the dolphin stocks addressed here (15 and
31, respectively) would be unlikely to impact behaviors, opportunities,
or detection capabilities to a degree that would interfere with
reproductive success or survival of any individuals.
Altogether, any individual dolphin is likely to be taken at a low
to occasionally moderate level, with most animals likely not taken at
all and with a subset of animals being taken up to a few non-sequential
days. Even given the fact that some of the affected individuals may
have compromised health, there is nothing to suggest that such a low
magnitude and severity of effects, including the potential tissue
damage, would result in impacts on annual rates of recruitment or
survival for either of these two stocks. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
impact on the GOMEX stocks of pantropical spotted dolphins and spinner
dolphins.
Western North Atlantic dolphin stocks (all stocks in Table 74
except Atlantic white-sided dolphin and short-beaked common dolphin)--
There are no specific issues with the status of these stocks that cause
particular concern (e.g., UMEs). No mortality is expected nor has it
been authorized for these stocks. For some of these stocks, some tissue
damage has been authorized (0 for many, 1-9 for others). As noted
previously, tissue damage effects could range in impact from minor to
something just less than M/SI that could seriously impact fitness.
However, given the Navy's mitigation, which makes exposure at the
closer to the source and more severe end of the spectrum less likely,
we cautiously assume some moderate impact for all these takes that
could lower an individual's fitness within the year such that this
small number of females (assuming a 50 percent chance of being a
female) might forego reproduction for one year. As noted previously,
foregone reproduction has less of an impact on population rates than
death (especially for one year) and a few instances would not be
expected to impact annual rates of recruitment or survival, even if all
of the takes were females (which would be highly unlikely), especially
given the higher residual PBRs, where known (the majority of stocks).
For stocks with no calculated residual PBR or where abundance is
unknown, the limited information available on population size indicates
that the very low number of females who might forego reproduction would
have no effect on rates of recruitment or survival. Regarding the
magnitude of Level B harassment takes (TTS and behavioral disruption),
the number of estimated instances of harassment compared to the
abundance ranges up to 984 percent inside the U.S. EEZ (though some are
significantly lower) and is generally much lower across the whole range
of most stocks, reflecting that for many stocks only a subset of the
stock will be impacted--although alternately for a few of the smaller
bay stocks all individuals are expected to be taken across multiple
days (Table 74). Generally, individuals of most stocks (especially
bottlenose dolphins) might be taken no more than several times each,
while the other species in this group will only accrue takes to a
portion of the stock, but individuals might be taken across 2-20 days
within a year. Regarding the severity of those individual takes by
Level B behavioral harassment, we have explained that the duration of
any exposure response is expected to be between minutes and hours
(i.e., relatively short) and the received sound levels largely below
172 dB (i.e., of a lower level, less likely to evoke a severe
response). While we do not have reason to expect that these takes would
occur sequentially on more than several days in a row or be more severe
in nature, the probability of this occurring increases the higher the
total take numbers. Given higher percentages when compared to
abundances, and especially where the absolute number of takes is higher
(e.g., spinner dolphin), we acknowledge the possibility that some
smaller subset of individuals (especially in the larger stocks with
higher total take numbers) could experience behavioral disruption of a
degree that impacts energetic budgets such that reproduction could be
delayed for a year. However, as discussed above in regards to tissue
damage, and in consideration of the potential reproductive effects of
Level A harassment by tissue damage and these takes by Level B
behavioral harassment, this degree of effects on a small subset of
individuals is still not expected to adversely affect rates of
recruitment or survival. For the smaller Estuarine stocks with the
potential repeated days of disturbance, we note that as described
earlier, the activities that Navy conducts in inland areas (not MTEs,
etc.) are expected to generally result in lower severity responses,
further decreasing the likelihood that they would accrue to effects on
reproduction or survival, even if accrued over several sequential days.
Regarding the severity of TTS takes, as described previously they
are expected to be low-level, of short duration, and not in a frequency
band that would be expected to significantly interfere with dolphin
communication, or echolocation or other important low-frequency cues.
Therefore, the associated lost opportunities and capabilities would not
be expected to impact reproduction or survival. For these same reasons
(low level and the likely frequency band), while a small permanent loss
of hearing sensitivity may include some degree of energetic costs for
compensating or may mean some small loss of opportunities or detection
capabilities, the estimated Level A harassment takes by PTS for the
dolphin stocks addressed here (between 1 and 77) would be unlikely to
impact behaviors, opportunities, or detection capabilities to a degree
that would interfere with reproductive success or survival of any
individuals.
Altogether, any individual dolphin is likely taken at a low to
occasionally moderate level, with some animals likely taken once or not
at all, and a subset potentially disturbed across 2-20 predominantly
non-sequential days, and a small number potentially experiencing a
level of effects that could curtail reproduction for one year. The
magnitude and severity of effects described is not expected to result
in impacts on annual rates of recruitment or survival for any of the
stocks. For these reasons, we have determined, in consideration of all
of the effects of the Navy's activities combined, that the authorized
take will have a negligible impact on these Western North Atlantic
stocks of dolphins.
GOMEX dolphin stocks (all of the stocks indicated in Table 74
except Pantropical spotted dolphin and spinner dolphin)--As described
above, the GOMEX stocks indicated in Table 71 suffer from lingering
health issues resulting from the DWH oil spill (3-30 percent of
individuals of these stocks have adverse health effects), which means
that some of them could be more susceptible to exposure to other
stressors, as well as negative population effects (predicting it will
take up to 76 years, with number varying across stocks, for stocks to
return to population growth rate e predicted in the absence of DWH
effects). Of note, the Northern Coastal bottlenose dolphin adverse
[[Page 57240]]
effect statistics are about twice as high as the others (i.e., all
other stocks are below 17 percent). No mortality is authorized for
these stocks, however a few Level A harassment takes by tissue damage
from explosives (zero for most, 1-2 for a few, and 6 for the Atlantic
spotted dolphin stock) are authorized. As noted previously, tissue
damage effects could range in impact from minor to something just less
than M/SI that could seriously impact fitness. However, given the
Navy's mitigation, which makes exposure at the closer to the source and
more severe end of the spectrum less likely, we cautiously assume some
moderate impact for these Level A harassment takes that could lower an
individual's fitness within the year such that a female (assuming a 50
percent chance of being a female) might forego reproduction for one
year. As noted previously, foregone reproduction has less of an impact
on population rates than death (especially for one year) and a few
instances, even up to six, would not be expected to impact annual rates
of recruitment or survival, even if all of the takes were of females
(which is highly unlikely).
Regarding the magnitude of Level B harassment takes (TTS and
behavioral disruption), the number of estimated instances of harassment
compared to the abundance ranges up to 177 percent, but is generally
much lower for most stocks, reflecting that generally only a subset of
each stock will be taken, with those in the subset taken only a few
non-sequential days of the year (Table 74). Regarding the severity of
those individual takes by Level B behavioral harassment, we have
explained that the duration of any exposure response is expected to be
between minutes and hours (i.e., relatively short) and the received
sound levels largely below 172 dB (i.e., of a lower to occasionally
moderate severity).
Regarding the severity of TTS takes, as described previously they
are expected to be low-level, of short duration, and not in a frequency
band that would be expected to significantly interfere with dolphin
communication, or echolocation or other important low-frequency cues.
Therefore, the associated lost opportunities and capabilities would not
be expected to impact reproduction or survival. For these same reasons
(low level and the likely frequency band), while a small permanent loss
of hearing sensitivity may include some degree of energetic costs for
compensating or may mean some small loss of opportunities or detection
capabilities, the estimated Level A harassment takes by PTS for the
dolphin stocks addressed here (all 3 or below, with the exception of
three stocks with much larger abundances with 4, 8, and 15 PTS takes)
would be unlikely to impact behaviors, opportunities, or detection
capabilities to a degree that would interfere with reproductive success
or survival of any individuals.
Altogether, any individual dolphin is likely to be taken at a low
to occasionally moderate level, with many animals likely not taken at
all and with a subset of animals being taken up to a few times. A very
small number could potentially experience tissue damage that could
curtail reproduction for one year. Even given the fact that some of the
affected individuals may have compromised health, there is nothing to
suggest that such a low magnitude and severity of effects would result
in impacts on annual rates of recruitment or survival for any of the
GOMEX stocks indicated in Table 74. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
impact on these GOMEX stocks of dolphins.
Harbor Porpoise--In this section, we build on the broader
Odontocete discussion above (i.e., that information applies to harbor
porpoises as well), except where we offer alternative information about
the received levels for harbor porpoise Level B behavioral harassment.
We bring together the discussion of the different types and amounts of
take that the stock will incur, the applicable mitigation for the
stock, and the status of the stock to support the negligible impact
determination. Harbor porpoises are not listed as endangered or
threatened under the ESA. The discussion below focuses on additional
information that is specific to harbor porpoises (in addition to the
general information on odontocetes provided above, which is relevant to
this species) to support the summarized conclusion for this stock. We
have also described previously the unlikelihood of any masking or
habitat impacts to harbor porpoises that would affect reproduction or
survival.
In Table 75, below for porpoises, we indicate the total annual
mortality, Level A and Level B harassment, and a number indicating the
instances of total take as a percentage of abundance. Since the
proposed rule, the Navy has removed one of its testing activities in
the Northeast Range Complex (four events--USWT), which decreased the
number of Level B harassment takes by approximately 10,000 takes
annually for harbor porpoise.
[[Page 57241]]
[GRAPHIC] [TIFF OMITTED] TR14NO18.013
Note that this paragraph provides specific information that is in
lieu of the parallel information provided for odontocetes as a whole.
The majority of takes by harassment of harbor porpoises in the AFTT
Study Area are caused by sources from the MF1 active sonar bin (which
includes hull-mounted sonar) because they are high level sources at a
frequency (1-10 kHz), which overlaps a more sensitive portion (though
not the most sensitive) of the HF hearing range, and of the sources
expected to result in take, they are used in a large portion of
exercises (see Table 1.5-5 in the Navy's rulemaking/LOA application).
Most of the takes (88 percent) from the MF1 bin in the AFTT Study Area
would result from received levels between 154 and 166 dB SPL. For the
remaining active sonar bin types, the percentages are as follows: LF3 =
98 percent between 136 and 154, MF4 = 95 percent between 130 and 148,
MF5 = 93 percent between 118 and 136, and HF4 = 96 percent between 118
and 148 dB SPL. These values may be derived from the information in
Tables 6.4-8 through 6.4-12 in the Navy's rulemaking/LOA application
(though they were provided directly to NMFS upon request).
Harbor porpoises have been shown to be particularly sensitive to
human activity (Tyack et al., 2011; Pirotta et al., 2012). The
information currently available regarding harbor porpoises suggests a
very low threshold level of response for both captive (Kastelein et
al., 2000; Kastelein et al., 2005) and wild (Johnston, 2002) animals.
Southall et al. (2007) concluded that harbor porpoises are likely
sensitive to a wide range of anthropogenic sounds at low received
levels (approximately 90 to 120 dB). Research and observations of
harbor porpoises for other locations show that this species is wary of
human activity and will display profound avoidance behavior for
anthropogenic sound sources in many situations at levels down to 120 dB
re 1 [micro]Pa (Southall, 2007). Harbor porpoises routinely avoid and
swim away from large motorized vessels (Barlow et al., 1988; Evans et
al., 1994; Palka and Hammond, 2001; Polacheck and Thorpe, 1990). Harbor
porpoises may startle and temporarily leave the immediate area of the
training or testing until after the event ends. Accordingly, harbor
porpoises have been assigned a lower Level B behavioral harassment
threshold, i.e., a more distant distance cutoff (40 km for high source
level, 20 km for moderate source level) and, as a result, the number of
harbor porpoise taken by Level B behavioral harassment through exposure
to LFAS/MFAS/HFAS in the AFTT Study Area is generally higher than the
other species. Given the levels they are exposed to and their
sensitivity, some responses would be of a lower severity, but many
would likely be considered moderate. As mentioned earlier in the
odontocete overview, we anticipate more severe effects from takes when
animals are exposed to higher received levels or sequential days of
impacts; occasional low to moderate behavioral reactions are unlikely
to affect reproduction or survival. Some takes by Level B behavioral
harassment could be in the form of a longer (several hours or a day)
and more moderate response, but unless they are repeated over more than
several sequential days, impacts to reproduction or survival for most
animals are not anticipated. Even where some smaller number of animals
could experience effects on reproduction (which could happen to a small
number), for the reasons explained below this would not affect rates of
recruitment or survival, especially given the status of the stock.
A BIA was identified for this small and resident population of
harbor porpoises by LaBrecque et al. (2015a, 2015b). The population
straddles the Northern border of the U.S. EEZ and AFTT Study Area, with
perhaps approximately half located inside the border (noting that BIAs
were only identified within the U.S. EEZ, so the whole BIA is in the
AFTT Study Area). Navy testing activities that use sonar and other
transducers could occur year round within the Northeast Range Complexes
in the vicinity of the BIA. However, the harbor porpoise BIA is
included in the Gulf of Maine Planning Awareness Mitigation Area where
the Navy will not plan MTEs (Composite Training Unit or Fleet/
Sustainment Exercises) and will not conduct more than 200 hrs of hull-
mounted MFAS per year, both of which reduce the likely severity of
potential Level B harassment by behavioral disturbance (e.g., it is
less likely that harbor porpoises would be displaced from the preferred
habitat in the BIA and thereby suffer effects more likely to impact
reproduction or survival).
In conclusion, the Gulf of Maine/Bay of Fundy stock of harbor
porpoise is found predominantly in northern U.S. coastal waters (<150 m
depth) and up into Canada's Bay of Fundy. No mortality or tissue damage
by explosives are anticipated or authorized for this stock and there
are no specific issues with the status of the stock that cause
particular concern (e.g., UMEs). Regarding the magnitude of Level B
[[Page 57242]]
harassment takes (TTS and behavioral disruption), the number of
estimated instances compared to the abundance within the U.S. EEZ and
both in and outside of the U.S. EEZ, respectively, is 941 percent and
80 percent (Table 75). This information, combined with the known range
of the stock, suggests that only a portion of the individuals in the
stock are likely impacted (i.e., notably less than 80 percent given the
likely repeats; in other words more than 20 percent taken zero times),
but that there would likely be some amount of repeat exposures across
days (perhaps 6-19 days within a year) for some subset of individuals
that spend extended times within the U.S. EEZ. Regarding the severity
of those individual takes by Level B behavioral harassment, the
duration of any exposure response is expected to be from minutes to
hours and not likely exceeding 24 hrs, and the received sound levels of
the MF1 bin are largely between 154 and 166 dB, which, for a harbor
porpoise (which have a lower Level B behavioral harassment threshold)
would mostly be considered a moderate level.
Regarding the severity of TTS takes, as described previously they
are expected to be low-level, of short duration, and not in a frequency
band that would be expected to significantly interfere with harbor
porpoise communication, or echolocation or other important low-
frequency cues. Therefore, the associated lost opportunities and
capabilities would not be expected to impact reproduction or survival.
For these same reasons (low level and the likely frequency band), while
a small permanent loss of hearing sensitivity may include some degree
of energetic costs for compensating or may mean some small loss of
opportunities or detection capabilities, the estimated 454 Level A
harassment takes by PTS for harbor porpoise would be unlikely to impact
behaviors, opportunities, or detection capabilities to a degree that
would interfere with reproductive success or survival for most
individuals. Because of the high number of PTS takes, we acknowledge
that a few animals could potentially incur permanent hearing loss of a
higher degree that could potentially interfere with their successful
reproduction and growth. However, given the status of the stock, even
if this occurred, it would not adversely impact rates of recruitment or
survival.
Altogether, because harbor porpoises are particularly sensitive, it
is likely that a fair number of the responses will be of a moderate
nature. Additionally, as noted, some portion of the stock may be taken
repeatedly on up to 19 days within a year, some of those may be
sequential. Given this and the larger number of total takes (totally
and to individuals), it is more likely (probabilistically) that some
small number of individuals could be interrupted during foraging in a
manner and amount such that impacts to the energy budgets of females
(from either losing feeding opportunities or expending considerable
energy to find alternative feeding options) could cause them to forego
reproduction for a year (energetic impacts to males are generally
meaningless to population rates unless they cause death, and it takes
extreme energy deficits beyond what would ever be likely to result from
these activities to cause the death of an adult marine mammal). As
noted previously, however, foregone reproduction (especially for one
year) has far less of an impact on population rates than mortality and
a small number of instances would not be expected to adversely impact
annual rates of recruitment or survival, especially given that the
residual PBR of harbor porpoises is 451 (and a one year delay in
calving has a far less severe impact on population rates than death,
and this stock could absorb more than 400 deaths without inhibiting its
ability to approach OSP). All indications are that the number of times
in which reproduction would be likely to be foregone will not affect
the stock's annual rates of recruitment or survival. For these reasons,
we have determined, in consideration of all of the effects of the
Navy's activities combined, that the authorized take will have a
negligible impact on harbor porpoises.
Beaked Whales--In this section, we build on the broader Odontocete
discussion above (i.e., that information applies to beaked whales as
well), except where we offer alternative information about the received
levels for beaked whale Level B behavioral harassment. We bring
together the discussion of the different types and amounts of take that
different stocks will incur, the applicable mitigation for each stock,
and the status of the stocks to support the negligible impact
determinations for each stock. None of these species are listed as
endangered or threatened under the ESA. For beaked whales, there is no
predicted mortality or tissue damage from explosives for any stock.
Broadly, we have also described the unlikelihood of any masking or
habitat impacts to any groups that would rise to the level of affecting
individual fitness. The discussion below focuses on additional
information that is specific to beaked whales (in addition to the
general information on odontocetes provided above, which is relevant to
these species) to support the summarized conclusion for this stock.
Because there are differential magnitudes of effect to the GOMEX stocks
of beaked whales (lower magnitude of Level B harassment, but also
lingering effects from the DWH oil spill) versus the Western North
Atlantic beaked whales, we break out specific findings into those two
groups.
In Table 76 below, for beaked whales, we indicate the total annual
mortality, Level A and Level B harassment, and a number indicating the
instances of total take as a percentage of abundance.
[[Page 57243]]
[GRAPHIC] [TIFF OMITTED] TR14NO18.014
Note that this first paragraph provides specific information that
is in lieu of the parallel information provided for odontocetes as a
whole. The majority of takes by harassment of beaked whales in the AFTT
Study Area are caused by sources from the MF1 active sonar bin (which
includes hull-mounted sonar) because they are high level sources at a
frequency (1-10 kHz), which overlaps a more sensitive portion (though
not the most sensitive) of the MF hearing range, and of the sources
expected to result in take, they are used in a large portion of
exercises (see Table 1.5-5 in the Navy's rulemaking/LOA application).
Most of the takes (91 percent) from the MF1 bin in the AFTT Study Area
would result from received levels between 148 and 160 dB SPL. For the
remaining active sonar bin types, the percentages are as follows: LF3 =
94 percent between 136 and 148, MF4 = 96 percent between 124 and 148,
MF5 = 96 percent between 100 and 142, and HF4 = 94 percent between 100
and 148 dB SPL. These values may be derived from the information in
Tables 6.4-8 through 6.4-12 in the Navy's rulemaking/LOA application
(though they were provided directly to NMFS upon request). Given the
levels they are exposed to and their sensitivity, some responses would
be of a lower severity, but many would likely be considered moderate.
As is the case with harbor porpoises, research has shown that
beaked whales are especially sensitive to the presence of human
activity (Tyack et al., 2011; Pirotta et al., 2012) and therefore have
been assigned a lower harassment threshold, i.e., a more distant
distance cutoff (50 km for high source level, 25 km for moderate source
level). Given the levels they are exposed to and their sensitivity,
some responses would be of a lower severity, but many would likely be
considered moderate.
Beaked whales have been documented to exhibit avoidance of human
activity or respond to vessel presence (Pirotta et al., 2012). Beaked
whales were observed to react negatively to survey vessels or low
altitude aircraft by quick diving and other avoidance maneuvers, and
none were observed to approach vessels (Wursig et al., 1998). It has
been speculated for some time that beaked whales might have unusual
sensitivities to sonar sound due to their likelihood of stranding in
conjunction with MFAS use. Research and observations show that if
beaked whales are exposed to sonar or other active acoustic sources
they may startle, break off feeding dives, and avoid the area of the
sound source to levels of 157 dB re 1 [micro]Pa, or below (McCarthy et
al., 2011). Acoustic monitoring during actual sonar exercises revealed
some beaked whales continuing to forage at levels up to 157 dB re 1
[micro]Pa (Tyack et al. 2011). Stimpert et al. (2014) tagged a Baird's
beaked whale, which was subsequently exposed to simulated MFAS. Changes
in the animal's dive behavior and locomotion were observed when
received level reached 127 dB re 1[mu]Pa. However, Manzano-Roth et al.
(2013) found that for beaked whale dives that continued to occur during
MFAS activity, differences from normal dive profiles and click rates
were not detected with estimated received levels up to 137 dB re 1
[micro]Pa while the animals were at depth during their dives. And in
research done at the Navy's fixed tracking range in the Bahamas,
animals were observed to leave the immediate area of the anti-submarine
warfare training exercise (avoiding the sonar acoustic footprint at a
distance where the received level was ``around 140 dB'' SPL, according
to Tyack et al. (2011)) but return within a few days after the event
ended (Claridge and Durban, 2009; Moretti et al., 2009, 2010; Tyack et
al., 2010, 2011; McCarthy et al., 2011). Tyack et al. (2011) report
that, in reaction to sonar playbacks, most beaked whales stopped
echolocating, made long slow ascent to the surface, and moved away from
the sound. A similar behavioral response study conducted in Southern
California waters during the 2010-2011 field season found that Cuvier's
beaked whales exposed to MFAS displayed behavior ranging from initial
orientation changes to avoidance responses characterized by energetic
fluking and swimming away from the source (DeRuiter et al., 2013b).
However, the authors did not detect similar responses to incidental
exposure to distant naval sonar exercises at comparable received
levels, indicating
[[Page 57244]]
that context of the exposures (e.g., source proximity, controlled
source ramp-up) may have been a significant factor. The study itself
found the results inconclusive and meriting further investigation.
Populations of beaked whales and other odontocetes on the Bahamas and
other Navy fixed ranges, where Navy activities have been operating for
decades, appear to be stable. Take by Level B behavioral harassment
(most likely avoidance of the area of Navy activity) seem likely in
most cases if beaked whales are exposed to anti-submarine sonar within
a few tens of kilometers, especially for prolonged periods (a few hours
or more) since this is one of the most sensitive marine mammal groups
to anthropogenic sound of any species or group studied to date and
research indicates beaked whales will leave an area where anthropogenic
sound is present (Tyack et al., 2011; De Ruiter et al., 2013; Manzano-
Roth et al., 2013; Moretti et al., 2014). Research involving tagged
Cuvier's beaked whales in the SOCAL Range Complex reported on by
Falcone and Schorr (2012, 2014) indicates year-round prolonged use of
the Navy's training and testing area by these beaked whales and has
documented movements in excess of hundreds of kilometers by some of
those animals. Given that some of these animals may routinely move
hundreds of kilometers as part of their normal pattern, leaving an area
where sonar or other anthropogenic sound is present may have little, if
any, cost to such an animal. Photo identification studies in the SOCAL
Range Complex, have identified approximately 100 individual Cuvier's
beaked whale individuals with 40 percent having been seen in one or
more prior years, with re-sightings up to seven years apart (Falcone
and Schorr, 2014). These results indicate long-term residency by
individuals in an intensively used Navy training and testing area,
which may also suggest a lack of adverse impact on rates of recruitment
and survival in the areas a result of exposure to Navy's training and
testing activities. Finally, results from passive acoustic monitoring
estimated regional Cuvier's beaked whale densities were higher than
indicated by NMFS' broad scale visual surveys for the U.S. West Coast
(Hildebrand and McDonald, 2009).
As mentioned earlier in the odontocete overview, we anticipate more
severe effects from takes when animals are exposed to higher received
levels or sequential days of impacts. Occasional instances of take by
Level B behavioral harassment of a low to moderate severity are
unlikely to affect reproduction or survival. Here, some small number of
takes by Level B behavioral harassment could be in the form of a longer
(several hours or a day) and more moderate response, and/or some small
number could be repeated over more than several sequential days.
Impacts to reproduction could be possible for some small number of
individuals, but given the information presented regarding beaked whale
movement patterns, their return to areas within hours to a few days
after a disturbance, and their continued presence and abundance in the
area of instrumented Navy ranges, these impacts seem somewhat less
likely. Nonetheless, even where some smaller number of animals could
experience effects on reproduction, they would not be expected to
adversely affect rates of recruitment or survival.
Below we synthesize and summarize the information that supports our
determination that the Navy's activities will not adversely impact
recruitment or survival for any of the affected stocks addressed in
this section:
Beaked whales (Western North Atlantic stocks)--These stocks span
the deeper waters of the East Coast north to Canada and out into
oceanic waters beyond the U.S. EEZ. There is no currently reported
trend for these populations and there are no specific issues with the
status of the stocks that cause particular concern. Neither mortality
nor tissue damage from explosives is anticipated or authorized for
these stocks. Regarding the magnitude of Level B harassment takes (TTS
and behavioral disruption), the number of estimated instances of
harassment compared to the abundance within the U.S. EEZ and both in
and outside of the U.S. EEZ is 1567-1836 percent and 148-297 percent,
respectively (Table 76). This information, combined with the known
range of the stock, suggests that while not all of the individuals in
these stocks will most likely be taken (because they span well into
oceanic waters), of those that are, most will be taken over a few days
(though likely not sequential) and some subset that spends extended
time within the U.S. EEZ will likely be taken over a larger amount of
days (maybe 15-37) some of which could be sequential. Regarding the
severity of those individual takes by Level B behavioral harassment, we
have explained that the duration of any exposure response is expected
to generally be between minutes and hours and largely between 148 and
160 dB, though with beaked whales, which are considered somewhat more
sensitive, this could mean that some individuals will leave preferred
habitat for a day or two. However, while interrupted feeding bouts are
a known response and concern for odontocetes, we also know that there
are often viable alternative habitat options in the relative vicinity
in the Western North Atlantic.
Regarding the severity of TTS takes, as described previously they
are expected to be low-level, of short duration, and not in a frequency
band that would adversely affect communication, inhibit echolocation,
or otherwise interfere with other low frequency cues. Therefore any
associated lost opportunities and capabilities would not impact
reproduction or survival. For the same reasons (low level and frequency
band) the one to three estimated Level A harassment takes by PTS for
these stocks are unlikely to have any effects on the reproduction or
survival of any individuals.
Altogether, a small portion of the stock will likely be taken (at a
relatively moderate level) on a relatively moderate to high number of
days across the year, some of which could be sequential. Though the
majority of impacts are expected to be of a sometimes low, but more
likely, moderate magnitude and severity, the sensitivity of beaked
whales and larger number of takes makes it more likely
(probabilistically) that a small number of individuals could be
interrupted during foraging in a manner and amount such that impacts to
the energy budgets of females (from either losing feeding opportunities
or expending considerable energy to find alternative feeding options)
could cause them to forego reproduction for a year (energetic impacts
to males are generally meaningless to population rates unless they
cause death, and it takes extreme energy deficits beyond what would
ever be likely to result from these activities to cause the death of an
adult marine mammal). As noted previously, however, foregone
reproduction (especially for one year) has far less of an impact on
population rates than mortality and a small number of instances would
not be expected to adversely impact annual rates of recruitment or
survival. Based on the abundance of these stocks in the area and the
evidence of little, if any, known human-caused mortality, all
indications here are that the small number of times in which
reproduction would be likely to be foregone will not affect the stock's
annual rates of recruitment or survival. For these reasons, we have
determined, in consideration of all of the effects of the Navy's
activities combined, that the authorized take will have a negligible
[[Page 57245]]
impact on the Western North Atlantic stocks of beaked whales.
Beaked whales (GOMEX stocks)--The animals in these stocks suffer
from lingering health issues resulting from the DWH oil spill (four
percent of individuals of these stocks have adverse health effects),
which means that some of them could be more susceptible to exposure to
other stressors, and negative population effects (10 years for their
growth rate to recover to the rate predicted for the stock if it had
not incurred spill impacts). Neither mortality nor tissue damage from
explosives is anticipated or authorized for these stocks. Level A
harassment take from PTS is also unlikely to occur. Regarding the
magnitude of Level B harassment takes (TTS and behavioral disruption),
the number of estimated instances of harassment compared to the
abundance is 148-155 percent (Table 76). This information indicates
that either the individuals in these stocks are all taken by harassment
one or two days within a year, or that a subset are not taken at all
and a small subset may be taken several times. Regarding the severity
of those individual takes, we have explained that the duration of any
exposure response is expected to generally be between minutes and hours
and largely between 148 and 160 dB, though with beaked whales, which
are considered somewhat more sensitive, this could mean that some
individuals will leave preferred habitat for a day or two. However,
while interrupted feeding bouts are a known response and concern for
odontocetes, we also know that there are often viable alternative
habitat options in the relative vicinity in the GOMEX. Regarding the
severity of TTS takes, as described previously they are expected to be
low-level, of short duration, and not in a frequency band that would
adversely affect communication, inhibit echolocation, or otherwise
interfere with other low frequency cues. Therefore any associated lost
opportunities and capabilities would not impact reproduction or
survival.
Altogether, likely only a portion of these stocks are impacted and
any individual beaked whale is likely being disturbed moderate level no
more than a few days per year. Even given the fact that some of the
affected individuals may have compromised health, there is nothing to
suggest that this magnitude and severity of effects would result in
impacts on annual rates of recruitment or survival for any of the
stocks. For these reasons, we have determined, in consideration of all
of the effects of the Navy's activities combined, that the authorized
take will have a negligible impact on the GOMEX stocks of beaked whales
included in Table 76.
Pinnipeds
In this section, we build on the broader discussion above and bring
together the discussion of the different types and amounts of take that
different stocks will incur, the applicable mitigation for each stock,
and the status of the stocks to support the negligible impact
determinations for each stock. None of these species are listed as
endangered or threatened under the ESA. For pinnipeds, there is no
predicted mortality or tissue damage from explosives for any stock.
Broadly, we have already described above why we believe the incremental
addition of the small number of low-level PTS takes in predominantly
narrow frequency bands will not have any meaningful effect towards
inhibiting reproduction or survival. We have also described the
unlikelihood of any masking or habitat impacts to any groups that would
rise to the level of affecting individual fitness. Much of the
discussion below focuses on the behavioral effects. A UME has been
designated for harbor seals and gray seals, which is addressed below,
but because of the small magnitude and severity of effects for all of
the species, it is not necessary to break out the findings by species
or stock.
In Table 77 below for pinnipeds, we indicate the total annual
mortality, Level A and Level B harassment, and a number indicating the
instances of total take as a percentage of abundance.
[GRAPHIC] [TIFF OMITTED] TR14NO18.015
[[Page 57246]]
The majority of takes by harassment of pinnipeds in the AFTT Study
Area are caused by sources from the MF1 active sonar bin (which
includes hull-mounted sonar) because they are high level sources at a
frequency (1-10 kHz), which overlaps the most sensitive portion of the
pinniped hearing range, and of the sources expected to result in take,
they are used in a large portion of exercises (see Table 1.5-5 in the
Navy's rulemaking/LOA application). Most of the takes (76 percent) from
the MF1 bin in the AFTT Study Area would result from received levels
between 166 and 172 dB SPL, while another 23 percent would result from
exposure between 172 and 178 dB SPL. For the remaining active sonar bin
types, the percentages are as follows: LF3 = 97 percent between 148 and
166, MF4 = 97 percent between 142 and 166, MF5 = 97 percent between 130
and 160, and HF4 = 96 percent between 118 and 166 dB SPL. These values
may be derived from the information in Tables 6.4-8 through 6.4-12 in
the Navy's rulemaking/LOA application (though they were provided
directly to NMFS upon request). Exposures at these levels would be
considered of low to occasionally moderate severity. As mentioned
earlier in this section, we anticipate more severe effects from takes
when animals are exposed to higher received levels. Occasional milder
takes by Level B behavioral harassment are unlikely to cause long-term
consequences for individual animals or populations, especially when
they are not expected to be repeated over sequential multiple days. For
all pinnipeds, harassment takes from explosives (behavioral, TTS, or
PTS if present) comprise a very small fraction of those caused by
exposure to active sonar. No take of pinnipeds is expected to result
from pile driving, and take from exposure to airguns is limited to
single digits of gray and harbor seals.
Because the majority of harassment take of pinnnipeds results from
the sources in the MF1 bin (1-10 kHz), the vast majority of threshold
shift caused by Navy sonar sources will typically occur in the range of
2-20 kHz. This frequency range falls within the range of pinniped
hearing, however, odontocete vocalizations typically span a somewhat
lower range than this (<0.2 to 10 kHz) and threshold shift from active
sonar will often be in a narrower band (reflecting the narrower band
source that caused it), which means that TTS incurred by pinnipeds
would typically only interfere with communication within a portion of
an pinniped's range (if it occurred during a time when communication
with conspecifics was occurring). As discussed earlier, it would only
be expected to be of a short duration and relatively small degree. Many
of the other critical sounds that serve as cues for navigation and prey
(e.g., waves, fish, invertebrates) occur below a few kHz, which means
that detection of these signals will not be inhibited by most threshold
shift either. The very low number of takes by threshold shifts that
might be incurred by individuals exposed to explosives or airguns would
likely be lower frequency (5 kHz or less) and spanning a wider
frequency range, which could slightly lower an individual's sensitivity
to navigational or prey cues, or a small portion of communication
calls, for several minutes to hours (if temporary) or permanently.
Regarding behavioral disturbance, research and observations show
that pinnipeds in the water may be tolerant of anthropogenic noise and
activity (a review of behavioral reactions by pinnipeds to impulsive
and non-impulsive noise can be found in Richardson et al., 1995 and
Southall et al., 2007). Available data, though limited, suggest that
exposures between approximately 90 and 140 dB SPL do not appear to
induce strong behavioral responses in pinnipeds exposed to non-pulse
sounds in water (Jacobs and Terhune, 2002; Costa et al., 2003;
Kastelein et al., 2006c). Based on the limited data on pinnipeds in the
water exposed to multiple pulses (small explosives, impact pile
driving, and seismic sources), exposures in the approximately 150 to
180 dB SPL range generally have limited potential to induce avoidance
behavior in pinnipeds (Harris et al., 2001; Blackwell et al., 2004;
Miller et al., 2004). If pinnipeds are exposed to sonar or other active
acoustic sources they may react in a number of ways depending on their
experience with the sound source and what activity they are engaged in
at the time of the acoustic exposure. Pinnipeds may not react at all
until the sound source is approaching within a few hundred meters and
then may alert, ignore the stimulus, change their behaviors, or avoid
the immediate area by swimming away or diving. Effects on pinnipeds in
the AFTT Study Area that are taken by Level B harassment, on the basis
of reports in the literature as well as Navy monitoring from past
activities, will likely be limited to reactions such as increased
swimming speeds, increased surfacing time, or decreased foraging (if
such activity were occurring). Most likely, individuals will simply
move away from the sound source and be temporarily displaced from those
areas, or not respond at all, which would have no effect on
reproduction or survival. In areas of repeated and frequent acoustic
disturbance, some animals may habituate or learn to tolerate the new
baseline or fluctuations in noise level. Habituation can occur when an
animal's response to a stimulus wanes with repeated exposure, usually
in the absence of unpleasant associated events (Wartzok et al., 2003).
While some animals may not return to an area, or may begin using an
area differently due to training and testing activities, most animals
are expected to return to their usual locations and behavior. Given
their documented tolerance of anthropogenic sound (Richardson et al.,
1995 and Southall et al., 2007), repeated exposures of individuals of
any of these species to levels of sound that may cause Level B
harassment are unlikely to result in hearing impairment or to
significantly disrupt foraging behavior.
Thus, even repeated Level B harassment of some small subset of an
overall stock is unlikely to result in any significant realized
decrease in fitness to those individuals that would result in any
adverse impact on rates of recruitment or survival for the stock as a
whole. Evidence from areas where the Navy extensively trains and tests
provides some indication of the possible consequences resulting from
those planned activities. Specifically, almost all of the impacts to
pinnipeds estimated by the quantitative assessment are due to
navigation and object avoidance (detection) activities in navigation
lanes entering Groton, Connecticut. Navigation and object avoidance
(detection) activities normally involve a single ship or submarine
using a limited amount of sonar, therefore significant reactions are
unlikely, especially in phocid seals. The use of sonar from navigation
and object avoidance in Groton, Connecticut likely exposes the same
sub-population of animals multiple times throughout the year. However,
phocid seals are likely to have only minor and short-term behavioral
reactions to these types of activities and significant behavioral
reactions leading to impacts on reproduction or survival would not be
expected, even if some smaller groups were repeatedly taken. Below we
synthesize and summarize the information that supports our
determination that the Navy's activities will not adversely impact
recruitment or survival for any of the affected species and stocks
addressed in this section.
In conclusion, the Western North Atlantic pinnipeds (harp seal,
harbor seal, hooded seal, and gray seal) stocks
[[Page 57247]]
are northern, but highly migratory species. While harp seals are
limited to the northern portion of the U.S. EEZ, gray and harbor seals
may be found as far south as the Chesapeake in late Fall and hooded
seals migrate as far south as Puerto Rico. A UME has been designated
for gray seals and harbor seals and the main pathogen found on the
seals that have been tested is phocine distemper virus. Neither
mortality nor tissue damage from explosives is anticipated or
authorized for any of these stocks. Regarding the magnitude of Level B
harassment takes (TTS and behavioral disruption), the number of
estimated instances of harassment compared to the abundance that is
expected within the AFTT Study area is 34-225 percent, which suggests
that only a subset of the animals in the AFTT Study area would be
taken, but that a few might be taken on several days within the year
(1-5), but not on sequential days. When the fact that some of these
seals are residing in areas near Navy activities is considered, we can
estimate that perhaps some of those individuals might be taken some
higher number of days within the year (up to approximately 10), but
still with no reason to think that these takes would occur on
sequential days, which means that we would not expect effects on
reproduction or survival. Regarding the severity of those individual
Level B behavioral harassment takes, we have explained that the
duration of any exposure response is expected to be between minutes and
hours (i.e., relatively short) and the received sound levels are
largely below 172 dB, with some up to 178 dB (i.e., of a lower to
moderate level, less likely to evoke a severe response) and therefore
there is no indication that the expected takes by Level B behavioral
harassment would have any effect on annual rates of recruitment or
survival.
Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and not in a frequency band that would
adversely affect communication, inhibit echolocation, or otherwise
interfere with other low frequency cues. Therefore any associated lost
opportunities and capabilities would not impact reproduction or
survival. For the same reasons (low level and frequency band) the two
to four estimated Level A harassment takes by PTS for these stocks are
unlikely to have any effects on the reproduction or survival of any
individuals.
Even given the fact that some of the affected harbor seal
individuals may have compromised health due to the UME, there is
nothing to suggest that such a low magnitude and severity of effects
would result in impacts on annual rates of recruitment or survival,
especially given that the stock abundance in NMFS SAR is 75,839 with a
residual PBR of 1,651. Similarly, given the low magnitude and severity
of effects, there is no indication that these activities would affect
reproduction or survival of harp or hooded seals, much less adversely
affect rates of recruitment or survival, especially given that harp
seal abundance is estimated at 6.9 million and hooded seal residual PBR
is 13,950. Gray seals are experiencing a UME as well as an exceedance
of more than 4,299 M/SI above PBR. However, given the low magnitude
(take compared to abundance is 95 percent, meaning the subset of
individuals taken may be taken a few times on non-sequential days) and
low to occasionally moderate severity of impacts, no impacts to
individual reproduction or survival are expected, and therefore no
effects on annual rates of recruitment or survival will occur. For
these reasons, in consideration of all of the effects of the Navy's
activities combined, we have determined that the authorized take will
have a negligible impact on the Western North Atlantic stocks of gray
seals, harbor seals, hooded seals, and harp seals.
Determination
Based on the analysis contained herein of the potential and likely
effects of the specified activities on marine mammals and their
habitat, and taking into consideration the implementation of the
monitoring and mitigation measures, NMFS finds that the total marine
mammal take from the specified activities will have a negligible impact
on all affected marine mammal species and stocks.
Subsistence Harvest of Marine Mammals
There are no subsistence uses or harvest of marine mammals in the
geographic area affected by the specified activities. Therefore, NMFS
has determined that the total taking affecting species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
ESA
There are five marine mammal species under NMFS jurisdiction that
are listed as endangered or threatened under the ESA with confirmed or
possible occurrence in the AFTT Study Area: Blue whale (Western North
Atlantic stock), fin whale (Western North Atlantic stock), sei whale
(Nova Scotia), sperm whale (GOMEX Oceanic stock and North Atlantic
stock), and NARW (Western North Atlantic stock). In addition, the GOMEX
Bryde's whale is proposed for listing under the ESA. The Navy consulted
with NMFS pursuant to section 7 of the ESA, and NMFS also consulted
internally on the issuance of these regulations and LOAs under section
101(a)(5)(A) of the MMPA for AFTT activities. NMFS issued a Biological
and Conference Opinion concluding that the issuance of the rule and
subsequent LOAs are likely to adversely affect, but are not likely to
jeopardize, the continued existence of the threatened and endangered
species under NMFS' jurisdiction and are not likely to result in the
destruction or adverse modification of critical habitat in the AFTT
Study Area. The Biological and Conference Opinion for this action is
available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
National Marine Sanctuaries Act
Federal agency actions that are likely to injure national marine
sanctuary resources are subject to consultation with the Office of
National Marine Sanctuaries (ONMS) under section 304(d) of the National
Marine Sanctuaries Act (NMSA).
On December 15, 2017, the Navy initiated consultation with ONMS and
submitted a Sanctuary Resource Statement (SRS) that discussed the
effects of the U.S. Navy's AFTT activities in the vicinity of
Stellwagen Bank, Gray's Reef, and Florida Keys National Marine
Sanctuaries on sanctuary resources. NMFS worked with the Navy in the
development of the SRS to ensure that it could serve jointly as an SRS
for NMFS' action as well.
On December 20, 2017, NMFS OPR initiated consultation with ONMS on
NMFS' proposed MMPA Incidental Take Regulations for the Navy's AFTT
activities. NMFS requested that ONMS consider the description and
assessment of the effects of the Navy's activities, which included an
assessment of the effects on marine mammals, included in the joint SRS
submitted by the Navy as satisfying NMFS' need to provide an SRS.
ONMS reviewed the SRS, as well as an addendum the Navy provided on
April 3, 2018. On April 12, 2018, ONMS found the SRS addendum
sufficient for the purposes of making an injury determination to
develop recommended alternatives as required by the NMSA. On May 15,
2018, ONMS recommended two reasonable and prudent measures to
[[Page 57248]]
Navy and NMFS (one of which applied to NMFS) in accordance with the
NMSA to minimize injury and to protect sanctuary resources. ONMS
subsequently provided a slight modification of those recommendations to
the Navy and NMFS on August 1, 2018.
On August 17, 2018, the Navy agreed to implement both ONMS
recommendations. On October 30, 2018, NMFS agreed to implement the
recommendation that applied to NMFS, thus concluding our consultation
with ONMS.
NEPA
NMFS participated as a cooperating agency on the AFTT FEIS/OEIS,
which was published on September 14, 2018, and is available at http://www.aftteis.com. In accordance with 40 CFR 1506.3, NMFS independently
reviewed and evaluated the AFTT FEIS/OEIS and determined that it is
adequate and sufficient to meet our responsibilities under NEPA for the
issuance of this rule and associated LOAs. NOAA therefore adopted the
Navy's AFTT FEIS/OEIS. NMFS has prepared a separate Record of Decision.
NMFS' Record of Decision for adoption of the AFTT FEIS/OEIS and
issuance of this final rule and subsequent LOAs can be found at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
Classification
The Office of Management and Budget has determined that this final
rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel
for Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
final rule will not have a significant economic impact on a substantial
number of small entities. The RFA requires Federal agencies to prepare
an analysis of a rule's impact on small entities whenever the agency is
required to publish a notice of proposed rulemaking. However, a Federal
agency may certify, pursuant to 5 U.S.C. 605(b), that the action will
not have a significant economic impact on a substantial number of small
entities. The Navy is the sole entity that will be affected by this
rulemaking, and the Navy is not a small governmental jurisdiction,
small organization, or small business, as defined by the RFA. Any
requirements imposed by an LOA issued pursuant to these regulations,
and any monitoring or reporting requirements imposed by these
regulations, are applicable only to the Navy. NMFS does not expect the
issuance of these regulations or the associated LOAs to result in any
impacts to small entities pursuant to the RFA. Because this action will
directly affect the Navy and not a small entity, NMFS concludes the
action will not result in a significant economic impact on a
substantial number of small entities.
Waiver of Delay in Effective Date
NMFS has determined that there is good cause under the
Administrative Procedure Act (5 U.S.C 553(d)(3)) to waive the 30-day
delay in the effective date of this final rule. No individual or entity
other than the Navy is affected by the provisions of these regulations.
The Navy has informed NMFS that it requests that this final rule take
effect by November 14, 2018, to accommodate the Navy's current Letters
of Authorization expiring November 13, 2018, so as to not cause a
disruption in training and testing activities. NMFS was unable to
accommodate the 30-day delay of effectiveness period due to the need
for additional time to consider additional mitigation measures
presented by the Navy as well as new analysis of information showing
that incidental mortality and serious injury of two stocks previously
analyzed is unlikely to occur. The waiver of the 30-day delay of the
effective date of the final rule will ensure that the MMPA final rule
and Letters of Authorization are in place by the time the previous
authorizations expire. Any delay in finalizing the rule would result in
either: (1) A suspension of planned naval training and testing, which
would disrupt vital training and testing essential to national
security; or (2) the Navy's procedural non-compliance with the MMPA
(should the Navy conduct training and testing without LOAs), thereby
resulting in the potential for unauthorized takes of marine mammals.
Moreover, the Navy is ready to implement the rule immediately. For
these reasons, NMFS finds good cause to waive the 30-day delay in the
effective date. In addition, the rule authorizes incidental take of
marine mammals that would otherwise be prohibited under the statute.
Therefore the rule is granting an exception to the Navy and relieving
restrictions under the MMPA, which is a separate basis for waiving the
30-day effective date for the rule.
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: October 30, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 218 is amended
as follows:
PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 218 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Revise subpart I of part 218 to read as follows:
Subpart I--Taking and Importing Marine Mammals; U.S. Navy's Atlantic
Fleet Training and Testing (AFTT)
Sec.
218.80 Specified activity and specified geographical region.
218.81 Effective dates.
218.82 Permissible methods of taking.
218.83 Prohibitions.
218.84 Mitigation requirements.
218.85 Requirements for monitoring and reporting.
218.86 Letters of Authorization.
218.87 Renewals and modifications of Letters of Authorization.
218.88-218.89 [Reserved]
Subpart I--Taking and Importing Marine Mammals; U.S. Navy's
Atlantic Fleet Training and Testing (AFTT)
Sec. 218.80 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area described in paragraph
(b) of this section and that occurs incidental to the activities listed
in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy under this subpart may
be authorized in Letters of Authorization (LOAs) only if it occurs
within the Atlantic Fleet Training and Testing (AFTT) Study Area, which
includes areas of the western Atlantic Ocean along the East Coast of
North America, portions of the Caribbean Sea, and the Gulf of Mexico.
The AFTT Study Area begins at the mean high tide line along the U.S.
East Coast and extends east to the 45-degree west longitude line, north
to the 65-degree north latitude line, and south to approximately the
20-degree
[[Page 57249]]
north latitude line. The AFTT Study Area also includes Navy pierside
locations, bays, harbors, and inland waterways, and civilian ports
where training and testing occurs.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the Navy conducting training and testing
activities, including:
(1) Training. (i) Amphibious warfare.
(ii) Anti-submarine warfare.
(iii) Electronic warfare.
(iv) Expeditionary warfare.
(v) Mine warfare.
(vi) Surface warfare.
(2) Testing. (i) Naval Air Systems Command Testing Activities.
(ii) Naval Sea System Command Testing Activities.
(iii) Office of Naval Research Testing Activities.
Sec. 218.81 Effective dates.
Regulations in this subpart are effective November 14, 2018 through
November 13, 2023.
Sec. 218.82 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. Sec. 216.106 of this
chapter and 218.86, the Holder of the LOAs (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 218.80(b) by Level A harassment and Level B
harassment associated with the use of active sonar and other acoustic
sources and explosives as well as serious injury or mortality
associated with ship shock trials and vessel strikes provided the
activity is in compliance with all terms, conditions, and requirements
of these regulations in this subpart and the applicable LOAs.
(b) The incidental take of marine mammals by the activities listed
in Sec. 218.80(c) is limited to the following species:
Table 1 to Sec. 218.82
----------------------------------------------------------------------------------------------------------------
Species Stock
----------------------------------------------------------------------------------------------------------------
Suborder Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenidae (right whales): ......................................................................
North Atlantic right whale *........ Western.
Family Balaenopteridae (roquals): ......................................................................
Blue whale *........................ Western North Atlantic (Gulf of St. Lawrence)
Bryde's whale....................... Northern Gulf of Mexico.
NSD.
Minke whale......................... Canadian East Coast.
Fin whale *......................... Western North Atlantic.
Humpback whale...................... Gulf of Maine.
Sei whale *......................... Nova Scotia.
----------------------------------------------------------------------------------------------------------------
Suborder Odontoceti (toothed whales)
----------------------------------------------------------------------------------------------------------------
Family Physeteridae (sperm whale):
Sperm whale *....................... Gulf of Mexico Oceanic.
North Atlantic.
Family Kogiidae (sperm whales):
Dwarf sperm whale................... Gulf of Mexico Oceanic.
Western North Atlantic.
Pygmy sperm whale................... Northern Gulf of Mexico.
Western North Atlantic.
Family Ziphiidae (beaked whales):
Blainville's beaked whale........... Northern Gulf of Mexico.
Western North Atlantic.
Cuvier's beaked whale............... Northern Gulf of Mexico.
Western North Atlantic.
Gervais' beaked whale............... Northern Gulf of Mexico.
Western North Atlantic.
Northern bottlenose whale........... Western North Atlantic.
Sowersby's beaked whale............. Western North Atlantic.
True's beaked whale................. Western North Atlantic.
Family Delphinidae (dolphins):
Atlantic spotted dolphin............ Northern Gulf of Mexico.
Western North Atlantic.
Atlantic white-sided dolphin........ Western North Atlantic.
Bottlenose dolphin.................. Choctawhatchee Bay.
Gulf of Mexico Eastern Coastal.
Gulf of Mexico Northern Coastal.
Gulf of Mexico Western Coastal.
Indian River Lagoon Estuarine System.
Jacksonville Estuarine System.
Mississippi Sound, Lake Borgne, Bay Boudreau.
Northern Gulf of Mexico Continental Shelf.
Northern Gulf of Mexico Oceanic.
Northern North Carolina Estuarine System.
Southern North Carolina Estuarine System.
Western North Atlantic Northern Florida Coastal.
Western North Atlantic Central Florida Coastal.
Western North Atlantic Northern Migratory Coastal.
Western North Atlantic Offshore.
Western North Atlantic South Carolina/Georgia Coastal.
[[Page 57250]]
Western North Atlantic Southern Migratory Coastal.
Clymene dolphin..................... Northern Gulf of Mexico.
Western North Atlantic.
False killer whale.................. Northern Gulf of Mexico.
Western North Atlantic.
Fraser's dolphin.................... Northern Gulf of Mexico.
Western North Atlantic.
Killer whale........................ Northern Gulf of Mexico.
Western North Atlantic.
Long-finned pilot whale............. Western North Atlantic.
Melon-headed whale.................. Northern Gulf of Mexico.
Western North Atlantic.
Pantropical spotted dolphin......... Northern Gulf of Mexico.
Western North Atlantic.
Pygmy killer whale.................. Northern Gulf of Mexico.
Western North Atlantic.
Risso's dolphin..................... Northern Gulf of Mexico.
Western North Atlantic.
Rough-toothed dolphin............... Northern Gulf of Mexico.
Western North Atlantic.
Short-beaked common dolphin......... Western North Atlantic.
Short-finned pilot whale............ Northern Gulf of Mexico.
Western North Atlantic.
Spinner dolphin..................... Northern Gulf of Mexico.
Western North Atlantic.
Striped dolphin..................... Northern Gulf of Mexico.
Western North Atlantic.
White-beaked dolphin................ Western North Atlantic.
Family Phocoenidae (porpoises):
Harbor porpoise..................... Gulf of Maine/Bay of Fundy.
----------------------------------------------------------------------------------------------------------------
Suborder Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Phocidae (true seals):
Gray seal........................... Western North Atlantic.
Harbor seal......................... Western North Atlantic.
Harp seal........................... Western North Atlantic.
Hooded seal......................... Western North Atlantic.
----------------------------------------------------------------------------------------------------------------
Sec. 218.83 Prohibitions.
Notwithstanding incidental takings contemplated in Sec. 218.82(a)
and authorized by LOAs issued under Sec. Sec. 216.106 of this chapter
and 218.86, no person in connection with the activities listed in Sec.
218.80(c) may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. Sec. 216.106
of this chapter and 218.86;
(b) Take any marine mammal not specified in Sec. 218.82(b);
(c) Take any marine mammal specified Sec. 218.82(b) in any manner
other than as specified in the LOAs; or
(d) Take a marine mammal specified Sec. 218.82(b) if NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal.
Sec. 218.84 Mitigation requirements.
When conducting the activities identified in Sec. 218.80(c), the
mitigation measures contained in any LOAs issued under Sec. Sec.
216.106 of this chapter and 218.86 must be implemented. These
mitigation measures include, but are not limited to:
(a) Procedural mitigation. Procedural mitigation is mitigation that
the Navy must implement whenever and wherever an applicable training or
testing activity takes place within the AFTT Study Area for each
applicable activity category or stressor category and includes acoustic
stressors (i.e., active sonar, air guns, pile driving, weapons firing
noise), explosive stressors (i.e., sonobuoys, torpedoes, medium-caliber
and large-caliber projectiles, missiles and rockets, bombs, sinking
exercises, mines, anti-swimmer grenades, line charge testing and ship
shock trials), and physical disturbance and strike stressors (i.e.,
vessel movement, towed in-water devices, small-, medium-, and large-
caliber non-explosive practice munitions, non-explosive missiles and
rockets, non-explosive bombs and mine shapes).
(1) Environmental awareness and education. Appropriate personnel
(including civilian personnel) involved in mitigation and training or
testing activity reporting under the specified activities will complete
one or more modules of the U.S. Navy Afloat Environmental Compliance
Training Series, as identified in their career path training plan.
Modules include: Introduction to the U.S. Navy Afloat Environmental
Compliance Training Series, Marine Species Awareness Training, U.S.
Navy Protective Measures Assessment Protocol, and U.S. Navy Sonar
Positional Reporting System and Marine Mammal Incident Reporting.
(2) Active sonar. Active sonar includes low-frequency active sonar,
mid-frequency active sonar, and high-frequency active sonar. For
vessel-based active sonar activities, mitigation applies only to
sources that are positively controlled and deployed from manned surface
vessels (e.g., sonar sources towed from manned surface platforms). For
aircraft-based active sonar activities, mitigation applies only to
sources that are positively controlled and deployed from manned
aircraft that do not operate at high altitudes (e.g., rotary-wing
aircraft). Mitigation does
[[Page 57251]]
not apply to active sonar sources deployed from unmanned aircraft or
aircraft operating at high altitudes (e.g., maritime patrol aircraft).
(i) Number of Lookouts and observation platform--(A) Hull-mounted
sources. One Lookout for platforms with space or manning restrictions
while underway (at the forward part of a small boat or ship) and
platforms using active sonar while moored or at anchor (including
pierside); two Lookouts for platforms without space or manning
restrictions while underway (at the forward part of the ship); and four
Lookouts for pierside sonar testing activities at Port Canaveral,
Florida and Kings Bay, Georgia.
(B) Non-hull mounted sources. One Lookout on the ship or aircraft
conducting the activity.
(ii) Mitigation zones and requirements. During the activity, at
1,000 yard (yd) the Navy must power down 6 decibels (dB), at 500 yd the
Navy must power down an additional 4 dB (for a total of 10 dB), and at
200 yd the Navy must shut down for low-frequency active sonar >=200 dB
and hull-mounted mid-frequency active sonar; or at 200 yd the Navy must
shut down for low-frequency active sonar <200 dB, mid-frequency active
sonar sources that are not hull-mounted, and high-frequency active
sonar.
(A) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if observed, Navy personnel must relocate
or delay the start until the mitigation zone is clear. Navy personnel
also must observe the mitigation zone for marine mammals; if observed,
Navy personnel must relocate or delay the start of active sonar
transmission.
(B) During low-frequency active sonar at or above 200 dB and hull-
mounted mid-frequency active sonar, Navy personnel must observe the
mitigation zone for marine mammals and power down active sonar
transmission by 6 dB if observed within 1,000 yd of the sonar source;
power down by an additional 4 dB (10 dB total) if observed within 500
yd of the sonar source; and cease transmission if observed within 200
yd of the sonar source.
(C) During low-frequency active sonar below 200 dB, mid-frequency
active sonar sources that are not hull mounted, and high-frequency
active sonar, Navy personnel must observe the mitigation zone for
marine mammals and cease active sonar transmission if observed within
200 yd of the sonar source.
(D) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing or powering up active sonar transmission) until
one of the following conditions has been met: The animal is observed
exiting the mitigation zone; the animal is thought to have exited the
mitigation zone based on a determination of its course, speed, and
movement relative to the sonar source; the mitigation zone has been
clear from any additional sightings for 10 minutes (min) for aircraft-
deployed sonar sources or 30 min for vessel-deployed sonar sources; for
mobile activities, the active sonar source has transited a distance
equal to double that of the mitigation zone size beyond the location of
the last sighting; or for activities using hull-mounted sonar, the ship
concludes that dolphins are deliberately closing in on the ship to ride
the ship's bow wave, and are therefore out of the main transmission
axis of the sonar (and there are no other marine mammal sightings
within the mitigation zone).
(3) Air guns--(i) Number of Lookouts and observation platform. One
Lookout must be positioned on a ship or pierside.
(ii) Mitigation zone and requirements. 150 yd around the air gun.
(A) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if observed, Navy personnel must relocate
or delay the start until the mitigation zone is clear. Navy personnel
also must observe the mitigation zone for marine mammals; if observed,
Navy personnel must relocate or delay the start of air gun use.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if observed, Navy personnel must cease use of
air guns.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing air gun use) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the air
gun; the mitigation zone has been clear from any additional sightings
for 30 min; or for mobile activities, the air gun has transited a
distance equal to double that of the mitigation zone size beyond the
location of the last sighting.
(4) Pile driving. Pile driving and pile extraction sound during
Elevated Causeway System training.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on the shore, the elevated causeway, or a small boat.
(ii) Mitigation zone and requirements. 100 yd around the pile
driver.
(A) Prior to the initial start of the activity (for 30 min), Navy
personnel must observe the mitigation zone for floating vegetation; if
observed, Navy personnel must delay the start until the mitigation zone
is clear. Navy personnel also must observe the mitigation zone for
marine mammals; if observed, Navy personnel must delay the start of
pile driving or vibratory pile extraction.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if observed, Navy personnel must cease impact
pile driving or vibratory pile extraction.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing pile driving or pile extraction) until one of the
following conditions has been met: The animal is observed exiting the
mitigation zone; the animal is thought to have exited the mitigation
zone based on a determination of its course, speed, and movement
relative to the pile driving location; or the mitigation zone has been
clear from any additional sightings for 30 min.
(5) Weapons firing noise. Weapons firing noise associated with
large-caliber gunnery activities.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on the ship conducting the firing. Depending on the
activity, the Lookout could be the same as the one provided for under
``Explosive medium-caliber and large-caliber projectiles'' or under
``Small-, medium-, and large-caliber non-explosive practice munitions''
in paragraphs (a)(8)(i) and (a)(19)(i) of this section.
(ii) Mitigation zone and requirements. Thirty degrees on either
side of the firing line out to 70 yd from the muzzle of the weapon
being fired.
(A) Prior to the initial start of the activity, Navy personnel must
observe the mitigation zone for floating vegetation; if resources
observed, relocate or delay the start until the mitigation zone is
clear. Navy personnel
[[Page 57252]]
also must observe the mitigation zone for marine mammals; if observed,
Navy personnel must relocate or delay the start of weapons firing.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if observed, Navy personnel must cease weapons
firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing weapons firing) until one of the following
conditions has been met: The animal is observed exiting the mitigation
zone; the animal is thought to have exited the mitigation zone based on
a determination of its course, speed, and movement relative to the
firing ship; the mitigation zone has been clear from any additional
sightings for 30 min; or for mobile activities, the firing ship has
transited a distance equal to double that of the mitigation zone size
beyond the location of the last sighting.
(6) Explosive sonobuoys--(i) Number of Lookouts and observation
platform. One Lookout must be positioned in an aircraft or on small
boat. If additional platforms are participating in the activity,
personnel positioned in those assets (e.g., safety observers,
evaluators) will support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. 600 yd around an explosive
sonobuoy.
(A) Prior to the initial start of the activity (e.g., during
deployment of a sonobuoy field, which typically lasts 20-30 min), Navy
personnel must observe the mitigation zone for floating vegetation; if
observed, relocate or delay the start until the mitigation zone is
clear. Navy personnel must conduct passive acoustic monitoring for
marine mammals and use information from detections to assist visual
observations. Navy personnel also must visually observe the mitigation
zone for marine mammals; if observed, Navy personnel must relocate or
delay the start of sonobuoy or source/receiver pair detonations.
(B) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if observed, Navy personnel must cease
sonobuoy or source/receiver pair detonations.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
sonobuoy; or the mitigation zone has been clear from any additional
sightings for 10 min when the activity involves aircraft that have fuel
constraints (e.g., helicopter), or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(D) After completion of the activity (e.g., prior to maneuvering
off station), when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(7) Explosive torpedoes--(i) Number of Lookouts and observation
platform. One Lookout positioned in an aircraft. If additional
platforms are participating in the activity, Navy personnel positioned
in those assets (e.g., safety observers, evaluators) must support
observing the mitigation zone for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements. 2,100 yd around the intended
impact location.
(A) Prior to the initial start of the activity (e.g., during
deployment of the target), Navy personnel must observe the mitigation
zone for floating vegetation; if observed, relocate or delay the start
until the mitigation zone is clear. Navy personnel also must conduct
passive acoustic monitoring for marine mammals and use the information
from detections to assist visual observations. Navy personnel must
visually observe the mitigation zone for marine mammals and jellyfish
aggregations; if observed, Navy personnel must relocate or delay the
start of firing.
(B) During the activity, Navy personnel must observe for marine
mammals and jellyfish aggregations; if observed, Navy personnel must
cease firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; or the mitigation zone has been clear from
any additional sightings for 10 min when the activity involves aircraft
that have fuel constraints, or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(D) After completion of the activity (e.g., prior to maneuvering
off station)--when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(8) Explosive medium-caliber and large-caliber projectiles. Gunnery
activities using explosive medium-caliber and large-caliber
projectiles. Mitigation applies to activities using a surface target.
(i) Number of Lookouts and observation platform. One Lookout must
be on the vessel or aircraft conducting the activity. For activities
using explosive large-caliber projectiles, depending on the activity,
the Lookout could be the same as the one described in weapons firing
noise in paragraph (a)(5)(i) of this section. If additional platforms
are participating in the activity, Navy personnel positioned in those
assets (e.g., safety observers, evaluators) must support observing the
mitigation zone for applicable biological resources while performing
their regular duties.
(ii) Mitigation zone and requirements. (A) 200 yd around the
intended impact location for air-to-surface activities using explosive
medium-caliber projectiles.
(B) 600 yd around the intended impact location for surface-to-
surface activities using explosive medium-caliber projectiles.
(C) 1,000 yd around the intended impact location for surface-to-
surface
[[Page 57253]]
activities using explosive large-caliber projectiles.
(D) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if observed, Navy personnel must relocate
or delay the start until the mitigation zone is clear. Navy personnel
also must observe the mitigation zone for marine mammals; if observed,
Navy personnel must relocate or delay the start of firing.
(E) During the activity, Navy personnel must observe for marine
mammals; if observed, Navy personnel must cease firing.
(F) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; the mitigation zone has been clear from any
additional sightings for 10 min for aircraft-based firing or 30 min for
vessel-based firing; or for activities using mobile targets, the
intended impact location has transited a distance equal to double that
of the mitigation zone size beyond the location of the last sighting.
(G) After completion of the activity (e.g., prior to maneuvering
off station)--when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(9) Explosive missiles and rockets. Aircraft-deployed explosive
missiles and rockets. Mitigation applies to activities using a surface
target.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned in an aircraft. If additional platforms are participating
in the activity, Navy personnel positioned in those assets (e.g.,
safety observers, evaluators) must support observing the mitigation
zone for applicable biological resources while performing their regular
duties.
(ii) Mitigation zone and requirements. (A) 900 yd around the
intended impact location for missiles or rockets with 0.6-20 lb net
explosive weight.
(B) 2,000 yd around the intended impact location for missiles with
21-500 lb net explosive weight.
(C) Prior to the initial start of the activity (e.g., during a fly-
over of the mitigation zone), Navy personnel must observe the
mitigation zone for floating vegetation; if resource observed, Navy
personnel must relocate or delay the start until the mitigation zone is
clear. Navy personnel also must observe the mitigation zone for marine
mammals; if resources observed, Navy personnel must relocate or delay
the start of firing.
(D) During the activity, Navy personnel must observe for marine
mammals; if observed, Navy personnel must cease firing.
(E) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; or the mitigation zone has been clear from
any additional sightings for 10 min when the activity involves aircraft
that have fuel constraints, or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(F) After completion of the activity (e.g., prior to maneuvering
off station)--when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(10) Explosive bombs--(i) Number of Lookouts and observation
platform. One Lookout must be positioned in an aircraft conducting the
activity. If additional platforms are participating in the activity,
Navy personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. 2,500 yd around the intended
target.
(A) Prior to the initial start of the activity (e.g., when arriving
on station), Navy personnel must observe the mitigation zone for
floating vegetation; if observed, Navy personnel must relocate or delay
the start until the mitigation zone is clear. Navy personnel also must
observe the mitigation zone for marine mammals; if observed, Navy
personnel must relocate or delay the start of bomb deployment.
(B) During the activity (e.g., during target approach), Navy
personnel must observe for marine mammals; if observed, Navy personnel
must cease bomb deployment.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing bomb deployment) until one of the following
conditions has been met: The animal is observed exiting the mitigation
zone; the animal is thought to have exited the mitigation zone based on
a determination of its course, speed, and movement relative to the
intended target; the mitigation zone has been clear from any additional
sightings for 10 min; or for activities using mobile targets, the
intended target has transited a distance equal to double that of the
mitigation zone size beyond the location of the last sighting.
(D) After completion of the activity (e.g., prior to maneuvering
off station), when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(11) Sinking exercises--(i) Number of Lookouts and observation
platform. Two Lookouts (one must be positioned in an aircraft and one
must be positioned on a vessel). If additional platforms are
participating in the activity, Navy personnel positioned in those
assets (e.g., safety observers, evaluators) must support observing the
[[Page 57254]]
mitigation zone for applicable biological resources while performing
their regular duties.
(ii) Mitigation zone and requirements. 2.5 nautical miles (nmi)
around the target ship hulk.
(A) Prior to the initial start of the activity (90 min prior to the
first firing), Navy personnel must conduct aerial observations of the
mitigation zone for floating vegetation and delay the start until the
mitigation zone is clear. Navy personnel also must conduct aerial
observations of the mitigation zone for marine mammals and jellyfish
aggregations; if observed, Navy personnel must delay the start of
firing.
(B) During the activity, Navy personnel must conduct passive
acoustic monitoring for marine mammals and use information from
detections to assist visual observations. Navy personnel must visually
observe the mitigation zone for marine mammals from the vessel; if
observed, Navy personnel must cease firing. Immediately after any
planned or unplanned breaks in weapons firing of longer than two hours,
Navy personnel must observe the mitigation zone for marine mammals from
the aircraft and vessel; if observed, Navy personnel must delay
recommencement of firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the target
ship hulk; or the mitigation zone has been clear from any additional
sightings for 30 min.
(D) After completion of the activity (for two hours after sinking
the vessel or until sunset, whichever comes first), Navy personnel must
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed, Navy
personnel must follow established incident reporting procedures. If
additional platforms are supporting this activity (e.g., providing
range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(12) Explosive mine countermeasure and neutralization activities--
(i) Number of Lookouts and observation platform. (A) One Lookout must
be positioned on a vessel or in an aircraft when implementing the
smaller mitigation zone (using up to 0.1-5 lb net explosive weight
charges).
(B) Two Lookouts (one must be in an aircraft and one must be on a
small boat) when implementing the larger mitigation zone (using up to
6-650 lb net explosive weight charges).
(C) If additional platforms are participating in the activity, Navy
personnel positioned in those assets (e.g., safety observers,
evaluators) will support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. (A) 600 yd around the
detonation site for activities using 0.1-5 lb net explosive weight.
(B) 2,100 yd around the detonation site for activities using 6-650
lb net explosive weight (including high explosive target mines).
(C) Prior to the initial start of the activity (e.g., when
maneuvering on station; typically, 10 min when the activity involves
aircraft that have fuel constraints, or 30 min when the activity
involves aircraft that are not typically fuel constrained), Navy
personnel must observe the mitigation zone for floating vegetation; if
observed, Navy personnel must relocate or delay the start until the
mitigation zone is clear. Navy personnel also must observe the
mitigation zone for marine mammals; if observed, Navy personnel must
relocate or delay the start of detonations.
(D) During the activity, Navy personnel must observe the mitigation
zone for marine mammals; if observed, the Navy must cease detonations.
(E) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to detonation
site; or the mitigation zone has been clear from any additional
sightings for 10 min when the activity involves aircraft that have fuel
constraints, or 30 min when the activity involves aircraft that are not
typically fuel constrained.
(F) After completion of the activity (typically 10 min when the
activity involves aircraft that have fuel constraints, or 30 min when
the activity involves aircraft that are not typically fuel
constrained), Navy personnel must observe for marine mammals in the
vicinity of where detonations occurred; if any injured or dead marine
mammals are observed, Navy personnel must follow established incident
reporting procedures. If additional platforms are supporting this
activity (e.g., providing range clearance), these Navy assets will
assist in the visual observation of the area where detonations
occurred.
(13) Explosive mine neutralization activities involving Navy
divers--(i) Number of Lookouts and observation platform. (A) Two
Lookouts (two small boats with one Lookout each, or one Lookout must be
on a small boat and one must be in a rotary-wing aircraft) when
implementing the smaller mitigation zone.
(B) Four Lookouts (two small boats with two Lookouts each), and a
pilot or member of an aircrew must serve as an additional Lookout if
aircraft are used during the activity, when implementing the larger
mitigation zone.
(C) All divers placing the charges on mines must support the
Lookouts while performing their regular duties and must report
applicable sightings to their supporting small boat or Range Safety
Officer.
(D) If additional platforms are participating in the activity, Navy
personnel positioned in those assets (e.g., safety observers,
evaluators) must support observing the mitigation zone for applicable
biological resources while performing their regular duties.
(ii) Mitigation zone and requirements. (A) 500 yd around the
detonation site during activities under positive control using 0.1-20
lb net explosive weigh.
(B) 1,000 yd around the detonation site during all activities using
time-delay fuses (0.1-20 lb net explosive weight) and during activities
under positive control using 21-60 lb net explosive weight charges.
(C) Prior to the initial start of the activity (e.g., when
maneuvering on station for activities under positive control; 30 min
for activities using time-delay firing devices), Navy personnel must
observe the mitigation zone for floating vegetation; if observed, Navy
personnel must relocate or delay the start until the mitigation zone is
clear. Navy personnel also must observe the mitigation zone for marine
mammals; if resource observed, Navy personnel must relocate or delay
the start of detonations or fuse initiation.
(D) During the activity, Navy personnel must observe for marine
mammals; if observed, Navy personnel must cease detonations or fuse
initiation. To the maximum extent practicable depending on mission
[[Page 57255]]
requirements, safety, and environmental conditions, boats must position
themselves near the mid-point of the mitigation zone radius (but
outside of the detonation plume and human safety zone), must position
themselves on opposite sides of the detonation location (when two boats
are used), and must travel in a circular pattern around the detonation
location with one Lookout observing inward toward the detonation site
and the other observing outward toward the perimeter of the mitigation
zone. If used, aircraft must travel in a circular pattern around the
detonation location to the maximum extent practicable. Navy personnel
must not set time-delay firing devices (0.1-20 lb. net explosive
weight) to exceed 10 min.
(E) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
detonation site; or the mitigation zone has been clear from any
additional sightings for 10 min during activities under positive
control with aircraft that have fuel constraints, or 30 min during
activities under positive control with aircraft that are not typically
fuel constrained and during activities using time-delay firing devices.
(F) After completion of an activity (for 30 min), Navy personnel
must observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed, Navy
personnel must follow established incident reporting procedures. If
additional platforms are supporting this activity (e.g., providing
range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(14) Maritime security operations--anti-swimmer grenades--(i)
Number of Lookouts and observation platform. One Lookout must be
positioned on the small boat conducting the activity. If additional
platforms are participating in the activity, Navy personnel positioned
in those assets (e.g., safety observers, evaluators) must support
observing the mitigation zone for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements. 200 yd around the intended
detonation location.
(A) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if observed, Navy personnel must relocate
or delay the start until the mitigation zone is clear. Navy personnel
also must observe the mitigation zone for marine mammals; if observed,
Navy personnel must relocate or delay the start of detonations.
(B) During the activity, Navy personnel must observe for marine
mammals; if observed, Navy personnel must cease detonations.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended detonation location; the mitigation zone has been clear from
any additional sightings for 30 min.; or the intended detonation
location has transited a distance equal to double that of the
mitigation zone size beyond the location of the last sighting.
(D) After completion of the activity (e.g., prior to maneuvering
off station), when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets must assist in the visual
observation of the area where detonations occurred.
(15) Line charge testing--(i) Number of Lookouts and observation
platform. One Lookout must be positioned on a vessel. If additional
platforms are participating in the activity, Navy personnel positioned
in those assets (e.g., safety observers, evaluators) must support
observing the mitigation zone for applicable biological resources while
performing their regular duties.
(ii) Mitigation zone and requirements. 900 yd around the intended
detonation location.
(A) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if observed, Navy personnel must delay
the start until the mitigation zone is clear. Navy personnel also must
observe the mitigation zone for marine mammals; if observed, Navy
personnel must delay the start of detonations.
(B) During the activity, Navy personnel must observe for marine
mammals; if observed, Navy personnel must cease detonations.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended detonation location; or the mitigation zone has been clear
from any additional sightings for 30 min.
(D) After completion of the activity (e.g., prior to maneuvering
off station), when practical (e.g., when platforms are not constrained
by fuel restrictions or mission-essential follow-on commitments), Navy
personnel must observe for marine mammals in the vicinity of where
detonations occurred; if any injured or dead marine mammals are
observed, Navy personnel must follow established incident reporting
procedures. If additional platforms are supporting this activity (e.g.,
providing range clearance), these Navy assets will assist in the visual
observation of the area where detonations occurred.
(16) Ship shock trials--(i) Number of Lookouts and observation
platform. (A) A minimum of ten Lookouts or trained marine species
observers (or a combination thereof) must be positioned either in an
aircraft or on multiple vessels (i.e., a Marine Animal Response Team
boat and the test ship).
(1) If aircraft are used, Lookouts or trained marine species
observers must be in an aircraft and on multiple vessels.
(2) If aircraft are not used, a sufficient number of additional
Lookouts or trained marine species observers must be used to provide
vessel-based visual observation comparable to that achieved by aerial
surveys.
(B) If additional platforms are participating in the activity, Navy
personnel positioned in those assets (e.g., safety observers,
evaluators) must
[[Page 57256]]
support observing the mitigation zone for applicable biological
resources while performing their regular duties.
(ii) Mitigation zone and requirements. 3.5 nmi around the ship
hull.
(A) The Navy must not conduct ship shock trials in the Jacksonville
Operating Area during North Atlantic right whale calving season from
November 15 through April 15.
(B) The Navy must develop detailed ship shock trial monitoring and
mitigation plans approximately one-year prior to an event and must
continue to provide these to NMFS for review and approval.
(C) Pre-activity planning must include selection of one primary and
two secondary areas where marine mammal populations are expected to be
the lowest during the event, with the primary and secondary locations
located more than 2 nmi from the western boundary of the Gulf Stream
for events in the Virginia Capes Range Complex or Jacksonville Range
Complex.
(D) If it is determined during pre-activity surveys that the
primary area is environmentally unsuitable (e.g., observations of
marine mammals or presence of concentrations of floating vegetation),
the shock trial can be moved to a secondary site in accordance with the
detailed mitigation and monitoring plan provided to NMFS.
(E) Prior to the initial start of the activity at the primary shock
trial location (in intervals of 5 hrs, 3 hrs, 40 min, and immediately
before the detonation), Navy personnel must observe the mitigation zone
for floating vegetation; if observed, Navy personnel must delay the
start until the mitigation zone is clear. Navy personnel also must
observe the mitigation zone for marine mammals; if observed, Navy
personnel must delay triggering the detonation.
(F) During the activity, Navy personnel must observe for marine
mammals, large schools of fish, jellyfish aggregations, and flocks of
seabirds; if observed, Navy personnel must cease triggering the
detonation. After completion of each detonation, Navy personnel must
observe the mitigation zone for marine mammals; if any injured or dead
marine mammals are observed, Navy personnel must follow established
incident reporting procedures and halt any remaining detonations until
Navy personnel can consult with NMFS and review or adapt the
mitigation, if necessary.
(G) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing detonations) until one of the following conditions
has been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the ship
hull; or the mitigation zone has been clear from any additional
sightings for 30 min.
(H) After completion of the activity (during the following two days
at a minimum, and up to seven days at a maximum), Navy personnel must
observe for marine mammals in the vicinity of where detonations
occurred; if any injured or dead marine mammals are observed, Navy
personnel must follow established incident reporting procedures. If
additional platforms are supporting this activity (e.g., providing
range clearance), these Navy assets will assist in the visual
observation of the area where detonations occurred.
(17) Vessel movement. The mitigation will not be applied if: the
vessel's safety is threatened; the vessel is restricted in its ability
to maneuver (e.g., during launching and recovery of aircraft or landing
craft, during towing activities, when mooring, etc.); or the vessel is
operated autonomously.
(i) Number of Lookouts and observation platform. One Lookout must
be on the vessel that is underway.
(ii) Mitigation zone and requirements. (A) 500 yd around whales.
(B) 200 yd around all other marine mammals (except bow-riding
dolphins and pinnipeds hauled out on man-made navigational structures,
port structures, and vessels).
(C) During the activity, when underway, Navy personnel must observe
the mitigation zone for marine mammals; if observed, Navy personnel
must maneuver to maintain distance.
(D) Additionally, Navy personnel must broadcast awareness
notification messages with North Atlantic right whale Dynamic
Management Area information (e.g., location and dates) to applicable
Navy assets operating in the vicinity of the Dynamic Management Area.
The information will alert assets to the possible presence of a North
Atlantic right whale to maintain safety of navigation and further
reduce the potential for a vessel strike. Platforms will use the
information to assist their visual observation of applicable mitigation
zones during training and testing activities and to aid in the
implementation of procedural mitigation, including but not limited to,
mitigation for vessel movement. If a marine mammal vessel strike
occurs, Navy personnel must follow the established incident reporting
procedures.
(18) Towed in-water devices. Mitigation applies to devices that are
towed from a manned surface platform or manned aircraft. The mitigation
will not be applied if the safety of the towing platform or in-water
device is threatened.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on a manned towing platform.
(ii) Mitigation zone and requirements. 250 yd around marine
mammals. During the activity, when towing an in-water device, Navy
personnel must observe for marine mammals; if observed, Navy personnel
must maneuver to maintain distance.
(19) Small-, medium-, and large-caliber non-explosive practice
munitions. Mitigation applies to activities using a surface target.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned on the platform conducting the activity. Depending on the
activity, the Lookout could be the same as the one described for
weapons firing noise in paragraph (a)(5)(i) of this section.
(ii) Mitigation zone and requirements. 200 yd around the intended
impact location.
(A) Prior to the initial start of the activity (e.g., when
maneuvering on station), Navy personnel must observe the mitigation
zone for floating vegetation; if observed, Navy personnel must relocate
or delay the start until the mitigation zone is clear. Navy personnel
also must observe the mitigation zone for marine mammals; if observed,
Navy personnel must relocate or delay the start of firing.
(B) During the activity, Navy personnel must observe for marine
mammals; if observed, Navy personnel must cease firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting before or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; the mitigation zone has been clear from any
additional sightings for 10 min for aircraft-based firing or 30 min for
vessel-based firing; or for
[[Page 57257]]
activities using a mobile target, the intended impact location has
transited a distance equal to double that of the mitigation zone size
beyond the location of the last sighting.
(20) Non-explosive missiles and rockets. Aircraft-deployed non-
explosive missiles and rockets. Mitigation applies to activities using
a surface target.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned in an aircraft.
(ii) Mitigation zone and requirements. 900 yd around the intended
impact location.
(A) Prior to the initial start of the activity (e.g., during a fly-
over of the mitigation zone), Navy personnel must observe the
mitigation zone for floating vegetation; if observed, Navy personnel
must relocate or delay the start until the mitigation zone is clear.
Navy personnel also must observe the mitigation zone for marine
mammals; if observed, Navy personnel must relocate or delay the start
of firing.
(B) During the activity, Navy personnel must observe for marine
mammals; if observed, Navy personnel must cease firing.
(C) Commencement/recommencement conditions after a marine mammal
sighting prior to or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing firing) until one of the following conditions has
been met: The animal is observed exiting the mitigation zone; the
animal is thought to have exited the mitigation zone based on a
determination of its course, speed, and movement relative to the
intended impact location; or the mitigation zone has been clear from
any additional sightings for 10 min when the activity involves aircraft
that have fuel constraints, or 30 min when the activity involves
aircraft that are not typically fuel constrained.
(21) Non-explosive bombs and mine shapes. Non-explosive bombs and
non-explosive mine shapes during mine laying activities.
(i) Number of Lookouts and observation platform. One Lookout must
be positioned in an aircraft.
(ii) Mitigation zone and requirements. 1,000 yd around the intended
target.
(A) Prior to the initial start of the activity (e.g., when arriving
on station), Navy personnel must observe the mitigation zone for
floating vegetation; if observed, Navy personnel must relocate or delay
the start until the mitigation zone is clear. Navy personnel also must
observe the mitigation zone for marine mammals; if observed, Navy
personnel must relocate or delay the start of bomb deployment or mine
laying.
(B) During the activity (e.g., during approach of the target or
intended minefield location), Navy personnel must observe the
mitigation zone for marine mammals; if observed, Navy personnel must
cease bomb deployment or mine laying.
(C) Commencement/recommencement conditions after a marine mammal
sighting prior to or during the activity: Navy personnel must allow a
sighted marine mammal to leave the mitigation zone prior to the initial
start of the activity (by delaying the start) or during the activity
(by not recommencing bomb deployment or mine laying) until one of the
following conditions has been met: The animal is observed exiting the
mitigation zone; the animal is thought to have exited the mitigation
zone based on a determination of its course, speed, and movement
relative to the intended target or minefield location; the mitigation
zone has been clear from any additional sightings for 10 min; or for
activities using mobile targets, the intended target has transited a
distance equal to double that of the mitigation zone size beyond the
location of the last sighting.
(b) Mitigation areas. In addition to procedural mitigation, the
Navy must implement mitigation measures within mitigation areas to
avoid potential impacts on marine mammals.
(1) Mitigation areas off the Northeastern United States for sonar,
explosives, and physical disturbance and strikes--(i) Mitigation area
requirements. (A) Northeast North Atlantic Right Whale Mitigation Area
(year-round):
(1) Navy personnel must report the total hours and counts of active
sonar and in-water explosives used in the mitigation area (which
includes North Atlantic right whale ESA-designated critical habitat) in
its annual training and testing activity reports submitted to NMFS.
(2) Navy personnel must minimize the use of low-frequency active
sonar, mid-frequency active sonar, and high-frequency active sonar to
the maximum extent practicable within the mitigation area.
(3) Navy personnel must not use Improved Extended Echo Ranging
sonobuoys in or within 3 nmi of the mitigation area or use explosive
and non-explosive bombs, in-water detonations, and explosive torpedoes
within the mitigation area.
(4) For activities using non-explosive torpedoes within the
mitigation area, Navy personnel must conduct activities during daylight
hours in Beaufort sea state 3 or less. The Navy must use three Lookouts
(one positioned on a vessel and two positioned in an aircraft during
dedicated aerial surveys) to observe the vicinity of the activity. An
additional Lookout must be positioned on the submarine, when surfaced.
Immediately prior to the start of the activity, Navy personnel will
observe for floating vegetation and marine mammals; if observed, Navy
personnel will not commence the activity until the vicinity is clear or
the activity is relocated to an area where the vicinity is clear.
During the activity, Navy personnel will observe for marine mammals; if
observed, Navy personnel will cease the activity. To allow a sighted
marine mammal to leave the area, Navy personnel must not recommence the
activity until one of the following conditions has been met: The animal
is observed exiting the vicinity of the activity; the animal is thought
to have exited the vicinity of the activity based on a determination of
its course, speed, and movement relative to the activity location; or
the area has been clear from any additional sightings for 30 min.
During transits and normal firing, ships will maintain a speed of no
more than 10 knots (kn). During submarine target firing, ships must
maintain speeds of no more than 18 kn. During vessel target firing,
vessel speeds may exceed 18 kn for brief periods of time (e.g., 10-15
min).
(5) For all activities, before vessel transits within the
mitigation area, Navy personnel must conduct a web query or email
inquiry to the National Oceanographic and Atmospheric Administration
Northeast Fisheries Science Center's North Atlantic Right Whale
Sighting Advisory System to obtain the latest North Atlantic right
whale sightings information. Navy personnel on vessels must use the
sightings information to reduce potential interactions with North
Atlantic right whales during transits. Navy personnel on vessels must
implement speed reductions within the mitigation area after observing a
North Atlantic right whale, if transiting within 5 nmi of a sighting
reported to the North Atlantic Right Whale Sighting Advisory System
within the past week, and if transiting at night or during periods of
reduced visibility.
(B) Gulf of Maine Planning Awareness Mitigation Area (year-round):
(1) Navy personnel must report the total hours and counts of active
sonar and in-water explosives used in the
[[Page 57258]]
mitigation area in its annual training and testing activity reports
submitted to NMFS.
(2) Navy personnel must not conduct greater than 200 hrs of hull-
mounted mid-frequency active sonar per year within the mitigation area.
(3) Navy personnel must not conduct major training exercises
(Composite Training Unit Exercises or Fleet Exercises/Sustainment
Exercises) within the mitigation area. If the Navy needs to conduct a
major training exercise within the mitigation area in support of
training requirements driven by national security concerns, Navy
personnel must confer with NMFS to verify that potential impacts are
adequately addressed.
(C) Northeast Planning Awareness Mitigation Areas (year-round):
(1) Navy personnel will avoid planning major training exercises
(Composite Training Unit Exercises or Fleet Exercises/Sustainment
Exercises) within the mitigation area to the maximum extent
practicable.
(2) Navy personnel must not conduct more than four major training
exercises per year (all or a portion of the exercise) within the
mitigation area.
(3) If the Navy needs to conduct additional major training
exercises in the mitigation area in support of training requirements
driven by national security concerns, Navy personnel must provide NMFS
with advance notification and include the information in its annual
training and testing activity reports submitted to NMFS.
(ii) [Reserved]
(2) Mitigation areas off the Mid-Atlantic and Southeastern United
States for sonar, explosives, and physical disturbance and strikes--(i)
Mitigation area requirements. (A) Southeast North Atlantic Right Whale
Mitigation Area (November 15 through April 15):
(1) Navy personnel must report the total hours and counts of active
sonar and in-water explosives used in the mitigation area in its annual
training and testing activity reports submitted to NMFS.
(2) The Navy must not conduct: Low-frequency active sonar (except
as noted in paragraph (b)(2)(i)(A)(3) of this section), mid-frequency
active sonar (except as noted in paragraph (b)(2)(i)(A)(3) of this
section), high-frequency active sonar, missile and rocket activities
(explosive and non-explosive), small-, medium-, and large-caliber
gunnery activities, Improved Extended Echo Ranging sonobuoy activities,
explosive and non-explosive bombing activities, in-water detonations,
and explosive torpedo activities within the mitigation area.
(3) To the maximum extent practicable, Navy personnel must minimize
the use of: Helicopter dipping sonar, low-frequency active sonar and
hull-mounted mid-frequency active sonar used for navigation training,
and low-frequency active sonar and hull-mounted mid-frequency active
sonar used for object detection exercises within the mitigation area.
(4) Before transiting or conducting training or testing activities
within the mitigation area, Navy personnel must initiate communication
with the Fleet Area Control and Surveillance Facility, Jacksonville to
obtain Early Warning System North Atlantic right whale sightings data.
The Fleet Area Control and Surveillance Facility, Jacksonville must
advise Navy personnel on vessels of all reported whale sightings in the
vicinity to help Navy personnel on vessels and aircraft reduce
potential interactions with North Atlantic right whales. Commander
Submarine Force U.S. Atlantic Fleet must coordinate any submarine
activities that may require approval from the Fleet Area Control and
Surveillance Facility, Jacksonville. Navy personnel on vessels must use
the sightings information to reduce potential interactions with North
Atlantic right whales during transits.
(5) Navy personnel on vessels must implement speed reductions after
they observe a North Atlantic right whale, if they are within 5 nmi of
a sighting reported within the past 12 hrs, or when operating in the
mitigation area at night or during periods of poor visibility.
(6) To the maximum extent practicable, Navy personnel on vessels
must minimize north-south transits in the mitigation area.
(B) Southeast North Atlantic Right Whale Critical Habitat Special
Reporting Area (November 15 through April 15):
(1) Navy personnel must report the total hours and counts of active
sonar and in-water explosives used in the Special Reporting Area (which
includes southeast North Atlantic right whale ESA-designated critical
habitat) in its annual training and testing activity reports submitted
to NMFS.
(2) [Reserved]
(C) Jacksonville Operating Area (November 15 through April 15):
(1) Navy units conducting training or testing activities in the
Jacksonville Operating Area must initiate communication with the Fleet
Area Control and Surveillance Facility, Jacksonville to obtain Early
Warning System North Atlantic right whale sightings data. The Fleet
Area Control and Surveillance Facility, Jacksonville must advise Navy
personnel on vessels of all reported whale sightings in the vicinity to
help Navy personnel on vessels and aircraft reduce potential
interactions with North Atlantic right whales. Commander Submarine
Force U.S. Atlantic Fleet must coordinate any submarine activities that
may require approval from the Fleet Area Control and Surveillance
Facility, Jacksonville. Navy personnel must use the reported sightings
information as they plan specific details of events (e.g., timing,
location, duration) to minimize potential interactions with North
Atlantic right whales to the maximum extent practicable. Navy personnel
must use the reported sightings information to assist visual
observations of applicable mitigation zones and to aid in the
implementation of procedural mitigation.
(2) [Reserved]
(D) Navy Cherry Point Range Complex Nearshore Mitigation Area
(March through September):
(1) Navy personnel must not conduct explosive mine neutralization
activities involving Navy divers in the mitigation area.
(2) To the maximum extent practicable, Navy personnel must not use
explosive sonobuoys, explosive torpedoes, explosive medium-caliber and
large-caliber projectiles, explosive missiles and rockets, explosive
bombs, explosive mines during mine countermeasure and neutralization
activities, and anti-swimmer grenades in the mitigation area.
(E) Mid-Atlantic Planning Awareness Mitigation Areas (year-round):
(1) Navy personnel will avoid planning major training exercises
(Composite Training Unit Exercises or Fleet Exercises/Sustainment
Exercises) to the maximum extent practicable.
(2) Navy personnel must not conduct more than four major training
exercises per year (all or a portion of the exercise) within the
mitigation area.
(3) If the Navy needs to conduct additional major training
exercises in the mitigation area in support of training requirements
driven by national security concerns, Navy personnel will provide NMFS
with advance notification and include the information in its annual
training and testing activity reports submitted to NMFS.
(ii) [Reserved]
(3) Mitigation areas in the Gulf of Mexico for sonar--(i)
Mitigation area requirements. (A) Gulf of Mexico Planning Awareness
Mitigation Areas (year-round):
(1) Navy personnel must not conduct major training exercises within
the mitigation area (all or a portion of the exercise).
[[Page 57259]]
(2) If the Navy needs to conduct a major training exercise within
the mitigation areas in support of training requirements driven by
national security concerns, Navy personnel must confer with NMFS to
verify that potential impacts are adequately addressed.
(B) Bryde's Whale Mitigation Area (year-round):
(1) Navy personnel must report the total hours and counts of active
sonar and in-water explosives used in the mitigation area in its annual
training and testing activity reports submitted to NMFS.
(2) Navy personnel must not conduct greater than 200 hrs of hull-
mounted mid-frequency active sonar per year within the mitigation area.
(3) The Navy must not use explosives (except during mine warfare
activities) within the mitigation area.
(ii) [Reserved]
Sec. 218.85 Requirements for monitoring and reporting.
(a) Unauthorized take. The Navy must notify NMFS immediately (or as
soon as operational security considerations allow) if the specified
activity identified in Sec. 218.80 is thought to have resulted in the
mortality or serious injury of any marine mammals, or in any Level A or
Level B harassment take of marine mammals not identified in this
subpart.
(b) Monitoring and reporting under the LOAs. The Navy must conduct
all monitoring and required reporting under the LOAs, including abiding
by the AFTT Study Area monitoring program. Details on program goals,
objectives, project selection process, and current projects are
available at www.navymarinespeciesmonitoring.us.
(c) Notification of injured, live stranded, or dead marine mammals.
The Navy must consult the Notification and Reporting Plan, which sets
out notification, reporting, and other requirements when dead, injured,
or live stranded marine mammals are detected. The Notification and
Reporting Plan is available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
(d) Annual AFTT Study Area marine species monitoring report. The
Navy must submit an annual report of the AFTT Study Area monitoring
describing the implementation and results from the previous calendar
year. Data collection methods must be standardized across range
complexes and study areas to allow for comparison in different
geographic locations. The report must be submitted to the Director,
Office of Protected Resources of NMFS either 90 days after the calendar
year, or 90 days after the conclusion of the monitoring year to be
determined by the Adaptive Management process. This report will
describe progress of knowledge made with respect to monitoring plan
study questions across all Navy ranges associated with the Integrated
Comprehensive Monitoring Program. Similar study questions must be
treated together so that progress on each topic can be summarized
across all Navy ranges. The report need not include analyses and
content that does not provide direct assessment of cumulative progress
on the monitoring plan study questions.
(e) Annual AFTT Study Area training and testing reports. Each year,
the Navy must submit a preliminary report (Quick Look Report) detailing
the status of authorized sound sources within 21 days after the
anniversary of the date of issuance of each LOA to the Director, Office
of Protected Resources, NMFS. Each year, the Navy must submit a
detailed report within 3 months after the anniversary of the date of
issuance of each LOA to the Director, Office of Protected Resources,
NMFS. The annual reports must contain information on Major Training
Exercises (MTEs), Sinking Exercise (SINKEX) events, and a summary of
all sound sources used, including within specified mitigation reporting
areas, as described in paragraph (e)(3) of this section. The analysis
in the detailed report must be based on the accumulation of data from
the current year's report and data collected from the previous report.
The detailed reports must contain information identified in paragraphs
(e)(1) through (5) of this section.
(1) MTEs. This section of the report must contain the following
information for MTEs conducted in the AFTT Study Area:
(i) Exercise Information (for each MTE):
(A) Exercise designator.
(B) Date that exercise began and ended.
(C) Location.
(D) Number and types of active sonar sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, and other platforms,
participating in exercise.
(G) Total hours of all active sonar source operation.
(H) Total hours of each active sonar source bin.
(I) Wave height (high, low, and average) during exercise.
(ii) Individual marine mammal sighting information for each
sighting in each exercise when mitigation occurred:
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indication of whale/dolphin/
pinniped).
(C) Number of individuals.
(D) Initial Detection Sensor (e.g., sonar, Lookout).
(E) Indication of specific type of platform observation made from
(including, for example, what type of surface vessel or testing
platform).
(F) Length of time observers maintained visual contact with marine
mammal.
(G) Sea state.
(H) Visibility.
(I) Sound source in use at the time of sighting.
(J) Indication of whether animal was less than 200 yd, 200 to 500
yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd from
sonar source.
(K) Mitigation implementation. Whether operation of sonar sensor
was delayed, or sonar was powered or shut down, and how long the delay
was.
(L) If source in use was hull-mounted, true bearing of animal from
the vessel, true direction of vessel's travel, and estimation of
animal's motion relative to vessel (opening, closing, parallel).
(M) Observed behavior. Lookouts must 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.) and if any calves
were present.
(iii) An evaluation (based on data gathered during all of the MTEs)
of the effectiveness of mitigation measures designed to minimize the
received level to which marine mammals may be exposed. This evaluation
must identify the specific observations that support any conclusions
the Navy reaches about the effectiveness of the mitigation.
(2) SINKEXs. This section must include the following information
for each SINKEX completed that year:
(i) Exercise information (gathered for each SINKEX):
(A) Location.
(B) Date and time exercise began and ended.
(C) Total hours of observation by Lookouts before, during, and
after exercise.
(D) Total number and types of explosive source bins detonated.
(E) Number and types of passive acoustic sources used in exercise.
(F) Total hours of passive acoustic search time.
(G) Number and types of vessels, aircraft, and other platforms
participating in exercise.
[[Page 57260]]
(H) Wave height in feet (high, low, and average) during exercise.
(J) Narrative description of sensors and platforms utilized for
marine mammal detection and timeline illustrating how marine mammal
detection was conducted.
(ii) Individual marine mammal observation (by Navy Lookouts)
information (gathered for each marine mammal sighting) for each
sighting where mitigation was implemented:
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indicate whale, dolphin, or
pinniped).
(C) Number of individuals.
(D) Initial detection sensor (e.g., sonar or Lookout).
(E) Length of time observers maintained visual contact with marine
mammal.
(F) Sea state.
(G) Visibility.
(H) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
(I) Distance of marine mammal from actual detonations: Less than
200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater
than 2,000 yd (or target spot if not yet detonated).
(J) Observed behavior. Lookouts must 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 and if any calves were present.
(K) Resulting mitigation implementation. The report must indicate
whether explosive detonations were delayed, ceased, modified, or not
modified due to marine mammal presence and for how long.
(L) If observation occurred while explosives were detonating in the
water, indicate munition type in use at time of marine mammal
detection.
(3) Summary of sources used. This section must include the
following information summarized from the authorized sound sources used
in all training and testing events:
(i) Total annual hours or quantity (per the LOA) of each bin of
sonar or other acoustic sources (pile driving and air gun activities);
and
(ii) Total annual expended/detonated ordnance (missiles, bombs,
sonobuoys, etc.) for each explosive bin.
(4) Geographic information presentation. The reports must present
an annual (and seasonal, where practical) depiction of training and
testing bin usage (as well as pile driving activities) geographically
across the AFTT Study Area.
(5) Sonar exercise notification. The Navy must submit to NMFS
(contact as specified in the LOA) an electronic report within fifteen
calendar days after the completion of any MTE indicating:
(i) Location of the exercise;
(ii) Beginning and end dates of the exercise; and
(iii) Type of exercise.
(f) Five-year close-out comprehensive training and testing report.
This report must be included as part of the 2023 annual training and
testing report. This report must provide the annual totals for each
sound source bin with a comparison to the annual allowance and the
five-year total for each sound source bin with a comparison to the
five-year allowance. Additionally, if there were any changes to the
sound source allowance, this report must include a discussion of why
the change was made and include the analysis to support how the change
did or did not result in a change in the EIS and final rule
determinations. The draft report must be submitted three months after
the expiration of this subpart to the Director, Office of Protected
Resources, NMFS. NMFS must submit comments on the draft close-out
report, if any, within three months of receipt. The report will be
considered final after the Navy has addressed NMFS' comments, or 3
months after the submittal of the draft if NMFS does not provide
comments.
Sec. 218.86 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations
in this subpart, the Navy must apply for and obtain Letters of
Authorization (LOAs) in accordance with Sec. 216.106 of this chapter.
(b) LOAs, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of the regulations in
this subpart.
(c) If an LOA expires prior to the expiration date of the
regulations in this subpart, the Navy may apply for and obtain a
renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation, monitoring, or reporting (excluding changes made pursuant
to the adaptive management provision of Sec. 218.87(c)(1)) as required
by an LOA issued under this subpart, the Navy must apply for and obtain
a modification of the LOA as described in Sec. 218.87.
(e) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Specified geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species or stocks of marine mammals and their
habitat; and
(4) Requirements for monitoring and reporting.
(f) Issuance of the LOA(s) will be based on a determination that
the level of taking must be consistent with the findings made for the
total taking allowable under the regulations in this subpart.
(g) Notice of issuance or denial of the LOA(s) will be published in
the Federal Register within 30 days of a determination.
Sec. 218.87 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
218.86 may be renewed or modified upon request by the applicant,
provided that:
(1) The planned specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for the regulations in this subpart
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA(s) under the regulations in this
subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or to the mitigation, monitoring, or
reporting measures (excluding changes made pursuant to the adaptive
management provision in paragraph (c)(1) of this section) that do not
change the findings made for the regulations or result in no more than
a minor change in the total estimated number of takes (or distribution
by species or stock or years), NMFS may publish a notice of planned LOA
in the Federal Register, including the associated analysis of the
change, and solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
218.86 may be modified by NMFS under the following circumstances:
(1) Adaptive management. After consulting with the Navy regarding
the practicability of the modifications, NMFS may modify (including
adding or removing measures) the existing mitigation, monitoring, or
reporting measures if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision
to modify the
[[Page 57261]]
mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies; or
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by the regulations in
this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of planned LOA in the Federal Register and
solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. Sec. 216.106
of this chapter and 218.86, an LOA may be modified without prior notice
or opportunity for public comment. Notice would be published in the
Federal Register within thirty days of the action.
Sec. Sec. 218.88-218.89 [Reserved]
[FR Doc. 2018-24042 Filed 11-13-18; 8:45 am]
BILLING CODE 3510-22-P