20156 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AW80 

Taking and Importing Marine 

Mammals; U.S. Naval Surface Warfare 

Center Panama City Division Mission 

Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received a request 

from the U.S. Navy (Navy) for 

authorization to take marine mammals 

incidental to Naval Surface Warfare 

Center Panama City Division (NSWC 

PCD) Research, Development, Test, and 

Evaluation (RDT&E) mission activities 

for the period of July 2009 through July 

2014. Pursuant to the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take and requesting information, 

suggestions, and comments on these 

proposed regulations. 

DATES: Comments and information must 

be received no later than June 1, 2009. 

ADDRESSES: You may submit comments, 

identified by 0648–AW80, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Hand delivery or mailing of paper, 

disk, or CD–ROM comments should be 

addressed to Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910–3225. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

Resources, NMFS, (301) 713–2289, ext. 

137. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of the Navy’s application may 

be obtained by writing to the address 

specified above (See ADDRESSES), 

telephoning the contact listed above (see 

FOR FURTHER INFORMATION CONTACT), or 

visiting the internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm. The Navy’s Draft 

Environmental Impact Statement (DEIS) 

for the NSWC PCD mission activities 

was published on April 4, 2008, and 

may be viewed at http:// 

nswcpc.navsea.navy.mil/EnvironmentDocuments.htm. NMFS participated in 

the development of the Navy’s DEIS as 

a cooperating agency under the National 

Environmental Policy Act (NEPA). 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce (Secretary) 

to allow, upon request, the incidental, 

but not intentional taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) during periods of 

not more than five consecutive years 

each if certain findings are made and 

regulations are issued or, if the taking is 

limited to harassment, notice of a 

proposed authorization is provided to 

the public for review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and if the permissible methods of taking 

and requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as: 

An impact resulting from the specified 

activity that cannot be reasonably expected 

to, and is not reasonably likely to, adversely 

affect the species or stock through effects on 

annual rates of recruitment or survival. 

The National Defense Authorization 

Act of 2004 (NDAA) (Public Law 108– 

136) removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations and amended the definition 

of ‘‘harassment’’ as it applies to a 

‘‘military readiness activity’’ to read as 

follows (Section 3(18)(B) of the MMPA): 

(i) Any act that injures or has the significant 

potential to injure a marine mammal or 

marine mammal stock in the wild [Level A 

Harassment]; or (ii) any act that disturbs or 

is likely to disturb a marine mammal or 

marine mammal stock in the wild by causing 

disruption of natural behavioral patterns, 

including, but not limited to, migration, 

surfacing, nursing, breeding, feeding, or 

sheltering, to a point where such behavioral 

patterns are abandoned or significantly 

altered [Level B Harassment]. 

Summary of Request 

On April 1, 2008, NMFS received an 

application, which was subsequently 

amended on February 12, 2009 with 

additional information, from the Navy 

requesting authorization for the take of 

10 species of cetaceans incidental to the 

NSWC PCD RDT&E mission activities 

over the course of 5 years. These RDT&E 

activities are classified as military 

readiness activities. The Navy states that 

these RDT&E activities may cause 

various impacts to marine mammal 

species in the proposed action area (e.g., 

mortality, Level A and B harassment). 

The Navy requests an authorization to 

take individuals of these cetacean 

species by Level B Harassment. Further, 

the Navy requests authorization to take 

2 bottlenose dolphins, 2 Atlantic 

spotted dolphins, 1 pantropical spotted 

dolphin, and 1 spinner dolphin per year 

by Level A harassment (injury), as a 

result of the proposed mission activities. 

Please refer to Tables 6–3, 6–4, 6–6, 6– 

7, 6–8, and 6–9 of the Letter of 

Authorization (LOA) Addendum for 

detailed information of the potential 

marine mammal exposures from the 

NSWC PCD mission activities per year. 

However, due to the proposed 

mitigation and monitoring measures, 

NMFS estimates that the take of marine 

mammals is likely to be lower than the 

amount requested. Although the Navy 

requests authorization to take marine 

mammals by mortality, NMFS does not 

expect any animals to be killed, and 

NMFS is not proposing to authorize any 

mortality incidental to the Navy’s 

NSWC PCD mission activities. 

Background of Navy Request 

The purpose of the proposed action is 

to enhance NSWC PCD’s capability and 

capacity to meet littoral and 

expeditionary warfare requirements by 

providing RDT&E and in service 

engineering for expeditionary maneuver 

warfare, operations in extreme 

environments, mine warfare, maritime 

operations, and coastal operations. 

The need for the proposed action is 

for the Navy to successfully meet 

current and future national and global 

defense challenges by developing a 

robust capability to research, develop, 

test, and evaluate systems within the 

NSWC PCD Study Area. This capability 

allows the Navy to meet its statutory 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20157 

mission to deploy worldwide naval 

forces equipped to meet existing and 

emergent threats and to enhance its 

ability to operate jointly with other 

components of the armed forces. NSWC 

PCD was established on the current site 

maintained by the Naval Support 

Activity Panama City (NSA PC) after a 

thorough site selection process in 1942. 

The Navy considered locations along 

the east coast and in the Gulf of Mexico 

(GOM). NSWC PCD provides: 

• Accessibility to deep water 

• Tests in clear water 

• Conducive sand bottom 

• Available land and sheltered areas, 

and 

• Average good weather (year-round 

testing). 

In addition to these requirements for 

testing, the area was selected based on 

the moderate cost of living, the 

availability of personnel, and the low 

level of crowding from industries and 

development. In 1945, the station was 

re-commissioned as the U.S. Navy mine 

countermeasure station after its turnover 

as a section base for amphibious forces 

in 1944. The factors identified in 1942 

during the selection process solidified 

the decision. 

NSWC PCD provides the greatest 

number of favorable circumstances 

needed to conduct RDT&E, in particular 

mine countermeasure exercises. Many 

of the other locations have large 

amounts of vessel traffic, rough waters 

and windy conditions, and closure of 

waterways seasonally due to water 

level. NSWC PCD has the established 

infrastructure, equipment, and 

personnel as well as the conditions 

required to fulfill the Proposed Action. 

The proposed mission activities 

involving sonar, ordnance and line 

charges, and projectile firing would 

occur in the NSWC PCD Study Area, 

which includes St. Andrew Bay (SAB) 

and military warning areas (areas within 

the Gulf of Mexico (GOM) subject to 

military operations) W–151 (includes 

Panama City Operating Area), W–155 

(includes Pensacola Operating Area), 

and W–470 (see Figures 2–1 and 2–2 of 

the LOA application). The NSWC PCD 

Study Area includes a Coastal Test 

Area, a Very Shallow Water Test Area, 

and Target and Operational Test Fields. 

The NSWC PCD RDT&E activities may 

be conducted anywhere within the 

existing military operating areas and 

SAB from the mean high water line 

(average high tide mark) out to 222 km 

(120 nm) offshore (see Figures 2–1 and 

2–2 of the LOA application). The 

locations and environments include: 

• Test area control sites adjacent to 

NSWC PCD. 

• Wide coastal shelf 97 km (52 nm) 

distance offshore to 183 m (600 ft), 

including bays and harbors. 

• Water temperature range of 27 °C 

(80 °F) in summer to 10 °C (50°F) in 

winter. 

• Typically sandy bottom and good 

underwater visibility. 

• Seas less than 0.91 m (3 ft) 80 

percent of the time (summer) and less 

than 0.91 m (3 ft) 50 percent of the time 

(winter). 

Description of the Specified Activities 

The purpose of the proposed action is 

to improve NSWC PCD’s capabilities to 

conduct new and increased mission 

operations for the Department of the 

Navy (DON). NSWC PCD provides 

RDT&E and in-service support for 

expeditionary maneuver warfare, 

operations in extreme environments, 

mine warfare, maritime (ocean-related) 

operations, and coastal operations. A 

variety of naval assets, including 

vessels, aircraft, and underwater 

systems support these mission activities 

for eight primary test operations that 

occur within or over the water 

environment up to the high water mark. 

These operations include air, surface, 

and subsurface operations, sonar, 

electromagnetic energy, laser, ordnance, 

and projectile firing. Among these 

activities, surface operations, sonar, 

ordnance, and projectile firing may 

result in the incidental take of a marine 

mammal species or population stock, 

and are the focus of the Navy’s LOA 

application and LOA Addendum. A 

detailed description of these operations 

is provided below. 

Surface Operations 

The proposed NSWC PCD mission 

activities include up to 7,443 hours of 

surface operations per year in the NSWC 

PCD Study Area. Four subcategories 

make up surface operations. 

The first subcategory is support 

activities which are required by nearly 

all of the testing missions within the 

NSWC PCD Study Area. The size of 

these vessels varies according to test 

requirements and vessel availability. 

Often multiple surface crafts are 

required to support a single test event. 

Acting as a support platform for testing, 

these vessels are utilized to carry test 

equipment and personnel to and from 

the test sites and are also used to secure 

and monitor the designated test area. 

Normally, these vessels remain on site 

and return to port following the 

completion of the test; occasionally, 

however, they remain on-station 

throughout the duration of the test cycle 

for guarding sensitive equipment in the 

water. Testing associated with these 

operational capabilities may include a 

single test event or a series of test events 

spread out over consecutive days or as 

one long test operation that requires 

multiple days to complete. 

The remaining subcategories of 

additional support include tows, 

deployment and recovery of equipment, 

and systems development. Tows are 

also conducted from vessels at NSWC 

PCD to test system functionality. Tow 

tests of this nature involve either 

transporting the system to the 

designated test area where it is deployed 

and towed over a pre-positioned inert 

minefield or towing the system from 

NSWC PCD to the designated test area. 

Surface vessels are also utilized as a tow 

platform for systems that are designed to 

be deployed by helicopters. Surface 

craft are also used to perform the 

deployment and recovery of underwater 

unmanned vehicles (UUVs), sonobuoys, 

inert mines, mine-like objects, versatile 

exercise mine systems, and other test 

systems. Surface vessels that are used in 

this manner normally return to port the 

same day. However, this is test 

dependent, and under certain 

circumstances (e.g., endurance testing), 

the vessel may be required to remain on 

site for an extended period of time. 

Finally, RDT&E activities also 

encompass testing of new, alternative, 

or upgraded hydrodynamics, and 

propulsion, navigational, and 

communication software and hardware 

systems. 

Sonar Operations 

NSWC PCD sonar operations involve 

the testing of various sonar systems in 

the ocean and laboratory environment 

as a means of demonstrating the 

systems’ software capability to detect, 

locate, and characterize mine-like 

objects under various environmental 

conditions. The data collected is used to 

validate the sonar system’s effectiveness 

and capability to meet its mission. 

Based on frequency, the Navy has 

characterized low, mid, or high 

frequency sound sources as follows: 

• Low frequency: Below 1 kHz 

• Mid-frequency: From 1 to 10 kHz 

• High frequency: Above 10 kHz 

Low frequency sonar is not proposed 

to be used during NSWC PCD 

operations. The various sonar systems 

proposed to be tested within the NSWC 

PCD Study Area range in frequencies of 

1 kHz to 5 megahertz (MHz) (5,000 kHz). 

The source levels associated with 

NSWC PCD sonar systems that require 

analysis in this document based on the 

systems’ parameters range from between 

118 dB to 235 dB re 1 microPa at 1 m. 

The sonar systems tested are typically 

part of a towed array or hull mounted 

20158 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

to a vessel. Additionally, subsystems 

associated with an underwater 

unmanned vehicle (UUV) or surf zone 

crawler operation are included. A 

detailed description of the frequency 

class and the reporting metric for each 

sonar system used at NSWC PCD can be 

found in Table A–1 of Appendix A, 

Supplemental Information for 

Underwater Noise Analysis, of the 

Navy’s LOA application. Tables 1A and 

1B present an overview of the number 

of operating hours annually for each of 

these sonar systems in territorial and 

non-territorial waters, respectively. 

TABLE 1A—HOURS OF SONAR OPERATIONS BY REPRESENTATIVE SYSTEM FOR TERRITORIAL WATER PER

YEAR

System 

Annual 

operating 

hours 

AN/SQS–53/56 Kingfisher ...... 3 

Sub-bottom profiler (2–9 kHz) 21 

REMUS SAS–LF .................... 12 

REMUS Modem ...................... 25 

Sub-bottom profiler (2–16 

kHz) ..................................... 24 

AN/SQQ–32 ............................ 30 

REMUS–SAS–LF ................... 20 

SAS–LF .................................. 35 

AN/WLD–1 RMS–ACL ............ 33 .5 

BPAUV Sidescan .................... 25 

TVSS ...................................... 15 

F84Y ....................................... 15 

BPAUV Sidescan .................... 25 

REMUS–SAS–HF ................... 10 

TABLE 1A—HOURS OF SONAR OPERATIONS BY REPRESENTATIVE SYSTEM FOR TERRITORIAL WATER PER

YEAR—Continued 

System 

Annual 

operating 

hours 

SAS–HF .................................. 11 .5 

AN/AQS–20 ............................ 545 

AN/WLD–11 RMS Navigation 15 

BPAUV Sidescan .................... 30 

TABLE 1B—HOURS OF SONAR OPERATIONS BY REPRESENTATIVE SYSTEM FOR NON-TERRITORIAL WATER

PER YEAR

System 

Annual 

operating 

hours 

AN/SQS–53/56 Kingfisher ...... 1 

Sub-bottom profiler (2–9 kHz) 1 

REMUS SAS–LF .................... 0 

REMUS Modem ...................... 12 

Sub-bottom profiler (2–16 

kHz) ..................................... 1 

AN/SQQ–32 ............................ 1 

REMUS–SAS–LF ................... 0 

SAS–LF .................................. 15 

AN/WLD–1 RMS–ACL ............ 5 

BPAUV Sidescan .................... 38 

TVSS ...................................... 16 .5 

F84Y ....................................... 15 

BPAUV Sidescan .................... 0 

REMUS–SAS–HF ................... 25 

SAS–HF .................................. 15 

AN/AQS–20 ............................ 15 

AN/WLD–11 RMS Navigation 0 

TABLE 1B—HOURS OF SONAR OPERATIONS BY REPRESENTATIVE SYSTEM FOR NON-TERRITORIAL WATER

PER YEAR—Continued 

System 

Annual 

operating 

hours 

BPAUV Sidescan .................... 25 

Table 2 provides an overall summary 

of the total tempos associated with the 

proposed action. The table includes 

number of hours of operation per year 

for mid-frequency and high-frequency 

sonar testing activities for territorial and 

non-territorial waters, respectively. The 

ranges for the operations are given in 

the column, where appropriate. For 

example, sonar operations are divided 

into mid-frequency and high-frequency 

ranges. The three columns to the left of 

the double vertical line contain the 

amount of operations for each 

subcategory conducted in territorial 

waters of the NSWC PCD Study Area. 

The values to the right of this 

demarcation, except those contained in 

the last column of the table, indicate the 

number of hours and/or operations that 

would occur in the non-territorial 

waters. The final column provides the 

total number of hours per year and/or 

operations in the NSWC PCD Study 

Area (or tempo in the territorial waters 

plus tempo in the non-territorial 

waters). 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20159 

Ordnance Operations 

Ordnance operations include live 

testing of ordnance of various net 

explosive weights and line charges. The 

following subsections provide an 

overview of the events for ordnance and 

line charges, respectively. 

1. Ordnance 

Live testing is only conducted after a 

system has successfully completed inert 

testing and an adequate amount of data 

has been collected to support the 

decision for live testing. Testing with 

live targets or ordnance is closely 

monitored and uses the minimum 

number of live munitions necessary to 

meet the testing requirement. 

Depending on the test scenario, live 

testing may occur from the surf zone out 

to the outer perimeter of the NSWC PCD 

Study Area. The Navy must develop its 

capability to conduct ordnance 

operations in shallow water to clear surf 

zone areas for sea-based expeditionary 

operations. The size and weight of the 

explosives used varies from 0.91 to 272 

kg (2 to 600 lb) trinitrotoluene (TNT) 

equivalent net explosive weight (NEW) 

depending on the test requirements. For 

this document, ordnance was analyzed 

based on three ranges of NEW: 0.45 to 

4.5 kg (1 to 10 lb), 5 to 34 kg (11 to 75 

lb), and 34.5 to 272 kg (76 to 600 lb). 

Detonation of ordnance with a NEW less 

than 34.5 kg (76 lb) is conducted in 

territorial waters (with the exception of 

line charges and because of the need to 

use higher amounts of NEW to clear surf 

zone areas) and detonation of ordnance 

with a NEW greater than 34.5 kg (76 lb) 

is conducted in non-territorial waters. 

2. Line Charges 

Line charges consist of a 107 m (350 

ft) detonation cord with explosives 

lined from one end to the other end in 

2 kg (5 lb) increments and total 794 kg 

(1,750 lb) of NEW. The charge is 

considered one explosive source that 

has multiple increments that detonate at 

one time. The energy released from line 

charges is comprised of a series of small 

detonations exploding sequentially 

rather than one simultaneous, large 

explosion. Therefore, they are treated as 

a series of small explosives rather than 

a large detonation. The Navy proposes 

to conduct up to three line charge 

events in the surf zone annually. Line 

charge testing would only be conducted 

in the surf zone along the portion of 

Santa Rosa Island that is part of Eglin 

Air Force Base (AFB). The Navy must 

develop its capability to safely clear surf 

zone areas for sea-based expeditionary 

operations. To that end, NSWC PCD 

occasionally performs testing on various 

surf zone clearing systems that use line 

charges to neutralize mine threats. 

These tests are typically conducted from 

a surface vessel (e.g., Landing Craft Air 

Cushion [LCAC]) and are deployed 

using either a single or dual rocket 

launch scenario. This is a systems 

development test and only assesses the 

in-water components of testing. 

Table 2 also provides an overview of 

ordnance testing at NSWC PCD. 

Projectile Firing 

Current projectile firing includes 50 

rounds of 30-mm ammunition each year 

within the NSWC PCD Study Area. The 

ability to utilize gunfire during test 

operations was identified as a future 

requirement. Rounds (individual shots) 

identified include 5 inch, 20 mm, 25 

mm, 30 mm, 40 mm, 76 mm, and 

various small arms ammunition (i.e., 

standard target ammo). Projectiles 

associated with these rounds are mainly 

armor-piercing projectiles. The 5-in 

round is a high explosive (HE) projectile 

containing approximately 3.63 kg (8 lbs) 

of explosive material. Current projectile 

firing includes 50 rounds of 30-mm 

ammunition each year within the NSWC 

PCD Study Area. The preferred 

alternative would provide for increases 

in the number of 30-mm rounds as well 

as for expansion of projectile firing 

operations to 5 in, 20 mm, 40 mm, 76 

mm, 25 mm, and small arms 

ammunition. All projectile firing would 

occur over non-territorial waters. 


EP30AP09.000</GPH>
20160 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

Description of Marine Mammals in the 

Area of the Specified Activities 

There are 30 marine mammal species 

with possible or confirmed occurrence 

in the NSWC PCD Study Area. As 

indicated in Table 3, there are 29 

cetacean species (7 mysticetes and 22 

odontocetes) and one sirenian species. 

Table 3 also includes the federal status 

of these marine mammal species. Seven 

marine mammal species listed as 

federally endangered under the 

Endangered Species Act (ESA) occur in 

the study area: The humpback whale, 

North Atlantic right whale, sei whale, 

fin whale, blue whale, sperm whale, and 

West Indian manatee. Of these 30 

species with occurrence records in the 

NSWC PCD Study Area, 22 species 

regularly occur here. These 22 species 

are: Bryde’s whale, sperm whale, pygmy 

sperm whale, dwarf sperm whale, 

Cuvier’s beaked whale, Gervais’ beaked 

whale, Sowerby’s beaked whale, 

Blainville’s beaked whale, killer whale, 

false killer whale, pygmy killer whale, 

short-finned pilot whale, Risso’s 

dolphin, melon-headed whale, roughtoothed dolphin, bottlenose dolphin, 

Atlantic spotted dolphin, pantropical 

spotted dolphin, striped dolphin, 

spinner dolphin, Clymene dolphin, and 

Fraser’s dolphin. The remaining 8 

species (i.e., North Atlantic right whale, 

humpback whale, sei whale, fin whale, 

blue whale, minke whale, True’s beaked 

whale, and West Indian manatee) are 

extralimital and are excluded from 

further consideration of impacts from 

the NSWC PCD testing mission. 

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE NSWC PCD STUDY AREA

Family and scientific name Common name Federal status 

Order Cetacea 

Suborder Mysticeti (baleen whales) 

Eubalaena glacialis ............................................ North Atlantic right whale ................................. Endangered. 

Megaptera novaeangliae ................................... Humpback whale .............................................. Endangered. 

Balaenoptera acutorostrata ................................ Minke whale .....................................................

B. brydei ............................................................. Bryde’s whale ...................................................

B. borealis .......................................................... Sei whale .......................................................... Endangered. 

B. physalus ........................................................ Fin whale .......................................................... Endangered. 

B. musculus ....................................................... Blue whale ........................................................ Endangered. 

Suborder Odontoceti (toothed whales) 

Physeter macrocephalus ................................... Sperm whale .................................................... Endangered. 

Kogia breviceps ................................................. Pygmy sperm whale .........................................

K. sima ............................................................... Dwarf sperm whale ..........................................

Ziphius cavirostris .............................................. Cuvier’s beaked whale .....................................

Mesoplodon europaeus ..................................... Gervais’ beaked whale .....................................

M. Mirus ............................................................. True’s beaked whale ........................................

M. bidens ........................................................... Sowerby’s beaked whale .................................

M. densirostris .................................................... Blainville’s beaked whale .................................

Steno bredanensis ............................................. Rough-toothed dolphin .....................................

Tursiops truncatus ............................................. Bottlenose dolphin ............................................

Stenella attenuata .............................................. Pantropical spotted dolphin ..............................

S. frontalis .......................................................... Atlantic spotted dolphin ....................................

S. longirostris ..................................................... Spinner dolphin ................................................

S. clymene ......................................................... Clymene dolphin ..............................................

S. coeruleoalba .................................................. Striped dolphin .................................................

Lagenodephis hosei ........................................... Fraser’s dolphin ................................................

Grampus griseus ................................................ Risso’s dolphin .................................................

Peponocephala electra ...................................... Melon-headed whale ........................................

Feresa attenuata ................................................ Pygmy killer whale ...........................................

Pseudorca crassidens ........................................ False killer whale .............................................

Orcinus orca ....................................................... Killer whale .......................................................

Globicephala melas ........................................... Long-finned pilot whale ....................................

G. macrorhynchus .............................................. Short-finned pilot whale ...................................

Order Sirenia 

Trichechus manatus ........................................... West Indian manatee ....................................... Endangered. 

The information contained herein 

relies heavily on the data gathered in 

the Marine Resource Assessments 

(MRAs). The Navy MRA Program was 

implemented by the Commander, Fleet 

Forces Command, to initiate collection 

of data and information concerning the 

protected and commercial marine 

resources found in the Navy’s Operating 

Areas (OPAREAs). Specifically, the goal 

of the MRA program is to describe and 

document the marine resources present 

in each of the Navy’s OPAREAs. The 

MRA for the NSWC PCD, which 

includes Pensacola and Panama City 

OPAREAs, was recently updated in 

2007 (DoN, 2008). 

The MRA data were used to provide 

a regional context for each species. The 

MRA represents a compilation and 

synthesis of available scientific 

literature (for example, journals, 

periodicals, theses, dissertations, project 

reports, and other technical reports 

published by government agencies, 

private businesses, or consulting firms), 

and NMFS reports including stock 

assessment reports (SAR) (Waring et al., 

2007), which can be viewed at: http:// 

www.nmfs.noaa.gov/pr/sars/ 

species.htm. 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20161 

A detailed description of marine 

mammal density estimates in the NSWC 

PCD Study Area is provided in the 

Navy’s LOA application and LOA 

Addendum. 

A Brief Background on Sound 

An understanding of the basic 

properties of underwater sound is 

necessary to comprehend many of the 

concepts and analyses presented in this 

document. A summary is included 

below. 

Sound is a wave of pressure variations 

propagating through a medium (for the 

sonar considered in this proposed rule, 

the medium is marine water). Pressure 

variations are created by compressing 

and relaxing the medium. Sound 

measurements can be expressed in two 

forms: intensity and pressure. Acoustic 

intensity is the average rate of energy 

transmitted through a unit area in a 

specified direction and is expressed in 

watts per square meter (W/m2). Acoustic 

intensity is rarely measured directly, it 

is derived from ratios of pressures; the 

standard reference pressure for 

underwater sound is 1 microPascal 

(microPa); for airborne sound, the 

standard reference pressure is 20 

microPa (Urick, 1983). 

Acousticians have adopted a 

logarithmic scale for sound intensities, 

which is denoted in decibels (dB). 

Decibel measurements represent the 

ratio between a measured pressure value 

and a reference pressure value (in this 

case 1 microPa or, for airborne sound, 

20 microPa). The logarithmic nature of 

the scale means that each 10 dB increase 

is a tenfold increase in power (e.g., 20 

dB is a 100-fold increase, 30 dB is a 

1,000-fold increase). Humans perceive a 

10-dB increase in noise as a doubling of 

sound level, or a 10 dB decrease in 

noise as a halving of sound level. The 

term ‘‘sound pressure level’’ implies a 

decibel measure and a reference 

pressure that is used as the denominator 

of the ratio. Throughout this document, 

NMFS uses 1 microPa as a standard 

reference pressure unless noted 

otherwise. 

It is important to note that decibels 

underwater and decibels in air are not 

the same and cannot be directly 

compared. To estimate a comparison 

between sound in air and underwater, 

because of the different densities of air 

and water and the different decibel 

standards (i.e., reference pressures) in 

water and air, a sound with the same 

intensity (i.e., power) in air and in water 

would be approximately 63 dB lower in 

air. Thus, a sound that is 160 dB loud 

underwater would have the same 

approximate effective intensity as a 

sound that is 97 dB loud in air. 

Sound frequency is measured in 

cycles per second, or Hertz (abbreviated 

Hz), and is analogous to musical pitch; 

high-pitched sounds contain high 

frequencies and low-pitched sounds 

contain low frequencies. Natural sounds 

in the ocean span a huge range of 

frequencies: from earthquake noise at 5 

Hz to harbor porpoise clicks at 150,000 

Hz (150 kHz). These sounds are so low 

or so high in pitch that humans cannot 

even hear them; acousticians call these 

infrasonic and ultrasonic sounds, 

respectively. A single sound may be 

made up of many different frequencies 

together. Sounds made up of only a 

small range of frequencies are called 

‘‘narrowband’’, and sounds with a broad 

range of frequencies are called 

‘‘broadband’’; airguns are an example of 

a broadband sound source and tactical 

sonars are an example of a narrowband 

sound source. 

When considering the influence of 

various kinds of sound on the marine 

environment, it is necessary to 

understand that different kinds of 

marine life are sensitive to different 

frequencies of sound. Based on available 

behavioral data, audiograms derived 

using auditory evoked potential, 

anatomical modeling, and other data, 

Southall et al. (2007) designate 

‘‘functional hearing groups’’ and 

estimate the lower and upper 

frequencies of functional hearing of the 

groups. Further, the frequency range in 

which each group’s hearing is estimated 

as being most sensitive is represented in 

the flat part of the M-weighting 

functions developed for each group. The 

functional groups and the associated 

frequencies are indicated below: 

• Low frequency cetaceans (13 

species of mysticetes): Functional 

hearing is estimated to occur between 

approximately 7 Hz and 22 kHz. 

• Mid-frequency cetaceans (32 

species of dolphins, six species of larger 

toothed whales, and 19 species of 

beaked and bottlenose whales): 

Functional hearing is estimated to occur 

between approximately 150 Hz and 160 

kHz. 

• High frequency cetaceans (eight 

species of true porpoises, six species of 

river dolphins, Kogia, the franciscana, 

and four species of cephalorhynchids): 

Functional hearing is estimated to occur 

between approximately 200 Hz and 180 

kHz. 

• Pinnipeds in Water: Functional 

hearing is estimated to occur between 

approximately 75 Hz and 75 kHz, with 

the greatest sensitivity between 

approximately 700 Hz and 20 kHz. 

• Pinnipeds in Air: Functional 

hearing is estimated to occur between 

approximately 75 Hz and 30 kHz. 

Because ears adapted to function 

underwater are physiologically different 

from human ears, comparisons using 

decibel measurements in air would still 

not be adequate to describe the effects 

of a sound on a whale. When sound 

travels away from its source, its 

loudness decreases as the distance 

traveled (propagates) by the sound 

increases. Thus, the loudness of a sound 

at its source is higher than the loudness 

of that same sound a kilometer distant. 

Acousticians often refer to the loudness 

of a sound at its source (typically 

measured one meter from the source) as 

the source level and the loudness of 

sound elsewhere as the received level. 

For example, a humpback whale three 

kilometers from an airgun that has a 

source level of 230 dB may only be 

exposed to sound that is 160 dB loud, 

depending on how the sound 

propagates. As a result, it is important 

not to confuse source levels and 

received levels when discussing the 

loudness of sound in the ocean. 

As sound travels from a source, its 

propagation in water is influenced by 

various physical characteristics, 

including water temperature, depth, 

salinity, and surface and bottom 

properties that cause refraction, 

reflection, absorption, and scattering of 

sound waves. Oceans are not 

homogeneous and the contribution of 

each of these individual factors is 

extremely complex and interrelated. 

The physical characteristics that 

determine the sound’s speed through 

the water will change with depth, 

season, geographic location, and with 

time of day (as a result, in actual sonar 

operations, crews will measure oceanic 

conditions, such as sea water 

temperature and depth, to calibrate 

models that determine the path the 

sonar signal will take as it travels 

through the ocean and how strong the 

sound signal will be at a given range 

along a particular transmission path). As 

sound travels through the ocean, the 

intensity associated with the wavefront 

diminishes, or attenuates. This decrease 

in intensity is referred to as propagation 

loss, also commonly called transmission 

loss. 

Metrics Used in This Document 

This section includes a brief 

explanation of the two sound 

measurements (sound pressure level 

(SPL) and sound exposure level (SEL)) 

frequently used in the discussions of 

acoustic effects in this document. 

SPL 

Sound pressure is the sound force per 

unit area, and is usually measured in 

microPa, where 1 Pa is the pressure 

20162 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

resulting from a force of one newton 

exerted over an area of one square 

meter. SPL is expressed as the ratio of 

a measured sound pressure and a 

reference level. The commonly used 

reference pressure level in underwater 

acoustics is 1 microPa, and the units for 

SPLs are dB re: 1 microPa. 

SPL (in dB) = 20 log (pressure/reference 

pressure) 

SPL is an instantaneous measurement 

and can be expressed as the peak, the 

peak-peak, or the root mean square 

(rms). Root mean square, which is the 

square root of the arithmetic average of 

the squared instantaneous pressure 

values, is typically used in discussions 

of the effects of sounds on vertebrates 

and all references to SPL in this 

document refer to the root mean square. 

SPL does not take the duration of a 

sound into account. SPL is the 

applicable metric used in the risk 

continuum, which is used to estimate 

behavioral harassment takes (see Level 

B Harassment Risk Function (Behavioral 

Harassment) Section). 

SEL 

SEL is an energy metric that integrates 

the squared instantaneous sound 

pressure over a stated time interval. The 

units for SEL are dB re: 1 microPa2-s. 

SEL = SPL + 10log(duration in seconds) 

As applied to tactical sonar, the SEL 

includes both the SPL of a sonar ping 

and the total duration. Longer duration 

pings and/or pings with higher SPLs 

will have a higher SEL. If an animal is 

exposed to multiple pings, the SEL in 

each individual ping is summed to 

calculate the total SEL. The total SEL 

depends on the SPL, duration, and 

number of pings received. The 

thresholds that NMFS uses to indicate at 

what received level the onset of 

temporary threshold shift (TTS) and 

permanent threshold shift (PTS) in 

hearing are likely to occur are expressed 

in SEL. 

Potential Impacts to Marine Mammal 

Species 

The Navy considers that the proposed 

NSWC PCD mission activities associated 

with surface operations, sonar, 

ordnance, and projectile firing 

operations are the activities with the 

potential to result in Level A or Level 

B harassment or mortality of marine 

mammals. The following sections 

discuss the potential for ship strikes to 

occur from surface operations, potential 

effects from noise related to sonar, 

potential effects from noise related to 

ordnance, potential effects from noise 

related to projectile firing operations, 

and direct physical impacts from 

projectile firing. 

Surface Operations 

Typical operations occurring at the 

surface include the deployment or 

towing of mine countermeasures (MCM) 

equipment, retrieval of equipment, and 

clearing and monitoring for nonparticipating vessels. As such, the 

potential exists for a ship to strike a 

marine mammal while conducting 

surface operations. In an effort to reduce 

the likelihood of a vessel strike, the 

mitigation and monitoring measures 

discussed below would be 

implemented. 

Surface Operations in Territorial Waters 

Collisions with commercial and U.S. 

Navy vessels can cause major wounds 

and may occasionally cause fatalities to 

marine mammals. The most vulnerable 

marine mammals 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). Laist et al. (2001) 

identified 11 species known to be hit by 

ships worldwide. Of these species, fin 

whales are struck most frequently; 

followed by right whales, humpback 

whales, sperm whales, and gray whales. 

More specifically, from 1975 through 

1996, there were 31 dead whale 

strandings involving four large whales 

along the GOM coastline. Stranded 

animals included two sei whales, four 

minke whales, eight Bryde’s whales, 

and 17 sperm whales. Only one of the 

stranded animals, a sperm whale with 

propeller wounds found in Louisiana on 

9 March 1990, was identified as a result 

of a possible ship strike (Laist et al., 

2001). In addition, from 1999 through 

2003, there was only one stranding 

involving a false killer whale in the 

northern GOM (Alabama 1999) (Waring 

et al., 2006). None of these identified 

species are likely to occur in the 

territorial waters of the NSWC PCD 

Study Area. This area encompasses 

waters that are less than 33 m (108 ft) 

in depth and it is unlikely any species, 

including Bryde’s whales are located 

here. 

It is unlikely that activities in 

territorial waters will result in a vessel 

strike because of the nature of the 

operations and size of the vessels. For 

example, the hours of surface operations 

take into consideration operation times 

for multiple vessels during each test 

event. These vessels range in size from 

small rigid hull inflatable boat (RHIB) to 

surface vessels of approximately 180 ft 

(55 m). The majority of these vessels are 

small RHIBs and medium-sized vessels. 

A large proportion of the timeframe for 

NSWC PCD test events include periods 

when vessels remain stationary within 

the test site. The greatest time spent in 

transit for tests includes navigation to 

and from the sites. At these times, the 

Navy follows standard operating 

procedures (SOPs). The captain and 

other crew members keep watch during 

vessel transits to avoid objects in the 

water. Furthermore, with the 

implementation of the proposed 

mitigation and monitoring measures 

described below, NMFS believes that it 

is unlikely vessel strikes would occur. 

Consequently, because of the nature of 

the surface operations and the size of 

the vessels, the proposed mitigation and 

monitoring measures, and the fact that 

cetaceans typically more vulnerable to 

ship strikes are not likely to be in the 

project area, the NMFS concludes that 

ship strikes are unlikely to occur in 

territorial waters. 

Surface Operations in Non-Territorial 

Waters 

As stated above, there have been two 

reports of possible watercraft-related 

cetacean deaths in the GOM. These 

deaths include one sperm whale found 

with propeller wounds in Louisiana in 

March 1990 and one false killer whale 

in Alabama in 1999 (Laist et al., 2001; 

Waring et al., 2007). According to the 

2008 SAR, no other marine mammal 

that is likely to occur in the northern 

GOM has been reported as either 

seriously or fatally injured from a ship 

strike between 1999 through 2003 

(Waring et al., 2007). The nature of 

operations, size of vessels and standard 

operating procedures to minimize the 

risk of vessel collisions will be similar 

to those expected to occur in territorial 

waters. Moreover, the implementation 

of additional mitigation and monitoring 

measures will reduce further the 

probability of a vessel strike. Thus, 

NMFS concludes that the potential 

effects to marine mammals from surface 

operations in non-territorial waters will 

be similar to those described for 

territorial waters. 

Acoustic Effects: Exposure to Sonar 

For activities involving active tactical 

sonar, underwater detonations, and 

projectile firing, NMFS’s analysis will 

identify the probability of lethal 

responses, physical trauma, sensory 

impairment (permanent and temporary 

threshold shifts and acoustic masking), 

physiological responses (particular 

stress responses), behavioral 

disturbance (that rises to the level of 

harassment), and social responses that 

would be classified as behavioral 

harassment or injury and/or would be 

likely to adversely affect the species or 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20163 

stock through effects on annual rates of 

recruitment or survival. In this section, 

we will focus qualitatively on the 

different ways that mid-frequency active 

sonar (MFAS) and high frequency active 

sonar (HFAS), ordnance, and projectile 

firing may affect marine mammals 

(some of which NMFS would not 

classify as harassment). Then, in the 

Estimated Take of Marine Mammals 

section, NMFS will relate the potential 

effects to marine mammals from HFAS/ 

MFAS, ordnance, and projectile firing to 

the MMPA regulatory definitions of 

Level A and Level B Harassment and 

attempt to quantify those effects. 

Direct Physiological Effects 

Based on the literature, there are two 

basic ways that HFAS/MFAS might 

directly result in physical trauma or 

damage: Noise-induced loss of hearing 

sensitivity (more commonly-called 

‘‘threshold shift’’) and acoustically 

mediated bubble growth. Separately, an 

animal’s behavioral reaction to an 

acoustic exposure might lead to 

physiological effects that might 

ultimately lead to injury or death, which 

is discussed later in the Stranding 

section. 

Threshold Shift (Noise-Induced Loss of 

Hearing) 

When animals exhibit reduced 

hearing sensitivity (i.e., sounds must be 

louder for an animal to recognize them) 

following exposure to a sufficiently 

intense sound, it is referred to as a 

noise-induced threshold shift (TS). An 

animal can experience temporary 

threshold shift (TTS) or permanent 

threshold shift (PTS). TTS can last from 

minutes or hours to days (i.e., there is 

recovery), occurs in specific frequency 

ranges (i.e., an animal might only have 

a temporary loss of hearing sensitivity 

between the frequencies of 1 and 10 

kHz), and can be of varying amounts (for 

example, an animal’s hearing sensitivity 

might be reduced by only 6 dB or 

reduced by 30 dB). PTS is permanent 

(i.e., there is no recovery), but also 

occurs in a specific frequency range and 

amount as mentioned in the TTS 

description. 

The following physiological 

mechanisms are thought to play a role 

in inducing auditory TSs: Effects to 

sensory hair cells in the inner ear that 

reduce their sensitivity, modification of 

the chemical environment within the 

sensory cells, residual muscular activity 

in the middle ear, displacement of 

certain inner ear membranes, increased 

blood flow, and post-stimulatory 

reduction in both efferent and sensory 

neural output (Southall et al., 2007). 

The amplitude, duration, frequency, 

temporal pattern, and energy 

distribution of sound exposure all affect 

the amount of associated TS and the 

frequency range in which it occurs. As 

amplitude and duration of sound 

exposure increase, so, generally, does 

the amount of TS. For continuous 

sounds, exposures of equal energy (the 

same SEL) will lead to approximately 

equal effects. For intermittent sounds, 

less TS will occur than from a 

continuous exposure with the same 

energy (some recovery will occur 

between exposures) (Kryter et al., 1966; 

Ward, 1997). For example, one short but 

loud (higher SPL) sound exposure may 

induce the same impairment as one 

longer but softer sound, which in turn 

may cause more impairment than a 

series of several intermittent softer 

sounds with the same total energy 

(Ward, 1997). Additionally, though TTS 

is temporary, very prolonged exposure 

to sound strong enough to elicit TTS, or 

shorter-term exposure to sound levels 

well above the TTS threshold, can cause 

PTS, at least in terrestrial mammals 

(Kryter, 1985) (although in the case of 

HFAS/MFAS, animals are not expected 

to be exposed to levels high enough or 

durations long enough to result in PTS). 

PTS is considered auditory injury 

(Southall et al., 2007). Irreparable 

damage to the inner or outer cochlear 

hair cells may cause PTS, however, 

other mechanisms are also involved, 

such as exceeding the elastic limits of 

certain tissues and membranes in the 

middle and inner ears and resultant 

changes in the chemical composition of 

the inner ear fluids (Southall et al., 

2007). 

Although the published body of 

scientific literature contains numerous 

theoretical studies and discussion 

papers on hearing impairments that can 

occur with exposure to a loud sound, 

only a few studies provide empirical 

information on the levels at which 

noise-induced loss in hearing sensitivity 

occurs in nonhuman animals. For 

cetaceans, published data are limited to 

the captive bottlenose dolphin and 

beluga whale (Finneran et al., 2000, 

2002b, 2005a; Schlundt et al., 2000; 

Nachtigall et al., 2003, 2004). 

Marine mammal hearing plays a 

critical role in communication with 

conspecifics, and interpreting 

environmental cues for purposes such 

as predator avoidance and prey capture. 

Depending on the frequency range of 

TTS degree (dB), duration, and 

frequency range of TTS, and the context 

in which it is experienced, TTS can 

have effects on marine mammals 

ranging from discountable to serious 

(similar to those discussed in auditory 

masking, below). For example, a marine 

mammal may be able to readily 

compensate for a brief, relatively small 

amount of TTS in a non-critical 

frequency range that takes place during 

a time when the animal is traveling 

through the open ocean, where ambient 

noise is lower and there are not as many 

competing sounds present. 

Alternatively, a larger amount and 

longer duration of TTS sustained during 

time when communication is critical for 

successful mother/calf interactions 

could have more serious impacts. Also, 

depending on the degree and frequency 

range, the effects of PTS on an animal 

could range in severity, although it is 

considered generally more serious 

because it is a long term condition. Of 

note, reduced hearing sensitivity as a 

simple function of development and 

aging has been observed in marine 

mammals, as well as humans and other 

taxa (Southall et al., 2007), so we can 

infer that strategies exist for coping with 

this condition to some degree, though 

likely not without cost. There is no 

empirical evidence that exposure to 

HFAS/MFAS can cause PTS in any 

marine mammals; instead the 

probability of PTS has been inferred 

from studies of TTS (see Richardson et 

al., 1995). 

Acoustically Mediated Bubble Growth 

One theoretical cause of injury to 

marine mammals is rectified diffusion 

(Crum and Mao, 1996), the process of 

increasing the size of a bubble by 

exposing it to a sound field. This 

process could be facilitated if the 

environment in which the ensonified 

bubbles exist is supersaturated with gas. 

Repetitive diving by marine mammals 

can cause the blood and some tissues to 

accumulate gas to a greater degree than 

is supported by the surrounding 

environmental pressure (Ridgway and 

Howard, 1979). The deeper and longer 

dives of some marine mammals (for 

example, beaked whales) are 

theoretically predicted to induce greater 

supersaturation (Houser et al., 2001b). If 

rectified diffusion were possible in 

marine mammals exposed to high-level 

sound, conditions of tissue 

supersaturation could theoretically 

speed the rate and increase the size of 

bubble growth. Subsequent effects due 

to tissue trauma and emboli would 

presumably mirror those observed in 

humans suffering from decompression 

sickness. 

It is unlikely that the short duration 

of sonar pings would be long enough to 

drive bubble growth to any substantial 

size, if such a phenomenon occurs. 

Recent work conducted by Crum et al. 

(2005) demonstrated the possibility of 

rectified diffusion for short duration 

20164 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

signals, but at sound exposure levels 

and tissue saturation levels that are 

improbable to occur in a diving marine 

mammal. However, an alternative but 

related hypothesis has also been 

suggested: Stable bubbles could be 

destabilized by high-level sound 

exposures such that bubble growth then 

occurs through static diffusion of gas 

out of the tissues. In such a scenario the 

marine mammal would need to be in a 

gas-supersaturated state for a long 

enough period of time for bubbles to 

become of a problematic size. Yet 

another hypothesis (decompression 

sickness) has speculated that rapid 

ascent to the surface following exposure 

to a startling sound might produce 

tissue gas saturation sufficient for the 

evolution of nitrogen bubbles (Jepson et 

al., 2003; Fernandez et al., 2005). In this 

scenario, the rate of ascent would need 

to be sufficiently rapid to compromise 

behavioral or physiological protections 

against nitrogen bubble formation. 

Collectively, these hypotheses can be 

referred to as ‘‘hypotheses of 

acoustically mediated bubble growth.’’ 

Although theoretical predictions 

suggest the possibility for acoustically 

mediated bubble growth, there is 

considerable disagreement among 

scientists as to its likelihood (Piantadosi 

and Thalmann, 2004; Evans and Miller, 

2003). Crum and Mao (1996) 

hypothesized that received levels would 

have to exceed 190 dB in order for there 

to be the possibility of significant 

bubble growth due to supersaturation of 

gases in the blood (i.e., rectified 

diffusion). More recent work conducted 

by Crum et al. (2005) demonstrated the 

possibility of rectified diffusion for 

short duration signals, but at SELs and 

tissue saturation levels that are highly 

improbable to occur in diving marine 

mammals. To date, Energy Levels (ELs) 

predicted to cause in vivo bubble 

formation within diving cetaceans have 

not been evaluated (NOAA, 2002b). 

Although it has been argued that 

traumas from some recent beaked whale 

strandings are consistent with gas 

emboli and bubble-induced tissue 

separations (Jepson et al., 2003), there is 

no conclusive evidence of this. 

However, Jepson et al. (2003, 2005) and 

Fernandez et al. (2004, 2005) concluded 

that in vivo bubble formation, which 

may be exacerbated by deep, long 

duration, repetitive dives may explain 

why beaked whales appear to be 

particularly vulnerable to sonar 

exposures. Further investigation is 

needed to further assess the potential 

validity of these hypotheses. More 

information regarding hypotheses that 

attempt to explain how behavioral 

responses to HFAS/MFAS can lead to 

strandings is included in the 

Behaviorally Mediated Bubble Growth 

section, after the summary of strandings. 

Acoustic Masking 

Marine mammals use acoustic signals 

for a variety of purposes, which differ 

among species, but include 

communication between individuals, 

navigation, foraging, reproduction, and 

learning about their environment (Erbe 

and Farmer, 2000; Tyack, 2000). 

Masking, or auditory interference, 

generally occurs when sounds in the 

environment are louder than and of a 

similar frequency to, auditory signals an 

animal is trying to receive. Masking is 

a phenomenon that affects animals that 

are trying to receive acoustic 

information about their environment, 

including sounds from other members 

of their species, predators, prey, and 

sounds that allow them to orient in their 

environment. Masking these acoustic 

signals can disturb the behavior of 

individual animals, groups of animals, 

or entire populations. 

The extent of the masking interference 

depends on the spectral, temporal, and 

spatial relationships between the signals 

an animal is trying to receive and the 

masking noise, in addition to other 

factors. In humans, significant masking 

of tonal signals occurs as a result of 

exposure to noise in a narrow band of 

similar frequencies. As the sound level 

increases, though, the detection of 

frequencies above those of the masking 

stimulus decreases also. This principle 

is expected to apply to marine mammals 

as well because of common 

biomechanical cochlear properties 

across taxa. 

Richardson et al. (1995) argued that 

the maximum radius of influence of an 

industrial noise (including broadband 

low frequency sound transmission) on a 

marine mammal is the distance from the 

source to the point at which the noise 

can barely be heard. This range is 

determined by either the hearing 

sensitivity of the animal or the 

background noise level present. 

Industrial masking is most likely to 

affect some species’ ability to detect 

communication calls and natural 

sounds (i.e., surf noise, prey noise, etc.; 

Richardson et al., 1995). 

The echolocation calls of odontocetes 

(toothed whales) are subject to masking 

by high frequency sound. Human data 

indicate low frequency sound can mask 

high frequency sounds (i.e., upward 

masking). Studies on captive 

odontocetes by Au et al. (1974, 1985, 

1993) indicate that some species may 

use various processes to reduce masking 

effects (e.g., adjustments in echolocation 

call intensity or frequency as a function 

of background noise conditions). There 

is also evidence that the directional 

hearing abilities of odontocetes are 

useful in reducing masking at the high 

frequencies these cetaceans use to 

echolocate, but not at the low-to 

moderate frequencies they use to 

communicate (Zaitseva et al., 1980). 

As mentioned previously, the 

functional hearing ranges of mysticetes 

(baleen whales) and odontocetes 

(toothed whales) all encompass the 

frequencies of the sonar sources used in 

the Navy’s RDT&E activities. 

Additionally, almost all species’ vocal 

repertoires span across the frequencies 

of the sonar sources used by the Navy. 

The closer the characteristics of the 

masking signal to the signal of interest, 

the more likely masking is to occur. 

However, because the pulse length and 

duty cycle of the HFAS/MFAS signal 

are of short duration and would not be 

continuous, masking is unlikely to 

occur as a result of exposure to HFAS/ 

MFAS during the mission activities in 

the NSWC PCD Study Area. 

Impaired Communication 

In addition to making it more difficult 

for animals to perceive acoustic cues in 

their environment, anthropogenic sound 

presents separate challenges for animals 

that are vocalizing. When they vocalize, 

animals are aware of environmental 

conditions that affect the ‘‘active space’’ 

of their vocalizations, which is the 

maximum area within which their 

vocalizations can be detected before it 

drops to the level of ambient noise 

(Brenowitz, 2004; Brumm et al., 2004; 

Lohr et al., 2003). Animals are also 

aware of environmental conditions that 

affect whether listeners can discriminate 

and recognize their vocalizations from 

other sounds, which are more important 

than detecting a vocalization 

(Brenowitz, 1982; Brumm et al., 2004; 

Dooling, 2004; Marten and Marler, 1977; 

Patricelli et al., 2006). Most animals that 

vocalize have evolved an ability to make 

vocal adjustments to their vocalizations 

to increase the signal-to-noise ratio, 

active space, and recognizability of their 

vocalizations in the face of temporary 

changes in background noise (Brumm et 

al., 2004; Patricelli et al., 2006). 

Vocalizing animals will make one or 

more of the following adjustments to 

their vocalizations: Adjust the frequency 

structure; adjust the amplitude; adjust 

temporal structure; or adjust temporal 

delivery. 

Many animals will combine several of 

these strategies to compensate for high 

levels of background noise. 

Anthropogenic sounds that reduce the 

signal-to-noise ratio of animal 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20165 

vocalizations, increase the masked 

auditory thresholds of animals listening 

for such vocalizations, or reduce the 

active space of an animal’s vocalizations 

impair communication between 

animals. Most animals that vocalize 

have evolved strategies to compensate 

for the effects of short-term or temporary 

increases in background or ambient 

noise on their songs or calls. Although 

the fitness consequences of these vocal 

adjustments remain unknown, like most 

other trade-offs animals must make, 

some of these strategies probably come 

at a cost (Patricelli et al., 2006). For 

example, vocalizing more loudly in 

noisy environments may have energetic 

costs that decrease the net benefits of 

vocal adjustment and alter a bird’s 

energy budget (Brumm, 2004; Wood and 

Yezerinac, 2006). Shifting songs and 

calls to higher frequencies may also 

impose energetic costs (Lambrechts, 

1996). 

Stress Responses 

Classic stress responses begin when 

an animal’s central nervous system 

perceives a potential threat to its 

homeostasis. That perception triggers 

stress responses regardless of whether a 

stimulus actually threatens the animal; 

the mere perception of a threat is 

sufficient to trigger a stress response 

(Moberg, 2000; Sapolsky et al., 2005; 

Seyle, 1950). Once an animal’s central 

nervous system perceives a threat, it 

mounts a biological response or defense 

that consists of a combination of the 

four general biological defense 

responses: Behavioral responses, 

autonomic nervous system responses, 

neuroendocrine responses, or immune 

response. 

In the case of many stressors, an 

animal’s first and most economical (in 

terms of biotic costs) response is 

behavioral avoidance of the potential 

stressor or avoidance of continued 

exposure to a stressor. An animal’s 

second line of defense to stressors 

involves the autonomic nervous system 

and the classical ‘‘fight or flight’’ 

response which includes the 

cardiovascular system, the 

gastrointestinal system, the exocrine 

glands, and the adrenal medulla to 

produce changes in heart rate, blood 

pressure, and gastrointestinal activity 

that humans commonly associate with 

‘‘stress.’’ These responses have a 

relatively short duration and may or 

may not have significant long-term 

effects on an animal’s welfare. 

An animal’s third line of defense to 

stressors involves its neuroendocrine or 

sympathetic nervous systems; the 

system that has received the most study 

has been the hypothalamus-pituitaryadrenal system (also known as the HPA 

axis in mammals or the hypothalamuspituitary-interrenal axis in fish and 

some reptiles). Unlike stress responses 

associated with the autonomic nervous 

system, virtually all neuro-endocrine 

functions that are affected by stress— 

including immune competence, 

reproduction, metabolism, and 

behavior—are regulated by pituitary 

hormones. Stress-induced changes in 

the secretion of pituitary hormones have 

been implicated in failed reproduction 

(Moberg, 1987; Rivier, 1995) and altered 

metabolism (Elasser et al., 2000), 

reduced immune competence (Blecha, 

2000) and behavioral disturbance. 

Increases in the circulation of 

glucocorticosteroids (cortisol, 

corticosterone, and aldosterone in 

marine mammals; Romano et al., 2004) 

have been equated with stress for many 

years. 

The primary distinction between 

stress (which is adaptive and does not 

normally place an animal at risk) and 

distress is the biotic cost of the 

response. During a stress response, an 

animal uses glycogen stores that can be 

quickly replenished once the stress is 

alleviated. In such circumstances, the 

cost of the stress response would not 

pose a risk to the animal’s welfare. 

However, when an animal does not have 

sufficient energy reserves to satisfy the 

energetic costs of a stress response, 

energy resources must be diverted from 

other biotic functions, which impair 

those functions that experience the 

diversion. For example, when mounting 

a stress response diverts energy away 

from growth in young animals, those 

animals may experience stunted growth. 

When mounting a stress response 

diverts energy from a fetus, an animal’s 

reproductive success and its fitness will 

suffer. In these cases, the animals will 

have entered a pre-pathological or 

pathological state which is called 

‘‘distress’’ (sensu Seyle, 1950) or 

‘‘allostatic loading’’ (sensu McEwen and 

Wingfield, 2003). This pathological state 

will last until the animal replenishes its 

biotic reserves sufficient to restore 

normal function. 

Relationships between these 

physiological mechanisms, animal 

behavior, and the costs of stress 

responses have also been documented 

fairly well through controlled 

experiments; because this physiology 

exists in every vertebrate that has been 

studied, it is not surprising that stress 

responses and their costs have been 

documented in both laboratory and freeliving animals (for examples see, 

Holberton et al., 1996; Hood et al., 1998; 

Jessop et al., 2003; Krausman et al., 

2004; Lankford et al., 2005; Reneerkens 

et al., 2002; Thompson and Hamer, 

2000). Although no information has 

been collected on the physiological 

responses of marine mammals to 

exposure to anthropogenic sounds, 

studies of other marine animals and 

terrestrial animals would lead us to 

expect some marine mammals to 

experience physiological stress 

responses and, perhaps, physiological 

responses that would be classified as 

‘‘distress’’ upon exposure to midfrequency and low frequency sounds. 

For example, Jansen (1998) reported 

on the relationship between acoustic 

exposures and physiological responses 

that are indicative of stress responses in 

humans (for example, elevated 

respiration and increased heart rates). 

Jones (1998) reported on reductions in 

human performance when faced with 

acute, repetitive exposures to acoustic 

disturbance. Trimper et al. (1998) 

reported on the physiological stress 

responses of osprey to low-level aircraft 

noise while Krausman et al. (2004) 

reported on the auditory and physiology 

stress responses of endangered Sonoran 

pronghorn to military overflights. Smith 

et al. (2004a, 2004b) identified noise 

induced physiological transient stress 

responses in hearing-specialist fish that 

accompanied short- and long-term 

hearing losses. Welch and Welch (1970) 

reported physiological and behavioral 

stress responses that accompanied 

damage to the inner ears of fish and 

several mammals. 

Hearing is one of the primary senses 

cetaceans use to gather information 

about their environment and to 

communicate with conspecifics. 

Although empirical information on the 

relationship between sensory 

impairment (TTS, PTS, and acoustic 

masking) on cetaceans remains limited, 

it seems reasonable to assume that 

reducing an animal’s ability to gather 

information about its environment and 

to communicate with other members of 

its species would be stressful for 

animals that use hearing as their 

primary sensory mechanism. Therefore, 

we assume that acoustic exposures 

sufficient to trigger onset PTS or TTS 

would be accompanied by physiological 

stress responses because terrestrial 

animals exhibit those responses under 

similar conditions (NRC, 2003). More 

importantly, marine mammals might 

experience stress responses at received 

levels lower than those necessary to 

trigger onset TTS. Based on empirical 

studies of the time required to recover 

from stress responses (Moberg, 2000), 

we also assume that stress responses are 

likely to persist beyond the time interval 

required for animals to recover from 

TTS and might result in pathological 

20166 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

and pre-pathological states that would 

be as significant as behavioral responses 

to TTS. 

Behavioral Disturbance 

Behavioral responses to sound are 

highly variable and context-specific. 

Exposure of marine mammals to sound 

sources can result in (but is not limited 

to) the following observable responses: 

Increased alertness; orientation or 

attraction to a sound source; vocal 

modifications; cessation of feeding; 

cessation of social interaction; alteration 

of movement or diving behavior; habitat 

abandonment (temporary or permanent); 

and, in severe cases, panic, flight, 

stampede, or stranding, potentially 

resulting in death (Southall et al., 2007). 

Many different variables can 

influence an animal’s perception of and 

response to (nature and magnitude) an 

acoustic event. An animal’s prior 

experience with a sound type affects 

whether it is less likely (habituation) or 

more likely (sensitization) to respond to 

certain sounds in the future (animals 

can also be innately pre-disposed to 

respond to certain sounds in certain 

ways) (Southall et al., 2007). Related to 

the sound itself, the perceived nearness 

of the sound, bearing of the sound 

(approaching vs. retreating), similarity 

of a sound to biologically relevant 

sounds in the animal’s environment 

(i.e., calls of predators, prey, or 

conspecifics), and familiarity of the 

sound may affect the way an animal 

responds to the sound (Southall et al., 

2007). Individuals (of different age, 

gender, reproductive status, etc.) among 

most populations will have variable 

hearing capabilities, and differing 

behavioral sensitivities to sounds that 

will be affected by prior conditioning, 

experience, and current activities of 

those individuals. Often, specific 

acoustic features of the sound and 

contextual variables (i.e., proximity, 

duration, or recurrence of the sound or 

the current behavior that the marine 

mammal is engaged in or its prior 

experience), as well as entirely separate 

factors such as the physical presence of 

a nearby vessel, may be more relevant 

to the animal’s response than the 

received level alone. 

There are few empirical studies of 

avoidance responses of free-living 

cetaceans to mid-frequency sonars. 

Much more information is available on 

the avoidance responses of free-living 

cetaceans to other acoustic sources, like 

seismic airguns and low frequency 

sonar, than mid-frequency active sonar. 

Richardson et al., (1995) noted that 

avoidance reactions are the most 

obvious manifestations of disturbance in 

marine mammals. 

Behavioral Responses (Southall et al. 

(2007)) 

Southall et al., (2007) reports the 

results of the efforts of a panel of experts 

in acoustic research from behavioral, 

physiological, and physical disciplines 

that convened and reviewed the 

available literature on marine mammal 

hearing and physiological and 

behavioral responses to man-made 

sound with the goal of proposing 

exposure criteria for certain effects. This 

compilation of literature is very 

valuable, though Southall et al. note 

that not all data is equal, some have 

poor statistical power, insufficient 

controls, and/or limited information on 

received levels, background noise, and 

other potentially important contextual 

variables—such data were reviewed and 

sometimes used for qualitative 

illustration, but were not included in 

the quantitative analysis for the criteria 

recommendations. 

In the Southall et al., (2007) report, for 

the purposes of analyzing responses of 

marine mammals to anthropogenic 

sound and developing criteria, the 

authors differentiate between single 

pulse sounds, multiple pulse sounds, 

and non-pulse sounds. HFAS/MFAS 

sonar is considered a non-pulse sound. 

Southall et al., (2007) summarize the 

reports associated with low, mid, and 

high frequency cetacean responses to 

non-pulse sounds (there are no 

pinnipeds in the Gulf of Mexico (GOM)) 

in Appendix C of their report 

(incorporated by reference and 

summarized in the three paragraphs 

below). 

The reports that address responses of 

low frequency cetaceans to non-pulse 

sounds include data gathered in the 

field and related to several types of 

sound sources (of varying similarity to 

HFAS/MFAS) including: Vessel noise, 

drilling and machinery playback, low 

frequency M-sequences (sine wave with 

multiple phase reversals) playback, low 

frequency active sonar playback, drill 

vessels, Acoustic Thermometry of 

Ocean Climate (ATOC) source, and nonpulse playbacks. These reports generally 

indicate no (or very limited) responses 

to received levels in the 90 to 120 dB 

re 1 micro Pa range and an increasing 

likelihood of avoidance and other 

behavioral effects in the 120 to 160 dB 

range. As mentioned earlier, however, 

contextual variables play a very 

important role in the reported responses 

and the severity of effects are not linear 

when compared to received level. Also, 

few of the laboratory or field datasets 

had common conditions, behavioral 

contexts or sound sources, so it is not 

surprising that responses differ. 

The reports that address responses of 

mid-frequency cetaceans to non-pulse 

sounds include data gathered both in 

the field and the laboratory and related 

to several different sound sources (of 

varying similarity to HFAS/MFAS) 

including: Pingers, drilling playbacks, 

vessel and ice-breaking noise, vessel 

noise, Acoustic Harassment Devices 

(AHDs), Acoustic Deterrent Devices 

(ADDs), HFAS/MFAS, and non-pulse 

bands and tones. Southall et al. were 

unable to come to a clear conclusion 

regarding these reports. In some cases, 

animals in the field showed significant 

responses to received levels between 90 

and 120 dB, while in other cases these 

responses were not seen in the 120 to 

150 dB range. The disparity in results 

was likely due to contextual variation 

and the differences between the results 

in the field and laboratory data (animals 

responded at lower levels in the field). 

The reports that address the responses 

of high frequency cetaceans to nonpulse sounds include data gathered both 

in the field and the laboratory and 

related to several different sound 

sources (of varying similarity to HFAS/ 

MFAS) including: acoustic harassment 

devices, Acoustical Telemetry of Ocean 

Climate (ATOC), wind turbine, vessel 

noise, and construction noise. However, 

no conclusive results are available from 

these reports. In some cases, high 

frequency cetaceans (harbor porpoises) 

are observed to be quite sensitive to a 

wide range of human sounds at very low 

exposure RLs (90 to 120 dB). All 

recorded exposures exceeding 140 dB 

produced profound and sustained 

avoidance behavior in wild harbor 

porpoises (Southall et al., 2007). 

In addition to summarizing the 

available data, the authors of Southall et 

al. (2007) developed a severity scaling 

system with the intent of ultimately 

being able to assign some level of 

biological significance to a response. 

Following is a summary of their scoring 

system, a comprehensive list of the 

behaviors associated with each score 

may be found in the report: 

• 0–3 (Minor and/or brief behaviors) 

includes, but is not limited to: No 

response; minor changes in speed or 

locomotion (but with no avoidance); 

individual alert behavior; minor 

cessation in vocal behavior; minor 

changes in response to trained behaviors 

(in laboratory). 

• 4–6 (Behaviors with higher 

potential to affect foraging, 

reproduction, or survival) includes, but 

is not limited to: Moderate changes in 

speed, direction, or dive profile; brief 

shift in group distribution; prolonged 

cessation or modification of vocal 

behavior (duration > duration of sound), 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20167 

minor or moderate individual and/or 

group avoidance of sound; brief 

cessation of reproductive behavior; or 

refusal to initiate trained tasks (in 

laboratory). 

• 7–9 (Behaviors considered likely to 

affect the aforementioned vital rates) 

includes, but are not limited to: 

Extensive of prolonged aggressive 

behavior; moderate, prolonged or 

significant separation of females and 

dependent offspring with disruption of 

acoustic reunion mechanisms; long-term 

avoidance of an area; outright panic, 

stampede, stranding; threatening or 

attacking sound source (in laboratory). 

In Table 4 we have summarized the 

scores that Southall et al. (2007) 

assigned to the papers that reported 

behavioral responses of low frequency 

cetaceans, mid-frequency cetaceans, and 

high frequency cetaceans to non-pulse 

sounds. 

Potential Effects of Behavioral 

Disturbance 

The different ways that marine 

mammals respond to sound are 

sometimes indicators of the ultimate 

effect that exposure to a given stimulus 

will have on the well-being (survival, 

reproduction, etc.) of an animal. There 

is little marine mammal data 

quantitatively relating the exposure of 

marine mammals to sound to effects on 

reproduction or survival, though data 

exists for terrestrial species to which we 

can draw comparisons for marine 

mammals. 

Attention is the cognitive process of 

selectively concentrating on one aspect 

of an animal’s environment while 

ignoring other things (Posner, 1994). 

Because animals (including humans) 

have limited cognitive resources, there 

is a limit to how much sensory 

information they can process at any 

time. The phenomenon called 

‘‘attentional capture’’ occurs when a 

stimulus (usually a stimulus that an 

animal is not concentrating on or 

attending to) ‘‘captures’’ an animal’s 

attention. This shift in attention can 

occur consciously or unconsciously (for 

example, when an animal hears sounds 

that it associates with the approach of 

a predator) and the shift in attention can 

be sudden (Dukas, 2002; van Rij, 2007). 

Once a stimulus has captured an 

animal’s attention, the animal can 

respond by ignoring the stimulus, 

assuming a ‘‘watch and wait’’ posture, 

or treat the stimulus as a disturbance 

and respond accordingly, which 

includes scanning for the source of the 

stimulus or ‘‘vigilance’’ (Cowlishaw et 

al., 2004). 

Vigilance is normally an adaptive 

behavior that helps animals determine 

the presence or absence of predators, 

assess their distance from conspecifics, 

or to attend cues from prey (Bednekoff 

and Lima,1998; Treves, 2000). Despite 

those benefits, however, vigilance has a 

cost of time: When animals focus their 

attention on specific environmental 

cues, they are not attending to other 

activities such a foraging. These costs 

have been documented best in foraging 

animals, where vigilance has been 

shown to substantially reduce feeding 

rates (Saino, 1994; Beauchamp and 

Livoreil, 1997; Fritz et al., 2002). 

Animals will spend more time being 

vigilant, which may translate to less 

time foraging or resting, when 

disturbance stimuli approach them 

more directly, remain at closer 

distances, have a greater group size (for 

example, multiple surface vessels), or 

when they co-occur with times that an 

animal perceives increased risk (for 

example, when they are giving birth or 

accompanied by a calf). Most of the 

published literature, however, suggests 

that direct approaches will increase the 

amount of time animals will dedicate to 

being vigilant. For example, bighorn 

sheep and Dall’s sheep dedicated more 

time being vigilant, and less time resting 

or foraging, when aircraft made direct 

approaches over them (Frid, 2001; 

Stockwell et al., 1991). 

Several authors have established that 

long-term and intense disturbance 

stimuli can cause population declines 

by reducing the body condition of 

individuals that have been disturbed, 

followed by reduced reproductive 

success, reduced survival, or both (Daan 

et al., 1996; Madsen, 1994; White, 

1983). For example, Madsen (1994) 

reported that pink-footed geese (Anser 

brachyrhynchus) in undisturbed habitat 

gained body mass and had about a 46- 

percent reproductive success compared 

with geese in disturbed habitat (being 


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20168 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

consistently scared off the fields on 

which they were foraging) which did 

not gain mass and has a 17 percent 

reproductive success. Similar 

reductions in reproductive success have 

been reported for mule deer (Odocoileus 

hemionus) disturbed by all-terrain 

vehicles (Yarmoloy et al., 1988), caribou 

disturbed by seismic exploration blasts 

(Bradshaw et al., 1998), caribou 

disturbed by low-elevation military 

jetfights (Luick et al., 1996), and caribou 

disturbed by low-elevation jet flights 

(Harrington and Veitch, 1992). 

Similarly, a study of elk (Cervus 

elaphus) that were disturbed 

experimentally by pedestrians 

concluded that the ratio of young to 

mothers was inversely related to 

disturbance rate (Phillips and 

Alldredge, 2000). 

The primary mechanism by which 

increased vigilance and disturbance 

appear to affect the fitness of individual 

animals is by disrupting an animal’s 

time budget and, as a result, reducing 

the time they might spend foraging and 

resting (which increases an animal’s 

activity rate and energy demand). For 

example, a study of grizzly bears (Ursus 

horribilis) reported that bears disturbed 

by hikers reduced their energy intake by 

an average of 12 kcal/min (50.2 × 103kJ/ 

min), and spent energy fleeing or acting 

aggressively toward hikers (White et al., 

1999). 

On a related note, many animals 

perform vital functions, such as feeding, 

resting, traveling, and socializing, on a 

diel cycle (24-hr. cycle). Substantive 

behavioral reactions to noise exposure 

(such as disruption of critical life 

functions, displacement, or avoidance of 

important habitat) are more likely to be 

significant if they last more than one 

diel cycle or recur on subsequent days 

(Southall et al., 2007). Consequently, a 

behavioral response lasting less than 

one day and not recurring on 

subsequent days is not considered 

particularly severe unless it could 

directly affect reproduction or survival 

(Southall et al., 2007). 

Stranding and Mortality 

When a live or dead marine mammal 

swims or floats onto shore and becomes 

‘‘beached’’ or incapable of returning to 

sea, the event is termed a ‘‘stranding’’ 

(Geraci et al., 1999; Perrin and Geraci, 

2002; Geraci and Lounsbury, 2005; 

NMFS, 2007). The legal definition for a 

stranding within the United States is 

that ‘‘a marine mammal is dead and is 

(i) on a beach or shore of the United 

States; or (ii) in waters under the 

jurisdiction of the United States 

(including any navigable waters); or (B) 

a marine mammal is alive and is (i) on 

a beach or shore of the United States 

and is unable to return to the water; (ii) 

on a beach or shore of the United States 

and, although able to return to the 

water, is in need of apparent medical 

attention; or (iii) in the waters under the 

jurisdiction of the United States 

(including any navigable waters), but is 

unable to return to its natural habitat 

under its own power or without 

assistance.’’ (16 U.S.C. 1421h). 

Marine mammals are known to strand 

for a variety of reasons, such as 

infectious agents, biotoxicosis, 

starvation, fishery interaction, ship 

strike, unusual oceanographic or 

weather events, sound exposure, or 

combinations of these stressors 

sustained concurrently or in series. 

However, the cause or causes of most 

stranding are unknown (Geraci et al., 

1976; Eaton, 1979; Odell et al., 1980; 

Best, 1982). Numerous studies suggest 

that the physiology, behavior, habitat 

relationships, age, or condition of 

cetaceans may cause them to strand or 

might pre-dispose them to strand when 

exposed to these phenomena. These 

suggestions are consistent with the 

conclusions of numerous other studies 

that have demonstrated that 

combinations of dissimilar stressors 

commonly combine to kill an animal or 

dramatically reduce its fitness, even 

though one exposure without the other 

does not produce the same result 

(Chroussos, 2000; Creel, 2005; DeVries 

et al., 2003; Fair and Becker, 2000; Foley 

et al., 2001; Moberg, 2000; Relyea, 

2005a; 2005b, Romero, 2004; Sih et al., 

2004). 

Several sources have published lists 

of mass stranding events of cetaceans 

during attempts to identify relationships 

between those stranding events and 

military sonar (Hildebrand, 2004; IWC, 

2005; Taylor et al., 2004). For example, 

based on a review of stranding records 

between 1960 and 1995, the 

International Whaling Commission 

(IWC, 2005) identified ten mass 

stranding events of Cuvier’s beaked 

whales that had been reported and one 

mass stranding of four Baird’s beaked 

whales (Berardius bairdii). The IWC 

concluded that, out of eight stranding 

events reported from the mid-1980s to 

the summer of 2003, seven had been 

associated with the use of midfrequency sonar, one of those seven had 

been associated with the use of low 

frequency sonar, and the remaining 

stranding event had been associated 

with the use of seismic airguns. 

Most of the stranding events reviewed 

by the IWC involved beaked whales. A 

mass stranding of Cuvier’s beaked 

whales in the eastern Mediterranean Sea 

occurred in 1996 (Frantzis, 1998) and 

mass stranding events involving 

Gervais’ beaked whales, Blainville’s 

beaked whales, and Cuvier’s beaked 

whales occurred off the coast of the 

Canary Islands in the late 1980s 

(Simmonds and Lopez-Jurado, 1991). 

The stranding events that occurred in 

the Canary Islands and Kyparissiakos 

Gulf in the late 1990s and the Bahamas 

in 2000 have been the most intensively 

studied mass stranding events and have 

been associated with naval maneuvers 

that were using sonar. 

Between 1960 and 2006, 48 strandings 

(68 percent) involved beaked whales, 3 

(4 percent) involved dolphins, and 14 

(20 percent) involved other whale 

species. Cuvier’s beaked whales were 

involved in the greatest number of these 

events (48 or 68 percent), followed by 

sperm whales (7 or 10 percent), and 

Blainville’s and Gervais’ beaked whales 

(4 each or 6 percent). Naval activities 

that might have involved active sonar 

are reported to have coincided with 9 

(13 percent) or 10 (14 percent) of those 

stranding events. Between the mid1980s and 2003 (the period reported by 

the IWC), we identified reports of 44 

mass cetacean stranding events of which 

at least 7 were coincident with naval 

exercises that were using mid-frequency 

sonar. A list of stranding events that are 

considered to be associated with MFAS 

is presented in the proposed rulemaking 

for the Navy’s training in the Hawaii 

Range Complex (73 FR 35510; June 23, 

2008). 

Association Between Mass Stranding 

Events and Exposure to MFAS 

Several authors have noted 

similarities between some of these 

stranding incidents: they occurred in 

islands or archipelagoes with deep 

water nearby, several appeared to have 

been associated with acoustic 

waveguides like surface ducting, and 

the sound fields created by vessels 

transmitting mid-frequency sonar (Cox 

et al., 2006, D’Spain et al., 2006). 

However, only 77 hours of the proposed 

NSWC PCD RDT&E activities would 

involve the use of mid-frequency sonar. 

Of the mid-frequency sonar sources 

proposed to be used per year, only 4 

hours would be associated with the 

highest powered surface vessel source 

(AN/SQS–53/56). The remaining midfrequency sonar sources do not have 

strong source levels, therefore, their 

zones of influence are much smaller 

compared to these highest powered 

surface vessel sources, and animals can 

be more easily detected, thereby 

increasing the probability that sonar 

operations can be modified to reduce 

the risk of injury to marine mammals. In 

addition, the proposed test events differ 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20169 

significantly from major Navy exercises 

and training which involve multi-vessel 

training scenarios using the AN/SQS– 

53/56 source that have been associated 

with past strandings. In contrast, the 

majority of sonar operations (1,277 

hours) would be using high-frequency 

sonar. Source levels of the HFAS are not 

as high as the 53C series MFAS or other 

proposed MFAS sources. In addition, 

high frequency signals tend to have 

more attenuation in the water column 

and are more prone to lose their energy 

during propagation. Therefore, their 

zones of influence are much smaller and 

are less likely to affect marine 

mammals. Although Cuvier’s beaked 

whales have been the most common 

species involved in these stranding 

events (81 percent of the total number 

of stranded animals and see Figure 1), 

other beaked whales (including 

Mesoplodon europeaus, M. densirostris, 

and Hyperoodon ampullatus) comprise 

14 percent of the total. Other species 

(Stenella coeruleoalba, Kogia breviceps 

and Balaenoptera acutorostrata) have 

stranded, but in much lower numbers 

and less consistently than beaked 

whales. 

Based on the available evidence, 

however, we cannot determine whether 

(a) Cuvier’s beaked whale is more prone 

to injury from high-intensity sound than 

other species, (b) their behavioral 

responses to sound makes them more 

likely to strand, or (c) they are more 

likely to be exposed to mid-frequency 

active sonar than other cetaceans (for 

reasons that remain unknown). Because 

the association between active sonar 

(mid-frequency) exposures and marine 

mammal mass stranding events is not 

consistent—some marine mammals 

strand without being exposed to sonar 

and some sonar transmissions are not 

associated with marine mammal 

stranding events despite their cooccurrence—other risk factors or a 

grouping of risk factors probably 

contribute to these stranding events. 

Behaviorally Mediated Responses to 

HFAS/MFAS That May Lead to 

Stranding 

Although the confluence of Navy midfrequency active tactical sonar with the 

other contributory factors noted in the 

report was identified as the cause of the 

2000 Bahamas stranding event, the 

specific mechanisms that led to that 

stranding (or the others) are not 

understood, and there is uncertainty 

regarding the ordering of effects that led 

to the stranding. It is unclear whether 

beaked whales were directly injured by 

sound (acoustically mediated bubble 

growth, addressed above) prior to 

stranding or whether a behavioral 

response to sound occurred that 

ultimately caused the beaked whales to 

be injured and strand. 

Although causal relationships 

between beaked whale stranding events 

and active sonar remain unknown, 

several authors have hypothesized that 

stranding events involving these species 

in the Bahamas and Canary Islands may 

have been triggered when the whales 

changed their dive behavior in a startled 

response to exposure to active sonar or 

to further avoid exposure (Cox et al., 

2006, Rommel et al., 2006). These 

authors proposed two mechanisms by 

which the behavioral responses of 

beaked whales upon being exposed to 

active sonar might result in a stranding 

event. These include: gas bubble 

formation caused by excessively fast 

surfacing; remaining at the surface too 

long when tissues are supersaturated 

with nitrogen; or diving prematurely 

when extended time at the surface is 

necessary to eliminate excess nitrogen. 

More specifically, beaked whales that 

occur in deep waters that are in close 

proximity to shallow waters (for 

example, the ‘‘canyon areas’’ that are 

cited in the Bahamas stranding event; 

see D’Spain and D’Amico, 2006), may 

respond to active sonar by swimming 

into shallow waters to avoid further 

exposures and strand if they were not 

able to swim back to deeper waters. 

Second, beaked whales exposed to 

active sonar might alter their dive 

behavior. Changes in their dive behavior 

might cause them to remain at the 

surface or at depth for extended periods 

of time, which could lead to hypoxia 

directly by increasing their oxygen 

demands or indirectly by increasing 

their energy expenditures (to remain at 

depth) and increase their oxygen 

demands as a result. If beaked whales 

are at depth when they detect a ping 

from an active sonar transmission and 

change their dive profile, this could lead 

to the formation of significant gas 

bubbles, which could damage multiple 

organs or interfere with normal 

physiological function (Cox et al., 2006; 

Rommel et al., 2006; Zimmer and 

Tyack, 2007). Baird et al. (2005) found 

that slow ascent rates from deep dives 

and long periods of time spent within 

50 m of the surface were typical for both 

Cuvier’s and Blainville’s beaked whales, 

the two species involved in mass 

strandings related to naval sonar. These 

two behavioral mechanisms may be 

necessary to purge excessive dissolved 

nitrogen concentrated in their tissues 

during their frequent long dives (Baird 

et al., 2005). Baird et al. (2005) further 

suggests that abnormally rapid ascents 

or premature dives in response to high 

intensity sonar could indirectly result in 

physical harm to the beaked whales, 

through the mechanisms described 

above (gas bubble formation or nonelimination of excess nitrogen). 

Because many species of marine 

mammals make repetitive and 

prolonged dives to great depths, it has 

long been assumed that marine 

mammals have evolved physiological 

mechanisms to protect against the 

effects of rapid and repeated 

decompressions. Although several 

investigators have identified 

physiological adaptations that may 

protect marine mammals against 

nitrogen gas supersaturation (alveolar 

collapse and elective circulation; 

Kooyman et al., 1972; Ridgway and 

Howard, 1979), Ridgway and Howard 

(1979) reported that bottlenose dolphins 

that were trained to dive repeatedly had 

muscle tissues that were substantially 

supersaturated with nitrogen gas. 

Houser et al. (2001) used these data to 

model the accumulation of nitrogen gas 

within the muscle tissue of other marine 

mammal species and concluded that 

cetaceans that dive deep and have slow 

ascent or descent speeds would have 

tissues that are more supersaturated 

with nitrogen gas than other marine 

mammals. Based on these data, Cox et 

al. (2006) hypothesized that a critical 

dive sequence might make beaked 

whales more prone to stranding in 

response to acoustic exposures. The 

sequence began with (1) very deep (to 

depths as deep as 2 kilometers) and long 

(as long as 90 minutes) foraging dives 

with (2) relatively slow, controlled 

ascents, followed by (3) a series of 

‘‘bounce’’ dives between 100 and 400 m 

(328 and 1,323 ft) in depth (also see 

Zimmer and Tyack, 2007). They 

concluded that acoustic exposures that 

disrupted any part of this dive sequence 

(for example, causing beaked whales to 

spend more time at surface without the 

bounce dives that are necessary to 

recover from the deep dive) could 

produce excessive levels of nitrogen 

supersaturation in their tissues, leading 

to gas bubble and emboli formation that 

produces pathologies similar to 

decompression sickness. 

Recently, Zimmer and Tyack (2007) 

modeled nitrogen tension and bubble 

growth in several tissue compartments 

for several hypothetical dive profiles 

and concluded that repetitive shallow 

dives (defined as a dive where depth 

does not exceed the depth of alveolar 

collapse, approximately 72 m (236 ft) for 

Ziphius), perhaps as a consequence of 

an extended avoidance reaction to sonar 

sound, could pose a risk for 

decompression sickness and that this 

risk should increase with the duration 

20170 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

of the response. Their models also 

suggested that unrealistically more 

rapid ascent rates from normal dive 

behaviors are unlikely to result in 

supersaturation to the extent that bubble 

formation would be expected. Tyack et 

al. (2006) suggested that emboli 

observed in animals exposed to 

midfrequency range sonar (Jepson et al., 

2003; Fernandez et al., 2005) could stem 

from a behavioral response that involves 

repeated dives shallower than the depth 

of lung collapse. Given that nitrogen gas 

accumulation is a passive process (i.e., 

nitrogen is metabolically inert), a 

bottlenose dolphin was trained to 

repetitively dive a profile predicted to 

elevate nitrogen saturation to the point 

that nitrogen bubble formation was 

predicted to occur. However, inspection 

of the vascular system of the dolphin via 

ultrasound did not demonstrate the 

formation of asymptomatic nitrogen gas 

bubbles (Houser et al., 2007). 

If marine mammals respond to a Navy 

vessel that is transmitting active sonar 

in the same way that they might 

respond to a predator, their probability 

of flight responses should increase 

when they perceive that Navy vessels 

are approaching them directly, because 

a direct approach may convey detection 

and intent to capture (Burger and 

Gochfeld, 1981, 1990; Cooper, 1997, 

1998). The probability of flight 

responses should also increase as 

received levels of active sonar increase 

(and the vessel is, therefore, closer) and 

as vessel speeds increase (that is, as 

approach speeds increase). For example, 

the probability of flight responses in 

Dall’s sheep (Ovis dalli dalli) (Frid, 

2001a, b), ringed seals (Phoca hispida) 

(Born et al., 1999), Pacific brant (Branta 

bernic nigricans) and Canada geese (B. 

canadensis) increased as a helicopter or 

fixed-wing aircraft approached groups 

of these animals more directly (Ward et 

al., 1999). Bald eagles (Haliaeetus 

leucocephalus) perched on trees 

alongside a river were also more likely 

to flee from a paddle raft when their 

perches were closer to the river or were 

closer to the ground (Steidl and 

Anthony, 1996). 

Despite the many theories involving 

bubble formation (both as a direct cause 

of injury (see Acoustically Mediated 

Bubble Growth Section) and an indirect 

cause of stranding (See Behaviorally 

Mediated Bubble Growth Section), 

Southall et al., (2007) summarize that 

scientific disagreement or complete lack 

of information exists regarding the 

following important points: (1) Received 

acoustical exposure conditions for 

animals involved in stranding events; 

(2) pathological interpretation of 

observed lesions in stranded marine 

mammals; (3) acoustic exposure 

conditions required to induce such 

physical trauma directly; (4) whether 

noise exposure may cause behavioral 

reactions (such as atypical diving 

behavior) that secondarily cause bubble 

formation and tissue damage; and (5) 

the extent the post mortem artifacts 

introduced by decomposition before 

sampling, handling, freezing, or 

necropsy procedures affect 

interpretation of observed lesions. 

Unlike those past stranding events 

that were coincident with military midfrequency sonar use and were 

speculated to most likely have been 

caused by exposure to the sonar, those 

naval exercises involved multiple 

vessels in waters with steep bathymetry 

where deep channeling of sonar signals 

was more likely. The proposed NSWC 

PCD RDT&E activities would not 

involve multi-vessel operations and the 

bathymetry has none of the similarities 

where those mass strandings occurred. 

(e.g., Greece (1996); the Bahamas (2000); 

Madeira (2000); Canary Islands (2002); 

Hanalei Bay, Kaua’I, Hawaii (2004); and 

Spain (2006)). Consequently, because of 

the nature of the NSWC PCD operations 

(which involve low total hours of MFAS 

use, very limited use of high-powered 

surface vessel source, and no highspeed, multi-vessel training scenarios) 

and the fact that the NSWC PCD has 

none of the bathymetric features that 

have been associated with mass 

strandings in the past, NMFS concludes 

it is unlikely that sonar use would result 

in a stranding event in the NSWC PCD 

region. 

Acoustic Effects: Exposure to Ordnance 

and Projectile Firing 

Some of the Navy’s RDT&E activities 

include the underwater detonation of 

explosives. For many of the exercises 

discussed, inert ordnance is used for a 

subset of the exercises. The underwater 

explosion from a weapon would send a 

shock wave and blast noise through the 

water, release gaseous by-products, 

create an oscillating bubble, and cause 

a plume of water to shoot up from the 

water surface. The shock wave and blast 

noise are of most concern to marine 

animals. Depending on the intensity of 

the shock wave and size, location, and 

depth of the animal, an animal can be 

injured, killed, suffer non-lethal 

physical effects, experience hearingrelated effects with or without 

behavioral responses, or exhibit 

temporary behavioral responses or 

tolerance from hearing the blast sound. 

Generally, exposures to higher levels of 

impulse and pressure levels would 

result in worse impacts to an individual 

animal. 

Injuries resulting from a shock wave 

take place at boundaries between tissues 

of different density. Different velocities 

are imparted to tissues of different 

densities, and this can lead to their 

physical disruption. Blast effects are 

greatest at the gas-liquid interface 

(Landsberg, 2000). Gas-containing 

organs, particularly the lungs and 

gastrointestinal tract, are especially 

susceptible (Goertner, 1982; Hill, 1978; 

Yelverton et al., 1973). In addition, gascontaining organs including the nasal 

sacs, larynx, pharynx, trachea, and 

lungs may be damaged by compression/ 

expansion caused by the oscillations of 

the blast gas bubble (Reidenberg and 

Laitman, 2003). Intestinal walls can 

bruise or rupture, with subsequent 

hemorrhage and escape of gut contents 

into the body cavity. Less severe 

gastrointestinal tract injuries include 

contusions, petechiae (small red or 

purple spots caused by bleeding in the 

skin), and slight hemorrhaging 

(Yelverton et al., 1973). 

Because the ears are the most 

susceptible to changes in pressure, they 

are the organs most sensitive to injury 

(Ketten, 2000). Sound-related damage 

associated with blast noise can be 

theoretically distinct from injury from 

the shock wave, particularly farther 

from the explosion. If an animal is able 

to hear a noise, at some level it can 

damage its hearing by causing decreased 

sensitivity (Ketten, 1995) (See Noiseinduced Threshold Shift Section above). 

Sound-related trauma can be lethal or 

sublethal. Lethal impacts are those that 

result in immediate death or serious 

debilitation in or near an intense source 

and are not, technically, pure acoustic 

trauma (Ketten, 1995). Sublethal 

impacts include hearing loss, which is 

caused by exposures to perceptible 

sounds. Severe damage (from the shock 

wave) to the ears includes tympanic 

membrane rupture, fracture of the 

ossicles, damage to the cochlea, 

hemorrhage, and cerebrospinal fluid 

leakage into the middle ear. Moderate 

injury implies partial hearing loss due 

to tympanic membrane rupture and 

blood in the middle ear. Permanent 

hearing loss also can occur when the 

hair cells are damaged by one very loud 

event, as well as by prolonged exposure 

to a loud noise or chronic exposure to 

noise. The level of impact from blasts 

depends on both an animal’s location 

and, at outer zones, on its sensitivity to 

the residual noise (Ketten, 1995). 

There have been fewer studies 

addressing the behavioral effects of 

explosives on marine mammals than 

HFAS/MFAS. However, though the 

nature of the sound waves emitted from 

an explosion is different (in shape and 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20171 

rise time) from HFAS/MFAS, we still 

anticipate the same sorts of behavioral 

responses (see Exposure to HFAS/ 

MFAS: Behavioral Disturbance Section) 

to result from repeated explosive 

detonations (a smaller range of likely 

less severe responses would be expected 

to occur as a result of exposure to a 

single explosive detonation). 

Estimated Take of Marine Mammals 

With respect to the MMPA, NMFS’ 

effects assessment serves four primary 

purposes: (1) To prescribe the 

permissible methods of taking (i.e., 

Level B Harassment (behavioral 

harassment), Level A harassment 

(injury), or mortality, including an 

identification of the number and types 

of take that could occur by Level A or 

B harassment or mortality) and to 

prescribe other means of effecting the 

least practicable adverse impact on such 

species or stock and its habitat (i.e., 

mitigation); (2) to determine whether 

the specified activity will have a 

negligible impact on the affected species 

or stocks of marine mammals (based on 

the likelihood that the activity will 

adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival); (3) to 

determine whether the specified activity 

will have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (however, 

there are no subsistence communities 

that would be affected in the NSWC 

PCD Study Area, so this determination 

is inapplicable for this rulemaking); and 

(4) to prescribe requirements pertaining 

to monitoring and reporting. 

In the Potential Effects of Exposure of 

Marine Mammal to HFAS/MFAS and 

Underwater Detonations sections, 

NMFS identifies the lethal responses, 

physical trauma, sensory impairment 

(permanent and temporary threshold 

shifts and acoustic masking), 

physiological responses (particular 

stress responses), and behavioral 

responses that could potentially result 

from exposure to HFAS/MFAS or 

underwater explosive detonations. In 

this section, we will relate the potential 

effects to marine mammals from HFAS/ 

MFAS and underwater detonation of 

explosives to the MMPA regulatory 

definitions of Level A and Level B 

Harassment and attempt to quantify the 

effects that might occur from the 

specific RDT&E activities that the Navy 

is proposing in the NSWC PCD. 

Definition of Harassment 

As mentioned previously, with 

respect to military readiness activities, 

Section 3(18)(B) of the MMPA defines 

‘‘harassment’’ as: (i) Any act that injures 

or has the significant potential to injure 

a marine mammal or marine mammal 

stock in the wild [Level A Harassment]; 

or (ii) any act that disturbs or is likely 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where 

such behavioral patterns are abandoned 

or significantly altered [Level B 

Harassment]. 

Level B Harassment 

Of the potential effects that were 

described in the Potential Effects of 

Exposure of Marine Mammals to HFAS/ 

MFAS and Underwater Detonations 

sections, the following are the types of 

effects that fall into the Level B 

Harassment category: 

Behavioral Harassment—Behavioral 

disturbance that rises to the level 

described in the definition above, when 

resulting from exposures to HFAS/ 

MFAS or underwater detonations, is 

considered Level B Harassment. Some 

of the lower level physiological stress 

responses will also likely co-occur with 

the predicted harassments, although 

these responses are more difficult to 

detect and fewer data exist relating 

these responses to specific received 

levels of sound. When Level B 

Harassment is predicted based on 

estimated behavioral responses, those 

takes may have a stress-related 

physiological component as well. 

In the effects section above, we 

described the Southall et al., (2007) 

severity scaling system and listed some 

examples of the three broad categories 

of behaviors: (0–3: Minor and/or brief 

behaviors); 4–6 (Behaviors with higher 

potential to affect foraging, 

reproduction, or survival); 7–9 

(Behaviors considered likely to affect 

the aforementioned vital rates). 

Generally speaking, MMPA Level B 

Harassment, as defined in this 

document, would include the behaviors 

described in the 7–9 category, and a 

subset, dependent on context and other 

considerations, of the behaviors 

described in the 4–6 categories. 

Behavioral harassment generally does 

not include behaviors ranked 0–3 in 

Southall et al., (2007). 

Acoustic Masking and 

Communication Impairment—Acoustic 

masking is considered Level B 

Harassment as it can disrupt natural 

behavioral patterns by interrupting or 

limiting the marine mammal’s receipt or 

transmittal of important information or 

environmental cues. 

TTS—As discussed previously, TTS 

can affect how an animal behaves in 

response to the environment, including 

conspecifics, predators, and prey. The 

following physiological mechanisms are 

thought to play a role in inducing 

auditory fatigue: Effects to sensory hair 

cells in the inner ear that reduce their 

sensitivity, modification of the chemical 

environment within the sensory cells, 

residual muscular activity in the middle 

ear, displacement of certain inner ear 

membranes, increased blood flow, and 

post-stimulatory reduction in both 

efferent and sensory neural output. 

Ward (1997) suggested that when these 

effects result in TTS rather than PTS, 

they are within the normal bounds of 

physiological variability and tolerance 

and do not represent a physical injury. 

Additionally, Southall et al. (2007) 

indicate that although PTS is a tissue 

injury, TTS is not because the reduced 

hearing sensitivity following exposure 

to intense sound results primarily from 

fatigue, not loss, of cochlear hair cells 

and supporting structures and is 

reversible. Accordingly, NMFS classifies 

TTS (when resulting from exposure to 

either HFAS/MFAS or underwater 

detonations) as Level B Harassment, not 

Level A Harassment (injury). 

Level A Harassment 

Of the potential effects that were 

described in the Potential Effects of 

Exposure of Marine Mammal to HFAS/ 

MFAS and Underwater Detonations 

Section, following are the types of 

effects that fall into the Level A 

Harassment category: 

PTS—PTS (resulting either from 

exposure to HFAS/MFAS or explosive 

detonations) is irreversible and 

considered an injury. PTS results from 

exposure to intense sounds that cause a 

permanent loss of inner or outer 

cochlear hair cells or exceed the elastic 

limits of certain tissues and membranes 

in the middle and inner ears and results 

in changes in the chemical composition 

of the inner ear fluids. 

Acoustically Mediated Bubble 

Growth—A few theories suggest ways in 

which gas bubbles become enlarged 

through exposure to intense sounds 

(HFAS/MFAS) to the point where tissue 

damage results. In rectified diffusion, 

exposure to a sound field would cause 

bubbles to increase in size. Alternately, 

bubbles could be destabilized by high 

level sound exposures such that bubble 

growth then occurs through static 

diffusion of gas out of the tissues. Tissue 

damage from either of these processes 

would be considered an injury. 

Behaviorally Mediated Bubble 

Growth—Several authors suggest 

mechanisms in which marine mammals 

could behaviorally respond to exposure 

to HFAS/MFAS by altering their dive 

20172 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

patterns in a manner (unusually rapid 

ascent, unusually long series of surface 

dives, etc.) that might result in unusual 

bubble formation or growth ultimately 

resulting in tissue damage (emboli, etc.). 

Physical Disruption of Tissues 

Resulting from Explosive Shock Wave— 

Physical damage of tissues resulting 

from a shock wave (from an explosive 

detonation) is classified as an injury. 

Blast effects are greatest at the gas-liquid 

interface (Landsberg, 2000) and gascontaining organs, particularly the lungs 

and gastrointestinal tract, are especially 

susceptible (Goertner, 1982; Hill 1978; 

Yelverton et al., 1973). Nasal sacs, 

larynx, pharynx, trachea, and lungs may 

be damaged by compression/expansion 

caused by the oscillations of the blast 

gas bubble (Reidenberg and Laitman, 

2003). Severe damage (from the shock 

wave) to the ears can include tympanic 

membrane rupture, fracture of the 

ossicles, damage to the cochlea, 

hemorrhage, and cerebrospinal fluid 

leakage into the middle ear. 

Acoustic Take Criteria 

For the purposes of an MMPA 

incidental take authorization, three 

types of take are identified: Level B 

harassment; Level A harassment; and 

mortality (or serious injury leading to 

mortality). The categories of marine 

mammal responses (physiological and 

behavioral) that fall into the two 

harassment categories were described in 

the previous section. 

Because the physiological and 

behavioral responses of the majority of 

the marine mammals exposed to HFAS/ 

MFAS and underwater detonations 

cannot be detected or measured, a 

method is needed to estimate the 

number of individuals that will be 

taken, pursuant to the MMPA, based on 

the proposed action. To this end, NMFS 

uses acoustic criteria that estimate at 

what received level (when exposed to 

HFAS/MFAS or explosive detonations) 

Level B Harassment, Level A 

Harassment, and mortality (for 

explosives) of marine mammals would 

occur. The acoustic criteria for HFAS/ 

MFAS and Underwater Detonations are 

discussed below. 

HFAS/MFAS Acoustic Criteria 

Because relatively few applicable data 

exist to support acoustic criteria 

specifically for HFAS, and it is 

suspected that the majority of the 

adverse affects are from the MFAS due 

to their larger impact ranges, NMFS will 

apply the criteria developed for the 

MFAS to the HFAS as well. 

NMFS utilizes three acoustic criteria 

for HFAS/MFAS: PTS (injury—Level A 

Harassment), behavioral harassment 

from TTS, and sub-TTS (Level B 

Harassment). Because the TTS and PTS 

criteria are derived similarly and the 

PTS criteria was extrapolated from the 

TTS data, the TTS and PTS acoustic 

criteria will be presented first, before 

the behavioral criteria. 

For more information regarding these 

criteria, please see the Navy’s DEIS for 

the NSWC PCD. 

Level B Harassment Threshold (TTS) 

As mentioned above, behavioral 

disturbance, acoustic masking, and TTS 

are all considered Level B Harassment. 

Marine mammals would usually be 

behaviorally disturbed at lower received 

levels than those at which they would 

likely sustain TTS, so the levels at 

which behavioral disturbance is likely 

to occur are considered the onset of 

Level B Harassment. The behavioral 

responses of marine mammals to sound 

are variable, context specific, and, 

therefore, difficult to quantify (see Risk 

Function section, below). TTS is a 

physiological effect that has been 

studied and quantified in laboratory 

conditions. NMFS also uses an acoustic 

criteria to estimate the number of 

marine mammals that might sustain 

TTS incidental to a specific activity (in 

addition to the behavioral criteria). 

A number of investigators have 

measured TTS in marine mammals. 

These studies measured hearing 

thresholds in trained marine mammals 

before and after exposure to intense 

sounds. The existing cetacean TTS data 

are summarized in the following bullets. 

• Schlundt et al. (2000) reported the 

results of TTS experiments conducted 

with 5 bottlenose dolphins and 2 

belugas exposed to 1-second tones. This 

paper also includes a reanalysis of 

preliminary TTS data released in a 

technical report by Ridgway et al. 

(1997). At frequencies of 3, 10, and 20 

kHz, sound pressure levels (SPLs) 

necessary to induce measurable 

amounts (6 dB or more) of TTS were 

between 192 and 201 dB re 1 microPa 

(EL = 192 to 201 dB re 1 microPa2-s). 

The mean exposure SPL and EL for 

onset-TTS were 195 dB re 1 microPa 

and 195 dB re 1 microPa2-s, 

respectively. 

• Finneran et al. (2001, 2003, 2005) 

described TTS experiments conducted 

with bottlenose dolphins exposed to 3- 

kHz tones with durations of 1, 2, 4, and 

8 seconds. Small amounts of TTS (3 to 

6 dB) were observed in one dolphin 

after exposure to ELs between 190 and 

204 dB re 1 microPa2-s. These results 

were consistent with the data of 

Schlundt et al. (2000) and showed that 

the Schlundt et al. (2000) data were not 

significantly affected by the masking 

sound used. These results also 

confirmed that, for tones with different 

durations, the amount of TTS is best 

correlated with the exposure EL rather 

than the exposure SPL. 

• Nachtigall et al. (2003) measured 

TTS in a bottlenose dolphin exposed to 

octave-band sound centered at 7.5 kHz. 

Nachtigall et al. (2003a) reported TTSs 

of about 11 dB measured 10 to 15 

minutes after exposure to 30 to 50 

minutes of sound with SPL 179 dB re 

1 microPa (EL about 213 dB re 

microPa2-s). No TTS was observed after 

exposure to the same sound at 165 and 

171 dB re 1 microPa. Nachtigall et al. 

(2004) reported TTSs of around 4 to 8 

dB 5 minutes after exposure to 30 to 50 

minutes of sound with SPL 160 dB re 

1 microPa (EL about 193 to 195 dB re 

1 microPa2-s). The difference in results 

was attributed to faster post-exposure 

threshold measurement—TTS may have 

recovered before being detected by 

Nachtigall et al. (2003). These studies 

showed that, for long duration 

exposures, lower sound pressures are 

required to induce TTS than are 

required for short-duration tones. 

• Finneran et al. (2000, 2002) 

conducted TTS experiments with 

dolphins and belugas exposed to 

impulsive sounds similar to those 

produced by distant underwater 

explosions and seismic waterguns. 

These studies showed that, for very 

short-duration impulsive sounds, higher 

sound pressures were required to 

induce TTS than for longer-duration 

tones. 

Some of the more important data 

obtained from these studies are onsetTTS levels (exposure levels sufficient to 

cause a just-measurable amount of TTS) 

often defined as 6 dB of TTS (for 

example, Schlundt et al., 2000) and the 

fact that energy metrics (sound exposure 

levels (SEL), which include a duration 

component) better predict when an 

animal will sustain TTS than pressure 

(SPL) alone. NMFS’ TTS criteria (which 

indicate the received level at which 

onset TTS (≤6dB) is induced) for HFAS/ 

MFAS are as follows: 

• Cetaceans—195 dB re 1 microPa2-s 

(based on mid-frequency cetaceans—no 

published data exist on auditory effects 

of noise in low or high frequency 

cetaceans (Southall et al., 2007). 

A detailed description of how TTS 

criteria were derived from the results of 

the above studies may be found in 

Chapter 3 of Southall et al. (2007), as 

well as the Navy’s NSWC PCD LOA 

application. 

Level A Harassment Threshold (PTS) 

For acoustic effects, because the 

tissues of the ear appear to be the most 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20173 

susceptible to the physiological effects 

of sound, and because threshold shifts 

tend to occur at lower exposures than 

other more serious auditory effects, 

NMFS has determined that PTS is the 

best indicator for the smallest degree of 

injury that can be measured. Therefore, 

the acoustic exposure associated with 

onset-PTS is used to define the lower 

limit of the Level A harassment. 

PTS data do not currently exist for 

marine mammals and are unlikely to be 

obtained due to ethical concerns. 

However, PTS levels for these animals 

may be estimated using TTS data from 

marine mammals and relationships 

between TTS and PTS that have been 

discovered through study of terrestrial 

mammals. NMFS uses the following 

acoustic criteria for injury: 

• Cetaceans—215 dB re 1 microPa 2-s 

(based on mid-frequency cetaceans—no 

published data exist on auditory effects 

of noise in low or high frequency 

cetaceans (Southall et al., 2007). 

These criteria are based on a 20 dB 

increase in SEL over that required for 

onset-TTS. Extrapolations from 

terrestrial mammal data indicate that 

PTS occurs at 40 dB or more of TS, and 

that TS growth occurs at a rate of 

approximately 1.6 dB TS per dB 

increase in EL. There is a 34-dB TS 

difference between onset-TTS (6 dB) 

and onset-PTS (40 dB). Therefore, an 

animal would require approximately 20- 

dB of additional exposure (34 dB 

divided by 1.6 dB) above onset-TTS to 

reach PTS. A detailed description of 

how TTS criteria were derived from the 

results of the above studies may be 

found in Chapter 3 of Southall et al. 

(2007), as well as the Navy’s NSWC PCD 

LOA application. Southall et al. (2007) 

recommend a precautionary dual 

criteria for TTS (230 dB re 1 microPa 

(SPL) in addition to 215 re 1 microPa 2- 

s (SEL)) to account for the potentially 

damaging transients embedded within 

non-pulse exposures. However, in the 

case of HFAS/MFAS, the distance at 

which an animal would receive 215 

(SEL) is farther from the source than the 

distance at which they would receive 

230 (SPL) and therefore, it is not 

necessary to consider 230 dB. 

We note here that behaviorally 

mediated injuries (such as those that 

have been hypothesized as the cause of 

some beaked whale strandings) could 

potentially occur in response to 

received levels lower than those 

believed to directly result in tissue 

damage. As mentioned previously, data 

to support a quantitative estimate of 

these potential effects (for which the 

exact mechanism is not known and in 

which factors other than received level 

may play a significant role) do not exist. 

Level B Harassment Risk Function 

(Behavioral Harassment) 

The first MMPA authorization for take 

of marine mammals incidental to 

tactical active sonar was issued in 2006 

for Navy Rim of the Pacific training 

exercises in Hawaii. For that 

authorization, NMFS used 173 dB SEL 

as the criterion for the onset of 

behavioral harassment (Level B 

Harassment). This type of single number 

criterion is referred to as a step function, 

in which (in this example) all animals 

estimated to be exposed to received 

levels above 173 dB SEL would be 

predicted to be taken by Level B 

Harassment and all animals exposed to 

less than 173 dB SEL would not be 

taken by Level B Harassment. As 

mentioned previously, marine mammal 

behavioral responses to sound are 

highly variable and context specific 

(affected by differences in acoustic 

conditions; differences between species 

and populations; differences in gender, 

age, reproductive status, or social 

behavior; or the prior experience of the 

individuals), which does not support 

the use of a step function to estimate 

behavioral harassment. 

Unlike step functions, acoustic risk 

continuum functions (which are also 

called ‘‘exposure-response functions,’’ 

‘‘dose-response functions,’’ or ‘‘stress 

response functions’’ in other risk 

assessment contexts) allow for 

probability of a response that NMFS 

would classify as harassment to occur 

over a range of possible received levels 

(instead of one number) and assume that 

the probability of a response depends 

first on the ‘‘dose’’ (in this case, the 

received level of sound) and that the 

probability of a response increases as 

the ‘‘dose’’ increases. The Navy and 

NMFS have previously used acoustic 

risk functions to estimate the probable 

responses of marine mammals to 

acoustic exposures in the Navy FEISs on 

the SURTASS LFA sonar (DoN, 2001c) 

and the North Pacific Acoustic 

Laboratory experiments conducted off 

the Island of Kauai (ONR, 2001). The 

specific risk functions used here were 

also used in the MMPA regulations and 

FEIS for Hawaii Range Complex (HRC), 

Southern California Range Complex 

(SOCAL), and Atlantic Fleet Active 

Sonar Testing (AFAST). As discussed in 

the Effects section, factors other than 

received level (such as distance from or 

bearing to the sound source) can affect 

the way that marine mammals respond; 

however, data to support a quantitative 

analysis of those (and other factors) do 

not currently exist. NMFS will continue 

to modify these criteria as new data 

become available. 

To assess the potential effects on 

marine mammals associated with active 

sonar used during training activity the 

Navy and NMFS applied a risk function 

that estimates the probability of 

behavioral responses that NMFS would 

classify as harassment for the purposes 

of the MMPA given exposure to specific 

received levels of MFA sonar. The 

mathematical function is derived from a 

solution in Feller (1968) as defined in 

the SURTASS LFA Sonar Final OEIS/ 

EIS (DoN, 2001), and relied on in the 

Supplemental SURTASS LFA Sonar EIS 

(DoN, 2007a) for the probability of MFA 

sonar risk for MMPA Level B behavioral 

harassment with input parameters 

modified by NMFS for MFA sonar for 

mysticetes and odontocetes (NMFS, 

2008). The same risk function and input 

parameters will be applied to high 

frequency active (HFA) (<10 kHz) 

sources until applicable data becomes 

available for high frequency sources. 

In order to represent a probability of 

risk, the function should have a value 

near zero at very low exposures, and a 

value near one for very high exposures. 

One class of functions that satisfy this 

criterion is cumulative probability 

distributions, a type of cumulative 

distribution function. In selecting a 

particular functional expression for risk, 

several criteria were identified: 

• The function must use parameters 

to focus discussion on areas of 

uncertainty; 

• The function should contain a 

limited number of parameters; 

• The function should be capable of 

accurately fitting experimental data; and 

• The function should be reasonably 

convenient for algebraic manipulations. 

As described in U.S. Department of 

the Navy (2001), the mathematical 

function below is adapted from a 

solution in Feller (1968). 

R

L B

K

L B

K

A

A =

− ⎛ −

⎝

⎜ ⎞

⎠

⎟

− ⎛ −

⎝

⎜ ⎞

⎠

⎟

−

−

1

1

2

Where: 

R = Risk (0–1.0) 

L = Received level (dB re: 1 μPa) 

B = Basement received level = 120 dB re: 1 

μPa 

K = Received level increment above B where 

50 percent risk = 45 dB re: 1 μPa 

A = Risk transition sharpness parameter = 10 

(odontocetes) or 8 (mysticetes) 

In order to use this function to 

estimate the percentage of an exposed 

population that would respond in a 

manner that NMFS classifies as Level B 

harassment, based on a given received 

level, the values for B, K and A need to 

be identified. 


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20174 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

B Parameter (Basement)—The B 

parameter is the estimated received 

level below which the probability of 

disruption of natural behavioral 

patterns, such as migration, surfacing, 

nursing, breeding, feeding, or sheltering, 

to a point where such behavioral 

patterns are abandoned or significantly 

altered approaches zero for the HFAS/ 

MFAS risk assessment. At this received 

level, the curve would predict that the 

percentage of the exposed population 

that would be taken by Level B 

Harassment approaches zero. For HFAS/ 

MFAS, NMFS has determined that B = 

120 dB. This level is based on a broad 

overview of the levels at which many 

species have been reported responding 

to a variety of sound sources. 

K Parameter (representing the 50 

percent Risk Point)—The K parameter is 

based on the received level that 

corresponds to 50 percent risk, or the 

received level at which we believe 50 

percent of the animals exposed to the 

designated received level will respond 

in a manner that NMFS classifies as 

Level B Harassment. The K parameter (K 

= 45 dB) is based on three datasets in 

which marine mammals exposed to 

mid-frequency sound sources were 

reported to respond in a manner that 

NMFS would classify as Level B 

Harassment. There is widespread 

consensus that marine mammal 

responses to HFA/MFA sound signals 

need to be better defined using 

controlled exposure experiments (Cox et 

al., 2006; Southall et al., 2007). The 

Navy is contributing to an ongoing 

behavioral response study in the 

Bahamas that is expected to provide 

some initial information on beaked 

whales, the species identified as the 

most sensitive to MFAS. NMFS is 

leading this international effort with 

scientists from various academic 

institutions and research organizations 

to conduct studies on how marine 

mammals respond to underwater sound 

exposures. Until additional data is 

available, however, NMFS and the Navy 

have determined that the following 

three data sets are most applicable for 

the direct use in establishing the K 

parameter for the HFAS/MFAS risk 

function. These data sets, summarized 

below, represent the only known data 

that specifically relate altered 

behavioral responses (that NMFS would 

consider Level B Harassment) to 

exposure to HFAS/MFAS sources. 

Even though these data are considered 

the most representative of the proposed 

specified activities, and therefore the 

most appropriate on which to base the 

K parameter (which basically 

determines the midpoint) of the risk 

function, these data have limitations, 

which are discussed in Appendix J of 

the Navy’s EIS for the NSWC PCD . 

1. Controlled Laboratory Experiments 

with Odontocetes (SSC Dataset)—Most 

of the observations of the behavioral 

responses of toothed whales resulted 

from a series of controlled experiments 

on bottlenose dolphins and beluga 

whales conducted by researchers at 

SSC’s facility in San Diego, California 

(Finneran et al., 2001, 2003, 2005; 

Finneran and Schlundt, 2004; Schlundt 

et al., 2000). In experimental trials 

(designed to measure TTS) with marine 

mammals trained to perform tasks when 

prompted, scientists evaluated whether 

the marine mammals performed these 

tasks when exposed to mid-frequency 

tones. Altered behavior during 

experimental trials usually involved 

refusal of animals to return to the site 

of the sound stimulus, but also included 

attempts to avoid an exposure in 

progress, aggressive behavior, or refusal 

to further participate in tests. 

Finneran and Schlundt (2004) 

examined behavioral observations 

recorded by the trainers or test 

coordinators during the Schlundt et al. 

(2000) and Finneran et al. (2001, 2003, 

2005) experiments. These included 

observations from 193 exposure sessions 

(fatiguing stimulus level > 141 dB re 

1microPa) conducted by Schlundt et al. 

(2000) and 21 exposure sessions 

conducted by Finneran et al. (2001, 

2003, 2005). The TTS experiments that 

supported Finneran and Schlundt 

(2004) are further explained below: 

• Schlundt et al. (2000) provided a 

detailed summary of the behavioral 

responses of trained marine mammals 

during TTS tests conducted at SSC San 

Diego with 1-sec tones and exposure 

frequencies of 0.4 kHz, 3 kHz, 10 kHz, 

20 kHz and 75 kHz. Schlundt et al. 

(2000) reported eight individual TTS 

experiments. The experiments were 

conducted in San Diego Bay. Because of 

the variable ambient noise in the bay, 

low-level broadband masking noise was 

used to keep hearing thresholds 

consistent despite fluctuations in the 

ambient noise. Schlundt et al. (2000) 

reported that ‘‘behavioral alterations,’’ 

or deviations from the behaviors the 

animals being tested had been trained to 

exhibit, occurred as the animals were 

exposed to increasing fatiguing stimulus 

levels. 

• Finneran et al. (2001, 2003, 2005) 

conducted 2 separate TTS experiments 

using 1-sec tones at 3 kHz. The test 

methods were similar to that of 

Schlundt et al. (2000) except the tests 

were conducted in a pool with very low 

ambient noise level (below 50 dB re 1 

microPa2/Hz), and no masking noise 

was used. In the first, fatiguing sound 

levels were increased from 160 to 201 

dB SPL. In the second experiment, 

fatiguing sound levels between 180 and 

200 dB SPL were randomly presented. 

Bottlenose dolphins exposed to 1-sec 

intense tones exhibited short-term 

changes in behavior above received 

sound levels of 178 to 193 dB re 1 

microPa (rms), and beluga whales did so 

at received levels of 180 to 196 dB and 

above. 

2. Mysticete Field Study (Nowacek et 

al., 2004)—The only available and 

applicable data relating mysticete 

responses to exposure to mid-frequency 

sound sources is from Nowacek et al. 

(2004). Nowacek et al. (2004) 

documented observations of the 

behavioral response of North Atlantic 

right whales exposed to alert stimuli 

containing mid-frequency components 

in the Bay of Fundy. Investigators used 

archival digital acoustic recording tags 

(DTAG) to record the behavior (by 

measuring pitch, roll, heading, and 

depth) of right whales in the presence 

of an alert signal, and to calibrate 

received sound levels. The alert signal 

was 18 minutes of exposure consisting 

of three 2-minute signals played 

sequentially three times over. The three 

signals had a 60 percent duty cycle and 

consisted of: (1) Alternating 1-sec pure 

tones at 500 Hz and 850 Hz; (2) a 2-sec 

logarithmic down-sweep from 4,500 Hz 

to 500 Hz; and (3) a pair of low (1,500 

Hz)-high (2,000 Hz) sine wave tones 

amplitude modulated at 120 Hz and 

each 1-sec long. The purposes of the 

alert signal were (a) to pique the 

mammalian auditory system with 

disharmonic signals that cover the 

whales’ estimated hearing range; (b) to 

maximize the signal to noise ratio 

(obtain the largest difference between 

background noise) and c) to provide 

localization cues for the whale. The 

maximum source level used was 173 dB 

SPL. 

Nowacek et al. (2004) reported that 

five out of six whales exposed to the 

alert signal with maximum received 

levels ranging from 133 to 148 dB re 1 

microPa significantly altered their 

regular behavior and did so in identical 

fashion. Each of these five whales: (i) 

Abandoned their current foraging dive 

prematurely as evidenced by curtailing 

their ‘bottom time’; (ii) executed a 

shallow-angled, high power (i.e. 

significantly increased fluke stroke rate) 

ascent; (iii) remained at or near the 

surface for the duration of the exposure, 

an abnormally long surface interval; and 

(iv) spent significantly more time at 

subsurface depths (1–10 m) compared 

with normal surfacing periods when 

whales normally stay within 1 m (1.1 

yd) of the surface. 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20175 

3. Odontocete Field Data (Haro 

Strait—USS SHOUP)—In May 2003, 

killer whales were observed exhibiting 

behavioral responses generally 

described as avoidance behavior while 

the U.S. Ship (USS) SHOUP was 

engaged in MFAS in the Haro Strait in 

the vicinity of Puget Sound, 

Washington. Those observations have 

been documented in three reports 

developed by Navy and NMFS (NMFS, 

2005a; Fromm, 2004a, 2004b; DON, 

2003). Although these observations were 

made in an uncontrolled environment, 

the sound field that may have been 

associated with the sonar operations 

was estimated using standard acoustic 

propagation models that were verified 

(for some but not all signals) based on 

calibrated in situ measurements from an 

independent researcher who recorded 

the sounds during the event. Behavioral 

observations were reported for the group 

of whales during the event by an 

experienced marine mammal biologist 

who happened to be on the water 

studying them at the time. The 

observations associated with the USS 

SHOUP provide the only data set 

available of the behavioral responses of 

wild, non-captive animal upon actual 

exposure to AN/SQS–53 sonar. 

U.S. Department of Commerce 

(NMFS, 2005a); U.S. Department of the 

Navy (2004b); Fromm (2004a, 2004b) 

documented reconstruction of sound 

fields produced by USS SHOUP 

associated with the behavioral response 

of killer whales observed in Haro Strait. 

Observations from this reconstruction 

included an approximate closest 

approach time which was correlated to 

a reconstructed estimate of received 

level (which ranged from 150 to 180 dB) 

at an approximate whale location with 

a mean value of 169.3 dB SPL. 

Calculation of K Parameter—NMFS 

and the Navy used the mean of the 

following values to define the midpoint 

of the function: (1) The mean of the 

lowest received levels (185.3 dB) at 

which individuals responded with 

altered behavior to 3 kHz tones in the 

SSC data set; (2) the estimated mean 

received level value of 169.3 dB 

produced by the reconstruction of the 

USS SHOUP incident in which killer 

whales exposed to MFA sonar (range 

modeled possible received levels: 150 to 

180 dB); and (3) the mean of the 5 

maximum received levels at which 

Nowacek et al. (2004) observed 

significantly altered responses of right 

whales to the alert stimuli than to the 

control (no input signal) is 139.2 dB 

SPL. The arithmetic mean of these three 

mean values is 165 dB SPL. The value 

of K is the difference between the value 

of B (120 dB SPL) and the 50 percent 

value of 165 dB SPL; therefore, K=45. 

A Parameter (Steepness)—NMFS 

determined that a steepness parameter 

(A)=10 is appropriate for odontocetes 

(except harbor porpoises) and pinnipeds 

and A=8 is appropriate for mysticetes. 

The use of a steepness parameter of 

A=10 for odontocetes (except harbor 

porpoises) for the HFAS/MFAS risk 

function was based on the use of the 

same value for the SURTASS LFA risk 

continuum, which was supported by a 

sensitivity analysis of the parameter 

presented in Appendix D of the 

SURTASS/LFA FEIS (DON, 2001c). As 

concluded in the SURTASS FEIS/EIS, 

the value of A=10 produces a curve that 

has a more gradual transition than the 

curves developed by the analyses of 

migratory gray whale studies (Malme et 

al., 1984; Buck and Tyack, 2000; and 

SURTASS LFA Sonar EIS, Subchapters 

1.43, 4.2.4.3 and Appendix D, and 

NMFS, 2008). 

NMFS determined that a lower 

steepness parameter (A=8), resulting in 

a shallower curve, was appropriate for 

use with mysticetes and HFAS/MFAS. 

The Nowacek et al. (2004) dataset 

contains the only data illustrating 

mysticete behavioral responses to a midfrequency sound source. A shallower 

curve (achieved by using A=8) better 

reflects the risk of behavioral response 

at the relatively low received levels at 

which behavioral responses of right 

whales were reported in the Nowacek et 

al. (2004) data. Compared to the 

odontocete curve, this adjustment 

results in an increase in the proportion 

of the exposed population of mysticetes 

being classified as behaviorally harassed 

at lower RLs, such as those reported in 

and is supported by the only dataset 

currently available. 

Basic Application of the Risk 

Function—The risk function is used to 

estimate the percentage of an exposed 

population that is likely to exhibit 

behaviors that would qualify as 

harassment (as that term is defined by 

the MMPA applicable to military 

readiness activities, such as the Navy’s 

testing and research activities with 

HFA/MFA sonar) at a given received 

level of sound. For example, at 165 dB 

SPL (dB re: 1 microPa rms), the risk (or 

probability) of harassment is defined 

according to this function as 50 percent, 

and Navy/NMFS applies that by 

estimating that 50 percent of the 

individuals exposed at that received 

level are likely to respond by exhibiting 

behavior that NMFS would classify as 

behavioral harassment. The risk 

function is not applied to individual 

animals, only to exposed populations. 

The data primarily used to produce 

the risk function (the K parameter) were 

compiled from four species that had 

been exposed to sound sources in a 

variety of different circumstances. As a 

result, the risk function represents a 

general relationship between acoustic 

exposures and behavioral responses that 

is then applied to specific 

circumstances. That is, the risk function 

represents a relationship that is deemed 

to be generally true, based on the 

limited, best-available science, but may 

not be true in specific circumstances. In 

particular, the risk function, as currently 

derived, treats the received level as the 

only variable that is relevant to a marine 

mammal’s behavioral response. 

However, we know that many other 

variables—the marine mammal’s 

gender, age, and prior experience; the 

activity it is engaged in during an 

exposure event, its distance from a 

sound source, the number of sound 

sources, and whether the sound sources 

are approaching or moving away from 

the animal—can be critically important 

in determining whether and how a 

marine mammal will respond to a sound 

source (Southall et al., 2007). The data 

that are currently available do not allow 

for incorporation of these other 

variables in the current risk functions; 

however, the risk function represents 

the best use of the data that are available 

(Figure 1). 

20176 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

As more specific and applicable data 

become available for HFAS/MFAS 

sources, NMFS can use these data to 

modify the outputs generated by the risk 

function to make them more realistic. 

Ultimately, data may exist to justify the 

use of additional, alternate, or 

multivariate functions. For example, as 

mentioned previously, the distance from 

the sound source and whether it is 

perceived as approaching or moving 

away can affect the way an animal 

responds to a sound (Wartzok et al., 

2003). 

Explosive Detonation Criteria 

Acoustic Effects: Ordnance 

Live ordnance testing may occur from 

the surf zone out to the outer perimeter 

of the NSWC PCD Study Area. The size 

and weight of the explosives used 

would vary from 0.91 to 272 kg (2 to 600 

lb) trinitrotoluene (TNT) equivalent net 

explosive weight (NEW). No detonations 

over 34 kg (75 lb) NEW will be 

conducted within the territorial waters 

of the NSWC PCD Study Area. 

Operations involving live explosives 

include mine detonations and surf zone 

line charge detonations. 

Underwater detonations may project 

pressure and sound intensities sufficient 

to cause physical trauma or acoustic or 

behavioral effects to protected marine 

mammals. Determining the potential 

exposures associated with ordnance 

operations is very similar to 

determining potential exposures 

associated with sonar operations 

described above. 

Metrics: Underwater Explosive Sound 

Four standard acoustic metrics for 

measuring underwater pressure waves 

were used in this analysis: 

• Total Energy Flux Density Level 

(EFD) 

• 1⁄3-Octave EFD 

• Positive Impulse 

• Peak Pressure 

Total EFD––Total EFD is the metric 

used for analyzing the level of sound 

that would cause a permanent decrease 

in hearing sensitivity. Decibels are used 

to express this metric. 1⁄3-Octave EFD—One-third octave 

EFD is the metric used in discussions of 

temporary (i.e., recoverable) hearing loss 

and for behavioral response thresholds 

of protected species to sound. One-third 

octave EFD is the energy flux density in 

the 1⁄3-octave frequency band at which 

the animal potentially exposed hears 

best. Decibels are also used to express 

this metric. This metric is used for 

analyzing underwater detonations. 

Positive Impulse—Positive impulse is 

the metric used for analyzing lethal 

sound levels, as well as sound that 

marks the onset of slight lung injury in 

cetaceans. Positive impulse as it is used 

here is based on an equation modified 

by Goertner (1982); thus it is more 

completely stated as the Goertnermodified positive impulse. The units to 

express this metric are pounds per 

square inch millisecond (psi-ms). 

Peak Pressure—This is the maximum 

positive pressure for an arrival of a 

sound pressure wave that a marine 

mammal would receive at some distance 

away from a detonation. Units used here 

are pounds per square inch (psi) and dB 

levels. 

Criteria and Thresholds for Explosive 

Sound 

Criteria and thresholds for estimating 

the effects on protected species 

including marine mammals and sea 

turtles from a single explosive event 

were established and publicly vetted 

through the NEPA process during the 

Seawolf Submarine Shock Test FEIS 

(‘‘Seawolf’’) and the USS Winston S. 

Churchill (DDG–81) Ship Shock FEIS 

(‘‘Churchill’’) (DON, 2001). These 


EP30AP09.002</MATH>
Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20177 

criteria and thresholds were adopted by 

NMFS in its final rule on unintentional 

taking of marine animals incidental to 

the shock testing. The risk assessment 

approach for all gunfire-related sound in 

water was derived from the Seawolf/ 

Churchill approach. 

Criteria and Thresholds for 

Physiological Effects to Explosive Sound 

The criterion for mortality for marine 

mammals used in the Churchill FEIS is 

‘‘onset of severe lung injury.’’ This 

criterion is conservative in that it 

corresponds to a 1 percent chance of 

mortal injury, and yet any animal 

experiencing onset severe lung injury is 

counted as a lethal exposure. The 

threshold is stated in terms of the 

Goertner (1982) modified positive 

impulse with value ‘‘indexed to 31 psimsec.’’ Since the Goertner approach 

depends on propagation, source/animal 

depths, and animal mass in a complex 

way, the actual impulse value 

corresponding to the 31 psi-msec index 

is a complicated calculation. Again, to 

be conservative, Churchill used the 

mass of a calf dolphin (at 12.2 kg or 26.9 

lb), so that the threshold index is 30.5 

psi-msec. 

Dual criteria are used for injury: 50 

percent eardrum rupture (i.e., tympanic 

membrane [TM] rupture) and onset of 

slight lung injury. These criteria are 

considered indicative of the onset of 

injury. The threshold for TM rupture 

corresponds to a 50 percent rate of 

rupture (i.e., 50 percent of animals 

exposed to the level are expected to 

suffer TM); this is stated in terms of an 

EL value of 1.17 inches pound per 

square inch (in-lb/in2) (about 205 dB re 

1 microPa2-s). This recognizes that TM 

rupture is not necessarily a serious or 

life-threatening injury but is a useful 

index of possible injury that is wellcorrelated with measures of permanent 

hearing impairment (e.g., Ketten (1998) 

indicates a 30 percent incidence of PTS 

at the same threshold). 

The threshold for onset of slight lung 

injury is calculated for a calf dolphin 

(12.2 kg, or 27 lb); it is given in terms 

of the ‘‘Goertner modified positive 

impulse,’’ indexed to 13 psi-ms. This is 

a departure from the Churchill and 

Seawolf approaches in the use of animal 

mass in the Goertner threshold for slight 

lung injury. In this assessment, 

cetaceans are assessed as calves, defined 

as those with mass less than 174 kg (384 

lb). The associated threshold is indexed 

to 13 psi-msec, which corresponds to a 

calf dolphin at 12.2 kg (27 lb) (DON, 

2001). 

The first criterion for non-injurious 

harassment is TTS, which is defined as 

a temporary, recoverable loss of hearing 

sensitivity (NMFS, 2001; DON, 2001). 

The criterion for TTS is 182 dB re 1 

microPa2-s, which is the greatest energy 

flux density level in any 1⁄3-octave band 

at frequencies above 100 Hz for marine 

mammals. 

The second criterion for estimating 

TTS threshold applies to all cetacean 

species and is stated in terms of peak 

pressure at 23 psi. The threshold is 

derived from the Churchill threshold 

which was subsequently adopted by 

NMFS in its Final Rule on the 

unintentional taking of marine animals 

incidental to the shock testing (NMFS, 

2001). The original criteria in Churchill 

incorporated 12 psi. The current criteria 

and threshold for peak pressure over all 

exposures was updated from 12 psi to 

23 psi for explosives less than 907 kg 

(2,000 lb) based on an IHA issued to the 

Air Force for a similar action (NOAA, 

2006a). Peak pressure and energy scale 

at different rates with charge weight, so 

that ranges based on the peak-pressure 

threshold are much greater than those 

for the energy metric when charge 

weights are small, even when source 

and animal are away from the surface. 

In order to more accurately estimate 

TTS for smaller shots while preserving 

the safety feature provided by the peak 

pressure threshold, the peak pressure 

threshold is appropriately scaled for 

small shot detonations. This scaling is 

based on the similitude formulas (e.g., 

Urick, 1983) used in virtually all 

compliance documents for short ranges. 

Further, the peak-pressure threshold for 

marine mammal TTS for explosives 

offers a safety margin for source or 

animal near the ocean surface. 

Criteria and Thresholds for Behavioral 

Effects to Explosive Sound 

For a single explosion, to be 

consistent with Churchill, TTS is the 

criterion for Level B harassment. In 

other words, because behavioral 

disturbance for a single explosion is 

likely to be limited to a short-lived 

startle reaction, use of the TTS criterion 

is considered sufficient protection. 

Behavioral modification (sub-TTS) is 

only applied to successive detonations. 

Table 5 summarizes the criteria and 

thresholds used in calculating the 

potential impacts to marine mammal 

from explosive sound. 

TABLE 5—EFFECTS, CRITERIA, AND THRESHOLDS FOR EXPLOSIVE DETONATIONS

Effect Criteria Metric Threshold Effect 

Mortality ....................... Onset of Severe Lung Injury (1% 

probability of mortality).

Goertner modified positive impulse.indexed to 30.5 psi-msec (assumes 100 percent small animal at 26.9 lbs).Mortality. 

Injurious Physiological Onset Slight Lung Injury ............. Goertner modified positive impulse.indexed to 13 psi-msec (assumes 100 percent small animal at 26.9 lbs).Level A. 

Injurious Physiological 50% Tympanic Membrane Rupture.Energy flux density ...................... 1.17 in-lb/in2 (about 205 dB re 1 

microPa2-sec).

Level A. 

Non-injurious Physiological.TTS .............................................. Greatest energy flux density level 

in any 1⁄3-octave band (>100 

Hz for toothed whales and >10 

Hz for baleen whales)—for 

total energy over all exposures.

182 dB re 1 microPa2-sec ........... Level B. 

Non-injurious Physiological.TTS .............................................. Peak pressure over all exposures 23 psi ........................................... Level B. 

Non-injurious Behavioral.Multiple Explosions Without TTS Greatest energy flux density level 

in any 1⁄3-octave (>100 Hz for 

toothed whales and >10 Hz for 

baleen whales)—for total energy over all exposures (multiple explosions only).

177 dB re 1 microPa2-sec ........... Level B. 

20178 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

Acoustic Effects: Projectile Firing 

Projectile firing includes the use of 

inert rounds of ammunition as well as 

high-explosive (HE) 5-in gun-rounds. 

The primary concern with respect to 

projectile firing and marine mammals 

encompasses the potential sound effects 

associated with their detonations. The 

same thresholds were used to analyze 

projectile firing as the previous section 

on ordnance operations. Modeling took 

into account the firing of single shots 

separated in time. 

Estimated Exposures of Marine 

Mammals 

Marine Mammal Exposures Due to 

HFAS/MFAS Operations 

Acoustical modeling provides an 

estimate of the actual exposures. 

Detailed information and formulas to 

model the effects of sonar from RDT&E 

activities in the NSWC PCD Study Area 

is provided in Appendix A, 

Supplemental Information for 

Underwater Noise Analysis of the LOA 

application. 

The quantitative analysis was based 

on conducting sonar operations in 16 

different geographical regions, or 

provinces. Using combined marine 

mammal density and depth estimates, 

acoustical modeling was conducted to 

calculate the actual exposures. Refer to 

Appendix B, Geographic Description of 

Environmental Provinces of the LOA 

application, for additional information 

on provinces. Refer to Appendix C, 

Definitions and Metrics for Acoustic 

Quantities of the LOA application, for 

additional information regarding the 

acoustical analysis. 

The approach for estimating potential 

acoustic effects from NSWC PCD RDT&E 

activities on cetacean species uses the 

methodology that the DON developed in 

cooperation with NOAA for the Navy’s 

USWTR Draft OEIS/EIS (2005), 

Undersea Warfare Exercise (USWEX) 

Environmental Assessment (EA)/ 

Overseas Environmental Assessment 

(OEA) (U.S. DON, 45, 2007a), RIMPAC 

EA/OEA (DON, Commander Third 

Fleet, 2006), Composite Training Unit 

Exercises (COMPTUEX)/Joint Task 

Force Exercises (JTFEX) EA/OEA (DON, 

2007b), and HRC Draft EIS (DON, 

2007c). The exposure analysis for 

behavioral response to sound in the 

water uses energy flux density for Level 

A harassment and the methods for risk 

function for Level B harassment 

(behavioral). The methodology is 

provided here to determine the number 

and species of marine mammals for 

which incidental take authorization is 

requested. 

To estimate acoustic effects from the 

NSWC PCD RDT&E activities, acoustic 

sources to be used were examined with 

regard to their operational 

characteristics as described in the 

previous section. In addition, systems 

with an operating frequency greater than 

200 kHz were not analyzed in the 

detailed modeling as these signals 

attenuate rapidly, resulting in very short 

propagation distances. Acoustic 

countermeasures were previously 

examined and found not to be 

problematic. These acoustic sources, 

therefore, did not require further 

examination in this analysis. Based on 

the information above, the Navy 

modeled the following systems: 

• Kingfisher 

• Sub-bottom profilers 

• SAS–LFs and SAS–HFs 

• Modems 

• AN/SQQ–32 

• BPAUVs 

• ACL 

• TVSS 

• F84Y 

• AN/AQS–20 

• Navigation systems 

Sonar parameters including source 

levels, ping length, the interval between 

pings, output frequencies, directivity (or 

angle), and other characteristics were 

based on records from previous test 

scenarios and projected future testing. 

Additional information on sonar 

systems and their associated parameters 

is in Appendix A, Supplemental 

Information for Underwater Noise 

Analysis of the LOA application. 

Every active sonar operation has the 

potential of exposing marine animals in 

the neighboring waters. The number of 

animals exposed to the sonar in any 

such action is dictated by the 

propagation field and the manner in 

which the sonar is operated (i.e., source 

level, depth, frequency, pulse length, 

directivity, platform speed, repetition 

rate). The modeling for NSWC PCD 

RDT&E activities involving sonar 

occurred in five broad steps, listed 

below and was conducted based on the 

typical RDT&E activities planned for the 

NSWC PCD Study Area. 

Step 1. Environmental Provinces. The 

NSWC PCD Study Area is divided into 

16 environmental provinces, and each 

has a unique combination of 

environmental conditions. These 

represent various combinations of eight 

bathymetry provinces, one Sound 

Velocity Profile (SVP) province, and 

three Low-Frequency Bottom Loss geoacoustic provinces and two HighFrequency Bottom Loss classes. These 

are addressed by defining eight 

fundamental environments in two 

seasons that span the variety of depths, 

bottom types, sound speed profiles, and 

sediment thicknesses found in the 

NSWC PCD Study Area. The two 

seasons encompass winter and summer, 

which are the two extremes and for the 

GOM, the acoustic propagation 

characteristics do not vary significantly 

between the two. Each marine modeling 

area can be quantitatively described as 

a unique combination of these 

environments. 

Step 2. Transmission Loss. Since 

sound propagates differently in these 

environments, separate transmission 

loss calculations must be made for each, 

in both seasons. The transmission loss 

is predicted using Comprehensive 

Acoustic Simulation System/Gaussian 

Ray Bundle (CASS–GRAB) sound 

modeling software. 

Step 3. Exposure Volumes. The 

transmission loss, combined with the 

source characteristics, gives the energy 

field of a single ping. The energy of over 

10 hours of pinging is summed, 

carefully accounting for overlap of 

several pings, so an accurate average 

exposure of an hour of pinging is 

calculated for each depth increment. At 

more than ten hours, the source is too 

far away and the energy is negligible. In 

addition, the acoustic modeling takes 

into account the use of a single system. 

Only one source will operate at any one 

time during NSWC PCD RDT&E 

activities. 

Repeating this calculation for each 

environment in each season gives the 

hourly ensonified volume, by depth, for 

each environment and season. This step 

begins the method for risk function 

modeling. 

Step 4. Marine Mammal Densities. 

The marine mammal densities were 

given in two dimensions, but using 

reliable peer-reviewed literature sources 

(published literature and agency 

reports) described in the following 

subsection, the depth regimes of these 

marine mammals are used to project the 

two dimensional densities (expressed as 

the number of animals per area where 

all individuals are assumed to be at the 

water’s surface) into three dimensions (a 

volumetric approach whereby twodimensional animal density 

incorporates depth into the calculation 

estimates). 

Step 5. Exposure Calculations. Each 

marine mammal’s three-dimensional (3– 

D) density is multiplied by the 

calculated impact volume to that marine 

mammal depth regime. This value is the 

number of exposures per hour for that 

particular marine mammal. In this way, 

each marine mammal’s exposure count 

per hour is based on its density, depth 

habitat, and the ensonified volume by 

depth. 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20179 

The planned sonar hours for each 

system were inserted and a cumulative 

number of exposures were determined 

for each alternative. 

As previously mentioned, NSWC PCD 

RDT&E activities involve mid-frequency 

sonar operation for only 6 percent of 

operational hours. Furthermore, testing 

generally involves short-term use and 

single systems at a time. Appendix A, 

Supplemental Information for 

Underwater Noise Analysis of the LOA 

application, includes specific formulas 

and more detailed information. 

Marine Mammal Sonar Exposures in 

Territorial Waters 

Sonar operations in territorial waters 

may expose bottlenose dolphins and 

Atlantic spotted dolphins to sound 

likely to result in Level B (behavioral) 

harassment. In addition, three 

bottlenose dolphins and two Atlantic 

spotted dolphins may be exposed to 

levels of sound likely to result in TTS 

(Table 6). 

TABLE 6—ESTIMATES OF MARINE MAMMAL EXPOSURES FROM SONAR MISSIONS IN TERRITORIAL WATERS PER YEAR

Marine mammal species Level A Level B 

(TTS) 

Level B 

(behavioral) 

Bottlenose dolphin ....................................................................................................................................... 0 3 521 

Atlantic spotted dolphin ............................................................................................................................... 0 2 408 

Marine Mammal Sonar Exposures in 

Non-Territorial Waters 

Sonar operations in non-territorial 

waters may expose up to ten species to 

sound likely to result in Level B 

(behavioral) harassment (Table 7). They 

include the sperm whale, Risso’s 

dolphin, rough-toothed dolphin, 

bottlenose dolphin, Atlantic bottlenose 

dolphin, Atlantic spotted dolphin, 

pantropical spotted dolphin, striped 

dolphin, spinner dolphin, Clymene 

dolphin, melon-headed whale, and 

short-finned pilot whale. In addition, 

sonar operations in non-territorial 

waters may expose up to one bottlenose 

dolphin and one Atlantic spotted 

dolphin to levels of sound likely to 

result in TTS. Marine mammals are 

likely to incur only Level B harassment 

from sonar exercises in non-territorial 

waters. 

TABLE 7—ESTIMATES OF MARINE MAMMAL EXPOSURES FROM SONAR MISSIONS IN NON-TERRITORIAL WATERS PER YEAR

Marine mammal species Level A Level B 

(TTS) 

Level B 

(behavioral) 

Bryde’s whale .............................................................................................................................................. 0 0 0 

Sperm whale ................................................................................................................................................ 0 0 1 

Dwarf/Pygmy sperm whale .......................................................................................................................... 0 0 0 

All beaked whales ........................................................................................................................................ 0 0 0 

Killer whale .................................................................................................................................................. 0 0 0 

False killer whale ......................................................................................................................................... 0 0 0 

Pygmy killer whale ....................................................................................................................................... 0 0 0 

Melon-headed whale ................................................................................................................................... 0 0 1 

Short-finned pilot whale ............................................................................................................................... 0 0 1 

Risso’s dolphin ............................................................................................................................................. 0 0 1 

Rough-toothed dolphin ................................................................................................................................ 0 0 0 

Bottlenose dolphin ....................................................................................................................................... 0 1 46 

Atlantic spotted dolphin ............................................................................................................................... 0 1 39 

Pantropical spotted dolphin ......................................................................................................................... 0 0 16 

Striped dolphin ............................................................................................................................................. 0 0 3 

Spinner dolphin ............................................................................................................................................ 0 0 13 

Clymene dolphin .......................................................................................................................................... 0 0 5 

Fraser’s dolphin ........................................................................................................................................... 0 0 0 

Marine Mammal Exposures Due to 

Ordnance 

Calculation Methods 

An overview of the methods to 

determine the number of exposures of 

MMPA-protected species to sound 

likely to result in mortality, Level A 

harassment (injury), or Level B 

harassment is provided in the following 

paragraphs. Appendix A, 

‘‘Supplemental Information for 

Underwater Noise Analysis’’ of the LOA 

application, includes specific formulas 

and more detailed information. 

Acoustic threshold areas are derived 

from mathematical calculations and 

models that predict the distances or 

range to which threshold sound levels 

will travel. Sound is assumed to spread 

more or less spherically. Therefore, the 

range of influence is the radius of an 

ensonified area (the area exposed to 

sound). The equations for the models 

consider the amount of net explosive 

and the properties of detonations under 

water as well as environmental factors 

such as depth of the explosion, overall 

water depth, water temperature, and 

bottom type. Various combinations of 

these environmental factors result in a 

number of environmental provinces. 

The result of the calculations and/or 

modeling is a volume. There are 

separate volumes for mortality, 

harassment resulting in injury (hearingrelated and slight lung), and behavioral 

harassment (from TTS and sub-TTS). 

For mine detonations, the sound effects 

were modeled using the different net 

explosive weights at 16 environmental 

provinces during the winter and 

summer seasons. There are three ranges 

of NEW: 1–10 lb (0.45–4.5 kg), 11–75 lb 

(5–34 kg), and 76–600 lbs (34.5–272 kg). 

The three ranges of NEW for mine 

detonations mirror the ranges identified 

in the analysis of alternatives. Due to 

differences in delivery and orientation, 

line charges are not included within 

these three ranges of NEW, and their 

20180 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

potential effects were analyzed and 

presented separately. A discussion of 

the equations used and environmental 

provinces and equations used are 

provided in Appendix A, 

‘‘Supplemental Information for 

Underwater Noise Analysis,’’ and 

Appendix B, ‘‘Geographic Description of 

Acoustic Environmental Provinces’’ of 

the LOA application. 

Based on the model calculation, the 

various zones of influence from these 

three ranges of NEW are listed below in 

Table 8. 

TABLE 8—ZONES OF INFLUENCE (IN METERS) FROM DIFFERENT RANGES OF NEW UNDER EXPLOSIVE ACOUSTIC

CRITERIA

Size of NEW 182 dB re 1 

microPa 2-sec 23 psi 

1.17 in-lb/in 2

(about 205 dB 

re 1 microPa 2- 

sec) 

Indexed to 13 

psi-msec 

(assumes 100 

percent small 

animal at 26.9 

lbs) 

Indexed to 

30.5 psi-msec 

(assumes 100 

percent small 

animal at 26.9 

lbs) 

10 lb ..................................................................................... 345 379 151 70 15 

75 lb ..................................................................................... 997 535 357 190 66 

600 lb ................................................................................... 2,863 1,186 927 502 203 

Analysis for mine-clearing line 

charges followed methods similar to 

detonations. The major differences in 

the line charge analysis included (1) 

focus on propagation through the 

sediment layer(s) rather than treating 

the bottom as a boundary with a 

particular reflection loss and (2) 

modeling according to its unique 

physical characteristics. The specific 

information on calculations for mineclearing line charges is presented in 

Appendix A, ‘‘Supplemental 

Information for Underwater Noise 

Analysis’’ of the LOA application. 

Acoustical modeling is a conservative 

measure of the actual exposures and, 

therefore, the numbers presented in the 

following paragraphs are not necessarily 

indicative of actual exposures under the 

MMPA. In an effort to reduce the 

potential exposures associated with live 

detonations, the mitigation and 

protective measures will be 

implemented. 

Marine Mammal Ordnance Exposures 

in Territorial Waters 

Detonations in territorial waters may 

expose up to three bottlenose dolphins 

and two Atlantic spotted dolphins to 

sound likely to result in harassment 

(Table 9). Marine mammals are likely to 

incur only Level B harassment from 

ordnance exercises conducted in 

territorial waters. 

TABLE 9—ESTIMATES OF MARINE MAMMAL EXPOSURES FROM DETONATIONS (0–34 KG OR 0–75 LB) IN TERRITORIAL

WATERS PER YEAR

Marine mammal species 

Mortality 

(severe lung 

injury) 

Level A 

(slight lung 

injury) 

Level B 

(non-injury) 

Bottlenose dolphin ................................................................................................................................... 0 0 3 

Atlantic spotted dolphin ........................................................................................................................... 0 0 2 

Line charge events will only be 

conducted in the surf zone along a 

portion of Santa Rosa Island in water 

depth between 1–3 meters (which is not 

a normal habitat for marine mammals). 

The charge is considered one explosive 

source that has multiple increments that 

detonate at one time. Line charge events 

produce a series of small detonations (5 

lb. increments) that occur sequentially, 

rather than a simultaneous large 

explosion. The instantaneous SPL 

produced by these sequential 

detonations is significantly less than a 

single, large explosion and is unlikely to 

produce harmful levels of energy. The 

Navy’s model revealed that given the 

small, sequential explosions, the ZOIs 

would be small as compared to a single 

large explosion. Combined with shallow 

water in which the exercises are 

proposed to be conducted and the fewer 

marine mammals expected in the surf 

zone, NMFS and the Navy do not expect 

marine mammals to experience 

harassment from sound generated by 

line charge exercises in territorial waters 

(Table 10). 

TABLE 10—ESTIMATES OF MARINE MAMMAL EXPOSURES FROM LINE CHARGES (794 KG OR 1,750 LB) IN TERRITORIAL

WATERS PER YEAR

Marine mammal species 

Mortality 

(severe lung 

injury) 

Level A 

(slight lung 

injury) 

Level B 

(non-injury) 

Bottlenose dolphin ................................................................................................................................... 0 0 0 

Atlantic spotted dolphin ........................................................................................................................... 0 0 0 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20181 

Marine Mammal Ordnance Exposures in 

Non-Territorial Waters 

Detonations in non-territorial waters 

may expose up to eight marine mammal 

species to sound likely to result in Level 

B harassment (Table 11). They include 

the sperm whale, melon-headed whale, 

Risso’s dolphin, rough-toothed dolphin, 

bottlenose dolphin, Atlantic spotted 

dolphin, pantropical spotted dolphin, 

striped dolphin, and spinner dolphin. In 

addition, two bottlenose dolphin, two 

Atlantic spotted dolphin, one 

pantropical spotted dolphin, and one 

spinner dolphin may be exposed to 

levels of sound likely to result in Level 

A harassment (slight lung injury). 

Although Navy’s modeling showed that 

one bottlenose dolphin and one Atlantic 

spotted dolphin may be exposed to 

levels of sound likely to result in 

mortality (severe lung injury), NMFS 

considers that such events are unlikely. 

Based on the ZOIs calculated for 

different categories of NEW explosives, 

the animals have to be within a range 

of 203 m from the explosion in order to 

experience severe lung injury or 

mortality. NMFS expects that the 

mitigation and monitoring measures 

associated with ordnance exercises will 

provide sufficient protection to marine 

mammals, and will prevent mortality 

because operations will not be 

conducted (or will be suspended, as 

appropriate) if animals are detected 

within or approaching the ZOI. 

TABLE 11—ESTIMATES OF MARINE MAMMAL EXPOSURES FROM DETONATIONS (34–272 KG [76–600 LB]) IN NONTERRITORIAL WATERS PER YEAR* 

Marine mammal species 

Mortality 

(severe lung 

injury) 

Level A 

(slight lung 

injury) 

Level B 

(non-injury) 

Bryde’s whale .......................................................................................................................................... 0 0 0 

Sperm whale ............................................................................................................................................ 0 0 1 

Dwarf/Pygmy sperm whale ...................................................................................................................... 0 0 0 

All beaked whales .................................................................................................................................... 0 0 0 

Killer whale .............................................................................................................................................. 0 0 0 

False killer whale ..................................................................................................................................... 0 0 0 

Pygmy killer whale ................................................................................................................................... 0 0 0 

Melon-headed whale ............................................................................................................................... 0 0 1 

Short-finned pilot whale ........................................................................................................................... 0 0 0 

Risso’s dolphin ......................................................................................................................................... 0 0 1 

Rough-toothed dolphin ............................................................................................................................ 0 0 0 

Bottlenose dolphin ................................................................................................................................... 0 2 38 

Atlantic spotted dolphin ........................................................................................................................... 0 2 18 

Pantropical spotted dolphin ..................................................................................................................... 0 1 6 

Striped dolphin ......................................................................................................................................... 0 0 2 

Spinner dolphin ........................................................................................................................................ 0 1 10 

Clymene dolphin ...................................................................................................................................... 0 0 0 

* The Navy’s estimates were revised by NMFS after further analysis and consideration of the proposed mitigation and monitoring measures. 

Marine Mammal Exposures Due to 

Projectile Firing 

Live projectile firing operations will 

not occur in territorial waters. 

Five-inch round testing is to have 60, 

5-inch rounds tested annually. Projectile 

firing in non-territorial waters may 

expose up to three species of marine 

mammals to sound likely to result in 

Level B harassment (Table 12). They 

include the bottlenose dolphin and 

Atlantic spotted dolphin, pantropical 

and striped dolphin. Marine mammals 

are likely to incur only Level B 

harassment from the projectile firing 

exercises occurring in non-territorial 

waters. 

In addition, tests involving projectile 

firing are conducted at close range. The 

probability is low that a marine 

mammal will enter the firing area 

directly adjacent to the target 

undetected simultaneous to projectile 

firing. The noise associated with the 

firing and the support aircraft and/or 

surface vessels would likely cause 

animals to avoid the area. Furthermore, 

the mitigation and clearance procedures 

described below will be implemented, 

thereby reducing the likelihood that a 

marine mammal will enter the firing 

area at the same time a projectile firing 

exercise is initiated. If present, large 

groups of cetaceans such as schools of 

dolphin species and large species of 

whales such as sperm whales and 

Bryde’s whales will be sighted at the 

surface during standard clearance 

procedures and operations would be 

suspended until such time as these 

animals leave the target area. 

TABLE 12—ESTIMATES OF MARINE MAMMAL EXPOSURES FROM 5-INCH ROUND DETONATIONS IN NON-TERRITORIAL

WATERS PER YEAR

Marine mammal species 

Mortality 

(severe lung 

injury) 

Level A 

(slight lung 

injury) 

Level B 

(non-injury) 

Bryde’s whale .......................................................................................................................................... 0 0 0 

Sperm whale ............................................................................................................................................ 0 0 0 

Dwarf/Pygmy sperm whale ...................................................................................................................... 0 0 0 

All beaked whales .................................................................................................................................... 0 0 0 

Killer whale .............................................................................................................................................. 0 0 0 

False killer whale ..................................................................................................................................... 0 0 0 

Pygmy killer whale ................................................................................................................................... 0 0 0 

Melon-headed whale ............................................................................................................................... 0 0 0 

Short-finned pilot whale ........................................................................................................................... 0 0 0 

20182 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

TABLE 12—ESTIMATES OF MARINE MAMMAL EXPOSURES FROM 5-INCH ROUND DETONATIONS IN NON-TERRITORIAL

WATERS PER YEAR—Continued 

Marine mammal species 

Mortality 

(severe lung 

injury) 

Level A 

(slight lung 

injury) 

Level B 

(non-injury) 

Risso’s dolphin ......................................................................................................................................... 0 0 0 

Rough-toothed dolphin ............................................................................................................................ 0 0 0 

Bottlenose dolphin ................................................................................................................................... 0 0 2 

Atlantic spotted dolphin ........................................................................................................................... 0 0 1 

Pantropical spotted dolphin ..................................................................................................................... 0 0 1 

Striped dolphin ......................................................................................................................................... 0 0 0 

Spinner dolphin ........................................................................................................................................ 0 0 0 

Clymene dolphin ...................................................................................................................................... 0 0 0 

Table 13 provides a summary of 

estimated marine mammals under 

NMFS jurisdiction that could be 

affected by the proposed NSWC PCD 

RDT&E activities. 

TABLE 13—ESTIMATES OF TOTAL MARINE MAMMAL EXPOSURES FROM THE NSWC PCD MISSION ACTIVITIES PER YEAR

Marine mammal species 

Mortality 

(severe lung 

injury) 

Level A 

(slight lung 

injury) 

Level B 

(non-injury) 

Bryde’s whale .......................................................................................................................................... .................... .................... ....................

Sperm whale ............................................................................................................................................ .................... .................... 2 

Dwarf/Pygmy sperm whale ...................................................................................................................... .................... .................... ....................

All beaked whales .................................................................................................................................... .................... .................... ....................

Killer whale .............................................................................................................................................. .................... .................... ....................

False killer whale ..................................................................................................................................... .................... .................... ....................

Pygmy killer whale ................................................................................................................................... .................... .................... ....................

Melon-headed whale ............................................................................................................................... .................... .................... 2 

Short-finned pilot whale ........................................................................................................................... .................... .................... 1 

Risso’s dolphin ......................................................................................................................................... .................... .................... 2 

Rough-toothed dolphin ............................................................................................................................ .................... .................... ....................

Bottlenose dolphin ................................................................................................................................... 0 2 614 

Atlantic spotted dolphin ........................................................................................................................... 0 2 471 

Pantropical spotted dolphin ..................................................................................................................... .................... 1 23 

Striped dolphin ......................................................................................................................................... .................... .................... 5 

Spinner dolphin ........................................................................................................................................ .................... 1 23 

Clymene dolphin ...................................................................................................................................... .................... .................... 5 

Effects on Marine Mammal Habitat 

There are no areas within the NSWC 

PCD that are specifically considered as 

important physical habitat for marine 

mammals. 

The prey of marine mammals are 

considered part of their habitat. The 

Navy’s DEIS for the NSWC PCD 

contains a detailed discussion of the 

potential effects to fish from HFAS/ 

MFAS and explosive detonations. 

Below is a summary of conclusions 

regarding those effects. 

Effects on Fish From HFAS/MFAS 

The extent of data, and particularly 

scientifically peer-reviewed data, on the 

effects of high intensity sounds on fish 

is limited. In considering the available 

literature, the vast majority of fish 

species studied to date are hearing 

generalists and cannot hear sounds 

above 500 to 1,500 Hz (depending upon 

the species), and, therefore, behavioral 

effects on these species from higher 

frequency sounds are not likely. 

Moreover, even those fish species that 

may hear above 1.5 kHz, such as a few 

sciaenids and the clupeids (and 

relatives), have relatively poor hearing 

above 1.5 kHz as compared to their 

hearing sensitivity at lower frequencies. 

Therefore, even among the species that 

have hearing ranges that overlap with 

some mid- and high frequency sounds, 

it is likely that the fish will only 

actually hear the sounds if the fish and 

source are very close to one another. 

Finally, since the vast majority of 

sounds that are of biological relevance 

to fish are below 1 kHz (e.g., Zelick et 

al., 1999; Ladich and Popper, 2004), 

even if a fish detects a mid- or high 

frequency sound, these sounds will not 

mask detection of lower frequency 

biologically relevant sounds. Based on 

the above information, there will likely 

be few, if any, behavioral impacts on 

fish. 

Alternatively, it is possible that very 

intense mid- and high frequency signals, 

and particularly explosives, could have 

a physical impact on fish, resulting in 

damage to the swim bladder and other 

organ systems. However, even these 

kinds of effects have only been shown 

in a few cases in response to explosives, 

and only when the fish has been very 

close to the source. Such effects have 

never been indicated in response to any 

Navy sonar. Moreover, at greater 

distances (the distance clearly would 

depend on the intensity of the signal 

from the source) there appears to be 

little or no impact on fish, and 

particularly no impact on fish that do 

not have a swim bladder or other air 

bubble that would be affected by rapid 

pressure changes. 

Effects on Fish From Explosive 

Detonations 

There are currently no wellestablished thresholds for estimating 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20183 

effects to fish from explosives other than 

mortality models. Fish that are located 

in the water column, in proximity to the 

source of detonation could be injured, 

killed, or disturbed by the impulsive 

sound and possibly temporarily leave 

the area. Continental Shelf Inc. (2004) 

summarized a few studies conducted to 

determine effects associated with 

removal of offshore structures (e.g., oil 

rigs) in the Gulf of Mexico. Their 

findings revealed that at very close 

range, underwater explosions are lethal 

to most fish species regardless of size, 

shape, or internal anatomy. For most 

situations, cause of death in fishes has 

been massive organ and tissue damage 

and internal bleeding. At longer range, 

species with gas-filled swimbladders 

(e.g., snapper, cod, and striped bass) are 

more susceptible than those without 

swimbladders (e.g., flounders, eels). 

Studies also suggest that larger fishes 

are generally less susceptible to death or 

injury than small fishes. Moreover, 

elongated forms that are round in cross 

section are less at risk than deep-bodied 

forms; and orientation of fish relative to 

the shock wave may affect the extent of 

injury. Open water pelagic fish (e.g., 

mackerel) also seem to be less affected 

than reef fishes. The results of most 

studies are dependent upon specific 

biological, environmental, explosive, 

and data recording factors. 

The huge variations in the fish 

population, including numbers, species, 

sizes, and orientation and range from 

the detonation point, make it very 

difficult to accurately predict mortalities 

at any specific site of detonation. Fish 

have the ability to quickly and easily 

leave an area temporarily when vessels 

and/or helicopters approach; it is 

reasonable to assume that fish will leave 

an area prior to ordnance detonation 

and will return when operations are 

completed. Thus, it is anticipated that 

the quantity of fish affected will be 

small and will not imperil any fish 

populations. In addition, most fish 

species experience large number of 

natural mortalities, especially during 

early life-stages, and any small level of 

mortality caused by the NSWC PCD’s 

limited RDT&E activities involving the 

explosive detonations will likely be 

insignificant to the population as a 

whole. 

Proposed Mitigation Measures 

In order to issue an incidental take 

authorization (ITA) under Section 

101(a)(5)(A) of the MMPA, NMFS must 

set forth the ‘‘permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance.’’ The National Defense 

Authorization Act (NDAA) of 2004 

amended the MMPA as it relates to 

military-readiness activities and the 

incidental take authorization process 

such that ‘‘least practicable adverse 

impact’’ shall include consideration of 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the ‘‘military readiness 

activity.’’ The mission activities 

described in the NSWC PCD LOA 

application and LOA Addendum are 

considered military readiness activities. 

In addition, any mitigation measure 

prescribed by NMFS should be known 

to accomplish, have a reasonable 

likelihood of accomplishing (based on 

current science), or contribute to the 

accomplishment of one or more of the 

general goals listed below: 

(a) Avoidance or minimization of 

injury or death of marine mammals 

wherever possible (goals b, c, and d may 

contribute to this goal). 

(b) A reduction in the numbers of 

marine mammals (total number or 

number at a biologically important time 

or location) exposed to received levels 

of underwater detonations or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing 

harassment takes only). 

(c) A reduction in the number of times 

(total number or number at biologically 

important time or location) individuals 

would be exposed to received levels of 

underwater detonations or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing 

harassment takes only). 

(d) A reduction in the intensity of 

exposures (either total number or 

number at biologically important time 

or location) to received levels of 

underwater detonations or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing the 

severity of harassment takes only). 

(e) A reduction in adverse effects to 

marine mammal habitat, paying special 

attention to the food base, activities that 

block or limit passage to or from 

biologically important areas, permanent 

destruction of habitat, or temporary 

destruction/disturbance of habitat 

during a biologically important time. 

(f) For monitoring directly related to 

mitigation—an increase in the 

probability of detecting marine 

mammals, thus allowing for more 

effective implementation of the 

mitigation (shut-down zone, etc.). 

NMFS worked with the Navy and 

identified potential practicable and 

effective mitigation measures, which 

included a careful balancing of the 

likely benefit of any particular measure 

to the marine mammals with the likely 

effect of that measure on personnel 

safety, practicality of implementation, 

and impact on the ‘‘military-readiness 

activity’’. These mitigation measures are 

listed below. 

Proposed Mitigation Measures for 

HFAS/MFAS Operations 

Current protective measures 

employed by the Navy include 

applicable training of personnel and 

implementation of activity specific 

procedures resulting in minimization 

and/or avoidance of interactions with 

protected resources. 

The Navy includes marine species 

awareness as part of its training for its 

Navy personnel on vessels. Marine 

Species Awareness Training (MSAT) 

was updated in 2005, and the additional 

training materials are now included as 

required training for Navy marine 

observers. This training addresses the 

marine observer’s (equivalent to lookout 

or watchstander in other Navy actions) 

role in environmental protection, laws 

governing the protection of marine 

species, Navy stewardship 

commitments, and general observation 

information to aid in avoiding 

interactions with marine species. 

Marine species awareness and training 

is reemphasized by the following 

means: 

• Marine observers—Personnel are 

required to utilize marine species 

awareness training techniques as 

standard operating procedure, have 

available a marine species visual 

identification aid when marine 

mammals are sighted, and receive 

updates to the current marine species 

awareness training as appropriate. 

Implementation of these protective 

measures is required of all units. The 

activities undertaken on a Navy vessel 

or aircraft are highly controlled. The 

chain of command supervises these 

activities. Failure to follow orders can 

result in disciplinary action. 

Personnel Training 

1. All marine observers onboard 

platforms involved in the mission 

activities will review the NMFSapproved MSAT material prior to use of 

mid- and high-frequency active sonar. 

2. Navy marine observers will 

undertake extensive training in order to 

qualify as a watchstander in accordance 

with the Lookout Training Handbook 

(NAVEDTRA, 12968–D). 

20184 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

3. Marine observer training will 

include on-the-job instruction under the 

supervision of a qualified, experienced 

watchstander. Following successful 

completion of this supervised training 

period, Marine observers will complete 

the Personal Qualification Standard 

program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). This does not forbid 

personnel being trained as marine 

observers from being counted as those 

listed in previous measures so long as 

supervisors monitor their progress and 

performance. 

4. Marine observers will be trained in 

the most effective means to ensure quick 

and effective communication within the 

command structure in order to facilitate 

implementation of mitigation measures 

if marine species are spotted. 

Marine Observer Responsibilities 

1. On the bridge of surface vessels, 

there will always be at least one to three 

persons (depending on the length of the 

vessel) on watch whose duties include 

observing the water surface around the 

vessel. 

Manned motor-driven vessels with 

length overall less than 65 ft (20 m) 

would require at least one marine 

species awareness trained observer; 

vessels with length overall between 65– 

200 ft (20–61 m) would require at least 

two marine species awareness trained 

observers; and vessels with length 

overall over 200 ft (61 m) would require 

at least 3 marine species awareness 

trained observers. 

2. Each marine observer will have at 

their disposal at least one set of 

binoculars available to aid in the 

detection of marine mammals. 

3. On surface vessels equipped with 

the AN/SQQ–53C/56, pedestal mounted 

‘‘Big Eye’’ (20 x 110) binoculars will be 

present and in good working order to 

assist in the detection of marine 

mammals in the vicinity of the vessel. 

4. Marine observers will employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

5. Marine observers would scan the 

water from the vessel to the horizon and 

be responsible for all contacts in their 

sector. In searching the assigned sector, 

the marine observer would always start 

at the forward part of the sector and 

search aft (toward the back). To search 

and scan, the marine observer would 

hold the binoculars steady so the 

horizon is in the top third of the field 

of vision and direct the eyes just below 

the horizon. The marine observer would 

scan for approximately five seconds in 

as many small steps as possible across 

the field seen through the binoculars. 

They would search the entire sector in 

approximately five-degree steps, 

pausing between steps for 

approximately five seconds to scan the 

field of view. At the end of the sector 

search, the glasses would be lowered to 

allow the eyes to rest for a few seconds, 

and then the marine observer would 

search back across the sector with the 

naked eye. 

6. After sunset and prior to sunrise, 

marine observers will employ Night 

Lookout Techniques in accordance with 

the Lookout Training Handbook. 

7. At night, marine observers would 

not sweep the horizon with their eyes 

because eyes do not see well when they 

are moving. Marine observers would 

scan the horizon in a series of 

movements that would allow their eyes 

to come to periodic rests as they scan 

the sector. When visually searching at 

night, they would look a little to one 

side and out of the corners of their eyes, 

paying attention to the things on the 

outer edges of their field of vision. 

8. Marine observers will be 

responsible for reporting all objects or 

anomalies sighted in the water 

(regardless of the distance from the 

vessel) to the Test Director or the Test 

Director’s designee, since any object or 

disturbance (e.g., trash, periscope, 

surface disturbance, discoloration) in 

the water may be indicative of a threat 

to the vessel and its crew or indicative 

of a marine species that may need to be 

avoided as warranted. 

Operating Procedures 

1. A Record of Environmental 

Consideration will be included in the 

Test Plan prior to the test event to 

further disseminate the personnel 

testing requirement and general marine 

mammal mitigation measures. 

2. Test Directors will make use of 

marine species detection cues and 

information to limit interaction with 

marine species to the maximum extent 

possible consistent with safety of the 

vessel. 

3. All personnel engaged in passive 

acoustic sonar operation (including 

aircraft or surface vessels) will monitor 

for marine mammal vocalizations and 

report the detection of any marine 

mammal to the appropriate watch 

station for dissemination and 

appropriate action. 

4. During mid- and high frequency 

active sonar activities, personnel will 

utilize all available sensor and optical 

systems (such as Night Vision Goggles) 

to aid in the detection of marine 

mammals. 

5. Navy aircraft participating in 

exercises at sea will conduct and 

maintain, when operationally feasible 

and safe, surveillance for marine species 

of concern as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties. 

6. Aircraft with deployed sonobuoys 

will use only the passive capability of 

sonobuoys when marine mammals are 

detected within 200 yards of the 

sonobuoy. 

7. Marine mammal detections will be 

immediately reported to assigned Test 

Director or the Test Director’s designee 

for further dissemination to vessels in 

the vicinity of the marine species as 

appropriate where it is reasonable to 

conclude that the course of the vessel 

will likely result in a closing of the 

distance to the detected marine 

mammal. 

8. Safety Zones—When marine 

mammals are detected by any means 

(aircraft, marine observer, or 

acoustically) the Navy will ensure that 

HFAS/MFAS transmission levels are 

limited to at least 6 dB below normal 

operating levels if any detected marine 

mammals are within 1,000 yards (914 

m) of the sonar dome (the bow). 

(1) Vessels will continue to limit 

maximum HFAS/MFAS transmission 

levels by this 6-dB factor until the 

marine mammal has been seen to leave 

the area, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yards (1,828 m) beyond 

the location of the last detection. 

(2) The Navy will ensure that HFAS/ 

MFAS transmissions will be limited to 

at least 10 dB below the equipment’s 

normal operating level if any detected 

animals are within 500 yards (457 m) of 

the sonar dome. Vessels will continue to 

limit maximum ping levels by this 10- 

dB factor until the marine mammal has 

been seen to leave the area, has not been 

detected for 30 minutes, or the vessel 

has transited more than 2,000 yards 

(1,828 m) beyond the location of the last 

detection. 

(3) The Navy will ensure that HFAS/ 

MFAS transmissions are ceased if any 

detected marine mammals are within 

200 yards (183 m) of the sonar dome. 

HFAS/MFAS will not resume until the 

marine mammal has been seen to leave 

the area, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yards (1,828 m) beyond 

the location of the last detection. 

(4) Special conditions applicable for 

dolphins only: If, after conducting an 

initial maneuver to avoid close quarters 

with dolphins, the Test Director or the 

Test Director’s designee concludes that 

dolphins are deliberately closing to ride 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20185 

the vessel’s bow wave, no further 

mitigation actions are necessary while 

the dolphins or porpoises continue to 

exhibit bow wave riding behavior. 

(5) If the need for power-down should 

arise as detailed in ‘‘Safety Zones’’ 

above, Navy shall follow the 

requirements as though they were 

operating at 235 dB—the normal 

operating level (i.e., the first powerdown will be to 229 dB, regardless of at 

what level above 235 sonar was being 

operated). 

9. Prior to start up or restart of active 

sonar, operators will check that the 

Safety Zone radius around the sound 

source is clear of marine mammals. 

10. Sonar levels (generally)—Navy 

will operate sonar at the lowest 

practicable level, not to exceed 235 dB, 

except as required to meet testing 

objectives. 

11. Helicopters shall observe/survey 

the vicinity of the mission activities for 

10 minutes before the first deployment 

of active (dipping) sonar in the water. 

12. Helicopters shall not dip their 

sonar within 200 yards (183 m) of a 

marine mammal and shall cease pinging 

if a marine mammal closes within 200 

yards (183 m) after pinging has begun. 

Proposed Mitigation Measures for 

Ordnance and Projectile Firing 

To ensure protection of marine 

mammals during ordnance and 

projectile firing related underwater 

detonation mission activities, the 

operating area must be determined to be 

clear of marine mammals prior to 

detonation. Implementation of the 

following mitigation measures would 

ensure that marine mammals would not 

be exposed to TTS, PTS or injury from 

ordnance and projectile firing exercises. 

• No detonations over 34 kg (75 lb) 

will be conducted in territorial waters. 

This does not apply to the line charge 

detonation, which is a 107 m (350 ft) 

detonation cord with explosives lined 

from one end to the other end in 2 kg 

(5 lb) increments and total 794 kg (1,750 

lb) of NEW. This charge is considered 

one explosive source that has multiple 

increments that detonate at one time. 

• The number of live mine 

detonations will be minimized and the 

smallest amount of explosive material 

possible to achieve test objectives will 

be used. 

• Activities will be coordinated 

through the Environmental Help Desk to 

allow potential concentrations of 

detonations in a particular area over a 

short time to be identified and avoided. 

• Visual surveys and aerial surveys 

will be conducted for all test operations 

that involve detonation events with for 

30 minutes before and during the test 

event. 

• Line charge tests would not be 

conducted during the nighttime. 

• Additional mitigation will be 

determined through the NSWC PCD’s 

Environmental Review Process review 

based on test activities including the 

size of detonations, test platforms, and 

environmental effects documented in 

the Navy’s EIS/OEIS. Various zones of 

influence (ZOIs) from different ranges of 

NEW are shown in Table 8. As a 

mitigation measure, the largest ZOI 

associated with the upper limit of each 

NEW would be adopted as a clearance 

zone for such range of NEW. Therefore, 

for the following ranges of NEW, the 

clearance zones are: 2,863 m for NEW 

between 76–600 lb, 997 m for NEW 

between 11–75 lb, and 345 m for NEW 

under 11 lb. 

Proposed Mitigation Measures for 

Surface Operations and Other Activities 

For surface operations, vessel-based 

visual surveys would be conducted for 

all test operations to reduce the 

potential for vessel collisions with a 

protected species. 

(a) While underway, vessels will have 

at least one to three marine species 

awareness trained observers (based on 

the length of the vessel) with binoculars. 

Manned motor-driven vessels with 

length overall less than 65 ft (20 m) 

would require at least one marine 

species awareness trained observer; 

vessels with length overall between 65– 

200 ft (20–61 m) would require at least 

two marine species awareness trained 

observers; and vessels with length 

overall over 200 ft (61 m) would require 

at least three marine species awareness 

trained observers. As part of their 

regular duties, marine observers will 

watch for and report to the Test Director 

or Test Director’s designee the presence 

of marine mammals. 

(b) Marine observers will employ 

visual search procedures employing a 

scanning method in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(c) While in transit, naval vessels 

shall be alert at all times, use extreme 

caution, and proceed at a ‘‘safe speed’’ 

(the minimum speed at which mission 

goals or safety will not be compromised) 

so that the vessel can take proper and 

effective action to avoid a collision with 

any marine animal and can be stopped 

within a distance appropriate to the 

prevailing circumstances and 

conditions. 

(d) When marine mammals have been 

sighted in the area, Navy vessels will 

increase vigilance and implement 

measures to avoid collisions with 

marine mammals and avoid activities 

that might result in close interaction of 

naval assets and marine mammals. 

Actions shall include changing speed 

and/or direction and are dictated by 

environmental and other conditions 

(e.g., safety, weather). 

(e) Naval vessels will maneuver to 

keep at least 500 yd (460 m) away from 

any observed whale and avoid 

approaching whales head-on. This 

requirement does not apply if a vessel’s 

safety is threatened, such as when 

change of course will create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in their ability to 

maneuver. Vessels will take reasonable 

steps to alert other vessels in the 

vicinity of the whale. 

(f) Where feasible and consistent with 

mission and safety, vessels will avoid 

closing to within 200 yards (183 m) of 

marine mammals other than whales 

(whales addressed above). 

(g) Floating weeds, algal mats, 

Sargassum rafts, clusters of seabirds, 

and jellyfish are good indicators of 

marine mammal presence. Therefore, 

increased vigilance in watching for 

marine mammals will be taken where 

these conditions exist. 

(h) All vessels will maintain logs and 

records documenting RDT&E activities 

should they be required for event 

reconstruction purposes. Logs and 

records will be kept for a period of 30 

days following completion of a RDT&E 

mission activity. 

Research and Conservation Measures 

for Marine Mammals 

The Navy provides a significant 

amount of funding and support for 

marine research. The Navy provided 

$26 million in Fiscal Year 2008 and 

plans for $22 million in Fiscal Year 

2009 to universities, research 

institutions, Federal laboratories, 

private companies, and independent 

researchers around the world to study 

marine mammals. Over the past five 

years the Navy has funded over $100 

million in marine mammal research. 

The U.S. Navy sponsors seventy percent 

of all U.S. research concerning the 

effects of human-generated sound on 

marine mammals and 50 percent of such 

research conducted worldwide. Major 

topics of Navy-supported research 

include the following: 

• Better understanding of marine 

species distribution and important 

habitat areas, 

• Developing methods to detect and 

monitor marine species before and 

during training, 

20186 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

• Understanding the effects of sound 

on marine mammals, sea turtles, fish, 

and birds, and 

• Developing tools to model and 

estimate potential effects of sound. 

The Navy’s Office of Naval Research 

currently coordinates six programs that 

examine the marine environment and 

are devoted solely to studying the 

effects of noise and/or the 

implementation of technology tools that 

will assist the Navy in studying and 

tracking marine mammals. The six 

programs are as follows: 

• Environmental Consequences of 

Underwater Sound, 

• Non-Auditory Biological Effects of 

Sound on Marine Mammals, 

• Effects of Sound on the Marine 

Environment, 

• Sensors and Models for Marine 

Environmental Monitoring, 

• Effects of Sound on Hearing of 

Marine Animals, and 

• Passive Acoustic Detection, 

Classification, and Tracking of Marine 

Mammals. 

Furthermore, research cruises by 

NMFS and by academic institutions 

have received funding from the Navy. 

The Navy has sponsored several 

workshops to evaluate the current state 

of knowledge and potential for future 

acoustic monitoring of marine 

mammals. The workshops brought 

together acoustic experts and marine 

biologists from the Navy and other 

research organizations to present data 

and information on current acoustic 

monitoring research efforts and to 

evaluate the potential for incorporating 

similar technology and methods on 

instrumented ranges. However, acoustic 

detection, identification, localization, 

and tracking of individual animals still 

requires a significant amount of research 

effort to be considered a reliable method 

for marine mammal monitoring. The 

Navy supports research efforts on 

acoustic monitoring and will continue 

to investigate the feasibility of passive 

acoustics as a potential mitigation and 

monitoring tool. 

Overall, the Navy will continue to 

fund ongoing marine mammal research, 

and is planning to coordinate long-term 

monitoring/studies of marine mammals 

on various established ranges and 

operating areas. The Navy will continue 

to research and contribute to university/ 

external research to improve the state of 

the science regarding marine species 

biology and acoustic effects. These 

efforts include mitigation and 

monitoring programs; data sharing with 

NMFS and via the literature for research 

and development efforts. 

Long-Term Prospective Study 

NMFS, with input and assistance 

from the Navy and several other 

agencies and entities, will perform a 

longitudinal observational study of 

marine mammal strandings to 

systematically observe for and record 

the types of pathologies and diseases 

and investigate the relationship with 

potential causal factors (e.g., sonar, 

seismic, weather). The study will not be 

a true ‘‘cohort’’ study, because we will 

be unable to quantify or estimate 

specific sonar or other sound exposures 

for individual animals that strand. 

However, a cross-sectional or 

correlational analysis, a method of 

descriptive rather than analytical 

epidemiology, can be conducted to 

compare population characteristics, e.g., 

frequency of strandings and types of 

specific pathologies between general 

periods of various anthropogenic 

activities and non-activities within a 

prescribed geographic space. In the long 

term study, we will more fully and 

consistently collect and analyze data on 

the demographics of strandings in 

specific locations and consider 

anthropogenic activities and physical, 

chemical, and biological environmental 

parameters. This approach in 

conjunction with true cohort studies 

(tagging animals, measuring received 

sounds, and evaluating behavior or 

injuries) in the presence of activities 

and non-activities will provide critical 

information needed to further define the 

impacts of MTEs and other 

anthropogenic and non-anthropogenic 

stressors. In coordination with the Navy 

and other federal and non-federal 

partners, the comparative study will be 

designed and conducted for specific 

sites during intervals of the presence of 

anthropogenic activities such as sonar 

transmission or other sound exposures 

and absence to evaluate demographics 

of morbidity and mortality, lesions 

found, and cause of death or stranding. 

Additional data that will be collected 

and analyzed in an effort to control 

potential confounding factors include 

variables such as average sea 

temperature (or just season), 

meteorological or other environmental 

variables (e.g., seismic activity), fishing 

activities, etc. All efforts will be made 

to include appropriate controls (i.e., no 

sonar or no seismic); environmental 

variables may complicate the 

interpretation of ‘‘control’’ 

measurements. The Navy and NMFS 

along with other partners are evaluating 

mechanisms for funding this study. 

Proposed Monitoring Measures 

In order to issue an ITA for an 

activity, section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ The MMPA implementing 

regulations at 50 CFR 216.104(a)(13) 

indicate that requests for LOAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

(a) An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the analyses 

mentioned below. 

(b) An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of HFAS/ 

MFAS (or explosives or other stimuli) 

that we associate with specific adverse 

effects, such as behavioral harassment, 

TTS, or PTS. 

(c) An increase in our understanding 

of how marine mammals respond to 

HFAS/MFAS (at specific received 

levels), explosives, or other stimuli 

expected to result in take and how 

anticipated adverse effects on 

individuals (in different ways and to 

varying degrees) may impact the 

population, species, or stock 

(specifically through effects on annual 

rates of recruitment or survival) through 

any of the following methods: 

• Behavioral observations in the 

presence of HFAS/MFAS compared to 

observations in the absence of sonar 

(need to be able to accurately predict 

received level and report bathymetric 

conditions, distance from source, and 

other pertinent information). 

• Physiological measurements in the 

presence of HFAS/MFAS compared to 

observations in the absence of sonar 

(need to be able to accurately predict 

received level and report bathymetric 

conditions, distance from source, and 

other pertinent information), and/or 

• Pre-planned and thorough 

investigation of stranding events that 

occur coincident to naval activities. 

• Distribution and/or abundance 

comparisons in times or areas with 

concentrated HFAS/MFAS versus times 

or areas without HFAS/MFAS. 

(d) An increased knowledge of the 

affected species. 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20187 

(e) An increase in our understanding 

of the effectiveness of certain mitigation 

and monitoring measures. 

With these goals in mind, the 

following monitoring procedures for the 

proposed Navy’s NSWC PCD mission 

activities have been worked out between 

NMFS and the Navy. NMFS and the 

Navy continue to improve the plan and 

may modify the monitoring plan based 

on input received during the public 

comment period. 

Several monitoring techniques were 

prescribed for other Navy activities 

related to sonar exercises and 

underwater detonations (see monitoring 

plan for Navy’s Hawaii Range Complex; 

Navy, 2008). Every known monitoring 

technique has advantages and 

disadvantages that vary temporally and 

spatially. Therefore, a combination of 

techniques are proposed to be used so 

that the detection and observation of 

marine animals is maximized. 

Monitoring methods proposed during 

mission activity events in the NSWC 

PCD Study Area include a combination 

of the following research elements that 

would be used to collection data for 

comprehensive assessment: 

• Visual Surveys—Vessel, Aerial and 

Shore-based 

• Passive Acoustic Monitoring (PAM) 

• Marine Mammal Observers (MMOs) 

on Navy vessels 

Visual Surveys—Vessel, Aerial and 

Shore-Based 

Visual surveys of marine animals can 

provide detailed information about the 

behavior, distribution, and abundance. 

Baseline measurements and/or data for 

comparison can be obtained before, 

during and after mission activities. 

Changes in behavior and geographical 

distribution may be used to infer if and 

how animals are impacted by sound. In 

accordance with all safety 

considerations, observations will be 

maximized by working from all 

available platforms: Vessels, aircraft, 

land and/or in combination. Vessel and 

aerial surveys will be conducted on 

commercial vessels and aircraft. Visual 

surveys will be conducted during Navy 

RDT&E events that have been identified 

as providing the highest likelihood of 

success. 

Vessel surveys are often preferred by 

researchers because of their slow speed, 

offshore survey ability, duration and 

ability to more closely approach animals 

under observation. They also result in 

higher rate of species identification, the 

opportunity to combine line transect 

and mark-recapture methods of 

estimating abundance, and collection of 

oceanographic and other relevant data. 

Vessels can be less expensive per unit 

of time, but because of the length of 

time to cover a given survey area, may 

actually be more expensive in the long 

run compared to aerial surveys (Dawson 

et al., 2008). Changes in behavior and 

geographical distribution may be used 

to infer if and how animals are impacted 

by sound. However, it should be noted 

that animal reaction (reactive 

movement) to the survey vessel itself is 

possible (Dawson et al., 2008). Vessel 

surveys typically do not allow for 

observation of animals below the 

ocean’s surface (e.g., in the water 

column) as compared to aerial surveys 

(DoN, 2008a; Slooten et al., 2004). 

For underwater detonations, the size 

of the survey area has been determined 

based upon the type of explosive event 

planned and the amount of NEW used. 

As a conservative measure, the largest 

ZOI associated with the upper limit of 

each NEW would be surveyed during 

the training event. For example, the 

Navy would be required to observe the 

following ZOIs and ensure they are clear 

of marine mammals prior to conducting 

explosive ordnance exercises: 2,863 m 

for NEW between 76–600 lb; 997 m for 

NEW between 11–75 lb; and 345 m for 

NEW under 11 lb. 

If animals are observed prior to or 

during an explosion, a focal follow of 

that individual or group will be 

conducted to record behavioral 

responses. Navy mitigation measures 

will prevent the mission activity from 

occurring should animals be seen 

within these ZOIs of the events listed 

above. 

The visual survey team will collect 

the same data that are collected by Navy 

marine observers, including but not 

limited to: (1) Location of sighting; (2) 

species; (3) number of individuals; (4) 

number of calves present, if any; (5) 

duration of sighting; (6) behavior of 

marine animals sighted; (7) direction of 

travel; (8) environmental information 

associated with sighting event including 

Beaufort sea state, wave height, swell 

direction, wind direction, wind speed, 

glare, percentage of glare, percentage of 

cloud cover; and (9) when in relation to 

navy exercises did the sighting occur 

(before, during or after detonations/ 

exercise). Animal sightings and relative 

distance from a particular detonation 

site will be used post-survey to estimate 

the number of marine mammals 

exposed to different received levels 

(energy and pressure of discharge based 

on distance to the source, bathymetry, 

oceanographic conditions and the type 

and size of detonation) and their 

corresponding behavior. For vessel 

based surveys a passive acoustic system 

(hydrophone or towed array) or 

sonobuoys may be used to help 

determine if marine mammals are in the 

area before and after a detonation event. 

Although photo-identification studies 

are not typically a component of Navy 

exercise monitoring surveys, the Navy 

supports using the contracted platforms 

to obtain opportunistic data collection. 

Therefore, any digital photographs that 

are taken of marine mammals during 

visual surveys will be provided to local 

researchers for their regional research. 

1. Aerial Surveys 

During sonar operations, an aerial 

survey team will fly transects relative to 

a Navy surface vessel that is 

transmitting HFA/MFA sonar. The 

aerial survey team will collect both 

visual sightings and behavioral 

observations of marine animals. These 

transect data will provide an 

opportunity to collect data of marine 

mammals at different received levels 

and their behavioral responses and 

movement relative to the Navy vessel’s 

position. Surveys will include time with 

and without active sonar in order to 

compare density, geographical 

distribution and behavioral 

observations. After declassification, 

related sonar transmissions will be used 

to calculate exposure levels. 

Behavioral observation methods will 

involve three professionally trained 

marine mammal observers and a pilot. 

Two observers will observe behaviors, 

one with hand-held binoculars and one 

with the naked eye per Wursig et al. 

(1985) and Richardson et al. (1986). If 

there is more than one whale, each 

observer will record respirations of 

different animals, ideally from the same 

animal. In the case of large groups, e.g., 

of delphinids, group behavior, speed, 

orientation, etc., will be recorded as 

described in Smultea and Wu ̈rsig 

(1995). An observer will use a video 

camera to record behaviors in real time. 

Two external microphones will be input 

and attached to the video camera to 

record vocal behavioral descriptions on 

two different channels of the video 

camera. The videotape will be timestamped and observers will also call out 

times. The third observer will record 

notes, environmental data, and operate 

a laptop connected to a GPS and the 

plane’s altimeter. 

Detailed behavioral focal observations 

of cetaceans will be recorded, including 

the following variables where possible: 

Species, group size and composition 

(number of calves, etc.), latitude/ 

longitude, surface and dive durations 

and times, number and spacing/times of 

respirations, conspicuous behaviors 

(e.g., breach, tail slap, etc.), behavioral 

states, orientation and changes in 

orientation, estimated group travel 

20188 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

speed, inter-individual distances, 

defecations, social interactions, aircraft 

speed, aircraft altitude, distance to focal 

group (using the plane’s radar) and any 

unusual behaviors or apparent reactions 

following previously established 

protocol (Richardson et al., 1985; 1986; 

1990; Wursig et al., 1985; 1989; Smultea 

and Wu ̈rsig, 1995; Patenaude et al., 

2002). 

In addition, to measure whether 

marine mammals are displaced 

geographically as a result of sonar 

operations, systematic line-transect 

aerial surveys will be conducted on the 

two days before and a variation of one 

to five days after a NSWC PCD RDT&E 

testing activity to collect relative density 

data in the testing area for marine 

mammals in the area. Attempts will be 

made to survey during a test event, but 

safety of navigation for the survey vessel 

may preclude conduction this kind of 

survey during certain NSWC PCD 

RDT&E activities. Rationale supporting 

variation in the number of days after a 

test event allows for detection of 

animals that gradually return to an area, 

if their distribution changes as a 

response. One survey day following the 

mission activity event will be devoted to 

flying coastlines nearest the mission 

event to look for potential marine 

mammal strandings. If a stranding is 

observed, an assessment of the animal’s 

condition (alive, injured, dead, and/or 

decayed) will be immediately reported 

to the Navy for appropriate action and 

the information will be transmitted 

immediately to NMFS. 

2. Vessel Surveys 

The primary purpose of vessel 

surveys will be to document and 

monitor potential behavioral effects of 

the mission activities on marine 

mammals. As such, parameters to be 

monitored for potential effects are 

changes in the occurrence, distribution, 

numbers, surface behavior, and/or 

disposition (injured or dead) of marine 

mammal species before, during and after 

the mission activities. While 

challenging, the vessel surveys will 

attempt to conduct focal follows on 

animals with Navy vessels in view. 

As with the aerial surveys, the vessel 

surveys will be designed to maximize 

detections of any target species near 

mission activity events for focal follows. 

Systematic transects will be used to 

locate marine mammals, however, the 

survey should deviate from transect 

protocol to collect behavioral data 

particularly if a Navy vessel is visible on 

the horizon or closer. At this point, they 

will approach within three nautical 

miles of the vessel(s), if weather and 

conditions allow, and will work in 

‘focal follow mode’ (e.g. collect 

behavioral data using the big eyes, and 

observe the behavior of any animals that 

are seen). The team will go off effort for 

photo-id and close approach ‘focal 

animal follows’ as feasible, and when 

marine animal encounters occur in 

proximity to the vessel. While in focal 

follow mode, observers will gather 

detailed behavioral data from the 

animals, for as long as the animal 

allows. Analysis of behavioral 

observations will be made after the 

RDT&E event (Altman, 1974; Martin and 

Bateson, 1993). While the Navy vessels 

are within view, attempts will be made 

to position the dedicated survey vessel 

in the best possible way to obtain focal 

follow data in the presence of the NSWC 

PCD test event. If Navy vessels are not 

in view, then the vessel will begin a 

systematic line transect survey within 

the area to assess marine mammal 

occurrence and observe behavior. The 

goal of this part of the survey is to 

observe marine mammals that may not 

have been exposed to HFAS/MFAS or 

explosions. Therefore, post-analysis will 

focus on how the location, speed and 

vector of the survey vessel and the 

location and direction of the sonar 

source (e.g., Navy surface vessel) relates 

to the animal. Any other vessels or 

aircraft observed in the area will also be 

documented. 

3. Shore-Based Surveys 

If explosive events are planned in 

advance to occur adjacent to nearshore 

areas where there are elevated coastal 

structures (e.g. lookout tower at Eglin 

Air Force Base) or topography, then 

shore-based monitoring, using 

binoculars or theodolite, may be used to 

augment other visual survey methods. 

These methods have been proven 

valuable in similar monitoring studies 

such as ATOC and others (Frankel and 

Clark, 1998; Clark and Altman, 2006). 

Passive Acoustic Monitoring 

There are both benefits and 

limitations to passive acoustic 

monitoring (Mellinger et al., 2007). 

Passive acoustic monitoring allows 

detection of marine mammals that may 

not be seen during a visual survey. 

When interpreting data collected from 

PAM, it is understood that species 

specific results must be viewed with 

caution because not all animals within 

a given population are calling, or may 

be calling only under certain conditions 

(Mellinger, 2007; ONR, 2007). Because 

the NSWC PCD study area does not have 

some of the advanced features that the 

South Atlantic Range and Atlantic 

Undersea Testing and Evaluation Center 

have, allowing for the potential to track 

real-time, passive acoustic monitoring 

in the NSWC PCD will utilize a 

stationary, bottom-set hydrophone array 

for PAM. 

The array would be deployed for each 

of the days the ship is at sea. NSWC 

PCD has a bottom set hydrophone array, 

which can detect marine mammals that 

vocalize and would be used to 

supplement the ship based systematic 

line transect surveys (particularly for 

species such as beaked whales that are 

rarely seen). The array would need to 

detect low frequency vocalizations (less 

than 1,000 Hertz) for baleen whales and 

relatively high frequency vocalizations 

(up to 30 kilohertz) for odontocetes such 

as sperm whales. 

Marine Mammal Observers on Navy 

Vessels 

Civilian Marine Mammal Observers 

(MMOs) aboard Navy vessels will be 

used to research the effectiveness of 

Navy marine observers, as well as for 

data collection during other monitoring 

surveys. 

MMOs will be field-experienced 

observers that are Navy biologists or 

contracted observers. These civilian 

MMOs will be placed alongside existing 

Navy marine observers during a sub-set 

of NSWC PCD RDT&E activities. This 

can only be done on certain vessels and 

observers may be required to have 

security clearance. Use of MMOs will 

verify Navy marine observer sighting 

efficiency, offer an opportunity for more 

detailed species identification, provide 

an opportunity to bring animal 

protection awareness to the vessels’ 

crew, and provide the opportunity for 

an experienced biologist to collect data 

on marine mammal behavior. Data 

collected by the MMOs is anticipated to 

assist the Navy with potential 

improvements to marine observer 

training as well as providing the marine 

observers with a chance to gain 

additional knowledge on marine 

mammals. 

Events selected for MMO 

participation will be an appropriate fit 

in terms of security, safety, logistics, 

and compatibility with NSWC PCD 

RDT&E activities. The MMOs will not 

be part of the Navy’s formal reporting 

chain of command during their data 

collection efforts and Navy marine 

observers will follow their chain of 

command in reporting marine mammal 

sightings. Exceptions will be made if an 

animal is observed by the MMO within 

the shutdown zone and was not seen by 

the Navy marine observer. The MMO 

will inform the marine observer of the 

sighting so that appropriate action may 

be taken by the chain of command. For 

less biased data, it is recommended that 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20189 

MMOs should schedule their daily 

observations to duplicate the Navy 

marine observers’ schedule. 

Civilian MMOs will be aboard Navy 

vessels involved in the study. As 

described earlier, MMOs will meet and 

adhere to necessary qualifications, 

security clearance, logistics and safety 

concerns. MMOs will monitor for 

marine mammals from the same height 

above water as the marine observers and 

as all visual survey teams, they will 

collect the same data collected by Navy 

marine observers, including but not 

limited to: (1) Location of sighting; (2) 

species (if not possible, identification of 

whale or dolphin); (3) number of 

individuals; (4) number of calves 

present, if any; (5) duration of sighting; 

(6) behavior of marine animals sighted; 

(7) direction of travel; (8) environmental 

information associated with sighting 

event including Beaufort sea state, wave 

height, swell direction, wind direction, 

wind speed, glare, percentage of glare, 

percentage of cloud cover; and (9) when 

in relation to navy exercises did the 

sighting occur (before, during or after 

detonations/exercise). 

In addition, the Navy is developing an 

Integrated Comprehensive Monitoring 

Program (ICMP) for marine species to 

assess the effects of NSWC PCD RDT&E 

activities on marine species and 

investigate population trends in marine 

species distribution and abundance in 

locations where NSWC PCD RDT&E 

activities regularly occurs. 

The ICMP will provide the 

overarching coordination that will 

support compilation of data from rangespecific monitoring plans (e.g., NSWC 

PCD plan) as well as Navy funded 

research and development (R&D) 

studies. The ICMP will coordinate the 

monitoring programs progress towards 

meeting its goals and develop a data 

management plan. The ICMP will be 

evaluated annually to provide a matrix 

for progress and goals for the following 

year, and will make recommendations 

on adaptive management for refinement 

and analysis of the monitoring methods. 

The primary objectives of the ICMP 

are to: 

• Monitor and assess the effects of 

Navy activities on protected species; 

• Ensure that data collected at 

multiple locations is collected in a 

manner that allows comparison between 

and among different geographic 

locations; 

• Assess the efficacy and practicality 

of the monitoring and mitigation 

techniques; 

• Add to the overall knowledge-base 

of marine species and the effects of 

Navy activities on marine species. 

The ICMP will be used both as: (1) a 

planning tool to focus Navy monitoring 

priorities (pursuant to ESA/MMPA 

requirements) across Navy Range 

Complexes and Exercises; and (2) an 

adaptive management tool, through the 

consolidation and analysis of the Navy’s 

monitoring and watchstander data, as 

well as new information from other 

Navy programs (e.g., R&D), and other 

appropriate newly published 

information. 

In combination with the adaptive 

management component of the 

proposed NSWC PCD rule and the other 

planned Navy rules (e.g., Atlantic Fleet 

Active Sonar Training, Hawaii Range 

Complex, and Southern California 

Range Complex), the ICMP could 

potentially provide a framework for 

restructuring the monitoring plans and 

allocating monitoring effort based on the 

value of particular specific monitoring 

proposals (in terms of the degree to 

which results would likely contribute to 

stated monitoring goals, as well as the 

likely technical success of the 

monitoring based on a review of past 

monitoring results) that have been 

developed through the ICMP 

framework, instead of allocating based 

on maintaining an equal (or 

commensurate to effects) distribution of 

monitoring effort across Range 

complexes. For example, if careful 

prioritization and planning through the 

ICMP (which would include a review of 

both past monitoring results and current 

scientific developments) were to show 

that a large, intense monitoring effort in 

GOM would likely provide extensive, 

robust and much-needed data that could 

be used to understand the effects of 

sonar throughout different geographical 

areas, it may be appropriate to have 

other Range Complexes dedicate money, 

resources, or staff to the specific 

monitoring proposal identified as ‘‘high 

priority’’ by the Navy and NMFS, in lieu 

of focusing on smaller, lower priority 

projects divided throughout their home 

Range Complexes. The ICMP will 

identify: 

• A means by which NMFS and the 

Navy would jointly consider prior years’ 

monitoring results and advancing 

science to determine if modifications 

are needed in mitigation or monitoring 

measures to better effect the goals laid 

out in the Mitigation and Monitoring 

sections of the NSWC PCD rule. 

• Guidelines for prioritizing 

monitoring projects. 

• If, as a result of the workshop and 

similar to the example described in the 

paragraph above, the Navy and NMFS 

decide it is appropriate to restructure 

the monitoring plans for multiple ranges 

such that they are no longer evenly 

allocated (by Range Complex), but 

rather focused on priority monitoring 

projects that are not necessarily tied to 

the geographic area addressed in the 

rule, the ICMP will be modified to 

include a very clear and unclassified 

record-keeping system that will allow 

NMFS and the public to see how each 

Range Complex/project is contributing 

to all of the ongoing monitoring 

(resources, effort, money, etc.). 

Adaptive Management 

Our understanding of the effects of 

HFAS/MFAS on marine mammals is 

still in its relative infancy, and yet the 

science in this field is evolving fairly 

quickly. These circumstances make the 

inclusion of an adaptive management 

component both valuable and necessary 

within the context of 5-year regulations 

for activities that have been associated 

with marine mammal mortality in 

certain circumstances and locations 

(though not the NSWC PCD Study 

Area). The use of adaptive management 

will give NMFS the ability to consider 

new data from different sources to 

determine (in coordination with the 

Navy), on an annual basis, if new or 

modified mitigation or monitoring 

measures are appropriate for subsequent 

annual LOAs. Following are some of the 

possible sources of applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from the 

NSWC PCD Study Area or other 

locations). 

• Results from specific stranding 

investigations (either from the NSWC 

PCD Study Area or other locations, and 

involving coincident NSWC PCD 

RDT&E or not involving coincident use). 

• Results from the research activities 

associated with Navy’s HFAS/MFAS. 

• Results from general marine 

mammal and sound research (funded by 

the Navy or otherwise). 

• Any information which reveals that 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

Mitigation measures could be 

modified or added if new data suggest 

that such modifications would have a 

reasonable likelihood of accomplishing 

the goals of mitigation laid out in this 

proposed rule and if the measures are 

practicable. NMFS would also 

coordinate with the Navy to modify or 

add to the existing monitoring 

requirements if the new data suggest 

that the addition of a particular measure 

would more effectively accomplish the 

goals of monitoring laid out in this 

proposed rule. The reporting 

requirements associated with this 

proposed rule are designed to provide 

20190 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

NMFS with monitoring data from the 

previous year to allow NMFS to 

consider the data in issuing annual 

LOAs. NMFS and the Navy will meet 

annually prior to LOA issuance to 

discuss the monitoring reports, Navy 

R&D developments, and current science 

and whether mitigation or monitoring 

modifications are appropriate. 

Reporting 

In order to issue an ITA for an 

activity, section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ Effective reporting is critical 

both to compliance as well as ensuring 

that the most value is obtained from the 

required monitoring. Some of the 

reporting requirements are still in 

development and the final rule may 

contain additional details not contained 

in the proposed rule. Additionally, 

proposed reporting requirements may be 

modified, removed, or added based on 

information or comments received 

during the public comment period. 

General Notification of Injured or Dead 

Marine Mammals 

Navy personnel will ensure that 

NMFS (regional stranding coordinator) 

is notified immediately (or as soon as 

clearance procedures allow) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy mission activities 

utilizing MFAS, HFAS, or underwater 

explosive detonations. The Navy will 

provide NMFS with species or 

description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal is dead), 

location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). The Stranding 

Response Plan contains more specific 

reporting requirements for specific 

circumstances. 

Annual Report 

The Navy will submit its first annual 

report to the Office of Protected 

Resources, NMFS, no later than 120 

days before the expiration of the LOA. 

These reports will, at a minimum, 

include the following information: 

• The estimated number of hours of 

sonar operation, broken down by source 

type. 

• If possible, the total number of 

hours of observation effort (including 

observation time when sonar was not 

operating). 

• A report of all marine mammal 

sightings (at any distance—not just 

within a particular distance) to include, 

when possible and to the best of their 

ability, and if not classified: 

—Species. 

—Number of animals sighted. 

—Location of marine mammal sighting. 

—Distance of animal from any operating 

sonar sources. 

—Whether animal is fore, aft, port, 

starboard. 

—Direction animal is moving in relation 

to source (away, towards, parallel). 

—Any observed behaviors of marine 

mammals. 

• The status of any sonar sources 

(what sources were in use) and whether 

or not they were powered down or shut 

down as a result of the marine mammal 

observation. 

• The platform that the marine 

mammals were sighted from. 

NSWC PCD Comprehensive Report 

The Navy will submit to NMFS a draft 

report that analyzes and summarizes all 

of the multi-year marine mammal 

information gathered during HFAS/ 

MFAS and underwater detonation 

related mission activities for which 

annual reports are required as described 

above. This report will be submitted at 

the end of the fourth year of the rule 

(March 2013), covering activities that 

have occurred through October 1, 2012. 

The Navy will respond to NMFS 

comments on the draft comprehensive 

report if submitted within 3 months of 

receipt. The report will be considered 

final after the Navy has addressed 

NMFS’ comments, or three months after 

the submittal of the draft if NMFS does 

not comment by then. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects. A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of Level B harassment takes, alone, is 

not enough information on which to 

base an impact determination. In 

addition to considering estimates of the 

number of marine mammals that might 

be ‘‘taken’’ through behavioral 

harassment, NMFS must consider other 

factors, such as the likely nature of any 

responses (their intensity, duration, 

etc.), the context of any responses 

(critical reproductive time or location, 

migration, etc.), or any of the other 

variables mentioned in the first 

paragraph (if known), as well as the 

number and nature of estimated Level A 

takes, the number of estimated 

mortalities, and effects on habitat. 

The Navy’s specified activities have 

been described based on best estimates 

of the number of HFAS/MFAS hours 

that the Navy will conduct and the 

planned detonation events. Taking the 

above into account, considering the 

sections discussed below, and 

dependent upon the implementation of 

the proposed mitigation measures, 

NMFS has preliminarily determined 

that Navy’s RDT&E activities utilizing 

HFAS/MFAS and underwater 

detonations will have a negligible 

impact on the marine mammal species 

and stocks present in the NSWC PCD 

Study Area. 

Behavioral Harassment 

As discussed in the Potential Effects 

of Exposure of Marine Mammals to 

HFAS/MFAS and illustrated in the 

conceptual framework, marine 

mammals can respond to HFAS/MFAS 

in many different ways, a subset of 

which qualifies as harassment. One 

thing that the take estimates do not take 

into account is the fact that most marine 

mammals will likely avoid strong sound 

sources to one extent or another. 

Although an animal that avoids the 

sound source will likely still be taken in 

some instances (such as if the avoidance 

results in a missed opportunity to feed, 

interruption of reproductive behaviors, 

etc.) in other cases avoidance may result 

in fewer instances of take than were 

estimated or in the takes resulting from 

exposure to a lower received level than 

was estimated, which could result in a 

less severe response. The Navy proposes 

only 77 hours of mid-frequency sonar 

operations per year (Table 2) in the 

NSWC PCD Study Area, and the use of 

the most powerful 53C series sonar will 

be limited to just 4 hours per year. 

Therefore, any disturbance to marine 

mammals resulting from 53C and other 

MFAS is expected to be significantly 

less in terms of severity and duration 

when compared to major sonar exercises 

(e.g., AFAST, HRC, SOCAL). As for the 

HFAS, source levels of those HFAS are 

not as high as the 53C series MFAS. In 

addition, high frequency signals tend to 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20191 

have more attenuation in the water 

column and are more prone to lose their 

energy during propagation. Therefore, 

their zones of influence are much 

smaller, thereby making it easier to 

detect marine mammals and prevent 

adverse effects from occurring. 

There is little information available 

concerning marine mammal reactions to 

MFAS/HFAS. The Navy has only been 

conducting monitoring activities since 

2006 and has not compiled enough data 

to date to provide a meaningful picture 

of effects of HFAS/MFAS on marine 

mammals, particularly in the NSWC 

PCD Study Area. From the four major 

training exercises (MTEs) of HFAS/ 

MFAS in the AFAST Study Area for 

which NMFS has received a monitoring 

report, no instances of obvious 

behavioral disturbance were observed 

by the Navy watchstanders in the 700+ 

hours of effort in which 79 sightings of 

marine mammals were made (10 during 

active sonar operation). One cannot 

conclude from these results that marine 

mammals were not harassed from 

HFAS/MFAS, as a portion of animals 

within the area of concern were not seen 

(especially those more cryptic, deepdiving species, such as beaked whales 

or Kogia sp.) and some of the nonbiologist watchstanders might not have 

had the expertise to characterize 

behaviors. However, the data 

demonstrate that the animals that were 

observed did not respond in any of the 

obviously more severe ways, such as 

panic, aggression, or anti-predator 

response. 

In addition to the monitoring that will 

be required pursuant to these 

regulations and subsequent LOAs, 

which is specifically designed to help 

us better understand how marine 

mammals respond to sound, the Navy 

and NMFS have developed, funded, and 

begun conducting a controlled exposure 

experiment with beaked whales in the 

Bahamas. 

Diel Cycle 

As noted previously, many animals 

perform vital functions, such as feeding, 

resting, traveling, and socializing on a 

diel cycle (24-hr cycle). Substantive 

behavioral reactions to noise exposure 

(such as disruption of critical life 

functions, displacement, or avoidance of 

important habitat) are more likely to be 

significant if they last more than one 

diel cycle or recur on subsequent days 

(Southall et al., 2007). Consequently, a 

behavioral response lasting less than 

one day and not recurring on 

subsequent days is not considered 

particularly severe unless it could 

directly affect reproduction or survival 

(Southall et al., 2007). 

In the previous section, we discussed 

the fact that potential behavioral 

responses to HFAS/MFAS and 

underwater detonations that fall into the 

category of harassment could range in 

severity. By definition, the takes by 

behavioral harassment involve the 

disturbance of a marine mammal or 

marine mammal stock in the wild by 

causing disruption of natural behavioral 

patterns (such as migration, surfacing, 

nursing, breeding, feeding, or sheltering) 

to a point where such behavioral 

patterns are abandoned or significantly 

altered. These reactions would, 

however, be more of a concern if they 

were expected to last over 24 hours or 

be repeated in subsequent days. For 

hull-mounted sonar 53C series sonar 

(the highest power source), the total 

time of operation is only 4 hours per 

year, with 3 hours planned in territorial 

waters and 1 hour in non-territorial 

waters. Different sonar testing and 

underwater detonation activities will 

not occur simultaneously. When this is 

combined with the fact that the majority 

of the cetaceans in the NSWC PCD 

Study Area would not likely remain in 

the same area for successive days, it is 

unlikely that animals would be exposed 

to HFAS/MFAS and underwater 

detonations at levels or for a duration 

likely to result in a substantive response 

that would then be carried on for more 

than one day or on successive days. 

TTS 

NMFS and the Navy have estimated 

that individuals of some species of 

marine mammals may sustain some 

level of TTS from HFAS/MFAS and/or 

underwater detonation. As mentioned 

previously, TTS can last from a few 

minutes to days, be of varying degree, 

and occur across various frequency 

bandwidths. The TTS sustained by an 

animal is primarily classified by three 

characteristics: 

• Frequency—Available data (of midfrequency hearing specialists exposed to 

mid to high frequency sounds—Southall 

et al., 2007) suggest that most TTS 

occurs in the frequency range of the 

source up to one octave higher than the 

source (with the maximum TTS at 1⁄2

octave above). 

• Degree of the shift (i.e., how many 

dB is the sensitivity of the hearing 

reduced by)—generally, both the degree 

of TTS and the duration of TTS will be 

greater if the marine mammal is exposed 

to a higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). The threshold 

for the onset of TTS (>6 dB) for Navy 

sonars is 195 dB (SEL), which might be 

received at distances of up to 275–500 

m from the most powerful MFAS 

source, the AN/SQS–53 (the maximum 

ranges to TTS from other sources would 

be less). An animal would have to 

approach closer to the source or remain 

in the vicinity of the sound source 

appreciably longer to increase the 

received SEL, which would be difficult 

considering the marine observers and 

the nominal speed of a sonar vessel (10– 

12 knots). Of all TTS studies, some 

using exposures of almost an hour in 

duration or up to 217 SEL, most of the 

TTS induced was 15 dB or less, though 

Finneran et al. (2007) induced 43 dB of 

TTS with a 64-sec exposure to a 20 kHz 

source (MFAS emits a 1-s ping 2 times/ 

minute). The threshold for the onset of 

TTS for detonations is a dual criteria: 

182 dB re 1 microPa2-sec or 23 psi, 

which might be received at distances 

from 345–2,863 m from the centers of 

detonation based on the types of NEW 

involved. 

• Duration of TTS (Recovery time)— 

see above. Of all TTS laboratory studies, 

some using exposures of almost an hour 

in duration or up to 217 SEL, almost all 

recovered within 1 day (or less, often in 

minutes), though in one study (Finneran 

et al., 2007), recovery took 4 days. 

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 freeswimming marine mammals in the field 

are likely to be exposed during HFAS/ 

MFAS testing activities, it is unlikely 

that marine mammals would sustain a 

TTS from MFAS that alters their 

sensitivity by more than 20 dB for more 

than a few days (and the majority would 

be far less severe). Also, for the same 

reasons discussed in the Diel Cycle 

section, and because of the short 

distance within which animals would 

need to approach the sound source, it is 

unlikely that animals would be exposed 

to the levels necessary to induce TTS in 

subsequent time periods such that their 

recovery were impeded. Additionally, 

though the frequency range of TTS that 

marine mammals might sustain would 

overlap with some of the frequency 

ranges of their vocalization types, the 

frequency range of TTS from MFAS (the 

source from which TTS would more 

likely be sustained because the higher 

source level and slower attenuation 

make it more likely that an animal 

would be exposed to a higher level) 

would not usually span the entire 

frequency range of one vocalization 

type, much less span all types of 

vocalizations. 

For underwater detonations, due to its 

brief impulse of sounds, animals have to 

be at distances from 345–2,863 m from 

the center of detonation, based on the 

types of NEW involved to receive the 

20192 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

SEL that causes TTS compared to 

similar source level with longer 

durations (such as sonar signals). 

Acoustic Masking or Communication 

Impairment 

As discussed above, it is also possible 

that anthropogenic sound could result 

in masking of marine mammal 

communication and navigation signals. 

However, masking only occurs during 

the time of the signal (and potential 

secondary arrivals of indirect rays), 

versus TTS, which occurs continuously 

for its duration. Standard HFAS/MFAS 

sonar pings last on average one second 

and occur about once every 24–30 

seconds for hull-mounted sources. 

When hull-mounted sonar is used in the 

Kingfisher mode, pulse length is shorter, 

but pings are much closer together (both 

in time and space, since the vessel goes 

slower when operating in this mode). 

For the sources for which we know the 

pulse length, most are significantly 

shorter than hull-mounted sonar, on the 

order of several microseconds to 10s of 

micro seconds. For hull-mounted sonar, 

though some of the vocalizations that 

marine mammals make are less than one 

second long, there is only a 1 in 24 

chance that they would occur exactly 

when the ping was received, and when 

vocalizations are longer than one 

second, only parts of them are masked. 

Alternately, when the pulses are only 

several microseconds long, the majority 

of most animals’ vocalizations would 

not be masked. Masking effects from 

HFAS/MFAS are expected to be 

minimal. Likewise, the masking effects 

from underwater detonation are also 

considered to be unlikely due to the 

much shorter impulsive signals from 

explosions. If masking or 

communication impairment were to 

occur briefly, it would be in the 

frequency range of MFAS, which 

overlaps with some marine mammal 

vocalizations; however, it would likely 

not mask the entirety of any particular 

vocalization or communication series 

because the pulse length, frequency, and 

duty cycle of the HFAS/MFAS signal 

does not perfectly mimic the 

characteristics of any marine mammal’s 

vocalizations. 

PTS, Injury, or Mortality 

The Navy’s model estimated that 1 

individual of bottlenose dolphin and 1 

individual of Atlantic spotted dolphin 

could experience severe lung injury 

(i.e., mortality) from explosive ordnance 

activities; and 1 individual each of 

bottlenose, Atlantic spotted, pantropical 

spotted, and spinner dolphins from 

slight lung injury (Level A harassment) 

as a result of the underwater detonation 

exposures in the range of 76–272 lb 

NEW (34–272 kg) in non-territorial 

waters per year. However, these 

estimates do not take into consideration 

the proposed mitigation measures. For 

sonar operations, NMFS believes that 

many marine mammals would 

deliberately avoid exposing themselves 

to the received levels necessary to 

induce injury (i.e., approaching to 

within approximately 10 m (10.9 yd) of 

the source). Animals would likely move 

away from or at least modify their path 

to avoid a close approach. Additionally, 

in the unlikely event that an animal 

approaches the sonar vessel at a close 

distance, NMFS believes that the 

mitigation measures (i.e., shutdown/ 

power-down zones for HFAS/MFAS) 

further ensure that animals would be 

not be exposed to injurious levels of 

sound. As for underwater detonations, 

the animals have to be within the 203 

m ZOI to experience severe lung injury 

or mortality. NMFS believes it is 

unlikely that Navy observers will fail to 

detect an animal in such a small area 

during pre-testing surveys. As discussed 

previously, the Navy plans to utilize 

aerial (when available) in addition to 

marine observers on vessels to detect 

marine mammals for mitigation 

implementation and indicated that they 

are capable of effectively monitoring 

safety zones. When these points are 

considered, NMFS does not believe that 

any marine mammals will experience 

severe lung injury or mortality from 

exposure to HFAS/MFAS or underwater 

detonation. Instead, based on proposed 

mitigation and monitoring measures, 

NMFS preliminary determines that 2 

individuals of bottlenose and Atlantic 

spotted dolphins, and 1 individual of 

pantropical spotted and spinner 

dolphins would receive slight lung 

injury (Level A harassment) as a result 

of underwater detonation exposures in 

the range of 76–272 lb NEW (34–272 kg) 

in non-territorial waters per year. 

Based on the aforementioned 

assessment, NMFS determines that 

approximately 2 sperm whales, 2 

melon-headed whales, 1 short-finned 

pilot whale, 2 rough-toothed dolphins, 

614 bottlenose dolphins, 471 Atlantic 

spotted dolphins, 23 pantropical spotted 

dolphins, 5 striped dolphins, 23 spinner 

dolphins, and 5 Clymene dolphins 

would be affected by Level B 

harassment (TTS and sub-TTS) as a 

result of the proposed NSWC PCD 

RDT&E sonar and underwater 

detonation testing activities. These 

numbers represent approximately 

0.12%, 0.08%, 0.14%, 0.07%, 2.85%, 

1.72%, 0.07%, 0.15%, 1.16%, and 

0.08% of sperm whales, melon-headed 

whales, short-finned pilot whale, roughtoothed dolphins, bottlenose dolphins, 

Atlantic spotted dolphins, pantropical 

spotted dolphins, striped dolphins, 

spinner dolphins, and Clymene 

dolphins, respectively in the vicinity of 

the proposed NSWC PCD Study Area 

(calculation based on NMFS 2007 US 

Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessment). 

In addition, the Level A takes of 2 

bottlenose, 2 Atlantic spotted, 1 

pantropical spotted, and 1 spinner 

dolphins represent 0.009%, 0.007%, 

0.003%, and 0.050% of these species in 

the vicinity of the proposed NSWC PCD 

Study Area (calculation based on NMFS 

2007 US Atlantic and Gulf of Mexico 

Marine Mammal Stock Assessment). 

Based on the supporting analyses, 

which suggest that no marine mammals 

will be killed as a result of these 

activities, only 6 individuals of 

dolphins (2 bottlenose, 2 Atlantic 

spotted, 1 pantropical spotted, and 1 

spinner dolphins) would experience 

injury (Level A harassment), and no 

more than a small percentage of the 

individuals of any affected species will 

be taken in the form of short-term Level 

B harassment per year. Coupled with 

the fact that these impacts will likely 

not occur in areas and times critical to 

reproduction, NMFS has preliminarily 

determined that the total taking over the 

5-year period of the regulations and 

subsequent LOAs from the Navy’s 

NSWC PCD RDT&E mission activities 

will have a negligible impact on the 

marine mammal species and stocks 

present in the NSWC PCD Study Area. 

Subsistence Harvest of Marine 

Mammals 

NMFS has preliminarily determined 

that the total taking of marine mammal 

species or stocks from the Navy’s 

mission activities in the NSWC PCD 

study area would not have an 

unmitigable adverse impact on the 

availability of the affected species or 

stocks for subsistence uses, since there 

are no such uses in the specified area. 

ESA 

There are six marine mammal species 

of which NMFS has jurisdiction that are 

listed as endangered under the ESA that 

could occur in the NSWC PCD study 

area: Humpback whale, North Atlantic 

right whale, blue whale, fin whale, sei 

whale, and sperm whale. The Navy has 

begun consultation with NMFS 

pursuant to section 7 of the ESA, and 

NMFS will also consult internally on 

the issuance of an LOA under section 

101(a)(5)(A) of the MMPA for mission 

activities in the NSWC PCD study area. 

Consultation will be concluded prior to 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20193 

a determination on the issuance of the 

final rule and an LOA. 

NEPA 

The Navy is preparing an 

Environmental Impact Statement (EIS) 

for the proposed NSWC PCD mission 

activities. A draft EIS was released for 

public comment from April 4–May 19, 

2008 and is available at http:// 

nswcpc.navsea.navy.mil/EnvironmentDocuments.htm. NMFS is a cooperating 

agency (as defined by the Council on 

Environmental Quality (40 CFR 1501.6)) 

in the preparation of the EIS. NMFS has 

reviewed the Draft EIS and will be 

working with the Navy on the Final EIS 

(FEIS). 

NMFS intends to adopt the Navy’s 

FEIS, if adequate and appropriate, and 

we believe that the Navy’s FEIS will 

allow NMFS to meet its responsibilities 

under NEPA for the issuance of the 5- 

year regulations and LOAs (as 

warranted) for mission activities in the 

NSWC PCD study area. If the Navy’s 

FEIS is not adequate, NMFS would 

supplement the existing analysis and 

documents to ensure that we comply 

with NEPA prior to the issuance of the 

final rule and LOA. 

Preliminary Determination 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat and dependent upon 

the implementation of the mitigation 

and monitoring measures, NMFS 

preliminarily finds that the total taking 

from Navy mission activities utilizing 

HFAS/MFAS and underwater 

explosives in the NSWC PCD study area 

will have a negligible impact on the 

affected marine mammal species or 

stocks. NMFS has proposed regulations 

for these exercises that prescribe the 

means of effecting the least practicable 

adverse impact on marine mammals and 

their habitat and set forth requirements 

pertaining to the monitoring and 

reporting of such taking. 

Classification 

This action does not contain a 

collection of information requirement 

for purposes of the Paperwork 

Reduction Act. 

This proposed rule has been 

determined by the Office of 

Management and Budget to be not 

significant for purposes of Executive 

Order 12866. 

Pursuant to the Regulatory Flexibility 

Act, the Chief Counsel for Regulation of 

the Department of Commerce has 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that this rule, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The 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 proposed rulemaking, 

not a small governmental jurisdiction, 

small organization or small business, as 

defined by the RFA. This proposed 

rulemaking authorizes the take of 

marine mammals incidental to a 

specified activity. The specified activity 

defined in the proposed rule includes 

the use of high-frequency and midfrequency sonar and underwater 

detonations during training activities 

that are only conducted by the U.S. 

Navy. Additionally, the proposed 

regulations are specifically written for 

‘‘military readiness’’ activities, as 

defined by the Marine Mammal 

Protection Act, as amended by the 

National Defense Authorization Act, 

which means that they cannot apply to 

small businesses. Additionally, any 

requirements imposed by a Letter of 

Authorization issued pursuant to these 

regulations, and any monitoring or 

reporting requirements imposed by 

these regulations, will be applicable 

only to the Navy. Because this action, if 

adopted, would directly affect the Navy 

and not a small entity, NMFS concludes 

the action would not result in a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, no IRFA is required and 

none has been prepared. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Navy, Penalties, Reporting 

and recordkeeping requirements, 

Seafood, Sonar, Transportation. 

Dated: April 22, 2009. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons set forth in the 

preamble, 50 CFR part 218, as proposed 

to be added at 73 FR 75655, December 

12, 2008, is proposed to be amended as 

follows: 

PART 218—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

1. The authority citation for part 218 

continues to read as follows: 

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

2. Subpart S is added to part 218 to 

read as follows: 

Subpart S—Taking Marine Mammals 

Incidental to U.S. Navy Mission 

Activities in the Naval Surface Warfare 

Center Panama City Division Study 

Area 

Sec. 

218.180 Specified activity and specified 

geographical region. 

218.181 Permissible methods of taking. 

218.182 Prohibitions. 

218.183 Mitigation. 

218.184 Requirements for monitoring and 

reporting. 

218.185 Applications for Letters of 

Authorization. 

218.186 Letters of Authorization. 

218.187 Renewal of Letters of Authorization 

and adaptive management. 

218.188 Modifications to Letters of 

Authorization. 

Subpart S—Taking Marine Mammals 

Incidental to U.S. Navy Mission 

Activities in the Naval Surface Warfare 

Center Panama City Division Study 

Area 

§ 218.180 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the U.S. Navy for the taking of 

marine mammals that occurs in the area 

outlined in paragraph (b) of this section 

and that occur incidental to the 

activities described in paragraph (c) of 

this section. 

(b) The taking of marine mammals by 

the Navy is only authorized if it occurs 

within the NSWC PCD Study, which 

includes St. Andrew Bay (SAB) and 

military warning areas (areas within the 

GOM subject to military operations) W– 

151 (includes Panama City Operating 

Area), W–155 (includes Pensacola 

Operating Area), and W–470. A detailed 

description of these specific geographic 

regions is listed in Figures 2–1 and 2– 

2 of the Navy’s application for the Letter 

of Authorization (LOA). The NSWC PCD 

Study Area includes a Coastal Test 

Area, a Very Shallow Water Test Area, 

and Target and Operational Test Fields. 

The NSWC PCD Research, 

Development, Test, and Evaluation 

(RDT&E) activities may be conducted 

anywhere within the existing military 

operating areas and SAB from the mean 

high water line (average high tide mark) 

out to 222 km (120 nm) offshore. The 

locations and environments include: 

20194 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

(1) Test area control sites adjacent to 

NSWC PCD. 

(2) Wide coastal shelf 97 km (52 nm) 

distance offshore to 183 m (600 ft), 

including bays and harbors. 

(c) The taking of marine mammals by 

the Navy is only authorized if it occurs 

incidental to the following activities 

within the designated amounts of use: 

(1) Surface operations in territorial 

and non-territorial waters: 

(i) Diving; 

(ii) Salvage; 

(iii) Use of robotic vehicles; 

(iv) Use of underwater unmanned 

vehicles; and 

(v) Mooring and burying of mines. 

(2) The use of the following high 

frequency active sonar (HFAS) and midfrequency active sonar (MFAS) or 

similar sources for U.S. Navy mission 

activities in territorial waters in the 

amounts indicated below: 

(i) AN/SQS–53/56 Kingfisher—up to 

15 hours over the course of 5 years (an 

average of 3 hours per year); 

(ii) Sub-bottom profiler (2–9 kHz)—up 

to 105 hours over the course of 5 years 

(an average of 21 hours per year); 

(iii) REMUS SAS–LF (center 

frequency 15 kHz)—up to 60 hours over 

the course of 5 years (an average of 12 

hours per year); 

(iv) REMUS Modem—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year); 

(v) Sub-bottom profiler (2–16 kHz)— 

up to 120 hours over the course of 5 

years (an average of 24 hours per year); 

(vi) AN/SQQ–32—up to 150 hours 

over the course of 5 years (an average of 

30 hours per year); 

(vii) REMUS–SAS–LF (center 

frequency 20 kHz)—up to 100 hours 

over the course of 5 years (an average of 

20 hours per year); 

(viii) SAS–LF—up to 175 hours over 

the course of 5 years (an average of 35 

hours per year); 

(ix) AN/WLD–1 RMS–ACL—up to 168 

hours over the course of 5 years (an 

average of 33.5 hours per year); 

(x) BPAUV Sidescan (center 

frequency 75 kHz)—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year); 

(xi) TVSS—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(xii) F84Y—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(xiii) BPAUV Sidescan (center 

frequency 102.5 kHz)—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year); 

(xiv) REMUS–SAS–HF—up to 50 

hours over the course of 5 years (an 

average of 10 hours per year); 

(xv) SAS–HF—up to 58 hours over the 

course of 5 years (an average of 11.5 

hours per year); 

(xvi) AN/SQS–20—up to 2,725 hours 

over the course of 5 years (an average of 

545 hours per year); 

(xvii) AN/WLD–11 RMS Navigation— 

up to 75 hours over the course of 5 years 

(an average of 15 hours per year); and 

(xviii) BPAUV Sidescan (center 

frequency 120 kHz)—up to 150 hours 

over the course of 5 years (an average of 

30 hours per year). 

(3) The use of the following high 

frequency active sonar (HFAS) and midfrequency active sonar (MFAS) or 

similar sources for U.S. Navy mission 

activities in non-territorial waters in the 

amounts indicated below: 

(i) AN/SQS–53/56 Kingfisher—up to 5 

hours over the course of 5 years (an 

average of 1 hour per year); 

(ii) Sub-bottom profiler (2–9 kHz)—up 

to 5 hours over the course of 5 years (an 

average of 1 hour per year); 

(iii) REMUS Modem—up to 60 hours 

over the course of 5 years (an average of 

12 hours per year); 

(iv) Sub-bottom profiler (2–16 kHz)— 

up to 5 hours over the course of 5 years 

(an average of 1 hour per year); 

(v) AN/SQQ–32—up to 5 hours over 

the course of 5 years (an average of 1 

hour per year); 

(vi) SAS–LF—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(vii) AN/WLD–1 RMS–ACL—up to 25 

hours over the course of 5 years (an 

average of 5 hours per year); 

(viii) BPAUV Sidescan (center 

frequency 75 kHz)—up to 190 hours 

over the course of 5 years (an average of 

38 hours per year); 

(ix) TVSS—up to 83 hours over the 

course of 5 years (an average of 16.5 

hours per year); 

(x) F84Y—up to 75 hours over the 

course of 5 years (an average of 15 hours 

per year); 

(xi) REMUS–SAS–HF—up to 125 

hours over the course of 5 years (an 

average of 25 hours per year); 

(xii) SAS–HF—up to 75 hours over 

the course of 5 years (an average of 15 

hours per year); 

(xiii) AN/AQS–20—up to 75 hours 

over the course of 5 years (an average of 

15 hours per year); and 

(xiv) BPAUV Sidescan (center 

frequency 120 kHz)—up to 125 hours 

over the course of 5 years (an average of 

25 hours per year). 

(4) Ordnance operations for U.S. Navy 

mission activities in territorial waters in 

the amounts indicated below: 

(i) Range 1 (0–10 lbs.)—up to 255 

detonations over the course of 5 years 

(an average of 51 detonations per year); 

(ii) Range 2 (11–75 lbs.)—up to 15 

detonations over the course of 5 years 

(an average of 3 detonations per year); 

and 

(iii) Line charges—up to 15 

detonations over the course of 5 years 

(an average of 3 detonations per year). 

(5) Ordnance operations for U.S. Navy 

mission activities in non-territorial 

waters in the amounts indicated below: 

(i) Range 3 (76–600 lbs.)—up to 80 

detonations over the course of 5 years 

(an average of 16 detonations per year). 

(ii) Reserved. 

(6) Projectile firing operations for U.S. 

Navy mission activities in nonterritorial waters in the amounts 

indicated below: 

(i) 5 in. Naval gunfire—up to 300 

rounds over the course of 5 years (an 

average of 60 rounds per year); 

(ii) 40 mm rounds—up to 2,400 

rounds over the course of 5 years (an 

average of 480 rounds per year); 

(iii) 30 mm rounds—up to 3,000 

rounds over the course of 5 years (an 

average of 600 rounds per year); 

(iv) 20 mm rounds—up to 14,835 

rounds over the course of 5 years (an 

average of 2,967 rounds per year); 

(v) 76 mm rounds—up to 1,200 

rounds over the course of 5 years (an 

average of 240 rounds per year); 

(vi) 25 mm rounds—up to 2,625 

rounds over the course of 5 years (an 

average of 525 rounds per year); and 

(vii) Small arms—up to 30,000 rounds 

over the course of 5 years (an average of 

6,000 rounds per year). 

§ 218.181 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 and 

218.186 of this chapter, the Holder of 

the Letter of Authorization may 

incidentally, but not intentionally, take 

marine mammals within the area 

described in § 218.180(b), provided the 

activity is in compliance with all terms, 

conditions, and requirements of these 

regulations and the appropriate Letter of 

Authorization. 

(b) The incidental take of marine 

mammals under the activities identified 

in § 218.180(c) is limited to the 

following species, by the indicated 

method of take and the indicated 

number of times: 

(1) Level B Harassment: 

(i) Sperm whale (Physeter 

macrocephalus)—10 (an average of 2 

annually), 

(ii) Risso’s dolphin (Grampus 

griseus)—10 (an average of 2 annually); 

(iii) Bottlenose dolphin (Tursiops 

truncatus)—3,070 (an average of 614 

annually); 

(iv) Atlantic spotted dolphin (Stenella 

frontalis)—2,355 (an average of 471 

annually); 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20195 

(v) Pantropical spotted dolphin (S. 

attenuata)—115 (an average of 23 

annually); 

(vi) Striped dolphin (S. 

coeruleoalba)—25 (an average of 5 

annually); 

(vii) Spinner dolphin (S. 

longirostris)—115 (an average of 23 

annually); 

(viii) Melon-headed whale 

(Peponocephala electra)—10 (an 

average of 2 annually); 

(ix) Short-finned pilot whale 

(Globicephala macrorhynchus)—5 (an 

average of 1 annually); 

(x) Clymene dolphin (S. clymene)—25 

(an average of 5 annually); 

(2) Level A Harassment: 

(i) Bottlenose dolphin (Tursiops 

truncatus)—10 (an average of 2 

annually); 

(ii) Atlantic spotted dolphin (Stenella 

frontalis)—10 (an average of 2 annually); 

(iii) Pantropical spotted dolphin (S. 

attenuata)—5 (an average of 1 annually); 

(ix) Spinner dolphin (Stenella 

longirostris)—5 (an average of 1 

annually). 

§ 218.182 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.181 and 

authorized by a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 218.186, no person in connection 

with the activities described in 

§ 218.180 may: 

(a) Take any marine mammal not 

specified in § 218.181(b); 

(b) Take any marine mammal 

specified in § 218.181(b) other than by 

incidental take as specified in 

§ 218.181(b)(1) and (2); 

(c) Take a marine mammal specified 

in § 218.181(b) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 

(d) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

these regulations or a Letter of 

Authorization issued under § 216.106 of 

this chapter and § 218.186. 

§ 218.183 Mitigation. 

(a) When conducting RDT&E activities 

identified in § 218.180(c), the mitigation 

measures contained in this subpart and 

subsequent Letters of Authorization 

issued under §§ 216.106 and 218.186 of 

this chapter must be implemented. 

These mitigation measures include, but 

are not limited to: 

(1) Mitigation Measures for HFAS/MFAS 

Operations 

(i) Personnel Training; 

(A) All marine observers onboard 

platforms involved in NSWC PCD 

RDT&E activities shall review the 

NMFS-approved Marine Species 

Awareness Training (MSAT) material 

prior to use of HFAS/MFAS. 

(B) Marine observers shall be trained 

in the most effective means to ensure 

quick and effective communication 

within the command structure in order 

to facilitate implementation of 

mitigation measures if marine species 

are spotted. 

(ii) Marine Observer and 

Watchstander Responsibilities; 

(A) On the bridge of surface vessels, 

there shall always be at least one to 

three marine species awareness trained 

observer(s) on watch whose duties 

include observing the water surface 

around the vessel. 

(1) For vessels with length under 65 

ft (20 m), there shall always be at least 

one marine observer on watch. 

(2) For vessels with length between 

65–200 ft (20–61 m), there shall always 

be at least two marine observers on 

watch. 

(3) For vessels with length above 200 

ft (61 m), there shall always be at least 

three marine observers on watch. 

(B) Each marine observer shall have at 

their disposal at least one set of 

binoculars available to aid in the 

detection of marine mammals. 

(C) On surface vessels equipped with 

AN/SQQ–53C/56, pedestal mounted 

‘‘Big Eye’’ (20 x 110) binoculars shall be 

present and in good working order to 

assist in the detection of marine 

mammals in the vicinity of the vessel. 

(D) Marine observer shall employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(E) Marine observers shall scan the 

water from the vessel to the horizon and 

be responsible for all contacts in their 

sector follow the below protocols: 

(1) In searching the assigned sector, 

the marine observer shall always start at 

the forward part of the sector and search 

aft (toward the back). 

(2) To search and scan, the marine 

observer shall hold the binoculars 

steady so the horizon is in the top third 

of the field of vision and direct the eyes 

just below the horizon. 

(3) The marine observer shall scan for 

approximately five seconds in as many 

small steps as possible across the field 

seen through the binoculars. 

(4) The marine observers shall search 

the entire sector in approximately fivedegree steps, pausing between steps for 

approximately five seconds to scan the 

field of view. 

(5) At the end of the sector search, the 

glasses would be lowered to allow the 

eyes to rest for a few seconds, and then 

the marine observer shall search back 

across the sector with the naked eye. 

(F) After sunset and prior to sunrise, 

marine observers shall employ Night 

Lookout Techniques in accordance with 

the Lookout Training Handbook. 

(G) At night, marine observers shall 

scan the horizon in a series of 

movements that would allow their eyes 

to come to periodic rests as they scan 

the sector. When visually searching at 

night, marine observers shall look a 

little to one side and out of the corners 

of their eyes, paying attention to the 

things on the outer edges of their field 

of vision. 

(H) Marine observers shall be 

responsible for reporting all objects or 

anomalies sighted in the water 

(regardless of the distance from the 

vessel) to the Test Director or the Test 

Director’s designee. 

(iii) Operating Procedures; 

(A) A Record of Environmental 

Consideration shall be included in the 

Test Plan prior to the test event to 

further disseminate the personnel 

testing requirement and general marine 

mammal mitigation measures. 

(B) Test Directors shall make use of 

marine species detection cues and 

information to limit interaction with 

marine species to the maximum extent 

possible consistent with safety of the 

vessel. 

(C) All personnel engaged in passive 

acoustic sonar operation (including 

aircraft or surface vessels) shall monitor 

for marine mammal vocalizations and 

report the detection of any marine 

mammal to the Test Director or the Test 

Director’s designee for dissemination 

and appropriate action. 

(D) During HFAS/MFAS mission 

activities, personnel shall utilize all 

available sensor and optical systems 

(such as Night Vision Goggles) to aid in 

the detection of marine mammals. 

(E) Navy aircraft participating in 

exercises at sea shall conduct and 

maintain surveillance for marine species 

of concern as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties. 

(F) Aircraft with deployed sonobuoys 

shall use only the passive capability of 

sonobuoys when marine mammals are 

detected within 200 yards of the 

sonobuoy. 

(G) Marine mammal detections shall 

be immediately reported to assigned 

Aircraft Control Unit for further 

dissemination to vessels in the vicinity 

of the marine species as appropriate 

where it is reasonable to conclude that 

the course of the vessel will likely result 

in a closing of the distance to the 

detected marine mammal. 

20196 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

(H) Safety Zones—When marine 

mammals are detected by any means 

(aircraft, shipboard marine observer, or 

acoustically) the Navy will ensure that 

HFAS/MFAS transmission levels are 

limited to at least 6 dB below normal 

operating levels if any detected marine 

mammals are within 1,000 yards (914 

m) of the sonar dome (the bow). 

(1) Vessels shall continue to limit 

maximum HFAS/MFAS transmission 

levels by this 6–dB factor until the 

marine mammal has been seen to leave 

the area, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yards (1,828 m) beyond 

the location of the last detection. 

(2) The Navy shall ensure that HFAS/ 

MFAS transmissions will be limited to 

at least 10 dB below the equipment’s 

normal operating level if any detected 

animals are within 500 yards (457 m) of 

the sonar dome. Vessels will continue to 

limit maximum ping levels by this 10– 

dB factor until the marine mammal has 

been seen to leave the area, has not been 

detected for 30 minutes, or the vessel 

has transited more than 2,000 yards 

(1,828 m) beyond the location of the last 

detection. 

(3) The Navy shall ensure that HFAS/ 

MFAS transmissions are ceased if any 

detected marine mammals are within 

200 yards (183 m) of the sonar dome. 

HFAS/MFAS will not resume until the 

marine mammal has been seen to leave 

the area, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yards (1,828 m) beyond 

the location of the last detection. 

(4) Special conditions applicable for 

dolphins and porpoises only: If, after 

conducting an initial maneuver to avoid 

close quarters with dolphins or 

porpoises, the Officer of the Deck 

concludes that dolphins or porpoises 

are deliberately closing to ride the 

vessel’s bow wave, no further mitigation 

actions are necessary while the dolphins 

or porpoises continue to exhibit bow 

wave riding behavior. 

(5) If the need for power-down should 

arise as detailed in ‘‘Safety Zones’’ 

above, Navy shall follow the 

requirements as though they were 

operating at 235 dB—the normal 

operating level (i.e., the first powerdown will be to 229 dB, regardless of at 

what level above 235 sonar was being 

operated). 

(I) Prior to start up or restart of active 

sonar, operators will check that the 

Safety Zone radius around the sound 

source is clear of marine mammals. 

(J) Sonar levels (generally)—Navy 

shall operate sonar at the lowest 

practicable level, not to exceed 235 dB, 

except as required to meet RDT&E 

objectives. 

(K) Helicopters shall observe/survey 

the vicinity of mission activities for 10 

minutes before the first deployment of 

active (dipping) sonar in the water. 

(L) Helicopters shall not dip their 

sonar within 200 yards (183 m) of a 

marine mammal and shall cease pinging 

if a marine mammal closes within 200 

yards (183 m) after pinging has begun. 

(M) Submarine sonar operators shall 

review detection indicators of closeaboard marine mammals prior to the 

commencement of mission activities 

involving active mid-frequency and 

high frequency sonar. 

(2) Proposed Mitigation Measures for 

Ordnance and Projectile Firing 

(i) No detonations over 34 kg (75 lb) 

shall be conducted in territorial waters, 

except the line charge detonation, 

which is a 107 m (350 ft). 

(ii) The number of live mine 

detonations shall be minimized and the 

smallest amount of explosive material 

possible to achieve test objectives will 

be used. 

(iii) Activities shall be coordinated 

through the Environmental Help Desk to 

allow potential concentrations of 

detonations in a particular area over a 

short time to be identified and avoided. 

(iv) Visual surveys and aerial surveys 

of the clearance zones specified in 

§ 218.183(2)(vi)(A)–(C)shall be 

conducted in accordance with 

§ 218.184(e) for all test operations that 

involve detonation events with large net 

explosive weight (NEW). Any protected 

species sighted will be reported. 

(v) Line charge tests shall not be 

conducted during the nighttime. 

(vi) Additional mitigation measures 

shall be determined through the NSWC 

PCD’s Environmental Review Process 

based on test activities including the 

size of detonations, test platforms, and 

environmental effects documented in 

the Navy’s EIS/OEIS. Clearance zones 

must be determined based on the upper 

limit of different ranges of net explosive 

weight (NEW) used in the tests, as listed 

below: 

(A) NEW between 76–600 lb: 

clearance zone is 2,863 m; 

(B) NEW between 11–75 lb: clearance 

zone is 997 m; and 

(C) NEW under 11 lb: clearance zone 

is 345 m. 

(3) Proposed Mitigation Measures for 

Surface Operations and Other 

Activities: 

(i) While underway, vessels shall have 

at least one to three marine species 

awareness trained observers (based on 

vessel length) with binoculars. As part 

of their regular duties, marine observers 

shall watch for and report to the Test 

Director or Test Director’s designee the 

presence of marine mammals. 

(A) For vessels with length under 65 

ft (20 m), there shall always be at least 

one marine observer on watch. 

(B) For vessels with length between 

65–200 ft (20–61 m), there shall always 

be at least two marine observers on 

watch. 

(C) For vessels with length above 200 

ft (61 m), there shall always be at least 

three marine observers on watch. 

(ii) Marine observers shall employ 

visual search procedures employing a 

scanning method in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(iii) While in transit, naval vessels 

shall be alert at all times, use extreme 

caution, and proceed at a ‘‘safe speed’’ 

(the minimum speed at which mission 

goals or safety will not be compromised) 

so that the vessel can take proper and 

effective action to avoid a collision with 

any marine animal and can be stopped 

within a distance appropriate to the 

prevailing circumstances and 

conditions. 

(iv) When marine mammals have been 

sighted in the area, Navy vessels shall 

increase vigilance and shall implement 

measures to avoid collisions with 

marine mammals and avoid activities 

that might result in close interaction of 

naval assets and marine mammals. 

Actions shall include changing speed 

and/or direction and are dictated by 

environmental and other conditions 

(e.g., safety, weather). 

(v) Naval vessels shall maneuver to 

keep at least 500 yd (460 m) away from 

any observed whale and avoid 

approaching whales head-on. This 

requirement does not apply if a vessel’s 

safety is threatened, such as when 

change of course will create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in their ability to 

maneuver. Vessels shall take reasonable 

steps to alert other vessels in the 

vicinity of the whale. 

(vi) Where feasible and consistent 

with mission and safety, vessels shall 

avoid closing to within 200 yards (183 

m) of marine mammals other than 

whales. 

(vii) All vessels shall maintain logs 

and records documenting RDT&E 

activities should they be required for 

event reconstruction purposes. Logs and 

records shall be kept for a period of 30 

days following completion of a RDT&E 

mission activity. 

(b) [Reserved] 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20197 

§ 218.184 Requirements for monitoring 

and reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§§ 216.106 and 218.186 for activities 

described in § 218.180(c) is required to 

cooperate with the NMFS when 

monitoring the impacts of the activity 

on marine mammals. 

(b) The Holder of the Authorization 

must notify NMFS immediately (or as 

soon as clearance procedures allow) if 

the specified activity identified in 

§ 218.180(c) is thought to have resulted 

in the mortality or injury of any marine 

mammals, or in any take of marine 

mammals not identified or authorized in 

§ 218.181(b). 

(c) The Holder of the Letter of 

Authorization must conduct all 

monitoring and/or research required 

under the Letter of Authorization. 

(d) The Navy shall complete an 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan in 2009. This 

planning and adaptive management tool 

shall include: 

(1) A method for prioritizing 

monitoring projects that clearly 

describes the characteristics of a 

proposal that factor into its priority. 

(2) A method for annually reviewing, 

with NMFS, monitoring results, Navy 

R&D, and current science to use for 

potential modification of mitigation or 

monitoring methods. 

(3) A detailed description of the 

Monitoring Workshop to be convened in 

2011 and how and when Navy/NMFS 

will subsequently utilize the findings of 

the Monitoring Workshop to potentially 

modify subsequent monitoring and 

mitigation. 

(4) An adaptive management plan. 

(5) A method for standardizing data 

collection for the NSWC PCD Study 

Area and across other locations. 

(e) The Holder of the Letter of 

Authorization shall, when conducting 

training events in the NSWC PCD Study 

Area, implement the following 

monitoring methods: 

(1) Visual Surveys—Vessel, Aerial 

and Shore-based 

(i) In accordance with all safety 

considerations, observations shall be 

maximized by working from all 

available platforms: vessels, aircraft, 

land and/or in combination. 

(ii) Vessel and aerial surveys shall be 

conducted two days before, during, and 

one to five days after the NSWC PCD 

mission activities on commercial vessels 

and aircraft. 

(iii) Visual surveys shall be conducted 

during Navy mission activities that have 

been identified to provide the highest 

likelihood of success. 

(iv) The visual survey team shall 

collect the same data that are collected 

by Navy marine observers, including but 

not limited to: 

(A) Location of sighting; 

(B) Species (or to the lowest taxa 

possible); 

(C) Number of individuals; 

(D) Number of calves present, if any; 

(E) Duration of sighting; 

(F) Behavior of marine animals 

sighted; 

(G) Direction of travel; 

(H) Environmental information 

associated with sighting event including 

Beaufort sea state, wave height, swell 

direction, wind direction, wind speed, 

glare, percentage of glare, percentage of 

cloud cover; and 

(I) When in relation to Navy exercises 

did the sighting occur (before, during or 

after detonations/exercise). 

(v) Animal sightings and relative 

distance from a particular activity site 

shall be used post survey to estimate the 

number of marine mammals exposed to 

different received levels (energy and 

pressure of discharge based on distance 

to the source, bathymetry, 

oceanographic conditions and the type 

and size of detonation) and their 

corresponding behavior. 

(vi) Any digital photographs that are 

taken of marine mammals during visual 

surveys shall be provided to local 

researchers for their regional research. 

(A) Aerial surveys: 

(1) During NSWC PCD mission 

activities, an aerial survey team shall fly 

transects relative to a Navy surface 

vessel that is conducting the mission 

activities. 

(2) The aerial survey team shall 

collect both visual sightings and 

behavioral observations of marine 

animals. 

(3) These transect data shall provide 

an opportunity to collect data of marine 

mammals at different received levels 

and their behavioral responses and 

movement relative to the Navy vessel’s 

position. 

(4) Aerial surveys shall include time 

with and without test events in order to 

compare density, geographical 

distribution and behavioral 

observations. 

(5) Behavioral observation methods 

shall involve three professionally 

trained marine mammal observers and a 

pilot. Two observers shall observe 

behaviors, one with hand-held 

binoculars and one with the naked eye. 

(6) Detailed behavioral focal 

observations of cetaceans shall be 

recorded including the following 

variables where possible: species (or to 

the lowest taxa possible), group size and 

composition (number of calves, etc.), 

latitude/longitude, surface and dive 

durations and times, number and 

spacing/times of respirations, 

conspicuous behaviors (e.g., breach, tail 

slap, etc.), behavioral states, orientation 

and changes in orientation, estimated 

group travel speed, inter-individual 

distances, defecation, social 

interactions, aircraft speed, aircraft 

altitude, distance to focal group (using 

the plane’s radar) and any unusual 

behaviors or apparent reactions. 

(B) Vessel Surveys: 

(1) Vessel surveys shall be designed to 

maximize detections of any target 

species near mission activity event for 

focal follows. 

(2) Systematic transects shall be used 

to locate marine mammals. In the course 

of conducting these surveys, the 

vessel(s) shall deviate from transect 

protocol to collect behavioral data 

particularly if a Navy vessel is visible on 

the horizon or closer. 

(3) While the Navy vessels are within 

view, attempts shall be made to position 

the dedicated survey vessel in the best 

possible way to obtain focal follow data 

in the presence of the Navy mission 

activities. If Navy vessels are not in 

view, then the vessel shall begin a 

systematic line transect surveys within 

the area to assess marine mammal 

occurrence and observe behavior. 

(4) Post-analysis shall focus on how 

the location, speed and vector of the 

survey vessel and the location and 

direction of the sonar source (e.g., Navy 

surface vessel) relates to the animal. 

(5) Any other vessels or aircraft 

observed in the area shall also be 

documented. 

(C) Shore-based Surveys: 

(1) Shore-based monitors shall 

observe explosive events that are 

planned in advance to occur adjacent to 

nearshore areas where there are elevated 

coastal structures (e.g., lookout tower at 

Eglin Air Force Base) or topography, 

and shall use binoculars or theodolite to 

augment other visual survey methods. 

(2) Shore-based surveys of the 

detonation area and nearby beaches 

shall be conducted for stranded marine 

animals following nearshore events. If 

any distressed, injured or stranded 

animals are observed, an assessment of 

the animal’s condition (alive, injured, 

dead, or degree of decomposition) shall 

be reported immediately to the Navy for 

appropriate action and the information 

shall be transmitted immediately to 

NMFS. 

(3) If animals are observed prior to or 

during an explosion, a focal follow of 

that individual or group shall be 

conducted to record behavioral 

responses. 

20198 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 

(2) Passive Acoustic Monitoring 

(PAM): 

(i) The Navy shall deploy a stationary, 

bottom-set hydrophone array in the 

NSWC PCD Study Area for PAM. 

(ii) The array shall be deployed for 

each of the days the ship is at sea. 

(iii) The array shall be able to detect 

low frequency vocalizations (less than 

1,000 Hz) for baleen whales and 

relatively high frequency vocalizations 

(up to 30 kHz) for odontocetes. 

(iv) These buoys shall be left in place 

for a long enough duration (e.g., 

months) that data are collected before, 

during and outside of mission activities. 

(v) Acoustic data collected from the 

buoys shall be used in order to detect, 

locate, and potentially track calling 

whales/dolphins. 

(3) Marine Mammal Observers on 

Navy vessels: 

(i) Civilian Marine Mammal Observers 

(MMOs) aboard Navy vessels shall be 

used to research the effectiveness of 

Navy lookouts, as well as for data 

collection during other monitoring 

surveys. 

(ii) MMOs shall be field-experienced 

observers that are Navy biologists or 

contracted observers. 

(iii) MMOs shall be placed alongside 

existing Navy marine observers during a 

sub-set of RDT&E events. 

(iv) MMOs shall inform the Navy 

marine observer of any marine mammal 

sighting so that appropriate action may 

be taken by the chain of command. For 

less biased data, it is recommended that 

MMOs schedule their daily observations 

to duplicate the marine observers’ 

schedule. 

(v) MMOs shall monitor for marine 

mammals from the same height above 

water as the lookouts (e.g. bridge wings) 

and as all visual survey teams, and they 

shall collect the same data collected by 

Navy marine observers, including but 

not limited to: 

(A) Location of sighting; 

(B) Species; 

(C) Number of individuals; 

(D) Number of calves present, if any; 

(E) Duration of sighting; 

(F) Behavior of marine animals 

sighted; 

(G) Direction of travel; 

(H) Environmental information 

associated with sighting event including 

Beaufort sea state, wave height, swell 

direction, wind direction, wind speed, 

glare, percentage of glare, percentage of 

cloud cover; and 

(I) When in relation to Navy exercises 

did the sighting occur (before, during or 

after detonations/exercise). 

(f) Monitoring Report—The Navy 

shall submit a report annually on 

September 1 describing the 

implementation and results (through 

June 1 of the same year) of the 

monitoring required in § 218.184(e). 

(g) NSWC PCD Comprehensive 

Report—The Navy shall submit to 

NMFS a draft report that analyzes and 

summarizes all of the multi-year marine 

mammal information gathered during 

sonar and explosive exercises for which 

individual reports are required in 

§ 218.184 (d–f). This report will be 

submitted at the end of the fourth year 

of the rule (November 2012), covering 

activities that have occurred through 

June 1, 2012. 

(h) The Navy shall respond to NMFS 

comments on the draft comprehensive 

report if submitted within 3 months of 

receipt. The report will be considered 

final after the Navy has addressed 

NMFS’ comments, or three months after 

the submittal of the draft if NMFS does 

not comment by then. 

(i) In 2011, the Navy shall convene a 

Monitoring Workshop in which the 

Monitoring Workshop participants will 

be asked to review the Navy’s 

Monitoring Plans and monitoring results 

and make individual recommendations 

(to the Navy and NMFS) of ways of 

improving the Monitoring Plans. The 

recommendations shall be reviewed by 

the Navy, in consultation with NMFS, 

and modifications to the Monitoring 

Plan shall be made, as appropriate. 

§ 218.185 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations, the U.S. 

citizen (as defined by § 216.103 of this 

chapter) conducting the activity 

identified in § 218.180(c) (the U.S. 

Navy) must apply for and obtain either 

an initial Letter of Authorization in 

accordance with § 218.186 or a renewal 

under § 218.187. 

§ 218.186 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 218.187. 

(b) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

subsistence uses (i.e., mitigation); and 

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization will be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 218.187 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 218.186 for the 

activity identified in § 218.180(c) will be 

renewed annually upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.185 shall be 

undertaken and that there will not be a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming 12 months; 

(2) Timely receipt of the monitoring 

reports required under § 218.184(b); and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.183 and 

the Letter of Authorization issued under 

§§ 216.106 and 218.186, were 

undertaken and will be undertaken 

during the upcoming annual period of 

validity of a renewed Letter of 

Authorization. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 218.187 indicates that a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, the NMFS 

will provide the public a period of 30 

days for review and comment on the 

request. Review and comment on 

renewals of Letters of Authorization are 

restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) NMFS, in response to new 

information and in consultation with 

the Navy, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation 

and monitoring set forth in the preamble 

of these regulations. Below are some of 

the possible sources of new data that 

could contribute to the decision to 

modify the mitigation or monitoring 

measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Proposed Rules 20199 

(either from NSWC PCD Study Area or 

other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (§ 218.184(i)). 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 218.184(d)). 

(4) Results from specific stranding 

investigations (either from the NSWC 

PCD Study Area or other locations). 

(5) Results from the Long Term 

Prospective Study described in the 

preamble to these regulations. 

(6) Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

(7) Any information which reveals 

that marine mammals may have been 

taken in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

§ 218.188 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS, issued 

pursuant to § 216.106 of this chapter 

and § 218.186 and subject to the 

provisions of this subpart shall be made 

until after notification and an 

opportunity for public comment has 

been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 218.187, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the wellbeing of the species or stocks of marine 

mammals specified in § 218.181(b), a 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and 

§ 218.186 may be substantively 

modified without prior notification and 

an opportunity for public comment. 

Notification will be published in the 

Federal Register within 30 days 

subsequent to the action. 

[FR Doc. E9–9645 Filed 4–29–09; 8:45 am] 

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