60836 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 0808061069–81171–01] 

RIN 0648–AW91 

Taking and Importing Marine 

Mammals; U.S. Navy Training in the 

Southern California Range Complex 

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 training activities 

conducted in the Southern California 

Range Complex (SOCAL), which 

extends south and southwest off the 

southern California coast, for the period 

of January 2009 through January 2014. 

Pursuant to the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take and requesting information, 

suggestions, and comments on these 

proposed regulations. 

DATES: Comments and information must 

be received no later than November 13, 

2008. 

ADDRESSES: You may submit comments, 

identified by 0648–AW91, 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. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: Jolie 

Harrison, Office of Protected Resources, 

NMFS, (301) 713–2289, ext. 166. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of the Navy’s application may 

be obtained by writing to the address 

specified above (see ADDRESSES), 

telephoning the contact listed above (see 

FOR FURTHER INFORMATION CONTACT), or 

visiting the internet at: http:// 

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

incidental.htm. The Navy’s Draft 

Environmental Impact Statement (DEIS) 

for SOCAL was published on April 4, 

2008, and may be viewed at http:// 

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

incidental.htm. NMFS is participating 

in the development of the Navy’s EIS as 

a cooperating agency under NEPA. 

Background 

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

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

the Secretary of Commerce (Secretary) 

to allow, upon request, the incidental, 

but not intentional taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) during periods of 

not more than five consecutive years 

each if certain findings are made and 

regulations are issued or, if the taking is 

limited to harassment, notice of a 

proposed authorization is provided to 

the public for review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and if the permissible methods of taking 

and requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as: 

An impact resulting from the specified 

activity that cannot be reasonably expected 

to, and is not reasonably likely to, adversely 

affect the species or stock through effects on 

annual rates of recruitment or survival. 

The National Defense Authorization 

Act of 2004 (NDAA) (Pub. L. 108–136) 

modified the MMPA by removing the 

‘‘small numbers’’ and ‘‘specified 

geographical region’’ limitations and 

amended the definition of ‘‘harassment’’ 

as it applies to a ‘‘military readiness 

activity’’ to read as follows (Section 

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

(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 from the Navy requesting 

authorization for the take of individuals 

of 37 species of marine mammals 

incidental to upcoming Navy training 

activities, maintenance, and research, 

development, testing, and evaluation 

(RDT&E) activities to be conducted 

within SOCAL, which extends 

southwest approximately 600 nm in the 

general shape of a 200-nm wide 

rectangle (see the Navy’s application), 

over the course of 5 years. These 

training activities are military readiness 

activities under the provisions of the 

NDAA. The Navy states, and NMFS 

concurs, that these military readiness 

activities may incidentally take marine 

mammals present within SOCAL by 

exposing them to sound from midfrequency or high frequency active 

sonar (MFAS/HFAS) or underwater 

detonations. The Navy requests 

authorization to take individuals of 37 

species of marine mammals by Level B 

Harassment. Further, though they do not 

anticipate it to occur, the Navy requests 

authorization to take, by injury or 

mortality, up to 10 beaked whales over 

the course of the 5-yr regulations. 

Background of Request 

The Navy’s mission is to maintain, 

train, and equip combat-ready naval 

forces capable of winning wars, 

deterring aggression, and maintaining 

freedom of the seas. Title 10, U.S. Code 

(U.S.C.) 5062 directs the Chief of Naval 

Operations to train all naval forces for 

combat. The Chief of Naval Operations 

meets that direction, in part, by 

conducting at-sea training exercises and 

ensuring naval forces have access to 

ranges, operating areas (OPAREAs) and 

airspace where they can develop and 

maintain skills for wartime missions 

and conduct research, development, 

testing, and evaluation (RDT&E) of naval 

weapons systems. 

The Navy proposes to implement 

actions within the SOCAL Range 

Complex to: 

• Increase training and RDT&E 

operations from current levels as 

necessary to support the Navy-wide 

training plan, known as the Fleet 

Readiness Training Plan (FRTP); 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60837 

• Accommodate mission 

requirements associated with force 

structure changes and introduction of 

new weapons and systems to the Fleet; 

and 

• Implement enhanced range 

complex capabilities. 

The Proposed Action would result in 

selectively focused but critical increases 

in training, and range enhancements 

(including the establishment and use of 

a shallow-water minefield and 

construction of a shallow-water training 

range) to address testing and training 

resource shortfalls, as necessary to 

ensure the SOCAL Range Complex 

supports Navy and Marine Corps 

training and readiness objectives. The 

proposed action would result in 

approximately a 12-percent increase in 

the amount of MFAS/HFAS currently 

used. 

Overview of SOCAL Range Complex 

The U.S. Navy has been training and 

operating in the area now defined as the 

SOCAL Range Complex for over 70 

years. The SOCAL Range Complex has 

three primary components: Ocean 

Operating Areas (SOCAL OPAREAs), 

Special Use Airspace (SUA), and San 

Clemente Island (SCI). The Range 

Complex is situated between Dana Point 

and San Diego, and extends more than 

600 nautical miles (nm) (1,111 

kilometers (km)) southwest into the 

Pacific Ocean (See the Navy’s 

application). The components of the 

SOCAL Range Complex encompass 

120,000 square nm (nm2) (411,600 

square km (km2)) of sea space, 113,000 

nm2 (387,500 km2) of SUA, and over 42 

nm2 (144 km2) of land (SCI). To 

facilitate range management and 

scheduling, the SOCAL Range Complex 

is divided into numerous subcomponent ranges and training areas, 

which are described below. 

SOCAL OPAREAS 

The ocean areas of the SOCAL Range 

Complex include surface and subsurface 

OPAREAs extending generally 

southwest from the coastline of 

southern California between Dana Point 

and San Diego for approximately 600 

nm into international waters to the west 

of Baja California, Mexico. Most of the 

SOCAL OPAREAS are located under the 

Warning Area 291 Airspace mentioned 

below. Several SOCAL OPAREAs do not 

lie under W–291. These OPAREAS are 

used for ocean surface and subsurface 

training. Military aviation activities may 

be conducted in airspace that is not 

designated as SUA, however, these 

aviation activities do not include use of 

live or inert ordnance. 

Special Use Airspace (SUA) 

The SOCAL Range Complex includes 

military airspace designated as Warning 

Area 291 (W–291). W–291 comprises 

113,000 nm2 (209,276 km2) of SUA that 

generally overlies the SOCAL OPAREAs 

and SCI, extending to the southwest 

from approximately 12 nm (22 km) off 

the coast to approximately 600 nm 

(1,111 km). W–291 is the largest 

component of SUA in the Navy’s range 

inventory. 

San Clemente Island (SCI) 

SCI, a component part of the SOCAL 

Range Complex, is comprised of existing 

land ranges and training areas that are 

integral to training of Pacific Fleet air, 

surface, and subsurface units; First 

Marine Expeditionary Force (I MEF) 

units; Naval Special Warfare (NSW) 

units; and selected formal schools. SCI 

provides instrumented ranges, operating 

areas, and associated facilities to 

conduct and evaluate a wide range of 

exercises within the scope of naval 

warfare. SCI also provides ranges and 

services for RDT&E activities. Over 20 

Navy and Marine Corps commands 

conduct training and testing activities 

on SCI. Due to its unique capabilities to 

support multiple training operations, 

SCI training activities encompass every 

Navy primary mission area (PMAR), and 

SCI provides critical training resources 

for Expeditionary Strike Group (ESG), 

Carrier Strike Group (CSG), and Marine 

Expeditionary Unit (MEU) certification 

exercises. 

SCI provides an extensive suite of 

range capabilities for tactical training. 

SCI includes a Shore Bombardment 

Area (SHOBA), landing beaches, several 

live-fire training areas and ranges 

(TARs) for small arms, maneuver areas, 

and other dedicated ranges for the 

conduct of training in all Primary 

Mission Areas (PMARs). SCI includes 

extensive instrumentation, and provides 

robust opposing force simulation and 

targets for use in land, sea-based, and air 

live-fire training. SCI also contains an 

airfield and other infrastructure for 

training and logistical support. 

Overlap With Point Mugu Sea Range for 

Certain Anti-Submarine Warfare 

Training (ASW) 

The Point Mugu Sea Range is a Navy 

ocean range area north of and generally 

adjacent to the SOCAL Range Complex. 

ASW training conducted in the course 

of major exercises occurs across the 

boundaries of the SOCAL Range 

Complex into the Point Mugu Sea 

Range. These cross-boundary events are 

addressed in this authorization request. 

Description of Specified Activities 

As mentioned above, the Navy has 

requested MMPA authorization to take 

marine mammals incidental to training 

activities in the SOCAL Range Complex 

that would result in the generation of 

sound or pressure waves in the water at 

or above levels that NMFS has 

determined will likely result in take (see 

Acoustic Take Criteria Section), either 

through the use of MFAS/HFAS or the 

detonation of explosives in the water. 

These activities are discussed below. 

Activities Utilizing Active Sonar Sources 

For the SOCAL Range Complex, the 

training activities that utilize active 

tactical sonar sources fall into the 

category of Anti-submarine Warfare 

(ASW) exercises. This section includes 

a description of ASW, the active 

acoustic devices used in ASW exercises, 

as well as the exercise types in which 

these acoustic sources are used. 

ASW Training and Active Sonar 

ASW involves helicopter and sea 

control aircraft, ships, and submarines, 

operating alone or in combination, in 

operations to locate, track, and 

neutralize submarines. Controlling the 

undersea battlespace is a unique naval 

capability and a vital aspect of sea 

control. Undersea battlespace 

dominance requires proficiency in 

ASW. Every deploying strike group and 

individual ASW-capable combatant 

must possess this capability. 

Various types of active and passive 

sonars are used by the Navy to 

determine water depth, locate mines, 

and identify, track, and target 

submarines. Passive sonar ‘‘listens’’ for 

sound waves by using underwater 

microphones, called hydrophones, 

which receive, amplify and process 

underwater sounds. No sound is 

introduced into the water when using 

passive sonar. Passive sonar can 

indicate the presence, character and 

movement of submarines. Passive sonar, 

alternatively, provides only a bearing 

(direction) to a sound-emitting source; it 

does not provide an accurate range 

(distance) to the source. Active sonar is 

needed to locate objects because active 

sonar provides both bearing and range 

to the detected contact (such as an 

enemy submarine). 

Active sonar transmits pulses of 

sound that travel through the water, 

reflect off objects and return to a 

receiver. By knowing the speed of sound 

in water and the time taken for the 

sound wave to travel to the object and 

back, active sonar systems can quickly 

calculate direction and distance from 

the sonar platform to the underwater 


sroberts on PROD1PC70 with PROPOSALS
60838 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

object. There are three types of active 

sonar: Low-frequency, mid-frequency, 

and high-frequency. 

Low-frequency sonar operates below 1 

kilohertz (kHz) and is designed to detect 

extremely quiet diesel-electric 

submarines at ranges far beyond the 

capabilities of mid-frequency active 

sonars. There are only two ships in use 

by the U.S. Navy that are equipped with 

low-frequency sonar; both are ocean 

surveillance vessels operated by 

Military Sealift Command. Lowfrequency active sonar is not presently 

utilized in the SOCAL Range Complex, 

and use of low-frequency active sonar is 

not contemplated in the Proposed 

Action. 

High-frequency active sonar (HFAS), 

operates at frequencies greater than 10 

kilohertz (kHz). At higher acoustic 

frequencies, sound rapidly dissipates in 

the ocean environment, resulting in 

short detection ranges, typically less 

than five nm. High-frequency sonar is 

used primarily for determining water 

depth, hunting mines and guiding 

torpedoes. 

Mid-frequency active sonar (MFAS) 

operates between 1 and 10 kHz, with 

detection ranges up to 10 nautical miles 

(nm). Because of this detection ranging 

capability, MFAS is the Navy’s primary 

tool for conducting ASW. Many ASW 

experiments and exercises have 

demonstrated that this improved 

capability for long range detection of 

adversary submarines before they are 

able to conduct an attack is essential to 

U.S. ship survivability. Today, ASW is 

the Navy’s #1 war-fighting priority. 

Navies across the world utilize modern, 

quiet, diesel-electric submarines which 

pose the primary threat to the U.S. 

Navy’s ability to perform a number of 

critically necessary missions. Extensive 

training is necessary of sailors, ASWcapable units, and strike groups are to 

gain proficiency in using MFAS. If a 

strike group does not demonstrate 

MFAS proficiency, it cannot be certified 

as combat ready. 

Acoustic Sources Used for ASW 

Exercises in SOCAL 

Modern sonar technology has 

developed a multitude of sonar sensor 

and processing systems. In concept, the 

simplest active sonars emit omnidirectional pulses (‘‘pings’’) and time 

the arrival of the reflected echoes from 

the target object to determine range. 

More sophisticated active sonar emits 

an omni-directional ping and then 

rapidly scans a steered receiving beam 

to provide directional, as well as range, 

information. More advanced active 

sonars transmit multiple preformed 

beams, listening to echoes from several 

directions simultaneously and 

providing efficient detection of both 

direction and range. The types of active 

sonar sources employed during ASW 

active sonar training exercises in the 

SOCAL Range Complex are identified in 

Table 1. 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.025</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60839 

BILLING CODE 3510–22–C 

ASW sonar systems are deployed 

from certain classes of surface ships, 

submarines, helicopters, and fixed wing 

maritime patrol aircraft (Table 1). The 

surface ships used are typically 

equipped with hull-mounted sonars 

(active and passive) and towed-array 

passive sonar for the detection of 

submarines. Helicopters equipped with 

dipping sonar or sonobuoys are utilized 

to locate submarines or submarine 

targets within the training area. In 

addition, fixed wing marine patrol 

aircraft (MPA) are used to deploy both 

active and passive sonobuoys to assist 

in locating and tracking submarines 

during the duration of the exercise. 

Submarines are equipped with hullmounted sonars sometimes used to 

locate and prosecute other submarines 

and/or surface ships during the exercise. 

The platforms used in ASW exercises 

are identified below. 

Surface Ship Sonars—A variety of 

surface ships participate in testing and 

training events. Some ships (e.g., aircraft 

carriers, amphibious assault ships) do 

not have any onboard active sonar 

systems, other than fathometers. Others, 

like guided missile cruisers, are 

equipped with active as well as passive 

tactical sonars for mine avoidance and 

submarine detection and tracking. For 

purposes of the analysis, the SQS–53 

was modeled as having a nominal 

source level of 235 decibels (dB) re 

1 μPa @ 1 m, and the SQS–56 was 

modeled as having a nominal source 

level of 225 decibels (dB) re 1 μPa @ 1 

m. Sonar ping transmission durations 

were modeled as lasting 1 second per 

ping and omni-directional, which is a 

conservative assumption that will 

overestimate potential effects. Actual 

ping durations will be less than 1 

second. The SQS–53 hull-mounted 

sonar transmits at center frequencies of 

2.6 kHz and 3.5 kHz. The SQS–56 sonar 

transmits at a center frequency of 7.5 

kHz. Details concerning the tactical use 

of specific frequencies and the 

repetition rate for the sonar pings is 

classified but was modeled based on the 

required tactical training setting. 

Hull-mounted active sonars 

occasionally operate in a mode called 

‘‘Kingfisher,’’ which is designed to 

better detect smaller objects. The 

Kingfisher mode uses the same source 

level and frequency as normal search 

modes, however, it uses a different 

waveform (designed for small objects), a 

shorter pulse length (< 1 sec), a higher 

pulse repetition rate (due to the short 

ranges), and the ping is not 

omnidirectional, but directed forward. 

Submarine Sonars—Submarine active 

and passive sonars are used to detect 

and target enemy submarines and 

surface ships. Because submarine MF 

active sonar (AN/BQQ–10) use is very 

rare and in those rare instances, very 

brief (only approximately 2 pings per 

hour), it is extremely unlikely that use 

of active sonar by submarines would 

have any measurable effect on marine 

mammals. However, submarine sonar 

was included in the modeling for 

estimating exposures of marine 

mammals to sonar sounds. Estimates of 

exposure are also included for the HF 

AN/BQQ–15 which is used for 

navigation. 

Aircraft Sonar Systems—Aircraft 

sonar systems that would operate in the 

SOCAL Range Complex include DICASS 

sonobuoys (AN/SSQ–62; source level of 

201 dB) and dipping sonar (AN/AQS– 

22). Sonobuoys may be deployed by 

maritime patrol aircraft or helicopters; 

dipping sonars are used by carrier-based 

helicopters. A sonobuoy is an 

expendable device used by aircraft for 

the detection of underwater acoustic 

energy and for conducting vertical water 

column temperature measurements. 

Most sonobuoys are passive, but some 

can generate active acoustic signals, as 

well as listen passively. Dipping sonar 

is an active or passive sonar device 

lowered on cable by helicopters to 

detect or maintain contact with 

underwater targets. During ASW 

training, these systems active modes are 

only used briefly for localization of 

contacts and are not used in primary 

search capacity. Because active mode 

dipping sonar use is very brief and has 

a lower normal source level than hullmounted active sonars, it is extremely 

unlikely its use would have any effect 

on marine mammals. However, the AN/ 

AQS–22 dipping sonar was modeled 

based on estimated use during major 

training exercises within the SOCAL 

Range Complex. 

Extended Echo Ranging and Improved 

Extended Echo Ranging (EER/IEER) 

Systems—EER/IEER are airborne ASW 

systems used in conducting large area 

searches for submarines. These systems 

are made up of airborne avionics, ASW 

acoustic processing and sonobuoy types 

that are deployed in pairs. The IEER 

System’s active sonobuoy component, 

the AN/SSQ–110A Sonobuoy, would 

generate a sonar ‘‘ping’’ (actually small 

explosive detonation) and the passive 

AN/SSQ–101A ADAR Sonobuoy would 

‘‘listen’’ for the return echo of the sonar 

ping that has been bounced off the 

surface of a submarine. These 

sonobuoys are designed to provide 

underwater acoustic data necessary for 

naval aircrews to quickly and accurately 

detect submerged submarines. The 

sonobuoy pairs are dropped from a 

fixed-wing aircraft into the ocean in a 

predetermined pattern with a few buoys 

covering a very large area. The AN/ 

SSQ–110A Sonobuoy Series is an 

expendable and commandable 

sonobuoy. Upon command from the 

aircraft, the bottom payload is released 

to sink to a designated operating depth. 

A second command is required from the 

aircraft to cause the second payload to 

release and detonate generating a 

‘‘ping’’. There is only one detonation in 

the pattern of buoys at a time. The AN/ 

SSQ–110A is listed in this table because 

it functions like a sonar ping, however, 

the source creates an explosive 

detonation and its effects are considered 

in the underwater explosive section. 

Torpedoes—Torpedoes are the 

primary ASW weapon used by surface 

ships, aircraft, and submarines. The 

guidance systems of these weapons can 

be autonomous or electronically 

controlled from the launching platform 

through an attached wire. The 

autonomous guidance systems are 

acoustically based. They operate either 

passively, exploiting the emitted sound 

energy by the target, or actively, by 

reflecting a sonar signal off the target 

and using the received echoes for 

guidance. The MK–48 torpedo was 

modeled for active sonar transmissions 

during specified training operations 

within the SOCAL Range Complex. The 

MK–48 sonar with a higher source level 

was also conservatively used to account 

for MK–46 torpedo exercises. 

Other Acoustic Sources—The Navy 

also utilizes the sources listed below in 

ASW exercises. However, based on 

operational characteristics (such as 

frequency and source level), the Navy 

determined that use of the following 

acoustic sources would not likely result 

in the take of marine mammals: 

• Acoustic Device Countermeasures 

(ADC)—Several types of acoustic 

counter measure devices could be 

deployed during Fleet training 

exercises, including the free-floating 

submarine launched Acoustic Device 

Countermeasure (MK–1, MK–2, MK–3, 

MK–4), the free-floating submarine 

launched Noise Acoustic Emitter (NAE), 

and the surface ship towed AN/SLQ– 

25A (NIXIE). Countermeasure devices 

are submarine simulators and act as 

decoys to avert localization and torpedo 

attacks. 

• Training Targets—ASW training 

targets consisting of MK–30 and/or MK– 

39 EMATT are used to simulate 

opposition submarines. They are 

equipped with one or a combination of 

the following devices: (1) Acoustic 

projectors emanating sounds to simulate 

submarine acoustic signatures; (2) echo 

repeaters to simulate the characteristics 


sroberts on PROD1PC70 with PROPOSALS
60840 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

of the echo of a particular sonar signal 

reflected from a specific type of 

submarine; and (3) magnetic sources to 

trigger magnetic detectors. 

• Range Sources. Range pingers are 

active acoustic devices that allow each 

of the in-water platforms on the range 

(e.g., ships, submarines, target 

simulators, and exercise torpedoes) to 

be tracked by the instrumented range 

hydrophones on the Southern California 

ASW Range (SOAR) west of San 

Clemente Island. In addition to 

passively tracking the pinger signal from 

each range participant, the range 

transducer nodes also are capable of 

transmitting acoustic signals for a 

limited set of functions. These functions 

include submarine warning signals, 

acoustic commands to submarine target 

simulators (acoustic command link), 

and occasional voice or data 

communications (received by 

participating ships and submarines on 

range). 

Types of ASW Exercises in the SOCAL 

The Navy’s ASW training plan, 

including the use of active sonar in atsea training scenarios, includes multiple 

levels of training. Independent Unitlevel ASW training (such as TRACKEX 

and TORPEX exercises) addresses basic 

skills such as detection and 

classification of contacts, distinguishing 

discrete acoustic signatures including 

those of ships, submarines, and marine 

life, and identifying the characteristics, 

functions, and effects of controlled 

jamming and evasion devices. 

The Navy must execute training 

involving ships, aircraft, submarines, 

and Marine Corps forces operating in 

multiple dimensions (at sea, undersea, 

in the air, and on land) in order to 

ensure the readiness of naval forces. 

Unit training proceeds on a continuum, 

ranging from events involving a small 

number of ships, submarines, or aircraft 

engaged in training tailored to specific 

tasks, to large-scale pre-deployment or 

readiness exercises involving Strike 

Groups. Exercises involving an entire 

Strike Group are referred to as major 

range events (JTFEX and COMPTUEX). 

Smaller, integrated unit-level exercises 

are complex events (SHAREM, IAC2, or 

sustainment exercise), but of lesser 

scope than major range events, which 

pursue tailored training objectives for 

components of a Strike Group. It is 

useful to view larger exercises as being 

composed of individual training events 

conducted in a coordinated fashion. For 

example, the ASW portions of a major 

range event might include multiple 

TRACKEX and TORPEX events, 

conducted simultaneously with aviation 

or amphibious training. Table 2, at the 

end of this section, summarizes the 

exercise types (both sonar and 

explosive) and they are further 

described below. Note that the names 

and exact composition of these exercises 

may change, however, the basic 

components are described here and the 

total hours of sonar sound source and 

explosive use will not exceed those 

described in this document. 

Antisubmarine Warfare Tracking 

Exercise (TRACKEX) 

A TRACKEX, which is an 

independent unit-level exercise, tests 

the Naval Strike Group’s (NSG) ability 

to locate and track an unknown or 

hostile submarine over a predetermined 

time. This operation tests the NSG’s 

ability to coordinate the positioning of 

assets including surface, air, and 

subsurface, and the effective 

communication and turnover of 

responsibility for maintaining coverage 

of the unknown submarine. 

The TRACKEX-surface involves a 

surface ship employing hull mounted 

and/or towed array sonar against a target 

which may be an Expendable Mobile 

Anti-submarine Warfare Training Target 

(EMATT) or live submarine. The target 

may be either non-evading and assigned 

to a specified track or fully evasive 

depending on the state of training of the 

ship and crew. Passive and active sonar 

may be employed depending on the 

type of threat submarine, the tactical 

situation, and water conditions that may 

affect sonar effectiveness. Active sonar 

transmits at varying power levels, pulse 

types, and intervals, while passive sonar 

listens for noise emitted by the threat 

submarine. Passive sonar is typically 

employed first for tactical reasons, 

followed by active sonar to determine 

an exact target location; however, active 

sonar may be employed during the 

initial search phase against an extremely 

quiet submarine or in situations where 

the water conditions do not support 

acceptable passive reception. There is 

no ordnance expended in this exercise. 

An ASW TRACKEX-Surface usually 

lasts two to four hours. 

This exercise may involve a single 

ship, or may be undertaken in the 

context of a coordinated larger exercise 

involving multiple aircraft and/or ships, 

including a major range event. 

The Navy also conducts Submarine 

TRACKEX exercises. However, during 

this event, passive sonar is used almost 

exclusively; active sonar use is tactically 

proscribed because it would reveal the 

tracking submarine’s presence to the 

target submarine. 

Torpedo Exercise (TORPEX) 

Anti-submarine Warfare Torpedo 

Exercises (ASW TORPEX) operations, 

which are independent unit-level 

exercises, train crews in tracking and 

attack of submerged targets, firing one or 

two exercise torpedoes (EXTORPs) or 

recoverable exercise torpedoes 

(REXTORPs). TORPEX targets used in 

the Offshore Areas include live 

submarines, MK 48 torpedoes, MK–30 

ASW training targets, and MK–39 

Expendable Mobile ASW Training 

Targets (EMATT). The target may be 

non-evading while operating on a 

specified track, or it may be fully 

evasive, depending on the training 

requirements of the operation. 

The ASW TORPEX-Surface involves a 

surface ship using hull-mounted and 

towed sonar arrays to search for, detect, 

classify, localize, and track a simulated 

threat submarine. Submarines 

periodically conduct TORPEXs within 

the SOCAL Range Complex. Typical 

duration of a submarine TORPEX 

exercise is 10 hours, while air and 

surface ASW platform TORPEX 

operations are considerably shorter. 

Ship ASW Readiness and Evaluation 

Measuring (SHAREM) 

SHAREM is a Chief of Naval 

Operations (CNO) chartered program 

with the overall objective to collect and 

analyze high-quality data to 

quantitatively ‘‘assess’’ surface ship 

ASW readiness and effectiveness. The 

SHAREM is an integrated unit-level 

event and will typically involve 

multiple ships, submarines, and aircraft 

in several coordinated events over a 

period of a week or less. A SHAREM 

may take place once per year in SOCAL. 

Sustainment Exercise 

Included in the FRTP is a requirement 

to conduct post-deployment 

sustainment, training, and maintenance. 

The sustainment exercise, which is an 

integrated unit-level exercise, ensures 

that the components of a Strike Group 

maintain an acceptable level of 

readiness after returning from 

deployment. A sustainment exercise is 

an exercise designed to challenge the 

strike group in all warfare areas. This 

exercise is similar to a COMPTUEX but 

of shorter duration. One to two 

sustainment exercises may occur each 

year in SOCAL. 

Integrated ASW Course Phase II (IAC2) 

IAC2 exercises are combined aircraft 

and surface ship events. The IAC2 

consists of two 12-hour events 

conducted primarily on SOAR over a 2– 

3 day period. SOAR is an undersea 

warfare range providing instrumented 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60841 

three dimensional tracking over a 670 sq 

nm area within the large Southern 

California Offshore Range (SCORE). The 

typical participants include four 

helicopters, two P–3 aircraft, two 

adversary submarines, and two Mk 30 or 

Mk 39 targets. Frequently, IAC2s 

include the introduction of an off-range 

Mk 30 target. Four IAC2 exercises may 

occur per year. 

Major Range Events 

The Navy conducts large-scale 

exercises, or major ranges events, in the 

SOCAL Range Complex. These exercises 

are required for pre-deployment 

certification of naval formations. The 

composition of the force to be trained, 

and the nature of its mission upon 

deployment, determines the scope of the 

exercise. The Navy currently conducts 

up to eight major range events per year. 

Major range events bring together the 

component elements of a Strike Group 

or Strike Force (that is, all of the various 

ships, submarines, aircraft, and Marine 

Corps forces) to train in complex 

command, control, operational 

coordination, and logistics functions. 

Major range events require vast areas of 

sea space and airspace for the exercise 

of realistic training, as well as land areas 

for conducting land attack training 

events. The training space required for 

these events is a function of naval 

warfighting doctrine, which favors 

widely dispersed units capable of 

projecting forces and firepower at high 

speeds across distances of up to several 

hundred miles in a coordinated fashion, 

to concentrate on an objective. The 

three-dimensional space required to 

conduct a major range event involving 

a carrier strike group (CSG) or 

expeditionary strike group (ESG) is a 

complicated polygon covering an area as 

large as 50,000 nm 2. 

A major range event is comprised of 

several ‘‘unit level’’ range operations 

conducted by several units operating 

together while commanded and 

controlled by a single commander. 

These exercises typically employ an 

exercise scenario developed to train and 

evaluate the Strike Group/Force in 

required naval tactical tasks. In a major 

range event, most of the operations and 

activities being directed and 

coordinated by the Strike Group 

commander are identical in nature to 

the operations conducted in the course 

of individual, crew, and smaller-unit 

training events. In a major range event, 

however, these disparate training tasks 

are conducted in concert, rather than in 

isolation. 

Major range events include: 

• Composite Training Unit Exercise 

(COMPTUEX). The COMPTUEX is an 

Integration Phase, at-sea, major range 

event. For the CSG, this exercise 

integrates the aircraft carrier and carrier 

air wing with surface and submarine 

units in a challenging operational 

environment. For the ESG, this exercise 

integrates amphibious ships with their 

associated air wing, surface ships, 

submarines, and Marine Expeditionary 

Unit. Live-fire operations that may take 

place during COMPTUEX include longrange air strikes, Naval Surface Fire 

Support (NSFS), and surface-to-air, 

surface-to-surface, and air-to-surface 

missile exercises. The MEU also 

conducts realistic training based on 

anticipated operational requirements 

and to further develop the required 

coordination between Navy and Marine 

Corps forces. Special Operations 

training may also be integrated with the 

exercise scenario. The COMPTUEX is 

typically 21 days in length. The exercise 

is conducted in accordance with a 

schedule of events, which may include 

two 1-day, scenario-driven, ‘‘mini’’ 

battle problems, culminating with a 

scenario-driven free play (as opposed to 

scripted) 3-day Final Battle Problem 

where the strike group is required to 

respond to dynamic maneuvers.’’ 

COMPTUEX occurs three to four times 

per year. 

• Joint Task Force Exercise (JTFEX). 

The JTFEX is a dynamic and complex 

major range event that is the 

culminating exercise in the Sustainment 

Phase training and certification event 

for the CSGs and ESGs. For an ESG, the 

exercise incorporates an Amphibious 

Ready Group (ARG) Certification 

Exercise (ARG CERT) for the 

amphibious ships and a Special 

Operations Capable Certification 

(SOCCERT) for the MEU. When 

schedules align, the JTFEX may be 

conducted concurrently for an ESG and 

CSG. JTFEX emphasizes mission 

planning and effective execution by all 

primary and support warfare 

commanders, including command and 

control, surveillance, intelligence, 

logistics support, and the integration of 

tactical fires. JTFEX is mostly a free-play 

(as opposed to scripted) event. JTFEX is 

normally 10 days long, not including a 

3-day in-port Force Protection Exercise, 

and is the final at-sea exercise for the 

CSG or ESG prior to deployment. JTFEX 

occurs three to four times per year. 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALS
60842 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.026</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60843 

Activities Utilizing Underwater 

Detonations 

Underwater detonation activities can 

occur at various depths depending on 

the activity (sinking exercise [SINKEX] 

and mine neutralization), but may also 

include activities which may have 

detonations at or just below the surface 

(SINKEX, gunnery exercise [GUNEX], or 

missile exercise [MISSILEX]). When the 

weapons hit the target, except for live 

torpedo shot, there is no explosion in 

the water, and so a ‘‘hit’’ is not modeled 

(i.e., the energy (either acoustic or 

pressure) from the hit is not expected to 

reach levels that would result in take of 

marine mammals). When a live weapon 

misses, it is modeled as exploding 

below the water surface at 1 ft (5-inch 

naval gunfire, 76-mm rounds), 2 meters 

(Maverick, Harpoon, MK–82, MK–83, 

MK–84), or 50 ft (MK–48 torpedo) as 

shown in Appendix A of the Navy’s 

application, Table A–7 (the depth is 

chosen to represent the worst case of the 

possible scenarios as related to potential 

marine mammals impacts). Exercises 

may utilize either live or inert ordnance 

of the types listed in Table 3. 

Additionally, successful hit rates are 

known to the Navy and are utilized in 

the effects modeling. Training events 

that involve explosives and underwater 

detonations occur throughout the year 

and are described below and 

summarized in Table 2. 

BILLING CODE 3510–22–C 

Sinking Exercise (SINKEX) 

In a SINKEX, a specially prepared, 

deactivated vessel is deliberately sunk 

using multiple weapons systems. The 

exercise provides training to ship and 

aircraft crews in delivering both live 

and inert ordnance on a real target. 

These target vessels are empty, cleaned, 

and environmentally remediated ship 

hulk (i.e., a hulk that has been stripped 

of all hazardous materials and potential 

marine water contaminants in 

accordance with the requirements of 40 

CFR 229.2 [Transport of target vessels]). 

A SINKEX target is towed to sea and set 

adrift at the SINKEX location. The 

duration of a SINKEX is unpredictable 

since it ends when the target sinks, 

sometimes immediately after the first 

weapon impact and sometimes only 

after multiple impacts by a variety of 

weapons. Typically, the exercise lasts 

for 4 to 8 hours over 1 to 2 days. 

SINKEXs occur only occasionally 

during SOCAL Range Complex 

exercises. 

Some or all of the following weapons 

may be employed in a SINKEX: 

• Three HARPOON surface-to-surface 

and air-to-surface missiles. 

• Two to eight air-to-surface Maverick 

missiles. 

• Two to four MK–82 General 

Purpose Bombs. 

• Two Hellfire air-to-surface missiles. 

• One SLAM–ER air-to-surface 

missile. 

• Two-hundred and fifty rounds for a 

5-inch gun. 

• One MK–48 heavyweight 

submarine-launched torpedo. 

Air-to-Surface Gunnery Exercise (A–S 

GUNEX) 

Air-to-Surface GUNEX operations, 

which may be conducted in W291, are 

conducted by fixed or rotary-wing 

aircraft against stationary targets 

(Floating at-sea Target [FAST] and 

smoke buoy). Rotary-wing aircraft 

involved in this operation would 

include a single SH–60 using either 

7.62-mm or .50-caliber door-mounted 

machine guns. A typical A–S GUNEX 

will last approximately one hour and 

involve the expenditure of 

approximately 400 rounds of 0.50- 

caliber or 7.62-mm ammunition. Due to 

the inert nature of the ammunition and 

the small size of the rounds, they are not 

considered to have an underwater 

detonation impact. 

Surface-to-Surface Gunnery Exercise 

(S–S GUNEX) 

Surface gunnery exercises (GUNEX) 

take place in the open ocean (W291 and 

SOAR) to provide gunnery practice for 

Navy and Coast Guard ship crews. This 

exercise may involve a single firing 

ship, or be undertaken in the context of 

a coordinated larger exercise involving 

multiple ships, including a major range 

event. GUNEX training operations 

conducted in the Offshore OPAREA 

involve stationary targets such as a MK– 

42 FAST or a MK–58 marker (smoke) 

buoy. The gun systems employed 

against surface targets include the 5- 

inch, 76 millimeter (mm), 57-mm, 25- 

mm chain gun, 20-mm Close-in Weapon 

System (CIWS), and .50 caliber machine 

gun. Typical ordnance expenditure for a 

single GUNEX is 21–70 rounds of 5- 

inch, 76-mm, or 57-mm ammunition, 

and approximately 150 rounds of 25- 

mm or .50-caliber ammunition. Both 

live and inert training rounds are used. 

After impacting the water, the rounds 

and fragments sink to the bottom of the 

ocean. A GUNEX lasts up to 2.5 hours, 

depending on target services and 

weather conditions. The live 5-inch, 57- 

mm and 76-mm rounds are considered 

in the underwater detonation modeling. 

Naval Surface Fire Support exercises 

(NSFS), in which crews train in naval 

gunnery against shore targets using the 

same ammunition as a GUNEX, are 

included with GUNEX both in Table 2 

and further discussion (though separate 

mitigation is described in the Mitigation 

section). NSFS may be conducted in 

SOAR, MIR, or SHOBA. 

Air-to-Surface Missile Exercise (A–S 

MISSILEX) 

The air-to-surface missile exercise 

(MISSILEX [A–S]) consists of the 

attacking platform releasing a forwardfired, guided weapon at the designated 

towed target. The exercise involves 

locating the target, then designating the 

target, usually with a laser. MISSILEX 

(A–S) training that does not involve the 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.027</GPH>
60844 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

release of a live weapon can take place 

if the attacking platform is carrying a 

captive air training missile (CATM) 

simulating the weapon involved in the 

training. The CATM MISSILEX is 

identical to a live-fire exercise in every 

aspect except that a weapon is not 

released. The operation requires a lasersafe range as the target is designated just 

as in a live-fire exercise. 

From 1 to 16 aircraft, carrying live, 

inert, or CATMs, or flying without 

ordnance (dry runs) are used during the 

exercise. At sea, seaborne powered 

targets (SEPTARs), Improved Surface 

Towed Targets (ISTTs), and 

decommissioned hulks are used as 

targets. MISSILEX (A–S) assets include 

helicopters and/or 1 to 16 fixed wing 

aircraft with air-to-surface missiles and 

anti-radiation missiles (electromagnetic 

radiation source seeking missiles). 

When a high-speed anti-radiation 

missile (HARM) is used, the exercise is 

called a HARMEX. Targets include 

SEPTARs, ISTTs, and excess ship hulks. 

Surface-to-Surface Missile Exercise (S– 

S MISSILEX) 

Surface-to-surface missile exercise 

(MISSILEX [S–S]) involves the attack of 

surface targets at sea by use of cruise 

missiles or other missile systems, 

usually by a single ship conducting 

training in the detection, classification, 

tracking and engagement of a surface 

target. Engagement is usually with 

Harpoon missiles or Standard missiles 

in the surface-to-surface mode. Targets 

could include virtual targets or the 

SEPTAR or ship deployed surface target. 

MISSILEX (S–S) training is routinely 

conducted on individual ships with 

embedded training devices. 

A MISSILEX (S–S) could include 4 to 

20 surface-to-surface missiles, 

SEPTARs, a weapons recovery boat, and 

a helicopter for environmental and 

photo evaluation. All missiles are 

equipped with instrumentation 

packages or a warhead. Surface-to-air 

missiles can also be used in a surfaceto-surface mode. MISSILEX (S–S) 

activities are conducted withinW–291. 

Each exercise typically lasts five hours. 

Future MISSILEX S–S could range from 

4 to 35 hours. 

S–S MISSILEX exercises only occur 

during SINKEX exercises, and the hours 

of S–S MISSILEX are included in the 

total hours of SINKEX indicated in 

Table 2. 

Bombing Exercise (BOMBEX) 

Fixed-wing aircraft conduct bombing 

exercise (BOMBEX [Sea]) operations 

against stationary targets (MK–42 FAST 

or MK–58 smoke buoy) at sea. An 

aircraft will clear the area, deploy a 

smoke buoy or other floating target, and 

then set up a racetrack pattern, dropping 

on the target with each pass. A 

BOMBEX may involve either live or 

inert ordnance. 

Mine Warfare (MIW)/ Mine 

Countermeasures (MCM) 

MIW is the naval warfare area 

involving the detection, avoidance, and 

neutralization of mines to protect Navy 

ships and submarines, and offensive 

mine laying in naval operations. A naval 

mine is a self-contained explosive 

device placed in water to destroy ships 

or submarines. Naval mines are 

deposited and left in place until 

triggered by the approach of or a contact 

with an enemy ship, or are destroyed or 

removed. Naval mines can be laid by 

purpose-built minelayers, other ships, 

submarines, or airplanes. MIW training 

includes Mine Countermeasures (MCM) 

Exercises and Mine Laying Exercises 

(MINEX). MCM training is currently 

conducted on the Kingfisher Range and 

offshore areas in the Tanner and Cortes 

Banks. MCM training engages ships’ 

crews in the use of sonar for mine 

detection and avoidance, and minefield 

navigation and reporting. The proposed 

extension of the SOAR is intended for 

use in such training. MINEX events 

involve aircraft dropping inert training 

shapes, and less frequently submarine 

mine laying. MINEX events are 

conducted on the MINEX Training 

Ranges in the Castle Rock, Eel Point, 

China Point, and Pyramid Head areas 

offshore of SCI. 

Mine Neutralization operations 

involve the detection, identification, 

evaluation, rendering safe, and disposal 

of mines and unexploded ordnance 

(UXO) that constitutes a threat to ships 

or personnel. Mine neutralization 

training can be conducted by a variety 

of air, surface and sub-surface assets. 

Potential harassment would be from 

underwater detonation. 

Tactics for neutralization of ground or 

bottom mines involve the diver placing 

a specific amount of explosives, which 

when detonated underwater at a specific 

distance from a mine results in 

neutralization of the mine. Floating, or 

moored, mines involve the diver placing 

a specific amount of explosives directly 

on the mine. Floating mines 

encountered by Fleet ships in openocean areas will be detonated at the 

surface. In support of an expeditionary 

assault, divers and Navy marine 

mammal assets deploy in very shallow 

water depths (10 to 40 feet) to locate 

mines and obstructions. Divers are 

transported to the mines by boat or 

helicopter. Inert dummy mines are used 

in the exercises. The total net explosive 

weight used against each mine ranges 

from less than 1 pound to 20 pounds. 

Various types of surveying equipment 

may be used during mine detection. 

Examples include the Canadian Route 

Survey System that hydrographically 

maps the ocean floor using multi-beam 

side scan sonar and the Bottom Object 

Inspection Vehicle used for object 

identification. These units can help in 

supporting mine detection prior to 

Special Warfare Operations 

(SPECWAROPS) and amphibious 

exercises. 

All demolition activities are 

conducted in accordance with 

established Navy guidelines and 

procedures for disposal of explosives at 

sea. Before any explosive is detonated, 

divers are transported a safe distance 

away from the explosive. 

Standard practices for tethered mines 

in the SOCAL Range Complex require 

ground mine explosive charges to be 

suspended 10 feet below the surface of 

the water. 

Mine neutralization exercises would 

involve training using Organic Airborne 

Mine Countermeasures (OAMCM) 

systems employed by helicopters in 

simulated threat minefields with the 

goal of clearing a safe channel through 

the minefield for the passage of friendly 

ships. Once a mine shape is located, 

mine neutralization is simulated. 

Helicopters engaged in MCM training 

would be configured with one or more 

of the following systems: 

• AN/AQS–20 Mine Hunting System: 

The AQS–20 is an active high 

resolution, side-looking, multibeam 

sonar system used for mine hunting of 

deeper mine threats along the ocean 

bottom. It is towed by a helicopter. A 

small diameter electromechanical cable 

is used to tow the rapidly-deployable 

system that provides real-time sonar 

images to operators in the helicopter. 

• AN/AES–1 Airborne Laser Mine 

Detection System (ALMDS): ALMDS is 

a helicopter-mounted system that uses 

Light Detection and Ranging (LIDAR) 

blue-green laser technology to detect, 

classify, and localize floating and nearsurface moored mines in shallow water. 

• AN/ALQ–220 Organic Airborne 

Surface Influence Sweep (OASIS). 

OASIS is a helicopter deployed, towedbody, 10 ft long and 20 inches in 

diameter that is self-contained, allowing 

for the emulation of magnetic and 

acoustic signatures of the ships. 

• Airborne Mine Neutralization 

System (AMNS): AMNS is a helicopterdeployed underwater vehicle that 

searches for, locates, and destroys 

mines. This vehicle is a self-propelled, 

unmanned, wire-guided munition with 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60845 

homing capability that expends itself 

during the mine destruction process. 

• AN/AWS–2 Rapid Airborne Mine 

Clearance System (RAMCIS): RAMICS is 

a helicopter-borne weapon system that 

fires a 30mm projectile from a gun or 

cannon to neutralize surface and nearsurface mines. RAMICS uses LIDAR 

technology to detect mines. 

Mine neutralization exercises also 

would involve shipboard MCM systems, 

including the Remote Minehunting 

System (RMS). The RMS is an 

unmanned, semi-submersible vehicle 

that tows a variable-depth sensor to 

detect, localize, classify and identify 

mines. The RMS includes a shipboard 

launch and recovery system. 

Mine neutralization exercises also 

would involve submarine-deployed 

MCM systems, the Long-term Mine 

Reconnaissance System (LMRS). The 

LMRS employs a self-propelled 

underwater vehicle equipped with 

forward-looking search sonar and sidelooking classification sonar. 

Locations proposed for mine 

neutralization training are: Pyramid 

Cove; Northwest Harbor; Kingfisher 

Training Range; MTR–1, MTR–2, and 

Advanced Research Project Agency 

(ARPA). 

The unusual physical bathymetries, 

the low numbers of protected species 

and the training routines at the sites 

where these exercises are conducted 

combine with the unusual pressurewave propagation characteristics of the 

Northwest Harbor, where multiple 

charges are used, to allow exceptionally 

reliable and effective mitigation 

procedures. The exceptional reliability 

of visual detection of protected species 

at these sites allows for complete 

mitigation within a radius that extends 

out to the distance at which only the 

lowest degree of temporary auditory 

threshold shift (onset-TTS) would be 

expected to occur (if mitigation were not 

so effective at the site). Therefore, the 

Navy and NMFS do not expect mine 

neutralization exercises to result in the 

take of marine mammals and no take 

authorization pursuant to this activity 

type has been proposed. 

Shallow Water Minefield 

Currently, the Navy conducts mine 

countermeasures (MCM) training on two 

existing ranges in the SOCAL Range 

Complex: the Kingfisher Range off SCI 

and the ARPA Training Minefield off La 

Jolla. The ARPA has historically been 

used for shallow water submarine and 

MCM training, and is the desired 

location for expanding MCM training. 

ARPA currently supports the submarine 

training requirement for a shallow water 

minefield to train in small object 

avoidance. Use of the ARPA shallow 

water minefield would be expanded 

from its current use by submarines to 

include surface ships and helicopters. 

On the ARPA, 35 mine shapes 

approximately 30–35 inches in 

diameter, constructed of cylinders 

weighted with cement, are placed 

approximately 500–700 yards apart, 

either moored (no drilling is required) 

or simply set on the sea floor. Mine 

shapes are recoverable and replaceable, 

and typically need maintenance or 

cleaning every two years. 

In addition to expanded use of the 

ARPA, the Navy proposes to establish 

an offshore shallow water minefield on 

Tanner Banks. The training area would 

be approximately 2 by 3 nm in size. 

Mine shapes like those used at ARPA 

would be placed on the ocean floor, 

with a total of 15 mine shapes in three 

rows of five. This offshore MCM range 

would be utilized by surface ships 

training to detect, classify and localize 

underwater mines. 

MCM training involving ships or 

helicopters typically employ mid-to 

high-frequency navigation and mine 

detecting sonar systems. Once a mine 

shape is located, mine neutralization is 

simulated. Surface ships engaged in 

MCM training at ARPA and Tanner 

Banks MCM ranges would utilize the 

Remote Mine Hunting System (RMS). 

The RMS is an unmanned, semisubmersible vehicle that will be 

deployed from both the DDG–51 Class 

destroyer and the LCS. The RMS is 

launched and recovered by the host ship 

using a davit system. After deployment, 

the RMS enters the target zone to 

perform reconnaissance for bottom-laid 

mines. An area search is conducted 

following an operator-programmed 

search pattern. The RMS searches using 

low-power (< 85dB) acoustic sonar. 

Upon detecting a mine, the RMS unit 

will localize and photograph the object 

for classification, and then continue on 

its programmed search. When the search 

portion of the mission is completed, the 

RMS will proceed to a programmed 

location for recovery. 

The exercises that will be conducted 

on these minefields have been described 

in previous sections and any expected 

take of marine mammals will be 

included when those exercise types are 

analyzed in later sections. NMFS does 

not expect the actual expansion and 

formation of the minefields to result in 

any take of marine mammals. 

Shallow Water Training Range (SWTR) 

Extension 

The SWTR component of the 

Proposed Action would provide 

underwater instrumentation for two 

additional areas of the current SOAR, 

one 250nm2 (463-km2) area to the west 

of the already instrumented (deep 

water) section, in the area of Tanner/ 

Cortes Banks, and one 250 nm2 (463- 

km2) area between the deep water 

section and the southern section of SCI 

(See Figure 2–3). Once in place, the new 

instrumentation in the SWTR would 

expand the areas of the Navy’s existing 

program on SOAR to enhance the ability 

to use passive hydrophones to detect 

and track marine mammals. If installed 

in these areas, use of the SWTR would 

increase the use of these areas for ASW 

training involving MFAS. 

The proposed instrumentation would 

be in the form of undersea cables and 

sensor nodes. The cables and sensors 

would be similar to those that 

instrument the current deep water range 

at (SOAR). The new areas would form 

an integral SWTR capability for SOAR. 

The combination of deep water and 

shallow water instrumentation would 

support a seamless tracking interface 

from deep to shallow water, which is an 

essential element of effective ASW 

training. The instrumented area would 

be connected to shore via multiple trunk 

cables. 

The SWTR instrumentation would be 

an undersea cables system integrated 

with hydrophone and underwater 

telephone sensors, called nodes, 

connected to each other and then 

connected by up to eight trunk cable(s) 

to a land-based facility where the 

collected range data are used to evaluate 

the performance of participants in 

shallow water (120’-600’deep) training 

exercises. The basic proposed features 

of the instrumentation and construction 

follow. 

The transducer nodes are capable of 

both transmitting and receiving acoustic 

signals from ships operating within the 

instrumented areas of SOAR (a 

transducer is an instrument that 

converts one form of energy into another 

[in this case, underwater sound into an 

electrical signal or vice-versa]). Some 

nodes are configured to only support 

receiving signals, some can both 

transmit and receive, and others are 

transmit-only versions. The acoustic 

signals that are sent from the exercise 

participants (e.g., submarines, 

torpedoes, ships) to the receive-capable 

range nodes allow the position of the 

participants to be determined and stored 

electronically for both real-time and 

future evaluation. The transmit-capable 

nodes allow communication from the 

range to ships or other devices that are 

being tracked. More specifically: 

• The SWTR extension would consist 

of no more than 500 sensor nodes 

spread on the ocean floor over a 500-nm 


sroberts on PROD1PC70 with PROPOSALS
60846 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

area. The distance between nodes would 

vary between 0.5nm and 3nm, 

depending on water depth. Each sensor 

node would be similar on construction 

to the existing SOAR instrumentation. 

The sensor nodes are small spherical 

shapes of less than 6 inches in diameter. 

The sensors would be either suspended 

up to 15 feet in the water column or lie 

flat on the seafloor. Sensor nodes 

located in shallow water with a 

presence of commercial fishing activity 

would have an additional protective 

device surrounding or overlaying a 

sensor. These mechanical protective 

devices would be 3–4 feet round or 

rectangular with a shallow height. The 

final physical characteristics of the 

sensor nodes would be determined 

based upon local geographic conditions 

and to accommodate man-made threats 

such as fishing activity. Sensor nodes 

would be connected to each other by 

interconnect cable (standard submarine 

telecommunications cable with 

diameters less than 1 inch). 

Approximately 900nm of interconnect 

cable would be deployed. 

• A series of sensor nodes would be 

connected via the interconnect cable to 

an underwater junction box(es) located 

in diver-accessible water depths. A 

junction box is rectangular in shape 

with dimensions of 10–15 feet on each 

side. The junction box(es) would 

connect to a shore-based facility via 

trunk cable(s) (submarine cables up to 2 

inch diameter with additional data 

capacity). The trunk cable(s) eliminate 

the need to have numerous interconnect 

cables running to shore. Up to 8 trunk 

cables with a combined length of 375nm 

would be employed. Trunk cables 

would be protected in the sea-shore area 

by horizontally directionally drilled 

pipes running beneath the shoreline. 

• The interconnect and trunk cables 

would be deployed using a ship with a 

length overall up to 300 feet. The trunk 

cable paths would be routed through the 

deep water as much as is possible. 

Trunk cable deployed in shallow water 

may require cable burial. Burial 

equipment would cut (hard bottom) or 

plow (soft sediment) a furrow 4 inches 

(10 cm) wide by up to 36 inches deep. 

Burial equipment (tracked vehicle or 

towed plow) would be deployed from a 

ship. The trunk cable, which passes 

through the sea-shore area, would 

terminate in SOAR’s current cable 

termination facility (CTF) at West Cove. 

From there, information gathered on the 

SWTR would be transmitted via an 

existing microwave datalink to the 

Southern California Offshore Range 

(SCORE) Range Operations Center 

(ROC) on Naval Air Station North 

Island. The adjacent SOAR has a single 

junction box located outside the 

nearshore area and places the trunk 

cable in a horizontally directionally 

drilled bore that terminates on shore. 

The size of the SWTR may require up 

to 8 junction boxes and 8 trunk cables. 

Multiple horizontal bores are in the 

SOAR. Every effort would be made to 

take advantage of any excess bore 

capacity available in the SOAR. 

• The in-water instrumentation 

system would be structured to achieve 

a long operating life, with a goal of 20 

years and with a minimum of 

maintenance and repair throughout the 

life-cycle. This is due to the high cost 

of performing at-sea repairs on 

transducer nodes and cables, the 

inherently long lead-time to plan, 

permit, fund and conduct such repairs 

(6–18 months) and the loss of range 

capability while awaiting completion. 

The long life performance would be 

achieved by using high quality 

components, proven designs, and 

multiple levels of redundancy in the 

system design. This includes back-up 

capacity for key electronic components 

and fault tolerance to the loss of 

individual sensors or even an entire 

sensor string. The use of materials 

capable of withstanding long term 

exposure to high water pressure and salt 

water-induced corrosion is also 

important. Periodic inspection and 

maintenance in accessible areas also 

extends system life. 

The Navy would submit cable area 

coordinates to the National Geospatial 

Intelligence Agency (NGA) and request 

that the combined SWTR/SOAR area be 

noted on charts within the appropriate 

warning area. This area would be noted 

in the U.S. Coast Pilot as a Military 

Operating Area (MOA), as are other 

areas on the West Coast. The Navy may 

promulgate a Notice to Mariners 

(NOTMAR) and a Notice to Airmen 

(NOTAM) within 72 hours of the 

training activities, as appropriate. 

Installation of the SWTR 

instrumentation array may be done in 

phases. For example, the Tanner Bank 

area could be installed first, followed by 

the eastern area. The decision as to 

whether or not to proceed in phases, 

how many phases, and the order in 

which the phases are executed is based 

on multiple factors, including weather, 

ship availability and capacity, 

production schedules for nodes and 

cable, installation time, total 

environmental impact of installation, 

funding availability, and efficiency. 

RDT&E 

Space and Naval Warfare Systems 

Center (SPAWARSYSCEN) conducts 

research, development, testing, and 

evaluation (RDT&E), engineering, and 

fleet support for command, control, and 

communications systems and ocean 

surveillance in the SOCAL Range 

Complex, primarily in the vicinity of 

SCI. Specific events include ship 

tracking and torpedo tests, unmanned 

underwater vehicle (UUV) tests; and 

sonobuoy quality assurance/quality 

control. 

The San Diego Division of the Naval 

Undersea Warfare Center (NUWC) is a 

Naval Sea Systems Command 

(NAVSEA) organization supporting the 

Pacific Fleet. NUWC operates and 

maintains the SCI Underwater Range 

(SCIUR). NUWC conducts tests, 

analysis, and evaluation of submarine 

USW exercises and test programs. 

NUWC also provides engineering and 

technical support for Undersea Warfare 

(USW) programs and exercises, design 

cognizance of underwater weapons 

acoustic and tracking ranges and 

associated range equipment, and 

provides proof testing and evaluation 

for underwater weapons, weapons 

systems, and components. 

Additional information on the Navy’s 

proposed activities may be found in the 

LOA Application and Appendix A of 

the Navy’s SOCAL DEIS. 

Description of Marine Mammals in the 

Area of the Specified Activities 

The California Current passes through 

the SOCAL Range Complex, creating a 

mixing of temperate and tropical waters, 

and making this area one of the most 

productive ocean systems in the world 

(Hickey 1979, Hickey 1992, Daily et al. 

1993, DoN 2002a). Because of this 

productive environment, there is a rich 

marine mammal fauna, as evidenced in 

abundance and species diversity 

(Leatherwood et al., 1988; Bonnell and 

Dailey, 1993). In addition to many 

marine mammal species that live in the 

area year-round and use the region’s 

coasts and islands for breeding and 

hauling out, there is a community of 

seasonal residents and migrants. The 

narrow continental shelf along the 

Pacific coast and the presence of the 

cold California Current sweeping down 

from Alaska allows cold-water marine 

mammal species to reach nearshore 

waters as far south as Baja California. 

The Southern California Bight (SCB) is 

the major geological region occurring 

within the SOCAL Range Complex and 

can be described as a complex 

combination of islands, ridges, and 

basins that exhibit wide ranges in water 

temperature. San Diego Bay, a naturally 

formed, crescent-shaped embayment is 

located along the southern end of the 

SCB (Largier, 1995; DoN, 2000); the bay 

provides habitat for a number of oceanic 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60847 

and estuarine species as the ebb and 

flood of tides within the Bay circulate 

and mix ocean and Bay waters, creating 

for distinct circulation zones within San 

Diego Bay (see Chapter 2 of the 

application for further detail regarding 

these zones) (Largier et al., 1996; DoN, 

2000). 

Populations/stocks of forty-one 

marine mammal species have been 

confirmed or may possibly occur in the 

study area off southern California (see 

Table 4), including 34 cetacean (whales, 

dolphins, and porpoises), six pinniped 

(seals, sea lions, and fur seals), and one 

fissiped species (the sea otter, which is 

managed by the U.S. Fish and Wildlife 

Service and will not be addressed 

further here). Information on marine 

mammal occurrence at the Point Mugu 

Sea Range (just to the north of the 

SOCAL Range Complex) is analyzed in 

Koski et al. (1998). Temperate and 

warm-water toothed whales often 

change their distribution and abundance 

as oceanographic conditions vary both 

seasonally (Forney and Barlow, 1998) 

and interannually (Forney 2000). Forney 

and Barlow (1998) noted significant 

north/south shifts in distribution for 

Dall’s porpoises, common dolphins, and 

Pacific white-sided dolphins, and they 

identified significant inshore/offshore 

differences for northern right whale 

dolphins and humpback whales. Several 

authors have noted the impact of the El 

Nin ̃ o events of 1982/1983 and 1997/ 

1998 on marine mammal occurrence 

patterns and population dynamics in 

the waters off California (Wells et al., 

1990; Forney and Barlow, 1998; Benson 

et al., 2002). 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALS
60848 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

BILLING CODE 3510–22–C 

The Navy has compiled information 

on the abundance, behavior, status and 

distribution, and vocalizations of 

marine mammal species in SOCAL 

Range Complex waters from peer 

reviewed literature, the Navy Marine 

Resource Assessment for the SOCAL 

Operating Area, NMFS Stock 

Assessment Reports, and marine 

mammal surveys using acoustics or 

visual observations from aircraft or 

ships. This information may be viewed 

in the Navy’s LOA application and/or 

the Navy’s DEIS for SOCAL (see 

Availability). Additional information is 

available in NMFS Stock Assessment 

Reports, which may be viewed at: 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.028</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60849 

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

species.htm. 

Species Not Considered Further 

Killer whale, Southern Resident 

Stock—The Southern Resident stock of 

killer whale is not likely to be present 

within Southern California. This stock 

is most commonly seen in the inland 

waters of Washington state and southern 

Vancouver Island; however, individuals 

from this stock have been observed in 

Monterey Bay, California in January, 

2000 and March, 2003, near the Farallon 

Islands in February 2005 and off Point 

Reyes in January 2006 (Pacific Fishery 

Management Council (PFMC) and 

NMFS 2006). Based on the above known 

information, there is a very low 

likelihood of Southern Resident killer 

whales being present in the action area, 

so this species will not be considered in 

greater detail. 

North Pacific right whale—The 

likelihood of a North Pacific right whale 

being present in the action area is 

extremely low. It may be the most 

endangered of the large whale species 

(Perry et al. 1999) and currently there is 

no reliable population estimate, 

although the population in the eastern 

North Pacific Ocean is considered to be 

very small, perhaps in the tens to low 

hundreds of animals. Despite many 

years of systematic aerial and shipbased surveys for marine mammals off 

the western coast of the U.S., only seven 

documented sightings of right whales 

were made from 1990 through 2000 

(Waite et al., 2003). Based on this 

information, it is highly unlikely for this 

species to be present in the action area. 

Consequently, this species will not be 

considered in greater detail. 

Steller sea lion (Eumetopias jubatus) 

Eastern Distinct Population Segment— 

Steller sea lions are also not expected to 

be present in the action area. Steller sea 

lions range along the North Pacific Rim 

from northern Japan to California 

(Loughlin et al., 1984), with centers of 

abundance and distribution in the Gulf 

of Alaska and Aleutian Islands, 

respectively. In U.S. waters, there are 

two separate stocks of Steller sea lions: 

an eastern U.S. stock, which includes 

animals east of Cape Suckling, Alaska 

(144° W longitude), and a western U.S. 

stock, which includes animals at and 

west of Cape Suckling (Loughlin 1997). 

The closest rookery to the action area is 

An ̃ o Nuevo Island, which declined by 

85% between 1970 and 1987 (LeBoeuf 

et al., 1991). Steller sea lions are rarely 

sighted in Southern California waters 

and have not been documented 

interacting with southern California 

fisheries in over a decade. The last 

documented interaction with Californiabased fisheries was in northern 

California, in 1994, with the California/ 

Oregon drift gillnet fishery (NMFS, 

2000). The last sighting of a Steller sea 

lion in Southern California was that of 

a subadult male that was briefly on San 

Miguel Island in 1998 (Thorson et al., 

1998). For the reasons listed above, 

Steller sea lions are not likely to be 

present in the action area, and will not 

be considered in greater detail. 

Marine Mammal Density Estimates 

The southern California region has 

been systematically surveyed for several 

years (1991–1993, 1996, 2001, 2005) by 

the National Marine Fisheries Service 

(NMFS), both via aircraft (e.g., Carretta 

and Forney, 1993) and vessel (e.g., 

Ferguson and Barlow, 2003; Barlow, 

2003; Forney, 2007). The most recent 

vessel survey was conducted in the U.S. 

Exclusive Economic Zone (EEZ) out to 

300 nm offshore of California, Oregon 

and Washington by NMFS in summer 

and fall 2005 (Barlow, 2007; Forney, 

2007). There has also been regional 

survey effort in the area of the proposed 

action, particularly around San 

Clemente Island and in extreme near 

shore areas (e.g., Carretta et al., 2000; 

Carretta, 2003). Consequently there are 

several density estimates available for 

most cetacean species in southern 

California. 

For this LOA, NMFS Southwest 

Fisheries Science Center calculated 

marine mammal density estimates based 

on compiled densities from vessel 

surveys conducted from 1986 to 2005, 

and provided it to the Navy as 

Government Furnished Information 

(GFI). A new multiple-covariate, linetransect approach (Marques and 

Buckland, 2003) was used to account for 

multiple factors that affect the distance 

at which cetaceans can be seen in 

different conditions. Other 

computational procedures were as 

described in Barlow (2007) and Forney 

(2007). 

These density compilations prorate 

densities of ‘‘unidentified’’ species 

groups (such as unidentified dolphins, 

small whales, rorquals, large whales, 

etc.) with densities of identified species, 

so likely represent the most 

conservative densities at this time for 

the southern California region. Densities 

are presented for warm (May–October) 

and cold water (November–April) 

seasons north of 30° N, which is the 

southern extent of NMFS marine 

mammal survey cruises. Gray whale 

densities were taken from Carretta et al. 

(2000), and are applicable for January– 

April only. The geographic distributions 

of cetacean species for which densities 

are available off southern California 

overlap completely with all eight sonar 

areas (shown in Figure 3–1 of the 

application), so further refinement of 

densities to sonar areas was not 

necessary. Area 8 includes all areas 

outside the previous seven areas that are 

within the quasi-rectangular region 

bounded in latitude by 29° N and 34° N, 

and in longitude by 120°30′ W and 

116°30′ W but is not indicated in Figure 

3–1 of the application. 

Pinniped at-sea density is not often 

known because pinniped abundance is 

obtained via shore counts of animals at 

known rookeries and haulouts. 

Therefore, densities of pinnipeds were 

derived quite differently from those of 

cetaceans. Several parameters were 

identified from the literature, including 

area of stock occurrence, number of 

animals (which may vary seasonally) 

and season, and those parameters were 

then used to calculate density. Once 

density per ‘‘pinniped season’’ was 

determined, those values were prorated 

to fit the warm water (May–October) 

and cold water (November–April) 

seasons. Pinniped geographic 

distributions do not overlap all sonar 

areas, so density was further refined as 

the percentage of each sonar area 

actually overlapped by the species 

distribution. Determining density in this 

manner is risky as the parameters used 

usually contain error (e.g., geographic 

range is not exactly known and needs to 

be estimated, abundance estimates 

usually have large variances) and, as is 

true of all density estimates, it assumes 

that animals are always distributed 

evenly within an area which is likely 

never true. However, this remains one of 

the few means available to determine atsea density for pinnipeds. 

The detailed density estimate 

methods and results may be viewed in 

Section 3.5 of the Navy’s LOA 

application. Density and abundance are 

summarized in Table 13. 

Depth Distribution of Marine Mammals 

There are limited depth distribution 

data for most marine mammals. This is 

especially true for cetaceans, as they 

must be tagged at-sea and by using a tag 

that either must be implanted in the 

skin/blubber in some manner or adhere 

to the skin. There is slightly more data 

for some pinnipeds, as they can be 

tagged while on shore during breeding 

or molting seasons and the tags can be 

glued to the pelage rather than 

implanted. There are a few different 

methodologies/techniques that can be 

used to determine depth distribution 

percentages, but by far the most widely 

used technique currently is the timedepth recorder. These instruments are 

attached to the animal for a fairly short 


sroberts on PROD1PC70 with PROPOSALS
60850 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

period of time (several hours to a few 

days) via a suction cup or glue, and then 

retrieved immediately after detachment 

or when the animal returns to the beach. 

Depth information can also be collected 

via satellite tags, sonic tags, digital tags, 

and, for sperm whales, via acoustic 

tracking of sounds produced by the 

animal itself. 

There are somewhat suitable depth 

distribution data for a few marine 

mammal species. Sample sizes are 

usually extremely small, nearly always 

fewer than 10 animals total and often 

only one or two animals. Depth 

distribution information often must be 

interpreted from other dive and/or 

preferred prey characteristics. Depth 

distributions for species for which no 

data are available can be extrapolated 

from similar species. 

Density is nearly always reported for 

an area, e.g., animals/km2. Analyses of 

survey results using Distance Sampling 

techniques include correction factors for 

animals at the surface but not seen as 

well as animals below the surface and 

not seen. Therefore, although the area 

(e.g., km2) appears to represent only the 

surface of the water (two-dimensional), 

density actually implicitly includes 

animals anywhere within the water 

column under that surface area. Density 

assumes that animals are uniformly 

distributed within the prescribed area, 

even though this is likely rarely true. 

Marine mammals are usually clumped 

in areas of greater importance, for 

example, areas of high productivity, 

lower predation, safe calving, etc. 

Density estimates are typically derived 

for large areas by NMFS, for instance the 

All California and Point Conception 

south stratas presented in Forney and 

Barlow, 2007. Often scientific 

information on smaller scale 

distribution and density within discrete 

areas such as the SOCAL modeling areas 

used in the acoustic impact analysis is 

lacking and larger scale densities have 

to be used as an approximate. The 

available NMFS derived density 

estimates are therefore used in lieu of 

small scale density estimates. In 

addition, as a further conservative 

approach, these densities are evenly 

distributed across a given model area 

since the degree of daily, seasonal, and 

yearly presence/absence or spatial 

clumping is currently not well known 

for many species. 

Assuming that marine mammals are 

distributed evenly within the water 

column is not accurate. The everexpanding database of marine mammal 

behavioral and physiological parameters 

obtained through tagging and other 

technologies has demonstrated that 

marine mammals use the water column 

in various ways, with some species 

capable of regular deep dives (<800 m) 

and others regularly diving to <200 m, 

regardless of the bottom depth. 

Assuming that all species are evenly 

distributed from surface to bottom is 

almost never appropriate and can 

present a distorted view of marine 

mammal distribution in any region. 

By combining marine mammal 

density with depth distribution 

information, as is done for the SOCAL 

Range Complex, a more accurate threedimensional density estimate is 

possible. These 3–D estimates allow 

more accurate modeling of potential 

marine mammal exposures from specific 

noise sources. Complete details on 

species biological parameters used in 

sonar and explosives modeling are 

provided in Appendix F to the SOCAL 

DEIS. 

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 

MFAS/HFAS 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 (μPa); for airborne 

sound, the standard reference pressure 

is 20 μPa (Richardson et al., 1995). 

Acousticians have adopted a 

logarithmic scale for sound intensities, 

which is denoted in decibels (dB). 

Decibel measurements represent the 

ratio between a measured pressure value 

and a reference pressure value (in this 

case 1 μPa or, for airborne sound, 20 

μPa.). The logarithmic nature of the 

scale means that each 10 dB increase is 

a ten-fold increase in power (e.g., 20 dB 

is a 100-fold increase, 30 dB is a 1,000- 

fold increase). Humans perceive a 10-dB 

increase in noise as a doubling of 

loudness, or a 10 dB decrease in noise 

as a halving of loudness. The term 

‘‘sound pressure level’’ implies a 

decibel measure and a reference 

pressure that is used as the denominator 

of the ratio. Throughout this document, 

NMFS uses 1 microPascal (denoted re: 

1μPa) as a standard reference pressure 

unless noted otherwise. 

It is important to note that decibels 

underwater and decibels in air are not 

the same and cannot be directly 

compared. To estimate a comparison 

between sound in air and underwater, 

because of the different densities of air 

and water and the different decibel 

standards (i.e., reference pressures) in 

water and air, a sound with the same 

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

would be approximately 63 dB quieter 

in air. Thus a sound that is 160 dB loud 

underwater would have the same 

approximate effective intensity as a 

sound that is 97 dB loud in air. 

Sound frequency is measured in 

cycles per second, or Hertz (abbreviated 

Hz), and is analogous to musical pitch; 

high-pitched sounds contain high 

frequencies and low-pitched sounds 

contain low frequencies. Natural sounds 

in the ocean span a huge range of 

frequencies: from earthquake noise at 5 

Hz to harbor porpoise clicks at 150,000 

Hz (150 kHz). These sounds are so low 

or so high in pitch that humans cannot 

even hear them; acousticians call these 

infrasonic (typically below 20 Hz) and 

ultrasonic (typically above 20,000 Hz) 

sounds, respectively. A single sound 

may be made up of many different 

frequencies together. Sounds made up 

of only a small range of frequencies are 

called ‘‘narrowband’’, and sounds with 

a broad range of frequencies are called 

‘‘broadband’’; explosives are an example 

of a broadband sound source and active 

tactical sonars are an example of a 

narrowband sound source. 

When considering the influence of 

various kinds of sound on the marine 

environment, it is necessary to 

understand that different kinds of 

marine life are sensitive to different 

frequencies of sound. Based on available 

behavioral data, audiograms derived 

using auditory evoked potential (AEP) 

techniques, anatomical modeling, and 

other data, Southall et al. (2007) 

designate ‘‘functional hearing groups’’ 

for marine mammals and estimate the 

lower and upper frequencies of 

functional hearing of the groups. 

Further, the frequency range in which 

each 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 

(though, again, animals are less 

sensitive to sounds at the outer edge of 

their functional range and most 

sensitive to sounds of frequencies 

within a smaller range somewhere in 

the middle of their functional hearing 

range): 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60851 

• Low frequency cetaceans (13 

species of mysticetes): functional 

hearing is estimated to occur between 

approximately 7 Hz and 22 kHz; 

• Mid-frequency cetaceans (32 

species of dolphins, six species of larger 

toothed whales, and 19 species of 

beaked and bottlenose whales): 

functional hearing is estimated to occur 

between approximately 150 Hz and 160 

kHz; 

• High frequency cetaceans (eight 

species of true porpoises, six species of 

river dolphins, Kogia, the franciscana, 

and four species of cephalorhynchids): 

functional hearing is estimated to occur 

between approximately 200 Hz and 180 

kHz; 

• Pinnipeds in Water: functional 

hearing is estimated to occur between 

approximately 75 Hz and 75 kHz, with 

the greatest sensitivity between 

approximately 700 Hz and 20 kHz. 

Because ears adapted to function 

underwater are physiologically different 

from human ears, comparisons using 

decibel measurements in air would still 

not be adequate to describe the effects 

of a sound on a whale. When sound 

travels away from its source, its 

loudness decreases as the distance 

traveled (propagates) by the sound 

increases. Thus, the loudness of a sound 

at its source is higher than the loudness 

of that same sound a kilometer distant. 

Acousticians often refer to the loudness 

of a sound at its source (typically 

measured one meter from the source) as 

the source level and the loudness of 

sound elsewhere as the received level. 

For example, a humpback whale three 

kilometers from an airgun that has a 

source level of 230 dB may only be 

exposed to sound that is 160 dB loud, 

depending on how the sound propagates 

(in this example, it is spherical 

spreading). As a result, it is important 

not to confuse source levels and 

received levels when discussing the 

loudness of sound in the ocean or its 

impacts on the marine environment. 

As sound travels from a source, its 

propagation in water is influenced by 

various physical characteristics, 

including water temperature, depth, 

salinity, and surface and bottom 

properties that cause refraction, 

reflection, absorption, and scattering of 

sound waves. Oceans are not 

homogeneous and the contribution of 

each of these individual factors is 

extremely complex and interrelated. 

The physical characteristics that 

determine the sound’s speed through 

the water will change with depth, 

season, geographic location, and with 

time of day (as a result, in actual MFAS/ 

HFAS operations, crews will measure 

oceanic conditions, such as sea water 

temperature and depth, to calibrate 

models that determine the path the 

sonar signal will take as it travels 

through the ocean and how strong the 

sound signal will be at a given range 

along a particular transmission path). As 

sound travels through the ocean, the 

intensity associated with the wavefront 

diminishes, or attenuates. This decrease 

in intensity is referred to as propagation 

loss, also commonly called transmission 

loss. 

Metrics Used in This Document 

This section includes a brief 

explanation of the two sound 

measurements (sound pressure level 

(SPL) and sound exposure level (SEL)) 

frequently used in the discussions of 

acoustic effects in this document. 

SPL 

Sound pressure is the sound force per 

unit area, and is usually measured in 

micropascals (μPa), where 1 Pa is the 

pressure resulting from a force of one 

newton exerted over an area of one 

square meter. SPL is expressed as the 

ratio of a measured sound pressure and 

a reference level. The commonly used 

reference pressure level in underwater 

acoustics is 1 μPa, and the units for 

SPLs are dB re: 1 μPa. 

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 μPa2-s. 

SEL = SPL + 10 log (duration in 

seconds). 

As applied to MFAS/HFAS, the SEL 

includes both the SPL of a sonar ping 

and the total duration. Longer duration 

pings and/or pings with higher SPLs 

will have a higher SEL. 

If an animal is exposed to multiple 

pings, the SEL in each individual ping 

is summed to calculate the total SEL. 

The total SEL depends on the SPL, 

duration, and number of pings received. 

The thresholds that NMFS uses to 

indicate at what received level the onset 

of temporary threshold shift (TTS) and 

permanent threshold shift (PTS) in 

hearing are likely to occur are expressed 

in SEL. 

Potential Effects of Specified Activities 

on Marine Mammals 

Exposure to MFAS/HFAS 

The Navy has requested authorization 

for the take of marine mammals that 

may occur incidental to training 

activities in the SOCAL Range Complex 

utilizing MFAS/HFAS or underwater 

detonations. The Navy has analyzed the 

potential impacts to marine mammals 

from training activities in the SOCAL 

Range Complex, including ship strike, 

entanglement in or direct strike by 

expended materials, ship noise, and 

others, and in consultation with NMFS 

as a cooperating agency for the SOCAL 

EIS, has determined that take of marine 

mammals incidental to these nonacoustic components of SOCAL is 

unlikely and, therefore, has not 

requested authorization for take of 

marine mammals that might occur 

incidental to these non-acoustic 

components. In this document, NMFS 

analyzes the potential effects on marine 

mammals from exposure to MFAS/ 

HFAS and underwater detonations from 

the IEER. 

For the purpose of MMPA 

authorizations, NMFS’ effects 

assessments serve three primary 

purposes: (1) to put forth the 

permissible methods of taking within 

the context of MMPA Level B 

Harassment (behavioral harassment), 

Level A Harassment (injury), and 

mortality (i.e., identify the number and 

types of take that will occur); (2) to 

determine whether the specified activity 

will have a negligible impact on the 

affected species or stocks of marine 

mammals (based on the likelihood that 

the activity will adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival); 

and (3) to determine whether the 

specified activity will have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

subsistence uses (however, there are no 

subsistence communities that would be 

affected in the SOCAL Range Complex, 

so this determination is inapplicable for 

SOCAL). 

More specifically, for activities 

involving sonar or underwater 

detonations, NMFS’ analysis will 

identify the probability of lethal 

responses, physical trauma, sensory 

impairment (permanent and temporary 


sroberts on PROD1PC70 with PROPOSALS
60852 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

threshold shifts and acoustic masking), 

physiological responses (particular 

stress responses), behavioral 

disturbance (that rises to the level of 

harassment), and social responses that 

would be classified as behavioral 

harassment or injury and/or would be 

likely to adversely affect the species or 

stock through effects on annual rates of 

recruitment or survival. In this section, 

we will focus qualitatively on the 

different ways that MFAS/HFAS and 

underwater explosive detonations 

(IEER) may affect marine mammals 

(some of which NMFS would not 

classify as harassment). Then, in the 

Estimated Take of Marine Mammals 

Section, NMFS will relate the potential 

effects to marine mammals from MFAS/ 

HFAS and underwater detonation of 

explosives to the MMPA regulatory 

definitions of Level A and Level B 

Harassment and attempt to quantify 

those effects. 

In its June 21, 2008, Biological 

Opinion of the U.S. Navy’s proposal to 

conduct MFAS in the Hawaii Range 

Complex, NMFS presented a conceptual 

model of the potential responses of 

endangered and threatened species 

upon being exposed to MFAS/HFAS 

and the pathways by which those 

responses might affect the fitness of 

individual animals that have been 

exposed, which may then affect the 

reproduction and/or survival of those 

individuals. Literature supporting the 

framework, with examples drawn from 

many taxa (both aquatic and terrestrial) 

was included in the ‘‘Application of this 

Approach’’ and ‘‘Response Analyses’’ 

sections of that document (available at: 

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

incidental.htm). This conceptual 

framework may also be used to describe 

the responses and pathways for nonendangered and non-threatened species 

and is included in Biological Opinion of 

the U.S. Navy’s proposal to conduct 

MFAS in the Hawaii Range Complex. 

Direct Physiological Effects 

Based on the literature, there are two 

basic ways that MFAS/HFAS might 

directly result in physical trauma or 

damage: Noise-induced loss of hearing 

sensitivity (more commonly called 

‘‘threshold shift’’) and acoustically 

mediated bubble growth. Separately, an 

animal’s behavioral reaction to an 

acoustic exposure might lead to 

physiological effects that might 

ultimately lead to injury or death, which 

is discussed later in the Stranding 

section. 

Threshold Shift (Noise-Induced Loss of 

Hearing) 

When animals exhibit reduced 

hearing sensitivity (i.e., sounds must be 

louder for an animal to recognize them) 

following exposure to a sufficiently 

intense sound, it is referred to as a 

noise-induced threshold shift (TS). An 

animal can experience temporary 

threshold shift (TTS) or permanent 

threshold shift (PTS). TTS can last from 

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

recovery), occurs in specific frequency 

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

a temporary loss of hearing sensitivity 

between the frequencies of 1 and 10 

kHz), and can be of varying amounts (for 

example, an animal’s hearing sensitivity 

might be reduced by only 6 dB or 

reduced by 30 dB). PTS is permanent 

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

occurs in a specific frequency range and 

amount as mentioned above for TTS. 

The following physiological 

mechanisms are thought to play a role 

in inducing auditory TSs: Effects to 

sensory hair cells in the inner ear that 

reduce their sensitivity, modification of 

the chemical environment within the 

sensory cells, residual muscular activity 

in the middle ear, displacement of 

certain inner ear membranes, increased 

blood flow, and post-stimulatory 

reduction in both efferent and sensory 

neural output (Southall et al., 2007). 

The amplitude, duration, frequency, 

temporal pattern, and energy 

distribution of sound exposure all affect 

the amount of associated TS and the 

frequency range in which it occurs. As 

amplitude and duration of sound 

exposure increase, so, generally, does 

the amount of TS, along with the 

recovery time. For continuous sounds, 

exposures of equal energy (the same 

SEL) will lead to approximately equal 

effects. For intermittent sounds, less TS 

will occur than from a continuous 

exposure with the same energy (some 

recovery will occur between 

intermittent exposures) (Kryter et al., 

1966; Ward, 1997). For example, one 

short but loud (higher SPL) sound 

exposure may induce the same 

impairment as one longer but softer 

sound, which in turn may cause more 

impairment than a series of several 

intermittent softer sounds with the same 

total energy (Ward, 1997). Additionally, 

though TTS is temporary, very 

prolonged exposure to sound strong 

enough to elicit TTS, or shorter-term 

exposure to sound levels well above the 

TTS threshold, can cause PTS, at least 

in terrestrial mammals (Kryter, 1985) 

(although in the case of MFAS/HFAS, 

animals are not expected to be exposed 

to levels high enough or durations long 

enough to result in PTS). 

PTS is considered auditory injury 

(Southall et al., 2007). Irreparable 

damage to the inner or outer cochlear 

hair cells may cause PTS; however, 

other mechanisms are also involved, 

such as exceeding the elastic limits of 

certain tissues and membranes in the 

middle and inner ears and resultant 

changes in the chemical composition of 

the inner ear fluids (Southall et al., 

2007). 

Although the published body of 

scientific literature contains numerous 

theoretical studies and discussion 

papers on hearing impairments that can 

occur with exposure to a loud sound, 

only a few studies provide empirical 

information on the levels at which 

noise-induced loss in hearing sensitivity 

occurs in nonhuman animals. For 

cetaceans, published data on the onset 

of TTS are limited to the captive 

bottlenose dolphin and beluga 

(Finneran et al., 2000, 2002b, 2005a; 

Schlundt et al., 2000; Nachtigall et al., 

2003, 2004). For pinnipeds in water, 

data are limited to Kastak et al.’s 

measurement of TTS in one harbor seal, 

one elephant seal, and one California 

sea lion. 

Marine mammal hearing plays a 

critical role in communication with 

conspecifics, and interpretation of 

environmental cues for purposes such 

as predator avoidance and prey capture. 

Depending on the degree (elevation of 

threshold in dB), duration (i.e., recovery 

time), and frequency range of TTS, and 

the context in which it is experienced, 

TTS can have effects on marine 

mammals ranging from discountable to 

serious (similar to those discussed in 

auditory masking, below). For example, 

a marine mammal may be able to readily 

compensate for a brief, relatively small 

amount of TTS in a non-critical 

frequency range that takes place during 

a time when the animal is traveling 

through the open ocean, where ambient 

noise is lower and there are not as many 

competing sounds present. 

Alternatively, a larger amount and 

longer duration of TTS sustained during 

time when communication is critical for 

successful mother/calf interactions 

could have more serious impacts. Also, 

depending on the degree and frequency 

range, the effects of PTS on an animal 

could range in severity, although it is 

considered generally more serious 

because it is a permanent condition. Of 

note, reduced hearing sensitivity as a 

simple function of development and 

aging has been observed in marine 

mammals, as well as humans and other 

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

infer that strategies exist for coping with 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60853 

this condition to some degree, though 

likely not without cost. There is no 

empirical evidence that exposure to 

MFAS/HFAS can cause PTS in any 

marine mammals; instead the 

probability of PTS has been inferred 

from studies of TTS (see Richardson et 

al., 1995). 

Acoustically Mediated Bubble Growth 

One theoretical cause of injury to 

marine mammals is rectified diffusion 

(Crum and Mao, 1996), the process of 

increasing the size of a bubble by 

exposing it to a sound field. This 

process could be facilitated if the 

environment in which the ensonified 

bubbles exist is supersaturated with gas. 

Repetitive diving by marine mammals 

can cause the blood and some tissues to 

accumulate gas to a greater degree than 

is supported by the surrounding 

environmental pressure (Ridgway and 

Howard, 1979). The deeper and longer 

dives of some marine mammals (for 

example, beaked whales) are 

theoretically predicted to induce greater 

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

rectified diffusion were possible in 

marine mammals exposed to high-level 

sound, conditions of tissue 

supersaturation could theoretically 

speed the rate and increase the size of 

bubble growth. Subsequent effects due 

to tissue trauma and emboli would 

presumably mirror those observed in 

humans suffering from decompression 

sickness. 

It is unlikely that the short duration 

of MFAS pings would be long enough 

to drive bubble growth to any 

substantial size, if such a phenomenon 

occurs. However, an alternative but 

related hypothesis has also been 

suggested: Stable bubbles could be 

destabilized by high-level sound 

exposures such that bubble growth then 

occurs through static diffusion of gas 

out of the tissues. In such a scenario the 

marine mammal would need to be in a 

gas-supersaturated state for a long 

enough period of time for bubbles to 

become of a problematic size. 

Yet another hypothesis 

(decompression sickness) has 

speculated that rapid ascent to the 

surface following exposure to a startling 

sound might produce tissue gas 

saturation sufficient for the evolution of 

nitrogen bubbles (Jepson et al., 2003; 

Fernandez et al., 2005). In this scenario, 

the rate of ascent would need to be 

sufficiently rapid to compromise 

behavioral or physiological protections 

against nitrogen bubble formation. 

Collectively, these hypotheses can be 

referred to as ‘‘hypotheses of 

acoustically mediated bubble growth.’’ 

Although theoretical predictions 

suggest the possibility for acoustically 

mediated bubble growth, there is 

considerable disagreement among 

scientists as to its likelihood (Piantadosi 

and Thalmann, 2004; Evans and Miller, 

2003). Crum and Mao (1996) 

hypothesized that received levels would 

have to exceed 190 dB in order for there 

to be the possibility of significant 

bubble growth due to supersaturation of 

gases in the blood (i.e., rectified 

diffusion). More recent work conducted 

by Crum et al. (2005) demonstrated the 

possibility of rectified diffusion for 

short duration signals, but at SELs and 

tissue saturation levels that are highly 

improbable to occur in diving marine 

mammals. To date, Energy Levels (ELs) 

predicted to cause in vivo bubble 

formation within diving cetaceans have 

not been evaluated (NOAA, 2002b). 

Although it has been argued that 

traumas from some recent beaked whale 

strandings are consistent with gas 

emboli and bubble-induced tissue 

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

no conclusive evidence of this. 

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

Fernandez et al. (2004, 2005) concluded 

that in vivo bubble formation, which 

may be exacerbated by deep, longduration, repetitive dives may explain 

why beaked whales appear to be 

particularly vulnerable to MFAS/HFAS 

exposures. Further investigation is 

needed to further assess the potential 

validity of these hypotheses. More 

information regarding hypotheses that 

attempt to explain how behavioral 

responses to MFAS/HFAS can lead to 

strandings is included in the 

Behaviorally Mediated Bubble Growth 

Section, after the summary of 

strandings. 

Acoustic Masking 

Marine mammals use acoustic signals 

for a variety of purposes, which differ 

among species, but include 

communication between individuals, 

navigation, foraging, reproduction, and 

learning about their environment (Erbe 

and Farmer, 2000; Tyack, 2000). 

Masking, or auditory interference, 

generally occurs when sounds in the 

environment are louder than and of a 

similar frequency to, auditory signals an 

animal is trying to receive. Masking is 

a phenomenon that affects animals that 

are trying to receive acoustic 

information about their environment, 

including sounds from other members 

of their species, predators, prey, and 

sounds that allow them to orient in their 

environment. Masking these acoustic 

signals can disturb the behavior of 

individual animals, groups of animals, 

or entire populations. 

The extent of the masking interference 

depends on the spectral, temporal, and 

spatial relationships between the signals 

an animal is trying to receive and the 

masking noise, in addition to other 

factors. In humans, significant masking 

of tonal signals occurs as a result of 

exposure to noise in a narrow band of 

similar frequencies. As the sound level 

increases, though, the detection of 

frequencies above those of the masking 

stimulus decreases also. This principle 

is expected to apply to marine mammals 

as well because of common 

biomechanical cochlear properties 

across taxa. 

Richardson et al. (1995b) argued that 

the maximum radius of influence of an 

industrial noise (including broadband 

low-frequency sound transmission) on a 

marine mammal is the distance from the 

source to the point at which the noise 

can barely be heard. This range is 

determined by either the hearing 

sensitivity of the animal or the 

background noise level present. 

Industrial masking is most likely to 

affect some species’ ability to detect 

communication calls and natural 

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

Richardson et al., 1995). 

The echolocation calls of toothed 

whales are subject to masking by highfrequency sound. Human data indicate 

low-frequency sound can mask highfrequency 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 highfrequencies these cetaceans use to 

echolocate, but not at the low-tomoderate frequencies they use to 

communicate (Zaitseva et al., 1980). A 

recent study by Nachtigall and Supin 

(2008) showed that false killer whales 

adjust their hearing to compensate for 

ambient sounds and the intensity of 

returning echolocation signals. 

Nachtigall, P.E. and A.Y. Supin. 2008 

As mentioned previously, the 

functional hearing ranges of mysticetes, 

odontocetes, and pinnipeds underwater 

all encompass the frequencies of the 

MFAS/HFAS sources used in the Navy’s 

MFAS/HFAS training exercises. 

Additionally, in almost all species, 

vocal repertoires span across the 

frequencies of these MFAS/HFAS 

sources used by the Navy. The closer 

the characteristics of the masking signal 

to the signal of interest, the more likely 


sroberts on PROD1PC70 with PROPOSALS
60854 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

masking is to occur. For hull-mounted 

MFAS/HFAS—which accounts for the 

largest part of the takes of marine 

mammals (because of the source 

strength and number of hours it’s 

conducted), the pulse length and duty 

cycle of the MFAS/HFAS signal (∼ 1 

second pulse twice a minute) makes it 

less likely that masking will occur as a 

result. 

Impaired Communication 

In addition to making it more difficult 

for animals to perceive acoustic cues in 

their environment, anthropogenic sound 

presents separate challenges for animals 

that are vocalizing. When they vocalize, 

animals are aware of environmental 

conditions that affect the ‘‘active space’’ 

of their vocalizations, which is the 

maximum area within which their 

vocalizations can be detected before it 

drops to the level of ambient noise 

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

Lohr et al., 2003). Animals are also 

aware of environmental conditions that 

affect whether listeners can discriminate 

and recognize their vocalizations from 

other sounds, which is more important 

than simply detecting that a 

vocalization is occurring (Brenowitz, 

1982; Brumm et al., 2004; Dooling, 

2004, Marten and Marler, 1977; 

Patricelli et al., 2006). Most animals that 

vocalize have evolved with an ability to 

make adjustments to their vocalizations 

to increase the signal-to-noise ratio, 

active space, and recognizability/ 

distinguishability of their vocalizations 

in the face of temporary changes in 

background noise (Brumm et al., 2004; 

Patricelli et al., 2006). Vocalizing 

animals can make one or more of the 

following adjustments to their 

vocalizations: Adjust the frequency 

structure; adjust the amplitude; adjust 

temporal structure; or adjust temporal 

delivery (see Biological Opinion). 

Many animals will combine several of 

these strategies to compensate for high 

levels of background noise. 

Anthropogenic sounds that reduce the 

signal-to-noise ratio of animal 

vocalizations, increase the masked 

auditory thresholds of animals listening 

for such vocalizations, or reduce the 

active space of an animal’s vocalizations 

impair communication between 

animals. Most animals that vocalize 

have evolved strategies to compensate 

for the effects of short-term or temporary 

increases in background or ambient 

noise on their songs or calls. Although 

the fitness consequences of these vocal 

adjustments remain unknown, like most 

other trade-offs animals must make, 

some of these strategies probably come 

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

example, vocalizing more loudly in 

noisy environments may have energetic 

costs that decrease the net benefits of 

vocal adjustment and alter a bird’s 

energy budget (Brumm, 2004; Wood and 

Yezerinac, 2006). Shifting songs and 

calls to higher frequencies may also 

impose energetic costs (Lambrechts, 

1996). 

Stress Responses 

Classic stress responses begin when 

an animal’s central nervous system 

perceives a potential threat to its 

homeostasis. That perception triggers 

stress responses regardless of whether a 

stimulus actually threatens the animal; 

the mere perception of a threat is 

sufficient to trigger a stress response 

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

Seyle, 1950). Once an animal’s central 

nervous system perceives a threat, it 

mounts a biological response or defense 

that consists of a combination of the 

four general biological defense 

responses: Behavioral responses, 

autonomic nervous system responses, 

neuroendocrine responses, or immune 

response. 

In the case of many stressors, an 

animal’s first and most economical (in 

terms of biotic costs) response is 

behavioral avoidance of the potential 

stressor or avoidance of continued 

exposure to a stressor. An animal’s 

second line of defense to stressors 

involves the sympathetic part of the 

autonomic nervous system and the 

classical ‘‘fight or flight’’ response 

which includes the cardiovascular 

system, the gastrointestinal system, the 

exocrine glands, and the adrenal 

medulla to produce changes in heart 

rate, blood pressure, and gastrointestinal 

activity that humans commonly 

associate with ‘‘stress.’’ These responses 

have a relatively short duration and may 

or may not have significant long-term 

effect on an animal’s welfare. 

An animal’s third line of defense to 

stressors involves its neuroendocrine or 

sympathetic nervous systems; the 

system that has received the most study 

has been the 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; see Romano et al., 

2004) have been equated with stress for 

many years. 

The primary distinction between 

stress (which is adaptive and does not 

normally place an animal at risk) and 

distress is the biotic cost of the 

response. During a stress response, an 

animal uses glycogen stores that can be 

quickly replenished once the stress is 

alleviated. In such circumstances, the 

cost of the stress response would not 

pose a risk to the animal’s welfare. 

However, when an animal does not have 

sufficient energy reserves to satisfy the 

energetic costs of a stress response, 

energy resources must be diverted from 

other biotic function, which impairs 

those functions that experience the 

diversion. For example, when mounting 

a stress response diverts energy away 

from growth in young animals, those 

animals may experience stunted growth. 

When mounting a stress response 

diverts energy from a fetus, an animal’s 

reproductive success and its fitness will 

suffer. In these cases, the animals will 

have entered a pre-pathological or 

pathological state which is called 

‘‘distress’’ (sensu Seyle, 1950) or 

‘‘allostatic loading’’ (sensu McEwen and 

Wingfield, 2003). This pathological state 

will last until the animal replenishes its 

biotic reserves sufficient to restore 

normal function. 

Relationships between these 

physiological mechanisms, animal 

behavior, and the costs of stress 

responses have also been documented 

fairly well through controlled 

experiment; because this physiology 

exists in every vertebrate that has been 

studied, it is not surprising that stress 

responses and their costs have been 

documented in both laboratory and 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 high 

frequency, mid-frequency and lowfrequency sounds. 

For example, Jansen (1998) reported 

on the relationship between acoustic 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60855 

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 noiseinduced physiological transient stress 

responses in hearing-specialist fish (i.e., 

goldfish) that accompanied short- and 

long-term hearing losses. Welch and 

Welch (1970) reported physiological 

and behavioral stress responses that 

accompanied damage to the inner ears 

of fish and several mammals. 

Hearing is one of the primary senses 

marine mammals use to gather 

information about their environment 

and to communicate with conspecifics. 

Although empirical information on the 

relationship between sensory 

impairment (TTS, PTS, and acoustic 

masking) on marine mammals remains 

limited, it seems reasonable to assume 

that reducing an animal’s ability to 

gather information about its 

environment and to communicate with 

other members of its species would be 

stressful for animals that use hearing as 

their primary sensory mechanism. 

Therefore, we assume that acoustic 

exposures sufficient to trigger onset PTS 

or TTS would be accompanied by 

physiological stress responses because 

terrestrial animals exhibit those 

responses under similar conditions 

(NRC, 2003). More importantly, marine 

mammals might experience stress 

responses at received levels lower than 

those necessary to trigger onset TTS. 

Based on empirical studies of the time 

required to recover from stress 

responses (Moberg, 2000), NMFS also 

assumes that stress responses could 

persist beyond the time interval 

required for animals to recover from 

TTS and might result in pathological 

and pre-pathological states that would 

be as significant as behavioral responses 

to TTS. 

Behavioral Disturbance 

Behavioral responses to sound are 

highly variable and context-specific. 

Many different variables can influence 

an animal’s perception of and response 

to (nature and magnitude) an acoustic 

event. An animal’s prior experience 

with a sound or sound source effects 

whether it is less likely (habituation) or 

more likely (sensitization) to respond to 

certain sounds in the future (animals 

can also be innately pre-disposed to 

respond to certain sounds in certain 

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

the sound itself, the perceived nearness 

of the sound, bearing of the sound 

(approaching vs. retreating), similarity 

of a sound to biologically relevant 

sounds in the animal’s environment 

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

conspecifics), and familiarity of the 

sound may effect the way an animal 

responds to the sound (Southall et al., 

2007). Individuals (of different age, 

gender, reproductive status, etc.) among 

most populations will have variable 

hearing capabilities, and differing 

behavioral sensitivities to sounds that 

will be affected by prior conditioning, 

experience, and current activities of 

those individuals. Often, specific 

acoustic features of the sound and 

contextual variables (i.e., proximity, 

duration, or recurrence of the sound or 

the current behavior that the marine 

mammal is engaged in or its prior 

experience), as well as entirely separate 

factors such as the physical presence of 

a nearby vessel, may be more relevant 

to the animal’s response than the 

received level alone. 

Exposure of marine mammals to 

sound sources can result in (but is not 

limited to) the following observable 

responses: Increased alertness; 

orientation or attraction to a sound 

source; vocal modifications; cessation of 

feeding; cessation of social interaction; 

alteration of movement or diving 

behavior; habitat abandonment 

(temporary or permanent); and, in 

severe cases, panic, flight, stampede, or 

stranding, potentially resulting in death 

(Southall et al., 2007). A review of 

marine mammal responses to 

anthropogenic sound was first 

conducted by Richardson (1995). A 

more recent review (Nowacek et al., 

2007) addresses studies conducted since 

1995 and focuses on observations where 

the received sound level of the exposed 

marine mammal(s) was known or could 

be estimated. The following subsections provide examples of behavioral 

responses that provide an idea of the 

variability in behavioral responses that 

would be expected given the differential 

sensitivities of marine mammal species 

to sound and the wide range of potential 

acoustic sources to which a marine 

mammal may be exposed. Estimates of 

the types of behavioral responses that 

could occur for a given sound exposure 

should be determined from the 

literature that is available for each 

species, or extrapolated from closely 

related species when no information 

exists. 

Flight Response—A flight response is 

a dramatic change in normal movement 

to a directed and rapid movement away 

from the perceived location of a sound 

source. Relatively little information on 

flight responses of marine mammals to 

anthropogenic signals exist, although 

observations of flight responses to the 

presence of predators have occurred 

(Connor and Heithaus, 1996). Flight 

responses have been speculated as being 

a component of marine mammal 

strandings associated with MFAS 

activities (Evans and England, 2001). 

Response to Predator—Evidence 

suggests that at least some marine 

mammals have the ability to 

acoustically identify potential predators. 

For example, harbor seals that reside in 

the coastal waters off British Columbia 

are frequently targeted by certain groups 

of killer whales, but not others. The 

seals discriminate between the calls of 

threatening and non-threatening killer 

whales (Deecke et al., 2002), a capability 

that should increase survivorship while 

reducing the energy required for 

attending to and responding to all killer 

whale calls. 

Diving—Changes in dive behavior can 

vary widely. They may consist of 

increased or decreased dive times and 

surface intervals as well as changes in 

the rates of ascent and descent during a 

dive. Variations in dive behavior may 

reflect interruptions in biologically 

significant activities (e.g., foraging) or 

they may be of little biological 

significance. Variations in dive behavior 

may also expose an animal to 

potentially harmful conditions (e.g., 

increasing the chance of ship-strike) or 

may serve as an avoidance response that 

enhances survivorship. The impact of a 

variation in diving resulting from an 

acoustic exposure depends on what the 

animal is doing at the time of the 

exposure and the type and magnitude of 

the response. 

Nowacek et al. (2004) reported 

disruptions of dive behaviors in foraging 

North Atlantic right whales when 

exposed to an alerting stimulus, an 

action, they noted, that could lead to an 

increased likelihood of ship strike. 

However, the whales did not respond to 

playbacks of either right whale social 

sounds or vessel noise, highlighting the 

importance of the sound characteristics 

in producing a behavioral reaction. 

Conversely, Indo-Pacific humpback 

dolphins have been observed to dive for 

longer periods of time in areas where 

vessels were present and/or 

approaching (Ng and Leung, 2003). In 

both of these studies, the influence of 

the sound exposure cannot be 

decoupled from the physical presence of 

a surface vessel, thus complicating 


sroberts on PROD1PC70 with PROPOSALS
60856 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

interpretations of the relative 

contribution of each stimulus to the 

response. Indeed, the presence of 

surface vessels, their approach and 

speed of approach, seemed to be 

significant factors in the response of the 

Indo-Pacific humpback dolphins (Ng 

and Leung, 2003). Low frequency 

signals of the Acoustic Thermometry of 

Ocean Climate (ATOC) sound source 

were not found to affect dive times of 

humpback whales in Hawaiian waters 

(Frankel and Clark, 2000) or to overtly 

affect elephant seal dives (Costa et al., 

2003). They did, however, produce 

subtle effects that varied in direction 

and degree among the individual seals, 

illustrating the equivocal nature of 

behavioral effects and consequent 

difficulty in defining and predicting 

them. 

Due to past incidents of beaked whale 

strandings associated with MFAS 

operations, feedback paths are provided 

between avoidance and diving and 

indirect tissue effects. This feedback 

accounts for the hypothesis that 

variations in diving behavior and/or 

avoidance responses can possibly result 

in nitrogen tissue supersaturation and 

nitrogen off-gassing, possibly to the 

point of deleterious vascular bubble 

formation (Jepson et al., 2003). 

Foraging—Disruption of feeding 

behavior can be difficult to correlate 

with anthropogenic sound exposure, so 

it is usually inferred by observed 

displacement from known foraging 

areas, the appearance of secondary 

indicators (e.g., bubble nets or sediment 

plumes), or changes in dive behavior. 

Noise from seismic surveys was not 

found to impact the feeding behavior in 

western grey whales off the coast of 

Russia (Yazvenko et al., 2007) and 

sperm whales engaged in foraging dives 

did not abandon dives when exposed to 

distant signatures of seismic airguns 

(Madsen et al., 2006). Balaenopterid 

whales exposed to moderate lowfrequency signals similar to the ATOC 

sound source demonstrated no variation 

in foraging activity (Croll et al., 2001), 

whereas five out of six North Atlantic 

right whales exposed to an acoustic 

alarm interrupted their foraging dives 

(Nowacek et al., 2004). Although the 

received sound pressure level at the 

animals was similar in the latter two 

studies, the frequency, duration, and 

temporal pattern of signal presentation 

were different. These factors, as well as 

differences in species sensitivity, are 

likely contributing factors to the 

differential response. A determination 

of whether foraging disruptions incur 

fitness consequences will require 

information on or estimates of the 

energetic requirements of the 

individuals and the relationship 

between prey availability, foraging effort 

and success, and the life history stage of 

the animal. 

Breathing—Variations in respiration 

naturally vary with different behaviors 

and variations in respiration rate as a 

function of acoustic exposure can be 

expected to co-occur with other 

behavioral reactions, such as a flight 

response or an alteration in diving. 

However, respiration rates in and of 

themselves may be representative of 

annoyance or an acute stress response. 

Mean exhalation rates of gray whales at 

rest and while diving were found to be 

unaffected by seismic surveys 

conducted adjacent to the whale feeding 

grounds (Gailey et al., 2007). Studies 

with captive harbor porpoises showed 

increased respiration rates upon 

introduction of acoustic alarms 

(Kastelein et al., 2001; Kastelein et al., 

2006a) and emissions for underwater 

data transmission (Kastelein et al., 

2005). However, exposure of the same 

acoustic alarm to a striped dolphin 

under the same conditions did not elicit 

a response (Kastelein et al., 2006a), 

again highlighting the importance in 

understanding species differences in the 

tolerance of underwater noise when 

determining the potential for impacts 

resulting from anthropogenic sound 

exposure. 

Social relationships—Social 

interactions between mammals can be 

affected by noise via the disruption of 

communication signals or by the 

displacement of individuals. Disruption 

of social relationships therefore depends 

on the disruption of other behaviors 

(e.g., caused avoidance, masking, etc.) 

and no specific overview is provided 

here. However, social disruptions must 

be considered in context of the 

relationships that are affected. Longterm disruptions of mother/calf pairs or 

mating displays have the potential to 

affect the growth and survival or 

reproductive effort/success of 

individuals, respectively. 

Vocalizations (also see Masking 

Section)—Vocal changes in response to 

anthropogenic noise can occur across 

the repertoire of sound production 

modes used by marine mammals, such 

as whistling, echolocation click 

production, calling, and singing. 

Changes may result in response to a 

need to compete with an increase in 

background noise or may reflect an 

increased vigilance or startle response. 

For example, in the presence of lowfrequency active sonar, humpback 

whales have been observed to increase 

the length of their ‘‘songs’’ (Miller et al., 

2000; Fristrup et al., 2003), possibly due 

to the overlap in frequencies between 

the whale song and the low-frequency 

active sonar. A similar compensatory 

effect for the presence of low frequency 

vessel noise has been suggested for right 

whales; right whales have been 

observed to shift the frequency content 

of their calls upward while reducing the 

rate of calling in areas of increased 

anthropogenic noise (Parks et al., 2007). 

Killer whales off the northwestern coast 

of the United States have been observed 

to increase the duration of primary calls 

once a threshold in observing vessel 

density (e.g., whale watching) was 

reached, which has been suggested as a 

response to increased masking noise 

produced by the vessels (Foote et al., 

2004). In contrast, both sperm and pilot 

whales potentially ceased sound 

production during the Heard Island 

feasibility test (Bowles et al., 1994), 

although it cannot be absolutely 

determined whether the inability to 

acoustically detect the animals was due 

to the cessation of sound production or 

the displacement of animals from the 

area. 

Avoidance—Avoidance is the 

displacement of an individual from an 

area as a result of the presence of a 

sound. Richardson et al. (1995) noted 

that avoidance reactions are the most 

obvious manifestations of disturbance in 

marine mammals. It is qualitatively 

different from the flight response, but 

also differs in the magnitude of the 

response (i.e., directed movement, rate 

of travel, etc.). Oftentimes avoidance is 

temporary, and animals return to the 

area once the noise has ceased. Longer 

term displacement is possible, however, 

which can lead to changes in abundance 

or distribution patterns of the species in 

the affected region if they do not 

become acclimated to the presence of 

the sound (Blackwell et al., 2004; Bejder 

et al., 2006; Teilmann et al., 2006). 

Acute avoidance responses have been 

observed in captive porpoises and 

pinnipeds exposed to a number of 

different sound sources (Kastelein et al., 

2001; Finneran et al., 2003; Kastelein et 

al., 2006a; Kastelein et al., 2006b). Short 

term avoidance of seismic surveys, low 

frequency emissions, and acoustic 

deterrents have also been noted in wild 

populations of odontocetes (Bowles et 

al., 1994; Goold, 1996; 1998; Stone et 

al., 2000; Morton and Symonds, 2002) 

and to some extent in mysticetes (Gailey 

et al., 2007), while longer term or 

repetitive/chronic displacement for 

some dolphin groups and for manatees 

has been suggested to be due to the 

presence of chronic vessel noise 

(Haviland-Howell et al., 2007; MiksisOlds et al., 2007). 

Orientation—A shift in an animal’s 

resting state or an attentional change via 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60857 

an orienting response represent 

behaviors that would be considered 

mild disruptions if occurring alone. As 

previously mentioned, the responses 

may co-occur with other behaviors; for 

instance, an animal may initially orient 

toward a sound source, and then move 

away from it. Thus, any orienting 

response should be considered in 

context of other reactions that may 

occur. 

There are few empirical studies of 

avoidance responses of free-living 

cetaceans to mid-frequency active 

sonars. Much more information is 

available on the avoidance responses of 

free-living cetaceans to other acoustic 

sources, such as seismic airguns and 

low frequency active sonar, than midfrequency active sonar. 

Behavioral Responses (Southall et al. 

(2007)) 

Southall et al. (2007) reports the 

results of the efforts of a panel of experts 

in acoustic research from behavioral, 

physiological, and physical disciplines 

that convened and reviewed the 

available literature on marine mammal 

hearing and physiological and 

behavioral responses to human-made 

sound with the goal of proposing 

exposure criteria for certain effects. This 

peer-reviewed compilation of literature 

is very valuable, though Southall et al. 

(2007) note that not all data are equal, 

some have poor statistical power, 

insufficient controls, and/or limited 

information on received levels, 

background noise, and other potentially 

important contextual variables—such 

data were reviewed and sometimes used 

for qualitative illustration but were not 

included in the quantitative analysis for 

the criteria recommendations. All of the 

studies considered, however, contain an 

estimate of the received sound level 

when the animal exhibited the indicated 

response. 

In the Southall et al. (2007) 

publication, for the purposes of 

analyzing responses of marine mammals 

to anthropogenic sound and developing 

criteria, the authors differentiate 

between single pulse sounds, multiple 

pulse sounds, and non-pulse sounds. 

MFAS/HFAS is considered a non-pulse 

sound. Southall et al. (2007) summarize 

the studies associated with lowfrequency, mid-frequency, and highfrequency cetacean and pinniped 

responses to non-pulse sounds, based 

strictly on received level, in Appendix 

C of their article (incorporated by 

reference and summarized in the three 

paragraphs below). 

The studies that address responses of 

low frequency cetaceans to non-pulse 

sounds include data gathered in the 

field and related to several types of 

sound sources (of varying similarity to 

MFAS/HFAS) including: vessel noise, 

drilling and machinery playback, lowfrequency M-sequences (sine wave with 

multiple phase reversals) playback, 

tactical low-frequency active sonar 

playback, drill ships, Acoustic 

Thermometry of Ocean Climate (ATOC) 

source, and non-pulse playbacks. These 

studies generally indicate no (or very 

limited) responses to received levels in 

the 90 to 120 dB re: 1μPa range and an 

increasing likelihood of avoidance and 

other behavioral effects in the 120 to 

160 dB range. As mentioned earlier, 

though, contextual variables play a very 

important role in the reported responses 

and the severity of effects are not linear 

when compared to the received level. 

Also, few of the laboratory or field 

datasets had common conditions, 

behavioral contexts or sound sources, so 

it is not surprising that responses differ. 

The studies that address responses of 

mid-frequency cetaceans to non-pulse 

sounds include data gathered both in 

the field and the laboratory and related 

to several different sound sources (of 

varying similarity to MFAS/HFAS) 

including: pingers, drilling playbacks, 

ship and ice-breaking noise, vessel 

noise, Acoustic Harassment Devices 

(AHDs), Acoustic Deterrent Devices 

(ADDs), MFAS, and non-pulse bands 

and tones. Southall et al. (2007) were 

unable to come to a clear conclusion 

regarding the results of these studies. In 

some cases, animals in the field showed 

significant responses to received levels 

between 90 and 120 dB, while in other 

cases these responses were not seen in 

the 120 to 150 dB range. The disparity 

in results was likely due to contextual 

variation and the differences between 

the results in the field and laboratory 

data (animals typically responded at 

lower levels in the field). 

The studies that address responses of 

high frequency cetaceans to non-pulse 

sounds include data gathered both in 

the field and the laboratory and related 

to several different sound sources (of 

varying similarity to MFAS/HFAS) 

including: pingers, AHDs, and various 

laboratory non-pulse sounds. All of 

these data were collected from harbor 

porpoises. Southall et al. (2007) 

concluded that the existing data 

indicate that harbor porpoises are likely 

sensitive to a wide range of 

anthropogenic sounds at low received 

levels (∼90–120 dB), at least for initial 

exposures. All recorded exposures 

above 140 dB induced profound and 

sustained avoidance behavior in wild 

harbor porpoises (Southall et al., 2007). 

Rapid habituation was noted in some 

but not all studies. The Pacific harbor 

porpoise, however, does not normally 

occur within Southern California south 

of Point Conception, and would 

therefore, not be exposed to Navy 

activities covered by this proposed rule. 

There is no data to indicate whether 

other high frequency cetaceans are as 

sensitive to anthropogenic sound as 

harbor porpoises are. 

The studies that address the responses 

of pinnipeds in water to non-pulse 

sounds include data gathered both in 

the field and the laboratory and related 

to several different sound sources (of 

varying similarity to MFAS/HFAS) 

including: AHDs, ATOC, various nonpulse sounds used in underwater data 

communication; underwater drilling, 

and construction noise. Few studies 

exist with enough information to 

include them in the analysis. The 

limited data suggested that exposures to 

non-pulse sounds between 90 and 140 

dB generally do not result in strong 

behavioral responses in pinnipeds in 

water, but no data exist at higher 

received levels. 

In addition to summarizing the 

available data, the authors of Southall et 

al. (2007) developed a severity scaling 

system with the intent of ultimately 

being able to assign some level of 

biological significance to a response. 

Following is a summary of their scoring 

system, a comprehensive list of the 

behaviors associated with each score 

may be found in the report: 

• 0–3 (Minor and/or brief behaviors) 

includes, but is not limited to: No 

response; minor changes in speed or 

locomotion (but with no avoidance); 

individual alert behavior; minor 

cessation in vocal behavior; minor 

changes in response to trained behaviors 

(in laboratory) 

• 4–6 (Behaviors with higher 

potential to affect foraging, 

reproduction, or survival) includes, but 

is not limited to: Moderate changes in 

speed, direction, or dive profile; brief 

shift in group distribution; prolonged 

cessation or modification of vocal 

behavior (duration > duration of sound), 

minor or moderate individual and/or 

group avoidance of sound; brief 

cessation of reproductive behavior; or 

refusal to initiate trained tasks (in 

laboratory) 

• 7–9 (Behaviors considered likely to 

affect the aforementioned vital rates) 

includes, but is not limited to: Extensive 

or prolonged aggressive behavior; 

moderate, prolonged or significant 

separation of females and dependent 

offspring with disruption of acoustic 

reunion mechanisms; long-term 

avoidance of an area; outright panic, 

stampede, stranding; threatening or 

attacking sound source (in laboratory) 


sroberts on PROD1PC70 with PROPOSALS
60858 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

In Table 5 we have summarized the 

scores that Southall et al. (2007) 

assigned to the papers that reported 

behavioral responses of low-frequency 

cetaceans, mid-frequency cetaceans, and 

pinnipeds in water to non-pulse sounds. 

This table is included simply to 

summarize the findings of the studies 

and opportunistic observations (all of 

which were capable of estimating 

received level) that Southall et al. (2007) 

compiled in the effort to develop 

acoustic criteria. 

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 to being vigilant, and less time 

resting or foraging, when aircraft made 

direct approaches over them (Frid, 2001; 

Stockwell et al., 1991). 

Several authors have established that 

long-term and intense disturbance 

stimuli can cause population declines 

by reducing the body condition of 

individuals that have been disturbed, 

followed by reduced reproductive 

success, reduced survival, or both (Daan 

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

1983). For example, Madsen (1994) 

reported that pink-footed geese (Anser 

brachyrhynchus) in undisturbed habitat 

gained body mass and had about a 46- 

percent reproductive success rate 

compared with geese in disturbed 

habitat (being consistently scared off the 

fields on which they were foraging) 

which did not gain mass and has a 17- 

percent reproductive success rate. 

Similar reductions in reproductive 

success have been reported for mule 

deer (Odocoileus hemionus) disturbed 

by all-terrain vehicles (Yarmoloy et al., 

1988), caribou disturbed by seismic 

exploration blasts (Bradshaw et al., 

1998), caribou disturbed by lowelevation military jet-fights (Luick et al., 

1996), and caribou disturbed by lowelevation 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 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.029</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60859 

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). Alternately, Ridgway et al. (2006) 

reported that increased vigilance in 

bottlenose dolphins exposed to sound 

over a five day period did not cause any 

sleep deprivation or stress effects such 

as changes in cortisol or epinephrine 

levels. 

On a related note, many animals 

perform vital functions, such as feeding, 

resting, traveling, and socializing, on a 

diel cycle (24-hr cycle). Substantive 

behavioral reactions to noise exposure 

(such as disruption of critical life 

functions, displacement, or avoidance of 

important habitat) are more likely to be 

significant if they last more than one 

diel cycle or recur on subsequent days 

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

behavioral response lasting less than 

one day and not recurring on 

subsequent days is not considered 

particularly severe unless it could 

directly affect reproduction or survival 

(Southall et al., 2007). 

Stranding and Mortality 

When a live or dead marine mammal 

swims or floats onto shore and becomes 

‘‘beached’’ or incapable of returning to 

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

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

2002; Geraci and Lounsbury, 2005; 

National Marine Fisheries Service, 

2007p). The legal definition for a 

stranding within the United States is 

that (A) ‘‘a marine mammal is dead and 

is (i) on a beach or shore of the United 

States; or (ii) in waters under the 

jurisdiction of the United States 

(including any navigable waters); or (B) 

a marine mammal is alive and is (i) on 

a beach or shore of the United States 

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

on a beach or shore of the United States 

and, although able to return to the 

water, is in need of apparent medical 

attention; or (iii) in the waters under the 

jurisdiction of the United States 

(including any navigable waters), but is 

unable to return to its natural habitat 

under its own power or without 

assistance.’’ (16 U.S.C. 1421h). 

Marine mammals are known to strand 

for a variety of reasons, such as 

infectious agents, biotoxicosis, 

starvation, fishery interaction, ship 

strike, unusual oceanographic or 

weather events, sound exposure, or 

combinations of these stressors 

sustained concurrently or in series. 

However, the cause or causes of most 

strandings are unknown (Geraci et al., 

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

Best, 1982). Numerous studies suggest 

that the physiology, behavior, habitat 

relationships, age, or condition of 

cetaceans may cause them to strand or 

might pre-dispose them to strand when 

exposed to another phenomenon. These 

suggestions are consistent with the 

conclusions of numerous other studies 

that have demonstrated that 

combinations of dissimilar stressors 

commonly combine to kill an animal or 

dramatically reduce its fitness, even 

though one exposure without the other 

does not produce the same result 

(Chroussos, 2000; Creel, 2005; DeVries 

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

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

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

2004). 

Several sources have published lists 

of mass stranding events of cetaceans 

during attempts to identify relationships 

between those stranding events and 

military active sonar (Hildebrand, 2004; 

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

example, based on a review of stranding 

records between 1960 and 1995, the 

International Whaling Commission 

(2005) identified ten mass stranding 

events of Cuvier’s beaked whales that 

had been reported and one mass 

stranding of four Baird’s beaked 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 

coincident with the use of MFAS, one 

of those seven had been associated with 

the use of tactical low-frequency sonar, 

and the remaining stranding event had 

been associated with the use of seismic 

airguns. 

Most of the stranding events reviewed 

by the International Whaling 

Commission involved beaked whales. A 

mass stranding of Cuvier’s beaked 

whales in the eastern Mediterranean Sea 

occurred in 1996 (Franzis, 1998) and 

mass stranding events involving 

Gervais’ beaked whales, Blainville’s 

beaked whales, and Cuvier’s beaked 

whales occurred off the coast of the 

Canary Islands in the late 1980s 

(Simmonds and Lopez-Jurado, 1991). 

The stranding events that occurred in 

the Canary Islands and Kyparissiakos 

Gulf in the late 1990s and the Bahamas 

in 2000 have been the most intensively 

studied mass stranding events and have 

been associated with naval maneuvers 

involving the use of MFAS. 

Between 1960 and 2006, 48 strandings 

(68 percent) involved beaked whales, 3 

(4 percent) involved dolphins, and 14 

(20 percent) involved whale species. 

Cuvier’s beaked whales were involved 

in the greatest number of these events 

(48 or 68 percent), followed by sperm 

whales (7 or 10 percent), and 

Blainville’s and Gervais’ beaked whales 

(4 each or 6 percent). Naval activities 

that might have involved active sonar 

are reported to have coincided with 9 

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

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

the International Whaling Commission), 

we identified reports of 44 mass 

cetacean stranding events of which at 

least 7 were coincident with naval 

exercises that were using mid-frequency 

sonar. 

Strandings Associated With MFAS 

Over the past 12 years, there have 

been five stranding events coincident 

with military mid-frequency active 

sonar use in which exposure to sonar is 

believed to have been a contributing 

factor: Greece (1996); the Bahamas 

(2000); Madeira (2000); Canary Islands 

(2002); and Spain (2006). A number of 

other stranding events coincident with 

the operation of MFAS including the 

death of beaked whales or other species 

(minke whales, dwarf sperm whales, 

pilot whales) have been reported, 

however, the majority have not been 

investigated to the degree necessary to 

determine the cause of the stranding. 

Greece (1996) 

Twelve Cuvier’s beaked whales 

stranded atypically (in both time and 

space) along a 38.2-kilometer strand of 

the coast of the Kyparissiakos Gulf on 

May 12 and 13, 1996 (Frantzis, 1998). 

From May 11 through May 15, the 

NATO research vessel Alliance was 

conducting active sonar tests with 

signals of 600 Hz and 3 kHz and source 

levels of 228 and 226 dB re: 1μPa, 

respectively (D’Amico and Verboom, 

1998; D’Spain et al., 2006). The timing 

and the location of the testing 

encompassed the time and location of 

the whale strandings (Frantzis, 1998). 

Necropsies of eight of the animals 

were performed but were limited to 

basic external examination and 

sampling of stomach contents, blood, 

and skin. No ears or organs were 

collected, and no histological samples 

were preserved. No apparent 

abnormalities or wounds were found 

(Frantzis, 2004). Examination of photos 

of the animals, taken soon after their 

death, revealed that the eyes of at least 

four of the individuals were bleeding. 

Photos were taken soon after their death 

(Frantzis, 2004). Stomach contents 

contained the flesh of cephalopods, 


sroberts on PROD1PC70 with PROPOSALS
60860 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

indicating that feeding had recently 

taken place (Frantzis, 1998). 

All available information regarding 

the conditions associated with this 

stranding event were compiled, and 

many potential causes were examined 

including major pollution events, 

prominent tectonic activity, unusual 

physical or meteorological events, 

magnetic anomalies, epizootics, and 

conventional military activities 

(International Council for the 

Exploration of the Sea, 2005a). 

However, none of these potential causes 

coincided in time or space with the 

mass stranding, or could explain its 

characteristics (International Council for 

the Exploration of the Sea, 2005a). The 

robust condition of the animals, plus the 

recent stomach contents, is inconsistent 

with pathogenic causes (Frantzis, 2004). 

In addition, environmental causes can 

be ruled out as there were no unusual 

environmental circumstances or events 

before or during this time period and 

within the general proximity (Frantzis, 

2004). 

It was determined that because of the 

rarity of this mass stranding of Cuvier’s 

beaked whales in the Kyparissiakos Gulf 

(first one in history), the probability for 

the two events (the military exercises 

and the strandings) to coincide in time 

and location, while being independent 

of each other, was extremely low 

(Frantzis, 1998). However, because full 

necropsies had not been conducted, and 

no abnormalities were noted, the cause 

of the strandings could not be precisely 

determined (Cox et al., 2006). The 

analysis of this stranding event 

provided support for, but no clear 

evidence for, the cause-and-effect 

relationship of active sonar training 

activities and beaked whale strandings 

(Cox et al., 2006). 

Bahamas (2000) 

NMFS and the Navy prepared a joint 

report addressing the multi-species 

stranding in the Bahamas in 2000, 

which took place within 24 hours of 

U.S. Navy ships using MFAS as they 

passed through the Northeast and 

Northwest Providence Channels on 

March 15–16, 2000. The ships, which 

operated both AN/SQS–53C and AN/ 

SQS–56, moved through the channel 

while emitting MFAS pings 

approximately every 24 seconds. Of the 

17 cetaceans that stranded over a 36-hr 

period (Cuvier’s beaked whales, 

Blainville’s beaked whales, Minke 

whales, and a spotted dolphin), seven 

animals died on the beach (5 Cuvier’s 

beaked whales, 1 Blainville’s beaked 

whale, and the spotted dolphin), while 

the other 10 were returned to the water 

alive (though their ultimate fate is 

unknown). As discussed in the Bahamas 

report (DOC/DON, 2001), there is no 

likely association between the minke 

whale and spotted dolphin strandings 

and the operation of MFAS. 

Necropsies were performed on five of 

the stranded beaked whales. All five 

necropsied beaked whales were in good 

body condition, showing no signs of 

infection, disease, ship strike, blunt 

trauma, or fishery related injuries, and 

three still had food remains in their 

stomachs. Auditory structural damage 

was discovered in four of the whales, 

specifically bloody effusions or 

hemorrhaging around the ears. Bilateral 

intracochlear and unilateral temporal 

region subarachnoid hemorrhage, with 

blood clots in the lateral ventricles, 

were found in two of the whales. Three 

of the whales had small hemorrhages in 

their acoustic fats (located along the jaw 

and in the melon). 

A comprehensive investigation was 

conducted and all possible causes of the 

stranding event were considered, 

whether they seemed likely at the outset 

or not. Based on the way in which the 

strandings coincided with ongoing 

naval activity involving tactical MFAS 

use, in terms of both time and 

geography, the nature of the 

physiological effects experienced by the 

dead animals, and the absence of any 

other acoustic sources, the investigation 

team concluded that MFAS aboard U.S. 

Navy ships that were in use during the 

active sonar exercise in question were 

the most plausible source of this 

acoustic or impulse trauma to beaked 

whales. This sound source was active in 

a complex environment that included 

the presence of a surface duct, unusual 

and steep bathymetry, a constricted 

channel with limited egress, intensive 

use of multiple, active sonar units over 

an extended period of time, and the 

presence of beaked whales that appear 

to be sensitive to the frequencies 

produced by these active sonars. The 

investigation team concluded that the 

cause of this stranding event was the 

confluence of the Navy MFAS and these 

contributory factors working together, 

and further recommended that the Navy 

avoid operating MFAS in situations 

where these five factors would be likely 

to occur. This report does not conclude 

that all five of these factors must be 

present for a stranding to occur, nor that 

beaked whales are the only species that 

could potentially be affected by the 

confluence of the other factors. Based on 

this, NMFS believes that the operation 

of MFAS in situations where surface 

ducts exist, or in marine environments 

defined by steep bathymetry and/or 

constricted channels may increase the 

likelihood of producing a sound field 

with the potential to cause cetaceans 

(especially beaked whales) to strand, 

and therefore, suggests the need for 

increased vigilance while operating 

MFAS in these areas, especially when 

beaked whales (or potentially other 

deep divers) are likely present. 

Madeira, Spain (2000) 

From May 10–14, 2000, three Cuvier’s 

beaked whales were found atypically 

stranded on two islands in the Madeira 

archipelago, Portugal (Cox et al., 2006). 

A fourth animal was reported floating in 

the Madeiran waters by fisherman but 

did not come ashore (Woods Hole 

Oceanographic Institution, 2005). Joint 

NATO amphibious training 

peacekeeping exercises involving 

participants from 17 countries’ 80 

warships, took place in Portugal during 

May 2–15, 2000. 

The bodies of the three stranded 

whales were examined post mortem 

(Woods Hole Oceanographic Institution, 

2005), though only one of the stranded 

whales was fresh enough (24 hours after 

stranding) to be necropsied (Cox et al., 

2006). Results from the necropsy 

revealed evidence of hemorrhage and 

congestion in the right lung and both 

kidneys (Cox et al., 2006). There was 

also evidence of intercochlear and 

intracranial hemorrhage similar to that 

which was observed in the whales that 

stranded in the Bahamas event (Cox et 

al., 2006). There were no signs of blunt 

trauma, and no major fractures (Woods 

Hole Oceanographic Institution, 2005). 

The cranial sinuses and airways were 

found to be clear with little or no fluid 

deposition, which may indicate good 

preservation of tissues (Woods Hole 

Oceanographic Institution, 2005). 

Several observations on the Madeira 

stranded beaked whales, such as the 

pattern of injury to the auditory system, 

are the same as those observed in the 

Bahamas strandings. Blood in and 

around the eyes, kidney lesions, pleural 

hemorrhages, and congestion in the 

lungs are particularly consistent with 

the pathologies from the whales 

stranded in the Bahamas, and are 

consistent with stress and pressure 

related trauma. The similarities in 

pathology and stranding patterns 

between these two events suggest that a 

similar pressure event may have 

precipitated or contributed to the 

strandings at both sites (Woods Hole 

Oceanographic Institution, 2005). 

Even though no definitive causal link 

can be made between the stranding 

event and naval exercises, certain 

conditions may have existed in the 

exercise area that, in their aggregate, 

may have contributed to the marine 

mammal strandings (Freitas, 2004): 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60861 

Exercises were conducted in areas of at 

least 547 fathoms (1,000 m) depth near 

a shoreline where there is a rapid 

change in bathymetry on the order of 

547 to 3,281 (1,000–6,000 m) fathoms 

occurring across a relatively short 

horizontal distance (Freitas, 2004); 

multiple ships were operating around 

Madeira, though it is not known if 

MFAS was used, and the specifics of the 

sound sources used are unknown (Cox 

et al., 2006, Freitas, 2004); exercises 

took place in an area surrounded by 

landmasses separated by less than 35 

nm (65 km) and at least 10 nm (19 km) 

in length, or in an embayment. Exercises 

involving multiple ships employing 

MFAS near land may produce sound 

directed towards a channel or 

embayment that may cut off the lines of 

egress for marine mammals (Freitas, 

2004). 

Canary Islands, Spain (2002) 

The southeastern area within the 

Canary Islands is well known for 

aggregations of beaked whales due to its 

ocean depths of greater than 547 

fathoms (1,000 m) within a few hundred 

meters of the coastline (Fernandez et al., 

2005). On September 24, 2002, 14 

beaked whales were found stranded on 

Fuerteventura and Lanzarote Islands in 

the Canary Islands (International 

Council for Exploration of the Sea, 

2005a). Seven whales died, while the 

remaining seven live whales were 

returned to deeper waters (Fernandez et 

al., 2005). Four beaked whales were 

found stranded dead over the next 3 

days either on the coast or floating 

offshore. These strandings occurred 

within near proximity of an 

international naval exercise that utilized 

MFAS and involved numerous surface 

warships and several submarines. 

Strandings began about 4 hours after the 

onset of MFAS activity (International 

Council for Exploration of the Sea, 

2005a; Fernandez et al., 2005). 

Eight Cuvier’s beaked whales, one 

Blainville’s beaked whale, and one 

Gervais’ beaked whale were necropsied, 

six of them within 12 hours of stranding 

(Fernandez et al., 2005). No pathogenic 

bacteria were isolated from the carcasses 

(Jepson et al., 2003). The animals 

displayed severe vascular congestion 

and hemorrhage especially around the 

tissues in the jaw, ears, brain, and 

kidneys, displaying marked 

disseminated microvascular 

hemorrhages associated with 

widespread fat emboli (Jepson et al., 

2003; International Council for 

Exploration of the Sea, 2005a). Several 

organs contained intravascular bubbles, 

although definitive evidence of gas 

embolism in vivo is difficult to 

determine after death (Jepson et al., 

2003). The livers of the necropsied 

animals were the most consistently 

affected organ, which contained 

macroscopic gas-filled cavities and had 

variable degrees of fibrotic 

encapsulation. In some animals, 

cavitary lesions had extensively 

replaced the normal tissue (Jepson et al., 

2003). Stomachs contained a large 

amount of fresh and undigested 

contents, suggesting a rapid onset of 

disease and death (Fernandez et al., 

2005). Head and neck lymph nodes 

were enlarged and congested, and 

parasites were found in the kidneys of 

all animals (Fernandez et al., 2005). 

The association of NATO MFAS use 

close in space and time to the beaked 

whale strandings, and the similarity 

between this stranding event and 

previous beaked whale mass strandings 

coincident with active sonar use, 

suggests that a similar scenario and 

causative mechanism of stranding may 

be shared between the events. Beaked 

whales stranded in this event 

demonstrated brain and auditory system 

injuries, hemorrhages, and congestion in 

multiple organs, similar to the 

pathological findings of the Bahamas 

and Madeira stranding events. In 

addition, the necropsy results of Canary 

Islands stranding event lead to the 

hypothesis that the presence of 

disseminated and widespread gas 

bubbles and fat emboli were indicative 

of nitrogen bubble formation, similar to 

what might be expected in 

decompression sickness (Jepson et al., 

2003; Fernandez et al., 2005). 

Spain (2006) 

The Spanish Cetacean Society 

reported an atypical mass stranding of 

four beaked whales that occurred 

January 26, 2006, on the southeast coast 

of Spain, near Mojacar (Gulf of Vera) in 

the Western Mediterranean Sea. 

According to the report, two of the 

whales were discovered the evening of 

January 26 and were found to be still 

alive. Two other whales were 

discovered during the day on January 

27, but had already died. The fourth 

animal was found dead on the afternoon 

of January 27, a few kilometers north of 

the first three animals. From January 

25–26, 2006, Standing North Atlantic 

Treaty Organization (NATO) Response 

Force Maritime Group Two (five of 

seven ships including one U.S. ship 

under NATO Operational Control) had 

conducted active sonar training against 

a Spanish submarine within 50 nm (93 

km) of the stranding site. 

Veterinary pathologists necropsied 

the two male and two female Cuvier’s 

beaked whales. According to the 

pathologists, the most likely primary 

cause of this type of beaked whale mass 

stranding event was anthropogenic 

acoustic activities, most probably antisubmarine MFAS used during the 

military naval exercises. However, no 

positive acoustic link was established as 

a direct cause of the stranding. Even 

though no causal link can be made 

between the stranding event and naval 

exercises, certain conditions may have 

existed in the exercise area that, in their 

aggregate, may have contributed to the 

marine mammal strandings (Freitas, 

2004): exercises were conducted in 

areas of at least 547 fathoms (1,000 m) 

depth near a shoreline where there is a 

rapid change in bathymetry on the order 

of 547 to 3,281 fathoms (1,000—6,000 

m) occurring across a relatively short 

horizontal distance (Freitas, 2004); 

multiple ships (in this instance, five) 

were operating MFAS in the same area 

over extended periods of time (in this 

case, 20 hours) in close proximity; 

Exercises took place in an area 

surrounded by landmasses, or in an 

embayment. Exercises involving 

multiple ships employing MFAS near 

land may have produced sound directed 

towards a channel or embayment that 

may have cut off the lines of egress for 

the affected marine mammals (Freitas, 

2004). 

Association Between Mass Stranding 

Events and Exposure to MFAS 

Several authors have noted 

similarities between some of these 

stranding incidents: they occurred in 

islands or archipelagoes with deep 

water nearby, several appeared to have 

been associated with acoustic 

waveguides like surface ducting, and 

the sound fields created by ships 

transmitting MFAS (Cox et al., 2006, 

D’Spain et al., 2006). Although Cuvier’s 

beaked whales have been the most 

common species involved in these 

stranding events (81 percent of the total 

number of stranded animals), other 

beaked whales (including Mesoplodon 

europeaus, M. densirostris, and 

Hyperoodon ampullatus) comprise 14 

percent of the total. Other species 

(Stenella coeruleoalba, Kogia breviceps 

and Balaenoptera acutorostrata) have 

stranded, but in much lower numbers 

and less consistently than beaked 

whales. 

Based on the evidence available, 

however, we cannot determine whether 

(a) Cuvier’s beaked whale is more prone 

to injury from high-intensity sound than 

other species, (b) their behavioral 

responses to sound makes them more 

likely to strand, or (c) they are more 

likely to be exposed to MFAS than other 

cetaceans (for reasons that remain 


sroberts on PROD1PC70 with PROPOSALS
60862 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

unknown). Because the association 

between active sonar exposures and 

marine mammals mass stranding events 

is not consistent—some marine 

mammals strand without being exposed 

to active sonar and some sonar 

transmissions are not associated with 

marine mammal stranding events 

despite their co-occurrence—other risk 

factors or a grouping of risk factors 

probably contribute to these stranding 

events. 

Behaviorally Mediated Responses to 

MFAS That May Lead to Stranding 

Although the confluence of Navy 

MFAS with the other contributory 

factors noted in the report was 

identified as the cause of the 2000 

Bahamas stranding event, the specific 

mechanisms that led to that stranding 

(or the others) are not understood, and 

there is uncertainty regarding the 

ordering of effects that led to the 

stranding. It is unclear whether beaked 

whales were directly injured by sound 

(acoustically mediated bubble growth, 

addressed above) prior to stranding or 

whether a behavioral response to sound 

occurred that ultimately caused the 

beaked whales to be injured and to 

strand. 

Although causal relationships 

between beaked whale stranding events 

and active sonar remain unknown, 

several authors have hypothesized that 

stranding events involving these species 

in the Bahamas and Canary Islands may 

have been triggered when the whales 

changed their dive behavior in a startled 

response to exposure to active sonar or 

to further avoid exposure (Cox et al., 

2006, Rommel et al., 2006). These 

authors proposed three mechanisms by 

which the behavioral responses of 

beaked whales upon being exposed to 

active sonar might result in a stranding 

event. These include: gas bubble 

formation caused by excessively fast 

surfacing; remaining at the surface too 

long when tissues are supersaturated 

with nitrogen; or diving prematurely 

when extended time at the surface is 

necessary to eliminate excess nitrogen. 

More specifically, beaked whales that 

occur in deep waters that are in close 

proximity to shallow waters (for 

example, the ‘‘canyon areas’’ that are 

cited in the Bahamas stranding event; 

see D’Spain and D’Amico, 2006), may 

respond to active sonar by swimming 

into shallow waters to avoid further 

exposures and strand if they were not 

able to swim back to deeper waters. 

Second, beaked whales exposed to 

active sonar might alter their dive 

behavior. Changes in their dive behavior 

might cause them to remain at the 

surface or at depth for extended periods 

of time which could lead to hypoxia 

directly by increasing their oxygen 

demands or indirectly by increasing 

their energy expenditures (to remain at 

depth) and increase their oxygen 

demands as a result. If beaked whales 

are at depth when they detect a ping 

from an active sonar transmission and 

change their dive profile, this could lead 

to the formation of significant gas 

bubbles, which could damage multiple 

organs or interfere with normal 

physiological function (Cox et al., 2006; 

Rommel et al., 2006; Zimmer and 

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

that slow ascent rates from deep dives 

and long periods of time spent within 

50 m of the surface were typical for both 

Cuvier’s and Blainville’s beaked whales, 

the two species involved in mass 

strandings related to naval MFAS. 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 highintensity active sonar could indirectly 

result in physical harm to the beaked 

whales, through the mechanisms 

described above (gas bubble formation 

or non-elimination of excess nitrogen). 

Because many species of marine 

mammals make repetitive and 

prolonged dives to great depths, it has 

long been assumed that marine 

mammals have evolved physiological 

mechanisms to protect against the 

effects of rapid and repeated 

decompressions. Although several 

investigators have identified 

physiological adaptations that may 

protect marine mammals against 

nitrogen gas supersaturation (alveolar 

collapse and elective circulation; 

Kooyman et al., 1972; Ridgway and 

Howard, 1979), Ridgway and Howard 

(1979) reported that bottlenose dolphins 

(Tursiops truncatus) that were trained to 

dive repeatedly had muscle tissues that 

were substantially supersaturated with 

nitrogen gas. Houser et al. (2001) used 

these data to model the accumulation of 

nitrogen gas within the muscle tissue of 

other marine mammal species and 

concluded that cetaceans that dive deep 

and have slow ascent or descent speeds 

would have tissues that are more 

supersaturated with nitrogen gas than 

other marine mammals. Based on these 

data, Cox et al. (2006) hypothesized that 

a critical dive sequence might make 

beaked whales more prone to stranding 

in response to acoustic exposures. The 

sequence began with (1) very deep (to 

depths of up to 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 

meters in depth (also see Zimmer and 

Tyack, 2007). They concluded that 

acoustic exposures that disrupted any 

part of this dive sequence (for example, 

causing beaked whales to spend more 

time at surface without the bounce dives 

that are necessary to recover from the 

deep dive) could produce excessive 

levels of nitrogen supersaturation in 

their tissues, leading to gas bubble and 

emboli formation that produces 

pathologies similar to decompression 

sickness. 

Recently, Zimmer and Tyack (2007) 

modeled nitrogen tension and bubble 

growth in several tissue compartments 

for several hypothetical dive profiles 

and concluded that repetitive shallow 

dives (defined as a dive where depth 

does not exceed the depth of alveolar 

collapse, approximately 72 m for 

Ziphius), perhaps as a consequence of 

an extended avoidance reaction to 

active sonar sound, could pose a risk for 

decompression sickness and that this 

risk should increase with the duration 

of the response. Their models also 

suggested that unrealistically rapid 

ascent rates of ascent from normal dive 

behaviors are unlikely to result in 

supersaturation to the extent that bubble 

formation would be expected. Tyack et 

al. (2006) suggested that emboli 

observed in animals exposed to MFAS 

(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). Baird et al. 

(2008), in a beaked whale tagging study 

off Hawaii, showed that deep dives are 

equally common during day or night, 

but ‘‘bounce dives’’ are typically a 

daytime behavior, possibly associated 

with visual predator avoidance (Baird et 

al. 2008). This may indicate that 

‘‘bounce dives’’ are associated with 

something other than behavioral 

regulation of dissolved nitrogen levels, 

which would be necessary day and 

night. 

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 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60863 

of flight responses should increase 

when they perceive that Navy vessels 

are approaching them directly, because 

a direct approach may convey detection 

and intent to capture (Burger and 

Gochfeld, 1981, 1990; Cooper, 1997, 

1998). The probability of flight 

responses should also increase as 

received levels of active sonar increase 

(and the ship is, therefore, closer) and 

as ship speeds increase (that is, as 

approach speeds increase). For example, 

the probability of flight responses in 

Dall’s sheep (Ovis dalli dalli) (Frid 

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

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

bernic nigricans) and Canada geese (B. 

canadensis) increased as a helicopter or 

fixed-wing aircraft approached groups 

of these animals more directly (Ward et 

al., 1999). Bald eagles (Haliaeetus 

leucocephalus) perched on trees 

alongside a river were also more likely 

to flee from a paddle raft when their 

perches were closer to the river or were 

closer to the ground (Steidl and 

Anthony, 1996). 

Despite the many theories involving 

bubble formation (both as a direct cause 

of injury (see Acoustically Mediated 

Bubble Growth Section) and an indirect 

cause of stranding (See Behaviorally 

Mediated Bubble Growth Section)), 

Southall et al. (2007) summarizes that 

there is either scientific disagreement or 

a lack of information regarding each of 

the following important points: (1) 

Received acoustical exposure conditions 

for animals involved in stranding 

events; (2) pathological interpretation of 

observed lesions in stranded marine 

mammals; (3) acoustic exposure 

conditions required to induce such 

physical trauma directly; (4) whether 

noise exposure may cause behavioral 

reactions (such as atypical diving 

behavior) that secondarily cause bubble 

formation and tissue damage; and (5) 

the extent the post mortem artifacts 

introduced by decomposition before 

sampling, handling, freezing, or 

necropsy procedures affect 

interpretation of observed lesions. 

During SOCAL exercises there will be 

use of multiple sonar units in areas 

where seven species of beaked whale 

species may be present. A surface duct 

may be seasonally present in a limited 

area for a limited period of time. Some 

exercises will occur in areas of high 

bathymetric relief. However, none of the 

training events will take place in a 

location having a constricted channel 

less than 35 miles wide or with limited 

egress similar to the Bahamas (because 

none exist in the SOCAL Range 

Complex). Consequently, not all five of 

the environmental factors believed to 

contribute to the Bahamas stranding 

(mid-frequency active sonar, beaked 

whale presence, surface ducts, steep 

bathymetry, and constricted channels 

with limited egress) will be present 

during SOCAL exercises. However, as 

mentioned previously, NMFS 

recommends caution when steep 

bathymetry, surface ducting conditions, 

or a constricted channel is present when 

mid-frequency active sonar is employed 

and cetaceans (especially beaked 

whales) are present. 

Exposure to Underwater Detonation of 

Explosives 

Some of the Navy’s training exercises 

include the underwater detonation of 

explosives. For many of the exercises 

discussed, inert ordnance is used for a 

subset of the exercises. For exercises 

that involve ‘‘shooting’’ at a target that 

is above the surface of the water, 

underwater explosions only occur when 

the target is missed, which is the 

minority of the time (the Navy has 

historical hit/miss ratios and uses them 

in their exposure estimates). 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 

hearing related effects with or without 

behavioral responses, or exhibit 

temporary behavioral responses or 

tolerance from hearing the blast sound. 

Generally, exposures to higher levels of 

impulse and pressure levels would 

result in 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 

sensitive to pressure, they are the organs 

most sensitive to injury (Ketten, 2000). 

Sound-related trauma 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 fatigue or damage its 

hearing by causing decreased sensitivity 

(Ketten, 1995) (See Noise-induced 

Threshold Shift Section above). Soundrelated trauma can be lethal or 

sublethal. Lethal impacts are those that 

result in immediate death or serious 

debilitation in or near an intense source 

and are not, technically, pure acoustic 

trauma (Ketten, 1995). Sublethal 

impacts include hearing loss, which is 

caused by exposures to perceptible 

sounds. Severe damage (from the shock 

wave) to the ears includes tympanic 

membrane rupture, fracture of the 

ossicles, damage to the cochlea, 

hemorrhage, and cerebrospinal fluid 

leakage into the middle ear. Moderate 

injury implies partial hearing loss due 

to tympanic membrane rupture and 

blood in the middle ear. Permanent 

hearing loss also can occur when the 

hair cells are damaged by one very loud 

event, as well as by prolonged exposure 

to a loud noise or chronic exposure to 

noise. The level of impact from blasts 

depends on both an animal’s location 

and, at outer zones, on its sensitivity to 

the residual noise (Ketten, 1995). 

There have been fewer studies 

addressing the behavioral effects of 

explosives on marine mammals than 

MFAS/HFAS. However, though the 

nature of the sound waves emitted from 

an explosion is different (in shape and 

rise time) from MFAS/HFAS, we still 

anticipate the same sorts of behavioral 

responses (see Exposure to MFAS/ 

HFAS:Behavioral Disturbance Section) 

to result from repeated explosive 

detonations (a smaller range of likely 

less severe responses would be expected 

to occur as a result of exposure to a 

single explosive detonation). 

Mitigation 

In order to issue an incidental take 

authorization (ITA) under Section 

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

set forth the ‘‘permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance.’’ The NDAA of 2004 


sroberts on PROD1PC70 with PROPOSALS
60864 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

amended the MMPA as it relates to 

military-readiness activities and the 

incidental take authorization process 

such that ‘‘least practicable adverse 

impact’’ shall include consideration of 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the ‘‘military readiness 

activity’’. The training activities 

described in the SOCAL application are 

considered military readiness activities. 

NMFS reviewed the proposed SOCAL 

activities and the proposed SOCAL 

mitigation measures presented in the 

Navy’s application to determine 

whether the activities and mitigation 

measures were capable of achieving the 

least practicable adverse effect on 

marine mammals. NMFS determined 

that further discussion was necessary 

regarding the potential relationship 

between the operation of MFAS/HFAS 

and marine mammal strandings. NMFS 

worked with the Navy to identify 

additional practicable and effective 

mitigation measures, which included a 

careful balancing of the likely benefit of 

any particular measure to the marine 

mammals with the likely effect of that 

measure on personnel safety, 

practicality of implementation, and 

impact on the ‘‘military-readiness 

activity’’. 

To address the concern above, NMFS 

and the Navy developed a 

comprehensive Stranding Response 

Plan. Included below are the mitigation 

measures the Navy initially proposed 

(see ‘‘Mitigation Measures Proposed in 

the Navy’s LOA Application’’) and the 

Stranding Response Plan that NMFS 

and the Navy developed (see 

‘‘Additional Measure Developed by 

NMFS and the Navy’’ below). 

Separately, NMFS has previously 

received comments from the public 

expressing concerns regarding potential 

delays between when marine mammals 

are visually detected by watchstanders 

and when the active sonar is actually 

powered or shut down. NMFS and the 

Navy have discussed this issue and 

determined the following: Naval 

operators and lookouts are aware of the 

potential for a very small delay (up to 

about 4 seconds) between detecting a 

marine mammal and powering down or 

shutting down the tactical sonar and 

will take the actions necessary to ensure 

that MFAS is powered down or shut 

down when detected animals are within 

the specified powerdown or shutdown 

zone (for example, by preparing to shutdown when animals are approaching, so 

as to implement shut-down when they 

are within the designated distance). 

Mitigation Measures Proposed in the 

Navy’s LOA Application 

This section includes the protective 

measures proposed by the Navy and is 

taken directly from their application 

(with the exception of headings, which 

have been modified for increased clarity 

within the context of this proposed 

rule). In their proposed mitigation, the 

Navy has included measures to protect 

sea turtles—those measures are 

included here as part of the Navy’s 

proposed action. Although measures to 

protect sea turtles are important, they 

are not required by the MMPA, and 

therefore, will not be codified through 

this regulation or required in any 

subsequent MMPA LOA. Measures to 

protect sea turtles will, however, be 

addressed in the Endangered Species 

Act section 7 consultation. 

General Maritime Measures for All 

Training at Sea 

Personnel Training (for All Training 

Types) 

The use of shipboard lookouts is a 

critical component of all Navy 

protective measures. Lookout duties 

require that they report all objects 

sighted in the water to the officer of the 

deck (OOD) (e.g., trash, a periscope, 

marine mammals, sea turtles) and all 

disturbances (e.g., surface disturbance, 

discoloration) that may be indicative of 

a threat to the vessel and its crew. There 

are personnel serving as lookouts on 

station at all times (day and night) when 

a ship or surfaced submarine is moving 

through the water. 

• All commanding officers (COs), 

executive officers (XOs), lookouts, 

officers of the deck (OODs), junior 

OODs (JOODs), maritime patrol aircraft 

aircrews, and Anti-submarine Warfare 

(ASW)/Mine Warfare (MIW) helicopter 

crews will complete the NMFSapproved Marine Species Awareness 

Training (MSAT) by viewing the U.S. 

Navy MSAT digital versatile disk (DVD). 

All bridge lookouts will complete both 

parts one and two of the MSAT; part 

two is optional for other personnel. This 

training addresses the lookout’s 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. 

• Navy lookouts will undertake 

extensive training in order to qualify as 

a watchstander in accordance with the 

Lookout Training Handbook (Naval 

Education and Training Command 

[NAVEDTRA] 12968–D). 

• Lookout training will include onthe-job instruction under the 

supervision of a qualified, experienced 

lookout. Following successful 

completion of this supervised training 

period, lookouts will complete the 

Personal Qualification Standard 

Program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). Personnel being 

trained as lookouts can be counted 

among those listed below as long as 

supervisors monitor their progress and 

performance. 

• Lookouts will be trained in the most 

effective means to ensure quick and 

effective communication within the 

command structure in order to facilitate 

implementation of protective measures 

if marine species are spotted. 

Operating Procedures & Collision 

Avoidance 

• Prior to major exercises, a Letter of 

Instruction, Mitigation Measures 

Message or Environmental Annex to the 

Operational Order will be issued to 

further disseminate the personnel 

training requirement and general marine 

species protective measures. 

• COs will make use of marine 

species detection cues and information 

to limit interaction with marine species 

to the maximum extent possible 

consistent with safety of the ship. 

• While underway, surface vessels 

will have at least two lookouts with 

binoculars; surfaced submarines will 

have at least one lookout with 

binoculars. Lookouts already posted for 

safety of navigation and man-overboard 

precautions may be used to fill this 

requirement. As part of their regular 

duties, lookouts will watch for and 

report to the OOD the presence of 

marine mammals and sea turtles. 

• On surface vessels equipped with a 

multi-function active sensor, pedestal 

mounted ‘‘Big Eye’’ (20 x 10) binoculars 

will be properly installed and in good 

working order to assist in the detection 

of marine mammals and sea turtles in 

the vicinity of the vessel. 

• Personnel on lookout will employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

• After sunset and prior to sunrise, 

lookouts will employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

• While in transit, naval vessels will 

be alert at all times, use extreme 

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

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 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60865 

prevailing circumstances and 

conditions. 

• When whales have been sighted in 

the area, Navy vessels will increase 

vigilance and take reasonable and 

practicable actions to avoid collisions 

and activities that might result in close 

interaction of naval assets and marine 

mammals. Actions may include 

changing speed and/or direction and 

would be dictated by environmental and 

other conditions (e.g., safety, weather). 

• Floating weeds and kelp, algal mats, 

clusters of seabirds, and jellyfish are 

good indicators of sea turtles and 

marine mammals. Therefore, increased 

vigilance in watching for sea turtles and 

marine mammals will be taken where 

these are present. 

• 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. Marine mammal detections will 

be immediately reported to assigned 

Aircraft Control Unit for further 

dissemination to ships in the vicinity of 

the marine species as appropriate where 

it is reasonable to conclude that the 

course of the ship will likely result in 

a closing of the distance to the detected 

marine mammal. 

• All vessels will maintain logs and 

records documenting training 

operations should they be required for 

event reconstruction purposes. Logs and 

records will be kept for a period of 30 

days following completion of a major 

training exercise. 

Measures for MFAS Operations 

Personnel Training (for MFAS 

Operations) 

• All lookouts onboard platforms 

involved in ASW training events will 

review the NMFS-approved Marine 

Species Awareness Training material 

prior to use of mid-frequency active 

sonar. 

• All COs, XOs, and officers standing 

watch on the bridge will have reviewed 

the Marine Species Awareness Training 

material prior to a training event 

employing the use of mid-frequency 

active sonar. 

• Navy lookouts will undertake 

extensive training in order to qualify as 

a watchstander in accordance with the 

Lookout Training Handbook (Naval 

Educational Training [NAVEDTRA], 

12968–D). 

• Lookout training will include onthe-job instruction under the 

supervision of a qualified, experienced 

watchstander. Following successful 

completion of this supervised training 

period, lookouts will complete the 

Personal Qualification Standard 

program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). This does not forbid 

personnel being trained as lookouts 

from being counted as those listed in 

previous measures so long as 

supervisors monitor their progress and 

performance. 

• Lookouts 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. 

Lookout and Watchstander 

Responsibilities 

• On the bridge of surface ships, there 

will always be at least three people on 

watch whose duties include observing 

the water surface around the vessel. 

• All surface ships participating in 

ASW training events will, in addition to 

the three personnel on watch noted 

previously, have at all times during the 

exercise at least two additional 

personnel on watch as marine mammal 

lookouts. 

• Personnel on lookout and officers 

on watch on the bridge will have at least 

one set of binoculars available for each 

person to aid in the detection of marine 

mammals. 

• On surface vessels equipped with 

mid-frequency active sonar, 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. 

• Personnel on lookout will employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

• After sunset and prior to sunrise, 

lookouts will employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook. 

• Personnel on lookout will be 

responsible for reporting all objects or 

anomalies sighted in the water 

(regardless of the distance from the 

vessel) to the Officer of the Deck, since 

any object or disturbance (e.g., trash, 

periscope, surface disturbance, 

discoloration) in the water may be 

indicative of a threat to the vessel and 

its crew or indicative of a marine 

species that may need to be avoided as 

warranted. 

Operating Procedures 

• A Letter of Instruction, Mitigation 

Measures Message, or Environmental 

Annex to the Operational Order will be 

issued prior to major exercises to further 

disseminate the personnel training 

requirement and general marine 

mammal mitigation measures. 

• COs will make use of marine 

species detection cues and information 

to limit interaction with marine species 

to the maximum extent possible 

consistent with safety of the ship. 

• All personnel engaged in passive 

acoustic sonar operation (including 

aircraft, surface ships, or submarines) 

will monitor for marine mammal 

vocalizations and report the detection of 

any marine mammal to the appropriate 

watch station for dissemination and 

appropriate action. 

• During mid-frequency active sonar 

operations, personnel will utilize all 

available sensor and optical systems 

(such as night vision goggles) to aid in 

the detection of marine mammals. 

• 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. 

• Aircraft with deployed sonobuoys 

will use only the passive capability of 

sonobuoys when marine mammals are 

detected within 200 yds (183 m) of the 

sonobuoy. 

• Marine mammal detections will be 

immediately reported to assigned 

Aircraft Control Unit for further 

dissemination to ships in the vicinity of 

the marine species as appropriate where 

it is reasonable to conclude that the 

course of the ship will likely result in 

a closing of the distance to the detected 

marine mammal. 

• Safety Zones—When marine 

mammals are detected by any means 

(aircraft, shipboard lookout, or 

acoustically) within or closing to inside 

1,000 yds (914 m) of the sonar dome 

(the bow), the ship or submarine will 

limit active transmission levels to at 

least 6 decibels (dB) below normal 

operating levels. (A 6 dB reduction 

equates to a 75 percent power reduction. 

The reason is that decibel levels are on 

a logarithmic scale, not a linear scale. 

Thus, a 6 dB reduction results in a 

power level only 25 percent of the 

original power.) 

• Ships and submarines will continue 

to limit maximum transmission levels 

by this 6-dB factor until the animal has 

been seen to leave the area, has not been 

detected for 30 minutes, or the vessel 

has transited more than 2,000 yds (1,829 

m) beyond the location of the last 

detection. 


sroberts on PROD1PC70 with PROPOSALS
60866 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

• Should a marine mammal be 

detected within or closing to inside 500 

yds (457 m) of the sonar dome, active 

sonar transmissions will be limited to at 

least 10 dB below the equipment’s 

normal operating level. (A 10 dB 

reduction equates to a 90 percent power 

reduction from normal operating levels.) 

Ships and submarines will continue to 

limit maximum ping levels by this 10- 

dB factor until the animal has been seen 

to leave the area, has not been detected 

for 30 minutes, or the vessel has 

transited more than 2,000 yds (1,829 m) 

beyond the location of the last 

detection. 

• Should the marine mammal be 

detected within or closing to inside 200 

yds (183 m) of the sonar dome, active 

sonar transmissions will cease. Active 

sonar will not resume until the animal 

has been seen to leave the area, has not 

been detected for 30 minutes, or the 

vessel has transited more than 2,000 yds 

(457 m) beyond the location of the last 

detection. 

• Special conditions applicable for 

dolphin and porpoise only: If, after 

conducting an initial maneuver to avoid 

close quarters with dolphin or porpoise, 

the OOD concludes that dolphin or 

porpoise are deliberately closing to ride 

the vessel’s bow wave, no further 

mitigation actions would be necessary 

while the dolphin or porpoise continue 

to exhibit bow wave riding behavior. 

• If the need for power-down should 

arise as detailed in ‘‘Safety Zones’’ 

above, the 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 dB active sonar 

was being operated). 

• 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. 

• Active sonar levels (generally)— 

Navy will operate sonar at the lowest 

practicable level, not to exceed 235 dB, 

except as required to meet tactical 

training objectives. 

• Helicopters shall observe/survey 

the vicinity of an ASW training event 

for 10 minutes before the first 

deployment of active (dipping) sonar in 

the water. 

• Helicopters shall not dip their 

active sonar within 200 yds (183 m) of 

a marine mammal and shall cease 

pinging if a marine mammal closes 

within 200 yds (183 m) of the sonar 

source after pinging has begun. 

• Submarine sonar operators will 

review detection indicators of closeaboard marine mammals prior to the 

commencement of ASW training events 

involving MFAS. 

Measures for Underwater Detonations 

Surface-to-Surface Gunnery (5-inch, 76 

mm, 20 mm, 25 mm and 30 mm 

Explosive Rounds) 

• Lookouts will visually survey for 

floating weeds and kelp, and algal mats 

which may be inhabited by immature 

sea turtles in the target area. Intended 

impact shall not be within 600 yds (585 

m) of known or observed floating weeds 

and kelp, and algal mats. 

• For exercises using targets towed by 

a vessel or aircraft, target-towing 

vessels/aircraft shall maintain a trained 

lookout for marine mammals and sea 

turtles. If a marine mammal or sea turtle 

is sighted in the vicinity, the tow 

aircraft/vessel will immediately notify 

the firing vessel, which will suspend the 

exercise until the area is clear. 

• A 600-yard radius buffer zone will 

be established around the intended 

target. 

• From the intended firing position, 

trained lookouts will survey the buffer 

zone for marine mammals and sea 

turtles prior to commencement and 

during the exercise as long as 

practicable. Due to the distance between 

the firing position and the buffer zone, 

lookouts are only expected to visually 

detect breaching whales, whale blows, 

and large pods of dolphins and 

porpoises. 

• The exercise will be conducted only 

when the buffer zone is visible and 

marine mammals and sea turtles are not 

detected within it. 

Surface-to-Surface Gunnery (NonExplosive Rounds) 

• Lookouts will visually survey for 

floating weeds and kelp, and algal mats 

which may be inhabited by immature 

sea turtles in the target area. Intended 

impact will not be within 200 yds (183 

m) of known or observed floating weeds 

and kelp, and algal mats. 

• A 200-yd (183 m) radius buffer zone 

will be established around the intended 

target. 

• From the intended firing position, 

trained lookouts will survey the buffer 

zone for marine mammals and sea 

turtles prior to commencement and 

during the exercise as long as 

practicable. Due to the distance between 

the firing position and the buffer zone, 

lookouts are only expected to visually 

detect breaching whales, whale blows, 

and large pods of dolphins and 

porpoises. 

• If applicable, target towing vessels 

will maintain a lookout. If a marine 

mammal or sea turtle is sighted in the 

vicinity of the exercise, the tow vessel 

will immediately notify the firing vessel 

in order to secure gunnery firing until 

the area is clear. 

• The exercise will be conducted only 

when the buffer zone is visible and 

marine mammals and sea turtles are not 

detected within the target area and the 

buffer zone. 

Surface-to-Air Gunnery (Explosive and 

Non-Explosive Rounds) 

• Vessels will orient the geometry of 

gunnery exercises in order to prevent 

debris from falling in the area of sighted 

marine mammals, sea turtles, algal mats, 

and floating kelp. 

• Vessels will expedite the recovery 

of any parachute deploying aerial targets 

to reduce the potential for entanglement 

of marine mammals and sea turtles. 

• Target towing aircraft shall 

maintain a lookout. If a marine mammal 

or sea turtle is sighted in the vicinity of 

the exercise, the tow aircraft will 

immediately notify the firing vessel in 

order to secure gunnery firing until the 

area is clear. 

Air-to-Surface Gunnery (Explosive and 

Non-Explosive Rounds) 

• If surface vessels are involved, 

lookouts will visually survey for floating 

kelp, which may be inhabited by 

immature sea turtles, in the target area. 

Impact shall not occur within 200 yds 

(183 m) of known or observed floating 

weeds and kelp or algal mats. 

• A 200-yd (183 m) radius buffer zone 

will be established around the intended 

target. 

• If surface vessels are involved, 

lookout(s) will visually survey the 

buffer zone for marine mammals and sea 

turtles prior to and during the exercise. 

• Aerial surveillance of the buffer 

zone for marine mammals and sea 

turtles will be conducted prior to 

commencement of the exercise. Aerial 

surveillance altitude of 500 feet to 1,500 

feet (ft) (152–456 m) is optimum. 

Aircraft crew/pilot will maintain visual 

watch during exercises. Release of 

ordnance through cloud cover is 

prohibited: Aircraft must be able to 

actually see ordnance impact areas. 

• The exercise will be conducted only 

if marine mammals and sea turtles are 

not visible within the buffer zone. 

Small Arms Training—(Grenades, 

Explosive and Non-Explosive Rounds) 

• Weapons will not be fired in the 

direction of known or observed floating 

weeds or kelp, algal mats, marine 

mammals, sea turtles. 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60867 

Air-to-Surface At-Sea Bombing 

Exercises (Explosive and NonExplosive) 

• If surface vessels are involved, 

trained lookouts will survey for floating 

kelp, which may be inhabited by 

immature sea turtles, and marine 

mammals. Ordnance shall not be 

targeted to impact within 1,000 yds (914 

m) of known or observed floating kelp, 

sea turtles, or marine mammals. 

• A 1,000 yd (914 m) radius buffer 

zone will be established around the 

intended target. 

• Aircraft will visually survey the 

target and buffer zone for marine 

mammals and sea turtles prior to and 

during the exercise. The survey of the 

impact area will be made by flying at 

1,500 ft (152 m) or lower, if safe to do 

so, and at the slowest safe speed. 

Release of ordnance through cloud 

cover is prohibited: Aircraft must be 

able to actually see ordnance impact 

areas. Survey aircraft should employ 

most effective search tactics and 

capabilities. 

• The exercise will be conducted only 

if marine mammals and sea turtles are 

not visible within the buffer zone. 

Air-to-Surface Missile Exercises 

(Explosive and Non-Explosive) 

• Ordnance shall not be targeted to 

impact within 1,800 yds (1,646 m) of 

known or observed floating kelp, which 

may be inhabited by immature sea 

turtles, or coral reefs. 

• Aircraft will visually survey the 

target area for marine mammals and sea 

turtles. Visual inspection of the target 

area will be made by flying at 1,500 (457 

m) feet or lower, if safe to do so, and at 

slowest safe speed. Firing or range 

clearance aircraft must be able to 

actually see ordnance impact areas. 

Explosive ordnance shall not be targeted 

to impact within 1,800 yds (1,646 m) of 

sighted marine mammals and sea 

turtles. 

Demolitions, Mine Warfare, and Mine 

Countermeasures (up to a 20-lb Charge) 

Exclusion Zones—All Mine Warfare 

and Mine Countermeasures Operations 

involving the use of explosive charges 

must include exclusion zones for 

marine mammals and sea turtles to 

prevent physical and/or acoustic effects 

to those species. These exclusion zones 

shall extend in a 700-yard arc (640 yd) 

radius around the detonation site. 

Pre-Exercise Surveys—For Demolition 

and Ship Mine Countermeasures 

Operations, pre-exercise survey shall be 

conducted within 30 minutes prior to 

the commencement of the scheduled 

explosive event. The survey may be 

conducted from the surface, by divers, 

and/or from the air, and personnel shall 

be alert to the presence of any marine 

mammal or sea turtle. Should such an 

animal be present within the survey 

area, the exercise shall be paused until 

the animal voluntarily leaves the area. 

The Navy will suspend detonation 

exercises and ensure the area is clear for 

a full 30 minutes prior to detonation. 

Personnel will record any protected 

species marine mammal and sea turtle 

observations during the exercise as well 

as measures taken if species are detected 

within the exclusion zone. 

Post-Exercise Surveys—Surveys 

within the same radius shall also be 

conducted within 30 minutes after the 

completion of the explosive event. 

Reporting—If there is evidence that a 

marine mammal or sea turtle may have 

been stranded, injured or killed by the 

action, Navy training activities will be 

immediately suspended and the 

situation immediately reported by the 

participating unit to the Officer in 

Charge of the Exercise (OCE), who will 

follow Navy procedures for reporting 

the incident to Commander, Pacific 

Fleet, Commander, Navy Region 

Southwest, Environmental Director, and 

the chain-of-command. The situation 

will also be reported to NMFS (see 

Stranding Plan for details). 

Mining Operations 

Mining Operations involve aerial 

drops of inert training shapes on target 

points. Aircrews are scored for their 

ability to accurately hit the target points. 

This operation does not involve live 

ordnance. The probability of a marine 

species being in the exact spot in the 

ocean where an inert object is dropped 

is remote. However, as a conservative 

measure, initial target points will be 

briefly surveyed prior to inert ordnance 

release from an aircraft to ensure the 

intended drop area is clear of marine 

mammals and sea turtles. To the extent 

feasible, the Navy shall retrieve inert 

mine shapes dropped during Mining 

Operations. 

Sink Exercise 

The selection of sites suitable for Sink 

Exercises (SINKEXs) involves a balance 

of operational suitability, requirements 

established under the Marine 

Protection, Research and Sanctuaries 

Act (MPRSA) permit granted to the 

Navy (40 Code of Federal Regulations 

§ 229.2), and the identification of areas 

with a low likelihood of encountering 

Endangered Species Act (ESA) listed 

species. To meet operational suitability 

criteria, locations must be within a 

reasonable distance of the target vessels’ 

originating location. The locations 

should also be close to active military 

bases to allow participating assets 

access to shore facilities. For safety 

purposes, these locations should also be 

in areas that are not generally used by 

non-military air or watercraft. The 

MPRSA permit requires vessels to be 

sunk in waters which are at least 6,000 

ft (1,829 m) deep and at least 50 nm 

from land. In general, most listed 

species prefer areas with strong 

bathymetric gradients and 

oceanographic fronts for significant 

biological activity such as feeding and 

reproduction. Typical locations include 

the continental shelf and shelf-edge. 

The Navy has developed range 

clearance procedures to maximize the 

probability of sighting any ships or 

protected species in the vicinity of an 

exercise, which are as follows: 

• All weapons firing would be 

conducted during the period 1 hour 

after official sunrise to 30 minutes 

before official sunset. 

• A marine mammal exclusion zone 

with a radius of 1.0 nm will be 

established around the target. An 

additional safety zone with radius of 2.0 

nm surrounding the target will be 

monitored. If marine mammals or sea 

turtles enter this 2.0 nm radius, they 

shall be monitored to the extent 

practicable and no weapons release is 

authorized until they are clear of the 

area 

• A series of surveillance overflights 

shall be conducted prior to the event to 

ensure that no marine mammals or sea 

turtles are present in the exclusion zone. 

Survey protocol will be as follows: 

• Overflights within the exclusion 

zone would be conducted in a manner 

that optimizes the surface area of the 

water observed. This may be 

accomplished through the use of the 

Navy’s Search and Rescue Tactical Aid, 

which provides the best search altitude, 

ground speed, and track spacing for the 

discovery of small, possibly dark objects 

in the water based on the environmental 

conditions of the day. These 

environmental conditions include the 

angle of sun inclination, amount of 

daylight, cloud cover, visibility, and sea 

state. 

• All visual surveillance activities 

would be conducted by Navy personnel 

trained in visual surveillance. At least 

one member of the mitigation team 

would have completed the Navy’s 

marine mammal training program for 

lookouts. 

• In addition to the overflights, the 

exclusion zone would be monitored by 

passive acoustic means, when assets are 

available. This passive acoustic 

monitoring would be maintained 

throughout the exercise. Potential assets 


sroberts on PROD1PC70 with PROPOSALS
60868 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

include sonobuoys, which can be 

utilized to detect any vocalizing marine 

mammals (particularly sperm whales) in 

the vicinity of the exercise. The 

sonobuoys would be re-seeded as 

necessary throughout the exercise. 

Additionally, passive sonar onboard 

submarines may be utilized to detect 

any vocalizing marine mammals in the 

area. The OCE would be informed of 

any aural detection of marine mammals 

and would include this information in 

the determination of when it is safe to 

commence the exercise. 

• On each day of the exercise, aerial 

surveillance of the exclusion and safety 

zones would commence 2 hours prior to 

the first firing. 

• The results of all visual, aerial, and 

acoustic searches would be reported 

immediately to the OCE. No weapons 

launches or firing would commence 

until the OCE declares the safety and 

exclusion zones free of marine 

mammals and threatened and 

endangered species. 

• If a protected species observed 

within the exclusion zone is diving, 

firing would be delayed until the animal 

is re-sighted outside the exclusion zone, 

or 30 minutes have elapsed. After 30 

minutes, if the animal has not been resighted it would be assumed to have left 

the exclusion zone. The OCE would 

determine if the listed species is in 

danger of being adversely affected by 

commencement of the exercise. 

• During breaks in the exercise of 30 

minutes or more, the exclusion zone 

would again be surveyed for any 

protected species. If protected species 

are sighted within the exclusion zone, 

the OCE would be notified, and the 

procedure described above would be 

followed. 

• Upon sinking of the vessel, a final 

surveillance of the exclusion zone 

would be monitored for 2 hours, or until 

sunset, to verify that no listed species 

were harmed. 

• Aerial surveillance would be 

conducted using helicopters or other 

aircraft based on necessity and 

availability. The Navy has several types 

of aircraft capable of performing this 

task; however, not all types are available 

for every exercise. For each exercise, the 

available asset best suited for 

identifying objects on and near the 

surface of the ocean would be used. 

These aircraft would be capable of 

flying at the slow safe speeds necessary 

to enable viewing of marine vertebrates 

with unobstructed, or minimally 

obstructed, downward and outward 

visibility. The exclusion and safety zone 

surveys may be cancelled in the event 

that a mechanical problem, emergency 

search and rescue, or other similar and 

unexpected event preempts the use of 

one of the aircraft onsite for the 

exercise. 

• Every attempt would be made to 

conduct the exercise in sea states that 

are ideal for marine mammal sighting, 

Beaufort Sea State 3 or less. In the event 

of a 4 or above, survey efforts would be 

increased within the zones. This would 

be accomplished through the use of an 

additional aircraft, if available, and 

conducting tight search patterns. 

• The exercise would not be 

conducted unless the exclusion zone 

could be adequately monitored visually. 

• In the unlikely event that any listed 

species are observed to be harmed in the 

area, a detailed description of the 

animal would be taken, the location 

noted, and if possible, photos taken. 

This information would be provided to 

NMFS via the Navy’s regional 

environmental coordinator for purposes 

of identification (see the Stranding Plan 

for detail). 

• An after action report detailing the 

exercise’s time line, the time the surveys 

commenced and terminated, amount, 

and types of all ordnance expended, and 

the results of survey efforts for each 

event would be submitted to NMFS. 

Explosive Source Sonobuoys Used in 

EER/IEER (AN/SSQ–110A) 

• Crews will conduct visual 

reconnaissance of the drop area prior to 

laying their intended sonobuoy pattern. 

This search should be conducted below 

457 m (500 yd) at a slow speed, if 

operationally feasible and weather 

conditions permit. In dual aircraft 

operations, crews are allowed to 

conduct coordinated area clearances. 

• Crews shall conduct a minimum of 

30 minutes of visual and aural 

monitoring of the search area prior to 

commanding the first post detonation. 

This 30-minute observation period may 

include pattern deployment time. 

• For any part of the briefed pattern 

where a post (source/receiver sonobuoy 

pair) will be deployed within 914 m 

(1,000 yd) of observed marine mammal 

activity, deploy the receiver ONLY and 

monitor while conducting a visual 

search. When marine mammals are no 

longer detected within 914 m (1,000 yd) 

of the intended post position, co-locate 

the explosive source sonobuoy (AN/ 

SSQ–110A) (source) with the receiver. 

• When able, crews will conduct 

continuous visual and aural monitoring 

of marine mammal activity. This is to 

include monitoring of own-aircraft 

sensors from first sensor placement to 

checking off station and out of RF range 

of these sensors. 

• Aural Detection—If the presence of 

marine mammals is detected aurally, 

then that should cue the aircrew to 

increase the diligence of their visual 

surveillance. Subsequently, if no marine 

mammals are visually detected, then the 

crew may continue multi-static active 

search. 

• Visual Detection—If marine 

mammals are visually detected within 

914 m (1,000 yd) of the explosive source 

sonobuoy (AN/SSQ–110A) intended for 

use, then that payload shall not be 

detonated. Aircrews may utilize this 

post once the marine mammals have not 

been re-sighted for 30 minutes, or are 

observed to have moved outside the 914 

m (1,000 yd) safety buffer. Aircrews may 

shift their multi-static active search to 

another post, where marine mammals 

are outside the 914 m (1,000 yd) safety 

buffer. 

• Aircrews shall make every attempt 

to manually detonate the unexploded 

charges at each post in the pattern prior 

to departing the operations area by 

using the ‘‘Payload 1 Release’’ command 

followed by the ‘‘Payload 2 Release’’ 

command. Aircrews shall refrain from 

using the ‘‘Scuttle’’ command when two 

payloads remain at a given post. 

Aircrews will ensure that a 914 m (1,000 

yd) safety buffer, visually clear of 

marine mammals, is maintained around 

each post as is done during active 

search operations. 

• Aircrews shall only leave posts 

with unexploded charges in the event of 

a sonobuoy malfunction, an aircraft 

system malfunction, or when an aircraft 

must immediately depart the area due to 

issues such as fuel constraints, 

inclement weather, and in-flight 

emergencies. In these cases, the 

sonobuoy will self-scuttle using the 

secondary or tertiary method. 

• Ensure all payloads are accounted 

for. Explosive source sonobuoys (AN/ 

SSQ–110A) that cannot be scuttled shall 

be reported as unexploded ordnance via 

voice communications while airborne, 

then upon landing via naval message. 

• Mammal monitoring shall continue 

until out of own-aircraft sensor range. 

Additional Mitigation Measure 

Developed by NMFS and the Navy 

As mentioned above, NMFS worked 

with the Navy to identify additional 

practicable and effective mitigation 

measures to address the potential 

relationship between the operation of 

MFAS/HFAS and marine mammal 

strandings. Any mitigation measure(s) 

prescribed by NMFS should be able to 

accomplish, have a reasonable 

likelihood of accomplishing (based on 

current science), or contribute to the 

accomplishment of one or more of the 

general goals listed below: 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60869 

(a) Avoidance or minimization of 

injury or death of marine mammals 

wherever possible (goals b, c, and d may 

contribute to this goal). 

(b) A reduction in the numbers of 

marine mammals (total number or 

number at biologically important time 

or location) exposed to received levels 

of MFAS/HFAS, underwater 

detonations, or other activities expected 

to result in the take of marine mammals 

(this goal may contribute to a, above, or 

to reducing harassment takes only). 

(c) A reduction in the number of times 

(total number or number at biologically 

important time or location) individuals 

would be exposed to received levels of 

MFAS/HFAS, underwater detonations, 

or other activities expected to result in 

the take of marine mammals (this goal 

may contribute to a, above, or to 

reducing harassment takes only). 

(d) A reduction in the intensity of 

exposures (either total number or 

number at biologically important time 

or location) to received levels of MFAS/ 

HFAS, underwater detonations, or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing the 

severity of harassment takes only). 

(e) A reduction in adverse effects to 

marine mammal habitat, paying special 

attention to the food base, activities that 

block or limit passage to or from 

biologically important areas, permanent 

destruction of habitat, or temporary 

destruction/disturbance of habitat 

during a biologically important time. 

(f) For monitoring directly related to 

mitigation—an increase in the 

probability of detecting marine 

mammals, thus allowing for more 

effective implementation of the 

mitigation (shut-down zone, etc.). 

NMFS and the Navy had extensive 

discussions regarding mitigation and 

potential strandings. Ultimately, NMFS 

and the Navy developed the proposed 

draft SOCAL Stranding Plan 

(summarized below), which we believe 

supports (or contributes) to the goals 

mentioned in (a)–(e) above. 

Stranding Response Plan for Major 

Navy Training Exercises in the SOCAL 

Range Complex 

NMFS and the Navy have developed 

a draft Stranding Response Plan for 

Major Exercises in the SOCAL Range 

Complex (available at: http:// 

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

incidental.htm). Pursuant to 50 CFR 

Section 216.105, the plan will be 

included as part of (attached to) the 

Navy’s MMPA Letter of Authorization 

(LOA), which contains the conditions 

under which the Navy is authorized to 

take marine mammals pursuant to 

training activities involving MFAS/ 

HFAS or explosives in the SOCAL 

Range Complex. The Stranding 

Response plan is specifically intended 

to outline the applicable requirements 

the authorization is conditioned upon in 

the event that a marine mammal 

stranding is reported in the SOCAL 

Range Complex during a major training 

exercise (MTE) (see glossary below). As 

mentioned above, NMFS considers all 

plausible causes within the course of a 

stranding investigation and this plan in 

no way presumes that any strandings 

that could occur in the SOCAL Range 

Complex are related to, or caused by, 

Navy training activities, absent a 

determination made in a Phase 2 

Investigation as outlined in the plan, 

indicating that MFAS or explosive 

detonation in the SOCAL Range 

Complex were a cause of the stranding. 

This plan is designed to address the 

following three issues: 

• Mitigation—When marine 

mammals are in a situation that can be 

defined as a stranding (see glossary of 

plan), they are experiencing 

physiological stress. When animals are 

stranded, and alive, NMFS believes that 

exposing these compromised animals to 

additional known stressors would likely 

exacerbate the animal’s distress and 

could potentially cause its death. 

Regardless of the factor(s) that may have 

initially contributed to the stranding, it 

is NMFS’ goal to avoid exposing these 

animals to further stressors. Therefore, 

when live stranded cetaceans are in the 

water and engaged in what is classified 

as an Uncommon Stranding Event (USE) 

(see glossary of plan), the shutdown 

component of this plan is intended to 

minimize the exposure of those animals 

to MFAS and explosive detonations, 

regardless of whether or not these 

activities may have initially played a 

role in the event. 

• Monitoring—This plan will 

enhance the understanding of how 

MFAS/HFAS or underwater detonations 

(as well as other environmental 

conditions) may, or may not, be 

associated with marine mammal injury 

or strandings. Additionally, information 

gained from the investigations 

associated with this plan may be used 

in the adaptive management of 

mitigation or monitoring measures in 

subsequent LOAs, if appropriate. 

• Compliance—The information 

gathered pursuant to this protocol will 

inform NMFS’ decisions regarding 

compliance with Sections 101(a)(5)(B 

and C) of the MMPA. 

The Stranding Response Plan has 

several components: 

Shutdown Procedures—When an 

uncommon stranding event (USE— 

defined in the plan) occurs during a 

major exercise in the SOCAL Range 

Complex, and a live cetacean(s) is in the 

water exhibiting indicators of distress 

(defined in the plan), NMFS will advise 

the Navy that they should cease MFAS/ 

HFAS operation and explosive 

detonations within 14 nm (26 km) of the 

live animal involved in the USE (NMFS 

and Navy will maintain a dialogue, as 

needed, regarding the identification of 

the USE and the potential need to 

implement shutdown procedures). This 

distance is the approximate distance at 

which sound from the active sonar 

sources is anticipated to attenuate to 

145 dB (SPL). The risk function predicts 

that less than 1 percent of the animals 

exposed to active sonar at this level 

(mysticete or odontocete) would 

respond in a manner that NMFS 

considers Level B Harassment. 

Memorandum of Agreement (MOA)— 

The Navy and NMFS will develop a 

MOA, or other mechanism consistent 

with federal fiscal law requirements 

(and all other applicable laws), that 

allows the Navy to assist NMFS with the 

Phase 1 and 2 Investigations of USEs 

through the provision of in-kind 

services, such as (but not limited to) the 

use of plane/boat/truck for transport of 

stranding responders or animals, use of 

Navy property for necropsies or burial, 

or assistance with aerial surveys to 

discern the extent of a USE. The Navy 

may assist NMFS with the 

Investigations by providing one or more 

of the in-kind services outlined in the 

MOA, when available and logistically 

feasible and when the provision does 

not negatively affect Fleet operational 

commitments. 

Communication Protocol—Effective 

communication is critical to the 

successful implementation of this 

Stranding Response Plan. Very specific 

protocols for communication, including 

identification of the Navy personnel 

authorized to implement a shutdown 

and the NMFS personnel authorized to 

advise the Navy of the need to 

implement shutdown procedures 

(NMFS Protected Resources HQ—senior 

administrators) and the associated 

phone trees, etc. are currently in 

development and will be refined and 

finalized for the Stranding Response 

Plan prior to the issuance of a final rule 

(and updated yearly). 

Stranding Investigation—The 

Stranding Response Plan also outlines 

the way that NMFS plans to investigate 

any strandings (providing staff and 

resources are available) that occur 

during major training exercises in the 

SOCAL Range Complex. 


sroberts on PROD1PC70 with PROPOSALS
60870 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

Mitigation Conclusions 

NMFS believes that the range 

clearance procedures and shutdown/ 

safety zone/exclusion zone measures the 

Navy has proposed will enable the Navy 

to avoid injuring any marine mammals 

and will enable them to minimize the 

numbers of marine mammals exposed to 

levels associated with TTS for the 

following reasons: 

MFAS/HFAS 

The Navy’s standard protective 

measures indicate that they will ensure 

powerdown of MFAS/HFAS by 6 dB 

when a marine mammal is detected 

within 1,000 yd (914 m), powerdown of 

4 more dB (or 10 dB total) when a 

marine mammal is detected within 500 

yd (457 m), and will cease MFAS/HFAS 

transmissions when a marine mammal 

is detected within 200 yd (183 m). 

PTS/Injury—NMFS believes that the 

proposed mitigation measures will 

allow the Navy to avoid exposing 

marine mammals to received levels of 

MFAS/HFAS sound that would result in 

injury for the following reasons: 

• The estimated distance from the 

most powerful source at which 

cetaceans and all pinnipeds except 

harbor seals would receive a level of 215 

dB SEL (threshold for PTS/injury/Level 

A Harassment) is approximately 10 m 

(10.9 yd). The PTS threshold for harbor 

seals is 203 dB SEL, which has an 

associated distance of approximately 50 

m. 

• NMFS believes that the probability 

that a marine mammal would approach 

within the above distances of the sonar 

dome (to the sides or below) without 

being seen by the watchstanders (who 

would then activate a shutdown if the 

animal was within 200 yd (183 m)) is 

very low, especially considering that 

animals would likely avoid approaching 

a source transmitting at that level at that 

distance. 

• The model predicted that some 

animals would be exposed to levels 

associated with injury, however, the 

model does not consider the mitigation 

or likely avoidance behaviors and 

NMFS believes that injury is unlikely 

when those factors are considered. 

TTS—NMFS believes that the 

proposed mitigation measures will 

allow the Navy to minimize exposure of 

marine mammals to received levels of 

MFAS/HFAS sound associated with 

TTS for the following reasons: 

• The estimated range of maximum 

distances from the most powerful source 

at which an animal would receive 195 

dB SEL (the TTS threshold) is from 

approximately 140 m from the source in 

most operating environments (except for 

harbor seals for which the distance is 

approximately 1,700 m). 

• Based on the size of the animals, 

average group size, behavior, and 

average dive time, NMFS believes that 

the probability that Navy watchstanders 

will visually detect mysticetes or sperm 

whales, dolphins, social pelagic species 

(pilot whales, melon-headed whales, 

etc.), and sea lions at some point within 

the 1,000 yd (914 m) safety zone before 

they are exposed to the TTS threshold 

levels is high, which means that the 

Navy would be able to shutdown or 

powerdown to avoid exposing these 

species to sound levels associated with 

TTS. 

• However, seals and more cryptic 

(animals that are difficult to detect and 

observe), deep-diving cetaceans (beaked 

whales and Kogia spp.) are less likely to 

be visually detected and could 

potentially be exposed to levels of 

MFAS/HFAS expected to cause TTS. 

Animals at depth in one location would 

not be expected to be continuously 

exposed to repeated sonar signals, 

though, given the typical 5–10+ knot 

speed of Navy surface ships during 

ASW event. During a typical one-hour 

subsurface dive by a beaked whale, the 

ship will have moved over 5 to 10 nm 

from the original location. 

• Additionally, the Navy’s bow-riding 

mitigation exception for dolphins may 

sometimes allow dolphins to be exposed 

to levels of MFAS/HFAS likely to result 

in TTS. However, there are 

combinations of factors that reduce the 

acoustic energy received by dolphins 

approaching ships to ride in bow waves. 

Dolphins riding ship’s bow wave are 

outside of the main beam of the MFAS 

vertical beam pattern. Source levels 

drop quickly outside of the main beam. 

Sidelobes of the radiate beam pattern 

that point to the surface are significantly 

lower in power. Together with spherical 

spreading losses, received levels in the 

ship’s bow wave can be more than 42 

dB less than typical source level (i.e., 

235 dB¥42 dB = 193 dB). Finally, bow 

wave riding dolphins are frequently in 

and out of a bubble layer generated by 

the breaking bow waves. This bubble 

layer is an excellent scatterer of acoustic 

energy and can further reduce received 

energy. 

Underwater Explosives 

The Navy utilizes exclusion zones 

(wherein explosive detonation will not 

begin/continue if animals are within the 

zone) for explosive exercises. Table 3 

indicates the various explosives, the 

estimated distance at which animals 

will receive levels associated with take 

(see Acoustic Take Criteria Section), and 

the exclusion zone associated with the 

explosive types. 

Mortality and Injury—NMFS believes 

that the mitigation measures will allow 

the Navy to avoid exposing marine 

mammals to underwater detonations 

that would result in injury or mortality 

for the following reasons: 

• Surveillance for large charges 

(which includes aerial and passive 

acoustic detection methods, when 

available, to ensure clearance) begins 

two hours before the exercise and 

extends to 2 nm (3,704 m) from the 

source. Surveillance for all charges 

extends out 2–12 times the farthest 

distance from the source at which injury 

would be anticipated to occur (see Table 

3). 

• Animals would need to be within 

less than 193–723 m (211–790 yd) (large 

explosives) or 24–158 m (26–173 yd) 

(smaller charges) from the source to be 

injured. 

• Unlike for active sonar, an animal 

would need to be present at the exact 

moment of the explosion(s) (except for 

the short series of gunfire example in 

GUNEX) to be taken. 

• The model predicted only 34 and 7 

animals would be exposed to levels 

associated with injury and death, 

respectively (though for the reasons 

above, NMFS does not believe they will 

be exposed to those levels). 

• When the implementation of the 

exclusion zones (i.e., not starting or 

continuing to detonate explosives if an 

animal is detected within the exclusion 

zone) is combined with the above 

bullets, NMFS believes that the Navy’s 

mitigation will be effective for avoiding 

injury and mortality to marine mammals 

from explosives. 

TTS—NMFS believes that the 

proposed mitigation measures will 

allow the Navy to minimize the 

exposure of marine mammals to 

underwater detonations that would 

result in TTS for the following reasons: 

• A number of animals were 

predicted to be exposed to explosive 

levels that would result in TTS—and for 

the reasons above, NMFS believes that 

most modeled TTS takes can be 

avoided, especially dolphins, mysticetes 

and sperm whales, and social pelagic 

species. 

• However, pinnipeds and more 

cryptic, deep-diving species (beaked 

whales and Kogia spp.) are less likely to 

be visually detected and could 

potentially be exposed to explosive 

levels expected to cause TTS. 

• Additionally, for two of the exercise 

types (SINKEX and BOMBEX), the 

distance at which an animal would be 

expected to receive sound or pressure 

levels associated with TTS (182 dB SEL 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60871 

or 23 psi) is sometimes larger than the 

exclusion zone, which means that for 

those two exercise types, some 

individuals will likely be exposed to 

levels associated with TTS outside of 

the exclusion zone. 

The Stranding Response Plan, another 

important component of the mitigation 

measures for SOCAL, will minimize the 

probability of distressed live-stranded 

animals responding to the proximity of 

active sonar in a manner that further 

stresses them or increases the potential 

likelihood of mortality. 

NMFS has preliminarily determined 

that the Navy’s proposed mitigation 

measures (from the LOA application), 

along with the Stranding Response Plan 

(and when the Adaptive Management 

(see Adaptive Management below) 

component is taken into consideration) 

are adequate means of effecting the least 

practicable adverse impacts on marine 

mammals species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, while also 

considering personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

military readiness activity. 

These mitigation measures may be 

refined, modified, removed, or added to 

prior to the issuance of the final rule 

based on the comments and information 

received during the public comment 

period. 

Research 

The Navy provides a significant 

amount of funding and support to 

marine research. In the past five years 

the agency funded over $100 million 

($26 million in FY08 alone) to 

universities, research institutions, 

federal laboratories, private companies, 

and independent researchers around the 

world to study marine mammals. 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, 

• Understanding the effects of sound 

on marine mammals, sea turtles, fish, 

and birds, and 

• Developing tools to model and 

estimate potential effects of sound. 

This research is directly applicable to 

Fleet training activities, particularly 

with respect to the investigations of the 

potential effects of underwater noise 

sources on marine mammals and other 

protected species. Proposed training 

activities employ active sonar and 

underwater explosives, which introduce 

sound into the marine environment. 

The Marine Life Sciences Division of 

the Office of Naval Research currently 

coordinates six programs that examine 

the marine environment and are 

devoted solely to studying the effects of 

noise and/or the implementation of 

technology tools that will assist the 

Navy in studying and tracking marine 

mammals. The six programs are as 

follows: 

• Environmental Consequences of 

Underwater Sound, 

• Non-Auditory Biological Effects of 

Sound on Marine Mammals, 

• Effects of Sound on the Marine 

Environment, 

• Sensors and Models for Marine 

Environmental Monitoring, 

• Effects of Sound on Hearing of 

Marine Animals, and 

• Passive Acoustic Detection, 

Classification, and Tracking of Marine 

Mammals. 

The Navy has also developed the 

technical reports referenced within this 

document, which include the Marine 

Resource Assessments and the Navy 

OPAREA Density Estimates (NODE) 

reports. Furthermore, research cruises 

by the National Marine Fisheries 

Service (NMFS) and by academic 

institutions have received funding from 

the U.S. 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; and future 

research as described previously. 

Long-Term Prospective Study 

Apart from this proposed rule, NMFS, 

with input and assistance from the Navy 

and several other agencies and entities, 

will perform a longitudinal 

observational study of marine mammal 

strandings to systematically observe for 

and record the types of pathologies and 

diseases and investigate the relationship 

with potential causal factors (e.g., active 

sonar, seismic, weather). The study will 

not be a true ‘‘cohort’’ study, because we 

will be unable to quantify or estimate 

specific active 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 active 

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 

active sonar or no seismic); 


sroberts on PROD1PC70 with PROPOSALS
60872 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

environmental variables may complicate 

the interpretation of ‘‘control’’ 

measurements. The Navy and NMFS 

along with other partners are evaluating 

mechanisms for funding this study. 

Monitoring 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking’’. The MMPA implementing 

regulations at 50 Section 216.104 (a)(13) 

indicate that requests for LOAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

(a) An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the analyses 

mentioned below. 

(b) An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of MFAS/ 

HFAS (or explosives or other stimuli) 

that we associate with specific adverse 

effects, such as behavioral harassment, 

TTS, or PTS. 

(c) An increase in our understanding 

of how marine mammals respond to 

MFAS/HFAS (at specific received 

levels), explosives, or other stimuli 

expected to result in take and how 

anticipated adverse effects on 

individuals (in different ways and to 

varying degrees) may impact the 

population, species, or stock 

(specifically through effects on annual 

rates of recruitment or survival) through 

any of the following methods: 

• Behavioral observations in the 

presence of MFAS/HFAS compared to 

observations in the absence of active 

sonar (need to be able to accurately 

predict received level and report 

bathymetric conditions, distance from 

source, and other pertinent 

information). 

• Physiological measurements in the 

presence of MFAS/HFAS compared to 

observations in the absence of active 

sonar (need to be able to accurately 

predict received level and report 

bathymetric conditions, distance from 

source, and other pertinent 

information). 

• Pre-planned (i.e., well designed 

protocols in place) and thorough 

investigation of stranding events that 

occur coincident to naval activities. 

• Distribution and/or abundance 

comparisons in times or areas with 

concentrated MFAS/HFAS versus times 

or areas without MFAS/HFAS. 

(d) An increased knowledge of the 

affected species. 

(e) An increase in our understanding 

of the effectiveness of certain mitigation 

and monitoring measures 

Proposed Monitoring Plan for the 

SOCAL Range Complex 

The Navy has submitted a draft 

Monitoring Plan for the SOCAL Range 

Complex, which may be viewed at 

NMFS’ Web site: http:// 

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

incidental.htm. NMFS and the Navy 

have worked together on the 

development of this plan in the months 

preceding the publication of this 

proposed rule; however, we are still 

refining the plan and anticipate that it 

will contain more details by the time it 

is finalized in advance of the issuance 

of the final rule. Additionally, the plan 

may be modified or supplemented based 

on comments or new information 

received from the public during the 

public comment period. A summary of 

the primary components of the plan 

follows. 

The draft Monitoring Plan for SOCAL 

has been designed as a collection of 

focused ‘‘studies’’ (described fully in the 

SOCAL draft Monitoring Plan) to gather 

data that will allow the Navy to address 

the following questions: 

(a) Are marine mammals exposed to 

MFAS, especially at levels associated 

with adverse effects (i.e., based on 

NMFS’ criteria for behavioral 

harassment, TTS, or PTS)? If so, at what 

levels are they exposed? 

(b) If marine mammals are exposed to 

MFAS in the SOCAL Range Complex, 

do they redistribute geographically as a 

result of continued exposure? If so, how 

long does the redistribution last? 

(c) If marine mammals are exposed to 

MFAS, what are their behavioral 

responses to various levels? 

(d) Is the Navy’s suite of mitigation 

measures for MFAS (e.g., measures 

agreed to by the Navy through 

permitting) effective at avoiding TTS, 

injury, and mortality of marine 

mammals? 

Data gathered in these studies will be 

collected by qualified, professional 

marine mammal biologists that are 

experts in their field. They will use a 

combination of the following methods 

to collect data: 

• Contracted vessel and aerial 

surveys. 

• Passive acoustics. 

• Marine mammal observers on Navy 

ships. 

In the five proposed study designs (all 

of which cover multiple years), the 

above methods will be used separately 

or in combination to monitor marine 

mammals in different combinations 

before, during, and after training 

activities utilizing MFAS/HFAS. Table 6 

contains a summary of the Monitoring 

effort that is planned for each study in 

each year. 

This monitoring plan has been 

designed to gather data on all species of 

marine mammals that are observed in 

the SOCAL. The Plan recognizes that 

deep-diving and cryptic species of 

marine mammals such as beaked whales 

have a low probability of detection 

(Barlow and Gisiner, 2006). Therefore, 

methods will be utilized to attempt to 

address this issue (e.g., passive acoustic 

monitoring). 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60873 

In addition to the Monitoring Plan for 

SOCAL, by the end of 2009, the Navy 

will have completed an Integrated 

Comprehensive Monitoring Program 

(ICMP). The ICMP will provide the 

overarching structure and coordination 

that will, over time, compile data from 

both range specific monitoring plans 

(such as AFAST, the Hawaii Range 

complex, and the Southern California 

Range Complex) as well as Navy funded 

research and development (R&D) 

studies. The primary objectives of the 

ICMP are to: 

• Monitor Navy training events, 

particularly those involving MFAS and 

underwater detonations, for compliance 

with the terms and conditions of ESA 

Section 7 consultations or MMPA 

authorizations; 

• Collect data to support estimating 

the number of individuals exposed to 

sound levels above current regulatory 

thresholds; 

• Assess the efficacy of the Navy’s 

current marine species mitigation; 

• Add to the knowledge base on 

potential behavioral and physiological 

effects to marine species from midfrequency active sonar and underwater 

detonations; and, 

• Assess the practicality and 

effectiveness of a number of mitigation 

tools and techniques (some not yet in 

use). 

More information about the ICMP 

may be found in the draft Monitoring 

Plan for SOCAL. 

Past Monitoring in the SOCAL Range 

Complex 

NMFS has received ten total after 

action reports (AARs) addressing 12 

MFAS exercises in the SOCAL Range 

Complex since 2006 (the Navy has only 

been required to submit reports to 

NMFS since 2006 pursuant to the terms 

and conditions of the associated 

biological opinions). NMFS has 

reviewed these reports and has 

summarized the results, as related to 

marine mammal observations, in Table 

7. The data contained in the After 

Action Reports (AAR) have been 

considered in developing mitigation and 

monitoring measures for the proposed 

activities contained in this rule. The 

Navy’s AARs may be viewed at: 

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

incidental.htm. 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.030</GPH>
60874 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

BILLING CODE 3510–22–C 

General Conclusions Drawn From 

Review of Monitoring Reports 

The data included in the after action 

reports provided by the Navy thus far 

comes from Navy watchstander 

observations, not independent aerial or 

vessel-based observers (though they 

would be required by these regulations 

and any accompanying LOA (see 

Monitoring)), and therefore it is difficult 

to draw biological conclusions. 

However, NMFS can draw some general 

conclusions from the content of the 

monitoring reports: 

(a) Data from watchstanders is 

generally useful to indicate the presence 

or absence of marine mammals within 

the safety zones (and sometimes 

without) and to document the 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.031</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60875 

implementation of mitigation measures, 

but does not provide useful species’ 

specific information or behavioral data. 

Though a few observations identified 

pilot or gray whales specifically, the 

vast majority of the observations 

identified marine mammals as dolphins, 

whales, large whales, small whales, sea 

lions, pinnipeds, or unknown. Data 

gathered by independent observers can 

provide very valuable information at a 

level of detail not possible with 

watchstanders (such as data gathered by 

independent, biologist monitors in 

Hawaii and submitted to NMFS in a 

monitoring report, which indicated the 

presence of sub-adult sei whales in the 

Hawaiian Islands in fall, potentially 

indicating the use of the area for 

breeding). 

(b) Though it is by no means 

conclusory, it is worth noting that no 

instances of obvious behavioral 

disturbance were reported by the Navy 

watchstanders in their 704 marine 

mammal sightings totaling 7435 

animals. Though of course, these 

observations only cover the animals that 

were at the surface (or slightly below in 

the case of aerial surveys) and within 

the distance that the observers can see 

with the big-eye binoculars or from the 

aircraft. 

(c) NMFS and the Navy need to more 

carefully designate what information 

should be gathered during monitoring, 

as some reports contain different 

information, making cross-report 

comparisons difficult. NMFS and Navy 

will work on this issue prior to the 

issuance of the final rule for the SOCAL 

activities. 

Adaptive Management 

Adaptive Management was addressed 

above in the context of the Stranding 

Response Plan because that Section will 

be a stand-alone document. More 

specifically, the final regulations 

governing the take of marine mammals 

incidental to Navy training exercises in 

the SOCAL Range Complex will contain 

an adaptive management component. 

Our understanding of the effects of 

MFAS/HFAS and explosives on marine 

mammals is still in its relative infancy, 

and yet the science in this field is 

evolving fairly quickly. These 

circumstances make the inclusion of an 

adaptive management component both 

valuable and necessary within the 

context of 5-year regulations for 

activities that have been associated with 

marine mammal mortality in certain 

circumstances and locations (though not 

the SOCAL Range Complex in the 

Navy’s over 70 years of use of the area 

for testing and training). 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 

SOCAL Range Complex or other 

locations). 

• Results from specific stranding 

investigations (either from the SOCAL 

Range Complex or other locations, and 

involving coincident MFAS/HFAS or 

explosives training or not involving 

coincident use). 

• Results from the Long Term 

Prospective Study described below. 

• Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

Mitigation measures could be 

modified or added if new data suggests 

that such modifications would have a 

reasonable likelihood of reducing 

adverse effects to marine mammals and 

if the measures are practicable. NMFS 

could also coordinate with the Navy to 

modify or add to the existing monitoring 

requirements if the new data suggest 

that the addition of a particular measure 

would likely fill in a specifically 

important data gap. 

Reporting 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking’’. Effective reporting is critical 

both to compliance as well as ensuring 

that the most value is obtained from the 

required monitoring. Some of the 

reporting requirements are still in 

development and the final rule may 

contain additional details not contained 

in the proposed rule. Additionally, 

proposed reporting requirements may be 

modified, removed, or added based on 

information or comments received 

during the public comment period. 

Currently, there are several different 

reporting requirements pursuant to 

these proposed regulations: 

General Notification of Injured or Dead 

Marine Mammals 

Navy personnel will ensure that 

NMFS (regional stranding coordinator) 

is notified immediately (or as soon as 

clearance procedures allow) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing MFAS, HFAS, or underwater 

explosive detonations. The Navy will 

provide NMFS with species or 

description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal is dead), 

location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). The SOCAL 

Stranding Response Plan contains more 

specific reporting requirements for 

specific circumstances. 

SINKEX, GUNEX, MISSILEX, BOMBEX, 

Mine Warfare/Countermeasures, and 

NSFS 

A yearly report detailing the 

exercise’s timeline, the time the surveys 

commenced and terminated, amount, 

and types of all ordnance expended, and 

the results of marine mammal survey 

efforts for each event will be submitted 

to NMFS. 

IEER 

A yearly report detailing the number 

of exercises along with the hours of 

associated marine mammal survey and 

associated marine mammal sightings, 

number of times employment was 

delayed by marine mammal sightings, 

and the number of total detonated 

charges and self-scuttled charges will be 

submitted to NMFS. 

MFAS/HFAS Mitigation/Navy 

Watchstanders 

The Navy will submit an After Action 

Report to the Office of Protected 

Resources, NMFS, within 120 days of 

the completion of a Major or 

Coordinated Training Exercise 

(Sustainment, IAC2, SHAREM, 

COMPTUEX, or JTFEX). For other ASW 

exercises the Navy will submit a yearly 

summary report. These reports will, at 

a minimum, include the following 

information: 

• The estimated total number of 

hours of active sonar operation and the 

types of sonar used in the exercise. 

• If possible, the total number of 

hours of observation effort (including 

observation time when active sonar was 

not operating). 

• A report of all marine mammal 

sightings (at any distance—not just 

within a particular distance) to include, 

when possible and to the best of their 

ability, and if not classified: 

› Species or animal type. 

› Number of animals sighted. 

› Location of marine mammal 

sighting (where not classified). 

› Distance of animal from any 

operating active sonar sources. 

› Whether animal is fore, aft, port, 

starboard. 

› Direction animal is moving in 

relation to source (away, towards, 

parallel). 


sroberts on PROD1PC70 with PROPOSALS
60876 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

› Any observed behaviors of marine 

mammals. 

• The status of any active 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 type that the marine 

mammals were sighted from. 

Monitoring Report From Monitoring 

Plan 

Although the draft Monitoring Plan 

for SOCAL contains a general 

description of the monitoring that the 

Navy plans to conduct (and that NMFS 

has analyzed) in the SOCAL Range 

Complex, the detailed analysis and 

reporting protocols that will be used for 

the SOCAL monitoring plan are still 

being refined at this time. The draft 

SOCAL Monitoring plan may be viewed 

at: http://www.nmfs.noaa.gov/pr/ 

permits/incidental.htm. Navy will 

standardize data collection methods 

across ranges to allow for comparison in 

different geographic locations. Reports 

of the required monitoring will be 

submitted to NMFS on an annual basis 

as well as in the form of a multi-year 

report that compiles all five years worth 

of monitoring data (reported at end of 

fourth year of rule—in future rules will 

include the last year of the prior rule). 

SOCAL Comprehensive Report 

The Navy will submit to NMFS a draft 

report that analyzes and summarizes all 

of the multi-year marine mammal 

information gathered during ASW and 

explosive exercises for which individual 

reports are required. This report will be 

submitted at the end of the fourth year 

of the rule (December 2012), covering 

activities that have occurred through 

June 1, 2012. The Navy will respond to 

NMFS comments on the draft 

comprehensive report if submitted 

within 3 months of receipt. The report 

will be considered final after the Navy 

has addressed NMFS’ comments, or 

three months after the submittal of the 

draft if NMFS does not comment by 

then. The activities authorized by this 

LOA that are not covered in this report 

(i.e., those that occur between June 2012 

and January 2014) will be covered in the 

comprehensive report of the next 5-yr 

regulations for SOCAL, if issued. 

Comprehensive National ASW Report 

The Navy will submit a draft 

Comprehensive National ASW Report 

that analyzes, compares, and 

summarizes the data gathered from the 

watchstanders and pursuant to the 

implementation of the Monitoring Plans 

for AFAST, the Hawaii Range Complex, 

the Southern California (SOCAL) Range 

Complex, the Northwest Training Range 

Complex (NWTRC) and the Marianas 

range Complex. This report will be 

submitted by June 2014, covering 

activities that have occurred in these 

four ranges through June 1, 2013. The 

Navy will respond to NMFS comments 

on the draft comprehensive report if 

submitted within 3 months of receipt. 

The report will be considered final after 

the Navy has addressed NMFS’ 

comments, or three months after the 

submittal of the draft if NMFS does not 

comment by then. 

Estimated Take of Marine Mammals 

As mentioned previously, for the 

purposes of MMPA authorizations, 

NMFS’ effects assessments have two 

primary purposes (in the context of the 

SOCAL rulemaking and LOA process, 

where subsistence communities are not 

present): (1) To set forth the permissible 

methods of taking within the context of 

MMPA Level B Harassment (behavioral 

harassment), Level A Harassment 

(injury), and mortality (i.e., identify the 

number and types of take that will 

occur); and (2) to determine whether the 

specified activity will have a negligible 

impact on the affected species or stocks 

of marine mammals (based on the 

likelihood that the activity will 

adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival). 

In the Potential Effects of Exposure of 

Marine Mammal to MFAS/HFAS and 

Underwater Detonations section, NMFS’ 

analysis identified the lethal responses, 

physical trauma, sensory impairment 

(permanent and temporary threshold 

shifts and acoustic masking), 

physiological responses (particular 

stress responses), and behavioral 

responses that could potentially result 

from exposure to MFAS/HFAS or 

underwater explosive detonations. In 

this section, we will relate the potential 

effects to marine mammals from MFAS/ 

HFAS and underwater detonation of 

explosives to the MMPA statutory 

definitions of Level A and Level B 

Harassment and attempt to quantify the 

effects that might occur from the 

specific training activities that the Navy 

is proposing in the SOCAL Range 

Complex. 

Definition of Harassment 

As mentioned previously, with 

respect to military readiness activities, 

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

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

or has the significant potential to injure 

a marine mammal or marine mammal 

stock in the wild [Level A Harassment]; 

or (ii) any act that disturbs or is likely 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where 

such behavioral patterns are abandoned 

or significantly altered [Level B 

Harassment]. 

Level B Harassment 

Of the potential effects that were 

described in the Potential Effects of 

Exposure of Marine Mammal to MFAS/ 

HFAS and Underwater Detonations 

Section, the following are the types of 

effects that fall into the Level B 

Harassment category: 

Behavioral Harassment—Behavioral 

disturbance that rises to the level 

described in the definition above, when 

resulting from exposures to MFAS/ 

HFAS or underwater detonations, is 

considered Level B Harassment. Some 

of the lower level physiological stress 

responses discussed in the Potential 

Effects of Exposure of Marine Mammal 

to MFAS/HFAS and Underwater 

Detonations Section: Stress Section will 

also likely co-occur with the predicted 

harassments, although these responses 

are more difficult to detect and fewer 

data exist relating these responses to 

specific received levels of sound. When 

Level B Harassment is predicted based 

on estimated behavioral responses, 

those takes may have a stress-related 

physiological component as well. 

In the effects section above, we 

described the Southall et al. (2007) 

severity scaling system and listed some 

examples of the three broad categories 

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

behaviors); 4–6 (Behaviors with higher 

potential to affect foraging, 

reproduction, or survival); 7–9 

(Behaviors considered likely to affect 

the aforementioned vital rates). 

Generally speaking, MMPA Level B 

Harassment, as defined in this 

document, would include the behaviors 

described in the 7–9 category, and a 

subset, dependent on context and other 

considerations, of the behaviors 

described in the 4–6 categories. 

Behavioral harassment does not 

generally include behaviors ranked 0–3 

in Southall et al. (2007). 

Acoustic Masking and 

Communication Impairment—Acoustic 

masking is considered Level B 

Harassment as it can disrupt natural 

behavioral patterns by interrupting or 

limiting the marine mammal’s receipt or 

transmittal of important information or 

environmental cues. 

TTS—As discussed previously, TTS 

can affect how an animal behaves in 

response to the environment, including 

conspecifics, predators, and prey. The 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60877 

following physiological mechanisms are 

thought to play a role in inducing 

auditory fatigue: Effects to sensory hair 

cells in the inner ear that reduce their 

sensitivity, modification of the chemical 

environment within the sensory cells, 

residual muscular activity in the middle 

ear, displacement of certain inner ear 

membranes, increased blood flow, and 

post-stimulatory reduction in both 

efferent and sensory neural output. 

Ward (1997) suggested that when these 

effects result in TTS rather than PTS, 

they are within the normal bounds of 

physiological variability and tolerance 

and do not represent a physical injury. 

Additionally, Southall et al. (2007) 

indicate that although PTS is a tissue 

injury, TTS is not, because the reduced 

hearing sensitivity following exposure 

to intense sound results primarily from 

fatigue, not loss, of cochlear hair cells 

and supporting structures and is 

reversible. Accordingly, NMFS classifies 

TTS (when resulting from exposure to 

either MFAS/HFAS or underwater 

detonations) as Level B Harassment, not 

Level A Harassment (injury). 

Level A Harassment 

Of the potential effects that were 

described in the Potential Effects of 

Exposure of Marine Mammals to MFAS/ 

HFAS and Underwater Detonations 

Section, following are the types of 

effects that fall into the Level A 

Harassment category: 

PTS—PTS (resulting either from 

exposure to MFAS/HFAS or explosive 

detonations) is irreversible and 

considered an injury. PTS results from 

exposure to intense sounds that cause a 

permanent loss of inner or outer 

cochlear hair cells or exceed the elastic 

limits of certain tissues and membranes 

in the middle and inner ears and result 

in changes in the chemical composition 

of the inner ear fluids. 

Tissue Damage due to Acoustically 

Mediated Bubble Growth—A few 

theories suggest ways in which gas 

bubbles become enlarged through 

exposure to intense sounds (MFAS/ 

HFAS) to the point where tissue damage 

results. In rectified diffusion, exposure 

to a sound field would cause bubbles to 

increase in size. A short duration of 

active sonar pings (such as that which 

an animal exposed to MFAS would be 

most likely to encounter) would not 

likely be long enough to drive bubble 

growth to any substantial size. 

Alternately, bubbles could be 

destabilized by high-level sound 

exposures such that bubble growth then 

occurs through static diffusion of gas 

out of the tissues. The degree of 

supersaturation and exposure levels 

observed to cause microbubble 

destabilization are unlikely to occur, 

either alone or in concert because of 

how close an animal would need to be 

to the sound source to be exposed to 

high enough levels, especially 

considering the likely avoidance of the 

sound source and the required 

mitigation. Still, possible tissue damage 

from either of these processes would be 

considered an injury. 

Tissue Damage due to Behaviorally 

Mediated Bubble Growth—Several 

authors suggest mechanisms in which 

marine mammals could behaviorally 

respond to exposure to MFAS/HFAS by 

altering their dive patterns in a manner 

(unusually rapid ascent, unusually long 

series of surface dives, etc.) that might 

result in unusual bubble formation or 

growth ultimately resulting in tissue 

damage (emboli, etc.) In this scenario, 

the rate of ascent would need to be 

sufficiently rapid to compromise 

behavioral or physiological protections 

against nitrogen bubble formation. 

There is considerable disagreement 

among scientists as to the likelihood of 

this phenomenon (Piantadosi and 

Thalmann, 2004; Evans and Miller, 

2003). Although it has been argued that 

traumas from recent beaked whale 

strandings are consistent with gas 

emboli and bubble-induced tissue 

separations (Jepson et al., 2003; 

Fernandez et al., 2005), nitrogen bubble 

formation as the cause of the traumas 

has not been verified. If tissue damage 

does occur by this phenomenon, it 

would be considered an injury. 

Physical Disruption of Tissues 

Resulting from Explosive Shock Wave— 

Physical damage of tissues resulting 

from a shock wave (from an explosive 

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 MFAS/ 

HFAS and underwater detonations 

cannot be detected or measured (not all 

responses visible external to animal, 

portion of exposed animals underwater 

(so not visible), many animals located 

many miles from observers and covering 

very large area, etc.) and because NMFS 

must authorize take prior to the impacts 

to marine mammals, a method is needed 

to estimate the number of individuals 

that will be taken, pursuant to the 

MMPA, based on the proposed action. 

To this end, NMFS developed acoustic 

criteria that estimate at what received 

level (when exposed to MFAS/HFAS or 

explosive detonations) Level B 

Harassment, Level A Harassment, and 

mortality (for explosives) of marine 

mammals would occur. The acoustic 

criteria for MFAS/HFAS and 

Underwater Detonations (IEER) are 

discussed below. 

MFAS/HFAS Acoustic Criteria 

Because relatively few applicable data 

exist to support acoustic criteria 

specifically for HFAS and because such 

a small percentage of the active sonar 

pings that marine mammals will likely 

be exposed to incidental to this activity 

come from a HFAS source (the vast 

majority come from MFAS sources), 

NMFS will apply the criteria developed 

for the MFAS to the HFAS as well. 

NMFS utilizes three acoustic criteria 

for MFAS/HFAS: PTS (injury—Level A 

Harassment), TTS (Level B Harassment), 

and behavioral harassment (Level B 

Harassment). Because the TTS and PTS 

criteria are derived similarly and the 

PTS criteria was extrapolated from the 

TTS data, the TTS and PTS acoustic 

criteria will be presented first, before 

the behavioral criteria. 

For more information regarding these 

criteria, please see the Navy’s DEIS for 

SOCAL. 

Level B Harassment Threshold (TTS) 

As mentioned above, behavioral 

disturbance, acoustic masking, and TTS 

are all considered Level B Harassment. 

Marine mammals would usually be 

behaviorally disturbed at lower received 

levels than those at which they would 

likely sustain TTS, so the levels at 

which behavioral disturbance are likely 

to occur is considered the onset of Level 

B Harassment. The behavioral responses 

of marine mammals to sound are 

variable, context specific, and, therefore, 

difficult to quantify (see Risk Function 

section, below). Alternately, TTS is a 


sroberts on PROD1PC70 with PROPOSALS
60878 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

physiological effect that has been 

studied and quantified in laboratory 

conditions. Because data exist to 

support an estimate of at what received 

levels marine mammals will incur TTS, 

NMFS uses an acoustic criteria to 

estimate the number of marine 

mammals that might sustain TTS. TTS 

is a subset of Level B Harassment (along 

with sub-TTS behavioral harassment) 

and we are not specifically required to 

estimate those numbers; however, the 

more specifically we can estimate the 

affected marine mammal responses, the 

better the analysis. 

A number of investigators have 

measured TTS in marine mammals. 

These studies measured hearing 

thresholds in trained marine mammals 

before and after exposure to intense 

sounds. The existing cetacean TTS data 

are summarized in the following bullets. 

• Schlundt et al. (2000) reported the 

results of TTS experiments conducted 

with 5 bottlenose dolphins and 2 

belugas exposed to 1-second tones. This 

paper also includes a reanalysis of 

preliminary TTS data released in a 

technical report by Ridgway et al. 

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

kHz, sound pressure levels (SPLs) 

necessary to induce measurable 

amounts (6 dB or more) of TTS were 

between 192 and 201 dB re 1 μPa (EL 

= 192 to 201 dB re 1 μPa2-s). The mean 

exposure SPL and EL for onset-TTS 

were 195 dB re 1 μPa and 195 dB re 

1 μPa2-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 uPa2-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 μPa (EL about 213 dB re μPa2-s). No 

TTS was observed after exposure to the 

same sound at 165 and 171 dB re 1 μPa. 

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 μPa (EL about 193 

to 195 dB re 1 μPa2-s). The difference in 

results was attributed to faster postexposure threshold measurement—TTS 

may have recovered before being 

detected by Nachtigall et al. (2003). 

These studies showed that, for longduration exposures, lower sound 

pressures are required to induce TTS 

than are required for short-duration 

tones. 

• Finneran et al. (2000, 2002) 

conducted TTS experiments with 

dolphins and belugas exposed to 

impulsive sounds similar to those 

produced by distant underwater 

explosions and seismic waterguns. 

These studies showed that, for very 

short-duration impulsive sounds, higher 

sound pressures were required to 

induce TTS than for longer-duration 

tones. 

• Finneran et al. (2007) conducted 

TTS experiments with bottlenose 

dolphins exposed to intense 20 kHz 

fatiguing tone. Behavioral and auditory 

evoked potentials (using sinusoidal 

amplitude modulated tones creating 

auditory steady state response [AASR]) 

were used to measure TTS. The 

fatiguing tone was either 16 (mean = 193 

re 1uPa, SD = 0.8) or 64 seconds (185– 

186 re 1uPa) in duration. TTS ranged 

from 19–33db from behavioral 

measurements and 40–45dB from ASSR 

measurements. 

• Kastak et al. (1999a, 2005) 

conducted TTS experiments with three 

species of pinnipeds, California sea lion, 

northern elephant seal and a Pacific 

harbor seal, exposed to continuous 

underwater sounds at levels of 80 and 

95 dB sensation level at 2.5 and 3.5 kHz 

for up to 50 minutes. Mean TTS shifts 

of up to 12.2 dB occurred with the 

harbor seals showing the largest shift of 

28.1 dB. Increasing the sound duration 

had a greater effect on TTS than 

increasing the sound level from 80 to 95 

dB. 

Some of the more important data 

obtained from these studies are 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 MFAS/ 

HFAS are as follows: 

• Cetaceans—195 dB re 1 μPa2-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)). 

• Harbor Seals (and closely related 

species)—183 dB re 1 μPa2-s 

• Northern Elephant Seals (and 

closely related species)—204 dB re 1 

μPa2-s 

• California Sea Lions (and closely 

related species)—206 dB re 1 μPa2-s. 

A detailed description of how TTS 

criteria were derived from the results of 

the above studies may be found in 

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

well as the Navy’s SOCAL LOA 

application. Because they are both 

otariids, the California sea lion criteria 

is used to estimate take of northern fur 

seals for this authorization. 

Level A Harassment Threshold (PTS) 

For acoustic effects, because the 

tissues of the ear appear to be the most 

susceptible to the physiological effects 

of sound, and because threshold shifts 

tend to occur at lower exposures than 

other more serious auditory effects, 

NMFS has determined that PTS is the 

best indicator for the smallest degree of 

injury that can be measured. Therefore, 

the acoustic exposure associated with 

onset-PTS is used to define the lower 

limit of the Level A harassment. 

PTS data do not currently exist for 

marine mammals and are unlikely to be 

obtained due to ethical concerns. 

However, PTS levels for these animals 

may be estimated using TTS data from 

marine mammals and relationships 

between TTS and PTS that have been 

discovered through study of terrestrial 

mammals. NMFS uses the following 

acoustic criteria for injury: 

• Cetaceans—215 dB re 1 μPa2-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)) 

• Harbor Seals (and closely related 

species)—203 dB re 1 μPa2-s 

• Northern Elephant Seals (and 

closely related species)—224 dB re 1 

μPa2-s 

• California Sea Lions (and closely 

related species)—226 dB re 1 μPa2-s 

These criteria are based on a 20 dB 

increase in SEL over that required for 

onset-TTS. Extrapolations from 

terrestrial mammal data indicate that 

PTS occurs at 40 dB or more of TS, and 

that TS growth occurs at a rate of 

approximately 1.6 dB TS per dB 

increase in EL. There is a 34-dB TS 

difference between onset-TTS (6 dB) 

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

animal would require approximately 20 

dB of additional exposure (34 dB 

divided by 1.6 dB) above onset-TTS to 

reach PTS. A detailed description of 

how TTS criteria were derived from the 

results of the above studies may be 

found in Chapter 3 of Southall et al. 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60879 

(2007), as well as the Navy’s SOCAL 

LOA application. Southall et al. (2007) 

recommend a precautionary dual 

criteria for TTS (230 dB re 1 μPa (SPL 

peak pressure) in addition to 215 dB re 

1 μPa2-s (SEL)) to account for the 

potentially damaging transients 

embedded within non-pulse exposures. 

However, in the case of MFAS/HFAS, 

the distance at which an animal would 

receive 215 dB (SEL) is farther from the 

source (i.e., more conservative) than the 

distance at which they would receive 

230 dB (SPL peak pressure) and 

therefore, it is not necessary to consider 

230 dB peak. 

We note here that behaviorally 

mediated injuries (such as those that 

have been hypothesized as the cause of 

some beaked whale strandings) could 

potentially occur in response to 

received levels lower than those 

believed to directly result in tissue 

damage. As mentioned previously, data 

to support a quantitative estimate of 

these potential effects (for which the 

exact mechanism is not known and in 

which factors other than received level 

may play a significant role) do not exist. 

However, based on the number of years 

(more than 40) and number of hours of 

MFAS per year that the U.S. (and other 

countries) has operated compared to the 

reported (and verified) cases of 

associated marine mammal strandings, 

NMFS believes that the probability of 

these types of injuries is very low. 

Level B Harassment Risk Function 

(Behavioral Harassment) 

In 2006, NMFS issued the only 

MMPA authorization that has, as yet, 

authorized the take of marine mammals 

incidental to MFAS (to the Navy for the 

Rim of the Pacific Exercises (RIMPAC)). 

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 ‘‘stressresponse functions’’ in other risk 

assessment contexts) allow for 

probability of a response that NMFS 

would classify as harassment to occur 

over a range of possible received levels 

(instead of one number) and assume that 

the probability of a response depends 

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

received level of sound) and that the 

probability of a response increases as 

the ‘‘dose’’ increases (see Figure 3a). 

The Navy and NMFS have previously 

used acoustic risk functions to estimate 

the probable responses of marine 

mammals to acoustic exposures for 

other training and research programs. 

Examples of previous application 

include the Navy FEISs on the 

SURTASS LFA sonar (U.S. Department 

of the Navy, 2001c), the North Pacific 

Acoustic Laboratory experiments 

conducted off the Island of Kauai (Office 

of Naval Research, 2001), the 

Supplemental EIS for SURTASS LFA 

sonar (U.S. Department of the Navy, 

2007d) and the FEIS for the Navy’s 

Hawaii Range Complex (U.S. 

Department of the Navy, 2008). As 

discussed in the Effects section, factors 

other than received level (such as 

distance from or bearing to the sound 

source) can affect the way that marine 

mammals respond; however, data to 

support a quantitative analysis of those 

(and other factors) do not currently 

exist. NMFS will continue to modify 

these criteria as new data become 

available. 

The particular acoustic risk functions 

developed by NMFS and the Navy (see 

Figures 2a and 2b) estimate the 

probability of behavioral responses to 

MFAS/HFAS (interpreted as the 

percentage of the exposed population) 

that NMFS would classify as harassment 

for the purposes of the MMPA given 

exposure to specific received levels of 

MFAS/HFAS. The mathematical 

function (below) underlying this curve 

is a cumulative probability distribution 

adapted from a solution in Feller (1968) 

and was also used in predicting risk for 

the Navy’s SURTASS LFA MMPA 

authorization as well. 

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 and pinnipeds) or 8 

(mysticetes) 

In order to use this function to 

estimate the percentage of an exposed 

population that would respond in a 

manner that NMFS classifies as Level B 

Harassment, based on a given received 

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

be identified. 

B Parameter (Basement)—The B 

parameter is the estimated received 

level below which the probability of 

disruption of natural behavioral 

patterns, such as migration, surfacing, 

nursing, breeding, feeding, or sheltering, 

to a point where such behavioral 

patterns are abandoned or significantly 

altered approaches zero for the MFAS/ 

HFAS risk assessment. At this received 

level, the curve would predict that the 

percentage of the exposed population 

that would be taken by Level B 

Harassment approaches zero. For 

MFAS/HFAS, NMFS has determined 

that B = 120 dB. This level is based on 

a broad overview of the levels at which 

many species have been reported 

responding to a variety of sound 

sources. 

K Parameter (representing the 50 

percent Risk Point)—The K parameter is 

based on the received level that 

corresponds to 50 percent risk, or the 

received level at which we believe 50 

percent of the animals exposed to the 

designated received level will respond 

in a manner that NMFS classifies as 

Level B Harassment. The K parameter 

(K = 45 dB) is based on three data sets 

in which marine mammals exposed to 

mid-frequency sound sources were 

reported to respond in a manner that 

NMFS would classify as Level B 

Harassment. There is widespread 

consensus that marine mammal 

responses to MFA sound signals need to 

be better defined using controlled 

exposure experiments (Cox et al., 2006; 

Southall et al., 2007). The Navy is 

contributing to an ongoing behavioral 

response study in the Bahamas that is 

expected to provide some initial 

information on beaked whales, the 

species identified as the most sensitive 

to MFAS. NMFS is leading this 

international effort with scientists from 

various academic institutions and 

research organizations to conduct 

studies on how marine mammals 

respond to underwater sound 

exposures. Additionally, the Navy 

recently tagged whales in conjunction 

with the 2008 RIMPAC exercises. Until 

additional data are available, however, 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.054</MATH>
60880 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

NMFS and the Navy have determined 

that the following three data sets are 

most applicable for the direct use in 

establishing the K parameter for the 

MFAS/HFAS risk function. These data 

sets, summarized below, represent the 

only known data that specifically relate 

altered behavioral responses (that NMFS 

would consider Level B Harassment) to 

exposure—at specific received levels— 

to MFAS and sources within or having 

components within the range of MFAS 

(1–10 kHz). 

Even though these data are considered 

the most representative of the proposed 

specified activities, and therefore the 

most appropriate on which to base the 

K parameter (which basically 

determines the midpoint) of the risk 

function, these data have limitations, 

which are discussed in Appendix F of 

the Navy’s DEIS for SOCAL. 

1. Controlled Laboratory Experiments 

with Odontocetes (SSC Data set)—Most 

of the observations of the behavioral 

responses of toothed whales resulted 

from a series of controlled experiments 

on bottlenose dolphins and beluga 

whales conducted by researchers at 

SSC’s facility in San Diego, California 

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

Finneran and Schlundt, 2004; Schlundt 

et al., 2000). In experimental trials 

(designed to measure TTS) with marine 

mammals trained to perform tasks when 

prompted, scientists evaluated whether 

the marine mammals still performed 

these tasks when exposed to midfrequency tones. Altered behavior 

during experimental trials usually 

involved refusal of animals to return to 

the site of the sound stimulus, but also 

included attempts to avoid an exposure 

in progress, aggressive behavior, or 

refusal to further participate in tests. 

Finneran and Schlundt (2004) 

examined behavioral observations 

recorded by the trainers or test 

coordinators during the Schlundt et al. 

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

2005) experiments. These included 

observations from 193 exposure sessions 

(fatiguing stimulus level > 141 dB re 1 

μPa) 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 μPa2/hertz [Hz]), and no masking 

noise was used. In the first, fatiguing 

sound levels were increased from 160 to 

201 dB SPL. In the second experiment, 

fatiguing sound levels between 180 and 

200 dB SPL were randomly presented. 

Bottlenose dolphins exposed to 1- 

second (sec) intense tones exhibited 

short-term changes in behavior above 

received sound levels of 178 to 193 dB 

re 

1 μPa (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 

μPa significantly altered their regular 

behavior and did so in identical fashion. 

Each of these five whales: (i) 

Abandoned their current foraging dive 

prematurely as evidenced by curtailing 

their ‘‘bottom time’’; (ii) executed a 

shallow-angled, high power (i.e. 

significantly increased fluke stroke rate) 

ascent; (iii) remained at or near the 

surface for the duration of the exposure, 

an abnormally long surface interval; and 

(iv) spent significantly more time at 

subsurface depths (1–10 m) compared 

with normal surfacing periods when 

whales normally stay within 1 m (1.1 

yd) of the surface. 

3. Odontocete Field Data (Haro 

Strait—USS SHOUP)—In May 2003, 

killer whales (Orcinus orca) were 

observed exhibiting behavioral 

responses generally described as 

avoidance behavior while the U.S. Ship 

(USS) SHOUP was engaged in MFAS in 

the Haro Strait in the vicinity of Puget 

Sound, Washington. Those observations 

have been documented in three reports 

developed by Navy and NMFS (NMFS, 

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

2003). Although these observations were 

made in an uncontrolled environment, 

the sound field that may have been 

associated with the active 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 animals upon actual 

exposure to AN/SQS–53 sonar. 

U.S. Department of Commerce 

(National Marine Fisheries, 2005a); U.S. 

Department of the Navy (2004b); Fromm 

(2004a, 2004b) documented 

reconstruction of sound fields produced 

by USS SHOUP associated with the 

behavioral response of killer whales 

observed in Haro Strait. Observations 

from this reconstruction included an 

approximate closest approach time 

which was correlated to a reconstructed 

estimate of received level. Observations 

from this reconstruction included an 

estimate of 169.3 dB SPL which 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60881 

represents the mean level at a point of 

closest approach within a 500 m wide 

area which the animals were exposed. 

Within that area, the estimated received 

levels varied from approximately 150 to 

180 dB SPL. 

Calculation of K Parameter—NMFS 

and the Navy used the mean of the 

following values to define the midpoint 

of the function: (1) The mean of the 

lowest received levels (185.3 dB) at 

which individuals responded with 

altered behavior to 3 kHz tones in the 

SSC data set; (2) the estimated mean 

received level value of 169.3 dB 

produced by the reconstruction of the 

USS SHOUP incident in which killer 

whales exposed to MFAS (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 for the MFAS/ 

HFAS risk function was based on the 

use of the same value for the SURTASS 

LFA risk continuum, which was 

supported by a sensitivity analysis of 

the parameter presented in Appendix D 

of the SURTASS/LFA FEIS (U.S. 

Department of the Navy, 2001c). As 

concluded in the SURTASS FEIS/EIS, 

the value of A = 10 produces a curve 

that has a more gradual transition than 

the curves developed by the analyses of 

migratory gray whale studies (Malme et 

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

SURTASS LFA Sonar EIS, Subchapters 

1.43, 4.2.4.3 and Appendix D, and 

National Marine Fisheries Service, 

2008). 

NMFS determined that a lower 

steepness parameter (A = 8), resulting in 

a shallower curve, was appropriate for 

use with mysticetes and MFAS/HFAS. 

The Nowacek et al. (2004) dataset 

contains the only data illustrating 

mysticete behavioral responses to a 

sound source that encompasses 

frequencies in the mid-frequency sound 

spectrum. A shallower curve (achieved 

by using A = 8) better reflects the risk 

of behavioral response at the relatively 

low received levels at which behavioral 

responses of right whales were reported 

in the Nowacek et al. (2004) data. 

Compared to the odontocete curve, this 

adjustment results in an increase in the 

proportion of the exposed population of 

mysticetes being classified as 

behaviorally harassed at lower RLs, 

such as those reported in and is 

supported by the only dataset currently 

available. 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALS
60882 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

BILLING CODE 3510–22–C 

Basic Application of the Risk 

Function—The risk function is used to 

estimate the percentage of an exposed 

population that is likely to exhibit 

behaviors that would qualify as 

harassment (as that term is defined by 

the MMPA applicable to military 

readiness activities, such as the Navy’s 

testing and training with MFAS) at a 

given received level of sound. For 

example, at 165 dB SPL (dB re: 1 μPa 

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 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.032</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60883 

is then applied to specific 

circumstances. That is, the risk function 

represents a relationship that is deemed 

to be generally true, based on the 

limited, best-available science, but may 

not be true in specific circumstances. In 

particular, the risk function, as currently 

derived, treats the received level as the 

only variable that is relevant to a marine 

mammal’s behavioral response. 

However, we know that many other 

variables—the marine mammal’s 

gender, age, and prior experience; the 

activity it is engaged in during an 

exposure event, its distance from a 

sound source, the number of sound 

sources, and whether the sound sources 

are approaching or moving away from 

the animal—can be critically important 

in determining whether and how a 

marine mammal will respond to a sound 

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

that are currently available do not allow 

for incorporation of these other 

variables in the current risk functions; 

however, the risk function represents 

the best use of the data that are 

available. 

As more specific and applicable data 

become available for MFAS/HFAS 

sources, NMFS can use these data to 

modify the outputs generated by the risk 

function to make them more realistic. 

Ultimately, data may exist to justify the 

use of additional, alternate, or 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). In the SOCAL example, animals 

exposed to received levels between 120 

and 130 dB may be 22–65 nm (41–120 

km) from a sound source depending on 

seasonal variations; those distances 

could influence whether those animals 

perceive the sound source as a potential 

threat, and their behavioral responses to 

that threat. Though there are data 

showing response of certain marine 

mammal species to mid-frequency 

sound sources at that received level, 

NMFS does not currently have any data 

that describe the response of marine 

mammals to mid-frequency sounds at 

that distance, much less data that 

compare responses to similar sound 

levels at varying distances (much less 

for MFAS/HFAS). However, if data were 

to become available, NMFS would reevaluate the risk function and to 

incorporate any additional variables 

into the ‘‘take’’ estimates. 

Harbor Porpoise Behavioral Harassment 

Criteria 

The information currently available 

regarding these inshore species that 

inhabit shallow and coastal waters 

suggests a very low threshold level of 

response for both captive and wild 

animals. Threshold levels at which both 

captive (e.g. Kastelein et al., 2000; 

Kastelein et al., 2005; Kastelein et al., 

2006; Kastelein et al., 2008) and wild 

harbor porpoises (e.g. Johnston, 2002) 

responded to sound (e.g. acoustic 

harassment devices (ADHs), acoustic 

deterrent devices (ADDs), or other nonpulsed sound sources) is very low (e.g. 

∼120 dB SPL), although the biological 

significance of the disturbance is 

uncertain. Therefore, a step function 

threshold of 120 dB SPL was used to 

estimate take of harbor porpoises 

instead of the risk functions used for 

other species (i.e., we assume for the 

purpose of estimating take that all 

harbor porpoises exposed to 120 dB or 

higher MFAS/HFAS will be taken by 

Level B behavioral harassment). 

Explosive Detonation Criteria (for IEER) 

The criteria for mortality, Level A 

Harassment, and Level B Harassment 

resulting from explosive detonations 

were initially developed for the Navy’s 

Seawolf and Churchill ship-shock trials 

and have not changed since other 

MMPA authorizations issued for 

explosive detonations. The criteria, 

which are applied to cetaceans and 

pinnipeds, are summarized in Table 8. 

Additional information regarding the 

derivation of these criteria is available 

in the Navy’s DEIS for the SOCAL and 

in the Navy’s CHURCHILL FEIS (U.S. 

Department of the Navy, 2001c). 

Estimates of Potential Marine Mammal 

Exposure 

Estimating the take that will result 

from the proposed activities entails the 

following four general steps: (1) 

Propagation model estimates animals 

exposed to sources at different levels; 

(2) further modeling determines number 

of exposures to levels indicated in 

criteria above (i.e., number of takes); (3) 

post-modeling corrections refine 

estimates to make them more accurate; 

and, (4) mitigation is taken into 

consideration. More information 

regarding the models used, the 

assumptions used in the models, and 

the process of estimating take is 

available in Appendix F of the Navy’s 

DEIS for SOCAL. 

(1) In order to quantify the types of 

take described in previous sections that 

are predicted to result from the Navy’s 

specified activities, the Navy first uses 

a sound propagation model that predicts 

the number of animals that will be 

exposed to a range of levels of pressure 

and energy (of the metrics used in the 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.033</GPH>
60884 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

criteria) from MFAS/HFAS and 

explosive detonations based on several 

important pieces of information, 

including: 

• Characteristics of the sound sources. 

› Active sonar source characteristics 

include: Source level (with 

horizontal and vertical directivity 

corrections), source depth, center 

frequency, source directivity 

(horizontal/vertical beam width and 

horizontal/vertical steer direction), 

and ping spacing. 

› Explosive source characteristics 

include: The weight of an 

explosive, the type of explosive, the 

detonation depth, number of 

successive explosions. 

• Transmission loss (in 13 

representative environmental 

provinces across 8 sonar modeling 

areas in two seasons) based on: Water 

depth; sound speed variability 

throughout the water column (warm 

season exhibits a weak surface duct, 

cold season exhibits a relatively 

strong surface duct); bottom geoacoustic properties (bathymetry); and 

wind speed. 

• The estimated density of each marine 

mammal species in the SOCAL (see 

Table 13), horizontally distributed 

uniformly and vertically distributed 

according to dive profiles based on 

field data. 

(2) Next, the criteria discussed in the 

previous section are applied to the 

estimated exposures to predict the 

number of exposures that exceed the 

criteria, i.e., the number of takes by 

Level B Harassment, Level A 

Harassment, and mortality. 

(3) During the development of the EIS 

for SOCAL, NMFS and the Navy 

determined that the output of the model 

could be made more realistic by 

applying post-modeling corrections to 

account for the following: 

• Acoustic footprints for active sonar 

sources must account for land masses 

(by subtracting them out). 

• Acoustic footprints for active sonar 

sources should not be added 

independently, rather, the degree to 

which the footprints from multiple 

ships participating in the same exercise 

would typically overlap needs to be 

taken into consideration. 

• Acoustic modeling should account 

for the maximum number of individuals 

of a species that could potentially be 

exposed to active sonar within the 

course of 1 day or a discreet continuous 

sonar event if less than 24 hours. 

(4) Mitigation measures are taken into 

consideration by NMFS and 

adjustments may be applied to the 

numbers produced by the Navy’s 

modeled estimates. For example, in 

some cases the raw modeled numbers of 

exposures to levels predicted to result in 

Level A Harassment from exposure to 

MFAS/HFAS might indicate that 1 fin 

whale would be exposed to levels of 

active sonar anticipated to result in 

PTS—However, a fin whale would need 

to be within approximately 10 m of the 

source vessel in order to be exposed to 

these levels. Because of the mitigation 

measures (watchstanders and shutdown 

zone), size of fin whales, and nature of 

fin whale behavior, it is highly unlikely 

that a fin whale would be exposed to 

those levels, and therefore the Navy 

would not request authorization for 

Level A Harassment of 1 fin whale. 

Table 9 contains the Navy’s estimated 

take estimates. 

(5) Last, the Navy’s specified activities 

have been described based on best 

estimates of the number of MFAS/HFAS 

hours that the Navy will conduct. The 

exact number of hours may vary from 

year to year, but will not exceed the 5- 

year total indicated in Table 10 (by 

multiplying the yearly estimate by 5) by 

more than 10 percent. NMFS estimates 

that a 10-percent increase in active 

sonar hours would result in 

approximately a 10-percent increase in 

the number of takes, and we have 

considered this possibility in our 

analysis. 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60885 

BILLING CODE 3510–22–C 

Mortality 

Evidence from five beaked whale 

strandings, all of which have taken 

place outside the SOCAL Range 

Complex, and have occurred over 

approximately a decade, suggests that 

the exposure of beaked whales to MFAS 

in the presence of certain conditions 

(e.g., multiple units using active sonar, 

steep bathymetry, constricted channels, 

strong surface ducts, etc.) may result in 

strandings, potentially leading to 

mortality. Although these physical 

factors believed to have contributed to 

the likelihood of beaked whale 

strandings are not present, in their 

aggregate, in the SOCAL Study Area, 

scientific uncertainty exists regarding 

what other factors, or combination of 

factors, may contribute to beaked whale 

strandings. Accordingly, to account for 

scientific uncertainty regarding 

contributing causes of beaked whale 

strandings and the exact behavioral or 

physiological mechanisms that can lead 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.034</GPH> EP14OC08.035</GPH>
60886 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

to the ultimate physical effects 

(stranding and/or death), the Navy has 

requested authorization for take, by 

serious injury or mortality of 10 beaked 

whales over the course of the 5-yr 

regulations. Neither NMFS nor the Navy 

anticipates that marine mammal 

strandings or mortality will result from 

the operation of MFAS during Navy 

exercises within the SOCAL Range 

Complex. 

Effects on Marine Mammal Habitat 

The Navy’s proposed training 

exercises could potentially affect marine 

mammal habitat through the 

introduction of sound into the water 

column, impacts to the prey species of 

marine mammals, bottom disturbance, 

or changes in water quality. Each of 

these components was considered in the 

SOCAL DEIS and was determined by 

the Navy to have no effect on marine 

mammal habitat. Based on the 

information below and the supporting 

information included in the Navy’s 

DEIS, NMFS has preliminarily 

determined that the SOCAL training 

activities will not have adverse or longterm impacts on marine mammal 

habitat. A summary of the conclusions 

is included in subsequent sections. 

There is no marine mammal critical 

habitat (designated under the ESA) or 

known specific breeding areas within 

the SOCAL Range Complex with the 

exception of pinnipeds (e.g., seals and 

sea lions). Much is unknown about the 

specifics of dolphin mating, but it is 

presumed that these species mate 

throughout their habitat and possibly 

throughout the year. Even less is known 

about the mating habits of beaked 

whales. Most of the offshore area within 

the SOCAL Range Complex study area 

could potentially be utilized for active 

sonar activities or underwater 

detonations. The Navy assumes that 

active sonar activities could take place 

within potential mating areas of these 

toothed whale species within SOCAL, 

although current state of knowledge is 

very limited and there may be seasonal 

components to distribution that could 

account for breeding activities outside 

of the SOCAL Range Complex. Baleen 

whales and sperm whales breed in deep 

tropical and subtropical waters south 

and west of the SOCAL Range Complex. 

Unless the sound source or explosive 

detonation is stationary and/or 

continuous over a long duration in one 

area, the effects of the introduction of 

sound into the environment are 

generally considered to have a less 

severe impact on marine mammal 

habitat than the physical alteration of 

the habitat. Marine mammals may be 

temporarily displaced from areas where 

Navy training is occurring, but the area 

will be utilized again after the activities 

have ceased. 

Effects on Food Resources 

Fish 

The Navy’s DEIS includes a detailed 

discussion of the effects of active sonar 

on marine fish. In summary, studies 

have indicated that acoustic 

communication and orientation of fish 

may be restricted by anthropogenic 

sound in their environment. However, 

the vast majority of fish species studied 

to date are hearing generalists and 

cannot hear sounds above 500 to 1,500 

Hz (0.5 to 1.5 kHz) (depending upon the 

species), and therefore, there are not 

likely to be behavioral effects on these 

species from higher frequency sounds 

such as MFAS/HFAS. Moreover, even 

those marine 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, so it is likely that the 

fish will only actually hear the sounds 

if the fish and source were fairly close 

to one another. And, 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 likely mask detection of 

lower frequency biologically relevant 

sounds. Thus, a reasonable conclusion, 

even without more data, is that there 

will be few, and more likely no, impacts 

on the behavior of fish from active 

sonar. 

Though mortality has been shown to 

occur in one species, a hearing 

specialist, as a result of exposure to nonimpulsive sources, the available 

evidence does not suggest that 

exposures such as those anticipated 

from MFAS/HFAS would result in 

significant fish mortality on a 

population level. The mortality that was 

observed was considered insignificant 

in light of natural daily mortality rates. 

Experiments have shown that exposure 

to loud sound can result in significant 

threshold shifts in certain fish that are 

classified as hearing specialists (but not 

those classified as hearing generalists). 

Threshold shifts are temporary, and 

considering the best available data, no 

data exist that demonstrate any longterm negative effects on marine fish 

from underwater sound associated with 

active sonar activities. Further, while 

fish may respond behaviorally to midfrequency sources, this behavioral 

modification is only expected to be brief 

and not biologically significant. 

There are currently no wellestablished thresholds for estimating 

effects to fish from explosives other than 

mortality models. Fish that are located 

in the water column, in proximity to the 

source of detonation could be injured, 

killed, or disturbed by the impulsive 

sound and possibly temporarily leave 

the area. Continental Shelf Inc. (2004) 

summarized a few studies conducted to 

determine effects associated with 

removal of offshore structures (e.g., oil 

rigs) in the Gulf of Mexico. Their 

findings revealed that at very close 

range, underwater explosions are lethal 

to most fish species regardless of size, 

shape, or internal anatomy. For most 

situations, cause of death in fishes has 

been massive organ and tissue damage 

and internal bleeding. At longer range, 

species with gas-filled swimbladders 

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

more susceptible than those without 

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

Studies also suggest that larger fishes 

are generally less susceptible to death or 

injury than small fishes. Moreover, 

elongated forms that are round in cross 

section are less at risk than deep-bodied 

forms; and orientation of fish relative to 

the shock wave may affect the extent of 

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

mackerel) also seem to be less affected 

than reef fishes. The results of most 

studies are dependent upon specific 

biological, environmental, explosive, 

and data recording factors. 

The 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. 

However, most fish species experience a 

large number of natural mortalities, 

especially during early life-stages, and 

any small level of mortality caused by 

the SOCAL training exercises involving 

explosives will likely be insignificant to 

the population as a whole. 

Invertebrates 

Oceanographic features and bottom 

topography south of Point Conception 

produce localized turbulence, mixing, 

and increased surface nutrients which 

in turn support aggregations of primary 

and secondary production such as krill 

(Euphausiids) (Fiedler et al., 1998). Off 

the California coast, zooplankton 

biomass tends to reach its maximum 

abundance in the summer months and 

main prey species for marine mammals 

found within Southern California 

include Euphausia pacifica and 

Thysanoessa spinifera both of which are 

relatively cold water species, produced 

locally along the southern California 

coast (Brinton, 1976; Brinton, 1981). 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60887 

Swarms of E. pacifica are most 

abundant off Channel Island shelf edges 

between 150–200 m during daylight, 

with vertical migration to the surface at 

night (Fiedler et al., 1998). T. spinifera 

is a more coastal species, highly favored 

by blue whales (Balaenoptera 

musculus), and found during daylight 

from 50–150 m particularly on shelf 

areas northwest of San Miguel Island, 

and north of Santa Rosa Island (Fiedler 

et al., 1998). 

Very little is known about sound 

detection and use of sound by 

invertebrates (see Budelmann, 1992a, b; 

Popper et al., 2001 for reviews). The 

limited data shows that some crabs are 

able to detect sound, and there has been 

the suggestion that some other groups of 

invertebrates are also able to detect 

sounds. In addition, cephalopods 

(octopus and squid) and decapods 

(lobster, shrimp, and crab) are thought 

to sense low-frequency sound 

(Budelmann, 1992b). Packard et al., 

(1990) reported sensitivity to sound 

vibrations between 1–100 Hz for three 

species of cephalopods. McCauley et al., 

(2000) found evidence that squid 

exposed to seismic airguns show a 

behavioral response including inking. 

However, these were caged animals, and 

it is not clear how unconfined animals 

may have responded to the same signal 

and at the same distances used. In 

another study, Wilson et al., (2007) 

played back echolocation clicks of killer 

whales to two groups of squid (Loligo 

pealeii) in a tank. The investigators 

observed no apparent behavioral effects 

or any acoustic debilitation from 

playback of signals up to 199 to 226 dB 

re 1 μPa. It should be noted, however, 

that the lack of behavioral response by 

the squid may have been because the 

animals were in a tank rather than being 

in the wild. In another report on squid, 

Guerra et al. (2004) claimed that dead 

giant squid turned up around the time 

of seismic airgun operations off of 

Spain. The authors suggested, based on 

analysis of carcasses, that the damage to 

the squid was unusual when compared 

to other dead squid found at other 

times. However, the report presents 

conclusions based on a correlation to 

the time of finding of the carcasses and 

seismic testing, but the evidence in 

support of an effect of airgun activity 

was totally circumstantial. Moreover, 

the data presented showing damage to 

tissue is highly questionable since there 

was no way to differentiate between 

damage due to some external cause (e.g., 

the seismic airgun) and normal tissue 

degradation that takes place after death, 

or due to poor fixation and preparation 

of tissue. To date, this work has not 

been published in peer reviewed 

literature, and detailed images of the 

reportedly damaged tissue are also not 

available. 

In summary, baleen whales feed on 

the aggregations of krill and small 

schooling fish within Southern 

California, while toothed whales feed on 

epipelagic, mesoplegic, and 

bathypelagic fish and squid. As 

summarized above and in the SOCAL 

Range Complex DEIS in more detail, 

potential impacts to marine mammal 

food resources within the SOCAL Range 

Complex is negligible given both lack of 

hearing sensitivity to MFAS, the very 

geographic and spatially limited scope 

of most Navy at sea activities including 

underwater detonations, and the high 

biological productivity of these 

resources. No short or long term effects 

to marine mammal food resources from 

Navy activities are anticipated within 

the SOCAL Range Complex. 

Bottom Disturbance 

The current Shallow Water Training 

Range (SWTR) instrumentation is to be 

extended out from SOAR, to include 

one 250-nm2 (463-km2) area to the west 

in the area of the Tanner/Cortes Banks, 

and one 250-nm2 (463-km2) area 

between SOAR and the southern section 

of SCI. The SWTR instrumentation is a 

system of underwater acoustic 

transducer devices, called nodes, 

connected by cable to each other and to 

a land-based facility where the collected 

range data are used to evaluate the 

performance of participants in shallow 

water training exercises. The transducer 

nodes are capable of both transmitting 

and receiving acoustic signals from 

ships operating within the SWTR 

Extension. 

Since the exact cable route has not 

been decided, it is not possible to 

determine if sensitive habitat will be 

affected by the SWTR Extension. The 

marine biological resource that could be 

most affected is the white abalone, and 

anywhere the cable crosses between 65 

to 196 ft (20 to 60 m) and there is rocky 

substrate, there is the possibility of 

affecting white abalone or disrupting 

abalone habitat. Assuming that rocky 

substrate is avoided throughout the 

cable corridor, the activities that could 

affect marine biological resources are 

associated with the construction of the 

SWTR Extension. Direct impact and 

mortality of marine invertebrates at each 

node and from burial of the trunk cable 

would occur. Assuming that 300 

transducer nodes will be used, 

approximately 65,400 ft2 (6,075 m2) of 

soft bottom habitat would be affected, 

and also assuming that 14 nm (25.9 km) 

of the trunk cable will be buried 

(assuming a width of 7.8 inches [20 cm], 

which is twice the wide of the trench to 

account for sidecasted material), 

approximately 55,757 ft2 (5,180 m2) of 

soft bottom habitat would be affected. 

Soft bottom habitats are not considered 

sensitive habitats and generally support 

lower biological diversity than hard 

substrate habitats. Soft bottom 

organisms are also generally 

opportunistic and would be expected to 

rapidly re-colonize the disturbed areas. 

Localized turbidity during installation 

may also temporarily impact suspension 

feeding invertebrates in the vicinity of 

the cable corridor and nodes. Therefore, 

assuming that rocky substrate is 

avoided, impacts to marine biological 

resources from the SWTR Extension are 

anticipated to be minimal. 

Water Quality 

The SOCAL Range Complex EIS 

analyzed the potential effects to water 

quality from sonobuoy, Acoustic Device 

Countermeasures (ADC), and 

Expendable Mobile Acoustic Training 

Target (EMATT) batteries; explosive 

packages associated with the explosive 

source sonobuoy (AN/SSQ–110A), and 

Otto Fuel (OF) II combustion 

byproducts associated with torpedoes. 

Expendable Bathythermographs do not 

have batteries and were not included in 

the analysis. In addition, sonobuoys 

were not analyzed since, once scuttled, 

their electrodes are largely exhausted 

during operations and residual 

constituent dissolution occurs more 

slowly than the releases from activated 

seawater batteries. As such, only the 

potential effects of batteries and 

explosions on marine water quality in 

and surrounding the sonobuoy 

operation area were completed. It was 

determined that there would be no 

significant effect to water quality from 

seawater batteries, lithium batteries, and 

thermal batteries associated with 

scuttled sonobuoys. ADCs and EMATTs 

use lithium sulfur dioxide batteries. The 

constituents in the battery react to form 

soluble hydrogen gas and lithium 

dithionite. The hydrogen gas eventually 

enters the atmosphere and the lithium 

hydroxide dissociates, forming lithium 

ions and hydroxide ions. The hydroxide 

is neutralized by the hydronium formed 

from hydrolysis of the acidic sulfur 

dioxide, ultimately forming water. 

Sulfur dioxide, a gas that is highly 

soluble in water, is the major reactive 

component in the battery. The sulfur 

dioxide ionizes in the water, forming 

bisulfite (HSO3) that is easily oxidized 

to sulfate in the slightly alkaline 

environment of the ocean. Sulfur is 

present as sulfate in large quantities 

(i.e., 885 milligrams per liter [mg/L]) in 


sroberts on PROD1PC70 with PROPOSALS
60888 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

the ocean. Thus, it was determined that 

there would be no significant effect to 

water quality from lithium sulfur 

batteries associated with scuttled ADCs 

and EMATTs. 

Only a very small percentage of the 

available hydrogen fluoride explosive 

product in the explosive source 

sonobuoy (AN/SSQ–110A) is expected 

to become solubilized prior to reaching 

the surface and the rapid dilution would 

occur upon mixing with the ambient 

water. As such, it was determined that 

there would be no significant effect to 

water quality from the explosive 

product associated with the explosive 

source sonobuoy (AN/SSQ–110A). 

OF II is combusted in the torpedo 

engine and the combustion byproducts 

are exhausted into the torpedo wake, 

which is extremely turbulent and causes 

rapid mixing and diffusion. Combustion 

byproducts include carbon dioxide, 

carbon monoxide, water, hydrogen gas, 

nitrogen gas, ammonia, hydrogen 

cyanide, and nitrogen oxides. All of the 

byproducts, with the exception of 

hydrogen cyanide, are below the United 

States Environmental Protection Agency 

(EPA) water quality criteria. Hydrogen 

cyanide is highly soluble in seawater 

and dilutes below the USEPA criterion 

within 6.3 m (20.7 ft) of the torpedo. 

Therefore, it was determined there 

would be no significant effect to water 

quality as a result of OF II. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the affected species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects (for example: 

pink-footed geese (Anser 

brachyrhynchus) in undisturbed habitat 

gained body mass and had about a 46- 

percent reproductive success compared 

with geese in disturbed habitat (being 

consistently scared off the fields on 

which they were foraging) which did 

not gain mass and has a 17-percent 

reproductive success). A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

recruitment or survival (i.e., 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. 

Generally speaking, and especially with 

other factors being equal, the Navy and 

NMFS anticipate more severe effects 

from takes resulting from exposure to 

higher received levels (though this is in 

no way a strictly linear relationship 

throughout species, individuals, or 

circumstances) and less severe effects 

from takes resulting from exposure to 

lower received levels. 

The Navy’s specified activities have 

been described based on best estimates 

of the number of MFAS/HFAS hours 

that the Navy will conduct. The exact 

number of hours (or torpedoes, or pings, 

whatever unit the source is estimated 

in) may vary from year to year, but will 

not exceed the 5-year total indicated in 

Table 10 (by multiplying the yearly 

estimate by 5) by more than 10 percent. 

NMFS estimates that a 10 percent 

increase in active sonar hours 

(torpedoes, pings, etc.) would result in 

approximately a 10 percent increase in 

the number of takes, and we have 

considered this possibility and the effect 

of the additional active sonar use in our 

analysis. 

Taking the above into account, 

considering the sections discussed 

below, and dependent upon the 

implementation of the proposed 

mitigation measures, NMFS has 

preliminarily determined that Navy 

training exercises utilizing MFAS/HFAS 

and underwater detonations will have a 

negligible impact on the marine 

mammal species and stocks present in 

the SOCAL Range Complex. 

Behavioral Harassment 

As discussed in the Potential Effects 

of Exposure of Marine Mammals to 

MFAS/HFAS and illustrated in the 

conceptual framework, marine 

mammals can respond to MFAS/HFAS 

in many different ways, a subset of 

which qualify as harassment (see 

Behavioral Harassment Section). One 

thing that the take estimates do not take 

into account is the fact that most marine 

mammals will likely avoid strong sound 

sources to one extent or another. 

Although an animal that avoids the 

sound source will likely still be taken in 

some instances (such as if the avoidance 

results in a missed opportunity to feed, 

interruption of reproductive behaviors, 

etc.) in other cases avoidance may result 

in fewer instances of take than were 

estimated or in the takes resulting from 

exposure to a lower received level than 

was estimated, which could result in a 

less severe response. For MFAS/HFAS, 

the Navy provided information (Table 

11) estimating what percentage of the 

total takes that will occur within the 10- 

dB bins (without considering mitigation 

or avoidance) that are within the 

received levels considered in the risk 

continuum and for TTS and PTS. This 

table applies specifically to 53C hullmounted active sonar (the most 

powerful source), with less powerful 

sources the percentages would increase 

slightly in the lower received levels and 

correspondingly decrease in the higher 

received levels. As mentioned above, an 

animal’s exposure to a higher received 

level is more likely to result in a 

behavioral response that is more likely 

to adversely affect the health of the 

animals. 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60889 

Because the Navy has only been 

monitoring specifically to discern the 

effects of MFAS/HFAS on marine 

mammals since approximately 2006, 

and because of the overall data gap 

regarding the effects of MFAS/HFAS on 

marine mammals, not a lot is known 

regarding how marine mammals in the 

SOCAL Range Complex will respond to 

MFAS/HFAS. For the 12 MTEs for 

which NMFS has received a monitoring 

report, no instances of obvious 

behavioral disturbance were observed 

by the Navy watchstanders in the 704 

marine mammal sightings of 7435 

animals (9000+ hours of effort, though 

only 4 of the 12 reports reported the 

total number of hours of observation). 

One cannot conclude from these results 

that marine mammals were not harassed 

from MFAS/HFAS, as a portion of 

animals within the area of concern were 

not seen (especially those more cryptic, 

deep-diving species, such as beaked 

whales or Kogia spp.) and some of the 

non-biologist watchstanders might not 

be well-qualified to characterize 

behaviors. However, one can say that 

the animals that were observed did not 

respond in any of the obviously more 

severe ways, such as panic, aggression, 

or anti-predator response. 

In addition to the monitoring that will 

be required pursuant to these 

regulations and any corresponding 

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. Separately, the Navy and 

NMFS conducted an opportunistic 

tagging experiment with beaked whales 

in the area of the 2008 Rim of the Pacific 

training exercises in the HRC. 

Diel Cycle 

As noted previously, many animals 

perform vital functions, such as feeding, 

resting, traveling, and socializing on a 

diel cycle (24-hr cycle). Substantive 

behavioral reactions to noise exposure 

(such as disruption of critical life 

functions, displacement, or avoidance of 

important habitat) are more likely to be 

significant if they last more than one 

diel cycle or recur on subsequent days 

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

behavioral response lasting less than 

one day and not recurring on 

subsequent days is not considered 

particularly severe unless it could 

directly affect reproduction or survival 

(Southall et al., 2007). 

In the previous section, we discussed 

the fact that potential behavioral 

responses to MFAS/HFAS that fall into 

the category of harassment could range 

in severity. By definition, the takes by 

behavioral harassment involve the 

disturbance of a marine mammal or 

marine mammal stock in the wild by 

causing disruption of natural behavioral 

patterns (such as migration, surfacing, 

nursing, breeding, feeding, or sheltering) 

to a point where such behavioral 

patterns are abandoned or significantly 

altered. These reactions would, 

however, be more of a concern if they 

were expected to last over 24 hours or 

be repeated in subsequent days. For 

hull-mounted active sonar (the highest 

power source), approximately 27 

percent of the hours of source use are 

comprised of Unit Level Training or 

maintenance activities that occur in 

events of 4 hours or less. Integrated Unit 

Level Training or Major Training events 

typically last more than one day, 

however, active sonar use is not 

continuous and the exercises take place 

over very large areas, up to 50,000 nm2). 

Additionally, during times of 

continuous sonar use (parts of some 

ASW exercises), vessels with hullmounted active sonar are typically 

moving at speeds of 10–12 knots. NMFS 

believes that it is unlikely that animals 

would be exposed to MFAS/HFAS at 

levels or for a duration likely to result 

in a substantive response that would 

then be carried on for more than one 

day or on successive days. 

TTS 

NMFS and the Navy have estimated 

that some individuals of some species of 

marine mammals may sustain some 

level of TTS from MFAS/HFAS. As 

mentioned previously, TTS can last 

from a few minutes to days, be of 

varying degree, and occur across various 

frequency bandwidths. Table 9 indicates 

the estimated number of animals that 

might sustain TTS from exposure to 

MFAS/HFAS. The TTS sustained by an 

animal is primarily classified by three 

characteristics: 

• Frequency—Available data (of 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). The two hull-mounted 

MFAS sources, the DICASS sonobuoys, 

and the helicopter dipping sonar have 

center frequencies between 3.5 and 8 

kHz and the other unidentified MF 

sources are, by definition, less than 10 

kHz, which suggests that TTS induced 

by any of these MF sources would be in 

a frequency band somewhere between 

approximately 2 and 20 kHz. There are 

far fewer hours of HF source use and the 

sounds would attenuate more quickly, 

but if an animal were to incur TTS from 

these sources, it would cover a higher 

frequency range (sources are between 20 

and 100 kHz, which means that TTS 

could range up to 200 kHz, however, HF 

systems are typically used less 

frequently and for shorter time periods 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.036</GPH>
60890 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

than surface ship and aircraft MF 

systems, so TTS from these sources is 

even less likely). TTS from explosives 

would be broadband. Tables 12a and 

12b summarize the vocalization data for 

each species. 

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

dB is the sensitivity of the hearing 

reduced by)—generally, both the degree 

of TTS and the duration of TTS will be 

greater if the marine mammal is exposed 

to a higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). The threshold 

for the onset of TTS (> 6 dB) is 195 dB 

(SEL), which might be received at 

distances of up to 140 m from the most 

powerful MFAS source, the AN/SQS–53 

(the maximum ranges to TTS from other 

sources would be less, as modeled for 

SOCAL). An animal would have to 

approach closer to the source or remain 

in the vicinity of the sound source 

appreciably longer to increase the 

received SEL, which would be difficult 

considering the watchstanders and the 

nominal speed of an active sonar vessel 

(10–12 knots). Of all TTS studies, some 

using exposures of almost an hour in 

duration or up to 217 SEL, most of the 

TTS induced was 15 dB or less, though 

Finneran et al. (2007) induced 43 dB of 

TTS with a 64-sec exposure to a 20 kHz 

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

minute). 

• Duration of TTS (Recovery time)— 

see above. Of all TTS laboratory studies, 

some using exposures of almost an hour 

in duration or up to 217 SEL, almost all 

recovered within 1 day (or less, often in 

minutes), though in one study (Finneran 

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

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.037</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60891 

BILLING CODE 3510–22–C 

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 MFAS/ 

HFAS training exercises, it is unlikely 

that marine mammals would sustain a 

TTS from MFAS that alters their 

sensitivity by more than 20 dB for more 

than a few days (and the majority would 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.038</GPH>
60892 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

be far less severe). Also, for the same 

reasons discussed in the Diel Cycle 

section, and because of the short 

distance within which animals would 

need to approach the sound source, it is 

unlikely that animals would be exposed 

to the levels necessary to induce TTS in 

subsequent time periods such that their 

recovery were impeded. Additionally 

(see Tables 12a and 12b), 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. If impaired, 

marine mammals would typically be 

aware of their impairment and 

implement behaviors to compensate for 

it (see Communication Impairment 

Section), though these compensations 

may incur energetic costs. 

Acoustic Masking or Communication 

Impairment 

Table 12 is also informative regarding 

the nature of the masking or 

communication impairment that could 

potentially occur from MFAS (again, 

center frequencies are 3.5 and 7.5 kHz 

for the two types of hull-mounted active 

sonar). However, masking only occurs 

during the time of the signal (and 

potential secondary arrivals of indirect 

rays), versus TTS, which occurs 

continuously for its duration. Standard 

MFAS pings last on average one second 

and occur about once every 24–30 

seconds for hull-mounted sources. 

When hull-mounted active 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 

active sonar, on the order of several 

microseconds to 10s of micro seconds. 

For hull-mounted active sonar, though 

some of the vocalizations that marine 

mammals make are less than one second 

long, there is only a 1 in 24 chance that 

they would occur exactly when the ping 

was received, and when vocalizations 

are longer than one second, only parts 

of them are masked. Alternately, when 

the pulses are only several 

microseconds long, the majority of most 

animals’ vocalizations would not be 

masked. Masking effects from MFAS/ 

HFAS are expected to be minimal. If 

masking or communication impairment 

were to occur briefly, it would be in the 

frequency range of MFAS, which 

overlaps with some marine mammal 

vocalizations, however, it would likely 

not mask the entirety of any particular 

vocalization or communication series 

because the pulse length, frequency, and 

duty cycle of the MFAS/HFAS signal 

does not perfectly mimic the 

characteristics of any marine mammal’s 

vocalizations. 

PTS, Injury, or Mortality 

The Navy’s model estimated that the 

following numbers of individuals of the 

indicated species would be exposed to 

levels of MFAS/HFAS associated with 

the likelihood of resulting in PTS: 

bottlenose dolphin-47; blue whale—1; 

gray whale—1: Long-beaked common 

dolphin—1; short-beaked common 

dolphin—6; striped dolphin—1; and 

Pacific harbor seal—9. However, these 

estimates do not take into consideration 

either the mitigation measures or the 

likely avoidance behaviors of some of 

the animals exposed. NMFS believes 

that many marine mammals would 

deliberately avoid exposing themselves 

to the received levels of active sonar 

necessary to induce injury (i.e., 

approaching to within approximately 10 

m (10.9 yd) of the source) by moving 

away from or at least modifying their 

path to avoid a close approach. 

Additionally, in the unlikely event that 

an animal approaches the sonar vessel 

at a close distance, NMFS believes that 

the mitigation measures (i.e., shutdown/ 

powerdown zones for MFAS/HFAS) 

further ensure that animals would not 

be exposed to injurious levels of sound. 

As discussed previously, the Navy 

utilizes both aerial (when available) and 

passive acoustic monitoring (during all 

ASW exercises) in addition to 

watchstanders on vessels to detect 

marine mammals for mitigation 

implementation and indicated that they 

are capable of effectively monitoring a 

1000-meter (1093-yd) safety zone at 

night using night vision goggles, 

infrared cameras, and passive acoustic 

monitoring. When these two points are 

considered, NMFS does not believe that 

any marine mammals will incur PTS 

from exposure to MFAS/HFAS. 

The Navy’s model estimated that 34 

total animals (dolphins and pinnipeds) 

would be exposed to explosive 

detonations at levels that could result in 

injury and that 4 dolphins and 7 

pinnipeds would be exposed to levels 

that could result in death—however, 

those estimates do not consider 

mitigation measures. Because of the 

surveillance conducted prior to and 

during the exercises, the associated 

exclusion zones (see table 3 and the 

Mitigation section), and the distance 

within which the animal would have to 

be from the explosive, NMFS does not 

think that any animals will be exposed 

to levels of sound or pressure from 

explosives that will result in injury or 

death. 

As discussed previously, marine 

mammals could potentially respond to 

MFAS at a received level lower than the 

injury threshold in a manner that 

indirectly results in the animals 

stranding. The exact mechanisms of this 

potential response, behavioral or 

physiological, are not known. However, 

based on the number of occurrences 

where strandings have been definitively 

associated with military active sonar 

versus the number of hours of active 

sonar training that have been 

conducted, we suggest that the 

probability is small that this will occur. 

Additionally, an active sonar shutdown 

protocol for strandings involving live 

animals milling in the water minimizes 

the chances that these types of events 

turn into mortalities. 

Though NMFS does not expect it to 

occur, because of the uncertainty 

surrounding the mechanisms that link 

exposure to MFAS to stranding 

(especially in beaked whales), NMFS is 

proposing to authorize the injury or 

mortality of 10 beaked whales over the 

course of the 5-yr regulations. 

40 Years of Navy Training Exercises 

Using MFAS/HFAS in the SOCAL Range 

Complex 

The Navy has been conducting 

MFAS/HFAS training exercises in the 

SOCAL Range Complex for over forty 

years. Although monitoring specifically 

in conjunction with training exercises to 

determine the effects of active sonar on 

marine mammals was not being 

conducted by the Navy prior to 2006 

and the symptoms indicative of 

potential acoustic trauma were not as 

well recognized prior to the midnineties, people have been collecting 

stranding data in the SOCAL Range 

Complex for approximately 25 years. 

Though not all dead or injured animals 

are expected to end up on the shore 

(some may be eaten or float out to sea), 

one might expect that if marine 

mammals were being harmed by active 

sonar with any regularity, more 

evidence would have been detected over 

the 40-yr period. 

Species-Specific Analysis 

In the discussions below, the 

‘‘acoustic analysis’’ refers to the Navy’s 

analysis, which includes the use of 

several models and other applicable 

calculations as described in the 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60893 

Estimates of Potential Marine Mammal 

Exposure section. The numbers 

predicted by the ‘‘acoustic analysis’’ are 

based on a uniform and stationary 

distribution of marine mammals and do 

not take into consideration the 

implementation of mitigation measures 

or potential avoidance behaviors of 

marine mammals, and therefore, are 

likely overestimates of potential 

exposures to the indicated thresholds 

(PTS, TTS, behavioral harassments). 

Consequently, NMFS has factored in the 

mitigation measures and avoidance to 

make both quantitative and qualitative 

adjustments to the take estimates 

predicted by the Navy’s ‘‘acoustic 

analysis’’. The revised take estimates 

(and proposed take authorization) 

depict a more realistic scenario than 

those adopted directly from the Navy’s 

acoustic analysis. 

Although NMFS is not required to 

identify the number of animals that will 

be taken specifically by TTS versus 

behavioral harassment (Level B 

Harassment takes include both), we 

have attempted to make more realistic 

estimates by quantitatively refining the 

Navy’s TTS estimates by modifying the 

estimate produced by the acoustic 

analysis by a specific amount if certain 

circumstances are present as described 

below: 

For MFAS/HFAS, some animals are 

likely to avoid the source to some 

degree (which could decrease the 

number exposed to TTS levels). Adding 

to that, in the following circumstances 

(discussed in more detail in the 

individual sections below) the indicated 

multipliers were applied to the TTS 

estimates predicted by the acoustic 

analysis: 

• When animals are highly visible 

(such as melon-headed whales, 

humpback whales), we assume that 

lookouts will see them in time to cease 

sonar operation before the animals are 

exposed to levels associated with TTS, 

which reach to about 140 m from the 

sonar source. In this case we estimate 0 

animals will incur TTS. 

• When animals are deep divers and 

very cryptic at the surface (such as 

beaked whales), though some may avoid 

the source, we assume that most will 

not be sighted, and therefore we 

estimated that 50–100 percent of the 

number predicted by the Navy’s 

acoustic analysis might actually incur 

TTS. 

• When animals are more likely to be 

visually detected than beaked whales, 

but less likely than the highly visible 

species, we estimate that 0–100 percent 

of the number of these species (sperm 

whales, some pinnipeds) predicted by 

the Navy’s acoustic analysis might 

actually incur TTS. 

• Though dolphins are highly visible, 

because the mitigation includes a 

provision to allow bow-riding, not all 

TTS take of dolphins will necessarily be 

avoided. Therefore, we estimated that 

0–50 percent of the number of dolphins 

predicted by the Navy’s acoustic 

analysis might actually incur TTS. 

For explosives, all TTS will likely not 

be avoided for any species because for 

a couple of the larger explosives, the 

distance at which an animal could incur 

TTS is somewhat greater than the 

Navy’s exclusion zone for a couple of 

the exercise types (see Table 3). Adding 

to that, in the following circumstances 

(discussed in more detail in the 

individual sections below) the indicated 

multipliers were applied to the TTS 

estimates predicted by the acoustic 

analysis: 

• When marine mammals are highly 

detectable, NMFS estimated that 0–50 

percent of the number of those species 

predicted by the Navy’s acoustic 

analysis might actually incur TTS. 

• When marine mammals are less 

than highly detectable, NMFS estimated 

that 50–100 percent of the number of 

those species predicted by the Navy’s 

acoustic analysis might actually incur 

TTS. 

Humpback Whale 

Acoustic analysis indicates that up to 

15 exposures of humpback whales to 

sound levels likely to result in Level B 

harassment may occur from MFAS/ 

HFAS and explosives. This estimate 

represents the total number of takes and 

not necessarily the number of 

individuals taken, as a single individual 

may be taken multiple times over the 

course of a year. These Level B takes are 

anticipated to be in the form of 

behavioral disturbance as described in 

the Definition of Harassment: Level B 

Harassment section section. Although 2 

of the modeled Level B Harassment 

takes were predicted to be in the form 

of TTS from MFAS/HFAS, NMFS 

believes it is unlikely that any 

humpback whales will incur TTS 

because of the distance within which 

they would have to approach the active 

sonar source (depending on conditions, 

within a range of 140 m for the most 

powerful source), the fact that many 

animals will likely avoid active sonar 

sources to some degree, and the high 

likelihood that Navy monitors would 

detect these animals (due to their large 

size, surface behavior, and pronounced 

blow) prior to an approach within this 

distance and implement active sonar 

powerdown or shutdown. Acoustic 

analysis estimates that no humpback 

whales will be exposed to MFAS/HFAS 

sound levels likely to result in Level A 

harassment. 

Modeling of the explosive sources 

predicts that no take of humpback 

whales will result from the detonation 

of underwater explosives. 

Humpback whales in southern 

California are primarily from the Eastern 

North Pacific Stock. The current best 

estimate of population size for this stock 

is 1,391 (Caretta et al., 2007). No areas 

of specific importance for reproduction 

or feeding for humpback whales have 

been identified in the SOCAL Range 

Complex. 

Sei Whales and Bryde’s Whales 

Both Sei whales and Bryde’s whales 

are considered rare in SOCAL (less than 

3 sightings in last 30 years, only one 

confirmed sighting in California, 

respectively). Because of their very low 

density in the area, the Navy’s acoustic 

analysis indicates that no sei whales or 

Bryde’s whales will be exposed to 

sound levels or explosive detonations 

likely to result in take and the Navy has 

not requested authorization to take any 

individuals of these species. 

Fin Whales 

Acoustic analysis indicates that up to 

167 exposures of fin whales to sound 

levels likely to result in Level B 

harassment may result from MFAS/ 

HFAS and explosives. This estimate 

represents the total number of takes and 

not necessarily the number of 

individuals taken, as a single individual 

may be taken multiple times over the 

course of a year. These Level B takes are 

anticipated to primarily be in the form 

of behavioral harassment as described in 

the Definition of Harassment: Level B 

Harassment section. Although 12 of the 

modeled Level B Harassment takes were 

predicted to be in the form of TTS from 

MFAS/HFAS, NMFS believes it is 

unlikely that any fin whales will incur 

TTS because of the distance within 

which they would have to approach the 

MFAS source (approximately 140 m for 

the most powerful source for TTS), the 

fact that many animals will likely avoid 

active sonar sources to some degree, and 

the likelihood that Navy monitors 

would detect these animals prior to an 

approach within this distance and 

implement active sonar powerdown or 

shutdown. Navy lookouts will likely 

detect a group of fin whales because of 

their large size, mean group size (3), and 

pronounced blow. 

Acoustic analysis also predicted that 

1 TTS take of fin whales from 

explosives would occur. For the same 

reasons listed above, NMFS anticipates 

that the Navy watchstanders would 


sroberts on PROD1PC70 with PROPOSALS
60894 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

likely detect these species and 

implement the mitigation to avoid 

exposure. However, the range to TTS for 

a few of the larger explosives is larger 

than the associated exclusion zones for 

BOMBEX, MISSILEX, or SINKEX (see 

Table 3), and therefore NMFS 

anticipates that TTS might not be 

entirely avoided during those exercises, 

so NMFS estimates that up to 1 TTS 

take of a fin whale might result from 

explosive detonations. 

Acoustic analysis estimates that no fin 

whales will be exposed to MFAS/HFAS 

sound levels or explosives expected to 

result in injury or death. Further, NMFS 

believes that many marine mammals 

would avoid exposing themselves to the 

received levels necessary to induce 

injury (and avoid getting as close to the 

vessel as they would need to: within 

approximately 10 m (10.9 yd)) by 

moving away from or at least modifying 

their path to avoid a close approach. 

Also, NMFS believes that the mitigation 

measures would be effective at avoiding 

injurious exposures to animal that 

approached within the explosive safety 

zone, especially in the case of these 

large animals. 

Fin whales in the Southern California 

Range Complex belong to the California/ 

Oregon/Washington stock. The best 

population estimate for this stock is 

2,099. No areas of specific importance 

for reproduction or feeding for fin 

whales have been identified in the 

SOCAL Range Complex. 

Blue Whales 

Acoustic analysis indicates that up to 

609 exposures of blue whales to MFAS/ 

HFAS or explosive detonations at sound 

or pressure levels likely to result in 

Level B harassment may occur. This 

estimate represents the total number of 

takes and not necessarily the number of 

individuals taken, as a single individual 

may be taken multiple times over the 

course of a year. These Level B takes are 

anticipated to be primarily in the form 

of behavioral disturbance as described 

in the Definition of Harassment: Level B 

Harassment section. Although 67 of the 

modeled Level B Harassment takes were 

predicted to be in the form of TTS from 

MFAS/HFAS exposure, NMFS believes 

it is unlikely that any blue whales will 

incur TTS because of the distance 

within which they would have to 

approach the MFAS source 

(approximately 140 m for the most 

powerful source for TTS), the fact that 

many animals will likely avoid active 

sonar sources to some degree, and the 

likelihood that Navy monitors would 

detect these animals prior to an 

approach within this distance and 

implement active sonar powerdown or 

shutdown. Navy lookouts will likely 

detect a group of blue whales given their 

large size, average group size (2–3), and 

pronounced vertical blow. The acoustic 

analysis also predicted that 1 animal 

would be exposed to MFAS/HFAS 

sound levels that would result in Level 

A Harassment (PTS—injury). However, 

for the same reasons listed above for 

TTS (and because animals would need 

to approach within 10 m of the sonar 

dome), NMFS does not believe that any 

animals will incur PTS or be otherwise 

injured by MFAS/HFAS. 

Acoustic analysis also predicted that 

2 blue whales would be exposed to 

sound or pressure from explosives at 

levels expected to result in TTS. For the 

same reasons listed above, NMFS 

anticipates that the Navy watchstanders 

would likely detect these species and 

implement the mitigation to avoid 

exposure. However, the range to TTS for 

a few of the larger explosives is larger 

than the associated exclusion zones for 

BOMBEX, MISSILEX, or SINKEX (see 

Table 3), therefore NMFS anticipates 

that TTS might not be entirely avoided 

during those exercises, so NMFS 

estimates that up to 1 TTS take of a blue 

whale might result from explosive 

detonations. Acoustic analysis estimates 

that no blue whales will be exposed to 

explosive levels likely to result in PTS 

or mortality. 

Blue whales in the Southern 

California Range Complex belong to the 

Eastern North Pacific stock. The best 

population estimate for this stock is 

1,744 (Caretta et al., 2007). No areas of 

specific importance for reproduction or 

feeding for blue whales have been 

identified in the SOCAL Range 

Complex. 

Gray Whales 

Acoustic analysis indicates that up to 

5,460 exposures of gray whales to 

MFAS/HFAS or explosive detonations 

at sound or pressure levels likely to 

result in Level B harassment may occur. 

This estimate represents the total 

number of takes and not necessarily the 

number of individuals taken, as a single 

individual may be taken multiple times 

over the course of a year. These Level 

B takes are anticipated to primarily be 

in the form of behavioral disturbance as 

described in the Definition of 

Harassment: Level B Harassment section 

section. Although 544 of the modeled 

Level B Harassment takes were 

predicted to be in the form of TTS from 

MFAS/HFAS exposure, NMFS believes 

it is unlikely that any gray whales will 

incur TTS because of the distance 

within which they would have to 

approach the MFAS source 

(approximately 140 m for the most 

powerful source for TTS, 10 m for 

injury), the fact that many animals will 

likely avoid active sonar sources to 

some degree, and the likelihood that 

Navy monitors would detect these 

animals prior to an approach within this 

distance and implement active sonar 

powerdown or shutdown. Navy 

lookouts will likely detect a group of 

gray whales given their large size, 

pronounced blow and mean group size 

of about 3 animals. The acoustic 

analysis also predicted that 1 animal 

would be exposed to MFAS/HFAS 

sound levels that would result in Level 

A Harassment (PTS—injury). However, 

for the same reasons listed above for 

TTS (and because animals would need 

to approach within 10 m of the sonar 

dome), NMFS does not believe that any 

animals will incur PTS or be otherwise 

injured by MFAS/HFAS. 

Acoustic analysis also predicted that 

7 gray whales would be exposed to 

sound or pressure from explosives at 

levels expected to result in TTS. For the 

same reasons listed above, NMFS 

anticipates that the Navy watchstanders 

would likely detect these species and 

implement the mitigation to avoid 

exposure. However, the range to TTS for 

a few of the larger explosives is larger 

than the associated exclusion zones for 

BOMBEX, MISSILEX, or SINKEX (see 

Table 3), and therefore NMFS 

anticipates that TTS might not be 

entirely avoided during those exercises, 

so NMFS estimates that up to 4 TTS 

take of a gray whale might result from 

explosive detonations. Acoustic analysis 

predicts that no gray whales will be 

exposed to explosive levels likely to 

result either in Level A harassment or 

mortality. 

Gray whales in the Southern 

California Range Complex belong to the 

Eastern North Pacific stock, for which 

the best population estimate is 26,635 

(Angliss and Outlaw, 2007). No areas of 

specific importance for reproduction or 

feeding for gray whales have been 

identified in the SOCAL Range 

Complex. 

Minke Whales 

Acoustic analysis indicates that up to 

126 exposures of minke whales to 

MFAS/HFAS or explosive detonations 

at sound or pressure levels likely to 

result in Level B harassment may occur. 

This estimate represents the total 

number of Level B takes and not 

necessarily the number of individuals 

taken, as a single individual may be 

taken multiple times over the course of 

a year. These Level B takes are 

anticipated to be in the form of 

behavioral disturbance as described in 

the Definition of Harassment: Level B 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60895 

Harassment section. Although 16 of the 

modeled Level B Harassment takes were 

predicted to be in the form of TTS from 

MFAS/HFAS exposure, NMFS believes 

it is unlikely that all 16 whales will 

incur TTS because of the distance 

within which they would have to 

approach the active sonar source 

(approximately 140 m for the most 

powerful source), the fact that many 

animals will likely avoid active sonar 

sources to some degree, and the 

likelihood that Navy monitors would 

detect some of these animals prior to an 

approach within this distance and 

implement active sonar powerdown or 

shutdown. However, because of their 

cryptic behavior/profile at the surface, 

NMFS believes that some animals may 

approach undetected within the 

distance in which TTS would likely be 

incurred (although, they can be detected 

well using passive acoustic monitoring). 

Therefore, NMFS estimates that 0–16 

Minke whales may incur TTS from 

exposure to MFAS/HFAS. 

As indicated in Table 12, known 

minke whale vocalizations are largely 

below 1 kHz and would not likely 

overlap with MFAS/HFAS TTS, which 

would be in the range of 2–20 kHz. As 

noted previously, NMFS does not 

anticipate TTS of a long duration or 

severe degree to occur as a result of 

exposure to MFA/HFAS. 

Acoustic analysis predicts that no 

minke whales will be exposed to MFAS/ 

HFAS sound levels likely to result 

either in Level A harassment or 

mortality. Additionally, acoustic 

analysis predicts that no take of minke 

whales will result form exposure to 

explosive detonations. No areas of 

specific importance for reproduction or 

feeding for minke whales have been 

identified in the SOCAL Range 

Complex. 

Minke whales in the Southern 

California Range Complex belong to the 

California/Oregon/Washington stock, for 

which the best population estimate is 

823 (Barlow and Forney, 2007). 

Sperm Whales 

Acoustic analysis indicates that up to 

148 exposures of sperm whales to 

MFAS/HFAS or explosive detonations 

at sound or pressure levels likely to 

result in Level B harassment may occur. 

This estimate represents the total 

number of Level B takes and not 

necessarily the number of individuals 

taken, as a single individual may be 

taken multiple times over the course of 

a year. These Level B takes are 

anticipated to primarily be in the form 

of behavioral disturbance as described 

in the Definition of Harassment: Level B 

Harassment section. Although 8 of the 

modeled Level B Harassment takes were 

predicted to be in the form of TTS from 

MFAS/HFAS exposure, NMFS believes 

it is unlikely that all eight whales will 

incur TTS because of the distance 

within which they would have to 

approach the MFAS source 

(approximately 140 m for the most 

powerful source), the fact that many 

animals will likely avoid active sonar 

sources to some degree, and the 

likelihood that Navy monitors would 

detect some of these animals at the 

surface prior to an approach within this 

distance and implement active sonar 

powerdown or shutdown. However, 

because of their long, deep diving 

behavior (up to 2-hour dives), NMFS 

believes that some animals may 

approach undetected within the 

distance in which TTS would likely be 

incurred. Therefore, NMFS estimates 

that 0–8 sperm whales may incur some 

degree of TTS from exposure to MFAS/ 

HFAS. 

As indicated in Table 12, some (but 

not all) sperm whale vocalizations 

might overlap with the MFAS/HFAS 

TTS frequency range (2–20 kHz), which 

could potentially temporarily decrease 

an animal’s sensitivity to the calls of 

conspecifics or returning echolocation 

signals. However, as noted previously, 

NMFS does not anticipate TTS of a long 

duration or severe degree to occur as a 

result of exposure to MFA/HFAS. No 

sperm whales are predicted to be 

exposed to MFAS/HFAS sound levels 

associated with PTS or injury. 

Acoustic analysis also predicted that 

one sperm whale would be exposed to 

sound or pressure from explosives at 

levels expected to result in TTS. For the 

same reasons listed above, NMFS 

anticipates that the Navy watchstanders 

would likely detect these species in 

most instances and implement the 

mitigation to avoid exposure. However, 

the range to TTS for a few of the larger 

explosives is larger than the associated 

exclusion zones for BOMBEX, 

MISSILEX, or SINKEX (see Table 3), and 

therefore NMFS anticipates that TTS 

might not be entirely avoided during 

those exercises, so NMFS estimates that 

up to one TTS take of a sperm whale 

might result from explosive detonations. 

Acoustic analysis predicts that no sperm 

whales will be exposed to explosive 

levels likely to result either in Level A 

harassment or mortality. 

No areas of specific importance for 

reproduction or feeding for sperm 

whales have been identified in the 

SOCAL Range Complex. Sperm whales 

in the Southern California Range 

Complex belong to the California/ 

Oregon/Washington stock, for which the 

best population estimate is 1,233 

(Caretta et al., 2007). 

Pygmy and Dwarf Sperm Whales 

Acoustic analysis indicates that up to 

159 exposures of pygmy sperm whales 

to MFAS/HFAS or explosive 

detonations at sound or pressure levels 

likely to result in Level B harassment 

may occur. This estimate represents the 

total number of Level B takes and not 

necessarily the number of individuals 

taken, as a single individual may be 

taken multiple times over the course of 

a year. These Level B takes are 

anticipated to primarily be in the form 

of behavioral disturbance as described 

in the Definition of Harassment: Level B 

Harassment section. Sixteen of the 

modeled Level B Harassment takes were 

predicted to be in the form of TTS from 

MFAS/HFAS exposure. NMFS believes 

it is unlikely that all 16 whales will 

incur TTS because of the distance 

within which they would have to 

approach the MFAS source 

(approximately 140 m for the most 

powerful source) and the fact that many 

animals will likely avoid active sonar 

sources to some degree. However, the 

likelihood that Navy monitors would 

detect most of these animals at the 

surface prior to an approach within this 

distance is low because of their small 

size, non-gregarious nature, and cryptic 

behavior and profile. Therefore, NMFS 

estimates that 8–16 pygmy sperm 

whales may incur some degree of TTS 

from exposure to MFAS/HFAS. 

As indicated in Table 12, some Kogia 

spp. vocalizations might overlap with 

the MFAS/HFAS TTS frequency range 

(2–20 kHz), but the limited information 

for Kogia sp. indicates that the majority 

of their clicks are at a much higher 

frequency and that their maximum 

hearing sensitivity is between 90 and 

150 kHz. However, as noted previously, 

NMFS does not anticipate TTS of a long 

duration or severe degree to occur as a 

result of exposure to MFA/HFAS. No 

pygmy sperm whales are predicted to be 

exposed to MFAS/HFAS sound levels 

associated with PTS or injury. 

Acoustic analysis also predicted that 

one pygmy sperm whale would be 

exposed to sound or pressure from 

explosives at levels expected to result in 

TTS. For the same reasons listed above, 

NMFS anticipates that the Navy 

watchstanders would not always detect 

these species to implement the 

mitigation to avoid exposure. 

Additionally, the range to TTS for a few 

of the larger explosives is larger than the 

associated exclusion zones for 

BOMBEX, MISSILEX, or SINKEX (see 

Table 3), and therefore NMFS 

anticipates that TTS might not be 


sroberts on PROD1PC70 with PROPOSALS
60896 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

entirely avoided during those exercises, 

so NMFS estimates that one TTS take of 

a pygmy sperm whale would result from 

explosive detonations. Acoustic analysis 

predicts that no sperm whales will be 

exposed to explosive levels likely to 

result either in Level A harassment or 

mortality. 

Dwarf sperm whales are considered 

rare in the SOCAL Range Complex and 

no information is available to estimate 

the population size of dwarf sperm 

whales off the U.S. West Coast (Caretta 

et al., 2007). NMFS and the Navy do not 

anticipate take of this species occurring, 

but NMFS is proposing to authorize 20 

Level B Harassment takes for this 

species annually to ensure MMPA 

compliance should the Navy 

unexpectedly encounter an individual 

of this species while operating active 

sonar. 

No areas of specific importance for 

reproduction or feeding for pygmy or 

dwarf sperm whales have been 

identified in the SOCAL Range 

Complex. Pygmy sperm whales in the 

Southern California Range Complex 

belong to the California/Oregon/ 

Washington stock, for which the most 

recent population estimate is 247 

(Caretta et al., 2007). 

Beaked Whales 

Due to the difficulty in differentiating 

Mesoplodon species from each other, 

the management unit (California/ 

Oregon/Washington stock of 

Mesoplodont beaked whales) is defined 

to include all the mesoplodon 

populations (Blainville’s, Hubb’s, 

Perrin’s, pygmy, and ginkgo-toothed 

beaked whales) and anticipated take of 

these 5 species is combined in Table 9. 

Acoustic analysis indicates that 13 

Baird’s beaked whales, 428 Cuvier’s 

beaked whales, and 131 Mesoplodon 

species will likely be exposed to MFAS/ 

HFAS or explosives at pressure or 

sound levels likely to result in Level B 

harassment. The analysis also further 

estimates that 97 unidentified beaked 

whales may be taken by Level B 

Harassment. These estimates represent 

the total number of exposures and not 

necessarily the number of individuals 

exposed, as a single individual may be 

exposed multiple times over the course 

of a year. 

One (Baird’s), 37 (Cuvier’s), and 13 

(Mesoplodon) of the modeled Level B 

Harassment takes were predicted to be 

in the form of TTS from MFAS/HFAS 

exposure. NMFS believes it is unlikely 

that all 51 beaked whales will incur TTS 

because of the distance within which 

they would have to approach the active 

sonar source (approximately 140 m for 

the most powerful source) and the fact 

that many animals will likely avoid 

active sonar sources to some degree. 

However, the likelihood that Navy 

monitors would detect most of these 

animals at the surface prior to an 

approach within this distance is low 

because of their non-gregarious nature, 

cryptic behavior and profile, and the 

fact that they often dive for up to an 

hour. Therefore, NMFS estimates that 1 

Baird’s, 19–37 Cuvier’s, and 7–13 

Mesoplodon beaked whales may incur 

some degree of TTS from exposure to 

MFAS/HFAS. 

As indicated in Table 12, some 

beaked whale vocalizations might 

overlap with the MFAS/HFAS TTS 

frequency range (2–20 kHz), which 

could potentially temporarily decrease 

an animal’s sensitivity to the calls of 

conspecifics or returning echolocation 

signals. However, as noted previously, 

NMFS does not anticipate TTS of a long 

duration or severe degree to occur as a 

result of exposure to MFA/HFAS. No 

beaked whales are predicted to be 

exposed to MFAS/HFAS sound levels 

associated with PTS or injury. 

Acoustic analysis also predicted that 

3 Cuvier’s and 1 Mesoplodon beaked 

whale would be exposed to sound or 

pressure from explosives at levels 

expected to result in TTS. For the same 

reasons listed above, NMFS anticipates 

that the Navy watchstanders would not 

likely always detect these species and 

implement the mitigation to avoid 

exposure. Additionally, the range to 

TTS for a few of the larger explosives is 

larger than the associated exclusion 

zones for BOMBEX, MISSILEX, or 

SINKEX (see Table 3), therefore NMFS 

anticipates that TTS might not be 

entirely avoided during those exercises. 

NMFS estimates that up to 1 TTS take 

of a Mesoplodon species and up to 3 

TTS takes of a Cuvier’s beaked whale 

would result from explosive 

detonations. Acoustic analysis predicts 

that no beaked whales will be exposed 

to explosive levels likely to result either 

in Level A harassment or mortality. 

No areas of specific importance for 

reproduction or feeding for beaked 

whales have been identified in the 

SOCAL Range Complex. The California/ 

Oregon/Washington stock of 

Mesoplodon whales has estimated 

population of 1,777 (Barlow and Forney, 

2007). The population size of the 

California/Oregon/Washington stock of 

Cuvier’s beaked whale is estimated at 

4,342 (Barlow and Forney, 2007). The 

population size of the California/ 

Oregon/Washington stock of Baird’s 

beaked whale is estimated at 1,005 

(Barlow and Forney, 2007). 

As discussed previously, scientific 

uncertainty exists regarding the 

potential contributing causes of beaked 

whale strandings and the exact 

behavioral or physiological mechanisms 

that can potentially lead to the ultimate 

physical effects (stranding and/or death) 

that have been documented in a few 

cases. Although NMFS does not expect 

injury or mortality of any of these seven 

species to occur as a result of the 

MFAS/HFAS training exercises (see 

Mortality paragraph above), there 

remains the potential for the operation 

of MFAS to contribute to the mortality 

of beaked whales. Consequently, NMFS 

intends to authorize mortality and we 

consider the 10 potential mortalities 

from across the seven species 

potentially effected over the course of 5 

years in our negligible impact 

determination (NMFS only intends to 

authorize a total of 10 beaked whale 

mortality takes, but since they could be 

of any of the species, we consider the 

effects of 10 mortalities of any of the 

seven species). 

Social Pelagic Species (killer whales, 

short-finned pilot whales, false killer 

whales, pygmy killer whales, and 

melon-headed whales) 

Acoustic analysis indicates that 7 

killer whales and 45 short-finned pilot 

whales will be exposed to MFAS/HFAS 

or explosive detonations at sound or 

pressure levels likely to result in Level 

B harassment. This estimate represents 

the total number of Level B takes and 

not necessarily the number of 

individuals taken, as a single individual 

may be taken multiple times over the 

course of a year. These Level B takes are 

anticipated to be in the form of 

behavioral disturbance as described in 

the Definition of Harassment: Level B 

harassment section. Acoustic analysis 

predicts that neither of these species 

will be exposed to levels of MFAS/ 

HFAS associated with PTS or injury. 

Although 1 and 6 (killer whale and 

pilot whale, respectively) of the 

modeled Level B Harassment takes were 

predicted to be in the form of TTS from 

MFAS/HFAS exposure, NMFS believes 

it is unlikely that any killer whales or 

short-finned pilot whales will incur TTS 

because of the distance within which 

they would have to approach the active 

sonar source (approximately 140 m for 

the most powerful source for TTS), the 

fact that many animals will likely avoid 

active sonar sources to some degree, and 

the likelihood that Navy monitors 

would detect these animals prior to an 

approach within this distance and 

implement active sonar powerdown or 

shutdown. Navy lookouts will likely 

detect a group of killer whales or shortfinned pilot whales given their large 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60897 

individual size and mean large group 

size (6.5 and 22.5, respectively). 

Acoustic analysis predicts that neither 

of these species will be exposed to 

levels of sound or pressure from 

explosives that would be expected to 

result in any form of take. No areas of 

specific importance for reproduction or 

feeding for beaked whales have been 

identified in the SOCAL Range 

Complex. 

The low density of killer whales in 

California consists primarily of 

individuals from the Offshore Eastern 

North Pacific stock and the Transient 

stock (as mentioned previously, 

individuals from the eastern north 

Pacific southern resident stock are not 

expected to be encountered in SOCAL). 

The combined population of these three 

stocks is estimated at 1,340 (Caretta et 

al., 2007). Population size of the 

California/Oregon/Washington stock of 

the short-finned pilot whale is estimated 

at 350 (Barlow and Forney 2007). 

Pygmy killer, false killer, and melonheaded whales are considered rare in 

the SOCAL Range Complex and no 

stocks have been designated for these 

species on the west coast of the U.S. 

NMFS and the Navy do not anticipate 

take of this species occurring, but NMFS 

is proposing to authorize 20 Level B 

Harassment takes for each of these 

species annually to ensure MMPA 

compliance should the Navy 

unexpectedly encounter an individual 

of this species while operating MFAS/ 

HFAS. 

Dolphins and Dall’s Porpoise 

The acoustic analysis predicts that the 

following numbers of Level B behavioral 

harassments of the associated species 

will occur: 1472 (bottlenose dolphins), 

4583 (long-beaked common dolphin), 

39404 (short-beaked common dolphin), 

1503 (northern right whale dolphin), 

1360 (Pacific white-sided dolphin), 

1830 (striped dolphin), 622 (Dall’s 

porpoise). This estimate represents the 

total number of exposures and not 

necessarily the number of individuals 

exposed, as a single individual may be 

exposed multiple times over the course 

of a year. 

Although a portion (191 (bottlenose 

dolphins), 432 (long-beaked common 

dolphin), 3727 (short-beaked common 

dolphin), 166 (northern right whale 

dolphin), 189 (Pacific white-sided 

dolphin), 249 (striped dolphin), 88 

(Dall’s porpoise)) of the modeled Level 

B Harassment takes for all of these 

species were predicted to be in the form 

of TTS, NMFS believes it is unlikely 

that all of the individuals estimated will 

incur TTS because of the distance 

within which they would have to 

approach the active sonar source 

(approximately 140 m for the most 

powerful source), the fact that many 

animals will likely avoid active sonar 

sources to some degree, and the 

likelihood that Navy monitors would 

detect these animals prior to an 

approach within this distance and 

implement active sonar powerdown or 

shutdown. Navy lookouts will likely 

detect a group of dolphins given their 

relatively short dives, gregarious 

behavior, and large average group size. 

However, the Navy’s proposed 

mitigation has a provision that allows 

the Navy to continue operation of MFAS 

if the animals are clearly bow-riding 

even after the Navy has initially 

maneuvered to try and avoid closing 

with the animals. Since these animals 

sometimes bow-ride and could 

potentially be exposed to levels 

associated with TTS as they approach or 

depart from bow-riding, we estimate 

that half or less of the number of 

animals modeled for MFAS/HFAS TTS 

would sustain TTS (see table 9). As 

mentioned above and indicated in Table 

12, some dolphin vocalizations might 

overlap with the MFAS/HFAS TTS 

frequency range (2–20 kHz), which 

could potentially temporarily decrease 

an animal’s sensitivity to the calls of 

conspecifics or returning echolocation 

signals. However, as noted previously, 

NMFS does not anticipate TTS of a long 

duration or severe degree to occur as a 

result of exposure to MFA/HFAS. 

The acoustic analysis also predicted 

that 1 long-beaked common dolphin, 6 

short-beaked common dolphins, and 1 

striped dolphin would be exposed to 

MFAS/HFAS sound levels that would 

result in Level A Harassment (PTS— 

injury). However, for the same reasons 

listed above for TTS (and because 

animals would need to approach within 

10 m of the sonar dome), NMFS does 

not believe that any animals will incur 

PTS or be otherwise injured by MFAS/ 

HFAS. Of note, the directionality of the 

sonar dome is such that dolphins would 

not likely be exposed to injurious levels 

of sound while bow-riding. 

Acoustic analysis also predicted that 

10 bottlenose dolphins, 41 long-beaked 

common dolphins, 354 short-beaked 

common dolphins, 12 northern right 

whale dolphins, 9 Pacific white-sided 

dolphins, 6 striped dolphins, and 2 

Dall’s porpoises would be exposed to 

sound or pressure from explosives at 

levels expected to result in TTS. For the 

same reasons listed above, NMFS 

anticipates that the Navy watchstanders 

would likely detect these species and 

implement the mitigation to avoid 

exposure. However, the range to TTS for 

a few of the larger explosives is larger 

than the associated exclusion zones for 

BOMBEX, MISSILEX, or SINKEX (see 

Table 3), and therefore NMFS 

anticipates that TTS might not be 

entirely avoided during those exercises, 

so NMFS estimates that up to half of the 

estimated explosive detonation TTS 

takes of dolphins might occur. 

Acoustic analysis also predicted that 

1 long-beaked dolphin, 1 Risso’s 

dolphin, and 12 short-beaked common 

dolphins might be exposed to sound or 

pressure from explosive detonations 

that would result in PTS or injury, and 

that 4 short-beaked common dolphins 

would be exposed to levels that would 

result in mortality. For the same reasons 

listed above (group size, dive and social 

behavior), NMFS anticipates that the 

Navy watchstanders would detect these 

species and implement the mitigation 

measures to avoid exposure. In the case 

of all explosive exercises, the exclusion 

zones are 2–12 times larger than the 

estimated distance at which an animal 

would be exposed to injurious sounds 

or pressure waves. Therefore, no takes 

by injury or death are anticipated or 

authorized. 

No areas of specific importance for 

reproduction or feeding for dolphins 

have been identified in the SOCAL 

Range Complex. Table 13 shows the 

estimated abundance of the affected 

stocks of dolphins and Dall’s porpoise. 

Pantropical spotted, rough-toothed, 

and spinner dolphins are considered 

rare in the SOCAL Range Complex and 

no stocks have been designated for these 

species on the west coast of the U.S. 

NMFS and the Navy do not anticipate 

take of this species occurring, but NMFS 

is proposing to authorize 20 Level B 

Harassment takes for each of these 

species annually to ensure MMPA 

compliance should the Navy 

unexpectedly encounter an individual 

of this species while operating MFAS/ 

HFAS. 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALS
60898 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

BILLING CODE 3510–22–C 

Pinnipeds (Guadalupe fur seal, 

Northern fur seal, California sea lion, 

Northern elephant seal, and Pacific 

harbor seal). 

The Navy’s acoustic analysis predicts 

that the following numbers of Level B 

behavioral harassments of the associated 

species will occur: 1064 (Guadalupe fur 

seal), 1229 (Northern fur seal), 55443 

(California sea lion), 955 (northern 

elephant seal), and 5625 (Pacific harbor 

seal). This estimate represents the total 

number of exposures and not 

necessarily the number of individuals 

exposed, as a single individual may be 

exposed multiple times over the course 

of a year. 

A portion (190 Guadalupe fur seal, 3 

Northern fur seal, 3 California sea lion, 

5 northern elephant seal, and 4559 

Pacific harbor seal) of the modeled 

Level B Harassment takes for all of these 

species were predicted to be in the form 

of TTS. For Guadalupe fur seals, 

Northern fur seals, and California sea 

lions, for which the TTS threshold is 

206 dB SEL, NMFS believes it is 

unlikely that any of these pinnipeds 

will incur TTS because of the distance 

within which they would have to 

approach the MFAS source 

(approximately 40 m for the most 

powerful source for), the fact that many 

animals will likely avoid active sonar 

sources to some degree, and the 

likelihood that Navy monitors would 

detect these pinnipeds (because of the 

relatively short duration of their dives 

and their tendency to rest near the 

surface) prior to an approach within this 

distance and implement active sonar 

powerdown or shutdown. Because 

elephant seals typically dive for longer 

periods (20–30 minutes) and only spend 

about 10 percent of their time at the 

surface, some animals will likely not be 

detected by Navy monitors and will 

likely incur TTS. Also of note though, 

elephant seals make extensive foraging 

migrations to the North Pacific and Gulf 

of Alaska outside of SOCAL returning 

two times a year California haul-out 

sites for breeding and molting. Northern 

elephant seals would not be exposed 

during the times they are foraging 

outside of SOCAL (Stewart and DeLong 

1995, Le Boeuf et al., 2000, Crocker et 

al., 2006, Bearzi et al., 2008). NMFS 

estimates that less than half of the 

estimated elephant seal TTS takes may 

occur (0–3). Though harbor seals have 

generally short dive times, they are 

smaller (harder to see) and the TTS 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.039</GPH>
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60899 

threshold for this species is 

substantively lower (183 dB SEL), 

which means that they can be exposed 

to levels expected to result in TTS at a 

substantially larger distance from the 

source (approximately 1650 m). 

Therefore, though some TTS takes will 

likely be avoided through mitigation 

implementation, NMFS estimates that 

more than half of the estimated TTS 

takes will still actually occur (2280– 

4559). As mentioned above and 

indicated in Table 12, some pinniped 

vocalizations might overlap with the 

MFAS/HFAS TTS frequency range 

(2–20 kHz), which could potentially 

temporarily decrease an animal’s 

sensitivity to the calls of conspecifics or 

returning echolocation signals. 

However, as noted previously, NMFS 

does not anticipate TTS of a long 

duration or severe degree to occur as a 

result of exposure to MFAS/HFAS. 

The acoustic analysis also predicted 

that 9 Pacific harbor seals animal would 

be exposed to MFAS/HFAS sound 

levels that would result in Level A 

Harassment (PTS—injury). However, 

because of the distance within which 

they would have to approach the MFAS 

source (approximately 50 m for the most 

powerful source for) and the fact that 

animals will likely avoid active sonar 

sources to some degree, NMFS does not 

believe that any animals will incur PTS 

or be otherwise injured by MFAS/ 

HFAS. 

Acoustic analysis also predicted that 

2 Guadalupe fur seals, 64 Northern fur 

seals, 510 California sea lions, 41 

northern elephant seals, and 26 Pacific 

harbor seals would be exposed to sound 

or pressure from explosives at levels 

expected to result in TTS. For the same 

reasons listed above, NMFS anticipates 

that the Navy watchstanders would 

likely detect the majority of the 

individual Guadalupe fur seals, 

northern fur seals, and California sea 

lions and implement the mitigation 

measures to avoid exposure. However, 

the range to TTS for a few of the larger 

explosives is larger than the associated 

exclusion zones for BOMBEX, 

MISSILEX, or SINKEX (see Table 3), 

therefore NMFS anticipates that TTS 

might not be entirely avoided during 

those exercises, so NMFS estimates that 

up to half of the TTS takes predicted by 

the acoustic analysis might actually be 

incurred (0–1 Guadalupe fur seals, 0–32 

northern fur seals, and 0–255 California 

sea lions). NMFS estimates that of all of 

the pinnipeds, fewer elephant seals and 

harbor seals would likely be detected, 

and therefore we estimate that a larger 

portion of predicted exposures of 

elephant seals and harbor seals might be 

in the form of TTS (20–41 elephant 

seals, 13–26 harbor seals). 

Acoustic analysis also predicted that 

20 pinnipeds might be exposed to levels 

of sound or pressure from explosives 

that would result in PTS or other injury 

and that 7 pinnipeds mortalities would 

result from explosive detonations. 

NMFS anticipates that the Navy 

watchstanders would likely detect these 

species and implement the mitigation 

measures to avoid exposure. In the case 

of all explosive exercises, the exclusion 

zones are 2–12 times larger than the 

estimated distance at which an animal 

would be exposed to injurious sounds 

or pressure waves. Therefore, no takes 

by injury or death are anticipated or 

authorized. Table 13 shows the 

estimated abundance of the affected 

stocks of dolphins and Dall’s porpoise. 

Preliminary Determination 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat and dependent upon 

the implementation of the mitigation 

and monitoring measures, NMFS 

preliminarily finds that the total taking 

from Navy training exercises utilizing 

MFAS/HFAS and underwater 

explosives in the SOCAL Range 

Complex will have a negligible impact 

on the affected species or stocks. NMFS 

has proposed regulations for these 

exercises that prescribe the means of 

affecting the least practicable adverse 

impact on marine mammals and their 

habitat and set forth requirements 

pertaining to the monitoring and 

reporting of that taking. 

Subsistence Harvest of Marine 

Mammals 

NMFS has preliminarily determined 

that the issuance of 5-year regulations 

and subsequent LOAs for Navy training 

exercises in the SOCAL Range Complex 

would not have an unmitigable adverse 

impact on the availability of the affected 

species or stocks for subsistence use, 

since there are no such uses in the 

specified area. 

ESA 

There are six marine mammal species 

and six sea turtle species that are listed 

as endangered under the ESA with 

confirmed or possible occurrence in the 

study area: humpback whale, sei whale, 

fin whale, blue whale, sperm whale, 

Guadalupe fur seal, loggerhead sea 

turtle, the green sea turtle, leatherback 

sea turtle, and the olive ridley sea turtle. 

The Navy has begun consultation with 

NMFS pursuant to section 7 of the ESA, 

and NMFS will also consult internally 

on the issuance of an LOA under section 

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

activities. Consultation will be 

concluded prior to a determination on 

the issuance of the final rule and an 

LOA. 

NEPA 

NMFS has participated as a 

cooperating agency on the Navy’s Draft 

Environmental Impact Statement (DEIS) 

for SOCAL, which was published on 

April 4, 2008. The Navy’s DEIS is 

posted on NMFS’ Web site: http:// 

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

incidental.htm. NMFS intends to adopt 

the Navy’s Final EIS (FEIS), if adequate 

and appropriate. Currently, we believe 

that the adoption of the Navy’s FEIS 

will allow NMFS to meet its 

responsibilities under NEPA for the 

issuance of an LOA for SOCAL. If the 

Navy’s FEIS is deemed not to be 

adequate, NMFS would supplement the 

existing analysis to ensure that we 

comply with NEPA prior to the issuance 

of the final rule or LOA. 

Classification 

This action does not contain any 

collection of information requirements 

for purposes of the Paperwork 

Reduction Act. 

The Office of Management and Budget 

has determined that this proposed rule 

is significant for purposes of Executive 

Order 12866. 

Pursuant to the Regulatory Flexibility 

Act, the Chief Counsel for Regulation of 

the Department of Commerce has 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that this rule, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The 

Regulatory Flexibility Act requires 

Federal agencies to prepare an analysis 

of a rule’s impact on small entities 

whenever the agency is required to 

publish a notice of proposed 

rulemaking. However, a Federal agency 

may certify, pursuant to 5 U.S.C. section 

605(b), that the action will not have a 

significant economic impact on a 

substantial number of small entities. 

The Navy is the sole entity that will be 

affected by this rulemaking, not a small 

governmental jurisdiction, small 

organization or small business, as 

defined by the Regulatory Flexibility 

Act (RFA). Any requirements imposed 

by a Letter of Authorization issued 

pursuant to these regulations, and any 

monitoring or reporting requirements 

imposed by these regulations, will be 

applicable only to the Navy. NMFS does 

not expect the issuance of these 

regulations or the associated LOAs to 

result in any impacts to small entities 


sroberts on PROD1PC70 with PROPOSALS
60900 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

pursuant to the RFA. Because this 

action, if adopted, would directly affect 

the Navy and not a small entity, NMFS 

concludes the action would not result in 

a significant economic impact on a 

substantial number of small entities. 

Dated: September 25, 2008. 

James Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 216 is proposed to be 

amended as follows: 

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

1. The authority citation for part 216 

continues to read as follows: 

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

2. Subpart X is added to part 216 to 

read as follows: 

Subpart X—Taking and Importing Marine 

Mammals; U.S. Navy’s Southern California 

Range Complex (SOCAL) 

Sec. 

216.270 Specified activity and specified 

geographical region. 

216.271 Definitions. 

216.272 Permissible methods of taking. 

216.273 Prohibitions. 

216.274 Mitigation. 

216.275 Requirements for monitoring and 

reporting. 

216.276 Applications for Letters of 

Authorization. 

216.277 Letters of Authorization. 

216.278 Renewal of Letters of Authorization 

and adaptive management. 

216.279 Modifications to Letters of 

Authorization. 

Table 1 to Subpart X—‘‘Summary of 

monitoring effort proposed in draft 

Monitoring Plan for SOCAL’’ 

Subpart X—Taking and Importing 

Marine Mammals; U.S. Navy’s 

Southern California Range Complex 

(SOCAL) 

§ 216.270 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 SOCAL Range Complex (as 

depicted in Figure ES–1 in the Navy’s 

Draft Environmental Impact Statement 

for SOCAL), which extends southwest 

from southern California in an 

approximately 700 by 200 nm rectangle 

with the seaward corners at 27°30′00′′ N. 

lat.; 127°10′04′′ W. long. and 24°00′01′′ 

N. lat.; 125°00′03′′ W. long. 

(c) The taking of marine mammals by 

the Navy is only authorized if it occurs 

incidental to the following activities 

within the designated amounts of use: 

(1) The use of the following midfrequency active sonar (MFAS) sources, 

high frequency active sonar (HFAS) 

sources for U.S. Navy anti-submarine 

warfare (ASW), mine warfare (MIW) 

training, maintenance, or research, 

development, testing, and evaluation 

(RDT&E) in the amounts indicated 

below (±10 percent): 

(i) AN/SQS–53 (hull-mounted active 

sonar)—up to 9,885 hours over the 

course of 5 years (an average of 1,977 

hours per year). 

(ii) AN/SQS–56 (hull-mounted active 

sonar)—up to 2,470 hours over the 

course of 5 years (an average of 494 

hours per year). 

(iii) AN/BQQ–10 (submarine active 

sonar)—up to 4,075 hours over the 

course of 5 years (an average of 815 

hours per year) (an average of 2 pings 

per hour during training events, 60 

pings per hour for maintenance). 

(iv) AN/AQS–22 or 13 (active 

helicopter dipping sonar)—up to 13,595 

dips over the course of 5 years (an 

average of 2,719 dips per year—10 pings 

per dip). 

(v) SSQ–62 (Directional Command 

Activated Sonobuoy System (DICASS) 

sonobuoys)—up to 21,275 sonobuoys 

over the course of 5 years (an average of 

4,255 sonobuoys per year). 

(vi) MK–48 (heavyweight 

torpedoes)—up to 435 torpedoes over 

the course of 5 years (an average of 87 

torpedoes per year). 

(vii) AN/BQQ–15 (submarine 

navigational sonar)—up to 610 hours 

over the course of 5 years (an average of 

122 hours per year). 

(viii) MK–46 (lightweight 

torpedoes)—up to 420 torpedoes over 

the course of 5 years (an average of 84 

torpedoes per year). 

(ix) AN/SLQ–25A NIXIE—up to 1,135 

hours over the course of 5 years (an 

average of 227 hours per year). 

(2) The detonation of the underwater 

explosives indicated in this paragraph 

(c)(2)(i) conducted as part of the training 

exercises indicated in this paragraph 

(c)(2)(ii): 

(i) Underwater Explosives: 

(A) 5′′; Naval Gunfire (9.5 lbs). 

(B) 76 mm rounds (1.6 lbs). 

(C) Maverick (78.5 lbs). 

(D) Harpoon (448 lbs). 

(E) MK–82 (238 lbs). 

(F) MK–83 (574 lbs). 

(G) MK–84 (945 lbs). 

(H) MK–48 (851 lbs). 

(I) Demolition Charges (20 lbs). 

(J) AN/SSQ–110A (IEER explosive 

sonobuoy—5 lbs). 

(ii) Training Events: 

(A) Surface-to-surface Gunnery 

Exercises (S–S GUNEX)—up to 2,010 

exercises over the course of 5 years (an 

average of 402 per year). 

(B) Air-to-surface Missile Exercises 

(A–S MISSILEX)—up to 250 exercises 

over the course of 5 years (an average of 

50 per year). 

(C) Bombing Exercises (BOMBEX)— 

up to 200 exercises over the course of 

5 years (an average of 40 per year). 

(D) Sinking Exercises (SINKEX)—up 

to 10 exercises over the course of 5 years 

(an average of 2 per year). 

(E) Extended Echo Ranging and 

Improved Extended Echo Ranging (EER/ 

IEER) Systems—up to 15 exercises over 

the course of 5 years (an average of 3 per 

year). 

§ 216.271 Definitions. 

(a) The following definitions are 

utilized in these regulations: 

(1) Uncommon Stranding Event 

(USE)—A stranding event that takes 

place during a major training exercise 

(MTE) and involves any one of the 

following: 

(i) Two or more individuals of any 

cetacean species (not including mother/ 

calf pairs, unless of species of concern 

listed in § 216.271(b)(1)(ii) found dead 

or live on shore within a two-day period 

and occurring within 30 miles of one 

another. 

(ii) A single individual or mother/calf 

pair of any of the following marine 

mammals of concern: Beaked whale of 

any species, dwarf or pygmy sperm 

whales, short-finned pilot whales, 

humpback whales, sperm whales, blue 

whales, fin whales, or sei whales. 

(iii) A group of 2 or more cetaceans 

of any species exhibiting indicators of 

distress as defined in § 216.271(b)(3). 

(2) Shutdown—The cessation of 

MFAS/HFAS operation or detonation of 

explosives within 14 nm of any live, in 

the water, animal involved in a USE. 

(3) Exhibiting Indicators of Distress— 

Animals exhibiting an uncommon 

combination of behavioral and 

physiological indicators typically 

associated with distressed or stranded 

animals. This situation would be 

identified by a qualified individual and 

typically includes, but is not limited to, 

some combination of the following 

characteristics: 

(i) Marine mammals continually 

circling or moving haphazardly in a 

tightly packed group—with or without a 

member occasionally breaking away and 

swimming towards the beach. 

(ii) Abnormal respirations including 

increased or decreased rate or volume of 

breathing, abnormal content or odor. 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60901 

(iii) Presence of an individual or 

group of a species that has not 

historically been seen in a particular 

habitat, for example a pelagic species in 

a shallow bay when historic records 

indicate that it is a rare event. 

(iv) Abnormal behavior for that 

species, such as abnormal surfacing or 

swimming pattern, listing, and 

abnormal appearance. 

(4) Major Training Exercise—MTEs, 

within the context of the SOCAL 

Stranding Plan, include: 

(i) Composite Training Unit Exercise 

(COMPTUEX)—3–4 events annually, 21 

days per entire event. 

(ii) Joint Task Force Exercise 

(JTFEX)—3–4 events annually, 10 days 

per entire event. 

(iii) Ship Anti-submarine warfare 

(ASW) Readiness and Evaluation 

Measuring (SHAREM)—1 event 

annually, less than a week long. 

(iv) Sustainment Exercise—2 events 

annually, shorter than COMPTUEX. 

(v) Integrated ASW Course (IAC2)—4 

events annually, 2 12-hour exercises 

over 2 days. 

(b) [Reserved] 

§ 216.272 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 and 

216.277, the Holder of the Letter of 

Authorization (hereinafter ‘‘Navy’’) may 

incidentally, but not intentionally, take 

marine mammals within the area 

described in § 216.270(b), provided the 

activity is in compliance with all terms, 

conditions, and requirements of these 

regulations and the appropriate Letter of 

Authorization. 

(b) The activities identified in 

§ 216.270(c) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, any adverse impacts 

on marine mammals and their habitat. 

(c) The incidental take of marine 

mammals under the activities identified 

in § 216.270(c) is limited to the 

following species, by the indicated 

method of take and the indicated 

number of times (estimated based on the 

authorized amounts of sound source 

operation): 

(1) Level B Harassment (+/¥10 

percent of the take estimate indicated 

below): 

(i) Mysticetes: 

(A) Humpback whale (Megaptera 

novaeangliae)—15. 

(B) Fin whale (Balaenoptera 

physalus)—167. 

(C) Blue whale (Balaenoptera 

musculus)—609. 

(D) Minke whale (Balaenoptera 

acutorostrata)—126. 

(E) Gray whale (Eschrichtius 

robustus)—5460. 

(ii) Odontocetes: 

(A) Sperm whales (Physeter 

macrocephalus)—148. 

(B) Pygmy sperm whales (Kogia 

breviceps)—159. 

(C) Dwarf sperm whale (Kogia sima)— 

20. 

(D) Mesoplodont beaked whales 

(Blainville’s, Hubb’s, Perrin’s, pygmy, 

and ginkgo-toothed) (Mesoplodon 

densirostris, M. carlhubbsi, M. perrini, 

M. peruvianus, M. ginkgodens)—131. 

(E) Cuvier’s beaked whales (Ziphius 

cavirostris)—428. 

(F) Baird’s beaked whales (Berardius 

bairdii)—13. 

(G) Unidentified beaked whales—97. 

(H) Rough-toothed dolphin (Steno 

bredanensis)—20. 

(I) Bottlenose dolphin (Tursiops 

truncatus)—1,509. 

(J) Pan-tropical spotted dolphin 

(Stenella attenuata)—20. 

(K) Spinner dolphin (Stenella 

longirostris)—20. 

(L) Striped dolphin (Stenella 

coeruleoalba)—1,830. 

(M) Long-beaked common dolphin 

(Delphinus capensis)—4,622. 

(N) Risso’s dolphin (Grampus 

griseus)—3,592. 

(O) Northern right whale dolphin 

(Lissodelphis borealis)—1,540. 

(P) Pacific white-sided dolphin 

(Lagenorhynchus obliquidens)—1,397. 

(Q) Short-beaked common dolphin 

(Delphinus delphis)—39,441. 

(R) Melon-headed whale 

(Peponocephala electra)—20. 

(S) Pygmy killer whale (Feresa 

attenuata)—20. 

(T) False killer whale (Pseudorca 

crassidens)—20. 

(U) Killer whale (Orcinus orca)—7. 

(V) Short-finned pilot whale 

(Globicephala macrorynchus)—45. 

(W) Dall’s porpoise (Phocoenoides 

dalli)—622. 

(ii) Pinnipeds: 

(A) Northern elephant seal (Mirounga 

angustirostris)—955. 

(B) Pacific harbor seal (Phoca 

vitulina)—5,672. 

(C) California sea lion (Zalophus 

californianus)—55,502. 

(D) Northern fur seal (Callorhinus 

ursinus)—1,229. 

(E) Guadelupe fur seal (Arctocephalus 

townsendi)—1,064. 

(2) Level A Harassment and/or 

mortality of no more than 10 beaked 

whales (total), of any of the species 

listed in § 216.272(c)(1)(ii)(D–F) over the 

course of the 5-year regulations. 

§ 216.273 Prohibitions. 

No person in connection with the 

activities described in § 216.270 may: 

(a) Take any marine mammal not 

specified in § 216.272(c); 

(b) Take any marine mammal 

specified in § 216.272(c) other than by 

incidental take as specified in 

§ 216.272(c)(1) and (c)(2); 

(c) Take a marine mammal specified 

in § 216.272(c) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 

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

terms, conditions, and requirements of 

these regulations or a Letter of 

Authorization issued under §§ 216.106 

and 216.277. 

§ 216.274 Mitigation. 

(a) The activities identified in 

§ 216.270(c) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitats. 

(b) When conducting training, 

maintenance, or RDT&E activities and 

utilizing the sound sources or 

explosives identified in § 216.270(c), the 

mitigation measures contained in the 

Letter of Authorization issued under 

§§ 216.106 and 216.277 must be 

implemented. These mitigation 

measures include, but are not limited to: 

(1) Navy’s General Maritime Measures 

for All Training at Sea: 

(i) Personnel Training (for all Training 

Types): 

(A) All commanding officers (COs), 

executive officers (XOs), lookouts, 

Officers of the Deck (OODs), junior 

OODs (JOODs), maritime patrol aircraft 

aircrews, and Anti-submarine Warfare 

(ASW)/Mine Warfare (MIW) helicopter 

crews shall complete the NMFSapproved Marine Species Awareness 

Training (MSAT) by viewing the U.S. 

Navy MSAT digital versatile disk (DVD). 

All bridge lookouts shall complete both 

parts one and two of the MSAT; part 

two is optional for other personnel. 

(B) Navy lookouts shall undertake 

extensive training in order to qualify as 

a watchstander in accordance with the 

Lookout Training Handbook (Naval 

Education and Training Command 

[NAVEDTRA] 12968–D). 

(C) Lookout training shall include onthe-job instruction under the 

supervision of a qualified, experienced 

lookout. Following successful 

completion of this supervised training 

period, lookouts shall complete the 

Personal Qualification Standard 

Program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). Personnel being 

trained as lookouts can be counted 

among required lookouts as long as 

supervisors monitor their progress and 

performance. 


sroberts on PROD1PC70 with PROPOSALS
60902 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

(D) Lookouts shall be trained in the 

most effective means to ensure quick 

and effective communication within the 

command structure in order to facilitate 

implementation of protective measures 

if marine species are spotted. 

(ii) Operating Procedures and 

Collision Avoidance: 

(A) Prior to major exercises, a Letter 

of Instruction, Mitigation Measures 

Message or Environmental Annex to the 

Operational Order shall be issued to 

further disseminate the personnel 

training requirement and general marine 

species protective measures. 

(B) COs shall make use of marine 

species detection cues and information 

to limit interaction with marine species 

to the maximum extent possible 

consistent with safety of the ship. 

(C) While underway, surface vessels 

shall have at least two lookouts with 

binoculars; surfaced submarines shall 

have at least one lookout with 

binoculars. Lookouts already posted for 

safety of navigation and man-overboard 

precautions may be used to fill this 

requirement. As part of their regular 

duties, lookouts will watch for and 

report to the OOD the presence of 

marine mammals. 

(D) On surface vessels equipped with 

a multi-function active sensor, pedestal 

mounted ‘‘Big Eye’’ (20x10) binoculars 

shall be properly installed and in good 

working order to assist in the detection 

of marine mammals in the vicinity of 

the vessel. 

(E) Personnel on lookout shall employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(F) After sunset and prior to sunrise, 

lookouts shall employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook. 

(NAVEDTRA 12968–D). 

(G) While in transit, naval vessels 

shall be alert at all times, use extreme 

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

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. 

(H) When marine mammals have been 

sighted in the area, Navy vessels shall 

increase vigilance and take reasonable 

and practicable actions to avoid 

collisions and activities that might 

result in close interaction of naval assets 

and marine mammals. Actions may 

include changing speed and/or direction 

and are dictated by environmental and 

other conditions (e.g., safety, weather). 

(I) Floating weeds and kelp, algal 

mats, clusters of seabirds, and jellyfish 

are good indicators of marine mammals. 

Therefore, where these circumstances 

are present, the Navy shall exercise 

increased vigilance in watching for 

marine mammals. 

(J) Navy aircraft participating in 

exercises at sea shal conduct and 

maintain, when operationally feasible 

and safe, surveillance for marine 

mammals as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties. Marine mammal detections shall 

be immediately reported to assigned 

Aircraft Control Unit for further 

dissemination to ships in the vicinity of 

the marine species as appropriate when 

it is reasonable to conclude that the 

course of the ship will likely result in 

a closing of the distance to the detected 

marine mammal. 

(K) All vessels shall maintain logs and 

records documenting training 

operations should they be required for 

event reconstruction purposes. Logs and 

records will be kept for a period of 30 

days following completion of a major 

training exercise. 

(2) Navy’s Measures for MFAS 

Operations. 

(i) Personnel Training (for MFAS 

Operations): 

(A) All lookouts onboard platforms 

involved in ASW training events shall 

review the NMFS-approved Marine 

Species Awareness Training material 

prior to use of mid-frequency active 

sonar. 

(B) All COs, XOs, and officers 

standing watch on the bridge shall have 

reviewed the Marine Species Awareness 

Training material prior to a training 

event employing the use of midfrequency active sonar. 

(C) Navy lookouts shall undertake 

extensive training in order to qualify as 

a watchstander in accordance with the 

Lookout Training Handbook (Naval 

Educational Training [NAVEDTRA], 

12968–D). 

(D) Lookout training shall include onthe-job instruction under the 

supervision of a qualified, experienced 

watchstander. Following successful 

completion of this supervised training 

period, lookouts shall complete the 

Personal Qualification Standard 

program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). This does not forbid 

personnel being trained as lookouts 

from being counted as those listed in 

previous measures so long as 

supervisors monitor their progress and 

performance. 

(E) Lookouts 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) Lookout and Watchstander 

Responsibilities: 

(A) On the bridge of surface ships, 

there shall always be at least three 

people on watch whose duties include 

observing the water surface around the 

vessel. 

(B) All surface ships participating in 

ASW training events shall, in addition 

to the three personnel on watch noted 

previously, have at all times during the 

exercise at least two additional 

personnel on watch as marine mammal 

lookouts. 

(C) Personnel on lookout and officers 

on watch on the bridge shall have at 

least one set of binoculars available for 

each person to aid in the detection of 

marine mammals. 

(D) On surface vessels equipped with 

mid-frequency active sonar, pedestal 

mounted ‘‘Big Eye’’ (20x110) binoculars 

shall be present and in good working 

order to assist in the detection of marine 

mammals in the vicinity of the vessel. 

(E) Personnel on lookout shall employ 

visual search procedures employing a 

scanning methodology in accordance 

with the Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(F) After sunset and prior to sunrise, 

lookouts shall employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook. 

(G) Personnel on lookout shall be 

responsible for reporting all objects or 

anomalies sighted in the water 

(regardless of the distance from the 

vessel) to the Officer of the Deck, since 

any object or disturbance (e.g., trash, 

periscope, surface disturbance, 

discoloration) in the water may be 

indicative of a threat to the vessel and 

its crew or indicative of a marine 

species that may need to be avoided as 

warranted. 

(iii) Operating Procedures: 

(A) A Letter of Instruction, Mitigation 

Measures Message, or Environmental 

Annex to the Operational Order shall be 

issued prior to the exercise to further 

disseminate the personnel training 

requirement and general marine 

mammal mitigation measures. 

(B) COs shall make use of marine 

species detection cues and information 

to limit interaction with marine species 

to the maximum extent possible 

consistent with safety of the ship. 

(C) All personnel engaged in passive 

acoustic sonar operation (including 

aircraft, surface ships, or submarines) 

shall monitor for marine mammal 

vocalizations and report the detection of 

any marine mammal to the appropriate 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60903 

watch station for dissemination and 

appropriate action. 

(D) During mid-frequency active sonar 

operations, personnel shall utilize all 

available sensor and optical systems 

(such as night vision goggles) to aid in 

the detection of marine mammals. 

(E) Navy aircraft participating in 

exercises at sea shall conduct and 

maintain, when operationally feasible 

and safe, surveillance for marine species 

of concern as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties. 

(F) Aircraft with deployed sonobuoys 

shall use only the passive capability of 

sonobuoys when marine mammals are 

detected within 200 yds (183 m) of the 

sonobuoy. 

(G) Marine mammal detections shall 

be immediately reported to assigned 

Aircraft Control Unit for further 

dissemination to ships in the vicinity of 

the marine species as appropriate where 

it is reasonable to conclude that the 

course of the ship will likely result in 

a closing of the distance to the detected 

marine mammal. 

(H) Safety Zones—When marine 

mammals are detected by any means 

(aircraft, shipboard lookout, or 

acoustically) within or closing to inside 

1,000 yds (914 m) of the sonar dome 

(the bow), the ship or submarine shall 

limit active transmission levels to at 

least 6 decibels (dB) below normal 

operating levels. 

(1) Ships and submarines shall 

continue to limit maximum 

transmission levels by this 6-dB factor 

until the animal has been seen to leave 

the area, has not been detected for 30 

minutes, or the vessel has transited 

more than 2,000 yds (1829 m) beyond 

the location of the last detection. 

(2) Should a marine mammal be 

detected within or closing to inside 500 

yds (457 m) of the sonar dome, active 

sonar transmissions shall be limited to 

at least 10-dB below the equipment’s 

normal operating level. Ships and 

submarines shall continue to limit 

maximum ping levels by this 10-dB 

factor until the animal has been seen to 

leave the area, has not been detected for 

30 minutes, or the vessel has transited 

more than 2,000 yds (1829 m) beyond 

the location of the last detection. 

(3) Should the marine mammal be 

detected within or closing to inside 200 

yds (183 m) of the sonar dome, active 

sonar transmissions shall cease. Sonar 

shall not resume until the animal has 

been seen to leave the area, has not been 

detected for 30 minutes, or the vessel 

has transited more than 2,000 yds (1829 

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 OOD concludes that 

dolphins or porpoises are deliberately 

closing to ride the vessel’s bow wave, no 

further mitigation actions are necessary 

while the dolphins or porpoises 

continue to exhibit bow wave riding 

behavior. 

(5) If the need for power-down should 

arise as detailed in ‘‘Safety Zones’’ 

above, the 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 dB active sonar 

was being operated). 

(I) Prior to startup or restart of active 

sonar, operators will check that the 

Safety Zone radius around the sound 

source is clear of marine mammals. 

(J) Active sonar levels (generally)— 

Navy shall operate active sonar at the 

lowest practicable level, not to exceed 

235 dB, except as required to meet 

tactical training objectives. 

(K) Helicopters shall observe/survey 

the vicinity of an ASW training event 

for 10 minutes before the first 

deployment of active (dipping) sonar in 

the water. 

(L) Helicopters shall not dip their 

active sonar within 200 yds (183 m) of 

a marine mammal and shall cease 

pinging if a marine mammal closes 

within 200 yds (183 m) after pinging has 

begun. 

(M) Submarine sonar operators shall 

review detection indicators of closeaboard marine mammals prior to the 

commencement of ASW training events 

involving active mid-frequency sonar. 

(3) Navy’s Measures for Underwater 

Detonations 

(i) Surface-to-Surface Gunnery (5- 

inch, 76 mm, 57 mm, 20 mm, 25 mm 

and 30 mm explosive rounds) 

(A) Lookouts shall visually survey for 

floating weeds and kelp. Intended 

impact shall not be within 600 yds (585 

m) of known or observed floating weeds 

and kelp, and algal mats. 

(B) For exercises using targets towed 

by a vessel or aircraft, target-towing 

vessels/aircraft shall maintain a trained 

lookout for marine mammals. If a 

marine mammal is sighted in the 

vicinity, the tow aircraft/vessel shall 

immediately notify the firing vessel, 

which shall suspend the exercise until 

the area is clear. 

(C) A 600-yard radius buffer zone 

shall be established around the intended 

target. 

(D) From the intended firing position, 

trained lookouts shall survey the buffer 

zone for marine mammals prior to 

commencement and during the exercise 

as long as practicable. 

(E) The exercise shall be conducted 

only when the buffer zone is visible and 

marine mammals are not detected 

within it. 

(ii) Surface-to-Surface Gunnery (nonexplosive rounds) 

(A) Lookouts shall visually survey for 

floating weeds and kelp, and algal mats. 

Intended impact will not be within 200 

yds (183 m) of known or observed 

floating weeds and kelp, and algal mats. 

(B) A 200-yd (183 m) radius buffer 

zone shall be established around the 

intended target. 

(C) From the intended firing position, 

trained lookouts shall survey the buffer 

zone for marine mammals prior to 

commencement and during the exercise 

as long as practicable. 

(D) If applicable, target towing vessels 

shall maintain a lookout. If a marine 

mammal is sighted in the vicinity of the 

exercise, the tow vessel shall 

immediately notify the firing vessel in 

order to secure gunnery firing until the 

area is clear. 

(E) The exercise shall be conducted 

only when the buffer zone is visible and 

marine mammals are not detected 

within the target area and the buffer 

zone. 

(iii) Surface-to-Air Gunnery 

(explosive and non-explosive rounds) 

(A) Vessels shall orient the geometry 

of gunnery exercises in order to prevent 

debris from falling in the area of sighted 

marine mammals. 

(B) Vessels will expedite the recovery 

of any parachute deploying aerial targets 

to reduce the potential for entanglement 

of marine mammals. 

(C) Target towing aircraft shall 

maintain a lookout. If a marine mammal 

is sighted in the vicinity of the exercise, 

the tow aircraft shall immediately notify 

the firing vessel in order to secure 

gunnery firing until the area is clear. 

(iv) Air-to-Surface Gunnery (explosive 

and non-explosive rounds) 

(A) If surface vessels are involved, 

lookouts will visually survey for floating 

kelp in the target area. Impact shall not 

occur within 200 yds (183 m) of known 

or observed floating weeds and kelp or 

algal mats. 

(B) A 200 yd (183 m) radius buffer 

zone shall be established around the 

intended target. 

(C) If surface vessels are involved, 

lookout(s) shall visually survey the 

buffer zone for marine mammals prior to 

and during the exercise. 

(D) Aerial surveillance of the buffer 

zone for marine mammals shall be 

conducted prior to commencement of 

the exercise. Aerial surveillance altitude 


sroberts on PROD1PC70 with PROPOSALS
60904 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

of 500 feet to 1,500 feet (ft) (152—456 

m) is optimum. Aircraft crew/pilot shall 

maintain visual watch during exercises. 

Release of ordnance through cloud 

cover is prohibited: Aircraft must be 

able to actually see ordnance impact 

areas. 

(E) The exercise shall be conducted 

only if marine mammals and are not 

visible within the buffer zone. 

(v) Small Arms Training (grenades, 

explosive and non-explosive rounds)— 

Lookouts will visually survey for 

floating weeds or kelp, algal mats, and 

marine mammals. Weapons shall not be 

fired in the direction of known or 

observed floating weeds or kelp, algal 

mats, or marine mammals. 

(vi) Air-to-Surface At-sea Bombing 

Exercises (explosive and non-explosive): 

(A) If surface vessels are involved, 

trained lookouts shall survey for floating 

kelp and marine mammals. Ordnance 

shall not be targeted to impact within 

1,000 yds (914 m) of known or observed 

floating kelp or marine mammals. 

(B) A 1,000 yd (914 m) radius buffer 

zone shall be established around the 

intended target. 

(C) Aircraft shall visually survey the 

target and buffer zone for marine 

mammals prior to and during the 

exercise. The survey of the impact area 

shall be made by flying at 1,500 ft (152 

m) or lower, if safe to do so, and at the 

slowest safe speed. Release of ordnance 

through cloud cover is prohibited: 

Aircraft must be able to actually see 

ordnance impact areas. Survey aircraft 

should employ most effective search 

tactics and capabilities. 

(D) The exercise will be conducted 

only if marine mammals are not visible 

within the buffer zone. 

(vii) Air-to-Surface Missile Exercises 

(explosive and non-explosive): 

(A) Ordnance shall not be targeted to 

impact within 1,800 yds (1646 m) of 

known or observed floating kelp. 

(B) Aircraft shall visually survey the 

target area for marine mammals. Visual 

inspection of the target area shall be 

made by flying at 1,500 (457 m) feet or 

lower, if safe to do so, and at slowest 

safe speed. Firing or range clearance 

aircraft must be able to actually see 

ordnance impact areas. Explosive 

ordnance shall not be targeted to impact 

within 1,800 yds (1646 m) of sighted 

marine mammals. 

(viii) Demolitions, Mine Warfare, and 

Mine Countermeasures (up to a 20-lb 

charge): 

(A) Exclusion Zones—All Mine 

Warfare and Mine Countermeasures 

Operations involving the use of 

explosive charges must include 

exclusion zones for marine mammals to 

prevent physical and/or acoustic effects 

to those species. These exclusion zones 

shall extend in a 700-yard arc radius 

around the detonation site. 

(B) Pre-Exercise Surveys—For 

Demolition and Ship Mine 

Countermeasures Operations, preexercise survey shall be conducted 

within 30 minutes prior to the 

commencement of the scheduled 

explosive event. The survey may be 

conducted from the surface, by divers, 

and/or from the air, and personnel shall 

be alert to the presence of any marine 

mammal. Should such an animal be 

present within the survey area, the 

exercise shall be paused until the 

animal voluntarily leaves the area. The 

Navy shall suspend detonation exercises 

and ensure the area is clear for a full 30 

minutes prior to detonation. Personnel 

shall record any marine mammal 

observations during the exercise. 

(C) Post-Exercise Surveys—Surveys 

within the same radius shall also be 

conducted within 30 minutes after the 

completion of the explosive event. 

(D) Reporting—If there is evidence 

that a marine mammal may have been 

stranded, injured or killed by the action, 

Navy training activities shall be 

immediately suspended and the 

situation immediately reported by the 

participating unit to the Officer in 

Charge of the Exercise (OCE), who will 

follow Navy procedures for reporting 

the incident to Commander, Pacific 

Fleet, Commander, Navy Region 

Southwest, Environmental Director, and 

the chain-of-command. The situation 

shall also be reported to NMFS (see 

Stranding Plan for details). 

(ix) Mining Operations—initial target 

points shall be briefly surveyed prior to 

inert ordnance (no live ordnance used) 

release from an aircraft to ensure the 

intended drop area is clear of marine 

mammals. To the extent feasible, the 

Navy shall retrieve inert mine shapes 

dropped during Mining Operations. 

(x) Sink Exercise: 

(A) All weapons firing shall be 

conducted during the period 1 hour 

after official sunrise to 30 minutes 

before official sunset. 

(B) Prior to conducting the exercise, 

remotely sensed sea surface temperature 

maps shall be reviewed. SINKEX shall 

not be conducted within areas where 

strong temperature discontinuities are 

present, thereby indicating the existence 

of oceanographic fronts. These areas 

shall be avoided because concentrations 

of some listed species, or their prey, are 

known to be associated with these 

oceanographic features. 

(C) An exclusion zone with a radius 

of 1.0 nm shall be established around 

each target. An additional buffer of 0.5 

nm shall be added to account for errors, 

target drift, and animal movements. 

Additionally, a safety zone, which 

extends from the exclusion zone at 1.0 

nm out an additional 0.5 nm, shall be 

surveyed. Together, the zones extend 

out 2 nm from the target. 

(D) A series of surveillance overflights shall be conducted within the 

exclusion and the safety zones, prior to 

and during the exercise, when feasible. 

Survey protocol shall be as follows: 

(1) Overflights within the exclusion 

zone shall be conducted in a manner 

that optimizes the surface area of the 

water observed. This may be 

accomplished through the use of the 

Navy’s Search and Rescue Tactical Aid, 

which provides the best search altitude, 

ground speed, and track spacing for the 

discovery of small, possibly dark objects 

in the water based on the environmental 

conditions of the day. These 

environmental conditions include the 

angle of sun inclination, amount of 

daylight, cloud cover, visibility, and sea 

state. 

(2) All visual surveillance activities 

shall be conducted by Navy personnel 

trained in visual surveillance. At least 

one member of the mitigation team 

would have completed the Navy’s 

marine mammal training program for 

lookouts. 

(3) In addition to the overflights, the 

exclusion zone shall be monitored by 

passive acoustic means, when assets are 

available. This passive acoustic 

monitoring would be maintained 

throughout the exercise. Potential assets 

include sonobuoys, which can be 

utilized to detect any vocalizing marine 

mammals (particularly sperm whales) in 

the vicinity of the exercise. The 

sonobuoys shall be re-seeded as 

necessary throughout the exercise. 

Additionally, passive sonar onboard 

submarines may be utilized to detect 

any vocalizing marine mammals in the 

area. The OCE would be informed of 

any aural detection of marine mammals 

and would include this information in 

the determination of when it is safe to 

commence the exercise. 

(4) On each day of the exercise, aerial 

surveillance of the exclusion and safety 

zones shall commence 2 hours prior to 

the first firing. 

(5) The results of all visual, aerial, and 

acoustic searches shall be reported 

immediately to the OCE. No weapons 

launches or firing may commence until 

the OCE declares the safety and 

exclusion zones free of marine 

mammals. 

(6) If a protected species observed 

within the exclusion zone is diving, 

firing shall be delayed until the animal 

is re-sighted outside the exclusion zone, 

or 30 minutes have elapsed. After 30 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60905 

minutes, if the animal has not been resighted it would be assumed to have left 

the exclusion zone. 

(7) During breaks in the exercise of 30 

minutes or more, the exclusion zone 

shall again be surveyed for any 

protected species. If marine mammals 

are sighted within the exclusion zone, 

the OCE shall be notified, and the 

procedure described above would be 

followed. 

(8) Upon sinking of the vessel, a final 

surveillance of the exclusion zone shall 

be monitored for 2 hours, or until 

sunset, to verify that no marine 

mammals were harmed. 

(E) Aerial surveillance shall be 

conducted using helicopters or other 

aircraft based on necessity and 

availability. The Navy has several types 

of aircraft capable of performing this 

task; however, not all types are available 

for every exercise. For each exercise, the 

available asset best suited for 

identifying objects on and near the 

surface of the ocean would be used. 

These aircraft would be capable of 

flying at the slow safe speeds necessary 

to enable viewing of marine vertebrates 

with unobstructed, or minimally 

obstructed, downward and outward 

visibility. The exclusion and safety zone 

surveys may be cancelled in the event 

that a mechanical problem, emergency 

search and rescue, or other similar and 

unexpected event preempts the use of 

one of the aircraft onsite for the 

exercise. 

(F) Every attempt would be made to 

conduct the exercise in sea states that 

are ideal for marine mammal sighting, 

Beaufort Sea State 3 or less. In the event 

of a 4 or above, survey efforts shall be 

increased within the zones. This shall 

be accomplished through the use of an 

additional aircraft, if available, and 

conducting tight search patterns. 

(G) The exercise shall not be 

conducted unless the exclusion zone 

could be adequately monitored visually. 

(H) In the event that any marine 

mammals are observed to be harmed in 

the area, a detailed description of the 

animal shall be taken, the location 

noted, and if possible, photos taken. 

This information shall be provided to 

NMFS via the Navy’s regional 

environmental coordinator for purposes 

of identification (see the Stranding Plan 

for detail). 

(I) An after action report detailing the 

exercise’s time line, the time the surveys 

commenced and terminated, amount, 

and types of all ordnance expended, and 

the results of survey efforts for each 

event shall be submitted to NMFS. 

(xi) Extended Echo Ranging/Improved 

Extended Echo Ranging (EER/IEER): 

(A) Crews shall conduct visual 

reconnaissance of the drop area prior to 

laying their intended sonobuoy pattern. 

This search shall be conducted at an 

altitude below 457 m (500 yd) at a slow 

speed, if operationally feasible and 

weather conditions permit. In dual 

aircraft operations, crews are allowed to 

conduct coordinated area clearances. 

(B) Crews shall conduct a minimum 

of 30 minutes of visual and aural 

monitoring of the search area prior to 

commanding the first post detonation. 

This 30-minute observation period may 

include pattern deployment time. 

(C) For any part of the briefed pattern 

where a post (source/receiver sonobuoy 

pair) will be deployed within 914 m 

(1,000 yd) of observed marine mammal 

activity, the Navy shall deploy the 

receiver ONLY and monitor while 

conducting a visual search. When 

marine mammals are no longer detected 

within 914 m (1,000 yd) of the intended 

post position, the Navy shall co-locate 

the explosive source sonobuoy (AN/ 

SSQ–110A) (source) with the receiver. 

(D) When able, Navy crews shall 

conduct continuous visual and aural 

monitoring of marine mammal activity. 

This is to include monitoring of ownaircraft sensors from first sensor 

placement to checking off station and 

out of RF range of these sensors. 

(E) Aural Detection—If the presence 

of marine mammals is detected aurally, 

then that shall cue the Navy aircrew to 

increase the diligence of their visual 

surveillance. Subsequently, if no marine 

mammals are visually detected, then the 

crew may continue multi-static active 

search. 

(F) Visual Detection—If marine 

mammals are visually detected within 

914 m (1,000 yd) of the explosive source 

sonobuoy (AN/SSQ–110A) intended for 

use, then that payload shall not be 

detonated. Aircrews may utilize this 

post once the marine mammals have not 

been re-sighted for 30 minutes, or are 

observed to have moved outside the 914 

m (1,000 yd) safety buffer. Aircrews may 

shift their multi-static active search to 

another post, where marine mammals 

are outside the 914 m (1,000 yd) safety 

buffer. 

(G) Aircrews shall make every attempt 

to manually detonate the unexploded 

charges at each post in the pattern prior 

to departing the operations area by 

using the ‘‘Payload 1 Release’’ command 

followed by the ‘‘Payload 2 Release’’ 

command. Aircrews shall refrain from 

using the ‘‘Scuttle’’ command when two 

payloads remain at a given post. 

Aircrews will ensure that a 914 m (1,000 

yd) safety buffer, visually clear of 

marine mammals, is maintained around 

each post as is done during active 

search operations. 

(H) Aircrews shall only leave posts 

with unexploded charges in the event of 

a sonobuoy malfunction, an aircraft 

system malfunction, or when an aircraft 

must immediately depart the area due to 

issues such as fuel constraints, 

inclement weather, and in-flight 

emergencies. In these cases, the 

sonobuoy will self-scuttle using the 

secondary or tertiary method. 

(I) The Navy shall ensure all payloads 

are accounted for. Explosive source 

sonobuoys (AN/SSQ–110A) that can not 

be scuttled shall be reported as 

unexploded ordnance via voice 

communications while airborne, then 

upon landing via naval message. 

(J) Mammal monitoring shall continue 

until out of own-aircraft sensor range. 

(4) The Navy shall abide by the letter 

of the ‘‘Stranding Response Plan for 

Major Navy Training Exercises in the 

SOCAL Range Complex’’ (available at: 

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

incidental.htm), to include the 

following measures: 

(i) Shutdown Procedures—When an 

Uncommon Stranding Event (USE— 

defined in § 216.271) occurs during a 

Major Training Exercise (MTE) (as 

defined in the Stranding Plan, meaning 

including Sustainment, SHAREM, IAC2, 

JTFEX, or COMPTUEX) in the SOCAL 

Range Complex, the Navy shall 

implement the procedures described 

below. 

(A) The Navy shall implement a 

Shutdown (as defined § 216.271) when 

advised by a NMFS Office of Protected 

Resources Headquarters Senior Official 

designated in the SOCAL Stranding 

Communication Protocol that a USE 

involving live animals has been 

identified and that at least one live 

animal is located in the water. NMFS 

and the Navy shall communicate, as 

needed, regarding the identification of 

the USE and the potential need to 

implement shutdown procedures. 

(B) Any shutdown in a given area 

shall remain in effect in that area until 

NMFS advises the Navy that the 

subject(s) of the USE at that area die or 

are euthanized, or that all live animals 

involved in the USE at that area have 

left the area (either of their own volition 

or herded). 

(C) If the Navy finds an injured or 

dead marine mammal floating at sea 

during an MTE, the Navy shall notify 

NMFS immediately or as soon as 

operational security considerations 

allow. The Navy shall provide NMFS 

with species or description of the 

animal (s), the condition of the animal 

(s) including carcass condition if the 

animal(s) is/are dead), location, time of 


sroberts on PROD1PC70 with PROPOSALS
60906 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

first discovery, observed behaviors (if 

alive), and photo or video (if available). 

Based on the information provided, 

NMFS shall determine if, and advise the 

Navy whether a modified shutdown is 

appropriate on a case-by-case basis. 

(D) In the event, following a USE, 

that: (a) qualified individuals are 

attempting to herd animals back out to 

the open ocean and animals are not 

willing to leave, or (b) animals are seen 

repeatedly heading for the open ocean 

but turning back to shore, NMFS and 

the Navy shall coordinate (including an 

investigation of other potential 

anthropogenic stressors in the area) to 

determine if the proximity of MFAS/ 

HFAS training activities or explosive 

detonations, though farther than 14 nm 

from the distressed animal(s), is likely 

decreasing the likelihood that the 

animals return to the open water. If so, 

NMFS and the Navy shall further 

coordinate to determine what measures 

are necessary to further minimize that 

likelihood and implement those 

measures as appropriate. 

(ii) Within 72 hours of NMFS 

notifying the Navy of the presence of a 

USE, the Navy shall provide available 

information to NMFS (per the SOCAL 

Communication Protocol) regarding the 

location, number and types of acoustic/ 

explosive sources, direction and speed 

of units using MFAS/HFAS, and marine 

mammal sightings information 

associated with training activities 

occurring within 80 nm (148 km) and 72 

hours prior to the USE event. 

Information not initially available 

regarding the 80 nm (148 km), 72 hours, 

period prior to the event shall be 

provided as soon as it becomes 

available. The Navy shall provide NMFS 

investigative teams with additional 

relevant unclassified information as 

requested, if available. 

(iii) Memorandum of Agreement 

(MOA)—The Navy and NMFS shall 

develop an MOA, or other mechanism 

consistent with federal fiscal law 

requirements (and all other applicable 

laws), that allows the Navy to assist 

NMFS with the Phase 1 and 2 

Investigations of USEs through the 

provision of in-kind services, such as 

(but not limited to) the use of plane/ 

boat/truck for transport of personnel 

involved in the stranding response or 

investigation or animals, use of Navy 

property for necropsies or burial, or 

assistance with aerial surveys to discern 

the extent of a USE. The Navy may 

assist NMFS with the Investigations by 

providing one or more of the in-kind 

services outlined in the MOA, when 

available and logistically feasible and 

when the assistance does not negatively 

affect Fleet operational commitments. 

§ 216.275 Requirements for monitoring 

and reporting. 

(a) The Navy is required to cooperate 

with the NMFS, and any other Federal, 

state or local agency monitoring the 

impacts of the activity on marine 

mammals. 

(b) As outlined in the SOCAL 

Stranding Communication Plan, the 

Navy must notify NMFS immediately 

(or as soon as clearance procedures 

allow) if the specified activity identified 

in § 216.270(b) is thought to have 

resulted in the mortality or injury of any 

marine mammals, or in any take of 

marine mammals not identified in 

§ 216.270(c). 

(c) The Navy must conduct all 

monitoring and/or research required 

under the Letter of Authorization 

including abiding by the letter of the 

SOCAL Monitoring Plan, which requires 

the Navy to implement, at a minimum, 

the monitoring activities summarized in 

Table 1 below (and described in more 

detail in the SOCAL Monitoring Plan, 

which may be viewed at: http:// 

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

incidental.htm). 

(d) Report on Monitoring required in 

sub-paragraph (c) of this section—The 

Navy shall submit a report annually on 

September 1 describing the 

implementation and results (through 

June 1 of the same year) of the 

monitoring required in paragraph c, 

above. Navy will standardize data 

collection methods across ranges to 

allow for comparison in different 

geographic locations. 

(e) SINKEX, GUNEX, MISSILEX, 

BOMBEX, Mine Warfare/ 

Countermeasures, and Naval Surface 

Fire Support—A yearly report detailing 

the exercise’s timelines, the time the 

surveys commenced and terminated, 

amount, and types of all ordnance 

expended, and the results of marine 

mammal survey efforts for each event 

will be submitted to NMFS. 

(f) IEER exercises—A yearly report 

detailing the number of exercises along 

with the hours of associated marine 

mammal survey and associated marine 

mammal sightings, number of times 

employment was delayed by marine 

mammal sightings, and the number of 

total detonated charges and self-scuttled 

charges shall be submitted to NMFS. 

(g) MFAS/HFAS exercises—The Navy 

shall submit an After Action Report to 

the Office of Protected Resources, 

NMFS, within 120 days of the 

completion of any Major Training or 

Integrated Unit-Level Exercise 

(Sustainment Exercise, IAC2, SHAREM, 

COMPTUEX, JTFEX). For other ASW 

exercises, the Navy shall submit a yearly 

summary report. These reports (the 

AARs and the annual reports) shall, at 

a minimum, include the following 

information: 

(1) The estimated total number of 

hours of active sonar operation and the 

types of sonar utilized in the exercise; 

(2) The total number of hours of 

observation effort (including 

observation time when active sonar was 

not operating), if obtainable; and; 

(3) All marine mammal sightings (at 

any distance—not just within a 

particular distance) to include, when 

possible, and if not classified: 

(i) Species, 

(ii) Number of animals sighted, 

(iii) Geographic location of marine 

mammal sighting, 

(iv) Distance of animal from any ship 

with observers, 

(v) Whether animal is fore, aft, port, 

or starboard, 

(vi) Direction of animal movement in 

relation to boat (towards, away, 

parallel), 

(vii) Any observed behaviors of 

marine mammals. 

(4) The status of any active 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; and 

(5) The platform that the marine 

mammals were initially sighted from. 

(h) SOCAL Comprehensive Report— 

The Navy shall submit to NMFS a draft 

report that analyzes and summarizes all 

of the multi-year marine mammal 

information gathered during all training 

for which individual reports are 

required in § 216.175 (d through f). This 

report shall be submitted at the end of 

the fourth year of the rule (November 

2012), covering activities that have 

occurred through June 1, 2012. 

(i) The Navy shall respond to NMFS 

comments on the draft SOCAL 

comprehensive report if NMFS provides 

the Navy with comments on the draft 

report within 3 months of receipt. The 

report shall be considered final after the 

Navy has addressed NMFS’ comments, 

or 3 months after the submittal of the 

draft if NMFS does not comment by 

then. 

(j) Comprehensive National Sonar 

Report—By June 2014, the Navy shall 

submit a draft National Report that 

analyzes, compares, and summarizes the 

active sonar data gathered (through 

November 2013) from the watchstanders 

and pursuant to the implementation of 

the Monitoring Plans for SOCAL, the 

Hawaii Range Complex (HRC), the 

Southern California (SOCAL) Range 

Complex, the Marianas Range Complex, 

and the Northwest Training Range. 

(k) The Navy shall respond to NMFS 

comments on the draft comprehensive 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 60907 

National Sonar report if NMFS provides 

the Navy with comments on the draft 

report within 3 months of receipt. The 

report will be considered final after the 

Navy has addressed NMFS’ comments, 

or 3 months after the submittal of the 

draft if NMFS does not comment by 

then. 

§ 216.276 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations, the U.S. 

Citizen (as defined by § 216.103) 

conducting the activity identified in 

§ 216.270(c) (i.e., the Navy) must apply 

for and obtain either an initial Letter of 

Authorization in accordance with 

§ 216.277 or a renewal under § 216.278. 

§ 216.277 Letter of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 216.278. 

(b) Each Letter of Authorization shall 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

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

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization shall be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 216.278 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 216.177 for the 

activity identified in § 216.170(c) will be 

renewed annually upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 216.246 will be 

undertaken and that there will not be a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming 12 months; 

(2) Receipt of the monitoring reports 

and notifications within the indicated 

timeframes required under § 216.275(b 

through j); and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 216.274 and 

the Letter of Authorization issued under 

§§ 216.106 and 216.277, were 

undertaken and will be undertaken 

during the upcoming annual period of 

validity of a renewed Letter of 

Authorization. 

(b) Adaptive Management—Based on 

new information, NMFS may modify or 

augment the existing mitigation 

measures if new data suggests that such 

modifications would have a reasonable 

likelihood of reducing adverse effects to 

marine mammals and if the measures 

are practicable. Similarly, NMFS may 

coordinate with the Navy to modify or 

augment the existing monitoring 

requirements if the new data suggest 

that the addition of a particular measure 

would likely fill in a specifically 

important data gap. The following are 

some possible sources of new and 

applicable data: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from the SOCAL Range Complex 

or other locations); 

(2) Results from specific stranding 

investigations (either from the SOCAL 

Range Complex or other locations, and 

involving coincident MFAS/HFAS 

training or not involving coincident use) 

or NMFS’ long term prospective 

stranding investigation discussed in the 

preamble to this proposed rule; 

(3) Results from general marine 

mammal and sound research (funded by 

the Navy or otherwise). 

(c) If a request for a renewal of a Letter 

of Authorization issued under 

§§ 216.106 and 216.278 indicates that a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, or if NMFS 

utilizes the adaptive management 

mechanism addressed in paragraph (b) 

of this section to modify or augment the 

mitigation or monitoring measures, the 

NMFS shall provide the public a period 

of 30 days for review and comment on 

the request. Review and comment on 

renewals of Letters of Authorization 

would be restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(d) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

§ 216.279 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 and 216.277 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 § 216.278, 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 § 216.270(b), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 216.277 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. 

BILLING CODE 3510–22–P 


sroberts on PROD1PC70 with PROPOSALS
60908 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Proposed Rules 

[FR Doc. E8–23618 Filed 10–10–08; 8:45 am] 

BILLING CODE 3510–22–C 


sroberts on PROD1PC70 with PROPOSALSEP14OC08.040</GPH>